Sep 23, 2009, 5:34 AM
Both sentences are to run concurrently.Mary Mendy was fined D5,000 in default to serve 1 year imprisonment and also ordered to pay a compensation of D5,000 to the complainant, Buray Sowe.
Delivering his judgment, the trial magistrate stated that the two accused persons were jointly charged with four counts of assault causing actual bodily harm, and they denied the allegation.
The prosecution called four witnesses and tendered three exhibits to prove its case beyond reasonable doubt, and the accused persons also testified without calling any witness, he said.
He said the first element in count one, whether Bola Correa and Mary Mendy put Buray Sowe in fear, is the Actus Reus of assault.
He said PW1, Buray Sowe, testified that Bola Correa came towards him, held his neck, twisted it, and started beating him up and Ebrima Dem’s evidence also stated that Bola Correa fought with Buray and he shall hold these evidence as facts.
“When Bola Correa held Buray’s neck and twisted it, he had put Buray Sowe in fear. There is no evidence that Mary Mendy beat Buray Sowe with a stick and, consequently, the prosecution has proved the first element with the certainty required by law that Bola Correa beat up Buray Sowe,” the magistrate said.
With regards to the second element, whether Bola Correa and Mary Mendy beat Buray Sowe all over his body, this was the mens rea of assault, he stated, adding that under cross-examination, Bola Correa admitted that he got annoyed when Buray Sowe was speaking and insulting him, and he went and pulled his shirt.
Bola Correa further admitted that he reported a previous incident to the Alkalo and nothing came out of it, he said.
“What I deduced from the evidence is that Bola Correa decided to take the law into his hands and teach Buray Sowe a bitter lesson, by intentionally and recklessly assaulting him physically with his fist,” the magistrate stated.
There was no evidence linking Mary Mendy to beating Buray Sowe and, consequently, the prosecution had proved the essential ingredients in count one against Bola Correa with the certainty required by law, he continued.
With regards to the first element of count two, as to whether Marry Mendy put Buray Sowe in fear, this is the Actus Reus of assault.
It was the evidence of the prosecution witnesses that Mary Mendy went behind Buray Sowe and held his private part, and they were present when Mary unlawfully held and pulled Buray’s private part, he stated.
This act by Mary Mendy had put Buray Sowe in fear, he said, adding that the second element whether Mary Mendy held and pulled Buray Sowe’s private part was the direct evidence of all the prosecution’s witnesses.
“They all testified that Mary Mendy went at the back of Buray Sowe, pulling his private part whilst his husband, Bola Correa, was punching Buray Sowe on the chest. I hold this as a fact and I am satisfied that the prosecution has proved all the elements of count two beyond reasonable doubt.”
With regards to the first and second elements of count three, as to whether Bola Correa wilfully put Awa Bah in fear and unlawfully beat her with a stick is the crux of count three.
Awa Bah, in her evidence-in-chief, testified that she went to separate her son, Buray, from fighting with Bola Correa and Mary Mendy attacked her and tore her dress and pushed her to the ground, and she decided to go home. As she was going home, Bola Correa came and beat her with a stick, and she collapsed on the ground.
All other witnesses gave the same evidence that Bola Correa beat Awa Bah (a 48-year-old woman) with a stick to unconsciousness, and the medical certificate tendered stated that the probable nature of weapon used to beat Awa Bah was blunt and it was severe, he went on.
The examining officer, Lamin Sonko, indicated that Awa Bah was hospitalized at the Edward Francis Small Teaching Hospital in Banjul for one week.
The medical certificate showed that the object used was blunt and the prosecution witnesses testified that Bola beat Awa Bah with a stick.
“The conclusion I arrived at is that Bola Correa actually used a stick and severely beat Awa Bah, and I am satisfied that Bola Correa wilfully and unlawfully beat Awa Bah to the point of unconsciousness, and I am, therefore, satisfied that the prosecution has proved all the essential elements of count three with the certainty required by law.”
With regards to the fourth count, whether Bolla Correa wilfully and unlawfully beat Habbi Bah with a stick was a fact in issue.
Habbi Bah, who alleged to have been beaten, admitted that she was not beaten and I hold that as a fact that Bola Correa did not beat her, and the prosecution has failed woefully to establish the ingredients of the offence in count four beyond reasonable doubt, stated the magistrate.