Case No.:

AC-CP-1961

Court:

The High Court of Justice

Issue No.:

1962

Principles

·  Criminal Law—Grave and sudden provocation—Penal Code, 5. 249 (i)—May be by things said alone Criminal Law—Grave and sudden provocation—Penal Code, s. 249 ( may be by one acting in lawful self-defence

Accused, gravely provoked by words alone, stabbed a man and was thereupon beaten by the stabbed mans relatives. One of the villagers who soon arrived, the deceased, tried to take the knife from accused who stabbed and killed him. thinking deceased was one of his earlier assailants. The conviction of murder was reduced to culpable homicide not amounting to murder by reason of grave and sudden provocation, because (a) provocation may be by “things said” alone; (b) although deceased did not give the provocation, accused killed him “by mistake”; (c) Sudan Penal Code, s. 249 (1) contains no proviso like Indian Penal Code, s. 300, exception i, excluding “provocation . . . given by anything “done in the lawful exercise of the right of private defence.”

Judgment

(MAJOR COURT CONFIRMATION)

SUDAN GOVERNMENT v. ISMAIL AHMED GARGARA

AC-CP-1961

M. A. Abu Rannat C.J. March 23, 1962: —On December 3, 1960, at about 8 p.m. at Hillat Zag there was a dance and young men and girls participated as usual in the dance. The accused was wearing on his head a cap of ostrich feathers, which was the fashion for dancers in those localities. While the accused was dancing, his feathers cap fell from his head, and a certain El Hag Mohamed Idris and his brother Abdel Radi and some of their cousins laughed at him and also made sarcastic remarks against him. He was infuriated by the remarks and address. El Hag Mohamed Idris by saying to him that he could not obtain such a cap. El Hag Mohamed Idris replied that it was worth so piastres only, and then accused replied that his father could not pay for it, and then El Hag Mohamed Idris replied that accused had no ancestors. Some of the people who were present separated them. The accused was then smarting under provocation, brandished his knife and stabbed El Hag Mohamed Idris on the shoulder. All the relatives of El Hag Mohamed Idris started to beat at accused with their sticks. Accused fell down and they ‘also continued to beat him. In fact they gave him a good beating, but the accused was still holding his knife in his hand. At this time, some of the villagers arrived to stop the beating and also to take the knife from accused’s hand. Amongst the villagers was the deceased who was trying to take the knife from accused, it was dark and accused’s face was covered with blood. He struck the deceased on the right side of his stomach with the knife believing that he was fighting against his opponents. The knife also injured deceased’s palm when the deceased was trying to stop the knife from reaching his stomach.

It is clear that accused stabbed the deceased and thereby caused his death. It is also clear that accused at least knew that death would be the probable consequence of his act. Prima facie accused committed murder.

I think the defence under Penal Code, s. 249 (z), succeeds.

Penal Code, S. 249 (i), reads:

“Culpable homicide is not murder if the offender whilst deprived of the power of self-control by grave and sudden provocation causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.”

When El Hag Mohamed Idris and his relatives said the accused had no ancestors, they meant that he was illegitimate or that his fathers are of low class such as slaves, etc.

The difficulties which the cases created in deciding to what extent if at all words alone or words or gestures combined with blows could in law constitute sufficient provocation, are now disposed of by the English Homicide Act, s. , which has declared that the provocation may be “whether by things done, or by things said, or by both together.”

When the accused attacked El Ha Mohamed Idris, he had really acted in a passion and it was also clear that the stabbing of El Hag Mohamed Idris was upon that sudden heat and was not premeditated in cold blood. The beating by El Hag Mohamed Idris and his companions was no doubt justifiable as they were then exercising the right of private defence.

The second point is that the accused was badly beaten by several people and when he stabbed the deceased he was no doubt highly provoked. The real test in such a case as this is whether the wound of the deceased was caused by the accused while smarting under a provocation so recent and so strong that the accused might not be considered at the moment the master of his own understanding. The last part of Penal Code, S. 249 (r), says: “... causes the death of any person by mistake or accident.” This means that he kills a person by mistake or accident while he is under grave and sudden provocation.

I should like to point out that our Penal Code, s. 249 (1), is not subject to the third proviso of Exception i to the Indian Penal Code, s. 300, which reads: “. - - that the provocation is not given by anything done in the lawful exercise of the right of private defence.”

I therefore alter the finding to one of guilty under Penal Code, S. 253, and the sentence to imprisonment for 14 years from December 3. 1960.