➥ CASE SUMMARY OF:
The State v. Muhammed Masiga (Tsolo) (2017) – SC
by Branham Chima (SAL).
Supreme Court – SC.291/2013
➥ JUDGEMENT DELIVERED ON:
Friday, the 15th day of December, 2017
➥ AREA(S) OF LAW
Conviction for a lesser offence.
➥ PRINCIPLES OF LAW
⦿ PENETRATION IS THE MOST IMPORTANT INGREDIENT OF RAPE
The essential and most important ingredient of the offence of rape is penetration and unless penetration is proved, the prosecution cannot be said to have proved its case beyond reasonable doubt. Penetration however slight is sufficient and it is not necessary to prove an injury or the rupture of the hymen to constitute the crime of rape. See: – EDET OKON IKO VS STATE (2001) 7 SCNJ 391. OKOYOMON VS STATE (1973) 1 SC 21, R VS ALLEN 9C & p 31. — S.D. Bage, JSC.
⦿ WHERE THERE IS RETRACTION OF CONFESSIONAL STATEMENT, COURT SHOULD CONVICT ONLY WHEN THERE IS CORROBORATION
Where a confessional statement is denied or retracted by an accused as in the instant case. it is desirable to have corroborative evidence no matter how slight before convicting on it. The Courts are enjoined as a matter of duty to test the veracity or otherwise of such statement by comparing it with other facts and circumstances outside the statement, to see whether they support, confirm or correspond with it. In other words, the Court must scrutinize the statement to test its truthfulness or otherwise in line with other available evidence. See: KAZEEM VS STATE (2009) All FWLR (Pt.465) page 1749; EDHIGERE VS STATE (1996) 8 NWLR (Pt.464) page 1; ONOCHIE & 7 ORS. VS THE REPUBLIC (1966) 1 SCNLR 204; and QUEEN VS ITULE (1961) 2 SCNLR 183. — S.D. Bage, JSC.
⦿ HEARSAY EVIDENCE WHEN WITNESS IS NOT THE MAKER
It is trite law that evidence of a witness who is not the maker of such statement is hearsay evidence and generally not admissible. See Sylvester Utteh v State (1992) 2 NWLR part 223-257, SUBRAMANIAN VS PUBLIC PROSECUTOR (1956) 1 WLR 965.
⦿ INTENTION TO ESCAPE FROM BRUTALITY
The Respondent admitted that he intended to escape when he was been beaten by the police. Investigation by the police does not include beating. Therefore if the respondent intended to escape from such brutality which constituted violation of his fundamental right, he committed no wrong. — P.A. Galinje, JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Sidi Dauda Bage, J.S.C.
⦿ FOR THE APPELLANT
⦿ FOR THE RESPONDENT
➥ CASE FACT/HISTORY
The brief facts of the case are that the Appellant on 16th day of March, 2010 at Yelleman Hausawa Village in Kaugama Local Government Area of Jigawa State was alleged to have had an unlawful sexual intercourse in an uncompleted building with one Amina Salihu a girl aged ten years who was an imbecile by luring her with sweets. The trial Court in its Judgment delivered on 13th March, 2012 found the respondent guilty and sentence him to a fine of #20,000.00 (Twenty Thousand Naira) only or 6 years imprisonment for the offence of rape and #10,000.00 (Ten Thousand Naira) only on the offence of attempt to escape from lawful custody or 3 years imprisonment. The Respondent having not been satisfied with the Judgment of the trial Court above, appealed to the Court of Appeal sitting in Kaduna. In its Judgment, the lower Court set aside the decision of the trial Court, discharged and acquitted the Respondent. This appeal is against that Judgment.
➥ ISSUE(S) & RESOLUTION(S)
I. Whether the Court below was right to have set aside the Judgment of the lower trial Court having regard to the fact that the Respondent was convicted based on his confessional statement?
RULING: IN RESPONDENT’S FAVOUR.
A. THE RESPONDENT CONFESSIONAL STATEMENT WAS RETRACTED BY HIM AND THERE WAS NOTHING ELSE TO CORROBORATE HIS CONVICTION
“Where a confessional statement is denied or retracted by an accused as in the instant case. it is desirable to have corroborative evidence no matter how slight before convicting on it. The Courts are enjoined as a matter of duty to test the veracity or otherwise of such statement by comparing it with other facts and circumstances outside the statement, to see whether they support, confirm or 10 correspond with it. In other words, the Court must scrutinize the statement to test its truthfulness or otherwise in line with other available evidence. See: KAZEEM VS STATE (2009) All FWLR (Pt.465) page 1749; EDHIGERE VS STATE (1996) 8 NWLR (Pt.464) page 1; ONOCHIE & 7 ORS. VS THE REPUBLIC (1966) 1 SCNLR 204; and QUEEN VS ITULE (1961) 2 SCNLR 183 … From the foregoing, the trial Court before convicting the Respondent ought to have looked around other evidence by the prosecution to corroborate the retracted confessional statement … In the case at hand, there is nothing outside the alleged statement to corroborate the confessional statement. I hold that the learned trial Judge erred in law when he convicted Respondent based on the retracted confessional statement without any corroboration.”
B. PENETRATION WAS NOT PROVED BY THE PROSECUTION
“I have mentioned earlier that the essential and most important ingredient of the offence of rape is penetration and unless penetration is proved the prosecution must fail. PW.3 one Abdullahi Uba Anyo, a Medical Officer in charge of Nuhu Alfa Primary Health centre Dakayyawa who examined the girl alleged to have been raped testified at pages 9 – 10 of the record as follows: “I can recall that on the 17/3/2010 a policeman from Dakayyawa outpost brought one Amina Salihu who was suspected to have been raped by someone. I then asked the police to buy a surgical glove and when they bought it. I perform the examination, from my finding there was no bleeding from the vagina, no bruises but there was ordourful 12 discharge. I then wrote some drugs for her which was purchased by her relation. I later wrote a medical report to the DPO Kaugama. However, the cause of ordourful discharge was because of the personal hygiene of the girl who happened to be un-lucid and that could be the cause of her bad ordour. Also there was no infection. The private part of the girl was normal.” From the testimony above, the prosecution cannot be said to have proved penetration. PW.3 claimed that the private part of the girl was normal. There is no way a penetrated vagina will still remain normal.”
C. THE RESPONDENT DID NOT ADMIT PENETRATION VIA HIS RETRACTED CONFESSIONAL STATEMENT
“In support of its case, the prosecution at the trial Court tendered the extra-judicial statement of the Respondent which was admitted and marked Exhibit A. Part of this 36 exhibit reads thus: “On Tuesday 16/3/2010 at about 12.00 hrs I took one girl whose name is Amina Sale Ringim. She is ten years old and she is imbecile. I took her to the house that I used to guard and the house belongs to one Sarkin Hakimi Dakayyawa. I had a sexual intercourse with her by force. I force my penis into her vagina but did not pass in fully because the entrance is closed.” The Respondent’s statement that he was unable to penetrate Amina Sale Ringim’s vagina, because it was closed is consistent with the medical report, Exhibit 1A, which states that there was no bleeding and/or bruises in the vagina of the prosecution and that her private part was normal.”
II. Whether the lower Court was right in setting aside the conviction of respondent for the offence under Section 95 of the Penal Code which he was not charged?
RULING: IN RESPONDENT’S FAVOUR.
A. THE LESSER OFFENCE CHARGED IS NOT SUPPORTED BY THE FACTS OF THE BIGGER OFFENCE CHARGED
“I agree with the lower Court in its judgment at page 157 of the record. When it held that: ‘It is very clear that the lower Court misconceived the proper application of Section 217 of the Criminal Procedure Code. The position of the law is that in order to invoke the provision of Section 217 of the Criminal Procedure Code to convict for an offence not charged, the facts proved in establishing the offence charged must also have disclosed other offences which include the offence not charged and that an accused can be convicted, on the same facts proved. It is trite that before a Court can invoke the provisions of Section 217 of the 20 Criminal Procedure Code to substitute a conviction there should have been doubt as to which of the several offences the facts constitute or disclose. In the instant case neither the ingredients of the offence of rape nor that of abduction can be used to prove the offence of attempt to escape from lawful custody under Section 95 of the Penal Code. The facts of the offence of attempt to escape from lawful custody are new facts and the offence was not based upon a different legal interpretation of the law on rape or abduction. which he was previously charged.’”
“From the totality of the evidence adduced at the trial Court, there is nothing to show that the Respondent had sexual intercourse with the victim in this case. The prosecution has failed to prove the most important ingredient of offence of rape … Having resolved the two issues against the Appellant, this appeal lacks merit and it is hereby dismissed. The judgment of the lower Court setting aside the conviction by trial Court is affirmed by me. Appeal dismissed.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
⦿ BEFORE CONVICTING ON UNCORROBORATED EVIDENCE, THE JUDGE MUST WARN HIMSELF FIRST
In HABIBU MUSA VS THE STATE (2013) 8 NCC 464 this Court held that: “Generally, it is not a rule of law that an accused person in a charge of rape cannot be convicted on the uncorroborated evidence of the prosecution. It has however been clearly established in the rule of practice that the proper direction is that not being safe, the Court is expected to warn itself. After the due warning and the Court is satisfied with the truth of evidence of the prosecution the accused can be convicted without looking for any other corroboration.”
➥ REFERENCED (OTHERS)