IN THE HIGH COURT OF THE GAMBIA

IN THE HIGH COURT OF THE GAMBIA.
CRIM. CASE NO. HC/325/10/CR/070/A0
HOLDEN AT JANJANBURAY, CRR.
BETWEEN:
THE STATE
VS.
OUSMAN DARRY.
JUDGEMENT
The Accused by an indictment dated the 28 th day of May, 2010 was charged
with the offence of Rape contrary to Section 122 of The Criminal Code,
Cap. 10 Vol. 111 of The Laws of The Gambia, 1990.
Section 122 provides:-
“Any person who commits the offence of rape is liable to be punished
with imprisonment for life.”
The particulars of the offence were that the accused, Mama Ousman Darry
on or about the 8 th day of February, 2010 at Kunting Village in the Central
River Region of The Republic of The Gambia, within the Jurisdiction of this
Honourable Court by the use of force had unlawful carnally knowledge of
one Aja Jawla and thereby committed an offence.
I shall pause to observe that the Section under which the accused is charged
is a punishment Section which is wrong. No amount of evidence can be laid
before this court to substantiate the said charge. The charge is therefore bad
in all material particular and cannot be sustained in law. In the circumstance
therefore, I shall invoke my inherent discretion under Section 218 (1) of the
Criminal Procedure Code and amend Section 122 of the Criminal Code to
read 121 of the Criminal Code and I so order.

The Prosecution in proof of their case called 5 (Five) witnesses and tendered
exhibits A, B, C, D, E, F, G, H, J, J1, J2, J3, K, K1 AND K2 respectively.
I now proceed to summarize the evidence of the Prosecution Witnesses.
PW 1 - OMAR S. DRAMMEH.
Sworn on the Kuran and spoke in English. A police officer, ranked Couple
and attached at the Bansang Police Station. He testified that he has been
working with the police force for the last ten years. That he recognized both
the PW 2 Aja Jawla, the accused person, Lisa Jawla, the mother of the PW 2
Aja Jawla and Omar Ceesay a Police Officer at Bansang Police Station. He
recalled having obtained a cautionary statement from the accused whilst on
duty on Thursday the 18 th day of March, 2010. That he interrogated the
accused person and thereafter wrote his statement in English which he
translated to him in Mandinka. He understood and thumb-printed. That there
was no independent witness at the time he recorded the accused person’s
statement. The case was thereafter referred to the Criminal Investigation
Unit for further action since in his words, the case is not a plain one. The
said cautionary statement dated the 18 th March, 2010 was admitted in
evidence as an exhibit and marked as EX. “A” and the voluntary statement
dated the 18 th March, 2010 was similarly admitted in evidence as an exhibit
and marked as EX. “B”.
Under cross-examination, PW 1 confirmed that it was the accused person
who complained to the Bansang Police that he was wrongly accused by PW
2 Aja Jawla and her parents and wanted the police to strongly warn them to
desist from making such allegations against him.
PW 2 - AJA JAWLA.
Sworn on the Quran and spoke in Mandinka. She testified that she lives in
Kunting Village and is a Grade 8 (eight) student at the said village. She is
fifteen years old and knows the accused person whom she admitted is a
relation. That he is her aunt’s son. That on the 8 th of February, 2010, she
woke up early in the morning and performed her morning prayers thereafter
which she went to the bush to fetch fire wood. Therein the bush, she was
found by a man whom she identified as the accused in the dock.

That at the time the accused person also had firewood tied on his bicycle.
They did not greet each other. She narrated that the accused person placed
his firewood down and approached her with a knife and pulled her by the
shirt. She asked him to leave her alone but the accused refused. She
struggled and escaped then ran into the bush towards the direction of the
village. In the process, she got breathless and stopped when the accused
caught her. That the accused told her that her parents refused his offer to
marry her. He then forcefully had sex with her and in the process lost her
virginity. The accused thereafter left and she also went home.
On arrival at home she removed her lappa, folded it and put it under the
mattress thereafter which she took bath and laundered her under wear then
hung it to dry. She then cooked and went to school. That it was about 9:00
am when she returned from the bush. After the 8 th of February, her mother
having searched for and found her lappa, asked her as to who had sex with
her. She told her that it was the accused. She could not remember the date
on which her mother asked her. That on a particular night when all had gone
to sleep, her mother took her lappa to her father. She did not report the
matter to the police nor any other person. She stated that she had not seen
her normal menstrual period at the usual time presumably after a month.
That her father telephoned the accused’s brother whom they both spoke to.
She confirmed to the brother that she was pregnant. The said brother
traveled to the village where he held discussions with her parents. At the
said meeting, she produced a piece of paper where she wrote the date of the
incident. That she forgot to write her name and that of the accused on the
said paper.
The meeting did not go well and as a result, the accused brother reported to
the village alkalo who could not resolve the issue but encouraged a family
settlement. The accused and his brother thereafter complained to the
Bansang Police. The Bansang Police invited them where she narrated that
the accused had raped her. Statements were recorded from them whereupon,
she was escorted to the hospital for a medical examination. At the hospital,
she did a pregnancy test and was told to return a week later. On her return,
she was told that she was pregnant. Her father insisted that she must carry
the baby. Three days thereafter, she menstruated.

On being asked in her evidence-in-chief as to what happened to her
pregnancy, she said that God removed it. That she was said to have been
pregnant but she subsequently menstruated.
Under cross-examination she maintained that she was raped by the accused.
On being asked to give the names of those that she knew at her school, she
did so except for one Alpha Jallow. On being asked whether she knew the
said Alpha Jallow, she replied in the negative. On being squeezed further,
she said that she knew him but that they do not talk but would not say why.
Counsel for the accused put to her that it is an open secret that the said
Alpha Jallow was her boy friend whom she had affairs with but she denied
the allegation.
PW 3 - LISA JAWLA.
Sworn on the Kuran and testified on in Mandinka. She testified that she is a
farmer and a house wife. That she knows PW 2 who is her daughter and the
accused person both of whom hails from Kunting Village. She recalled that
on the morning of the 8 th day of February, 2010 when she returned from
fetching water, she asked her daughter where she had been to. In response,
her daughter told her that she had gone to the bush to fetch firewood. She
told her that she was not satisfied with the way she returned from the bush
as it was different from the way she went. PW 1 told her that nothing was
wrong or had happened to her. At the time, she had already taken her bath.
She went to school and on her return, she spent the rest of the day in bed.
On being asked, she said that she was ill. On the next day PW 3 recalled
telling her that it is apparent that there was something wrong with her which
she was not willing to tell her. On or about three days thereafter, she woke
her up and made her sit and insisted that she tells her what had happened. It
was at that point that she told her that she was ashamed to say but that she
was raped by the accused in the bush. When she went to school, she
searched for and found her lappa under the mattress with a piece of note on
it which she took to her husband and informed him that she would report the
matter to the Alkalo. That the husband warned her not to do so since they all
come from the same family and that he will call the brother of the accused
and resolve the matter within the family circle. Her husband called the
brother of the accused and a family meeting was convened in her husband’s
house but the ended in a stalemate.

At the end of the meeting, the accused reported the matter to the Bansang
Police where they were invited. The police obtained her statement and her
daughter was taken to the hospital but did not know what happened at the
hospital. At some point after their return to the village, the brother of the
accused asked her as to whether her daughter had menstruated and she
answered in the negative. A few days thereafter, PW 2 menstruated on
account of which, she informed the police.
PW 3 was not cross-examined.
PW 4 -
BANDING JAWLA.
Sworn on the Kuran and spoke in Mandinka. He testified that he is the
father of P W 2 and lives in Kunting Village. That he is a farmer and the
husband of P W 3. He said that he knows PW 2, 3 and the accused person
all of whom hail from Kunting Village. He recalled that on 8 th February,
2010 when PW 3 met him in his house and narrated that it is PW 2 that
helps her in her domestic works. That one day PW 2 prior to cooking
checked and found that there were no fire woods to cook on account of
which she went to the bush to fetch fire wood. Upon gathering the fire wood
and in an attempt to tie it, the accused came from the direction of the rice
fields and raped her. On being informed by PW 3, he contacted the accused
brother in the person of Masanneh Darry in the Kombos on the phone and
informed him that his brother had raped his daughter. That Masanneh Darry
told him that he would call his brothers and discuss the issue with them.
That he urged him not to take the Lappa to the Alkalo.
A few days later, Masanneh Darry traveled to the Village and came to see
him with three people who met him with five others. They discussed the
issue but could not resolve it. That Masanneh Darry subsequently reported
them to the Alkalo called Bakebba Jawla who invited some community
elders and met with them to discuss the issue. At the said meeting, the
Alkalo informed them that only Allah could tell who was responsible and
that they were not in any position to determine the issue. On the next day,
the accused and his brother reported them to the Bansang Police where they
were invited. At the Police, they were questioned and statements were
obtained from them.

PW 4 stated that he however warned PW 2 to tell him the truth and save him
from embarrassment. That PW 3 showed him the lappa which he said was
with the police.
PW 4 testified further that PW 2 complained to him about her health and
that she had not menstruated but subsequently did so after about a month.
That she never received any treatment. Whilst at the police. PW 2 was
escorted to Bansang Hospital for a medical examination where she was told
that nothing was found. On a second examination, she was told that she was
pregnant.
Under cross-examination, he testified that his intensions were for the
accused to admit to the offence. That he only got to know about the rape
from his wife who was into it with PW 3.
PW 5 - INSPECTOR LAMIN CHAM.
Sworn on the Kuran and spoke in English. He testified that he is a Police
Officer and at the time of this incident, he was attached at the Bansang
Police Station as the station officer but currently posted at Farafeni Police
Station. He has been in active service for the last twenty six years. Whilst at
Bansang, he was responsible for the day to day running of the administrative
matters. He recalled that the report was lodged by the accused and upon the
completion of the investigations, he sent the case file with a
recommendation to his Officer Commanding. He recalled seeing all the
parties at the Bansang Police Station. The accused person’s complaint was
recorded in the diary and the other parties were invited to come who on
arrival narrated their stories which were also recorded. That PW 2 who
narrated that she was raped in the bush a month earlier was escorted to the
Hospital for an examination. He received reports and documents from
Bansang hospital which were tendered and admitted in evidence and marked
as follows:-
1. Scanning results dated May 11, 2010…………….EX. “C”.
2. Medical paper in the name of PW 2 and dated March 18, 2010
EX. “D”.

3. Continuation sheet dated May 12, 2010 ………….EX. “E”.
4. Undated medical report marked…………………...EX. “F”.
5. One step pregnancy test slip marked………………EX. “G”.
PW 5 testified further that he recognized the lappa said to have been used by
PW 2 along with a set of photographs which were admitted in evidence as
exhibits and marked as EXHIBITS “H” AND “J” TO “J3”
RESPECTIVELY.
Under cross-examination, PW 5 said that he knew of only one statement and
not three statements that were recorded from PW 2 but that copies of the
said statements were available. That the originals were in the custody of the
CID Office. The said statements were admitted in evidence as defence
exhibits and marked as EXHS “K” TO “K2” RESPECTIVELY.
At the close of the Prosecution’s case, the defence applied to be heard on a
no case submission. Briefs were exchanged and adopted on September 16,
2010.
In his submission on a no case to answer, Counsel for the accused relied on
the Practice Direction in the case of R. V. GALBRAITH (1981) 2 All ER
1060 which is the leading authority on the issue. From his arguments, I am
able to discern that even though he did not cite it, it is the only authority that
can be referred to and I shall therefore consider it as one to rely on. I shall
deliberately refrain from referring to the briefs filed by the respective
Counsels.
Before I consider the no case submission, I shall pause to look at the
evidence before me in order to determine whether or not to call the accused
person to enter his defence. The evidence adduced is as follows:-
1. The alleged offence of the rape of Aja Jawla by the accused was said
to have been committed in the bush on February 8, 2010.

2. By exhibit “E” dated the 12 th of May, 2010 she was said to have been
eight weeks pregnant. Going by this exhibit and on a logical
conclusion, since she was at that date only two months pregnant then
she could only have had sexual intercourse in March or thereabout and
not in February 8, 2010 as alleged. I say so on the grounds that from
February 8, 2010 to May 12, 2010 is about twelve weeks which falls
beyond the stipulated eight weeks.
3. Exhibit “D” dated March 18, 2010 states that she is possibly pregnant
and was asked to return in two weeks for another test to determine the
pregnancy.
4. Exhibit “C” dated March 11, 2010 states that she is under twenty
weeks pregnant. This is not in anyway conclusive as it could mean
from one week to the said twenty weeks.
5. In her witness statement (PW 2) dated the 11 th May, 2010 and marked
as exhibit “K2”, she stated that she had always menstruated up to the
10 th day of May, 2010 and had never missed any which her parents
had always been aware of. This statement contradicts her evidence-inchief,
the statements of her mother and father and the medical
evidence on her pregnancy.
6. In another witness statement of PW 2 dated the 18 th March, 2010 and
marked as exhibit “K ”, she stated that she had not since the date of
the alleged rape menstruated. Again this statement contradicts all other
statements making her rather difficult to be believed. I find her very
unreliable to be believed.
7. In another witness statement of PW 2 dated the 7 th April, 2010 and
marked as exhibit “K 1”, she stated that after the rape incident, she
had always menstruated. I do not which of her stories to believe since
they are all calculated stories making her a congenial liar.
Assuming without conceding that all these statements and the medical
evidence were true, they are of no moment unless otherwise they connect
the accused with the offence committed. That can only be done by way of
corroboration of some sort which is the law.

See the case of JAMES V. R from Jamaica (1970) 55 Cr App. R 299
wherein the Privy Counsel in a judgement on a charge of held thus:-
“at the medical evidence showing that the complainant had had sexual
intercourse at about a time consistent with her allegation was incapable
of affording corroboration of her evidence of the rape, because it did
not confirm anymore than an act of sexual intercourse”.
It is clear from this authority that despite the medical evidence having
confirmed that there was an act of sexual intercourse or in other words, there
was an act of carnal knowledge of the prosecutrix, this was insufficient for
purposes of corroboration. Extending the issue a little further, it can be said
that the slightest penetration will suffice and it is not necessary to prove that
the hymen was ruptured. It shall not be necessary to prove the completion of
the intercourse by an emission of seed, but the intercourse shall be deemed
to complete upon prove of penetration only. That prove had been established
by the medical certificate and I so believe it as being authentic and
conclusive prove of the carnal knowledge of the Prosecutrix. The matter
does not stop there unless otherwise there is evidence to connect the accused
person to the offence of rape.
It is pertinent at this stage to further look at the law on corroboration in our
jurisdiction to enable me determine whether the evidence of PW 2 has or
had in anyway been corroborated by the evidence of any of the witnesses.
To do so I shall first rely on Section 179 and 180 of the Evidence Act, 1994
which provides as follows:-
“Corroboration consists of independent evidence from which a
reasonable inference can be drawn which confirms and supports in
some material particular the evidence to be corroborated and connects
the relevant person with the offence, claim or defence.”
“180 (1) Unless otherwise provided in this Act or any other Act, a court
may, in any proceedings, act on the admitted evidence of a single
witness, or a single document properly proved”

(2) Without prejudice to the generality of subsection (1) a court shall
not, in the following cases act upon the uncorroborated evidence, except
in a criminal case upon an accused person’s own plea of guilty:-
cases of rape and other sexual offences against complainants;
claims against the estate of a deceased person;
cases of sexual misconduct in matrimonial causes;
cases of perjury; and
cases of exceeding speed limit under the Motor Traffic Act.
Having quoted as above, I now look at the evidence of the witnesses.
It is clear and indisputable from the evidence or testimonies of all the
witnesses that none has corroborated the evidence of the Prosecutrix in any
material particular. I say so on the grounds that none is independent in
nature and I can therefore reasonably infer that they do not confirm or
support in anyway the evidence of PW 2 thereby corroborating and
connecting the accused person herein with the offence with which he has
been charged.
I find as a fact that my contention is supported by the provisions of Section
179 of the Evidence Act 1994 and the provisions of 180 (1) and (2) of the
same Act.
I hold as a fact that on the authority of CHRISTIE (1914) AC 545 that the
evidence of the witnesses as numerated above are not capable of
constituting corroboration in law. None has originated from a source or
sources independent of the evidence of PW 2 that required corroboration
and I so hold. They have not shown by confirmation of any material
particular that the offence charged was committed and that it was committed
by the accused. In this regard, I find support of the above contention in the
case of BASKERVILLE (1916) 2 KB 658 AT 667 wherein LORD
READING CJ expressed the requirements in the following terms:-

“……evidence in corroboration must be independent testimony which
affects the accused by connecting or tending to connect him with the
crime. In other words, it must be evidence which implicates him, that is
which confirms in some material particular not only the evidence that a
crime has been committed, but also that the prisoner has committed it.
The test applicable to determine the nature and extent of the
corroboration is thus the same whether the case falls within the rule of
practice at common law or within that class of offences for which
corroboration is required by statute.”
It would be recalled from the cautionary and voluntary statements of the
accused person that he has denied the offence charged. It would have been
different had the accused confessed to some other person. This is supported
by the case of R V FRANCIS KUFI 1960 WNLR 1 wherein the accused
was charged with indecent assault on a girl of ten years of age. The accused
having admitted to the father of the girl, it was held that the admission of the
offence by the accused to the father of the girl was sufficient corroboration.
This case was referred to in IKO V STATE PER IGUH JSC (2003) 3
ACLR 76. See also R v Rice (1963) 1 QB 857 quoted in Iko v State
(supra) per Katsina-Alu JSC.
Similarly, in the case of THE QUEEN V. OBLASA (1962) 1 All N. L. R.
651, it was held that if a person makes a free and voluntary confession
which is direct and positive and is properly proved, he may be convicted on
the confession alone without any further evidence.
In the case of JAMES OBI ACHABUA V THE STATE (1976) 12 S. C.
63 the Supreme Court held that confession alone even without corroboration
can support a conviction so long as the court is satisfied of the truth.
In the light of the above and further to Section 180 (1) and (2), I find as a
fact that the evidence of PW 1 has not been sufficiently corroborated by any
of the witnesses and I so hold.
I now turn to the case of R. V. GALBRAITH (1981) 2 All ER 1060 Lord
Cane CJ said and I quote:-

“On a submission of no case to answer at the end of the prosecution
case, the trial Judge should stop the case and direct an acquittal if
there is no evidence that the crime alleged against the accused was
committed by him. However if there is some evidence but it is of
tenuous character (eg because of inherent weakness or vagueness or
because it is inconsistent with other evidence), it is the Judge’s duty,
on a submission of no case, to stop the case if he comes to the
conclusion that the prosecution evidence, taken at its highest, is
such that a jury properly directed could not properly convict on it;
but, where the prosecution evidence is such that its strength or
weakness depends on the view to be taken of a witness’s reliability
or on other matters which are generally speaking within the
province of the jury and where on one possible view of the facts
there is evidence on which a jury could properly come to the
conclusion that the accused is guilty, then the judge should allow
the matter to be tried by the jury.”
I am guided by the above dictum of Lord Cane CJ and in the premises I find
as a fact and hold as follows:-
1. There is absolutely no evidence that the crime alleged against the
accused was committed by him.
2. The prosecution evidence are of such a tenuous character in that they
are inherently weak and vague and by all standard of test I find them
inconsistent with other evidence.
3. I have come to the conclusion that the prosecution evidence, taken at
its highest, is such that I cannot and would not properly convict the
accused on it on the grounds that the evidence of PW 2, 3 and 4 are not
the least reliable.
4. There is no independent evidence before me from which I can
reasonably draw a reasonable inference which would confirm and
support in some material particular the evidence to be corroborated
and connects the accused person with the offence charged.

5. There is no independent testimony before me which affects the
accused person by connecting or tending to connect him with the
alleged crime of the rape of AJa Jawla.
6. Similarly, no evidence of any sort has been adduced by the
prosecution which implicates the accused person or confirms in some
material particular that a crime has been committed, but also that the
accused person has committed it.
In the premises therefore I hold that pursuant to Section 166 of the Criminal
Prosedure Code Cap 12 Vol 111 of the Laws of The Gambia, the
prosecution has not made out a case against the accused person sufficiently
to require him to make a defence. I therefore acquit and discharge him of the
charge accordingly. Further, I order that the accused be released from prison
custody forthwith.
………………………………………………
HON. JUSTICE L. A. M. S. JOBARTEH.
JUDGE.