CRI\T\34\91
IN THE HIGH COURT OF LESOTHO
In matter between:
REX
and
MABOTE RALESHOAI Accused
JUDGEMENT
Delivered by the Honourable Mr. Justice J.L. Kheola on the 16th day of August. 1993
The accused is charged with the murder of Tsali Raleshoai on the 2nd day of September, 1989 and at or near Likhetlane in the district of Leribe. He pleaded not guilty.
Detective Trooper Bakoro testified that one day in September, 1989 he was on duty at Maputsoe Police Station when the accused was brought to his office by the chief's messengers. They gave him an iron standard normally used in fixing fence. The accused explained that he hit his mother with that standard. He cautioned him and charged him with murder. The standard was handed in as an exhibit and marked Exhibit "1".
Under cross-examination Detective Trooper Bakoro said that the accused had a wound on the forehead which appeared to be a
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scratch caused with a knife. He denied that the accused had a wound on the jaw. He admitted that his clothes were covered with blood and there was blood on his neck. The accused admitted that he had beaten up his mother (the deceased) because she had not cooked his meat.
If I may digress here, I wish to point out that the statement by the accused to Detective Trooper Bakoro that he beat up his mother because the latter had refused to cook his meat would under normal circumstances be regarded as a confession to a police officer and would be inadmissible because it was not confirmed and reduced to writing in the presence of a magistrate in terms of section 228 (2) of the Criminal Procedure and Evidence Act 1981. However the confession is admissible because it was a legitimate answer in cross-examination.
I am aware that the accused denies that he made such an explanation. This piece of evidence is corroborated by P.W.2 'Mamonare Raleshoai who testified that on the night in question she was already in bed when the accused came to the door of her bedroom and reported that the deceased had stabbed him with a knife. She asked him what the cause of their fight was. He said they had quarrelled over meat.
The accused denied that Exhibit "1" was the standard he used
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to strike the deceased. He said that the standard he used was much shorter than Exhibit "1" and was about 1½ metres long.
I find his story rather strange in that he is raising it for the first time at the trial. At the charge office he said he had struck the deceased with the Exhibit "1". He further says that he was made to carry Exhibit "1" from his village to the charge office but he raised no objection that Exhibit "1" was not the standard he used.
Sergeant Rankhelepe testified that one morning in September, 1989 he found the accused at the charge office. He was already under arrest for murder. He went to the scene of the crime with the accused. When they arrived there he found many people gathered outside a house. He saw blood drops at the forecourt and noticed that the ground was disturbed. The blood drops led into the house where he found the corpse of the deceased. He examined it and found the following wounds: a wound on the left ear, three wounds on the head, the right forearm was fractured and there were bruises on the body. Sergeant Rankhelepe deposed that the accused said that Exhibit "1" was his property. The accused had some injuries on the body and a wound above the eye. He saw no wound on the jaw.
The evidence of 'Mamonare Raleshoai is that on the Friday
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in question the accused came to her place at about 8.00 p.m. and asked her to give him some food. She gave her food. An unknown woman came and ate with the accused. She formed the opinion that the accused knew that woman because they left together just after 8.00p.m. They appeared to be drunk.
At about 12 midnight she was already in bed with her husband when the accused came to the door of her bedroom and informed her that the deceased had stabbed him with a knife. She asked him what the cause of their fight was. He said the cause of their fight was the meat. She asked him to leave so that they could talk in the morning. On the following morning she noticed that there were blood drops outside near the door of her bedroom where the accused was standing on the previous night.
She went to the accused's house accompanied by her husband. The accused was still sleeping. He woke up and told them that he fought with the deceased and that the latter stabbed him with a knife on the jaw. 'Mamonare said that she actually saw a wound on the accused's neck. There was blood on the bed of the accused.
The version of the accused is that on the day in question he went to the home of Takalimane and drank beer for a good part of the morning hours. From there he went to the home of
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Lekepetsi for the purpose of attending a etokfel. He again took a few drinks of beer. He then went to the home of 'Mamonare Raleshoai and remained there until 9,00p.m. He left for the deceased's home where he rounded up domestic fowls and put them in the house. It was already dark when he put the fowls in the house.
After putting the fowls into the house he was busy fastening the door when a person stabbed him on the chin. He jumped and moved backwards. That person stabbed him again on the head. He turned and tried to run away. That person held him by his jacket. The accused says that he got hold of a standard which supported the pole for the line for washing. As a result of the pull by the person holding him by the jacket, the standard was pulled out of the ground. He swung it towards his back and struck that person with it. He or she fell on the tin or bucket used as a stove. During the struggle he had not seen who his attacker was. Thereafter he asked who the person was. He discovered that it was his mother. She said that she did not notice that it was the accused. She had thought that he was one of the boys who once invaded her.
The accused says that the deceased said that she had sustained injuries and that he must go and sleep; that they would see each other on the following morning. He left for the home
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of one Mokhele intending to report to him what had happened. Mokhele was not at home at that time. He went to his home and slept. He denies that he ever called at the home of 'Mamonare and made the alleged report about their fight with his mother.
The story that the accused is telling this Court is not only improbable but it is an outright lie. I have already remarked that on the day of the murder of the deceased he made a report to 'Mamonare that he had fought with the deceased because they quarrelled about meat. He made the same report to two police officers on the following day. He never mentioned that he was a victim of an unlawful attack by the deceased. He never mentioned fowls at all to anybody until the trial started.
He never told the police or the chief's messengers that Exhibit "1" was not the standard he had used. In any case he admitted that the used a standard which was shorter than Exhibit "1". I reject that story because it was raised for the first time at the trial. He ought to have raised it to the chief's messengers and to the police. I have no hesitation to reject it as an afterthought.
It is the accused's story that he struck the deceased once with a standard. However the injuries sustained by the deceased are not consistent with one blow. She had a wound on the left
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ear, three wounds on the head, fracture of the right forearm and multiple bruises or injuries on the body. An attempt to justify these multiple injuries was made by the defence by saying that as a result of that single blow the deceased fell on a tin or bucket which caused those injuries. I do not agree with this suggestion. A single blow with a standard cannot cause three wounds on the head. It can cause a fracture of the forearm and possibly one wound on the head. I am of the view that the multiple injuries on the body were caused by several blows and the three wounds on the head were caused by separate blows.
According to the post-mortem examination report (Exhibit "A") death was due to severe cerebral contusions and multiple body injuries. The lower and upper dentitions were broken.
I have come to the conclusion that the accused has told this Court a pack of lies. The minor injuries which he sustained must have been inflicted by the deceased in self-defence. The fact that the ground at the forecourt was disturbed clearly indicates that there was a long struggle before the deceased went into the house.
In R. v. Attwood 1946 A.D. 331 Watermeyer, C.J. stated the general principles entitling an accused person to an acquittal on the grounds of self-defence as:-
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That he had been unlawfully attacked and had reasonable grounds for thinking that he was in danger of death or serious injury.
That the means of self-defence which he used were not excessive in relation to the danger.
That the means he used were the only or least dangerous means whereby he could have avoided the danger.
Even if the accused was acting in self-defence (a story which I have already rejected) he grossly exceeded the bounds of self-defence as stated above.
The accused foresaw the possibility of the deceased's death resulting from his assault but he was reckless as to whether death occurred or not. I am of the view that he had the requisite intent for murder.
The accused is found guilty of murder.
My assessors agree,
J.L. KHEOLA
JUDGE
16th August, 1993
For Crown - Mr. Semoko
For Accused - Mr. Mathafeng.
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Extenuating Circumstances
It was common cause during the trial that the accused was drunk. Intoxication is an extenuating circumstance.
The Court found that the accused had the requisite intent in the form of dolus eventualis. I am of the view that this is a proper case where dolus eventualis should be regarded as an extenuating circumstance.
The Court found that there were extenuating circumstances. Sentence: In passing sentence the Court took into account that the accused is a first offender, that he has been in gaol for about four years awaiting his trial.
He is sentenced to six (6) years' imprisonment.
My assessors agree.
J.L KREOLA
16th August, 1993.
For Crown: Mr. Thetsane
For Accused: Mr. Fosa.
