MOSHIE vs. THE REPUBLIC [1976]DLHC410

Date	1976-02-11
Suit No.
Citation No.	[1976]DLHC410

OSEI-HWERE J.

EWUSIE-WILSON FOR THE APPELLANT.

YAW MANU ASSISTANT STATE ATTORNEY FOR THE RESPONDENT.

[1976]DLHC410
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													<main id="main" class="content" style="min-height: 60rem" >MOSHIE <o:p></o:p>vs. <o:p></o:p>THE REPUBLIC<o:p></o:p>&nbsp;[HIGH
COURT, SUNYANI]<o:p></o:p>[1976] 2 GLR 310<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

DATE:
11 FEBRUARY 1976.<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">

EWUSIE-WILSON FOR THE APPELLANT.<o:p></o:p>

YAW MANU, ASSISTANT STATE ATTORNEY, 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 windowtext 1.5pt;
padding:0in 0in 0in 0in">

OSEI-HWERE J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF OSEI-HWERE J.<o:p></o:p>The
appellant was arraigned before the Circuit Court, Sunyani, on a charge of
defilement of a female under ten years of age contrary to section 101 of the
Criminal Code, 1960 (Act 29). The particulars of the offence disclosed that the
appellant, a farmer, on or about 19 December 1973, at Bechem, carnally knew one
Setu Moshie a female under ten years of age. The appellant pleaded not guilty
to the charge and after his trial he was found guilty and convicted and
sentenced to seven years’ imprisonment with hard labour. He is aggrieved by
this conviction and sentence and he has therefore appealed to this court
against the said conviction and sentence. On his behalf his counsel has filed
the following grounds of appeal:<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">“(1) The
judgment of the learned trial judge is unreasonable and cannot be supported
having regard to the evidence. <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">(2) Since
the first prosecution witness’s examination of both the accused and the
complainant (the third prosecution witness) was very incomplete and
inconclusive the learned judge ought not to have placed any reliance on it.<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;(3) The learned trial judge erred in law in
convicting the accused on the uncorroborated unsworn evidence of the third
prosecution witness. <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">(4) The
learned trial judge misdirected himself by non-direction in that he failed to
resolve in favour of the accused the very many doubts in the evidence of the
prosecution. <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">(5) The
learned trial judge was wrong in law to accept hearsay evidence from the
prosecution and to act on it. <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">(6) From
the unsubstantiated observation made by the trial judge which appears in the
record, the trial judge was biased against the accused. <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">(7) The
sentence imposed on the accused is harsh and unconscionable having regard to
the evidence adduced before the court.”<o:p></o:p><o:p>&nbsp;</o:p>At the
trial a medical officer was called who gave evidence as the first prosecution
witness. He examined and treated the victim Setu Moshie (the third prosecution
witness). It was clear from his evidence that she was admitted at the hospital
at 5.15 p.m. the following day and from the evidence of the fourth prosecution
witness, Setu Moshie was allegedly defiled between 5.30 p.m. and 7.30 p.m. the
previous day. The first prosecution witness saw her bleeding from the vagina
and he gave her the necessary treatment and carried out his examination the
following day. According to him he found that the hole leading to the vagina
was intact and there were no abrasions or lacerations at the entrance; there
was a crack at the posterior wall or cavity of the vagina about two centimeters
long. The crack was about a quarter of an inch deep and shaped in the form of a
boat. On that same day, 21 December, he also examined the appellant and found
no abrasion nor laceration on his penis. There was also no fluid coming from
the hole of the penis. He then lamented the lack of any facilities for
examining such patients. He was of the opinion that any hard object could have
caused the boat-shaped injury and asserted that the penis of the accused was
likely to have caused the damage in the vagina of Setu Moshie. Obviously
relying on the medical officer’s evidence and on the evidence of Setu Moshie
the trial judge made the following findings:<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">“From the
evidence as a whole I find there is no dispute as</main>