High Court frees another Rape suspect

Wednesday, May 02, 2018

Presiding Judge Ebrima Jaiteh at the High Court in Banjul last Friday, 27th of April, 2018, acquitted and discharged one Babucarr Darboe after the prosecution failed to prove its case beyond all reasonable doubt against him.

The suspect, Babucarr Darboe is charged with two counts of assault and rape contrary to Sections 121 and 227 of the Criminal Code, Cap: 10:01, Volume 3, Laws of The Gambia.

The particulars of offence alleged in count one (1) stated that the accused on or about the 15th of September 2015 at Faraba Bantang village had an unlawful carnal knowledge of an eighteen year old girl (name withheld) without her consent and thereby committed an offence.

In count two, the accused is alleged to have on or about the 15th of September 2015 at Faraba Bantang village assaulted the said victim by holding and compressing her by the neck.

In his judgment, the trial judge disclosed that the accused person was arraigned before the court on the 11th day of July 2016 and he pleaded not guilty to the offences alleged by the prosecution.

The prosecution called five (5) witnesses and tendered the cautionary statement of the accused as Exhibit P1 and the defence tendered the accused voluntary statement as defence Exhibit D1.

He stated that it is the cardinal principle in criminal cases that, the legal and evidential burden of proving every element of the offence beyond reasonable doubt lies on the prosecution.

Although the prosecution can do so by either direct or circumstantial evidence, the law requires that in either case the prosecution bears the legal burden of proving all the elements of the offence necessary to establish the guilt of the accused beyond reasonable doubt; citing the case of WOOLMINGTON Versus DPP (1935) A.C 426, 461.

Justice Jaiteh said to be sufficient to support a conviction in a criminal trial, a circumstantial evidence must be complete and unequivocal, that it must be compelling and must lead to the irresistible conclusion that the accused and no one else is the culprit.

It is settled that by virtue of Section 180 (2) (a) of the Evidence Act 1994, evidence establishing rape must as a matter of law be corroborated evidence is statutorily defined under Section 179 of the Evidence Act to nothing that a medical evidence showing injury to the private part or to other parts of her body which may have been occasioned in a struggle

That semen strains on her cloths or the cloths of the accused or on the place where the offence is alleged to have been committed.

Justice Jaiteh said the victim in this case is an adult and it is her evidence that she had sexual intercourse with the accused person during the month of Ramadan in her mother’s room but under cross-examination she testified that she informed her mother Dw2 that she had sexual intercourse with the accused.

The trial judge further said that the evidence of Dw2 discredited the evidence of the victim in a damaging way and gave a strong inference that victim as her biological daughter was in love with one Bakary Kujabi alias Bax and frequently abscond home for and would spend weeks with the said Bax. 

Justice Jaiteh pointed out that it is Dw2’s evidence that the victim conceived a pregnancy from the alleged rape and there is a surviving child and there is no doubt that the victim was involved in sexual act and for this reason a child was born.

Justice Jaiteh disclosed that the child would have been the best piece of evidence which the court could rely on to determine whether the accused is the father of the victim’s child or not.

Justice Jaiteh noted that curiously enough, the prosecution did not carry any DNA or blood tests of the accused and the child of the victim.

The trial judge explained that no evidence was led to suggest the accused had sexual intercourse with the victim which he considered was fatal to the case of the prosecution.

Justice Jaiteh pointed out that there was no evidence of corroboration in support of the alleged sexual intercourse; as such the provisions of Section 180(2) of the Evidence Act were not satisfactorily complied with.

Justice Jaiteh remarked that there was no sexual intercourse involving the accused as a result the court did not find any evidence showing that the accused had sexual intercourse with the victim and the charge of rape was therefore not proved beyond reasonable doubt.

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 WOOLMINTON Versus DPP.

With regard to count two the accused is charged with the common assault, the trial judge stated that the accused person at all material times denied the allegation of assaulting Pw4 and there was no credible evidence before the court showing that the accused was seen assaulting Pw4.

It is trite law that once the prosecution fails to establish the actus reus of an offence such as the instant case, and where there are doubts in the mind of the court as to whether or not it is the accused that committed the offence, such doubts should be resolved in favour of the accused.

The accused person Babucarr Darboe was accordingly acquitted and discharged on the allegation of rape contrary to Section 121 and common assault contrary to Section 227 respectively

Author: Bruce Asemota