Feb 11, 2015, 10:08 AM
Cham, 63, was recently convicted and sentenced by Justice Simeon A. Abi of the
High Court in Banjul after he was found guilty of raping a girl he is 50 years
Delivering the judgment, the trial judge disclosed that the accused was charged with the offence of rape.
He said the prosecution alleged in the particulars of offence that the accused person, on 27 November 2014, at Banjul, had unlawful carnal knowledge of a 13-year-old girl.
The trial judge further said in proof of its case, the prosecution called a total of ten witnesses and tendered several exhibits, whilst the accused testified in his defence and called two other defence witnesses.
He revealed that the general rule dictates that the burden of proof in criminal cases rests squarely on the prosecution to prove the case against the accused person beyond reasonable doubts.
The trial judge noted that in proving the unlawful carnal knowledge, the prosecution must prove penetration, adding that the accused denied the evidence but testified mostly as to the events of the day he was arrested.
Justice Abi revealed that from the totality of the evidence of the prosecution witnesses, it was clear that there was no eye witness to the alleged incident but the medical report indicated that the victim’s hymen was torn.
He also revealed that the medical report also stated that the tearing was caused either by a penis, a finger or a stick.
The trial judge said Dr Bittaye, however, confirmed that from his examination, the injury had occurred four or five days before the examination he carried out on 2 December 2014, which put the date of incident at about 27 or 28 November 2014.
Justice Abi disclosed that it was his considered view that it was the accused who had sex with her on the date in question which has been corroborated by the medical examination report and the evidence of PW 8, Dr. Bittaye.
The trial judge said in addition to the circumstantial evidence highlighted above, the cautionary statement of the accused contained some statements which have also thrown some lights and to an extent corroborated the evidence of the victim.
He said that the evidence elicited during the examination-in-chief and cross-examination of the victim, was consistent that the accused called her into his room and forced her and had sex with her and gave her D50 which she returned and left.
“I find the statement corroborative of the evidence of the victim on the point that the accused had sexual intercourse with her and I will give it full weight,” he remarked.
The trial judge pointed out that the victim in her evidence stated clearly that the accused lay her on the bed and forced her and had sex with her and that this testimony was not shaken despite gruelling cross-examination by the defence counsel.
“I therefore, find and hold that the sexual intercourse between the accused and the victim was obtained by force by the accused and without the consent of the victim, and falls into the categories of unlawful sexual intercourse envisaged in Section 121 of the Criminal Code,” the trial judge remarked.
He pointed out that the tear of the hymen in his view supports the evidence of the victim, noting that the law is that in proving sexual intercourse, the prosecution must prove penetration.
“I therefore, find and hold that the act of sexual intercourse had taken place unlawfully having been obtained without the consent of the victim and by force by the accused person. It is my conclusion that the state has successfully proven the essential ingredients of the offence of rape beyond reasonable doubt in this case,” the trial judge concluded.
The trial judge accordingly found the accused person guilty as charged for the offence of rape.
In passing sentence, the trial judge said having listened to the allocutus made on behalf of the accused person, and in view of the age of the accused who stated he was 60 years at the time of the incident, he would use the discretionary powers conferred on him to impose a lenient sentence on the accused person.
The accused person was sentenced to five years imprisonment with hard labour.
He ordered that the sentence shall be deemed to have commenced in December 2014, being the month of his first arrest.