IN THE HIGH COURT OF LESOTHO In the matter of
V RALITAPOLE SEPHAPO
Delivered by the Hon. Mr. Justice M.L. Lehohla on the
1st day of August, 1990.
The accused was charged before the Teyateyaneng
Subordinate Court with the crime of assault with intent to do
grievous bodily harm.
The victim was P.W.1 Tsiloko Qoai a 50 year old
man who according to the medical report was wounded all over the face
and head. He
suffered laceration of the scalp and both his eyes were
ruptured through use of a blunt object wielded with severe force,
to state the complainant sustained loss of sight in both
eyes. The assault was effected on 8th October 1989 at or near Ha
in the district in question.
When this matter came on automatic review from the
Subordinate Court which had convicted the accused as charged and
imposed a six
year prison term, this Court ordered that the accused
should come prepared to argue why in the event that the conviction is
the sentence should not be appreciably enhanced.
The court below gave a proper evaluation of P.W.1's
evidence. P.W.1 was the only eye witness to the assault, before he
He testified to its cause, course and result. The
terminal portion of the assault was testified to
by P.W.2 who was attracted to the scene by someone
"Ntate Ralitapole leave me alone as you have
already finished me."
P.W.2 testified that he approached the accused and
P.W.1. He observed that they were holding each other fighting.
did he say he saw the accused use a stick to gouge out
any of P.W.1's eyes. He testified that he observed that the
head was covered with blood. It would seem
therefore that when P.W.2 came to the scene P.W.1 was already blinded
in both eyes.
Taken along with the fact that P.W.2 heard the voice of
someone calling out the accused's name and pleading that the accused
let him be it can safely be concluded that the caller was the
complainant and that the fight attested to by P.W.2 was in fact not
fight in the sense of both people exchanging blows but a struggle in
which a blinded party was desparately clutching at his assailant
stop him effecting further damage.
I would reject therefore the argument that it would
appear the fight had to be going on when P.W.2 came to the scene
because the accused was defending himself. How -? From a
blind man -?
My view is based on the fact that when the first eye had
been ruptured P.W.1 must have been doubled up with pain to the extent
he was effectively put out of the fight. Thus there was no need
to rupture his second eye by means of poking at it. Poking at the
conveys to me a deliberate act calculated at blinding one's victim.
P.W.1 testified that he was riding on horseback when the
accused came and walked along side the right side of P.W.1's mount.
was holding a horse whip. The accused was asked by P.W.1 why he
spoke about P.W.1's daughter who had eloped to Machoaboleng. The
accused took offence and swore at P.W.1.
P.W.1 turned his head to face the accused who hit P.W.1
on the forehead with a stick and spilled him to the ground.
When P.W.1 tried to rise the accused poked at P.W.1's
eye with a stick. P.W.1 fell backwards and when he tried to sit up
poked at P.W. 1's remaining eye and effectively blinded
him. Then the accused continued belabouring him until P.W.1 heard a
voice pleading that the accused should let go of P.W.1. The
court below believed P.W.1. See section 238 of our C.P. & E Act 9
In his evidence the accused gave a garbled account of
the encounter which in my view was properly rejected by the trial
The accused failed to say why he never put to P.W.1 that
P.W.1 had waylaid him. He failed to say why he never put to P.W.1
had insulted him. He failed to put to P.W.1 the fact that
P.W.1 had whipped him. He did not gainsay P.W.1's version that the
felled him from his mount with a stick blow to the forehead.
Accused's counsel attributed these failures to the fact
that the accused was not represented and is unsophisticated. But in C
(CIV) No. 5 of 1988 Letlatsa vs Letlatsa (unreported) at
5 Schutz P. said :
"Mr. Maqutu claimed that this happened
because of the inexperience of the cross-examiner. This may or may
not be so, but if he was inexperienced
that fact should not be
visited on the plaintiff."
It is worth mentioning that the learned Judge in that
case warned against
".....turning the rule in Small vs Smith
1954(3) 434 (SWA)
on its head. The rule exists because it is only fair to
the witness, and to the party calling him, that the
- 4 -
witness be given an opportunity to comment and perhaps
to rebut the (other's) version and because the party calling the
entitled to know which facts are in issue and which not."
I am not unmindful of that learned Judge's statement of
the law in C of A (CRI) 7 of 1989 Naro Lefaso vs Rex
(unreported) at 7 to 8 that
"Indeed it was not put to the two eye witnesses
even that the appellant had not been at the scene of the crime. The
the defence to put the salient parts of the defence case to
the relevant crown witnesses has been stressed by this Court over and
over again. One reason for putting the defence version is to give the
crown witnesses a chance to counter it. Another is that crown
is entitled to assume that a fact is not in issue if it has been
deposed to and is not challenged in cross-examination. There
call on prosecuting counsel to call further witnesses to prove a fact
which is not in issue. From an accused person's point
of view failure
to reveal his version before he gives evidence leads to the natural
inference that he has concocted a version at
the last minute, even
though such an inference should not always be drawn."
This is one such occasion when it should be drawn. The
accused's life was in no danger at all when he embarked on this
that has resulted in the victim being blind for life,
saying nothing of the pain that he must have suffered in the process.
assuming the accused was threatened with a horse whip, that did
not justify the savage maiming of another for life.
I accordingly confirm the verdict of the court below but
set aside the sentence on grounds of manifest inadequacy and in
thereof impose an imprisonment term of eight (8) years.
J U D G E. 1st August, 1990.
For Crown : Miss Moruthoane For Defence : Mr. Fosa.
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