Ousman Kandeh, a rape suspect was yesterday, 23rd of April, 2018, acquitted and
discharged by Justice Ebrima Jaiteh at the High Court in Banjul after the
prosecution failed to prove the offence against him.
Delivering judgment, the trial judge disclosed that the accused person was charged with a single count of rape contrary to Section 3(1)(a) of the Sexual Offences Act 2013.
The particulars of offence alleged that on or about the 12th day of August 2016 at Madaur village in the West Coast Region, the accused intentionally had sexual act with a ten-year old girl (name withheld) under coercive circumstances.
Justice Jaiteh further disclosed that the accused person was arraigned before the court on the 24th day of December 2016 and he pleaded not guilty to the offence.
He revealed that the prosecution called six (6) witnesses and tendered the cautionary statement of the accused as exhibit P1 and the medical report of the alleged victim whilst the accused person testified as a lone witness and did not tender any exhibit.
Justice Jaiteh further revealed that for the charge of rape to be sustained, penetration, no matter how slight must be proved, adding that the offence of rape is one of such offences, which requires corroboration and he referred to Sections 179 and 180 of the Evidence Act, 1994.
Justice Jaiteh underlined that the prosecution’s evidence are inconsistent and thus contradict each other, furthermore, the totality of the prosecution’s evidence adduced was rather doubtful or speculative.
Justice Jaiteh pointed out that the testimonies of Pw1 and Pw4 were contradictory and inconsistent.
Justice Jaiteh further pointed out that the evidence of PW2 the Police Welfare officer who interrogated the accused and visited the alleged rape scene did not conduct a proper investigation in the case.
The trial judge said the investigating police officer failed to collect the clothes of the accused or traces of material evidence for medical examination in order to establish the truth of whether sexual intercourse took place.
The trial judge said though she took photographs of the scene but failed to tender them in evidence, noting that there was no evidence of corroboration in support of the alleged sexual intercourse and the provisions of Section 180 (2) of the Evidence Act was not satisfactorily complied with.
He disclosed that there was no sexual intercourse and that the accused person in his testimony denied the allegation of rape and in his cautionary statement, he stated thus “I put my penis in her vagina, it can’t fit and when the sperm was coming out I drop it down.”
Justice Jaiteh revealed that Pw2 recorded the accused person cautionary statement whilst he lamented the fact that she would have visited the scene as it would have been prudent and as a reasonable police officer look for trace of where the accused allegedly dropped the sperm and collect it for medical examination, but this was not done at all.
The trial judge further revealed that the evidence adduced by the accused before the court and his cautionary statement were at variance.
Justice Jaiteh said the prosecution failed to link offence committed to the accused with the certainty required by law as a result the prosecution failed to prove the element of actus reas of the offence of rape, which is whether there was sexual intercourse involving the victim.
With regard to the issues whether the accused had sexual intercourse with the victim under coercive circumstances, the trial judge pointed out that it is contingent upon whether the victim was involved in sexual intercourse or not.
Justice Ebrima Jaiteh declared that the charge of rape was therefore not proved beyond reasonable doubt, adding that the law is settled that where the prosecution has failed to prove its case beyond reasonable doubts the accused is entitled to an acquittal citing the case of WOOLMINGTON Versus DPP.
The trial judge therefore disclosed that he was compelled to acquit and discharge the accused person Ousman Kandeh on the allegation of rape.