AWUNI FRAFRA v. THE REPUBLIC

JUDGMENT OF HAYFRON-BENJAMIN J.A.

Hayfron-Benjamin J.A. delivered the judgment of the court. On 7 December 1973, the appellant was convicted at the High Court, Accra, by the unanimous verdict of a seven-man jury of the crime of murder and was accordingly sentenced to death by the court. On 23 June 1975 this court unanimously set aside the verdict of guilty of murder and the sentence of death and substituted therefor a conviction of the crime of manslaughter and a sentence of ten years' imprisonment with hard labour. We now proceed to give our reasons.

Aborfu village, the scene of the crime, is a village on the outskirts of Accra. It is near the settlement of Ablempe, where the first and second prosecution witnesses live. The nearest police station is on the compound of Achimota School. It would seem that these villages had been experiencing periodic and regular raids from thieves, and at least the first prosecution witness had had her things stolen from her house by thieves on one occasion.

When therefore she noticed two men standing behind a fence at night on 24 January 1972, she raised an alarm. According to her, she had gone out at about 7.30 p.m. to buy some food, when she saw the two men behind a fence near an overhead bridge. She shouted "Who are you?" and one of the men ran into the bush, while the other (the accused) came towards her. She shouted for help, and her brother, the second prosecution witness, came out. On seeing the approach of the brother, the accused began running towards Aborfu village. A hue and cry was raised and other inhabitants of the area joined in the chase. When the chase reached Aborfu village about 40 inhabitants of that village who had obviously heard the shouting of "Thief, thief" had already congregated to assist in the arrest of the accused. The first prosecution witness, a woman with a limp, could not keep pace with the rest during the chase, and got to the crowd when the accused had already been apprehended. She accompanied the arresting party who took the accused to the Achimota Police [p.192] Station and there made a statement to the police.

The brother of the first prosecution witness, who as I have said was called as the second witness for the prosecution, is an able bodied young man attending the Accra Secondary Technical Institute. He was able to keep pace with the chase and was at the scene at Aborfu village when the accused was arrested. He testified as follows:

"When we got to Aborfu there were a lot o