magistrate Omar Jabang of Social Security tribunal in Brusubi on Tuesday 17
October 2017 acquitted and discharged two suspects; Saikou Camara and Modou
Jallow, who were accused of stealing a sheep and goat.
This was after the prosecution failed to prove the charge against them.
Delivering judgment, the trial magistrate disclosed that the prosecution alleged that the accused persons jointly conspired and stole one sheep and goat valued D4, 500 and D3, 500 respectively being the property of one Mr. Ebrima Mbaye.
He further disclosed that the prosecution called four witnesses and tendered some exhibits, noting that Exhibit A was a picture of the 1st and 2nd accused with a sheep and a goat tied to their hands and Exhibit B was a picture of a dark blue car with vehicle registration number BJL 2691 H.
He said the accused persons testified as lone witnesses in their individual defence and tendered no exhibit.
The trial magistrate revealed that the issue for determination was whether the prosecution has proven the offence of stealing against the accused persons.
He further explained that the legal burden of proving every ingredient of the offence charged rested absolutely on the shoulders of the prosecution and it does not shift an inch.
He pointed out that the standard of beyond reasonable doubt doesn’t also mean proof beyond all doubts or absolute certainty.
He pointed out that where there was doubt in the case of the prosecution, the same must be resolved in favour of the accused.
Magistrate Jabang averred that the prosecution through their witnesses alleged that the 1st and 2nd accused persons stole a sheep and goat belonging to Ebrima Mbaye.
He said the 1st and 2nd accused persons throughout the case denied the allegations and the facts in issue.
The trial magistrate declared that a fact was said to be relevant to the facts which are in issue where the proof of that fact renders probable or improbable the existence of the facts in issue.
He cited section 3(2) of the Evidence Act, saying in a case involving the question as to whether the injury inflicted by the accused caused the death of the deceased, the medical autopsy report of the pathologist together with his or her oral evidence was a relevant fact.
Magistrate Jabang disclosed that in the case at hand, the production of the sheep and the goat together with the oral accounts of eye witnesses are relevant to the facts.
He pointed out that neither the sheep nor the goat was tendered and that the only thing the prosecution tendered was Exhibit A, adding that at the time Exhibit A was sought to be tendered; the 1st accused objected on the grounds that there were no sheep or goats at where his car had a breakdown.
Magistrate Jabang further pointed out that the 1st accused submitted that he was forced to take the said picture and that the ground of the 2nd accused’s objection was based on the fact that it was the complainants who brought the sheep and goat in Exhibit A and put it in his car.
Trial magistrate Jabang said the reason for not tendering the sheep and goat was not known by the court, noting that the reason for tendering Exhibit A in place of the sheep and goat still remains unknown.
He revealed that the best form of evidence in any case was the production of the primary evidence itself but where the production of the primary evidence is not possible, then a proper foundation must be laid for the reception of the secondary evidence.
He noted that since it was alleged that the accused persons stole a sheep and goat, the production of the said animals was proper and if for any reason they couldn’t be brought to court, same must be advanced showing the need to tender secondary evidence of them in which case Exhibit A.
“Anything short of this will be fatal to the case of the prosecution,” he posited.
Magistrate Jabang said from the look of Exhibit A, a sign of reluctance could be seen in the 1st accused, adding that the said sheep and goat should have been produced to avail the accused persons the opportunity to cross-examine the prosecution witnesses on them.
He disclosed that the best evidence for the prosecution was the alleged sheep and goat and in the absence of any explanation from the prosecution as to why they were not tendered, the case may be resolved in favour of the accused.
Magistrate Jabang said he would not give any weight to Exhibits A and B since the sheep and the goat are the fulcrum of the prosecution’s case and in their absence he was of the considered opinion that the prosecution has failed to prove their case beyond all reasonable doubts.
The 1st and 2nd accused; Saikou Camara and Modou Jallow, were accordingly acquitted and discharged.