By Sainabou Sambou
The Kanifing Magistrate Court presided over by Magistrate MS Jallow on Thursday, 12th August, 2021 Sentenced Kalipha Barrow to pay a fine of D70,000 and as well compensate his victim (name withheld) with the sum of D200,000 in default of that to serve 15 and 7 years imprisonment respectively.
The accused, Kalipha Barrow was charged with the offence of rape contrary to section 3 (F) (11)-(111) of the Sexual Offences Act, 2013.
Reading her judment, Magistrate Jallow read that the first prosecution’s witness (name withheld) stated that she was instructed by her husband to attend the 7th day charity of his friend’s sister in Foni which she did and during that time he met the accused who was introduced to her by the deceased’s sister and upon their way from Foni, the accused, requested for her number which she gave and since then they kept in touch.
The Magistrate proceeded that, PW1 said accused kept sending her message through Africell number from WhatsApp and these were mainly jokes she said accused after the demise of her father sent her some charity to take out for her husband which she forwarded to her husband.
After the accused instructed her to take out some other charity which she didn’t take out the accused told her that if they are given out her husband will be successful, then his relatives would manipulate him into a second wife which will lead to his sickness and this was scary so she (complainant) asked accused if he could help her with the situation. And during the period she wasn’t in good terms with her husband so accused would call to tell her that he was in touch with her husband who told him that he and his family don’t like her.
On her situation, the accused told her that he can take her to her husband’s marabout called Alieu who he later said prescribed some charity for her and charged her to pay D2000.
Complainant was given medicines and how to use it was explained to her by the accused (to wash (bath) with it at the beachside). This she said she did with the company of the accused at around 5pm. “She said the accused had the medicines in his bag and when they reached the beach accused took out two bottles one was to be washed (bath) with and the other was for drinking.”
The Magistrate continued that “PW1 said she washed with one but when she drank the other one she felt abnormal then shouted and asked accused what he gave her but accused held her hand and asked what would she tell people if she was seen. She said the last thing she told accused was that he did not give her medicine.”
“PW1 said the next thing was to see herself naked the next day early in the morning on accused person’s bed. She said she then asked if he (accused) wanted to end her marriage and accused told her that even if her husband divorce her he (accused) would marry her.”
In addition to that, “PW1 said it was then 4 years of which she didn’t have sex so from her feelings of body pains she knew that the accused had sex with her as sperm was also on her body.”
There were exchanged telephone calls and voice messages between the complainant and accused in which during that communication accused instructed “her not to tell her husband and Dodou and that he can take him to his friend who works at a pharmacy to abort the pregnancy if there was any.”
However, “the info in the Iphone was transferred to a flash drive which was admitted in evidence. A medical certificate dated the 17th August, 2020, cautionary statement dated 14th August 2020, A voluntary statement dated 18th August 2020 and a bottle with a blue cover were admitted and marked as exhibits 2, 3, 4 & 5 respectively. An investigation for report was also admitted and marked exhibit 6.”
However, the accused Kalipha Barrow stated that “PW1 went to him at some minutes to 7pm but he wasn’t there so PW1 waited at a nearby shop until 5 minutes to 7pm when he reached. He then told PW1 that it was late considering the curfew but PW1 assured him that it wasn’t a problem as she has spoken to her mum that she went to her sister in-law who brought in some goods.
“DW1 said he accompanied her to wash with the medicines after which they walked together to his house. He said PW1 did not drink anything then.”
The Magistrate read in his judgment that the voice messages contained in exhibit 1 were played for accused under cross examination and he admitted it to be his voice.
In his mitigation plea, the convict begged the court to have mercy on him saying he is the breadwinner of his family.
Handing over her judgment on him, Magistrate MS Jallow said “having heard and considered convict’s plea in mitigation and having put thegravity of the offence into great consideration and Section 4 of the Sexual Offences Act omitting the punishment for the circumstances disclosed by the evidence. I invoke Section 29(3) of the Criminal Code which reads: A person liable to imprisonment for an offence against the code or against any other law may be sentenced to pay a fine in addition to or instead of imprisonment and sentence convict to a fine of D70,000 in default to serve 15 years imprisonment and also order him to compensate his victim with the sum of D200,000 in default to serve 7 years imprisonment even though there is no amount of money that restores complaint to her previous situation/position.”
