REPUBLIC VRS. BREMANG (17/23) [2024] GHACC 349 (6 November 2024)

IN THE CIRCUIT COURT JUABEN-ASHANTI REGION BEFORE HH ROSEMARIE AFUA ASANTE (MRS) HELD ON WEDNESDAY 6TH NOVEMBER 2024 SUIT NO. 17/23 THE REPUBLIC VRS OSEI BREMANG JUDGMENT The accused is charged with robbery contrary to Section 149 contrary of the Criminal Offences Act 1960, (Act 29). The accused person pleaded not guilty to the charge. According to prosecution, on 13th February 2023 at about 8.00pm the accused person within the jurisdiction of Bonwire robbed one Philip Acquah of his Samsung Galaxy A6 plus mobile phone valued at Gh1,700.00 at knife point. Evidence of Prosecution Witnesses Philip Acquah is the complainant herein referred to PW1 and is a 3rd year student at Bonwire Senior High School. On 13th February 2023 around 7.30 pm PW1 together with his friend PW2, Abdul Razak went to Bonwire lorry Station to withdraw money from a mobile money vendor. After the transaction and upon reaching a section of the road, the accused together with two other accomplices accosted them and warned them to stop. PW2 took to his heels but was chased by the two of the accused accomplice. The accused person held the shirt of PW1 pulled a kitchen knife from his pocket and 1 warned PW1 to surrender his mobile phone or else he would harm PW1. The accused out of fear kept quite and the accused himself took PW1’s Samsung Galaxy A6 mobile phone. The accused further asked PW1 to unlock the phone which he did and the accused fled with the mobile phone. PW2, Abdul Razak was present with PW1 and corroborated the evidence of PW1. It is his case that when the accused together with his accomplices attacked them, he immediately took to his heels and escaped and later met PW1 who informed him that the accused had robbed him of his mobile phone. PW3 is the arresting officer assigned by one G/Constable Boakye Jordan. It is the case of PW1 that he led the complainant to a spot behind the Bonwire’s chief palace and pointed out the accused who was holding a bag. the accused took to his heels and left behind his bag. The accused was arrested and the Samsung A6 mobile phone belonging to PW1 and two other mobile phones, pair of scissors and a life BB cartridge. Although, PW4 filed a witness statement he was not present in court to testify and therefore his witness statement expunged. Thus PW5 in the person of D/Sgt Yaw Marfo was tasked to investigate the case and took caution statements from PW1 and this tendered as Exhibit A. PW4 also tendered the photographs as Exhibit B series showing the crime scene, photograph of the mobile phone, the pair of scissors and two other mobile phones found on the accused were tendered in evidence. Elements of Robbery In proving a case of robbery prosecution is bound to prove the element under section 149 of the Criminal offences Act, 1960, Act 29 which are that: (a) The accused stole something from the victim of which he is not the owner 2 (b) that in stealing the thing the accused used force harm or threat of any criminal assault (c) that the intention of doing so was to prevent or overcome the resistance (d) that out of fear of violence personally to the person robbed or to any member of his household and; (e) that the stolen thing must be in the presence of the person threatened. The above elements was stated in the case of Frimpong alias Iboman vrs The Republic 2012 1 SCGLR 297 Burden of Proof Article 19 (2) of the 1992 Constitution states as follows:- “A person charged with a criminal offence shall be presumed to be innocent until he is proved or has pleaded guilty.” “In a criminal action the burden of producing evidence when it is on the prosecution as to any fact which is essential to guilt, requires the prosecution to produce sufficient evidence so that on all the evidence a reasonable mind could find the existence of the fact beyond reasonable doubt.” Analysis of Evidence The accused person stood on his grounds that the accused was the person who robbed him of his phone. PW1 and PW2 were together when they met the accused and his accomplice and it is upon the attack on them that PW2 took to his heels. This was revealed during cross examination as follows:- “Q:-You alleged that the accused took your mobile phone is that correct A:-Yes 3 Q:-And the time he was taking your phone as alleged, your friend Abdul Razak Mohammed was not there A: He was there Q: So are you telling the court that at the time your mobile phone was taken from you the other two accomplices of the accused persons were present A:Yes they were present Q: I am putting it to you that per your evidence before this court, your friend Abdul Razak Mohammed was not present when the alleged robbery by the accused took place. A:At the time the accused came for my phone, he came with two other friends/accomplice and it was the accused who came to attack me and my friends and took my phone and my friend hit the accused with his fist and took to his heels and the two other accomplices chased him that is my friend.” It is not in contention that PW1 and PW2 were together when the accused persons and his accomplice accosted them and it is upon the attack that PW2 took to his heels and therefore both were present when the accused person accosted PW1. It is upon that engagement between them that PW2 took to his heels . Paragraphs 6 and 7 of PW1’s witness statement read as follows: Paragraph 6 “On reaching a section of the road, the accused and his two accomplices whose names I do not know emerged accosted us and warned us to stop “Emphasis mine Paragraph 7 “Witness Abdul Razak Mohammed immediately took to his heels and was chased.” From the evidence they were first accosted before Pw2 took to his heels. More so the accused person was clearly identified by PW1 during cross examination as follows:- 4 “Q:-In your evidence you said you met the accused person and his two accomplices on the road and you were warned to stop and your friend that is Abdul /razak immediately took to his heels. A:It is true that the accused person warned us to stop, it was then that the accused came to hold my chest and forcibly took my phone from my pocket and that was when my friend took to his heels Q: I am putting it to you that the accused person never took phone from you as you allege A: Accused took my phone” Clearly the accused had been identified by PW1 who claimed that it was not all that dark at the crime scene and this is buttressed by the fact that PW1 was able to identify the accused person together with the arresting officer at Bonwire. The defence of the accused person as filed in his witness statement is that he was eating somewhere at Bonwire when he was arrested by the Bonwire police and was led to his mother’s house where in the presence of his mother, a search was conducted by the police and denies that any phone was found in his custody. According to him, a red coloured touch screen phone belonging to his mother was the only phone found on him. The accused also denied admitting the offence in his caution statement. During the trial the caution statement was objected by the accused on grounds that when he was arrested the police officer never wrote his statement. The accused could not be believed for these were his answers during cross examination: “Q:-On 13th February investigation statement was taken from you in the presence of an independent witness that is Exhibit C and it was about approximately after 3 weeks your charge statement was taken A:-When the police obtained charge statement there was no independent witness. 5 Q: You wholeheartedly relied on Exhibit A which was obtained from you in the 22nd February 2023 A: After the police obtained my statement it was not read to me in a language I understood. Again they stated that it will be read to me when I come to the court” However the accused in another breadth indicated that no statement was taken from him and these answers were revealed during cross examination as follows:- “Q: Your investigation caution statement was taken immediately after the search A:-That is my witness statement but the police did not write my statement.” Thus in one breadth the statement of the accused was not written at all, in another breadth it was written but was no explained to him in the language he understands. According to him, when the statement was being written there was no independent witness at all. These inconsistencies tilted to the firm case that the prosecution stood grounds on by tendering Exhibit 6 which is the bag belonging to the accused containing the stolen mobile phone and this was clearly admitted in his caution statement as follows:- “I held the complainant and forcibly removed his Samsung galaxy A6 Plus mobile phone from his pocket and flee away with the phone. We were not having any weapon on us and did not use any implement on the complainant before collecting the phone. I still have possession of the mobile hone as I speak.” Prosecution tendered before the court Exhibit B3 which is the scissors the accused and Exhibit B5 which are the stolen phones retrieved from the accused which he denied were retrieved from him. In support of his evidence DW1 who is his mother testified that his husband assaulted her and upon narrating the story to his husband’s nephew 6 Kwaku Boro, who in attempting to stop his uncle from beating her, rather turned to beat her and rendered her helpless. From the evidence given by DW1, first of all she was never present at the robbery scene to witness what happened except when the search was conducted by the investigator. She corroborated the evidence of the accused that only a red coloured touch screen phone was found in the room of the witness, however the said phone was never even tendered in evidence in order to raise suspicion in the trial court. Thus her evidence before this court was after the fact and amounted to hearsay since the witness was not present in court. Prosecution established how PW1, the complainant was accosted together with PW2, sensing danger PW2 who experienced the accosting and sensing danger took to his heels from the crime scene where PW1 was actually robbed. I find thatPW1 was robbed with the scissors and this amounted to threat. The accomplices chased PW2, who managed to escape. He later met PW2 who informed him that his mobile phone was robbed and this was tendered in Evidence as B5. B3 which is a scissors was found on him as well as the bag containing the mobile phone which he left at the crime scene were all tendered in evidence. The accused person was not the owner of the phone and took out without the consent of the owner. Flowing from the above, I hereby convict the accused. Plea of Mitigation Accused I pray with the court to forgive me of this offence I have two children and their future depends on me, so I pray the court to be lenient with me and tender justice with mercy for the sake of the children’s future. Prosecution 7 The accused is not known Sentencing I have considered the plea of the accused person who has shown remorse. I have considered the fact that the mobile phone was found However, I will aggravate the sentence in that this court not only went into full trial but also conducted a trial within a trial. The spate of robbery of phones is something that is on the increase and therefore I will give a deterrent sentence. The accused is hereby sentenced to 17 years imprisonment. Restitution Order Let the mobile phone be handed over to the complainant Philip Acquah. …………………SGD……………………….. HH Rosemarie Afua Asante (Mrs) Circuit Court Judge Juaben-Ashanti 8