Police should not manufacture evidence

This is an appeal against the judgment of the High Court of Ondo State, Akure Judicial Division delivered on 23rd July, 2012 in suit No: AK/49c/2010 wherein the appellant was found guilty of manslaughter and conspiracy contrary to sections 317 and 516 of the Criminal Code, Cap 37 Laws of Ondo State 2006 although he […]

This is an appeal against the judgment of the High Court of Ondo State, Akure Judicial Division delivered on 23rd July, 2012 in suit No: AK/49c/2010 wherein the appellant was found guilty of manslaughter and conspiracy contrary to sections 317 and 516 of the Criminal Code, Cap 37 Laws of Ondo State 2006 although he had been charged with two others who were at large for conspiracy to commit murder and murder contrary to sections 324 and 319 of the Criminal Code Cap 30, Vol. II, Laws of Ondo state 1978.
The case of the respondent at the Lower Court was that the Chief of Ode-Igele via Ita-Ogbolu reported to the police that the youth of his community found that where the appellant and his colleagues were living, they were fighting. The police went to where the chief said the fight was going on. On reaching the place, the police met the appellant. There was a corpse wrapped in a sack beside the appellant. The appellant was trying to bury it. Those that were with the appellant ran away when they saw the police. Then the appellant was arrested. The appellant had a cutlass with him. The appellant was asked to identify the corpse. The appellant said it was the body of Ifeanyi who was his colleague.
The police took the appellant to the police station with the remains of the said Ifeanyi. There the police took the picture of the appellant with the corpse beside him. The photographer used a digital camera to take the photograph. The photographer was not found at the time the trial commenced, so the photographs were tendered through Corporal Obuo Samuel (PW2), admitted and marked Exhibits A and A1. The statement which the appellant purportedly made to the PW2 was admitted in evidence by the Court after a trial within trial but not marked.
When the appellant was transferred from Iju/Ita-Ogbolu Divisional Headquarters to the state C.I.D. Homicide section Akure, the police there took him to the scene of crime.
The statement which the appellant purportedly made at the C.I.D. Homicide Section was rejected by the Lower Court after a trial-within-trial on the ground that it was not voluntarily made.
The photographs which the police at the C.I.D. Homicide Section claimed to have taken at the scene of the crime were tendered only for identification purpose and were marked ID1, ID2 and ID3.
The defence of the appellant in court was that he was returning from work. On his way from where he had gone to work as a labourer, the police arrested him. He asked the police why he was arrested. The police said that someone was killed in the bush. The appellant said he did not know anything about it. He was taken to the police station. On getting there he saw a corpse on the ground. He was given a cutlass and placed by the side of the corpse and his photograph with the corpse was taken. He was later taken to police headquarters and then to the Court.
After hearing evidence of the two witnesses called by the respondent and the defence of the appellant who testified alone in that regard, the Lower Court convicted the appellant for manslaughter and conspiracy and sentenced him to seven years imprisonment with hard labour.
Dissatisfied with the conviction and sentence the appellant has approached this Court by way of appeal challenging the conviction and sentence upon the following grounds:
 (a) the decision of the learned trial Judge is wrong in law because the prosecution did not prove the commission of the offence of manslaughter beyond reasonable doubt against the appellant.
 (b) Having regards to the evidence on record, the decision of the trial court is unwarranted and unreasonable.
From the two grounds of appeal the appellant formulated the following issues for determination in this appeal:
1. Whether or not the prosecution proved the essential ingredients of the offence of manslaughter beyond reasonable doubt against the appellant?
2. Whether the learned trial Judge evaluated or properly evaluated the evidence before finding the appellant guilty and if not did not his failure to do so occasion a miscarriage of justice?
On its part, the respondent formulated the following issues for determination:
 (a) Whether or not the learned trial Judge rightly convicted the accused/appellant for the offence of manslaughter.
 (b) Whether or not the learned trial Judge rightly evaluated the evidence in this case before arriving at the conviction of the accused/appellant.
It appears to me that the issues formulated by both parties are very identical and that the appeal can be determined only on Issue 1 formulated by both parties.
Sections 324, 315 and 317 of the Criminal Code Law Cap 30 Laws of Ondo State 1978 read as follows:
324. Any person who conspires with any other person to kill any person, whether such a person is in Nigeria or elsewhere is guilty of a felony and is liable to imprisonment for fourteen years.
315. Any person who unlawfully kills another is guilty of an offence which is called murder or manslaughter, according to the circumstances of the case.
317. A person who unlawfully kills another in such circumstances as not to constitute murder is guilty of manslaughter.”
In the instant case the only witnesses called by the respondent were two police officers. PW2 who with others purportedly arrested the appellant at the scene said that when they got there, the appellant told them what happened. PW1, who purportedly went to the scene after the appellant had been transferred to the CID Homicide Section from the Divisional Office, said that the corpse had been removed to the mortuary before he visited. It is clear as crystal therefore that the evidence of the two respondents’ witnesses was hearsay. Where the only eyewitness to a crime is the accused alone whatever any other witness would testify to as to the unlawful act is hearsay. See Ahmed v. State(1999) 7 NWC (Pt. 612) 641.
In his evidence, the PW2 said that when they got to the scene, the appellant was trying to bury the corpse. On what evidence did he draw this conclusion? On the available evidence before the Court there was no such evidence other than that he PW2 said so. Although the police took photographs of the appellant stooping with a cutlass beside the corpse and also attempting to lift the corpse’s head at the police station, the photograph of the place the appellant was trying to bury the corpse was not taken. So the allegation that the appellant was trying to bury the corpse when the police arrived is without any basis.
Why were the photographs of the appellant taken at the police station with the corpse beside him and a cutlass in hand and even getting him to try to lift the corpse from the head or lift the head only? In my view, it was an attempt to manufacture evidence. No police station should be turned into a factory for the manufacturing of evidence. Where a crime is alleged to have been committed, the police have a duty to thoroughly and intelligently investigate it with a view to bringing the perpetrators of the crime to justice. The photographs Exhibits A and A1 were a mockery to put it mildly and the Lower Court ought not to have relied on them.
Once the police have extracted what it considers a confessional statement from an accused person, it does not usually see the need to conduct further investigation into the matter. Even where it purportedly has other evidence available to it without much effort on its part such evidence is never made available at the trial. Or how else would one explain the failure of the respondent to tender the sack which the PW2 said they found the corpse inside. Although the police anxiously took the photograph of the appellant at the police station holding a cutlass as if it was then he was about to cut the deceased, the said cutlass was not tendered in evidence.
To be continued.