(MAJOR COURT CONFIRMATION)

SUDAN GOVERNMENT v. IBRAHIM BIREIMA SHITEITA

AC –CP-530-1967

Principles

Criminal Law—Grave and Sudden Provocation—Sudan Penal Code, g. 249 (1)-wife refusing to admit husband to sexual intercourse—Not provocative

  The refusal of a wife to have sexual intercourse with her husband does not constitute a grave and sudden provocation under Sudan Penal Code, s. 249 (1)

Judgment

      M. E. Mobarcik J. November 1, 1967: —These are the proceedings of a Major Court held at Urn Ruwaba under the presidency of Izzat Ahmed Zaki, temporary magistrate of the first class. The accused was charged under Sudan Penal Code, s. 251, with causing the death of his wife Amna Idris by stabbing her several times on April 12, 1966. The accused was convicted under Sudan Penal Code, s. 253, the court believing that he had been deprived of the power of self control by grave and sudden provocation under Sudan Penal Code, 5. 249 (1), and sentenced to imprisonment for five years as from April 12, 1966, date of arrest.

       It is established that the accused on April 12, 1966, at about 8.30 a.m. stabbed his wife, the deceased, with a knife not less than five times inside a Guttia in their house at Fareeg El Baghir of Urn Ruwaba town. No one was present when the incident took place. The matter was first reported to the police on the phone by a neighbour. The accused soon after that walked to the police station carrying his knife (the weapon used) which was all stained with blood and with the tip of the blade twisted as a result of the severe stabbing by him of his wife. The wife was removed to the hospital where she died a short time after that, the same morning. When the accused was first interrogated by the police at about 9 a.m. (page 1 of the Case Diary) he refused to disclose the reasons for his act. The deceased made a statement to the Investigator (a dying declaration) at about 9. a .m. This is recorded at page 2 of the Case Diary. The deceased died in less than fifteen minutes after making this statement. Later on the same day the accused made a detailed confession which was recorded by a magistrate at pages 4—6 of the Case Diary.

       I entirely agree with the court in answering the first three points for determination in its judgment (pages 30—31 of the Record) in the affirmative. As regards the judgment of the court in respect of “grave and sudden provocation “, I am in total disagreement with it. No point for determination was properly framed by the court in respect of this matter though it was fully discussed. The point which the court ought to have framed is:

       “Was accused deprived of his power of self control by grave and sudden provocation given to him by the deceased? (Sudan Penal Code, s. 249 (1)).

     The court answered this point in the affirmative and based its finding of not guilty under Sudan Penal Code, s. 251, but guilty under Sudan Penal Code, s. 253 on this answer. I shall deal briefly with the reasons stated by the court in its judgment.

     In its argument the court stated at first that the deceased was a woman of bad character who had had sexual intercourse with other men (and hence she was five months advanced in pregnancy when killed by the accused) and that she had admitted in her dying declaration to the Investigator that she never had sexual intercourse with the accused (her husband) since she had the “red blood” disease, i.e. for about two years before the stabbing. In her statement to the Investigator (page 2 of the Case Diary) the deceased simply stated that she refused to have sexual intercourse with the accused as he had the disease referred to above. She never stated that she never had sexual intercourse with him since he contracted the disease. The fact that she was five months advanced in pregnancy when stabbed and killed (as established by medical evidence) does not, by itself, establish that this pregnancy was due to adultery. The accused (as per his statement to the court at page 22 of the Record) did not know that she was pregnant. In her statement to the Investigator

(page 2, Case Diary) the deceased stated that the accused asked her to have sexual intercourse with him just before the incident and when she refused he took his knife and stabbed her. The allegation by the accused that his wife had, before her death, sexual relationship with other men (referring to P.W.6. Abdel Shafie Harroun in particular) is not supported by sufficient evidence. It may be true that the wife and husband had trouble with each other from time to time, and that she several times left for her relatives at Ghabsha. The accused called three defence witnesses to prove his allegations of unchastity against his wife. Only one of these three defence witnesses, i.e. D.W. r. Babiker El Shami, establishes the fact that about ten years before the stabbing he found accused holding a man inside his hosh and alleging that that man had had some relationship with his wife, the deceased. The two other defence witnesses were of no help to the accused as regards his allegations. In fact D.W. El Tayib Abdalla (page 27 of the Record) and D.W.2. Mohamed Gaafar testified that the allegation by the accused that one El Yas Mustafa had had sexual relationship with the deceased was not true. Even if we accept that the allegations by the accused against his wife in this respect are true (and I do not believe that they are) then the provocation caused to him, even though it might have been grave, is positively not sudden. The provocation under the Sudan Penal Code, s. 249 (1), must be both grave and sudden. No allegation was made by the accused that he found a man having intercourse with his wife on April 12, 1966, before the stabbing.

       The court stated as one of its reasons that the deceased refused to have sexual intercourse with accused, her husband. This, according to the authorities, does not constitute grave provocation under Sudan Penal Code, S. 249 (1) Ratanlal, The Law of Crimes (2 ist ed. 1966) p. 772 wrote:

    “The refusal of a wife to have connection with her husband is held not to constitute a grave and sudden provocation. Ghazi V.

Emperor (1921) 23 Cr.L.J. ‘140.”

       The third reasoning for the court was that the deceased called the accused bad names a short time before the incident. In his first statement to the police which is a very brief one (page 1, Case Diary) the accused did not allege any such thing. Even in his detailed confession to the magistrate (pages 4—6 of the Case Diary) the accused did not allege that the deceased had insulted him immediately before the accused said:

     “The deceased told me that she did not want to live with me any more. I said to her: ‘If you don’t want to live with me you may go to your relatives.’ Then she said to me: ‘I shall not go to my relatives unless you have killed me.’ I then said to her: ‘If you really want to die then let us both—you and I—die together’. I then drew my knife and stabbed her with it several times in the thigh and face.”

It is only at the magisterial inquiry (page 21 of Record) that the accused alleged for the first time that the deceased insulted him. I do not believe this allegation, and even if it is true

     “Mere words, or gestures, not accompanied with anything of such a serious character as a blow, will not in point of law, be sufficient to reduce the crime to manslaughter” in English Law. “It has been held by the Supreme Court that in India words and gestures may also, under certain circumstances, cause grave and sudden provocation to an accused so as to bring his act within this exception.”

Ratanlal Law of Crimes (21st ed. 1966) p. 768.

       On considering all the evidence, I believe that the accused stabbed the deceased only because she refused to have sexual intercourse with him on April 12, 1966, immediately before the incident.

     For all the reasons stated above, I think that we should refuse confirmation of the finding of not guilty under Sudan Penal Code, S. 251, but guilty under Sudan Penal Code, s. 253, and send the papers back for reconsideration of the finding on the lines stated in this Note.

         Galal Ali Lutif J. November 12, 1967: —I agree.

         Abdel Magid Hassan 1. November 13, 1967: —I agree.

       ORDER: M. E. Mobarak 1. November 14, 1967: —We refuse confirmation of the finding of not guilty under Sudan Penal Code, S. 251, but guilty under Sudan Penal Code, S. 253, and send the papers back for reconsideration of the finding on the lines stated in this Note.