CRI/T/37/89 IN THE HIGH COURT OF LESOTHO
the Matter of :
v PHONDO KHESUOE
Delivered by the Hon. Mr. Justice B.K. Molai on the 12th
day of February, 1990
Held at Butha-Buthe
The accused person is before me on a charge of murder,
it being alleged that on or about the 10th day of August, 1988 and at
Thabang in the district of Mokhotlong he unlawfully and
intentionally killed one Thabang Mfundisi.
When the charge was put to him, the accused, who is
represented by Mr. Fosa in this case, pleaded guilty to culpable
Mokhobo for the Crown, accepted the plea of guilty to
culpable homicide tendered by the accused person.
Section 240 (1)(a) of the Criminal Procedure and
Evidence Act, 1981 provides:
"240 (1) If a person charged with any offence
before any court pleads guilty to that offence or to an offence of
which he might
be found guilty on that charge, and the prosecutor
accepts that plea the court may -
(a) If it is the High Court, and the person has pleaded
guilty to any
offence other than murder, bring in a verdict without
hearing any evidence;"
As it has already been indicated, the accused who is
represented by a lawyer has pleaded guilty to culpable Homicide which
is an offence
of which he may be convicted on a charge of murder. The
Crown has accepted the plea of guilty to culpable Homicide tendered
accused person. In terms of the provisions of the above cited
Section 240 (1)(a) of the Criminal Procedure and Evidence Act, 1981,
I would, therefore, convict the accused of culpable Homicide in
accordance with his own plea.
Both my assessors agree.
SENTENCE : Coming now to accused's sentence, the court
has been invited to consider a number of factors in mitigation. They
been eloquently tabulated by the defence counsel and there is no
need for me to go over them again. Surfice it to say, in addition
take into account the fact that in accordance with our custom, the
deceased's relatives will, in all probabilities, sue the accused
civilly to raise his head. In other words, this court is only the
first to punish the accused person. There is still a civil court
before which he is likely to appear for yet another punishment. To
avoid the accusation that the courts of law punish a person twice
the same offence, I want to make it clear that in imposing the
sentence I am going to impose on the accused I have taken into
account the fact that there is yet another court which will, in all
probabilities, punish him.
3/I am also concerned ..........
I am also concerned about what I have been told in
mitigation viz. that the relatives of the deceased want to retaliate
on the accused
* person. Assuming the correctness of this, I am of
the opinion that there is the need to keep the accused away from the
of the deceased with the hope that by the time he returns
to their midth their tempers will have subsided.
Having considered on behalf of the accused person. all
these factors I am, however, not prepared to turn a blind eye to the
with which he has been convicted. It is a serious offence
calling for a commensurately serious punishment - A punishment that
deter the accused and serve as a reminder to people of his mind
that the courts of law do not encourage people to take the law into
their own hands. I am saying this mindful of what I have been told
viz. that the accused acted in self-defence. I agree that the
may have initially tried to defend a woman who was apparently being
molested by the deceased. However, it seems the accused
got a chance
to leave the deceased and went to his house from where he returned
armed with a knife with which he stabbed him. When
he thus returned
from his house and stabbed the deceased, the accused was the
aggressor and, in my view, self-defence could not avail
4/ By and large .......
By and large, I come to the conclusion that the
appropriate sentence for the accused person would be four (4) years
I accordingly sentence him.
B.K. MOLAI JUDGE.
12th February, 1990.
For Crown : Mr. Mokhobo For Defence: Mr. Fosa.
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