Na?an Upahar & Anor V. The State (2002)

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OBADINA, J.C.A

This is an Appeal against the judgment of the High Court of Benue State sitting in Makurdi, presided over by Honourable Justice T.U.F Puusu. The appellants were charged with the offences of conspiracy to commit rape, rape and abatement of rape, punishable under sections 97, 85 and 283 of the Penal Code respectively.

The charge against the appellants reads as follows:

“FIRST COUNT

That you Na’an Upahar ‘M’ and Aondongu Annyarev ‘M’ on or about the 2nd day of August, 1994 at Mbanyom Village in Gwer Local Government Area within jurisdiction agreed to do an illegal act, to wit commit rape on one Miss Ushitile Tyoshar ‘F’ and the same act was done in pursuance of the agreement and you thereby committed an offence punishable under section 97 of the Penal Code.

SECOND COUNT

That you Na’an Upahar ‘M’ on or about the 2nd day of August, 1994 at Mbanyom in Gwer Local Government Area within jurisdiction committed rape on one Miss Ushitile Tyoshar (then 12 year old) by having sexual intercourse with her against her will and without her consent and you thereby committed an offence punishable under section 283 of the Penal Code.

THIRD COUNT

That you Aondongu Annyarev ‘M’ on or about the 2nd day of August, 1994 at Mbayom in Gwer Local Government Area within jurisdiction abetted the commission of the offence of rape on one Miss Ushitile Tyoshar ‘F’ by Na’an Upahar by doing an act to wit:- you held her legs apart and tore her pant to enable Na’ an Upahar penetrate into her and the act was committed in consequences of your abatement and that you have thereby committed an offence punishable under section 85 of the Penal Code read together with section 283 of the Penal Code”.

To prove the charge, the prosecution called four (4) witnesses and tendered four (4) exhibits. Both the appellants testified for themselves and called two (2) witnesses, namely:- their respective fathers.

The case for the prosecution is that on the 2nd day of August, 1994, the prosecutrix (Ushitile) who testified as PW3 had gone to the village stream to fetch water and was on her way home when the appellants met her. They forcibly removed the water she was carrying from her head, pushed her into the bush while the 1st appellant removed his shorts and forcibly had sexual intercourse with her, while the 2nd appellant held her legs apart to allow the 1st appellant’s penis into her vagina. To stifle her cries and protests, the appellants put sand in her mouth.

This was the scenario met by PW2 (Matthew Tyosha) who was going to his farm at Gbache Mbayoh in Gwer Local Government Area of Benue State when he came to the cross-road and heard someone crying in the bush. PW2 ventured into the bush in the direction of the cries and to his dismay, he met the 1st appellant on top of his sister, PW3, having sexual intercourse with her with the assistance of the 2nd appellant who was holding the legs of the prosecutrix i.e. PW3. On seeing PW2, the appellants took to their heels. But luck ran out of them when PW2 caught the 1st appellant who could not run fast because of his shorts that had been pulled down in the act.

PW2 then took the 1st appellant to his (1st appellant’s) father i.e, DW2 (Matthew Na’an) to lodge a report of the gory act. DW3 who apparently, was angered by his son’s (1st appellant’s) admission of the offence took a twig and beat up the 1st appellant. PW2 later took 1st appellant with the prosecutrix (i.e. PW3) to the house of village head called Chief Kwembe Nyamibo, where the 2nd appellant joined them. The appellants who did not deny the allegations before the village head were subsequently taken to the Police Station. The case of the appellants on the other hand is that on the 2nd day of August, 1994, they went to the village stream to take their bath and on returning, they met the prosecutrix, i.e PW3, who was carrying water on her head at the cross road and walking together, they discussed school matters, The appellants maintained that PW2 came to meet them discussing. They, however, admitted running away when a scuffle ensued between them and PW2, It was the appellants’ case further that they were only being made victims of circumstance as there was a long standing land dispute between the family of the prosecutrix and theirs. Besides, the appellants maintained further that they were under age at the time of the commission of the offences. At the close of the case for defence, counsel to the parties, by the leave of the court presented written addresses to the court. In his considered judgment, the learned trial Judge found the case proved and found the appellants guilty as charged.

Aggrieved by the judgment, the appellants have appealed to this court on seven (7) grounds of appeal. At the hearing of the appeal, the learned counsel for the appellants applied to withdraw ground three (3) of the grounds of appeal. The application was granted and ground 3 was accordingly struck out.