Ibrahim Khaleel & Anor. V. The State (1997)
LawGlobal-Hub Lead Judgment Report
MOHAMMED, J.C.A.
The appellants in this appeal are brothers of the same parents. They were tried and convicted by Rowland J. (as he then was) of the High Court of Justice of Kano State sitting at Kano, of the offence of culpable homicide punishable with death under Section 221(b) of the Penal Code and sentenced to death by hanging in a reserved judgment delivered on 10/4/92. The charge under which the appellants were tried at the lower court reads:”
That you Ibrahim Khaleel and Abubakar Khaleel on 15th August, 1987 at about 03.00 hours at Gamatudu Quarters Kano within the Kano Judicial Division did commit culpable homicide punishable with death by doing an act to wit: pouring petrol on the person of one Dauda Abdullahi (now deceased), his wife and all over his room and thereafter throwing a lit match thereby setting him, his wife and the whole room on fire, whereof the said Dauda Abdullahi died days later in hospital while on admission as a result of the severe fire burns he suffered and that the above acts were done with the knowledge that death would be the probable consequence of your act and you thereby committed an offence under Section 221(b) of the penal code.”
The events that led to this charge of culpable homicide against the appellants as can gathered from the evidence adduced at the trial arose from a fire incident that took place in the room of one Dauda Abdullahi at Gama Tudu Quarters in Kano in the early hours of 15/8/87. On that date, the deceased Dauda Abdullahi who was a casual friend of the 1st appellant and whose wife Sabuwa Dauda was also a former girl friend of the 1st appellant, were sleeping in their room. At about 2 a.m, the appellants came to the open window of the deceased’s room with a container of petrol and emptied its contents on the deceased, his wife and the properties contained in the room before throwing a lit match into the room thereby setting it ablaze. The deceased and his wife who knew the appellants before this date saw and identified them through the window before the room was set on fire which destroyed the properties in the room and also caused severe burns on the deceased and his wife Sabuwa. As the result of the injuries received from the fire incident, the deceased and his wife Sabuwa were admitted at the hospital for treatment. While Sabuwa was lucky to survive from the severe burns which left scars on her body, her husband the deceased was not as lucky as he died on the 40th day of his admission in the hospital from his wounds which became septic.
At the trial which lasted nearly five years between 1987 and 1992, the prosecution called 5 witnesses and tendered the statements of the appellants under caution with the negatives and photographs of the scene of the fire incident, and of the victims in order to prove its case. The appellants who were the accused persons at the trial each testified in his own defence. While the 1st appellant called two other witnesses who testified in support of his own defence, the 2nd appellant called only one other witness his own elder sister who testified in support of his own defence. At the end of the trial, in a considered judgment, the learned trial judge found both appellants guilty of the offence of culpable homicide under S.221(b) of the Penal Code as charged and convicted them accordingly. The appellants were sentenced to death by hanging. Aggrieved by their conviction and sentence by the lower court, the appellants have now appealed to this court each on a notice of appeal containing the omnibus ground. Two additional grounds of appeal were filed on behalf of each of the appellants with the leave of this court by their learned counsel.
Mallam Ibrahim Buba learned counsel for the appellants has in the appellant’s brief of argument submitted the following 3 issues for the determination of the appeal.
- “Whether there are sufficient legal evidence (whether direct or circumstantial) before the court to sustain the charge of culpable homicide punishable with death against the appellants.
- What is the effect of the omission by a witness to mention the name or names of person or persons seen committing an offence at the earliest opportunity.
- Whether having regard to the evidence adduced at the trial there exists a nexus or link between the cause of death and the appellants.”
These issues were also adopted in the respondent’s brief of argument.
Arguing issue No. 1 which arose from the omnibus ground of appeal. Mallam Buba for the appellants had observed that in the course of the trial, the only evidence that pointed to the circumstances surrounding the death of the deceased were those of his wife PW2, his brother PW3 and his mother PW4. He pointed out that the evidence of PW2 relied upon heavily by the learned trial judge in convicting the appellants was to the effect that 1st appellant was her former boy friend who first came to their house on 14th-15th August, 1987 in a Volkswagen car but left. That later that night the appellants came back while the deceased and PW2 were asleep and poured petrol on them in the room through the window before throwing a lit match which resulted in setting the deceased, PW2 and the contents of their room on fire. Learned counsel then referred to the evidence of PW3 who on 15/8/87 was awaken by the fire in the room of the deceased who was shouting that he had been set ablaze. That the witness testified mainly on how the children of other people in the house were rescued from the fire. He also recalled a misunderstanding between the deceased and the 1st appellant in 1986 which was resolved at the Gwagwarwa Police Station. As for the evidence of PW4, learned counsel to the appellants pointed out that she related the story which the deceased told her of having met the 1st appellant at a wedding party where the appellants threatened the deceased with death and that resulted in the deceased returning home early that night. That PW4 also said she saw two persons in a car that night who drove away on seeing her. Later that night she saw fire in the room of the deceased who was also burning and shouting in Hausa that the appellants Ibrahim Khaleel and Abubakar Khaleel had killed him. It is the submission of the learned counsel to the appellants that there is virtually nothing in the evidence of the 3 witnesses PW2, PW3 and PW4 that either directly or circumstantially linked the events, that led to the death of the deceased to the act of the appellants to justify their conviction. On the evidence of PW2 in particular, appellant’s counsel had submitted that PW2 having admitted under cross examination that they were sleeping when the accused persons poured petrol through the window before she woke up, her evidence did not directly link the appellants with the acts of pouring the petrol and setting the room on fire since the witness could not have been asleep and at the same time see the appellants committing the offence. Relying on a number of cases the most recent of which is Nwanze v. The Stare (1996) 2 NWLR (Pt.428) 1 on the quality of circumstantial evidence required to prove an offence, learned counsel argued that in the instant case, the circumstantial evidence relied upon by the lower court in convicting the appellants did not congently, irresistably, positively, unequivocally, unmistakenly and conclusively point to the appellants as the perpetrators of the offence alleged to have been committed to the exclusion of any other person to justify their conviction.
On the need for prosecution to prove the offence against the appellants beyond reasonable doubt, learned counsel referred to the evidence of PW2, PW3 & PW4 and observed that their evidence has raised serious doubt as to the guilt of the appellants. Citing the cases of Amusa v. The State (1986) 3 NWLR (Pt. 30) 536 and Musa v. The State (1996) 8 NWLR (Pt.468) 610 at 618-619, the appellants’ counsel urged this court to resolve the doubt in the present case in favour of the appellants whose identification by ‘PW2 in the circumstances described by that witness is doubtful according to counsel who also observed that there were material contradictions in the evidence of the star witness PW2 in her evidence in-chief, under cross examination and at the locus in quo on the identification of the appellants. Citing and relying on the decision of this court in Ajilare v. The State (1993) 4 NWLR (Pt.289) 572, the appellants’ counsel concluded that since the conviction of the appellants was based on the evidence of PW2 on the visual identification of the appellants at the locus in quo and whose identity was in dispute and that as the evidence of PW2 was not corroborated in material particular implicating the appellants, their appeal should be allowed and their conviction and sentence set aside.
Mallam M.L. Ibrahim, learned Director of Public Prosecution Kano State leading two other counsel for the respondent had contended that the prosecution at the lower court had discharged the onus placed on it in proving its case against the two appellants beyond reasonable doubt as required by law. Learned counsel argued that there was direct and circumstantial evidence linking the appellants with the unlawful acts that led to the death of the deceased to justify their conviction. He stressed that the evidence of PW2 on the identification of the appellants as being responsible for the acts that led to the death of the deceased particularly at the visit to the locus in quo which was accepted and relied upon by the lower court in convicting the appellants was in fact direct evidence. That the evidence of PW2 was also corroborated by the evidence of PW1, PW3, PW4 and PW5. Dismissing the wrong notion held by the appellants’ counsel that they were convicted only on circumstantial evidence, learned counsel to respondent pointed out that there was also direct evidence of PW2 supporting the conviction of the appellants apart from the circumstantial evidence which he also said was enough to sustain the conviction of the appellants having regard to the case of Kim v. The State (1991) 2 NWLR (Pt. 175) 622. Concluding his submissions on this issue, the learned DPP referred to the cases of Eze v. The State (1976) 1 SC 125 and Sugh v. The State (1988) 2 NWLR (Pt.77) 475 and urged this court not to disturb the findings of the lower court based on the credibility of the witnesses who testified at the lower court.
In a charge of murder or culpable homicide punishable with death, the burden is always on the prosecution to prove that:-
(a) the deceased had died;
(b) the death of the deceased Was caused by the accused; and
(c) the act or omission of the accused which caused the death of the deceased was intentional or with the knowledge that death or grievous badly hurt was its probable consequence.
See: Ogba v. The State (1992) 2 NWLR (Pt. 222) 164 and Abagede v. The State (1996) 5 NWLR (Pt.448) 270. It is also the law that the evidence relied upon may be direct or circumstantial or both. However in practice, where there is direct evidence of an eye witness or witnesses in support of the charge, it is hardly necessary to also rely on circumstantial evidence. What is important is that whether the evidence is direct, circumstantial or both, the evidence must establish the guilt of the accused beyond reasonable doubt as required by S.138(1) of the Evidence Act Cap 112 of the Laws of the Federation, 1990. The onus, in this connection, on the prosecution as a general rule never shifts and a misdirection on the question of onus of proof is fatal unless it can be shown that on a proper direction the result will be same. See: Aruna v. The State (1990) 6 NWLR (Pt. 155) 125 and Ozaki v. The State (1990) 1 NWLR (Pt.124) 92. It is also the law that the credibility of evidence adduced in a criminal trial for culpable homicide does not ordinarily depend on the number of witnesses that have testified. Evidence of a single credible witness if accepted and believed by the trial court is sufficient to justify or support a conviction. See: Ali v. The State (1988) 1 NWLR (Pt. 68) 1.
However, if there is inconsistency in the case of the prosecution such as to cast doubt on the guilt of the accused, the law requires that the accused should be given the benefit of such doubt to entitle him to acquittal and discharge. Onubogu v. The Stale (1974) 9 SC 1; Nwabueze v. The State (1983) 3 NWLR (Pt.86) 16; Kalu v. The State (1988) 4 NWLR (Pt.90) 503 and Nwanze v. The State (1996) 2 NWLR (Pt.428) at 11.
In the instant case, Sabuwa Dauda, the wife of the deceased who testified as PW2 was an eye witness to the fire incident which caused severe burns to the deceased which led to the death of the deceased 40 days later. The witness gave direct evidence that it was the appellants that came to their house on the night in question, poured some quantity of petrol through the window on the deceased, the witness and the contents of their room before setting them ablaze. The witness who knew the appellants before the night of the incident as the 1st appellant was her former boy friend, was quite emphatic in her evidence in-chief in court and at the house of the deceased and under cross examination that it was the appellants she saw and identified that night setting the deceased, herself and the contents of their room ablaze. The witness also testified that the deceased and herself were severely burnt as the result of the fire and were admitted for treatment at the Kano hospital where she was treated while the deceased died at the hospital. The learned trial Judge after a careful appraisal of the evidence of this witness, came to the conclusion that she was a very reliable witness and therefore accepted and relied on her evidence in convicting the appellants as charged. The learned trial Judge after appraising the evidence of the remaining prosecution witness along with the evidence of PW2, came to the following conclusion –
“I must say that the evidence that point to the guilt of the accused persons in this case is cumulative in nature. It is therefore my well considered view that from the direct and strong circumstantial evidence against the accused persons in this case. I have no hesitation in holding that the case for the prosecution has been proved beyond reasonable doubt against them as required by the provisions of Section 137(1) of the Evidence Act. I therefore find them guilty as charged and I convict them accordingly.”
The credibility of evidence does not ordinarily depend on the number of witnesses that testify on a particular point. The question is whether the evidence of one credible witness, on a particular point, is believed and accepted. If the answer is in the affirmative, it is sufficient to support a conviction. See: Ali v. The State (1988) 1 NWLR (Pt.68) 1. The evidence of PW2 on the identity of the appellants as the perpetrators of the criminal acts that caused the deceased to sustain serious burns that ultimately led to his death had not been shaken even under prolonged and rigorous cross examination. That evidence was believed and accepted by the trial court. By sprinkling petrol on the deceased and setting him on fire, it could be properly inferred that the appellants knew or had reason to know that death of the deceased would be the probable consequence of their act. It is trite that the assessment of credibility of a witness is a matter within the province of the trial court, as it is only that court that has the advantage of seeing, watching and observing the witness in the witness box. That court also has the liberty and privilege of believing him and accepting his evidence in preference to the evidence adduced by the defence. In Adelumola v. The State (1988) 1 NWLR (Pt.73) 683 at 690, Oputa, J.S.C. (as he then was) stated the rule more convincingly when he said “…belief can only be questioned on appeal if it is obviously against the logical drift of the evidence considered as a whole or against the impact of the wave of probabilities disclosed by the evidence.”
In the instant case, the evidence which induced the belief of the evidence of the prosecution witnesses particularly PW2 by the learned trial judge was the fact that they were all eye witnesses to the fire incident and also some of them knew the appellants before the night of the fire incident. The witnesses testified on what each of them saw, heard and did in the circumstances that led to the death of the deceased. The learned trial Judge was therefore right in believing the witnesses in convicting the appellants. I see no reason to disturb the findings of the learned trial Judge in this respect.
On proof by circumstantial evidence what will meet the requirement of onus of proof in criminal trials, is the evidence that fixes the accused to the crime with sufficient congency and which excludes the possibility that someone else had committed the offence. See: Fatoyinbo v. Attorney-General, Western Nigeria (1966) WNLR 4. In other words once circumstantial evidence conclusively points to the accused as the perpetrator of the offence and the same has been adequately scrutinized, believed and accepted by the trial court, the onus shifts to the accused to rebut the presumption of guilt or to cast a reasonable doubt on the prosecution’s case even though by preponderance of probabilities. See: Onakpoya v. Queen (1959) SCNLR 384 and Kalil v. The State (1993) 6 NWLR (Pt. 300) 385. In the present case, apart from the circumstantial evidence of PW1, PW3, PW4 & PW5 scrutinized, believed and accepted by the learned trial Judge, the direct evidence of PW2 also analyzed, believed and accepted by the same learned trial Judge had clearly fixed the appellants to the acts that led to the death of the deceased with sufficient congency thereby excluding the possibility that someone else other than the appellants had committed the offence. The evidence adduced by the appellants and their witnesses had not rebutted the presumption on their guilt. In resolving this issue, I entirely agree with the learned D.P.P. for the respondent that the evidence adduced by the prosecution which was appraised and accepted by the lower court is enough to sustain the conviction of the appellants of the offence of culpable homicide punishable with death under S.221(b) of the Penal Code.
The second issue for determination is what is the effect of the omission by a witness to mention the name or names of person or persons seen committing an offence at the earliest opportunity. This issue as framed has clearly raised only an academic question the answer to which may not affect the appeal one way or the other. For the issue to be relevant, it has to relate to the present case on appeal by specifically naming the witness who had failed to name the persons seen committing an offence at the earliest opportunity. All the same, being a criminal appeal, I shall treat the issue in the interest of justice as there was no objection to the validity of the issue by the respondent.
It was argued by the appellants’ counsel that the evidence of PW2 on which the lower court relied heavily in convicting the appellants also shows that the witness did not mention the names of the appellants as the perpetrators of the heinous act of house burning which occasioned the death of the deceased to the police in the course of investigation of the circumstances surrounding the incident. Counsel referred to the record of the lower court and submitted that since the trial Judge had accepted or agreed that PW2 did not mention the names of the appellants to the police as being responsible for the fire incident, the learned trial judge should have found inconsistency in the evidence of PW2 to justify his rejection of the evidence. Counsel referred to Abudu v. The State (1985) 1 NWLR (Pt.1) 55 and Duru v. The State (1993) 3 NWLR (Pt.281) 283 and submitted that in the circumstances of this case, based on the inconsistency in the evidence of PW2, her evidence became unreliable and should have been ignored by the learned trial judge and this should have led to the discharge and acquittal of the appellants.
The learned DPP for the respondent on the other hand had observed that having regard to the cases cited and relied upon by the appellants in support of this issue, the learned trial judge was only required to be careful in accepting the evidence of PW2 without sufficient explanation of why PW2 did not mention the names of the appellants to the police. Counsel submitted that it is clear from the findings of the lower court on the evidence of PW2 that the court in fact had exercised the required caution before accepting the evidence. In addition, counsel pointed out that the facts in the cases cited and relied upon by the appellants are not the same as the facts in the present case. That the visit of the lower court to the locus in quo and the corroborative evidence of PW3, PW4 & PW5 were some of the factors that influenced the lower court in accepting the evidence of PW2, concluded the learned counsel to the respondent who cited the case of Ogoala v. The State (1991) 2 NWLR (Pt.175) 509 and maintained that the act of PW2 in not mentioning the names of the appellants to the police did not amount to any contradiction to warrant rejecting her evidence by the trial court. That all that happened in the present case is that the evidence of PW2 before the trial court contained a little more than what she told the Police and that this did not amount to contradiction in law.
In resolving this issue, it is not in dispute that in her evidence in-chief which PW2 gave on 12/5/88, she clearly identified the appellants as follows at page 4:-
I know the accused persons in the dock. The first accused is by name Ibrahim Khaleel and was my former boy friend. The second accused is a junior brother to the first accused. His name is Abubakar Khaleel.”
In the course of her evidence in-chief at page 5 of the record, PW2 also explained the circumstances under which she was able to identify the appellants on the night of the fire incident when she said –
“In the night of 14th to 15th August, 1987, I was sleeping together with the deceased in his room when the first accused came with a V/Wagon beetle car. The deceased peeped through the window and saw the first accused with his friend. The deceased was about to go out to meet them but I refused to allow him to go out. I also saw the people through the window. Although it was night there was electric light there so I could see them.” (italics supplied).
However, under vigorous cross examination by the learned counsel to the appellants whose aim no doubt was to destroy her evidence particularly as it related to the identification of the appellants, all the same PW2 appeared to have even improved on the quality of her evidence. She said at page 6 as follows:-
“The deceased and the first accused were friends and they lived in the same vicinity. I saw the two accused persons when they came to the house in late hours of the morning of 15/8/87. The two accused persons were the persons that came to our house and set us on fire after pouring petrol in the room. I made one statement to the police.
When I first made statement to the police I did not say that I saw the two accused persons in the night of that day in question. I saw the two accused persons on that day. The two accused were the two persons that came to our house. I did not mention their names when I made my statement to the police but I know them very well. The two accused were the ones who came by our window and my late husband even showed them to me through our window. I was asleep when the accused persons poured petrol through our window and I immediately wake up. The two accused persons came in a V/wagon car of pink colour. The first time the first accused came that night he came with his friend called Husaini. I saw the two accused persons that night. I am prepared to show our house from where we saw the accused persons.” (italics mine).
It is quite plain from the evidence of PW2 under cross examination that although she did not tell the police the names of the appellants when she made her statement to the police, she was quite sure on the identification of the appellants whom she had known very well before the date of the incident. In other words the fact that PW2 knew the appellants very well, the 1st appellant being her former boy friend and also a friend to her husband the deceased, while the 2nd appellant is a brother to her former boy friend whom she also knew very well before the light of the fire incident, I am of the firm view that in the circumstances of this case the possibility of a mistaken identity of the appellants by PW2 is completely ruled out. In any case it is not clear from the record when her alleged statement to the police was made. It is also not clear whether the statement was oral or in writing. It is therefore not easy to determine the earliest opportunity PW2 had in mentioning the names of the appellants as being responsible for the fire incident in the house of the deceased. In any case the evidence on record shows that it was the deceased himself who told the police the names of the appellants in the course of the investigation.
It is indeed true that the fact that PW2 did not mention the names of the appellants in her statement to the police while in her evidence in-chief she identified them by their names shows a discrepancy between her statement to the police and her evidence. However, this shortcoming cannot be described as contradiction to warrant rejecting her evidence. See: Gabriel v. The State (1989) 5 NWLR (Pt.122) 457 and Ogoala v. The State (1991) 2 NWLR (Pt.175) 509 at 525-526. In the present case such minor discrepancies are in fact quite glaring in the evidence of PW2 in-chief and under cross examination. For example in her evidence in-chief at page 5 of the record, PW2 said the 1st accused came to their house with a V/wagon beetle car. However under cross examination she improved the quality of her evidence by not only stating the type of car the first accused came to their house with, but also the colour of the car namely – “a V/Wagon car of pink colour.” Similarly, in her evidence in-chief, PW2 said the 1st accused came to their house in the first instance with a friend whose name she did not mention. In her evidence under cross examination however, PW2 clearly said the 1st accused came to their house in the first instance with his friend Husaini. Surely these discrepancies in the evidence of PW2 in-chief and under cross examination cannot be termed serious contradictions capable of rendering her evidence in this respect unreliable. See: Nasamu v. The State (1979) 6-9 SC 153; Ndike v. The State (1994) 8 NWLR (Pt.360) 33; (1994) 9 SCNJ 46 at 54 where Ogwuegbu, J.S.C. said
“It is not all contradictions in the testimony of the prosecution witnesses that are fatal to its case. For any conflict on contradiction to be fatal, it must be substantial and fundamental to the main issue in question before the court. What is material depends on the facts of each case.”
Although learned counsel to the appellants in his oral submission before this court also attacked the action of the learned trial judge in exercising his power under S.237(1) of the Criminal Procedure Code of Kano State to recall PW2 to testify at the locus in quo where the witness further demonstrated to the court the circumstances under which she was able to identify the appellants, it is quite clear that there is no ground of appeal challenging that conduct or decision of the learned trial judge which he said was done in the interest of justice. The arguments of the learned counsel for the appellants which questioned the right of the learned trial judge to suo motu conduct the visit to the locus in quo on recalling PW2 under S. 237(1) of C.P.C. cannot in my view be covered under the omnibus ground of appeal. In any case, there is no doubt whatsoever that S. 237(1) & (5) OF THE C.P.C., have clearly given the lower court the power to call or recall any witness if his evidence appears to the court to be essential to the just decision of the case.
The circumstances that led to the visit to the locus in quo are quite clear from the record of the trial court. At the end of her evidence in-chief at page 6 of the record PW2 said-
“I saw the two accused persons that night. I am prepared to show our house from where we saw the accused persons.”
There and then learned counsel to the accused persons now appellants Mr. Augbogu said at page 7 –
“I am making an application for the court to visit the locus in quo.”
His application was granted by the learned trial judge who ruled as follows;-
“Case adjourned to 21/6/88 for continuation of hearing. On that day the court will visit the house where the incident happened.”
However on the day the visit to the locus in quo was to be undertaken, the appellants counsel said to the lower court – “Mr. Anigbogu: This case is for continuation of the hearing and we are to visit the locus in quo today but I have just a question to ask PW2 before we go.”
The one question turned out to be a further cross examination of PW2 on how she was able to identify the appellants on the night of the fire incident. The evidence of PW2 under this further cross examination reads.
“The two accused persons peeped through the window. The two accused persons came near the window but it was the first accused that peeped through the window. The window is made of iron. The window was opened but the door was closed. I saw the two accused persons on that day. When the first accused came to the house the first time he came with his friend called Husaini. The second time the first accused did not come with Husaini. When the first accused came back the second time he came in a car. I do not know whether Husaini was in the car. When the police arrived they asked me of the incident that happened on that day. When the two accused persons came they poured petrol on us through the window. When myself and my husband woke up we saw the two accused clearly before they threw match fire into the house.” (Italics supplied)
Then for undisclosed reason, the appellants’ counsel decided to withdraw his earlier application for the court to visit the house of the deceased in order to observe the conditions under which PW2 was able to identify the appellants. As the application was not opposed, it was granted by the lower court and the visit to the locus was called off. However, since it was PW2 herself who offered in her evidence in-chief to show the court their house from where she was able to identify the appellants on the night of the fire incident, I am of the view that the power of the lower court under S.237(1) & (5) of the C.P.C. was correctly exercised in the interest of justice as the visual identification of objects at the deceased’s house by PW2 particularly the location of the security lights at the scene and the distance of only 10 feet from the deceased’s house to the road are in my view essential for the determination or just decision of the case because the pieces of evidence have no doubt thrown more light to the evidence of PW2 on the identification of the appellants on the night of the fire incident. The visit to the locus in quo had no doubt removed the possibility of the appellants’ counsel raising any doubt in his final address on the correct identification of the appellants particularly when the counsel himself did not raise any objection to the visit and in fact duly cross examined PW2 at the locus in quo. This issue is therefore resolved against the appellants.
The last issue for determination in this appeal is whether having regard to the evidence adduced at the trial there exists a nexus or link between the cause of death and the appellants. It was submitted for the appellants that there was only a charge under S.221(b) of the Penal Code against the appellants that there was no charge of conspiracy. Referring to the evidence on record, appellants’ counsel observed that there was no evidence on record as to who poured the petrol on the deceased’s house or who did the lighting of the match that followed the pouring of petrol which set the house on fire and the subsequent burning of the deceased leading to his death. That as there is no clear evidence from the evidence of PW2 as to who among the two appellants did what, there was the possibility that other persons might have been responsible for the acts and not the appellants. That as PW2 was sleeping at the time the appellants were alleged to have visited the deceased’s house, it was not possible for the witness to have identified’ the appellants. Learned counsel further contended that none of the evidence of the remaining prosecution witnesses, 1, 3, 4 & 5 really linked the appellants with the commission of the offence for which they were charged and convicted. Relying on a number of cases particularly Onah v. The State (1985) 3 NWLR (Pt.12) 236, learned counsel to the appellants argued that since the appellants have not been linked by credible evidence to the acts that caused the death of the deceased, they are entitled to acquittal and discharge.
It was the contention of the learned DPP for the respondent that the evidence of PW2, PW3, PW5 and PW1 had clearly linked the appellants with the acts that caused the death of the deceased. That PW1’s testified that the deceased died of septic shock secondary to infected burn wounds, while the remaining PW2, PW3, PW4 & PW5 all testified on how the deceased was burnt and admitted to the hospital. Learned counsel therefore pointed out that there is strong, direct and circumstantial evidence in the case linking the appellants with the death of the deceased as rightly found by the learned trial judge.
What has been raised in this issue is only a question qf whether or not the prosecution in this case had proved its case beyond reasonable doubt as required by law against the appellants. This question has already been clearly covered adequately in the resolution of Issues Nos. 1 & 2 in this appeal which had firmly through direct and circumstantial evidence closely scrutinized, appraised, accepted and relied upon by the learned trial judge, fixed the appellants as having caused the death of the deceased under circumstances justifying their conviction under S.221(b) of the Penal Code. It is indeed true that in her evidence, PW2 did not say who among the appellants poured the petrol and who among them threw the match light into the room to set it on fire. The answer of course is simple. PW2 testified on what she was able to see that night. The fact that the appellants were standing at the window and only peeped through it to carry out their acts of pouring petrol and setting the room on fire, the fact that she did not see who specifically did the two acts among the appellants is not fatal to the case of the prosecution as the appellants were jointly charged for the pouring of the petrol and the throwing of the match light into the deceased’s room to set it on fire. What is important and relevant in this respect to the case of the prosecution, is the fact that PW2 was quite sure that it was the appellants she saw that night through the window committing the criminal acts that set the room ablaze which resulted in the deceased sustaining serious burns that caused his death.
It is trite law that where the entire appeal revolved around issues of fact and there is nothing on the record to show that the findings of the trial court is demonstrably erroneous or perverse, it ought not to be interfered with or disturbed by the Court of Appeal. Sugh v. The State (1988) 2 NWLR (Pt.77) 475 at 489; Babuga v. The State (1996) 7 NWLR (Pt.460) 279 at 293. Undoubtedly the gravamen of this appeal centred principally on the identity of the appellants as the perpetrators of the acts that were responsible for the fire incident that gutted the room of the deceased which in turn resulted in the deceased sustaining serious burn wounds that ultimately caused his death. It is indeed the law that where the quality of the evidence of identification of the accused is poor, the trial judge should return a verdict of not guilty unless there is other evidence which goes to support the correctness of the identification. In a recent decision of the Supreme Court in Chukwu v. The State (1996) 7 NWLR (Pt.463) 686. Belgore, J.S.C. had this to say at page 702 on the duty of court to exercise care on the evidence of identification of an accused person –
“Where the quality of identification evidence is poor the judge should return a verdict of not guilty unless there is other evidence which goes to support the correctness of the identification. The evidence of identification can be poor even though it is given by number of witnesses. The witnesses may only have had the opportunity of a glance or a longer observation made in difficult conditions.”
In the present case, the quality of the identification evidence of the appellants by PW2 is far from being poor and did not arise from a glance of the appellants or a longer observation made in difficult conditions. The appellants were known to PW2 before the night of the incident and that she saw and identified them by means of security lights which were seen on the day the court visited the house of the deceased. In fact the quality of the identification evidence of PW2 could not be shaken or put in doubt even under persistent cross examination, as the witness was cross examined three times on the issue, namely, after her evidence in-chief, on the day the appellants’ counsel withdrew his application for the visit to the locus in quo and finally at the locus in quo. The finding of the learned trial judge on the correctness of the identification of the appellants by PW2 in the circumstances of this case, in my view, is quite in order.
In conclusion, I do not find any merit in this appeal. The case against the appellants was proved beyond reasonable doubt. Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. See: Miller v. The Minister of Pensions (1947) 2 All ER 372 and Akalezi v. The State (1993) 2 NWLR (pt. 273) 1 at 13 and NDIKE V. THE STATE (1994) 9 SCNJ 46 at 57; (1994) 8 NWLR (Pt.360) 33. It must be stated that the learned trial judge had meticulously reviewed the evidence adduced by the 5 witnesses called by the prosecution and the evidence of the appellant and their 3 defence witnesses before coming to the conclusion that the appellants were guilty of the offence charged under S.221(b) of the Penal Code. As nothing has been advanced in this appeal succeeded in changing the fate of this case, I do not see any justification in disturbing the verdict and sentence of the learned trial judge in convicting the appellants of culpable homicide punishable with death and sentencing them to death.
The appeal is accordingly hereby dismissed. The conviction and sentence of the appellants by ‘the trial court under S.221(b) of the Penal Code are hereby affirmed.
Other Citations: (1997)LCN/0286(CA)
