CRI/T/14/84

IN THE
HIGH COURT OF LESOTHO

In the
matter of :

REX

v

KHOTHATSO
KHOELE

JUDGMENT

Delivered
by the Hon. Acting Mr. Justice J.L. Kheola on the 4th day of
February, 1983.

The
accused before me, Khothatso Khoele, is char­ged with the murder
of Leseo Mosamo (hereinafter called the deceased) on the
16th day of
October, 1983 and at or near Matlatseng in the district of Mafeteng.
The ac­cused pleaded not guilty.

When the
trial started, the defence counsel for­mally admitted the
post-mortem examination report which showed the cause of
death as
brain damage following head injury and that there was no fracture of
the skull; there was a small extra and subdural haematoma
left; large
in-tracerabral haematoma with destruction of the left occi­pital
lobe of the brain; bleeding from the right ear
and haematoma of the
scalp. The deposition at the prepara­tory examination of Trooper
Seimane (P.W.5) was also for­mally
admitted as evidence before
this Court. His evide­nce was te the effect that the accused gave
him the tim­ber stick before
Court (Exh. 1) and that one Motlatsi
Se-hloho gave him the sword before Court(Exh. 2). He showed the sword
to accused who gave
an explanation.

The Crown
called three witnesses whose evidence may be summarized as follows :

The three
witnesses and the accused were members of a group of men from
Ramoeletsi village who attended a feast preceding the taking
of
ini­tiates to a circumcision on school. The feast was held in

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in
Rabeleng village on the 15th October, 1983. Following the usual
practice in rituals of this kind. There was a play with sticks

between Ramoeletsi's group on the one hand and Rabeleng's group on
the other. Unfortunately the play soon culminated into an actual

fight and all Rabeleng villagers including women joined in the fight.
Six of Ra-moe]etsi's group were seriously injured while the
rest
we­re chased out of the village.

On the
16th October, 1983, the initiates were tak­en to the mountain
where a circumcision school hut had to be built. The initiates
were
taken to the mountain by the Rabeleng's group. While they were still
buiding the hut the Ramoelets's group arrived intending
to come and
as­sist in the building of the hut but they were suddenly
attacked by members of the other group. A fierce fight
ensued and one
Mafa of Ramoeletsi's group was hit with a stone on the leg and fell
down. One Machobane of Rabele­ng' s group
rushed at the prostrate
Mafa and tried to hit him with a sword. At that time P.W.1 was
standing near Mafa and he warded off the
blow with a stick and the
sword got stuck into the stick. Machobane lost grip of the sword and
it fell to the ground. The accused
took the sword and the Rabeleng's
group were soon overpowered and scattered in different directions.
The members of Ramoeletsi's
group gave chase. The deceased was a
mem­ber of Rabeleng's group and fled in a different direc­tion
from the members of
his group.

It was at
this puncture that the accused saw a horse grazing not far off from
where he was standing. It suddenly occurred to the
accused that if he
rode the hor­se he would be in a position to overtake one of the
flee­ing men. Having caught the horse,
he rode it and raced
towards a man who was running down the hill. When he cau­ght up
with the man about half a kilometre from
the three Crown witnesses,
he started hitting him with either a sti­ck or a sword but the
witnesses were so far that they could
not see clearly which of the
two weapons accused used. He was still on horseback when he
belaboured the man until they both disappeared
on the other side of a
hill.

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After
some time, the accused returned to his colleaques and told them that
he had so severely assaulted the man that he though he
would not
survive. He said he had stabbed the man on the chest with the sword
and they noticed that about i of the blade of the
sword was covered
with blood. A few days later a report was made that the deceased had
died at Scott Hospital at Morija. The witnesses
and the investigating
of­ficer concluded that the man who had died was the one the
accused was seen chasing, None of the Crown
witnesses was given the
opportunity to see the corpse in order to identify it as that of the
man the accused was seen chasing,
P.W.1 and P.W.3 stated in their
evidence that when the accused went to fetch the horse, the man was
already at some distance from
them and had his back towards them. In
other words, they never saw his face and it would have served no
purpo­se to allow them
to see the corpse.

P.W.2
testified that during the fight, he saw the face of the man who was
later chased by the accused on hor­seback, I find
his evidence to
be most unconvincing because it was impossible to clearly see the
face of any particular man from the other group
because there was a
fierce stone -throwing fight. In any case even if he saw the face of
the man the accused chased, he was never
given the chance to see the
corpse of the deceased in order to identify it as that of the man the
accused was seen chasing. Even
if he had been given the chance to
identify the corpse, his evidence would still be very unreliable
because he did not have a proper
opportunity to observe the face of
that person becau­se of the fierce fight and the fact that that
person was a stranger to
him (S. v. Mehlape. 1963 (2) S.A. 29(A.D.),
R. v. Shekelele. 1953(1) S.A. 636(T) and R. v. Mputing, 1960 (1) S.A.
785).

There are
other factors which make me conclude that the Crown has failed to
establish the link that the man the accused was seen
chasing was the
deceased who died a few days at the hospital. One of the Crown
witnesses said that the man whom accused chased
was unable to run
fast be­cause he was an old man. The medical evidence shows that

4

the
deceased was about 38 years old. I do not think that the old man, the
witness saw was the deceased. Secondly, if the Crown witnesses
and
the investigating officer relied on the statement made by the
accused, that he had so severely assaulted the man that he thought
he
would not survive, one would have expected to find a stab wound on
the chest as proof that the deceased was the man whom accused
chased
be­cause accused said he stabbed the man on the chest. His story
was confirmed by the blood covering ¼ of blade
of the sword.
According to medical evidence, the deceased had no stab wound on any
part of his body.

To
complicate the matter further, the Crown has not led any evidence as
to where the deceased was found. If he had been found on
the other
side of the hill where the ac­cused disappeared with his victim
an inference could be drawn that he was the man whom
accused was seen
chasing. We do not know where the deceased was found because no one
from Rabeleng village gave evidence. The problem
is fur­ther
aggravated by the fact that several people from Rabe­leng village
were injured during the fight and the deceased
could well be one of
those who were assaulted by people other than the accused.

The
application made by the defence for the discharge of the accused at
the close of the Crown case on the ground that the Crown
has failed
to prove the identity of the man seen being chased by the accused to
be the present deceased, is granted. The accused
is found not guilty
and discharge,

My
assessor agrees.

L.J.
KHEOLA,

ACTING
JUDGE.

4th
February, 1985.

For Crown
: Mr. Seholoholo,

For
Defence : Mr.ZMda.