IN THE HIGH COURT OF LESOTHO
In the Appeal of
SELLO KHASOANE Appellant
REASONS FOR JUDGMENT
Filed by the Hon. Mr. Justice B.K. Molai on the 11th day of March, 1988.
I have already dismissed this appeal for the following reasons.
The appellant pleaded not guilty to, but was convicted on, a charge of attempted murder, it being alleged that on or about 6th March, 1981 at or near Mantsonyane in the district of Thaba-Tseka he unlawfully and intentionally fired three shots with a pistol at Palo Boi. A sentence of 18 months' imprisonment was imposed.
The appeal was against both the conviction and sentence on the grounds that the conviction was not supported by the evidence and the sentence excessive.
In as far as it is relevant, the evidence was that on the afternoon of 6th March, 1981, the appellant who was a police officer and a relative of the complainant came to a beer house at Ha Toka in the ares of Montsonyane where the latter and other people were drinking liquor. The complainant introduced the appellant to his drinking mates. After the introduction the appellant took the liquor bought by one of the complainant's friends and used it without permission.
Complainant 's friend was unhappy with that. When the complainant rebuked him for what he did,the appellant insulted him by his mother's private ports. The complainant got offended and he too insulted the appellant by his mother's private parts.
In an attempt to defuse a fight between the appellant and the complainant, one of the latter's friends pulled him out of the beer house. The appellant followed them out. According to the crown witnesses the complainant and his friend were going to the spot where they had fastened their horses when the appellant produced a pistol and fired two shots at the complainant. The shots, however, missed the complainant who rushed at the appellant and a physical struggle between the two men ensured. They both fell to the ground and a third shot was fired during the course of the struggle.
The appellant was on top of the complainant trying to fire another shot at him when the letter's friend and other people came to his rescue. They disarmed the appellant of the pistol and pulled him away from on top of the complainant. After the fight between the appellant and the complainant had been stopped the pistol was taken for safekeeping, to a European man who
ran a shop in the village. The appellant himself was fastened and escorted to the chief's place.
The defence story was slightly different. According to the appellant he was not in possession of a pistol on the day in question. He had only a toy gun. He could not, therefore, have fired shots with a pistol at the complainant. He was assaulted fastened and escorted to the chief's place by the complainant end other villagers merely because a vehicle with a defective exhaust pipe had passed on the road next to the beer house and made explosive noise - "thoa-thoa-thoa."
Despite his denial that on the day in question the appellant was in possession of a pistol it is worth nothing that W/O Lesiamo testified that following
a report that the appellant had been assaulted at Mantsonyane he proceeded to that place on 7th March, 1981 and carried out investigation. His investigatios revealed that the appellant had been assaulted because he himself had shot at the complainant with a pistol which was subsequently taken from him end handed to the manager of Collier and Yeats shop at Mantsonyana for safekeeping. He went to the manager who handed to him the pistol. It was calibre 6.35 serial number Z243698. He showed the pistol to the appellant who admitted that it was his service pistol. W/O Lesiamo then took the pistol into police custody as exhibit. It was however, later released to the Appellant on the instructions of the officer commanding police at Thaba Tseka.
Lt. Col. Lekhooa told the court that he was the officer commanding police for the district of Thaba-Tseka. As such he was in charge of the police records at Thaba-Tseka, According to the police records in his possession, pistol No. 243698 calibre 6.35 was issued to the appellant. It was once held as exhibit by the police at Thabe-Tseka in connection with this case. He himself subsequently released the pistol to the appellant on the instructions of the then officer commanding police at Thaba-Tseka. The reason for the release of the pistol to the appellant was that the complainant had withdrawn the case which woe however, subsequently reistated by the Director of Public Prosecutions.
The trial magistrate before whom all witnesses testified accepted as the truth the crown evidence that the appellant was, on 6th March, 1981 in possession of the pistol with which he fired several shots at the complainant and rejected as false the defence evidence that he did not.
In my view the evidence was simply overwhelming against the appellant. There was, therefore, nothing unreasonable in the trial magistrate finding, as he did, that the appellant was, on the day in question, in possession of the pistol with which he fired several shots at the complainant.
That being so, the only question for the determination of the court was whether or not the appellant had the requisit subjective intention to kill.
Intention is not something that we can reach with any of our senses. It is a matter of inference to be drawn from either the words or acts of the appellant. Granted that he fired several shots at the complainant with as leathal a weapon as a,pistol there was no doubt in my mind that the appellant did have the requisite subjective intention to kill. The complainant was only lucky that all the shots missed him. By and large, I was satisfied that the appellant had committed the offence against which he stood charged and the trial court correctly convicted him.
As regards sentence the appellant who was admittedly a first offender invited the court to take into consideration that he had a wife and three young children of whom he was the sole bread winner. As a result of his conviction he was, in all probabilities, likely to loose his job as a member of the police force.
In my opinion, where, following his conviction, an accused person invites the court to consider his personal factors in mitigation of sentence, the presiding judicial officer has a duty to do so and the fact that he did must be reflected in the record of proceedings. In his written reasons for judgment the trial magistrate made no mention that he hod taken into account the factors which he was invited to consider in mitigation of the appellant's sentence. That, in my view, was en
irregularity and this court was at large as to what sentence would be appropriate for the appellant.
I took into account all the factors raised, on behalf of the appellant, in mitigation of sentence, I did not, however, turn a blind eye to the fact that the appellant had been convicted of a serious offence calling for a commensurately serious punishment. Notwithstanding the fact that there was an irregularity in the way he had approached the sentence I was not convinced that, in the circumstances of this case, it would be proper for me to disturb the sentence of 18 months imprisonment imposed by the trial magistrate.
In the result I came to the conclusion that this appeal ought not to succeed and it was accordingly dismissed.
11th March, 1988.
For Appellant Mr. Ramolibeli,
For Crown Miss Moruthoane.
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