Magistrate Omar Jabang of Basse Magistrate's Court on Monday 5th July 2021, sentenced two people to five years imprisonment with hard labor for cattle theft.
The accused persons were Baduwa Conteh and Demba Kandeh. Both were standing trial on two counts of conspiracy to commit felony; to wit stealing contrary to section 368 of the Criminal Code Cap 10:01 Vol III Revised Laws of The Gambia, 2009 and Cattle Stealing contrary to section 255 of the aforesaid Act.
The accused persons were arraigned on the 14th of June, 2021. They all pleaded not guilty. The prosecution called six witnesses and tendered some exhibits, which were the two bulls. They were marked as Exhibits A and B respectively.
The accused persons were charged alongside three others namely, Foday Jallow, Abdoulie Batchilly and Omar Sowe. Later charges were dropped against those three on grounds that they were more of witnesses than accused persons.
According to magistrate Jabong, it was the evidence of PW4, Omar Sowe and DW1, Foday Jallow that Exhibits A and B were sold to the 1st accused by the 2nd accused. Jabang said these sales transactions happened in their presence. The 1st accused with PW4 and DW1 met the 2nd accused at Kundum with Exhibits A and B where the sale happened.
"So, from the evidence herein, I don't think the 1st and 2ndaccused conspired to steal Exhibits A and B. It was the 2nd accused who brought the bulls. The 1st accused was invited there by the 2nd accused to buy the bulls. The 2nd accused said he took along PW4 and DW1 to drive the bulls for him upon buying them. Therefore, since it takes two to conspire and in the absence of any evidence showing the same, I cannot hold the 1st and 2nd accused persons liable under count one," he said.
Magistrate Jabang said it must be appreciated that conspiracy is an inchoate offence, saying an accused person can be found wanting in relation to a substantive offence even whereas he or she has been found clean in relation to a conspiracy charge.
Count two, he said is in relation to cattle stealing, the particulars of offence in count two alleged that the duo herein stole two bulls valued atD80, 000 being the property of Natty Baldeh.
"So, for the accused persons herein to be found guilty on count two, the prosecution must prove beyond all reasonable doubts;
a) That the 1st and 2nd accused persons took the two bulls, Exhibits A and B belonging to PW3, Natty Baldeh.
b) That they took the said bulls without any claim of right and
c) Their intention at the time they took the said bulls was to permanently deprive PW3 of them.
"It is an undisputed evidence that Exhibits A and B belonged to PW3, Natty Baldeh. He testified before this court and identified the bulls. PW2, Sarjo Baldeh also testified and told the court that Exhibits A and B belonged to PW3. In fact, PW2 was the first person to identify Exhibits A and B at the Fatoto Police Station upon hearing news that thieves were caught with them. He sent the information to PW3 who later joined him at the said police station where the 1st accused was at the time detained. The 1st accused was arrested at SimotoTouba checkpoint by the Police Intervention Unit Officers on night vehicle checking. This happened after the arrest of PW1 and his tricycle carrying Exhibits A and B for the 1st accused Baduwa Conteh. This issue of being arrested at the said checkpoint and subsequently detained at Fatoto Police Station was confirmed by the 1st accused during his defence.
Jabang said it was the evidence of PW4, Omar Sowe and DW1, Foday Jallow that Exhibits A and B were sold to the 1st accused by the 2nd accused. He said this sales transaction happened in their presence.
"The 1st accused with PW4 and DW1 met the 2nd accused at Kundum with Exhibits A and B where the sale happened. It is clear from this point that it was the 2nd accused, Demba Kandeh who brought the bulls to the said location for sale to the 1st accused, Baduwa Conteh. However, the 2nd accused denied selling the bulls to the 1st accused during his cross-examination of DW1 and DW2, Baduwa Conteh. But during the testimonies of PW4 and DW1, they informed the court that at the point of sale, the 2nd accused requested to leave because he had an accident on his way. They informed the court that the 2nd accused still has those injuries from the said accident on his knee, at the back of his legs and on his fingers. They showed the court those injuries which they were asked to identify on the 2nd accused. The court saw the left knee, the back of the right leg and fingers of the 2nd accused with recent injury mark. When PW4 and DW1 testified about these facts, the 2nd accused never confronted them on the injuries. This has left this court with no choice but to admit the said facts as establishing the truth in them.
"PW4 testified that the 1st and 2nd accused negotiated the price of Exhibits A and B in his presence from Fifty-Eight Thousand Dalasi (D58, 000) to Thirty-Eight Thousand Dalasis (D38, 000). He said the 2nd accused insisted that the bulls will not go unless the 1st accused made some payments. This prompted the 1st accused to pay to the 2nd accused an amount of Twelve Thousand Dalasis (D12, 000). Then the 2nd accused left. This was equally the testimony of DW1, Foday Jallow.
"Therefore, since it is the evidence herein that the 2nd accused brought the bulls to Kundum and sold them to the 1st accused, I believe the offence of cattle stealing is proved against him. He had no lawful claim of right over the bulls. His act of selling them to the 1st accused showed clearly that he wanted to permanently deprive the owner, Natty Baldeh of them. If not for the arrest of the 2nd accused with the bulls, they would have vanished into the air. The 2nd accused is hereby found guilty and convicted as charged.
"A bull is a property and it is the evidence of PW4, DW1 and the 1st accused himself when he testified that he bought the bulls from the 2nd accused person. This by all means and standards meant the 1st accused received the bulls from the 2nd accused person. It is established herein that the bulls belonged to PW3, Natty Baldeh. The 2nd accused had no claim of right over them. The question which now calls for an answer is whether the 1st accused knew or had reason to believe that the bulls were stolen by the 2nd accused person. Knowledge of a crime had to do with the mind of man. It is trite that even the devil knows not the mind of man. Therefore, unless an accused person pleaded guilty to the commission of an offence, it is always onerous to prove his knowledge or intention of a crime. This is why reliance is made on circumstantial evidence because it is difficult to find direct evidence of same. The question now is whether there is any circumstantial evidence to show same that the 1st accused had knowledge or reason to believe that Exhibits A and B were stolen by the 2ndaccused? Circumstantial evidence does not directly establish the existence or non-existence of a fact but renders it
"It was the evidence of PW5, Foday Camara and PW6, Alieu B. Touray that when the 1st accused was being interrogated at the SimotoTouba Checkpoint about the bulls, he ran away. He was then chased by the officers, arrested and later put on cuff. When PW5 and PW6 testified about him taking to his heels, he never challenged them on the issue. It must be appreciated that the essence of cross examination is;
"Since the 1st accused never challenged PW5 and PW6 on their evidence that he ran away, I will consider their testimony to be true. The value of the bulls according to PW3, the owner is D80, 000. The 1st accused bought the same from the 2nd accused at a price of D38, 000. This was half the price of the two bulls put together. During cross-examination he tried to deny knowing the 2nd accused. It is also clear from the evidence herein, that the 2nd accused didn't issue any documents over the sale of the bulls to the 1st accused. He said he bought the bulls from him at Kundam on the road side. Asked if he bought them in any compound in Kundam, he said no. When the 1st accused was asked if the 2nd accused had any herd of cattle in Kundam area, he said no. He said he knew the 1st accused to have cattle in their village which is SinchangMansall. He said this village of the 2nd accused is near his village.
"Now since the 1st accused knew the 2nd accused to have cattle in their village which is near his village, why would he allow the sale transaction of Exhibits A and B to take place along the road side of Kundam? I take judicial notice of the fact that Kundam is far from Missira, the village of the 1st accused. Where the sale also happened is not a market place. As if this is not enough, this transaction was concluded without any receipt. Why didn't he, the 1st accused, insist the sale to happen before the livestock association agent and a receipt of sale issued? Why would he buy the two bulls half their price? Why would he even run after the police apprehended him and started to interrogate him about the source of the bulls? I believe the 1st accused knew Exhibits A and B were stolen. That's why he allowed this shady transaction and took to his heels when he was arrested by the police. If at all he knew Exhibits A and B were lawfully obtained by the 2nd accused and validly sold to him, he would have insisted for a receipt and not try to run when he was arrested and being interrogated by the police. He would not have anything to fear. I therefore hold as a fact that the 1st accused had knowledge of Exhibits A and B to be stolen properties. In essence I formed an opinion that the 1st accused can be rightly convicted on receiving stolen properties and I shall hold. He is hereby found guilty of receiving stolen property contrary to Section 297(1) of the Criminal Code and accordingly convicted on the same," he said.
"Any previous conviction," magistrate Jabang asked the prosecution.
Prosecutor sub-inspector E. Ceesay replied "To our records they are first time offenders. I am equally applying for the 2nd convict to be officially deported to Senegal after serving any punishment the court might impose on him. This is because he is having a pending matter in Senegal too."
1ST CONVICT, Ba Duwa Conteh appealed to magistrate Jabang to temper justice with mercy.
"As I am a first time offender, I am asking the court to temper justice with mercy. I am a father to young children. I am assuring the court that this will not happen again," he appealed.
2ND CONVICT, Demba Kanteh said: "I have nothing to ask for. I leave everything in the hands of Allah."
Magistrate Jabang said: "This is my judgment and parties are informed of their right to appeal against it. I have taken note of the fact that the convicts herein are first time offenders. The bulls were also recovered. The punishment for cattle stealing and receiving stolen properties is seven years imprisonment. The offence of cattle stealing is rampant in this community. Cattle rustlers are not in this act alone. They have collaborators which include businessmen and women. These people are the ones that buy their stolen properties thus empowering them. The fight against cattle rustlers cannot be confined to them alone and taken a light stance with the collaborators. They must all be punished in order to bring sanity and peace in the society."
"Cattle rustling had made this community to not sleep and be at peace with their livestock. In fact, the 2nd convict is not remorseful to this act. He was just smiling and acting as if nothing happened during the course of the trial against them. As I stated in other cases of this nature, my court will not be a safe haven for cattle rustlers and their collaborators. The courts are the last resort of the society. In as much as a convict deserves justice, there is a greater justice which must be served to the society as a whole. One of the ways of doing that justice is to hand down stiff punishment on cattle rustlers and their collaborators so that offenders will be put on alert that it is not going to be easy for them. I have the powers pursuant to Section 29(2) of the Criminal Code to impose a lesser sentence on the convicts instead of the whole seven years jail term.
"Therefore, in light of the forgoing, the convicts are sentenced in the following manner;
1) The 1st Convict, Baduwa Conteh is sentenced to five years imprisonment with hard labour on receiving stolen properties contrary to Section 297 of the Criminal Code.
2) The 2nd convict, DembaKandeh is sentenced to five years imprisonment with hard labour. In the event the 2nd Convict finished his imprisonment term, he shall be deported.
"I order that Exhibits A and B be returned to their owner after the expiration of the appeal period. This is my sentence and parties are informed of their right to appeal against it," Magistrate Jabang said.