High Court presided over by Justice Simeon A. Abi on Friday 27 October 2017
sentenced Lamin Fatty alias Tunkarou Gaku to death after he was found guilty of
murder contrary to the laws of The Gambia.
Delivering the judgment, Justice Abi disclosed that the accused was charged with one count of murder contrary to Section 187 and punishable under Section 188 of the Criminal Code.
The particulars of offence alleged that the accused on 22 July 2015 in Sutukonding Village, Wulli West, Upper River Region with malice aforethought caused the death of Alagie Morro Gakou by hitting him with a stick on his head.
The trial Judge said on arraignment the accused pleaded not guilty and the prosecution in proving their case called four witnesses and tendered six exhibits, while the accused testified alone in his defence.
Justice Abi pointed out that the onus was placed by law on the prosecution to prove the charge against the accused beyond reasonable doubt under Section 144(1) of the Evidence Act.
He posited that to successfully prove a charge of murder, the prosecution must establish the following by credible and cogent evidence: the death of the victim; that the death of the victim was as a result of the unlawful act or omission of the accused, and that the act or omission of the accused which caused the death of the deceased was with malice aforethought.
The trial Judge remarked that it was not in dispute that the death of a human being has taken place, adding that Exhibits P4 and P5 (the medical certificate of death and the Autopsy report) and the testimonies of PW1, PW2, PW3, PW4 and DW1 are compelling pieces of evidence which affirmed in very strong terms that the deceased, Alhagie Morro Gaku, died and his death was medically confirmed.
The trial Judge said on the element that the act of the accused caused the death of the deceased, PW1 testified as to how he saw the accused hit the deceased with a piece of wood in the head.
The piece of wood was tendered and admitted as Exhibit P1. There is no contrary evidence as to the cause of death. Exhibits P4 and P5, the Medical certificate of death and the autopsy report also confirmed that there was “fracture of skull with a wound of 3 centimetres in length, brain injury with haemorrhages” and that the cause of death was “Brain injury, due to fracture of skull as a result of trauma to the head”.
It was the submission of the prosecution that the cause of death could be attributed to the act of the accused person. On the other hand, it was the submission of the defence that there was no witness on record that could give account with exactitude as to what transpired between the deceased and the accused behind the shop and that undoubtedly raised a doubt in the case of the prosecution, citing and relying on several authorities on the standard of proof and the issue of doubt.
He said the eyewitness account states as follow; “The accused went to the back of my shop. The deceased went to search for the accused to know which road the accused took, while the deceased was searching for the accused, the accused appeared towards the deceased with a stick and hit the deceased on his head with the stick, the deceased fell down and was bleeding from the head. I shouted, people came and I ran away forgetting to close my shop.”
The trial Judge said this evidence was never discredited in cross-examination and he therefore found and held that the prosecution satisfactorily proved that the act of the accused in hitting the deceased with a piece of wood on the head caused the death of the deceased.
Justice Abi pointed out that the most difficult element to be proved by the prosecution was that the act of the accused which caused the death of the deceased was with malice aforethought.
He revealed that this element was most crucial because its presence or absence would determine whether the killing of the deceased by the accused was intentional or premeditated or unintended and/or accidental.
He said the law relating to malice aforethought is provided for in section 190 of the Criminal Code.
The trial Judge said the evidence of the PW1 who was an eye witness depicted the attack by the accused on the deceased.
The trial Judge revealed that PW1 stated the correct version of what happened in his evidence in court which was substantially corroborated by the cautionary statement of the accused admitted in evidence as Exhibit P2.
The trial said applying the instances of presumption of malice aforethought as prescribed in Section 190(a) and (b) of the Criminal Code to the case, it was his conclusion that from the facts that the accused formed the necessary animus to violently attack the deceased with a stick.
He said that in his view, the accused had already formed the necessary animosity, hate, spite, bitterness, mischievousness or vindictiveness which in that state enabled the intentional doing of a wrongful act by hitting the deceased with the stick without cause or excuse with intent to inflict an injury.
He pointed out that it was a lame attempt for the accused to raise a defence of self-defence, adding that the accused never raised such a defence at the earliest opportunity, which was at the investigation stage.
He, however, rejected the defence of self-defence as a self-serving after thought and found and held that the accused never acted in self-defence in attacking the deceased.
Justice S.A. Abi therefore found and held that the prosecution successfully proved the case beyond all reasonable doubt against the accused person and he was convicted for the offence of murder as charged.
The trial Judge pointed out that the offence of murder being a capital offence, no nature of plea of mitigation (allocutus) would ameliorate the sentence as it was not within his powers to reduce the punishment.
Accordingly, the accused person was sentenced to death in any manner approved by law.