THE STATE v. OHENE-KESSON AND MENSAH

JUDGMENT OF ADUMUA-BOSSMAN J.S.C.

Adumua-Bossman, J.S.C. delivered the judgment of the court. The two appellants (who will be referred to throughout this judgment simply by their surnames, Kesson and Mensah respectively) were together convicted on the 25th January, 1961, during the January Criminal Session of the High Court, at Accra, by Acolatse, J., sitting with assessors, upon an information which charged them jointly with conspiracy to commit abortion, contrary to sections 49(1) and 245 of the Criminal Code1 and also individually with separate offences, that is to say Kesson, with attempt to commit abortion contrary to sections 44 (1) and 245, and Mensah with committing abortion contrary to section 245 of the said Criminal Code, and they have appealed against their convictions. The prosecution's case against them, as disclosed in the evidence of the first and principal prosecution witness, a girl who at the material time was in training at the Nursing School, Korle Bu, called Wilhelmina Richter (who will hereafter be referred to shortly as Wilhelmina) was to the following effect:

That about February, 1960, having missed her period and suspecting pregnancy, due, as she confessed in the course of her evidence, to some previous sexual indiscretions with a friend of hers called Mr. Quist, she approached Kesson, then a senior master for the training of nurses at Korle Bu, to assist her to destroy the suspected pregnancy so that she might resume normal menstruation. Kesson, although in no way responsible for her condition, agreed for some reason or other to assist her. He therefore arranged and she attended at his residence at Mamprobi, Korle Gonno, sometime early in April, 1960, where, having first injected her on the buttocks with a substance which she says was seclomycin, he made her lie down on her back on a bed and inserted an instrument into her private parts. Describing what took place, Wilhelmina said:

"The instrument was used for the object of effecting an abortion which was my main reason for going to him. I felt pains. I bled a little after I left . . . I reported after three days and told him nothing had happened ... He said he would write to one Mr. Mensah to perform the abortion for me".

In due course Kesson wrote a letter, which came into the hands of the police upon an unexpected search of Mensah's premises at Akuse [p.711] and was admitted at the trial as exhibit E, and despatched her with it to see Mensah at Akuse. The letter, which h