Basse High Court presided over Justice Simeon A. Abi on Friday 15 December 2017
acquitted and discharged one Ebrima Jallow, after the prosecution failed to
prove the murder charge against him.
The accused was charged with murder contrary to Section 187 and punishable under Section 188 of the Criminal Code.
The particulars of offence alleged that the accused on 27 April 2010, at Kuntaur Wassu Village, Central River Region, with intention to kill, caused serious head injury to one Alhagie Bah, thus leading to his death.
Delivering the judgment, the trial judge disclosed that the prosecution called two witnesses and closed their case after announcing the demise of one of their intended witnesses; and the fact that another witness was out of the jurisdiction listed in the proof of evidence.
He said two exhibits were tendered, the cautionary and voluntary statements of the accused person who testified as DW1 and at the close of the evidence of the accused, written addresses were ordered.
The evidence on record was that of PW1, Sainey Badjie, a police officer, who recorded the cautionary and part of the voluntary statements of the accused.
He tendered the two statements, which were admitted as exhibits and in cross-examination he admitted that the accused denied committing the alleged offence.
The trial judge revealed that the evidence on record indicated that only PW2 stated that the deceased had died and that PW1 merely carried out the instruction of his Commander in recording the cautionary statement of the accused. He did not state that he was investigating the death of anybody.
The Judge further revealed that during cross-examination he stated that the accused denied the charge. PW2, in his evidence, stated that when he was informed that the deceased was lying outside he went to the place and took the deceased hand and touched his chest but felt nothing. The police on arrival confirmed the death of the deceased.
The trial judge pointed out that there was the confusion of whether the deceased was Alhagie Bah or Alhagie Jallow, noting that the accused said he quarreled with Alhagie Jallow and has not heard that the said Alhagie Jallow is dead.
The State Counsel asked the accused in cross-examination if he knew that the Alhagie Jallow the accused quarreled with was actually known as Alhagie Bah and accused said he was not aware.
Justice Abi noted that it was incumbent on the prosecution to conclusively prove who actually died as there was no evidence of who died either by death certificate or by any other positive evidence.
Justice Abi further noted that only the bill of indictment listed the deceased as Alhagie Bah, a name the accused denied knowing.
Interestingly also, in the cautionary statement admitted as exhibit P1, the accused referred to the person he quarreled with as Alhagie Jallow while in exhibit P2, the voluntary statement the accused denied killing Alhagie Bah.
The trial judge said these inconsistencies, minor as they seem, go to a very material fact in the case, which was whether someone has really died, compounded by the absence of a death certificate or post mortem report to confirm the death of someone, whether Alhagie Bah or Alhagie Jallow.
The trial judge declared that he would not and could not accept the say so of the learned State Counsel that Alhagie Jallow is the same person as Alhagie Bah.
He remarked that it was not enough in a charge of murder to simply allege that a person has died, the prosecution could not prove the identity of the deceased and the prosecution failed to prove the element of the offence of murder rendering the charge stillborn.
The trial judge said apart from the quarrel which both the accused and the PW2 referred to, there was no other activity involving the accused and the deceased as testified to by the witnesses.
He further said in the cautionary statement, Exhibit P1, accused was said to have stated that he fought with Alhagie Jallow (and not Alhagie Bah) and afterwards he received information that the person he fought with had been stabbed with a knife and had died.
The trial judge pointed out that the lack of a post mortem report or a certificate of death which should have cleared the air on what was the cause of death was not tendered.
“Assuming that Alhagie Bah or Alhagie Jallow is dead, to what act of the accused can the death be attributed?” The judge quizzed.
He revealed that these inconsistencies raise so much doubt in the case of the prosecution, adding that the law is trite that where there are doubts in the case of the prosecution, those doubts ought to be resolved in favour of the accused person.
The trial judge noted that he did not find any satisfactory evidence that the death of the deceased, where one was found proven in this case, could be attributed to the act or omission of the accused person.
Judge Simeon A. Abi held that the prosecution failed to prove the ingredients of the offence of murder and the charge was bound to fail and the accused person was accordingly acquitted and discharged of the charge of murder.