May 16, 2013, 10:18 AM
The Special Criminal Court in Banjul recently convicted and sentenced one Modou Mbenga, to three years in prison for causing grievous harm.
Mbenga was further sentenced to serve another nine months in prison for the offence of escaping from lawful custody.
Both sentences are to run concurrently.
However, his co-accused persons, Omar Janneh, Gibril King and Lamin Sanneh were acquitted and discharged of all the charges preferred against them.
Delivering the judgment, Justice Emmanuel Nkea stated that the accused persons were jointly and severally charged with causing grievous harm to one Sulayman Faye and conspiracy to inflict grievous bodily harm on Sulayman Faye, and the 1st accused was separately charged with the offence of escaping from lawful custody.
“To discharge the arduous burden of proof required in the case, the prosecution called seven witnesses and tendered exhibits,” he said.
He added that the facts relied upon by the prosecution were sufficiently elicited from the testimonies of the witnesses.
He said according to the prosecution witnesses, on 24 March 2012, there was a dance party organized at the Kandiba Primary School at Ebo Town. The organizers included Sulayman Faye, the one that was selling the dance tickets.
“The accused persons were all in attendance and, at some point, Sulayman Faye went to use the rest room, and was attacked by the accused persons. As he tried to escape, he was held back, and stabbed with knives and a broken bottle. He was rescued by friends and rushed to the police station. The police took him to the hospital, where he was examined and a medical report was issued and tendered as an exhibit. The accused persons were later arrested and statements recorded from them. These statements were in evidence as exhibits.”
He said while under detention at the Kotu Police Station for the offence, the 1st accused was alleged to have escaped from police custody but was re-arrested, and further statements were recorded from him, which were also tendered.
The law in the criminal code required the prosecution to prove with the certainty required by law, that the 1st accused was under lawful custody, and that he escaped from lawful custody, he said.
“The unchallenged evidence on record is that the 1st accused was arrested on 24 March 2012, in relation to an alleged offence committed the night before at Kandiba Primary School and was under investigation for having allegedly stabbed one Sulayman Faye with a knife. The 1st accused was, therefore, under lawful police custody,” the judge stated.
He said there was also adverse evidence in exhibit “B” by which the accused admitted to have left the Kotu Police Station without permission to do so, knowing fully-well that he had only been taken out of the cell so as to be attended to for the minor injuries he sustained from a contact with the door of the cell.
“From the foregoing, I am satisfied that the 1st accused escaped from lawful custody at the Kotu Police Station, and this I shall hold as a fact. The prosecution had therefore proved the charge in count 3 against the 1st accused beyond reasonable doubt,” said the judge.
On count 1, he went on, the law in the criminal code requires the prosecution to prove beyond reasonable doubt that the accused persons or any one of them acted in an unlawful way, and the act caused grievous harm to the victim.
“From the evidence on record, it is established beyond reasonable doubt that PW7, Sulayman Faye, was attacked on 24 March 2012 when he organized the dance party at Kandiba Primary School. There is unchallenged evidence that the 1st accused had a knife in hand when he attacked PW7,” said Justice Nkea.
He added that apart from the testimony of Sulayman Faye that he was stabbed by the 1st accused, the 1st accused also admitted in exhibit “C” to haven stabbed Sulayman Faye with a knife, and there was also compelling evidence in exhibit “F” that Sulayman Faye was stabbed with a knife on the head, left forearm and both lower limbs and he bled profusely.
The examining doctor observed the injuries to be severe, he said.
“In consequence of the foregoing, I reach the conclusion that PW7 was stabbed with a knife by the 1st accused on that fateful day, and this I hold as a fact,” he stated.
“While fixing the 2nd and 3rd accused persons at the scene of the crime, PW7 did not say what role they played in facilitating the attack on him. They were not in possession of any weapon and he did not say that they assisted the 1st accused in anyway,” he adduced.
The judge added that the 2nd and 3rd accused also denied playing any role in the police cautionary statements.
“The mere presence of a person at the commission of a crime or at the crime scene does not ipso facto make him an accomplice to such a crime,” he said.
Although PW7 testified how he was kicked to the ground by the 4th accused as he tried to escape from the grip of the 1st accused, he stated.
He said the testimony of the 4th accused before the court was unshaken by cross-examination, and the law was trite that where evidence viva voce or in an affidavit remains unchallenged and uncontroverted, the court has no choice than to regard it as established the facts alleged.
“Having held that there was no incriminating evidence against the 2nd, 3rd and 4th accused persons in support of count 1, and since a single person cannot conspire, it follows that the conspiracy charge in count 2 must fail. I dismiss it, and in doing so, I acquit all the accused persons on count 2,” the judge said.
“From the totality of the evidence adduced before the court, it is clear that while the prosecution has proved it case with certainty required by law in count 1and 3 against the 1st accused person, the prosecution failed to so prove against all the accused persons in count 2 and against 2nd, 3rd and 4th accused persons in count 1,” he stated.
“In view of the foregoing, I shall discharge and acquit all the accused persons on count 2. I also discharge and acquit the 2nd, 3rd and 4th accused persons on count 1.
In the same breath, I find the 1st accused person guilty and convict him as charged on counts 1 and 3,” the judge declared.