Case No.:

AC-CP-546-1962

Court:

The High Court of Justice

Issue No.:

1962

Principles

·  Criminal Law— death when intention is to cause hurt—” Slight blow” to abdomen results in death when deceased excited—Penal Code. s. 254

After a heated argument accused gave deceased a slight blow” on the abdomen which left no mark. Deceased fell unconscious and died. On the theory that death was due to the blow on the abdomen coming at a time of physical exertion and emotional disturbance, the accused was convicted of causing death when intention is to cause simple hurt under Penal Code. s. 254, since accused could not have known that death would be even a likely result.

Judgment

(MAJOR COURT CONFIRMATION) *

SUDAN GOVERNME v. GALIL NICHOLA SHASHATI

AC-CP-546-1962

-Advocates: Advocate-General,

Sayed Omar Abu Bakr ……………………for the Government

Ahmed Atabani and Mubarak

Zarroug for the accused. ………………… for the accused

Abdel Wahab El Khidir …………………..  for relatives of

deceased with

permission of the

Attorney-General

M. A. Abu Rannat C April 8, 1963: —The appellant, Galil Nichola Shashati, an employee in the Pharmacy of Shashati, was on December 23, 1962, convicted at Khartoum by a Major Court of the crime of culpable homicide not amounting to murder under Sudan Penal Code, 5. 253, in that on September i 1962, he hit the deceased, Hamad Idris, with his hand once on the face, and kicked him with his foot on the chest and abdomen and thereby caused his death. The appellant is represented before us by Advocate Ahmed Atabani and advocate Mubarak Zarroug and the Government is represented by the Advocate-General, Sayed Omar Abu Bakr. The relatives of the deceased are represented with the permission of the Attorney-General by advocate Abdel Wahab El Khidir.

The following facts were believed by the court: On September i 1962, at midday, the deceased entered the pharmacy where the accused was acting as an administrative manager, and wanted to buy some medicines. He was given the medicine, and told of its price. He was not satisfied with the price and started to argue with the accused. The argument between the deceased and accused reached a stage when the deceased insulted the accused, and the latter threatened to call the police. The abusive words were vulgar and one of the witnesses stated that insults were exchanged between the deceased and accused. Then the accused threw a book at the deceased, but the book did not hit him. The feelings of both of them became high, and the deceased challenged the accused to meet him outside the pharmacy, and the accused replied by saying:

“If I go outside, I shall eat you.” It seems that the deceased was thin and weak in physique. At this stage, one of the pharmacy employees intervened and took the deceased outside the pharmacy when the accused left the pharmacy and attacked the deceased. Up to this point, the facts were not in dispute, but what happened afterwards was controversial. One of the pharmacy employees says that the accused did not strike the deceased but that he simply attempted to do so, while three other witnesses who were outside the pharmacy stated that the accused struck the deceased several times and although they differ in the manner in which the blows were delivered they all agree that some of the blows landed in the abdominal region near the chest, after which the deceased fell to the ground in complete coma and muscular contraction. He was taken to hospital where he was found to be dead. After post-mortem examination, the doctors did not find any organic injury or disease and gave the opinion that death was caused by shock and sudden inhibition of the heart and respiration, which may be due to blows on the abdomen enhanced by physical exertion and emotional disturbances.

These are the facts, which were set out by the court in their summary of salient facts. We shall later examine the evidence given by the prosecution witnesses with a view to see if they are consistent with the medical evidence.

The main issues in this case are three: first, whether the accused caused the deceased’s death; secondly, whether the accused knew that death was a likely consequence of his act; and if we find that he did not know that death was likely, whether he committed any other offence, and if so, what is that offence.

The court stated in its reasons for finding that it relies on the evidence of P.W. Abu Kelam, who stated that accused seized deceased with both hands on the shoulders, then kicked him with his knee in the abdomen, and hit him with his hand on the face, and lastly pressed him with his foot when the deceased was down on the ground. P.W.5. Omar Mohed stated that accused kicked the deceased twice with his foot at the chest region and then deceased fell to the ground with foam in his mouth. P.W.6, Gasim Hassan El Hakim, stated that he saw Abdel Gaul (P.W. between accused and deceased and the former hit deceased with his fist on the face, by raising it over the shoulder of Abdel Gaul, then Abdel Galil moved from his place and accused and deceased faced each other, and then accused hit the deceased with his knee on the abdomen. This witness says that after a short time, deceased fell to the ground.

These three witnesses described the blows as strong ones

P.W. Abdel Galil stated that after he took the deceased, out of the pharmacy, he felt that accused was behind him. Then deceased threw his shoes at the direction of the accused, and then later took a shoe and attempted to hit deceased with it. but he later gave it up. He stated that he did not see accused hit deceased at all. However, he stated that while he was seizing the deceased in order to prevent him from attacking the accused, a button of his shirt fell and he left the deceased in order to put his shirt in order. He estimated this time at five or seven minutes.

We are here faced with conflicting testimony of four witnesses and we must therefore decide which testimony meets the tests of plausibility. When two or three witnesses are at the scene of an offence involving Violence, it is rare for two of them to agree as to how the fight started or the manner in which the blows were delivered. A jurist has recently said:

“The eye may focus on one sector of the scene and be hypnotized by it to the exclusion of all else. It is not the visual sense, alone which is directional. Sympathy or bias may transform what we do see into what we would like to see. The tests proved that observation s a weak reed upon which to lean when the observer is under emotional excitation.”

Bearing all this in mind, we believe that no hit on the face was delivered because if it happened, it would have left a mark on the face, but we do think that a slight blow on the abdomen was delivered by the accused. We say slight because the careful medical examination revealed no marks of violence on any part of the body. We think that at the interval when P.W.3 was trying to dress himself properly, the accused kicked the deceased. Sir Sydney Smith stated in Smith, Forensic Medicine (10th ed. 1955) 41: “Inhibition or stoppage of the heart and respiration as a result of reflex nervous stimulation may be caused by sudden fright, emotion, pain, slight injuries to the abdomen or private parts, and other slight causes which leave no sign.” This means the slight blow delivered by the accused need not leave any sign on the abdomen.

The next point is whether the accused caused the death of the deceased.

The doctor who carried out the post-mortem examination said death might have been due to blows on the abdomen enhanced by physical exertion and emotional disturbances. The court found that as the deceased fell unconscious immediately after strong blows on his abdomen, the • death was due to those blows and physical exertion.

Advocate Atabani and Advocate Zarroug for the defence contend that physical exertion and emotional disturbances may have caused the death, but that the blow on the abdomen should not have been singled out by the court as the only cause of death. Advocate Atabani referred us to the case of Regina v. Abisa Orunshic (1956) West African Law Reports

36. In- that case the prosecution alleges that the appellant struck the deceased on the neck with the wooden part of an axe which he had removed from over the shoulder of the deceased, who fell to the ground, thereby causing his death. The appellant denied striking the deceased, as alleged, but explained that he threw the deceased down to the ground in self-defence when the deceased attempted to hit him with his axe.

The cause of death, which was cerebral hemorrhage, appears to be consistent both with the case for the prosecution and the defence In their judgment, the Court of Appeal said: “As the cause of death is consistent with the defence it was the duty of the judge to direct himself and the assessors to take a view most favourable to the appellant. The learned trial judge omitted to direct himself adequately on the question of death resulting from a fall to the ground

In this case we did not overlook the point raised by the defence. The doctor who gave evidence before the trial court said: “If a person under nervous stimulation and physical exertion received a slight blow on the abdomen, the stoppage of the heart would be due to the three causes. We agree that there was physical exertion, and therefore we find that the death was due to the slight blow on the abdomen and physical exertion. We think that the blow on the abdomen at least contributed to deceased’s death.”

The next point is whether the accused knew that death was a likely consequence of his act.

When a reasonable man says that a certain consequence is likely, he is not surprised if it does happen, and not surprised if it does not. In this particular case any reasonable man would be surprised if the death happened. The accused is not a doctor who knows that a slight kick on the abdomen which leaves no sign would cause death, and we therefore think that the accused did not commit culpable homicide not amounting to murder under Sudan Penal Code, s. 253.

The next question is whether the accused committed any other offence. We think that when the accused kicked the deceased on the abdominal region, his intention was to cause him simple hurt, and this constitutes an offence under Penal Code, S. 254. Consequently we alter the finding to one of guilty under Sudan Penal Code, s. 254, an offence which is defined as causing death when intention is to cause hurt or grievous hurt.

The sentence

As to sentence, we have reviewed many of our precedents of sentences under Penal Code, s. 254. We find that in cases where the death was caused by a kick or blow with the hand, the sentences range between three and two years. In some cases the sentence was one year. We think that as the accused is a sophisticated person in charge of a shop where the public are invited to buy medicine, he should have restrained his feelings, despite the fact that the deceased started the provocative insults which -led to this offence. We think that imprisonment for three years is adequate.

An application has been made by the appellant through his advocates for special treatment. Criminal Court Circular No. 9, which deals with recommendation for special treatment, says that in making or refusing recommendation, the court has absolute discretion to do what it considers just. Although the accused is a Sudanese merchant who is less than 30 years of age, we do not think that he is the type of person to be put in the old third-class division. We think it is just to recommend him for special treatment.

M. A. El Hassib 1. April 8. 1963: —I agree.

H. M. Abul Gassim P.J. April 8. 1963: —l concur.

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