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SUPREME COURT OF NIGERIA
16TH FEBRUARY, 1968.
SUIT NO. SC 279/67.
Appellant not present and not represented
Belgore, (Deputy Director of Public Prosecutions, Kaduna) – for the respondent
CRIMINAL LAW AND PROCEDURE:- Culpable homicide not punishable with death – Appellant with other persons attacking deceased with axe – Common intention to attack and kill proved – Whether medical evidence vital – Penal Code s.79. in review
LEWIS, J.S.C. (Delivering the Judgment of the Court):
The appellant here was the eighth accused in charge No. JD/34C/1967 where on the 10th August, 1967 Jones, J. sitting in the Jos High Court convicted him of culpable homicide not punishable with death contrary to section 224 of the Penal Code, and sentenced him to ten years imprisonment.
The case for the prosecution at the trial was that the accused, together with eight others, attacked the deceased who was unarmed, on or about 16th January, 1966 at Kafin Market and as a result of the injuries that he then received he died on the spot. We would agree with the learned trial judge where he said in his judgment that on that basis it was “difficult to see why the more serious unmitigated offence under section 221 of the Penal Code was not charged” rather than the lesser offence of culpable homicide not punishable with death. Be that as it may at the end of the prosecution case the learned trial judge discharged and acquitted seven of the accused because the State counsel conceded there was no prima facie case established against these accused and the learned trial judge thought that there was conflicting evidence as to whether these accused did in fact attack the deceased on that day, but the trial of the remaining two accused namely the sixth accused and the eighth accused, continued and they gave evidence on their own behalf. In this judgment the learned trial judge found that there were discrepancies in the prosecution case against the sixth accused and he was not satisfied that it was proved that he attacked the deceased or did any act in furtherance of a common intention to commit with others the offence charged and he accordingly acquitted him.
So far as the present appellant, the eighth accused, was concerned, however, the learned trial judge believed the evidence of the first prosecution witness in regard to him that he, with others, attacked the deceased and struck him with an axe. This witness then ran away but the second prosecution witness whom the learned trial judge also found to be a witness of truth said that she saw the accused strike the deceased with an axe when the accused, in company of others, attacked the deceased and that after the attackers had gone away she went up to and examined the deceased and found that he had died on the spot and had blood on the head, back, and right upper arm. Both these witnesses stated that the deceased had no weapon with him when he was attacked. The report of the medical officer who examined the body of the deceased at Shendam Mortuary was admitted at the trial under section 249(3) of the Criminal Procedure Code after the eighth accused who was unrepresented had been duly asked, In accordance with section 249(3)(b), whether he disagreed with any statement in the report and he had indicated that he did not. This report read:-
“Corpse brought in a pool of blood with a scarf (white and green colour). R. cut above eye brow 3”, down to skull but no fracture (R) cut below copular at back possibly with a sharp Instrument, very deep down to abdominal cavity. Damaged liver. I CERTIFY the cause of death in my opinion INTERNAL HAEIMMORHAGE INTO THE ABDOMEN CAVITY.”
The accused made a statement to the police denying that he was at Kafin Market on the day when the deceased died and in evidence at the trial he set up an alibi which the learned trial judge disbelieved.
In his judgment Jones J. thought the medical report was important as he said:
“I now return to the prosecution evidence against eighth accused. In his case the medical report is consistent with the evidence of first prosecution witness that eighth accused beat Madip with an axe. Indeed it states that the wound on Madip’s back was done ‘possibly with a sharp Instrument.’ An axe Is a sharp instrument.”
He also, however said:-
“Had the prosecution called the medical officer he might have enlarged on his report. But prosecution has not called him, so I must presume that if he had been called he would have added nothing to the report to help the case for the prosecution’, and:
“Accused were given full opportunity to disagree with the medical and to ask to have the doctors called. They all declined both opportunities.”
Having regard to the nature of the injuries the learned trial judge thought it was established that as only the eighth accused had a sharp instrument, to wit an axe, amongst those who attacked the deceased, it was his blows which must have caused the death of the deceased. Even, however, if this had not been so, in our judgment, once it was proved that the eighth accused was one of at least two at-tacking the deceased and that one at least had a deadly weapon and that the eighth accused struck the deceased, then whether his was the blow that killed him or not he would have been equally liable, by virtue of section 79 of the Penal Code, as others who attacked the deceased, for his death If there was established a common intention to attack and kill him as we consider was the position here. Had this not been so we would have thought it necessary to consider whether when the judge thought the medical evidence was to so important it could be said that he was in effect putting the onus solely on the accused to ask for the medical officer to be called, as it seems to us that not only under section 249(2) of the Criminal Procedure Code has the court of its own volition got the power to summon the medical officer to give evidence in person, but it may well be that section 249(3)(c) which reads:-
“If by reason of any such disagreement or otherwise it appears desirable for the ends of justice that such medical officer or registered medical practitioner shall attend and give evidence in person the court shall summon such medical officer or registered medical practitioner to appear as a witness”,
contemplates in the use of the words “or otherwise” the need for the judge to do so in such circumstances. Mallam Belgore for the State argued that the right way to interpret the passages which we have quoted from the judgment in regard to the medical report was not that the learned trial judge was dissatisfied but that he was satisfied and that it was for the accused to challenge the medical officer in
person if he wished to do so. We do not find it necessary, as we have indicated, to determine this issue as in our view there was evidence here, which the learned trial judge accepted, of the eighth accused attacking the deceased with an axe and of his death at the spot so that the medical evidence does not seem to us to be as vital as it did to the learned trial judge and the conviction can be sustained without it.
The appellant did not appear before us but he submitted a lengthy written argument the main purport of which was that the learned trial judge was wrong not to believe his alibi, wrong anyway to convict the eighth accused when he acquitted all the others, and wrong to rely on the medical report as establishing that the eighth accused killed the deceased. We have already dealt with the issue of the medical report and so far as the issue of alibi was concerned we do not see that it was shown that the learned trial judge was wrong to disbelieve it. Whilst the eighth accused may consider it unfair that he alone of those who attacked the deceased should be convicted, this in no way alters his criminal liability once it is established that he did commit the offence and in our judgment the case against him was clearly made out.
Finally, the eighth accused sought leave to appeal against his sentence of ten years imprisonment as being excessive but as in our view he might well have been charged and convicted of culpable homicide punishable with death on the established facts, we do not consider that ten years imprisonment was, in the circum-stances, in any way excessive.
The application for leave to appeal is accordingly refused. Application refused.