REPUBLIC VRS ALI (NR/TL/HC/CC3/1/24) [2024] GHAHC 331 (29 April 2024)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE TAMALE, NORTHERN REGION Suit No: NR/TL/HC/CC3/1/24 Delivered on 29th April, 2024 THE REPUBLIC VRS ZAINAB MOHAMMED ALI Counsel: Linda Anibreka for the Republic Salisu Be-Aworibe Issifu for the accused person Coram Justice Eric Ansah Ankomah I. INTRODUCTION JUDGMENT 1. The accused person has been charged with the offence of causing harm contrary to section 69 of the Criminal Offences Act, 1960 (Act 29) as amended. The irony of the case is that, the accused person is the lawful wife of the victim and the couple are blessed with two children. On 12th January, 2024 the love story of the couple turned sour when a quarrel on who to drive the vehicle of the husband turned ugly. In the midst of the confusing, the husband (victim) is alleged to have slapped the wife in the face. The wife 1 allegedly boiled water on a gas burner and poured the hot water on her husband causing severe bodily harm to the husband. The wife reported a case of assault against the husband to the police and upon investigations, the then complainant (wife) became the accused person in this case before me. II. CHARGE 2. The only charge levelled against the accused person per the charge sheet filed in this court on 19th February, 2024 reads; COUNT ONE STATEMENT OF OFFENCE Causing Harm, Contrary to Section 69 of the Criminal Offences Act, 1960 (Act 29). PARTICULARS OF OFFENCE Zainab Mohammed Ali, 28 years, Nurse, on or about the 12th day of January 2024 of SSNIT Flat, Tamale in the Northern Region of the Republic of Ghana and within the jurisdiction of this Court did intentionally and unlawfully caused harm to one Rayan Yussif. The accused person pleaded not guilty to the charge and thereafter, the prosecutrix read the fact of the case to the court as follows: III. FACTS OF THE CASE 3. The accused Zainab Mohammed Ali is a 28 years old nurse. The victim in this case Rayan Yussif is 42 years old a Civil Engineer and a husband of the accused. They 2 reside at the SSNIT Flats, Tamale with their two children. The victim has a car which they both drive. 4. On 12/01/2024, at about 8:30 AM, the victim who was on his way to work noticed that his car key which he had placed in one of his trouser pocket was nowhere to be found. Upon searching the accused’s handbag he found the key and kept it in his pocket. The accused realizing that the victim had taken the key from her hand bag went to confront him. 5. The confrontation turned into a tussle with the victim during which the accused forcibly held the genitals of the victim and in return the victim slapped her. 6. Thereafter, the accused went out of the bedroom, entered the kitchen, boiled water in a saucepan and returned to the bedroom and poured it on the victim who was by then sitting on the bed. 7. The victim cried out for help, fortunately, their house help Zuwera rushed in to assist him to the bathroom and with the assistance of the accused, they poured tap water on the victim to relieve him of the burns. In a bid to ameliorate the burns, the accused also applied shea butter on the burned areas of the victim’s body. 8. The victim placed a call to his uncle, C/Supt Yussif who came and conveyed him to KABSAD Hospital where he was treated and discharged on condition to report for review in two days. 3 9. Meanwhile, the accused had gone to the Domestic Violence and Victim Support Unit (DOVVSU) where she made a formal complaint of assault against her husband and she was issued a medical report. 10. However, two days after the incident, the victim’s condition worsened so he was rushed to the Tamale Teaching Hospital (TTH) where he was admitted. The police were informed of the victim’s condition and a medical form was issued to the victim for endorsement. 11. The medical report revealed that the victim suffered burns of varying depths, superficial, partial thickness and deep partial thickness over par of his neck, chest, abdomen, left forearm, left thigh and right thigh. The estimated total body surface area affected by the burns being 25%. The accused was subsequently arrested and she admitted that, she indeed poured hot water on the victim. IV. THE BURDEN ON THE PROSECUTION IN PROVING ITS CASE 12. The position of the law is that in every criminal action the accused person is presumed innocent until he is proven or has pleaded guilty to the offence. This provision of the law has been given a constitutional blessing pursuant to article 19 (2) (c) of the 1992 constitution and it provides as follows: A person charged with a criminal offence shall- c. be presumed to be innocent until he is proved or has pleaded guilty. 13. The accused person in this case pleaded not guilty to the charge and as such it is the duty of the prosecution to prove the guilt of the accused person beyond 4 reasonable doubt by producing enough evidence in proving every element of the offence charged. 14. In a criminal trial, the burden of producing evidence and that of persuasion lie on the prosecution who must prove the guilt of the accused person beyond reasonable doubt in accordance with section 13 (1) of the Evidence Act 1975, (NRCD 323). The said section reads; In any civil or criminal action the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond a reasonable doubt. 15. Section 11(2) of the Evidence Act, 1975 discuss the burden to produce evidence and it states as follows: In a criminal action, the burden of producing evidence, when it is on the prosecution as to a fact which is essential to guilt, requires the prosecution to produce sufficient evidence so that on the totality of the evidence a reasonable mind could find the existence of the fact beyond a reasonable doubt. 16. From the provisions of the law, it is the prosecution who must produce evidence sufficient enough to prove all the element of the offence of causing harm beyond reasonable doubt as stated supra. The accused person has no such burden on her. It is only when the prosecution has been successful in proving all the ingredients of the offence that the accused person will be called upon to open her defence. The standard of proof on the accused person is to produce sufficient evidence so that on all the evidence a reasonable mind could have a reasonable doubt as to guilt. 5 17. What constitute proof beyond reasonable doubt was established in the case of Miller v Minister of Pension [1947] 2A.E.R 372 by Lord Denning as follows: "Proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is strong against a man as to leave a remote possibility in his favour which can be dismissed with the sentence of course it is possible but not the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice". 18. In the Ghanaian context, the Supreme Court has affirmed that when we say proof beyond reasonable doubt it actually means proof of the essential ingredients of the offence charged and not mathematical proof. See the following cases: Tetteh v The Republic [2001-2002] SCGLR 854; Dexter Johnson v The Republic [2011] 2 SCGLR 601; Frimpong A.K.A Iboman v Republic [2012] 1 SCGLR 297. 19. Having established that, the prosecution bears the burden of proof to introduce sufficient evidence in proving the elements of the offence of causing harm, the accused person has no such burden on her. It is only when the prosecution has succeeded in establishing a prima facie case against the accused person, that the law will require the accused person to produce sufficient evidence to raise doubt as to her guilt. The doubt raised by the accused person must not be a fanciful doubt. See section 11 (3) of the Evidence Act 1975 (NRCD 323) In a criminal action the burden of producing evidence, when it is on the accused as to any fact the converse of which is essential to guilt, requires the accused to produce 6 sufficient evidence so that on all the evidence a reasonable mind could have a reasonable doubt as to guilt. 20. The Supreme Court in the case of Oteng v The State (1966) GLR per Ollennu JSC (as he then was) in explaining the duty of the accused person to raise reasonable doubt referred to the dictum of Lord Denning in Miller v Minister of Pension case supra as follows: If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence, ‘of course, it is possible but not in the least probable’, the case is proved beyond reasonable doubt. V. SUMMARY OF PROSECUTION EVIDENCE 21. The prosecution filed witness statement for five (5) witnesses and upon the close of the case for the prosecution, the accused person also testified and called a witness. I proceed to summarize the evidence of the five prosecution witnesses first. 22. PW1-Zuwera Issahaku testified that, she is a house help of the accused person and the victim and on 12/01/2024 she was late for work and she got to the victim’s apartment at SSNIT Flat around 8am. Due to her lateness at work she did not prepare breakfast for the entire family but rather boiled small amount of water in aluminum saucepan to prepare milo for the small girl of the couple. That there was no hot water left in the saucepan after the tea. 23. That she saw the accused person entering the bedroom and later came out with the car key of the victim and she placed it in her bag. That the victim removed the 7 car key from the bag of the accused person and she informed her husband that he has no right to go into her bag. The victim also told his wife that she had no right to search his pockets and pick his car keys. 24. The witness added that the accused person held the victim, dragged him to collect the car key whilst the victim was also pushing her off him and telling the accused to stop what she was doing for he does not want to hit her. According to the witness, she also asked the accused person to stop what she was doing but she did not listen. That the accused was lunging at the victim and they were dragging each other. She saw the husband of the accused person slap the accused and at that moment she picked the children from the scene of the fight to the verandah so as to prevent them from watching what was going on. Whilst going she saw the victim entering the bedroom. 25. That whilst on the verandah, she heard a loud cry and screams of the victim calling her, so she rushed back into the apartment only to see the victim with his jalabia wet and when she held him she felt the hot water on his body and also saw vapour from his body. The victim was crying. There was no hot water left in the saucepan after she prepared milo for the little girl so she believes that the accused person fetched water, lighted the stove, waited for the water to boil and went to pour it on the victim. 26. The accused person came and assisted the victim to the shower and opened the pipe on him. The accused also applied some shea butter on the burned surface area of the victim’s body. Later the uncle of the victim came to the house and he sent the victim to hospital. She was cross-examined after her evidence-in chief. 8 27. PW2- Chief Supt Mahmud Yussif uncle of the victim testified that, the victim called him on 12/01/2024 at about 08: 45 am to pick him to the hospital whilst crying. That he proceeded to the residence of the victim and whilst in the living room, the victim emerged naked crying. The victim told him that the accused person has poured hot water on him. That he observed that the victims face, chest, neck, both arms, thighs and genital areas were smeared with oil with serious burns blisters. 28. That he ushered the victim to his bedroom and he put on a boxer shorts and a long jalabia. He saw water on the floor leading into the bedroom, some cloths soaked and wet. He saw the accused seated at the entrance of the bedroom. 29. He took the victim in his (witness) car and drove him to KABSAD hospital where the victim was managed and stabilized. He was discharged and asked to report for review within two days. Whilst they were in the hospital he heard that the accused person had gone to DOVVSU to report the incident and indicated that she had been assaulted by her husband. 30. Subsequently, he went to the victim’s house to enquire from the accused what might have caused the incident. The accused informed him that they had a misunderstanding about the use of the victim’s car and that the victim slapped her and out of anger she poured hot water on him. He admonished the accused to be patient and cautious in her future endeavours. 31. His family noticed that the victim’s condition was deteriorating as more blisters appeared at the areas where the hot water touched so they rushed the victim to TTH where he was admitted for treatment. That whilst at the hospital for 9 treatment, he took pictures of the victim and they were admitted in evidence and marked as exhibit A to A4. The witness was cross-examined thereafter. 32. PW3-Rayan Yussif (Victim) evidence is that, he is a Civil Engineer and he resides at SSNIT Flat with his wife and two children. That the accused person is his wife. That he owns a saloon car which the accused sometimes drive when he is not using it. 33. On 12/01/2024, between 8:00 am and 9:00am, he bathed his first child and when he was about dressing her, he went to the bedroom to pick her dress and also to pick his car key but he did not find it. He saw the bag of the accused person and he searched it and found the car key so he put it back into his pocket. The accused upon realizing that he had picked the car key started berating him that, she had left her goals to come and give birth for him and that was the reason she was not having a car of her own. That she kept lunging and thrusting him. 34. That he did not want to engage in a scuffle with her but she kept on lunging him and in the process she yanked his genitals and it caused him to throw his hand and it hit the accused person face. 35. That the house help at that time asked the accused person to stop what she was doing. After the slap, the accused stood there for about five (5) seconds. He saw the accused person enter the kitchen where she picked a saucepan. The saucepan was identified by the witness and it was admitted in evidence and marked as exhibit B. 10 36. That the tap is attached to a pump machine so when you switch on, the pump humming sound automatically starts so he heard the humming sound of the pump when the accused opened the tap. 37. That he left the hall and entered the bedroom. Whilst sitting on the bed in the bedroom, the accused entered the room and picked some clothes to dress their daughter the victim had bathed her and could not dress her before the scuffle started. He believes that at that time the water was on fire boiling. 38. The accused person entered the bedroom for the second time and whilst he was sitting on the bed, all he could realize was that, the accused person had poured hot water on his body whilst warningly telling him that she told him never to touch her. That he felt the burns on his body and kept on screaming and crying. 39. That the house help upon hearing his cry and screams rushed to his aid to take off his cloth. That he realized that the accused had returned to the room she and the house help escorted him to the washroom where running water was poured on him. That the accused smeared him with shea butter whilst he was reeling in pain. 40. He called his uncle PW2 who came to take him to the hospital. That subsequently he was sent to TTH where he was admitted for weeks. 41. That the hot water the accused poured on him affected parts of his face, neck, hands, chest and thighs. 42. That he does not abuse the accused person in any form, be it emotionally, mentally, physically or financially. The witness was cross-examined extensively. 11 43. PW4- Dr. Ighohwo Etuh (The Medical Doctor) testimony is that, he is a Plastic and Reconstructive Surgeon at TTH. That on 14/01/2024, whilst on duty he examined the victim Rayan Yussif who informed him that his wife had poured hot water on him. 44. He observed that the victim had burns of varying depths; superficial, superficial partial thickness and deep partial thickness over parts of the face, neck, chest and abdomen. Left forearm, left thigh and right thigh. The estimated total body surface area burnt was assessed as 25%. 45. The witness tendered in evidence the medical report of the victim he endorsed and it was admitted in evidence and marked as exhibit C without any objection. 46. That victim appeared in the hospital with a history of hot water splashed on him following a heated argument in the house. That he visited the KABSAD hospital when the incident happened and two days thereafter he appeared at the TTH. When he evaluated the patient on arrival, he was fine. He examined the patient and made the following findings. That 25% of the total surface of the body of the victim had burns. The area burnt is what he had indicated with zigzag lines on the sketch of the victim in exhibit C. There were certain areas of the body of the victim that will require skin grafting surgeries because the wounds are deep. The witness was cross-examined thereafter. 47. PW5- INSPECTOR YUSSIF MORO (The Police Investigator) testified that he is a police officer stationed at DOVVSU Tamale. That on 12/01/2024 at about 10:30 am the accused reported a case of assault against her husband. That the victim 12 slapped her and the case was referred to him for investigations. That he issued a medical form to the accused person herein and she returned it duly endorsed by a medical doctor at TTH. 48. The witness tendered the statement he obtained from PW1, PW2, PW3 and his own statement he wrote down in the course of the investigations in evidence without objection. PW1 statement was marked as exhibit D. PW2 statement was marked as exhibit E. PW3 statement was marked as exhibit F and PW5 statement was marked as exhibit G. 49. The witness tendered in evidence the investigation cautioned statement of the accused person which she personally wrote down in evidence and it was marked as exhibit H. The witness also tendered the charged cautioned statement of the accused person which she personally wrote down in evidence without objection and it was marked as exhibit J. The witness was cross-examined by counsel for the accused person. The prosecution closed her case after the evidence of the fifth witness. 50. The court on 14th March 2024 made a ruling that the prosecution has established a prima facie case against the accused person and as such she was to exercise her right under section 174 of Act 30 to open her defence if any. V1. SUMMARY OF ACCUSED PERSON EVIDENCE The accused person gave her evidence-in-chief viva voce under oath as follows; 13 51. She is called Zainab Mohammed Ali, a nurse by profession working at TTH Emergency Yellow Unit. The victim Rayan Yussif is her husband and before they married, they talked about the previous failed marriage of her husband. Upon her enquiry about what brought about the divorce, her husband allegedly told her that his ex-wife enjoyed sex life after beatings and the marriage had a lot of challenges. 52. She was against any form of violence and at no point in time would she entertain violence in her marriage, hence the need to amicably resolve marital issues. She also discussed issues about polygamy and her husband assured her that he was not interested in polygamous marriage. That his previous marriage failed because of his family interference and if she gives in he will protect her from the family. He told her that before he divorced the first wife, he was asked to marry another wife but he said he was not interest so he divorced. 53. She had a child with the victim before he married her and at that moment their relationship was working well and full of enjoyment. She was indeed the happiest woman to the extent that she called him Sunshine and all her friends called him Papa Sunshine and they called her Mama Sunshine. The victim married her 40 days after she gave birth to their first child. 54. Their marital problems started when she got pregnant for the second child. The victim synchronized his mobile phone with the 1st child tablet so all notifications on his mobile phone also appeared on their child tablet to her knowledge. 55. She went to India to write examination and on her return to Ghana her husband was planning a trip to United Arab Emirates-Dubai with his girlfriend and the two 14 were spending the night in a hotel. She questioned her husband about it and drew his attention to their financial difficulties. 56. She also called her husband auntie and reported the issue about the lady to her and it became a family feud. Her husband's mother started sending her audio messages telling her that her son married her because of their first child. The audios were blackmailing and she was emotionally imbalanced. She saw the messages on her daughter’s tablet on 18th March 2023 and the husband and the lady went to Dubai on 20th March, 2023. 57. Before she saw the messages, she had sexually transmitted infection (STI) and she questioned her husband whether he was having extra-marital affairs and he affirmed it. She found out that her husband was dating a lot of women. That they had argument on it and she questioned him why he was spending money on women whilst they had not put up a structure for their comfort. 58. Her husband threatened to beat her and from that time, things went so bad that there was a day he dropped her at her work place and when she asked him for Two Ghana Cedis (GHs 2.00) to buy bread her husband nearly beat her. Her luck was that she was seated at the back seat of the vehicle. This happened at the time she was eight months pregnant with their second child. 59. When she was due for delivery, her husband took her to the hospital and after delivery and whilst in the car going home one of her husband girlfriends called him and he placed the call on loud speaker for her to hear their conversations. That they discussed the time she spent in delivery to her hearing and she was emotionally abused by the victim even after birth. 15 60. On 11th January 2024, a day before the unfortunate incident happened, her first child who is two years old was sick. She had swollen parotid and she informed her husband of the need to send the child to the hospital. She called her Boss at work to tell him about child sickness but he told her to pass through the workplace before she send the child to the hospital. As daily routine, she prepared her food and a little hot water for the baby’s formula and she put it in baby’s flask. 61. She saw her husband in his car so he hurriedly followed up to join him with the baby so he drops her at her work place but before she could get to the car her husband moved the car out of sight without saying a word to them. She had no choice than to put the baby at her back to stand by the road side to pick up a tricycle. She stood there for about 30 minutes before she had a tricycle and at the time she got to the Children Emergency Centre, the body temperature of the child was very high so she had to be managed with paracetamol to get the temperature down. 62. After taking the medication, she went to her unit only to find her Boss angry for not passing through the unit before attending to the child. Her evidence is that her Boss threatened to reduce her off duty days. Due to this, she planned to go to work very early the next day. 63. Contrary to her husband evidence that he brought them home, she rather came home by a tricycle and she gave the medication to the child. She took over home management from PW1 and on that day her husband came home at 12 midnight. His call by the doorbell disturbed their sleep since she had to go and open the door for him to enter. That disturbance of their sleep led to exchange of words with the 16 husband. She told him that the children sleep had been disturbed and she will struggle to put them back to sleep. 64. The victim became angry and told her that if she is uncomfortable in the house, she can pack her things and leave the matrimonial home. They went to bed and she woke up early in the morning to prepare the last child. That dawn, the 1st child followed her father to his room and they slept there whilst she also slept in the other room with the last child. 65. In the morning she prepared herself and bathed the little child. She moved to where the victim and the first child slept with the intention of going to wake her up to bath her. She was not willing at that moment so her husband told her to leave her for him to bath her later. She left to do other chores in the house including preparing hot water for the little child and herself. According to her she took three (3) sachet of water and poured into the saucepan with half sachet water left at the counter. For hygienic purposes she usually use bottled water for preparing the baby’s formula but in the absence of bottled water, she used the sachet water for the baby’s formula. She went ahead to do other chores in the house. 66. The water boiled so she picked it and brought it to the dining table and poured it inside the vacuum flask and placed the rest of the boiled water on the table. PW1 came from her house to their house and at that time her husband had picked the first child and he was bathing her in the washroom. 67. When the husband returned from the bathroom and he was dressing the first child, the accused person told him that he wanted to go to work very early that morning 17 in order not to step on the toes of her new boss because it was a new unit she had just been posted to. The accused told her husband to drop her at her work place but he declined. 68. That she pleaded with her husband and when he was not looking at her movement, she picked the car key from the bedside table in the children’s room where the husband slept and placed it inside her bag on the dining table. That she told PW1 to hurriedly iron her uniform for her and whilst inside her bedroom dressing she saw her husband removing the car keys from her bag. 69. That she hurriedly came out and told her husband to allow her use the car at least for the day since getting a vehicle to work on time would be difficult looking at where they stay. Again, she had no cash at hand and going to a mobile money vendor to cash out would further delay her. The accused added that as a breastfeeding mother, she has one-hour period before or after her shift so if she goes early she can come home one hour earlier than scheduled to take care of the child who would be in the care of their house help. 70. At that time, her husband had placed the car key in his pocket. In the process of jokingly explaining, she slid her hand in her husband pocket. That the slide in the pocket was their bedroom language and her husband understood the language. That when he was going to put her hand in his pocket, her husband got angry and he grabbed her neck and pushed her towards the dining table. That was the time the husband slapped her heavily in her face and she had a black out a little. 71. She started wailing and at that time, PW1 had taken the children out of their sight. In the process of crying, they started arguing about some of the things that have 18 been going on in their house. Whilst the argument was going on she was picking her things. She placed her ironed uniform in the bag she was going to use for work at the hall way. She also put the scrub shore in her bag as well. Her claim is that at that time “na atase atase akye me”. (Meaning she was in a confused state). She was confused and was placing items any how without knowing where they were being placed. 72. She went inside the children’s bedroom where her husband slept and he was also there as well. They were still arguing in the room so she picked the children medication and brought it to the dining table which is in the hall but close to the door of the bedrooms. She went back to the bedroom again and they were still arguing there. 73. That the victim (her husband) grabbed her for a second time and pinned her to the wall of the bedroom whilst holding her neck. She struggled with him and she rushed out of the bedroom. In the process of struggling, her husband told her that he will beat and kill her and she could go and report him to any authority even to the President of Ghana and nobody will do anything to him not even her family. She told the court that, this was not the first time her husband had said that to her. 74. She left the bedroom and whilst going she saw that her husband was still following her. At that time, she had reached the dining table and that was when she picked the silver bowl and threw it at her husband. The water was inside and at that time, she did not know that it was that hot so when she threw it, he screamed and she also screamed and rushed to him and removed his cloths and his boxer shorts as well. 19 75. That she placed the victim in the bedroom and PW1 also rushed in and she told her that they should go to the kitchen where there is a barrel of cold water so they could fetch and pour on her husband. They were fetching the water and moving to the bedroom to pour on the victim. 76. She realized that, the water was not serving the purpose so she took the victim to the bathroom and opened the tap and used the shower hose to put cold water on him. When they were in the bathroom, she asked PW1 to bring cloth so she could cover her husband nakedness. 77. They moved the victim from the bathroom to the children’s bedroom and that was when she applied shea butter on him. Her husband picked his mobile phone to make a call and she realized that he was struggling to dial a number so she asked him the one he wanted to call. Because of the water on him, the phone had water on the screen so she took it, wiped it and called her husband’s uncle and when he picked the call she gave the mobile phone to her husband to speak with him. 78. She offered to take the victim to hospital but he refused. She was still with the victim and she knew that he was waiting for the arrival of PW2. For some time, PW2 was not coming so she offered to take him to hospital but he held unto the car key so she stopped. 79. On the arrival of PW2 he sent the victim to the hospital and at that time she did not know what to do so she went to the police station at the Regional Headquarters together with PW1 and their children. They went to the counter and upon informing the counter NCO that she had a fight with her husband, she was told to go to the DOVVSU Unit to report the case there. She reported the case and showed 20 the bruises on her face to the police officer who retorted that “oh such a beautiful girl” and she said yes. That she caused PW1 to take a picture of her face when they were in the house and she showed the picture to the police investigator and narrated everything that happened (that is the fight) to him. The electronic version of the picture was admitted in evidence and marked as exhibit 1 after the court ruled on the objection of tendering of same. (See the detailed bench ruling on the objection which was delivered on 18th March, 2024 in the record of proceedings) 80. She showed her face to the investigator and he gave her police medical form to attend hospital. The accused person identified the General Medical Form she returned to the police investigator and it was identified as I.D 2.She gave a complaint statement to the police which was admitted in evidence and marked as exhibit 2. 81. When she attended hospital, one of the medication given to her made her drowsy when she took it. She was sleeping in the house when her husband cousin came to the house and PW1 woke her up. When she saw him, he asked her to give the first child to him and leave the matrimonial home. She asked him why and he shoved her with a pestle and threatened her as well. He allegedly told her that if she does not leave the house on his return, he will kill her. She claim to have captured him on video but she did not tender the video in evidence. She was extensively cross- examined by the prosecutrix. The accused person called one witness, a medical doctor who attended to her and endorsed the General Medical Form for her. I hereby sum up the evidence of DW1. 21 82. DWI- Dr. Valentine Akwulpua is a Physician Specialist and Urologist working at the Tamale Teaching Hospital. He is the head of Emergency at TTH where the accused person works as a professional nurse. 83. On 12/01/2024, he attended to the accused person as a patient and thereafter endorsed the General Medical Form the police issued to the accused person. The General Medical Form identified as I.D.2 was admitted in evidence and be marked as exhibit 3 without objection. 84. The accused person appeared before him on 12/01/2024 with a history of having quarreled with the husband. He assessed her on her vital statistics and found out that her BP was fine but her heart rate was slightly high. Her ability to breathe on her own was also fine. Her complaint was headache and a small abrasion on her left cheek. All other systems examination of the patient were normal. 85. His findings were that the accused person had abrasion secondary to alleged assault. That he gave the accused person first aid per their protocols. The witness was cross-examined by the prosecutrix and thereafter, the accused person closed her case. VII. Discussion of the Law on Cuasing Harm and Evaluation of The Evidence 86. It is my duty to discuss the offence of causing harm and analyze the evidence before me to find out whether the prosecution has been able to prove all the elements of the offence of causing harm this time beyond reasonable doubt. This standard of proof at the close of the entire case is higher than the standard of proof required at the close of the prosecution case. 22 87. The law that creates the offence of causing harm is section 69 of the Criminal Offences Act 1960, (Act 29) as amended. I hereby reproduce the law. Causing harm A person who intentionally and unlawfully causes harm to any other person commits a second degree felony. 88. The ingredients of the offence are as follows; a. That the accused person caused harm to another. b. That the harm was intentionally caused by the accused person. c. That harm caused was unlawful. 89. Before assessing the evidence to find out whether the prosecution has discharged the burden on her or not, it is instructive to deal with the legal meaning of the key words used in creating the offence. The first is the legal meaning of harm. Section 1 of Act 29 state that harm; means any bodily hurt, disease, or disorder, whether permanent or temporary. I must put on record that it is section 76 of Act 29 that defines harm that is unlawful and I hereby reproduce the law. Harm is unlawful which is intentionally or negligently caused without any of the justifications mentioned in Chapter One of this Part. 23 90. It is worthy of note that generally, harm is never lawful, unless it is justified by law and these justifications are also provided under section 31 of Act 29 and in the course of this judgment I shall make reference to the relevant portion of the law. 91. I now proceed to evaluate the evidence to find out whether the prosecution has been successful in proving each of the elements of the offence stated supra beyond reasonable doubt. The failure on the part of the prosecution to prove even one of the elements of the offence is fatal to their case. In fact there are certain facts and pieces of evidence led by the prosecution witnesses that were never challenged by the accused person or controverted and I shall proceed to deal with them as basis for the analysis of the case. 92. In the first place, the accused person and the victim are husband and wife who are blessed with two (2) children, a girl aged two and a boy aged six (6) months as at the time of the incident. 93. That the victim and his wife have employed a house help called Zuwera Issahaku (PW1) who assist the couple to take care of their children and also to do some house chores for the couple. On 12th January, 2024, PW1 reported to work in the house of the couple a little late at about 8:20am. 94. That it was PW1 who boiled little water to prepare tea for the last child of the couple and she used all the boiled water for the meal. This piece of evidence of PW1 was not challenged in cross-examination. Counsel for the accused person in cross-examination admitted that the water that PW1 boiled for the breakfast was different from water meant for other purposes in the house. I hereby reproduce the cross-examination of PW1 on this admission. 24 Q: The little water you prepared for breakfast was different from the water that was to be used for other purposes in the house. A: Yes. 95. That it was PW3 the husband of the accused person who slapped the accused person in her face in the cause of their struggle on the car key at the time the accused person slid her hand in his pocket. 96. That the accused person poured hot water on her husband (PW3) on 12/01/2024. This piece of evidence was led by all the prosecution witnesses as well as the accused person herself. She admitted this in her own hand written investigation cautioned statement as well as the charged cautioned statement. The accused person in her sworn evidence-in-chief on 18/03 2024 stated as follows: At that time, I had reached the dining table and that was when I picked the silver bowl and threw it at him. The water was inside and at that time, I did not know that it was that hot so when I threw it, he screamed and I also screamed… 97. That the victim suffered severe burns on his body which was assessed at twenty five percent (25%). The medical report of the victim after the burns was admitted in evidence without objection and the accused person did not challenge the content thereof. See exhibit C for the detailed injuries the accused person suffered. The victim was admitted at TTH for from 14/01/2024 to 2/02/2024. Here PW4 Dr Ighohwo Etur in cross-examination. 25 Q: Tell the court, the number of days the victim was on admission at the Tamale Teaching Hospital as in patient. A: The patient was admitted on 14/1/2024 and discharged on or about 2nd February, 2024. 98. With these uncontroverted evidence on record I need not spend much time on the first element of the offence of causing harm since the accused person per her own admission in her investigation cautioned statement and charged cautioned statement stated that, she poured hot water on the husband. That the hot water poured on the victim caused severe burns and pain to the victim. Exhibits A- A4 are pictures of the injuries sustained by the husband of the accused person. Exhibit C is the medical report on the husband which gives detailed account of the injuries the victim sustained as a result of the hot water poured on him by the accused person. 99. Again, PW1 in her evidence also told the court that when she rushed to the bedroom of the victim to assist him, his cloth was soaked with hot water and she saw vapour of the hot water from the body of the victim. (See paragraph 9 of the evidence in chief of PW1). This material piece of evidence was not challenged in cross-examination. The position of the law on failure to cross examine on material facts in a case amount to admission of that fact by the defence. See the following cases; Fori v Ayiribi [1966] GLR 627, SC Takoradi Flour Mills v Samir Faris [2005-2006] SCGLR 882 100. I find as a fact that it was the accused person who poured hot water on her husband. The hot water she poured on her husband caused severe bodily injuries 26 to the husband. From the totality of the evidence on record, the prosecution has been successful in proving beyond reasonable doubt, that it was the accused person who used hot water to cause harm to the husband. 101. I will now go unto the second element of the offence to find out whether the pouring of the hot water on the victim was intentional act on the part of the accused person. In order to be successful in proving an offence against an accused person, the prosecution has to establish by way of evidence that there was actus reus (the physical act of committing crime) and mens rea (the mental state of the accused at the time of the crime). In the case before me, the prosecution has been successful in proving that it was the accused person who poured the hot water on the victim beyond reasonable doubt. The question is, whether the accused person had criminal mind (mens rea) for the commission of the crime or not at that time. 102. Section 11 of Act 29 is the legislation that will assist this court in finding out whether the action of the accused person in causing the harm to the victim at that time was intentional act or not. Section 11(3) of the Criminal Offences Act, 1960 (Act 29) states that: A person who does an act of a kind or in a manner that, if reasonable caution and observation had been used, it would appear to that person (a) that the act would probably cause or contribute to cause an event, or 27 (b) that there would be great risk of the act causing or contributing to cause an event, intends, for the purposes of this section, to cause that event until it is shown that that person believed that the act would probably not cause or contribute to cause the event, or that there was not an intention to cause or contribute to it. See the case of Republic v Adekura [1984-86] GLRD 113 CA. 103. In the case before me, the evidence on record is clear that it was the accused person who by herself fetched water into the saucepan (exhibit B), put the saucepan on gas burner and boiled the water. The accused person made three statements in respect of the hot water and again gave a different account on the hot water when she testified in court. I will reproduce the relevant portion of the statements for emphasis. The accused person in her investigation cautioned statement (exhibit H) which she personally wrote down state as follows: “I tried to get away and he gave me a slap on the left side of my face that left hand mark on my face and a brief unconsciousness, in the heat of the moment fearing for my in an attempt to defend myself, the boiling water with which I wanted to use for tea in the morning I poured on him.” (Emphasis mine) 104. The accused person further admitted in her charged cautioned statement to the police that, the hot water she poured on her husband was on the stove. Hear her in exhibit J which she personally authored on 29th January 2024. 28 “…in an attempt to defend myself, there was a bowl of water on the stove which (I poured on him. When I) which was prepared) (sic) is meant for tea and the rest for the babies vacuum flask. I poured the water on him” (Emphasis mine) 105. All these notwithstanding, the accused on 18th March 2024 told the court in her sworn evidence-in-chief that the hot water she poured on the husband was on the dining table and this time not on the stove. Hear her; When I left the bedroom, I saw that my husband was still following me. At that time, I had reached the dining table and that was when I picked the silver bowl and threw it at him. The water was inside and at that time, I did not know that it was that hot so when I threw it, he screamed and I also screamed and I rushed to him and removed his cloths and I removed his boxer shorts as well. (Emphasis mine) 106. From the two written statements (exhibit H and J) of the accused person, the hot water was not on the dining table but on the stove. This is an admission that, the hot water she poured on her husband was boiling water on the stove. According to PW1 unchallenged evidence, the gas burner/stove was in the kitchen. The dining table per the evidence of the accused person is in the hall. The accused person evidence in court is that, the hot water she poured was just a small quantity because she had already used some to prepare food for the child and poured some into the vacuum flask. She is on record that she poured only two and a half sachet of water into the saucepan to boil. If this is true then what was left in the saucepan would be very small quantity. Again, that small amount of water staying in a saucepan between the long period of preparing food for the baby, pouring some into flask, and the period the parties spent in engaging each other would have rendered the left over water cold or in worse situation warm. 29 107. The unchallenged evidence of PW1 is that, when she saw the victim, his jalabia was soaked with hot water. She saw vapour from the body of the victim as well as the injury the victim sustained as a result of the hot water poured on him. From this piece of unchallenged evidence, the accused person claim in court on the water she poured on the victim cannot be true. 108. There is consistency in the two statements the accused person voluntarily wrote down as against her oral evidence. Again the two written statements are documentary evidence and they were written down when the matter was fresh in her memory. I see the oral evidence on this issue as a polished evidence rehashed by the accused person to fit in her defence in this case after realizing the gravity of what she had done. I hereby reject the oral evidence as against the documentary evidence. 109. The law is well settled that documentary evidence should prevail over oral evidence, especially if the documentary evidence is proved to be authentic. See the Supreme Court decision in the case of; Fosu & Adu poku v Dufie (Deceased) & Adu Poku Mensah [2009] SCGLR 310. 110. Again, it is well settled in law that a person whose evidence on oath contradict his previous statement whether sworn or unsworn such a witness is not worthy of credit. In the case of Odupong v Republic [1992-93] GBA 1038 the Court of Appeal stated the law as follows; 30 “The law was well settled that a person whose evidence on oath was contradictory of a previous statement made by him, whether sworn or unsworn, was not worthy of credit and his evidence will be of no probative value unless he gave a reasonable explanation for the contradiction.” 111. The accused person per her evidence in court seem to suggest that she did not know that the water she poured on her husband was that hot and could cause the injury. Her evidence further suggest that her initial empathy and quick response in pouring cold water on the victim and also smearing the burnt body with shea butter immediately after the incident indicates that she did not intend to cause the harm or did not intent the consequences of her action of pouring hot water on the victim to cause the injury. This cannot be true in line with the pieces of evidence before me and the findings of fact made by this court. 112. The unchallenged evidence of PW1 in cross examination is that, after boiling small quantity of water to prepare tea for the last child, she closed the kitchen door and there was no water on the stove at that time. She added that, the accused person at the time of the fight was not boiling water in the kitchen since she (PW1) had locked the kitchen. Again, she saw that the victim slapped the accused person before moving the children from the scene in the hall. Here PW1 answers in cross-examination; Q: It is true that the Accused person was also boiling water for other purposes in the house. A: Q: No. Did the Accused person assign you to do other works in the house after you prepared the breakfast for the children in the house. 31 A: Yes. Q: Where were you doing the assignment given to you by the Accused person? A: Q: I was working in the living room. It means that you had no knowledge of what was going on in the kitchen whilst working in the hall. A: Whilst I was working in the hall, the Accused person and the husband (victim) were fighting and the Accused person was not in the kitchen. Q: When you were working in the hall, you had no knowledge of what was going on in the kitchen. A: When I left the kitchen, I closed it and nobody entered thereafter. 113. The evidence of the husband of the accused person corroborates the evidence of PW1 that the accused person went to the kitchen to boil the water after the slap. The evidence of PW3 is that, after he threw his hand and it slapped the accused person, he left the scene and moved to the children bedroom and sat on the bed. Whilst he was there he heard that the accused had opened the tap to fetch water. That the tap is attached to the water the pump and immediately the tap is switched on, the pump which has a humming sound automatically starts so he heard the humming sound of the pump when the accused opened the tap. 114. Again there is evidence that, it took some time after the slap of the accused person that she poured the hot water on her husband. The accused person per her own account informed the court that, after the slap she was unconscious briefly. Thereafter she was in a confused state picking up things and placing them anywhere. The accused further claims that she entered the children’s bedroom where the husband was and argued with him again. That she picked some cloth of the first child to dress her. Her narration suggest that between the 32 time of the slap and the time she poured the hot water on the victim was quite some time and at that time she had recovered fully and was conscious of her actions. Her narration of what she did after the slap does not suggest that, at the time she threw the hot water, she was in a confused state. At this time, PW1 had left with the children to prevent them from seeing the fight leaving the accused and the victim alone. 115. What this means is that whatever happened there after PW1 left was between the accused person and the husband alone. Among the two whose evidence is to be believed? The question boils down to oath against oath. 116. The law has provided a way of dealing with such situation. In Gligah & Atiso v The Republic [2010] SCGLR the Supreme Court held that where a question boils down to oath against oath, especially in criminal case, the trial judge should first consider the version of the prosecution, applying to it all the test and principles governing credibility of witnesses, when satisfied that the prosecution’s witnesses are worthy of belief, consideration should then be given to the credibility of the accused’s story, and if the accused’s case is disbelieved, the judge should consider whether, short of believing it, the accused’s story is reasonably probable. See also Lutterodt v Commissioner of Police [1963] 2 GLR 429, SC. In R v Abisa Grunshie [1955] 1 WALR 36- WACA the court held that: “in a criminal trial, where a court does not believe the story or an explanation of an Accused person, the court should nevertheless go ahead to consider whether that explanation is reasonable when considered together with the evidence on the record as a whole before deciding on the guilt of the Accused”. 33 117. The evidence of PW1 is credible since cross-examination did not shake her evidence. In fact, PW1 was truthful to the court. When she mounted the witness box, she was in tears since it was not easy for her to testify against her employer. I observed the pain in her eyes when she was giving evidence in this matter against her Madam the accused person. Her narration of the incident in court was in line with her statement to the police. Where her evidence went against the victim, she did not hesitate to say it as it is. According to PW1 evidence the water that was poured on the victim was very hot and she saw the vapour from the body of the victim. Exhibits A, A1, A2, A3 and A4 are pictures showing the horrendous burns the victim sustained. The wounds were so bad and not a pleasant thing to watch. No wonder PW1 stated that when she rushed in the room of the victim, she saw vapour from the victim’s body and his dress was also very hot. Certainly the hot water that was poured on the victim could not have been the leftover of two and half sachet water that some had been poured into a vacuum flask as the accused person wants this court to believe. I must also add that the evidence of PW4 on the nature of injuries the victim sustained which covers twenty five percent (25%) of the victim entire body is in sync with the evidence that the water was at boiling stage when it was poured on the victim. PW4 evidence is that, the victim has to undergo skin grafting. 118. I had ocular observation of the victim in court and it was not a pleasant scene at all even after a month of the incident. The water that was poured on the victim could not just be of a small quantity looking at how it spread on the victim’s body. 119. I agree with the submission of the prosecution that, at the time the hot water was poured on the victim, he was sitting on his bed in the children’s room and not 34 standing in the hall way as the accused portrayed to the court. It is true because the victim is far taller than the accused and looking at the injuries the victim sustained, it would have been difficult for the hot water thrown to have caused the nature of the injuries if the victim was standing. The water touched parts of the accused face, neck, right shoulder, right arm, the chest, and virtually the entire surface area of the left thigh as well as portion of the right thigh as well. The sitting position is the most probable in the circumstance and I so hold. 120. I am convinced of the evidence that the accused person fetched the water in exhibit B after the slap, placed it on fire to boil before removing it from the fire to the children’s bedroom and thereafter threw it on the victim as the most probable course. The accused person evidence on this matter is not credible and I have no reasonable grounds to accept same. 121. In the case of Odupong v The Republic cited supra, the accused person defence to the crime was that he did not intend to kill his wife. That they were struggling over a gun which accidentally went off and killed his wife. The Court of Appeal held that the accused person knew that when a gun is loaded (which gun he loaded) it will most probably bring about the death of a person. When he aimed and fired the gun, he must be deemed to have known for certainty that the inevitable consequence of firing the gun at his wife was to bring about her death. 122. In the case before me the uncontroverted evidence is that, it was the accused person who fetched the water, lighted the stove and boiled the water. At the time she was throwing the water, she knew very well that it was very hot since she took it right away from the gas burner herself. That as a professional nurse 35 working at the emergency unit of TTH and familiar with burns, the accused person knew or ought to have known that throwing hot water on her husband was going to cause serious bodily burns and most probably cause serious bodily harm to the husband, yet she threw all caution to wind and poured the hot water on her husband who was then sitting on the bed in the children’s bedroom. 123. I have no iota of doubt that the accused person had a pent-up anger in her prior to this incident. She felt being cheated by the husband with the thought that what she was supposed to benefit from her husband was being shared with other women against her wishes. Her evidence of emotional, financial and psychological torture coupled with the perceived infidelity of her husband had clouded her mind to the extent that she was not comfortable at all in the marriage and was buying time to explode. I agree with the submission of learned counsel for the Republic when she started in her address with this popular quote that; “Knowing when to walk away is Wisdom, Being able to is courage, Walking away with your head held high is dignity” 124. In fact, the accused person was sitting on time bomb in the marriage. In cross examination the accused person admitted that she packed her husband’s bags and clothing’s from the matrimonial room to the children’s room and that was where the husband was sleeping. 125. Just a day to the incident the accused person husband came home at around 12 midnight and his arrival disturbed the family sleep. This led to exchange of words with the husband before he went to bed in the children’s room with his first child. The victim allegedly told his wife that if she was not comfortable in 36 the marriage she could park and go. This was after she claim her husband had left her and the sick child to look for vehicle to the hospital on 11/01/2021. The accused person account clearly demonstrate that all was not well with her in the marriage and she should have walked away. 126. The tension that the car key generated in the matrimonial home that morning was such a scene that, the accused person could not have jokingly slide her hand in the pocket of the husband. She had exchanged words with the husband that dawn and coupled with the dragging of the husband, the accused person was not in good mood at all. The credible evidence of PW1 and PW2 is that it was the accused person who started the fight by dragging the husband. The drugging and pushing by her cannot be a joke at that time since tempers were high. At the time that the husband took the key from her bag, she became furious, aggressive and dragged the husband to the extent that PW1 told her to stop but to no avail. PW1 evidence that the accused put her hand in the jalibiya (long robe dress) in an attempt to forcibly remove the key from the pocket of the victim support the victim evidence that, the accused in the process yanked his penis and he threw his hand and it slapped her face. 127. I am of the firm view that the accused person was the aggressor in the morning of 12/01/2024 prior to the slap she received. In fact if her husband was not well composed in the morning, he would not have offered to wash their first child personally and agreed to sleep in the children room when the accused person sacked him from the matrimonial room. Here the unchallenged evidence of PW1 on the aggression of the accused in paragraphs 8 and 9 of her evidence-in-chief. 37 The accused then held the victim, dragging him to collect the key from him whiles the victim was pushing her off him and telling her to stop what she was doing and he did not want to hit her. I also told the accused to stop what she was doing but she did not listen. The manner in which the accused was lunging at the victim and the way they dragged each other, I saw that the victim slapped accused. 128. With this attitude, I can say without any iota of doubt in my mind that, the pent up feelings of the accused person coupled with her insistence of driving the vehicle to work against the victim’s refusal and the slap she received from the victim caused her to teach the victim a bitter lesson by pouring hot water on him. The accused person intended her action. The singular act of going to boil water on a gas burner before taking same to the children’s bedroom to pour on the husband cannot be said to be unintentional. The actions of the accused person was intentional to cause the harm to the husband pursuant to section 11 of Act 29 and I so hold. 129. At this stage was harm caused intentionally to the victim lawful. The evidence before me will deal with this last ingredient of the offence as I progress in the delivery of this judgment. 130. It is the law that force or causing harm may be justified if the purpose of it is to defend a criminal action. Section 31 (f) of Act 29 states as follows: Grounds on which force or harm is justified Force may be justified in the case and in the manner, and subject to the conditions, provided for in this Chapter, on the grounds 38 (f) of a necessity for the prevention of or defence against a criminal offence; 131. The combined effect of sections 31 (f) and 37 of Act 29 is that, the plea of self defence if proven is a complete defence that will exonerate the accused person of any criminal liability on the offence charged. However, the same provisions set out limitations on the use of the plea of self defence. For instance if the amount of force or harm used is not reasonable, or proportionate to the imminent danger, the defence will not inure to the benefit of the accused. 132. Section 37 of Act 29 state as follows: “For the prevention of, or for personal defence, or the defence of any other person against a criminal offence, or for the suppression or dispersion of a riotous or an unlawful assembly, a person may justify the use of force or harm which is reasonably necessary extending in case of extreme necessity even to killing.” 133. Counsel for the Republic cited the case of, Lamptey alias Morocco v. The Republic [1974] 1 G.L.R. 165, C.A. where the court held that: “…Section 37 of Act 29 drew a distinction between force or harm simpliciter and force or harm which was intended or likely to cause death. Force or harm which was not intended to or which was not likely in itself to cause death might be justified as lawful if such force or harm was reasonably necessary for the defence of a person from an imminent crime or to prevent such a crime. For such force or harm to be permissible there must be evidence of circumstances of extreme necessity. So that where a safe opportunity for retreat existed or where a murderous assailant had been disarmed or disabled, killing could not be justified. However, mere 39 opportunity to escape or retreat or the fact of disarming or disabling such an assailant by itself could not in all cases make it impossible to justify a killing and such might be the case where to retreat or attempt to would immediately expose the victim to further danger to his life” 134. I agree with the submission of learned counsel for the Republic when she stated that, from the facts of the case and the evidence available, the accused person was not in imminent danger when she poured the hot water on the victim. Hear the accused person in court. “When I left the bedroom, I saw that my husband was still following me. At that time, I had reached the dining table and that was when I picked the silver bowl and threw it at him.” 135. Counsel for the Republic further submitted that, granted that the accused own statement as quoted supra is true, at the very moment she poured the hot water on the victim, the Accused was not under any attack, she was not in choke hold and neither was she being beaten by the victim nor being held by the victim. From her evidence, the victim was following her. Even if her fear was that the victim who was allegedly behind her would attack her, that fear as far as had not materialised cannot be sufficient ground for her pouring the hot water on the victim when she had an avenue of escape. The pouring of hot water was in no way necessary in the first place for even a reason to be attached to it. 136. In this matter it is not the case that at the time that the accused person poured the hot water on her husband she was in imminent danger such that if she did not throw the hot water on the accused she could be harmed or killed. Was the 40 accused person justified in pouring hot water on her husband after an unlawful fight of which she was the aggressor? 137. Section 32 (b) of Act 29 states that force or harm cannot be justified which in any case extends beyond the amount and kind of force reasonably necessary for the purpose it is permitted to be used. 138. The accused person was slapped after she started the unlawful fight with the husband. The husband did not use any tool or implement in the entire melee, the accused person own evidence is that, the husband went to the children’s bedroom after the slap and she followed him there. At this point in time the victim had retreated from the melee to the children’s bedroom. The accused person evidence that there was a second fight has proven to be false and as such she was not in any danger at the time she poured hot water on the husband. 139. The hot water she used was not at where she was slapped by her husband. The established fact is that, the accused person went to the kitchen to pick the boiling water from the stove and poured it on her husband in the bedroom. In the case of Bodua alias Kwata v The State [1956] GLR 51 the Supreme Court held that, what might take away the plea of self defence is the amount and kind of force used and not the nature and kind of implement used. Under section 30 (1) of Act 29 expressions applying to the use of force apply also apply to causing of harm. 140. The hot water that was at boiling stage right from the gas burner which was poured on the victim caused severe injuries to the face, neck, the chest, arms and thighs of the victim. The accused person intended her action to cause the lifetime injuries to the alleged cheating husband by her action. The nature of the injuries 41 are horrendous and so severe that a slap in the heat of dragging the victim is nowhere near the harm caused to the victim by the accused person. 141. Assuming without admitting that, the plea of self defence will even inure to the benefit of the accused person, the nature and the kind of force she used in causing the injuries to the husband will take away this fictional plea of self defence in this case. Under no circumstance will fetching hot water from the kitchen and walking into the bedroom to throw it on the victim who had no weapon or implement on him and was just sitting on the bed be justifiable under the guise of self defence. The accused person at the time she threw the hot water was not in danger or imminent threat to have caused this injury to her husband. 142. The evidence of the accused person in court is that she poured the hot water on the victim in the hall way and not in the bedroom of the children where the victim claim he was. The detailed account given by the accused person to the extent that the parties had second fight after the slap and she was put in choke hold did not reflect in her two statements she personally wrote down and gave to the police as stated supra. There is no corroboration of her story on this matter and for the fact that there are contradictions in her evidence and in her statements to the police, this court is unable to say that her action raises reasonable defence to the offence of causing harm. VIII. EVALUATION OF THE DEFENCE OF THE ACCUSED PERSON 143. The position of the law is that after the court has ruled that the prosecution has proved the essential elements of the crime and made a sufficient case for the accused to answer, the burden to produce evidence will now shift to the accused 42 person to open his defence failing which there will be a conviction. After the close of the evidence of the accused person, the law enjoins the court to find out whether the accused person defence raises reasonable doubt. If the explanation of the accused is acceptable, he should acquitted and discharged. The standard of proof on the accused person is only to raise reasonable doubt in the prosecution case. 144. I have in various part of this judgment assessed the defence of the accused person particularly on her claim that she poured the hot water on the victim in self defence. I have carefully looked at the cross-examination of the accused person and the answers she gave on where she poured the hot water on her husband as well as the very incident leading to the pouring of the hot. The accused person evidence on where she poured the hot water is inconsistent with the evidence of PW1, PW2 and PW3. In the accused person’s own hand written investigation cautioned statement and charged cautioned statement, the accused person did not give a scintilla of evidence that after the husband slapped her, there was a second fight that led her husband put her in a choke hold. 145. On the very day of the incident, the accused person wrote down her statement to police when she reported her husband. It was marked as exhibit 2. This statement was just given in less than three hours after the incident by accused. Hear her in exhibit 2. “…I pleaded with him and insisted. Instead he put me in a choke hold pushing me against the wall and gave me a slap that sent me in a brief unconsciousness, in the 43 midst of the struggle, and in an attempt to defend myself, I poured on him a bowl of hot water which I was preparing to take my tea.” 146. This statement (exhibit 2) did not state that after the slap another fight ensued in the bedroom where the accused was put in chokehold as alleged in her evidence in court. This statement also contradicts the accused person evidence that the water was not on the stove but rather a left over water she used part to prepare tea for the last child and poured some in the vacuum flask as already held. 147. This statement again contradicts the accused evidence in court that, she did not know that the water she poured on her husband was that hot. The law is that, a witness whose evidence contradict his previous statement whether sworn or unsworn is not worthy of credit. See the case of Gyabaah v Republic [1984-86] 2GLR 461. 148. I am not unaware that if the inconsistencies are trivial or do not touch on a material facts in issue, the court may ignore them. See Republic v Adekura [1984-86] 2GLR 345 CA. The inconsistencies in the case of the accused person herein touch on her core defence she has raised in this case, hence the need to scrutinize her evidence to find out if indeed the boiled water from the stove she poured on her husband was in self defence. How did the hot water on the gas burner end up on the dining table? There is no iota of truth in the accused person oral evidence that, the hot water was on the dining table and when she saw the husband following her so she picked the water in the bowl from the dining table and threw it on the victim. 44 149. At the time the victim slapped the accused person, PW1 was in the hall with the children and she witnessed it hence her decision to take the children out of the scene. If indeed, the pouring of the hot water was instantaneous after the slap, she would have seen it or heard the cry of the victim before getting to the veranda. Remember, PW1 in an answer to a question said that she stayed on the veranda with the children for about five minutes before she heard the cry of the victim. Certainly the hot water could not have been poured at that material time she was leaving the hall with the children. The accused person in cross examination admitted that, after the slap, the victim went to the children room and thinking that the accused person was hurt. If that statement is true then, on what basis did the victim attack her for the second time? Someone who had left a fight scene to the children’s bedroom to sit on the bed to ponder on whether he has hurt his wife at that time was not harmful and could not have been a threat to the wife as she wants the court to believe. Hear the accused person in cross- examination; Q: Right after the slap your husband entered the bedroom. A: Yes. Q: Whilst he was entering the bedroom he saw you picking exhibit B to fetch water. A: Not true. The bedroom is on the opposite side of the kitchen and he could not have seen me pick anything. What happened is that after he slapped me and I had a blackout, I started wailing and we exchanged words. He left the hall because he thought that something had happened to me otherwise he would have continue to beat me. Q: PW1 was with you and your husband at the time your husband slapped you in the hall. 45 A: Yes. 150. Again, the accused person is on record of having entered the children’s bed room to pick the dress of the child after the slap. What this means is that, the accused person had recovered fully and was conscious of her actions. She was in the right frame of mind and any action of her thereafter was premeditated. Leaving the children room to pick boiled water on a stove to the bedroom cannot be said to be an action to avoid imminent danger as stated supra. 151. Section 38 of the Criminal Offences Act 1960 [Act 29] states; “(1) a force used in an unlawful fight cannot be justified under a provision of this Act. (2) A fight is an unlawful fight in which a person engages, or maintains, otherwise than solely in pursuance of a matter of justification specified in this Chapter. 152. From the reading of section 38 of Act 29, the force used by the accused person in the fight she initiated and maintained cannot be justified under any provision of the Criminal Offences Act, 1960 Act 29. In the case of Torto v The Republic [1971] 2 GLR 342, C.A, the Court of Appeal stated in the judgment as follows; “The Appellant provoked the deceased into a fight and stabbed him to death. His plea of self-defence was held to fail because the fight was an unlawful fight, and all evidence showed that he was the aggressor.” 46 153. It was the accused person who initiated the fight and was the aggressor at all times. The accused person has not been successful in raising doubt in the case of the prosecution and I so hold. The accused person defence to her action has collapsed and it is not worthy of consideration looking at the magnitude of injury she deliberately caused to her husband. 154. I hereby convict the accused person of the offence of causing harm contrary to section 69 of Act 29 and before I sentence the accused person, I will hear a plea of mitigation of sentence from her counsel. IX. PLEA OF MITIGATION 155. Counsel for the accused person now convict prays that the court deals leniently with the convict because this is her first brush with the law and as a first time offender, she has learnt her lessons very well. That she is remorseful of her conduct. That she is a young mother of 28 years with two little children who are just two years and six months at the time of the commission of the offence. 156. That, the convict ever since she was produced before this court has been in lawful custody throughout the trial and she has learnt her lessons. That the court should give her a non-custodial sentence. That even if the court intend to give custodial sentence, the court should give the convict the minimum sentence. 157. Counsel for the Republic on the other hand states that, the offence of causing harm is a second degree felony that has no option of a fine. That the purpose of punishment should be deterrent enough to serve as a warning to would be 47 minds. That the conduct of the convict is so reprehensible that an enhanced punishment will be appropriate. That the convict is a professional nurse who should have known better. Counsel referred the Court to the case of Gligah Atiso v The Republic where the Court stated that in punishing an accused person his profession should taken into consideration. X. SENTENCE 158. According to the prosecution, the accused person is not known. There is no record of her having committed any offence of causing harm. The accused person and the victim are still legally married and I have no idea what their love life after the determination of this case will be. I do not want to be a prophet of doom to predict divorce but I am also not naïve to know that the hot water she poured on the husband has left indelible, permanent and horrendous scars of over 25% of his body. This will be a constant reminder of the excruciating pain and agony he has gone through in this unfortunate matter. I leave the rest of their love life to posterity to decide but the law reigns supreme and it must act when infringed upon in this heinous manner. 159. As a professional nurse at the Emergency Unit of Tamale Teaching Hospital, the convict knows the nature of burns from hot water yet she threw all caution to the wind to cause this injury to her own husband. In Kwashie v The Republic (1971) 1 GLR 488, the Court in dealing with sentencing power of the court had this to say: 48 "In determining the length of sentence, the factors which the trial judge is entitled to consider are: (1) the intrinsic seriousness of the offence; (2) the degree of revulsion felt by law-abiding citizens of the society for the particular crime; (3) the premeditation with which the criminal plan was executed; (4) the prevalence of the crime within the particular locality where the offence took place; or in the country generally; (5) the sudden increase in the incidence of the particular crime; and (6) mitigating or aggravating circumstances such as extreme youth, good character and the violent manner in which the offence was committed" See also the cases of Frimpong @Iboman v Republic supra, Adu-Boahene v The Republic [1972] 1 GLR 70, CA In the case of Kamil v The Republic [2011] 1 SCGLR 300 where the court re- emphasized that in considering the factors apart from giving consideration to the offence and the offender, it is important the interest of society is considered as well. The court therefore expressed its opinion on the issue as follows: “A judge in passing sentence may consider the offence and the offender as well as the interest of society. Where a appellant complains about the harshness of a sentence (as in this case) he ought to appreciate that every sentence is supposed to serve a five-fold purpose, namely, to be punitive, calculated to deter others, to reform the offender, to appease the society and to be a safeguard to this country.” In Gligah Atiso v The Republic [2010] SCGLR 870 the Supreme Court in considering sentencing stated that, the status and the profession of the convict has to be taken into consideration. The Court per Dotse JSC at page 889 of the report said: 49 “We are, however, of the opinion that the time has come for the courts of law to take into consideration, the status and type of profession and/or work the accused person does before sentence is imposed. For example, if an auditor, whose duty it is to check the accounts in the performance of their work either colludes or abets in the embezzlement of funds of the organization, one would expect the internal auditor to be drastically dealt with because it was he who abdicated his watchman role to facilitate the committing of the crime”. The offence of causing harm as stated in section 69 of Act 30 makes the offence a second degree felony but the section did not state the punishment to be imposed on the accused person after conviction, hence the need for this court to invoke section 296 (2) of Criminal and Other Offences (Procedure) Act 1960 (Act 30) as amended by Act 261; Where a criminal offence which is not an offence mentioned in subsection (5), is declared by an enactment to be a second degree felony and the punishment for that offence is not specified, a person convicted of that offence is liable to a term of imprisonment not exceeding ten years. 160. Thus the offence of causing harm has no option of a fine. The maximum term of imprisonment a court can impose is ten years. The convict has been in custody since her first appearance in Court on 26th February, 2024 up to date. Pursuant to Article 14(6) of the 1992 Constitution, I am enjoined by law to consider the period the convict has spent in lawful custody into consideration before sentencing her. I have enquired from the convict whether she is pregnant and she says no. 50 161. Taking the mitigation factors into consideration and also considering the fact that the convict is now not a breastfeeding mother, I hereby sentence the convict to six (6) years imprisonment in hard labour. SIGNED JUSTICE ERIC ANSAH ANKOMAH JUSTICE OF THE HIGH COURT TAMALE 51