High Court in Basse in the Upper River Region presided over by Justice Simeon
A. Abi convicted one Fatou Marong for manslaughter and was sentenced to serve
one year with hard labour.
Delivering judgment yesterday, 23 November 2017, the trial judge disclosed that the accused was charged with murder contrary to Section 187 and the particulars of offence alleged that the accused on or about the 12th day of November 2016, at Fullabantang village in the Central River Region unlawfully caused the death of one Sulayman Wanja by stabbing him with a knife on the chest.
He further disclosed that the prosecution called six witnesses and tendered six exhibits, whilst the accused testified on her behalf and called two other witnesses in her defence and at the close of evidence written briefs were ordered.
He revealed that the issues raised by both prosecution and defence were practically the same with the prosecution, adding one issue on whether defence of provocation avails the accused.
Justice Simeon Abi pointed out that the onus placed by law on the prosecution to prove the charge against the accused beyond reasonable doubt is stipulated under Section 144(1) of the Evidence Act, Cap: 6:06 Volume 2, Laws of The Gambia.
He further pointed out that PW2, PW3, PW4 and PW5 were eyewitnesses to the incident leading to the death of the deceased and that from the whole evidence of PW2 to PW5, he did not find any clear evidence of animosity or malice aforethought.
Justice Abi explained that none of the witnesses gave any evidence pointing clearly to the fact that the accused acted in a manner depicting animosity or hate of an intensity which can ground malice aforethought.
He further explained that he observed the witnesses that they all exhibited a level of reluctance in testifying against the accused as it was not surprising that PW4 was eventually declared a hostile witness on the application of the prosecution.
The trial judge said the accused maintained her evidence and was never shaken despite the grueling cross examination by State Counsel L. Jarju.
Justice Abi declared that if the accused had exhibited any iota of animosity, hate, spite, bitterness, mischievousness or vindictiveness, or the intentional doing of the wrongful act without cause or excuse with an intent to inflict an injury on the deceased, in the circumstances of this case, it would have been the first thing the eye witnesses would have alluded to, especially having in my mind the fact that these key eye witnesses are blood relations of the deceased who should have been very ready to testify against the accused for causing the death of their brother.
He said PW5 also did not testify to anything indicating malice aforethought and from all the above pieces of evidence, it is clear that the accused never at the time of the stabbing exhibited “animosity, hate, spite, bitterness, mischievousness or vindictiveness…”
He therefore declared that the prosecution failed to prove the very essential ingredient that the act of the accused causing the death of the deceased was with malice aforethought as defined and provided for in the Criminal Code, and has not made out a case of murder against the accused as charged.
The trial judge disclosed that both the defence and the prosecution raised the issue whether the accused was entitled to the defence of self defence.
He noted that the prosecution raised the question whether the accused was entitled to the defence of provocation. S. Fatty Esq. for the accused and L. Jarju Esq. for the State both highlighted the requirements of the defence of self defence and provocation and came to varying conclusions. S. Fatty Esq. relied heavily in the evidence of DW2 and DW3 and concluded that the deceased was the aggressor who caused the incident and did not act in good faith.
The trial judge said the evidence of the insults poured on the accused by the deceased prior to the fight was also uncontroverted evidence that the deceased attacked the accused and slapped her.
“DW3 who attempted to intervene and stop the fight was knocked down by a blow or slap from the deceased. It was in the heat of that passion that the accused lashed out at the deceased intending to hit him with her fist and not remembering that she was holding the knife she had been using to prepare vegetables for the next meal” He stated.
Justice Abi revealed that there was sufficient provocation from the deceased coupled with the physical brutalization of slaps, and there was no time for passion to cool as the events of the insults, slaps and eventual stabbing were fluid and contemporaneous with each other as a result he did not find sufficient evidence to sustain the charge of murder against the accused person.
He further revealed that by Section 151 of the Criminal Procedure Code, therefore convicted the accused for the lesser offence of manslaughter on account of the prosecution having failed to establish malice aforethought in the act of the accused that caused the death of the deceased.
He said the issue of the medical attention given to the deceased following the stab was also a subject of comment by the defence in their brief and that during cross examination of PW1 informed the court that he took the deceased from Fulbantang Health Centre to Bansang Hospital where he was treated, his injury was stitched and discharged.
“What manner of attention was given to the deceased by the hospital when he was taken there by the police and others? Why did the care and attention which was presumed adequate and sufficient by the hospital to the point of discharging the deceased to go home suddenly become so inadequate that the deceased complained of pains and died shortly thereafter?” he queried.
“The best thing to have done in such circumstances would have been to refer the accused to a better medical facility for proper attention but merely dressing the wound on the surface and discharging the deceased to go home was very unprofessional and callous on the part of the hospital. This to my mind aggravated the condition of the deceased and accelerated if not actually led to his death” the judge said.
He posited that the Hospital owe the patient a duty to do their utmost best, and should the situation be more serious than they can handle, make a referral to an appropriate hospital at the earliest opportunity.
The trial judge pointed out that the avoidable death of Sulayman Wanja must be placed on a high degree of blame for that on the Bansang Hospital that initially treated and discharged him to go home without a proper investigation of his injury.
The trial judge noted that in view of the very peculiar circumstances of the case and after listening to the allocutus of the defence counsel on behalf of the accused person, he shall exercise the power conferred on him by Section 29(2) of the Criminal Code and then sentenced the accused to a term of One (1) year imprisonment with hard labour.
He ordered that the sentence shall be deemed to have commenced on the 12th day of November 2016 when she was first arrested and taken into custody.
Justice Simeon A. Abi declared that since the accused has already served her term as at the 11th day of November 2017 she was released forthwith.