REPUBLIC vs. NAGA [1979]DLHC1110

Date	1979-06-13
Suit No.
Citation No.	[1979]DLHC1110

ABBAN J.

MISS ROSE OWUSU SENIOR STATE ATTORNEY FOR THE REPUBLIC.

A. K. ADU-AMANKWAH FOR THE ACCUSED.

[1979]DLHC1110
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													<main id="main" class="content" style="min-height: 60rem" >REPUBLIC <o:p></o:p>vs. <o:p></o:p>NAGA<o:p></o:p>[HIGH COURT, KOFORIDUA] <o:p></o:p>[1978] GLR 356<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:
13 JUNE 1979<o:p></o:p>

</div><o:p>&nbsp;</o:p>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">

MISS ROSE OWUSU, SENIOR STATE ATTORNEY, FOR THE
REPUBLIC.<o:p></o:p>

A. K. ADU-AMANKWAH FOR THE ACCUSED.<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 1.0pt 0in">

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

</div><o:p>&nbsp;</o:p>JUDGMENT OF ABBAN J.<o:p></o:p>The
accused is standing trial on a charge of murder, contrary to section 46 of the
Criminal Code, 1960 (Act 29). In the particulars of offence, it has been
alleged that the accused who is a police constable, murdered his wife, one
Asibi Musah on 23 February 1977 at Koforidua, in the Eastern Region.<o:p></o:p>[His
lordship hereafter stating the facts as summarised in the headnote of the case
continued:]<o:p></o:p><o:p>&nbsp;</o:p>It has to
be borne in mind that the burden of proof on the prosecution is heavier in
murder cases and the standard of proof is also higher. My duty at this stage
therefore is to decide whether or not the prosecution has been able to prove
all the essential ingredients of the crime beyond reasonable doubt. There is no
doubt that the prosecution was able to establish that the deceased, Asibi
Musah, mentioned in the particulars of the offence is dead and that she died as
a result of spinal injuries caused by a heavy impact to the region of the neck.
The question then is who was responsible for the heavy impact to the neck
which, according to the evidence of the doctor, brought about the spinal
injuries. The evidence of the doctor as to the cause of death clearly showed
that a mere slap as described by the first prosecution witness could not have
caused that heavy impact. As a matter of fact the prosecution is not relying on
the so-called slap as constituting the heavy impact. The prosecution is relying
on some heavy impact which might have been caused to the deceased when the
deceased repaired to the room after bathing the children. But then who brought about
that heavy impact when the deceased was in the room? There was no eye witness
to the incident, if any, in the room. Whatever took place in the room could
only be known by the deceased and the accused who followed the deceased to the
room after the deceased had finished bathing the children.<o:p></o:p><o:p>&nbsp;</o:p>But the
accused in his cautioned statement exhibit A stated that it was the deceased
who called him to the room and told him that when she went to the room, she
felt dizzy and fell down; but whilst falling down she hit her neck on the edge
of the wooden bed in the room, a wooden bed on which there was no mattress. It
would be recalled that the doctor in his evidence conceded that the hitting of
her neck against a wooden bench in the process of falling could cause that
heavy impact which could produce spinal injuries to the neck as described by
him.<o:p></o:p><o:p>&nbsp;</o:p>There is
therefore a serious doubt here as to what caused that heavy impact. Was the
heavy impact caused by the accused or was it due to a fall on the edge of a
wooden bed? This doubt was never cleared by the prosecution.<o:p></o:p><o:p>&nbsp;</o:p>Learned
senior state attorney relied on what the deceased told the second prosecution
witness, namely: “See what my husband has done to me” to prove that it was the
accused who caused that heavy impact; because that portion of the evidence of
the second prosecution witness, “See what my husband has done to me,” by
implication meant that it was the accused who inflicted that heavy impact on
the deceased. It seems to me that the statement: “See what my husband has done
to me” originated from the imagination of the second prosecution witness. She
first said when she went to the room the deceased simply said: “See the
condition in which I am.” And thereupon the second prosecution witness said she
questioned the deceased as to what she meant by that statement. But the
deceased did not say anything. As learned senior state attorney conceded, it
was after the second prosecution witness had been prompted that she changed her
evidence on that issue, by saying that in the room the deceased said: “See what
my husband has done to me.” She was obviously being inconsistent, to use a very
mild word.<o:p></o:p>