CRI/T/59/03

IN THE HIGH COURT OF LESOTHO

HELD AT MASERU In the Matter of:-

Rex

V

Sebekela Nkhapetla

JUDGMENT

Delivered by the Honourable Madam Justice N. Majara on the 30^th November 2005

On the 25th October 2005, the accused appeared before me on a charge of murder it being alleged that upon or about the 21st January 2002 he unlawfully and intentionally assaulted one 'Mamolise Matele by inflicting gunshot wounds on her which caused her death on the 27th February 2002.

The accused pleaded not guilty to the charge and the crown led the evidence of two (2) witnesses to support its case. P.W.I Thabo Ramataboe testified that accused herein is his friend and that sometime the police came to him and demanded that he hand over his firearm, a 9MM Norinco pistol with serial numbers 308875. He told the Court that at that time the pistol had six (6) rounds of ammunition.

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It was his further testimony that the police informed him that the accused had told them that he had used the same firearm to kill the deceased. The witness also the Court that accused had borrowed this firearm from him and that this happened before the police came to demand it. The witness however testified that he is analphabetic and as such he could not tell the Court the exact dates. It was his further evidence that after the accused returned the pistol he counted six (6) bullets in the magazine.

P.W.2's testimony was that he received a report concerning the shooting of the deceased from Molise Matele the deceased's son who also handed over to him two empty shells and one lead which he picked at the scene. P.W.2 testified further that he arrested the accused and gave him a charge of murder. It was this witness' further testimony that the accused gave him an explanation that led him to P.W.I and that the latter did hand over the above mentioned firearm to him upon request.

This witness also testified that he counted only three (3) bullets at the time the firearm was handed over to him. He seized the pistol as an exhibit and submitted it together with the spent shells and lead to the firearms expert for

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a ballistics examination. The pistol and spent shells and lead were handed over to the Court and were marked exhibit 1 collectively.

The defence admitted the statements of five (5) witnesses namely, Sentso Boy-Boy, the headman Johannes Ramataboe, Chaka Majalle. Molise Majalle and Phuthi Pali the firearms examiner. The first three of these witnesses' evidence was that on the day in question they heard an alarm coming from the direction of the deceased's home and that they went out there. Upon arrival, they found that the deceased had been shot on the buttocks.

The admitted evidence of Molise Matele who is the deceased' son was that on the night of the incident he was sleeping with the deceased and two of his children when he heard the report of gunshots two times. Upon waking up he noticed that the house was full of smoke and that his mother reported that 'they had shot her' and upon examining her he realized that she had sustained two wounds on the buttocks and was bleeding.

The post-mortem report showed the cause of death to be septicemia resulting from the gunshot wounds.

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The defence evidence on the other hand consisted of the accused" sole testimony. He told the Court that while he does not deny having borrowed P.W.l's pistol he however never fired any bullets from it or killed the deceased with it. It was also his evidence that he returned the pistol the same day still containing the six (6) bullets as he had borrowed it.

The accused also told the Court that when he was first arrested, he was taken to the Pitso Ground Police Station whereby the police demanded that he hand over the firearm that he had used to kill the deceased. It was also his evidence that one Thabo Ramataboe (not P.W1) with whom he had been arrested, persuaded him to hand over the firearm as he knew where it was since he knew very well that he had shot the deceased.

The accused further told the Court that he eventually led the police to P.W.1 by calling the latter in the presence of his parents and asking him to hand over the pistol because he had been badly assaulted and tortured whilst in police custody.

The evidence on which the crown relies is mostly circumstantial. In his submissions, Mr Mokoko Counsel for the defence quoting from the case of

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R v Blom 1939 AD 188 at 202/2 showed that the proved facts in casu not exclude the fact that the gun could have been in the hands of another person between the time when it was returned to P.W.I by the accused and when the offence was alleged to have been committed.

While this is possible, the evidence of P.W.I was that he never lent the pistol to anyone else but the accused and this evidence remains unchallenged. In addition, whilst it is true that P.W.I does not know the exact dale when the pistol was lend to the accused due to the fact of his illiteracy, he testified that it was before the police came to him demanding same.

In casu the offence was allegedly committed on the 21st January 2002. The accused was arrested and charged on the 1st February' 2002 which means that at the time of his arrest, the offence had already taken place about two weeks earlier. At any rate, the indictment reads on or about the stated date which means that although P.W.I cannot remember the exact date, the fact that it was around the date in question suffices, (my underlining)

It was also the defence' submission that the evidence as is stands cannot exclude the possibility that the gun was fired to reduce the number of bullets

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from six to three rounds. Once again while this is possible, P.W. 1 testified that he never lent the pistol to anyone else and it was never suggested to him under cross-examination that he could have fired the gun to reduce the number of bullets thus denying the Court the opportunity to hear what his response might have been.

Further, this witness testified that he is the accused's friend and it would not make sense to this Court why he would fire the pistol to reduce the number of bullets this would definitely incriminate either him or the accused, something he would have no reason for doing unless there was evidence placed before the Court to establish this. Their friendship is evidenced by the fact that he actually lent the firearm to the accused. People do not normally lend such things to anyone or casual acquaintances.

True enough, P.W.I testified that the pistol still had six bullets in it but the Court cannot ignore the fact that it would not be in his interests or that of his friend, the accused to state otherwise. P.W.2, a neutral person testified that there were only three bullets at the time he seized the firearm and this number tallies with the spent bullets and lead which were found at the scene.

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This being the case the Court rejects this part of his evidence as a blantant lie for the simple reason that he wanted to protect his friend.

If the Court were to believe that the accused is not the one who shot the deceased this in turn would beg the following questions;

1. Why did he borrow the pistol in the first place?

2. Why did the other Thabo Ramataboe with whom he was arrested urge him to tell the police where the firearm and at the same time suggest that the accused knew very well that he had shot the deceased?

3. Why would the spent cartridges match the same firearm that he borrowed from P.W.I around the time the offence was committed?

4. Why did he lead the police to P.W.I whose pistol he had borrowed matched the spent bullets found at the scene?

With regard to the first question, the accused' s explanation was that he borrowed the firearm just to boast. However, the Court finds this explanation highly improbable for the simple reason that people do not usually brandish pistols around, especially those not licensed to them like they would a toy and by some coincidence someone gets shot with bullets

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that match same. The Court therefore rejects this explanation as totally false.

On the second question, it is the opinion of this Court that Thabo Ramataboe would not have just told the accused to point out the firearm and also allege that the accused knew where it was since he had shot the deceased. This Court believes he said so because he knew that as a fact that the accused had not just borrowed the pistol for fun or as he said to boast, but that he borrowed it for a purpose which he actually carried out i.e. to shoot and kill the deceased.

On the third question, the pistol turned out to match the spent cartridges found at the scene and also tallied with the number of bullets that were in the pistol when P.W.2 seized it because it is the one that was used to shoot the deceased by the accused. On the basis of the circumstantial evidence placed before the Court, the Court believes that he borrowed it for a purpose which he carried out, believing he had a fool-proof plan. That is why him and his friend P.W.I lied to this Court that when he returned it, the pistol was still loaded with all of the six bullets inside.

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Although this Court believes in coincidences, in cusu there is one too many for this Court to accept them as being just that, coincidences. The cases point is that of Tatolo Phoofolo v Rex 1963-66 H.C. T.L.R p5 at p5 quoted with approval by the learned Lehohla J (as he then was ) in R v Moramo Sehlabaka CRI/T/22/88 p 64 wherein in explaining circumstantial evidence Lord Watxin Williams P. was quoted as having said:-

"It is evidence of surrounding circumstances which by undersigned coincidence is capable of proving a proposition with the accuracy of mathematics"

It is my opinion that the above quote aptly captures the circumstances in casu.

On the issue of pointing out, the Defence referred the Court to the case of R v Mohapi Felemane 1982-84 LLR 314 where the learned Kheola J (as he then was) stated that 'for a confession to be admissible it has to be proven to have been freely and voluntarily made by a person in his sound and sober senses and without having been unduly influenced thereto.

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The defence' submission was that the accused herein could not have made the confession freely and voluntarily because he testified that he had been assaulted by the police. This fact was denied by P.W.2 under cross examination. The accused's evidence did not specifically say it was P.W.2 who assaulted him but he made a general accusation of assault without alleging that this was actually carried out by the person to whom he did the pointing out.

During cross-examination, when asked if he ever went to see a doctor for the injuries since he was allegedly so badly assaulted, the accused replied that he saw a traditional healer and as such could not furnish any proof for the alleged injuries. Unfortunately, in the absence of such proof, and for the reason that it is his word against that of P.W.2 it is difficult for the Court to accept that he was indeed as badly assaulted as he alleges leading him to do the pointing out under duress.

In my opinion, even if he did not have proof from a medical doctor that he was so badly assaulted, he could have brought evidence to support this allegation either in the form of a person who saw him while he was still in police detention or immediately after his release such as his parents and/or

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the said traditional healer. He however chose not to and in such circumstances, the Court has no reason to believe that he only did the pointing out because he was indeed assaulted.

At any rate, he happened to point out the same firearm which he borrowed from P.W.I and which matches the spent cartridges found at the scene. This is too overwhelming to be regarded as a mere coincidence. Further, the Court takes judicial notice of the fact that no two firearms can match the same spent cartridges not to mention that this was not suggested by the defence. They only denied having used the borrowed firearm to shoot the deceased. But the big question remains, why did he borrow it? As already shown above, this court rejects as palpably false, his explanation that he did so just to boast.

Even if this Court could believe that the pistol was fired by someone else, the fact that the other Thabo Ramataboe persuaded the accused to produce the firearm and that the latter pointed out the same firearm he had borrowed around the time of the incident, which also happened to match the spent cartridges found at the scene leads this court to draw only one inference to wit, that the accused is indeed the culprit.

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In the case of R v Blom 1939 AD 188 at 210 when dealing with the question of the crown's burden of proof Centlivres A.J.A had this to say;

"...but usually the Crown sets out to do this in order to connect the accused with the death. When it succeeds in proving the specific cause of death and in proving that the accused not only had in his possession the means to bring about that specific cause of death as well as the opportunity then a reasonable man may draw the inference from these facts and other circumstances which are proved that it was the accused that killed the deceased. "

By the same analogy, having regard to all the circumstances of this case, I find that there is enough evidence upon which a reasonable man could reach the conclusion that the accused is the one who fired the shots that eventually led to the death of the deceased.

Whilst it is true that the crown's evidence had some flaws in that P.W.I testified that when the pistol was returned to him it still had six bullets in it, the Court cannot ignore the fact that the two are friends. It would therefore

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not be impossible for P.W.I to want to vindicate his friend especially since he is the one who lent him the same pistol.

P.W.2 testified that at the time he seized it, the pistol had only three bullets and this was not challenged by the defence. They only suggested that someone else might have fired the pistol between the time the accused returned it and the time of the incident. The Court might have accepted this suggestion if the other surrounding circumstances did not point to the accused herein.

For all the above reasons, it is my humble opinion that on the whole, the Crown has discharged its onus of proof beyond a reasonable doubt for as it was correctly stated in the case of Rex v de Villiers 1944 AD 493.-

"In a case depending on circumstantial evidence...the court must not take each circumstance separately and give the accused the benefit of the doubt as to the inference to be drawn from each one taken. It must carefully weigh the cumulative effect of all of them together and it is only after it has done so that the accused is entitled to the benefit of any reasonable doubt which it may have as to whether the inference of

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guilt is the only inference which can reasonably be drawn. To put the matter in another way. the crown must satisfy the court, not that each separate fact is inconsistent with the innocence of the accused, but that the evidence as a whole is beyond a reasonable doubt inconsistent with such innocence"

For these reasons, I accordingly find the accused guilty of the offence of murder as charged.

My assessors agree.

SENTENCE

In considering what should be the appropriate punishment in casu, the Court takes into account all the personal circumstances of the accused as were raised by his defence Counsel. He is a young man of a tender twenty (20) years and the sole breadwinner of his family inclusive of his five (5) younger siblings.

In addition, this matter has been hanging on his head since the year 2002 and has as such negatively affected him both emotionally and psychologically.

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This Court has a duty to show its displeasure towards this type of attitude and to punish those who believe they can take others' lives with impunity. The punishment therefore has to be exemplary in order to also serve as a deterrent to other would be murderers.

For all the above reasons, the accused is accordingly sentenced to imprisonment for a period of ten (10) years.

N. MAJARA

JUDGE

For the Crown : Ms Kanono

For the Defence : Mr Mokoko

Assessors : Mr Ntsala

Mr Monyane