THE STATE vs. OHENE-KESSON AND MENSAH IN THE SUPREME COURT [1961]DLSC1378

Date	1961-11-24
Suit No.
Citation No.	[1961]DLSC1378

VAN LARE JSC

SARKODEE-ADOO JSC

ADUMUA-BOSSMAN JSC

KOI LARBI FOR THE FIRST APPELLANT

G. R. MC V. FRANCOIS FOR THE SECOND APPELLANT

K. DUA SAKYI WITH HIM ADJETEY FOR THE RESPONDENT (THE STATE).

[1961]DLSC1378
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&nbsp;vs.

OHENE-KESSON AND MENSAH IN THE SUPREME COURT

[1961] GLR 708

DATE: 24TH NOVEMBER, 1961.

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COUNSEL:&nbsp;&nbsp;

KOI
LARBI FOR THE FIRST APPELLANT,G. R. MC V. FRANCOIS FOR THE SECOND APPELLANT.K.
DUA SAKYI WITH HIM ADJETEY FOR THE RESPONDENT (THE STATE).

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VAN LARE, SARKODEE-ADOO AND
ADUMUA-BOSSMAN, JJ.S.C.

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&nbsp;

Adumua-Bossman, J.S.C. delivered the judgment of the court. The
two appellants (who will be referred to throughout this judgment simply by
their surnames, Kesson and Mensah respectively) were together convicted on the
25th January, 1961, during the January Criminal Session of the High Court, at
Accra, by Acolatse, J., sitting with assessors, upon an information which
charged them jointly with conspiracy to commit abortion, contrary to sections
49(1) and 245 of the Criminal Code1(1) and also individually with separate offences,
that is to say Kesson, with attempt to commit abortion contrary to sections 44
(1) and 245, and Mensah with committing abortion contrary to section 245 of the
said Criminal Code, and they have appealed against their convictions. The
prosecution’s case against them, as disclosed in the evidence of the first and
principal prosecution witness, a girl who at the material time was in training
at the Nursing School, Korle Bu, called Wilhelmina Richter (who will hereafter
be referred to shortly as Wilhelmina) was to the following effect:

That about February, 1960, having missed her period and suspecting
pregnancy, due, as she confessed in the course of her evidence, to some
previous sexual indiscretions with a friend of hers called Mr. Quist, she
approached Kesson, then a senior master for the training of nurses at Korle Bu,
to assist her to destroy the suspected pregnancy so that she might resume
normal menstruation. Kesson, although in no way responsible for her condition,
agreed for some reason or other to assist her. He therefore arranged and she
attended at his residence at Mamprobi, Korle Gonno, sometime early in April,
1960, where, having first injected her on the buttocks with a substance which
she says was seclomycin, he made her lie down on her back on a bed and inserted
an instrument into her private parts. Describing what took place, Wilhelmina
said:

In due course Kesson wrote a letter, which came into the hands of
the police upon an unexpected search of Mensah’s premises at Akuse and was
admitted at the trial as exhibit E, and despatched her with it to see Mensah at
Akuse. The letter, which has turned out to be the most damaging piece of
evidence against both appellants, was in the following terms:

On the day next after the letter was written and handed to her,
Wilhelmina travelled to Akuse and delivered it about 2 p.m. to Mensah at Akuse
Hospital, who, after reading it, took her to his residence in Akuse town. Here
he left her to wait in the house for him, but went back to her in the house
about 6 p.m. with another man to whom he requested her to pay £G5 as he was
going to supply the instrument to be used. She paid £G2 on account, not having
the full amount demanded, and they then left her in the house and went away,
and it was not till about 8 p.m. that she saw Mensah again. Describing what
then happened, she said:

“I went to his bedroom upon instructions. He asked me to lie down
on his bed and I obeyed. He gave an injection in the vein on my left arm; it
was intravenous. I slept throughout the night till the next day when I woke up
in another house round about 2 p.m. I felt severe pains in my arm and the lower
abdomen . . . I felt very sick. There was nobody in the room when I woke up in
the afternoon. Later I saw second accused at about 7 p.m. . . . He told me he had
‘finished’. I remained in this house till 11th July 1960. The second accused
was feeding me. I did not regain my period. The second accused visited me from
time to time during the period I was in the house. I complained to second
accused that I was feeling very ill and he used to g</main>