ADAMU DAGARTI v. THE STATE

JUDGMENT OF BRUCE-LYLE J.S.C.

Bruce-Lyle J.S.C. delivered the judgment of the court. This is an appeal against a conviction for murder dated 5 November 1963 at the Criminal Session, Tamale. The case for the prosecution is that on 30 November 1962 the deceased Kojo Banda who was a lorry driver's mate travelled on duty in his master's lorry No. AF 1958 from Kumasi to Hamile in the Upper Region; apart from his master, there was a co-mate by name Dina Dagarti, the second [p.196] prosecution witness on the lorry. They arrived at Hamile at about 9 p.m. and the master Kwame Bonsu left his two mates on the lorry at the Hamile lorry park where other vehicles were parked and he went to a nearby house to sleep. Whilst the first prosecution witness and the deceased were sleeping in the body of the lorry, the appellant who carried articles of clothing went to the lorry and asked the deceased to allow him to sleep in the lorry; the appellant then climbed into the body of the lorry and lay near the deceased. The second prosecution witness woke up in the middle of the night and noticed that the appellant was lying behind the deceased but thought it was one of the mates of the other lorries who had come to sleep there and he therefore went off to sleep; a few moments later he was awakened by the shouts of the deceased and saw the deceased and the appellant struggling on the ground near the lorry; the second prosecution witness shouted for help and he then noticed that someone had flashed a torchlight and by the aid of that flash he noticed that the appellant was holding a cutlass and was cutting the deceased with it. The second prosecution witness then ran away to the house to call his master. In the meantime the third prosecution witness Kwabena Appiah, a driver of one of the lorries in the park who heard the deceased shout that he was being killed, rushed to the spot and saw the appellant on top of the deceased on the ground and that the appellant had cut the deceased in his stomach and his intestines had come out. The third prosecution witness asked the appellant to get off the deceased; the appellant got up and chased the third prosecution witness with the cutlass but the witness ran and hid in front of the lorry; the appellant then went to the third prosecution witness's lorry which was behind the deceased's lorry and with the cutlass struck the left front mudguard and also damaged the front head lamps. The appellant then started to chase anyone he could lay eyes o