Modou
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
older than.
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.
