CRI/A/119-120/84
IN THE HIGH COURT LESOTHO
In the Appeal of
FRANCIS PHOMANE 1st Appellant
BOOMO MOSHOESHOE 2nd Appellant
vREX Respondent
JUDGEMENT
Delivered by the Hon Mr Justice J L Kheola on the4th day of March 1985
The appellants were convicted by the Resident Magistrate at Butha Buthe of the crime of assault with intent to do grievous bodily harm it being alleged that upon or about the 25th June, 1933 and at or near Butha-Buthe Reserve in the district of Butha Buthe the said accused did each or other or all of them intentionally assault one Patrick Sempe Lerotholi by hitting him on the head with a stick, kicking him all over his body with booted feet and also hitting him above the left eye with a stone with intent to cause him grievous bodily harm To this charge the appellants pleaded not guilty but they were each found guilty as charged and sentenced to Nine months' imprisonment
At the trial the present appellants were accused 1 and accused 3 respectively Accused 2 was found not guilty and discharged at the close of the Crown case
The complainant, Patric Sempe Lerotholi, testified that on the 25th June, 1983 at about 10 00 p m he arrived at Pholosa ' s night club and bought a tin of beer From the
/counter
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counter he proceeded Co his seat near the door On the way he inadvertently tiamoled on the feet of the second appellant Although he immediately apologized the second appellant was nor happy and threatened to assault him He went bad. to his chair and sat down Accused 2 came to him and tried to hit him with a fist but missed and smashed a window pane The owner of the club repri-manded accused 2 and told him that he would have to pay for the damage he had caused The complainant returned to the counter to buy another tin of beer When he returned to his seat he was confronted by the first appellant, second appellant, accused 2 and one Khosi Rankoroane who died before the trial started (I shall refer to him as the deceased) They accused him of having stabbed accused 2 with a knife and ordered him to produce the knife They attacked him and kicked him with booted feet on the legs During the scuffle Trooper Thakalekoala arrived and stopped the fight The complainant escaped and ran away to the charge office The appellants gave chase When he came to the gate of the security fence at the charge office the second appellant caught up with him and struck him with a stick on the back of the head He continued to run till he entered into the charge office.
The complainant further stated that he was already in the charge office when the first appellant arrived and snatched a stick from the second appellant and hit him on the left elbow and on the neck with it The blow on the neck felled him on the floor whereupon the appellants. accused 2 and the deceased started kicking him all over the body with their booted feet As he lay prostrate on the floor the appellants held him by his legs and dragged him out of the security fence and again started to kick him and
to hit
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to hit him with stone on the left eye He lost consciousness When he regained his full senses he was in the Butha-Buthe hospital After two days he was transferred to Queen Elizabeth II Hospital where he remained as remained as an in-patient for two weeks He had no knife in his possession that day Under cross-examination the complainant denied that he attacked accused 2 with a knife He also denied that subsequent to the assault at the charge office he was assaulted at the Maseru Stadium
L/Sgt Thakalekoala corroborated the evidence of the complainant that he arrived during the scuffle He asked the complainant if he had any knife Ihe complainant 3aid he had no knife He put his hands in the pockets of his jacket to prove that he had no knife During the scuffle the complainant managed to get out of the club house ana picked up a stone and threw it at the door It hit the wall but no one was hurt He said that if the appellants were present at the club he would have seen them
Sec Lt Paul Letsie testified that on the night of the 25th June, 1983 he heard noise in the charge office He went there and found the appellants and complainant in the charge office The latter had already sustained injuries and the appellants were still kicking him and hitting him with fists They ignored his order that they should stop beating up the complainant As a result of their insubordination he instructed one Sgt Khalane (P W 5 1 to go and call Mr Mohapi who was the officer commanding The appellants stopped the assault after Sgt Khalane had left and they told him (Lt. Paul) that the complainant had killed a policeman and asked him if he remembered what had happened to fro Ntepe who had recently been
killed
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killed by people in the village while on duty He left the charge office and went to his office so that he could telephone Mr Mohapi As he left the charge office he met the deceased who appeared to be very violent Having rung the officer commanding he returned to the charge office but found that the appellant the deceased and the complainant were not there The complainant was later found lying prostrate and uncouscious under the trees near the security fence
Trooper Seturumane corroborated the complainant that when he come to the gate the second appellant hit him on the back of the head with a stick He saw when the deceased assaulted the complainant in the charge office
Dr Msulwa examined the complainant on the 26th June, 1983 and transferred him to Maseru on the 29th June, 19G3 On the 12th August, 1983 he prepared a medical report from the complainant's health book which had been filled by the doctor in Maseru
The story of the appellants was identical They testified that on the night in question they found the complainant in the charge office He had already sustained injuries It was the deceased who assaulted the complainant in the charge office At one stage the complainant said he was going to point out the knife but escaped .He escaped towards the prison and they never found him that night
D W 3 deposed that the appellants were not at the club and that the quarrel was between the complainant and accused 2 The former was armed with a knife Later the complainant was chased by many people who threw stone at him D W 4 denied
/that
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that the second appellant hit the complainant with a stick at the gate But he does not knew what happened in the charge office D W 5 is a self confessed lier (see page 24 line 2)
Mr Ramodibedi for the appellants submitted that
the complainant did not merit any credence as he must have been extremely drunk This submission is not supported by any evidence The more fact that the complainant had earlier that night been at the Crocodile Inn ana later went to the club does not mean that he was drunk We know that at the club he had hardly drunk two tins of beer when the fight started It was never shown how much beer be drank at Crocodile Inn We know that besides drinking he went there to play darts
It has been suggested that the complainant lied when he said that the appellants were at the club and that he is contradicted by P W 2 and D W 3 The former said he did not see the appellants then. The latter said he did not see the appellants There were many people at the club and failure to see them may have been due to the presence of so many people It seems to me to be a rattier strange coincidence that when the complainant arrived at the charge office the appellants were still on his heels
XL is argued that the evidence of P W 4 exculpated the first appellant (p 12 lines 23-24) P W 4 left the charge office on instructions to go and call the officer commanding He does not Know what happened after he had left but when he returned the complainant was lying unconscious under the trees In my view P W 4 ' s evidence does not exculpate the first it appellant This witness did not contradict himself in any way Li one looks at the original
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manuscript one will find that the witness said the second appellant assaulted the complainant outside the gate when he struck him on the head with a stick He did not know if he assaulted him again in the charge office
It was contended that the learned magistrate
ailed to take into consideration the likelihood of bias in the Grown witnesses who sought to implicate the appellants, particularly P W 3 who apparently did not even bother to investigate the allegation that P.W 1 had attempted to stab one of the appellants with a knife. Reference was made to the case of Mphethe Peckeche and another v Rex,CR/A/4/81 (unreported) at p 2 This case was concerned with the evidence of members of one family against the evidence of members of another family There had been a dispute over a plantation and the cause of the fight was the plantation In a case like that there is always a likelihood of bias, the same applies to cases of faction fighting In the present case the people involved are members of L M P they fail under the same commanding officer The attempt by the appellants to say that there was a friction between the C I D and the general division was not supported by any evidence When P W 3 arrived at the charge office the assault upon the complainant was already going on, he tried to stop the appellants but they ignored him This was gross insubordination by junior officers to a senior officer When they eventually stopped to assault the complainant P W 3 decided to go and telephone the officer-commanding When he returned to the charge office the appellants had dragged their victim to another spot where
/they
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they continued their assault To say that P W 3 did not investigate the allegation that a policeman had been stabbed is to ignore the sequence of the events I have stated above The next thing was that the complainant was found lying unconscious under the trees and the appellants were nowhere to be been This was followed by their arrest and investigations P W 3 did not have the chance to investigate the allegation while the assault was going on
Mr.Ramodibeli further submitted that a grave irregularity was committed by the Public Prosecutor by suppressing evidence in his possession which supported -he defence case He referred to the case of Thabang Makhakhe v Rex, 1980 (2) L L P 253 at p 255 I think that case is clearly distinguishable from the present case In that case the appellant had been charged with rape just before closing the Crown case the public prosecutor informed the court that the doctor who examined the complainant was overseas The defence counsel said he was prepared to accept the medical report made by the doctor The public prosecutor refused saying that the medical report could "prejudice the Crown This was obvious suppression of evidence which could support the defence In the present case the public prosecutor decided not to call some of the police officers whose evidence was not favourable to his case These witnesses were called by the defence There is no evidence that he expelled them from the court premises making it impossible for the defence to use them He was not expected to announce in court that he Had discarded some of the witnesses who had made statements to Mm Circumstances leading to the discovery of these witnesses by the defence have not been disclosed The public
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instrument made from these notes is not admissible unless the original is lost or destroyed I think in a case where the doctor has prepared a report from his own notes made during the examination ouch a report is admissible provided that if asked to do so the doctor would produce his notes It is true that medical evidence is very helpful to the court in a case of assault with intent to do grievous bodily harm, however, it docs not necessarily mean that without medical evidence the court cannot convict an accused person of assault with
intent to do grievous bodily harm R v Sele, 1960 (3) S A
172) In the present case the complainant was struck on the head with a stick and sustained an open wound, he was Licked all over the body with booted feet, he was hit with a stone on the left eye and sustained serious wound on the elbow and he fainted because of the assault He was admitted into hospital for two weeks as a result of the injuries. All these factors prove beyond a reasonable doubt that there was
intent to injure and to injure in a serious respect (S v
Mbelu, 1966 (1) P H , H 176 (N)Mbele 1966
I do not intend to change the verdict because despite my ruling that medical evidence was inadmissible there was overwhelming evidence to support the conviction I also do not intend to interfere with the sentence of the court a quo The assault was a very serious one and was committed in the charge office by junior officers in defiance of orders from their senior officers to stop it The appellants are police officer and ought to have known better that taking the law into their hands would land them into serious trouble- If the
/complainant ..
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complainant had committed an offence their duty was to arrest him and put him before a court of law
For the reasons I have stated above the appeal is dismissed
J L KHEOLA
J U D G E
4th March, 1905
Tor the Appellants Mr Ramodibeli For the Respondent Miss Moruthoane