May 15, 2008, 6:26 AM
Jatta, who was convicted and sentence to life in jail by the High Court in
Banjul for allegedly raping a 10-year-old girl, was freed by the Gambia Court
of Appeal yesterday.
The appeal court, presided over by a panel of three judges headed by Justice Awa Bah, ruled that Jatta, who had already spent almost five years in jail, was in fact convicted for a crime he did not commit.
According to the court narration, the girl found the man on the bed and he pushed her on the bed and ejaculated on her, but did not actually penetrate her.
Delivering the judgment, Justice Orifowomo said the appellant (Jatta) was arraigned before Justice E. Amadi of the High Court in Banjul on 26 June 2011 and charged with the offence of rape.
The prosecution had alleged that the appellant (then accused) on 5 February 2011 at Fajara in the Kanifing Municipality had unlawful sexual intercourse with a 10-year-old girl without her consent.
The prosecution called several witnesses to prove its case against the appellant, who called no witness in his defence.
The court subsequently convicted and sentenced the appellant on 7 June 2012 to life imprisonment.
Dissatisfied with the lower court’s judgment, the appellant filed a notice of appeal, thereby appealing against the conviction and sentence, and that he was not guilty of the alleged offence.
The appellant counsel, Pa Harry Jammeh, raised three issues for determination before the court, and cited several cases and authorities.
The appellate court judge pointed out that the appellant’s counsel argued that the state/respondent woefully failed to establish the offence of rape against his client, as it was evident that there was no penetration of the alleged victim.
The appellate court judge said the state submitted that the burden of proof was discharged by the prosecution, adding that the sentence imposed on the appellant was appropriate.
Justice Orifowomo said having carefully examined the submissions of both parties, and the evidence of the alleged victim from the records of the trial court, it was the alleged victim’s evidence that “the appellant pushed me on the bed and ejaculated on me, and I got up and left, but he didn’t rape”.
The judge also said it was clear from the appellant’s cautionary statement that, “I released my semen on her, but I did not do anything to her; she found me on the bed, but I did not rape her.”
Justice Orifowomo further said the appellant using his finger to rub the victim’s vagina was unlawful as he has no right to even look at it.
The judge added that sexual penetration is proved by the insertion of the penis, and that a distinction must be made between rape and indecent assault.
He further stated that the appellant did not penetrate the victim, but discharged semen on the body of the victim and that sexual knowledge is deemed complete upon the penetration of the vagina by penis, and not by the finger.
The judge cited a plethora of cases and authorities, and pointed out that the judgment of the lower court was liable to be set aside; and that he agreed with the appellant’s counsel, Pa Harry Jammeh, that the facts do not support the charge of rape, but sexual assault.
Justice Orifowomo said sexual predators must be punished.
He, therefore, sentenced the appellant, Landing Jatta, to serve two years imprisonment, adding that the sentence shall take retrospective effect from the date he was convicted (that is 7 June 2012) and was, therefore, released.
Lawyer Pa Harry Jammeh, the appellant’s counsel, thanked the court on behalf of the appellant and his family, noting that the judgment embodied proper application of the law.