Usman Shehu Bashir v. The State (2023)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED BABA IDRIS, JCA (Delivering the leading judgment)

This is an appeal against the judgment of the High Court of Justice, sitting in Kaduna in charge number. KDH/2/17C/2016 convicting the appellant of rape and sentencing him to death by hanging.

By an amended charge dated the 23rd of March, 2020, the appellant herein was charged before the lower court as follows:

“That you, Usman Shehu Bashir on or about the 23rd day of March, 2015 at Hayin Ojo Sabon Gari, in Sabon-Gari Local Government Area of Kaduna State, you caused the death of one Fatima Zakariyya (a two years 9 months old girl) by doing an act to wit; forcefully inserting your penis into her vagina with the knowledge that death would be the probable consequences of your act and you thereby committed an offence punishable under section 221 of the Penal Code and triable by the High Court of Justice, Kaduna State.”

At the hearing, the appellant pleaded not guilty to the charge and the respondent opened its case against the appellant by calling 5 (five) witnesses namely the father and mother of the deceased, a relation of the father of the deceased and two investigating police officers.

In his defence, the appellant denied knowing anything about the allegation made against him but that he was threatened to be beaten and in fact, he was beaten so he had to write down his confessional statement, confessing to the crime.

The matter went into trial within trial and the respondent called 2 (two) witnesses while the defendant testified on his own behalf. The learned trial Judge delivered his ruling and overruled the objection to the admissibility of the two statements in English language and the Hausa translation.

The said confessional statements were admitted in evidence and marked as exhibits P1(a) and (b) and P2(a) and (b) respectively. The photographs of the deceased were also tendered in evidence.

The learned trial Judge delivered judgment in the case and convicted the appellant and he was sentenced to death by hanging.

Dissatisfied with the judgment of the trial court and determined to prove his innocence, the appellant filed an amended notice of appeal on the 7th day of April, 2022, raising 3 (three) grounds of appeal. The parties thereafter filed their respective briefs of argument.

In the appellants brief of argument which was deemed properly filed and served on the 30th day of January, 2023 and settled by B. M. Mukkaddam Esq., these 3 (three) issues were distilled for determination as follows:

(1) Whether or not the lower court was right in convicting and sentencing the appellant to death by hanging until certified dead placing reliance of exhibits P1(a) & (b) and exhibit P2(a) & (b) and exhibit 4 without same being corroborated by an independent evidence. (Distilled from ground 1 of the notice of appeal)

(2) Whether or not the lower court was right in convicting and sentencing the appellant to death by hanging until certified dead when the guilt of the appellant was not proved beyond reasonable doubt. (Distilled from ground 2 of the notice of appeal)

(3) Whether or not the judgment of the lower court when it convicted and sentenced to death by hanging until pronounced dead relying on the testimonies of PW1, PW2, PW3, PW4 and PW5 which was contradictory in nature. (Distilled from ground 3 of the notice of appeal)