REPUBLIC v. DAPAAH [1968] GLR 513

DIVISION: HIGH COURT, KUMASI

DATE: 27 MAY 1968

BEFORE: CAMPBELL J.

NATURE OF PROCEEDINGS

TRIAL at the High Court, Kumasi, on a charge of rape contrary to the Criminal Code, 1960 (Act 29), s. 97. The facts are fully set oat in the judgment.

COUNSEL

C. S. K. Agbanu, State Attorney, for the Republic.

Accused in person.

JUDGMENT OF CAMPBELL J.

The accused is charged with rape contrary to section 97 of the Criminal Code, 1960 (Act 29), for that he on the morning of 2 March 1967 did carnally know a certain woman without her consent. The issue as to whether sexual intercourse took place is not in dispute because the accused both in his evidence in court and in two extra judicial statements adopted by him as part of his evidence, admits the fact that he did have sexual intercourse with the complainant on the morning in question. These extra-judicial statements were tendered in evidence as exhibit C and exhibit D respectively. The complainant herself testified that the accused forced his way and set his penis in her vagina and had sexual intercourse with her.

The only issue now calling for determination is whether the intercourse was with or without the consent of the complainant. The complainant’s version is that she had only once previously been near the house of the accused and this was when she was called by the sixth prosecution witness, Amma Nyame, to sell oranges to the accused. She, on this occasion, returned to where she was selling her oranges after having sold the oranges. She said she did not know the home of the accused before, and had never since gone back there until the incident on 2 March 1967 the subject-matter of the charge. The complainant further said that on the morning in question at about 7 a.m. she was proceeding on the motor road fronting the accused’s rented quarters on her way to her grandmother’s house when the accused called her to make some purchase for him, and she went to him. The accused who was standing in front of his room leaning on a rail polishing his shoes, left where he was standing and went as if to enter his room. The accused then stretched his hand as if to give her something with which to make the purchase, she stretched her hand to receive the same, she was immediately seized by the wrist and suddenly pulled into the room by the accused who then locked the room door. The seizure of her and her being pulled into the room was so sudden that she had no time to protest to him saying he should leave her, before the room was locked. The accused then threw her to the floor despite her protest that she had a husband and so he should open the door and let her go. He then cut her waist beads from her waist and tore off her drawers. She protested and [p.515] of [1968] GLR 513 struggled, the accused reached for a knife on a nearby table and threatened to kill her if she did not yield to his sexual desire. She tightened her thighs by closing them together, the accused knelt on her things, pinning her down so that she was forced to open her thighs. She was crying but the accused forced his way in and had sexual intercourse with her. He did so twice, completing full ejaculation and was in the course of the third when her shouting and crying was heard by the fourth prosecution witness Adwoa Buoh, the landlady of the accused, who came and knocked on his window asking him whose child he was beating in the room. The accused responded that he was beating no one. She shouted to the fourth prosecution witness to come and rescue her as the accused was killing her. She said the fourth prosecution witness told the accused that if he was not beating the person he should open the door and let her out. A little later the accused released her and opened the door, she picked up her torn waist beads and drawers and proceeded to her aunt at her grandmother’s house where she registered a complaint of rape against the accused. She was taken by her aunt the second prosecution witness to the Suame Police Station where she lodged a report. She and the police then returned to the accused’s room, which she pointed out; the room was locked, the accused was not there. She was asked to report to the police station the following morning, she did so and saw the accused arrested there, she identified him as her assailant.

The accused’s version from exhibits C and D supplemented by his evidence in court is to the effect that though sexual intercourse took place that morning it was with the consent of the complainant; she voluntarily came to his room, he did not forcibly pull her therein, she did not shout or cry and no one came to knock on his window. When sexual intercourse was completed, he led her out of the room. She asked for N¢5.00 to pay for oranges which she had bought, he promised to give her this sum on his return from work and she agreed to this proposal. He said the complainant was his girl friend for some time before, and had been visiting him at nights, sometimes twice, sometimes three times each week. He said the visits were at nights because the complainant’s relatives did not know of their relationship. Each time she visited him sexual intercourse took place and she had never cried during the act. He usually gave her money, sometimes N¢1.00, sometimes N¢2.00. Dealing with the accused’s version to determine whether it can be accepted as reasonably probable, it does appear improbable that if the complainant was in fact his girl friend, maintaining nocturnal and surreptitious visits to him so to keep her relatives in the dark

[p.516] of [1968] GLR 513 about their clandestine relationship, she would have so suddenly decided to visit him in the morning of the day in question when people would be expected to be about, and were in fact about, who would likely report to her relatives. In my opinion there seems no reason why she should do so since on the accused’s own evidence he had never proposed marriage to her but only that she should be his girl friend. The accused admitted that no one in the house where he lived had ever seen the complainant visiting him. The third prosecution witness, Adwoa Fordjuor, a resident in a room in the compound house where the accused lived, said the complainant was not the girl friend of the accused, and she had never seen her visiting the accused. The sixth prosecution witness Amma Nyame a concubine of the accused, herself denied ever seeing the complainant visiting the accused. It is difficult to see how, she, the sixth prosecution witness would not have on some occasions met the complainant who was allegedly visiting the accused two or three times a week at nights, while the sixth prosecution witness herself was preparing the accused’s meals, taking the same to him at his room, and sleeping with him at nights. Over two months of such relationship between the accused and the complainant, she would in my opinion most likely have been seen by some members of the establishment even on one occasion of her relatively frequent visits. I find on the evidence of the third and sixth prosecution witnesses on this issue, which I accept, that the complainant was not the girl friend of the accused, and had not previously visited him and indulged him in sexual gratification, as alleged by the accused.

Turning to the incident of the morning of 2 March 1967, the complainant in effect says she never consented, while the accused said intercourse was with her consent. It is desirable as a matter of practice that the complainant’s evidence should be corroborated, especially in a case like this, where the sole issue is whether she consented or did not consent and I must direct myself that it is dangerous to act on her uncorroborated evidence.

The third prosecution witness Adwoa Fordjuor, in her evidence, said she saw the complainant respond to the call of the accused for her to purchase something for him, she also said she saw the accused stretch his hand as if to give something to the complainant, and further, that she saw the accused seized the outstretched hand of the complainant and quickly pulled her into his room and closed the door. She heard the complainant immediately call out to the accused to leave her. She said this was about 7 a.m. in the morning. She went to have her bath thinking the accused would let the complainant go. On completing her bath, however, and passing the [p.517] of [1968] GLR 513 entrance to the accused’s room at about 9 a.m., she heard the complainant still calling out to the accused to leave her. She would not have heard the complainant’s shout had she not again passed the entrance to his room, because from where the bathroom is, a person could not hear shouts from the accused’s room. On hearing the continued shouts from the complainant she reported the matter to the accused’s landlady, the fourth prosecution witness. This witness said, as a co-tenant like the accused, she was on speaking terms with him, they played together and knew each other’s room. She said she knew the girl friends of the accused and the complainant was not one of them. She knew the complainant as living in the village where both she and the accused lived but there is no evidence that she is a particular friend or relative of the complainant, nor is there evidence that she was amorously inclined towards the accused and had suffered rejection by him. On the evidence, I can find no reasonable explanation why she should have desired to implicate the accused by testifying falsely against him. In her evidence she was frank and I do not find any material inconsistencies between her evidence and that of the complainant as to the events leading up to and culminating in the complainant’s forcible propulsion into the room. I accept her as a witness of truth, and therefore find the complainant’s evidence corroborated regarding her protest at being forcibly dragged into the room. I find also that she corroborated the complainant when the latter said she was shouting, protesting and crying during the intercourse in the accused’s room. Both the fourth prosecution witness Adwoa Buoh and the fifth prosecution witness Theresa Anaa testified that the fourth prosecution witness as a result of what the third prosecution witness told her, went and banged on the accused’s window facing into the backyard. These two witnesses said they heard the complainant crying out to the accused to leave her, as he the accused was killing her, and that she was feeling pains in her lower abdomen. Both witnesses said they heard the complainant call out to the fourth prosecution witness to come and rescue her as the accused was killing her. These witnesses said the accused in response to a question from the fourth prosecution witness as to who he was beating in the room, denied beating anyone. He was told that if such was the case, he should open his door and let the woman go. It was suggested to the fourth prosecution witness that she was lying because had she heard what she told the court, she would have raised an alarm. It was suggested to the fifth prosecution witness that since she did not, on going to the entrance, ask the complainant what was the matter with her, even though she said she saw the complainant crying, she also was lying to the court. [p.518] of [1968] GLR 513

I do not my self contribute to the view that because a person does not measure up to the standard of conduct of other similarly circumstanced, that such person becomes necessarily a liar. The response of different individuals to an identical situation varies, because their psychological make up and presence of thought are different. The complainant was not a relative of either the fourth or fifth prosecution witnesses, nor was she a close family friend. Consequent on this, I do not consider it unusual that the fourth and fifth prosecution witnesses did not do anything more than endeavour to persuade the accused to release the complainant. As in the case of the third prosecution witness, no legitimate or probable reason is shown why they would have likely wanted to come and give false evidence against the accused; there is no evidence of bad relationship, grudge, or other evil motivation. Their evidence was straightforward and I accept them as witnesses of truth. This being the case I find in their evidence, corroboration of the evidence of the complainant that she persisted in her protest, shouted and cried in manifestation of her objection to being ravished by the accused. She said she struggled and the accused threatened her with a knife. The accused denied threatening her with a jack-knife even though the complainant never mentioned the kind of knife with which she was threatened. It is unnecessary to consider whether she was in fact threatened with a knife, because the evidence of her protest at being pulled into the room, the evidence that she was heard crying and shouting in the room, corroborated as it is by the evidence of the third, fourth and fifth prosecution witnesses is evidence that she could not have been consenting to what was being done to her in the room. Her recent complaint to her aunt, the second prosecution witness, immediately she left the accused’s room, though not corroborative evidence, shows consistency with her evidence in court. Had she voluntarily consented to the intercourse as alleged by the accused, it is difficult to see why she would have been crying and shouting since according to him, it was not the first time that she would have been having intercourse with him, and on previous occasions, on his own evidence, she never cried. Again if she had agreed to accept N¢5.00 from him on his return from work, it is difficult to see why she would have gone to report him to her aunt and the police even before the time had elapsed when he would be expected to fulfil his promise. The evidence of the complainant directed to absence of consent on her part to the sexual intercourse is in my opinion amply corroborated, so far as was possible in the circumstances, by the evidence of the other witnesses called by the prosecution. I therefore accept her evidence and find that the prosecution has discharged the burden of

[p.519] of [1968] GLR 513 proving its case beyond any reasonable doubt. I reject the accused’s evidence as not reasonably probable and also as untrue. In the circumstances, I concur with the unanimous opinion expressed by the assessors and find the accused guilty as charged and hereby convict him accordingly.

DECISION

Accused convicted accordingly.

S. K. T.