(MAJOR COURT CONFIRMATION)

SUDAN GOVERNMENT v. ABBAKAR KHATIR KHAMIS

AC-CP-68-1968

Principles

Criminal Law—Private defence—Where assailant was killed with same weapon accused managed to disarm—Plea of private defence not applicable

Criminal Law—Provocation—Accumulation of incidents considered Evidence—Admissibility of accused’s statement in cases when nobody else was present at the scene of crime

A person will not be entitled to the right of private self-defence if he kills assailant with the same weapon he managed to disarm.

Provocation may be an accumulated one and the last incident may be the last straw.
An accused’s statement as to what happened at the scene of the crime where no one else was present except deceased has to be accepted as being true in so far as it is not inconsistent with the natural order of things.

Judgment

Galal Ali Lutfi J. July 17, 1968 :— The facts of this case as believed by the court are as follows:

Deceased Khatra Adam was the accused Abbaker Khatir Khamis’s wife. They were married about 13 years ago, and they had three children, the eldest of them is only seven years of age. They were leading a happy life until the start of the work on the extension of the railway line to Niyala which was the turning point in their relations.

Many railway labourers fixed their camps near the village of Matok where the deceased and husband were living. They mixed with the local people and became familiar with them. The wife took to a new habit of going daily to the camps in order to sell fruits and vegetables to the workers. Her behaviour changed and the husband began to suspect her conduct. She was always late in coming to her house during the night and one day she did not come home and she spent the night outside the house. The husband who was annoyed by her behaviour told her several times to cease going to the camps but she refused to do so.

On the day before this incident, (i.e., February 6, 1966) she wanted to go to the camps to sell her fruits and vegetables as usual but the husband ordered her not to go. She refused and insisted to carry her things to the camps. He was so angry that he destroyed the table on which she displayed her goods. She took a piece of wood and struck him on the shoulder. Then she took a piece of the broken table and hit him on the head. He did not retaliate. She was caught by some of the neighbours but she struggled hard to reach him. He only insulted her by calling her a prostitute and asked her where she had spent the night before. She returned the insult by telling him that if he had gone to the place where she had spent the night, the same man who had sexual intercourse with her would do the same with him and his mother. They were separated and no further quarrel had taken place on that day.

A day after the aforesaid incident a neighbour was celebrating the occasion of the circumcision of his children. The deceased went to the said place where there was singing and dancing. She returned late at night and a quarrel took place between her and her husband. How the quarrel started nobody can tell because they were alone. The accused struck her with an axe on the head and jaw and left her lying on the ground until she was discovered by some neighbours who heard her loud and unusual snorting. She was unconscious. She stayed in hospital for two days and then she passed away. The accused was tried by a Major Court and he was sentenced to death. Because of his three children and very old mother he was recommended to mercy.

When this incident took place nobody was present. The accused denied striking her with an axe. He pleaded that the deceased had struck him with an okaz and that he took it from her and hit her back in self- defence. The court rejected this plea on the ground that even if she had attacked him with an okaz and he took it from her then he would not be entitled to the right of private defence; because after he had disarmed her he was no longer in the position of defence. For this reason I do agree with the court that according to accused’s own statement he will not be entitled to the benefit of the right of self-defence.

The court also rejected the accused’s defence of sudden provocation. It stated that he did not take a serious step when the deceased had spent a night outside his house and so he cannot plead her bad conduct which followed that incident as grounds for provocation. In my view the court was not correct. If the accused did not take a serious action immediately after the deceased had committed clear provocative acts, this does not mean that he has approved such conduct. As it has been decided in several cases before, the provocation may be an accumulated one and the last incident may be the last straw.

It is proved beyond reasonable doubt that the deceased’s conduct was bad. She continued visiting the labourers’ camps in spite of her husband’s objection to that. She even attacked him in front of their neighbours when he told her not to go to the camps. She also admitted before them that she had sexual intercourse with another man. So, the incidents proved are sufficient to provoke any ordinary person and the last quarrel exploded what had accumulated for a long time. No one was present when the accused struck the deceased and therefore we have to accept the accused’s statement as being true in so far as it is not inconsistent with the natural order of things. But even if we take the accused’s statement as being correct then the accused will not be entitled to the benefit of what he pleaded. In cases where sudden provocation is resorted to as a defence the accused must show that the retaliation was proportionate to the provocation and that he did not take undue advantage and did not act in a cruel or unusual manner.

In this case if we accept the accused’s statement that he hit her with an okaz which he had taken from her, he has no doubt taken undue advantage. Because after she was disarmed she became helpless. Moreover, he struck her more than once on vital parts of her body and left her lying unconscious which shows how cruel he was.

In my view the finding under the Sudan Penal Code, s. 251 must be confirmed.

As to the sentence, I do agree with the court that the death sentence must not be carried out for the following reasons.

(1) The deceased’s conduat and behaviour was really provocative and in spite of the accused’s instructions to her to stay at home she defied him several times leaving her young children behind with her very old mother-in-law. She is to blame for what has happened, because this result was mainly the yield of her contribution.

(2)The death sentence is the proper legal punishment for what the accused has committed. But if it is carried out we will not only punish him but we will punish his three children and his old mother by depriving them of their only remaining hope in life.

For the above reasons, I suggest that we confirm the finding under Sudan Penal Code, s. 251, and commute the death sentence to life imprisonment as from February 8, 1966.

Abdel Magid Imam J. August 18, 1968 :—I agree.

Abdel Magid Hassan J. August 19, 1968 : —I agree.

ORDER: Galal Ali Lutfi J. August 20, 1968 : —We confirm the finding under Sudan Penal Code, 8. 251, and commute the death sentence to life imprisonment as from February 8, 1966.