HIGH COURT OF LESOTHO
matter between :
by the Honourable Mrs.Justice KJ.Guni On the 5th February 2003
accused in this matter is charged with the counts:- The first count
is the charge of murder. It is being alleged that on the
19 day of
March 2000 at HA - RAKHELELI in the district of BEREA, the accused
did unlawfully and intentionally kill by shooting
accused tendered a plea of guilty to Culpable Homicide. He admits
that he killed the deceased by shooting at her but denies
that he did
so with the intention to kill her. The crown refused to accept the
plea of guilty to Culpable Homicide. The plea of
not guilty to the
charge of murder was entered on behalf of the accused by the court.
Therefore the crown had to
before court the evidence to support the charge of murder against the
second count the accused is charged with the crime of contravening
section 3 (2) (a) of THE INTERNAL SECURITY (ARMS and AMMUNITION)
No.17 of 1966. To this charge the accused tendered a plea of guilty.
The crown accepted the plea which the defense counsel
that it was in accordance with his instructions. The court entered
the plea of guilty on behalf of the accused in
respect of count II.
for the accused's denial that he unlawfully and intentionally shot
and killed MATATOLO LECHEKO, most of the deceased were
together. The accused and the deceased are a brother and
sister-in-law to each other. The accused is married to the
home where the accused's wife, resided at that time. They were on
their way back to their own homes at HA - RAKHELELI.
claimed he missed his wife whom he then visited early in the morning
of that day. Apparently the deceased also visited
her own parental
home which according to the accused was being redecorated.
donga, near the forest, the accused and the deceased found 53 years
old man by the name of RAMONYAKHENG MOHAPI - PW1 in this
tried to talk to the accused who appeared to him to be in a hurry
because the accused hurriedly walked passed P.W.I as
he tried to
speak to him. The deceased although she did not actually stop, she is
alleged to have paid attention to P.W.1s effort
to engage them in a
brief conversation as
walked passed him. She talked to P.W.I, however briefly, not totally
ignoring him as the accused did.
deceased and the accused came out of that donga before that old man.
They approached the forest. This forest is made up of two
separate banches of trees. The accused and the deceased entered into
the first part of the forest as P.W.I came towards it.
came out of the first part of the forest, the accused and the
deceased disappeared into the second part of the forest
following the footpath leading to their village. The footpath
followed by P.W.I was running parallel to the one followed
accused and the deceased. He, was going to a different but
accused and the deceased were in that forest, P.W.I heard the gun
reports. The gun report went the first time. Then the
Thereafter there were many gun reports, in rapid succession, so many
that P.W.I lost count. It seems there were two
those gun reports according to P.W.1. the first interval was between
the first and the second gun reports. The
second interval was between
the second and the numerous ones that followed to the end.
P.W.I was wondering what could be happening in that forest where the
accused and the deceased had disappeared, he saw the
accused emerge -
running. He was not far. P.W.I shouted to the accused, asking him
what was happening. The accused never answered.
The accused was no
longer following the same route towards their village. He got into
the fields and therein disappeared still
accused according to P.W.l's evidence had now changed his initial
direction. The original route which he and the deceased had
was according to this accused going through the village of HA-RAKOTO
leading to their own village of HA-RAKHELELI The
accused told this
court that he was no longer following any footpath. He did not want
to go through that village. This is in confirmity
with the fact of
this accused's running away from the scene of crime, as described by
P.W.I. The accused was running in the fields
having abandoned the
idea of following the footpath. Why did he not run to the village to
raise an alarm or seek help? Was he really
being attacked or this
attack is just a figment of his mind?
to this accused, when he and the deceased entered that second portion
of the forest, the deceased told him that she is
going inside the
forest to collect a stump of wood. He waited outside the forest for
her, presumably at the footpath. While the
deceased was inside the
forest, approximately fifty meters away from this accused according
to him (this is a range of his gun
according to the balistic experts
evidence) he heard a male voice-coming directly from where the
deceased was, though out of sight.
This voice called the accused by
name and said, "uena TS'EPO u tla soaba!" translated,
"TSEPO you will be sorry!"
the accused heard a gun report. By the sound of it, according to the
accused he could tell and did tell that the firearm
so discharged is
pointed at him. There was a pause and another gun report. The accused
then took out his own firearm. He aimed
at the spot where the voice
emanated from. This is the spot where the accused was certain the
was. That voice was according to the accused, with the deceased. The
accused fearing for his own safety he discharged his
firearm four (4)
or more times and run away.
appear that from that time the accused had been on the run. He
however disputes that. As he run into the fields, he was
not far away
from P.W.I. Anxious to know what was happening P.W.I shouted to the
accused and asked him what was the matter. According
to P.W.I, the
accused ignored him again as he continued running away. The accused
explains his behaviour very well. He told the
court that he did not
hear P.W. 1 calls his name. He also did not hear P.W. 1 ask him what
was the matter. But he also said he
could not run to P.W.1, why?
because P.W.1 was not armed. He did not say how and when he
determined that fact. The accused further
claimed that he was scared
and in the state of shock. Did he get to his home that evening? It
appears so from his evidence. Did
he report the matter to his chief?
No. Did he go to report to the deceased's husband? No. The accused
said his brother told him
that evening that the deceased has been
found shot dead at HA - RAKOTO forest. Therefore there was no need to
go and check upon
the person whom he knew to be dead. This behaviour
is very strange. As a man and also a close relative of the deceased,
with her at the time, he should have checked upon the
deceased. The sesotho tradition or custom makes the male relative the
of the female who is regarded as weak.
accused told the court that his brother came specially to his home to
inform him that the deceased is late. When asked if he
his brother that he suspects that he shot the deceased, the accused
not mention to his brother that he was with the deceased when she was
shot. Why? He was in a state of shock so he claimed.
When asked why
he went to surrender himself to the police in connection with this
murder charge, the accused explained that his
brother informed him
that P.W.I has reported that the deceased was with the accused at the
time she was shot.
no eye-witness who actually saw the accused shoot the deceased. The
evidence which connects the accused to the commission
of the alleged
offence is circumstantial. The ballistic report which was admitted
before court by consent of all the parties shows
without a doubt,
that the gun which this accused produced and handed to the police as
the weapon he used in the forest on that
day in question, discharged
bullets and spent cartridges found by the police near the body of the
deceased at the scene of crime.
There were no cartridges or spent
bullets and/or shells of any other weapon that were found in that
forest. Therefore the accused's
gun was the only one which appears to
have been used there at that material time. The male and his voice
together with the alleged
utterances seemed to be imaginary.
report of the Post-Mortem Examination is pathetically inadequate. It
simply shows that death was due to respiratory - cardiac
haemo-pentonia, ruptured liver and stomach. It ends with the remark
that the deceased is reported to have been shot. The
doctor seems to
have had no opinion as to what could possibly have caused those
evidence of P.W.I shows that the accused and the deceased were
together in one forest when P.W.I heard gun reports. The evidence
who examined the body of the deceased at the scene of the crime (e.g.
Police) shows that she had sustained gun shot wounds.
The chief and
the deceased's husband also testified to the same effect. The accused
does not dispute the fact that the bullets
which caused her the
injuries from which she died also came from his gun. The
circumstantial evidence supported with the admissions
made by this
accused prove beyond doubt that the accused shot and killed the
deceased. 'R v Blom 1939 AD 288'.
element of the alleged crime of murder with which this accused is
charged, which remained to be established is his intention.
that he shot the deceased with intent to kill her. He claims he acted
in private defense. When proved, the private defense
taking away of the person's life.
an unlawful attack against the accused? There is no evidence of such
as attack. The story he has built up concerning the
fell apart. He did not report that alleged attack. He did not raise
the alarm. Even when informed by his brother
about the death of the
deceased he pretended not to know despite his admission that at the
time he discharged his gun in the direction
of the deceased, he saw
the possibility of shooting her. The accused told the court that he
did not care at that time as he fired
with his gun, whether or not he
shot the deceased. It is the finding of this court that in fact there
was no unlawfull attack against
the accused, imagined or really.
reasons the accused gave for taking the gun with him when he visited
his wife was most unsatisfactory. He claimed that his door
he did not want to leave the gun in the house when he could not lock
the door. This is reasonable enough. It gives me
the impression that
the accused acted with caution . But the very next day when he left
his house, he left that some weapon in
that same house. He claims he
had repaired the lock. Then he turns round to say after all it was
not the lock which was broken.
He then hid the gun in a five (5)
litre tin by covering it with salt with which he filled that tin. He
claimed to have carried
out the repairs on that door. But again he
changes the story. He claims that the door was not broken after all.
It had just expanded
and refused to close because it was bigger than
the door way. What caused the expansion? What go rid off it? There
are no answers.
These contradictions merely cause more confusion
instead of providing answers.
the accused believed that there was another gun man in that forest,
but he was aware that he was likely to shoot and kill
but did not care if he did, he is guilty of murder with dolus
regards the second count the accused is also found guilty as charged.
He has admitted that he has no license. He claims that
belonged to his grandfather who gave it to him without his own
father's knowledge. His grandfather however had told
him that he has
no license. The accused accepted the gift well knowing that he is not
entitled to possess the gun without the valid
firearm certificate. He
made no attempts to acquire the firearms license. His plea of guilty
to this charge was properly accepted.
Therefore he is found guilty as
accused has been found guilty of murder with dolus eventualis. The
counsel for the accused urged this court to find that the
appears to have had no motive to eliminate the deceased. The absence
of motive, I accept, extinuate against the murder
the accused in those circumstances escapes the death penalty provided
for under our law.
accused is the first offender because according to the crown counsel
he has no record of any kind of previous convictions. Although
a married man with one child there is nothing said about their
support and maintenance. The accused told this court that
has collected from their matrimonial home the only child the couple
have. The wife of this accused is at present still
visiting her own
parental home. It seems the visit is of an indefinate period. She
never comes to prison to see her husband who
also preferred to remain
in custody since his arrest for the murder of his sister-in-law. The
period for which he has been in custody
is considered in his favour
for the reduction of the period he should spent in prison in respect
of this conviction. For conviction
of committing what may be loosely
described as an economic crime, Masupha Sole has been sentenced to
eighteen (18) years imprisonment.
Rex vs MASUPHA SOLE 2002 (not yet
reported). For taking away someone's life in the circumstances of
your case, the court must treat
you with less sympathy than an
sentenced to 20 years imprisonment.
brother assessor agrees with this judgement and sentence.
- Mr. Makhera
- Mr. Mokuku
Accused - Mr. Lesutu
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