IN THE HIGH COURT OF LESOTHO

In the matter between:- CRI/T/140/04

REX

VRS

HABASISA KHOAEANE

JUDGEMENT

Delivered by the Honourable Acting Judge Mrs. Mahase On the 8th September 2005

The accused appeared before this court charged with having committed the crime of Murder of one Refuoe Khoaeane.

The accused is alleged to have been aged 59 years at that time, while the deceased was aged 13 years.

The incident allegedly occurred upon or about the 9th January 2004, and at or near Ha Mahlomola, Mphaki in the district of Quthing.

It is common cause that the accused is the grandfather of the deceased. Also of common cause is the fact that the deceased was an orphan.

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Further and also of common cause is the fact that the accused is a married man who has ten children.

The defence has tendered a plea of guilty to culpable homicide. This plea was accepted by the crown (regrettably so as will be shown hereunder).

Briefly the facts of this case, which facts were accepted by the defence are as follows:-

It would appear that the accused had put the sum of one hundred Maloti (M 100.00) somewhere in his house.

On the day in question, he asked one of his children to give him that said sum of money from where he had put it.

That child later informed his father that he/she could not find that money at that particular place.

The accused then questioned his children who were at home with him on that day about the whereabouts of it. They all replied that they did not know where it was or who had taken it away from there.

However, one of the said children replied that the said sum of money had been taken away from there by Refuooe (Deceased).

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The accused then immediately asked one of his said children to get him a rope. This was done. Having received a rope, the accused took hold of the deceased; tied her up with that rope. He tied up her feet, hands and neck together with it. Her hands having been tied at her back.

It is not clear whether or not the deceased did reply when they were asked about that money.

Having so tied her up, the accused started to assault the deceased with a stick (molamu) and later with an old hard tyre belt.

All efforts and pleas by various crown witnesses who went thereat to intervene failed. The accused could not listen to anyone who asked and reprimanded him to stop assaulting the deceased. All the six crown eye witnesses described the accused as having exhibited signs of extreme anger and violence as he assaulted the deceased.

The said assault upon the deceased by the accused took a long time and it was non-stop. One witness after the other went there and away to call other people to come and persuade the accused to stop assaulting the deceased but in vain.

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Eventually one Mphakatsa Khoaeane arrived thereat. He asked the accused to stop assaulting the deceased. He is the only person whose order was heeded by the accused because he (accused) only stopped assaulting the deceased after Mphakatsa had asked him to stop.

Immediately thereafter and at the orders of Mphakatsa the accused unfastened the rope from the deceased. The deceased then ran away but she felt down near the aloe. She could no longer stand up nor speak. She had sustained very serious injuries as shown in exhibit 'A'.

The deceased died immediately and accused was assisted by the crown witnesses who have witnessed this brutal assault to take the deceased back into the house.

These witnesses would tell the court that after the rope was unfastened, the deceased walked away in a staggering fashion of a very exhausted or intoxicated person before she fell down and died.

All the crown witnesses realized and immediately saw that the deceased had sustained head injuries.

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Mention must be made of the evidence of one of the crown witnesses who was the first person to go to the accused's home, His names are Ntsane Ramolibeli.

It would be his evidence that on the day in question, he went passed near the accused's place when he heard a scream from the accused's home. He went to see what was happening.

Upon arrival thereat, he found the accused whipping the child with her limps tied to her neck. He tried to stop him from assaulting that child. He however gave up after the accused had warned him (Ntsane) that he (Ntsane) would repay the money stolen by that child.

He then saw the accused pull that child with one leg into the house and closing the door behind him. This witness then went away to call the other crown witnesses.

He and those others went back to the accused's home and one Mphakatsa told the accused to untie that child and he did. This witness then went to his own home.

It is abundantly clear that this witness is the only one who saw when the accused pulled the deceased into his house and then closed the door behind. He (witness) did not go into the house himself.

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Obviously, he does not know what happened between the accused and that child in that house at that time.

This witness, Ntsane Ramolibeli also got to know about the deceased's death later on that day.

The above evidence of Ntsane Ramolibeli is important because among other things, the post-mortem report has shown that the deceased "was sexually raped".

The medical doctor's remarks thereat in exhibit 'A' are further that the deceased had "bruises and abrasion on the vulva and vagina. Lacerated (freshly) hymen".

I pose to note however that, despite these remarks by the medical doctor, no charge of rape was added to that of murder and I also note that the crown conceded that the deceased was not raped.

No reasons were advanced by the crown as to why it conceded to this point. This court is aware that the vaginal swab was taken but the medical doctor has stated that "no spermatozoa found". This would however not necessarily negative the fact that rape did take place. But as has been said the crown conceded that deceased had not been raped.

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Further mention of the contents of exhibit 'A' is necessary so as to demonstrate the cruelty of the accused is killing his own grandchild as he did. The said report (exhibit 'A') has revealed that death was due to:-

1. Open wound on the vertical aspect of the head, with depressed fracture on the vertical bone of the skull and subdural hemorrhage/hamatoma;

Clearly this shows that the accused assaulted the deceased on her head; the most vulnerable part of one's body.

2. Item No.8:- remarks are "Bruises and abrasion on the vulva and vagina lacerated (freshly) hymen.

It has already been indicated above that there is no evidence as to how the said injuries in (2) have occurred and further that the crown has conceded that the deceased has not been raped.

The defence submitted that the deceased was assaulted on her private parts too.

3. Abrasion and laceration on the right temple.

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4. Bruises on the left cheek, lower lip, left flank, right thigh, left leg and both arms.

The last remark is that:-

5. "........was raped sexually and assaulted to death".

It is further shown in item No. 10 that the deceased had a "depressed fracture vertical aspect of the skull".

Clearly when the accused assaulted the deceased as he did, he did not care whether or not death would occur. The way in which he had her tied up was to make sure that the deceased would not even escape from this brutal assault. It is also clear that by the time he stopped assaulting her, the deceased was so severely injured that she could not survive.

She was assaulted first with a stick (molamu) all over her body, including the head, later with a belt made of a hard, rough old tyre mercilessly for a long time.

This did not exhibit the normal way in which a parent would normally chastise a naughty child. The accused clearly intended to fatally assault the deceased to death.

This court wonders if this said child was befallen by this unfortunate demise because she was an orphan.

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This court has had the opportunity to see and touch that tyre-belt; and also to see the stick in question, as well as the rope with which the accused had tied up the deceased.

The above should not and are never meant to be used on any human being let alone using them to chastise a thirteen year old child in the way in which the accused assaulted the deceased herein.

All the crown witnesses who have actually witnessed/seen when the accused was assaulting the deceased corroborate each other in all the material and important aspects namely the way she was tied up, beaten and the injuries sustained.

Their evidence as to the injuries which the deceased had sustained is further corroborated by that of the 6th witness, Malikuoa Khoaeane, who identified her body.

This in turn was also corroborated by that of D/Trp. Maqala who attended the scene of crime. He too and upon inspection noticed that the deceased had sustained open wounds on the head and had contusions all over the body. Indeed this is also corroborated by the medical doctor's post-moterm report, exhibit 'A'.

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There is no evidence suggesting that other than those injuries which the deceased sustained while being assaulted by the accused, she sustained any other further injuries inflicted upon her by anybody else.

It is undisputed that following the death of the deceased, the accused was escorted to the Quthing Police Station by one Ts'eliso Phate, who was the chiefs messenger.

He was handed to No. 10185, Trp. Ramosoeu. This officer then identified himself, warned and cautioned the accused. He then asked for an explanation which the accused then made after which No. 10185 preferred a charge of murder to the accused and arrested him.

This court has no reason to doubt all the evidence tendered herein by the crown to proof its case against the accused. It has accordingly come to the conclusion that the crown has discharged the onus placed upon it of proofing its case against the accused herein beyond any shadow (reasonable) of doubt.

As has earlier been indicated, the accused tendered a plea of guilty to culpable homicide. This was accepted by the crown, so there was not need for the accused to testify in his defence. All the summarized facts by the crown were admitted by the defence.

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One may only pause to observe that the accused has been very, very lucky that the crown has accepted his plea to a lesser charge of culpable homicide. All the evidence herein point to the fact that the accused had the requisite intent to commit the crime of murder. The accused's actions of assaulting the deceased as he did were monstrous.

The crown had initially, and correctly in the mind of this court preferred a charge of murder against the accused. It is not clear why the crown suddenly changed and accepted a plea on a lessor offence than that charge originally preferred against the accused.

For the foregoing reasons, this court has come to the conclusion that the accused is guilty of culpable homicide, though very reluctantly.

In its summary of evidence, the crown has indicated that this is a borderline case which they however place in the hands of the court to exercise its discretion as to whether or not it allows the plea bargain entered between it (crown) and the defence.

This court was informed about the above only after the plea and its acceptance by the crown had been recorded and made part of the record.

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In any case, the crown is the dominis litis herein, I am not so sure that it was for this court to say whether or not it accepted the plea bargain between the parties herein while the court was not initially aware of the kind of evidence that would be adduced.

Since the crown has accepted a plea to a lessor offence to that of murder, it would, in the circumstances and in my humble submission, be irregular for this court to convict accused on a more serious charge of murder.

In mitigation of sentence, the Defence Counsel, who filed a written paper herein, submitted that:-

The accused is an illiterate Mosotho man of 63 years of age. He lived all his life with a clean record, and is a first offender.

His background is that of a herd-boy who grew up in the cattle post. On several occasions while growing up he has seen and experienced how the villagers treat a thief with a rope and fastened the same rope to a tail of a horse and then bit him.

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It was submitted in this regard that the above had become a part of the accused's life experience which over-rided his powers of thinking sensibly.

That being an illiterate person, the accused would have behaved differently if the child had committed a different offence.

Accused, so it was submitted is a married man who has ten children. He has been in prison since his arrest on the 9th January, 2004. That is, he was never admitted to bail.

Defence Counsel asked that the court should take these factors into account and consider the time the accused has spent in jail awaiting trial when imposing sentence.

It was further submitted that the court should approach the accused's predicament with mercy and impose a sentence that will help the accused repent so that he can be re-intergrated into society as a rependent man.

Now coming to punishment, the court has carefully taken into account what Defence Counsel for accused has said in mitigation of sentence. In particular the fact that the accused, now aged about or between 59 and 60 years; is a first offender.

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Also taken into consideration by this court in determining the appropriate punishment for the accused is the time he spent in prison awaiting trial before the case was prosecuted to finality.

The court has been informed that the accused was never released on bail. He was arrested and remanded into custody from the 9th January 2004. He has therefore been in prison awaiting trial for a period of about one year, seven months before the case against him was finally prosecuted to finality. The court takes this period into consideration in imposing a sentence upon the accused.

This court is however, not prepared to turn a blind eye to the seriousness of this monsterous offence against which the accused has been convicted. The brutality, with which the accused assaulted a child of 13 years of age is unforgiveable. The kind of weapons used and the way she was tied up while being so savagely assaulted are beyond human imagination.

No one person has a right to take away or bring to an end the life of another person.

The accused brutally and savagely killed the deceased under very dubious circumstances and took the law upon his own hands.

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It has already been indicated that accused should consider himself very, very lucky that the crown has accepted his plea on a lessor charge of culpable homicide. This is a case not deserving such a plea.

The accused's behaviour in assaulting the deceased as he did was not only unlawful but it was barbaric and despicable.

The fact that the accused is an illiterate Mosotho man who grew up and experienced the brutal way in which thieves were treated is neither here nor there. The fact of the matter is that the accused is human and so also was the deceased. Accused is a normal human being who would also expect that he be treated humanly no matter what. Why then could he not treat the deceased in a human, civilized way?

The best that the accused could have done was to report the case to the police who would professionally investigate the case of theft; other than him taking the law into his own hands.

This is a case deserving an imposition of a sentence that will among others serve as a lesson and a deterrant factor to the accused and other people of his mind to see that courts of law do not lightly view nor do they encourage this type of

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behaviour exhibited by the accused against another human being.

The brutality of the assault upon the deceased by the accused, coupled with the high rate of culpable homicide cases which the courts of law deal with on daily basis and the seriousness of this offence call for imposition of an appropriate deterrent sentence upon the accused herein.

In the circumstances of this case, these can be no substantial and compelling reasons to justify any less of a sentences than 18 years imprisonment.

The accused is accordingly sentenced to 18 years (eighteen years) imprisonment.

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Sentence to run from 9th January 2004

My assessors agree.

Exhibit 1 is to be lawfully disposed off by the police.

M. MAHASE (MRS) ACTING JUDGE

For Crown : Mr. Mahao For Defence : Mr. Lesuthu

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