DENYO vs. THE STATE [1966]DLHC1496

Date	1966-06-10
Suit No.
Citation No.	[1966]DLHC1496

SOWAH J.

BOYE FOR THE APPELLANT.

TURKSON FOR THE RESPONDENT.

[1966]DLHC1496
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													<main id="main" class="content" style="min-height: 60rem" >DENYO<o:p></o:p>&nbsp;vs.<o:p></o:p>&nbsp;THE STATE <o:p></o:p>[HIGH COURT, HO]<o:p></o:p>[1966] GLR 474<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">

DATE:
10 JUNE 1966.<o:p></o:p>

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

BOYE FOR THE APPELLANT.<o:p></o:p>

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

SOWAH J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF SOWAH J.<o:p></o:p>The
appellant was on 15 January 1966 charged with the offence of abduction of an
unmarried female under the age of eighteen years contrary to section 91 of the
Criminal Code, 1960,1 and was convicted and sentenced to six months’
imprisonment with hard labour. The appellant who is 21 years of age was not
represented at his trial and denied the charge of detaining the girl in his
house, though he admitted making love to her on several occasions during their
brief love affair. From the record of proceedings he did not appear to
appreciate the essence of the charge against him as he appeared to think that
the girl’s willingness was an answer to the charge. As said before he was
sentenced to six months’ imprisonment, a sentence which I consider was out of
all proportion to the offence considering the ages of the girl and the accused.<o:p></o:p><o:p>&nbsp;</o:p>Fortunately
for the appellant when the case came on appeal, Mr. Boye volunteered to appear
for him as the appellant was not in a position to brief counsel. An application
for leave to adduce fresh evidence was then made and granted. The fresh
evidence was that the girl who was said to be a school girl was in fact married
and has a child by a chief. The evidence that the girl was married was denied
by the prosecution but the prosecution admitted that the girl has a child who
is two years old.<o:p></o:p>I
consider that the essential elements in the offence are 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">(a) That
the girl was under the control or possession of the complainant at the time of
the offence;<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">(b) That
she was taken out of the control against the will of the complainant;<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">(c) That
the girl was under eighteen years of age at the time of the offence;<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">(d) That
the girl was unmarried; and<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">(e)
Finally that she was taken out with the intent of having sexual intercourse
with her.<o:p></o:p><o:p>&nbsp;</o:p>In this
case both the girl and her mother said she was seventeen years old but the fact
that the girl has a child nearly two years old should have called for a
stricter proof of her age.<o:p></o:p><o:p>&nbsp;</o:p>It is my
view that when such a charge is brought the prosecution must prove strictly the
age of the girl for it is a most essential element in the offence. It may well
be said that strict proof would be difficult in this country where births are
not registered, especially in the rural areas; if this is so, then for a
witness to come to court and allege that a girl is seventeen years old is to indulge
in guesswork. I consider that the evidence that the girl was seventeen years
old at the time of the offence is not satisfactory and not up to the standard
of proof required in such a case.<o:p></o:p><o:p>&nbsp;</o:p>