Justice Rahman Oshodi of the Ikeja Sexual Offences and Domestic Violence Court on Tuesday discharged and acquitted a 35-year-old upholstery maker, Taiwo Opasina, charged with alleged sexual assault of his four-year-old daughter, (name withheld).
The judge in his judgment held that the prosecution failed to discharge the burden of proof against Opasina.
Oshodi said the prosecution failed to present the vital witness, (alleged survivor) before the court to give evidence.
He held that the absence of direct evidence of the alleged survivor creates an evidential gap that cannot be bridged by circumstantial evidence alone.
The judge said the prosecution’s case faced a fundamental challenge, the absence of the alleged survivor’s testimony.
Oshodi 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, cannot identify the perpetrator.”
The judge noted that hearsay evidence of the child’s statement cannot be relied upon without direct testimony subject to cross-examination.
The court further 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.”
The court thereafter discharged and acquitted the defendant.
The state prosecution counsel, Mr Babajide Boye, during the trial, called two witnesses a medical doctor and a police officer while the defendant testified as the sole witness.
The prosecution told the court that the defendant allegedly committed the offence sometime in December 2017 in Adore, Ajah, area of Lagos State.
