HIGH COURT OF LESOTHO
by the Honourable Mr. Justice B.K. Molai on 14th December, 2001.
accused is summarily charged with the crime of murder, it being
alleged that during the month of September 1996, the exact date
unknown to the prosecutor, he unlawfully and intentionally killed
charge was put to him, the accused pleaded not guilty. Mr. Molefi,
who represents the accused in this trial, told the court that the
plea of "not guilty", tendered by the accused, was in
accordance with his instructions. The plea of not guilty was
perhaps, necessary to mention, at this stage, that the accused was
charged together with a certain Masilonyane 'Nyane. It is common
cause that the latter has since died. He was, therefore, not
available to plead to the charge when the trial commenced.
Accordingly the accused is the only person charged, in this case.
it is worth mentioning that the original charge, to which the accused
"In that upon or about the 12th day of October, 1996 and at or
near Lithabaneng in the district of Berea, the said accused did
unlawfully and intentionally kill Ntšiuoa 'Nyane."
before closing the crown case Miss Makoko, who represents the crown
in this trial, applied to amend the charge by deleting the words
"upon or about the 12th day of October" and substituting
therefor, the words "during the month of September". On
behalf of the accused, Mr. Molefi told the court that the defence did
not object to the amendment. Nor did he propose to alter the plea of
"not guilty" originally tendered by the accused person.
witnesses were called to testify in support of the crown case. No
witnesses were called to testify on behalf of the defence. However,
the accused himself gave evidence on oath, in his defence.
D/Tpr. Sojane, told the court that he was a member of the
Mounted Police Service, attached to the C.I.D. and stationed at T.Y.
police station, in the district of Berea. On 12th October 1996, he
received a certain information following which, he and a certain Tpr.
Putsoane proceeded to the village of Lithabaneng. On arrival at
Lithabaneng they introduced themselves to the Chief's representative,
whose name he (P.W.9) no longer remembered, presumably because the
Chief himself was not in. P.W.9 told the court that after he and Tpr.
Putsoane had introduced themselves and explained their mission to
him, the Chief's representative took them to a forest at some cliffs,
on the outskirt of the village, where they found a corpse which was
dressed in a greenish T. shirt, an off-white dress and a
cream-coloured panty. There was a pair of brown sandals next to the
evidence, P.W.9 told the court that, whilst they were at the scene,
he heard the Chief's representative saying: "these people say
they identify the corps by its clothes, as being that of Ntšiuoa
'Nyane" or words to that effect. As many people had already
gathered at the scene, P.W.9 did not notice the people referred to by
the chief's representative. Nor did he bother to find who those
significant to mention that neither the chief's representative nor
the people he allegedly referred to were called to testify as
witnesses, in this trial. What they are alleged to have said is,
therefore, of no assistance to the court.
went on to testify that in trying to remove the clothes from the
deceased, the flesh was going off with them. He was, therefore,
unable to undress the corpse and examine it for injuries. In the
circumstances, the corpse was carried to the village from where it
was transported, in a police vehicle, to the mortuary of
Teya-teyaneng government hospital without P.W.9 having observed any
injuries on it. According to him, P.W.9 took the brown pair of
sandals to the police station. He properly labelled and kept it in a
separate room from the exhibit-room at T.Y. police station. The
reason therefor, was because the exhibit-room was full. However,
anybody could have access to the separate room in which he had kept
the pair of sandals. In the circumstances, the pair of sandals had
since gone missing and could not be handed in as exhibit, in this
told the court that he personally did not attend the post-mortem
examination which was conducted on the corpse, at the mortuary of
T.Y. government hospital. A certain D/Tpr. Maloi did. However, before
D/Tpr. Maloi went to attend the post-mortem examination at the
mortuary, he (P.W.9) had explained to him what kind of corpse he
would find at the mortuary. It is, again, significant to mention that
D/Tpr. Maloi was not called to testify as a witness, in this trial.
testified that, in the course of his investigations, he contacted and
brought the accused to T.Y. police station. He confronted him with
Masilonyane 'Nyane who was already detained at the police station.
After he had cautioned them, the accused and Masilonyane gave him
in connection with a certain rosary. They then took him to the spot
where the corpse had been found, at the cliffs. He was in the company
of D/Inspector Sebele, D/Tpr. Ntela and Detective L/Sergeant Monyane.
When they searched the vicinity of the spot where the corpse had been
found, P.W.9 and his team of police officers, found a white rosary.
The rosary was lying amongst the bushes next to the spot where the
corpse had been found. According to him, P.W.9 took possession of the
rosary. It had since been in the police custody. He handed it in as
exh. "I" and part of his evidence, in this trial.
perhaps, necessary to mention that exh. "1" is not broken
in pieces. It is a rosary which is still in tact. The significance of
this is because P.W.9 was shown another white rosary which was,
however, broken in pieces. P.W.9 told the court that there was a time
when D/Tpr. Sebele showed him the broken rosary with the explanation
that it had been handed to him by Mantšiuoa 'Nyane, the mother
of the deceased in this case. He (P.W.9) himself knew nothing about
it. Again, D/Tpr. Sebele was not called to testify as a witness, in
this trial. He could not, therefore, confirm what P.W.9 said he had
told the court that from the place where exh. "1" had been
found, he and his team of police officers returned, with the accused
and Masilonyane, to the police station. Both the accused and
Masilonyane gave him explanation after he had duly cautioned them.
Following their explanation, P.W.9 gave the accused and Masilonyane a
charge of the murder
deceased, in this case. They were subsequently taken to the
magistrate court for remand. Under cross-examination P.W.9 conceded
that he had escorted the accused to the office of the magistrate
before whom he (accused) wished to make a confession. That confession
was, however, not used as evidence, in this trial. P.W.9
categorically denied the suggestion that whilst in police custody the
accused was assaulted or tortured, in any way.
worth noting, at this juncture, that by the agreement of both Miss
Makoko and Mr. Molefi, counsel for the crown and the defence,
respectively, a post-mortem examination report was handed in from the
bar, as exh. "A". According to exh. "A", at about
2:50 p.m on 17th October 1996 a medical doctor performed a
post-mortem examination on a dead body of a 15 years old female
African child at the mortuary of T.Y. government hospital. The body
was identified as being that of Ntšiuoa 'Nyane by D/Tpr.
Sojane (P.W.9). The examination revealed that the deceased's body was
decomposed and mummified beyond recognition. On that finding the
medical doctor formed the opinion that the cause of death could not
significant to observe that although in exh. "A" the
medical doctor wrote that P.W.9 had identified the dead body, before
him, the latter denied it. He (P.W.9) told the court that he
personally did not attend the postmortem examination. Instead
D/Tpr. Maloi did. For obvious reasons, neither the medical doctor nor
D/Tpr. Maloi could be cross-examined, on this issue. Assuming the
correctness of the evidence of P.W.9, it stands to
that the medical doctor could not be right in writing, as he did,
that the dead body was identified, before him, by P.W.9, as being
that of Ntšiuoa 'Nyane. In the circumstances, the possibility
that the dead body examined by the medical doctor, on 17th October
1996, might well have not been that of Ntšiuoa 'Nyane, the
deceased in this case, cannot be ruled out.
as it may, the court heard the evidence of P.W.6, 'Mantšiuoa
'Nyane, who testified that she lived in the village of Lithabaneng ha
Kepi, in the district of Berea. She was illiterate. She knew the
accused. The accused was the son of her brother who lived at
Likotopong, in the district of Maseru. She also knew the deceased
(Ntšiuoa 'Nyane) in her life time. The deceased, who was her
own daughter, was born in 1979.
to P.W.6, some time in 1996 her brother, the accused's father, who
was working in the mines of the Republic of South Africa (R.S.A.)
wrote her a letter in which he informed her that the accused was
about to graduate from the circumcision school at Likotopong. He,
therefore, instructed P.W.6 to proceed to Likotopong together, with
Masilonyane 'Nyane (his younger brother), presumably to make
preparations for the occasion of the accused's graduation from the
circumcision school. In compliance with the instructions of her
brother, the accused's father, P.W.6 did proceed to Likotopong. She
went there in the company of her daughter, Ntšiuoa 'Nyane, the
deceased in this case. Masilonyane, who also lived in the same
village as P.W.6 did, followed them at a later stage.
told the court that it was whilst she was at Likotopong and before
the accused's father himself could return home for the occasion of
the accused's graduation from the circumcision school that she and
other members of the family received the sad news that her brother,
the accused's father, had passed away at his place of work, in the
mines of the R.S.A. As a result of the sad news of the death of her
husband, the accused's mother was required to go to the mines in the
R.S.A. The family decided that P.W.6 should accompany her. She
(P.W.6) obliged. When P.W.6 and the accused's mother went to the
mines, in the R.S.A., Ntšiuoa 'Nyane (deceased) remained at
Likotopong at the special request of the latter who said she
(deceased) should assist in preparing food for the accused. The
corpse of the accused's father was brought home and buried at
Likotopong. After the funeral of the accused's father P.W.6 went back
to her home, at Lithabaneng ha Kepi. She, however, left the deceased
(Ntšiuoa) at Likotopong, again, at the request of the
accused's mother who claimed that, following the death of her
husband, she was still not feeling well. The deceased should,
therefore, remain to assist her. She promised to send her (deceased)
to Lithabaneng as soon as money was available.
to P.W.6, the accused's mother herself brought the deceased to
Lithabaneng ha Kepi after about three (3) months. They were in the
company of accused's brother by the name of Lithakong. On arrival at
P.W.6's home, the accused's mother reported that the deceased had
been made pregnant by some unnamed village men at Likotopong. P.W.6
then questioned the deceased about the name of the person who had
In the presence of the accused's mother, the deceased replied that it
was the accused who had made her pregnant. That was, however,
disputed by the accused's mother.
the accused's mother and Lithakong left P.W.6's home and returned to
Likotopong. According to her, P.W.6 then went to her chief, at
Lithabaneng, and requested him to assist by arranging a meeting
between herself and the accused's mother in connection with the
alleged pregnancy of the deceased by the accused. He (chief) did
assist by writing to the chief of Likotopong who subsequently sent
the accused and her mother to Lithabaneng ha Kepi. A family meeting
was held at the home of P.W.6's house, on the advice of her chief who
further advised that in the event of its failing to reach an
agreement the family meeting should bring the matter before him for
his decision. According to P.W.6 the family did hold a meeting which
was attended by herself, Mphaka Rasunyane, the accused's mother,
Masilonyane 'Nyane, the elder sister of Masilonyane's wife, the
deceased and the accused himself. When she was questioned about her
pregnancy the deceased told the family meeting that the person who
had made her pregnant was the accused. The accused also admitted that
he was, indeed, the person who had made the deceased pregnant. P.W.6
and the accused's mother then agreed that their children viz. the
deceased and the accused should get married to each other. However,
the accused's mother claimed to have no money, at the time. She could
not, therefore, return with the deceased to her home at Likotopong.
The accused himself promised that, as soon as money was available, he
would come to fetch the deceased. I
return to the evidence of P.W.6, later in the judgment.
'Mapaseka Seseli, testified that she was married at a place called
Tabola, in the district of Leribe, where she lived. However, in 1996
she was not yet married. She then lived at her maiden home viz
Lithabaneng ha Kepi, in the district of Berea. She knew the deceased,
Ntšiuoa 'Nyane, who was her personal friend.
recalled that at about 4:00p.m one day in 1996 - the exact date she
no longer remembered - the deceased came to see her at her maiden
home. She was wearing a pair of black jeans and a greenish T. shirt.
On arrival at her maiden home, the deceased assured P.W.2 that she
was not going to be long with her because she still had to go and
cook at her home. After they had chatted briefly, the deceased left.
As she was leaving the deceased asked P.W.2 to take her half-way and
the latter obliged. When they were at the village spring, P.W.2
noticed a person coming down towards them. That person was wearing a
"tiger" blanket and white gumboots. The deceased then told
P.W.2 not to leave her alone because the person who was coming
towards them was Sekese (accused), her boy friend. However, P.W.2 did
not wait with the deceased for the accused. She returned home. As she
was returning home, P.W.2 noticed the deceased running towards the
accused. That was the last time she saw the deceased alive.
evidence of P.W.3, Tsietsi Molefi, was that he was 62 years old. He
was literate and had passed std. 9 when he left school. He lived in
of Lithabaneng ha Kepi, in the district of Berea. He knew both the
accused and the deceased, in her life time. The deceased's mother
(P.W.6) was his next door neighbour. The accused had been introduced
to him by his (accused's) paternal uncle, Masilonyane 'Nyane, on 9th
September, 1996. According to P.W.3, on 10th September 1996 he was
outside his home when he saw the deceased and the accused walking
together, in the direction towards T.Y. town. The accused was wearing
a "tiger" blanket and white gumboots whilst the deceased
was wearing a full dress of which colour he no longer remembered.
old Matsietsi Seseli testified as P.W.4 and told the court that she
lived at Lithabaneng ha Kepi, in the district of Berea. She knew the
accused, P.W.2 and the deceased, in her life time. She had once seen
the accused at the home of P.W.6 who was his paternal aunt. P.W.2 was
the daughter of her own sister. The deceased's mother (P.W.6) was her
to P.W.4, during the forenoon of one day in September 1996 - the
exact date unknown - she was returning from T.Y. town when she passed
the accused standing with the deceased on the side of the tarred road
leading from the town to a place called ha 'Matjotjo. The deceased
was wearing a green T. shirt and a pair of trousers. The accused was
wearing a maroon hat and white gumboots. He was also holding a stick
in his hand. That was the last day P.W.4 saw the deceased alive.
further told the court that the spot, where she had seen the accused
and the deceased standing, was between the homes of P.W.3 and a
certain Thulo Masela. She believed P.W.3 had also seen the deceased
and the accused because he (P.W.3) was, at the time, sitting outside
his house which was within view, from the spot where the deceased and
the accused were standing.
evidence, P.W.4 did not know that, after she had seen her standing
with the accused, the deceased went missing from her home, in the
village. However, one day she was working in the fields when she
heard an alarm being raised. She herself did not go to where the
alarm was raised. However, P.W.4 later learned from some villagers
that the deceased had been found dead. She personally never saw the
dead body of the deceased.
Tšepang Phunkola, testified that he too lived at Lithabaneng
ha Kepi, in the district of Berea. He knew the deceased, in her life
time. The accused used to visit the home of one Masilonyane 'Nyane in
the village of Lithabaneng ha Kepi. He (P.W.1), therefore, knew, the
accused although he did not know his name i.e he only knew him
testimony, P.W.1 told the court that he was a builder by trade. One
day, in September 1996, he was building a house of one 'Malefaso in
the village of Lithabaneng ha Kepi. At about 1:00p.m, on the day in
question, he noticed the accused, the deceased and Masilonyane 'Nyane
passing next to where he was working. The deceased was wearing black
whilst the accused and Masilonyane 'Nyane were wearing multi coloured
blankets. After they had passed next to where he was working, P.W.1
did not observe where the deceased, the accused and Masilonyane went
to. However, he later learned, from P. W.6, that the deceased had
passed away. He then informed her (P.W.6) that the last time he saw
her, the deceased was passing next to where he had been working and
was in the company of the accused and Masilonyane.
old Tšele Masele testified as P.W.7 and told the court that he
lived at Lithabaneng ha Kepi, in the district of Berea. He knew the
deceased, in her life time. She lived with P.W.6, her mother, in the
same village as he did.
to P.W.7, there was, in his village a crime prevention unit of which
he was a member. The practice was to report the presence of every
visitor in the village to the crime prevention unit. He remembered
that some time in March 1996 Masilonyane 'Nyane brought the accused,
and reported his presence in the village, to him (P.W.7), as a member
of the crime prevention unit. He (P.W.7), therefore, knew the
went on to testify that one day in September 1996 - the exact date
unknown - he was cutting down a wattle tree in the village when
Masilonyane 'Nyane came and asked him for tobacco. It could have been
8:00 a.m when Masilonyane came to him. He did give Masilonyane the
tobacco which he smoked whilst they were chatting. Eventually
Masilonyane 14 left and he (P.W.7) continued with his work.
told the court that, at about 1:00p.m. on the day in question, he was
still at his work when he noticed a person walking fast towards the
village of Lithabaneng ha Kepi. He was from the direction of T.Y.
town. P.W.7 watched at that person closely and positively identified
him as the accused who was wearing a "tiger" blanket, white
gumboots and holding a timber stick (lebetlela) in his hand. The
accused went to P. W.6's home where he stood on the forecourt for a
while before going back. Thereafter, P.W.7 noticed the deceased
emerging from a passage leading to the village spring which was above
the home of P.W.2. The deceased then went to the accused who was
standing at a pole next to the passage. According to P.W.7, when he
saw her, the deceased was wearing black jeans, a yellowish dress with
some black spots and a green skipper. After the deceased had come to
him, the accused walked with her in the direction towards T.Y. town.
The two walked together until they were out of his view. That was the
last time P.W.7 saw the deceased alive.
accused and the deceased had gone out of P.W.7's view Masilonyane
'Nyane again came to where the latter was working. On arrival,
Masilonyane told P.W.7 that he had information that his visitor was
in the village and asked him (P.W.7) whether he had not seen that
visitor. When P.W.7 asked him whether he meant the accused,
Masilonyane replied in the affirmative. P.W.7 then replied that he
had seen the accused going with the deceased in the direction towards
T.Y. town. Masilonyane, who appeared
to be in
a hurry, then left saying the accused might have brought some
messages for him from his (accused's) home. He, therefore, wanted to
meet the accused before he could leave T.Y. town for his home at
Matsieng, in the district of Maseru. According to P.W.7, when he left
him Masilonyane first went to his house. Shortly, thereafter, he
returned from his house, passed where he (P.W.7) had been working and
took the direction towards the centre of T.Y. town.
5:00p.m. on the day in question, P.W.7 left the place where he had
been working and returned to his house for the night. However, at
about 9:30 p.m on that day, P.W.6 came to his house and reported that
the accused had allegedly been seen going with her daughter
(deceased) during the day. The accused was present at the home of
Masilonyane but the deceased was no where to be seen. Following that
report, P.W.7 immediately proceeded to the home of Masilonyane. He
was accompanied by P.W.6 herself and some of the members of the crime
prevention unit viz Nyane Seate, Setsibi Seseli and Thabiso Lephema.
When they approached the door of Masilonyane's house, the lights went
off in the house. Nonetheless, P.W.7 went and knocked at the door.
The lights were then put on in the house. Masilonyane opened the door
and came to where P.W.7 and his party were standing on the forecourt,
outside the house. P.W.7 introduced himself and his party to him. He
then asked Masilonyane whether he had found the accused and the
deceased after he had parted with him, during the day, saying he was
going to look for them, in town. Masilonyane took some time before he
could answer P.W.7's question. P.W.6 then said "Sekese (accused)
here" It was then that Masilonyane conceded that the accused
was, indeed, present and was sleeping with other boys in one of his
(Masilonyane's) huts. P.W.7 told Masilonyane to go and fetch the
accused from the hut in which he was sleeping so that he could
disclose the whereabouts of the deceased. Masilonyane did oblige.
Masilonyane returned with the accused, P.W.7 asked the latter the
whereabouts of the deceased. He denied knowledge of her whereabouts.
He further said he had, in fact, come to Lithabaneng to fetch the
deceased but had not been able to find her. When P.W.7 asked him
whether the person he had seen him going with, during the day, was
not the deceased, the accused angrily replied. "Bo-ntate, ntate
o shoele. Motho ea belaelang ka Ntšiuoa apalame le 'na ho ea
haeso Matsieng hosasa. Feela a hlokomele a khutla a se a saphele."
(Loosely translated: fathers, my father has passed away. A person who
suspects me about Ntšiuoa may go with me to my home at
Matsieng, tomorrow. He should, however, be careful that he might not
come back alive).
to him, P.W.7 pleaded with the accused to calm down. He did not calm
down. Instead, the accused wielded his stick and wanted to fight.
P.W.7 then left the accused alone and addressed himself to
Masilonyane. He asked Masilonyane whether he followed what his son
(accused) was saying. When Masilonyane replied in the affirmative,
P.W.7 asked him with whom he found the accused after he had hurriedly
parted with him (P.W.7) saying he wanted to meet him (accused) before
he could leave
and return to his home, at Matsieng. Masilonyane's response was that
when he came to the bus rank, in town, he noticed the accused coming
towards him alone i.e. the accused was not going with the deceased.
According to him, Masilonyane then returned to his home, at
Lithabaneng, with the accused.
told the court that thereafter he directed Masilonyane to report
himself, together with the accused, at the chief's place early in the
morning of the following day. He and members of his crime prevention
unit returned to his (P.W.7's) home. P. W.6 also went to her home. In
the morning of the following day, P.W.7 waited outside his home to
see if Masilonyane and the accused would go to the chiefs place, as
he had directed them to do on the previous night. To his observation
they did not do so. Eventually, P.W.7 had to go to Masilonyane's home
from where he personally escorted him and the accused to the Chief's
place. When they were asked the whereabouts of the deceased, the
accused said that question should be directed to Masilonyane who, in
turn, said it should be directed to the accused. Eventually the chief
wrote a letter which P.W.7 took, to T.Y. police station, together
with Masilonyane and the accused. After they had been questioned by
the police, Masilonyane and the accused were released to go home.
They both went to Masilonyane's home, in the village of Lithabaneng
to him, P.W.7 specifically told Masilonyane to see to it that his son
(accused) did not leave the village and return to his home, at
Matsieng, before the whereabouts of the deceased could be
and members of his crime prevention unit started mounting the search
for the whereabout of the deceased. They looked for her in the
village of Lithabaneng ha Kepi and its surroundings, but all in vain.
However, two days after he had told Masilonyane to see to it that the
accused did not leave the village and return to his home, at
Matsieng, until the whereabouts of the deceased had been established,
P.W.7 learned that Masilonyane and the accused had disappeared from
the village of Lithabaneng ha Kepi. He immediately proceeded to the
home of Masilonyane and enquired, from his wife, the whereabouts of
her husband. The reply he received was that he had gone to Matsieng,
together with the accused.
to him, P.W.7 and members of his crime prevention unit continued with
the search for the deceased. They eventually found her corpse. It was
placed in a cave at the cliffs on a mountain behind the village of
Lithabaneng ha Kepi. In his evidence, P.W.7 told the court that he
and his men had, during the search, already passed the spot where the
deceased's corpse was later found. It was definitely not there. In
any event, when it was found, P.W.7 observed that the corpse appeared
to have just been placed in the cave. The two breasts had been cut
off, as well as the head which had been skinned and left lying on the
side of the corpse. Although there was some flesh, from the knees
downwards, the rest of the body were just bones.
significant to observe that P.W.7 was the only witness who testified
that the deceased's breasts had been cut off. If P.W.7 were, indeed,
testifying to the truth, in that regard, one would have expected
P.W.9 and exh. "A" to have mentioned it. However, neither
P.W.9 nor exh. "A" did so.
as it may, P.W.7 went on to tell the court that he identified the
corpse as being that of the deceased by the clothes she had been
wearing when he last saw her still alive i.e on the day he saw her
going with the accused. According to P.W.7 those clothes had been
folded up in a bundle and placed next to a "lelothoane"
bush at the cliffs where the corpse was found. Again, that was denied
by P.W.9 who told the court that the deceased's corpse was still
wearing its clothes where it was found. However, he could not undress
and examine it for injuries because in trying to do so, the flesh
which had stuck to the clothes was removing with the clothes.
told the court that after he and members of his crime prevention unit
had found the corpse of the deceased, they raised an alarm. He
himself actually went to report the finding to the chief and the
police. As a result, many villagers, the chief and the police came to
the spot where the corpse of the deceased had been found. However,
Masilonyane 'Nyane was not amongst the people who had gathered there.
If he were there, P.W.7 would have noticed Masilonyane amongst those
to P.W.7, the bundle of the deceased's clothes was taken possession
of by the police. He was not in a position to know what the police
did with the clothes. The corpse itself was carried from the cave at
the cliffs to the village. From the village it was again taken, in a
police vehicle, to the mortuary of T.Y. government hospital. P.W.7
told the court that he was not present at the mortuary when the post
mortem examination was performed on the corpse of the deceased.
evidence, P.W.7 testified that after the corpse of the deceased had
been transported to the mortuary, he escorted Masilonyane to T.Y.
police station where he was detained. He confirmed the evidence of
P.W.9 that the police then went to the accused's home from where he
(accused) was brought, under arrest, to T.Y. police station.
It is to
be remembered that, in his evidence, P.W.7 told the court that about
two days after the disappearance of the deceased he learned that
Masilonyane and the accused had gone to the latter's home, at
Matsieng. How and when Masilonyane returned to his home village of
Lithabaneng ha Kepi from where P.W.7 escorted him to T.Y. police
station after the deceased's corpse had been transported to the
mortuary of T.Y. government hospital, was not clear from his (P.W.7)
old Moliehi Seboka testified as P.W.5 and told the court that P.W.6
was her own mother with whom she lived at Lithabaneng ha Kepi, in the
district of Berea. She knew the late Ntšiuoa 'Nyane (deceased)
who was her elder sister. She also knew the accused who was the son
of her maternal uncle and, therefore, her cousin. She knew the late
Masilonyane 'Nyane, in his life time. He was her maternal uncle.
testified that one morning in September 1996 - the exact date unknown
- she left the deceased at home and went to school. When she left her
at home, on that morning, the deceased was wearing a pair of black
jeans, a green bottle neck skipper, a brown dress, a pair of maroon
shoes and a
rosary. On her return from school, in the afternoon of the same day,
P.W.5 did not find the deceased at home. She was told by 'Mathuso,
her younger sister, that the deceased had left home in the company of
the accused. 'Mathuso was, however, not called as a witness to
testify, in this trial. Later on that day, P.W.5 learned from P.W.6,
her mother, that the deceased had disappeared from home and a search
was being carried out for her whereabouts.
to P.W.5, at about 6p.m on the day in question, she saw the accused
at Masilonyane's home which was not far from her parental home. In
fact, the sites of her parental home and that of Masilonyane were
separated just by a fence. P.W.5 told the court that she was not
seeing the accused for the first time on the evening of that day.
Some time back the accused and his mother had visited Lithabaneng ha
Kepi and were both staying at her own parental home. She had,
therefore, no difficulty in identifying the accused on the evening of
the day she saw him at the home of Masilonyane.
testimony, P.W.5 went on to tell the court that following her
disappearance from home and in the course of the search for her
whereabouts, she learned that the deceased had been found dead.
However, she herself was not present when the dead body of her elder
sister (deceased) was found. Even during her funeral which was held
at her home, P.W.5 was not afforded the opportunity to see the corpse
of the deceased, as it is the practice according to the Sesotho
custom, presumably because she (P.W.5) was still
young, at the time, or, as exh. "A" has indicted, the
corpse was decomposed and mummified beyond recognition.
further testified that one morning, after the deceased had been
buried, she was getting ready to go to school whilst her late
maternal uncle, Masilonyane, was dismantling a shack which had been
erected with corrugated iron sheets outside her parental home,
presumably on the occasion of the deceased's funeral service. As she
was brushing her teeth in front of her house P.W.5 noticed
Masilonyane throwing something behind the house. After doing so,
Masilonyane immediately peeped at P.W.5 who was still in front of the
house. That arose the suspicion of P.W.5.
Masilonyane had left her home and returned to his home, P.W.5 quickly
went behind the house. She wanted to find out what it was that
Masilonyane had thrown behind the house. When she looked around,
P.W.5 noticed a white rosary. It was broken and some of its beats
were scattered about. According to P.W.5, there were, besides the
broken rosary, other articles e.g. stones and pieces of wood. As it
had been raining on the previous night, the other articles were wet.
The broken rosary was, however, quite dry. P.W.5 assumed, therefore,
that the broken white rosary was the article that Masilonyane had
just thrown behind the house. On examining the rosary, P.W.5 noticed
that some of its beats had red stains which looked like blood or
rust. According to her, P.W.5 did not know that rosary. She, however,
took possession thereof and kept it in the house so that she could
show it to P.W.6 who was not at home, at the time. She had gone
removal of a mourning cloth.
told the court that in her family the deceased was the only child who
used a rosary. She, in fact, had two rosaries viz. the white one she
had been wearing on the day she disappeared from home and a brown one
which was still at home. The rest of the children, in the family,
were using the miraculous medals of the Blessed Virgin Mary. When
P.W.6 eventually returned home, P.W.5 explained to her about the
broken rosary which she handed to her. P.W.6 said nothing to P.W.5
when the latter handed the broken rosary to her. She merely took her
(P.W.5) to the police at T.Y. Police station, together with the
broken rosary. It was not clear from the evidence of P.W.5 if the
police, at T.Y. police station, asked her any questions about the
returning to her evidence, P.W.6 testified that one morning, in
September 1996, she left home and went to the mountain to get some
wild vegetables. It could have been two months after the accused had
promised to come and fetch the deceased. According to P.W.6, when she
returned home from the mountain, the deceased was not at home. She
(P.W.6) was informed by Masilonyane's son, called Tefo, that the
accused had come to fetch the deceased. P.W.6 was in the company of
another lady by the name of Anna when Tefo told her that the accused
had gone away with the deceased. In her evidence, P.W.6 told the
court that she was surprised that the accused had gone away with the
deceased who was not wearing clean clothes on the day in question.
When she (P.W.6) last saw her, in the
of that day, the deceased was wearing brown sandals, a pair of black
jeans, a green skipper with long sleeves, a white rosary and a
yellowish dress with black spots. The dress was muddy and, therefore,
dirty as the deceased had put it on whilst redecorating the house
with mud on the previous day.
way, P.W.6 told the court that, after Tefo had informed her that the
deceased had gone away with the accused, she decided to go and buy
tobacco at the shops in T.Y. town. She was still in the company of
Anna. On their way to town, P.W.6 asked P.W.1, who was working next
to the road, whether he had not seen the deceased. In reply P.W. 1
told her that he had seen the deceased and the accused going in the
direction towards T.Y. town. Thereafter, P.W.6 continued on her way
to the shops, in town, bought the tobacco and returned home. On her
way back home, she called at a certain house from where she noticed
Masilonyane and the accused walking together in the direction towards
T.Y. town. According to P.W.6, the accused was wearing a "tiger"
blanket, a brown balaclava hat, white gumboots and holding a
"lebetlela" (timber) stick. When she asked them where they
were going to, Masilonyane told P.W.6 that he was going to show the
accused where his wife was working, in town. He told P.W.6 to wait
for them where she was as they would soon return from town. According
to her P.W.6 did sit down and waited for the accused and Masilonyane
to return from town.
Masilonyane and the accused did return from town. When they arrived
where she had been waiting for them, Masilonyane first bought a scale
of beer from the house next to which she was seated and drank it.
P.W.6, the accused and Masilonyane walked together to the village of
Lithabaneng ha Kepi. They went to P.W.6's home where the accused
asked her something which had to do with the Sesotho custom. She no
longer remembered what it was. According to her, P.W.6 did not reply
to the accused's question. Instead, she asked him the whereabouts of
the deceased who, she learned, had left home with him, during the
day. The accused told P.W.6 that he had not even seen the deceased on
that day. In fact he had come to Lithabaneng ha Kepi to fetch her.
Masilonyane was also quick to tell P.W.6 to leave the accused alone
because, at the time she saw them going to town, the latter had just
arrived in the village.
heard the accused denying knowledge of the deceased's whereabouts,
P.W.6 left him and Masilonyane at her home and went to fetch Tefo. In
the presence of the accused and Masilonyane P.W.6 told Tefo that the
former was denying to have been with the deceased during that day. In
reply Tefo said if the accused was then denying it, he did not know
what to say. Tefo then left P.W.6's home and returned to his home.
P.W.6 told the accused that, since Tefo had told her that he had seen
him going away with the deceased, he (accused) and Tefo would have to
produce her (deceased). Thereafter, Masilonyane said to the accused:
"let us go because you know nothing about that child
(deceased)." They then left P.W.6's home and went to the home of
Masilonyane. It was then at dusk.
Tefo was not called to testify as a witness, in this trial. What he
was alleged to have said, was not of assistance to the court.
accused and Masilonyane had left her home, P.W.6 proceeded to the
home of P.W.2 who was a personal friend of the deceased. When she
asked her about the deceased, P.W.2 told P.W.6 what she had already
said before this court. P.W.6 then returned to Masilonyane whom she
found in his house in the company of his wife and their son, called
Khosi. When she reported to him that P.W.2 also confirmed that the
accused had been with the deceased, during the day, Masilonyane told
P.W.6 to stop causing troubles because that child (deceased) would
appear from Makau's place. However, when P.W.6 asked him what he
meant by that, Masilonyane kept quiet. Instead, it was Masilonyane's
wife who replied and said Masilonyane was correct in saying the
deceased would appear from Makau's place because there were many boys
there during the day. When P.W.6 asked her what she meant by that,
Masilonyane's wife replied that she said so because the deceased was
in the habit of going to the home of Makau. Masilonyane's son, Khosi,
also replied and said the boys who were at Makau's place during the
day were the ones who had taken away the deceased because they were
boys from the mountain, presumably from the circumcision school.
was, again, not called to testify as a witness, in this trial. What
he allegedly said was, therefore, of no assistance to the court.
to P.W.6, there were two people by the name of Makau, in the village.
From Masilonyane's place, she proceeded to the home of Makau, who was
her next door neighbour, and found him in, when she reported to him
what Masilonyane had said, Makau was surprised as to why Masilonyane
have said the deceased would appear from his home. He did not even
know that the deceased had gone missing from her home, on the day in
Makau's home, P.W.6 proceeded to the chief's place and reported the
disappearance of the deceased. The chief instructed her to go and
report the matter to members of the crime prevention unit, in the
village. She complied by going and reporting the disappearance of the
deceased to P.W.7 and some of the crime prevention unit members viz.
Setsibi Seseli and 'Nyane whose surname she did not know. The
evidence of P.W.6 corroborated, in material respects, that of P.W.7
as to what happened after she had reported the disappearance of the
deceased to him and the other members of the crime prevention unit.
evidence, P.W.6 told the court that whilst the search for the
whereabouts of the deceased was being carried out by members of the
crime prevention unit, she too was looking for her missing child
(deceased). She called at the homes of all the people she knew the
deceased used to visit in the village and even reported the matter to
the police, but all in vain. Eventually she learned that her daughter
(deceased) had been found dead at the cliffs of a mountain behind the
village of Lithabaneng ha Kepi. She herself was not present when the
dead body of the deceased was allegedly found at the cliffs. Even at
the mortuary she was prevented by the mortuary people from seeing the
dead body of the deceased. She was not allowed to see the corpse of
the deceased when it was brought home for the burial. According to
P.W.6 she was only told that some of the clothes, the deceased
wearing, on the day she last saw her alive, had been buried with her
whilst others were in the possession of the police at T.Y. police
station, presumably exh."1" and the sandals.
confirmed the evidence that one day after the deceased had been
buried she returned home, from where she had gone to remove a
mourning cloth, when P.W.5 handed to her a white broken rosary with
the explanation that she had taken it behind her house where
Masilonyane had thrown it away. P.W.6 told the court that she did not
know that rosary which definitely did not belong to her late
daughter, the deceased. She confirmed, however, that she subsequently
took the rosary to T.Y. police station, together with P.W.5. Her
reason, therefor, was merely to enable the police to interrogate
Masilonyane about the rosary which he had allegedly thrown behind her
evidence of P.W.8, 'Majulia Makau, was that she was 36 years old
married woman. She lived at Lithabaneng ha Kepi, in the district of
Berea. She knew the accused and P.W.6 who was her neighbour. She had
a daughter who was a friend of the deceased. Her daughter and the
deceased often visited each other. She, therefore, knew the deceased
very well, in her life time.
recalled that, one day in September 1996 at about 6:00p.m. she
learned from P. W.6 that the deceased had gone missing from her home.
She assured the court that she had not, on the day in question, seen
home or, for that matter, anywhere else. However, on the evening of
the day preceding the one on which P.W.6 reported the disappearance
of her daughter, P.W.8 had seen the deceased at her home. The
deceased, who was wearing a pair of black jeans and a green skipper,
was, as usual, visiting her daughter. The two were sitting and
chatting together, within her yard. That was the last time P.W.8 saw
the deceased alive.
went on to testify that one Saturday, in October 1996, she was
walking along the tarred public road that passed through her home
village when she heard an alarm being raised. As a result of the
alarm she proceeded to the cliffs behind the village. On arrival at
the cliffs, P.W.8 found a large crowd of people already gathered
around what appeared to be a human skeleton. She and many other
people were not allowed to go close to that skeleton. They crowded on
top of the rocks from where she (P.W.8) could only have a glance at
the skeleton. To her observation the skull was lying separate from
the main skeleton. A dress and a skipper were placed on the skeleton
just to cover it. i.e the skeleton was not wearing those clothes.
There was also a pair of brown sandals next to the skeleton.
According to her, P.W.8 identified the dress, the skipper and the
pair of sandals as the property of the deceased. She assumed,
therefore, that the human skeleton she saw at the cliffs behind her
home village was that of the deceased (Ntšiuoa).
told the court that on the Monday following the Saturday on which the
skeleton of the deceased had been found, at the cliffs behind her
village, she accompanied P.W.6 to T.Y. police station where the
required to report herself. Initially P.W.8 told the court that she
herself did not make a statement at the police station. Only P.W.6
did. However, when she was shown a document which had her signature
on it, P.W.8 conceded that the document was the statement she had
made at the police station, on the Monday in question.
defence the accused testified, from the witness box, as D.W.1 and
told the court that he lived at Likotopong ha Andreas, in the
district of Maseru. The deceased was the daughter of P.W.6 who was
his paternal aunt. He, therefore, knew the deceased, in her life
confirmed the evidence that, one day in 1996, he and his mother left
their home and went to the village of Lithabaneng ha Kepi at T.Y. in
the district of Berea. According to D.W. 1 they did so at the request
of his paternal uncle, Masilonyane. He denied, therefore, the
evidence of P.W.6 that it was at the request of the chief of
Lithabaneng ha Kepi. According to him, on arrival at Lithabaneng
D.W.1 and his mother went to the home of Masilonyane and not to the
home of P.W.6 as she (P.W.6) had claimed.
event D.W. 1 confirmed that, after he and his mother had come to
Lithabaneng, a family meeting was held. He and the deceased were
confronted about the pregnancy of the latter. D.W.1 confirmed that at
the meeting the deceased claimed to have been made pregnant by him.
He admitted that he was, indeed, the person responsible for the
pregnancy of the deceased whom he was prepared to take as a wife. The
meeting agreed that
deceased and D.W.1 should get married to each other. As D.W.1 mother
claimed to have no money, at the time, they could not return home
with the deceased. It was, however, agreed that D. W. 1 would come to
fetch the deceased when money was available.
It is to
be remembered, that, in the evidence of P.W.6, about three (3) months
after she had left the deceased at Likotopong and returned to
Lithabaneng ha Kepi, D.W.1's mother brought her home. The deceased
was then pregnant. D.W.1 mother reported to P.W.6 that her daughter
(deceased) had been made pregnant by some unnamed village men whilst
the deceased said it was the accused who was responsible for her
pregnancy. When D.W.1 mother returned home, there was, therefore,
unresolved dispute between her and P.W.6 about who had made the
deceased pregnant. According to her, P.W.6 had to ask for help from
her chief who intervened by writing a letter to the chief of
Likotopong requesting him to send his subjects viz. D.W.1 and his
mother back to Lithabaneng so that the unresolved dispute about the
pregnancy of the deceased could be resolved by the two families.
were Masilonyane who had sent for D.W.1's mother to return to
Lithabaneng, together with D.W.1, as he (D.W.1) wished the court to
believe, I find it incredible that P.W.6 could have deceived the
court by saying it was through the intervention of her chief and not
Masilonyane, who was admittedly her own brother, that D.W.1 mother
returned to Lithabaneng, together with D.W.1 himself, to have the
pregnancy of the deceased settled by a family meeting. I am inclined
to accept as the truth the evidence of P.W.6 and reject as false
D.W.1 version, on this point.
as it may, D.W.1 went on to tell the court that one day, in September
1996, he left his home, at Likotopong, and went to Lithabaneng ha
Kepi, intending to abduct the deceased. He arrived at Lithabaneng ha
Kepi at about 2:30p.m and went straight to the home of his paternal
uncle, Masilonyane. He found him in. He conceded that he was wearing
a "tiger" blanket and white gumboots on that day. From the
home of Masilonyane's place he could see that there were no people at
P.W.6's home which was nearby. The two homes were separated just by a
fence. After a while he and Masilonyane left for T.Y. town where the
latter wanted to show him the work place of his wife. On their way to
T.Y. town they did not meet anybody known to him (D.W.1). They
eventually reached the place where the wife of Masilonyane was
working, in town. They remained with her till she knocked off duty.
They then returned with her to Masilonyane's home in the village of
Lithabaneng. Again, on their way to Masilonyane's home they did not
meet anybody known to D.W.1.
told the court that, whilst he was with Masilonyane, his wife and
their children at their home, P.W.6 came and asked him the
whereabouts of the deceased. She said the deceased had allegedly been
seen with a young man whom she thought was him (D.W. 1). In reply
D.W. 1 told P.W.6 that he did not know the whereabouts of the
deceased. He had not seen the deceased
day and could not, therefore, have been the young man allegedly seen
with her. He had, in fact, come to fetch the deceased. Thereafter,
P.W.6 left Masilonyane's home. However, later on the night of the
same day, Masilonyane came and knocked at the door of the house in
which he (D.W. 1) and Tefo were sleeping. Masilonyane told him that
there were some people outside the house. They were in the company of
P.W.6. According to P.W.6 the deceased had disappeared from her home
after she had allegedly been seen going with him during the day. He
(D.W. 1) should, therefore, wake up and go with him (Masilonyane) to
those people. D.W.1 complied. On arrival where they were waiting
outside the house, one of those people asked Masilonyane whether he
(D.W.1) was the one. When Masilonyane replied in the affirmative,
those people started asking him (D.W.1) the whereabouts of the
deceased with whom he had allegedly been going, during the day. He
told them he had never been with the deceased during the day and did
not, therefore, know her whereabouts. Eventually those people and
P.W.6, who had been with them all the time, left Masilonyane's place.
Thereafter, D.W. 1 returned to the house in which he had been
significant to observe that the evidence of P.W.1 that he had seen
the deceased going in the company of D.W.1 was corroborated by that
of P.W.2, P.W.3, P.W.4 and P.W.7. Notwithstanding D.W.1 denial that
he was seen going in the company of the deceased, on the day in
question, the evidence is simply overwhelming against him. There is
not the slightest
my mind that D.W.1 was not being honest with the court in his denial
that he was seen going with the deceased, on the day in question. I
am prepared, therefore, to accept as the truth the evidence of P. W.
1 corroborated by P.W.2, P.W.3, P.W.4 and P.W.7 and reject as false
the uncorroborated version of D.W.1, on this point.
with his evidence, D.W.1 admitted that, in the morning of the
following day, he and Masilonyane were escorted to the chief's place.
He denied, however, that P.W.7 was the person who escorted them to
the Chief's place. At the chief's place, he and Masilonyane were
again asked the whereabouts of the deceased. When they denied
knowledge of it, Masilonyane was released to return to his home. He
(D.W.1) himself was escorted, by a group of men, to T.Y. police
station, where he was detained for the night.
Masilonyane were both suspects, at the time. I find it incredible
that only D. W. 1 could have been escorted to the police station. In
my view, the evidence of P.W.7 that he escorted both D.W.1 and
Masilonyane to the police station is more probable than D. W. 1 's
story that he alone was escorted to the police station.
as it may D. W. 1 told the court that on the following day he was
released on the ground that there was no charge to be preferred
against him. Upon his release, from T.Y. police station, D.W.1 went
to Masilonyane's home and reported that he was returning to his home
then offered to accompany him to Likotopong, so that he could explain
to his (D.W.1) mother, what disappointment he had received at
Lithabaneng ha Kepi. D.W.1 accordingly returned home, accompanied by
event, D. W. 1 told the court that about two (2) weeks after he had
returned home from Lithabaneng, he abducted, and got married to a
girl called Moliehi with whom they subsequently got two (2) children.
According to D.W.1, he was in love with the deceased at the same time
that he was in love with Moliehi. When he learned, presumably from
P.W.6, that the deceased had allegedly been going with a certain
young man on the day she went missing from her home, D.W.1 assumed
that the deceased had eloped with that young man. He, therefore,
decided to take Moliehi as his wife. However, after he and Moliehe
had got married, D.W.1 only heard over the radio that the deceased
had been found dead.
went on to testify that about one month after he had returned home,
in the company of Masilonyane, the police came to his home at
Likotopong. They did not find him. However, they left a message that
on his arrival at home he should report himself at Simione police
post. On his return home, later on the day on which the police had
been looking for him, D.W.1 did receive, from his mother, the
message. Early in the morning of the following day, he accordingly
went and reported himself at Simione police post. He was detained by
the police. Later on the same day, the police from T.Y. police
station arrived, in a police vehicle. They took him back to
police station, in the district of Berea.
arrival at T.Y. police station, D.W. 1 found Masilonyane already in
police detention. As it has been stated, earlier in the judgment, it
was not clear, from the evidence of D.W.1, when Masilonyane had
returned to his home, Lithabaneng, from Likotopong. In any event D.W.
1 told the court that he was confronted with Masilonyane in whose
presence he (D.W.1) was again asked the whereabouts of the deceased.
When he denied knowledge of the whereabouts of the deceased, the
police informed D.W.1 that Masilonyane had already told them that he
and him (D.W.1) had killed the deceased. He denied it. The police
then started beating him up with a black object he could not
describe. As they were beating him up, the police said he should
admit that he and Masilonyane had killed the deceased. To save his
skin, D.W.1 eventually admitted that he and Masilonyane had killed
the deceased. They were then asked whether they could go with the
police and point out the spot where they had killed the deceased.
According to him, D.W.1 told the police that he could not take the
police to that place because he did not know it. However, Masilonyane
said he could take the police to the place where he would point out
the spot. D.W.1 and Masilonyane were then locked up in the cell
together with some other people he (D.W. 1) did not know. On the
following day, Masilonyane did take the police and him (D.W.1) to
some cliffs where he pointed out the spot he said was the one at
which the deceased was killed. According to D.W.1, that was not in a
cave. It was an open place where there was grass. He observed that
the spot was fatty indicating that a dead body could have been left
there for some time.
cliffs D.W.1, Masilonyane and the police, returned to the police
station. Masilonyane and D.W.1 were told that they would be taken to
the Magistrate court, to repeat before the Magistrate the statements
they had already made to the police about the death of the deceased.
According to him, D. W. 1 was taken into the office of a lady
Magistrate before whom he made a statement. He did not know what had
happened to that statement.
significant to mention that, at this trial, no confession, allegedly
made by D.W. 1, was handed in as an exhibit. It can, therefore, be
assumed that the statement, D.W.1 allegedly made before the
magistrate, was found to amount to no confession.
as it may, D.W.1 told the court that from the office of the lady
Magistrate, he was taken into the court room from where another
Magistrate remanded him into custody. He was taken to prison but
later released on bail.
evidence, D.W.1 told the court that he had sustained weals on his
body, as a result of the assault which had been perpetrated on him by
the police, at T.Y. police station. He did not, however, report the
matter to any of the senior police officers because he did not know
who of the police officers he saw, at T.Y. police station, was senior
or junior. To him they all appeared to be the same. However, the
prison officer who received him at the prison, did ask him whether or
not he had any injuries on him. In reply D.W.1 told him that he had
been assaulted by T.Y. police officers and sustained injuries, as a
result. He was then told to remove the clothes he had
wearing so that the prison officer could see if he had, indeed,
injuries on him. According to him, D.W.1 did remove the clothes he
had been wearing and the prison officer saw the weals on his body.
Nonetheless, the prison officer accepted him into prison without
saying he (D.W.1) should first be sent to a doctor for medical
examination. Again, after he had been released on bail, D.W.1 did not
go to see a doctor for medical examination and treatment because his
injuries had completely healed.
say it is a well known practice in our prisons that before a person
who is remanded into custody can be received at the prison, the
prison officers satisfy themselves that such person has not sustained
injuries, as a result of unlawful assaults on him. If it is found
that the person has sustained injuries, as a result of unlawful
assault, perpetrated on him outside the prison, the prison officer
does not receive such person. Instead he requires that such person be
first sent to a doctor for medical examination. If it were true,
therefore, that when he came to prison , D.W.1 was found to have
sustained injuries, as a result of the assault perpetrated on him
outside the prison, the prison officer would have demanded that he
should be taken to a doctor for medical examination, before he could
accept him into prison.
own mouth D.W. 1 told the court that on arrival at the prison he was
examined and found to have sustained injuries by the prison officer
who received him. He was, however, received into prison without first
being sent to see a doctor for medical examination. I can think of no
good reasons why D.W.1 would have been given a treatment which was
normal practice if, indeed, he had injuries on him, on arrival at the
prison. In my view, D.W.1 was simply not being honest with the court
in his evidence that he had been assaulted and had sustained injuries
on him on arrival at the prison.
the evidence as a whole, I find that the deceased did go missing from
her home on the day he was seen going with the accused, in September
1996. There is, however, no conclusion evidence that the dead body,
on which the medical doctor conducted the post mortem examination
after it had been found at the cliffs, was that of the deceased. The
clothes by which the dead body was allegedly identified as that of
the deceased were not handed in as exhibits, in this trial. Neither
the chief nor the people he was allegedly heard saying they
identified the clothes as the property of the deceased were not
called to testified as witnesses, in this trial. P.W.8 who also told
the court that he identified the clothes as belonging to the deceased
and, therefore, assumed that the dead body, found at the cliffs, was
that of the deceased, testified that she had only a glance at them
and the dead body. In her evidence, she could not have a clear vision
as she was standing amongst a large crowd of people and they were all
not allowed to go close to where the dead body and the clothes were.
to exh. "A" the medical doctor performed a post-mortem
examination on a dead body which was mummified and decomposed beyond
recognition. Notwithstanding that, the dead body was identified as
being that of the deceased by P.W.9 who, however, gave evidence and
told the court,
that he never identified the dead body as being that of the deceased.
Indeed, he told the court that he did not even attend the post-mortem
examination. P.W.6, the deceased's own mother, who could perhaps,
have given some light as to the identification of the dead body as
being that of her own daughter, told the court that she was never, at
any time, allowed to see the dead body that had allegedly been found
at the cliffs, subsequently examined by the medical doctor at the
mortuary of T.Y. government hospital and buried at her home.
Even if I
were wrong and it is held that the dead body found at the cliffs and
subsequently examined by the medical doctor, at the mortuary, was
that of the deceased, there was only circumstantial evidence that the
accused was the person who had killed her simply because, on the day
she admittedly disappeared from her home, the deceased was seen
walking with the accused. From the fact that he had been seen in her
company, the only inference to be drawn could not, in my view, be
that the accused killed the deceased. The possibility that her death
might have come about by some other ways could not be ruled out.
However, the accused could have thought that, because the deceased
had died in a mysterious way, if he admitted to have been in her
company, on the day in question, it would be inferred that he was
responsible for her death.
large, I have serious doubts that, on the evidence adduced before
this court, it can safely be said it has been proved, beyond
reasonable doubt, that the accused committed the offence against
which he stands
In our law, the benefit of such doubt must always be given to the
accused person. I accordingly give the accused the benefit of my
doubt, find him not guilty and discharged.
Assessor agrees with this finding.
Crown; Miss Makoko
Defence; Mr. Molefi
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