REPUBLIC VRS ISSAH (B18/17/2024) [2023] GHACC 1160 (28 September 2023)

IN THE UPPER WEST CIRCUIT HELD AT WA ON MONDAY THE 28TH DAY OF SEPTEMBER 2023 BEFORE HIS HONOUR JONATHAN AVOGO ESQ. CIRCUIT

COURT JUDGE B18/17/2024

THE REPUBLIC

VRS

RAUF ISSAH

JUDGMENT The accused person is charged with one count of possession of fire arm without lawful authorization and robbery both offences contrary to sections 11 of Act 604 and 149 of the Criminal and Other Offences Act 1960 [Act 29]. When the charge was read out and explained to the accused person, he pleaded not guilty to the charge and so his trial was adjourned for prosecution to serve him with the necessary documents they intended using to prove his guilt. The facts of the case are that the accused together with another of fulani ethnicity set off to robe the complainant of 24 cattle. That they did so by storming a kraal located in the forest close to Nabulo. That just as the two were driving the cattle out of the kraal, the complainant accosted them but A2 being an experienced herdsman still managed to escape with the cattle. A1 was then arrested with a short gun and taken in and delivered to the unit committee chairman who then reported the matter to the Police and A1 was re-arrested. Prosecution who at this stage of trial bears the responsibility to prove the guilt of the accused and so they arraigned three prosecution witness. The first was the complainant, his herdsman and the Police Accuse is said to have then overpowered the complainant by bringing her to the floor and using his knife to cut her underwear open, restrained her by pulling her right leg to her head whilst

the accused’s leg was on her left knee leaving her vagina wide open for him to have sex with. In the process the complainant pleaded with the accused not to continue because she was married and heavily pregnant as he could see and that it was against her tradition to have sex whilst pregnant for another man. Accused however refused to stop but rather asked her to wake up and bend to allow him have sex with her from the back which will be soft and fast and so the complainant complied and gave the accused the sexual posture he demanded and when he was done he took a Techno mobile phone and an amount of GHC50 which the complainant had on her. EVIDENCE OF PW1 PW1 was Asmiru Iddrisu who described himself as a resident of Kusali in the Sissala East District of the Upper West Region and that he is a tractor operator. He told the court that at about 9am of 22nd May 2023 he had information from his brothers that the accused had raped a lady at dawn when they went shea picking and that they should join him to go and arrest him. That him and three others went to the location which the crime occurred and did see the accused leaving the vicinity but took to his heels upon sighting them so they chased and got him arrested but in the process he stabbed him PW1 in his right leg but he was over powered and arrested and the complainant together with him were taken to the Gwollu Government

Hospital for medical treatment. EVIDENCE OF PW2 PW2 Zakaria Karim said he was a farmer and lived in the same community with PW1 and the Complainant and that he heard the complainant wailing in pain so he run to her aid and enquired what was amidst and she pointed at the accused who was at a distance fleeing the scene that he had raped her. PW2 said upon receiving the information of what the accused had done he called some youth to assist him arrest accused and together with PW1 and others, they chased and arrested the accused person after he had stabbed PW1 in the leg and knee. PW2 said PW1 and the complainant were then taken to the Gwollu Government hospital for treatment and the accused delivered to the Police. EVIDENCE OF PW3 PW3 the complainant told the court she was a farmer and lives in Kusali in the Sissala East District and that she was on her usual shea fruit picking in the early hours of 22nd May 2023 when the accused person emerged from her back wielding a knife and attacking her by the throat demanding to have sex with her else he will slit her throat open. PW1 said she immediately went for the hand of the accused that held the knife in attempt to restrain her and in the process, the knife cut her palm and she bled very profusely but the accused was not bordered and asked her to choose between death and sex and he went ahead to use the knife to slit the dress she

wore open and pushed her right leg up to her head and used his right knee to step on her left knee leaving her lie with her vagina wide open for the accused to penetrate. The accused did enter her amidst her begging that she was pregnant and married and that accused should stop since it was culturally abominable but the accused kept thrusting her and even asked her to wake up and bend for him to continue if she wanted it smooth and quick and in fear she yielded and after the accused had ejaculated he asked her to produce her mobile phone and a GHC50 she had on her. PW3 said she cleaned up the sperm he left on her with her dress he had slit open and then quickly rushed to inform PW2 who was not too far from where the incident happened and because the accused had barely left he was pursued and arrested but she was taken to the Government Hospital in Gwollu where she gave a statement to the Police. EVIDENCE OF PW4 The evidence of the investigator from Guollu who had to stay overnight in Wa for the matter to be summarily dealt with told the court he was the available witness when the matter was reported at the station and that he quickly went to the scene of crime where he saw the slit open dress of PW3, a catapult and a short knife. The investigator also told the court that the dress of PW3 was soaked with blood when he visited the scene of crime and after interrogating her at the

hospital her account was that she went picking shea fruits in the early hours of the morning when the accused emerged and demanded to have sex with her whilst wielding a knife. That she had to succumb because the accused pushed her on the floor and treated her in a manner she could not resist and so he went ahead and had sex with her and even at a point gave PW3 an option to rise up and bend for him to continue because that will be faster and without pain. That accused enjoyed himself and l took PW3’s phone and a GHC50 she had on her away. But he did not go far when PW3 relayed the news to PW2 who was on her farm nearby and the accused was quickly arrested. He said some blood stains were at the time of arrest of the accused seen on his legs and when he was interrogated he did not deny the offence. PW4 tendered into court the investigative caution statements, the charge statements when he was instructed by his superiors to charge, the photographs of the dress of PW3, the catapault, the short knife and the mobile phone. These were appropriately labelled as exhibits after the accused had a look at them and agreed these were his implements. Prosecution led by the assistant state attorney then closed her case for prosecution leaving the accused to give his account in his defense. Accused earlier to his opening his defense had no questions in cross examinations as he indicated all

that was told the court was the actual thing that happened that morning. The court then asked that his investigative caution statement be read to remind him of what he told the police so he could defend himself. Accused after listening to his account to the police read to him admitted to the content and in his evidence in chief barely recounted same to the court when he said upon seeing PW3 picking the shea fruits he enquired from her who she had come to the farm with and he said he was around with PW2 but he told her she was not speaking the truth and went ahead to pull her on the floor and had sex with her against her will. Accused admits he cut the palm of the PW3 when she attempted to hold the knife and also admits to using the knife to cut open her dress to have access to her. According to the accused she asked her to choose between him slaughtering her to having sex with her and in fear she succumbed and he had sex with her after which he took her phone and a GHC50 and demanded the pin to her mobile money wallet and left the scene of crime. In the cross examination of the accused, he admitted to all that was told the court including the fact that his victim was pregnant and barely stood in the witness box as if what he did was normal. He called no witness to his case and the matter was slated for judgment in the new legal year because it was not safe to grant accused

person bail because of the nature of the offence and the evidence given in the matter. APPRECIATION OF THE EVIDENCE & LAW The fundamental rule in criminal practice has been stated in the 1992 Constitution of Ghana as follows; “A person charged with a criminal offence shall be presumed innocent until he is proved or has pleaded guilty’. See Article 19 [2] [c]. The offence of robbery however is one of those offenses where the offence is capped with a prison term for where an offensive weapon is involved and when the weapon is not offensive. Therefore, in this trial, for the prosecution to sustain a conviction and sentence on the only count charged, prosecution should prove that indeed and in fact, the accused robbed PW1 of her GHC50 after her mobile phone was also taken away from her. To avoid a conviction however, the responsibility casts on accused is that he has no duty under the law to prove his innocence but to raise just a doubt on the case of prosecution to entitle him to acquittal. The evidential burden which is the obligation to show that the accused committed the offence lies squarely on the prosecution. The proof required of the prosecution in a criminal trial such as the present one is said to be proof beyond reasonable doubt. Section 11 [2] of the Evidence Act 1975 [Act 323] says; “In a criminal trial, the burden of producing evidence, when it is on the prosecution

as to any fact which is essential to guilt, requires the prosecution to produce sufficient evidence so that on all the evidence a reasonable mind could find the existence of the fact beyond reasonable doubt”. It is not easy to determine what constitutes ‘reasonable doubt’. In the case of Oteng vs The State [1966] GLR 352, the Supreme Court had said; ‘…. the citizen too is entitled to protection against the State and that our law is that a person accused of a crime is presumed to be innocent until his guilt is proved beyond reasonable doubt as distinct from fanciful doubts”. In turning my attention to the charge against the accused persons under Section 149 which reads: “A person who commits robbery commits a first degree felony’ Section 150 however defines robbery as; “A person who steals a thing commits robbery [a] if, in and for the purpose of stealing the thing, that person uses force or causes harm to any other person, or [b] if that person uses a threat or criminal assault or harm to any other person, with intent to prevent or overcome the resistance of the other person to the stealing of the thing”. I have decided to extract the ingredients of robbery for the court to evaluate if the accused formed the man to go after PW3 to robe her or to rape her. The particulars of the offence read as follows: Jaliru Adama, farmer, aged 19 on or about the 22nd day of May 2023 at about

8am at Kusali a suburb of Guollu ….. did steal a Tecno mobile and a cash sum of GHC50 from Braimah Jahara buy cutting her palm with a knife for the purpose of overcoming any possible resistance. From the particulars of the offense accused over powered the accuse by cutting her palm to be able to robe her of the cash amount but from the evidence of all the prosecution witnesses her palm got cut in the process of restraining the accused from using the knife on her if she did not submit to his demand to have sex with her. The facts and the evidence before the court did not relate the knife to have cut PW3 because she was resisting an attempt to prevent accused from robbing her. I have evaluated the case of prosecution and the apparent admission of the accused and I have formed the opinion that the particulars of the offence does not support the charge of robbery and I will proceed to discharge the accused of the offence charged. I have however preserved the presence of the accused till the end of the vacation so prosecution is able to have him prosecuted for rape which I have no jurisdiction. The punishment upon conviction for robbery in the Criminal Code [Amendment] Act 2003 [Act 646] provides as follows; “Whoever commits robbery is guilty of an offence and shall be liable upon conviction on trial summarily or on indictment, to imprisonment for a term of not less than ten [10]

years, and where the offence is committed by the use of an offensive weapon or offensive missile, the offender shall upon conviction be liable to imprisonment for a term of not less than fifteen [15] years”. I have painstakingly taken upon myself to refer to all these laws because in article 19 [11] of the 1992 Constitution of Ghana; “No person shall be convicted of a criminal offence unless the offence is defined and the penalty for it is prescribed in a written law”. I therefor discharge accused before me.

HIS HONOUR

JONATHAN AVOGO ESQ CIRCUIT COURT JUDGE, WA 9