Mande Ali Vs The State (1972)

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A. FATAYI-WILLIAMS, JSC

The appellant was convicted by Hassan, J., in the Sokoto High Court on 29th September, 1971, of culpable homicide punishable with death and was sentenced to death.

The case for the prosecution was that the accused, Mande Ali, attacked Umaru Maude (the deceased) with a sword between Kotorkoshi and Wazuji villages in Kotorkoshi District in the North Western State some time in October, 1970, and that he “caused the death of the said Umaru Maude by severing his hand and left shoulder with a sword”.

The facts relied upon by the prosecution centered around the testimony of Ai Mutti (2nd P.W) who is the mother of the deceased. This witness testified that, on the day of the incident, Umaru Maude was sent to Kuzuli village to inform his elder sister that his younger sister had just had a baby. Umaru did not return as expected. Later, the 2nd P. W heard some children shouting and, as a result, she ran to the house of the accused. She found the accused standing outside. The parents of the accused one of whom (Aliyu Wuzogi) testified as P.W.3. were also there. The 2nd P.W then described what she did as follows:-

“I asked the accused that I have heard that you killed Umaru. The accused replied ‘yes. 1 have killed Umaru na’. I asked the accused three times as to whether he fought. The accused did not answer me. I then left. I then returned to my house. When I returned, 1 saw PW.l”

Under cross-examination, the witness confirmed her testimony-in-chief as follows:-

“I do not know the cause of Umaru’s death, but the accused confessed to me that he killed Umaru. I saw the father, mother, and the accused in the house on that day. I do not know whether the accused and Umaru were on bad terms. The accused told me that he killed Umaru.”

Abu Maude (1st P.W) the father of the deceased testified that some time after the deceased had gone to deliver the message to his elder sister, he (1st P.W) heard the elder sister of the accused crying. As a result, he decided to go to Kotorkoshi village and left for the village alone. On the way he saw his son Umaru in a pool of blood. Umaru, according to the 1st P.W, had been slashed on the left shoulder and also on the right hand. The cut on the left shoulder was very deep and almost severed the shoulder from the rest of the body. He also noticed that four of Umaru’s fingers “had been separated from the hand”, Umaru was, however, still alive. The 1st P.W then described what he did when he first saw his son as follows:-

“I spoke to the deceased Umaru when I first saw him lying down. I asked Umaru what caused the slashes on his body. Umaru replied that he did not know the cause. Umaru said nothing else.”

Although the 1st P.W admitted knowing the accused and also that they both lived in the same town he said that he did not know why the accused was in court. He also said he did not know who caused the death of his son.

Aliyu Wuzoji (P.W.5) the father of the accused and one of those whom Ai Muti (2nd P.W) said was present when the accused admitted to her that he was the one who had attacked the deceased, also testified for the prosecution. He was, however, not questioned by both the prosecution and the defence about the admission alleged to have been made in his presence by the accused to the 2nd P.W.

The only other witness who testified for the prosecution is P.C. Samari Babbada (5th P.W), the policemen who arrested the accused. He stated that after his arrest he recovered a sword from the accused at the police station but that there was no blood stains on the sword when he took it from him. As a result, the witness did nothing with the sword. The written statement allegedly made by the accused was rejected by the learned trial Judge on PAGE| the ground that he was not satisfied that it was made voluntarily. Under cross-examination, Babbada agreed that it was usual for shepherds in the area to go about with swords when they were looking after their flock. The sword was not tendered in evidence.

The doctor who performed the post mortem examination on the body of the deceased was not available to testify for the prosecution. His report (Ex. ‘A’) was, however, admitted in evidence by the learned trial Judge. He had the power to admit it by virtue of the provisions of Section 249 of the Criminal Procedure Code.

The accused did not testify in his defence, He based his defence mainly on the evidence adduced by the prosecution.

The learned trial Judge, in a reserved judgment convicted the accused of culpable homicide punishable with death after finding as follows:-

“I have no hesitation in finding as a fact that the prosecution have proved beyond reasonable doubt that the act of the accused caused the death of Umaru. The learned state counsel submitted that this had been proved by virtue of the confessional statement made to P. W.2 coupled with Exhibit ‘A’ and the fact of P.W.1 and 2 seeing the injuries on Umaru’s body. Mr. Oyinloye for the defence submitted that as P.W.2 was the mother of the deceased, she was an interested witness, and consequently her evidence ought to be rejected. Mr. Oyinloye had no evidence to show bias or partiality on the part of P.W.2. and merely to make a bold assertion to this effect in his address, cannot operate as a valid reason to disregard P.W.2’s evidence.

“Furthermore, I carefully observed the manner in which P.W.2 gave her evidence and am completely satisfied that she told the truth………Thus I accordingly find that the accused acknowledged the truth of P.W.2’s statement by confessing to the killing of Umaru. In addition, the multiple injuries found by Dr. Abdulla on the left-side of Umaru’s neck was sufficiently consistent with the location of the injuries observed by P.Ws. 1 and 2 on Umaru’s body. The aforementioned items of evidence leaves no room for any doubt that it was definitely the act of the accused that caused the death of the deceased.”

Before us on appeal, Mr. Bashua, who appeared for the appellant, submitting that the learned trial Judge was in error in holding that it was the act of the accused which caused the death of the deceased. Learned counsel referred us to the evidence and pointed out that the only evidence which linked the accused with the attack on the deceased was that of P.W.2, who was the mother of the deceased. As against this, it was further submitted, there was the testimony of P.W.1, the father of the deceased, who said that the deceased told him that he did not know who had attacked him

Furthermore, the evidence of P.W.3, the father of the appellant, who the P.W.2 said was also present at the time the appellant made his confession to her said nothing about the confession and was not, in fact, examined by the prosecution about it. Finally, learned counsel submitted that there was nothing left to support the case of the prosecution once this confession of doubtful veracity was taken away. This was because the circumstances of the confession, which could have been corroborated but was not, were not borne out by the evidence adduced.

Mallam Kalgo, the Acting Deputy Solicitor-General, who appeared for the Respondent, was unable to support the conviction. We thought he was right in this decision.

Taken by itself, the testimony of the 2nd P.W sounds plausible. Considered however, against the background of the whole case, including the medical report (Ex. ‘A’), and the evidence of the 1st and 3rd P.Ws, it seems to us that the evidence should have been received with caution. In any case, it should have raised grave doubts in the mind of the learned trial Judge as to who it was that inflicted the fatal injuries on the deceased. Our reasons for this view are as follows.

The 2nd P.W is the mother of the deceased and must be deemed to have a maternal interest in bringing to book whoever she knew or thought she knew to be the attacker of her son. She said, no doubt in clear terms, that the appellant admitted to her that he was the one who attacked her son. As against this, there is the testimony of the 1st P.W, the father of the deceased, who said, also in unequivocal terms, that when he asked the deceased at the scene of the attack who it was that had attacked him, the deceased replied that he did not know. On the face of this conflicting evidence, is it not just possible that the 2nd P.W was mistaken in her assertion? There is also the testimony of the 3rd P.W, the father of the appellant. The 2nd P. W said that this witness was present when the appellant admitted attacking the deceased, but strongly enough the prosecution did not ask him about this crucial admission. We can only assume that they knew what his answer would be. Added to all these is the medical report (Ex. ‘A’) which referred to a third set of injuries or cuts on ‘the left side of forehead and left side of face”, which the 1st and 2nd P.Ws ought to have notice but never mentioned. It must be remembered that the 1st P.W said that he washed away the blood on the body of the deceased with water.

In circumstances such as those surrounding this case, it is not, in our view, necessary for the defence to prove bias on the part of any of the witnesses for the prosecution. The likelihood of bias is enough. We, therefore, think that the learned trial Judge was in error in observing that the learned counsel for the defence did not adduce any evidence “to show bias or partiality on the part of P.W.2.”

Furthermore, it is not enough for the learned trial Judge to say that he was “completely satisfied that the (P.W.2) told the truth”, he must also be equally satisfied that P.W.1, to whom the deceased said that he did not know who caused his injuries, was not speaking the truth. This the learned trial Judge has failed to do. There is also one other point. The learned trial Judge found that the appellant “acknowledged the truth of P.W.2’s statement by confessing to the killing of Umaru”. We must point out that there was no time judging by the evidence adduced at the trial, when the appellant made any such confession. As we pointed out earlier, his written statement to the police was rejected by the learned trial Judge. He did not testify in his defence but rested his case on the evidence adduced by the prosecution. The learned trial Judge was therefore also in error in finding that the appellant confessed to the killing of Umaru and thereby acknowledged the truth of P.W.2’s statement.

All these matters which we have spotlighted above should have raised serious doubts in the mind of the learned trial Judge as to the veracity of the admission alleged to have been made by the appellant to the 2nd P.W. For our part, we are not in any doubt that if the learned trial Judge had considered all these relevant points, he would have given the accused the benefit of the doubt. It is trite law that in criminal cases, the onus is always on the prosecution to prove their case beyond reasonable doubt. Under our law, the accused could not be called upon to prove his innocence. We were convinced that the prosecution have failed to discharge this onus in the instant case.

For all these reasons, we allowed the appeal at the hearing on 12th October, 1972, set aside the conviction of the appellant, and acquitted and discharged him. We now set out our reasons for doing so.

Other Citation: (1972) LCN/1378(SC)