(MAJOR O1JRT CONFIRMATION)

SUDAN GOVERNMENT v. ZAKARIA ABU DAHIYA

AC.CP-29-1966

Principles

·  Criminal Law—Private defence—Penal Code, s. 249 (2)—Applicable when there is fear of death or grievous hurt

According to Penal Code, s. 249 (2), before the right of private defence can be exercised, the accused must be under reasonable apprehension of death or grievous hurt from the person against whom the right is exercised.

Judgment

Abdel Magid Imam J. February 12, 1966: —I have confirmed the finding of guilty under Penal Code, s. 253, against accused Zakaria Abu Dahiya but I reduced the sentence of imprisonment to five years.

This incident was occasioned by a dispute over a wireless set which belonged to the accused and which had been borrowed by El Toma D.W.2 and deceased’s mother-in-law and which act the deceased resented.

On the day of the event, the deceased charged the accused with a stick weighing about 14 ounces while he was sitting outside his house and dealt him two blows. The accused then stabbed the deceased on the chest and on the thigh from which the deceased died shortly afterwards suffering from shock and loss of blood.

The accused was charged with an offence under Penal Code, s. 251. The court found that the -deceased’s death was a probable consequence of accused’s act. It was also found that the attack made by the deceased does not arouse fear of death or grievous hurt on the part of a person against whom such an attack was made. Notwithstanding this finding the court thought that the accused was exercising his right of self-defence and that therefore the offence of murder should be reduced to a lesser offence of culpable homicide not amounting to murder by virtue of Penal Code, S. 249 (2). This is obviously not correct; for the subsection applies only in case there is fear of death or grievous hurt. If such fear is not proved, an accused person can never be entitled to this benefit, i.e., such circumstancec are a conditon precedent g rise to such right.

“The limitations on the right of self-defence and its scope are set out in the sections which follow. For one thing the right does not arise if there is time to have recourse to the protection of the public authorities,

Another limitation is that when death is caused, the person exer cising the• right must be under reasonable apprehension of death or grievous hurt to himself or to those whom he is protecting I Gour, Penal Law of India (7th ed., 1961), pp.428. Both paragraphs 1 and 2 of the section speak of an act ‘which does not reasonably cause apprehension of death or grievous hurt,’ and against such an act there is no right of private defence”: same authority p. 447.

Again the court seems to have been impressed by the fact that no actual injury was suffered by the accused as a result of the attack. This is not a necessary requisite and it suffices if there is such reasonable apprehension aroused by an attempt or threat to commit an offence.

“An attempt or threat to commit the offence is enough to give rise to the right of private defence, and it is not necessary that the offences must have been actually committed before a person can resort to his right of private defence.” I Gour, Penal L of India (7th ed., 1961), pp. 428—429.

“Before the right of private defence can be exercised there must be a reasonable apprehension of death or grievous hurt at the hands of the person against whom the right is exercised. Whether the apprehension was reasonable or not is always a question of fact to be determined from the surrounding circumstances. The test in such a case is not whether there was actual danger but whether there was reasonable apprehension that such danger existed. The apprehension may be mistaken but if bona fide it gives rise to the right of private defence.” I Gour, Penal Law of India (7th ed., 1961), p. 447.

In this case the deceased attacked with a stick weighing 14 ounces, a dangerous weapon, and served the accused with two blows under cir cumstances which clearly showed that he would go on hitting. It is reasonable to hold under such circumstances that the accused had thereby been put under instant fear, at least, of grievous hurt, and accordingly would be entitled to the benefit.

The deceased was the aggressor and his aggression was unwarranted. Five years’ imprisonment, therefore, is appropriate.