CRI/T/26/85
IN THE HIGH COURT OF LESOTHO
In the Matter of :
REX
v
TSOTSI KAIZER KOLOTI
JUDGMENT
Delivered by the Hon. Mr. Justice B.K. Molai on the 12th day of January, 1987.
The accused appears before me charged with the crime of murder on the following allegations:
"Upon or about the 10th day of April, 1985 and at or near Mokoallong in the district of Berea, the said accused did unlawfully and intentionally kill one Mohai Rapapa."
He has pleaded not guilty to the charge.
From the typed record of the Preparatory Examination, it appeared as if the depositions of the witnesses were recorded by two different magistrates viz Mr. Mapeshoane and Mr. Ramashamole. Although he did not give evidence at the proceedings of the Preparatory Examination, Mr. Mapeshoane was called as a witness in this trial to enlighten the Court on this point. He assured the court that he alone had presided over the Preparatory Examination proceedings. The name of Mr. Ramashamole as the magistrate who also presided over the proceedings of the Preparatory Examination was, therefore, typographical error.
The evidence of P.W.2, D/Tpr. Seboka, was that, following information received, on 11th April, 1985 he proceeded to the house of one 'Mamothenjoa Qekisi at Mokoallong where he found a dead body of a man who was identified to him as the deceased. He undressed and examined the body of the deceased
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There was a single open wound below the left breast. Before conveying the body in a police vehicle to T.Y. mortuary, P.W.2 went to accused's house but found him not in. According to P.W.2 the body of the deceased did not sustain any further injuries whilst it was being transported from Mokoallong to T.Y. mortuary.
P.W. 1, Dr. Sendyose, told the court that he was the medical doctor who, on 16th April, 1985. had performed an autopsy on the dead body of a man at T.Y. mortuary. He confirmed P.W.2's evidence that the external examination of the body had revealed a single 5 cm long stab-wound on the left side of the chest between the 5th and the 6th ribs. P.W.1's evidence was corroborated by that of P.W.3, Mosehlana Rapapa, that the latter had identified the body as that of the deceased. According to P.W.I, the deceased's hands, thighs and legs were covered with blood thus suggesting that the deceased was standing erect when he was stabbed.
On opening the body of the deceased, P.W.1 found that the stab wound had penetrated the chest wall making a 4 cm cut through the heart. The pericardial sac was filled with blood. There was also about one liter of blood in the chest cavity and the left lung had collapsed. From these findings P.W.1 formed the opinion that a long sharp instrument could have been used with severe force to inflict the injury and death was due to the resultant bleeding into the chest cavity and the pericardial sac.
I can think of no good reason why the evidence of P.W.1 that the deceased died as a result of the stab wound found on his chest should be doubted. I am prepared, therefore, to believe him on this point. The salient question that immediately arises is whether or not the accused is the person who inflicted the injury and consequently brought about the death of the deceased.
In this regard, it is common cause that on 10th April, 1985, there was beer selling at the home of P.W.6
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'Mamothenjoa Qekisi. The accused, Leporoporo Mohokare, 'Maboteng Koloti.the deceased and many other people attended.
Acccordlng to P.M.7. 'Maboteng Koloti, the accused was the son. of the elder brother of her husband. On the evening of 10th April, 1985, she arrived home from. T.Y. town. She then called at P.W.6's house where she found the accused and other people. The accused asked her to buy him some beer and she gave him 40c with which to buy pineapple beer. She then returned to her house to serve meals to her children after which she went back for drinks at the house of P.W.6.
On arrival at P.W.6's place, P.W.7 told the accused that his meal was ready at her house. The accused, however, asked her for more beer and she gave him another 40c. She then bought herself beer, sat down on a hide and started drinking.
It was then that one Thuso asked her to buy him some beer and she bought 70c worth of beer which she said Thuso should share with the other people in the house. At that time the accused came to where she was seated and asked why she bought beer for the people in the house since they had been drinking and never gave him any of their beer. P.W.7 told the accused that if that were the case he should not share his bear with any of the people in the house. However, the accused persisted on telling her that she should not have bought beer for the people in the house.
Feeling that the accused was pestering her, P.W. 7 rose and went to sit some distance away from him. The accused then lay down on the hide she had been sitting. She advised the accused not to sleep in a beer house but to go home where his meal was waiting. He did not reply.
Shortly, thereafter a woman by the name of 'Maliqoatsi came in. She appeared very drunk and immediately slept on the hide next to the accused. The accused and Maliqoatsi spent a long time lying next to each other on the hide and P.W.7 even thought that they had fallen asleep. She then
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noticed the accused moving. As he did so the accused pulled the blanket which 'Maliqoatsi was wearing and covered himself with it.
P.W.7 rebuked the accused for removing the blanket from another person's wife leaving her exposed in a beer house. She tried to take the blanket away from him but the accused pulled it tight. She hit the accused with an open hand on the hand and snatched away the blanket which she put on the owner. She returned to where she had been seated.
The accused then stood up and went to P.W.7. He hit her on the cheek with an open hand and was kicking her on the ribs when P.W.6 came and intervened by holding him back. Accused violently pushed away P.W.6 who fell on the fire place. When she got up P.W.6 ordered the accused out of her house but the accused once more violently pushed her away and in the process spilt the deceased's beer.
When he asked him why he silt his beer, the accused told the deceased not to utter a word for he was, in fact, after him. As he said so the accused caught hold of the deceased by the collar of the shirt and pulled him towards the door. When they came to the door the deceased supported himself by the door frame with both his hands and resisted from going out through the door. The accused then raised his hand and struck the deceased a blow on the chest before leaving the house. He was never again seen in the village.
P.W.7 thought the accused had struck the deceased a blow with a fist but immediately thereafter noticed that blood was dripping down from the deceased.
As he was struck the blow, the deceased retreated into the house before falling to the floor and buldging. P.W.7 pleaded with the men in the house to come to the assistance of the deceased who was clearly injured. P.W.8, Leporoporo Mohokare, touched the deceased and pointed out that he was already finished.
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A report was made to the chief who in turn sent for the police. P.W.7 confirmed the evidence of P.W.2 that the police subsequently came to P.W.6's house and conveyed the body of the deceased in a police vehicle to the mortuary.
The accused gave evidence in his defence and confirmed that during the drinking at P.W.6's place, on the evening in question, a fight broke out as discribed by P.W.7. According to him it was the deceased who caught hold of him by the collar of the shirt and dragged him towards the door. He then noticed the deceased putting his hand into the pocket. He believed that the deceased was taking out a knife with which he was going to stab and injure him on the stomach where he had previously been operated.
Although he initially told the court that because of drunkness he did not remember stabbing the deceased who might have been injured by a nail at the door,the accused eventually conceded that he did stab the deceased. That was, however, in self-defence. He said before surrendering himself to the police at T.Y. he had thrown away the knife with which he had stabbed the deceased and it was not available for production as exhibit in this trial.
The evidence of P.W.7 that the deceased had not in any way, provoked the accused when the latter attacked and stabbed him during the commotion in the drinking house was, however, corroborated by that of P.W.6 and P.W.8 both of whom impressed me as more reliable witness than the accused. In my view the evidence is simply overwhelming against the accused and there is not the slightest doubt in my mind that he did attack and stab the deceased in the manner described by P.W.7 corroborated by P.W.6 and 8.
That being so, the answer to the question I had earlier posted viz. whether or not the accused is the parson who inflicted the injury on the deceased and consequently brought about his death must be in the affirmative.
In stabbing the deceased on the chest with a leathal weapon such as a knife the accused must have realised that
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death was likely to result. He, nonetheless, acted reckless of whether or not it did occur. That granted, it must be accepted that in stabbing the deceased as he did, the accused had the requisite subjective intention to kill, at least in the legal sense.
In the premises, I have no alternative but to come to the conclusion that the accused is guilty of murder as charged. He is accordingly convicted.
My assessors agree.
B.K. MOLAI
JUDGE
9th January, 1987.
For Crown : Miss Nku
For Defence : Mr. Matlhare.
EXTENUATING CIRCUMSTANCES
I am enjoined by S.269(1) of the Criminal Procedure and Evidence Act, 1981 to state whether or not extenuating circumstances exist in this case.
There is ample evidence that the accused stabbed and killed the deceased in a beer house where he had been drinking a home-brewed concoction commonly known as pineapple beer. To my mind when he thus stabbed and killed the deceased the accused was under the influence of liquor and, therefore, intoxicated.
It is a well known fact that intoxication affects the mind of a man so that he does the things that he will not do when sober. This must be taken into account in deciding the existence of factors that tend to reduce the moral blameworthiness of the accused's act.
That being so, I have no alternative but to come to the conclusion that the answer to the question whether or not extenuating circumstances exist in this case must be in the affirmative. Consequently the proper verdict is that the accused is guilty of murder with extenuating circumstances.
Sentence: 9 years imprisonment.
B.K. MOLAI"
JUDGE.
12th January, 1987.
For Defence: Mr.Matlhare.
