IN THE HIGH COURT OF LESOTHO In the Matter of
SEHLOHO MZINE JUDGMENT
Delivered by the Hon. Mr. Justice B.K. Molai on the
30th day of March, 1987.
The accused is before me on a charge of murdering
Molahlehi Molibeli, it being alleged that on or about 6th April, 1985
and at or
near Ha Moseneke in the district of Quthing he unlawfully
and intentionally killed the deceased. He has pleaded not guilty to
The evidence of P.W.1, Tankiso Lesia, was that on the
day in question he and the deceased went to skin a cattle which had
the way from the cattle posts. He was going on horseback
whilst the deceased who was his nephew was on foot.
On their way back home, P.W.1 and the deceased called at
certain house in the village of Ha Ramoekholo where they were given
food. Whilst they were eating, the deceased went out of the
house. When he eventually went out of the house P.W.1 found that the
deceased had gone away with his horse and he had to foot it back
As he approached their home village, P.W.1 had to pass
next to a tree plantation from which he heard the voice of the
"malome Tankiso nthuse Sehloho oa mpolaea"
(loosely translated: maternal uncle Tankiso help ma Sehloho is
killing me) or
words to that effect.
2/ P.W.1 immediately ......
P.W.1 immediately went into the tree plantation where he
found the deceased lying postrate on the ground. As it was raining
late at night he could not see any injuries on the
deceased due to darkness. After he had, in vain, tried to assist the
up, P.W.1 left to seek assistance.
He first went to the home of a certain old lady by the
name of 'Mamoiloa. There were no people except the old lady herself.
to the home of her son who was, however, not in. He then went
to his house to take off his wet clothes and put on dry ones. While
P.W.1 was putting off wet clothes at his house one Pule came and
reported that the deceased had been injured in the tree plantation.
He told Pule that he had already been there. Pule then left. This is
confirmed by Pule himself who testified as P.W.2 in this trial.
Having changed wet clothes for dry ones, P.W.1 proceeded
to Morero's place and found him in. He then returned in the company
to the spot where he had left the deceased in the tree
plantation. This is,however, denied by Pule who as we shall see later
jugment told the court that Morero came to the spot where the
deceased was lying in the tree plantation after P.W.I had already
Be that as it may, P.W.I went on to say on arrival he
and Morero found the deceased's wife and Pule already with the
deceased in the
tree plantation. They together managed to carry the
deceased to his house where they found his sister, 'Maleboea
a badly swollen face.
I may, perhaps, digress a little here and mention that
when the trial started, Mr. Mokhobo, counsel for the crown,
told the court, from the bar, that 'Maleboea Molibeli who was P.W.1
at the preceedings of the Preparatory
Examination had since died and
would not be available to testify in this trial. Her evidence
should, therefore, be admitted in evidence under the provisions of
S.227 of the Criminal Procedure and Evidence Act,
3/It was pointed
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It was pointed out to Mr. Mokhobo that if
'Maleboea Molibeli's deposition, at the Preparatory Examination
proceedings, were to be admitted, evidence had to be adduced
to the satisfaction of this court that she was in fact dead and her
deposition in the proceedings of the Preparatory Examination
correctly recorded. No such evidence had, however, been adduced
before this court. That being so, the deposition of 'Maleboea
could not, in my view, be properly admitted in evidence in
Similarly a disputed application to admit in evidence
the post mortem examination report of an expatriate medical doctor
who had allegedly
left the country could not be allowed for want of
evidence on oath that the doctor had in fact left the country and,
available to testify in this trial.
It will also be remembered that under a separate
judgment dated 19th September, 1986 I made a ruling disallowing an
leave to lead additional evidence of the
investigating officer who had not testified at the Preparatory
Examination. We have, therefore,neither
the evidence of the
investigating officer nor the medical evidence as to the course, of
death in this trial.
Returning now to his evidence, P.W.1 testified that,
after he had been carried into his house, the deceased was undressed
for injuries. It was then that he noticed that deceased
had two open wounds on the head, a cut on the lower lip, a cut on the
which was hanging and a broken arm whose bone was protruding.
According to him, P.W.1 had to spend the night with the
deceased and his wife while Pule and Morero returned to their
At about dawn on the same night, the deceased
passed away. He (P.W.I) then went to report to the chief who detailed
have the accused arrested. The accused was accordingly
arrested and eventually escorted to the police.
4/ The evidence ........
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The evidence of P.W.2, Pule Molibeli, was that he and
the deceased were staying together although they slept in different
On the night of 6th April, 1985 he was already in bed when
the accused knocked at the door and asked the whereabouts of the
Although he did not get out of bed and open the door P.W.2
recognised the accused by his voice. He told the accused that he did
know if the deceased were in the house in which he normally
slept. The accused then left and walked in the direction towards the
deceased's house. Shortly thereafter P.W.2 heard the accused
returning and saying "O utloile ka sebono ngoan'a ntja"
translated: He had heard through his anus the child of a
as the accused passed next to his house on his way from
the house in which the deceased normally slept, P.W.2 got out of bed
through the window to make double sure that the person
outside his house was the accused. He then saw and recognised the
by his face and a maroon hat which was covering neither the
forehead nor the ears. The accused was wet as it was raining.
If P.W.2 had to peep through the window to make ,
double sure that the person outside his house was the accused, it
that P.W.2 had not definitely identified the
accused by his voice. Having regard to the fact that it was a rainy
dark night, I find
it improbable that P.W.2 could have recognised a
maroon colour of the accused's hat and that it was not covering both
and the ears.
Be that as it may, P.W.2 went on to say about 45 minutes
after the accused had left, two women, 'Mathuso and 'Mathabo
to him and made a certain report concerning the
deceased - Neither of the two women was, however, called as a
witness. We do
not, therefore, know how they came to know about the
deceased - According to him, P.W.2 took some matches and accompanied
women to a spot in a nearby wattle tree plantation where they
found the deceased lying on the ground. He was uttering the words:
"malome Tankiso, nthuse Sehlono oa mpolaea". P.W.2 lit a
match and noticed some blood on the deceased's head. He tried
raise up the deceased but could not. As has been pointed
5/ out ........
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out earlier he confirmed the evidence of P.W.1 that he
made a report to him.
According to P.W.2.when he left P.W.1's place he went to
call one Michael Lekorotsoana on the instructions of P.W.I himself.
Michael Lekorotsoana then proceeded to where the deceased was
lying in the tree plantation.
While P.W.I had testified that when he returned to the
tree plantation he found P.W.2 with the two women at the spot where
was lying, P.W.2 denied and told the court that he and
Lekorotsoana found P.W.I already there with the two women. They tried
the deceased but all in vain. P.W.I then sent him to go and
find something with which to carry the deceased. He went to the home
of Maaumane Lekete and brought a canvas with which they were able to
carry the deceased to his house. After this P.W.2 returned to
house to sleep.
It did not come to P.W.2's mind that the deceased had
sustained serious injuries, otherwise he would have suggested that he
be taken to hospital for treatment. Nor did he believe that
when he said: "maternal uncle Tankiso, help me Sehloho is
me", the deceased was anticipating death.
Assuming the correctness of P.W.2's evidence that when
he uttered those words the deceased was not anticipating death, it
accepted that the words are inadmissablc hearsay evidence and
no evidential value can be attached to them.
P.W.3 'Nyane 'Molai, was one of the messengers detailed
by the chief to arrest the accused. He (P.W.3) was going in the
two other messengers and P.W.1. After he had been traced
in the village the accused was brought to P.W.3 at the home of the
The accused was fastened, escorted to his house and ordered
to produce all the weapons he had used to assault the deceased.
There is a lot of contradiction as to what happened when
the accused was ordered to produce the weapons he had used to assault
deceased. According to P.W. 1 the accused
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a stick and only in the course of a search did P.W.3
find an iron rod and two spears. This is, however, denied by P.W.3
who told the
court that the accused himself produced the two spears.
According to P.W.I the accused then took the messengers to the scene
where pieces of a broken stick were found. This is again
denied by P.W.3 according to whose evidence the messengers were taken
the scene of crime by P.W.1 himself who picked up pieces of the
In the light of this contradicting evidence, I have a
doubt as to whether any of the weapons alleged to have been used to
the deceased were in fact produced, or pointed out by the
accused. In our law, the benefit of such a doubt is always given to
An application for the discharge of the accused person
was made at the close of the crown case. I declined to deal with the
of credibility at that stage and refuse the application on
the ground that on the face of it, the crown evidence did establish a
prima facie case. As it was perfectly entitled to do, the
defence told the court that in that event it was closing its case
without calling the
accused into the witness box or leading any
evidence in his defence.
In the first place, there is no direct evidence that the
accused is the person who assaulted the deceased and brought about
We can only rely upon circumstantial evidence adduced by
P.W.2 that he had positively identified the accused as the person who
hunting the deceased on the night in question. I have, however,
indicated in the course of this judgment that P.W.2's evidence that
he had positively identified the accused is, to say the least,
It may, indeed, be added that according to the evidence
adduced by both P.W.2 and P.W.3 the accused was a friend of the
whom he ploughed the fields. The accused had,
therefore, no apparent motive to assault the deceased. On the other
hand it would appear
that the deceased must have offended P.W.I by
taking away his horse without permission when they were at the
Ha Ramoekholo. It was, therefore, P.W.1 who had the
apparent motive to assault the deceased.
If it were to be properly drawn from circumstantial
evidence a conclusion must be based on proven facts as the only
In the present case I am unable to hold that the
facts are such that the only reasonable conclusion to be drawn from
them is that
the accused is the person who has assaulted the deceased
and brought about his death.
I have, therefore, no alternative but to find the
accused not guilty and discharge him.
My assessor agrees with this finding.
B K. MOLAI JUDGE.
30th March, 1987.
For Crown : Mr. Mokhobo For Defendant: Mr.
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