By Lamin Fatty
Justice Landing M. Sanneh of the Basse High Court Tuesday, 24October 2023, freed a man charged with two criminal offences relating to sexual offences.
The accused person Salifu Baldeh was charged with two counts offences – rape and indecent assault. The prosecution alleged that SALIFU BALDEH on 22 July 2021 in Soma Town, Lower River Region of the Republic of The Gambia, intentionally and under coercive circumstances engaged in a sexual act with an 11-year-old girl by inserting his private part into the child’s vagina. The prosecution further alleged that the same person on the same day and place indecently assaulted the 11-year-old girl child.
Salifu Baldeh pleaded not guilty to both charges. The prosecution called five (5) witnesses and tendered two (2) exhibits in support of the prosecution’s case. The accused person testified alone in defence and tendered two exhibits.
Exhibits ‘A’ and ‘B’ were the accused person’s cautionary statement and the victim’s medical certificate respectively. Defence Exhibit ‘A’ and Exhibit ‘B’ were the Witness Statement of the victim and the voluntary statement of the victim respectively.
“I am of the view that the police have not diligently investigated this matter as per the evidence before me. I do not trust the entire criminal justice in this matter. This case was badly investigated and poorly presented, especially in the absence of any credible and reliable corroborating evidence to corroborate the evidence of PW4 (the victim),” Justice Sanneh said.
The Judge said notwithstanding the provisions of Sections 179 and 180 (2) (a) of the Evidence Act, bruises found inside the vagina of the victim do not necessarily mean that there was penetration by the accused. He stated that Prosecution Witness 5 Binta Jarjusey, the person who conducted the medical examination on the victim said: ‘I don’t know what must have caused the bruises.’ The Judge said Jarjusey never told the court what could have been the possible causes of the bruises inside the vagina of the victim.
“I am of the conviction that there exist doubts as to the cause or circumstances that led to the bruises inside the prosecutrix (victim’s) genital part (vagina),” Justice Sanneh said.
The Judge said the victim and her parents like other prosecution witnesses said they saw blood coming out of her genital part. The Judge cited the testimony of the victim when she stated, “An instrument was put inside my body (vagina) and the instrument bruised me, and blood was seen.”
“This court is convinced that doubts have been created as to the actual cause or causes of blood or bruises on the prosecutrix’s genital part,” Justice Sanneh said.
He added: “I find and hold that the prosecution has failed to prove their case against the accused for the offence of rape, thus the accused person, Salifu Baldeh, is not guilty of the offence of rape.”
For the charge of Indecent Assault on female contrary to Section 126 of the Criminal Code, the law provides that “A person who unlawfully and indecently assaults a woman or girl commits a misdemeanor, and is liable on conviction to imprisonment for a term of two years.”
The Judge said in order to prove the charge successfully; the court must be satisfied that the prosecution-led evidence has proved the following elements namely – the act must be unlawful and indecent and it must be a woman or girl whom the act is done.
The Court relied on the testimony of the victim when she stated “As I was going back home, I went through the hospital because we live near the hospital and that is the way we pass when going home. Then SalifuBaldeh called me while he was in the hospital pharmacy. I went and answered him inside the pharmacy and he told me to sit in a chair and without telling me anything, he started putting his hands on my breast and the private part. I was trying to push his hands, but he still continued after I forced myself and got up. I told him I was going to tell my mother. When I reached home, I forgot to tell my mother.”
The Judge said that the piece of evidence could be considered an indecent act as provided in section 126 of the Criminal Code as the victim was a 12-year-old girl at the time of the indecent.
“Having said above, I am minded to look at the provisions in Sections 185 (1) and (2) of the Evidence Act 1994 (supra) as PW4 is a minor, her evidence needs to be corroborated under the circumstances,” the Judge said.
The Judge added: “In the absence of any corroborative evidence to corroborate that above piece of evidence of PW4 (the victim) on the count or offence of indecent assault on her by the accused, this court has indeed advised itself not to rely on such an uncorroborated evidence of PW4 as the accused, since the onset denied to have committed the offence.”
Justice Sanneh said the law in our adversarial system of justice is that the accused is not under any duty to prove his innocence even if he lies to the court.
“Consequently, I am not convinced that the prosecution has proved their case against the accused person on count 2 as well which is the offence of indecent assault on a female, the accused person is, therefore, not found guilty as charged,” he said.
He acquitted and discharged Salifu Baldeh on both counts, hence he is a freeman.