Rapist gets 15 years imprisonment

Aug 12, 2021, 1:37 PM | Article By: Dawda Faye

Magistrate M. S. Jallow of the Kanifing Magistrates’ Court recently convicted and sentenced Kalipha Barrow to a fine of D70,000 in default to serve 15 years imprisonment for rape, contrary to Section 3 ( F ) of the Sexual Offences Act, 2013.

She stated in her judgement that having heard and considered the convict’s plea in mitigation, and having put the gravity of the offence into great consideration and Section 4 of the Sexual Offences Act omitting the punishment for the circumstances disclosed by the evidence, she invoked Section 29 ( 3 ) of the Criminal Code. She also ordered the convict to compensate his victim with the sum of D200,000 in default to serve 7 years imprisonment, though there is no amount of money that restores the complainant to her previous situation or position.

Before the sentence was passed, the convict begged the court to temper justice with mercy as he is a young man. He posited that he has a wife with children and he is the one feeding, educating and housing them, and that his mother is 83 years old. He said he is taking care of her and he is the bread winner of his family. “I am begging the court to consider my children and my old mother,” he pleaded.

When the prosecuting officer, Sub-Inspector Jallow, was asked by the presiding magistrate as to whether the convict was a first-time offender, he informed the court that the prosecution does not have records to show his criminal records. He further noted that they assumed that the convict was a first-time offender. “However, we apply for compensation because the complainant has lost so many things including her marriage,” he told the court.

While reading her judgement, she summarised the testimonies of the prosecution witnesses and that of the convict. She stated that the issue to be determined was whether the charge had been proved beyond reasonable doubts.

In doing so, she referred to the evidence of PW 2 through whom Exhibits 3 and 4 were tendered. She said that PW 2 stated in his evidence that the cautionary wordings were read out to the convict before obtaining his statement and before taking the cautionary statement. She posited that PW 2 invited an independent witness and asked the convict to explain what happened and then wrote down the statement of the convict. She noted that according to PW 2, he read out the statement of the convict in the Mandinka language which the convict spoke. “PW 2 said he signed, the independent witness signed and the convict thumb-printed the statement,” she told the court.

At this juncture, she cited Section 31( 2 ) of the Evidence Act to support her judgement. She further noted that according to PW 2, the requirements of Section 31( 2 ) were met and when the said document was sought to be tendered, the convict did not object to the admissibility of the document.

“It is trite that where evidence remains unchallenged or uncontroverted, the court has no choice but to regard it as an established fact. What is admitted and confirmed becomes unnecessary to adduce further evidence. It needs no further proof,” she held.

She added that in Exhibit 1, the convict admitted that the voice was his and that the conversation suggested nothing other than the convict asking the complainant not to disclose what happened. “Thus, I hold that the prosecution has proved its case beyond reasonable doubts against the accused. He is convicted as charged,” she posited.

Following the judgement, the convict filed a motion dated the 30th July, 2021, and was moved by one Juwarou Barrow. Sub-Inspector Jallow also responded. “Having considered the fact that the fine is paid, I deem it fit to grant the motion but put the convict on further bail pending the liquidation of the compensation,” she stated.

The application for the motion was granted under the following conditions: The sum of D50,000 be paid on the day the application was made as the first payment; D25,000 be paid on or before the 5th of every month commencing Monday 6th September, 2021, until the balance of D150,000 is paid; the convict be released on bail in the sum of D150,000 with two Gambian sureties who must deposit their original biometric ID cards together with reachable address and telephone numbers with the Court Registrar and an amount of D50,000 be deposited which after the four payments, shall be released as the final payment to the complainant.

“However, it is ordered that if the convict fails to pay for one payment, the balance becomes due and shall be paid at once or he serves the 7 years in jail,’ the presiding magistrate declared.

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