THE STATE v. MUHAMMED MASIGA (TSOLO)(2017)

THE STATE v. MUHAMMED MASIGA (TSOLO)

In The Supreme Court of Nigeria

On Friday, the 15th day of December, 2017

SC.291/2013

RATIO

POSITION OF THE LAW ON THE ESSENTIAL AND MOST IMPORTANT INGREDIENT OF THE OFFENCE 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. JOS N. A. POLICE VS ALLAH MAGANI (1968) NMLR 8. IGBINE VS STATE (1997) 9 NWLR (pt.519) 101. In OKOYOMON VS STATE (Supra), this Court held: “We are of the view that the prosecution had not established that the accused did have unlawful carnal knowledge of the prosecutrix in the sense that there had been penetration as required by Section 300 of the Criminal Code. It was not enough that the prosecutrix alleged the insertion of the accused’s Penis in to her Vagina or that he lay on her. PER SIDI DAUDA BAGE, J.S.C.

POSITION OF THE LAW ON HEARSAY EVIDENCE

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. PER SIDI DAUDA BAGE, J.S.C.

EFFECT OF THE RETRACTION OF A CONFESSIONAL STATEMENT BY AN ACCUSED PERSON IN HIS ORAL TESTIMONY IN COURT DURING TRIAL

In CHIOKWE VS STATE (2013) 8 NCC 185, this Court per Ariwoola, JSC stated that: “It has also been established that the retraction of the confessional statement by an accused person in his oral testimony in Court during trial is of no moment. The most important thing is that the Court must be satisfied as to the truth of the confession, and can therefore rely on it alone to ground conviction. However, it is also settled that it is desirable that the Court should, outside the confessional statement look for some corroborative evidence, no matter how slight. 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. PER SIDI DAUDA BAGE, J.S.C.

WHETHER AN ACCUSED PERSON CAN BE CONVICTED FOR THE OFFENCS OF RAPE IN THE ABSENCE OF ANY UNCORROBORATIVE EVIDENCE OF THE PROSECUTION

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. PER SIDI DAUDA BAGE, J.S.C.

IMPORTANCE OF THE PROOF OF PENETRATION IN A CHARGE OF RAPE

I have stated earlier that there is no doubt that in charge of rape penetration must be proved. See HABIBU MUSA VS THE STATE (Supra). On what prosecution must prove in charge of rape, this Court in JEGEDE VS THE STATE (2001) 14 WNLR part 733 held that. “Whether the prosectrix is a minor or an adult, to secure a conviction for rape, there must first be proof of penetration of the vagina and the penetration must be linked with the accused. PER SIDI DAUDA BAGE, J.S.C.

INTERPRETATION OF SECTION 217 OF THE CRIMINAL PROCEDURE CODE AS REGARDS THE CONDITIONS THAT MUST BE SATISFIED BEFORE AN ACCUSED CAN BE CONVICTED FOR AN OFFENCE NOT CHARGED

Although under Section 217 of the Criminal Procedure Code, a person charged with one offence may be convicted of another offence which he is shown to have committed even though he was not charged with it, the Court has to be satisfied that it had been doubtful which of several different offences the facts which could be proved would constitute or such doubt applied only to the law and to the facts, that is to say the facts charged must have given the accused person notice of the offence with which he is to be convicted. See EKECHUKWU VS COP 1966 NNLR 96.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 Criminal Procedure Code to substitute a conviction there should have been doubt as to which of the several offences the facts constitute or disclose. PER SIDI DAUDA BAGE, J.S.C.

WHETHER A COURT CAN FISH FOR AN ALTERNATIVE VERDICT WHERE THE PROSECUTION FAILED TO PROVE THE COMMISSION OF THE OFFENCE CHARGED

It is instructive to consider that where the prosecution has failed to prove the commission of the offence charged, the trial Court cannot fish for an alternative verdict. See: OYEDIRAN VS REPUBLIC (1967) NWLR 122, ARUWA VS THE STATE 6 NWLR (Pt.155). PER SIDI DAUDA BAGE, J.S.C.

JUSTICES

OLUKAYODE ARIWOOLA Justice of The Supreme Court of Nigeria

JOHN INYANG OKORO Justice of The Supreme Court of Nigeria

EJEMBI EKO Justice of The Supreme Court of Nigeria

PAUL ADAMU GALINJE Justice of The Supreme Court of Nigeria

SIDI DAUDA BAGE Justice of The Supreme Court of Nigeria

Between

THE STATE Appellant(s)

AND

MUHAMMED MASIGA (TSOLO) Respondent(s)

SIDI DAUDA BAGE, J.S.C. (Delivering the Leading Judgment): This is an appeal against the Judgment of the Court of Appeal, Kaduna Division in criminal appeal no CA/K/160/C/2012 delivered on the 20th December, 2012 by which said Judgment, the Court set aside the conviction and sentence passed on the Respondent by the High Court of Jigawa State sitting in Hadejia.

SUMMARY OF FACTS
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. In accordance with the Rules of this Court, briefs were filed and exchanged by parties. The Appellant’s brief was settled by one Yakubu A. H. Ruba. Esq., and filed on the 14th August, 2013.

The Respondent brief of argument was however settled by one Mustapha Bulama Esq., and filed on the 2nd October, 2013.
For the determination of this appeal, Learned Counsel for the Appellant formulated 3 issues and urged the Court to allow the appeal.
“1. 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 (Grounds I and II).
2. Whether the lower Court was right to have held that the retracted confessional statement of accused/respondent did not pass the test that could have elevated it to a confessional statement.
3. Whether the lower Court was right to have held that the lower trial Court neither considered the defence put forward

by the accused or evaluate the evidence of the prosecution.”

On the other hand, Learned Counsel for the Respondent formulated 2 issues for determination and urged the Court to dismiss the appeal.
1. Whether the learned Justices of the Court below were wrong when they allowed the appeal before them on the ground that the totality of the evidence adduced by the prosecution before the trial Court fell short of discharging the burden of Proof required by the law in Criminal proceedings. Grounds 2,3,4,5 and 7.
2. Whether the learned Justices of the Court below were right when they held that the failure of the trial Court in not properly assessing and evaluating the evidence relating to the defence put forward by the Respondent led to a wrong conclusion that the Respondent was guilty of the offence charged. Grounds 1 and 6.”

After examining the issues formulated by Counsel, I have reframed issues for determination as follows:
“1. Whether the learned Justices of the Court below were right when they allowed the appeal before them on the ground that the totality of the evidence adduced by the prosecution before the trial Court fell

short of discharging the burden of proof required by the law in Criminal proceedings.
2. 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 with.”

Learned Counsel for the Appellant submitted that the answer to the foregoing should be in the negative. He observed that the statement of the Respondent to the police which is tendered as Exhibit 1B before the lower trial Court is crystal clear. Learned counsel argued that once an accused person made a statement admitting the allegation made against him or creating the impression that he committed the offence with which he is charged, then that statement or impression becomes confessional. He relied on ALARAPE VS THE STATE (2001) FWLR (Pt.41) 1872 SC, EGBOGHONOME VS THE STATE (1993) 7 NWLR (Pt.306) 383 SC.

Learned counsel argued that the learned justices of the lower Court were in great error as to their quotation of Exhibit 1A and a fortiori in the meaning of their English translation of the Hausa statement.

Counsel submitted that the lower Court clearly misdirected itself when it held

that-
“In the instant case the lower Court neither considered the defence forward by the accused person nor evaluate the evidence vis-a-vis that of the accused before arriving at its conclusion that all the ingredient of the offence of rape under Section 282 of the Penal Code had been proved.”

He submitted that it is not the duty of the accused to prove his innocence but that of the prosecution to prove his guilt beyond reasonable doubt. An admission by the accused person in a confessional statement ends the need for the prosecution to prove his guilt, as stated in USUNG VS THE STATE (2009) 3 FWLR (Pt.483) CH.6359 at P 6401 B. D.

He further argued that, the prosecution is not bound to call every witness to testify, all that it requires are the testimonies of witnesses who are necessary to prove its case beyond reasonable doubt, he stated that the prosecution called a total of 4 witnesses but failed to call the victim, who is an imbecile as a witness.

He further submitted that, the Court can still convict on the confessional statement alone even though the accused resiles from it.

Learned Counsel for the Respondent argued that for

the prosecution to secure conviction for an offence of rape under Section 283 of the Jigawa State of Nigeria Penal Code, the evidence adduced inclusive of the statement of the accused both extra-judicial evidence in chief must establish the necessary ingredients of the offence charged. He relied on EZIGBO VS THE STATE (2012) 6 SCNJ (Pt.1) 61 at 67. Learned counsel argued that for the success of the charge, the prosecution must not only lead evidence to establish the requirements or ingredients as stipulated by the law under the Penal Code but also prove by evidence that the offence was committed by the accused beyond reasonable doubt. He cited EBEINWE VS THE STATE (2011) 1 SCNJ 90 at 101.

Learned Counsel argued that the argument presented by the Appellant may be acceptable only where accused did not retract his statement. But where he did so, the Courts are enjoined in the spirit of fair trial to look into the entire evidence outside the alleged confessional statement to corroborate the accusation so made. Learned Counsel claimed that the evidence of all the witnesses who testified in the matter did not in any way support the extra judicial statement of the Respondent.

He further submitted that, there was no evidence of the slightest penetration given by the medical officer who examined the alleged victim a day after the alleged incident occurred and, there was no complaint of any pain around her genital area.

He argued that the lower Court has rightly found that, to succeed in sexual intercourse cases, the prosecution must establish the fact that there were penetrations. This is lacking in the present case, the medical report did not say her hymen was perforated as a result of alleged act of the Respondent.
He finally urged the Court to dismiss this appeal as the prosecution did not prove its case beyond reasonable doubt as required by law.

JOS N. A. POLICE VS ALLAH MAGANI (1968) NMLR 8. IGBINE VS STATE (1997) 9 NWLR (pt.519) 101.
In OKOYOMON VS STATE (Supra), this Court held:
“We are of the view that the prosecution had not established that the accused did have unlawful carnal knowledge of the prosecutrix in the sense that there had been penetration as required by Section 300 of the Criminal Code. It was not enough that the prosecutrix alleged the insertion of the accused’s Penis in to her Vagina or that he lay on her.”

In the instant case, the Respondent at pages 64 – 69 of the record confessed to have committed the offence in his extra – judicial statement at the police station.
“I, Muhammadu Muhammadu alias Masiga voluntarily state as follows. I was born and brought up in Dakayyawa Village in Kaugama Local Government Area. I did not attend school of education but only have Qur’anic knowledge. I am not married yet. I am a real Kanuri by tribe. I am the first son in our family out of eight persons. I don’t have any occupation apart from trading of fork. On Tuesday 16/03/2010 at about 12.00 hrs I took one girl whose name is Amina Sale Ringim she is ten years old, and she is

an imbecile. I took her to the House that I use to guide, the House belong to one Sarkin Hakimi Dakayyawa, I, had sexual intercourse with her by force, (Emphasis mine) I forced my penis into her vagina, but did not passed inside because the entrance is closed, by that time I gave her one sweet. She did not raise an alarm, before I had a sexual intercourse with her. I have to removed her pant, after I have finish with her, (emphasis mine) I locked her inside the House. I thought she has gone out. I am not denying the offence, this is the first that I have involved myself in such offence, I am pleading for leniency, it was temptation that led me to do so. I made this confessional statement not under duress. This is the first time I was brought before police on criminal offences. That is all about my statement.

However, the Respondent in his evidence before the trial Court at pages 15 – 16 of the record of appeal retracted the confessional statement.

The Respondent testimony at the trial Court is as follows:
“At the CID I denied committing the offence. But one Police Officer wrote something which he did not read over to me but put an ink on

my finger and thumb printed on the paper.
I was not given any house to look after but there is one house close to my room owned by Alhaji Sarki Hakimi and whenever he comes and if there was a job, I used to be given the job otherwise he gives me something when he is going. Alhaji Sarki Hakim does not leave the keys of the house with me. It was one Mallam Naibi that keeps keys.
Mallam Naibi does not live the keys with me but whenever there is any job to do in house, we use to collect the keys from his house.
Yes I know Amina Salihu, she lives in our area and there is no any relationship between us. I was the only youth in that area and I was not the one that raped the victim.
I had never had the opportunity of holding the keys of that house.”

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.

In considering whether a confession was true, this Court; in the case of OGUDO VS STATE (2011) 8 NWLR (P1.1278) page 1 at 26, reiterated the test to be applied, per Rhodes-Vivour JSC, thus:
“A Court can convict on the retracted confessional statement of an accused person but before this is properly done the trial judge should evaluate the confession and testimony of the accused person, which is different from his retracted confession and then ask himself the following questions:
(a) Is there anything outside the confession to show that it is true
(b) Is it corroborated
(c) Are the relevant statements made in it of facts true as far as they can be tested
(d) Did the accused person have the opportunity of committing the offence charged
(e) Is the confession

possible
(f) Is the confession consistent with other facts which have been ascertained and have been proved See KANU & ANOR VS KING (1952) 14 WACA 30, MBENU VS STATE (1988) 3 NWLR (Pt.84) page 615, STEPHEN VS STATE (1986) 5 NWLR (Pt.46) page 978.”

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.

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

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.

Looking at the other evidence, Pw.1 testified at page 19 of the record that, he was in Hadejia when his uncle called him on phone and requested him to come back home, and when he enquired as to why his attention was needed; his uncle told him that, Amina an imbecile daughter of his senior brother was found locked in the house where the accused person watch over as security man.

PW.2 testified at page 20 of the record and stated that, one of his colleagues came and informed him that the accused person had locked one girl in a house. He said he reported the matter to his superior

officer. He stated further that, together with the father of the girl, and a police officer they went to the uncompleted building, and found the girl therein locked up.

PW.4 is a police officer who narrated at pages 22-24 of the record how the Respondent was arrested and how they took the extra judicial statement of the Respondent.
The entire testimony of the prosecution witnesses Pw.1, Pw.2 and PW4 are essentially hearsay evidence.

I am satisfied that based on the reason stated above, the retracted statement of the Respondent did not pass the test that could have elevated it to confessional statement as opined by Rhodes-Vivour, JSC in OGUDO VS STATE (Supra). In CHIOKWE VS STATE (2013) 8 NCC 185, this Court per Ariwoola, JSC stated that:
“It has also been established that the retraction of the confessional statement by an accused person in his oral testimony in Court during trial is of no moment. The most

important thing is that the Court must be satisfied as to the truth of the confession, and can therefore rely on it alone to ground conviction.
However, it is also settled that it is desirable that the Court should, outside the confessional statement look for some corroborative evidence, no matter how slight.”
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.

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.”

In the present case, had the trial Judge

warned himself, he would not have convicted the Respondent.

The medical doctor PW.3 who examined the girl did not say that the girl was raped. The report he prepared after examining her which was admitted in evidence as Exhibit 1 said her vagina was normal and did not say that she was raped.

The contradictions in the evidence of the prosecution witnesses PW.3 and PW.4 was never resolved by the lower Court in its judgment.
PW.2 testified at the lower Court that it was one of his colleagues that told him that the Appellant had locked a girl in a house and that he made a report to the Police.
That colleague of PW.2 who is a vital witness was never called by the prosecution to testify.

PW.1 also in his testimony at page 6 of the record of appeal said that when the Appellant entered into the house with the girl, some free women that were living nearby saw him together with the girl. Those free women were also not invited to testify by the prosecution.

PW.4 said that the scene of the crime was an uncompleted building and that he recorded the statement of the owner. The said owner of the uncompleted building who is also a vital witness

was never invited by the prosecution to testify nor was his statement tendered in evidence.
I have stated earlier that there is no doubt that in charge of rape penetration must be proved. See HABIBU MUSA VS THE STATE (Supra).
On what prosecution must prove in charge of rape, this Court in JEGEDE VS THE STATE (2001) 14 WNLR part 733 held that.
“Whether the prosectrix is a minor or an adult, to secure a conviction for rape, there must first be proof of penetration of the vagina and the penetration must be linked with the accused.”

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.

The rape is only committed in circumstances set out above with clear evidence of penetration and who was responsible for it. In this case, the Respondent was convicted based on the retracted extra judicial statement which was not corroborated. The lower Court set aside the conviction of the Respondent by the trial Court because there was insufficient evidence to

justify it.
The ingredients of the offence has not been proved. This issue is resolved in favour of the Respondent.

ISSUE 2
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.”

Learned trial Judge in his judgment at page 46 stated that:
It is trite law that where a defence raised or even if not raised but considered by the Court and the same does not absolve the accused from criminal responsibility like in the instant case, then the Court has no option other than to return a verdict of guilt against the accused person for the offences charged. It is on this premise that, the accused person is found guilty for the offence, Attempt to escape from lawful custody under Section 95 of the Penal Code and punishable thereunder and the offence of Rape punishable under Section 283 of the Penal Code Law of Jigawa State 1998 and convict him accordingly.”

For easy reference, I shall reproduce the charge sheet in this which is at first page of the record as follows:-
FIRST HEAD OF THE CHARGE
That you Muhammadu

Masiga alias Tsolo ‘m’ of Yelleman Hausawa Kaugama Local Government Area, on or about the 16th day of March, 2010 at Yelleman, within the Jigawa Judicial Division induced one Amina Salihu aged 10 years with sweet called Alewa, and moved her into an uncompleted building, then locked her up and you committed and offence of Abduction contrary to Section 272 of the Penal Code Law CAP 107 Laws of Jigawa State, 1998 and punishable under Section 273 of the same law.”
SECOND HEAD OF THE CHARGE
“That you, Muhammadu Masiga alias Tsolo ‘m’ of Yelleman Hausawa Kaugama Local Government Area, on or about the 16th day of March, 2010 at Yelleman Hausawa, within the Jigawa Judicial Division induced one Amina Salihu aged 10 years with sweet called *Alewa’ and moved her into an uncompleted building, then locked her up and you committed an offence of Abduction contrary to Section 272 of the Penal Code Law CAP 107 Laws of Jigawa State, 1998 and punishable under Section 273 of the same law.”

From the foregoing, the Respondent was never charged with the offence of attempting to escape from lawful custody.

Although under Section 217 of the Criminal

Procedure Code, a person charged with one offence may be convicted of another offence which he is shown to have committed even though he was not charged with it, the Court has to be satisfied that it had been doubtful which of several different offences the facts which could be proved would constitute or such doubt applied only to the law and to the facts, that is to say the facts charged must have given the accused person notice of the offence with which he is to be convicted. See EKECHUKWU VS COP 1966 NNLR 96.
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

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.”

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.

OLUKAYODE ARIWOOLA, J.S.C.: I had the

privilege of reading in draft the lead judgment of my learned brother Bage, JSC just delivered. I agree entirely with the reasoning and conclusion that the appeal is lacking in merit and should be dismissed. I too will dismiss the appeal.
Appeal dismissed.

JOHN INYANG OKORO, J.S.C.: I read in draft the lead judgment of my learned brother Sidi Dauda Bage, JSC just delivered with which I agree that the appeal is devoid of merit and deserves an order of dismissal. The Court below was right to hold that there was no evidence to support the retracted confessional statement of the respondent. Moreso, the victim of the offence was not called to testify nor any of those persons listed as having witnessed the incident called to testify. To cap it all, the medical evidence was in favour of the respondent that rape did not take place. The only evidence before the Court was hearsay. With these lapses, I am satisfied with the decision of the lower Court that the prosecution failed to make out enough evidence upon which to convict the respondent herein.

As was rightly stated in the lead judgment, this appeal is devoid of merit. I also

dismiss this appeal.
Appeal Dismissed.

EJEMBI EKO, J.S.C.: The High Court of Jigawa State, in the charge No. JDU/31C/2010, had convicted the respondent, as the accused, for-
I. rape and sentenced him to a fine of N20, 000.00 or 6 years imprisonment, and
II. attempt to escape from lawful custody and sentenced him to a fine of N10,000.00 or 3 years imprisonment.

He appealed the convictions and sentences. The Court of Appeal, Kaduna Division, in the appeal No. CA/K/160/C/2012, allowed his appeal. The convictions and sentences were consequently set aside. It is against this decision and order the prosecution has brought this appeal.

The respondent, upon his arrest, allegedly made extra-judicial statement to the Investigating Police Officer, the PW.4. The statement was recorded in Hausa Language by the PW.4. On this statement the PW.4 testified thus
I recorded the cautionary statement of the accused in Hausa Language. He thumb printed the cautionary words. He then voluntarily gave his confessional statement in Hausa Language which I translated into English Language. I read it over to him and after

understanding, he thumb printed while I counter signed. I took him together with his confessional statement before my Superior Officer, ASP Akilu Gali for endorsement. The statement was read over to the accused person who agreed that it was his and then the officer endorsed.

The Hausa and English versions of the statement, respectively Exhibits 1A & 1B, were tendered in evidence, unopposed, through the PW.4. Exhibits 1A & 1B were “not read out in open Court” to the hearing of the accused. They were merely taken as read.

The respondent testified in his defence at the trial Court. One aspect of his evidence-in-chief neither challenged nor discredited by the vigorous cross-examination is as follows:
From Kaugama Division, I was taken to State CID. I denied committing the offence. But one Police Officer wrote something which he did not read over to me but put ink on my finger and thumb printed on the paper. He later took me to Court.

The prosecution relied heavily on Exhibits 1A and 1B as confessional statement proving the admission of the offence of rape the accused was charged with at the trial Court. ASP Akilu Gali, who allegedly

endorsed Exhibits 1A & 1B to confirm the voluntariness of the making of Exhibits 1A by the accused, did not testify.

The burden of establishing the voluntariness of the making of a confessional statement, in a criminal proceeding, is on the prosecution. It is not a matter for assumption or presumption. This is more so when Sections 29, 131, 132, 135 and 138 of the Evidence Act. The burden of proving the fact necessary to be proved to make a confession an admissible piece of evidence is on the prosecution by virtue of Sections 29 & 138 of the Evidence Act, 2011.
The law, by dint of Section 135 of the Evidence Act, is settled that if the commission of crime is directly in issue in any proceeding that fact must be proved beyond reasonable doubt. Since it was the appellant, as the prosecutor in this case, who desired that the accused, on his confession, should be convicted for the offence of rape charged, the burden of proving that fact beyond reasonable doubt is certainly on the appellant; because they would fail if no evidence at all were given on either side. See Sections 131 and 132 of the Evidence Act, 2011.

I had earlier stated that

it is not a matter for mere assumption or presumption, without more, that every alleged confessional statement was made voluntarily. The right to fair trial guaranteed by Section 36 of the Constitution includes the right of the accused to be presumed innocent until he is proved guilty and because he enjoys a right against self-incrimination, the accused cannot even at the trial be compelled to give evidence at his own trial.

Section 29 of the Evidence Act, 2011 empowers the trial Court to exclude a confession that appears to it to have been unfairly obtained from the accused in order to incriminate him. The Court is accordingly empowered “not to allow such confession to be put in evidence against him” unless “the prosecution proves to the Court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained in a manner not contrary to the provisions of “Section 29 of the Act. It is mandatory under Section 29 of the Act, that the only admissible confession is the confession that was not obtained by oppression of the maker, or in consequence of anything said or done which was likely, in the circumstances existing at the time,

to render unreliable” the said confession.

It appears that the trial Court had relied on the ipxit dixit of the PW.4 to allow the alleged confession of the accused, in Exhibits 1A & 1B, to be given in evidence against him that he committed the alleged offence of rape. Between the evidence of PW.4 and DW.1 it is oath against oath. While, from his own showing the PW.4’s assertion needed corroboration or verification, the evidence DW.1, as he is not obligated to prove his defence or innocence beyond reasonable doubt, does not need the additional verification or corroboration.

The additional or extrinsic evidence the PW.4 needed to prove his assertion that he took the accused/respondent before his superior officer, ASP Akilu Gali, for the latter to confirm that the accused made Exhibits 1A &1B voluntarily, was the said ASP Akilu Gali’s evidence. ASP Akilu Gali did not testify. The PW.4’s assertion that the accused admitted before the said ASP Akilu Gali and he (the accused) voluntarily confessed to his raping the female imbecile need to be factually verified or confirmed by the said ASP Akilu Gali. The PW.4’s assertions in this regards are not

proved in the absence of ASP Akilu Gali’s evidence. Sections 131 and 135 of the Evidence Act enjoin the prosecution to prove beyond reasonable doubt that the accused confessed to his raping the female imbecile to the PW.4 and ASP Akilu Gali. This assertion by the PW.4 was his own ipxit dixit which needed to be evidentially corroborated. This has not been so done. The absence from the proceeding the evidence of ASP Akilu Gali, leaves a wide lacuna. Without further belaboring this issue I should think, as Plato would put it, what is alleged without proof can be denied without proof. On this note, I agree with the lower court that “the prosecution had failed to invite all known material witness that could have assisted the trial Court in resolving the issue, whether Exhibits 1A & 1B were voluntarily made by the accused”.

The accused, as the DW.1, pleads non est factum upon an unfair trick played on him to thumbprint an already prepared statement by a police officer. This indictment of the investigating police officers for unfair tricks, contrary to Section 29(2) Evidence Act did not even nudge the appellant to cross-examine the accused, as the DW.1, with

the view of discrediting him. The DW.1 got away with this evidence unchallenged and unscathed. The defence has discredited the evidence of PW.4 and successfully cast serious doubt on the prosecution’s case. The trial Court should have resolved that doubt in favour of the defence. It failed. I hereby, in agreement with the lower Court, resolve this doubt in favour of the accused/respondent.

Exhibits 1A & 1B are the main bastion or plank on which the trial Court convicted the accused for the rape charged. That confession, not proved, does not avail the trial Court to convict the accused for the offence of rape charged by the appellant.

To sustain the charge of rape, the prosecution must prove that the accused’s penis penetrated into the genitalia of the female person allegedly raped. That is the res in rem. The much hyped exhibits 1A & 1B, said to be a confession, do not categorically admit that the penis of the accused infact penetrated the genitalia of the female imbecile. In the statement, the accused allegedly stated that he tried to force his “penis into her virginal (sic) but did not pass in fully because the entrance is closed by that

time”. Without penetration, there is no rape. I therefore agree with the lower court that the trial court, in convicting the accused for rape, did not properly evaluate the totality of the evidence before it and that if it had done so, it would have come to the inescapable conclusion that the appellant, as the prosecutor, did not prove or establish their case for the offence of rape beyond reasonable doubt.

Apart from rape, the accused was also charged for abducting the female imbecile, Amina Salihu, contrary to Section 272 of the Penal Code, and punishable under Section 273 of the Penal Code Law of Jigawa State. The accused only defended charges for rape and abduction at the trial Court. There was no suggestion, whatsoever, that the accused attempted to escape from lawful custody throughout the proceedings.

The trial Court found that the accused did not commit the offence of abduction alleged against him. Consequently, the accused was discharged and acquitted for that offence. In this regard, it considered the defence of the accused.

However, from no where, as I should say, the trial Court proceeded to consider whether the defence of alibi

was made out. It dismissed the defence, as unavailing. The trial Court then proceeded at page 46 of the Record, thus –
It is trite law that where a defence raised or even if not raised but considered by the Court and the same does not absolve the accused from criminal responsibility like the instant case, then the Court has no option other than to return a verdict of guilty against the accused for offences charged. It is on this premise that, the accused is found guilty of the offences (of) attempt to escape from lawful custody under Section 95 of the Penal Code and punishable thereunder and the offence of Rape punishable under Secfion 233 of the Penal Code Law of Jigawa State and convict him accordingly.

The trial Court seems to have goofed. The accused was never, at anytime, charged for attempt to escape from lawful custody. He was only charged for the offences of rape and abduction of Amina Salihu. The final written addresses submitted by the counsel for the defence and prosecution clearly affirm these facts. The charge of attempt to escape from lawful custody clearly has come out of the mere brain wave or figment of the imagination of the trial

Court. This clearly is an arbitrary and capricious exercise by the trial Court of its discretion. The right guaranteed to the accused by Section 36(6)(a) & (b) of the Constitution providing that “every person who is charged with a criminal offence shall be entitled to be informed promptly in the language he understands and in detail of the nature of the nature of the offence” and also “be given adequate time and facilities for the preparation of his defence” thereto, has been flagrantly violated by the trial Court that has completely usurped the function of the prosecutor against the constitutional Injunction to be independent and impartial in the determination of the civil right and obligation of the accused/respondent.

In this outrageously weird procedure adopted, the trial Court neither acted nor pretended to act, under Section 217 of the Criminal Procedure Code (CPC). Further on this attempted escape from lawful custody, as an offence under the Penal Code Law of Jigawa State, is not an element of either the offence of rape or the offence of abduction that the accused was charged with and had notice of.

The error committed by the trial Court

in convicting and sentencing the accused for the offence of attempt to escape from lawful custody which the accused was not previously charged for or forming part of the elements of the offences he was charged with is just the same error the Magistrate committed in RAPHEL EKECHUKWU v. C.O.P. (1966) NWLR 96. The High Court of Kano State on appeal (Reed Ag. CJ and Holden J) in correcting the Magistrate stated the law correctly that Sections 216 and 217 of the CPC empower a Court to convict for an offence not charged only when the facts charged have given the accused notice of the facts of the offence of which he is convicted. Sections 216 and 217 of the CPC do not empower Courts to flout the provisions of Section 36(1) & (6) of the Constitution. Nor do they empower Courts to flout the injunction that they must be independent and impartial in criminal proceedings.
The operation of Sections 216 and 217 of the CPC is all about facts. Thus, Indian Courts hold, on provisions in pari materia with Sections 216 and 217 CPC, that the true test is whether the facts charged give the accused notice of the offence for which he is going to be convicted, though he was

not charged with it, so that he is not prejudiced by the mere absence of a specific charge. See DHUM SINGH v. EMPEROR A1925, A.448; RACHUNATH KANDU v. EMPEROR A1926, A.227; BALUCHAMI v. EMPEROR A1933, A.843.

The lower Court was therefore right, in my view, when it set aside the conviction and sentence of the accused for attempted escape from lawful custody. The accused had no notice of the facts constituting that offence. The conviction was, in the circumstances, very prejudicial and had occasioned a miscarriage of justice.

My learned brother, SIDI DAUDA BAGE, JSC, had in the lead judgment just delivered in this appeal dismissed this appeal for lacking in substance. I agree entirely. I also dismiss the appeal for being unmeritorious. The decision of the lower Court, contained in its judgment delivered on 20th December, 2012, in the appeal No. CA/K/160/C/2012 is hereby affirmed.

PAUL ADAMU GALINJE, J.S.C.: I have had the privilege of reading in draft the judgment just delivered by my learned brother, BAGE, JSC and I entirely agree with the reasoning contained therein and the conclusion arrived thereat.

The law is settled

that if the commission of a crime by a party to any proceeding is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt. The burden of proving that any person whether the commission of such act is or is not directly in issue in the action.
See Section 138(2) of the Evidence Act 2011, Adamu vs A-G Bendel State (1986) 2 NWLR (Pt.22)284: Akpan vs The State (1990) 7 NWLR (Pt. 160) 101.

Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 provided that every person who is charged with a criminal offence shall be presumed innocent until he is proved guilty. Following from this constitutional provision, the burden of proof in criminal cases is on the prosecution who must prove its case beyond reasonable doubt and a general duty to rebut the presumption of innocence constitutionally guaranteed to the accused person. This burden does not shift. See Alabi vs The State (1993) 7 NWLR (Pt. 307) 511 at 531 paras A – C; Solola vs The State (2005) 5 SC (Pt.1) 135.

The Respondent in this appeal was arraigned at the High Court of Jigawa State for the offence of rape and attempt to escape from lawful

custody, contrary to Sections 283 and 273 of the Penal Code Law Cap .107 Laws of Jigawa State 1998,

For the prosecution to succeed, in proving the offence of rape, it must prove:
1. That the accused has sexual intercourse with the woman.
2. That the act was done in circumstances falling under the following:.
(a) against her will;
(b) without her consent;
(c) with her consent when her consent has been obtained by putting her in fear of death or of hurt.
(d) with her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married;
(e)With or without her consent, when she is under fourteen years of age or of unsound mind.
3. That there was penetration.
See Ogunbayo vs State (2007) 8 NWLR (PT. 1035)157; Upahar vs State (2003) 6 NWLR (Pt. 816) 230; State vs Ojo (1980) 2 NCR 391; Iko vs State (2001) 14 NWLR (pt.732)221.

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

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.

The most essential ingredient of rape is penetration, however slight. Penetration, with or without emission, is sufficient even where the hymen is not ruptured. The slightest penetration will be sufficient to constitute the act of sexual intercourse. See lko vs State (supra), Ogunbayo vs State (supra).

Where the offence of rape is denied by the accused, the evidence of corroboration that the Court must look for are:
1. Medical evidence showing injury to the private

part or to other parts of the body of the prosecutrix which may have been occasioned in a struggle.
2. Semen stains on her clothes or the clothes of the accused or on the place where the offence is alleged to have been committed.

In the instant case the extra judicial statement of the Respondent has clearly shown that there was no penetration of the vagina and this was corroborated by the medical report which clearly stated that the prosecutrix’s vagina was not tampered with. The lower Court was therefore right when it exonerated the Respondent from the allegation of the offence of rape.

On the issue of the Respondent’s attempt to escape, the lower Court was right when it found the respondent not guilty. 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.

The allegation is that the Respondent intended to escape. Intention alone does not constitute an offence. That intention must co-relate with action (actus

reus) before an offence is complete. This is encapsulated in the latin phrase, “Actus non facit reum nisi mens sit rea” which means an act does not make a person guilty unless the mind is guilty.

For the restricted reasons I have set out hereinabove and the fuller and more comprehensive reasons in the lead judgment of my learned brother BAGE, JSC, this appeal shall be and it is hereby dismissed.

Appearances: