IN THE HIGH COURT OF THE GAMBIA HOLDEN AT BANJUL

IN THE HIGH COURT OF THE GAMBIA HOLDEN AT BANJULON THE 12 TH DAY OF JULY 2010 BEFORETHE HONOURABLE JUSTICE J.E IKPALA, HIGH COURT JUDGECRIMINAL CASE. NO. HC/111/09/CR/016/AOBETWEENTHE STATEVS1. LANDING MBOOB2. MANSOUR MANNEHAccused Persons:1 st Accused – Present2 nd Accused - PresentAppearances:R. N. Chenge, DPP for StateJUDGMENTOn the 15-10-2009 the accused persons were arraigned on a two –Count – Charge Contrary to S.121 of the Criminal Code (1 st Accusedin Court I) and Contrary to S.121 read together with S.23( c ) of theCriminal Code (2 nd Accused in Court II) and they pleaded not guilty tothe charge.To prove his case the Prosecution called five witnesses tenderingExhibits A, B and C in support of his case.1

In their defence, the 1 st accused testified as DW1 and called no otherwitness. However, the 2 nd Accused testified as DW2 and called oneother as DW3.On the 11-3-2010 Counsel for the accused announced his intentionnot to file final address but the Prosecution indicated his desire to fileone. The Prosecution asked for 14 days to do so. The Prosecutionwho could not filed the said brief, as at the 8 th June 2010 resiled onhis plan to file address and now urge the Court to proceed toJudgment.The case of the Prosecution can be summarised as follows: At theearly hours between 2:00Am and 3:00Am of 21-12-2007 theProsecutrix Fatou Sonko PW3 who had enjoyed the Tobaski festivitythe previous day was returning home escorted by three young mennamely Abdoulie Bojang, Janneh Cham and Yaya Cham when theymet the 1 st Accused who offered to lead the Prosecutrix safely homeand relieved the Youngmen of the trouble. As they left, the 1 stAccused began commanded the Prosecutrix to undress and whileargument ensured, the 2 nd Accused appeared, and giving helpinghand to the 1 st Accused in undressing the girl dragging her to a safeopen field close to the Cemetery where the 1 st Accused raped her,while the 2 nd Accuse took custody of her clothes. The Prosecutrixsaid she felt pain in her Virgina and at the end of the exercise whichlasted between 10 – 20 minutes, her clothes were thrown at her2

while the accused persons left her behind to find her way home. Athome she reported to her mother who in turn reported to her fatherPW2. PW2 then took PW3 to PW1 Dr. Bekai Secka Camara forexamination and a Medical Report Exhibit ‘A’ was produced. ThePW2 assisted by the father of the 2 nd Accused was able to get at the1 st Accused after which a report was lodged against the accusedpersons at the Bakoteh Police Station and their Statements taken. 1 stAccused Statement is Exhibit ‘B’ while the 2 nd Accused Statement isExhibit ‘C’.In his defense as per the testimony of the 1 st Accused in Court on the9 th February 2010 as DW1 the Accused made a general denial whichis in contrast with his Statement to the Police which he identified byhis signature. He said on the 21-12-2007, a Tobaski day he sufferedtoothache and was home at Sukuta. Between 10:00Pm and 11:00Pmhe went to pharmacy to buy drug and met DW2 and DW3 husbandand wife going home. After buying the drugs he went back home.On the 25-12-2007 he was arrested by the Police who never told himwhat he did. He denied word for word the testimony of PW3apparently read to him by his Counsel.On his part the 2 nd Accused’s evidence on oath followed the patternof the 1 st Accused testimony i.e. a general denial of the Prosecutrix’sevidence read over to him by Counsel. He admitted knowing the 1 stAccused but denied knowing the Prosecutrix or assisting the 1 st3

Accused dragged the Prosecutrix to the Football Field or undressedher for the 1 st Accused to commit the rape. He said he and his wifeDW3 left for party at 9:00Pm and had nothing to do with PW3. Hisevidence is supported by that of DW3 his wife. As said earlier at theend both Counsel said they are relying on the evidence of theirclients and urge me to proceed to judgment.In order to secure conviction, the Prosecution must prove beyondreasonable doubt the following ingredient of the charge.i. That the 1 st Accused had canal knowledge of theProsecutrix, PW3.ii. That the 1 st Accused did so without her consent, orconsent obtained by duress.iii. That the 2 nd Accused aided and abated or procure thecommission of the offence by the 1 st Accused.It is significant to note that by S.23( c) of the Criminal Code onewho aids or abets the commission of an offence by another is aprincipal offender of the same status with the main offender. For thepurpose of appreciation of the case of the Prosecution as proved, theissues for determination are caption as follows:-4

1. Did the 1 st Accused have carnal knowledge of theProsecutrix.2. Did the 2 nd Accused aided or abated the 1 st Accused todoing that.3. Did the Prosecutrix (PW3) consented to the 1 st Accused’shaving carnal knowledge of her.i) Issue 1:The law is trite that carnal knowledge or sexual intercourse isdeemed complete upon proof of penetration of the penis into thevagina.R V STATE(1891) 2 Q. B. 149IKO VSTATE(2003) 3 ACLR. 49 at 73.PW3 said she was forcefully undressed by the Accused persons anddragged to the open football field where the 1 st Accused forcefullyhad sex with her while closing her mouth with his hand and the 2 ndAccused held her clothes watching the 1 st Accuse raped her. PW15

Doctor Bekai Secka Camara who examined the Prosecutrix produceda Medical Report Exhibit ‘A’ which gave a description of injury seenthus: “Small tear seen on the introitussuperiorly Hymen not in tact”.Asked under cross-examination whether only rape can produce thetear of introitus described in the report the doctor has this to say:“Probability that the victim had beenraped was high in my opinion takingother factors into consideration”.The 1 st accused’s Statement to the Police was admitted withoutobjection as Exhibit ‘B’, and he identified same by his signature.Contrary to his evidence on oath he stated in Exhibit ‘B’ amongstother things.“It happens on Friday the 21 st -12-2007 at Sukuta in the earlyhours around 04:00 hours whilst I was from a friend and I metwith this girl on the Highway and I asked her name after Idiscussed briefly to have sexual intercourse with her she toldme that she has not experience that and that she lives atKalifo’s compound. Through her words I was able to convinceher to my house where I tried to have carnal knowledge of herbut she insisted and I told her to leave and as I was conveyingher we met my friend Mansour Manneh whom I explained the6

condition of the girl and he Mansour told me the girl was lieingand I and Mansour jointly forced the girl to the football fieldwhere I myself get on to the girl and have sexual intercoursewith her without her consent in the presence of Mansour but hedid not participate to fuck the girl”.Although the 2 nd Accused in his evidence on oath deny knowledge ofthe girl or the incident, he identified his Statement Exhibit ‘C’tendered without objection. There in Exhibit ‘C’ the 2 nd Accusedstated thus:“This happen on Tobaski day Thursday the 20-12-2007 atSukuta in the early hours which falls on Friday 21-12-2007 at04:00hrs I was from a friend heading home and I met LandingMboob with the said girl standing at a junction but I don’t knowthe name of the girl and Landing told me that he met threeboys fucking the girl and he drove them away, then I told himto undress the girl hence he rescued her from the boys, thereLanding started telling me his few words which I don’t want tohear and I left them standing and proceeded home”.Although the 2 nd Accused denied ever meeting the 1 st Accused andthe Prosecutrix together in his evidence on oath in Exhibit ‘C’ underhis own hand he muted the idea of undressing forcefully of theProsecutrix to the 1 st Accused person. Also the 2 nd Accused gave7

helping hands to the 1 st Accused. I believed the evidence of the PW3which is materially conformed by the Statement of the Accusedpersons, made a few days after the incident. I reject the evidenceon oath by the accused persons made two years later on the 9 th -2-2010 as afterthought and blatant falsehood. I hold that the combineeffect of Exhibits A, B and C and the testimonies of PW1 and PW3establish issue (1) that the 1 st Accused forcefully had CarnalKnowledge of the Prosecutrix.(ii)Issue 2S.23( c) of the Criminal Code provided thus:“Where an offence is committed, each of the following persons’is deemed to have taken part in committing the offence and tobe guilty of the offence, and may be charged eith actuallycommitting it, that is to say:-( c) every person who aids or abets another person incommitting the offence;(d)any person who counsels or Procures any otherperson to commit the offence”.According to OSBORN’S Concise Law Dictionary 10 th Edn. at page 24“aid and abet – denotes Secondary participation in the Commission of8

a Criminal Offence. The words tend to be used together. To aid is toassist, help, or give support in the Commission of a Crime. To abet isto aid, instigate or encourage.PW3 in her evidence said that the 2 nd Accused assisted the 1 stAccused to drag her into footbaal field and held her clothes while the1 st Accused raped her. Furthermore, she said it was the 2 nd Accusedwho told the 1 st Accused that she lied when she told the 1 st Accusedthat she has not had sex experience.In Exhibit ‘B’ Statement of the 1 st Accused person, he said he and the2 nd Accused jointly forced the girl to the football field where he hadsex with her in the presence of the 2 nd Accused person. In his ownStatement Exhibit ‘C’ the 2 nd Accused said he asked the 1 st Accusedto undress the girl because he rescued her from the boys assaultingher. To PW3 and 1 st Accused, the 2 nd Accused aided the commissionof the offence but for the 2 nd Accused himself as per his Statement inExhibit ‘C’ he abeted, that is instigated or encouraged when he askedthe 2 nd Accused to undress PW3. Which ever way, aiding andabeting is central to the charge against the 2 nd Accused as being aPrincipal Offender with the 1 st Accused. I resolve issue 2 in thepositive, that is to say the 2 nd Accused abeted the commission of theoffence, and so he is a principal offender as 1 st Accused.iii) Issue 39

The unchallenged evidence of the age of the girl given by PW4Babucarr Sonko of Abuko and biological father of PW3 is 15yrs. PW3said she refused the sexual demand made by the 1 st Accused. The1 st Accused confirmed this and obliged the PW3 and only resiled onhis position when the 2 nd Accused came into the scene to urge himon. The forcefully taking PW3 into the football field by the two menin that hour of dawn negative any shred of consent, which I find non.The Prosecutrix is a girl under the age of 16yrs hence S.127(1) ofthe Criminal Code becomes applicable. I am not unmindful of thespecial defence offered the accused under the Proviso to this Section.I will only add that, in the circumstance of this case, it does not availthe accused persons. I therefore resolve this issue in the affirmative,that is to say the Prosecutrix did not consent to the 1 st Accusedhaving carnal knowledge of her.Finally, I find and hold that the Prosecution has proved the guilt ofthe two Accused persons beyond reasonable doubt.The 1 st Accused is found guilty of rape Contrary to S.121 of theCriminal Code while the 2 nd Accused is found guilty of abeting rapeContrary to S.121 of the Criminal Code.ALLOCUTUS:10

1 st Accuse:- I am the only son of my family and they aredeceased I pray for leniency.2 nd Accuse:- I am married with 2 children and a breadwinner.Prosecution:No record of previous conviction but take intoconsideration the rampant nature of this offencecommited on a minor.Court:I have listened to the plea of mercy by the accusedpersons and the remark by the Prosecution on therampant nature of the offence I have stated beforein this Court and in the case The State v DavidsonJones decided on the 1-6-2010 that I have no placein my heart for rapist. Rape is man inhumanity toman. It is wicked and traumatise permanently.These Accused persons are no exception, as I haveno pity for them.11

Sentence:1 st Accused:- You are sentence to 14yrs imprisonment.2 nd Accused:- You are sentence to 14yrs imprisonment.You have your right to Appeal.Dated this 12 th July 2010.J. E. IkpalaJUDGE12/7/201012