Sunday Jegede V.the State (2001)
LAWGLOBAL HUB Lead Judgment Report
BELGORE, J.S.C.
The appellant was charged with the offence of rape contrary to S.258 of Criminal Code Law of Bendel State. He was alleged to have raped the prosecutrix, a school girl of under thirteen years within the premises of University of Benin Staff School on 24th May, 1989. The prosecution further alleged that the prosecutrix thought the appellant was a teacher at the same staff school and that she at his behest volunteered to help to count the bad toilets at the school. It was while doing this that the appellant grappled her and raped her. The appellant, on his side maintained he never committed any offence; all that happened, according to him, was that the prosecutrix and her elder brother were his pupils at a private tuition school and that their father still owed him unpaid fees. At the time of the alleged offence the prosecutrix’s age was put at eleven years, being born in August, 1978. She denied being appellant’s pupil at any time in 1989, much less her father owing him any outstanding fees. The prosecutrix maintained she told her father what happened to her the same day when he came to pick her up but he did nothing on that day. The trial court convicted the appellant of the offence of rape and sentenced him to five years imprisonment. On appeal to Court of Appeal the conviction for rape was set aside and that of attempted rape was substituted. Thus the appeal to this court.
The appellant formulated four issues for determination in this appeal as follows:
“1. Whether given all circumstances of the case, the prosecution proved the offence of rape or attempted rape, more so when the evidence of the prosecutrix (PW2) relied heavily upon by both trial court and Court of Appeal was inadmissible as having been received contrary to section 155(1) and 183(1) of the Evidence Act.
- Whether the court can properly convict the appellant on the evidence of PW3
- Whether having regard to the finding of the lower court that the evidence of PW1 did not link the appellant with the offence of rape, whether it was still open to the Court of Appeal to use the same evidence to convict the appellant for attempted rape.
- Whether the Court of Appeal was right in law and fact to hold that there was no need to corroborate the evidence of PW2 the victim of the alleged attempted rape”
It must be pointed out that the prosecutrix never raised any alarm or complained at the alleged scene of the crime, during or immediately after the alleged assault. She testified that later when her father came to pick her home she complained to him that the appellant had raped her. The witnesses from the school never noticed anything unusual when the prosecutrix and the appellant were moving from one section to another looking for prosecutrix’s brother. The prosecutrix’s father was not called at the trial to testify as important as his evidence would have been. The PW1, Dr. Suleman Abu, worked in the same hospital with prosecutrix parents. Her father was a medical consultant and her mother was a Chief Matron. It was several hours after the alleged sexual attack that the police were called in on 24th May, 1989. It was on 26th May, 1989 that PW1 medically examined the prosecutrix. The evidence of PW1, a pathologist was devoid of some essentials to prove rape. All he found was tender vagina with purplish blue mucosa. He opined that it might be due to traumatic inflammation and that a swab showed some evidence of styphycocus and yeast cells. He also believed the girl (i.e. prosecutrix) had “forceful penetration of the genital tract” and that by his experience the injuries could have been there for as far back as forty-eight to sixty hours to the time he examined her. He was never afforded the opportunity of examining the appellant immediately after the alleged rape. The questions left unanswered by PW1 are: what is the age of the prosecutrix” was her hymen torn during the alleged rape Was the prosecutrix a virgin The evidence of PW1 thus has not satisfied proof necessary to secure a conviction for rape. Whether the prosecutrix was a minor or an adult there must first be proof of penetration and that penetration of the vagina must be linked with the appellant. There was no evidence before trial court to satisfy these requirements. The Court of Appeal was perfectly right to hold there was no evidence of rape. Whether by dilateriness of the police and or of the father of the prosecutrix, the prosecutrix was not taken for medical examination not until 26th May, 1989, more than 48 hours after the alleged attack. The opinion of the pathologist has not been scientifically conclusive as to rape. As the written record of proceedings stands the evidence that the accused had any carnal knowledge of the prosecutrix is superficial and therefore inconclusive. The medical evidence has left many holes uncovered. The offence of rape is “the unlawful carnal knowledge of a woman or girl, without her consent, or with her consent, if the consent is obtained by force or by means of threats or intimidation of any kind or by fear of harm or by means of false and fraudulent representation as to the nature of the act, or in the case of a married woman, by personating her husband…….. ”
Thus rape is only committed in circumstances set out above with clear evidence of penetration and who was responsible for it. The whole case is based on the evidence of the prosecutrix and PW3, the headmistress of the school she was attending. PW3 relied entirely on hearsay and the prosecutrix herself never gave convincing evidence. The delay in sending her to PW1 for medical examination and the evidence of the doctor himself left a great gap in credibility.
The Court of Appeal set aside the conviction for rape because there was insufficient evidence to justify it. But it went ahead and convicted for the offence of attempted rape under S.359 of Criminal Code Law of Bendel State. Then what is the offence of attempt under our law If a person intends to commit an offence, and in the process of putting his intention into execution by means he has adopted to its fulfillment, and thereby manifests his intention by some overt act, but actually falls short of his intention to commit that offence intended either through an intervening act or involuntary obstruction is said to commit the attempt of the offence intended. (See S.6 of the Criminal Code). The end to which the accused arrived must have been substantially attained but for intervention which he never volunteered to meet or anticipated which prevented the commission of the full offence intended. (See Orija v. Police (1957) NRNLR 189; Police v. Fowowe (1957) WRNLR 188). There is no evidence to show conclusively that the appellant attempted to rape or even assaulted the prosecutrix. The substitution of the offence of attempted rape is therefore not justified.
The issue of whether the evidence of prosecutrix was admissible because of her age does not arise in this matter. Certainly evidence of PW3 is based entirely on hearsay and it is no corroboration of prosecutrix’s evidence. The appellant has not been linked with any rape or attempted rape. The net result is that this appeal has great merit and I allow it. I set aside the verdict of Court of Appeal on attempted rape. I enter a verdict of discharge and acquittal.
SC.133/2000
