HIGH COURT OF LESOTHO
Matter of :
by the Hon. Mr. Justice B.K. Molai on the 12th day of January, 1987.
accused appears before me charged with the crime of murder on the
"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."
pleaded not guilty to the charge.
typed record of the Preparatory Examination, it appeared as if
the depositions of the witnesses were recorded by two
magistrates viz Mr. Mapeshoane and Mr. Ramashamole. Although he did
not give evidence at the proceedings of the Preparatory
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.
evidence of P.W.2, D/Tpr. Seboka, was that, following information
received, on 11th April, 1985 he proceeded to the house of
'Mamothenjoa Qekisi at Mokoallong where he found a dead body of a man
who was identified to him as the deceased. He undressed
the body of the deceased
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.
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
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
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
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
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.
regard, it is common cause that on 10th April, 1985, there was beer
selling at the home of P.W.6
Qekisi. The accused, Leporoporo Mohokare, 'Maboteng Koloti.the
deceased and many other people attended.
to P.M.7. 'Maboteng Koloti, the accused was the son. of the elder
brother of her husband. On the evening of 10th April,
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.
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
she gave him another 40c. She then bought herself beer, sat down on a
hide and started drinking.
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
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.
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
the accused moving. As he did so the accused pulled the blanket which
'Maliqoatsi was wearing and covered himself with it.
rebuked the accused for removing the blanket from another person's
wife leaving her exposed in a beer house. She tried to
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
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
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
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.
thought the accused had struck the deceased a blow with a fist but
immediately thereafter noticed that blood was dripping
down from the
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.
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
P.W.6's house and conveyed the body of the deceased in a police
vehicle to the mortuary.
accused gave evidence in his defence and confirmed that during the
drinking at P.W.6's place, on the evening in question, a
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.
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
surrendering himself to the police at T.Y. he had thrown away the
knife with which he had stabbed the deceased and it was
for production as exhibit in this trial.
evidence of P.W.7 that the deceased had not in any way, provoked the
accused when the latter attacked and stabbed him during
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.
being so, the answer to the question I had earlier posted viz.
whether or not the accused is the parson who inflicted the injury
the deceased and consequently brought about his death must be in the
stabbing the deceased on the chest with a leathal weapon such as a
knife the accused must have realised that
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.
premises, I have no alternative but to come to the conclusion that
the accused is guilty of murder as charged. He is accordingly
: Miss Nku
Defence : Mr. Matlhare.
enjoined by S.269(1) of the Criminal Procedure and Evidence Act, 1981
to state whether or not extenuating circumstances exist
in this case.
ample evidence that the accused stabbed and killed the deceased in a
beer house where he had been drinking a home-brewed
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
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
9 years imprisonment.
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