REPUBLIC VRS TOBIGA (UE/BG/CT/B7/26/2023) [2023] GHACC 1196 (10 November 2023)

IN THE CIRCUIT COURT HELD AT BOLGATANGA IN THE UPPER EAST REGION OF GHANA ON FRIDAY THE 10TH DAY OF NOVEMBER, 2023 BEFORE HIS HONOUR SUMAILA MBACHE AHMADU (CIRCUIT COURT JUDGE) SUIT NO. UE/BG/CT/B7/26/2023. THE REPUBLIC VRS. FRANCIS TOBIGA JUDGMENT The Accused is charged with DISHONESTLY RECEIVING; Contrary to section 146 of the Criminal offences Act 1960 (ACT 29). The accused person pleaded not guilty to the charge. THE CASE FOR THE PROSECUTION. On 12/01/2021 at about 9pm the Bolgatanga District Police received information of a robbery in which the victim had been shot dead at Zokko. A team of Police Officers were dispatched to the crime scene and they saw a young man of about thirty (30) years lying dead with his intestines out on the ground. The body of the deceased was found to have sustained gunshot wounds on examination by the Police. The body was photographed and deposited at the Bolgatanga Regional Hospital for preservation and autopsy. The body was later identified by one Amina Batong (a sister of the deceased) as Alhassan Samuel @ Alhassan Sumaila@ Alidu. On 13/01/2021, accused, Francis Tobiga was riding an unregistered black Yamaha motorbike around timber market, Zuarungu, when he saw Police Officers at a checkpoint; he immediately abandoned the motorbike together with his mobile phone and fled the scene. The said motorbike and the mobile phone were impounded and retained at the Zuarungu police station. Upon intelligence received by the Police, the accused was arrested and he stated that he obtained the motorbike from one Lawrence in Bolgatanga. The Police investigated the accused’s allegation but could not locate the said Lawrence. The motorbike was sent to the regional CID, where it was later identified by the deceased’s sister, Amina Batong, as the deceased’s motorbike. Amina Batong indicated that her deceased brother had registered the motorbike and it was the same motorbike the deceased was using on the day he was robbed and killed. The prosecution called two (2) witnesses in support of its case PW1 Amina Batong and No. 44910 D/SGT. Seth Mensah the investigator who tended in evidence EXHTS; A, B, C, D, E, F, G and H. THE CASE FOR THE DEFENCE. The accused person says he was sitting with his friends when, his girlfriend called him to pick her to the house and that he borrowed the motorbike from one of his friends to go and pick her. That on his return and on reaching the timber market the police stopped him. That motorbike was not registered and he was not wearing a helmet and that the police were also holding canes and as a result he got frightened and fell and got up and took to his heels leaving behind his phone and the motorbike. BURDEN OF PROOF. Prosecution must prove its case beyond reasonable doubt under Sections 11 (1) and 13 (1) of the evidence Act 1975 NRCD 323. ELEMENTS OF DISHONESTLY RECEIVING.; It must be shown that (1) the goods alleged to have been stolen were in fact stolen, (2) that the accused knew they were stolen and (3) nevertheless, assisted in the disposal of the goods otherwise than with a purpose to restore them to the owners. ANALYSIS AND APPLICATION OF THE LAW. From the evidence adduced before this court, it is not in dispute that the Black Yamaha motorbike with registration number M-20-UE 1829, the subject matter of this charge was stolen. The prosecution proved that the motorbike belonged to one Alhassan Samuel @ Alhassan Sumaila @ Alidu a younger brother to PW1. That the said Alhassan Samuel was shot dead at Zokko by robbers on the 12 day of January, 2021 and his motorbike taken. The accused person was found to be in possession with his girl friend behind him and upon seeing the police he abandoned same and took to his heels. The accused person claimed to have borrowed the motorbike from one Lawrance but could not lead the police to the said Lawrance. Section 148 of Act 29. Provides thus; 1. Where a person charged with dishonestly receiving is proved to have had in possession or under control, anything which is reasonably suspected to have been stolen or unlawfully obtained, and that person does not give an account, to the satisfaction of the court, as to the possession or control, the court may presume that the thing has been stolen or unlawfully obtained, and that person may be convicted of dishonestly receiving in the absence of evidence to contrary. The accused person led police to a house where he claimed Lawrance lived but nobody in house knows him and the room he allegedly lived in, the police was told belonged to a university student who had locked it and gone to school. This is what transpired between the Counsel for accused person and PW2 under cross examination; Q. you said you picked intelligence on the accused, not so? A. Yes. Q. You picked the intelligence after he was arrested by the police at Zuarungu? A. No. Q. can you tell the court when the intelligence was picked? A. on the day the accused abandoned the motorbike. Q is it not the case that the accused told you that the motorbike belongs to one Lawrance? A. Yes, he did. Q. as you stand there, there is nothing to suggest that the accused person knew that the motorbike was a stolen one? A. he knew. Q. I put to you that the accused person did not know that the motorbike was stolen? A. Not correct, that is why he abandoned it and run away. Q. Did the motorbike have a registered number? A. The plate had been removed and kept under the seat. Q. At the time he abandoned the motorbike was he wearing a helmet? A. I am not aware. Q. You are not also aware whether or not he is licensed to ride a motorbike? A. I am not aware. Q But you are aware that one can be arrested for not wearing a helmet and the motorbike not having number plate and the rider not having a license? A. I am aware, but the issue is that, the police were there on special mission. Q. The accused person could not have known about the special duties of the police? A. Yes. But the accused person was not the only person on the road. Q. I put it to you that the accused did not know they were on special duty? A. Yes Q. I Further put to it you that the Accused bolted for fear of arrest for not having license to ride? A. I cannot best tell, but after the robbery we had intelligence that the motor bike was taken to Zuarungu area. Q. When was the accused person arrested? A. On the 15/01/2021. Q. I Put it to you he was arrested before the intelligence was picked? A. Not Correct. Q. I put it to you that it was the Lawrence that should have been picked and not the accused person? A. He mentioned that he picked the motorbike from Lawrence, which he did and took us to a house and claimed that it is where Lawrence live and pointed at room but a tenant said the room is for one Jude a student in Accra and the room was open and we found books belonging to Jude. In the case of RAHIM IBRAHIM & 3 OTHER V. THE REPUBLIC. CRIMINAL APPEAL NO. H2/2/201 DATED 18 DAY OF JULY, 2017. The court states when a person is charged with dishonestly receiving, the prosecution must prove the following essential ingredients, namely (1) that the accused received property which he knew to have been obtained or appropriated by crime, and (2) that the receipt of the property was dishonest. These two essential elements constitute the ACTUS REUS and the MENS REA of the offence of dishonest receiving. Proof that the accused received something which has been stolen or obtained by any crime is not sufficient. There must be further proof that the accused person knew that the thing had been stolen or obtained by crime, since proof of guilty knowledge on the part of the accused person is essential to the constitution of the offence. It is the duty of the court to satisfy itself that the accused knew that the property has been obtained or appropriated by crime. It has been held by the court of criminal appeal in England in the case of R V JOHNSON [1911] 6 Cr. App 2. 218, that knowledge that the property has been stolen must exist at the time of receipt of it by the accused. In the instant case the accused says he did not know that the motorbike is stolen and that he only run away and left it because he was frightened on sighting the police, for the motorbike was not registered and he did not also wear a helmet. But in his extra-judicial statement to the Police, he said he run away because he had (wee) in his pocket. This inconsistency and his failure to positively identify Lawrance in my considered view, points to his knowledge that the motorbike is stolen, even before it was identified as such. More so I am of the view that no lady would ask her boyfriend to pick her up from work unless she knows that the boyfriend has a means of transport at best she would ask for money for transport. From the totality of evidence adduced before this court I hold that the prosecution has proved its case beyond reasonable doubt and hereby convict the accused person as charged. SENTENCE I have considered the plea for mitigation for the Accused person and that he is a first time offender and I have also considered that the offence is based on a Robbery with a weapon the victim having died out of gunshot. I hereby sentence the Accused to 15 years in Prison Custody. SUMAILA MBACHE AHMADU (CIRCUIT COURT JUDGE). 7