KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND STROTHER-STEWART, In this case the appellant was convicted by Bannerman, J., sitting without a jury or assessors, at the Accra Assizes of the rape of a girl named Dedei Badoo and sentenced to eighteen months’ imprisonment with hard labour.
On appealing to this Court the appellant in the first insatance filed lengthy grounds of appeal containing a number of irrelevant and scandalous matters. We referred the grounds of appeal to the learned trial Judge and upon receiving his report were satisfied that there was no ground for the very improper allegations made. We accordingly called upon the appellant to file fresh grounds of appeal devoid of scandalous and irrelevant matter. This has been done, and no exception can now be taken to the grounds accepted and argued before the Court. Apart from ground 1, which relates to the rejection of evidence and was not argued all the grounds do nothing more than attack the verdict as against the weight of evidence, and it is substantially on this one ground that the appellant’s counsel argued the appeal. The Crown did not appear to support the conviction. The facts alleged by the prosecution are that the appellant is a Syrian Trader having his own store in Derby Avenue, one of the busiest streets in Accra, facing Selwyn Market; that the girl Dedei Badoo is a petty hawker; that in the morning of Saturday the 23rd August, the accused called the girl into his store, induced her by a rose to join him behind the counter, then tripped her so that she fell, then placed her on her back, put his legs between hers and, when she shouted, placed his right hand on her mouth and then forcibly had connection with her against her will; that he completely consummated the act; that then a woman named Agudey, another tenant living on the premises, came into the store in response to the girl’s shouts and was in time to see the appellant pushing back his penis into his trousers. Then the land- lord, named Mingle, arrived on the scene and a complaint was made to the police.
The defence was that the connection took place with the consent of the girl, that the appellant had had connection with the girl several times before, and that the story of rape was concocted by Mingle and the woman Agudey through malice. There are certainly a number of matters which support the defence; they may be summarised as follows:- (a) The inherent improbability of the girl’s story. This was an open store in a busy street with people constantly passing, and with other residents on the premises within call. It is remarkable enough that the appellant should have connection with the girl at all at the time and place but the allegation that he did so against her will and in spite of her shouts and struggles is almost unbelievable.
(b) The extreme improbability that he would be physically capable of having complete connection by force as alleged; genuine resistance by the girl must have thwarted his attempt.
(c) The fact that it was found by the doctor that the girl hymen had been previously ruptured but was without recent injury.
(d) The facts that the doctor found no signs of bruises or violence either to the hymen or elsewhere on the girl and that when he examined the girl in the afternoon she was not in a shocked condition.
(e) The conduct of the girl herself indicates her willingness. She admits that on a previous occasion, when she visited his shop, the appellant had played with her breast. On the present occasion she was lured behind the counter by the simplest of ruses; she had placed her tray of wares upon the counter, the appellant placed it behind the counter and invited her to come and get it. She asks us to believe that the walked straight into the lure in all innocence. It is difficult to believe, in view of the previous indecent advances, that she did not realise perfectly well that the appellant wanted to get her behind the counter in order to make further advances, and that she was not a willing victim of the trap.
(f) T'he first reaction of both the woman Agudey and the landlord Mingle was anger not with the appellant alone but with both the appellant and the girl. The girl herself says Agudey s1apped her, whilst Mingle asked “Is this what your parents have sent you to come and do” Surely both these facts are inconsistent with the woman Agudey’s story that she came to the girl’s rescue in response to her shouts, and only consistent with the appellant’s story that the girl consented.
Whilst all these points tell strongly in favour of the truth of the defence and the falsity of the allegation of connection by force, the learned trial Judge, who saw and heard the witnesses, most emphatically believed the story of the prosecution and disbelieved the defence. We should find it impossible to do otherwise than accept his finding of fact if we were satisfied that he had before him all the relevant evidence, or that even if he had al1 the relevant evidence before him his verdict must inevitably have been the same.
It is well established that it is the duty of the prosecution to place before the Court all available relevant evidence. This does not mean, of course, that a whole host of witnesses must be called upon the same point, but it does mean that if there is a vital point in issue and there is one witness whose evidence would settle it one way or the other, that witness ought to be called. The trial Judge also has a discretion himself to call a witness in the interests of justice and we conceive it to be his duty to exercise this discretion when by so doing the real truth can be ascertained.
In this case there was one person whose evidence, we think, was of vital importance, and it was not before the Court. We refer to the woman Amamki. The onus was on the prosecution to prove both connection and force; connection was not disputed at the trial. To prove the force the prosecution relied largely on the girl’s allegation of shouting, corroborated by Agudey who said that she heard the shouts and in consequence rushed into the store. The whole case turns on the truth or otherwise of that story.
Agudey said “When I heard the shouts Amamki was there. “She and I were having our meals at the time.” Obviously, if Agudey heard shouts, Amamki must have heard them too, unless she was deaf. Even if she was deaf she would have seen Agudey “rush”, if Agudey did rush. Her evidence must almost certainly have settled one way or the other the truth or otherwise of the story of the shouting. Without her evidence we feel that the learned trial Judge could not adequately gauge the truth and we are not satisfied that if she had been called, as in our view she should have been called, the verdict would necessarily have been the same. Consequently we have come to the conclusion that in the fair administration of the criminal law this conviction cannot stand.
The appeal is allowed, the conviction and sentence are quashed and it is ordered that a judgment and verdict of acquittal be entered.
The appellant is discharged.