Murder: What a prosecution must prove –SC

However in Exhibit ‘A’, the Appellant said -”At the entrance of the family compound, I stumbled on a stone and the pistol fell off from my waist, I immediately bent down to pick it up and as I was picking it up my finger unknowingly touched the trigger and it exploded and hit one High […]

However in Exhibit ‘A’, the Appellant said -”At the entrance of the family compound, I stumbled on a stone and the pistol fell off from my waist, I immediately bent down to pick it up and as I was picking it up my finger unknowingly touched the trigger and it exploded and hit one High Chief Tuomor OBIRI (m) a cousin of mine on the chest and saw slumbing and vomiting blood profusely.”
While explaining his statements made earlier, the Appellant said in Exhibit ‘C’ as follows -”I agree that the statement at Sagbama Police Station and that of the C.I.D Yenagoa is contradictory in the sense that I did not clearly state the stage the pistol exploded that as I picked it up to check when it fell down my finger touched the trigger and it exploded. While in Sagbama I simply said the pistol fired during weapon check becauseI was in state of shock, confused and in auncomposed state of mind.”
When the Appellant came to testify in his defence he came with another version of the event as follows -”Just at the entrance of the family compound, as I was walking briskly, I stumbled on a stone and my service pistol fell off from my waist because it was not in the holster. I immediately bent down to pick it up. As I was picking it up, my fingers touched the trigger and it exploded in quick succession twice. I muzzled up, that is faced the gun up, and removed the magazine and tucked it into my breast pocket and returned the pistol to my waist. Immediately, I heard Chief TuomorObiri shouting in Ijaw language; ‘ye-eteineye, saiperemoh ye-eteineye!”
A very careful examination of the line of defence of accident put up by the Appellant in his three separate statements and his evidence in chief quoted above in this judgment, has revealed inconsistencies which ruled out any event of accident in them. While in Exhibit ‘J’ the Appellant described the shooting event as an accidental discharge which resulted in shooting the deceased who later died in the hospital took place during a weapon check, in Exhibit ‘A’ the story was that the shooting event took place when he stumbled on a stone when his service pistol fall off from his waist and as he bent down to pick it up, unknowingly his finger touched the trigger and the pistol exploded hitting the deceased on the chest leading to the death of the deceased. The version of the shooting event on the other hand in the evidence of the Appellant before the Court that as he was picking the pistol from the ground, his fingers touched the trigger and the pistol exploded in quick succession twice before he heard the deceased shouting. All these claims of alleged accidental discharge from the Appellant’s service pistol cannot be true because even if it happened as the Appellant claimed the pistol exploding on the ground would not have resulted in striking the deceased in the chest who was standing. As the shots from the exploded pistol on the ground could only have gone horizontally along the ground to meet its possible target on the feet of those standing, the story of the Appellant on the event of shooting on 24th November, 2001 when the deceased was hit by a bullet through and through on his chest, is a mere cock and bull story not worth being considered as a defence under Section 24 of the Criminal Code. In any case, taking into consideration the clear evidence from the prosecution witnesses 1, 2 and 3 on the circumstances in which the shooting event took place on 24th November, 2001 resulting In the death of the deceased from a single bullet wound in his chest, the two Courts below were definitely correct in their decisions rejecting the rather frivolous defence of accident claimed by the Appellant.
The next issue placed by the Appellant in his brief of argument for the determination of this appeal is whether the essential elements of murder and the guilt of the Appellant were established beyond reasonable doubt laid down by Section 138(1) of the Evidence Act.
From a long line of the decisions of this Court, it is settled beyond controversy that to secure a conviction on a charge of murder under Section 319 of the Criminal Code, the prosecution must prove –
(i) that the deceased had died,
(ii) that the death of the deceased was caused by the accused, and
(iii) that act or omission of the accused which caused the death of the deceased was intentional with the knowledge that death or grievous bodily harm was its probable consequence.
In other words, in a murder charge, the prosecution is required to prove beyond reasonable doubt not only that the act of the accused person could have caused the death of the deceased but that it actually did. If there is any possibility that the deceased died from other causes than the act of the accused, then the prosecution has failed to establish the case against the accused person. See Uguru v.The State (2002) 9 NWLR (Pt. 771) 90 and OforleteNere v.The State (2000) 12 NWLR (Pt. 681) 415.
In the present case the evidence of prosecution witnesses 1, 2 and 3 who were eye witnesses to act of the Appellant of shooting the deceased with a Baretta pistol in his chest, which act of shooting resulted in causing the death of the deceased almost instantly at an Ugheli Hospital, is not only direct and credible but was also accepted and relied upon by the trial Court and affirmed by the Court below. The evidence which is overwhelming, had clearly established that the Appellant caused the death of the deceased and that the deceased died as a result of the act of the Appellant to the exclusion of all other possibilities. The cause of death of the deceased was from the bullet fired deliberately by the Appellant from his service Baretta pistol resulting in taking the life of the deceased. See Nwosu v.The State (1998) 8 NWLR (Pt. 562) 433 at 444, Adekunle v.The State (2006) 14 NWLR (Pt. 1000) 717; and Maiyaki v.The State (2008) 15 NWLR (Pt. 1109) 173 at 197.
It is also clear from the evidence put in place by the prosecution that the Appellant admitted shooting and killing the deceased with his Baretta pistol which he surrendered to the police before he was detained on 24th November, 2001. The same Baretta pistol was admitted in evidence as Exhibit ‘D’ at the trial Court in the presence of the Appellant and his Counsel without any objection. Not only that, the letter from the Appellant’s employer, the National Intelligence Agency Exhibit ‘H’ had unequivocally confirmed that it was a Baretta pistol No. E00080, that was supplied to the Appellant. Therefore the claim of the Appellant that it was a Browning pistol that he used on the day of the incident is mere after thought which does not offer him any defence to the offence of murder committed by him. See Agbo v.The State (2006) 6 NWLR (Pt. 997) 545.
On the Appellant’s complaint of the failure of the prosecution to call PW4, the law is trite that the prosecution has no duty to call and field all known material witnesses so long as it calls and fields all material witnesses that it may consider necessary for proof of its case beyond reasonable doubt. See Oduneye v.The State (2001) FWLR (Pt. 38) 1203 at 1218.
It was also further canvassed for the Appellant that the evidence of the three eye witnesses for the prosecution PW1, PW2 and PW3 who were described as brother, cousin and nephew of the deceased should be treated with caution being in the class of evidence of persons interested and which ought to require corroboration. This complaint has no basis law having regard to the case of Nkebisi&Anor. v. The State (2010) 5 NWLR (Pt. 1188) 472 at 485. It must be stressed that there is no law which precludes a blood relation of a deceased person from testifying for the prosecution. What a Court must consider as an abiding fact is the truthfulness of the witness touching on his integrity, veracity and knowledge on the matter. See Oguonzee v.The State (1998) 5 NWLR (Pt. 551) 521. In the present case, the evidence of PW1, PW2 and PW3 as the eye witnesses to the shooting event that led to the death of the deceased was quite cogent and free from element of falsehood or bias and was therefore rightly accepted and relied upon by the trial Court and affirmed by the Court below.
The trial Court having found that the charge against the Appellant had been proved beyond reasonable doubt and the Court below having affirmed that finding on appeal, I find no reason to disturb these findings.
On the final note, this appeal being one from concurrent findings of fact by the two Courts below supported by overwhelming credible evidence which is not perverse and not reached as a result of wrong approach to evidence or caused miscarriage of justice or violated some principles of substantive and procedural law, I find no reason whatsoever to disturb these concurrent findings. The appeal is plainly lacking in merit and therefore ought to be dismissed. The appeal is dismissed. The judgment of the trial Court of 22nd December, 2005 finding the Appellant guilty of murder for which he was sentenced to death by hanging and which judgment was affirmed on appeal by the Court below, is hereby further affirmed.