COMMISSIONER OF POLICE vs. SEM [1962]DLSC1415

Date	1962-07-27
Suit No.
Citation No.	[1962]DLSC1415

KORSAH JSC

C.J. JSC

SARKODEE-ADOO JSC

ADUMUA-BOSSMAN J.S.C.

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

K. DUA-SAKYI D.P.P. FOR THE RESPONDENT (THE STATE).

[1962]DLSC1415
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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:#00B0F0">COMMISSIONER OF POLICE<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:#00B0F0">&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:#00B0F0">SEM <o:p></o:p>[SUPREME COURT]<o:p></o:p>[1962] 2 GLR 77<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:31.0pt 31.0pt 1.0pt 31.0pt;mso-border-shadow:yes">

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"> 27TH JULY, 1962.<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">

G.
R. MC V. FRANCOIS FOR THE APPELLANT.<o:p></o:p>

K.
DUA-SAKYI, D.P.P., FOR THE RESPONDENT (THE STATE).<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">

KORSAH, C.J., SARKODEE-ADOO
AND ADUMUA-BOSSMAN, JJ.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF
ADUMUA-BOSSMAN J.S.C.<o:p></o:p>Adumua Bossman J.S.C. delivered the judgment of the court. This
appeal arises out of the prosecution of the appellant in the Circuit Court,
Accra, presided over by Mrs. Annie Jiagge, on the charge On the charge of
“Defilement of female between ten and fourteen years of age, contrary to
section 102 (1) of the Criminal Code: Act No. 29/60,” the particulars of which
charge were that he “during the month of April 1961, at Kokomlemle within the
jurisdiction of the court, did carnally know one Aba Mindwenbu, a female
between ten and fourteen years of age.” He was convicted, not of that graver
charge preferred, but of the lesser offence of indecent assault, and sentenced
to six months imprisonment with hard labour, the trail judge explaining that:<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">“The evidence, however, falls short of what is required to prove
defilement of a female. The doctor’s evidence was that the hymen was not
broken. I find the charge of indecent assault proved. I find accused guilty and
convict accused accordingly.”<o:p></o:p><o:p>&nbsp;</o:p>The appellant while not disputing that it was open to the learned
trial judge, by virtue of section 159 (2) of the Criminal Procedure Code,
1960,1(1) to find him guilty or that lesser offence, contends, however, that
the conviction is unwarranted and wrong and accordingly appeals against it. It
falls therefore to consider whether the appellant’s contention is well founded
or not.<o:p></o:p><o:p>&nbsp;</o:p>The prosecution’s case, in the nature of things, depended mainly
on the evidence of the girl alleged to have been defiled, the material portion
of which given on the 23rd May, 1961, when the trial commenced, was the
following:<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">“I am maidservant to Mr. Tham (P.W.2) — a school girl reading in
class 5 and twelve years of age. In April this year, accused who lives in the
same house with me told me as I was going to have my bath that he wanted to
come and have his bath with me in the bathroom. I refused. I had my bath and
then went for a drink of water. Accused held me while I was at the tap getting
the water. The water tap is at the back of the house. I tried to shout but
accused covered my mouth and threw me on the ground. He had sexual intercourse
with me... It was at night near the water pipe at the back of the house . . .
When he left me, I wept and went upstairs. My mother [mistress] was asleep when
I went up and I told no one. About three weeks later my father [guardian]
noticed that I could not walk properly and asked what was wrong. I told him, I
could not walk properly because I had pains in my lower abdomen. At my father’s
request I took him to accused and told him in presence of accused that accused
was the man who had sexual intercourse with me. Accused denied. I was taken to
the police station and then to the hospital where I had medical treatment.”<o:p></o:p><o:p>&nbsp;</o:p>Under cross-examination she disclosed that several people lived in
the house in question and that many go to the water tap which was standing just
six yards away behind the house. It seems remarkable and somewhat incredible,
therefore, that the appellant, another inmate of the house who must have been
aware of how the other inmates use the water tap, should so recklessly take the
risk of assaulting her in such a seemingly public place, even though she
explained that it was dark and there was no one about at the time. As to how
the alleged incident came to light, her evidence already referred to in
examination-in-chief that, “about three weeks later my father noticed that I
could not walk properly and asked what was wrong. I told him,” as well as her
further explanation under cross-examination that, “it is true I said nothing
about this to anyone for three weeks. . . it is true that the woman with whom I
was staying as maidservant (P.W.3) asked what was wrong with me and beat me one
Thursday. It was then that I told both my father and mistress what was wrong
with me,” rende</main>