The Republic v Jagri (COURT CASE No. 9/2025) [2025] GHACC 119 (29 July 2025)

INTHECIRCUIT COURT HELDATKINTAMPOON TUESDAY,THE 29TH DAY OF JULY, 2025,BEFOREHER HONOUR, LILYAMOAH-KANKAM, CIRCUIT COURT JUDGE. COURTCASE No.9/2025 TIME:10:00AM THE REPUBLIC VRS KONNULSIMONJAGRI ACCUSEDPERSON PRESENT C/INSPJOHN MENSAHFORTHE REPUBLIC PRESENT COMPLAINANTS PRESENT JUDGMENT: The Accused person was arraigned before this court charged with the offence of causing harm and indecent assault contrary to sections 69 and 103(1) of the criminal offences Act, 1960, ACT 29. He pleaded not guilty during his plea taking when the 1 charge was read to him. The Prosecution therefore has the burden to prove the guilt ofthe Accused personbeyond reasonable doubt. The fact of the prosecution is that Fred Benin and Ophelia Tulo are the complainants in this case. They are farmers and are resident at Dabaa and the Accused person is also a farmer resident at Miaweni near Kunsu. According to the prosecution, the Accused person has on several occasions proposed love to Ophelia Tulo, who is a married woman and she made it known to the Accused person. On Friday, 26/07/2024, a market day at Miaweni, Ophelia Tulo went to the market to transact some business. The Accused person went to her again to continue his proposal. Ophelia Tulo, this time around, showed Accused person her husband and pleaded withthe Accused person tostophis proposal. Prosecution said that, Accused person who was not perturbed by the introduction of Ophelia’s husband hatched a plan to have his way with Ophelia come what may. According to the prosecution again, after the market came to a close, Ophelia in the company of her siblings and Fred Benin set off back to Dabaa on foot. On reaching a section of the road at a stream, about 300m to the village at about 9:00pm, Accused person caught up with them and pushed a pan on Ophelia’s head to the ground from behind. Fred Benin, the only man with the group, who was in front of them with a flash light, turned to see what was happening behind and saw Accused person. Accused person on realizing that he has been seen, attacked and inflicted cutlass wounds on Fred Benin’s head to neutralize him in order to be able to have his way with Ophelia. Accused person continually hit Fred Benin with a stick until he became weak and fell. The others, 2 who were all ladies out of fear for their dear lives, run away leaving Ophelia and Fred behind. Accused person then pounced on Ophelia and struggled to have sex with her. She resisted the Accused person and in the process Accused person heard some footsteps approaching, he then sensed danger so he left Ophelia and bolted into the bush. Fred Benin the victim was rushed to the Kunsu Health Centre for Medical attention. On 28/07/2024 at about 3:00pm complainants reported the matter to the police at Kintampo and the Police Medical report form was issued to 1st Complainant for endorsement. On 02/08/2024 Accused personwas arrested and after investigations, he was charged with the offences and brought before this honorable court. The foundation of our criminal justice system is premised on Article 19(2)(c) of the 1992 constitution which provides that a person charged with a criminal offence is presumed innocent until he is proven guilty or has pleaded guilty. In Asante (No 1) v The Republic (No.1) [2017]-2020] 1 SCGLR 132 at 143, Pwamang JSC held that: “Our law is that when a personis charged with acriminal offence it shall be the duty of the prosecution to prove his guilt beyond reasonable doubt, meaning the prosecution has the burden P a g e 3 | 15 to lead sufficient admissible evidence such that on an assessment of the totality of the evidence adduced in court, including that led by the Accused person, the court would believe beyond a reasonable doubt that the offence has been committed and that it was the Accused person who committed it. The general rule is that throughout a criminal trial the burden of proving the guilt ofthe Accused personremains with the prosecution. 3 Therefore, though the Accused person may testify and call witnesses to explain his side of the case where at the close of the case of the prosecution a prima facie case is made against him, he is generally not required by the law to prove anything. He is only to raise a reasonable doubt in the mind of the court as to his commission of the offence. And his complicity in it except where he relies on a statutory or special defence” The term "reasonable doubt" as explained by Lord Denning in the case of Miller vs. Minister of Pensions (1947) 2 All ER 372 is as follows; "It needs not reach certainty but must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. The Law would fail to protect the communityif it admitted fanciful positions todeflect the course ofjustice" Indischarging itsburden, the prosecution led evidence throughsix (6)witnesses. PW1 Fred Benin said that on Friday 26/07/2024, it was a market day at Miaweni so he went there in the company ofOphelia, Elizabeth, Lillian and Kwesi. According to him, after the close of the market, they set off back to the house on foot and he was theonly one withaflash lightleading therest. He said when they got to a section of the road at a stream, he heard that the sliver panOphelia was carrying fellso he turned tosee what was happening, He then flashed the light and saw Accused person and without any provocation, Accused person attacked him and afflicted cutlass wound on his head and again hit him and he fell, and the others managed to run away leaving him and Ophelia. He 4 added that the Accused after hitting him tothe ground, left him turned and followed Ophelia, he managed and rushed to the house and narrated his encounter with the Accused to his father and he was rushed to Kunsu Health Center where he was treatedand discharged. According to him, he left Ophelia and the Accused person so he cannot tell what happened between them. PW2 Ophelia Tulo, a farmer resident at Dabaa No. 1 who is also a complainant, said that she knows the Accused person as well as other prosecution witnesses. She said she knows the Accused person from Miaweni and for some time now, he has been proposing love to her and even though she told him she is married, it did not deter him. According to her, on that fateful day, Friday 26/07/2024, she went to Miaweni because it was a market day to transact business, and Accused person again came there and continued with his proposal. She said that in order for him to stop disturbing her withhis love proposal, she introduced him tohis husband. She also stated that, after the market came to a close, those of them from Dabaa No. 1, that is PW1-PW5 set off back on foot home, and Fred (PW1) was the one leading themwithaflash light. According to her, when they got to asection of the road at a stream, Accused person appeared from nowhere and pushed the silver pan she was carrying down, and Fred 5 on hearing the sound of the pan turned round with the flash light, and Accused person upon realizing he has been seen, attacked Fred and inflicted cutlass wounds onhis head and again hit him and he fell and therest run away forfear for their dear lives. According toher again, the Accused personthenfollowed her when he realized Fred was weak and wanted to have sexual intercourse with her but she resisted him. She stated that, in the course of the struggling they heard footsteps approaching so the Accused left him and runaway. PW3, PW4 and PW5 corroborated the story of PW1 and PW2, so I need not reproduce it. PW1, PW3, PW4 and PW5 all stated in their evidence that they run away and left Ophelia that is PW2 and the Accused at the streamside so they don’t knowwhat happened betweenthem. The investigator in the case PW6 No. 50934 General Corporal Mawutor Amedenu- Bosson, an investigator with the Kintampo District CID said that on 28/07/2024 a case of causing Harm and indecent assault involving the Accused person was reported and same referred to him for investigation. According to him the complainant was attacked and wounded on 26/07/2024 at about 9:00pm and was rushed to Kunsu Health Center where he was treated and discharged. He said after the compliant, Police medical form was issued to the complainant to be sent to the healthenterforendorsement. 6 According tohim during investigations he visited the crime scene, a streambetween Miaweni and Dabaa No. 1. And investigations revealed that Accused person has on several occasions been proposing love to PW2 and she has informed the Accused personthat she was married. He said the Accused personwas arrested on02/08/2024 and investigation caution statement obtained from him, and after investigations Accused personwas chargedwith theoffence based onthe evidence available. What available evidence is in the investigator’s investigations that he relied on to charge the Accused person? A case of unlawful harm and indecent assault was referred to him for investigations. Per his evidence before this court, what was revealed to him during the investigations was the love proposal between PW2 and the Accused. What it means is that the investigator did not obtained any information on the indecent assault and causing harm reported to the police. So what was the investigator’s base in charging the Accused with those two offences? A lazy investigation conducted by the investigator. There are no findings on the alleged crime investigated by PW6. Accordingly there is nothing to rely on in the investigatorsevidence. THEDEFENCE: The Accused upon opening his defence told the court that he knows the victims as well as the complainants in this case. According to him One Friday in the year 2024, the assemblyman of the area came to knock at his door around 7:00 am and told him 7 that the Kintampo Police has asked him to bring him to the Police station at Kintampo. According to him when they arrived at the police station, he was told Mr. Benin has reported him to the police that he attempted to rape C. K’s wife Ophelia and that in the process assaulted his son Fred Benin. He said, he told the Police he knew nothing aboutwhat theyare accusing him of. He stated that, the police asked him if he knows Ophelia and he answered yes. The police then said that someone has attempted to rape Ophelia and she has mentioned his name as the person. He said he told the police that on that fateful day at about 8:00pm, he and his friends were at a place called parliament at Miaweni planning to attend jams at Kunsu and they heard the news that someone wanted to rape a certain Ophelia and when Ophelia resisted, the person inflicted cutlass wounds on her. His case is that, when they heard the news, they did not visit the crime scene but proceeded to Kunsu to attend the jams. He said the police then arrested him and put him in their custody for three (3) days before he was granted bail. He stated that after he was granted bail, the police told him to admit the offence and if he does so, they would settle the matter but if he does not, they will arraign him before court. He also said he has not committed the offences they have charged him with. He called one witness insupport ofhiscase, DW1 BomfehTimothy. 8 DW1 Bomfeh Timothy, in his evidence told the court that, on that fateful day at about 8:00pm, he and the Accused person together with other friends were at a place called parliament at Miaweni, planning to attend jams at Kunsu and they heard the news that someone wanted to rape a certain girl and when the girl resisted, the person inflicted cutlass on her. He again said that when they heard the news, they did not visit the crime scene but proceeded to Kunsu to attend the jams with the Accused person. He statedthat, the Accused hasnot rapeorcause harmto anybody. The Accused personis chargedwith causing harmand indecent assault. COUNT ONE; CAUSING HARM: Causing harm is defined in section 69 of Act 29 the criminal offences Act as ‘’A personwho intentionally and unlawfully causesharm toany otherpersoncommits a second degree felony” section 76 of Act 29 defines unlawful harm as harm is unlawful which is intentionally or negligently caused without any of the justificationsmentioned inchapter 1ofthis part. The prosecution thereforehas toprove thefollowing ingredients: 1. That theact was intentional. 2. That the act was done without any justification recognized under our criminal code. 9 3. That the act of the Accused caused bodily hurt, disease or disorder whether permanentor temporarytoanotherperson. The prosecution in his facts told the court that, on that fateful day the incident happened, PW1, PW2, PW3, PW4and PW5were ontheir way home fromthe market at around 9:00pm and the Accused pushed a pan on Ophelia’s head to the ground, and PW1 the only man among the five (5) who was in front of them holding a flash light turned to see what was happening behind him and saw the Accused person. He added that the Accused on realizing that he has been seen, attacked and inflicted cutlass wounds on PW1, and also hit him with a stick until he became weak and fell, the other witnesses run away. The Accused then pounced on Ophelia and struggled tohave sex withher. PW1 stated his story as said by prosecution in their facts. PW2, PW3, PW4 and PW5 corroboratedthe storyofPW1.This transpired betweenPW1and theAccused. Q.Do youknowme? A.Yes. Q.Where doyouknowme? A.When Ivacate fromschool and come home, I see youaround. Q.Why didI inflict the cutlass wounds onyou?Do youhaveany issue withme? A. No, the day the incident happened, I was the only male among them that is why youattacked me. 10 Q.It is nevertrue thatI inflicted cutlass wounds onyou. A.It is true, youinflicted cutlass wound onme. Q.How did youknowit was me? A.When Iused the flash light onyou. Q.I amputting it toyouthat we have nevermet before. A.That is not true. Q.What was I wearing onthat day? A.A black boxers/shorts Q.I amputting it toyouthat, Ihave neverinflicted any cutlass wounds onyou. A.youdid The Accused in his defence told the court that he knows the victims. However under this dialogue he is denying knowing PW1. Per this dialogue again it can be deduced that PW1 knows the Accused person very well. He said when he comes home on vacations, he has been seeing the Accused around. Though it was dark, looking at the time the incident happened. It was upon using the flashlight that he realized it wasthe Accused. PW2 knows the Accused very well, per the evidence before the court they have been talking for some time now, and even spoke earlier on in the day on the day the incident happened. Per the evidence before the court, they were still talking about their love issues on that fateful day at the market, and the Accused even touched her 11 buttocks. A lot of PW2’s answers under cross examination was also not disputed or challenged by the Accused. This is what happened under crossexamination betweenthe Accused and PW2 Q. I am putting it to you that when I proposed to you, you didn’t tell me you were married. A.I told youI ammarried. Q.Ifyouwere married, why didyougive me yourcontact? A.I keptmy phone onthe table. Youpicked it and removed my number. Q. I am putting it to you that you gave the phone to me to remove the number, because youdon’t knowyour number? A.That is not true, thephone wasonthe table and youpicked it. Q.I amputting it toyouthat Iproposed toyoumore thanayearnow? A.That is not true. Q. Do you re-call that the day the incident happened, you called me on my phone to ask me where I was? A.That is not true. Q. And you asked me where I was, and I told you I’m going to the farm, is that not thecase. 12 A.That is not true. You called 3days after,asking me why I didn’t allow you tohave sex withme. Q.Youwere mytarget, why will Ihit Fred. A.I was yourtarget,but youhit Fred Q. Iproposed to youand youdidn’t tellme youare amarried woman. Isthat notthe case? A. I told you I am married and you said I should leave my husband he is an old man and come andmarryyou. Q.I amputting it toyouthat, it is nottrue. A.It is true. Q. Do you re-call that the day you introduced your husband to me, I told you, you havemade amistakeand thatyoushould haveinformed me earlier on? A. The day you touched my buttocks, I told you I’m married and that was the day I introduced my husband to you and when I went to my workplace you told me where we canmeet. Q. Do you re-call that the day the incident happened, you were the one that called me when Iwas at the markettobuy soap. A.No, that is nottrue. Yourathertoldme Ishould come toyourhouse. Q.Did we arrange tomeet at thestream? 13 A. That day you asked me where we should meet, and you said we should meet at theriver side/stream Q. I am putting it to you that, it is never true that we agreed to meet at the river side/stream? A.My othercolleagues werepresent when yousaid it. Under cross examination PW1, PW2, PW3, PW4 and PW5 all attested to the fact that they saw the Accused person on that fateful day when PW1 used the flashlight on him and also that he was wearing boxer shorts, and he used a cutlass on PW1’s head and also hit him with a stick. To me the witnesses saying that it was the Accused theysaw onthat fatefulday is notamistakenidentity. In the Accused defence to the court, he stated that on the day the incident happened he was never at the scene of crime. He said that he was with some friends at a place popularly known as parliament and they were preparing to attend jams at Kunsu, and he heard the news that somebody wanted to rape Ophelia. Under cross examination he stated that at the parliament he heard some noise outside, but he didn’t go outside and he just heard that they said somebody attempted to rape Ophelia. His witness DW1 testified that on that day, they were at parliament planning to attend jams at Kunsu and they heard the news that somebody attempted to rape a certain girl and when the girl resisted the person inflicted cutlass wounds on her. When prosecution enquired how he got the news contrary to what Accused told the 14 court he said a certain man by name Kwaku 5 star called him and he put it on speaker to the hearing of everybody there including the Accused, this he also stated inEXHIBIT‘1’,his statementto the police. There are inconsistencies in the evidence of the Accused and that of his witness. To me the Accused and his witness arenot truthful witnesses. On the totality of the evidence before me, I am of the view that the Accused was at the crime scene that fateful day, and he intentionally and unlawfully caused bodily hurt to PW1. Prosecution’s evidence is therefore more probable than that of the defence. Accused personis found guiltyand he is accordingly convicted. COUNT TWO: The Accused personwas also charged withindecent assault Section103(2) ofAct 29,1960;defineswhat indecent assault is as; A person commits the criminal offence of indecent assault if, without the consent of theotherpersonthatperson (a) Forciblymakes a sexualbodily contactwith the other person, or (b) Sexually violates the body of the other person in a manner not amounting to carnal knowledge or unnatural carnalknowledge. The following ingredients of the offence therefore should be proven by the prosecutionbeyond reasonable doubt; 1. That theAccused forcibly made bodily contact withthe victim 2. That thebodily contact was sexual 15 3. That the sexual violation did not amount to natural or unnatural carnal knowledge. In the facts of the prosecution, the prosecution stated that, on that fateful day the Accused pounced onOphelia (PW2) and struggled to have sex with her. InOphelia’s evidence to this court she also said that the Accused person wanted to have sex with her, but she resisted. Meanwhile, in the investigators evidence to the court, he never informed the court the results of his findings on the indecent assault during his investigations into the case. PW6 just mentioned that, a case of causing harm and indecent assault was reported to him, and the Accused person for some time now has been proposing love to PW2. The other prosecution witnesses said that they run away and left Ophelia and the Accused at the alleged crime scene and they did not see what happened betweenthetwo ofthem. No evidence has been led by the prosecution witnesses as to the charge indecent assault theAccused is charged with. Prosecution in his facts said that the Accused attempted to have sex with PW2. PW2 said that the Accused attempted to have sex with her in his evidence. In the particularsofoffence it readsasfollows: “Forthat youon 26/7/2024 at about 9:00pm between Miaweni and Dabaa in the Bono East Circuit and within the jurisdiction of this Court did forcibly make a sexual bodily contactwith Ophelia Tulo without her consent”. It is clear from this that the prosecutions facts does not support the charge as stated inthe particulars ofoffence oncount two. 16 Furthermore, looking at the ingredients of the offence charged, prosecution was also not able to prove any of them. It can be inferred from this evidence of prosecution that the Accused person never indecently assaulted the complainant PW2 per the evidence before the court. I therefore have no doubt in my mind that the Accused has not indecently assaulted the complainant PW2. The Accused is accordingly acquitted anddischargedoncount two. The Accused is sentenced to a fine of 150 penalty units on count one or in default serve a prison term of 6 months, he is further to compensate the victim with an amount ofOneThousand Ghana Cedis (GH₵1,000.00). I am shocked that the prosecution was able to charge the Accused with indecent assault when all their evidence is pointing to the fact that the Accused allegedly attemptedtohave sex withPW2. …………………………….. LILYAMOAH-KANKAM (CIRCUIT COURT JUDGE) 17