By: Sidiq Asemota

The High Court in Banjul, presided over by Justice Abdulahi Mikailu has convicted and sentenced one Malang Sonko, to death after he was found guilty of hacking one Mbemba Jallow (his mother’s lover) to death with a cutlass on the 9th March, 2013, at Lamin Sanchaba Village in Kombo North District of the West Coast Region.

Delivering his judgment, the presiding judge recalled that the accused person was charged with the offence of murder, contrary to section 187 of the criminal code cap 10 Volume 111, laws of The Gambia. He explained that in proving its case, the prosecution had called four (4) witnesses and tendered four (4) exhibits, numbering (A-D).

The High Court judge further disclosed that the first prosecution witness (PW1) was a neighbour to the accused; PW2 was the biological mother of the convict; PW3, an eye witness to the alleged offence; whilst PW4 was a police officer involved in the investigation.

He narrated that according to PW2, the mother of the accused, on the 9th of March, 2013, she requested the deceased to fetched water for her, but shortly after he left to fetch the water, she heard the noise of someone breathing heavily. “As she came out of the house, she saw two gallons which the deceased had gone with to fetch water but as she moved closer she saw the deceased lying on the ground and the convict was chopping him with a cutlass. She said she immediately held the cutlass which was in the possession of the convict, and as a result she sustained injury on her finger.”

The judge maintained that PW2 said, she shouted for help, consequently a boy and some of her neighbours came to her aid. “The police subsequently came to the scene and took the deceased to Banjulinding Health Centre from where he was referred to Edward Small Teaching Hospital in Banjul. She also testified that it was the accused that inflicted injuries on the deceased that killed him”.

The judge adduced that under cross-examination, PW2 admitted that the deceased was her lover and had been coming to her house for over three years, whilst denying any knowledge of misunderstanding between the deceased and the convict and that she did not know what had transpired between the accused and the deceased before she came out from her house.

The judge further adduced that in the witnesses’ respective testimonies, PW1 and PW3 corroborated the evidence of PW2, adding that PW3 recounted that on the 9th of March, 2013 whilst she was in her sitting room, she heard some noise and when she came out, she saw the convict chasing the deceased and that the convict caught up with the deceased at the gate of the compound and hit him. “But the witness said she cannot tell what the convict used to hit the deceased, but had seen the accused hitting the deceased, whilst PW2 tried to prevail on him to stop”.

Similarly, the trial judge added, PW1 narrated that on the day in question, whilst going back home, he heard PW2 crying for help and as he moved closer, he saw the convict holding a cutlass and the deceased was lying on the ground.

Justice Mikailu said that on his part, PW4 explained to the court how he obtained voluntary and cautionary statements from the convict under the words of caution, adding that the two statements which are confessional in nature were admitted in evidence as exhibits ‘A’ and ‘B,’ respectively, without any objection from the defence.

“An autopsy report of post mortem examination conducted on the body of the deceased which PW4 attended was admitted in evidence as exhibit (C) without any objection from the defence”.

The High Court judge stated that PW4 also informed the court that he was the person that arrested the convict, adding that during the arrest, he recovered a cutlass from the convict which was tendered and admitted in evidence as exhibit (D), without any objection from the defence.

The presiding judge disclosed that in his defence, the convict testified that he lives in Lamin and knows the deceased and recounted that on the 9th March, 2013, he found the deceased having sex with his mother(PW2) and prior to that the convict said he was living at Siliti in the Southern province of Cassamance Region of the Republic of Senegal and used to visit his mother at Lamin.

The convict recalled that one day when he came to Lamin to seek help from PW2, he overheard her telling the deceased that he was stubborn and whether the deceased could help to make him to be a calm boy. He then stated that he furhter heard his mother saying whether the deceased was ready to employ any form of threats to threaten him.

The judged added; “On the day in question, PW2 requested the deceased to fetch water for her and that the deceased went for the first trip and brought the water and as the deceased entered the house, he smoked some cannabis. He told the court that as the deceased continued his errand, the convict approached him and axed him with exhibit (D) and that the deceased ran away screaming but he pursued him until PW2 intervened”.

The judge explained that the PW2 found him (convict) hitting the deceased with exhibit (D) and she consequently held the cutlass and when he drew the cutlass, PW2 sustained injury and the cutlass dropped on the ground. “That the deceased held his own waist and fell on the ground and he (the convict) picked the cutlass from the ground and left but was subsequently arrested by the police”.

At the close of the case, he added, parties waived their right to address the court and urged the court to proceed to judgment.

The judge then read the particulars of the charge which states; “Malang Sonko on the 9th March,2013 at Lamin Sanchaba Village in the West Coast Region, unlawfully caused the death of Mbemba Jallow, by striking him with a cutlass at the back of his neck and head knowing that death will be the probable consequence of such act”

The Judge pointed out that section 187 of the criminal code cap 10:01 Vol 111, laws of The Gambia 2009 under which the accused is charged provides; “A person who of malice aforethought causes the death of another person by an unlawful act or omission commits murder”.

Justice Mikailu stated that the ingredients of the offence of murder must be proven by the prosecution before a conviction could be secured and failure on the part of the prosecution to establish(a)that the death of a human being has actually taken place; (b)that such death was caused by the accused;(c)that the act was done with the intention to cause death; or (d)that the accused knew or had reason to know that death will be the probable consequence of his act; although the knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not or by wish that it may not be caused; would result in acquittal.

He adduced that the prosecution must lead evidence to prove not only that the death of the deceased was caused by the accused, but that he did so with requisite intention or knowledge as defined in section 190 of the CPC, adding that in discharging the burden placed on it by the law, the prosecution can prove the guilt of the accused by (A) confession of the accused which is considered as the best evidence in criminal trial, provided that such a confession is made voluntarily; or (B)evidence of eye witness of committing of the alleged crime; or (C) circumstantial evidence, so long as the evidence is not only cogent, complete and unequivocal, but compellingly leads to the convict and no one else as the murderer; or by combination of all or any of the two above.

From the evidence, Justice Mikailu stated, it is beyond dispute that Mbemba Jallow was a human being and has actually died and that PW2 (one of the eye witnesses to the committing of the alleged crime) testified that Mbemba Jallow was her boyfriend and has died and exhibit (C) is the autopsy report of post mortem examination conducted on the corpse of Mbemba Jallow.

He also stated that it is a notorious fact that post mortem examination is only conducted on corpse and not the body of the living, adding that the autopsy report has established that Mbemba Jallow has died.

Justice Mikailu also maintained that in the convict’s voluntary statement, which was admitted in evidence, the convict admitted killing the deceased and in addition PW4 testified that he attended the post mortem examination and saw the remains of the deceased.

The trial judge also revealed that the prosecution had presented two sets of evidence; one direct evidence of eye witnesses(PW2 and PW3), who saw the accused chopping the deceased with cutlass and two, extra judicial statement(exhibits A and B), which are confessional in nature, as well as exhibit (C), which attributed the cause of death to the injuries inflicted on the deceased by the accused.

He explained that in exhibit (B), which was tendered by the prosecution, the accused admitted killing the deceased with a cutlass, whilst in exhibit (A), the accused explained how he hacked the deceased with the said cutlass.

During the testimony of the convict, Justice Mikailu added, he (convict) confirmed how he axed or stabbed the deceased with a cutlass which in his(the judge) view that the evidence led by the prosecution on this point has remained unchallenged throughout the trial.

He disclosed that in the instant case, the crux of the convict defence of provocation is that a month before, he lynched the deceased, he overheard his mother(PW2), and the deceased discussing how to kill him, but the convict kept this grudge for about a month before he attacked and chopped the neck of the deceased with a cutlass exhibit (D).

Justice Mikailu further disclosed that from the evidence on record, the defence of provocation cannot avail the convict, because even if the alleged discussion overheard by the accused person were to be provocative, the period of one month was enough for the accused’s passion to cool down.

The trial judge also disclosed that the law is well settled that defence of provocation is only available to an convict person, who did the killing in the heat of passion before their time to cool down, adding that by the time he stabbed or chopped his victim with exhibit (D), he was acting with calculation and no longer in the heat of passion and therefore find no evidence of provocation or any other defence before the court and the convict is entitled to none.

He revealed that by chopping the head and neck of the deceased with exhibit (D), the convict intended to cause the death of the deceased or grievous harm to him and he indeed achieved that, adding that exhibit (C), which is a report of the pathologist who examined the body of the deceased indicates that the deceased sustained “deep cut wound” in the neck involving the blood vessels and muscle.

“In the absence of evidence of novus actus intervenies (new act intervening) the pathologist/chief consultant isolated all other possible natural causes and conclusively attributed the death of the deceased to Haemorrhage shock, due to the neck injury”.

Declaring that he is satisfied that the evidence led by the prosecution irresistibly makes the cause of death of the deceased referable to the serious injury caused to him by the convict, Justice Mikailu therefore hold that the convict caused the death of the deceased with malice aforethought and find him guilty of murder.