Joseph Idowu v. The State

I have had the privilege of reading in advance, a copy of the leading judgment of my learned brother Ogundare, JSC and I entirely agree with his reasoning and conclusion for allowing the appeal and substituting the conviction for murder with manslaughter. I fully endorse the reasoning and conclusion as mine.
I wish to contribute the following by way of emphasis on the lead judgment.
There is no doubt as emerged from the evidence adduced in this case, the findings of both the trial court and the Court of Appeal that the appellant ravished his victim, a girl of tender age of 5years by forcefully having carnal knowledge of her, resulting in an injury to her private part. But the question to ask and to answer is – was there such description, the extent and gravity of the wound which would lead to the inevitable conclusion that it was such act which was of such a nature to justify conviction as stipulated in Section 316(3) of the Criminal Code of Ogun State? I shall answer the question in the negative for the following reasons:- 1. P.W. 4, the medical doctor that

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examined the deceased when she was brought to the hospital both before and immediately after her death, testified thus –
“On 8th July, 1991 a child brought from J4 unconscious, with head injury with deep wound in her private part, died at the state hospital. She was Shade Pelemo.
I saw her on 8th July and was actually preparing to repair the damaged wound in her private part. Throughout the time, she was unconscious. She was bleeding properly from her private part. When she died, I performed the post mortem examination.
I found her in a position of braised stem injury which is suggestive of head injury. The wounds in her private part were still fresh. The fresh wound in her private part in my opinion could be caused by a penetrating object. Anything that made a forced entry. We did not find any remnant of anything inside her so we could not decide the object. I wrote a report immediately after the post mortem examination.
When the deceased was brought to me before she died, I did not make any diagnosis of the probable cause of the deep wound injury in her private part.
The child died as a result of the multiple injury to the head and the private part.

There was no one to give any history of what happened. The person who brought her did not give an account of what happened.
The head injury was caused by contact with a blunt object like falling down or knocking the head against a hard surface. The head injury could have been caused by a struggle if it leads to a fall.
A person who is unconscious has lost communication with the rest of us, but the cause of his unconsciousness may result in some movements like twitching, foaming in the mouth etc. An unconscious person who is restless can fall down. It is possible for the head injury to precede the injury to the private part.
The people who brought her said they found her in the house unconscious and bleeding. How the injury occurred nobody told me.
We do make attempt to find out cause of unconsciousness or illness but in this case the concentration was on saving her life. Attempt was even made to put her on oxygen. She was twitching and foaming in the mouth.
Connection means temporary loss of consciousness. We were hoping that she could be resuscitated. She was convulsing by the time she was brought to us. Any head injury could cause convulsion which is just irritation of the brain.
There was no evidence that the injury to the vagina was caused by accidental

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fall on a sharp object otherwise there would be evidence of the object. It was more like a forced entry of a penetrating object,”
2. The learned trial judge in considering the evidence inclusive that of P.W. 4, the medical doctor, commented
“However, under Section 316(3) of the Criminal Code, before the court can convict for murder, the prosecution must not only prove that the unlawful act of the accused caused the death of the deceased, it must show that the unlawful act is of such a nature as to be likely to endanger human life. The test for whether the act is of a nature likely to endanger human life is whether death is a reasonably probable consequence of the act.”
And after considering the decisions in R. v. Nameri 20 NLR 6; The King v. Udofa [diong & Umo (1950) 13 WACA 30, She concluded –
“In the case on hand, there is no evidence, and it is very inconceivable that such a horrendous act of ravishing a five years old girl could be acceptable as usual.

The prosecution has proved beyond reasonable doubt that the accused person unlawfully killed Shade Pelemo by the unlawful act of having carnal knowledge of her which is an act which is reasonably probable to endanger her life.”
Earlier, the father of the deceased and who testified as P.W. 1, stated thus under cross-examination –
“When I arrived and they told me that Shade was ill and taken to the hospital, I thought she had her usual ailment which was convulsion. I was asking why they did not give her usual medicine.”
Where a person is charged with a criminal offence, be it murder or any other criminal offence, the onus on the prosecution is proof beyond reasonable doubt.
See Section 137(1) of the Evidence Act and the decisions in Joshua Alonge v. Inspector-General of Police (1959) SCNLR 516, (1959) IV FSC 203; R v. Samuel Abengowe 3 WACA 85 and R. v. Oledima & 60rs. 6 WACA 202. The cause of death of the victim must be caused by the act of the accused or in other words, it must be shown that it was that act which caused the deceased’s death. See Sunday Omonuju v. The State (1976) 5 SC 1 and Frank Onyenankeya v. The State (1964) NMLR 34.
There was no eye witness to the incident and the circumstantial evidence linking the accused/appellant to the offence he was charged with, tried and convicted is inconclusive. See: Valentine Adie v. The State (1980) 1- 2 SC 16 and Lejzor Teper v. The Queen (1952) AC 480 particularly at 489. 

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However, there are Exhibits A & C, i.e. the accused/appellant’s confessional statements of ravishing the deceased, a girl aged 5 years. Exhibits A & C were subjected to a “trial within trial” to decide their voluntariness or otherwise. It was after following this procedure that the learned trial Judge admitted the two statements as voluntarily made by the accused/appellant which he retracted while testifying in his own defence. But mere retraction of a voluntary confessional statement by an accused person does not render it inadmissible or worthless and untrue in considering his guilt. See: R. v. Sykes (1913) 8 CR. App. 233 and Kanu v. The King 14 WACA 30. 
If the confessional statement is satisfactorily proved, a conviction founded on it without more, will be sustained by an appellate court. See: The Queen v. Obiasa (1962) 1 All NLR 645; Paul Onochie & 70rs. v. The Republic (1966) NMLR 307; Obue v. The State (1976) 2 SC 141 and Jimoh-Yesufu v. The State (1976) 6 SC 167.

In The Queen v. Gabriel (1957) WRNLR 91, Thomas J. (as he then was) while considering a case involving rape of a girl of 14 years in the course of which she died, stated –
“It is true that the girl was killed by the act of ravishment and it is immaterial that the accused did not intend to hurt her; but the question remains as to whether the act is per se of such a nature as to be likely to endanger human life … this is a question of fact which the prosecution has been silent on this point.”
The question that falls to be decided is whether there was intent to cause death by the accused/appellant: Brown Etuk Udo v. The Queen (1964) 1 All NLR 16. I can find no such evidence.
An accused person will be found guilty of manslaughter if it is proved that he intentionally committed an act which was unlawful and dangerous and which inadvertently caused death. The test is an objective one. In judging whether the act is rash, dangerous, and unlawful, the test is not that the accused recognised its danger. See: Larkin (1942) Cr. App. R. 18; Church (1966) 49 Cr. App. R. 206; (1966)I.Q.B. 59andD.P.P. v. Hewbury; D.P.P. v. Jones(1976) 62Cr. App.R.291.
However, the evidence adduced proved an unlawful act caused by the accused not amounting to murder, and where such is the case, and following the decisions in Nameri and Gabriel (supra), I find the accused not guilty of murder but guilty of manslaughter by virtue of Section 179 of the Criminal Procedure Act applicable in Ogun State. See: Nwachukwu John v. The State

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(1966) All NLR 496.
The conviction of murder of the accused by the trial court which was subsequently affirmed by the Court of Appeal is set aside and in place thereof a conviction for manslaughter contrary to section 317 of the Criminal Code is substituted. A sentence of 14 years imprisonment with hard labour, taking effect from the date of his conviction for murder by the trial court is hereby imposed.
It is for these and the fuller reasons in the lead judgment of my learned brother Ogundare, JSC that I also hereby allow the appeal on the conviction of murder with a substitution for manslaughter.
But before concluding this judgment, I wish to comment on the way and manner the prosecution conducted the investigation of this case. The method adopted left much to be desired. With the number of police officer trained as lawyers in the Police Force, the quality of the police investigation, particularly in this case, is far below the quality and standard one would expect in this age of technological developments.

The Ministry of Justice, which has the responsibility of supervising investigation of criminal cases, particularly those involving human lives, are also not free from blame. Prosecutions of cases are more often than not, conducted in a loose and unsatisfactory manner, resulting in acquittal of criminals who should have been convicted.

I have had the privilege of reading in draft the judgment  of my learned brother, Ogundare, JSC and I fully agree with him.
The appellant was charged in the High Court of Ogun State, Ijebu-Ode Judicial Division with the murder of Sade Pelemo, a girl of 4 years and 9 months on or about 7-7-91 contrary to Section 319(1) of the Criminal Code Law Cap. 29 Laws of Ogun State, 1978. He was tried, convicted and sentenced to death. His appeal to the Court of Appeal was dismissed and he has further appealed to this court against the conviction and sentence.
There were two original grounds of appeal and two additional grounds of appeal. They were numbered (1) to (4). At the hearing of the appeal on 24-2-2000, grounds 1 and 2 were abandoned and ground (4) was incompetent. Grounds (1), (2) and (4) and the issues formulated from them were struck out. The appellant was left with ground 3. An issue for determination distilled from the said ground 3 reads:
“The appellant respectfully prays the court to determine whether:
The court below was justified in the light of the evidence in the printed record

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in concluding that the appellant was properly convicted on the retracted confessional statements, Exhibits A and C. ”
At the hearing on 24-2-2000, counsel adopted their respective briefs of argument and made oral submissions in amplification of the arguments contained in the briefs. The appeal was adjourned for judgment. When the appeal was being considered, the court decided to invite counsel in the case to address it further on whether a case of murder or manslaughter was made out on the facts and in the light of the provisions of Section 316(3) of the Criminal Code Law of Ogun State of Nigeria.
Further briefs of argument were filed and on 18-5-2000, counsel addressed us further after adopting their additional or supplementary briefs. It is important at this stage to state in summary form, the facts of the case. The appellant was living with his elder brother, Ferdinand Taiwo Pelemo and his wife at Forestry Farm, J4, Ijebu Waterside, Ijebu-Ode in Ogun State. On 4-7-91, the appellant’s said elder brother and his wife travelled to Akure for the weekend and left their two children, Rotimi (a boy) aged 7 years and Sade (girl) aged 4 years and 9 months in the care of the appellant. On 7-7-91, the appellant had unlawful carnal knowledge of Sade.
She bled profusely from the vagina and was rushed to the hospital where she died the next day.

The appellant was arrested and prosecuted for murder. His conviction and sentence which were confirmed by the court below resulted in this appeal. He made two confessional statements to the police which he retracted at the trial. The facts of the case, the two confessional statements of the appellant and the evidence of the medical doctor (P.W 4) are fully set out in the lead judgment of my learned brother Ogundare, JSC, it is unnecessary to repeat them.
It was the appellant and the deceased who knew what happened. The medical officer who examined Sade when she was brought to the hospital and who performed the post mortem examination on the body testified as P.W.4. His evidence is corroborated by Exhibits “A” and “C”
The only issue for determination remaining after grounds 1, 2 and 4 of the grounds of appeal and the issues formulated from them were struck out was based on Exhibits “A” and “C”. At the trial, the appellant retracted his two confessional statements to the police. The learned trial Judge conducted a “trial within trial” and found that the statements were freely and voluntarily made. She admitted them in evidence as Exhibits “A” and “C”.
In relation to the two statements, the learned trial Judge found as follows:

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“On the evidence adduced during the voir diar and during trial, I accept the prosecution’s evidence that the accused was not induced by threat of any form to make the statement. The evidence of torture given by the accused appears more imaginary than real. In my view, he would have landed in the hospital or in his grave if he went through the physical torture which he described. I believe the statements were voluntarily made …
The testimony of the accused corroborates part of the contents of Exhibits ‘A’ and ‘C’. Only the accused could have given such details in Exhibits’ A’ and ‘C’ regarding the visits of friends of P.W.1, the purchase and drinking of illicit gin … and the preparation of food for the children. The only material part of Exhibits ‘A’ and ‘C’ omitted from the testimony of the accused was his defilement of the deceased. However, that aspect of the statement had been corroborated by the doctor … He said that the wound in her private part was deep and fresh. It was caused by a penetrating object forcefully intruded into her … Further, the doctor said that the child was twitching and bleeding profusely from her private part till she died ….

These are facts independent of the confessional statement from which the court can draw incontestible inference that the confessional statements are true. The inference from the evidence is that the penetrating object which forcefully injected itself into the child were the finger and the penis of the accused as contained in his confessional statements. I find that the accused person made the statements, Exhibits ‘A’ and ‘C’ voluntarily and that the contents are true.”
The above finding of the learned trial Judge cannot be faulted. It was affirmed by the court below and I see no reason to hold a contrary view. I agree with the courts below that the statements (Exhibits “A” and “C”) are direct and positive, duly made and satisfactorily proved. A free and voluntary confession of guilt by a prisoner if it is direct and positive and is duly made and satisfactorily proved as in the case in hand, is sufficient to warrant conviction without corroborative evidence so long as the court is satisfied of the truth of the confession. See: Yesufu
v. The State (1976) 6 S.c. 167 at 173; Edet Obasi v. The State (1965) NMLR 119; R. v. Sullivan (1887) 16 Cox 347 and R. v. Sykes (1913) 8 CR. App. R. 233.
In his supplementary brief, Mr. Obianwu, learned counsel for the appellant submitted that section 316(3) of the Criminal Code had been the subject of the decisions in the following cases: R. v. Okoni (1938)4 WACA 19;R. v.

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Dogo(1949) 12 WACA 519; R. v. Idiong & Ors. (1959) 13 WACA 30; R. Obi (1957) WNLR 91; R v. Akanbi (1962) WNLR 16 and Oba}i v. The State (1976) 7 Sc. 173. He referred the court to Okonkwo and Nash on Criminal Law in Nigeria, 2nd ed. Pages 233-336.
Mrs. Asenuga, learned Director of Public Prosecution, Ogun State referred to Sections 306, 311, 315 and 316(3) of the Criminal Code in the respondent’s supplementary brief. She submitted that to establish a charge of murder against an accused person, the prosecution must prove the following:
“(a) that the accused killed the deceased. To establish this, the prosecution must adduce cogent evidence linking the accused with the death of the deceased, by showing either a positive act or negative omission of the accused causing injury to the deceased which in turn resulted directly in the deceased death;
(b) that the killing of the deceased was unlawful;
(c) that the accused killed the deceased under one of the six circumstances enumerated in Section 316 of the Criminal Code.
See: Onah v. The State (1985) 3 NWLR (Pt. 12) at 236-246 B-D.”
She further submitted that the appellant was aware of what he was doing for he described in detail how he raped the deceased in his confessional statements and that he was not insane. She submitted further that from the facts established, the unlawful homicide committed by the appellant amounted to murder and that he was appropriately charged and convicted.

The learned trial Judge found the appellant guilty of murder under Section 316(3) of the Criminal Code. She found as follows:
“However, under Section 316(3) of the Criminal Code, before the court can convict for murder, the prosecution must not only prove that the unlawful act of the accused caused the death of the deceased, it must show that the unlawful act is of such a nature as to be likely to engender (sic) human life. The test for whether death is a reasonably probable consequence of the act… .. The ravishing of the girl of five is clearly an unlawful act. The question to be asked is whether it is an act of such a nature as to be likely to endanger life .
In the case in hand, there is no evidence, and it is inconceivable that such a horrendous act of ravishing a five year old girl could be acceptable as usual. The prosecution has proved beyond reasonable doubt that the accused person unlawfully killed Shade Pelemo by the unlawful act of having carnal knowledge of her which is an act which is reasonably probable to endanger life.”

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The court below affirmed the above finding when it held:
“The prosecution did not only prove the act was unlawful but further showed that the unlawful act was of a nature as to be likely to endanger human life …. I hold that for the trial Judge to come to a conclusion that the act of ravishing a four year and nine months old girl is not an act likely to endanger her life would have been perverse.”
The two lower courts got it all wrong. I can understand the anxiety of the learned trial Judge who saw the act of the appellant in ravishing a girl of under five years of age as horrendous and unacceptable and, therefore, he must suffer the supreme penalty for the death of the victim. Every right thinking being should feel that way but the law should be correctly applied. Sentiments have no place in judicial deliberations. I will not go beyond a strong condemnation of the brutal assault on the innocent and helpless victim by the appellant.
I will now consider the provisions of Section 316 of the Criminal Code of Ogun State and in particular, Section 316(3) thereof which the courts below applied in this case.

It provides as follows:-
“316. Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is to say if death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life; is guilty of murder.
In the second case, it is immaterial that the offender did not intend to hurt the particular person who is killed. In the third case it is immaterial that the offender did not intend to hurt any person.
In the last three cases, it is immaterial that the offender did not intend to cause death or did not know that death was likely to result.”
Subsection 316(c) had received judicial interpretations in our courts. See: R. v. Okoni (supra);R. v. Nameri (1951)20 N.L.R.6;R. v. Idiong & Or. (supra); R. v. Obi (supra) and Obaji Aga (Alias Obaji Akpu) v. The State (1976) 7 S.C. 173. 
  An act done in the prosecution of an unlawful purpose in Section 316(3) had been interpreted to mean an act done in furtherance of a purpose which is unlawful. An act may be regarded as done in furtherance of an ultimate felony if it is a step intentionally taken for the purpose of effecting the felony. In R. v. Okoni (supra), it was clear on the evidence that the purpose for which the building (which was believed to house the intended victim) was set on fire (an

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act by itself unlawful since it amounted to arson) by the appellant was to effect the murder of the intended victim. The appellant was convicted for the murder of a woman, Oma Etteh who was not the intended victim but who was in the house at the time and was consumed by the fire.
In the case of ldiong & Ors. v. The State (supra), the first appellant intended the abortion of the pregnancy of the deceased and for that purpose, he procured the second appellant, a native doctor who administered the drugs to procure an abortion by the administration of native medicine which resulted in the death of the woman aborted. The West African Court of Appeal quashed the conviction of the first appellant for murder and substituted a verdict that he was guilty of manslaughter and a sentence of imprisonment was imposed on him. In the case of the second appellant, his conviction was quashed and a verdict of acquittal was substituted. The West African Court of Appeal found that he (2nd appellant) acted innocently, believing that the medicine was required to relieve the pain from which the woman was suffering owing to the retention of the placenta. The prosecution in the case in hand were unable to establish beyond reasonable doubt that the unlawful act of the appellant without more, was an act likely to endanger human life. In the present case like Nameri’s case, where a girl aged 13 years died from bleeding caused by the prisoner in raping her, it was held that her death was not murder but manslaughter.

While it is true that Shade Pelemo was killed by the unlawful act of ravishment and it was immaterial that the appellant did not intend to hurt her, the question remained whether the act was of such a nature as to be likely to endanger her life. In ldiong & Or. v. The State (supra) at p. 33, Verity, C.J. formulated the test for an act of a nature likely to endanger human life thus:
“It is to be observed that the act must be one of such a nature as to be likely to endanger human life, and we think that an act cannot be said to be likely to have a certain effect if a reasonable man would not expect it to have such a result, even though in the event that result ensued.”
In this case there is no evidence from the prosecution that the act of the appellant was of such a nature as to be likely to endanger the life of Shade.
On the evidence, the facts proved do not come within Section 316(3) of the Criminal Code. They do, however, constitute an unlawful killing. The conviction for murder and the sentence of death are hereby set aside. In their place, I substitute a conviction for manslaughter and sentence the appellant to fourteen (14) years imprisonment which I do not even consider to be sufficient penalty for this most horrific act.

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Before concluding this appeal, I think I should comment on the unsatisfactory manner the investigation and prosecution of this case were carried out. Had the organs of government carrying out those functions been alive to their responsibilities, the outcome of the proceedings in respect of this brutal act would have been different. The lapses are unfortunate.

I have had the privilege of reading in draft the judgment just delivered by my learned friend, Ogundare, JSC and I am in complete agreement that the appellant, on the evidence adduced before the court, cannot be guilty of the offence of murder for which he was charged and convicted by the High Court of Ogun State which conviction was affirmed by the Court of Appeal.
The facts of the case, as found by the trial court, were extra-ordinarily revolting, disgusting and intensely obnoxious. The deceased, Shade Pelemo, an infant aged only 4 years and 9 months, was placed in the custody of the appellant, her uncle, by her parents who had travelled on the 4th day of July, 1991. On the 7th day of July, 1991, the appellant savagely and in a most horrendous manner pounced on the deceased, his infant niece, and pulled off her pant. He tried to insert his finger into the child’s vagina but this could not enter probably because the deceased was still virgo intacta.

Nonetheless, the appellant, as beastly as he was, thrust his finger with force into the child’s vagina inspite of her wild cries. Having overpowered the deceased, he next forced his erect penis into the deceased’s vagina inspite of her excruciating cries and had unlawful carnal knowledge of her.
In the words of the appellant, the deceased was all this time “crying bitterly” but he did not leave her until he had discharged his sperm into her vagina. In the process and, again, in his own words, he discovered after the event that the child’s “vagina was torn and blood was rushing out”. He went on –
“This girl is about 4 years and nine months old. She has no breast. Nothing attracted me on her body. The act was done by the hand of devil”.
The deceased who bled profusely from her vagina was rushed to the hospital unconscious but died the following day as a result of her injuries. On the evidence of the doctor who conducted post mortem examination on her body on the 8th July, 1991, the deceased was unconscious and bleeding profusely from her private part when he first saw her. He was preparing to repair the “deep wound” in her private part when she gave up. The wounds in her private part were still fresh. In his opinion, the child died as a result of the

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multiple injuries to the head and her private part. The appellant, upon arrest by the police made confessional statements, Exhibits A and C to the police. These confessional statements, although confirmed before a superior police officer, were subsequently retracted by the appellant in his defence on oath.
It is well settled that a free and voluntary confession, whether judicial or extra-judicial, so long as it is direct, positive and properly proved, is sufficient proof of guilt and conviction could be based entirely on such evidence. It is however important that the court should not act on the confession without first testing the truth thereof. See: Jimoh Yesufu v. The State (1976) 6 S.C. 167; Jafiya Kopav. The State (1971) 1 AllNLR 150;Nwangbonuv. The State (1994)2NWLR (Pt. 327) 380; Kanu and Another v. King 14 WACA 30. In the same vein, a confessional statement may be sufficient to ground a conviction notwithstanding its retraction by the accused as in the present case. See Egboghonome v. The state (1993) 7 NWLR (Pt. 306) 383; Mumuni v. The State (1975) 6 S.C. 79, Ikpasa v. The State (1981) 9 S.C. 7 etc.
In the present case, the learned trial Judge adequately tested the truth of Exhibits A and C by examining the facts therein contained along with the rest of if death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life; the evidence before the court, particularly the evidence of P.W.4, and found corroborative evidence of the said confessions.

These findings of the learned trial Judge were affirmed by the Court of Appeal and it was upon them that the trial court convicted the appellant for the offence of murder contrary to section 319(1) of the Criminal Code, Cap 29, Laws of Ogun State of Nigeria, 1978. He was accordingly sentenced to death. The appellant’s conviction and sentence were affirmed by the Court of Appeal and he has now appealed to this court.
The main issue that has arisen for determination in this appeal is whether going by the provision of Section 316(3) of the Criminal Code of Ogun State of Nigeria, 1978 vis-a-vis the facts involved in this case, the unlawful homicide committed by the appellant was murder or manslaughter under Section 315 of the said Criminal Code.
Section 316(3) of the Criminal Code of Ogun State which is relevant to the issue under consideration provides as follows –
“316. Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is to say- death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life; is guilty of murder …

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In the third case it is immaterial that the offender did not intend to hurt any person.”
It is evident from the above provisions of the Criminal Code of Ogun State that four conditions must be satisfied by the prosecution before the offence of murder under Section 316(3) may be established. These conditions comprise as follows –
(i) That the offender killed the deceased;
(ii) That the killing is unlawful;
(iii) That death was caused by means of an act done in the prosecution of an unlawful purpose;
(iv)  That the unlawful purpose is of such a nature as to be likely to endanger human life.
There is an additional provision in Section 316(3) of the said Criminal Code that in so far as the offence of murder under that sub-section is concerned, it is immaterial that the offender did not intend to hurt any person.
It is not disputed in the present case that the appellant caused severe injuries to the deceased in the course of raping and ravishing her which injuries resulted directly in her death. The evidence of P.W.4, the medical doctor who conducted post mortem examination on the body of the deceased together with the confessional statements of the appellant, Exhibits A and C, clearly establish this fact. By Section 218 of the Criminal Code, it is an unlawful act punishable by imprisonment for life, with or without whipping, to have carnal knowledge of a girl under the age of eleven years.

The expression “an act done in the prosecution of an unlawful purpose” in the sub-section has been held to mean an act done in furtherance of a purpose which is unlawful. See: Obaji Aga v. The State (1976) 7 S.C 173. It is therefore plain that the act of the appellant in raping the deceased who at all material times was aged only four years and nine months was clearly unlawful. In the circumstances, there can be no doubt that the prosecution did satisfactorily prove the above first three conditions set out above under the aforesaid Section 316(3) of the Criminal Code for the establishment of the offence of murder. The main question for consideration in this appeal seems to be whether the act of the appellant was of such a nature as to be likely to endanger human life. That is the fourth ingredient of the offence of murder as prescribed under the said section 316(3) of the Criminal Code of Ogun State, 1978.
I think it can safely be said that the test for whether an act is of a nature likely to endanger human life must depend on whether death or the loss of human

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life is a reasonably probable consequence of the act in question. See: R. v. Motesho Okoni and Others (1938) 4 WACA 19 at 25. The act must be one of such a nature as to be “likely to endanger human life” and an act cannot be said to be likely to have a certain result if a reasonable man would not expect it to have such a result, even though, in the event, that result ensued. See: Udofa Idiong and Another v. The King (1950) 13 WACA 30 at 33. It therefore becomes necessary to consider whether in all the circumstances of the present case, as established by the evidence, the act of the appellant was likely to endanger human life in the sense that a reasonable man would expect that it probably, would do so.
There can be no doubt that from the facts of this case, the unlawful purpose is the ravishing of the deceased, Shade Pelemo, a girl of only 4 years old as admitted in the confessional statements, Exhibits A and C. That act itself is contrary to law.
It is a felony and constitutes the offence of defilement under Section 218 of the Criminal Code of Ogun State of Nigeria and punishable on conviction by imprisonment for life with or without whipping as already pointed out. The logical but crucial question that must be asked is what the appellant did in furtherance of the prosecution of the unlawful purpose of raping the deceased which act was of such a nature as to be likely to endanger human life.
In this regard, the trial court was of the view that the appellant’s unlawful act of ravishing the deceased is an act which is reasonably probable to endanger her life. Said the learned trial Judge –

“In the case on hand, there is no evidence, and it is very inconceivable that such a horrendous act of ravishing a five years old girl could be acceptable as usual. The prosecution has proved beyond reasonable doubt that the accused person unlawfully killed Shade Pelemo by the unlawful act of having carnal knowledge of her which is an act which is reasonably probable to endanger her life.
I find the accused guilty of murder.”
The Court of Appeal was in agreement with the learned trial Judge on the issue. It stated –
“The prosecution did not only prove the act was unlawful but further showed that the unlawful act was of a nature as to be likely to endanger human life. The test for whether the act is of a nature likely to endanger human life is whether death is a reasonably probable consequence of the act. See: R. V. Okoni (1938) 4 WACA .I hold that for the trial Judge to come to a conclusion that the act of ravishing a four years nine months old girl is not act likely to

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endanger her life would have been perverse.”
With profound respect to both courts below, I can find no evidence whatever on record from which to hold that the extremely offensive and horrendous act of the appellant by defiling his niece of only 4 years old is per se an act of such a nature as to be likely to endanger human life. Whether or not a particular act is of a nature as to be likely to endanger human life is a question of fact which, unless appropriately established by evidence, may not be regarded as established by the court save, of course, in the clearest possible case.
Without doubt, the entire circumstances of this case appear to me utterly despicable, obnoxious and clearly disgusting, I cannot see my way clear to conjecture or infer that the defilement of a four year old infant is an act, the probable consequence of which is the death of the victim in the absence of any cogent medical evidence on the point. There is no such evidence in the present case. In the circumstance, it is with considerable reluctance that I find myself not prepared to hold that the prosecution has established beyond reasonable doubt that the act of the appellant was of such a nature as to be likely to endanger human life, even though, in fact, it occasioned the death of the deceased in the present case. In the final result, the facts proved by the prosecution do not, in my opinion, fall within Section 316(3) of the Criminal Code of Ogun State, 1978. They do, however, constitute an unlawful killing and the appellant must therefore be found guilty of the offence of manslaughter contrary to Section 317 of the Criminal Code of Ogun State of Nigeria, 1978.

The appeal is accordingly allowed and the conviction of the appellant for the offence of murder contrary to Section 319(1) of the Criminal Code of Ogun State is hereby quashed. The sentence of death passed on him is set aside. In substitution, thereof the appellant is found guilty of manslaughter contrary to Section 317 of the Criminal Code of Ogun State of Nigeria and he is hereby sentenced to 14 years imprisonment with hard labour. His sentence is to commence from the date of his conviction by the trial court.

I have had the opportunity of reading in advance the judgment of my learned brother Ogundare, JSC. After due consideration of the essential facts of the case and a close examination of the applicable law, I agree with him that the appeal be allowed. As I consider the legal issues involved very important, I intend to state my views in full.
This appeal is from a judgment of the Court of Appeal, Ibadan Division given

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on July 1,1998. The appellant, an adult of 23 years of age, lived with his uncle, Mr. Taiwo Pelemo, and his wife at a place known as the Ogun State Forestry Camp J4 Ijebu Waterside. The couple also lived with their two children, Rotimi, a boy and Shade, a girl of 4 years, 9 months of age. On 4 July, 1991, the couple travelled leaving Rotimi and Shade in the care of the appellant. On 7 July, 1991, the appellant raped Shade. She died in the General Hospital, Ijebu-Ode the next day.
The appellant was charged with the offence of murder contrary to Section 319 of the Criminal Code Law of Ogun State for unlawfully killing Shade Pelemo, and was tried at the High Court, Ijebu-Ode. On 4th August, 1992, in a painstaking judgment, he was convicted for murder and sentenced to death by Titi Mabogunje, J. His appeal to the Court of Appeal was dismissed. He further appealed to this court and set down in his brief of argument two issues for determination, namely:
(a) Whether the court below was justified in the light of the evidence in the printed record in concluding that the appellant was properly convicted on the retracted confessional statements, Exhibits A and B C.
(b) Whether the court below was right in its conclusion that the prosecution had established beyond reasonable doubt that the appellant murdered the deceased.
After the appeal had been heard on 24 February, 2000 upon the two issues recited above, both counsel for the parties were subsequently invited to address the court upon a further issue –
Whether, going by the provision of Section 316(3) of the Criminal Code of Ogun State vis-a-vis the facts involved in this case, the unlawful homicide committed was murder or manslaughter.

Each counsel filed a supplementary brief of argument on this issue, and on 18th May, 2000, further submissions were made to the court by both counsels. As to how the act of rape on Shade was committed, the appellant in his confessional statement to the police, as contained in Exhibit C, said inter alia:
“At about 10.00 a.m …. I removed Shade’s pant from her waist and carried her on my brother’s bed. I started to finger the girl. I first put in the small finger of my left hand. The finger did not enter into the vagina. But I forced it in. I later put in the fourth finger. When the finger entered, I used it to screw the vagina until it got slack. I then forced my penis into the vagina. The girl was crying bitterly but I did not leave her until I spermed. When I got up from her, I discovered that the vagina was torn and blood was rushing out.”

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The girl was rushed to the general hospital, Ijebu-Ode when, according to the appellant, she was bleeding and he had to shout for help. As already said, she died in the hospital the following day. There is no evidence as to the treatment given to her before she died. She was said by the doctor who performed the autopsy, Dr. O.A.O. Adeboye, to have been brought to the hospital unconscious, with head injury and deep wound in her private part. In the doctor’s opinion, Shade died “as a result of the multiple injury to the head and the private part.”
Learned counsel for the appellant submitted that there was nothing outside his confession which remotely connected the appellant with the injuries which led to the death of the deceased. He argued that there was absence of cogent medical evidence as to what caused the said injuries and that it was mere speculation that the fingers and penis of the appellant did cause the injury to her private part. Learned DPP for the respondent contended that the confession of the appellant was free and voluntary, and since it was direct and positive, it was enough upon which to convict him for the offence charged. She said the confession was tested against the medical evidence which corroborated the confession.
I think the confession in this case satisfies the necessary test for attaching due weight to it, whether retracted or not, which, as laid down by the authorities, is: (1) Is there anything outside the confession to show that it is true? (2) Is it corroborated? (3) Are the relevant statements of fact made in it true as far as can be tested? (4) Was the accused one who had the opportunity to commit the offence? (5) Is his confession possible? (6) Is it consistent with other facts which have been ascertained and have been proved?

This test has been adopted and approved in many cases by this court including Nwaebonyi v. The State (1994) 5 NWLR (Pt. 343) 138. It has also been laid down as good law that a free and voluntary confession of guilt by an accused person which is direct and positive, so long as it is possible, is sufficient to warrant his conviction provided the court is satisfied of the truth of the confession. It will only then be a matter of prudence to look for any corroborative evidence: See: Yesufu v. The State (1976) SC 167; Ikemson v. The State (1989) 3 NWLR (Pt. 110) 455; Nwangbonu v. The State (1994) 2 NWLR (Pt. 327) 380.
The confessional statement by the appellant was retracted in his testimony in court. It cannot be disputed that the confession is largely corroborated by

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other evidence regarding the injury sustained by the girl to her private part. The confession is positive and direct and is such that the court can act on notwithstanding that it was retracted by the appellant. All the court will need to do is to consider both the confession and the evidence in retraction and decide where the truth lies: see Egboghonome v. The State (1993) 7 NWLR (Pt. 306) 383 at 419. 
Looking at the two issues canvassed on behalf of the appellant and the only issue upon which this court ordered for and received further address, it would appear that, in essence, what would need to be resolved on this appeal are, first, whether the act of the appellant caused the death of Shade; and second, whether, if it did, the facts and circumstances were such as to amount to murder or manslaughter. I would think they can be regarded as the two issues arising for the determination of this appeal.
Both counsel presented very stimulating arguments in regard to whether in the present case, murder or manslaughter has been established. The principle underlying S. 316(3) of the Criminal Code was examined, and interpretations as suit each party were proffered. Learned counsel for the appellant’s submission is that apart from the unlawful purpose of raping Shade, there was no evidence of any other act which was such as was likely to endanger human life. He says the unlawful purpose, that is the rape, cannot at the same time also be the act done  in furtherance of that purpose.
On the other hand, the learned DPP contends that rape can take a normal form or an abnormal form. It is in the abnormal form, the likely danger to human life may be found. But she argues further that the age of the victim could play a decisive role as well.

In the instant case, both as to the age of the victim and the manner she was raped, the danger to her life can be seen. The appellant, she says used his fingers to violently expand the vagina of a girl of such tender age before he forced his penis into it. The result was severe injuries to her vagina, blood rushing out of it, and the unbearable agony she went through as she, such a tender girl, cried bitterly but the appellant would not mind her plight until he satisfied himself sexually. Both counsel discussed the relevant authorities on the issue. As regards the first issue, there is no doubt that it was when the appellant was alone with Shade that she sustained the injuries to her head and vagina. Those found in the vagina were sufficiently accounted for by the appellant as contained in his statement to the police, an excerpt from which I have already reproduced above. The cause of the head injuries is not known. There is evidence that the girl was convulsing when she reached the hospital

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and doctor said a head injury could cause convulsion. It appears from the evidence of the father of the girl that she had a history of convulsion. On this particular occasion, it is not known which came first, the convulsion which could cause the girl to injure her head or the head injury which could have been the immediate cause of the convulsion. It is also not known whether because the appellant tampered with the girl’s vagina in such a traumatic manner as described, it triggered off the convulsive seizure with the consequences of injury to her head.
Whatever it is , I am prepared to hold that the circumstances of the head injuries called for an explanation from the appellant who, as already said, was alone with the victim. I draw inspiration from the decision of this court in Igho v. The State (1978) NSCC (Vol. 11) 168. It is a very short judgment. In that case, the appellant was charged with murder. The deceased left her house for a religious service on 20 August, 1973 but did not return home alive. The appellant was seen later in the day giving a ride to the deceased on the back of his bicycle. The appellant denied carrying the deceased on the back of his bicycle but the learned trial Judge disbelieved him and accepted the evidence that he did. On that evidence, the deceased was last seen alive with the appellant. He was convicted.
On appeal, Eso JSC observed at page 168:
“The deceased was last seen alive with the appellant. This evidence was accepted by the learned trial Judge. He rejected the denial of the appellant.

The only irresistible inference from the circumstances presented by the evidence in this case is that the appellant killed the deceased.

The facts which were accepted by the learned trial Judge, amply supported by evidence before him, called for an explanation, and beyond the untrue denials of the appellant (as found by the learned trial Judge), none was forthcoming.” (Italics mine)
To recapitulate, the appellant in the secrecy of Shade’s father’s bedroom all alone with her, mercilessly committed sexual intercourse with her. Mercilessly because he first used a finger ‘to expand her vagina but not satisfied it was open enough, he inserted his fourth finger, according to his confession, “to screw the vagina until it got slack.” He added, “I then forced my penis into the vagina. The girl was crying bitterly but I did not leave her until I spermed. When I got up from her, I discovered that the vagina has torn and blood was rushing out.”
Besides, she sustained head injuries. I have said that the circumstances of

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the head injuries called for an explanation from the appellant. None was forthcoming. Going by Igho ‘s case, the appellant, in my view, ultimately caused those head injuries. The doctor, PW4, said. “The child died as a result of the multiple injury to the head and the private part.” With that opinion which is unchallenged, it is right to hold that the appellant caused the death of Shade. The second issue is whether in all the circumstances, the death that thereby occurred made the offence murder or manslaughter. Section 315 of the Criminal Code Law of Ogun State provides:
“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.”
Section 317 also provides:
“317. A person who unlawfully kills another in such circumstances as not to constitute murder is guilty of manslaughter.”
It is plain that after the act of killing has been established, it is the circumstances of the killing, based upon all essential facts, which lead to a verdict whether the offence committed is murder or manslaughter. The learned trial Judge, after considering the facts and circumstances of this case proceeded to resolve the issue whether murder or manslaughter had been established when she observed:
‘ …under section 316(3) of the Criminal Code, before the court can convict for murder, the prosecution must not only prove that the unlawful act of the accused caused the death of the deceased, it must show that the unlawful act is of such a nature as to be likely to endanger human life. The test is whether death is a reasonably probable consequence of the act.
In R. v. Nameri 20 NLR 6, the accused committed rape on a girl of thirteen and she bled to death from the injury done to her private part by the act of violation.

In view of the evidence in court that it was not unusual for girls of that age to have sexual intercourse, which did not usually lead to death, the court found the accused not guilty of murder but of manslaughter.
The ravishing of the girl of five is clearly an unlawful act. The question to be asked is whether it is an act of such a nature as, to be likely to endanger life. In The King v. Udofa ldiong and Umo (1950) 13 WACA 30, a case on section 316(3) of the Criminal Code the court held that –
“It is to be observed that the act must be one of such a nature as to be “likely to endanger human life” and we think that an act cannot be said to be likely to have a certain result if a reasonable man would not expect it to have such a result even though in the event that result ensued.

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In coming to the decision to convict the accused for manslaughter as against the conviction of murder, Bairamian, J. found that the act of ravishing the girl of thirteen years of age in that case was not by itself of such a nature as to be likely to cause death as it was not unusual for thirteen year old girls to have sexual intercourse without such fatal result.
In the case on hand, there is no evidence, and it is very inconceivable that such a horrendous act of ravishing a five years old girl could be acceptable as usual. The prosecution has proved beyond reasonable doubt that the accused person unlawfully killed Shade Pelemo by the unlawful act of having carnal knowledge of her which is an act which is reasonably probable to endanger her life.”
I have no difficulty in following the reasoning of the learned trial Judge. She was obviously influenced in her conclusion by what Bairamian, J. said upon the evidence before him in Nameri’s case that the act of ravishing a girl of thirteen years of age was not by itself of such a nature as to be likely to cause death as it was not unusual for thirteen year old girls to have sexual intercourse without such fatal result. The temptation was there, I think, for the learned trial Judge in the present case to consider that in a case of a much younger girl of the age of five years, the unlawful act of having sexual intercourse with her was an act likely to endanger her life. The Court of Appeal found merit in that conclusion as expressed by Per Okunola JCA as follows:
“The prosecution did not only prove the act was unlawful but further showed that the unlawful act was of a nature as to be likely to endanger human life. The test for whether the act is of a nature likely to endanger human life is whether death is a reasonably probable consequence of the act. See: R. v. Okoni (1938) 4 WACA 19. I hold that for the act of ravishing a four years and nine months old girl is not act likely to endanger her life would have been perverse.”

Now, murder is established under S. 316(3) of the Criminal Code Law when a person unlawfully kills another “if death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such nature as to be likely to endanger human life.” The desideration in this provision as contained in two aspects of the act done by an accused person is (1) as regards the prosecution of an unlawful purpose, and (2) that the act is of such a nature as to be likely to endanger human life. The provision in question has an appendage as further given under the said S. 316; and this is that “it is

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immaterial that the offender did not intend to hurt any person.” That means that if the two conditions stated are satisfied, an accused person cannot be heard to say he did not intend to hurt any person. In the case of raping a girl, which is an unlawful act, coupled with an act of such a nature as to be likely to endanger her life, death thereby resulting, the accused cannot plead that he merely intended to satisfy his urge and not to hurt the victim, or to endanger her life as that would be immaterial.
I will like at this stage to refer to the views expressed on S. 316(3) in Okonkwo and Nash: Criminal Law in Nigeria, 2nd ed., by C. O. Okonkwo to which our attention was drawn by learned counsel for the appellant and which he relied on in his submission. At page 236. the learned author said:
“It is submitted with respect that in cases of rape resulting in death, section 316(3) ought not to be invoked- Where such death results from the very act of ravishment for then the act and the purpose are one and the same thing. On the other hand, if in the course of raping a girl, the accused presses the girl’s throat to prevent her from screaming and thereby throttles her, a charge of murder will clearly be laid under Section 316(3) because the unlawful purpose is rape and the act which causes death is the act of pressing her throat and if the court finds that the pressure applied is such as is likely to endanger human life, then it is murder.”
(Italics mine)
I find the above opinion quite interesting and fairly illustrative of how S. 316(3) should be applied. I consider that I should discuss it further because I find rather intriguing what I may call, for want of a better term, the theory of the “act and the purpose” being the same when death results from the very act of ravishment. So also is the dichotomy drawn between the act of rape which is an unlawful purpose and another act outside the very act of rape which causes death. I do accept the two theories to be valid as principles well expressed.

However, it is, I think, worth exploring their frontiers for any possible exceptions as the uniquely peculiar facts of a case may demand. In order to do so, I have categorised the passage quoted into parts A and B.
I think “the very act of ravishment” as contained in part A must be restricted to the raping per se in the sense that it should exclude any other unlawful act which is of such a nature as to be likely to endanger human life. In that case, if death occurs as a result of the very act of ravishment, there normally will be no conviction for murder but manslaughter going by the learned author’s opinion. I have no doubt that that can be generally accepted. The decisions

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in R. v. Nameri (1951) 20 NLR 6; and Queen v. Gabriel Obi (1957) WNLR 91 can be understood in that light. In the first case, the ravishment was with a girl of 13 years and the second case, a girl of 14 years. Both bled to death as a result purely of the act of ravishment. The view was expressed in the Nameri’s case that there was evidence that it was not unusual for girls at that age to have sexual intercourse, nor did it usually lead to death. The Gabriel Obi’s case followed Nameri. Both are court of first instance cases. The catch in those cases, in my view, is whether it would make a difference if the age of a girl subjected to such ravishment is considerably lower.
Those cases were decided on the basis that the act of ravishment in the peculiar circumstances of those cases was not such as could endanger human life. It must be recognised that human life in this context is a relative concept, depending on whose life it is. Can the sexual intercourse that will not endanger the life of a 13 year old girl be said also of a 12month old girl, for instance, whose life is so tender that the slightest pressure on her in the act of raping her could extract life out of her? It is tempting to think that any special evidence is not necessary for this example of a 12month old girl other than the age of such a girl. That may be a conclusion to which the observation in Udofa Unwa Idiong & Anor .v. The King 13 WACA 30 may tend to lead. That was a case of procurement of abortion by the administration of native medicine, a case cited in Nameri and Gabriel Obi. In considering what might amount to an act likely to endanger human life, Verity C.J. (Nigeria) said at page 33:
“It is to be observed that the act must be one of such a nature as to be ‘likely to endanger human life’, and we think that an act cannot be said to be likely to have a certain result if a reasonable man would not expect it to have such a result, even though in the event that result ensued.

It is necessary for us to consider, therefore, whether in the circumstances of the present case as established by the evidence, the act of the first appellant was likely to endanger human life in the sense that a reasonable man would expect that it probably would do so.”
The court then went on to discuss the insufficiency of the evidence as to concoction, or the likely results of its administration, as an abortifacient to a woman who has a pregnancy of three or four month’s duration, so as to reach a conclusion that it would be likely to endanger her life. This obviously required such medical evidence that would clearly determine this. This is quite understandable as no other evidence could lead a reasonable man to a safe conclusion that such abortifacient when administered to a woman of that condition, would kill her. The learned author of ‘Criminal Law in Nigeria’ at

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page 236 ibid, while discussing Nameri’s case in which the accused raped a 13 -year old girl, said:
“He was charged with murder under Section 316(3) but was convicted of manslaughter on the ground that his conduct was not such as to endanger human life having regard to medical evidence which showed that it is not unusual in Nigeria for 13year old girls to have intercourse and that it does not result in death. The case was therefore treated as falling under Section 316(3) except for the fact that the act of the accused was not such as could endanger human life. Probably, if the girl had been three years old, the accused would have been convicted of murder under that subsection. ”
(Italics mine)
I think the idea that the view or opinion of the ordinary man may be enough to decide whether the act of ravishing a girl and the injury sustained thereby would be such likely to endanger her life is predicated on there being evidence to support this, going by the observation of Bairamian, J. in R. v. Nameri (supra) at page 8 as follows:
“In the case in hand, there is no evidence on the nature and extent of the wound caused by the violation of Zulai, or any evidence that in the judgment of ordinary men, the act of violation and the wound it may cause to a woman, say a virgin, which Zulai may have been, is one likely to endanger life.” (Italics mine)
It may well depend on the circumstances of every individual case. I agree with the learned DPP that the facts of the act of rape – the manner and violence employed and so on – must be scrutinised as well as taking the age of the victim into serious account. It seems to me that age differential, when faced with cases like Nameri where the age of the girl was 13 years and other situations where a girl of very tender age is involved, is capable of presenting a pretty kettle of fish. If the age of the girl per se could lead to the conclusion that the very act of ravishment on her was such as was likely to endanger her life, then this would, admittedly, be regarded as an exception to the opinion expressed by the learned author in the A part of the passage above.

That opinion, in my view, is correct as a general principle in the application of S. 316(3) of the Criminal Code. I do not think it would be safe as a matter of law, without reliable evidence, simply to found an exception to that principle on the mere tender age of a girl in order to convict for murder. The difficulty as to where to draw the line between what age is not unusual where death is likely from sexual intercourse and what is unusual will be there in many instances if there is no evidence.

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To the B part of the passage: the learned author says that if in the course of raping a girl, the accused presses the girl’s throat to prevent her from screaming and thereby throttles her, a charge of murder under S. 316(3) will succeed. This is because the unlawful purpose is rape and the act which causes death is the act of pressing her throat, which act is such as is likely to endanger human life. That was what happened in D.P.P v. Beard (1920) AC 479 which was referred to in Nameri’s case. I fully endorse this scenario as well, but I will add that the pressing of the girl’s throat need not be to prevent her from screaming. It is enough if the accused presses the girl’s throat simply in the act of ravishing her knowing that he was indeed pressing her throat but not caring perhaps because of the sheer excitement of the ravishment. This is because, as part A of the passage must be understood, death resulting in such a situation cannot be seen as arising from “the very act of ravishment” but from the act of pressing the girl’s throat in the course or act of raping her – an act likely to endanger human life. It is even more so, in my view, if the rapist pressed his victim’s throat as part, or through a desire, of his having maximum satisfaction from the act of sexual intercourse. In both situations, it is immaterial that he did not intend to hurt her.
This takes me to the present case. The victim, Shade, was very tender in age. No one can dispute the fact that a girl of 4 years 9 months old is extremely tender and that it is unusual for her to engage or be engaged in sexual intercourse. But whether death would necessarily result from such sexual intercourse is an open question upon which evidence is required for a definite conclusion. In Nameri at page 8, Bairamian, J. said: “It is true that the girl was killed by the act of ravishment and it is immaterial that the prisoner did not intend to hurt her; but the question remains whether the act is of such a nature as to be likely to endanger human life.” But he added, as already said, that there must be evidence that that act of ravishment was of such a nature as to be likely to endanger human life.

In my view, when the appellant used his fingers to fiddle with the vagina of Shade, though a girl of very tender age, it may just be an aspect of “the very act of ravishment” of her. I cannot upon the evidence available go beyond that. However, it must be said it was a very reprehensible act, apart from being an unlawful act, which will deeply shock any reasonable person and arouse public disgust in a sense difficult to express, for the appellant to have violated Shade’s innocency the way he did. Having considered the relevant authorities on S. 316(3) of the Criminal Code, I think at the moment it is best

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to go by the opinion of Okonkwo until circumstance arise, backed by evidence, to justify convicting for murder in cases of rape where death results from the very act of ravishment. This means that under S. 316(3), when death occurs as a result of the very act of ravishment, manslaughter is the more appropriate crime not murder unless there is compelling evidence. But when for the purpose or in the course of the unlawful act of ravishment, the rapist commits any other act which is of such a nature that is likely to endanger human life, and death results, he is guilty of murder.
In the present case, unfortunately, the evidence available is nearly not enough to support a verdict of murder. For the above reasons, I too will allow the appeal against the verdict of murder and sentence of death of the appellant. I find him guilty of manslaughter and sentence him to 14 years I.H.L., and order that the sentence shall run from the date judgment was given by the trial court.

Appeal allowed.

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