MUHAMMAD v. STATE (2022)

MUHAMMAD v. STATE

(2022)LCN/17150(CA)

In The Court Of Appeal

(JOS JUDICIAL DIVISION)

On Friday, March 11, 2022

CA/J/144/C/2021

Before Our Lordships:

James Shehu Abiriyi Justice of the Court of Appeal

Mudashiru Nasiru Oniyangi Justice of the Court of Appeal

Olasumbo Olanrewaju Goodluck Justice of the Court of Appeal

Between

ALIYU MUHAMMAD (WARA WARA) APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

THE BURDEN AND STANDARD OF PROOF IN CRIMINAL CASES

The law both ancient and modern is that in a criminal trial the burden of proof is on the prosecution to prove the guilt of an accused person beyond reasonable doubt. The burden never shifts. Even where an accused in his statement to the police admitted committing the offence the prosecution is not relieved of the burden. If an accused person gives an account which is consistent with his innocence and could be true and is not proved to be untrue he is entitled to an acquittal. This is because in such circumstances there must be a doubt with regard to his guilt.

Proof beyond reasonable doubt means that it is not enough to suspect a person of having committed a criminal offence. It means that there must be evidence which identifies the person accused with the offence and that it was his act which caused the offence. See the decisions of the Supreme Court in Igabele v State (2006) NWLR (Pt. 975) 100, Aigbadion v State (2000) 4 SC 1 (Pt. 1)1 and the decision of this Court in Okafor v State (2006)4 NWLR (Pt.969)1. PER ABIRIYI, J.C.A.

INGREDIENTS TO SECURE THE CONVICTION OF AN ACCUSED PERSON FOR CULPABLE HOMICIDE PUNISHABLE WITH DEATH

By virtue of Section 221 of the Penal Code to secure a conviction of an accused person for Culpable Homicide punishable with death, the prosecution must prove the following:
(a) That the death of a human being took place.
(b) That such death was caused by the accused person.
(c) That the act of the accused person that caused the death was done with intention of causing death; or that the accused person knew that death would be the probable consequence of his act. All these ingredients must be proved before a conviction will be secured. See Adava v The State (2006) 9 NWLR (pt. 984) 152 and Isah v The State (2017) LPELR 43472. PER ABIRIYI, J.C.A.

JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment delivered on 17th July, 2018 in the High Court of Bauchi State holden at Bauchi. In the High Court (the Court below), the Appellant was convicted for the offence of culpable homicide contrary to Section 221 of the Penal Code. He was sentenced to a prison term of twenty-five (25) years.

The facts of the case as can be made out from the evidence of the witnesses called by the Respondent include the following salient ones. According to the PW1 he was standing with his brother at about 8:30pm when the Appellant and one other person approached and the Appellant asked them a couple of questions and then stabbed PW1’s brother with a knife on the chest. The PW1 went to the Special Anti-Robbery Squad and reported the incident. When members of the Special Anti-Robbery Squad went to the scene they were told that the victim had been taken to the hospital. The PW1 went home to report before proceeding to the hospital. Then he was told that the victim of the stabbing had died.

In his defence, the Appellant said that some people came to borrow his motorcycle.

He told them it was night. He was going home. One of them brought out a knife and chased the Appellant. The Appellant took to his heels and started shouting for help. People gathered and asked him what was happening. He told them that somebody wanted to snatch his motorcycle.

The following day while he was discussing with some people, those who approached him the previous night came again and said they were going to snatch the motorcycle. They brought out three knives. One cut him on his arm. He used his motorcycle lock to hit one of the attackers.

According to the Appellant the weapons tendered in Court were not recovered from him.

On 13th July, 2021 the Appellant applied for and was granted extension within which to appeal against his conviction and sentence by the Court below. Upon the grant of the application, the Appellant on 22nd July, 2021 filed a notice of appeal containing two grounds of appeal. From the two grounds of appeal, the Appellant in an Appellant’s brief filed on 15th September, 2021 presented the following lone issue for determination:
Whether the prosecution had proved the essential ingredients of the offence of culpable homicide against the Appellant? (Grounds 1 and 2).

The Respondent formulated a similar issue thus:
Whether the prosecution has proved the offence of culpable homicide beyond reasonable doubt against the appellant to warrant his conviction. (Distilled from Grounds 1 and 2).

Arguing the appeal learned counsel for the Appellant contended that the Respondent did not satisfy the requirements of the law as regards the ingredients of the offence charged. The Court below was therefore wrong in holding that it did. It was contended that the entire case of the Respondent revolved around the mere proof that the Appellant stabbed the deceased. This fact simpliciter did not establish the key ingredients of the offence charged, it was argued. The Court was referred to the vital ingredients of culpable homicide which are: (i) the death of a human being; (ii) the act of the accused which caused the death; and (iii) the accused knew that death would be probable but not just a likely consequence of his act. The Court was referred to Dahiru v The State (2018)14 NWLR (Pt.1640) 567 at 577.

It was submitted that these ingredients must be proved beyond reasonable doubt by the prosecution. Failure to prove these elements conjunctively entails that the charge fails, it was submitted. The Court was referred to Adamu v State (2019) LPELR-46902 (SC), Oforlete v. State (2000) 1 LPELR-2270 (SC) and Jimoh v State (2014) 3 MJSC 1 at 38.

The prosecution, it was submitted, has a duty to prove that the specific act of the Appellant which caused the death of the deceased was the stabbing of the deceased. This is an ingredient of the offence to be proved beyond reasonable doubt, it was submitted. This cannot be presumed as the Court below did, it was argued. That merely because the Appellant allegedly stabbed the deceased and he died of injuries sustained thereof did not establish his guilt. None of the five witnesses called by the Respondent gave such evidence, it was contended. The Court was referred to State v Ogbubunjo & Anor (2001) LPELR -3223 (SC) 12.

Evidence of PW1, it was contended, only proved the stabbing and did not prove that the deceased died from the effect of the injuries sustained from the stab wounds. That there was no medical evidence certifying the death of the deceased as resulting from the stabbing. Also that no evidence was led as to the cause of the death of the deceased. It was submitted that the failure to prove that the stab wound resulted in the death of the deceased entails that a key ingredient of the offence which is that an act of the Appellant resulted in the death of the deceased – had not been established beyond reasonable doubt.

On his own part learned counsel for the Respondent submitted that in a criminal trial the prosecution is required to prove its case beyond reasonable doubt and proof beyond reasonable doubt does not mean proof beyond all shadow of doubt. That it simply means establishing the guilt of the accused person with compelling and conclusive evidence. That is a degree of compulsion which is consistent with a high degree of probability. The Court was referred to Smart v State (2014) 9 NWLR (Pt.1518) 447 and Agbo v The State (2006) 6 NWLR (Pt.977) 545.

It was submitted that in a charge of culpable homicide under Section 221 of the Penal Code as in the instant case, the prosecution is required to prove the following:
a) That the person the accused is charged of killing actually died.
b) That the deceased died as a result of the act of the accused person.
c) That the act of the accused person was intentional and he knew that death or bodily harm was the probable consequence. The Court was referred to Haruna v A.G. Federation (2012) NWLR (Pt.1306) 416 and Nkebisi v State (2010) ALL FWLR (Pt.529) 1410.

The Appellant, it was contended, had confirmed in his confessional statement Exhibit ‘A’ that the deceased died.

It was argued that it was the act of the Appellant that caused the death of the deceased as shown by the evidence of five witnesses called by the Respondent and Exhibits A-D1.

It was contended that by using a knife to stab the deceased on the chest, the Appellant knew that death would be the probable consequence of his act. It was submitted that a man is presumed to intend the natural consequences of his acts and the test to be applied is that of a reasonable man. The Court was referred to Gamba v The State (2000) FWLR (Pt.24) 1449.

It was contended that the need for medical evidence to ascertain the cause of death was not necessary taking into account the circumstances of the death of the deceased. It was clear, it was further argued, that it was the act of the Appellant that caused the death of the deceased. The Court was referred to Azu v State (1993)6 NWLR (Pt.299) 303. Evidence of PW1, it was argued, corroborated the confessional statements of the Appellant Exhibits ‘A’ and ‘B’.

It was contended that the defence of self-defence was not available to the Appellant because, the PW1 said that, the Appellant was the aggressor and there is no evidence to show that the deceased was in possession of anything during the incident.

The law both ancient and modern is that in a criminal trial the burden of proof is on the prosecution to prove the guilt of an accused person beyond reasonable doubt. The burden never shifts. Even where an accused in his statement to the police admitted committing the offence the prosecution is not relieved of the burden. If an accused person gives an account which is consistent with his innocence and could be true and is not proved to be untrue he is entitled to an acquittal. This is because in such circumstances there must be a doubt with regard to his guilt.

Proof beyond reasonable doubt means that it is not enough to suspect a person of having committed a criminal offence. It means that there must be evidence which identifies the person accused with the offence and that it was his act which caused the offence. See the decisions of the Supreme Court in Igabele v State (2006) NWLR (Pt. 975) 100, Aigbadion v State (2000) 4 SC 1 (Pt. 1)1 and the decision of this Court in Okafor v State (2006)4 NWLR (Pt.969)1.

By virtue of Section 221 of the Penal Code to secure a conviction of an accused person for Culpable Homicide punishable with death, the prosecution must prove the following:
(a) That the death of a human being took place.
(b) That such death was caused by the accused person.
(c) That the act of the accused person that caused the death was done with intention of causing death; or that the accused person knew that death would be the probable consequence of his act. All these ingredients must be proved before a conviction will be secured. See Adava v The State (2006) 9 NWLR (pt. 984) 152 and Isah v The State (2017) LPELR 43472.

A successful plea of defence of self-defence negatives the existence of an offence. This means that if a person kills another person in defence of any person from unlawful violence or in defence of property, it is excused and it does not amount to manslaughter or culpable homicide not punishable with death. See Section 33(a) of the 1999 Constitution (as amended) andAminu v State (2019) 7 NWLR (Pt.1672) 481. In the instant case, the Appellant at the earliest opportunity in his statement to the police Exhibit ‘B’ stated that the deceased with others tried to snatch his motorcycle the previous night. In the process they tried to stab him with a cutlass but he managed to escape. He shouted and people came to his help.

The following day while riding the motorcycle the same people threw a bench on the road in front of him. He ran into the bench. He fell. The people came and stabbed him with a cutlass and knife. That it was his friend Dauda Mahamood who stabbed the deceased in defence of the Appellant.

That some policemen came. They took him (Appellant) to the police station. Thereafter the policemen took him to the (ATBUTH) hospital in Bauchi for treatment as a result of the injuries he sustained on his head and hand.

His friend who helped him ran away after the incident. About six years after the Appellant made the above statement, he maintained in Court in his defence that the deceased and others assailed him two consecutive evenings. It was on the second evening that he was struck on the arm with a knife.

On the above evidence, the Court below sought to consider if the defence of self-defence was available to the Appellant and rightly so. But the Court below in my view did not consider the whole evidence available to the Appellant in that respect. Apart from the case of the Appellant that his assailants threw a bench on the road as he approached on the motorcycle leading to him running into it and falling down, the Appellant stated that he was attacked with cutlass and knife by the deceased and the other assailants.

If the Court below had considered fully the defence of the Appellant particularly his first statement to the police, it probably would not have come to the following conclusion:
“The action of the accused person in stabbing the deceased with a knife on his chest cannot be described as commensurate to the injuries inflicted on him by throwing a bench in front of his motorcycle.”

It is the law that once there are reasonable grounds for an accused person to believe he was in danger the amount of force used by him to preserve his life becomes immaterial. It is not the law that a person threatened must take to his heels and run like Usain Bolt. All the accused person needs to show is that he did not want to engage in the fight and apprehension of possible death or great violence to his person. If the Court is left in doubt as to whether the accused person was acting in self-defence, he should be acquitted. See Aminu v State (supra) page 493.

The defence of self-defence will only fail if the prosecution shows beyond reasonable doubt that what the accused did was not done by way of self-defence. See Apugo v State (2006)16 NWLR (Pt.1002) 227.

PW1 who apparently was an eye witness in his evidence said that the Appellant had a knife and the other person had a cutlass. But the Respondent tendered a cutlass and two knives. There is no evidence how it came about these weapons.

On the other hand, the Appellant in his statement to police Exhibit ‘B’ named those who attacked him and inflicted the injury on him. No attempt was made by the prosecution to investigate this. The Appellant in the same statement said he was taken by police to the hospital for the treatment of the injury he sustained. This was not denied by the police. Evidence of Appellant in my view is more credible. No attempt was made to rebut it or show that it was not true.

As pointed out earlier, the Appellant showed a scar in Court of the injury inflicted on him by the people who attacked him among them the deceased.

For the Appellant to be attacked two consecutive nights with cutlass and knives particularly when on the second day he was forcefully brought down while riding his motorcycle before being confronted with those weapons and striking him on the arm, the Appellant had reasonable ground for believing that he was in danger. It did not therefore matter that the deceased was struck on the chest with a knife, according to the Appellant by his friend in defence of the Appellant.

The prosecution led no scintilla evidence to show that what the Appellant did even if he was the person that struck the deceased was not done in self-defence. The Appellant was therefore entitled to an acquittal.

The only issue for determination is resolved in favour of the Appellant and against the Respondent. The appeal is allowed.

The conviction and sentence of the Appellant by the Court below are hereby quashed.
The Appellant is acquitted and discharged.

MUDASHIRU NASIRU ONIYANGI, J.C.A.: I read before now, the judgment just delivered by my learned brother JAMES SHEHU ABIRIYI, JCA (PJCA).

I agree with the reasoning and conclusion reached thereat that the appeal is meritorious and should be allowed.

I also allow the appeal and abide by the orders made therein.

OLASUMBO OLANREWAJU GOODLUCK, J.C.A.: Having read in advance of the lead judgment delivered by James Shehu Abiriyi, JCA, I am fully in agreement with his erudite judgment which has taken into consideration the crucial facts and circumstances surrounding this case.

These pertinent facts were overlooked by the trial Judge who wrongly convicted the Appellant for the offence of culpable homicide contrary to Section 221 of the Penal Code.

I am not left in doubt that the Appellant ought to have been availed of the defence of self defence in the light of the uncontroverted and credible evidence elicited by the Appellant based on the evidence of the injury sustained by him as well as his statement, Exhibit B wherein he gave an account of how he was attacked and the inflicted injury upon him. The defence of self defence is open only to an accused who is able to prove that he was a victim of an unprovoked assault causing him reasonable apprehension of death or grievous harm. He is entitled to use force to defend himself as he believes on reasonable grounds to be necessary to protect himself from danger, and he is entitled to so even though such force may cause death or grievous harm. See R v. Dummeni (1955) 13 WACA 75 see also Ilu vs. State 2014 LPELR-24610 CA.

Appellant had reasonable apprehension of danger. He was waylaid whist on his motorcycle when a bench was thrown on the road, this led to his falling off the motorcycle followed by being attacked with cutlass and knife by the assailants, the deceased inclusive.

The following day he was dragged down from the same motorcycle and threatened by the use of weapons, these incidents to my mind portends of danger, the fact that he struck the deceased on the chest in self defence cannot be ruled out.

It is for the foregoing reasons and the fuller decision of his lordship that I am inclined to associate myself with the lead judgment. Accordingly, the judgment of the lower Court is dismissed and the conviction of the Appellant is set aside.