REPUBLIC VRS PAPANKO AND 3 OTHERS (NR/DC/KPA/B4/5/2024) [2024] GHADC 441 (5 July 2024)

IN THE DISTRICT COURT OF GHANA KPANDAI-N/R DATE: 5TH JULY, 2024 CASE NO. NR/DC/KPA/B4/5/2024 THE REPUBLIC VRS ATTAH PAPANKO AND 3 OTHERS ____________________________________________________ JUDGMENT ____________________________________________________ INTRODUCTION The 1st, 2nd and 3rd accused persons are standing trial for counts 1 to 4 which are: conspiracy to commit assault, assault, conspiracy to cause unlawful damage and causing unlawful damage. In addition to been charged with counts 1 to 4, the 3rd accused person is also charged with the offence of threat of death. THE FACTS AND CASE OF THE PROSECUTION The facts relied upon by the prosecution are that on 23/09/23, the complainant (PW1) accompanied by his friend, Illegru sent some chemicals unto his farm land at Buya. Complainant later in the day met A1 and A3 in town who warned him to stay off the land. PW1 then informed Papa Tali, the one who allocated the land to him of the said development but the said Papa Tali told him to ignore A1 and A3 and go ahead with the work on the land. It is the case of the prosecution that on 1/10/23 at about 11am, PW1 and Illegru went on the land to work but one Kwabena Bunjo came to question him on who allocated the land to him. A1 then surfaced at the scene with many others numbering about twenty (20). A1 then held the shirt of PW1 and slapped him on the face. A2, A3 and A4 also joined A1 and further assaulted PW1 at the scene. It is also the case of the prosecution that after the assault on PW1 by the accused persons, the accused persons and their cohorts destroyed one knapsack spraying machine, seven (7) yellow gallons and seven (7) containers containing herbicides meant for working on the land. That in the course of the destruction one of the accused persons opened the fuel valve of the motorbike belonging to PW1 and drained all the fuel in the tank after which they fled the scene. BURDEN OF PROOF The law is settled that in criminal proceedings such as the instant case, the burden is on the prosecution to establish the guilt of the accused person beyond reasonable doubt. This is so, whether or not the accused person decides to open his defence. The 1992 Constitution of the Republic of Ghana, which is the supreme law of the Republic, enshrines the right of any person charged with an offence to be presumed innocent until proven guilty. Article 19 (2) (c) of the 1992 Constitution provides as follows: Article 19 (2) A person charged with a criminal offence shall, (c) be presumed to be innocent until he is proved or has pleaded guilty; The Evidence Act, 1975 (NRCD 323) further provides that a person who alleges that another has committed a crime bears the burden of persuasion to prove same. See Section 15(c) of the NRCD 323. Section 13(1) of the NRCD 323 further provides for the standard of proof required in the proof of crime as in the instant case and it is proof beyond reasonable doubt. These statutory provisions have received a number of judicial blessings over the years. In GLIGAH AND ANOR v THE REPUBLIC [2010] SCGLR 297, the Supreme Court stated the burden of proof required in criminal proceedings in the following words: “…It is important for this Court to bear in mind that the Constitution 1992 article 19 (2) (c) presumes everyone innocent until the contrary is proved. In other words, whenever an accused person is arraigned before any court in any criminal trial it is the duty of the prosecution to prove the essential ingredients of the offence charged against the accused person beyond any reasonable doubt. The burden of proof is therefore on the Prosecution and it is only after a prima facie case has been established by the Prosecution that the accused person is called upon to give his side of the story.” It has been held that proof beyond reasonable doubt means that the evidence adduced by the prosecution must be able to overcome all reasonable inferences which favour the innocence of the accused. Where there is a doubt, the doubt must be resolved in favour of the accused by pronouncing him not guilty. Please see the case of RICHARD BANOUSIN v THE REPUBLIC [2015] DLSC 3046 where the court noted per Dotse JSC in the following words: ‘“What “beyond a reasonable doubt” means is that, the prosecution must overcome all reasonable inferences favouring the innocence of the accused. Discharging this burden is a serious business and should not be taken lightly. The doubts that must be resolved in favour of the accused must be based on the evidence, in other words, the prosecution should not be called upon to disprove all imaginary explanations that established the innocence of the accused. The rule beyond a reasonable doubt, can thus be formulated thus:- “An accused person in a criminal trial or action, is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt, he is entitled to a verdict of not guilty.”’ In the instant case, the burden rests on the prosecution to prove the guilt of the accused person beyond reasonable doubt. This it must do by proving all the essential ingredients of the crime with which the accused person is charged. I will now proceed to evaluate the evidence of the prosecution to determine whether it has been able to prove its case beyond reasonable doubt. EVALUATION OF THE EVIDENCE COUNT ONE CONSPIRACY TO COMMIT CRIME TO WIT ASSAULT CONTRARY TO SECTIONS 23(1) AND 84 OF THE CRIMINAL OFFENCES ACT, 1960 (ACT 29) Section 23(1) of Act 29 provides: If two or more persons agree to act together with a common purpose for or in committing or abetting a crime, whether with or without any previous concert or deliberation, each of them is guilty of conspiracy to commit or abet that crime as the case may be. From the reading of the section, the essential ingredients required of proof by the prosecution are that two or more persons agreed to act together for a common purpose, and that is, to commit or abet a crime. Under the new formulation, there is need for the prosecution to prove an agreement to act together in order to secure a conviction under the section. This was not so under the law which stated that the words as “agree or acted together”. Speaking on the effect of the new formulation of the law, the court in the case of FRANCIS YIRENKYI v THE REPUBLIC [2016] DLSC 3148 noted that: The essence of the changes brought about by the work of the Statute Law Review Commissioner is that, under the new formulation, a person could no longer be guilty of conspiracy in the absence of any prior agreement, whereas under the old formulation a person could be guilty of conspiracy in the absence of any prior agreement. In the instant case therefore, it is incumbent on the prosecution to prove that the four accused persons agreed to act together to assault PW1. It is not sufficient to prove that they acted together. There must be evidence of a prior agreement without which the charge of conspiracy must fail. PW1, Karim Alhassan testified that on 11/10/23 at about 11:00am, he went to the land in dispute with Illegru to spray the land. While working, one Kwabena Bunjo showed up and asked him which direction he was spraying towards which he showed him. He further asked who allocated the land to him and he mentioned Papa Tali. While talking with the said Kwabena Bunjo, A1 came to the scene with many others numbering about twenty (20). A1 held his shirt and slapped him. Thereafter, A4, A3, and A2 pounced on him and he fell on his knapsack sprayer and subjected him to severe beatings in the presence of Ilegru. While he was shouting for help, two of the sons of Papa Tali came to the scene before the accused persons stopped the attack on him. PW2, Ntefuni Moses also testified that on 11/10/23 at about 9:00am he was on his farm when he heard some unusual noise so he decided to follow up. While on his way to the scene, he met PW1 running towards them, stating that some people wanted to beat him. They then followed PW1 to the scene and met people numbering about fifteen persons but he was able to identify A1, A2 and A3 all of Buya. PW3, the police investigator also testified in support of the case of the prosecution that on the complaint being lodged he issued PW1 with a medical form for treatment which he later returned after treatment by a physician. That on the arrest of the suspects he also took caution statements from them. In their investigation caution statements, the accused persons denied the charges leveled against them. A1 stated that he was at home when someone came to inform him that he saw PW1 and Sule spraying the land in dispute which belongs to his brother, Kwabena. He then went to the scene with A2 and Kwabena to meet PW1. Kwabena then questioned PW1 on who gave him the authority to spray the land and PW1 mentioned Pando. The said Pando came to the scene and stated that the land was given to him by the Wiae chief. PW1 then started making noise which attracted others who also came to the scene. A1 stated that they did not assault anyone. A2 in his caution statement also denied the offence and stated that while at home with his brothers one Kudjo came to inform them that he saw PW1 placing gallons of water on Kwabena’s land. He, A1 and Kwabena then went to the farm and met PW1 spraying and Kwabena interrogated him on who gave him the authority to spray the land. PW1 mentioned Pando. A4 and A3 who were passing by also came to the scene upon seeing them but on their arrival, PW1 took to his heels into the nearby bush and came back with four Konkomba youth. On the arrival of Pando, Kwabena requested that they pour libation to ascertain the ownership of the land but Pando declined. While on their way, the Konkomba youth followed them in an attempt to attack them but they did not react. A2 concluded that he did not assault anyone. A3 and A4 corroborated the stories of A1 and A2. As stated earlier, to secure a conviction on a charge of conspiracy, there must be evidence of a prior agreement. Not only that, there must be evidence that the agreement to act together was for an unlawful purpose, that is, to commit crime. From the evidence of the prosecution so far, it is clear that A3 and A4 went to meet A1 and A2 on the land interrogating the complainant. From the evidence, there was no prior agreement. A3 stated in his caution statement that he contacted A4 to assist him spray his land. While doing so the machine got spoilt and he then went with A4 to his house to pick a new spraying machine. On their way they met A1, Kwabena and PW1 having a conversation. This was further corroborated by the statement of A4 who added that on their way to pick the new machine they met A1, Kwabena, A2 and PW1 having a discussion about a farm land. A3 and A4 repeated their said stories in their witness statements upon being asked to open their defences. In his cross-examination by the prosecution, A3 denied being invited onto the scene by A1. He stated: Q: A1 invited you and A4 to the scene on that faithful day of the incident on seeing PW1 spraying the said land. A: That is not correct. On the totality of the evidence led, I find that the prosecution has not been able to prove that there was any prior agreement between A1 and A2 of the one part, and A3 and A4 of the other part. By the new formulation of the law, a person could not be guilty of the offence of conspiracy by proof of acting together. There must be evidence of a prior agreement to act together. I have combed through the evidence of the prosecution but find no evidence of a prior agreement between A3 and A4, and A1 and A2. They had a mission to go for a new spraying machine and only joined A1 and A2 on seeing them with the complainant. A4 stated during his cross-examination by the prosecution as follows: Q: What was your mission at the scene? A: We were in the farm of A3 spraying and my machine got spoilt. So, I was going to my farm to bring new parts. Along the line, I heard noise from the other part so I went there to see what was happening. At its best, the evidence only suggest an ‘acting together’, but not a prior agreement, either directly or inferably from the conduct of the parties. I therefore dismiss the charge of conspiracy against A3 and A4. A3 and A4 are acquitted and discharged of count one. A1 and A2 stated that on being informed that PW1 was spraying Kwabena’s land, they went with the said Kwabena to meet PW1 on the land next day. In my understanding, evidence of a prior agreement could be inferred by the conduct of the parties. From the stories narrated by A1, A2 and their witness, DW1, I find that that on being informed that PW1 was spraying his land, DW1, A1 and A2 agreed to go and meet PW1 on the land the next day to confront him. to secure a conviction on conspiracy however, evidence of a prior agreement is however not enough. There must be further evidence that the agreement was to commit an unlawful act, which is a crime. In this regard the prosecution subpoenaed Illegru Kpajal to testifiy in support of its case. I must say that the case of the prosecution received a death blow by the evidence of the said Illegru Kpajal. He stated that on the day of the incident PW1 contacted him to assist him spray his land. When they began spraying one Kwabena Bunjo came and questioned PW1 of his ownership of the land and further told him to stop spraying as there was dispute over the portion of the land they were spraying so that the matter could be amicably resolved by the chiefs but PW1 insisted that they continue the work. Few minutes later A1, A3 and A4 came to the scene but PW1 on seeing them took to his heels towards Jaman Nkwanta amidst shouting. A1, A4 and A3 left the scene on the arrival of the Jaman Nkwanta folks, leaving only him and PW1. He then assisted PW1 to pack his remaining chemicals and they left home. PW4 concluded and stated that no one assaulted PW1. The evidence of PW1 was that he went to the farm with Illegru Kpajal. He is therefore his principal witness to testify in support of his case. The law is however settled that where the evidence of a party supports the case of his opponent, the court ought to accept the evidence. Please see the case of YAKUBU v YAKUBU [2013] 55 GMJ 97 C.A where the court held in the following words: “The law is that when the evidence of a party is corroborated by the evidence of his opponent, then the court ought to accept the evidence”. I find that the evidence of Illegru Kpajal supports the case of the accused persons even though he was called by the prosecution in support of its case. Particularly, paragraphs 5 and 6 of his evidence in chief reads: “5. Kwabena Bunjo further told Karim to stop the spraying so that the chiefs will be informed about the incident for amicable resolution before he continued spraying but Karim told the man that he will not stop the spraying and demanded from us to continue the work which I refused. 6. Few minutes later, Attah, Batigma and Ukpan all of Buya came to the scene and Karimi upon seeing them took to his heels towards some Jaman Nkwanta folks who were also far away from us amidst shouting. On arrival of the Jaman Nkwanta folks, Attah , Ukpan and Batigma left the scene, remaining I and Karim.” I accept the evidence of Illegru Kpajal and I find that the meeting of A1 and A2 with PW1 was not for an unlawful purpose. Merely meeting someone on land and interrogating him on the land does not constitute assault. As I stated, there must be evidence that A1 and A2 agreed to go and assault PW1 on the land. Even though I have found that there was a prior agreement by A1 and A2 by their conduct to go and meet PW1 on the land, the purpose, as narrated by the accused persons and supported by the evidence of Illegru is to interrogate him on who gave him the land. There is no evidence that they purposely went onto the land to assault PW1. I hereby dismiss the charge of conspiracy to commit assault against A1 and A2. A1 and A2 are hereby acquitted and discharged of count one. COUNT 2 ASSAULT CONTRARY TO SECTION 84 OF THE CRIMNAL AND OTHER OFFENCES ACT, 1960 (ACT 29) The particulars of the offences as per the charge sheet are that A1, A2, A3 and A4 assaulted the complainant by beating him. Section 84 of Act 29 provides that- Section 84—Assault. Whoever unlawfully assaults any person is guilty of a misdemeanour. Section 85 provides for the various kinds of assault which includes assault and battery, assault without actual battery and imprisonment. Section 86 is particularly on explanations as to assault and battery, as in the instant case. Section 86 (1) provides: Section 86—Definition of and Provisions Relating to Assault and Battery. (1) A person makes an assault and battery upon another person, if without the other person's consent, and with the intention of causing harm, pain, or fear, or annoyance to the other person, or of exciting him to anger, he forcibly touches the other person, or causes any person, animal, or matter to forcibly touch him. According to PW1, while he was speaking with Kwabena Bunjo, A1 came to the scene and held his shirt and slapped him. Thereafter A4, A3 and A2 also pounced on him and subjected him to severe beatings in the presence of Illegru. While he shouting for help, two of the sons of Papa Tali came to the scene before the accused persons stopped the attack on him. PW2 testified that he heard some unusual noise while on his farm. On their way to the scene, he met PW1 running and told them that some people wanted to beat him. They went to the scene with PW1 and met people numbering about 15 but he was able to identify A1, A2 and A3. From the evidence of PW2, nowhere did he state that he saw the accused persons beating PW1. According to the testimony of PW1, the accused persons were beating him until PW2 came to the scene before they stopped. This piece of evidence by PW1 was not corroborated by PW2. Prosecution further called PW3 in support of its case who tendered in evidence the medical form given to PW1 for medical treatment. Though the medical officer was not called to testify, the legible parts of the medical report indicates that the client complained of waist pains, headache and chest pains. In my opinion, in cases such as this where a medical report is relied upon, the medical officer who examined the victim and gave the report is the appropriate person to tender same in evidence and testify to its contents. Except that is done, the court cannot rely on it. This is because PW3, the police investigator who tendered it is not the person who prepared the said medical report and he is not in the position to speak to its contents. Of relevance to the issue of whether or not the accused persons assaulted PW1 is the evidence of PW4, Illegru Kpajal which I have considered extensively above. Nowhere in his testimony did PW4 mention that the accused persons assaulted PW1 by subjecting him to beatings in his presence as stated by PW1. Even though the said Illegru was called by the prosecution through a subpoena, he was designated as a court witness and was subjected to cross-examination by the prosecution who called him. During his cross examination by the prosecution, Illegru denied that the accused persons assaulted PW1. The relevant excerpts are as follows: Q. Accused persons and many others thronged the scene in anger. A. When they arrived, the complainant took to his heels shouting they are killing someone, they have killed someone Q. A4 held complainant and slapped him in your presence. A. It is not true Q. A1, A2 and A3 assisted A4 to further assault complainant and destroyed his farm tools, fertilizer and Agro chemicals A. It is not true From the evidence led by the prosecution, I find no corroborative evidence in support of the claim by PW1 that the accused persons assaulted him in the presence of PW4. Indeed the accused persons did not deny that they were present at the scene on the day of the incident. They however stated that they only asked PW1 of the one who authorised him to spray the land. They deny laying hands on him. PW2’s statement showed clearly that he did not see whatever happened at the scene prior to meeting PW1 while he was running and shouting. The evidence of Illegru who was present with PW1 together with the accused persons supports the case of the accused persons and his evidence was not discredited in any way during his cross examination. For the foregoing reasons, I hold that the prosecution has failed to prove beyond reasonable doubt that the accused persons assaulted PW1 in the presence of PW4. The charge of assault against them fails and I hereby acquit and discharge A1, A2, A3 and A4 of count 2. I will deal with counts 3 and 4 which are conspiracy to cause unlawful damage and causing unlawful damage respectively together. COUNT 3 CONSPIRACY TO COMMIT CRIME TO WIT CAUSING UNLAWFUL DAMAGE CONTRARY TO SECTIONS 23(1) AND 172 (1) OF ACT 29 COUNT 4 CAUSING UNLAWFUL DAMAGE CONTRARY TO SECTION 172 (1) OF ACT 29 I have stated in this judgment that for the charge of conspiracy to be sustained, there must be evidence of a prior agreement to act together for an unlawful purpose. I have stated that by section 23(1) of Act 29, it not sufficient to prove that there was a prior agreement but there must be further proof that the agreement was to engage in the commission of a crime. In the instant, the charge against the accused persons are that they agreed to act together for the purpose of causing unlawful damage. Since Count 4 is the substantive offence of causing unlawful damage, I will first proceed to determine whether the prosecution has discharged its burden in proof of count 4. Section 172 (1)(b) of the Criminal and Offences Act, 1960 (Act 29) provides: Section 172—Causing Unlawful Damage. (1) Whoever intentionally and unlawfully causes damage to any property by any means whatsoever— (a) to a value not exceeding ¢1 million, or to no pecuniary value, shall be guilty of a misdemeanour; (b) to a value exceeding ¢1 million, shall be guilty of second degree felony. The essential ingredients to be proved by the prosecution in a charge of causing unlawful damage are succinctly laid down by the court in HOMENYA v THE REPUBLIC [1992] 2 GLR 305 where the court noted that:- Section 172(1) of Act 29 which creates the offence of unlawful damage requires that for a person to be liable under the said section, the accused must have caused the damage intentionally and unlawfully. The section reads: “whoever intentionally and unlawfully causes damage to any property by any means . . .” Each of the two words emphasised above is important and must be established before one can be called upon to open his defence in respect of this offence. For if the damage was intentionally but not unlawfully caused, the offence is not committed. Likewise if the damage was unlawfully but not intentionally caused, then it is not one of unlawful damage. It is incumbent on the prosecution to prove that the accused persons caused damage to the properties listed, and that the damage was intentionally and unlawfully caused. By the particulars of the offence, it is the case of the prosecution that the accused persons caused damage to one knapsack spraying machine, seven (7) yellow gallons, seven (7) containers containing herbicides all valued at GH¢2,030.00 being the property of PW1. PW1 at paragraph 6 of his witness statement which is essentially his complaint statement given to police stated in the following words: 6. Later on, I detected that one carton of chemicals which I took to the farm is nowhere to be found and the fuel valve to my motorbike was opened and all my fuel drained out of my motorbike and the suspect destroyed 8pieces of my gallons I sent to the farm. Afterwards, Batigma told me that I was lucky because if they had come to meet me alone, they would remove my body parts. Notably, the PW1 in his evidence in chief did not mention that the accused persons destroyed his knapsack sprayer and seven (7) containers of herbicides. The alleged damage to the fuel valve and stealing of one carton of chemicals is also not part of the particulars of the offence. It is also worthy of note that, according to PW1, it was later he detected these damages. The reasonable inference therefore is that PW1 did not see which of the accused person destroyed the items belonging to him. In further support of its case the prosecution tendered in evidence a photograph of a knapsack sprayer showing a breakage at its bottom part. Also tendered are photographs of 3 weedicide containers on the bare ground and 7 yellow gallons also displayed on the bare ground. There is no indication or mark on the three weedicide bottles and the gallons on which parts had been damaged. The question remains, who caused the damage, if any, to the items photographed by the prosecution? According to the testimony of PW2, he was not present when the items were being destroyed and it was PW1 who told him that one carton of chemicals he kept at scene was nowhere to be found. Indeed during his cross examination by A2, PW2 stated: Q. Were you there when we were damaging PW1’s items? A. I met the gallons knapsack and other items already destroyed. Q. When you saw the destruction what did you ask us? A. That is the reason why I asked you and you said you were stopping PW1 from farming on the land and I asked you why you think you can do that that when you did not give him the land. PW2 could not therefore support the claim that it was the accused persons who destroyed the items belonging to PW1 as he admits he went to the scene to meet the items already destroyed. The evidence of PW4, Illegru Kpajal crippled the case of the prosecution to death. He stated during his cross examination by the prosecution that the photograph of the damaged knapsack sprayer was not what he and PW1 used in spraying the land. He stated that it was his personal spraying machine that they used in spraying the land. This evidence was not further denied by the prosecution. The following excerpts of the cross examination of PW4 by the prosecution is relevant to the issue at hand: Q. A1, A2 and A3 assisted A4 to further assault complainant and destroyed his farm tools, fertilizer and Agro chemicals A. It is not true Q. You went to the farm with well-functioning knapsack sprayer A. Yes Q. Look at this knapsack sprayer A. This is not the one we used. It was my personal knapsack sprayer we used Q. Do you want to tell the court that the complainant coursed damage to his own knapsack sprayer? A. I can say he is the one that damaged his own knapsack sprayer Q. What happened to the chemicals of the complainant before you assisted in packing the remaining one. A. We used one and a half of the bottles before the incident happened. Q. What incident are you referring to A. We used the one and half bottles before Kwabena came to tell us the land has a dispute Q. You witness the assault on complainant and the destruction of his properties by the accused persons and their accomplices A. They did not assault him I find the evidence of PW4, Illegru Kpajal credible and I rely on same. As I stated earlier, in his statement to the police, PW1 only stated that after he was assaulted by the accused persons, he detected that one carton of chemicals they took to the farm was nowhere to be found and the fuel valve of his motorbike also drained. PW1 never mentioned that his knapsack sprayer was damaged. I find that his latter claim that his knapsack sprayer and chemicals were damaged by the accused persons an afterthought. I accept the evidence of PW4 that it was his knapsack sprayer that was used for the spraying and not the knapsack sprayer shown in the photograph tendered. From the photographs, there is no indication of the damage that was caused to the weedicide containers. In any case, the complainant’s case that the accused persons damaged his items as listed in the particulars of offence was not corroborated by any of his witnesses, not even PW4 who he claims was present with him and witnessed the said destructions. I therefore hold that the prosecution has failed to prove beyond reasonable doubt that the accused persons caused damage to the items listed in the particulars of the offence. I therefore acquit and discharge A1, A2, A3 and A4 on count 4. Consequently, the charge of conspiracy to cause unlawful damage against the accused persons cannot also hold and I accordingly acquit and discharge A1, A2, A3 and A4 on count 3. I will now proceed to deal with Count 5 which is threat of harm. COUNT 5 THREAT OF HARM CONTRARY TO SECTION 74 OF THE CRIMINAL AND OTHER OFFENCES ACT, 1960 (ACT 29). The particulars of the offence are that on day of the incident, the 3rd accused person threatened to remove the body parts of PW1 if he had met him alone on the land and that he did so with intent to put PW1 in fear of harm. Section 74 of Act provides that:- Section 74—Threat of Harm. Whoever threatens any other person with unlawful harm, with intent to put that person in fear of unlawful harm, shall be guilty of a misdemeanour. It has been opined that where a person is charged with the offence of threat of harm, the threat must be that of harm and nothing else. Please see the case of BEHOME v. THE REPUBLIC [1979] GLR 112 where the court held that:- “…[A] person cannot intend to put another person in fear of death or of unlawful harm if there is no evidence that he threatened that other person with death or, as the case may be, with harm, and that where the appellant is, therefore, charged with threat of harm the threat must be of harm and of nothing else. In the instant case therefore, the burden rests on the prosecution to prove that the 3rd Accused person threatened PW1 with unlawful harm. In support of its case, PW1 testified that A3 told him that he was very lucky because if they had come to meet him alone, they would have removed his body parts. PW2 also testified that while at the scene, A3 threatened PW1 that if he does not vacate the land, they will beat and kill him. PW3 and PW4 did not testify in support of this charge of threat of harm against the 3rd Accused person. With regards to the evidence of PW2, I find that it relates to a threat of death and not a threat of harm. As was noted in the case BEHOME v THE REPUBLIC (supra), where the charge is that of harm, then the alleged threat must be that of harm and nothing else. In the same vein, where the charge is threat of death, then the threat must be that of death and nothing else. It is evident that PW1 and PW2 are saying two different things. While PW1 states that A3 threatened to remove his body parts (which parts were not stated), PW2 stated that A3 threatened to beat and kill PW1. The first relates to a threat of harm while the latter relates to a threat of death. The two facts could not support the same offence, especially so when the supposed body part to be removed is not stated. It is worth noting that A3 did not cross examine PW1 on his claim of threat of harm. I must however be quick to add that this is a criminal trial and the burden remains on the prosecution throughout the trial to prove the guilt of the accused person beyond reasonable doubt. The accused person has the right to remain silent and could decide to open his defence or not. The standard of proof on the prosecution remains proof beyond reasonable doubt irrespective of whether the accused person gives evidence or not. DW1 who was called by the accused persons did not testify in denial of the charge of threat of harm. In any case, that did not absolve the burden on the prosecution to prove that the accused person (A3) uttered those words of threat to PW1 with intention to put him in fear of harm. From the evidence of PW1 and his witness PW2, the court cannot tell which of the threatening words the accused person spoke to the complainant. Was it, that he will remove his body parts, or that they will beat and kill him? I find that there is doubt as to whether the accused person threatened PW1 with harm or with death. Apart of PW2, none of the witnesses of the prosecution testified in support of this charge. The accused person did not also admit the offence in his caution statement he gave to police upon his arrest which was tendered in evidence. In the circumstance, I hold that it will be dangerous and an affront to our criminal justice system to convict based solely on the allegations of the complainant, which is not supported by any of his witnesses. It could not be possible that at the scene and at the same time, the complainant heard a threat to remove his body parts, while PW2 also heard a threat to beat and kill PW1. Consequently, I hold that prosecution has failed to prove beyond reasonable doubt that the accused person (A3) threatened to remove the body parts of PW1. I therefore acquit and discharge A3 of Count 5. CONCLUSION On count one, I acquit and discharge A1, A2, A3 and A4 of the charge of conspiracy to commit crime to wit assault of PW1. In respect of A3 and A4, I find that there is no evidence of a prior agreement to act together with A1 and A2. The evidence indicated that they were on their farms and were only passing by and saw their brothers, A1 and A2 with PW1 and went up to meet them. For A1 and A2, I find that even though evidence of a prior agreement could be inferred from their conduct, the prosecution could not prove that their agreement was for an unlawful purpose, that is, to assault PW1. There was no evidence that A1 and A2 agreed to go and meet PW1 on the land purposely to assault him. On Count 2, I acquit and discharge A1, A2, A3 and A4 of the charge of assault. None of the prosecution’s witnesses saw the accused persons assaulting PW1. PW2 on his part admitted he came to the scene after the incident. PW4 also stated that he was present and none of the accused persons assaulted PW1. On Counts 3 and 4, I acquit and discharge the accused persons of the charge of conspiracy to cause unlawful damage and causing unlawful damage respectively. I find that the claim by PW1 of the destruction of his knapsack spraying machine and 7 chemical containers is an afterthought as he did not state so in his complaint statement to the police. None of the witnesses called by him testified that they saw the accused persons destroying the items listed by him. On count 5, I acquit and discharge A3 on the charge of threat of harm. The testimony of PW2 varies in substance from the claim of PW1. According to PW2, A3 threatened that they will beat and kill PW1. Meanwhile, it is the case of PW1 that A3 threatened to remove his body parts. The evidence of PW1 alone, uncorroborated by other facts, is insufficient to secure a conviction on the charge. SGD H/W GODSON ETSE KUMADO