CRI/T/20/82

IN THE HIGH COURT OF LESOTHO In the matter of :

REX

v

MOHAPI FELEMANE JUDGMENT

Delivered by the Hon. Acting Judge, Mr. Justice J.L.
Kheola on the 19th day of September, 1983

The accused is charged with the crime of murder. It is
alleged that on or about the 17th July, 1981, at or near Khukhune in
the district
of Butha Buthe, the accused unlawfully and intentionally
killed 'Mamokete Folojeng (hereinafter called the deceased). He
pleaded
not guilty.

By agreement the depositions at the preparatory
examination of the following witnesses were admitted as evidence in
this Court : p.w.
2 Chief Joele Molapo, p.w.3 Rankara Folojeng, p.w.5
Dr. Moorosi and p.w. 7 D/Sgt. Mokhele.

Dr. Moorosi's evidence is that on the 21st July, 1981 he
performed an autopsy on the dead body of the deceased. There were
multiple
bruises on the body and a ragged wound, internal surface of
the upper lip 1x5 cm.

/towards ...

-2-

towards the right, torn left labia minora, few
sub-junctival haemorrhages. There were congested brain vessels with
the presence of
petechial and subjunctival haemorrhages. He formed
the opinion that death was due to suffocation.

D/Sgt. Mokhele's evidence is that on the 19th July, 1981
he went to Khukhune village. On his arrival there he went to a donga
on
the eastern side of the village and above the donga he found a
shawl and a woollen cap. In the donga he found a brown belt and
further
down the stream he found the dead body of the deceased; it
was in a sitting position leaning against the bank of the donga with
her
legs stretched and she was naked, her head was covered with a
light brown dress, a torn brassiere was lying near her feet; and her
lips were torn, her labia minora was also torn,

I think it will be convenient at this stage to diverge
and comment on the evidence of Dr. Noorosi and D/Sgt. Mokhele.
Taking their
evidence together there is no doubt in my mind that the
death of the deceased was not due to natural causes but that she was
brutally
murdered by some person or persons. There were bruises all
over her body and some of them were around the neck clearly
indicating
that the deceased was strangled. The wound inside the
upper lip and the multiple bruises on the body are a further proof
that deceased
was assaulted; if she had accidentally fallen into the
donga her body would not have been naked and her cloths would not
have

been scattered all over the place. In my view the Crown

/has ...

-3-

has proved beyond a reasonable doubt that the deceased
was murdered; but the question Is: who murdered her?

P.W.1 'Matlou Lelosa gave evidence that one day in July,
1981 she was attending a stockfair at the home of one 'Mamootleng.
The deceased
was one of the many people who were in the house and she
was carrying her small baby on her¹ back. At about 5 pm
the accused entered into the house in which the stockfair was going
on and asked the deceased to come out and
meet someone who wanted to
see her. When the deceased asked who wanted to see her the accused
said that person said she would know
him/her. The baby was left in
the care of p.w.1 and deceased and the accused left together. P.W.1
says that was the last time she
saw the deceased because she never
returned to the stockfair while she (p.w.1) was there.

P.W.1 left the stockfair later that evening and went to
the home of the deceased to find out why she had not returned to the
stockfair
but the deceased was not at her home. She left the
deceased's baby in the care of her mother and went to her home. On
the following
morning she again continued her inquiries about the
deceased but in vain. She went to the accused's home but found that
he was also
not there. The body of the deceased was later found in
the donga and it had the injuries I have already described above. A
few days
later the accused was found and arrested in the village of
Ha Molapo. He appeared to be mentally deranged according

/to D/Sgt....

-4-

to D/Sgt Mokhele and he had fresh scratches on the face.
I may add here that it is not clear how fresh the scratches were but
one
witness (p.w.3) said they had fresh blood clods. It is also not
clear when the accused person was arrested because D/Sgt Mokhele
says
on the 19th July he found the dead body of the deceased and that "a
few days" after that he arrested the accused in
a village some
distance away.

P.W.3 Mofihli Mohaotsane was arrested in his village for
stock theft and taken to Ha Molapo where he met the accused who was
also
under arrest. He says that when they were transferred from
Molapo's to Qalo police station he was in the same van with the
accused
and he asked the accused what had scratched him on the face.
The accused said he had been scratched by a woman he had killed. At
the time the accused was telling him this the police officers were in
the driver's cabin and they heard nothing about this. He further
says that about three weeks later he was in the same cell with the
accused at Butha Buthe charge office where he continued his
conversation
with the accused who told him that he killed the woman
because the doctor had asked him to kill her for him. The accused
had originally
said he killed the woman because she had taken his R3.
Under cross-examination the witness was reminded that at the
preparatory
examination he had never mentioned that accused said he
killed her for his R3. The witness could not remember. He further
said
accused appeared to be in his sound and sober senses when he
told him

about the killing of the woman at Khukhune.

/At
the ...

—5-

At the close of the case for the Crown Mr. Addy, who
appeared for the accused, applied for his discharge on the ground
that no prima
facie case had been established and that p.w.3 had been
shown to be a very unreliable witness. For obvious reasons the
application
was refused. The accused elected to remain silent and the
defence case was closed.

The question to be considered therefore is whether the
Crown has proved beyond a reasonable doubt that the accused is the
person who
murdered the deceased. In my view the case for the Crown
depends on circumstantial evidence and the confession the accused
made
to Mofihli. As far as circumstantial evidence is concerned I
must approach that problem in the light of the well known principles
set out in the case of R. v Blom 1939 A.D. 188 at pages 202/3 where
Watermeyer, J.A. said:

"In reasoning by inference there are two cardinal
rules of logic which cannot be ignored:-

1. 
   The inference sought to be drawn must be
   consistent
   with all proved facts. If it is
   not the inference cannot be
   drawn.

   
   

2. 
   The proved facts should be such that they
   exclude
   every reasonable inference from
   them save the one sought to be
   drawn. If
   they do not exclude other reasonable
   inferences,
   then there must be a doubt
   whether the inference sought to be
   drawn
   is correct."

   
   

There is no doubt in my opinion that when all the proved
facts are taken together an inference can be drawn that the accused
is the
person who murdered the deceased. But before the accused can
be convicted

of murder all other reasonable inferences must be

/excluded
...

-6-

excluded. The proved facts are:-

1. 
   the deceased was last seen alive in the company
   of
   the accused,

   
   

2. 
   the deceased never reached her home that evening
   and
   the accused never reached his home,

   
   

3. 
   the accused was found at Molapo's far from
   his home
   a few days after the murder and he
   had fresh scratches on the
   face.

   
   

In my view these facts do not exclude other reasonable
inferences which may be drawn. It cannot be excluded that the
accused did
show the deceased the person who wanted to see her, and
immediately went to Molapo's for personal reasons. We have not been
informed
where exactly at Molapo's the accused was found. Was he
found aimlessly going up and down the village or was he staying with
his
relatives? And if no reliance is placed on the so called
confession it cannot be excluded that the accused could have
sustained the
scratches some time after the deceased was killed
because some witnesses say the scratches were still fresh and could
be two days
old. The accused was arrested a few days after the 19th
July while the deceased was murdered on the 17th July. It seems to
me that
the scratches were too fresh to be connected with the events
of the 17th July. Moreover, there was no proof that the scratches
were
caused by human nails and no evidence that any human tissue was
found in the finger nails of the deceased. The accused have never
shown any animosity towards the deceased which could be a motive why
he should desire

her
death.

/The second ...

-7-

The second part of the inquiry is whether the so called
confession made by the accused to Mofihli is admissible. In order
that a
confession can be admissible it must be proved that it was
freely and voluntarily made by a person in his sound and sober senses
and without having been unduly influenced thereto. (See Section
228(1) of the Criminal Procedure and Evidence Act 1981). D/Sgt.
Mokhele says that the accused appeared to be mentally deranged when
he arrested him a few days after 19th July, on the other hand
Mofihli
says accused appeared to be in his sound and sober senses. In the
light of this conflict in the evidence of the Crown the
Court must
give the benefit of the doubt to the accused.

There is no doubt that in a proper case the fact that
the accused person has failed to give evidence to rebut a prima facie
case against
him, is a factor which the Court must take into account
in determining his guilt. But in the present case where the Crown is
relying
wholly on unsatisfactory circumstantial evidence, failure by
the accused person to give evidence cannot take the Crown's case any
further.

For the reasons I have attempted to summarise above I
formed the opinion that the Crown has failed to prove its case beyond
a reasonable
doubt. The accused is found not guilty and he is
discharged.

ACTING JUDGE

19th
September, 1983

For the Crown : Mr. Kabatsi For the Defence : Mr.
Addy