(His Lordship referred to the facts and continued).
As we have already pointed out, it was dark, and there was no evidence how exactly the gun went off. In other words, the evidence is not clear as to the actual circumstances when the gun was fired and caused the harm from which the deceased died. The medical evidence shows the cause of death to be the destruction of the greater part of the heart by gun shot. No doubt the circumstances were such that it can reasonably be inferred that the wound from which the deceased died was the result of a discharge of the gun which the second appellant was carrying at the time. In the absence of direct evidence, however, it can only be a matter of conjecture whether the truth be that the gun was aimed at the dead man (or that deceased was otherwise shot at in circumstances from which it might be inferred that the act was intentional)'or that the gun went off accidentally and without negligence by the carrier, or that it was due to a careless act of its carrier.
To substantiate the charge against the appellants, it was incumbent on the prosecution to establish beyond reasonable doubt that both appellants by their acts intentionally caused the death of the deceased by an unlawful harm, in this case by intentionally firing a gun at him. The word "intentionally" cannot be over-emphasised in the circumstances of this case. The case for the prosecution must be such as to negative any suggestion or likelihood of negligent or non-negligent accident. The version of the facts, according to the case for the first appellant, is substantially the same as that given by Mensah, the only material witness for prosecution, and the case was bound to stand or fall on the evidence of Mensah. None of them could tell exactly what had happened, except that immediately after the gun went off the deceased was heard to shout: "Agyei, Agyei"; but they both agreed that it was the second appellant who had the gun.
Although the defence of the second appellant was one of alibi, in which he denied going with the deceased and the others to the cemetery, and therefore denied also his presence at the cemetery that night and his handling the gun, nevertheless the onus of proving the charge against him remained throughout with the prosecution, and the possibility of the gun's discharging accidentally (whether negligently or not) could not be ruled out in considering the case against him.
[p.163]
Notwithstanding this, when learned counsel for the def
