IN THE HIGH COURT OF LESOTHO
the Matter of :
Delivered by the Hon. Mr. Justice B.K. Molai on the
1st day of June, 1989.
The accused is charged with the crime of murdering one
Lilemo Mokhesi, it being alleged that on or about 10th September,
at or near Machekoaneng in the district of Maseru he
unlawfully and intentionally killed the deceased. He has pleaded
to the charge.
At the commencement of this trial Mr. Sakoane,
counsel for the crown accepted the admissions made by Mr. Mpopo,
counsel for the defence, that the defence would not despute the post
mortem examination report performed on the body of the deceased
well as the deposition of D/Tpr Raboqa,who was P.W.3 at the
proceedings of the Preparatory Examination. The deposition of D/Tpr
Raboqa and the post mortem examination report were, in terms of the
provisions of S.273 of the Criminal Procedure and Evidence
Act, 1981, accordingly accepted as evidence. It became unnecessary,
therefore, to call D/Tpr Raboqa and the medical doctor
who had compiled the post mortem examination report as
witnesses in this trial.
It is common cause that Khadebe Mokhesi and 'Neko Jimisi
identified the body of the deceased before a medical doctor who at
2.20 p.m. on 11th September, 1985 performed a post mortem
examination on the body. The external examination revealed that the
had sustained the following injuries: a laceration on
the left frontal region of the head, bruises of both cheeks,
of the right shoulder and the lower right eyelid. Upon
opening the body, the medical doctor found that the deceased had a
of the skull on the frontal region, blood over the
epicranium and a laceration of the brain tissue. On these facts the
formed the opinion that the deceased had died as a
result of intra cranial haemorrhage.
I can think of no good reason why the unchallenged
opinion of the medical doctor that the deceased died as a result of
haemorrhage should, in the circumstances of this case,
be disturbed. That being so, the important question for the
of the court is whether or not the accused is the
person who inflicted the injuries upon the deceased and, therefore,
In this regard, the court heard the evidence of P.W.3,
Sello Rankoe, who testified that on the day in question he and the
were at a beer house in their village. There was a time when
the accused complained that a woman by the name of 'Mantsoaki was
abusive language against him for a cattle which had apparently
trespassed in her crops. This is confirmed by the
3/ accused according .......
- 3 -
accused according to whom the cattle belonged to one
Joshua and not him.
It is common cause that P.W.3 persuaded the accused to
ignore the quarrel he had with 'Mantsoaki. The accused then left for
which were grazing at some distance away. On arrival at
the cattle accused inquired from a herdboy who was looking after the
where the deceased was. The herdboy, who, however, did not
testify in this trial, pointed out where the deceased was.
It may perhaps be mentioned at this stage that the
deceased was a little boy of about 7 or 8 years old, an illegitimate
child of accused's
unmarried daughter. The accused himself was the
person who brought up the deceased.
P.M.3 further told the court that when the deceased was
pointed out to the accused, the latter angrily asked the deceased
was doing as 'Mantsoaki was insulting him for cattle that
were trespassing in her crops. There was no response from the
who was, in any event, out of P.W.3's view. P.W.3 only heard
the accused instructing the deceased to bring a donkey to him. He
noticed the donkey which was kneehaltered coming to the accused.
The accused caught hold of the donkey unkneel-haltered and mounted
Shortly thereafter, P.W.3 noticed the deceased running
passed the beer house outside which he was seated. The deceased who
on the donkey was chasing him. When he asked him why he
was chasing the boy, accused told P.W.3 that the latter was
They chased each other until they went out of his
Thereafter P.W.3 left the beer place for his house.
Whilst he was on his way home, P.W.3 heard one Mosiuoa Chaole,
raising an alarm
that a donkey was running away with a child. When he
looked around P.W.3 noticed accused's donkey running out of a donga
in the direction
towards the accused's home. As it ran away the
donkey was dragging along the deceased.
P.W.3 ran for the donkey and when he passed him next to
the donga asked the accused why he had tied the child to the donkey.
replied that he had not tied the deceased to the donkey but
the latter had entangled himself with the rope with which he was
it to the veld. P.W.3 left the accused and ran after the
donkey which was eventually stopped, in front of accused's house, by
Pakiso. When he unfastened it from the deceased's left wrist,
P.W.3 found that the rope had been tied twice around the wrist. As
the terrain over which he was
being dragged by the donkey was stoney, the deceased had
and his skull was removed. He was already dead.
The accused eventually came to where the donkey was
stopped and asked whether the deceased was dead. According to him,
in the affirmative. The deceased was carried to a place
next to Mazenod mission from where he was transported in a vehicle to
mortuary at Queen Elizabeth II hospital.
In his evidence, P.W.1, Mosiuoa Chaole, told the court
that on the day in question 10th September, 1985, he was walking
village in which he and the accused lived. He then
noticed the deceased running and the accused, who was ridding on a
him. As the deceased was running towards him, P.W.1
was asked by the accused to get hold of the boy.
5/ He refused
He refused to do so because he realised that the accused
wanted to beat up the child. He was against the beating up of
The accused then called at one boy by the name of Mosito
and asked him to get hold of the deceased. Mosito ran after, and
of, the deceased. THe took the deceased to the accused
who then threw him down. Thinking that the accused was just going to
the deceased moderately, P.W.I continued on his way home.
When he looked back P.W.1 noticed accused's donkey emerging from a
It was running and dragging along the deceased.
P.W.1 confirmed the evidence of P.W.3 that he raised an
alarm as a result of which he and many other people ran for the
was eventually stopped by Pakiso and one Sekofolo. When
he came to where the donkey had been stopped, P.W.1 found the
dead and unfastened from the donkey. He assisted in
carrying the deceased into the house of accused. When he asked the
he had requested him to get hold of the deceased so
that he could kill him, the accused wanted to fight him. He was,
from doing so by other people. On the request of the
accused's wife and one 'Mantala P.W.1 went to report to the chief
what had happened
to the deceased. On his return from the chief's
place he found that the deceased had already been taken to the
The evidence of P.W.2, Mosito Rankoane, was that on the
afternoon of 10th September, 1985 he was herding his animals when
noticed the deceased running away and being chased by the accused
6/ who was
- 6 -
who was ridding on a donkey. He also noticed P.W.1
walking on a footpath about 60 paces away from him. On the request of
, P.W.2 ran after the deceased, caught hold of, and
handed him over to the accused who was then waiting in a donga. When
threw the deceased down and started whipping him with his
plastic sjambok, P.W.2 returned to his cattle.
As he was going to the cattle P.W.2 had the occasion to
look back and noticed the deceased walking in front of the donkey
accused was whipping it from behind. They were emerging
from the donga in which the accused had been whipping the deceased.
some distance away and could not tell with any certainty
whether the deceased was holding the rope by which he was leading the
in the direction towards the veld or the rope was actually
fastened around his hand.
Shortly thereafter, P.W.2 noticed the donkey running
back towards the donga. The deceased had fallen down and the donkey
him along. As the donkey emerged from the other side of
the dongar still running and dragging along the deceased, the accused
from inside the donga and asked him to stop the donkey. P.W.2
did run for the donkey which, however, outran him until it was
by Pakiso outside the accused's house.
When Pakiso, who is the elder brother of the deceased,
stopped the donkey. P.W.2 went to his house and reported to his
had happened. He then went to accused's house where he
learned that the deceased had been taken to the hospital.
7/ The accused ...
The accused gave evidence on oath and confirmed the
evidence of P.W.3 that following his quarrel with 'Mantsoaki at the
he proceeded to his animals which were grazing some
distance away. According to him, the accused wanted to get his donkey
he could ride on it and go to the cafe to buy some tobbacco.
After getting hold of the donkey he instructed the deceased to go
so that on his (accused's) return from the cafe he could take
the donkey back to the veld.. While he was on his way to the cafe the
accused noticed that the deceased was not going home as he had
instructed him. He returned to the deceased and again instructed
to go and wait for the donkey at home. However, the deceased started
Realising that the deceased was refusing to obey his
orders the accused wanted to descipline him and so he chased him. As
was outrunning him the accused conceded that he then
called at P.W.2 and asked him to get hold of the boy so that he could
up for refusing to obey his orders. According to the
accused, P.W.I was nowhere in the vicinity at that time. He denied,
to have asked him to get hold of the deceased.
As it has already been pointed out, P.W.2 told the court
that at the time he saw the accused chasing the deceased, P.W.1 was
on the footpath about 60 paces away from hid. I must say I
observed all the witnesses as they testified from the witness box. 1
satisfied that P.W.2 was a truthful witness. There is no doubt in
my mind that he and P.W.1 were testifying to the truth when they
the latter was in the
8/ vicinity at ....
at the time the accused was seen chasing the deceased. The accused
is,therefore, not being honest with this court in his
P.W.1 was in the vicinity at the time he was chasing the deceased.
As for the reasons why the accused chased the deceased
it is significant that none of the witnesses who testified in this
when he started chasing him. They were all out of view. The
accused's herdboy who was next to the deceased at the time the chase
started was not called as a witness. The accused's evidence that he
chased him because the deceased had refused to obey his instructions
may well be the truth.
Returning to his testimony, the accused confirmed the
evidence of P.W.2 that the latter caught hold of the deceased and
over to him. He was then waiting in the donga where he
threw the deceased down and whipped him once on the legs and twice on
shoulders with a plastic whip or sjambok.
According to him, the accused was no longer interested
in going to the cafe. He handed the donkey over to the deceased with
to take it back to the veld. When the deceased left
with the donkey he remained in the donga relieving nature. It was
whilst he was
relieving nature in the donga that he noticed the
donkey running back home and dragging the deceased on the ground. He
that he then called at P.W.2 and asked him to stop the
donkey which, however, outran him (P.W.2). He himself ran after the
which was eventually stopped in front of his house. He found
Pakiso, 20 years old elder brother of the deceased, and P.W.3 already
holding the donkey. The
9/ deceased who
deceased who had sustained head injuries had already
been unfastened from the donkey. He (accused) was, therefore,
not in a position
to tell the court who, between Pakiso and P.W.3 had
actually unfastened the deceased from the donkey.
The accused then immediately went to look for a vehicle
in which to rush the deceased,who was still alive, to Queen Elizabeth
On arrival at the hospital, the deceased was, however,
certified dead. He carried the body of the deceased to the hospital
and subsequently reported the incident to the police.
D/Tpr Raboqa confirmed that on 11th September, 1985 the
accused reported this incident to him and handed over the rope and
sjambok. According to the police officer, the accused
explained that the deceased was pulling the donkey to the veld when
accidentally entangled around his wrist and the donkey ran
away with him. The police officer attended the scene of accident and
found that the place where the donkey was allegedly dragging the
deceased was full of stones.
According to the accused, after he had lashed him in the
donga, the deceased left with the donkey for the veld. He was leading
by the rope which was fastened to its neck. In his evidence before
this court the accused again denied that he had fastened the rope
around the deceased's wrist. He, however, told the court that he
ordinarily worked with animals and whenever me of them was being
stubborn he usually fastened it with a rope which he coiled around
his hand in order to have a firm grip. The deceased who usually
worked with him
10/ had seen ....
had seen him do it. It was possible, therefore, that
whilst the deceased was leading it to the veld the donkey became
wanted to return home. The deceased could then have
coild the rope around his hand hoping to have a firm grip and stop
However, he could not successfully do so because of his
tender age. When the donkey ran away with him the rope which he had
around his hand could have tightened up on the deceased's
wrist with these tragic consequences.
It is important to remember that apart from P.W.3's mere
assumption that the accused had fastened the rope twice around the
wrist none of the witnesses told the court that he had
seen the accused actually doing so before he instructed the boy to
donkey back to the veld. There is, therefore, only the word
of P.W.3 against that of the accused on this issue. I must, however,
point out that P.W.3 is a witness who, in his deposition before the
magistrate at the Preparatory Examination proceedings testified
when he was transported from home to the hospital the deceased was
still alive. In his evidence before the High Court he now
the other crown witnesses that when he left home for the hospital
the deceased was already dead.
It is also worth mentioning that when he started giving
evidence before this court P.W.3 clearly said he was never employed
accused. However, it later turned out that there were
occasions when the accused had, in fact, employed him to do certain
which he was paid money.
In my view, P.W.3 was not an entirely reliable witness
and it would be totally unsafe to accept his evidence, that the
11/ had tied ........
had tied the rope twice around the deceased's wrist,
unless such evidence was corroborated by that of a more reliable
was evidence suggesting that at the time P.W.3 was
unfastening the rope from the deceased's hand Pakiso and
Sekofolo were present.
Indeed, Pakiso himself gave evidence at the
Preparatory Examination proceedings. It was, therefore, the easiest
thing for the crown
to call him as a witness in support of P.W.3's
story. Both Pakiso and Sekofolo were, however, not called as
witnesses in this
trial by the crown counsel who told the court that
he was making Pakiso available for the defence, if it so wished. The
to be drawn from this is that Pakiso was not going to
support the crown evidence that the accused had tied the rope twice
the deceased's wrist. That being so, I am inclined to accept
the accused's evidence that when he instructed the deceased to take
the donkey back to the veld he had not fastened the rope around his
It was not really disputed that the terrain over which
the donkey was dragging the deceased was stoney. For obvious reasons
sustained the head injuries that admittedly brought
about his death whilst he was being dragged over that stoney place by
However, in the absence of any conclusive evidence that
the accused had deliberately fastened the deceased to the donkey I am
to find that the accused can properly be held responsible for
the injuries that brought about his death. The question I have
posted viz. whether or not the accused is the person who
inflicted the injuries upon the deceased and, therefore, brought
death must bee answered in the negative.
12/ It is
the boy for refusing to obey his orders. That, in my view, cannot be
regarded as unlawful assault on the deceased. It was a moderate
punishment which, in the circumstances of this case, was permissible
Having found, on evidence, that he cannot be held
responsible for the injuries that brought about the death of the
deceased, it necessarily
follow that I am unable to find that the
accused has committed the offence against which he stands charged. I
would accordingly find
him not guilty and discharged.
My assessor agrees with this finding.
B.K. MOLAI BJUDGE 1st June, 1989.
For Crown : Mr. Sakoane, For Defendant : Mr.
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