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
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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.