KONO v. THE STATE [1965] GLR 112

DIVISION: SUPREME COURT

DATE: 5 MARCH 1965

BEFORE: MILLS-ODOI, OLLENNU AND BRUCE-LYLE JJ.S.C.

NATURE OF PROCEEDINGS

APPEAL from a conviction for murder at the Criminal Session of the High Court held at Accra on 8 June

1964. The facts are fully set out in the judgment of Bruce-Lyle J.S.C.

COUNSEL

Hutchful for the appellant.

K. A. Sekyi, State Attorney, for the respondent.

JUDGMENT OF BRUCE-LYLE J.S.C.

Bruce-Lyle J.S.C. delivered the judgment of the court. This is an appeal from a conviction for murder at the Criminal Session of the High Court held at Accra on 8 June 1964.

The case for the prosecution is that the appellant and his wife, the deceased, lived in the same village but that after a quarrel the deceased left the village and went to stay in another nearby village called

Kobokobo, about three miles away, in the house of one Kwame Atta, the third prosecution witness. The appellant used to visit his wife at her village and sometimes spent the night with her. On Sunday evening, 13 September 1963, the appellant visited the deceased, and after exchanging greetings with the third prosecution witness entered the deceased’s room. In the room, according to the third prosecution

[p.113] of [1965] GLR 112 witness, the appellant attempted to have sexual intercourse with the deceased but she refused. At this stage the third prosecution witness left for the odikro’s house to take part in an arbitration, leaving behind his two wives, Akua Buor the sixth prosecution witness and Akua Ansah the tenth prosecution witness.

According to these witnesses they heard the appellant and the deceased quarrelling about the fact that the appellant had failed to provide the deceased with a cover-cloth and while this quarrel was on the sixth and tenth prosecution witnesses also left the house to attend the arbitration at the odikro’s house. According to the third prosecution witness when the appellant came to his house the appellant was wearing a cover-cloth of yellowish colour. In the night the second prosecution witness, Kwame Asare, who lived in a house, about 50 yards from the third prosecution witness’s house, heard a child crying from the direction of the third prosecution witness’s house and as a result went to the third prosecution witness’s house, entered the deceased’s room and inquired why the child had been crying; he had no reply and so raised his lantern and saw the deceased lying on a mattress and rolling from one side of the mattress to the other with cutlass wounds on her. On seeing the condition of the deceased, the second prosecution witness inquired from her as to who had inflicted the wounds on her and she called the name of the appellant. The second prosecution witness further said in evidence that when the deceased mentioned the name of the appellant she also said that she was dying. The second prosecution witness then raised an alarm and many people, including the chief of the village, came to the scene. On the instructions of the chief he went and reported the matter to the police sergeant at Adukrom; on the strength of what he told the sergeant they went to the appellant’s village. The sergeant then knocked on the door of the appellant and when the appellant opened the door, the sergeant “then confronted him with the charge of murdering his wife” but the appellant “stood shivering and made no statement.” The sergeant found in the appellant’s room a man’s wet cover-cloth, and a man’s wet “pants” hung on a rope to dry, and a cutlass with a wet handle the blade of which was dry.

On the same Sunday evening at about 9 p.m., the ninth prosecution witness Kwadjo Sefa, who also lived in the same Kobokobo village, was returning from Adebong village when he saw the appellant running towards him. He found that the appellant had his covercloth folded and tucked under his left armpit and was holding a cutlass in his right hand. This witness stopped the appellant and asked him why he was running very fast and the appellant replied

[p.114] of [1965] GLR 112 that he was going to his village. This witness knew the appellant very well and also flashed his torch light which he then had on the appellant. The sixth and tenth prosecution witnesses, wives of the third prosecution witness, were able to identify the cover-cloth, exhibit C, as the cloth the appellant had on when he visited the deceased on the material and fateful night.

When the appellant was charged he volunteered a statement to the police in which he admitted that he lived with the deceased in his village for some time but later the deceased refused to marry him any longer and therefore left and went to stay in Kobokobo village but denied that he ever visited Kobokobo village on the material Sunday. He also said that on the fateful Sunday at 3 p.m. he visited a brother at

Lakpa village, about one-and-a-half miles from his village, and returned to his village at 4 p.m. and washed his cover-cloth and underwear and remained in his village and never went out in the evening; that whilst in the house one Whakyi visited him. At the trial the appellant substantially adhered to this line of defence of alibi and denied owning the cutlass, cover-cloth and the pair of under-pants tendered as exhibits.

After an exhaustive summing-up of the facts and the law by the trial judge the jury returned a unanimous verdict of guilty of murder and the appellant was duly sentenced to death. Against this verdict the appellant has appealed to this court on the following grounds:

“(1) That the learned trial judge failed to direct the jury on the high burden of proof on the prosecution as to the appellant’s defence of alibi.

(2) The learned trial judge did not fully and adequately consider the law of circumstantial evidence.

(3) The learned trial judge failed to direct the jury adequately on the law as to intent.

(4) The verdict is unreasonable having regard to the evidence adduced at the trial.” The appeal has been argued only on grounds (3) and (4).

In support of ground (3), counsel for the appellant rightly submitted that the important ingredient in a charge of murder is the “intent to cause death” and that it is for the prosecution to prove this intent in order to succeed on the charge and that the jury was not adequately directed on this issue.

The first prosecution witness, the medical officer, who performed the post-mortem examination on the body of the deceased described the wounds as follows:

[p.115] of [1965] GLR 112

“1st. Right elbow was cut transversely and almost completely severed.

2nd. Left wrist and the hand were deeply cut obliquely so that partly bones were involved.

3rd. Left upper arm cut transversely with complete separation of bone—arm was attached only by a flap of tissue.

4th. There were three or four deep cuts of the left cheek in the direction from the left ear across the mouth—partly coinciding. Nearly the whole upper jaw including bony part and the teeth was severed and the wound was so deep that the deep arteries were wounded. Left angle of the mouth was partly divided exposing the whole cavity of the mouth.

5th. The left cheek to the centre of the ear was cut deeply to the bone, three times but no cut penetrated the skull bone.”

We find that the trial judge in his summing-up adequately directed the jury as to the essential ingredients the prosecution was required to prove to establish a prima facie case against the appellant and that amongst these ingredients is the one that the harm was caused intentionally to result in death.

Taking the wounds as described into consideration we are of the opinion that whoever inflicted these wounds cannot be deemed not to have intended to cause death. In fairness to counsel for the appellant we would here record that when the court drew his attention to the nature of the wounds inflicted on the deceased he readily conceded that intent to cause death was apparent. We therefore find that there is ample evidence on record upon which a jury can come to no other conclusion but that the intent to cause death has been established by the prosecution.

In support of ground (4), counsel submitted that once the case for the prosecution rested on circumstantial evidence, the evidence adduced by the various prosecution witnesses should have left no room for doubt.

He called the attention of the court to the evidence of the second prosecution witness, Kwame Asare, who said that when he asked the deceased as to who had inflicted the injuries on her the deceased answered and mentioned the name Kwame Kono, and contended that there were many persons by the name of

Kwame in the village and in the surrounding villages and that having regard to the condition of the deceased at the time, the deceased could not have mentioned any other name in addition to Kwame.

Counsel further contended that the witness having admitted under cross-examination that he was old and could hear “though not easily” it

[p.116] of [1965] GLR 112 was more probable that he, the witness, did not hear the name mentioned by the deceased if in fact any name was ever mentioned. In further answer to another question on the same issue witness answered as follows, “I heard her well. I bent down close to her as she was lying down and I heard her well.” It is an issue of fact as to whether or not the second prosecution witness heard the deceased distinctly mention the name of the appellant and we find that the evidence of the second prosecution witness is unshaken.

Counsel further contended that it was doubtful that the appellant ever visited the house of the deceased on the material evening and that the ninth prosecution witness, Kwadjo Sefa, could not have seen the appellant running from the deceased’s village. These are also issues of fact and it appears the jury accepted the evidence of the third, sixth and tenth prosecution witnesses that the appellant visited the deceased on that evening and that when the witnesses left the house the appellant was then with the deceased in the latter’s room. The jury also accepted the evidence of the ninth prosecution witness that he saw the appellant running from Kobokobo village with his cover-cloth folded and tucked under his left armpit and holding a cutlass in his right hand. When the appellant’s room was searched by the police a wet cover-cloth and a cutlass with a wet wooden handle were found which showed that the cutlass had been washed. The cover-cloth was indentified by these witnesses as the cloth worn by the appellant when he visited the deceased. The jury accepted all these facts. Why did the appellant wash his cover-cloth and cutlass? We find the answer is clear and that he did so to destroy any traces of evidence.

This appeal has been argued on issues of fact which the jury, by their verdict, resolved as against the appellant and we find this verdict strongly supported by the evidence adduced by the prosecution witnesses. In conclusion we find that the evidence against the appellant though circumstantial points irresistibly to one and only one conclusion, i.e. the guilt of the appellant and that the verdict is in no way unreasonable.

In the result the appeal is dismissed.

DECISION

Appeal dismissed.

A. K. F.