Sabo Kumbul V. The State (1972)

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O. ELIAS, C.J.N. 

On 13th October, 1971, at the Bauchi Judicial Division, the accused was charged with culpable homicide punishable with death in that on or about 21st March, 1971, at Bauchi, he set Macindo on fire with knowledge that death would be the probable consequence of his act. The accused was convicted of the offence charged and sentenced to death under section 221 of the Penal Code.

On 26th May, 1972, during the Supreme Court session held in Kaduna, we allowed the appeal against conviction and we now give our reasons.

The facts briefly were that on a date in March 1971, the deceased was found in front of a beer shop in Bauchi, that the accused took grass from the roof of a house nearby, placed it on the deceased and then set fire to the grass by means of a burning piece of wood. Sanda Anjo, 6th p.w.,a married woman who sold local liquor at the premises, testified that, on a Sunday afternoon, she found Macindo “dead” and that, shortly afterwards, the accused placed some grass on the man’s body, set fire to the grass with a burning piece of wood, then placed more grass over the body in consequence of which “Macindo cried and struggled but could not rise.” She further testified that she had earlier seen people bring Macindo and dump him outside her premises to which Macindo came frequently. Shakaru Bauchi, 7th p.w., testified that he was some 30-35 yards from Macindo when the accused arrived, placed his bicycle against the drinking house, took grass from a nearby roof which he put on Macindo, and then “took a piece of burning wood and put it on the grass which caught fire.” According to this witness, “Macindo had not moved up to this point, but when the fire began he squirmed and shouted Oh God! Oh God!”. The witness stated that the squirming lasted 20 minutes. Again, Sgt.-Maj. A. Kola, 1st p.w., stated that the incident took place at 2.30 p.m. and that, on being informed by Shakaru Bauchi (7th p.w.) of what the accused was doing outside the beer house in which he was drinking at the time, he came out, saw the body on fire, and said to the accused:

“During the war 1 have never seen you do such a thing.”

According to this witness, the accused replied: “I have done it.” This witness (1st p.w.) also explained that “the body was twitching in the fire and had no chance of survival”. Private Yanga Hamman (p.w. 2) of the same battalion put the time at 4 p.m. and that, although he was not sufficiently close to say with what the grass was lit and although he left the scene before the 1st p.w., he stated that the body on the ground made no sound until he left the scene.

Dr. K. M. Bialas, Medical Officer of Bauchi who conducted a postmortem on the deceased on 23rd March, 1971, gave evidence which the learned trial judge summarised as follows:-

“Apart from burns the doctor described several injuries so serious that the deceased could not in any event have survived. There were stab wounds, with burned blood in them, indicating the deceased was alive when stabbed. The doctor offered his opinion that deceased was still alive when the fire was lit, because burned blood was found outside the tissue of the body. This had come from the arteries of the body showing the heart was beating when the fire started. It was unlikely deceased had bled to death because no major blood vessel had been severed, though he could not have survived peritonitis from infection of the peritoneal cavity resulting from three penetrating wounds in the intestine.”

The learned trial judge observed that, when questioned by learned counsel for the defence, the doctor agreed that “a heart may continue to beat for some minutes after a person is registered as dead.”

It is interesting to note that the accused elected to rely on the cautioned statement which he made to the police, 3rd p.w., to the effect that at about 2.30 p.m. on 21st March, 1971, two corporals (one of whom was injured on the left hand) dragged what he described as a “dead body” and were kicking it; and that the wounded corporal carried a knife and he the accused then ran home. He declined to give evidence or call witnesses. It was his counsel’s contention that on the evidence before the court Macindo was dead before the fire was lit and that his client should accordingly be acquitted in view of the discrepancies in the prosecution evidence. The learned trial judge, however, held as follows:-

“I am convinced on the testimony given that the victim was not dead when the fire was lit. Two witnesses heard Macindo cry and there is abundant evidence that his body squirmed or twitched in the fire. The expert medical witness said a dead body might give some movement when burned, but the degree of movement described by the witnesses surpasses this and I am convinced that the fire was set on a dying, but not dead man. In arriving at this conclusion I find support from the medical evidence that burned blood from the arteries was found outside the tissues of the body.”

We do not agree with this conclusion of the learned trial judge in so far as his own findings are not free from contradictions. We observe that the evidence of Private Yanga Hamman (p.w. 2) who said that he heard no sound from the burning body should not have been so lightly discounted by the learned trial judge, nor do we consider the medical evidence as definitive of the exact cause of death as the learned trial judge would seem to have assumed. On the other hand, we agree with the learned trial judge when he confessed:-

“To this court’s knowledge the present situation is unique. There is no evidence that accused was a participant in inflicting the wounds from which Macindo would in any event have died. It is therefore different from R. v. Church (1965) 49 Cr. App. R. 206, where the prisoner threw a woman into a river whom he had seriously injured. An appreciable time later she died from drowning. The Court of Criminal Appeal held that on murder, the proper direction to the jury was that if they regarded his behaviour from the moment when he first struck her to the moment he threw her into the river as a series of acts designed to cause her death or grievous bodily harm, it was open to them to convict of murder.”

If the learned trial judge had then proceeded to give the accused the benefit of the doubt as to whether the accused participated in inflicting the wounds from which the deceased would in any event have died, there would have been little to disagree with. The learned trial judge however,went on to hold as follows:-

“In the present case I find that by wilful and premeditated acts, which to his knowledge would probably, if not certainly, cause death, the accused destroyed any chance the victim had of recovering from the serious injuries he had sustained. That chance, however remote, existed, but accused wickedly and callously removed such slender hope of survival which the victim had. I also observe that the attitude of the bystanders was deplorable, but it is the accused who must deservedly pay the penalty for his shocking crime against a helpless person.”

This, if we may say so, is a verdict that is not easy to support. To deprive a deceased, as to whom there is no clear evidence whether he was dead or alive at the time fire was set to his body, of any chance he may have had of recovering from certain serious injuries inflicted by an unknown person, might possibly constitute a criminal offence involving burning or desecration of a corpse, but it would not seem to us to come within the provision of section 221 of the Penal Code involving culpable homicide punishable with death.

The crucial question, in our view, is: At the time the accused set fire to the deceased, was the body dying or dead If dying, the accused’s crime would be culpable homicide under section 221 if and only if there was incontrovertible evidence that it was in fact merely dying. In the present case there was no incontrovertible evidence that the body was a dying one. On the contrary, all the evidence on the point was conflicting and therefore created a doubt the benefit of which should be given to the appellant.

As we do not consider the offence of culpable homicide punishable with death under section 221 of the Penal Code proved against the appellant, we allowed the appeal and discharged and acquitted the appellant.

SC.50/1972