DIVISION: IN THE SUPREME COURT
DATE: 10TH MARCH, 1961
BEFORE: VAN LARE, SARKODEE-ADOO AND AKIWUMI, JJ.S.C
CASE REFERRED TO
R v. Whybrow (1951) 35 Cr. App. R.141; 95 S.J.745
NATURE OF PROCEEDINGS
APPEAL against conviction for attempted murder, by Apaloo, J. sitting with assessors in the High
Court, Kumasi, on the 22nd November, 1960.
COUNSEL
Joe Appiah for the appellant.
K. Dua Sakyi for the respondent.
JUDGMENT OF VAN LARE, J.S.C.
Van Lare, J.S.C. delivered the judgment of the court. [His lordship referred to the facts and continued:] The injured person had a small punctured wound over the bridge of the nose. The medical evidence showed that the injury was caused by a pellet which lay directly under the skin, from where it was removed. Although not claiming knowledge of ballistic theories the medical witness expressed the opinion that the fact that the pellet was just under the skin would indicate the shot to have come
from a long distance of between 20 to 40 yards. The evidence is that the missile was an air gun pellet not bigger than the tip of the little finger. The complainant was not examined nor was the pellet removed on the day of the incident, but on the following day, and it was the doctor’s opinion that the injury could have been inflicted within 48 hours previously. The complainant did not appear to have been seriously injured. He himself took a taxi to the hospital at Kumasi where he received an
injection. He went to the hospital the next day, where he was X-rayed and the pellet was removed.
The medical evidence further discloses that “the depth to which a pellet is buried in the skin varies
with the type of gun used”.
That it was the prisoner who fired the gun there is abundant evidence, and his defence of not attending either the C.P.P. rally or the U.P. drumming, on the day in question, also his denial of ever owning a gun or even ever seeing one fired was in our view rightly rejected. We think, however, that the learned trial judge unfortunately omitted to direct his mind as to the type of gun that the prisoner might have used. The gun was not produced, neither was the pellet that was
extracted from the small punctured wound found over the bridge of the complainant’s nose. Upon the
evidence as a whole the gun might have been a flint or cap gun, or an air gun. The missile was found to be a small pellet. There is no suggestion that a rifle or other weapon of precision was the instrument
used. The punctured wound was small and it became necessary to consider whether what was used was a flint or cap gun or an air gun, and on the consideration of this matter the judge would have been in a position adequately to decide the question whether or not the prisoner was guilty of the offence preferred against him. As Lord Goddard, C.J., said in the case of R. v. Whybrow1(1):
[p.154] of [1961] 1 GLR 152
“ . . . if the charge is one of attempted murder, the intent becomes the principal ingredient of the crime. It
may be said that the law, which is not always logical, is somewhat illogical in saying that, if one attacks a person intending to do grievous bodily harm and death results, that is murder, but that if one attacks a person and only intends to do grievous bodily harm, and death does not result, it is not attempted murder, but wounding with intent to do grievous harm.”
The learned trial judge in the instant case, however, appears mainly to have concerned himself in his judgment with the prisoner having apparently aimed at the upper part of the complainant’s body. He concluded as follows:
“Had the evidence been that the accused aimed at the legs or lower part of P.W.1’s [that is the complainant’s] body I would have considered seriously whether he intended to cause either grievous or
dangerous harm to the complainant. However in view of the proximity to P.W.1 and the particularly vulnerable part of the body which he must have aimed at and hit, I have no hesitation in drawing the obvious inference that the accused intended to cause the death of P.W. 1”.
The judge, for the reason stated, found the prisoner guilty of attempted murder as charged but not of the lesser offence of causing grievous harm. We find ourselves unable upon the evidence, to agree that the act complained of was an attempt on the life of the complainant. We fail to appreciate how a single air pellet from a flint gun or an air gun fired at a person from a distance of about 40 yards could be deemed to have constituted an attempt to kill the complainant surrounded by people in a crowd as in the circumstances of this case. The prisoner might well have fired in order to disperse the crowd. In
this connection we refer to the evidence of the third prosecution witness, Kwabena Kwakyi, as
follows:
“When P.W.1 and myself were going to separate the fight the gun was fired and the report of the gun separated the fight. Some pellets from the gun hit me by the thigh and P.W.1 was also hit on his nose. I felt pains.”
This evidence negatives the finding that the prisoner aimed and fired at the upper part of the complainant’s body as we find that some pellets at the one and the same discharge hit another person at the lower part of the body. It is also observed that the evidence falls short on the nature of the harm caused. All that appears is that the complainant had a small punctured wound. The medical witness was not asked to describe the nature of the harm within the meaning as laid down and understood in section 228 of the Criminal Code2(2), the relevant code under which the prisoner was charged. The
harm that was caused by the prisoner to the complainant, on the evidence as a whole and in the absence of evidence to the contrary, is not in our view, such dangerous harm as could endanger life.
We are of the opinion that had the learned trial judge directed his mind adequately to the points we have discussed he would most probably have found the prisoner guilty not of attempted murder, but of the lesser offence of causing grievous harm.
In the circumstances we quash the conviction and sentence as recorded and substitute therefor a conviction for causing grievous harm contrary to section 215 of Cap. 9. The prisoner is sentenced to 3
years I.H.L
DECISION
Conviction for causing grievous harm substituted.
