Aliyu Nmodu V. The State (1972)

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G. S. SOWEMIMO, AG. J.S.C.

The appellant who was the accused in charge No. KWS/11C/71, was arraigned before the Ilorin High Court on a charge of Culpable Homicide contrary to Section 221 (b) of the Penal Code. He was tried and convicted by Adesiyun, J., and sentenced to death on 29th October, 1971. He appealed to this court against his conviction. The appeal was heard on the 5th of April, 1972, and was dismissed.

The facts which were established before the learned trial Judge were as follows: the 1st prosecution witness, one Baba Dumagi visited Shesitagi on 8/2/71 which was the second day of the Sallah; he found on arrival at the premises of the deceased, one Nnawo Audu, that she was being beaten by the accused; she Nnawo Audu (later deceased), was bleeding from the nose and the mouth as a result of the beating. The accused then pushed the deceased to the ground, and placed a stone on her chest and a mortar on her abdomen. He then pressed the stone on to the chest of the deceased by standing on it. He later stood on the mortar placed on the abdomen of the deceased and jumped on it. As a result of this some excreta was thereby forced out from the deceased. The accused went and collected some grasses from the roof of a nearby disused hut and spread it over the body of the deceased and sprayed some pepper over the body as well.

He then lit the grasses and the deceased was burnt. On completion of this dastardly act the accused left the scene and went back to his village, Ndakasa. On the following day the deceased, Nnawo, died. The 1st prosecution witness, one Baba Dumagi, was the first eye witness of the incident and saw all that happened for two and half hours. When he challenged the accused as to the cruelty he caused by his acts, the accused threatened to kill him. The 2nd prosecution witness, Ndagi Yababo, the 3rd prosecution witness, Nda Kassim, and the 4th prosecution witness, Baba Tetengi, also witnessed the incident having arrived at the scene a little after the 1st prosecution witness. They gave evidence which corroborated that of the 1st prosecution witness.

The Etsu of Shonga, one Alhassan, gave evidence that on information received and having seen the corpse of the deceased at Shesitagi, he went to Ndakasa village and there arrested the accused. He later drove to Shonga in the company of the accused who was later handed over to the Police.

A son of the deceased, one Nmodu Kawu, who gave evidence as the 6th prosecution witness told the court that his brother, one Shabe, told him that he sent for the accused when his wife, Adisetu, who was ill, alleged that the deceased, the mother of 6th prosecution witness and Shabe, bewitched her and that that was the cause of her illness. Shabe admitted to this witness that when the accused came he started to beat their mother, the deceased.

The 7th prosecution witness is the constable, who arrested the accused and took him to Shesitagi on 10/2/71. His evidence as regards what happened at Shesitagi reads thus:

“I found the deceased covered with a piece of cloth there. The accused when asked told me that he used a mortar and a stone on the deceased. He added that he set fire on the deceased. The accused showed me the place where he set fire on the deceased. It was the accused who on picking the stone handed it over to me. The accused alleged that it was one woman called LAMUYE that asked him to punish the deceased.”

The witness later collected the mortar and the stone alleged used on the deceased. He also took the corpse to the General Hospital at Ilorin.

Under cross-examination the 7th prosecution witness said:

“I brought Lamuye to the State’s C.I.D. Ilorin. At the scene of the crime, the accused told me that he used mortar, stone and fire to punish the deceased.”

Dr. (Mrs.) Subbash Sharma performed the post-mortem examination on the body of the deceased. She gave evidence as the 12th prosecution witness, stating her findings thus:

“I discovered extensive superficial and deep burns over face, neck, hands, back and front and back lower limbs including her genitals. Both the feet had escaped bums; hairs were burnt on the sides, at front and back. She had prolapse uterus and haemorrhage. The cause of death was due to shock due to extensive burns of the whole body.”

The statement made in Nupe by the accused on caution is Exhibit H and the English translation, Exhibit H 1. He narrated how one Lami Iye, who later gave evidence as Defence Witness 2, requested him to accompany two men to whom she gave three types of medicine to be applied to a sick woman referred to as Sule’s wife. He also gave account of how he rubbed two of the medicines on the body of the sick woman and that her husband rubbed the third around her waist. The statement then continues

“After I informed the woman to release (relax) I left there for my lodging place leaving the deceased and the sick woman. One of the deceased’s children sent somebody for me to come that he was happy for the help rendered. I told him not to be happy of what I had done but that they should thank God. That their mother was crying because of cruelty. One of the woman’s children said I should punish the deceased well. She would release (the name of the) her gangs, and give me one pound. When I got the money I left for my house. After that I saw a man whom I told to branch to my house whenever is passing by. When he was coming I get up and met he on the way and gave him one pound to be handed to Lamiye. On that night people gathered together because of this matter. I then called the deceased asked her, are you the one killing this woman who was praying to deliver Then she replied yes that she wanted to kill her. I then told her lye (lie) down, I then placed mortar on her stomach and waged (wedged) the mortar with a stone in order not to fall. When the mortar was so long on her stomach then, she told me to bring it down, that she should like to talk to me. She then said that she had ever trained the sick woman’s child because the father of the sick woman had done good for her, because she has trained the sick woman’s daughter and she had got married. I then told the deceased that her children had requested me to punish her (the deceased) that was why I placed the mortar on her. On the very night I left the village and returned back to Dumagi and showed to Lami lye all that I had been given from there, and she asked me to put it there together with the gown, trouser and shoes. I went to my father to greet him and he said the person whom I was sent to is dead.”

The accused, in his defence at his trial, denied the allegation that he beat and burnt the deceased woman. On the contrary, his version was that someone else must have caused the death of the woman. In his evidence he said inter alia:-

“It was getting to sunset, I asked that I be given water to perform my absolution so that I may say my prayer. I was using the water when Momoh called me. I went to him and saw him holding 1pound currency note. Momoh pointed at the deceased and told me she was not his mother but she had bewitched four people already. Momoh then asked me to ask the deceased if she wanted to bewitch Adisetu. The deceased answered me that she was bewitching Adisetu.

The deceased at that time squatted near a mortar. Momoh pushed her and she fell over the mortar. She stood up. Someone went to a nearby dis-used grass hut and brought a bundle of grass and lit. People gathered round the deceased looking at her.”

The 2nd Defence witness is one Lamiye Dumah. Her evidence was that one Alhaji came to her to report the illness of a sister and met the accused with her. As she could not go with Alhaji to Shasitagi, she gave him some medicine for his sick sister. Accused volunteered to follow Alhaji since she could not go. The witness denied sending accused to Shasitagi. The accused on his return from Shasitagi told the witness that Alhaji gave him 1 pound, a pair of shoes and gown which were kept in her premises by accused without per knowledge.

The 3rd Defence witness, one Suleiman Shasitagi, admitted that he accompanied Alhaji to D.W. 2 to solicit her help in respect of his sick sister. He said that, as the D.W.2 could not follow them and, after seeing the sick woman, ordered everybody out of the premises and this witness left for his farm.

The 4th Defence witness, one Momo Audu, is a son of the deceased woman. He denied that he was present when his mother was being beaten. He admitted giving 1 pound to the accused because he had treated his brother’s wife. The stage at which the gift of 1 pound was made was not stated.

The 5th Defence witness is one Alhaji Mohammed. While he admitted bringing the accused to Shasistagi to treat his sister, he denied any knowledge of the treatment meted out to the deceased woman. He admitted giving a gown and a pair of shoes to the accused for successfully treating his sister.

The 6th Defence witness is Adisetu Shasistagi, who was alleged to be ill and treated by the accused. Although she remembered being ill she could not remember who treated her and stated that her cure was due to God.

The learned trial Judge, after a review of the evidence before him, held that the prosecution had proved the case against the accused beyond reasonable doubt. He therefore found the accused guilty of the offence of culpable homicide punishable with death.

Mr. F.O. Akinrele, the learned counsel for the appellant said that he could not find anything to urge in favour of the appellant. We have also considered the findings of the learned trial Judge, and on the evidence before him, we see no justification to disturb the verdict. We hold that the appellant was rightly convicted and we dismissed his appeal.

SC.334/71