BARIMA YAW vs. THE STATE [1961]DLSC5355

Date	1961-03-10
Suit No.
Citation No.	[1961]DLSC5355

VAN LARE JSC

SARKODEE-ADOO JSC

AKIWUMI J.S.C

JOE APPIAH FOR THE APPELLANT

K. DUA SAKYI FOR THE RESPONDENT

[1961]DLSC5355
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">BARIMA YAW<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">&nbsp;vs. <o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">THE STATE<o:p></o:p><span style="font-size:10.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">&nbsp;[SUPREME COURT, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

<p class="MsoNormal" align="center" style="margin-bottom:5.0pt;text-align:center;
mso-pagination:none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">[1961] 1 GLR 152&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;&nbsp;DATE:<span style="font-size:10.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0"> 10TH MARCH, 1961.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:0in 0in 0in 0in">

JOE
APPIAH FOR THE APPELLANT.<o:p></o:p>

K.
DUA SAKYI FOR THE RESPONDENT.<o:p></o:p>

</div>CORAM: <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:0in 0in 0in 0in">

VAN LARE JSC, SARKODEE-ADOO JSC, AKIWUMI J.S.C<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF VAN
LARE, J.S.C.<o:p></o:p>Van Lare, J.S.C. delivered the judgment of the court. [His
lordship referred to the facts and continued:] The injured person had a small
punctured wound over the bridge of the nose. The medical evidence showed that
the injury was caused by a pellet which lay directly under the skin, from where
it was removed. Although not claiming knowledge of ballistic theories the
medical witness expressed the opinion that the fact that the pellet was just
under the skin would indicate the shot to have come from a long distance of
between 20 to 40 yards. The evidence is that the missile was an air gun pellet
not bigger than the tip of the little finger. The complainant was not examined
nor was the pellet removed on the day of the incident, but on the following
day, and it was the doctor’s opinion that the injury could have been inflicted
within 48 hours previously. The complainant did not appear to have been
seriously injured. He himself took a taxi to the hospital at Kumasi where he
received an injection. He went to the hospital the next day, where he was
X-rayed and the pellet was removed. The medical evidence further discloses that
“the depth to which a pellet is buried in the skin varies with the type of gun
used”.<o:p></o:p><o:p>&nbsp;</o:p>That it was the prisoner who fired the gun there is abundant
evidence, and his defence of not attending either the C.P.P. rally or the U.P.
drumming, on the day in question, also his denial of ever owning a gun or even
ever seeing one fired was in our view rightly rejected.<o:p></o:p><o:p>&nbsp;</o:p>We think, however, that the learned trial judge unfortunately
omitted to direct his mind as to the type of gun that the prisoner might have
used. The gun was not produced, neither was the pellet that was extracted from
the small punctured wound found over the bridge of the complainant’s nose. Upon
the evidence as a whole the gun might have been a flint or cap gun, or an air
gun. The missile was found to be a small pellet. There is no suggestion that a
rifle or other weapon of precision was the instrument used. The punctured wound
was small and it became necessary to consider whether what was used was a flint
or cap gun or an air gun, and on the consideration of this matter the judge
would have been in a position adequately to decide the question whether or not
the prisoner was guilty of the offence preferred against him. As Lord Goddard,
C.J., said in the case of R. v. Whybrow1(1):<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">&nbsp;“ . . . if the charge is
one of attempted murder, the intent becomes the principal ingredient of the
crime. It may be said that the law, which is not always logical, is somewhat
illogical in saying that, if one attacks a person intending to do grievous
bodily harm and death results, that is murder, but that if one attacks a person
and only intends to do grievous bodily harm, and death does not result, it is
not attempted murder, but wounding with intent to do grievous harm.”<o:p></o:p><o:p>&nbsp;</o:p>The learned trial judge in the instant case, however, appears
mainly to have concerned himself in his judgment with the prisoner having
apparently aimed at the upper part of the complainant’s body. He concluded as
follows:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“Had the evidence been that the accused aimed at the legs or lower
part of P.W.1’s [that is the complainant’s] body I would have considered
seriously whether he intended to cause either grievous or dangerous harm to the
complainant. However in view of the proximity to P.W.1 and the particularly
vulnerable part of the body which he must have aimed at and hit, I have no
hesitation in drawing the obvious inference that t</main>