Principles

·  Evidence__ Accomplice Associate’s evidence must be corroborated

·  Evidence__ Accomplice Screener must be corroborated

·  Evidence —Screener__ An accomplice must be corroborated

The evidence of an associate in crime must be corroborated.
Obiter dictum: The evidence of a witness to a crime who made no attempt to prevent it and did not disclose its commission though not of an accomplice must be treated as such and must be fully corroborated.

Obiter dictum: The evidence of a witness to a crime who made no attempt to prevent it and did not disclose its commission though not of an accomplice must be treated as such and must be fully corroborated.

Judgment

      M. E. Mobarak P. J. President, Major Court convened at El Obeid on August 30 1964:- On August 18, 1963, the deceased and Hamid Bakheit Mohamed, who were both employed by Fadul Ibrahim Boroha on hishing

     

 

his cultivation, returned to El Obeid after having spent four days in work in the cultivation outside town. They arrived at El Obeid in the afternoon. Deceased and Hamid had merissa together for 5 P.T. They were met by accused No. 2, Salama (P.W. 16), who went with them up to the house of Hamid Bakheit and then left them. Deceased left Hamid Bakheit at about 6:30 p.m. Deceased was then carrying his axe and had 10 P.T. in. his pocket.

      This same day there was a dancing party in the house of Maknoona Ahmed Mohamed El Maleel on the occasion of the marriage, of her brother El Mardi. Accused No. 1, Ahmed Abdulla Saeed, who is married to the daughter of Maknoona, lived in the same house. The dancing started at about 7:30 or 8 p.m. There were singers and girls dancing and a big crowd of people, including P.W. 4, Abdulla Tibeina, P.W. 5 Abdulla El Dooma (who sat on chair), P.W. 6, Hummeida El Nur (who stood close to them), and many others. Accused No. 1, Ahmed Abdulla Saeed, was there when the dancing started. The gathering of the dancing party was close to the outer part of the hosh of Maknoona near the main (men’s) door. The house of Maknoona had a back (women’s) door. Soon after the singing and dancing started accused No. 2, Salama, went there. He stood close to the men’s hosh door. Some time after that (at about 10 p.m.) the deceased went there. He was under the influence of drink and was carrying his axe in his hand. He stood near the hosh door and close to P.W. 4, Abdulla Tibeina, and P.W. 5, Abdulla El Doona, both of whom saw deceased and talked to him. The deceased said the words “Abshir Ya Arees” in a loud voice about three times and was talking to himself. P.W. 5 Abdulla El Dooma, asked deceased to keep silent so that the people present might hear the singing. Deceased (in joking manner) raised his axe as if he was going to hit Abdulla El Dooma with it, and when he came to know that the person at whom the axe was pointed was Abdulla El Dooma, deceased said “sorry.” A short time after that (at about 10:30 p.m.) deceased went out of the hosh into the street and stood close to and outside the hosh door. Accused No. 2, Salama (a friend of deceased), followed him out after a short interval, and after a short time accused No. 1, Ahmed Abdulla, went out and joined them. Accused No. 1, Ahmed Abdulla, asked deceased to go with him to the nearest shop to buy cigarettes and the three of them (accused No. 1, accused No. 2 and deceased) walked together. While they were walking together accused No. 1 Ahmed Abdulla, tried to drive accused No. 2, Salama, away but he would not go. They all arrived near the shop of P.W. 7, Babiker Ahmed Babiker. Accused No. 1, Ahmed Abdulla, and deceased stood about twenty-five paces away from the shop while accused No. 2, Salama, went up to the shop and awakened Babiker, the shop owner (who Was then fast asleep), and asked him for cigarettes. Babiker

     

 

said he would not open his shop after that. While P.W. 7, Babiker, was talking to accused No. 2, Salama, he saw the two men who stood about twenty-five paces away. These were accused No. 1, Ahmed Abdulla, and the deceased, who were talking together, but Babiker could not recognise them. Accused No. 2, Salama, walked up to accused No. 1, Ahmed Abdulla, and the deceased and after joining them the three walked together eastwards towards the place where the dead body of deceased was found early next morning. Babiker went to bed again.

      The three men (accused No. 1, accused No. 2 and deceased) went up to the shop of one Ali to buy cigarettes and found it closed. Accused No. 2, Salama, walked ahead of the two others (westwards) and sat down to pass water. He left accused No. 1, Ahmed Abdulla, and deceased together. These two then walked from the shop of Ali towards accused No. 2, Salama. When they got close to the corner of the house of Salih El Daw (opposite the shop of Ali) accused No. 1, Ahmed Abdulla, and deceased started to talk to each other in a loud voice and in a quarrelling manner. They were still moving, but accused No. 1, Ahmed Abdulla, slowed his steps and got behind deceased. Deceased was then carrying his axe under his left arm with the axe iron head towards his back. Accused No. 1, Ahmed Abdulla (who was then behind deceased), drew the axe from underneath his left arm. Deceased turned his head back wards on his left-hand side. Accused No. 1, Ahmed Abdulla, held the axe by its bat and with the back (blunt) part of its iron head hit deceased once on the left-hand side of the head. The blow was so hard that the back part of the axe head caused a depressed fracture of the skull and a part of the skull (equal in shape to the part of the axe head which hit the head) went inside the skull, into the brain matter, which was badly damaged. There was extreme internal haemorrhage as a result of this blow. The blow was delivered by accused No. 1, Ahmed Abdulla, on the head of deceased while the latter was turning his head backwards towards accused No. 1, Ahmed Abdulla, because the latter had snatched the axe. Deceased fell on the ground after the blow and never moved after that. He must have died soon after that. Accused No. 2, Salama, was then about eight or nine paces away and saw all this. Accused No. 1, Ahmed Abdulla (axe in hand), ran towards accused No. 2, Salama, who then ran away westwards. He turned to his right-hand side into another zugag. Accused No. 1, Ahmed Abdulla, went back up to the dead body of deceased. Accused No. 2, Salama, went back to the house corner and looked at the scene. Accused No. 1, Ahmed Abdulla, then threw the axe on the roof of one of the rooms in the house of Salih El Daw. Accused No. 1, Ahmed Abdulla, then ran away towards the south.

      Accused No. 2, Salama, went back to the house of Maknoona. The public singing and dancing were then over but a few men were then in

     

 

the hosh singing in a low voice. Accused No. 1, Ahmed Abdulla, came into the hosh soon after that through the women’s back door. Accused No. 2, Salama, stayed there in the house of Maknoona until dinner was served and he had dinner there. Accused No. 2 never got close to Accused No. 1, Ahmed Abdulla, or talked to him. Accused No. 2, Salama, then went to his house.

      That same night at about 11:30 or 12 midnight, P.W. 10, Amna El Alim, passed in the street close to the house of Salih El Daw. She saw the dead body of a man (the deceased) near the house corner but did not get close to it.

      On August 19, 1963, at about 5:30 a.m. Policeman Nafar Abdel Bagi Zayid was on his way from the western police station to his beat at Wad Ikeifa suk. He was met by one Fadul Elsa (a labourer in the Ministry of Works), who told him about the dead body found near the house of Salih El Daw. The policeman went there, saw the dead body and reported the matter at the western police station to the Ombashi N.C.O. P.W. 2, police officer, P.W. 3, Faroug Izzel Din, started investigations and went to the scene. There the mother of deceased and his brother, P.W. 13, Ibrahim, identified the body.

      Accused No. 2, Salama, was arrested the same day some time about 9 a.m. In his second statement to the investigator and at 4 p.m. the same day he stated that accused No. 1 and the deceased were together on the previous night. Accused No. 1, Ahmed Abdulla, was then arrested and he denied all the allegation made by accused No. 2, Salama. Accused No. 2, Salama, was interrogated several times after that and every time he gave more new information about the matter until he made a complete disclosure of all the facts and made a full confession to a magistrate on August 22, 1963. This day (August 22, 1963) the axe of deceased (the weapon used) was found by the police at about 1:40 p.m. on the roof of one of the rooms in the house of Salih El Daw close to the scene. Accused No. 2, Salama, gave a full and accurate description of this axe to P.W. 3, the investigating officer, before seeing it and he picked it out when it was put with another axe before him. P.W. 14, Hamid Bakheit, identified the axe as the property of deceased and stated that deceased was carrying it when he last saw him on August 18, 1963, at about 6:30 p.m. P.W. 5, Abdulla El Dooma, stated in his evidence that the deceased was carrying a small axe on August 18, 1963, at about 10 p.m. when he went to the dancing place in the house of Maknoona. P.W. 6, Humeida, confirmed this and added that the axe which was carried by deceased was similar to Exhibit A found by the police on the roof of the house of Salih El Daw.

      Accused No. 1, Ahmed Abdulla, was committed for trial, charged under Sudan Penal Code, s. 251. Accused No. 2, Salama, was committed

     

 

for trial under Sudan Penal Code, ss. 179 and 251, for screening. During the trial, accused No. 2 was granted a conditional pardon by the court under Criminal Procedure Code, s. 233, and Criminal Procedure Code, s. 232, and was called as a witness, P.W. 16.

      Did accused No. 1, Ahmed Abdulla Saeed (Abu Kharatish), on or about August 18, 1963, at the fifth quarter, Obeid, hit Abdel Rahman Yagoub Ibrahim (Dogaj) with an axe on the head? Yes. The most important and only direct witness in respect of this matter is accused No. 2, Salania Abdel Rahman El Adawi, who was granted a conditional pardon by the court under the provisions of Criminal Procedure Code, s. 233 (read with section 232 thereof), and was called as a prosecution witness in the case (P.W. 16).

      Before going into the details of the evidence of this P.W. 16, Salama, it is important to fully discuss all the circumstances regarding his arrest and the statements made by him to the police and his credibility as a witness against accused No. 1, Ahmed Abdulla.

      It is established that the dead body of the deceased was found by the police on August 19, 1963, at about 5:30 a.m. near the house of Salih Dawood, who was the third accused in this case at the magisterial inquiry but was discharged. Accused No. 2, Salama (P.W. 16), was arrested by the police the same day the dead body was found and was interrogated by the investigator at about 9 a.m. (see his first statement at pages 6-7 of the Case Diary). In this statement he denied having had anything to do with the matter. Later on the same day this Salama was interrogated at about 4 p.m. It had by then been stated by Babiker Ahmed Babiker (P.W. 7) that this Salama, accompanied by two men, went to his shop the previous night to buy cigarettes. Salama was confronted with this Babiker, and when interrogated he mentioned that accused No. 1, Ahmed Abdulla, was with him when he went to the shop of Babiker. Later on, he stated that the deceased was with them. He stated he had left deceased with Ahmed, accused No. 1, and went away after that. As a result of this second statement by accused No. 2, Salama, accused No. 1, Ahmed Abdulla, was arrested the same day at about 4:30 p.m. and he denied all the allegations made by accused No. 2, Salama. At about 5 p.m. the same day, August 19, 1963, accused No. 2, Salama, was interrogated for the third time by the investigator. In this statement he stated a new matter, i.e., that the deceased had an axe in his hand when he left him with accused No. 1, Ahmed Abdulla. A fourth statement by accused No. 2, Salama, was recorded on August 20, 1963. On August 21, 1963, accused No. 2, Salama, asked to see the investigator to make a full statement of all the facts within his knowledge. In this statement, accused No. 2, Salama, mentioned that after going to the shop of Babiker he found accused No. 1, Ahmed Abdulla, and deceased talking to each other in a quarrelling

     

 

manner, that accused No. 1, Ahmed Abdulla, threatened to slap him on the face if he got close to them, and so he left them together and went back to the dancing place. On the next following day, August 22, 1963, accused No. 2, Salama, asked again to see the investigator at about 7:15 a.m. This time he stated that he saw accused No. 1, Ahmed Abdulla, after they had left the shop of Babiker hit the deceased with the axe on the head; the deceased fell on the ground and he (accused No. 2, Salama) ran away. Accused No. 2, Salama, was taken the same day before the Resident Magistrate (Sayid Abdulla Abu Agla), who recorded a detailed confession made by him. This confession was never retracted by accused No. 2, Salama. On August 23, 1963, accused No. 2, Salama, made a seventh and last statement to the investigator. In this statement he described how accused No. 1, Ahmed Abdulla, snatched the deceased’s axe from underneath his left arm and hit him with it. Both at the magisterial inquiry (as accused) and before this court (as P.W. 16), accuser No. 2, Salama, gave full and accurate statements of all that had taken place.

      Accused No. 1, Ahmed Abdulla, was charged under Sudan Penal Code, s. 251, and accused No. 2, Salama, of screening under Sudan Penal Code, ss. 179 and 251. Accused No. 2, Salama, pleaded guilty to the charge preferred against him right from the beginning. After hearing the evidence of. P.W. 15 the court decided to grant accused No. 2, Salama, a conditional pardon under Criminal Procedure Code, s. 233 (read with Criminal Procedure Code, s. 232), so as to call him as a witness against accused No. 1, Ahmed Abdulla. The reasons for this are fully stated at pages 29—30 of the record. Accused No. 2, Salama, accepted this conditional tender of pardon and so was called as P.W. 16 at the trial. His evidence is to be found at pages 31-35 of the record.

      Now what is the position of accused No. 2, Salama (P.W. 16), in this case. Is he an accomplice?

      The first accused in this case, Ahmed Abdulla, is charged under Sudan Penal Code, s. 251. The second accused, Salama, is charged under Sudan Penal Code, s. 179, for screening the offence alleged to have been committed by accused No. 1, Ahmed Abdulla. “An ‘accomplice’ is a person who has concurred in the commission of an offence. He is a guilty associate in crime or partner”; Ratanlal and Thakore, Law of Evidence 263 (12th ed. 1953). In this case, accused No. 2, Salama, was neither concurring nor an associate or partner with accused No. 1, Ahmed Abdulla, in respect of the offence under. Sudan Penal Code, s. 251, with which the said accused No. 1, Ahmed Abdulla, is charged.

      “The burden of proving the witness to be an accomplice is of course upon the party alleging it for the purpose of invoking the rule, namely, upon the defendant: Whether the witness is in . truth an accomplice. is left to the jury to determine, and if they conclude him

 

to be such, then and then only are they to apply the rule requiring corroboration”: Sarkar, Law of Evidence 1115 (10th ed. 1958).

      We apply rules of English and Indian laws of evidence in this country, and “where there is a conflict between the English and Indian rule, it is the Indian rule which is generally followed”: Criminal Court Circular No. 29 (3). Before discussing the position of accused No. 2, Salama, as a witness in this case we should like to refer to the following sections of the Indian Evidence Act:

1) Section 133 reads: “An accomplice shall be a competent witness against an accused person; and a conviction is not illegal because it proceeds upon the uncorroborated testimony of an accomplice.”

  2) Section 114 of the Act reads with illustration (b). The illustration

reads:

  “The court may presume . . . (b) that an accomplice is worthy of credit, unless he is corroborated in material particulars.”

      As to the meaning of these two sections read together we refer to what the commentators on the Indian Evidence Act, e.g., Monir, Woodroofe and Maeer Ali, Sarkar, etc., wrote in respect of this matter. We need not quote what they said as it is easily available in their books. The rule of English law of evidence is identical to the Indian rule; and

3) Section 134 reads; “no particular number of witnesses shall in any case be required for the proof of any fact.”

      As regards accused No. 2, Salama, we came, acting on what the following authorities said in their books, to the conclusion that he is not an accomplice to accused No. 1, Ahmed Abdulla, in this• case. The authorities are:

a) “A witness who is not a guilty associate in crime or who does not sustain such a relation to the criminal act that he could be jointly indicted with the principal is not an accomplice as the element of mens rea is entirely absent. A witness who only happens to be conversant of a crime or who makes no attempt to prevent it or who does not disclose it is not an accomplice and the rule of practice as to corroboration does not apply to his evidence”: Ratanlal and Thakore, Law of Evidence 263 (12th ed. 1953).

In this case accused No. 2, Salama, knew of the act of accused No. 1, Ahmed Abdulla, but failed to disclose it in his early statements to the police.

b) “An accomplice means a guilty associate or -partner in crimes, or who in some way or other is connected with the offence in question

     

 

or who makes admissions of facts showing that he had a conscious hand in the offence. Where a witness is not concerned with the commission of a crime for which the accused is charged, he cannot be said to be an accomplice. The fact that he did not make a report soon after the occurrence by itself does not make him an accomplice”: Aiyer, Law and Practice of Evidence in Criminal Cases in India and Pakistan 651.

c) “Where a witness is not concerned with the commission of the crime for which the accused is charged, he cannot be said to be an accomplice in the crime. The fact that he did not make a report to the police soon after the occurrence on the following morning by itself does not make him an accomplice”: 3 Woodroofe and Ammer Ali, Evidence 2719.

d) “Mere fact that a person of low intelligence being struck with terror made no report of a crime does not make her an accomplice “; Sarkar, Evidence 1117 (10th ed. 1958).

e) “The mere fact that a person is cognisant of an offence and omitted to disclose it for six days is not sufficient to constitute him an accomplice, when it does not appear that he helped in the commission of the offence”: Basu, Evidence 1947 (4th ed. 1950).

f) “In English law . . . under the rule that participation in the crime is required to constitute an accomplice, the mere concealment of knowledge that the crime has been committed does not make the person concealing his knowledge an accomplice “; 2 Rail Prasanna Narain Chaudhuri Bahadur, Confessions and Evidence of Accomplices 154 (4th ed. 1956).

      This is enough for quotations.

      In this case the counsel for the accused never proved or even alleged that accused No. 2, Salama, was an accomplice to accused No. 1, Ahmed Abdulla, in respect of. the offence with which he is charged, i.e., the murder of deceased.

      The evidence of accused No. 2, Salama P.W. 16 before this court was taken in detail and is not, in our opinion, contradictory in major matters when compared with the previous statements taken from him as a whole in the police investigation. We have most carefully compared his evidence as a prosecution witness and compared it with all the previous statements, confessions, etc., which were before us. We have also compared his testimony with all .the other evidence adduced before us. We have found that the evidence of P.W. 16, Salama, is not only supported by his previous statements as a whole (Criminal Procedure Code, s. 116 (1) (b) and by his confession but there is other evidence which corroborated his testimony. This may be briefly stated to be as follows:

     

a)

P.W. 7, Babiker Ahmed Babiker, and P.W. 8, El Dooma Gabbosh, prove that accused No. 2, Salama, went about 10.20 p.m. to the shop of P.W. 7, Babiker, and awakened him to buy cigarettes. P.W. 7, Babiker stated that while accused No. 2, Salama (P.W. 16), was talking to him two other men (accused No. 1, Ahmed Abdulla, and deceased, stated by accused No. 2, Salama) stood in the street about twenty-five paces away, talking together. It was a dark night and P.W. 7, Babiker, could not recognise their faces. P.W. 7, Babiker, stated that accused No. 2, Salama, went from his shop up to these two men and the three of them walked west wards towards the direction of the place where the dead body of the deceased was seen later on that same night and was found next morning. This is in conformity with the story told by accused No. 2, Salama, and so it corroborates his evidence.

b) Accused No. 2, Salama, stated that while he sat down to urinate accused No. 1 Ahmed Abdulla, and deceased talked to each other and in a quarrelling manner. This is corroborated by the evidence of P.W. 9, Fatma Saeed Hinayir (whose house is close to the scene), who stated that she had woken up after Isha time and heard voices of two men talking to each other in a heated manner and quarrelling tone.

c) There is no doubt that deceased had a small axe in his hand when he went to the dancing place. This is proved by the evidence of P.W. 5, Abdulla El Dooma and P.W. 6, Hummeida. The axe now exhibited in court was found by the police on August 22, 1963, on the roof of the house of Salih El Daw, the nearest house to the scene where the dead body of deceased was found. This axe was identified by P.W. 6, Hummeida, to be similar to the one carried by the deceased at the dancing place (house of Maknoona and of accused No.1 ) at about 10 p.m. on August 18, 1963. This axe was identified by P.W.14 Haimid Bakheit, to be the axe of deceased. Accused No. 2, Salama, stated in evidence that accused No. 1, Ahmed Abdulla, snatched the axe of the deceased himself from underneath his left arm and hit him with it. on the head. Accused No. 2, Salama, gave an accurate description of this axe before it was shown to him by the investigator and stated how the deceased carried it immediately before the incident. Accused No. 2, Salama, picked this axe, stating that it was the axe of deceased used by accused No. 1, Ahmed Abdulla, in hitting him, when this axe was put to him by the investigator with another axe.

d) The medical officer stated that the man who hit deceased with the axe must, according to the site and nature of injury, have been

     

 

facing him or else was behind him but the deceased turned his head backwards on his left-hand side and the blow was then delivered on his head while the deceased was in that position. Accused No. 2, Salama, stated in evidence (as well as in his statement to the police and his confession) that accused No. 1, Ahmed Abdulla, was walking behind deceased, snatched the axe from underneath his left arm, and when deceased turned his head backwards by his left-hand side accused No. 1, Ahmed Abdulla, hit him with the back, blunt part of the axe iron head (P.W. 15 Dr. Abbas Ramzi).

e) Accused No. 1, Ahmed Abdulla, admitted before this court that he went out of the dancing place at about 10 p.m. to buy cigarettes. This is in conformity with the evidence of P.W. 16, Salama (accused No. 2), and P.W. 4, Abdulla Mohamed Hassan Tibeina.

f) Accused No. 2, Salama (P.W. 16), stated that the deceased went to the dancing place, where he stayed for a short time and then went out. This is supported by the evidence of P.W. 4, Abdulla Mohamed Hassan Tibeina, P.W. 5, Abdulla El Dooma, and P.W. 6, Hummeida, all of whom saw deceased there.

g) Accused No. 2, Salama, stated as P.W. 16 that the deceased went out first from the dancing place, that he followed him out and accused No. 1, Ahmed Abdulla, went out of the hosh a short time after that. This is proved to be true by the evidence of P.W. 4, Abdulla Mohamed Hassan Tibeina.

      The admission by accused No. 1, Ahmed Abdulla, that he went out of the hosh at about 10 p.m. to buy cigarettes will be discussed hereinafter when dealing with the evidence for defence called by him. The counsel for defence called four defence witnesses to rebut the allegation made by accused No. 2, Salama, as P.W. 16 and the other evidence called by the prosecution against accused No, 1, Ahmed Abdulla. The nature of the evidence of these four defence witnesses must be considered under the following circumstances established in court:

(a) All these four defence witnesses stated in the early parts of their testimony that accused No. 1, Ahmed Abdulla, never went out of the hosh where the dancing was held. Accused No. 1, Ahmed Abdulla, stated in court that he left the hosh at about 10 p.m. to buy cigarettes and was absent for some time.

(b) D.W. 1, Ahmed Adam Abul Bashar, is a friend of accused No. 1, Ahmed Abdulla. He states that he went to the dancing place (house of accused No. 1, and Maknoona) and stayed from 7 p.m. till midnight. Accused No. 1, Ahmed Abdulla, was there and he (the witness) saw accused No. 2, Salama. The witness stated

     

 

that he went out of the dancing place about four or five times and each time he was away about fifteen or twenty minutes. He adds that he was not seeing accused No.1, Ahmed Abdulla. all the time. Accused No. 1,. Ahmed Abdulla, states that he went out of the hosh at about 10 p.m. to buy cigarettes.

(c) D.W. 2, Abdulla Bilal Sirror, is married to the sister of the wife of the accused No.1, Ahmed Abdulla (the other daughter of Maknoona). He stated before us positively and emphatically that he was seeing accused No. 1, Ahmed Abdulla, all the time’ from 5 p.m. till midnight. This is not believed by the court because:

i. The accused himself admits that he went out of the hosh at about 10 p.m. to buy cigarettes and was absent for some time, and

ii. This D.W. 2, Abdulla Bilal, stated to P.W. 3, the investigator, that he was not sure whether accused No.1, Ahmed Abdulla, went out of the dancing place or not because there was a big crowd in the dancing place.

(d) D.W. 3, Mohamed Barakat Abdel Hay, is the husband of Maknoona, the mother of the wife of accused No.1, Ahmed

a. ‘ Abdulla. He first stated that accused No.1, Ahmed Abdulla, was all the time from 7.30 p.m. to 12.30 a.m. in the dancing place and he never went out. Later on he stated that there were intervals during which he was not looking at accused No.1, Ahmed Abdulla, and he (accused No.1) might have gone out without the witness seeing him. Accused No.1, Ahmed Abdulla. admits that he went out of the hosh at 10 p.m. and was absent for some time.

(e) D.W. 4, El Mardi Ahmed Mohamed, is the brother of Maknoona, the mother of the wife of accused No.1, Ahmed Abdulla. He first stated that he was seeing accused No.1, Ahmed Abdulla. from 8 p.m. to midnight. He later on added that he might have gone without seeing him. Accused No. 1, Ahmed Abdulla. admits having gone out for some time at about 10 p.m.

      It is to be noted that all the defence witnesses have close connection and relationship with accused No.1, Ahmed Abdulla.

      Considering all the facts stated above we find ourselves without the least reasonable doubt that it was accused No.1, Ahmed Abdulla, who hit the deceased, Abdel Rahman Yagoub Ibrahim, with his own axe on the head on August 18, 1963.

      Ahmed Abdulla thereby caused the death of Abdel Rahman Yagoub Ibrahim. The dead body of Abdel Rahman was taken to El Obeid Hospital on August 19, 1963, in the morning and’ it was examined

     

 

by P.W.15 medical officer Abbas Ramzi. He found abrasions on the right shoulder, probably due to the falling of deceased on the ground on the right-hand side when hit by accused No. 1, Ahmed Abdulla, on the left side of the head, and the medical officer also found a depressed fracture of the skull in the front left-hand side. The pressed bones from the skull reached the brain, injuring it and causing extensive internal haemorrhage in it. The bone fractured from the skull and depressed in the brain has the same shape as the blunt back part of an iron axe head, not the sharp end of it. Causes of death were shock and bleeding in the brain due to the injury sustained. Deceased died soon after the delivery of the blow at about 11 or 11:30 p.m.

      Did the accused either (a) intend to cause Abdel Rahman Yagoub Ibrahim’s death, or (b) know at the time when he acted that the death would be the probable consequence of his act? The weapon used is the back part of an iron axe head. This weapon (according to medical evidence) was used with great force and the blow was very quick. The blow was on the head and the skull sustained a deep depressed fracture as a result of it. The broken bone of the skull went down and injured the brain. P.W.15 the medical officer, stated in evidence that “death was certain as a result of such injury.” Under all these circumstances it is certain that the accused premeditated and intended the death of deceased.

      There is no question of self-defence, provocation or sudden fight.

      The court therefore finds accused No. 1, Ahmed Abdulla, guilty under Sudan Penal Code, s. 251, as charged.

      Accused No. 2, Abdel Rahman El Adani (Sudan Penal Code, s. 179)

      This accused was charged under Sudan Penal Code, s. 179. read with Sudan Penal Code, s. 251. He pleaded guilty at the trial. He was granted conditional pardon by the court under Criminal Procedure Code, s. 233, read with Criminal Procedure Code, s. 232. He accepted this tender of pardon and pleaded that he had complied with the conditions on which the tender of pardon was made. The court finds that he has so complied and we shall therefore pass a judgment of acquittal in respect of him and direct that he be set at liberty forthwith (Criminal Procedure Code, s. 232 (6).

      Babiker Awadalla J. October 12, 1964: —On the facts as they appear to me from a perusal of these proceedings, it is clear that this conviction cannot stand.

      All reliance was given by the court to the evidence of Salama Abdel Rahman El Adani, who was accused No. 2 at the inception of the proceedings and who was subsequently granted a pardon under Criminal Procedure Code, s. 253, with a view to receiving his evidence against his co-accused.

      In order to rely on that evidence, the court was at pains to show that corroboration was not, in the circumstances, called for. But in its anxiety

     

 

to dispose of this point, I regret to say that the court failed to perceive the correct role of accused No. 2 and so treated him throughout as “a person who, having witnessed the offence, failed to report it.” In the light of that “description” the court attempted to fortify its reliance on his evidence by a series of quotations from Indian authorities. It is with diffidence that I find myself unable to agree with the court either on the nature of accused No. 2’s role in this affair or on the unqualified validity of the quotations relied upon.

      I do not think that accused No. 2 can be said to be a person who has just seen a murder committed and indiscreetly chose to hold his peace. In my view the conduct of accused No. 2 as admitted by him is more in consonance with having taken a major part in the offence than merely being an eye-witness thereof. It might be that he had decoyed the deceased to the scene of the crime in order to facilitate the assault, or he might, jointly with accused No. 1, have been involved in a scuffle with the deceased culminating in the murder, or, last but not least, he might even have been the very person who delivered the fatal blow to the deceased. Accused No. 1, might have had a minor share in this episode, and the mere fact that he had the nerve to maintain his tenacity to the end should not be taken as evidence; let alone conclusive evidence, of principal culpability.

      If the evidence of persons like accused No. 2 is sufficient to send men to the gallows, then I cannot see how any innocent person can escape capital punishment. If the evidence of a man who has given several different statements on a single day can be accepted, if he is to be believed on his allegation that he had accompanied accused No. 1 and the deceased with a view to protecting the latter but nonetheless ran away at the material time in order to watch the affair from a safe corner, if his assertion can be taken as true that after having witnessed a murder he had gone back to the house of the murderer and in cold blood sat down to enjoy a meal, then surely our judicial standard of proof would have to be debased, not merely to a level of sheer credulity, but to one of absolute naivety. All this, in my view, is quite sufficient to show that accused No. 2 was not just a person who had seen a murder committed and preferred to keep silent. In my opinion he is more of an associate, whose evidence has to be corroborated, than an innocent though cowardly bystander who had no hand in the matter.

      But, even if we say that accused No. 2 was an innocent bystander, I do not think that even in India the law as to whether or not his evidence should be accepted without corroboration is certain or settled.

      Sohoni, that most celebrated authority on criminal procedure, says:

      “Witnesses who admit that they were cognisant of the crime, that they made no attempt to prevent it, that they did not disclose its commission, are not necessarily accomplices, but their evidence ought

     

 

to be treated with suspicion and only relied on to the same extent as that of accomplices”: 2 Sohoni, Code of Criminal Procedure 1805 (15th  ed., Malik and Sastry, 1961).

      Another Indian authority, 2 Raju, Evidence Act 1192 (1955), adopts the same principle, relying on a very recent Indian case of Har Nath v. The State (1952) A.l.R. (Ajmer) 49, from which he quotes as follows;

      “When a witness goes on watching the alleged offence from beginning to end without raising any hue and cry or giving help, to the prosecutrix though she was crying for help, the witness is nothing less than an accomplice in the matter and, as such, no reliance could be placed on his evidence unless fully corroborated otherwise”.

      But although there is a divergence of Opinion on the point in India, I think that the better opinion is contained in the Indian case of Hafijuddi v. Emperor (1934) A.I.R. (Calcutta) 678, 680, where it is said:

      “So far as the statutory provisions are concerned, there is nothing in law to justify the proposition that evidence of a witness who happens to be cognisant of a crime, or who made no attempt to prevent it, or who did not disclose its commission, should only be relied on to the same extent as that of an accomplice. The real question in such a case was the degree of credit to be attached to the testimony of such a witness; and that depends on all the facts and circumstances of the particular case. As it has been said, it may not be possible to place much reliance on the evidence coming from persons falling within the description given above, but they are not accomplices, and it leads to confusion of thought to treat them as ‘practically accomplices’ and then apply the rule as to their credibility, instead of judging their credibility by a careful consideration of all the particular facts of the case affecting the evidence….”

      Whether, therefore, we say that accused No. 2 was an accomplice or whether, accepting the theory of the court, he was not, then in any case I believe that his evidence ought to have been sufficiently corroborated. It is• sheer common sense that the rule dispensing with corroboration in certain cases cannot be allowed to prevail over the basic norm of criminal justice that the prosecution must prove a case beyond all reasonable doubt.

      But quite apart from the defective nature of the direct evidence in this case, I believe that even the circumstantial evidence leans strongly against the theory accepted by the court. I think that the injuries received by the deceased on his right shoulder suggest something more than a mere fall as believed by the court. If there was no fight, as accused No. 2 seems to suggest, in which the deceased was subjected to some really rough hustling, then those injuries will be hard to explain.

     

     

I believe that the investigator has committed a grave mistake in not subjecting all those arrested on the day of the information to medical examination. He was, in my view, also wrong in not making arrangements to discover whether some fingerprints could be traced on the axe that is alleged to have been used in the killing. A mere opinion on his part that the fingerprints might have been obliterated by rain is no excuse for not making an attempt. In situations like this, it is for the experts and not the investigating officer to make the decision as to the existence or otherwise of fingerprints.

      Lastly, I think that the policeman who was first informed of the existence of the corpse had failed in his duty when he went away to the police station to lodge the information. His primary duty was to stay with the corpse and try as much as possible to preserve the scene of the offence, particularly the tracks, from indiscriminate distortion.

      M. A. Abu Rannat C.J. October 12, 1964: —I agree with the note of Babiker Awadalla J. I read this carefully. I am satisfied that Salama Abdel Rahman is not a reliable witness, and the story given by him is difficult to believe. I cannot visualise a person who alleges to be a friend of the deceased, sees the deceased struck with a formidable weapon on his head, and yet goes to the wedding ceremony which was held in accused’s house, without telling anybody, and had the nerve to have dinner in the accused’s house. If Salama was really innocent the least he would have done was to raise hue, and cry as the wedding party was quite near from the place of the offence.

      Another point of importance is that the conviction of the accused must not be inconsistent with his innocence. On the facts as proved, I have at least some reasonable doubt that he committed the murder.

      I therefore refuse the confirmation of the finding and direct that he be set at liberty forthwith.