REPUBLIC VRS AWOBIRE & 3 OTHERS (UE/BG/CT/B7/42/2020) [2024] GHACC 192 (21 May 2024)

IN THE CIRCUIT COURT HELD AT BOLGATANGA IN THE UPPER EAST REGION OF GHANA ON TUESDAY THE 21ST DAY OF MAY 2024 BEFORE HIS HONOUR SUMAILA MBACHE AHMADU CIRCUIT COURT JUDGE. CASE NO. UE/BG/CT/B7/42/2020 THE REPUBLIC VRS. 1. AWOBIRE SAMUEL @VERSAGGY 2. JACOB AKUGRE ADOMBIRE @WIZZY 3. ASAMPANA AYINE @WINDA AT LARGE 4. ASAKI AT LARGE J U D G M E N T The accused persons together are charged on three counts; A1 is charged with two counts of ROBBERY; contrary to section 149 of the criminal and other offences act 1960 (ACT 29) as amended by Act 646 of 2003. A2 is charged with DISHONESTLY RECEIVING; Contrary to section 146 of the criminal and other offences act 1960 (ACT 29). The accused persons have denied the charges against them. THE CASE FOR THE PROSECUTION On 22/08/2021 about 10:00pm complainant Azumah Azure was returning from his friend’s house at Opam Brown at Tindosoe. On reaching at Soe Primary School 1 premises, four young men on two (2) motor bikes emerged from a hideout and ordered the complainant to hand over her phone and monies to them at gun point. She told them she was not having money on her and one of the robbers slapped her. She then handed over her Alcatel mobile phone valued GH₵470.00 to them.in the process, complainant was able to identify A1 as someone she knew. After the act, the armed robbers rode off their motor bikes with the phone. Few meters away from the scene, they met complainant Goerge Ayingangba on his way home, attacked and took away from him, his Techno Spark 4 mobile phone valued GH₵605.00 and a Haojin scooter motorbike valued GH₵4,500.00. On same day about 11:00pm, the Regional Police Anti- Robbery Surveillance Team responded to a distress call about activities of some armed robbers in town and spotted A3 Asampana Ayine @ Winda, a notorious suspect with three (3) others unidentified believed to be his gang members on two different motorbikes behind Bolgatanga sports stadium. However, the armed robbers upon seeing the police engaged behind them in a shootout and escaped. Later, the police had information that the robbers had taken refuge at one Wizzy’s house at Kumbosco who is believed to have been receiving booties for later disposal and proceeded to the scene. However, the robbers bolted before the arrival of the police. The said Wizzy was not also met in the house. Police conducted an immediate search in the presence of his mother and retrieved one Yamaha Sirisus motorbike with registered number M-21 US 1494, one Alcatel and one Techno Spark 4 mobile phones from Wizzy’s room. On 23/08/2021, complainants Azumah Azure and George came to the Regional Police CID office and identified the Alcatel and Techno spark 4 mobile phones respectively as theirs. Investigation disclosed that, the Yamaha Sirisus motorbike with registration number M-21 US 1494 belongs to Bawa Azumah Charity of Kayonga but it was on 08/08/2021 robbed from her friend at Zuarungu which is being handled by Zuarungu police. On 04/08/2021, A1 was arrested in stealing case at the Bolga District Police station and a complainant Azumah Azure pointed him out to police as one of the 2 robbers who attacked and robbed her. Thereafter, he was handed over to the Regional Police CID for investigations. During interrogation, the suspect denied taking part in the robbery but indicated that he had engaged in similar offences in the past. On 21/10/2021, the Regional Police CID had information that, A2 has been arrested and detained at the Bongo police station for narcotic related offences and went for him. Upon interrogation, A2 disclosed that A3 is his friend but was not part of the robbery. A2 further disclosed that, A3 and A4 were the ones who brought the said exhibits and kept same in his room because he had given one of his door keys to A3 and led police to his alleged hideout at Tongo but he was not found. THE CASE OF DEFENSE A1 says he did not take part in robbery. BURDEN OF PROOF Section 11(2) AND (3) of NRCD323. (2) 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 a reasonable doubt ELEMENTS/INGREDIENTS OF ROBBERY. The taking of the property of another. From his or her person or in their presence. By violence, intimidation or threat. With the intent to deprive them of it permanently. ANALYSIS AND APPLICATION OF THE LAW. 3 From the evidence adduced before court by both prosecution and defense, the hearing concluded with only A1 standing trial and Bench Warrant issued for the arrest of A2. The prosecution proved in my view that, the one (1) Alcatel mobile phone valued GHS 470.00, the one (1) Tecno Spark 4 mobile phone valued GH₵605.00 and one (1) Haijin Scooter Motorbike valued GH₵4,500.00 are stolen at gun point from the complainants. The two (2) phones were retrieved from A2 room, and the motorbike not found. Azumah Azure one of the complainants stated in exhibit A. that he identified two of the four (4) arm robbers and mentioned Samuel as the name of one of the two identified. Prosecution says Azumah Azure later identified A1 as the said Samuel. The prosecution however failed to call Azumah Azure to the witness stand to give evidence. A1 in his investigation caution denied the offence and rather admitted to stealing a Honda motorbike. A1 in his evidence in chief in court again confirmed that he engaged in crime. A1 also says he knows Winda the main suspect who is at large but that he was not with him on the day of the robbery. IN ADU BOAHENE V THE REPUBLIC [1972] 1GLR 70. The court states that; where the identity of an accused person is issue, there can be no better proof of his identity than the evidence of a witness who swears to have seen the accused committing the offence charged. In that instant case even though complainant Azumah Azure did appear in court and prosecution has not led to explain why he is not in court. The police team could not identify any of the robbers apart from their leader WINDA and the inclusion of A1 in this is solely based on the statement of Azumah AZURE because the other complainant says the robbers were in face mask and he could not identify any of them, Azumah Azures evidence is very critical in this case, especially on the identity of A1. Even though A1 made a confession of having been engaged in stealing which in my view can be a subject matter of investigation, it has nothing to do with this case before the court. 4 IN FROMPONG ALIAS IBOMAN V. THE REPUBLIC [2012]1SCGLR 297. The court states that, for the offense of robbery, it is important to establish the following ingredients: (a)That the appellant stole something from the victim of the robbery of which he is not the owner; (b)That in stealing the thing, the appellant used force, harm or threat of any criminal assault on the victims; (c)That the intention of doing so was to prevent or overcome the resistance;(d)That this fear of violence must either be personal violence to the person robbed or to any member of his household or family in a restrictive sense;(e) The thing stolen must be in the presence of the person threatened. From the totality of the evidence adduced I find that the prosecution has proved its case beyond reasonable a reasonable doubt. In the instant case, nobody was arrested on the spot but one of the complainants allegedly identified A1 and another but has failed to appear to give evidence, in my humble opinion A1 has not been properly identified in the face of the other complainant saying the robbers were masked. I hold that the case against A1 is not proved. Accused person is hereby acquitted and discharged. HIS HONOUR SUMAILA MBACHE AHMADU CIRCUIT COURT JUEDGE. 5