REPUBLIC VRS MOHAMMED (48/2022) [2024] GHACC 106 (19 March 2024)

IN THE CIRCUIT COURT HELD AT TECHIMAN ON TUESDAY 19TH MARCH, 2024 BEFORE H/H SAMUEL DJANIE KOTEY ESQ. SITTING AS A CIRCUIT COURT JUDGE CC: 48/2022 THE REPUBLIC VRS ZIDAN MOHAMMED JUDGMENT Accused person has been charged with conspiracy to commit robbery and robbery contrary to law. Accused person pleaded not guilty to the charges against him. The prosecution called the investigator as his only witness. The prosecution did not invite the complainant in the case. His excuse was that the complainant was a passenger in-transit when the alleged incident occurred and left afterwards. Prosecution says that he has not been able to avail himself to come and testify. He had given a written statement to the police which was discovered at the trial. The prosecution however failed to tender his statement in evidence as hearsay statement. The evidence by the prosecution against accused person is therefore based on the testimony of its only witness and the documents tendered. At the close of case of the prosecution when accused person was invited to open his defence, he elected not to say anything in his defence. He also did not invite any witness to come and testify. Despite the choice of the accused person not to say anything in his defence, the evidence which the prosecution presented at the trial will still be measured the standard provided by Section 11(2) of the Evidence Act 1975 (NRCD 323). In other word, the evidence presented by the prosecution must prove that accused person is guilty beyond reasonable doubt. The evidence, must rise above any doubt that may arise from the prosecutions own evidence. in the case of KWABENA AMANING @ TAGOR AND ANO V THE REPUBLIC (2009) 23 MLR 78 Justice Appau JA as he then was stated at page 128 of the report that “A person is not guilty just because he refuses to testify. He is pronounced guilty only when the evidence led by the prosecution in respect of the charge satisfied the standard of proof required beyond reasonable doubt.” INGREDIENTS OF THE OFFENCE The charge of robbery under Section 149 requires proof that there was stealing by accused person with the use of force or weapon. Stealing is also defined under Section 125 as dishonest appropriation by accused person of something of which he is not the owner. The evidence of the only witness from the prosecution was that accused person pulled out a knife on the suspect and that enabled the other accused person now at large to take complainant’s bag away. This accounts were based on what the witness says complainant narrated although she testified as being the result of her investigations. The witness then tendered the investigation cautioned statement and charged cautioned statement of accused person to the police in evidence as EXHIBIT ‘A’ and ‘C’ respectively. Exhibit A which is the investigation cautioned statement of accused person was a complete denial of the charge against him. The accused person stated that he was only a victim of circumstance, having been present at the scene of the crime at the time of the crime. He stated in his statement that the complainant held his hands and falsely accused him of being an accomplice to the crime. In exhibit C, the statement of accused person admits the offence in part and denies the offence in part. Exhibit C is a compendium of absolute contradiction. It betrays a certain intention to force the crime on accused person. In part of the statement, reference is made to somebody other than the accused person as the one who pulled out the knife on the complainant. Then later in the same statement, it is stated that accused person was the one holding the knife at the time of the crime. The contradictions in that statement was so glaring it beggars belief as to why it will even be presented in evidence with the view to secure conviction. The said exhibit cannot form the basis of serious consideration by this court. The court therefore is unable to rely on Exhibit C in the judgement as being empty and worthless. With Exhibit C rendered hollow, the only evidence available for evaluation is exhibit A and PW1’s testimony. The evidence from their two sources do not encourage the court to find the accused person guilty of the offences as charged. As earlier said the complainant was not available to testify. His statement to the police was also not tendered in evidence as hearsay statement. The testimony of PW1 was that when complainant managed to arrest accused person here, he called for help and others came to assist him. None of those persons volunteered a statement or appeared to testify at the trial. That was another deficit to the case of the prosecution. But what I found more intriguing is the testimony by PW1 that accused person was the one who pulled the knife out on complainant and other person snatched the bag of the complainant. The complainant did not attack the one who snatched his bag from him but rather managed to attack accused person even though he held a knife. The story is as curious as it is unimpressive. As I have already stated the accused person appears to be a victim of circumstances. When I carefully consider the facts of the case narrated by the prosecution in support of the charges against accused person, I get the reason why accused person was hurriedly arraigned before me. The prosecution tells of the prevalence of crime around the Wa lorry station. Obviously as law enforcement officers, they are concerned about the increasing rate of crime at the said place. They want to arrest and successfully prosecute someone to serve as deterrence to others. In this bid to achieve this result, they end up with the present charges against accused person. In as much as they are concerned about preventing crime through deterrence they should be careful not to get the wrong persons charged and convicted. If they do not get the right persons or culprits arrested, the crime will continue to fester. The accused person before me clearly was not involved in the crime he has been charged with. The real culprit or culprits are out there. They are the ones who ought to be arrested and prosecuted before the court. That way when those persons are found guilty and punished, the crime rate will be reduced. The accused person before me cannot be held to have committed the offence, as charged on the basis of the available evidence before me. The court is unable to find the accused person guilty as charged. The evidence presented by the prosecution fails to measure up to the standard of proof beyond reasonable doubt. Accordingly, the accused is hereby acquitted and discharged. H/H SAMUEL DJANIE KOTEY ESQ. CIRCUIT COURT JUDGE