In a charge of culpable homicide punishable with death under Section 221 of the Penal Code, the prosecution must establish the following facts beyond reasonable doubt:
1. That the deceased died.
2. That his death was caused by the accused.
3. That the act of the accused which caused the death was intentional having the knowledge that death or grievous bodily harm was the probable consequence of the act.
See: The State Vs Danjuma (1997) 5 NWLR (Pt. 506) 512; Ochemaje Vs The State (2008) 15 NWLR (Pt.1109) 57; Ochiba Vs The State (2011) 17 NWLR (pt.1277) 663.
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).
But that is not to say that the Prosecution is left off the hook. It is an ironclad principle that the Prosecution must prove its case beyond reasonable doubt, and this remains so even if the accused admits in his Statement to the Police that he committed the crime: the Prosecution must still prove it beyond reasonable doubt see Adekoya v. State (2012) LPELR-7815 (SC), and Madu V State (2012) LPELR-7867 (SC), where this Court, per Adekeye, JSC, said –
The Prosecution has the burden to prove the guilt of an accused beyond reasonable doubt, regardless of the plea of the accused or where he admitted the commission of the crime in his statement to the Police.
And the Prosecution must so prove each ingredient of the offence – see Chukwu v. State (2012) 12 SCNJ (Pt 1) 208. cited by the Appellant and Respondent, wherein this Court stated as follows –
In a case of culpable homicide or murder, the following conditions must be met for the Prosecution to prove its case beyond reasonable doubt-
i. That the deceased had died
ii. That the death of the deceased was caused by the Accused; and
iii. That the act or omission of the Accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence.
In culpable homicide cases like in all criminal offences, the onus is always on the prosecution to prove the guilt of the accused beyond reasonable doubt. Failure to do so, will automatically lead to the discharge of the accused person. See Onuwogu v The State (1974) 9 SC.
It is well-settled law, that the prosecution, in order to obtain conviction in a charge of culpable homicide punishable with death, contrary to Section 221 of the Penal Code, has the heavy burden of proving the under listed ingredients of the offence beyond reasonable doubt namely:-
(1) That death of a human being was caused.
(2) That the accused was the cause of the deceased person's death.
(3) That the act of the accused leading to the death of the deceased was done intentionally or with knowledge that death or grievous harm was the probable and not only likely consequence of the act
See Ogba v State (1992) 2 NWLR (pt. 222)164.
The Court below on page 153 of the record held as follows:-
"...The learned trial judge Yusuf J. in my view properly evaluated the evidence before him, he was also properly guided in treating the partially retracted statement of the Appellant, and he satisfied himself that the statement bore consistency with other ascertained facts before him."
The essential elements of the offence charged are: –
a. That the death of a human being took place.
b. That such death was caused by the Accused.
c. That the act of the Accused that caused the death was done with the intention of causing death or that the accused knew that death would be the probable consequence of his act. See Haruna v. Att. Gen. Federation(2010) ALL FWLR (Pt. 632) 1617.
As to the Provisions of Section 221 of the Penal Code on culpable homicide punishable with death, the law requires the prosecution to establish: –
"(a) That the death of a human being has actually taken place;
(b) That such death has been caused by the accused:
(c) That the death was done with the intention of causing death or that the accused knew or had reason to know that death will be the probable and not only likely consequence of his act."
My Lords, it would seem obvious that, more than other aspects of our corpus juris, the offence of murder under the Criminal Code (culpable homicide punishable with death under the Penal Code) has been the subject of the generous and consistent espousal of this Court in cases too numerous to mention here. Indeed, so frequent has this phenomenon become that I am constrained, in this judgment, to resort to my previous exertions in this regard. Your Lordships must bear with me. In Tajudeen Iliyasu v. The State (2015) LPELR -24403 (SC) 24 -26, G-C, speaking for this Court, I intoned as follows: The three constitutive elements or ingredients of the offence which must be proved in order to secure a conviction under this Section have been, generously, outlined in case law, Maigari v. State (2013) 6-7 MJSC (pt 11) 109, 125, citing Ochemeje v. The State (2009) SCNJ 143; Daniel v. The State (1991) 8 NWLR (pt. 443) 715; Obudu v. State (1999) 6 NWLR (pt 1980) 433; Gira v. State (1996) 4 NWLR (pt 428) 1, 125. Under the said Section, the prosecution is obliged to prove; (1) that the deceased died; (2) that his/her death was caused by the accused; (3) that she/he intended to either kill the victim or cause her/him grievous bodily harm, These ingredients...have witnessed consistent espousal in many jurisdictions, for example, by English Courts,R v. Hopwood (1913) 8 Cr. App. R. 143; Hyan v. DPP (1974) 2 All ER 41; Woolmington v. DPP (1935) AC 462; by Nigerian Courts, Madu v. State (2012) 15 NWLR (pt 1324) 405, 443, citing Durwode v. State (2000) 15 NWLR (pt 691) 467: Idemudia v. State (2001) FWLR (pt. 55) 549, 564; (1999) 7 NWLR (pt 610) 202; Akpan v. State (2001) FWLR (pt 56) 735; (2000) 12 NWLR (pt 682) 607and by Courts in other Commonwealth jurisdictions, see, for example, R. v. Nichols (1958) QWR 46; R v Hughes (1958) 84 CLR 170; Timbu Kolian v. The Queen (1968) 42 A. L. J. R.; R. v. Tralka (1965) Qd, R. 225, (Queensland, Australia). ...
My Lords, it would seem obvious that, more than other aspects of our corpus juris, the offence of murder under the Criminal Code (culpable homicide punishable with death under the Penal Code) has been the subject of the generous and consistent espousal of this Court in cases too numerous to mention here. Indeed, so frequent has this phenomenon become that I am constrained, in this judgment, to resort to my previous exertions in this regard. Your Lordships must bear with me. In Tajudeen Iliyasu v. The State (2015) LPELR -24403 (SC) 24 -26, G-C, speaking for this Court, I intoned as follows: The three constitutive elements or ingredients of the offence which must be proved in order to secure a conviction under this Section have been, generously, outlined in case law, Maigari v. State (2013) 6-7 MJSC (pt 11) 109, 125, citing Ochemeje v. The State (2009) SCNJ 143; Daniel v. The State (1991) 8 NWLR (pt. 443) 715; Obudu v. State (1999) 6 NWLR (pt 1980) 433; Gira v. State (1996) 4 NWLR (pt 428) 1, 125. Under the said Section, the prosecution is obliged to prove; (1) that the deceased died; (2) that his/her death was caused by the accused; (3) that she/he intended to either kill the victim or cause her/him grievous bodily harm, These ingredients...have witnessed consistent espousal in many jurisdictions, for example, by English Courts,R v. Hopwood (1913) 8 Cr. App. R. 143; Hyan v. DPP (1974) 2 All ER 41; Woolmington v. DPP (1935) AC 462; by Nigerian Courts, Madu v. State (2012) 15 NWLR (pt 1324) 405, 443, citing Durwode v. State (2000) 15 NWLR (pt 691) 467: Idemudia v. State (2001) FWLR (pt. 55) 549, 564; (1999) 7 NWLR (pt 610) 202; Akpan v. State (2001) FWLR (pt 56) 735; (2000) 12 NWLR (pt 682) 607and by Courts in other Commonwealth jurisdictions, see, for example, R. v. Nichols (1958) QWR 46; R v Hughes (1958) 84 CLR 170; Timbu Kolian v. The Queen (1968) 42 A. L. J. R.; R. v. Tralka (1965) Qd, R. 225, (Queensland, Australia). ...
The complaint of the appellant in the sole issue is that the prosecution failed to prove the charge beyond reasonable doubt. I agree with my learned brother in the lead judgment that the prosecution proved this charge against the appellant beyond reasonable doubt. All that the law requires from the prosecution is to lead credible evidence to show and prove the following:
1. The death of the deceased.
2. That the death of the deceased was as a result of the act of the accused person; and
3. That the accused knew that his act will result in the death of the victim or that his act will cause or result in grievous bodily harm to the deceased.
See Okereke V. The State (2016) LPELR – 40012 (SC), Durwode V. The State (2000) 15 NWLR (pt. 691) 467, Asuquo V. The State (2016) LPELR – 40597 (SC).
However, the required proof beyond reasonable doubt which the prosecution is expected to show does not mean proof beyond all shadow of doubt and the evidence adduced by the prosecution is strong enough against a man, as to leave only a remote probability in his favour, which can be dismissed with the sentence; "of course it is possible but not in the least probable," then the case is proved beyond reasonable doubt. See; Jimoh Michael Vs. The State (2008) 13 NWLR (Pt. 1104) 361; (2008) 10 SCM 83; (2008) 34 NSCQR (Pt.11) 700.
There is no doubt and it is beyond any argument that all the required ingredients of the offence of culpable homicide punishable with death must co-exist and be proved by the prosecution beyond reasonable doubt. See; Ubani vs. The State (2003) 18 NWLR (Pt. 851); Uguru Vs. The State (2002) 9 NWLR (Pt. 771) 90.
There is no doubt that the ingredients the law requires the prosecution to establish in order to prove an offence of murder is similar to that of a charge of culpable homicide punishable with death under the Penal Code. These ingredients are:
(i) The death of the deceased;
(ii) That the death resulted from the act of the accused; and
(iii) That the accused knew that his act in question will result in the death or did not care whether the death of the deceased will result from his act.
See; The State Vs. Musa Danjuma (1997) 5 NWLR (Pt.506) 512; Durwode Vs. The State (2000) 15 NWLR (Pt.691) 467 at 487- 488; Ogbu & Anor Vs The State (2007) 4 SCM 169; Umaru Adamu Vs The State (2014) 10 NWLR (Pt.1416) 441; (2014) 8 SCM 1; (2014)4 & 5 SC 1.
It must however be noted that all the above three ingredients of the offence must necessarily co-exist and none must be lacking. Where one is missing or not established, it means that the prosecution has simply failed to discharge the burden of proof that the law places on it in order to succeed with the charge.
It is settled law that to succeed in a charge of culpable homicide the prosecution is required to prove the following ingredients of the offence:
(a)That the death of a human being has actually taken place;
(b) That the death has been caused by the accused;
(c) That the act of the accused was done with the intention of causing death or that the accused knew that death would be the probable consequence of his act.
See; Tunde Adava & Anor Vs. The State (2006) 9 NWLR (pt.984) 152; (2006) 3 SCM 1, (2006) 2 SC (pt.11.) 136; Maikudi Aliyu vs. The State (2013) 12 SCM (Pt.2) 195.
However, culpable homicide means a wrongful act that results in a person's death but does not amount to murder. See, Umaru Adamu Vs The State (2014) 10 NWLR (pt.1415) 441; (2014) 8 SCM 1; (2014) 4 & 5 SC 1; (2014) All FWLR (Pt.733) 1938.
In order to establish a charge of culpable homicide punishable with death the prosecution must prove the following elements of the offence beyond reasonable doubt:
(a) That the deceased died;
(b) That it was the act of the accused that caused the death; and
(c) That the act of the accused which caused the death was done with the intention of causing death or grievous bodily harm or knowing that death or grievous bodily harm was the likely consequence of the act.
See: Adava & Anor. Vs The State (2006) 9 NWLR (Pt. 984) 152; Michael Vs The State (2008) 13 NWLR (Pt. 1104) 361; Ochiba Vs The State (2011) 17 NWLR (Pt. 1277) 663.
In a charge of culpable homicide punishable with death, the prosecution must establish the following ingredients beyond reasonable doubt before an accused can be convicted. That is to say:
1. That the deceased has died.
2. That the death of the deceased resulted from the acts of the accused person and
3. That the act of the accused was intentional with knowledge that death or grievous bodily harm was the probable consequence.
It is also settled that where a man is attacked with a lethal weapon and died on the spot, it can be inferred that the wound inflicted caused the death. Thus, where cause of death is obvious, medical evidence is not necessary in homicide cases – Ben V. State (2006) 76 NWLR (pt. 1006) 582 SC.
As the Appellant rightly submitted, all three ingredients of the offence of culpable homicide must co-exist to secure any conviction – Ubani V. State (2003) 18 NWLR (pt. 851) 24, Adara v. State (supra). In this case, the Prosecution had to also prove that the death of the deceased was caused by the Appellant; and that the Appellant's act that caused the death was done with the intention of causing death or he knew that death would the probable consequence of his act.
Issue 1 is inextricably tied to the appraisal of the facts vis-a-vis the ingredients of the offence of culpable homicide, which are that:
i. The deceased died;
ii. The death of the deceased resulted from the act of the Accused; and
iii. The Accused caused the death of the deceased intentionally or with knowledge that death or grievous bodily harm was its probable consequence.
See Section 221 of the Penal Code, Sule Ahmed (Alias Eza) V. State (2001) 18 NWLR (Pt. 746) 622 SC, relied upon by the trial Court and Akpa V. The State (2007) 2 NWLR (pt. 1019) 509 relied upon by the Court of Appeal. The Appellant cited the following on this point– State V. Danjuma (1997)5 NWLR (Pt. 505) 512,– Sule v. State (2009)19 NWLR (pt. 1169) 33, Nkebisi V. State (2010) 5 NWLR (Pt. 1188) 471,– Mbang V. State (2010) 7 NWLR (Pt.1194) 431,– Usman V. State (2011) 3 NWLR (PT. 1233) 1,
– Uluebeka V. State (2011) 4 NWLR (pt. 1237) 358,– Ogba V. State (1992) 2 NWLR (Pt. 222) 164– Nwaeze V. State (1996) 4 NWLR (Pt. 143) 175 and– Gira v. State (1996) 4 NWLR (pt.443) 375
On what constitutes culpable homicide, the provisions of Section 220 of the Penal Code is clear and it provides:
220 whoever causes death-
(a) by doing an act with the intention of causing death or such bodily injury as is likely to cause death; or
(b) by doing an act with the knowledge that he is likely by such act to cause death; or
(c) by doing such rash or negligent act, commits the offence of culpable homicide.
Also to succeed in a charge of culpable homicide under Section 221 of the Penal Code, the prosecution must prove the following beyond reasonable doubt: –
(a) death of a human being was caused;
(b) the accused was the cause of the deceased person's death; and
(c) the act of the accused leading to the death of the deceased person was done intentionally or with knowledge that death or grievous harm was the probable and not only likely consequences of the act.
The lower Court was thus right in invoking the last seen doctrine against the appellant. As this Court held in Iliyasu v State (2015) LPELR – 24403 (SC) 44 -46; E F, [per Nweze, JSC]: The last seen doctrine, a doctrine of global application, Madu v The State (2012) LPELR -7867 (SC) 51-52; [2012] 15 NWLR (pt 1324) 405; [2012] 6 SCNJ 129; (2012) 6 SC (pt 1) 50; [2012] 50 NSCQR 67, also referred to as 'the last seen theory' Ralashkhanna v State of A.P (2006) 10 SCC 172, is applied in homicide cases in Nigeria, Rabi Ismail v The State (2011) MJSC 20, 77. It creates a rebuttable presumption to the effect that the person last seen with a deceased person bears full responsibility for his or her death, Jua v The State [2010] 2 MJSC 152, 186 -187. Thus, where an accused person was the last person to be seen in the company of the deceased person, he has a duty to give an explanation relating to how the latter met his or her death. In the absence of such an explanation, a trial Court and even an appellate Court will be justified in drawing the inference that he [the accused person] killed the deceased person, Igabele v State [2006] 6 NWLR (pt.975) 100; Obosi vState (1965) NMLR 140; Nwaeze v The State [1996] 2 SCNJ 47, 61- 62; Gabriel v. State [1989] 3 NWLR (pt122) 457; Adeniji v. State (2001) 87 LRCN 1970; Madu v The State(supra); Igho v The State (1978) 3 SC 87,254; [1978] 3 SC 61, 63. In view of the said doctrine therefore, it is the duty of the accused person to give an explanation relating to how the deceased met his or her death, Surely, in the absence of such an explanation, a trial Court and even an appellate Court, will be justified in drawing the inference that the accused person killed the deceased, Igabele v The State (supra); Obosi v. State (supra); Adepetu v The State (1998) 7 SCNJ 83; [1998] 9 NWLR (pt. 565) 185; Adeniji v The State (supra); Emeka v The State (2001) 14 NWLR (Pt 734) 666, 683; (2001) 6 SCNJ 259; Uguru v The State (2002) 4 SCNJ...
What is deducible from the above ingredients on the duty of the prosecution to establish the guilt of the accused person, must include:-
"(i) That the deceased died;
(ii) That his death was not a natural death;
(iii) That the accused person did something or omitted to do something he had a duty to do by law.
(iv) That the said act or omission resulted in harm to the deceased.
(v) That the deceased died as a result of the said injury or harm."
The basket is full with authorities established by this Court, on this subject. See:- THE STATE VS COLLINS AIBANGBEE & ANOR (2007) 2 NCC 648 at pages 689 – 690; AYO GABRIEL VS THE STATE (1989) 12 SCNJ 33 at 41; EZEKIEL ADEKUNLE VS THE STATE (1989) 12 SCNJ 184 at 192; GAMBO MUSA VS THE STATE (2009) S.C.N.Q.R. 39; CHUKWU VS THE STATE (2012) 12 SCNJ 208 at 222; OCHIBA VS THE STATE (2011) 12 SCNJ 526 at 537 MBANG VS THE STATE (2012) 6 SCNJ 395.
On the part of this Court, the law is settled that, for the prosecution to secure a conviction for the offence of culpable homicide punishable with death under Section 221(b) of the Penal Code it must establish the following ingredients beyond reasonable doubt:-
"(a) That there was a death of human being.
(b) That death was caused by the act of the accused person; and
(c) That the accused knew or had reason to know that death would be the probable and not only the likely consequence of his act."
In my view, whichever way it is slanted, the issue that calls for determination in this Appeal is whether the Prosecution proved its case against the Appellant beyond reasonable doubt, and this will entail the appraisal of the facts adduced in evidence vis-a-vis the ingredients of the offence of culpable homicide, which are
i. That the deceased died;
ii. That the death of the deceased resulted from the act of the Accused;
iii. And that the Accused caused the death of the deceased intentionally or with knowledge that death or grievous bodily harm was its probable consequence.
See Section 221 of the Penal Code and Sule Ahmed (Alias Eza) v. State (2001) 78 NWLR (Pt.745) 622 SC.
Therefore to prove the offence of culpable homicide punishable with death under Section 221 of the Penal Code as in the instant case the prosecution must lead credible evidence to establish the following ingredients:
1. The death of a human being actually took place;
2. That such death of the deceased resulted from the act of the accused person;
3. The act or omission which caused the death of the deceased was done with the intention of causing death or that the accused knew or had reason to know that death will be the probable and not only the likely consequence of his act.
I place reliance on Bello v State (2007) 10 NWLR (pt.1043) 564; Oladele v Nigeria Army (2004) 6 NWLR (Pt. 868) 166, Akpan v The State (2007) 2 NWLR (pt.2003) 18 NWLR (pt.1019) 50; Ubani v The State (2003) 18 NWLR (pt.851) 24, Bakare v The State (1987) 1 NWLR (pt.52) 579
Before the Court can convict under Section 221 of the Penal Code the charge must be proved beyond reasonable doubt and this is achieved when the Court is satisfied that:
(a) the death of a human being has occurred.
(b) the death of the deceased was caused by the accused/appellant.
(c) the act was done with the intention of causing death or that the accused knew or had reason to know that death will be the probable and not only the likely consequence of his act.
See Durwode v State (2000) 15 NWLR (Pt.691) p.467 Shande v State (2005) 12 NWLR (Pt.939) p.301.
A conviction for culpable homicide punishable with death under Section 221 of the Penal Code would be sustained if the prosecution is able to prove the ingredients of that offence beyond reasonable doubt. Now the ingredients of the offence of culpable homicide punishable with death or murder are as follows:-
(a) that the deceased has died;
(b) that the death of the deceased was caused by the act of the accused and,
(c) that the act of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence. See Musa v. The State (2009) 15 NWLR (Pt.1165) 467, Ilodigiwe v. The State (2012) 18 NWLR (Pt.1331) 1 Ogedengbe v. The State (2014) LPELR-23065 (SC), (2014) 12 NWLR (Pt.1421) 338.
On the part of this Court, the law is settled that, for the prosecution to secure a conviction for the offence of culpable homicide punishable with death under Section 221(b) of the Penal Code it must establish the following ingredients beyond reasonable doubt:
"(a) That there was a death of human being.
(b) That death was caused by the act of the accused person; and
(c) That the accused knew or had reason to know that death would be the probable and not only the likely consequence of his act."
What is deducible from the above ingredients on the duty of the prosecution to establish the guilt of the accused person, must include:
"(i) That the deceased died:
(ii) That his death was not a natural death;
(iii) That the accused person did something or omitted to do something he had a duty to do by law.
(iv) That the said act or omission resulted in harm to the deceased.
(v) That the deceased died as a result of the said injury or harm."
The basket is full with authorities established by this Court, on this subject. See:- THE STATE VS COLLINS AIBANGBEE & ANOR (2007) 2 NCC 648 at pages 689 – 690: AYO GABRIEL VS THE STATE (1989) 12 SCNJ 33 at 41; EZEKIEL ADEKUNLE VS THE STATE (1989) 12 SCNJ 184 at 192; GAMBO MUSA VS THE STATE (2009) S.C.N.Q.R.39; CHUKWU vs THE STATE (2012) 12 SCNJ 208 at 222; OCHIBA VS THE STATE (2011) 12 SCNJ 526 at 537, MBANG VS THE STATE (2012) 6 SCNJ 395.
Before a Court can convict on a charge of culpable homicide punishable with death, it must be satisfied on the whole evidence, including any explanation offered by the accused that the death was the probable consequence of the act of the accused.
It follows that to establish the offence so provided for under the said Section 221(b) of the Penal Code, the prosecution must establish the following as essential ingredients, viz:
a. that the death of a human being has actually occurred;
b. that such death was caused by the act or omission of the accused and was done with the intention of causing death or grievous bodily harm and;
c. that the accused knew that death would be a probable consequence of the act;
I rely on Michael v State (2008) 9 MJSC 61 at 63; Gambo Musa v State (2009) SCNQR 39; Chukwu v State (2012) 12 SCNJ 208 at 222; Ochiba v State (2011) 12 SCNJ 528 at 537; Mbang v State (2012) 6 SCNJ 395.
It is well-settled law, that the prosecution, in order to obtain conviction in a charge of culpable homicide punishable with death, contrary to Section 221 of the Penal Code, has the heavy burden of proving the under listed ingredients of the offence beyond reasonable doubt namely:-
(1) That death of a human being was caused
(b) That the accused was the cause of the deceased person's death.
(3) That the act of the accused leading to the death of the deceased was done intentionally or with knowledge that death or grievous harm was the probable and not only likely consequence of the act.
See Ogba v State (1992)2 NWLR (pt. 222)164.
The law is settled, that in order to obtain conviction in an offence of culpable homicide punishable with death contrary to Section 221 (a) of the Penal Code, the following ingredients of the offence must be established, namely:-
(a) The death of a human being was caused.
(b) That the death was caused through the act of the accused.
(c) That the act leading to the death of the deceased was done intentionally or with knowledge that death would be to the probable and not only likely consequence of the death of the deceased victim.
To succeed in a charge of culpable homicide under Section 221 of the Penal Code, the prosecution must prove the following beyond reasonable doubt.
(a) that the person the accused person is charged of killing actually died;
(b) that the deceased died as a result of the act of the accused person;
(c) that the act of the accused person was intentional and he knew that death or bodily harm was its likely consequence.
See State v. John (2013) 1 NWLR (Pt. 1368) p. 337.
Culpable homicide is defined in Section 220 of the Penal Code.
It reads:
"220. Whoever causes death-
(a) by doing an act with the intention of causing death or such bodily injury as is likely to cause death, or
(b) by doing an act with the knowledge that he is likely by such act to cause death; or
(c) by doing such a rash or negligent act, commits the offence of culpable homicide.
The charge the accused/appellant stood trial on is culpable homicide punishable with death, Contrary to Section 221(b) of the Penal Code.
ingredients of the offence that of necessity, must be proved by the prosecution in order to obtain conviction are:
(a) That death of a human being was caused;
(b) That such death was caused by the accused person.
(c) That the act that led to the death of the victim was intended to cause death or grievous hurt or that the accused knew or had reason to believe that by his action, death will be the probable and not only likely consequence of his act.
The ingredients of the offence of culpable homicide on which the appellant was charged, convicted and sentenced by the trial court but which the appeal court set aside, would be stated hereunder, viz:
(a) That the deceased had died
(b) That the death of the deceased was resulted from the act of the appellant
(c) That the act of the appellant was intentional with the knowledge that death or bodily harm was its probable consequence, See Sule v The State (2009) 6 – 7 NMLR 40 at 45.
Section 222 of the Penal Code reads: "222(1) Culpable homicide is not punishable with death if the offence 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. (2) Culpable homicide is not punishable with death if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation and without any intention of doing more harm than is necessary for the purpose of such defence. (3) Culpable homicide is not punishable with death if the offender, being a public servant action for the advancement of public justice or being a person aiding a public servant so acting exceeds the powers given to him by law and causes death by doing an act which he in good faith believes to be lawful and necessary for the due discharge of his duty as such public servant or for assisting such public servant in the due discharge is such duty and without ill will towards the person whose death is caused. (4) Culpable homicide is not punishable with death if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel and unusual manner. (5) Culpable homicide is not punishable with death when the person whose death is caused being above the age of eighteen years, suffers death or takes the risk of death with his own consent. (6) Culpable homicide is not punishable with death where a woman intentionally causes the death of her child being a child under the age of twelve months, but at the time of the act or omission the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the children or by...
For the prosecution to succeed in a charge of culpable homicide under section 221 of the Penal Code the following must be proved beyond reasonable doubt:
(i) that the person the accused person is charged of killing died.
(ii) that the deceased died as a result of an act by the accused person.
(iii) that the act of the accused person was intentional and he knew that death or bodily harm was its likely consequence.
The law is explicit in Section 222(1) of the Penal Code that culpable homicide is not punishable with death if the offender whilst deprived of the power of his 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. See Shuaibu Abdu v The State (2017) 7 NWLR (pt 1564) 171, Ahmed v The State (1999) 7 NWLR (pt 612) 641.
For this defence to avail an accused person, he must be able to prove conjunctively that: (a) it was the deceased person’s act of provocation which caused his loss of self-control; (b) he killed the deceased in the heat of passion and (c) at the time of the offence, the heat of passion had not waned or abated. Amala v State (2004) 12 NWLR (pt 888) 520. JOHN INYANG OKORO, J.S. C
In order to prove a charge of culpable homicide not punishable with death or manslaughter, there is no need to prove that there was an intention to cause death or to kill the deceased person, for indeed, it is the very absence of the intention to kill or cause death, that reduced the offence from culpable homicide punishable with death to manslaughter.
Reference was made to the case of STATE vs BOKA (1982) 1 NCR 85 at page 93 where Karibi Whyte, JCA (as he then was) held thus: “It would seem to me on the concepts of “rash” or “negligent” act used in Section 222(7) that the offence is committed where there is no intention to cause death and no knowledge that the act done would, in all probability, cause death.
The act complained of must be done without any criminal intent, the relevant considerations being the “rashness” or “negligence” of the act, These, or one of them alone, being the essential ingredients of liability, it would seem sufficient if the act complained of is the direct cause of death.” I am persuaded to rely on the case of EMMANUEL AYO vs. THE STATE (2015) 16 NWLR (Pt.1486) 531 at 546-547 the Court of Appeal per Abiriyi, JCA held thus:- “The death must be caused by the unlawful act of the accused person.
It must be proved not merely that act of the accused person could have caused the death of the deceased but that it did. See Apugo v. State (2006) 15 NWLR (pt.1002) 227, and R v. Oledinma (1940) 2 WACA 202.” See also the cases of: 1. CHARLES EGBIRIKA vs THE STATE (2014) 4 NWLR (Pt.1398) 558 at pages 578, 579 paras G-A and 580 para A. 2. SHINA OKETAOLEGUN vs THE STATE (2015) 13 NWLR (Pt.1477) 538 at page 560 paras B-F . MARY UKAEGO PETER-ODILI, J.S.C.
Section 223 of the Penal Code, the definition section of the offence, provides: “223. If a person by doing anything which he intends or know to be likely to cause death commits culpable homicide by causing the death of any person whose death he neither intends nor knows himself likely to cause death, the culpable homicide committed by the offender is of the description of which it would have been if he had caused the death of the person whose death he intended or knew himself to be likely to cause.” Section 224 of the Penal Code provides the penalty for the offence as follows: “224.
Whoever commits culpable homicide not punishable with death, shall be punished with imprisonment for life or for any less term or with fine or with both.”
This provision sets out the essential elements of the offence which must be proved in order to secure a conviction. They are:
a) The death of the person in question. b) That such death was caused by the act of the accused. c) That the accused intended by such act to cause death or that he intended by such act to cause such bodily injury as was likely to cause death or that he knew that such act would be likely to cause death or that he caused the death by a rash or negligent act. PER SANKEY, J.C.A.
THE DOCTRINE OF “LAST SEEN” The ‘last seen’ doctrine also indicates that any accused person charged with murder would be required to offer some explanation as to how the deceased met his death. In Haruna V AG Federation (2012) 9 NWLR (Pt. 1306) 419, the Supreme Court per Adekeye, JSC further explained the law in the following terms: “The doctrine of ‘last seen’ means that the law presumes that the person last seen with a deceased bears full responsibility for his death.
Thus, where an accused person was the last person to be seen in the company of the deceased and circumstantial evidence is overwhelming and leads to no other conclusion, there is no room for acquittal.” In the locus classicus on this doctrine, in Madu V State (2012) LPELR-7867(SC) 51-52, F-D, the Supreme Court per Ariwoola, JSC, expatiated the doctrine thus: “In the Indian Supreme Court case of Rajashkhanna V State od A.P. (2006) 10 SCC 172, the Indian Supreme Court noted as follows: “The last seen theory comes into play when the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that the possibility of any person other than the accused being the author of the crime becomes impossible.” However, in S.K.
Yusuf V West Bengal (2011), the same Supreme Court after referring to its earlier stand above further held that where there is a long time – gap between the “last seen together” and the crime, and there is a possibility of other persons intervening, it is hazardous to rely on the theory of “last seen together”. Even if the time gap is less and there is no possibility of others intervening, it is said to be safer to look for corroboration.” See also Oladapo V State (2020) LPELR-50553(SC) 16-17, D-A; Kolade V State (2017) LPELR-42362(SC) 53-54, E-B Mbang V State (2009 LPELR-1852(SC).
PER SANKEY, J.C.A.
By virtue of Section 221 of the Penal Code to secure a conviction of an accused person for Culpable Homicide punishable with death, the prosecution must prove the following: (a) That the death of a human being took place. (b) That such death was caused by the accused person. (c) That the act of the accused person that caused the death was done with intention of causing death; or that the accused person knew that death would be the probable consequence of his act. All these ingredients must be proved before a conviction will be secured.
See Adava v The State (2006) 9 NWLR (pt. 984) 152 and Isah v The State (2017) LPELR 43472. PER ABIRIYI, J.C.A.
It needs no gainsaying that it is in an attempt to comply with the above provisions of the law regarding the details of the offence alleged committed by appellant that Respondent at the lower Court, in framing its charge against appellant and his co-accused, stated, expressly, that they not only committed culpable homicide punishable with death but that they did so by strangulating the deceased and pushed him into the water.
The ingredients of the offence of culpable homicide punishable with death are (1) that the death of a human being has taken place, (2) that such death was caused by the accused person and (3) that the act of the appellant that caused death was intentional or appellant knew that death would be the probable consequence of his act. The prosecution must prove these ingredients conjunctively and beyond reasonable doubt to secure conviction: see Ahmed v. State (2018) LPELR-46606 (CA).
It can do that through any of three means, namely direct evidence of eyewitness to the offence; by confessional statements of the accused person admitting the offence, or by circumstantial evidence. See State v. Raphael Sunday Ifiok (2019) LPELR-46943(SC). PER UGO, J.C.A.
Before a conviction for culpable homicide punishable with death can be achieved on circumstantial evidence, the fact of the death should be proved by such circumstances as render the commission of the crime certain and leave no ground for reasonable doubt. Where circumstantial evidence points on different or many directions, a Court cannot convict an accused for the offence of murder or culpable homicide. See MAIGARI V. STATE (2010) 16 NWLR (PT 1220) 439 and OSUOHA V. STATE (2010)16 NWLR (PT 1219) 364. PER LAMIDO, J.C.A.
And yet the law is well settled, beyond per adventure, that unintentional killing of a human being, which is unpremeditated but accidental, tantamounts to culpable homicide not punishable with death (otherwise called manslaughter). See EJEKA VS THE STATE (2003) 7 NWLR (Pt. 819) 408. IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.
POSITION OF LAW ON AN UNINTENTIONAL KILLING OF A HUMAN BEING In the recent case of EGBIRIKA VS THE STATE (2014) All FWLR (Pt. 725) 237, this Court had the unique privilege of reiterating the trite fundamental doctrine: The position of the law is that no matter how reckless the conduct of the accused might be, so long as the killing the result from his act was not intended, the act would not fall within the provisions of Section 316 of the Criminal Code and therefore would not constitute murder. IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.
In order to prove the offence of culpable homicide punishable with death, the prosecution must prove the following facts beyond reasonable doubt: 1. That the deceased died. 2. That his death was caused by the accused. 3. The act of the accused which caused the death was intentional knowing that death or grievous bodily harm was the probable consequence of his act. See:Udo vs The State (2016) 2-3 SC (Pt. 111) 29; Igabele vs The State (2006) 6 NWLR (Pt. 975) 100; Haruna vs A.G. Federation (2012) LPELR – 7821 (SC) . KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.
The law is trite that where a person unintentionally kills another, he would be guilty of manslaughter. That is to say that such killing is not premeditated but accidental in the sense that it was not intentional. See Ex CPL Ikechukwu Nwabueze v. The People of Lagos State (2018) 11 NWLR (pt 1630) 201 – Ejeka v. State (2003) 7 NWLR (pt 819) 408 – Akpabio v State (1994) 7 NWLR (pt 359) 635. JOHN INYANG OKORO, J.S.C.
Elements that must be proved to succeed in a charge of culpable homicide
To succeed in a charge of culpable homicide under Section 221 of the Penal Code, the prosecution must prove the following beyond reasonable doubt: (a) That the person the accused person is charged of killing actually died; (b) That the deceased died as a result of the act of the accused person; (c) That the act of the accused person was intentional and he knew that death or bodily harm was its likely consequence. See: STATE V. JOHN (2013) 1 NWLR (PT. 1368) P. 337; TUNDE ADAVA & ANOR VS. THE STATE (2006) 9 NWLR (PT. 984) 152; (2006) 3 SCM 1, (2006) 2 SC (PT. 11) 136; MAIKUDI ALIYU VS.
THE STATE (2013) 12 SCM (PT. 2) 195; BELLO V STATE (2007) 10 NWLR (PT. 1043) 564; OLADELE V NIGERIA ARMY (2004) 6 NWLR (PT. 868) 166, AKPA V THE STATE (2007) 18 NWLR (PT. 1019) 50; UBANI V THE STATE (2003) 18 NWLR (PT. 851) 24, BAKARE V THE STATE (1987) 1 NWLR (PT. 52) 579. It must however be noted that all the above three ingredients of the offence must necessarily co-exist and none must be lacking.
Where one is missing or not established, it means that the prosecution has simply failed to discharge the burden of proof that the law places on her in order to succeed with the charge – UCHECHUKWU ONYEMENAM, J.C.A.
However, it is settled that in order to invoke the plea embedded in Section 221(1) of the Penal Code, the accused must lead evidence to establish the following elements of facts: 1. The act of provocation must be grave and sudden 2. The accused must have been deprived of the power of self-control actual & reasonable 3. The mode of resentment degree or extent of the relationship must bear a reasonable relationship or be proportionate to the provocation offered. PER OGUNWUMIJU, J.S.C.
In a charge alleging culpable homicide punishable with death under Section 221(a) of the Penal Code, the law is that the Prosecution has the onus, an onus which in criminal trials never shifts, to prove the essential elements of the offence of culpable homicide punishable with death, to wit: i. The fact of the death of the deceased; ii. That the death of the deceased was caused by the act of the Accused person; iii. That the act of the Accused was intentional with knowledge that death or grievous bodily harm was the probable result.
See Section 221 of the Penal Code Cap 94 Laws of Niger State 1989. See also Sa’adu Deriba (Driver) V. The State (2016) LPELR – 40345 (CA) per Sir Biobele Abraham Georgewill JCA. See also Alhaji Mua’zu Ali V. The State (2015) 5 SCM 26. See also Tajudeen Iliyasu V. The State (2015) 11 NCC 300, Uguru V. The State (2002) LPELR 3325 (SC) and Umar V. The State (2014) 238 LRCN 141.
However, it must be pointed out for once that in proving the guilt of an Accused person, the Prosecution has open to it three basic types of evidence with which to prove the guilt of accused person, namely; i: Confessional statement; ii: Circumstantial evidence and iii: Evidence of eye witness. See That the act of the Accused was intentional with knowledge that death or grevious bodily harm was the probable result. See Section 221 of the Penal Code Cap 94 Laws of Niger State 1989. See also Sa’adu Deriba (Driver) V.
The State (2016) LPELR – 40345 (CA) per Sir Biobele Abraham Georgewill JCA, Saheed V. State (2018) LPELR – 46675 (CA) per Sir Biobele Abraham Georgewill JCA, Abu V. State (2022) LPELR – 56902 (CA) per Sir Biobele Abraham Georgewill JCA, Godwin Igabele V. The State (2006) 6 NWLR (Pt. 975) 103, Lori V. The State (1980) 8 – 11 SC 81; Emeka V. The State (2001) 14 NWLR (Pt. 734) 666, Peter Igho V. The State (1978) 3 SC 87, Archibong V. The State (2006) 14 NWLR (Pt. 1000) 349. PER GEORGEWILL, JC.A.
It is settled law that in order to sustain a conviction in a charge of culpable homicide under Section 221 of the Penal Code, the prosecution must prove the following ingredients. (a) That there was a death of a human being. (b) That the death was as a result of the act of the accused and (c) That the act was done with the intention of causing such injury that death would be probable consequence of his act. See Jua v. State (2010) NWLR (Pt. 1184) 217 at 250; Yaki v. State (2008) 7 SC 28 at 29. PER TALBA, J.C.A.
THE POSITION OF LAW ON THE BURDEN OF PROVING THE GUILT OF AN ACCUSED PERSON IN A CRIMINAL TRIAL
By virtue of the provision of Section 36(5) of the Constitution of the FRN 1999 (as amended) every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.