“I AM an experience Policeman. I joined the Police on June 1982. I was posted as an Exhibit Keeper in December, 1992. It is not compulsory to get police report on lost item. There is no report that the items burnt in the case were burnt in Lagos. The things got burnt at a government laboratory. We have dispatch books in the Police.” That is all that came out from the examination. The main aim or objective of cross-examination is to destroy or damage the case of the prosecution and to make the Court believe that the accused did not commit the offence; or if he committed the offence there are valid defences available to him. It looks to me from the answers above that the cross-examination gave another opportunity to the prosecution to strengthen or fortify its case. How can the experience of PW1 in the police force, particularly as Exhibit Keeper be of any use to the proof of criminality of the appellant? I can hardly see any nexus. There is none. PW3 in his evidence in chief said:- “When we came back from Offa around 6pm we met the complainant who was back with the particulars. We then started to search for Constable Rotimi. We spent 21 days after the incident looking for Constable Rotimi and Moses Jua. After 21 days of search we got information from Ede Police Station in Osun State that the suspect we were looking for, Moses Jua, had been arrested and detained there… When they brought Moses Jua, he confirmed that they had killed the Constable PC Rotimi. He then mentione the names of all other accused including the accused that was dead.” PW4 in his evidence in chief said: “On 28/3/94 the O/C Erinle Police Station, one PC Paul Makanjuola and myself left for Ede. On arrival at Ede, we met the DCO and he confirmed that one Moses Jua is in detention in the cell. He was then brought to Erinle. During interrogation at Ede Police Station, he confessed that himself and one Joseph Ahen Sebastine were the people who stole the motorcycle and that the
father of Sebastine Telu was there when they killed PC Rotimi.” PW5 who took the confessional statement from the appellant, also said: “We then searched the house of the accused persons with search warrant. We recovered a cutlass, which was believed to have been used in killing the deceased. Later, the torn guinea jumper, trouser, the cutlass, the teeth were registered as exhibits with the Exhibits Keeper.” Witness had earlier said in evidence that he recovered at the scene, one guinea yellow trouser with one yellow guinea jumper worn by the deceased as well as some quantity of human hair and three teeth. PW6, in his evidence in chief also confirmed that the deceased was last seen with the appellant. He said: “Capt. Uzor then said, I should go and call Constable Rotimi Jeremiah, the deceased. I went out to see if the officer in charge of the Station was around and I now saw Constable Rotimi Jeremiah coming. Cpt. Uzor now told Rotimi Jeremiah to follow the 1st accused to the Ibukun Olo Baptist Church area Ipee. Rotimi then asked him to book their movement to Ibukun Olu Baptist Church Area Ipee which I did. After booking their movement, they left with the motorcycle Reg. No.OY 3562G both 1st accused and Constable Rotimi.” The evidence of PW1 and PW6 confirmed that the appellant and the deceased were last seen together. While evidence of accused person last seen together with a victim per se may not be proof of culpable homicide punishable with death, it can support and corroborate other acts of the accused person resulting in the death of the deceased. Are there such acts in this case? Yes. There are. The things recovered from the scene of crime are evidence of the offence. Upon search of he houses of the accused persons including that of the appellant’s house, the cutlass was found. That was the evidence PW5. Learned Counsel for the appellant submitted that in the absence of forensic evidence on the exhibits the appellant cannot be convicted of the offence. That is quite a new one to me. With respect, I do not agree with him. Where exhibits point unequivocally to the guilt of an accused person, as evidence in this case, forensic is not necessary. Learned Counsel forthe appellant rejected the evidence of the prosecution witnesses with a mere waive of the hand at pages 16 to 25. With respect, I do not agree with him. The evidence given by the witnesses were not dislodged by the appellant under cross-examination. The learned Counsel submitted that Capt. Uzor is an essential witness that the prosecution ought to have called. He urged the Court to invoke Section 149(d) of the Evidence Act. Section 149(a) does not provide that a particular witness should or must be called. The subsection proposes that a particular evidence should be called. See Igwunor vs. Corporative Bank of Eastern Nigeria Ltd. (1994) 8 NWLR (Pt.318) 90 at 119; Onuwaje vs. Ogbeide (1991) 3 NWLR (Pt.178) 187 at 162 and Aremu vs. The State (1991) 7 NWLR (Pt.201) 1 at 17. Some other witnesses gave evidence of the fact that the appellant was last seen with the deceased and so the evidence of Cpt. Uzor was not inevitable. I repeat that Section 149(a) is on a failure to call evidence and not failure to call a particular witness. Accordingly, the failure to call Cpt. Uzor is neither here nor there. That takes me to the failure of the prosecution to produce the corpus delicti. Learned Counsel for the appellant made so much weather
of it. It is not in all cases where the corpus delicti is produced to secure conviction of an accused person. It is not the law that an accused person must be discharged and acquitted if the body is not produced for medical examination. The law knows that there are instances and circumstances where an accused person takes measures to destroy the body in order to avoid prosecution or conviction if prosecuted. Accordingly, where there is evidence that a human being was killed by another human being, the latter can be convicted when the body of the former is not found. The important consideration is whether there is a nexus between the accused and the killing of the victim to the extent that the law comes to the conclusion that it is the accused person who killed the deceased. In Babuga vs. The State (1996) 7 NWLR (Pt.460) 279 at 296; Onu, JSC said: “As a matter of fact conviction can properly be secured in the absence of a corpus delicti where there is a strong direct evidence. It is true that the body of the deceased has not been recovered, but it is settled that where there is positive evidence that the victim had died, failure to recover his body need not frustrate conviction.” I should add here that an accused person can also be convicted on strong and compelling circumstantial evidence in the absence of corpus delicti. The evidence need not necessariy be direct. There is enough evidence that the body of Constable Rotimi Jeremiah was burnt. How then can the corpus delicti be found? I should also take the confessional statement of the appellant. Although the Court of Appeal rejected the confessional statement of the appellant, the Court accepted the oral confessional to the crime by the appellant. The Court of Appeal said: “I agree with the learned trial Judge that the appellant had admitted commission of the crime orally to those who arrested him initially before he was ever transferred to the SHB at Ilorin where the Pw5recorded the retracted statements in writing.” The best evidence for purposes of conviction is confession to the Commission of the crime by the accused person. What the Court should look into is whether the confession was voluntary and accords with Section 27 of the Evidence Act and not against Section 28 of the Act. In this case, the Court of Appeal rejected the confessional statement but accepted the oral confession made by the Appellant to the police. A conviction on the oral confession is proper in law. Although learned Counsel faulted the witnesses for the prosecution, I am of the view that they gave inculpatory evidence which justifies the conviction of the Appellant and the subsequent confirmation of the conviction by the Court of Appeal. There was not enough cross-examination to destroy the veracity of the evidence of the witnesses. The appeal fails. The Appellant has to face the gallows. The appeal is dismissed.” See also Ismail vs. The State (2011) 7 MJSC 28; Adenuga vs. State (2011) 13 NWLR (Pt.730) 375 and Adepetu 8 NWLR (Pt.565) 185. The “last seen theory” is anchored on the provisions of Section 126(a) of the Evidence Act, 2011. The conviction of the appellant by the learned trial Judge can be further supported under the provisions of Section 126(b) and (d) of the Evidence Act (supra) which provides as follows: “(b) To a fact which could be heard, it must be the evidence of a witness who says he heard that fact. (c) xxxxxxx (d) If it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds: Provided that the opinion of experts expressed in any treaties commonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treaties if the author is dead or cannot be found, or has become incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable.” The evidence of the prosecution witnesses which stands unchallenged and is not discredited can be supported on the “last seen”; “last heard” and “last perceived” theory coupled with the grounds on which the opinion of these vital witnesses was held. Section 76 of the Evidence Act, 2011 provides as follows: “76. Whenever the opinion of any living person is admissible, the grounds on which such opinion is based are also admissible.” See paragraphs 37-09 and 37-10 of Phipson On Evidence (supra) page 921 to 923. There is no merit in this appeal which is hereby dismissed. The decision of the learned trial Judge is affirmed.

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