Principles

·  CRIM!NAL LAW — Infanticide — Punishment when convicted under Penal Code,:. 251.

Accused killed her five days old illegitimate baby. She was convicted under Penal Code, s. 251 and sentenced to death.
Held: Because there is no special law of infanticide in the Sudan. conviction of murder is confirmed, but in accordance with practice corresponding to English law, when the child killed is under 12 months of age and at the time of the act the accused’s mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the child or by reason of the effect of lactation consequent upon the birth of the child,’ the sentence Is reduced to two years, there being no aggravating circumstances.

Judgment

M.A. Abu Rannat, C.J.  May 2, 1963:— The facts set out in the summary of salient facts are supported by sufficient evidence and are also admitted by the accused. The accused confesses that she gave birth to an illegitimate child, and that she killed him by suffocation when he was 5 days old. The intention is therefore clear. We have not in the Sudan the statutory offence of infanticide, and I therefore confirm the finding of murder and death sentence.

I shall deal with the sentence in my note on prerogative for mercy.

Sentence:

The accused is a woman of the serf class who was living in Berber town. She was divorced from her husband about six years before the incident. She has two children from her lawful marriage.

On October 19, 1962 she gave birth to an illegitimate child in Atbara hospital and after the birth she told the hospital authorities that she did not want to take the child with her and as them to take care of it. She was told to pay a fee of £S.l0. She had not a single millime and she therefore left the hospital after three days from the birth. She took the child with her to a rest house and after one day somebody gave her 15 piastres and she took the bus to Berber town after paying 5 piastres for the fare. While she was on the bus, she wrapped the infant in an old tob, and when she arrived at Berber the child was dead by suffocation. Then she dug a pit in her house and buried it. The age of the child was 5 days when he died.

Strictly speaking this is murder and the court was bound to pass the death sentence. However, the court made strong recommendation for the commutation of the death sentence.

Such an offence is known in England as the offence of infanticide, which is not punishable with death, Its definition in England is as follows:

“Where a woman by any wilful act or omission causes the death of her child being a child under the age of 12 months, but at the time of the act or omission the balance of her mind was disturbed by reason of’ her not having fully recovered from the effect of giving birth to the child or by reason of the effect of lactation consequent upon the birth of the child, then not-withstanding that the circumstances were such that but for this act, the offence would have amounted to murder, she shall be guilty of felony, to wit of infanticide, and may for such offence be dealt with and punished as if she had been guilty of the offence of manslaughter of the child.”

In the Sudan we have been following the principles of the Infanticide Act, and the normal sentence for such an offence as this is imprisonment for two years unless there are other aggravating circumstances. I there fore beg to recommend that the death sentence be commuted to imprisonment for two years.

Editors’ Note: Accord, Sudan Government v. Zaila Fadl El Mula, AC-CP-87-1959, (1961) S.L.J.R. 146.