When does a defence of provocation succeed in a charge of culpable homicide punishable with death? Section 222(1) of the Penal Code that is applicable in Kano State provides as follows –
Culpable homicide is not punishable with the death if the offender whilst deprived of the power of self-control by grave and sudden provocation causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.
Evidently, a plea of provocation does not exculpate the accused, but is only a mitigating factor when it comes to the sentencing. For the defence to avail the accused, the burden is on him to establish that the act of provocation was "grave and sudden"; that he must have been deprived of the power of self-control; and the extent of retaliation is proportionate to the provocation offered- See Galadima V. The State (2012) LPELR-15530(SC).
To posit that the prosecution to prove criminal intimidation needs establish physical injury is a pedestrian viewpoint if I might humbly say so. This is because the need for the proof of a personal physical injury suffered by the complainant and in this case the PW1 is not an element or ingredient of the offence of criminal intimidation in establishing it as an offence worthy of conviction. It is enough if the prosecution is able to establish that the accused and in this case the appellant made a threat by which the victim is thrown into fear of a harm to himself or any other person of an instant harm. What the prosecution needs to prove are:
a. That the accused threatened the complainant or some other persons.
b. That the threat was of some injuries to him.
c. That it was given to cause alarm to him or to cause him not to do or omit to do any act which he is legally entitled to or not bound to do.