ANANE vs. THE STATE [1961]DLSC1977

Date	1961-06-21
Suit No.
Citation No.	[1961]DLSC1977

CRABBE JSC

MILLS-ODOI JSC

BLAY JSC

S. GYANDOH FOR THE APPELLANT

R. J. HAYFRON-BENJAMIN

PRINCIPAL STATE ATTORNEY

FOR THE RESPONDENT

[1961]DLSC1977
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ANANE

[SUPREME COURT]

[1963] 2 GLR 65

DATE: 21ST JUNE, 1963.

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COUNSEL:&nbsp;&nbsp;

S.
GYANDOH FOR THE APPELLANT.

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CRABBE, MILLS-ODOI AND BLAY
JJ.S.C.

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&nbsp;

Crabbe J.S.C. delivered the judgment of the Court. The appellant
was convicted at the Kumasi Criminal Session on the 16th November, 1962, of
murder and was sentenced by Apaloo J. to death.

The facts are simple. On the 25th June, 1962, the deceased who
lived with his daughter alone in a cottage built in their farm slept in front
of his room on this fateful day, whilst his daughter slept in the room. When
his daughter woke up early the next morning she found blood on her father’s
arms and he was dead.

In the early hours of that same morning at about 4 a.m. the
appellant went to the house of one Yaw Krah and requested Yaw Krah to keep for
him a gun, a live cartridge, and a wireless set. The appellant told Yaw Krah
that he was going to Nderebehi, another village, to visit his uncle, one Yaw
Anane.

The appellant had helped his uncle to make a farm which had a
common boundary with that of the deceased. At Nderebehi the appellant told his
uncle that he had come to get more money to buy food for the labourers in the
uncle’s farm. His uncle asked him to sleep until the next day, but by day-break
the appellant had disappeared. He did not tell anyone of the incident at the
deceased’s cottage. When he was later arrested in Accra on the 13th July, 1962,
and after he had been cautioned he made a statement in which he said:

“I could remember on one Tuesday about 1.30 a.m., the 26th June,
1962, I took my stepfather’s shot gun and went to his farm as some animals had
taken opportunity of chewing the crops. I wore a hunting light. I took together
with me three live cartridges which had remained out from the nineteen
cartridges which were left. I am not good at shooting. I am now learning. When
I was going to the farm, I saw an object and thinking that it was an animal I
shot at it. I did not know that I had arrived at the village of the said Yaw
Frempong. At once I heard a voice saying. You have killed me!’ I became much
afraid and rushed to the spot, but by the time I arrived there I saw Yaw
Frempong lying down dead. I shot the gun from a distance of about 30 yards. I
therefore ran and gave the gun to one Yaw Krah also at Asuoenwin where I stay
and bolted away. I did not know where I placed the empty cartridge shell.
However I entered my room before leaving the village. I never entered his [the
deceased’s] room. On my way coming to my village from the scene I fell down
more than ten times before reaching my village. I had no intent of killing Yaw
Frempong. I shot him by an accident. But if I had gone there with bad intent I
would have killed the daughter whom I met there also. After four days that I
had committed this offence, I wanted to go to Obuasi Police Station to report
the matter, but some people told me that I would be beaten to death if I went;
and so I ran away from Kumasi district to Accra until today that I was
arrested. The bush where the incident happened is a very thick bush.”

Before dealing with the merit of this appeal we would like to
advert to two irregularities in procedure that took place at the hearing. The
primary duty of the prosecution in a murder trial is to establish not only that
death had taken place but that it was the result of an unlawful harm caused by
the accused. The normal method of proof of death is by medical evidence and the
evidence of a witness who knew the deceased in his lifetime. In this case,
cause of death was proved merely by tendering in evidence a medical report
headed Report of Post Mortem Examination on Yaw Frempong and addressed to “The
Coroner, Dunkwa. The Assistant Superintendent of Police, Obuasi.” We are unable
to find in the Criminal Procedure Code, 1960,1 any provision which permits the
substitution of a post mortem report for an oral testimony of a medical witness
in a trial on indictment. The circumstances in which the oral evidence of a
medical practitioner is dispensed with are indicated in section 121 (2) of the
Criminal Procedure Code, 19602 which reads as follows: