Saidu Isiyaku Tsoho v. The State (2023)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MUHAMMED LAWAL SHUAIBU, JCA (Delivering the leading judgment)

This appeal is against the decision of the High Court of Kebbi State, sitting at Birnin Kebbi delivered on 4th October, 2018 by Hon. Justice E. A. Karatu finding the accused person, Saidu Isiyaku Tsoho guilty for culpable homicide punishable with death under section 221 (b) of the Penal Code. 

The appellant herein was arraigned before the lower court for the offences of culpable homicide punishable with death, causing grievous hurt, assault or use of criminal force with intent to cause death and attempt to commit culpable homicide contrary to sections 221 (b), 265 (b), 265 (i) and 229 (b) of the Penal Code. 

After arraignment, the appellant pleaded not guilty and the case went to trial wherein the prosecution called five witnesses and tendered some exhibits. The appellant testified in his defence but called no other witness. At the end of the trial and in a considered judgment delivered on 4/10/2018, the learned trial Judge found the appellant guilty for the offence of culpable homicide punishable with death and sentenced him to death by hanging while at the same time suspending the remaining three counts of charge.

Appellant was dissatisfied with the judgment of the lower court and thereafter appealed to this court after obtaining the leave of this court which was granted on 30/6/2022. The notice of appeal which was filed on 8/7/2022 contains three grounds of appeal on pages 107 – 112 of the record of appeal.

Distilled from the said three grounds of appeal, the appellant’s counsel formulated a sole issue for the determination of the appeal. Also, the respondent’s counsel crafted a sole issue which is identical to that of the appellant. However, the sole issue of the appellant is preferred for being apt and concise. It reads as follows:

Whether the learned trial Judge was not wrong in convicting and sentencing the appellant for the offence of culpable homicide when the evidence adduced by the prosecution witnesses did not prove the offence of culpable homicide beyond reasonable doubt to justify his conviction and sentence.

Arguing the sole issue, learned counsel for the appellant, Adewole Adebayo submitted that the prosecution, through the trial was unable to prove the essential ingredients of culpable homicide punishable with death against the appellant. That apart from the evidence of PW1 who stated that he took the deceased to the hospital, Pw1 according to counsel did not prove with certainty the alleged weapon used by the appellant which purportedly occasioned bodily harm on the deceased leading to her death. He contend further that PW1 failed to give the name of the Doctor who performed the autopsy on the deceased’s body and the said Doctor was not called as a witness. Counsel continued, that the weapon allegedly used in committing the offence was never mentioned or identified. He referred exhibit 1, 1A, 1B to contend that the medical report neither contain the name of the medical officer nor give a description of the instrument used in killing the deceased. He submitted that where an issue of whether a person died or not is an issue, it is incumbent on the prosecution to prove the death of the deceased beyond reasonable doubt, relying on section 68 of Evidence Act and cases of State v. Okpala (2012) 13 WRN 34; (2012) All FWLR (Pt. 617) 670 and Ali Zaman v. The State (2015) LPELR 24595.

He submitted further that from the available evidence on record, there is no proof that the appellant had intention of killing the deceased as the prosecution must establish not only that the act of the accused could have cause the death but in actual fact the deceased died as a result of the act of the accused to the exclusion of all other possibilities. Thus, evidence must establish that the death was a direct and not merely a remote result of the act of the accused. He referred to Omega v. State (2006) All FWLR (Pt. 306) 930 at 950.

Counsel finally urged the court to hold that the prosecution failed to prove beyond reasonable doubt the charge of culpable homicide against the appellant.

Learned counsel for the respondent, Lawal Hudu Garba submitted that though the burden of proving the guilt of the accused is on the prosecution but once the prosecution succeeded in proving the ingredients of the offence charged, the burden thereupon, shifts to the accused person to prove that he was not responsible in committing the offence charged. He referred to the evidence of PW1, PW3, PW4 and PW5 to contend that the death of Aisha Adamu Ba’ara has actually taken place.

On the second ingredient, counsel referred this court to the evidence of PW3 to the effect that the appellant confessed to the commission of the alleged offence in his presence at the state criminal investigation department, Birnin Kebbi. He relied on the evidence of PW4 who met the deceased in the pool of her blood soon after the incident and also interacted with her as to the cause of the multiple injuries found on the body of the deceased.

Respecting the third ingredient, counsel submitted that the testimonies of PW3-PW4 proved beyond reasonable doubt that the appellant was the one that inflicted the fatal blows that resulted in the death of the deceased. Thus, the appellant using a cutlass to machete the deceased manifested the appellant`s intention. He referred to Afolabi v. State (2016) LPELR 40300 (SC), to contend that intention, which is not tangible, can be inferred from the instrument used to commit the crime, the force used and the part of the body on which the injury was inflicted. As to whether the appellant knew that death would be the probable consequence of his act, counsel submitted that a man who inflicted machete cuts on the head and neck of a fragile and vulnerable old woman, cannot be heard to say that he had no intention to kill her or at least, cause her bodily harm.

It was also contended by the respondent that the medical report exhibit 1A does not require the name of the medical practitioner that signed the report, relying on section 250 (A) (1) of the Criminal Procedure Code and the case of Kolawole v. State (2016) 21 WRN 1; (2015) LPELR-24400 (SC) and Fulani v. State (2018) LPELR-45195.