ISA v. KANO STATE

…………………….A…………………….

CLARA BATA OGUNBIYI, J.S.C. (Delivering the Leading Judgment): The appeal herein is against the decision of the Court of Appeal, Kaduna Division delivered on the 4th June, 2012 in appeal No. CA/K/247/2010. The appellant, at the Court below appealed against his conviction and sentence by the High Court of Kano State sitting at Kano on a charge of rape as follows:-
CHARGE:-That you Shuaibu Isa “m” of Unguwa Uku Quarters Kano within Kano Judicial Division on U/5/2005 at Unguwa Uku committed rape on one Aigha Ado “f” of 8 years old and thereby committed an offence punishable under Section 283 of the Penal Code.
STATEMENT OF FACTS:-
Pursuant to Section 211 of the 1999 Constitution and Section 7 of the Criminal Procedure Code, Cap 37, Laws of Kano State, the respondent proffered the foregoing lone count charge of rape against the appellant punishable under Section 283 of the Penal Code.
The prosecution listed seven (7) witnesses but called six (6) including the mother of the prosecutrix and a medical doctor from Aminu Kano Teaching Hospital Kano. The appellant defended himself. The proceedings commenced in the trial Court with the affirmation of one Abubakar Gezawa as interpreter of the proceedings from English into Hausa and vice-versa.
The evidence in the trial Court started off with PW1 (the victim of the rape). She was twelve years old at the date of giving evidence and affirmed to speak the truth. She narrated her ordeal which dated back to three years prior to the date of giving evidence; that on her way from her mothers place at Unguwa Uku, she met the appellant who pleaded and gave her money to buy him pure water and which she obliged him as requested; that upon bringing the pure water, the appellant held her hand, dragged her to an uncompleted building, removed her wrapper and pants.In her own words as recorded by the trial Court. “He also removed his trousers and he put his penis into my vagina. I then shouted and someone came to my aid, and we, that is myself and the accused were taken to the police station,” See pages 6 – 7 of the record.
PW1 was cross examined by the defence; the learned trial judge also in further cross examination asked the following question:-
“Court to PW1: What made you to shout attracted the person who came to your aid?
Witness (Pw1): I shouted because the (sic) of penis open penetration.”
See page 6 of the record.
PW2 is one Ismaila Zubairu who upon receiving an information of the suspicious criminal act entered the uncompleted building where he saw both the appellant and Pw1; that which the appellant’s trousers were at the knee level with him trying to dress up, the victim had her pants down; that the witness met both the appellant and PW1 facing each other while standing. The witness testified also that he refused to accept the appellant’s gift of money but insisted that both the appellant and PW1 were brought out and exposed where people were gathered; that the appellant and his victim were subsequently taken to the police station. The witness was also cross examined.
PW3 is the mother of the PW1 (the victim). She was told the incident and that was hearsay. She went with PW1 to the hospital and in company of the appellant. The witness was cross examined.
PW4 is the Investigating Police Officer (IPO). He conveyed PW1 the victim, to Aminu Kano Teaching Hospital where she was admitted. The appellant volunteered a statement which was recorded by the witness in English and translated same into Hausa language and the appellant agreed and signed.
The statement was confessional wherein the appellant admitted having committed the offence of rape alleged. This was endorsed by a superior Police officer the person of CSP Yusuf Sani who also signed the statement. While Exhibit ‘A’ was the medical report, Exhibit ‘B’ was the appellant’s confessional statement. The witness PW4 was also cross examined.
PW5 is the Medical Doctor who examined PW1 and issued a report Exhibit ‘A’. In his evidence this was what he said of Pw1’s hymen “In this case it is incompletely broken which suggest partial penetration.” It is also the witness’s evidence that he saw a small discharge from the vagina of PW1 but found no organism or sperm cells; that the HIV test also proved negative. The witness was cross examined on his evidence.
PW6 is the 2nd Investigating Police Officer (IPO) who took another statement from the appellant. The statement was admitted as Exhibit ‘C’.
THE DEFENCE
The appellant testified in his own defence as Dw1 and denied knowing PW1 and the entire allegation and incident. His testimony was that PW1 solicited for money and upon his refusal to oblige her, a man met them and inquired to know what