IN THE HIGH COURT OF LESOTHO In the
matter of :
v RAMASHAMOLE QOBOSE
Delivered by the Honourable Acting Chief Justice Mr.
J.L. Kheola on the 3rd day of November, 1986.
accused is charged with murder, it being alleged that on the 6th day
of December, 1984 and at or near Bela-Bela in the district
he unlawfully and intentionally killed 'Mamokete Qobqse. The accused
pleaded guilty to the charge but his counsel, Mr. Rakuoane,
informed the court that according to his instructions the proper plea
should be that of not guilty. A plea of not guilty was entered.
Although the defence admitted the entire preparatory
examination record as evidence before this Court, Miss Nku,
for the Crown decided that the Court should hear the evidence of Dr.
Mohapeloa. His evidence is summarised in his report which reads
- 2 -
"MEDICAL REPORT REX vs RAMASHAMOLE QOBOSE
X hereby testify that I examinsed the accused,
Ramashamole Qobose, and I have scrutinized all documents relevant to
his case. In addition
I interviewed the grandparents who brought up
I first examined the accused on March 1st 1985 and my
final report is based on clinical findings covering the period from
till 22nd October 1986 when I last examined the accused at
At the time of my final examination the accused was in a
normal state of both mental and physical health. It transpired that
had suffered from epileptic fits for several years, but
he has not had any fits nor has he exhibited abnormal behaviour since
detention at the Central Prison, with regular administration of
an anti-epileptic drug.
Bearing in mind my report dated 24th June, 1985 exhibit
"A" of the preliminary Examination Record -I must revise
which I expressed on the personality of the accused. I do
so on the basis of further observation of the accused and deeper
into his early psycho-social development.
As already stated, Ramashamole suffers from epilepsy.
The aberrations of personality which he showed in the past are
to untreated epilepsy.
I am satisfied that the accused is fit to stand trial;
and that he was in a state of diminished responsibility due to
the time of the alleged offence.
It is now my opinion that Ramashamole will probably load
a normal life provided that he continues to receive proper care
LENNOX M. MOHAPELOA, M.B. CH.B. (Natal) D.P.M (England)
F. PSYCH (Vienna)
OF MENTAL HEALTH SERVICES."
The state of the mind of the accused at the time of the
alleged offence becomes relevant only after the Crown has proved
reasonable doubt that the accused committed the alleged act
of killing the deceased.
The Crown evidence was to the effect that on the 6th
December, 1984 the accused and the deceased were seen together going
the village. It was in the afternoon. The deceased was a
young child of two years of age. At dusk it was discovered that the
was not at her home and a search for her was launched. The
accused was asked about the deceased but his answer was that he did
know where she was. Later that evening the dead body of the
deceased was found in a kraal far from where she had been seen in the
company of the accused. There were scratches around her neck which
clearly indicated that she had been strangled.
According to medical evidence death was due to lack of
blood to the brain and lack of air to the lungs. Both conditions were
pressure applied to the neck. There were scratches, which
could have been caused by nails, on the left side of the neck and
going from one ear to the other on frontal part of the neck
indicating firm pressure over trachea.
The evidence of one of the Crown witnesses at the
preparatory examination, one Sele Qobose (P.W.5) was that on the
following day when
the accused was being escorted by villagers to the
police station, he had the opportunity of asking the accused what he
to the deceased. The accused said that "he killed
deceased and further he killed mine, by the name of Tsokolo.
Accused was frightened, accused is normal, but sometime he
The words I have undescored are very important in the
case because the Crown is submitting that the accused made a
are also important because they tend to show the
state of mind of the accused at the time he uttered them.
Section 228 (1) of the Criminal Procedure and Evidence
Act 1981 provides as follows:
"Any confession of the commission of any offence
shall, if such confession is proved by competent evidence to have
by any person accused of such offence (whether before or
after his apprehension and whether
on a judicial examination or after commitment or whether
reduced into writing or not), be admissible in evidence. against such
provided the confession is proved to have been freely and
voluntarily made by such person in his sound and sober senses and
having been unduly influenced thereto",
The question which immediately arises is whether the
accused can be said to have been in his sound and sober senses when
he said he
killed the deceased. Although the accused was not legally
insane at the time he made the admission or confession, there is
evidence that he was in a state of diminished
responsibility. He was being escorted by a group of villagers and was
the evidence of Sele Qobose was that the accused
sometimes behaves in an unusual manner. I have considered the matter
and have come
to the conclusion that it cannot be said that the
accused was in his sound and sober senses when he made the
It has not been proved that he knew what he
The evidence of Sele Qobose was unsatisfactory in the
sense that it showed some bias against the accused. He said that he
information that the deceased had been seen in the
company of the accused at dusk. There is no such evidence that
accused and deceased
were seen together at dusk; the evidence before
the Court is that they were seen together during the afternoon and
that the dead
body was found at dusk far from where they were seen
together. It seems to me that anything could have happened during the
I have come to the conclusion that the evidence against
the accused is so flimsy and unsatisfactory that it cannot be said
Crown has proved beyond a reasonable doubt that the accused
killed the deceased.
The accused is found not guilty and is discharged. My
J.L. KHEOLA ACTING CHIEF JUSTICE.
3rd November, 1986.
For Crown - Miss Nku For Defence - Mr. Rakuoane.
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