An Ikeja Sexual Offences and Domestic Violence Court has discharged and acquitted a 35-year-old upholsterer, Taiwo Opasina, charged with sexually assaulting his 4-year-old daughter.
Justice Rahman Oshodi, in his judgment on Tuesday, held that the prosecution failed to discharge the burden of prove against Opasina.
Oshodi said that the prosecution failed to present the vital witness, to give evidence before the court
According to him, the absence of direct evidence of the alleged survivor creates an evidential gap that cannot be bridged by circumstantial evidence alone.
He said that the prosecution case faced a fundamental challenge, the absence of the alleged survivor’s testimony.
The judge said, “The prosecutrix (survivor) was described as an articulate primary school student, who could identify family members and understand questions.
“Yet, no explanation was given for failing to call this crucial witness.
“While it is not a case of concluding evidence, it is a case of failure to call the material evidence or vital witnesses.
“The medical evidence alone, though very troubling, can not identify the perpetrator.”
The judge added that hearsay evidence of the child’s statement could not be relied upon without direct testimony which should be subjected to cross-examination.
The court held that the prosecution failed to prove the charge of sexual assault by penetration against the defendant.
“The law is clear that it is better to let nine guilty persons escape, than to wrongfully convict one innocent person.
“Therefore, after considering all the evidence presented and applying the fundamental principle of presumption of innocence, I find that despite strong circumstantial evidence and troubling inconsistencies in the defendant’s testimony; the prosecution has failed to establish that the defendant sexually assaulted his four-year-old daughter.
“The absence of direct evidence of the alleged survivor, creates an evidential gap that cannot be bridged by circumstantial evidence alone.
“Accordingly, I resolve the issue for determination in the defendant’s favour, and is hereby found not guilty.” Oshodi held.
The court thereafter discharged and acquitted the defendant.
During trial, the State Counsel led by Mr Babajide Boye, called two witnesses, a medical doctor and a police officer while the defendant testified as sole witness.
The prosecution had told the court that the defendant allegedly committed the offence sometime in December 2017 in Adore, Ajah, Lagos.
The prosecutor alleged that the defendant on several occasions, sexually assaulted his daughter by inserting his fingers into her private part.
According to the prosecution, the offence contravene Section 261 of the Criminal Law of Lagos State, 2015. (NAN).
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