REPUBLIC VRS. ASARE AND ANOTHER (D4/09/21) [2025] GHACC 25 (17 February 2025)

IN THE CIRCUIT COURT “A”, TEMA, HELD ON MONDAY, THE 17TH DAY OF FEBRUARY 2025, BEFORE HER LADYSHIP JUSTICE AGNES OPOKU-BARNIEH, SITTING AS ADDITIONAL CIRCUIT COURT JUDGE SUIT NO: D4/09/21 THE REPUBLIC VRS: KWAME ASARE RICHARD ADJEI ACCUSED PERSONS PRESENT DSP STELLA NASUMONG FOR PROSECUTION PRESENT RUTH SEFAKOR ADJORLOLO, ESQ. WITH REUBEN KUKUBOR NORKPLIM, ESQ. HOLDING THE BRIEF OF PRINCE KWEKU HODO, ESQ. FOR THE 1ST ACCUSED PERSON PRESENT WINSTON HAYFORD, ESQ. HOLDING THE BRIEF OF HON. JAMES ENU, ESQ. FOR THE 2ND ACCUSED PERSON PRESENT JUDGMENT FACTS: The two accused persons were arraigned before this court on a charge of stealing contrary to Section 124(1) of the Criminal Offences Act, 1960 (Act 29). The brief facts presented by the prosecution are that the complainant, Samuel Addo, is a security supervisor at Gelloq Company Limited located at the Free Zones Enclave in Tema. The first and second accused persons are the Internal Security Officer and a Roller operator respectively of the company. The prosecution alleges that on Monday, 3rd February, 2020 at about 5:30 am, the complainant received a phone call from the day security officer that when he reported for duty, the entrance gate of the company was wide open. The complainant quickly rushed to the company’s premises and 1 detected the theft of one 5-inch solid block mould, one 5-inch hollow block mould, one 6-inch hollow block mould, one vulcanising machine, two pavement block mould machines, one measuring bucket, one pumping machine and six car batteries all valued at Three Hundred and Thirty-Nine Thousand, Two Hundred and Seventy-Five Ghana Cedis (GH₵339, 275.00). The prosecution further alleges that investigations disclosed that on Sunday 2nd February 2020, at about 6:38 pm, whilst the company had closed, a witness in the case met the accused persons with two (2) others currently at large, in an unregistered blue Datsun pickup, with the alleged missing items loaded into the vehicle. Further Investigations led to the arrest of the accused persons. The statements of the accused persons were obtained and after investigations, the accused persons were charged and arraigned before the court. THE PLEA The two accused persons pleaded not guilty to the charge after it had been read and explained to them in the Twi language. The case proceeded to trial, and the prosecution called three witnesses and tendered in evidence the following Exhibits; Exhibit “A” - Investigation Caution Statement of the first accused person Exhibit “A1”- Investigation Caution Statement of the second accused person Exhibit “B”: Charge Statement of the first accused person Exhibit “B1”: Charge Statement of the second accused person. At the close of the case for the prosecution, Counsel for the first and the second accused persons raised a submission of no case. This court ruled that a case was sufficiently made out for the accused persons to open their defence. The accused persons opened their defence and called no witnesses in their defence. The Learned Counsel for the second accused person filed a written address on behalf of the accused persons on 22nd January 2025, and the court has considered same. 2 BURDEN OF PROOF Under Article 19(2)(c) of the 1992 Constitution, a person charged with a criminal offence is presumed innocent until proven guilty or has pleaded guilty. This simply means that when a person is charged with a criminal offence, it is the duty of the prosecution to prove the guilt of the accused person beyond reasonable doubt. This requirement is the essence of Sections 11, 13, and 15 of the Evidence Act, 1975(NRCD 323). In the case of Asante (No.1) v. The Republic (No.1) [2017-2020] I SCGLR 132 at 143 per Pwamang JSC held that: “Our law is that when a person is charged with a criminal offence it shall be the duty of the prosecution to prove his guilt beyond reasonable doubt, meaning the prosecution has the burden 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. Apart from specific cases of strict liability offences, the general rule is that throughout a criminal trial the burden of proving the guilt of the accused person remains with the prosecution. 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” Also, in the case of Domena v. Commissioner of Police [1964] GLR 563, the Supreme Court per Ollenu JSC (as he then was) delivered himself as follows; “Our law is that by bringing a person before the court on a criminal charge, the prosecution take upon themselves the onus of proving all the elements which constitute the offence to establish the guilt of the defendant beyond reasonable doubt, and that 3 onus never shifts. There is no onus upon an accused person, except in special cases where statute creating the offence so provides, stealing is not covered by such statute.” Thus, there is no burden on the accused person to prove their innocence. When called upon to open their defence, they are only required to raise a reasonable doubt in the case of the prosecution and the standard of proof on the defence is on a balance of probabilities only. See Section 13(2) of the Evidence Act, 1975(NRCD 323). In the case of COP V. Antwi [1961]GLR 408 at 412, the Supreme Court per Korsah CJ (as he then was) stated that “The law is well settled that there is no burden on the accused. If there is any burden at all on the accused, it is not to prove anything but to raise a reasonable doubt”. The term “proof beyond reasonable doubt” has been explained in many landmark decisions. In the case of Miller v. Minister of Pensions [1974] 2 ALL ER 372 at 373, Lord Denning stated that: “That degree is well settled. It need not reach certainty but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond a shadow of a doubt. The law would fail to protect the community if it admitted if fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man, a remote possibility in his favour, which can be dismissed with the sentence” of course it is possible but not the least probable’ the case is proved beyond reasonable doubt but nothing short of that will suffice.” The same principle was stated differently in the case of State v. Ali Kassena [1962] 1 GLR 144, where the Supreme Court per Crabbe JSC stated that: “As Best, C.J., and many other great judges have said, ‘in proportion as the crime is enormous, so ought the proof be clear’…a reasonable doubt is simply that degree of doubt which would prevent a reasonable and just man from coming to the conclusion. So, the phrase ‘reasonable doubt’ takes the matter the matter no further. It does not say that degree of probability must be as high as 99 per cent or as low as 51 per cent. 4 The degree required must depend on the mind of the reasonable and just man who is considering the particular subject matter…” ANALYSIS Here, the accused persons are charged with stealing contrary to Section 124(1) of the Criminal Offences Act, 1960(Act 29). Stealing is defined under Section 125 of Act 29 as follows: “A person steals who dishonestly appropriates a thing of which that person is not the owner” In the case of Cobbina v. The Republic (J3 7 of 2019) [2020] GHASC 4 (19th February 2020), the Supreme Court stated that the essential ingredients of the crime of stealing which the prosecution must prove beyond a reasonable doubt are; 1. The subject matter of the theft must belong to another person. 2. The accused person must appropriate it. 3. The appropriation must be dishonest. On the first ingredient of the offence charged, the prosecution must prove that the accused persons are not the owners of the thing alleged to have been stolen. In the case of Domena v. The Commissioner of Police [1964] GLR 563, the Court held that: “The first essential ingredient of stealing therefore is that the person charged with the theft of a thing is not the owner of the thing, the subject-matter of the theft. Therefore, if a person charged with stealing a thing pleads not guilty to the charge, the prosecution cannot under any circumstances succeed without proving either that the subject-matter of the charge belongs to the person in whom ownership of the thing is laid in the charge, or in the alternative that the defendant is not the owner of that thing. In other words, it is enough if the prosecution can prove that the subject-matter of a 5 charge of stealing is not the property of the person charged, even though they may fail to prove that the property is vested in a particular person.” Here, the fact that the accused persons are not the owners of the items alleged to have been stolen was not disputed during cross-examination and in the defence put up by the accused persons. The evidence led by the prosecution shows that Gelloq Company Limited owns the items allegedly stolen namely; 5-inch solid block mould, 5-inch hollow block mould, one 6-inch hollow block mould, one vulcanising machine, two pavement block moulds, one measuring bucket, one pumping machine and six heavy truck batteries. Thus, the prosecution succeeded in proving the first ingredient of the offence. On the second and third ingredients of the offence, the prosecution must prove that the accused persons dishonestly appropriated the items. This is the most contentious issue since the accused persons pleaded not guilty to the charge and denied having appropriated the items. Section 122(2) of Act 29 defines appropriation of a thing as; “…any moving, taking, obtaining, carrying away, or dealing with a thing, with the intent that a person may be deprived of the benefit of the ownership of that thing or of the benefit of his right or interest in the thing, or in its value, or a part of a thing.” Under Section 120(1) of Act 29, a person can be guilty of dishonest appropriation in the following two circumstances: (a) if it is made with intent to defraud, or (b) if it is made by a person without any claim of right; and with a knowledge or belief that the appropriation was without the consent of a person for whom that person is a trustee or who is the owner of the thing, or that the appropriation would, if known to the other person, be without the consent of the other person. 6 Intent to defraud is defined under Section 16 of Act 29 as; “an intent to cause by means of forgery, falsification or other unlawful act, any gain capable of being measured in money, or the possibility of any such gain, to any person at the expense or to the loss of any other person” In the case of Ampah v. The Republic [1976] 1 GLR 404 @413, Per Abban J., the court held that: “It can therefore be said that section 120 (1) of the Criminal Code, 1960 (Act 29), contemplates two kinds or types of dishonest appropriation. The first type is where the appropriation is made with intent to defraud; and the second type is where the appropriation is made without a claim of right and without the consent of the owner. That is, an appropriation with intent to defraud can amount to dishonest appropriation; and that an appropriation without a claim of right and without the consent of the owner is just an alternative definition which the section gives to the term “dishonest appropriation.” Proof of an appropriation with intent to defraud or of an appropriation without the consent of the owner, either one of them, can constitute dishonest appropriation. So that proof that an accused person appropriated the subject-matter of the charge with intent to defraud will by itself amount to dishonest appropriation and in such a case further proof of lack of consent of the owner to the appropriation will be absolutely unnecessary. It will be superfluous.” The first prosecution witness, Samuel Addo, testified that he is the Site Supervisor at Gelloq Company Limited, a construction and transport company. According to his testimony on Monday, the 3rd of February 2023, whilst getting ready for work in the morning, the day security man of the company by name Baba called him on the phone to inform him that when he reported to work that morning, the main gate was wide open. When he entered the premises, he realised that some things had been stolen and the security guard was nowhere to be found. He informed the General Manager of the company who directed him to report the theft to the Police. 7 During cross-examination, the first prosecution witness acknowledged that he did not personally witness the alleged theft but had been informed about it by a security guard named Baba. When asked if he had seen the stolen items on the premises before they allegedly went missing, he confirmed that he had not. The defence pressed him on this matter suggesting that his testimony relied on hearsay rather than firsthand knowledge. He admitted that he could not independently verify whether the items had indeed been stolen only that they were no longer present when he arrived at the site. The defence further questioned why Baba, the individual who had informed him had not been called as a witness but PW1 stated that he was not concerned about that omission. The second prosecution witness Larweh Sruda, testified that prior to the current case, he worked as a Night Security Officer for Gelloq. According to him, the company has a security guard named Baba on duty from Monday to Friday with the first accused person taking over on weekends. On Sunday, 2nd February 2020, he reported for night duty at approximately 6:30 pm to relieve the first accused person who was the company’s daytime security. Upon arriving at the entrance of the company, he noticed that the main gate was wide open. He entered through an emergency exit to observe the situation and saw the second accused person along with a roller machine and a forklift operator bringing a roller machine into the yard. This he noted was unusual because the company does not operate on Sundays. He also observed an unknown man on a motorbike in the yard as well as an unregistered blue Datsun pick-up without a registration number, loaded with metal. The motorcyclist led the way exiting the yard, followed by the pick-up. The first accused person then trailed behind them for a distance before vanishing from the scene. According to him, the first accused person did not hand over as required when changing shifts. About 30 minutes later whilst still at the emergency exit, the first accused person returned to the yard and gave him Five Hundred Ghana Cedis (GH₵500) which he thought was his salary for the previous month which had been given to the first accused 8 person to give to him even though the amount was more than his salary. He called a colleague to enquire if the money the first accused person gave him was his salary but he did not answer. When he left the premises that day, he went to his village for fear that the accused persons and their accomplices would return. The second prosecution witness firmly testified that he did not know the accomplices or where they took the items. He was subsequently arrested in connection with the stolen items and he gave his statement to the police. During cross-examination, the defence thoroughly examined PW2’s credibility, questioning why he had not immediately reported any suspicious activity after allegedly seeing the accused persons at the site. PW2 stated that he was afraid and left the premises instead of alerting his superiors or the police. He also insisted that he received GH¢500 from one of the accused persons which he initially believed was his unpaid salary. However, the defence pointed out that he had no evidence to support this claim and suggested that he was fabricating the story to shift blame. Additionally, PW2 admitted that he did not document his observations in the security logbook despite claiming to have seen the accused persons at the scene. The defence implied that his actions in failing to report the alleged theft immediately and disappearing from the area for more than a year until he was arrested in the Volta Region suggested his complicity in the crime charged. The third prosecution witness, D/PW/C/INSP. Regina Ama Arthur testified that on 5th February 2020, she was the available detective when the first prosecution witness reported this matter at the Police Station. She visited the scene of the alleged crime at the Free Zones Enclave with another police officer. According to her testimony, investigations revealed that there was no break-in but the culprits gained access to the company yard and the offices. During investigations, the night security officer who was needed to assist with investigations could not be traced. Consequently, she obtained a Court order directed at Scancom Ghana Limited to furnish the police with 9 the call details and SMS messages of the night security officer. Further investigations led the Police to Abutia in the Volta Region where the night security officer (the second prosecution witness) had relocated to and was interested in assisting the police with their investigations. According to PW3, investigations disclosed that on 2nd February 2020, at about 6:38 pm, whilst Larweh Sruda, the night security officer reported to work to relieve the first accused person at his post, he met the first accused person, a motor rider and a blue Datsun pickup without registration number with the stolen items in the said vehicle. The second accused person, who was not supposed to be on the company’s premises at that moment was seen in the yard. The second accused person parked the company’s roller machine in the yard and walked to where the Datsun pickup was parked with the items. After speaking to the driver of the pick-up, the motor rider led the team outside the company’s premises whilst the first accused person followed them on foot. Soon, the first accused person returned to the premises and gave the second prosecution witness (Larweh Sruda) an amount of Five Hundred Ghana Cedis (GH₵500) and left. During the investigation, Larweh Sruda led police to arrest the first and the second accused persons. She tendered in evidence the caution and charge statements of the accused persons admitted and marked as Exhibits “A” series and “B” series, respectively. After gathering all the needed information, the night security guard was used as a prosecution witness and the first and second accused persons were formally charged with the offence. The defence, in cross-examining the investigator challenged her handling of the case particularly her reliance on PW2’s statement without securing independent evidence. When asked what specific steps she had taken to verify the theft, she stated that she had taken statements from the complainants, visited the crime scene, and applied for an ex-parte motion to obtain call records. However, the defence questioned why she had not secured CCTV footage or documentary evidence proving that the stolen items 10 were at the site before the alleged incident. She admitted that she did not personally verify the duty roster to confirm who was supposed to be on shift that night. Furthermore, she acknowledged that she could not provide any direct evidence linking the accused persons to the theft aside from PW2’s statement. The defence suggested that her investigation was incomplete and biased as she had not pursued alternative leads, such as identifying the Datsun pickup allegedly used in the theft. THE DEFENCE OF THE FIRST ACCUSED PERSON The first accused person in his investigation caution statement admitted and marked as Exhibit “A”, denied the offence and stated that on the day of the alleged incident, he handed over to the second prosecution witness around 6:00 pm and took him round to check and he saw that everything in the company was intact before he left to the house. He reported to work and saw that the said witness had packed his belongings and left the premises to an unknown destination. He vehemently denied conspiring with others to steal the items in question. The first accused person testified on oath that his site supervisor (the first prosecution witness) informed him that the 2nd accused person who is a roller operator, would come and pick up the roller machine to work outside the premises on the 2nd of February, 2020 and asked him to grant him access. As instructed by PW1, he allowed the second accused person to enter the premises and he drove the roller machine out. Between 5:30 pm and 6:00 pm, the second accused person called to inform him to come and assist him at a place near the company’s premises since the machine broke down and a mechanic was assisting him in fixing the fault. They brought the machine back into the premises and the mechanic continued to work on the machine. Not so long after they had entered the premises and the second accused person proceeded to park the roller machine, PW2 (Larweh Sruda) reported to the premises with food in his hands. Immediately Larweh reported, he took him round the premises to make sure everything was intact before he handed over to him. When he was ready to leave, the second 11 accused person and the mechanic were done fixing the roller machine and the second accused person then gave him Fifty Ghana Cedis and left. The mechanic also left with a motor rider who was waiting for him outside. According to him, whilst leaving, PW2 was sitting on a bench near the security post, eating the food he had brought along with him, and he left the premises. On 3rd February, 2020, Baba called to inform him about the theft and the fact that PW2 was nowhere to be found. Indeed upon a search they realised that Larweh Sruda had packed all his belongings from the company yard and left. One William, with whom Larweh performed night duties, did not report to work that day. Baba tried calling Larweh but his phone could not be reached. Baba then called Mr. William to confirm if he had reached PW2 on the phone but same did not reach any positive outcome. The case was reported and he and the second accused person continued to work with the company for more than a year before PW2 was arrested somewhere in the Volta Region. He was later arrested by the Police because PW2 had mentioned his name that he took over from him. He states that the supervisor refused to admit that he instructed the second accused person to take the roller machine for fear of losing his job and that PW2 has fabricated this story to implicate them and divert attention from himself. During cross-examination, the prosecution questioned the first accused person’s claim that he had received verbal permission from the site supervisor to allow the second accused person access to the premises. The first accused person insisted that he had been instructed via a phone call but could not provide any record or documentation to support this claim. The prosecution pointed out that security protocol required any authorisation to be recorded in the logbook which he had failed to do. When asked why he had not reported the second accused person’s presence to his superiors, the first accused person maintained that he had no reason to suspect any wrongdoing. However, the prosecution argued that his failure to follow proper security procedures suggested negligence or possible complicity in the theft. 12 DEFENCE OF THE SECOND ACCUSED PERSON The second accused person in his investigation caution statement admitted and marked as Exhibit “A1”, stated that on 2nd February 2020, at about 7:00 am, he went to the company’s premises and met the security officer now the first accused person on duty. He took a roller machine to work nearby, where he informed the first accused person and returned the machine around 6:00 pm the same day. He states that before then, the machine got spoilt so he called the first accused person who came and helped him to fix it. As soon as he parked the roller machine, he went to their main gate and met PW2 and the first accused person and he told him he was going home and left. He states that he did not conspire with the first accused person and others to steal anything from the yard. The second accused person in his defence maintained that he had been working with the company for 11 years without any issue of theft and denied the charge against him. He maintains that PW1 permitted him to use the roller machine to carry out some work outside the company’s premises. The roller machine broke down whilst operating it at the site of work. Therefore, he called Samuel Addo (site supervisor) and one Kofi Agoe and informed them about the breakdown of the roller machine. Kofi Agoe assisted him with an electrician (mechanic) who would help him manage and return the roller machine to the company premises. The electrician (mechanic) came on a motorbike (popularly referred to as Okada bike) to the workplace to assist him with the machine. When they got close to the yard, he called the first accused person to assist them in bringing the machine into the yard which he did. Again, the second accused person testified that whilst at the premises, PW2 reported for duty with food in his hands. When they were done fixing the machine, he paid the electrician and gave the first accused person Fifty Ghana Cedis (GH₵50) for his assistance and he left. Out of the work he did, he also gave Kofi Agoe Fifty Ghana Cedis (GH¢50.00) and PW1 an amount of One Hundred Ghana Cedis (GH₵100.00). On 3rd February, 2020 he went to work and their supervisor told him that theft had 13 occurred at the workplace. The manager requested that he and some colleagues should go to Ashaiman and Kokompe Township in an attempt to trace the stolen items in any of the scrap yards just in case the person who stole them had sold them to scrap dealers. By then, PW2 was nowhere to be found until the Police arrested him in a village in the Volta Region about one (1) year and three (3) months later whilst he and the first accused person continued working at the company. During the investigations, PW2 mentioned his name and the first accused person as the people responsible for the theft. He also states that the supervisor is feigning ignorance that he permitted him to use the roller machine for fear of losing his job. He therefore vehemently denies the theft. The prosecution in cross-examining the second accused person challenged him to provide proof that he had informed the site supervisor in person as he claimed. The second accused person responded that he had verbally communicated his intention but there was no written record of this. The prosecution also questioned his assertion that he had given GH¢100 from his earnings to the supervisor, arguing that this information is not contained in his statement to the Police. The second accused person insisted that he had only taken the roller machine for work but the prosecution suggested that his presence at the site on a non-working day was suspicious. They further argued that his explanation was inconsistent with the evidence and that he had likely been involved in the alleged theft. From the evidence led by the prosecution witnesses and the defence put up by the accused persons, there is no direct evidence that the accused persons dishonestly appropriated the items. PW2, who mentioned the names of the accused persons did not state that he saw them removing the items from the premises. The evidence implicating the accused persons is purely circumstantial that since they were seen at the premises on a non-working day, they might have stolen the items. There are authorities and they are legion on conviction based on circumstantial evidence. In the case of Logan v. The 14 Republic [2007-2008] 1 SCGLR 76 at page 90, the Supreme Court per Aninakwah JSC (as he then was), delivering the judgment of the Court stated that: “For circumstantial evidence to support a conviction, it must be inconsistent with innocence of the accused person. It must lead irresistibly to the conclusion not only that the crime charged had been committed, but it was in fact committed by the persons charged in order to arrive at a definite conclusion. Conviction based on circumstantial evidence that has no facts supporting it, as in the instant case, is therefore wrong” The case at bar is on all fours with the case of Abbey v. The State [1964] GLR 546, where the appellant was convicted on a charge of stealing based on having been found coming out of the room where the alleged missing money was kept. The High Court per Hayfron Benjamin J, (as he then was) held at page 547-548 that: The evidence against the appellant in this case is completely circumstantial. I think it is settled that where circumstantial evidence has to be considered the law requires a particularly high standard of proof. The main basis of the prosecution’s case is that the appellant had the opportunity to steal, and that he was the only person seen coming out of the complainant’s room on the day in question. This evidence is given by only one prosecution witness, and is denied by the appellant. There is nothing else on the record to indicate which version is the true one; yet the learned trial magistrate, had no hesitation in his mind that the guilt of the appellant had been proved beyond every reasonable doubt. I think that this is a rash and erroneous inference”. Also, in the case of Domena v. Commissioner of Police, (supra), the accused person was charged with three counts of stealing turkeys belonging to the complainants on the ground that the accused person was seen with three empty cardboards at the time the complainant detected the theft and he attempted to escape when confronted about the theft and later three turkeys were found under a tree in the vicinity. The accused person 15 was convicted based on circumstantial evidence. On an appeal to the Supreme Court against the conviction, the conviction was set aside and the Court held as follows; “ It has been repeated over and over again that a court ought not to convict upon circumstantial evidence unless guilt is the only reasonable inference which can be drawn from the cumulative effect, that is, unless the circumstantial evidence is such that guilt is an irresistible inference which can be drawn from it. The inference drawn by the learned district magistrate that “the concealing of the three birds under those trees was the act of the accused” is too remote a probability to be inferred from the facts stated above.” In the present case, the circumstantial evidence against the accused persons is found in the testimony of the second prosecution witness. PW2, the night security officer, asserted that he saw the accused persons on the premises, along with a motorbike rider and a driver in a Datsun pickup. He alleged that the first accused person gave him an amount of Five Hundred Ghana (GH¢500), which he initially believed was his salary but later suspected was connected to the stolen items. The defence however challenged his credibility highlighting inconsistencies in his statements to the police and his failure to report the alleged theft immediately. His choice to leave the premises and go into hiding for over a year raised further doubts about his reliability. No witness testified to seeing the accused persons physically removing the alleged stolen items from the yard. PW2 did not directly observe them loading or transporting the missing property. He merely inferred their involvement based on their presence at the site. The prosecution failed to provide documentary evidence (e.g., CCTV footage, fingerprints, or inventory records) to confirm that the stolen items were present before the alleged incident. The investigating officer (PW3) acknowledged that she relied heavily on PW2’s account without securing corroborating evidence. She could not confirm the quantity of the missing items before the alleged theft. The Datsun pickup 16 which was supposedly used in the crime was never identified or traced. No independent witnesses (such as Baba, the other security officer) were called to testify. The accused persons denied stealing the items and insisted that the second accused person was at the premises solely to collect the roller machine for work. Indeed, the said roller machine is not one of the items alleged to have been stolen as reprehensible as the conduct of the second accused person in using the machine for his private work. The defence suggested that PW2 himself might have been involved in the theft given his suspicious behaviour and unexplained absence immediately after the alleged theft for more than a year before his arrest. The evidence shows that after the alleged incident the accused persons continued to work for the company until PW2 who absconded immediately after the theft resurfaced and implicated them in the crime charged. For circumstantial evidence to lead to an irresistible conclusion of guilt, it must exclude every other reasonable possibility. In this case, the evidence does not place the accused persons in direct possession of the stolen items. There are inconsistencies in the key witness’s (PW2) testimony and his credibility is in question. The failure of the investigation to produce concrete corroborative evidence weakens the prosecution’s case. The possibility that someone else (including PW2 or other unknown persons) might have taken the items has not been eliminated. The circumstantial evidence in this case is not strong enough to irresistibly lead to the conclusion that the accused persons stole the items. Given the doubts surrounding PW2’s reliability, the absence of direct proof, and the investigative shortcomings, I find that the accused persons raised a reasonable doubt in the case of the prosecution that it was the accused persons and no other person who appropriated the items. CONCLUSION On the totality of the evidence led by the prosecution and the defence put up by the accused persons, there is no direct evidence that the accused persons appropriated the items alleged to have been stolen. The circumstantial evidence upon which the 17 prosecution seeks to hang the accused persons does not irresistibly lead to the conclusion that the accused persons appropriated the items. The evidence is no more than a suspicion that the accused persons stole the items by their presence on the premises on a non-working day. The court cannot put a multitude of suspicions together to constitute proof. It is also trite that it is better for ninety-nine criminals to be set free than to convict one innocent person. I therefore hold that the prosecution failed to prove their case against the accused persons beyond reasonable doubt. I therefore pronounce the accused persons not guilty of the charge and I accordingly acquit and discharge them of the charge of stealing. SGD. H/L JUSTICE AGNES OPOKU-BARNIEH (ADDITIONAL CIRCUIT COURT JUDGE) 18