Turaki V. The State (1994)
LawGlobal-Hub Lead Judgment Report
OKEZIE, J.C.A.
The appellant was arraigned before the Bauchi State High Court on a one count charge with the offence of culpable homicide punishable with death contrary to Section 221 of the Penal Code. The victim of the charge was one Joshua Iwule. At the end of the trial, the learned trial Judge in his judgment found the appellant not guilty of culpable homicide punishable with death and accordingly acquitted him.
But the court in exercise of its powers under Section 217 of the Criminal Procedure Code convicted the appellant for a lesser offence of culpable homicide not punishable with death under Section 220(c) of the Penal Code, namely “doing a rash or negligent act” and sentenced him to five years imprisonment with effect from 7/9/88.
The three grounds of appeal filed by the appellants are as follows:
- The decision of the trial court is against the evidence.
- The trial court misdirected itself when it held: “It is clear from the evidence before me that accused was probably driven by sheer bravado, or power show not intending to/anyone, let alone the deceased when let (sic) go the fatal shot on 7/9/88, but he in my view was clearly rash” when the evidence before the court does not support in anyway the court’s conclusion.
Particulars of Misdirection
(a) The court ought to have decided from the facts whether the act was in the circumstances unlawful before consideration of the state of mind of the accused when he fired the fatal (sic).
(b) The entire evidence was to the effect the vehicle in which the deceased was had created a situation where there was apprehension in the mind of the accused and others as to the safety of the money being conveyed.
(c) Evidence is at one as to the reason for shooting into the air to scare away truck.
(d) The accused was not stated to be performing an unlawful act but acting in the course of duty to protect the money and to allow not a break in the convoy in which he was commanding.
- The lower court erred in law in not considering the defence of accident pursuant to Section 48 of the Penal Code and this failure occasioned a miscarriage of justice.
Particulars of Error
(a) The trial court was duty bound to consider all defences that from the evidence may be raised in favour of the accused.
(b) The accused was performing a lawful duty; the circumstances of each case necessitated his conduct; the act committed was not intentional and the act is not so probable that a person of ordinary prudence ought under the circumstances of which it is done, to take reasonable precaution against it.
(c) There is sufficient evidence on record to raise and consider suo motu the defence of accidental killing in the execution of a lawful act.
The appellant formulated only one issue for determination, which I set out hereunder.
The issue is:
“Whether from the special and peculiar circumstances surrounding this case ,the appellant was rash or negligent in his conduct as to deprive him the defence of accident under Section 48 of the Penal Code.
The respondent in its brief also formulated issues for determination. The respondent’s issues read thus:
- Whether or not the learned trial Judge was right in convicting the appellant for a rash and negligent act having regard to the prevailing circumstances at that point in time.
- Whether or not the defence of accident was available to the appellant and whether or not the learned trial Judge was right in not considering the defence at all. 4;
- Whether there was contradictions in the statement of the prosecution witnesses and if yes whether it was on a material point. .
I prefer the issues set out by the respondent which embraces the only issue set out by the appellant.
The case of the prosecution against the appellant was that on the 7th September, 1988 the appellant led a convoy of five vehicles conveying currency from Bauchi Central Bank to Jos Airport. He was the officer in charge of the Police Security team with him were staff of the Central Bank of Nigeria. There were about eleven Policemen escorting the currency.
At about kilometre 31 from Bauchi the convoy sighted an army duty truck being driven by one CPL. Johnson Iwule (now deceased) the pilot vehicle then blew its siren so that the army vehicle could make way, it drove past the army vehicle. Two other vehicles in the convoy drove past. As the fourth vehicle, conveying the appellant was overtaking the army vehicle, the appellant brought out his pistol and shot at the army truck out. The shot struck the deceased driver CPL Joshua Iwule who died instantly.
The appellant and the convoy, without stopping, proceeded on their mission to Jos and came back. On their return the appellant was arrested and arraigned before the High Court Bauchi for causing the death of Cpl. Joshua Iwule contrary to Section 221 of the Penal Code.
The appellant was accordingly charged. The appellant in his statement to the Police Exhibit A made on the 7/9/88 where he said as follows:
“……While we were going we met a lorry going in front of us. The normal escort siren was on but the vehicle refused to clear from the road, it was driving zigzagling going to the right lane when my men wanted to overtake him. This continued for almost a kilometre or more………. I was in the 4th vehicle and so I quickly overtook the other vehicles moving together with me. When I came close I aimed at the tyre any my aim was to deflate the tyres so as to stop him from hitting the real vehicle carrying money. When I fired the vehicle it then cleared from the main road one tyre was on the road while the other was on the parking side of the road. Our vehicle overtook and we reformed as we were before that is I came back to my fourth position.”
At the trial the appellant pleaded not guilty to the charge. He did not testify in his defence and called no witnesses but rested his case on that of the prosecution.
Now to the issues. In the appellant’s brief filed, G. Yilyok for the appellant argued the only issue raised in the appellant’s brief and submitted that in the circumstance of the case borne out by the evidence, the action of the appellant in which he either aimed at the tyres to deflate as per his evidence or shooting in the air as borne out by the relevant prosecution witnesses P.W.1 and P.W.2 cannot be said to be harsh or negligent i.e. death was caused with intent or knowledge that the act done will in all probabilities cause death. The only offending conduct therefore is that the act was over-hastily without forethought done with indifference to the consequences. He cited in support the case of the State v. Boka (1982) 1 NCR p.85 at 93.
It is further submitted in appellant’s brief, that the death of Joshua Iwule although it was inevitably caused by the shooting, it was nevertheless not rash and unintended under the circumstances. The appellant is entitled to the defence of accident under Section 48 of the Penal Code. See The State v. Boka (supra) where it is stated at page 93 lines 38 – 41 thus:
“A rash act is ordinarily an over-hasty act done without due deliberation and caution and is opposed to a deliberate caution. There is some deliberation in the act resulting in the prohibited consequence but not the prohibited consequence.”
It is submitted, that by virtue of the provisions of Section 140 of the Evidence Act, the evidential burden establishing exculpatory evidence lies on the appellant. It is therefore submitted that this burden could be discharged –
(i) by the evidence adduced by the prosecution witnesses on the point is that the appellant fired in the air. This evidence of the prosecution strengthens rather than weaken the case of the appellant.
(ii) The evidence of the appellant himself is undisputably that in the circumstances of the case, he aimed at the tyres and fired to deflate them.
This exculpatory evidence has been amply discharged by the credible evidence and probative evidence of both the prosecution and the defence. See the case of Ishola Karimu v. The State (1989) 1 NWLR (Pt. 96) p. 124 at p. 139 – 140 S.C.
It is therefore submitted from the foregoing, special and peculiar circumstances surrounding the case, the appellant was not rash or negligent in his conduct as to deprive him of the defence of accident. The learned trial Judge was therefore clearly in error in not conceding the appellant the defence when he convicted him of culpable homicide contrary to Section 221 of the Penal Code and this occasioned a miscarriage of justice as the onus on the prosecution was not discharged.
The summation of the respondent’s reply in his three issues for determination to the appellant’s submissions are the exact opposite of the appellant i.e.
(i) that the act of the appellant was rash and negligent contrary to Section 220(1)(c) of the Penal Code. See the State v. Boka (supra).
(ii) That the trial Judge was right in convicting the appellant for rash and negligent act aforesaid.
(iii) That firearms are by their nature very dangerous weapons and the duty of care is usually high and is not discharged unless the user knew at the moment at firing of that bullet will come to rest within the distance he could see and the intervening space was not occupied by anybody who might be injured by the shot. He then referred to the evidence of P.W.1 and P.W.2 in particular.
Finally it is submitted in the respondent’s brief, that the trial court rightly convicted the appellant for culpable homicide contrary to Section 221 of the Penal Code and that it is not the duty of the trial court to speculate upon the possible defences open to the accused, since the defence did not raise the defence at the trial.
In resolving the only issue raised and argued by the appellant to which the three issues considered relevant and ecompassing appellant’s issue, it becomes necessary to re-examine.
In order to assess the correctness or otherwise of the submissions of Mr. Yilyolk, it becomes useful to re-examine the evidence adduced by the prosecution on material points, the defences of the appellant and the examination by the trial court of the evidence before him. Now the question is in what circumstances did the deceased die? P.W.1 Baneb Turn gave an eye witness account thus;
“………At about kilometer 27 along Bauchi – Jos Road, we met with an army truck which was travelling in the same convoy. It took us some time before we overtook the Army truck. We set in the 4th vehicle in the convoy. When we had passed the last tyre of that army truck, in our attempt to overtake it, the accused removed his pistol and shot it into the air. The accused said that he was trying to scare away the army driver. We eventually overtook the army truck, and continued our journey.”
In the same way but more detailed, Danlami Habila PC No. 105768 testified as P.W.2. He said:
“On 7/9/88 I was on duty i.e. escort duty with the Central Bank Bauchi from where to Jos we were to escort cash van to Jos with the Central Bank 1& 10 other Policemen accompanied the escort apart from the accused who was the Inspector I/C of the escort. About 31 kilometer from Bauchi along Bauchi – Jos road we met an army duty truck travelling in the same direction as ourselves. The pilot vehicle sounded the siren for it to move away so that we could overtake it but then the army driver began to swerve from side to side. Later the leading L/Rover overtook the army lorry. The other vehicles in the convoy were still behind the army truck which did not give way. Two other of our vehicles also managed to overtake the army vehicle. When it got to the 4th vehicle i.e the one in which the accused was travelling as the two vehicles came side by side the accused brought out his head and lifted up his pistol and fired.” (emphasis mine)
Under cross-examination the witness said at page 17 of the record thus: “The army vehicle did not give way to the convoy. As a result of the failure of the army vehicle to give way, the chain of the convoy was broken. I was in the last vehicle, …. We were in the last vehicle for strategic security reasons. Every vehicle in the convoy was blocked by the army vehicle in the convoy had to struggle independently to overtake the army vehicle Both my vehicle and the other vehicles were cut off from the Bullion vehicle by army truck. I saw the accused brought out his right hand with a pistol and fired the same, accused was pointing at the sky. The billion lorry had overtaken the army truck when the incident took place. In my training we are not supposed to allow the chain of the convoy to break.”
P.W.3 testified that they were about 3 vehicles in a convoy our driver gave way to the Central Bank vehicle to pass, the 1st vehicle overtook us. The 2nd too. The 3rd vehicle was over-taking us when I heard a gun shot. After I noticed our vehicle began to swerve from the right side of the road to the left side of the road. At last it entered the bush about 300 metres from the road. The vehicle eventually came to a stop.
P.W.4 was Lt. Idris Umar he said that Joshua drove the truck on our way to Jos at about 30 kilometres or so from Bauchi village called Duzaye I heard the blare of a siren approaching us from the rear, so I told the driver Joshua to give way and he did so. I then saw a convoy of mobile police escort the 1st car drove past, 2nd also passed, the 3rd vehicle was bullion vehicle, it drove past, the 4th vehicle and the last vehicle I saw was a Peugeot car painted green. As it was at the point of overtaking our truck, I heard a shot fired. Immediately our vehicle sweved from the right hand side to the left side of the road. The driver fell on to my laps and the vehicle continued hitting trees. When the truck finally came to a halt. I called on soldiers Okon and Chikere to come along and help me open the door of the vehicle. At the time the driver Joshua was lying in a pool of his own blood.”
Under cross-examination he said: “I did not see the one who fired the shot”.
P.W.5 William Korinyan Assistant Superintendent of Police visited the scene. He said:
“I searched the scene for the bullet or its case but I could not see them….. I later conveyed the corpse to the Specialist Hospital Bauchi. When the mobile police returned from Jos I reported the incident to the O/C Meile, he checked their arms and ammunitions in my presence, the armonoureer was there too. As a result one round of ammunition was found to be missing from the one issued to the accused. A Barreta gun and 7 rounds of ammunitions were recovered from the accused. I later handed over the Barreta Gun No. A00712 and the 7th rounds of 3 mm Ammunition to the Exhibit Keeper. I cautioned the accused he volunteered a statement in English Language in Exhibit A ……………..”
P.W.6 Adoga ache a Ballistician testified thus:
“On 15/9/88 I received by hand of Asst. Supt. of Police, William Korinyan P.W.5 one sealed parcel accompanied with Police form 122 Exh. B on opening it I found one Barreta Automatic Pistol calibre 9mm parabellum No. A00712 Z & 7 rounds of ammunition caliber 9 mm parabellum. I examined. the pistol to see whether it was fired and the 7 rounds were serviceable. Only one ammunition was used as attest case and sent back to Bauchi State CID with a report Exh. C.
P.W.7 CPL. Musa said I was instructed by one Musa Garba S/P to issue arms to a team of Mobile policemen who were going on Central Bank Money escort. I therefore issued a pistol, Barretta to the accused Inspector Turaki. It is No. A00712 Z with 8 rounds of ammunitions of 9 mm live ammunition. Turaki is the accused in court.
The same day 7/9/88 the policemen returned around 4 p.m. My (sic) squadron and I ASP William Korinyan checked the arms & ammunitions in my presence, and it was found that one of the eight rounds of ammunitions issued to Turaki the accused was missing. The remaining 7 rounds and pistol Beretta No. A00712 Z were handed over to A.S.P. Williams.
The step brother of the deceased one Garuba Guchiya testified as P.W. 8. He said:
“I identified the corpse as that of my step brother Cpl. Joshua Iwule to the workers I met in the mortuary.”
As to the cause of death P.W.9 Dr. Abubakar M. Kumo testified thus:
“On examination I found that his body was soaked with blood, he had a wound below the left ear with inverted eyes consistent with the entry of high velocity missile. He also had a wound and fracture of skull above and behind the right ear which was consistent with the exist of the same high velocity missile. He was dead already. It is extremely unlikely that, that would have been self inflicted. The probable cause of death in my opinion was severe brain damage from a high velocity missile travelling through the substance of the brain.”
As earlier stated in this judgment the appellant made his statement Exh. A to the police on the 7/9/88. He never testified at the trial but relied on the case of the prosecution.
In his judgment at page 45 of the record the trial Judge said:
“I am therefore satisfied from the evidence before me beyond reasonable doubt and from the circumstance of this case that the injuries found on the deceased were inflicted on him by the pistol and ammunition issued to the accused on 7/9/88 by Co!. Musa Shehu P.W.7. Further the P.W.8 Garuba Guashaya a step brother to Cp!. Joshua Iwule did say that he identified the corpse of the deceased as that of Joshua Iwule to the hospital workers at the Bauchi Specialist Hospital Mortuary. The doctor P.W.9 hospital worker confirmed it. I believe them both and I see no lacuna as the learned defence counsel sought to make it. It is clear from the evidence before me that the accused was probably driven by sheer bravado, or power-show not intending to kill anyone, let alone the deceased; when he let go the fatal shot on 7/9/88 but in my view was clearly rash. He had no intention on his part to cause death nor had he any knowledge that the act done in all probability will cause death. A rash act is done over hastily and without fore-thought. He was also negligent in the way he fired the said pistol on the fateful day. Negligence is an omission to do something which a reasonable man would do guided by the consideration which ordinarily regulate human conduct or the doing of something which a prudent and reasonable man could do. In this case the accused’s negligence was such as to show a disregard for human life and the safety of others………….” The findings of the learned trial Judge do not support the conclusions reached by him. His conclusions from the facts were erroneous and therefore perverse.
Did the learned trial Judge bother to consider in the murder case of any of the defences available to the appellant even though not raised. He is bound in law to do this.
Now were the defences of provocation, self-defence and accident available to the appellant.
Was the appellant provoked into shooting the deceased. I do not think that the defence of provocation and self-defence were available to the appellant.
Now was the act of appellant accidental as to enjoy the protection afforded under S. 48 of the Code? That Section provides:
“Nothing is an offence which is done by accident or misfortune and without any criminal intention or knowledge in the course of doing a lawful act in a lawful manner by lawful means and with proper care and caution.”
This Section is in pari materia with Section 24 of the Criminal Code. Wherein the Supreme Court in the case of Adelumola v. The State (1988) 1 NWLR (Pt. 73) p. 683 at p. 692 – 693 per Oputa J.S.C. said;
Of the meaning of an accident under Section 24 of the Criminal Code:
“It seems to me that the expression “an event which occurs by accident” used in Section 24 of Cap. 42 of 1958 describes an event totally unexpected by the doer of the act and also not reasonably to be expected by any ordinary person, the reasonable man in law. In other words the test is both subjective from the stand point of the doer of the act as well as objective from the stand point of the ordinary man of common prudence. The event should to qualify as accidental be a surprise both to the doer of the act that caused it and a surprising thing to all and sundry. An event is thus accidental if it is neither subjectively intended nor objectively foreseeable by the ordinary man of reasonable prudence. Our law is that a man is presumed to intend the natural consequences of his acts.”
On the statement of the appellant himself in Exhibit A he had aimed at the tyres to deflate them. It is clear that the appellant did not intend the death of the deceased or to cause grievous bodily harm. In other words he did not intend to cause harm to some person.
In Stephen’s Digest, an accidental act is described thus:
“An effect is said to be an accident when the act by which it is caused is not done with the intention of causing it and when its occurrence as a consequence of such act is not so probable that a person of ordinary prudence ought under the circumstances in which it is done to take reasonable precaution against it.”
I think that a defence under Section 48 of the Penal Code was available to the appellant.
The act of the appellant was not rash or negligent in the circumstances when the appellant was charged with the lawful duty of transporting money, entrusted in his care. He was engaged in a lawful duty.
The evidence of the prosecution relevant to act of firing is in favour of the appellant. Both P.W.1 and P.W.2 testified that the appellant fired in the air. The act of firing in the air to scare the army vehicle obstructing the escort was a proper act not a rash or negligent act. The onus is always on the prosecution to prove the guilt of the appellant beyond reasonable doubt. This burden from the evidence on record has not been discharged and there is a strong not a lingering doubt as to whether the appellant aimed at the deceased and intended to fire at him. Nor could the act of firing in the air have been foreseen to cause the death of the deceased. I am afraid the evidence here does not bear out such finding. The appellant would appear to have committed what may be described as a grave error of judgment .which led to fatal consequences, and not more. This does not justify in my view a finding of gross negligence. See Adeyemi v. The State (1991) 6 NWLR (Pt. 195) page 1 at p. 35 S.C.
I therefore set aside the verdict of conviction of the appellant which is hereby quashed. The appeal is hereby allowed. The appellant is acquitted and discharged of the offence of culpable homicide contrary to Section 224 of the Penal Code.
It appeared the learned trial Judge had lingering doubt in his mind as to the guilt of the accused.
Appeal Allowed.
Other Citations: (1994)LCN/0178(CA)
