7 of one and none tendering of the other amounts to unfair trial with the consequential effect of the acquittal of the accused person as decided in the cases of OLAYINKA VS THE STATE  (2007) ALL FWLR (PT. 373) 163 SC; OGUDO VS THE STATE (2011) 18 NWLR (T. 1278) II. He contended that it was the Appellant???s evidence that he made a statement at the Bamaina Police Division where the case was first reported, which PW 4 admitted, though not believed, but the statement was not tendered in evidence. Failure to tender the said statement in evidence he argued, calls for invocation of Section 167 (d) of the Evidence Act for withholding evidence unfavourable to the prosecution which entitles the Appellant to acquittal as decided in OGUDO VS THE STATE (Supra), the prosecution having failed to prove its case beyond reasonable doubt against the Appellant. In his response, the learned Respondent???s Counsel while insisting that the prosecution proved its case beyond reasonable doubt against the Appellant, stated the ingredients of the offence which the prosecution must prove in a case of rape as held in the case of EZIGBO VS THE STATE (2012) ALL FWLR (PT. 683) 841 to be: 8 i. That the accused had sexual intercourse with the woman in question. ii. That the act was done in circumstances envisaged in any of the five paragraphs of Section 282 (1) of the Penal Code. iii. That the woman was not the wife of the accused; or if she was the wife, she had not attained puberty. iv. That there was penetration. On the first ingredient, that the accused/Appellant had sexual intercourse with the victim (PW 1), he submitted that the evidence of PW1 in which she narrated how the Appellant got hold of her and inserted his penis in her vagina and which fact was confessed to by the Appellant in Exhibits A and A1, proved the 1st ingredient of the offence.