(MAJOR COURT CONFILMATION)

SUDAN GOVERNMEN-I v. DEAF AND DUMB WOMAN OF UNKNOWN NAME

AC-CP-361-1966

Principles

·  Evidence_-Deaf and dumb accused_Proceedings when accused does not understand proceedings of Criminal Procedure. s. 241.

If the accused is unable to understand the proceedings, e.g., deaf and dumb; the court must use some means of commtu with hun to make him understand the proceeding.c. If the Major Court comes to the conclusion to’ convict such accused, then according to Code of Criminal Procedure, s. 241, the proceedings shall be forwarded with respect to the Chief Justice who shall pass thereon such order as he thinks fit. The above section gives the court the power to convict, but not the po’wer to pass sentence.

Judgment

M. E. Mobaj-ak J. November 27, 1966: —This is a peculiar case. The accused is a deaf and dumb woman of unknown name who is about forty- five years of age. The deceased is a blind man named Abdel Rahman Togo of about the same age. The incident took place on or about February18, 1963, at Hillat Boolees Lawigila, about half an hour’s drive from Nyala. The incident came to light when P.W.4, Fatam Adam Abdel Rahman found the dead body of the deceased inside a well. This was about two days after the incident took place. The matter was reported to the police on February 20, 1965. Investigation was started by the police and the dead body was taken out of the well. Later on the body was identified. On medical examination of the body it was found out that there were two fractures of the skull one of which was at the base, injuries of the skin of the skull and behind the right ear and abrasions of the right shoulder blade. Tracks found at and near the scene led to the house of the accused. There an axe, with some hair and blood stains on it was found. The accused was interrogated by the police (and later on in her confession at the Magisterial Inquiry and in court) through the signals made by her. The court convicted the accused of murder under Sudan Penal Code, s. 251, and sentenced her to death, with a recommendation that the said sentence be commuted to life imprisonment.

ON POLl ‘E INVESTIGATION:

The accused was arrested on February 20, 1964. The investigating Sol of Police, Abdel Aziz El Sanousi, did well in getting one El Fakki Hamid (top of page 7 of the Case Diary), to interpret the signals by the accused. This El Fakki Hamid lived close to the gattia of accused and seemed to know the meaning of her signals.

ON THE MAGISTERIAL INQUIRY AND TRIAL:

Neither the committing Magistrate (El Tigani Au El Tom) nor the trial court (presided over by El Tayeb El Abbasi) tried, unfortunately, to make use of this El Fakki Hamid in the proceedings before them to help and explain the evidence of the witnesses called foi the accused or else help in the examination of the accused and the interpretation of her signals. The President of the court in his judgment (page 21 of the Record) referred to the Indian Evidence Act, s. 118. This section does not bear any relevance to the matter as it deals with the persons “who may testify.” It is clear that the President means section 119 of the Act, which deals with “dumb witnesses” which was quoted in extenso. This section is also irrelevant as it deals with the evidence of dumb witnesses and says nothing about accused persons. In a Note, which I received from the office of the Court of Appeal attached to the proceedings; reference was made to the case, Sudan Government V. Mohamed El Hassan Mohcrmed Kheir and Another (1962) S.L.J.R. 49. This again deals with the evidence of a deaf mute. In fairness to the President of the Major Court. I should like to state that the reference to the Indian Evidence Act, s. 119, was wrongly printed as section 118 of the Act.

The relevant ‘law to the matter of this case is the Code of Criminal Procedure, s. 241, which deals with “Procedure when accused does not understand proceedings.” Our section is based on and closely follows the Indian Criminal Procedure Code, 5. 341. Commenting on the Indian section, 11 Sohoni, Code of Criminal irocedure, 1831 (15th ed., 1961), states:

“This section is intended to provide for cases where the accused is unable to understand the proceedings through deafness or dumbness, or through ignorance of the language of the country and the want of an interpreter. In other words, it relates to cases in which the accused person cannot be made to understand the proceedings though not insane.”

The author then goes on to state on page 1833:

“When a deaf and dumb person is placed on his trial, some means of communication with him should, if possible, he adopted. Proper endeavours should, in the first instance, be made to make him under stand the proceedings and if the court is satisfied he cannot be made to do so, then a proper finding within the meaning of section 31’ must be given and the learned judge must then exercise his discretion under that section as to the manner in which he should deal with the case.”

And again on page I835 states:

‘’…. an attempt should be made to find out whether the accused has any friends or relatives who are accustomed to communicate with him. The magistrate should make inquiries about his ante cedents and ordinary mode of life and the manner in which he is communicated with in the ordinary affairs of life.”

Again on page 1833 states:

“The inquiry as to the capacity of the accused to understand the proceedings must be made by the trial court. it is not enough that the committing magistrate has made the inquiry.”

ON THE FINDING:

The court, as stated before, found the accused guilty under Sudan Penal Code, s. 251. In the statement made by the accused on January 11, 1965 soon after her arrest by the police (page 7 of the Case Diary) she was understood to say that the deceased walked with her outside the village to have sexual intercourse. She stated that she was not con senting but the deceased forced her to agree. She had had sexual intercourse with him before that day. The said confession of accused taken the same day (page 8 of the Case Diary) was recorded in a very brief and defective manner. It is more or less a Note of about three lines recorded by the President Magistrate who subsequently presided over the Major Court. In her statement at the Magisterial inquiry (page i6 of the Trial Record). The accused was understood to state, inter a/ia, that the deceased had taken her to the well in order to drink water, that on arrival there he asked her to allow him to have sexual intercourse with her, that she refused, hat the deceased struggled with her and then she took the axe from him, hit him with the blunt head of it and threw him in the well. She alleged that she was acting in self-defence. The trial court visited the scene on May 24, 1965, accompanied by accused. There she was asked to demonstrate the incident with the help of a policeman who acted the deceased. From her demonstration the court came to understand that the deceased had held her with great force in order to hay” sexual intercourse with her gainst her will, that in their struggle they both got close to the well, arid there she hit him with the axe on the side of his head and then pushed him inside the well (pages 17—18 of the Record). When examined in court after that (page 19) she stated that she had refused sexual intercourse when the deceased went to her house during daytime, that he went to her again about sunset and she refused again, then she took him to the well where he fought with her and then she hit him with the back and blunt edge of the axe head and then he fell inside the well.

From all the circumstances stated above it is highly probable that the allegations made by the accused (as far as could be ascertained) were true as regards the intention of deceased to have sexual intercourse with her and that she was not willing to concede to the advances made by him. It is also highly probable that the deceased held the accused by force (or fought with her) to achieve his aim. I come to this conclusion from the sum of all the signals and the demonstration made by the accused in all the proceedings. There was no eyewitness to support or contradict the accused in all these allegations and I see no reason why these allegations should not, therefore, be accepted and acted upon.

On these facts, I think that the accused was acting in self-defence when she hit deceased. Her act, however, I think is not covered by Sudan Penal Code, s 55. The deceased it is proved was blind. If we accept the state ment by the accused that she had gone with him to the well for the purpose of only drinking water (page 16 of the Recordi then he must have renewed his advances near the well and then held her by force to have sexual intercourse with her. The accused taking into consideration the blindness of deceased and his condition, could have released herself without hitting him with the axe and throwing his body (dead or alive then) in the well. The act of accused therefore is co eyed. I think, by Sudan Penal Code, 5. 249 (2).

For all these reasons I alter the finding of guilty under Sudan Penal Code, s. 251, to a finding of guilty under Sudan Penal Code, s. 253.

ON THE SENTENCE:

The relevant part of Code of Criminal Procedure, s, 241, reads:

“ . . . If the accused is ultimately convicted the proceedings shall be forwarded with a report of the circumstances of the case . . if the trial was before a Major Court to the Chief Justice, and the

Chief Justice shall pass thereon such order as he thinks fit.”

Dealing with the question of sentence, II Schoni, Code of Criminal Procedure, 1834—1835 (15th ed., 1961), states:

“So far as the trial court is concerned section 341, while it gives the power to convict, does not give the power to pass sentence. The proper course for the trial court to adopt, if the trial results in a conviction is to submit the proceedings to the High Court for such orders as the High Court may think fit to pass, thus leaving it to the High Court in appropriate cases to pass the Sentence. This section prohibits a court from passing sentence when it is uncertain that the accused had understood the proceedings against him.”

In this case, I think, from all the material before me. the accused did understand the proceedings though perhaps not all what was stated in court.

Considering all the circumstances I think that a sentence of imprison ment for six years is adequate.

In the end, therefore, I alter finding of guilty under Sudan Penal Code, s.253 and think that sentence of imprisonment for six years as from June 20, 1965, is adequate.

El Rayah El Amin J. November 27, 1966: —I agree to the finding. As to sentence, I think it is a little bit on the low side. I think seven or eight years’ imprisonment will be adequate.

M. E. Mobarak 1. November 27, 1966: —I alter sentence to imprison ment for seven years.