presiding judge at Basse High Court, Simeon A. Abi on Feb. 27, 2018 acquitted
and discharged one Muhammed Darboe after the prosecution failed to prove the
offences of defilement and attempted suicide against him.
In count one, he is charged with defilement of a girl under the age of 18 years contrary to Section 127 of the Criminal Code, Cap 10, Vol. 3, Revised Laws of The Gambia 2009.
The particulars of offence alleged that the accused between January and June 2014 at Janjanbureh had unlawful carnal knowledge of a girl under the age of eighteen years (name withheld).
In count two, the accused is charged with attempted suicide contrary to Section 206 of the Criminal Code, Cap 10, Vol. 3, Revised Laws of The Gambia 2009.
The particulars of offence in count two allege that the accused on or about 12 June 2014 at Tiyang Sita in the Central River Region attempted to kill himself by drinking acid.
The judge disclosed that the prosecution called four witnesses and tendered three exhibits whilst the accused testified in his defence and called one witness and tendered one exhibit.
The judge further disclosed that at the close of evidence written addresses were ordered and the defence raised one issue in their address filed on the 9th of February 2018, but the State did not file an address.
The trial judge revealed that the court adopted the single issue for determination as formulated by the defence, namely, whether the prosecution proved the two counts of the information beyond reasonable doubts having regard to the evidence on record.
The trial judge stated that pregnancy definitely is evidence of sexual activity, but evidence on record of who is responsible for the pregnancy is scanty and conflicting.
The trial judge further stated that PW1 (the alleged victim) alleged that it is the accused and accused denied it and in part of his defence the accused stated that it was one Amadou who is said to be responsible for the pregnancy.
The trial judge said after reading the entire evidence he could not find any other witness corroborating the evidence of PW1 and did not find any documentary evidence on record to rely on for corroboration.
He further said the cautionary and voluntary statements of the accused person, Exhibits P1 and P1A do not offer any corroboration as they deny the allegation.
The judge revealed that DW2 who lives in the same house with the accused, PW1 and PW2, threw up evidence that seriously dented the story of PW1. She testified that sometime, the accused travelled to Senegal and they were left alone in the compound with PW2.
The trial judge further revealed that DW2 stated that PW2 will always leave them at home in the night and return in the morning. Whenever she returned PW2 will send PW1 to somewhere to collect money which PW2 will use to cook and invite the men who gave the money to the house to feed while she would send the children to the garden where they would spend the rest of the day.
The Judge disclosed that it is the evidence of DW2 that when they return at night PW1 will ask her to accompany her to one man called Aamdou and at Amadou’s house Pw1 would go into his bedroom and ask her to wait in the sitting room, Pw1 and Amadou will spend a long time inside the room
When PW1 comes out they would go home and on the way PW1 would buy things like bread.
PW2 knew that they used to go to Amadou’s house so there was no need to tell her. She did not tell the accused about it because PW2 warned them not to tell the accused.
When PW1 got pregnant one day at the garden PW2 asked PW1 who was responsible and PW1 replied that it was Amadou and warned PW1 not to mention Amadou’s name but to say it was the accused and she warned that she would beat anyone who say it.
The trial judge revealed that DW2 was cross examined at length, and for her age, her evidence was never dented by the prosecution, adding that it would have been easy to resolve the issue of carnal knowledge if there was any medical evidence tying the accused to the baby delivered by PW1.
The trial judge disclosed that it was very paramount for the prosecution to have clarified the doubts raised but no evidence was called in resolving the question of whose child the baby boy was.
The trial judge also revealed that there was a clear conflict as to the time of the sexual act alleged and the date of pregnancy.
He disclosed that the prosecution could have resolved this issue by tendering the result of the pregnancy test allegedly carried out on PW1, which should have stated the exact age of the pregnancy at the time of the test. But there was no such medical evidence before the court and as correctly contended by the defence, the doubt on this issue remained unresolved, to the detriment of the prosecution’s case.
The trial judge said on count two the evidence of the prosecution was not positive enough to ground a conviction, adding that it is common knowledge that acid is a very corrosive element and that he cannot bring himself to agree that even a slight sip of acid can go without severe consequences to the person who drank same, starting from the lips to the oesophagus and intestines.
The presiding judge therefore disclosed that the prosecution failed to discharge the burden of proof placed on them under Section 144(1) of the Evidence Act, Cap 6:06 Vol. 2, Revised Laws of The Gambia 2009.