CRI/T/55/92

IN THE
HIGH COURT OF LESOTHO

In the
Matter of :

REX

vs

MOKETE
MOHOLI

JUDGMENT

Delivered
by the Hon. Mr. Justice B.K. Molai on the 3rd day of June. 1993.

The
accused appears before me charged with two counts of murder and four
counts of assault with intent to do grievous bodily harm
on the
following allegations:

COUNT I: "In that upon or about the 7th day of May, 1988, and
at or near Ha Phole in the district of Mohale's Hoek, Phamong,
the
said accused did unlawfully and intentionally kill Nthatuoa Ramosa."

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COUNT II: "In that upon or about the 7th day of May, 1988, and
at or near Ha Phole in the district of Mohale's Hoek Phamong,
the
said accused did unlawfully and intentionally kill Motseki Lefuma."

COUNT III: "In that upon or about the 7th day of May 1988, and
at or near Ha Phole in the district of Mohale's Hoek, Phamong,
the
said accused did unlawfully assault Raletsebela Moesa with intent to
do some grievous bodily harm."

COUNT IV: "In that upon or about the 7th day of May, 1988, and
at or near Ha Phole in the district of Mohale's Hoek, Phamong,
the
said accused did unlawfully assault Gauda Chere with intent to do
some grievous bodily harm".

COUNT V: "In that upon or about the 7th day of May, 1988 and at
or near Ha Phole in the district of Mohale's Hoek, Phamong,
the said
accused, did unlawfully assault Senoko Ramosa with intent to do some
grievous bodily harm.

COUNT VI: "In that upon or about the 7th day of May, 1988, and
at or near Ha Phole in the district of Mohale's Hoek, Phamong,
the
said accused.

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did unlawfully assault 'Mamokete Rantara with intent to do some
grievous bodily harm."

It is
perhaps significant to mention, at this juncture, that on 2nd
February, 1993 the accused appeared, for the first time, before
this
court. Mr. Mathafeng who then represented him pointed out that
following his interview with him he was of the opinion that
the
accused person suffered from mental illness. Mr. Mathafeng,
therefore, requested that before he could be asked to plead to
the
charges the accused be referred to a mental health doctor for
observation and report. The mental health doctor's report dated
21st
March, 1993 was, by consent of Mies Letete, who now represents the
accused, and Mr, Ramafole, Counsel for the Crown, handed
in from the
bar, as Exh. "A" on 25th May, 1993. It is to the effect
that accused was, at the time of the commission of
the alleged
offences, suffering from a state of diminished responsibility by
reason of his mental disorder. However, the accused
can now follow
the court proceedings and is, therefore, fit to stand trial.

When they
were put to him, the accused pleaded "I am not guilty" to
all the six charges. The plea of not guilty was accordingly
entered
in respect of all the charges.

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On behalf
of the accused person, Miss Letete informed the court that the plea
was in accordance with her instructions. She then
admitted, on behalf
of the accused, the depositions of all the witnesses who had
testified at the proceedings of the Preparatory
Examination,
including the post mortem examination reports and the medical reports
compiled by the doctor who had performed the
autopsy on the dead
bodies of the deceased persons in the first two counts of murder and
examined the complainants in the last
four counts of assault with
intent to do grievous bodily harm, respectively. Mr. Ramafole, for
the Crown, accepted the admissions
made by the defence counsel.

The
Depositions of all the witnesses who had testified at the proceedings
of the Preparatory Examination, including the medical
reports, became
evidence and it was, therefore, unnecessary to call the deponents, as
well as the doctor who had compiled the medical
reports, as witnesses
in this trial.

In as far
as it is relevant, the evidence of D/Tper Monyobi who was P.W.4 at
the proceedings of the Preparatory Examination, was
that on 8th May,
1988, he was on duty at Mohale's Hoek police station when he received
a certain report following which he proceeded
to Ha Phole in the area
of Ketane, On arrival he found dead bodies of two small children - a
boy and a girl. He examined the dead
bodies

5

for
injuries and found that they had each sustained multiple stab wounds
all over the body. A spear was handed over to him in the
presence of
the accused person who was already under arrest at Ketane police
post. P.W.4 took possession of the spear which had
since been in the
custody of the police. He handed it in as Exh - 1 and part of his
evidence in this trial.

Following
his investigations, P.W.4 found that four (4) other persons were
already at Ketane clinic with stab wounds. He conveyed
the dead
bodies of the two small children, the four injured persons and the
accused to Mohale's Hoek. The dead bodies were taken
to the mortuary
at Mohale's Hoek hospital where a post-mortem examination was
conducted. The accused was left at Mohale's Hoek
police station,
after he had been cautioned and charged as aforesaid. The injured
persons (who are complainants in counts III,
IV, V and VI) were taken
to Mohale's Hoek hospital for medical treatment.

It is
worth mentioning that the medical doctor, who conducted the
post-mortem examination on the dead bodies of the children and

treated the four complainants, respectively, was an expatriate and
had at the time of the Preparatory Examination, already left
the
country. The post-mortem Examination reports and the medical reports
he had compiled in respect of the two dead bodies and
the four

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complainants,
respectively, were by consent of the parties handed in from the bar
as exhibits "A" "B" "C"
"D"
"E" and "IF" .

According
to exhibit "A", on 11th May, 1988 a medical doctor, at the
mortuary of Mohale's Hoek hospital, examined a dead
body of. a female
African child. The body was identified as that of Nthatuoa Ramosa by
Ndabe Ramosa and Seabata Lefuma who testified
as P.M.10 and P.W.11,
respectively, at the proceedings of the Preparatory Examination. This
was confirmed by both P.W.10 and P.W.11
in their evidence.

The
external examination revealed that the deceased had sustained
multiple stab wounds on the arms, shoulders chest and abdomen.
On
opening the body the medical doctor found a stab wound on the left
side of the heart, a perforation on the right side lung and

haemothorax. From these findings the medical doctor formed the
opinion that death had occurred as a result of cardiac arrest
following
the stab wound on the heart.

According
to exhibit "B" on the same day, 11th May, 1988, the medical
doctor examined another dead body of a male African
Child. The body
was identified as that of Motseki Lefuma by Seabata lefuma and Lilemo
Rakotsi. This was confirmed by Seabata Lefuma
who, as it has already
been

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stated,
testified as P.W.11 at the proceedings of the Preparatory
Examination.

The
external examination of the dead body revealed that the deceased had
sustained multiple stab wounds on the forehead, neck, thigh,
the
abdomen and the intestines were protruding out. On opening the body
the medical doctor found that there was pneumothorax of
the right and
left lungs. Although they were protruding out the intestines had no
perforations. From these findings, the medical
doctor formed the
opinion that death was due to pneumothorax as a result of the stab
wounds inflicted upon the deceased.

I can
think of no good reason why the opinion of the medical doctor that
the two deceased persons died as a result of the stab wounds

inflicted upon them, should be doubted. The salient question that
arises is whether or not the accused is the person who inflicted
the
stab wounds upon the deceased persons and, therefore, brought about
their death.

In this
regard, the evidence of Lekhotso Morake who was P.W.7 at the
proceedings of the Preparatory Examination was that on the
morning of
the day in question he heard a woman screaming from the direction of
one 'Mamolefi Ramosa's place in their village of
Ha Phole. He rushed
to

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the place
and on arrival found the accused on the forecourt of 'Mamolefi'a
house. He saw the accused stabbing a small child, Nthatuoa,
with the
spear - exhibit 1. As the accused stabbed it with the spear, the
child was already lying prostrate on the ground next
to another small
child by the name of Motseki Lefuma whose intestines were protruding
out, A third small child who had sustained
two stab wounds was being
carried by a certain Matseliso some distance away. I shall return to
the evidence of P.W.7 in a moment.

Matseliso
was not called to testify in this trial. However, 'Mamokete Rantara,
a little girl of about 9 years old, gave evidence
as P.W.3 after she
had been merely warned to tell the truth. According to P.W.3 she,
Nthatuoa and Motseki were together outside
their house when the
accused, who was a stranger to her, came along and stabbed them with
a spear. She was stabbed above the left
eye, on the hips and on the
arms. She was then taken to Mohale's Hoek where her injuries were
shown to a certain European man.

I have
duly cautioned myself against the danger inherent in the evidence of
young children. The evidence of P.W.3 is, however, confirmed
by the
report (Exh 'F') of the medical doctor who attended to her injuries
at Mohale's Hoek hospital on 10th May, 1988. It is,
in a way, also

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corroborated
not only by the evidence of P.W.7 but also the evidence of Gauda
Chere and Senoko Ramosa who were P.W.6 and P.W. 2
respectively at the
proceedings of the Preparatory Examination. To that extent, I am
prepared to accept the evidence of P.W.3 as
the truth.

Returning
to his evidence, P.W.7 went on to say when he noticed him, the
accused picked up a stone which he threw at him but missed.
Accused
then went to P.W.6 who was close to P.W.7. He attacked and stabbed
P.W.6 twice with the spear. One Makara who was also
with P.W.7 and
P.W.6 hit the accused's pear with a stick and it dropped to the
ground, Makara was, however, not called to testify
in this trial.

Be that
as it may, P.W.7 and his party were able to get hold of the accused
and disarm him of the spear. P.W.7 sent for the police
to whom he
handed the accused together with the spear which is Exh.1 in this
trial. The evidence of P.W.7 is corroborated in material
respects by
Mabeli Sekotolane, who was P.W.8 at the proceedings of the
Preparatory Examination, and P.W.6.

In his
evidence Raletsebela Moesa, who was P.W.5 at the proceedings of the
Preparatory examination, testified that on the day in
question, he
went to the home of a certain Qeme Rakotsoana, P.W.9 at the
proceedings of the

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Preparatory
Examination. On his way back, P.W.5 met the accused who was wearing a
blanket. As they met, the accused produced from
underneath his
blanket, a spear with which he suddenly stabbed P.W.5 on the throat.
When he was thus stabbed with the spear, P.W.5
took to his heels. The
accused chased after him throwing stones at, and setting doge after,
him. As he ran away, P.W.5 was bleeding
profusely and screaming for
help. The accused then left him and went towards the house of
'Mamolefi Ramosa. In response to the
alarm P.W.5 had raised by
screaming, P.W.9 came to his rescue. He assisted him by stopping the
bleeding from his injury. The evidence
of P.W.5 is confirmed by P.W.9
according to whom he also attended to the injuries of P.W.2 who, as
it will be shown later in this
judgment, was also attacked and
injured by the accused.

According
to him, P.W.5 then went to Ketane police post. He was given a medical
form with which he went to Ketane clinic and then
to Mohale's Hoek
hospital where he was admitted for a day.

The
evidence of 'Mamolefi Ramosa, who was P.W.1 at the proceedings of the
Preparatory Examination, was that on the day in question,
7th May,
1988, she and her children viz. Nthatuoa and Motseki were in her
house at Ha Phole when she heard an alarm raised by a
person who was
screaming. She

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went out
to investigate. She then noticed P.W.5 running below her yard chased
by dogs and followed by the accused. When P.W.1 asked
what the matter
was, the accused told her to come close to the gate. As P.W.1 was
going towards the gate, the accused picked up
a stone which he threw
at her. He, at the same time, set his doge at P.W.1 who ran away from
her home screaming for help.

When she
later returned to her house P.W.1 found her small children viz.
Nthatuoa and Motseki lying on the forecourt of her house
with
multiple stab wounds. Nthatuoa was, in fact, already dead. Although
still alive Motseki had his intestines protruding out
of his abdomen.
The accused himself was already arrested and fastened up by the
villagers who had then gathered at her home.

The
evidence of P.W.2, was that P.W.1 was his own mother. On 7th May,
1988 he was at home with P.W.1, Nthatuoa and Motseki. Another
child,
namely 'Mamokete Rantara, was also at his house.

P.W.2
confirmed the evidence of P.W.1 in all material respects. However,
according to him he was with P.W.1 when the latter went
towards the
accused at the gate. He advised P.W.1 against going too close to the
accused at the gate. It was then that the accused
threw a big atone
at them. The stone landed on his neck and he fell to the

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ground.
The accused then came and stabbed him on the shoulder with a spear.
At that time his (P.W.2's) dogs attacked the accused
and pulled him
back by his blanket. P.W. 2 then managed to get up and run away from
the accused. He went to P.W.9 who assisted
him by attending to his
injuries.

After
P.W. 9 had assisted him P.W.2 was taken to Ketane police post. He was
given a medical form with which he went to Ketane clinic
and then to
Mohale's Hoek. He did not, therefore, personally know what had
happened to the small children at his home.

Considering
the evidence as a whole there is no doubt in my mind that for no
apparent reason the accused did assault the deceased
persons, in
Count I and Count II, and inflicted upon them the stab wounds that
resulted in their death. The question I had earlier
posted viz,
whether or not the accused was the person who had inflicted the stab
wounds upon the deceased persons in counts I and
II and brought about
their death must, therefore, be answered in the affirmative.

The
evidence of P.W.5, P.W.6, P.W.2 and P.W.3 that the accused assaulted
and inflicted injuries upon them with a spear is consistent
with the
reports (exh "C", "D", "E" and "F")
of the medical doctor who, examined and treated
them

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at
Mohale's Hoek hospital. There is no evidence adduced to gainsay it, I
am prepared, therefore, to accept it as the truth. That
being so,
there can be no doubt that the accused did assault and inflict stab
wounds upon the complainants in counts III, IV, V
and VI as alleged
by the unchallenged evidence made available to the court.

As
regards the question whether or not, in assaulting the deceased in
counts I, II and the complainants in counts III, IV, V and
VI as he
did, the accused had the requisite subjective intention to kill and
cause grievous bodily harm, respectively, it has already
been stated
that the mental health doctor has examined the accused and compiled a
report in which he opinioned that the accused
was, at the time of the
commission of the alleged offices, suffering from a state of
diminished responsibility by reason of his
mental disorder. I can
think of no good reason why the opinion of the mental health doctor
should be doubted in this respect.

That
being so, I am of the opinion that a proper verdict should be that
the accused is "guilty but insane", in accordance
with the
provisions of S.172 (3) (a) of the Criminal Procedure and Evidence
Act, 1981, I accordingly find.

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Both my
assessors agree with this finding.

Consequently,
it is hereby ordered that the accused person be kept at the Central
Prison in Maseru pending the signification of
His Majesty the King's
pleasure.

B.K.
MOLAI

JUDGE

3rd June,
1993.

For
Crown: Mr. Ramafole.

For
Respondent; Miss Letete.