Sgt Kalejaiye Ola V The State (2018)

LAWGLOBAL HUB Lead Judgment Report

JOHN INYANG OKORO, J.S.C.

This is an appeal against the judgment of the Court of Appeal Benin Division wherein the Court below affirmed the judgment of the Edo State High Court which convicted the appellant for the charge of murder and sentenced him to death under Section 319 of the Criminal Code cap 48 Vol. 11 Laws of Bendel State of Nigeria, 1976, now applicable to Edo State of Nigeria. A Synopsis of the facts will suffice.

The appellant, who was a police sergeant, was arraigned, tried, convicted and sentenced to death by hanging until he be dead, at the Edo State High Court of Justice, Benin City on 23rd May, 2011. This was in consequence of the murder of one Paul Erimafo on 23rd of June, 2003. The appellant was posted on night guard duty at the Edo State Government Chalets located along the Central Road, G.R.A., Benin City on 22nd June, 2003. He was issued with AK 47 Rifle and ten rounds of life ammunition.

In the early hours of 23rd June, 2003 at about 3a.m., the appellant accosted the said Pau lErimafo and arrested

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him for straying into the premises of the Government Chalets where the former was on guard duty. He led his captive to the residence of one Dr. Erhabor who assisted him in carrying the suspect in a Peugeot 505 car to the Government House Benin City. On reaching there, Police Officers on duty directed the appellant to carry the suspect to the nearest police Station. On the way to the nearest police Station, along the Central Road, G.R.A, Benin City, by the official residence of the Edo State Chief Judge, a scuffle ensued between the appellant and the aforesaid Paul Erimafo. Dr. Erhabor then parked his car and got out of it. The scuffle between the appellant and the suspect – Paul Erimafo, attracted the mobile Policemen and other security staff at the aforesaid Chief Judge’s residence. The mobile Policemen rushed to the scene and intervened. Both the appellant and the suspect – Paul Erimafo then introduced themselves. They each narrated their stories to the mobile policemen.

The appellant alleged that the suspect was struggling with him in order to retrieve his riffle from him. The suspect,

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raising up his hands, denied the allegation. The appellant then fired two shots from his riffle, at the left leg of the suspect who fell down and groaning in pains. The appellant rushed to report a case of armed robbery against the suspect, at the Edo State Police C.I.D. Headquarters, Benin City. Later, the appellant came along with some police officers to pick the suspect. On the way to the Aideyan Police Station, the suspect became deceased and the appellant became an accused person.

The prosecution, in order to prove the charge of murder against the appellant, called four witnesses whilst the appellant testified for himself and called one witness who gave evidence for him.

The prosecution’s star witness was one Peter Osadolor, who was civilian security guard who kept vigil at the Chief Judge’s official residence on the fateful night. He testified as prosecution witness No.2 (PW2). This is part of what he said:

“My name is Peter Osadolor. I live at No.4, Iwehen Street, off Wire Road, Benin City. I am a motorcycle rider. I know the accused person. On 23rd June, 2003,

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I was at the quarters of the Edo Chief Judge at Central Road, G.R.A., Benin City. I was the security man assigned to the Chief Judge. I was a security man with Vanni Security System. I was there on duty at that night. I was there with two other mobile police security men who were also on duty. There was gun shot that night. I heard the noise of the gun shot. The shots came from the government guest house quarters opposite the chief Judges quarters, on Central Road, Benin City. This was around 3.30a.m. there were also shouts of “help”, “help”, “thief”, “thief”. So the mobile police men came outside the gate and took cover. The mobile policemen came out from the security room in the Chief Judge’s quarters. Myself and one of my private security man who was also on duty with me also came out and took cover. We saw a boy and a policeman struggling with each other. The mobile policemen ordered the policeman and the boy who were struggling to stop struggling. They compiled and the boy and hand up (sic) by raising his two hands. The mobile policeman told the two to properly identified (sic) themselves. The mobile policemen then asked the two what the

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matter was between them. The boy explained he was coming from a party and that he resided at No.2 Commercial Avenue, G.R.A., Benin City. The policeman now interrupted the boy that he was lying and that the boy was a thief and was struggling gun with him. He added that the boy wanted to collect the gun he held from him. At that point the boy put up his two hands and the policeman shot him twice at the left leg. The boy fell down and started rolling on the ground shouting that he was not a thief and repeated that he lived at No. 2 Commercial Avenue, G.R.A., Benin City. The policeman who shot the boy now ran to the police headquarters and came back with police van with four policemen inside the van. The van was Toyota police van (Jeep). One of the policemen, an Asst. Supt. of police began to quarrel with the police that shot the boy. The A.S.P. was very angry and queried why the policeman should shoot when the latter was not holding anything. He ordered the policeman to take the boy shot to the hospital. At that moment the boy demanded for water. He was put in the vehicle and taken to the police station (State Headquarters). The accused person was the police man who was

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struggling with the boy and who shot the boy. The policeman identified himself as a police inside the government house guest house. The Policeman shot the boy on the lap region of the left leg. There was at the time at the scene near the mango tree a blue 505 Peugeot car packed with a man by the side of the car. The car was packed by the fence of the Chief Judge’s quarters. The boy was not armed at the material time. He wore a blue ‘T’ shirt with a brown jacket. The boy was not masked at the time and he was fair in complexion with dark hair. The following items to my knowledge were recovered from the boy who was shot – a sha, bag, a novel, a notebook, a biro and a little jack knife found on the right pocket of the jacket. The mobile policemen asked man who was nearby at the time who he was and he replied he was a medical doctor. When the man was invited to the police station, he declined and said he had nothing to say about the matter. I made statement to the police at police Headquarters, State C.I.D.”

On his own part, the appellant’s evidence at the trial, in part, ran thus:

“My name is Sgt. Kalejaiye Ola. I was living at No.20,

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First East Circular Road but currently confined at the Federal Prison, Sapele Road, Benin City. I am a policeman. I remember 22/6/2005. On that day I was posted to chalet 7, Government House on guard duty. The chalet is along Central Road, G.R.A., Benin City. I was posted on that duty along with one Corporal who absented himself and I defaulted him. At about 0300 hours while I was on my beat inside the security room, I saw someone peeping through the window of the security room, I shouted “who is there” I added that the person should identify himself but there was no response. As I peeped to look at the person he said “boys come inside”- Immediately, I heard some people pushing the gate trying to force it open. I then corked the AK 47 rifle I carried. I was given the AK 47 at the Armoury together with 10 rounds of ammunition and a touch light. I explained two rounds of ammunition firing into the air to scare away the intruders. After I fired the two rounds. I again peeped and saw the person with full mask. He wore all black attire. He had in his hands a dagger knife. He also wore hand gloves. As I tried to have a full view of him through

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the louvers since he was moving from the spot to the other as though he was dodging me he shouted ” I beg dont kill me”. I told him that he should obey me and he said he would obey me. I then asked him of his name and he said his name was “Matthew”. I asked him what he came to do in this quarter and he said he was a secret cult member. He added he was indebted to some of his colleagues and that they were pursuing him hence he ran into the quarters. I then asked him to move forward from where he had put his back to the wall to enable me see him properly and he obeyed. I then asked him what he was holding and he replied he was holding a dagger knife. I asked him to drop the dagger knife on the floor and he obeyed. I then asked him to follow me to see the people. I came there to guide. I also instructed him to drop the case of the dagger knife on the floor along with the dagger knife. He also obeyed me. On getting to chalet 7, I asked the boy to kneel down whilst I knock on the door and he obeyed. As I knocked on the door, one man came out and he asked what happened and I explained to him. He asked the boy who was still on his kneels what his

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name was and he replied his name was “Matthew”. The man who identified himself as Dr. Erhabor then advised that we should convey the boy to the Government House. All three of us then entered a vehicle with Registration No. AJ 09 GDE (a 504 car). Dr. Erhabor was on the wheels. Myself and the boy were sitting at the back seats of the car. As we got to the gate I gave my torch light to Dr. Erhabor to enable him recover the dagger and case the boy had earlier dropped. This time, there was no light. Thereafter we opened the gate and drove to Government House. On getting to Government House, the man on duty said because of the way the boy dresses they would not keep him in their security room and advised that I should take him to the Police Headquarters. All three of us then left the Government House in the same vehicle and as we were coming and before we got to the official quarters of the Chief Judge, the boy started to struggle the AK47 rifle I held with me. As the struggle continued and as we got close to the fence of the Chief Judge’s quarters, Dr. Erhabor packed the car. Even after Dr. Erhabor had packed the car, the boy continued to struggle the gun with

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me and in the process the gun fired twice. The struggle which was inside the car lasted for about 30 minutes. In the process Dr. Erhabor ran out of the vehicle. The struggle continued after the gun had fired twice and the boy in the process wounded me through teeth bite. He pushed me down from the vehicle. I got hold of him and dragged him down. He again held on to the rifle and began to struggle it with me once more. In the process the gun again fired. I then threw my fire in order to enter into the Chief Judges quarters but it hit the iron of the fence and could not go through but rather it fell on the floor. I attempted to throw the gun into the premises because of the fear that should the boy succeed in getting the gun from me I could not say what would do with it to me and Dr. Erhabor. The place was pitch darkness. I then took my torch light in order that I might be able to recover the rifle. At that time I recognized two mobile policemen who came to the scene. As I was about to pick my gun, it again fired. The mobile policemen said they were from the official quarters of the Chief Judge. I did not see anybody else around. The mobile police men asked

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the two of us (the deceased and myself) to introduce ourselves. When the gun fired, I heard a scream and with that somebody fell on the ground. I later found that the person who fell on the ground was the boy who was struggling the gun with me.”

At the end of the trial, the learned trial judge, in his judgment believed the PW2 and not the appellant, whom he convicted and sentenced to death by hanging until he be dead.

On appeal to the Court of Appeal, his conviction and sentence were affirmed and his appeal dismissed. Further dissatisfied, the appellant has appealed to this Court. Notice of appeal was filed on 5th December, 2013 and it contains one ground of appeal.

On 12th April, 2018 when this appeal was heard, Emmanuel O. Adukwu Esq., learned counsel for the appellant adopted the appellant’s brief of argument he filed on 26th March, 2014 wherein a sole issue has been formulated for the determination of this appeal. The said issue states:

“Whether the Court of Appeal was right in affirming the decision of the trial Court holding that the

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prosecution did prove the offence of murder against the Appellant beyond reasonable doubt.”

Also, in the Respondent’s brief of argument settled by Oluwole O. Iyamu, Esq., and filed on 22nd October, 2014 but deemed properly filed on 1st July, 2015, the respondent also distilled one issue similar to that of the appellant and couched slightly differently as follows:

“Whether the Court of Appeal was right in affirming the Judgment of the trial Court to the effect that the charge of murder was proved by the Prosecution against the Appellant beyond reasonable doubt.”

I shall determine this appeal based on the sole issue submitted by both parties.

In arguing the only issue in this appeal, the learned counsel for the appellant submitted that the standard of proof in criminal cases is proof beyond reasonable doubt whilst the onus of proof of guilt of the accused person rests squarely on the prosecution, is static and does not shift, to which he cited the case of Onafowokan v. State (1987) 3 NWLR (Pt. 61) 538 and Section 135 of the Evidence Act 2011, Ikem v. State (1985) 1 NWLR (Pt 2) 378. Referring to

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the three ingredients of the offence of murder, he submitted that all must be proved beyond reasonable doubt, relying on Onah v. The State (1985) 3 NWLR (Pt. 12) 236, Adava v. The State (2006) 9 NWLR (Pt. 984) 152 at 167 amongst others.

Whilst the learned counsel for the Appellant did not contest that the death of the deceased was proved beyond reasonable doubt, he however contended that the other two ingredients of the offence of murder were not proved.

Learned Counsel questioned why the appellant did not shoot the deceased immediately he arrested him but had to wait until others arrived the scene. According to him, this conduct does not show that the appellant intentionally shot the deceased.

On the fact that the two lower Courts relied on the uncontroverted evidence of PW2, learned counsel submitted that even though the evidence of PW2 was not challenged, that does not derogate from the principle that such evidence must still be credible and probable before the Court can accept and act on it. Learned Counsel

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stressed that the Court was still duty bound to scrutinize, assess and determine the credibility and probability or otherwise of any unchallenged evidence before it could act on it, relying on the case of Gonzee Nig. Ltd v. NERDC (2005) 15 NWLR (Pt. 943) 634 at 650.

Learned Counsel contended that since the incident occurred at about 3.30a.m., the PW2 ought to have given evidence on how he was able to see what happened in the thick of darkness. According to him, the version of the testimony by the appellant is more credible and ought to have been preferred.

It is his further submission that although the Supreme Court would not ordinarily interfere with concurrent findings of the two lower Courts as in this case, the Court can, in appropriate circumstances look at evidence on record and make an objective finding of fact where there has been a perverse finding made by the Court. He urged this Court to so do, relying on Lawal v. Dawodu (1972) 8-9 SC. 83.

Learned Counsel further faulted the acceptance of the evidence of PW3 against that of DW1. It is his view that

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the gun could have accidentally corked itself during the struggle and that the Courts below ought to have been persuaded along this line. Thus, the defence of accident provided under S.24 of the Criminal Code ought to have availed the appellant, relying on the case of Bello v. AG Oyo State (1986) 5 NWLR (Pt. 45) 828.

Finally, Learned Counsel submitted that the prosecution failed to prove beyond reasonable doubt that the death of the deceased was caused by an intentional act of the appellant with knowledge that death or grievous bodily harm was its probable consequence and that being the case, the Court is urged to resolve this issue in favour of the appellant.

In response, the learned counsel for the respondent submitted that the 2nd and 3rd ingredients of the offence of murder were proved beyond reasonable doubt even as the appellant’s counsel admitted that the deceased had died. Referring to the evidence of PW2, he submitted that it is vivid and compelling and comes across as that of a person who actually witnessed the incident and is a witness of truth. He wondered why the learned

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counsel for the appellant failed to cross examine this “star” witness but chose to ask a single, largely irrelevant, nonchalant question which, according to him, added no value to the defence of the appellant.

Learned Counsel referred to the evidence of PW3 who investigated this matter and gave evidence that the shooting of the deceased by the appellant was not accidental. It is his submission that when the evidence of PW2 and PW3 are taken together with the evidence of PW4 the Medical Doctor who performed the autopsy, it becomes obvious and doubtless that the two Courts below were right in coming to the conclusion and findings of fact at pages 103 tines 23 – 3 and 104 lines 1-27.

On issue of concurrent findings, he submitted that unless there is miscarriage of justice, this Court does not disturb concurrent findings of the two lower Courts, relying on Edoho v. State (2010) 14 NWLR (Pt. 1214) 693 and Igbi v. State (2000) 3 NWLR (Pt. 648) 169.

On failure to cross examine PW2, learned counsel referred to the cases of Ubani & 2 Ors v. The State

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(2003) 12 SCNJ III at 130, Oforlete v. State (2000) 7 SCNJ 162 at 170 & 183.

On whether the PW2 was able to see what he narrated to the Court, learned counsel submitted that he ought to have confronted him at the trial Court but he failed to do so. According to him, this cannot be altered at the address state. He affirmed that the scene of crime was near Government House and the presumption is that the vicinity was well lit and that it was not dark as suggested by the learned counsel for the appellant.

Learned Counsel, after reference to the judgment of both the trial and Court below, submitted that both Courts took time to evaluate the evidence of both the appellant and that of the prosecution before preferring that of the Respondent. He urged the Court to reject the defence of accident by the appellant as it is not bourne out of the evidence before the Court.

In conclusion, learned counsel submitted that it was the unlawful act of the appellant in shooting the deceased that caused the death of the deceased and that the act was

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intentional with knowledge that death or grievous bodily harm was its probable consequence. He urged the Court to resolve this issue in favour of the respondent.

As generally expected both counsel in this matter are ad idem on the trite principle of law that the standard of proof in criminal trial is proof beyond reasonable doubt and that the onus of proof of guilt of an accused person rests on the prosecution. This is so because by Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty. May I state clearly that proof beyond reasonable doubt does not mean proof beyond all doubt or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence, a degree of compulsion which is consistent with a high degree of probability. It is not proof to the hilt. See Miller v. Minister of Pensions (1947) 3 All ER 373, Amaremor v. The State (2014) 10 NWLR (Pt. 1414) 1, Nwaturuocha v. The State (2011) 6 NWLR (Pt. 1242) 170, Alabi v. The State (1993) 7 NWLR

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(Pt. 307) 511, Akinlolu v. The State (2015) LPELR-25986 (SC), Lori & Anor v. The State (1990) 12 NSCC, 269, Oseni v. The State (2012) 5 NWLR (Pt. 1293) 351.

This Court has held in a plethora of cases that to sustain a conviction in a charge of murder, the prosecution must prove the following ingredients beyond reasonable doubt. That is to say:-

1. That the deceased died.
2. That it was the unlawful act or omission of the accused person that caused the death of the deceased and,
3. That the act or omission of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence.

See Okeke v. The State (1996) 2 NWLR (Pt. 590) 246, Adekunle v. The State (2006) All FWLR (Pt 332) 1452, Jimmy v. The State (2013) 18 NWLR (Pt. 1386) 229, Asuquo v. The State (2016) LPELR-40597 (SC).

From the argument of both counsel, they agree that the first ingredient of the offence of murder has been proved. That is to say, that the deceased had died. The two Courts below also agree that the deceased died. There

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is therefore no need to split hairs on this aspect.

As regards the second ingredient of the offence i.e. that it was the act or omission of the accused that caused the death of the deceased, the two counsel also agree, but whereas the learned counsel for the appellant submitted that the shooting of the gun was accidental or not intentional, the learned counsel for the respondent opined that the appellant intentionally shot and killed the deceased. Appellants argument is that had he intended to kill the deceased, he would have shot him immediately he was arrested and when only two of them were together. It is his contention that at the time the incident happened, there were other policemen with him. It is his assertion that it was accidental discharge. This is contrary to the evidence adduced by the Respondent through PW2. I had earlier in this judgment reproduced in extenso, both the evidence of PW2 and that of the appellant. Both the trial Court and the Court of Appeal accepted the evidence of PW2 as the correct version of events which occurred on that fateful night.

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PW2 testified and said unequivocally that the appellant intentionally shot the deceased twice and he died. The learned counsel for the appellant failed to confront PW2 on this evidence through cross-examination. To my mind, this is bad practice. The legal effect of this is that the appellant accepted this evidence as true. The learned trial judge said this much in his judgment as can be found on pages 86-87 of the record. He said:-

“It is instructive just as it is amusing to note that this witness (PW2) as one would have expected, especially having regard to the gravity of the offence alleged and also the fact that PW2 is an eye witness, was not seriously cross-examined on his testimony. The only question I can recollect was asked and on record was if he did not know the victim of the alleged shooting died on his way to the hospital”

It seems to me that the learned counsel for the appellant misconceived the law in respect of unchallenged or uncontroverted evidence of a witness. I still do not understand why the appellant left this witness alone, who had given detailed and damaging evidence against him. The Court below was also amazed at the attitude. On page

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153 of the record, the Court of Appeal said:-

“Amazingly, PW2 was never cross-examined by the Appellant’s counsel with respect to the above pieces of evidence nor was it even suggested to him, that because the incidence happened at night, it was pitch darkness, so he could not have seen clearly all he testified about.”

In Patrick Oforlete v. The State (2000) LPELR-2270 (SC) at pp. 24-25, this Court stated the position of the law on failure to cross-examine a witness on material particular as follows:-

“….Where the adversary fails to cross-examine a witness upon a particular matter, the implication is that he accepts the truth of that matter as led in evidence. See Akinwunmi v. Idowu (1980) 3-4 108, …Bello v. Eweka (1981) 1 SC 101 … After all, the noble act of cross-examination constitutes a lethal legal weapon in the hands of the adversary to enable him effect the demolition of the case of the opposing party. It is therefore good practice for counsel not only to put across his clients case through cross-examination he should, as a matter of the utmost

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necessity, use the opportunity to negative the credit of that witness whose evidence is under fire. Plainly, it is unsatisfactory if not suicidal bad practice for counsel to neglect to cross-examine a witness after his evidence-in-chief in order to contradict him or impeach his credit while being cross-examined but attempt at doing so only by calling other witness of witnesses thereafter. That is demonstrably wrong and will not even feebly dent that unchallenged evidence by counsel leading evidence through other witness to controvert the unchallenged evidence.”

See alsoGaji & Ors v. Paye (2003) 8 NWLR (Pt. 823) 583, Agbonifo v. Aiwereoba (1988) 1 NWLR (Pt. 70) 325, (1988) 2 SCNJ 146, Egwumi v. The State (2013) 13 NWLR (Pt. 1372) 525.

The learned counsel for the appellant argued strongly that because the incident took place at night, PW2 could not have seen everything he told the trial Court. It is my view that it is too late in the day to say so. The PW2 ought to have been confronted with this hard fact at the trial Court during cross-examination but this was not done. Therefore, the argument by the learned counsel for

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the appellant on this issue is speculative. As was also argued by the learned counsel for the respondent, this incident took place near Government House and it is well noted that Government Houses and their environs are almost always well lit at night. This, I must say, is an issue of argument by counsel.

Again, the two Courts below accepted the evidence of PW3 on the workings or operation of AK 47 riffle as against the evidence of the DW1 who was a younger officer than the PW3 who has had more training and experience than him. The Court below made the following findings on page 159 of the record:-

“The learned trial Judge from pages 98-99 evaluated the above pieces of evidence by the DW1 and came to the conclusion that he having watched the demeanor of the witnesses preferred the evidence of PW3 who possessed more experience in the handling of an AK 47 than the DW1. I am satisfied that the evaluation of the said pieces of evidence by the learned trial judge was not in error nor done on wrong principle of law. His findings thereon, were not perverse. I am therefore not tempted to tamper with

them.”

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In Sobakin v. The State (1981) LPELR-3077 (SC) this Court made it clear that evidence which has been sifted by two Courts and in respect of which there is concurrent findings, this Court will not rightly interfere except the findings of facts is very perverse. I must say, this is not the case here. There is nothing perverse about the finding of the two lower Courts in this matter. See also Ezeudu v. Obiagwu (1986) 2 NWLR (Pt. 21) 208, Ige v. Olunloyo & Ors (1983) 10 SC 259, Igbikis v. The State (2017) LPELR-41667 (SC).

On the whole, I agree with the Court below that the appellant intentionally and without any excuse whatsoever shot and killed the deceased who was unarmed at the time he was killed. The defence of accidental discharge put up by the appellant, to my mind, is an afterthought. As was pointed out by the Court below, where a person armed with a lethal weapon such as an AK 47 rifle, pointedly aims at and fired a shot or shots at another person, as was done by the appellant against the deceased, there can hardly be any doubt that he intended to cause death or inflict grievous bodily harm.

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I agree that the appellant intended the natural and probable consequence of his action. Police officers who are entrusted with arms while on duty should realize that the arm is to be used to protect members of the public and not to use same to kill them. The behavior of the appellant on the fateful night against an unarmed civilian was most barbaric and uncalled for. I hope and pray that this kind of behaviour will not repeat itself. It is on this note that I resolve this sole issue against the appellant.

Having resolved this issue against the appellant, I hold that this appeal lacks merit and is hereby dismissed. I affirm the judgment of the lower Court which had earlier upheld the judgment of the trial Court which sentenced the appellant to death for the murder of the deceased.

Appeal dismissed.

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SC.724/2013