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
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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.