IN THE HIGH COURT OF LESOTHO In the Matter of
v PHCELLO SOFONIA SELLO
Delivered by the Hon. Mr. Justice B.K. Molai
on the 13th day of November 1987.
The accused has pleaded not guilty to a charge of
murdering Mokete Raphoto, it being alleged that on or about 16th May,
1983 and at
or near Matebeng village in the district of Qacha's Nek
he unlawfully and intentionally killed the deceased.
Ik may be mentioned from the out set that at the close
of the crown case Mr. Seotsanyana counsel for the defence
applied for the discharge of the accused on the ground that no prima
facie case has been established against him by the crown
evidence. The application was opposed by Mr. Mokhobo, counsel
for the crown.
There is no law which compells a court of law to deal
with the question of credibility of evidence where at the end of the
application is made for the discharge of the accused
person. The court is entitled to reserve the question of credibility
end when the defence will have closed its case unless of
course it can be said the crown evidence was so hopeless that to
the applica-tion for his discharge and required the accused to
answer the charge would amount to asking him to help built a case
which the crown itself had failed to establish.
2/ In the present
- 2 -
In the present case there was evidence adduced by the
crown that the accused was seen assaulting the deceased and
him injuries that brought about his death Without
going into the question of its credibility it seemed to me there was
which on the face of it, connected the accused with the
commission of this offence, accordingly declined to deal with the
of credibility and refused the application For the discharge
of the accused person at the close of the crown case. As he was
entitled to do Mr. Seotsanyana told the court that
in that event the accused did not wish to lead any evidence in his
defence. He was, therefore, closing the defence
That being so, the court is now bound to deal with the
question of credibility and apply the test of proof beyond reasonable
to determine whether or not the accused has committed the
offence against which he stands charged.
In this regard the court has only the crown evidence to
rely upon. P.W.5, Masilo Mokhachane, is an ex-police officer who
court that in 1984 he was the officer commanding Police in
Qacha's Nek district when the accused was brought before him by his
with an explanation that he might be wanted by the police.
According to P.W.5, the accused himself told him that he was, at the
time, coming not from his home but from the Republic of South Africa.
Prior to that day P.W.5 himself knew nothing about the accuser.
Apparently after learning that accused originally Came from Mashai,
P.W.5 radioed Mashai Police who gave him a certain report following
which he cautioned and charged the accused as aforesaid*
The reason for the move taken by P.W.5 becomes clear
From the rest of the crown evidence. According to him P.W.1, Tumelo
lived in the same village with the deceased and the accused
who was, in fact his paternal uncle. Although there were rumours in
the village that the deceased was having an illicit love affair with
accused's wife he (P.W.1) had no personal knowledge of it.
3/ However, .....
However, late in the night of the day in question,
16th May, 1983, the accused woke him up saying he wanted
to go to the house of one Sechaba who was also a paternal uncle of
The accused then asked P.W.1 to accompany him to Sechaba's
place. P.W. 1 obliged and the two men proceeded first to the house
the accused who armed himself with a tomarhawk. On the way to
Sechaba'a house the accused deviated and followed the foot path
to deceased's house. To P.W.1's question why he was
deviating from the foot path leading to Sechaba's house the
no response. However, P.W.1 followed the accused to the
deceased's house. On arrival at the deceased's house the accused
pushed the door open without knocking and entered inside.
Although he initially said he had seen the accused
assaulting the deceased in the house whose door he had left open
P.W.1 later conceded
that he merely heard the blows inside the house
which was not illuminated. Bearing in mind that it was at night I do
that P.W.1 could have actually seen the accused
assaulting the deceased in the house. In all probabilities the truth
la that he
only heard the blows being delivered inside the house.
Be that as it may, according to him P.W.1 got frightened
by the blows he heard inside the house and ran to Sechaba's house
not far from the deceased's house. He reported to Sechaba
with whom he went to wake up one Mahleke. The three of them went to
On arrival they first woke up the deceased's mother from
another of the deceased's houses. When they entered into the
house they put on a light. They found the deceased lying
in a pool of blood on the floor next to the door He was breathing
and had multiple bleeding wounds on the head and face. The
accused had disappeared and was nowhere to be found.
4/ P.W.1's ..
- 4 -
P.W.1's evidence that on the night in question the
accused came to his house and asked him to accompany him
to Sechaoa's place was confirmed by his wife, P.W.2, 'Matsoanelo
who also told the court that on the late afternoon of
16th May, 1983 she had seen the accused and one Shine arriving home
their place of work at the mines of the Republic of South
Africa. After the accused and P.W.1 had left for Sechaba's place,
did not return home and P.W.2 only saw him in the morning at
the deceased's house where many villagers had gathered.
P.W.3 Motsoloane Raphoto testified that the deceased was
the son of his elder brother. On the night in question P.W.1 and
came to his house and made a certain report following which
he immediately accompanied them to the house of the deceased. He
that the deceased had sustained multiple injuries on the face
and was already dead inside his house. The death of the deceased was
reported to the chief who in vain looked for the accused.
P.W.3 later accompanied the body of the deceased when
it was being conveyed first to the police station and then to
he identified it before the medical doctor who
performed the post-mortem examination. He assured the court that the
no additional injuries whilst it was being transported
from home to the mortuary.
The evidence of P.W.4, D/S/Sgt Makara, was that on 17th
May, 1983 he was stationed at Mashai police post when he received a
report following which he proceeded to the mortuary at
Mashai. He found the deceased's body which he examined for injuries.
multiple open injuries on the face and head of the deceased.
Three days later he went to the home of the deceased. He found that
the house in which the deceased had allegedly been killed had already
been cleaned and he was, therefore, unable to find anything
could be of interest in this
5/ case. ......
case. He then looked for the accused but could not find
him. In fact he saw the accused for the first time when he appeared
the magistrate at the Preparatory Examination proceedings.
In his testimony P.W.4 confirms the evidence of P.W.3
that an autopsy was conducted on the body of the deceased. Indeed,
of both counsels a post mortem examination report was
handed in from the bar, as exhibit A. According to Exhibit A the
examination was on 19th May, 1983 performed on the body
of a male African adult by the medical officer of Qacha' Nek. The
identified as that of the deceased by P.W.3 and one Sebakeng
Maphokhe. In his findings the medical Doctor confirmed that the body
of the deceased had sustained multiple injuries on the chest, neck,
lips, cheeks, ears, back and the head. He formed the opinion
death was due to severe brain damage as a result of a fractured
There can be no doubt from the evidence of P.W.1, P.W.3
and P.W.4 all of whom saw the body of the deceased that multiple
had been inflicted on the deceased's face and head, I can
think of no good reason why the unchallenged opinion of the medical
who performed the post mortem examination that the deceased
died as a result of the injuries inflicted upon him should be doubted
in the circumstances of this case. I am prepared to accept it as the
The question is whether or not the accused is the person
who inflicted the injuries that brought about the death of the
As has been pointed out earlier P.W.1 saw the accused who
was armed with a tomarhawk entering the house in which the deceased
sleeping. He then heard the sound of blows inside the house.
Shortly thereafter the deceased was found lying in a pool of blood
with the injuries described by the crown witnesses. The accused
himself had disappeared
into thin air and was nowhere to be found. That the
accused who ordinarily worked at the mines in the
Republic of South Africa was at home on the day in question is
confirmed by P.W.2
the wife of P.W.1. I see no reason why P.W.1 and
P.W.2 who are close relatives of the accused should falsely
in this case. The fact that immediately the deceased
had been fatally injured the accused who had just returned home from
of work in the Republic of South Africa disappeared and was
not seen at his home for more than a year indicates to his guilty
By and large, I am satisfied that on the only available
evidence adduced by the crown the accused is the person who inflicted
the deceased the injuries that brought about his death. Granted
that he assaulted the deceased with a tomarhawk on the head which
a vulnerable pert of a human body it must be accepted that the
accused was aware that death was likely to result. He nonetheless
acted reckless of whether or not death did occur. That being so, I
come to the conclusion that in assaulting the deceased as he
accused hod the requisite subjective intention to kill, at lease in
the legal sense.
In the premises, I would find the accused guilty of
murder as charged.
My assessor agrees with this finding.
SGD. B.M. MOLAI JUDGE.
13th November, 1987.
Crown Mr. Mokhobo
Defendant Mr. Seotsanyana.
CRI/T/25/86 EXTENUATING CIRCUMSTANCES
I am enjoined by S.296 of the Criminal Procedure and
Evidence Act 1981 to state factors, if any that tend to reduce
the moral blameworthiness of accused's act.
I have pointed out in the course of judgment that the
accused's intention to kill the deceased was on the legal sense i.e.
no evidence that he planned or premeditated death of the
deceased. The absence of pre-meditation is in itself a factor to be
considered for purposes of extenuating circumstances.
Even if I were wrong in holding that the
accused had intention in the legal sense and the truth
of the matter was that the accused left his home with a settled
kill the deceased and not to see Sechaba, there was
evidence adduced by P.W.1, that the rumour was rife in the village
that the deceased
was having an illicit love affair with the
Assuming the correctness of P.W.1's evidence on this
point,it seems to me probable that the rumour must have reached the
was no doubt provocked by the knowledge that during his
absence at home the deceased was messing up with his wife. True
provocation may not have been such that it could reduce
murder to a lesser offence but it must, in my opinion, be properly
into account for purposes of extenuating circumstances.
Consequently I come to the conclusion that extenuating
circumstances do exist in this case and the proper verdict is that
is guilty of murder with extenuating circumstances.
SENTENCE 6 years imprisonment.
JUDGE18th November, 1987.
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