CRI/T/154/01

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

REX

V

PALO
MOKEBE

JUDGMENT

DELIVERED
BY THE HONOURABLE MRS JUSTICE KJ. GUNI ON THE 5™ APRIL. 2005

Identity of the accused....................where there is no evidence
establishing the identity of the perpetrator - the accused
is
entitled to a discharge.

1. CHARGE

   
   

The
accused is charged with the crime or murder. It is alleged that on
the 1st day of January, 1990 at the plateaux of QEME, in
the district
of MASERU, the accused did unlawfully and intentionally kill one
THABO ADORO by shooting him with a gun. The accused
denies this
charge.

2. FACTS.

   
   

Most of
the facts in this case are in the common cause. On the date in
question the accused together with a group of other men,
in the
administrative jurisdiction area of MATSIENG, were detailed to take
care of the reserved grazing area, on the plateaux of
QEME. There
were animals grazing thereat without authority. The accused and his
colleagues, amongst them PW1, 3 AND 4 went to round
up those
trespassing animals for the purpose of empounding them. Evidence
before this court shows that there were many cattle in
several small
groups - scattered all over the plateaux. The accused and his
colleagues were the guardians of this reserved pastures.
Once the
herd boys had the sight of these men, they started to drive their
cattle away. The guardians of the said reserved pasture
tried to
round up those cattle for the purpose of empounding the same. They
met resistance from the herd-boys who threw stones
at these men while
others were driving the cattle away in order to thwart the intended
seizure.

This
accused was in the company of at least six men at the time when the
fight broke out between the herd-boys and the guardians
of the
reserved pasture on top of that QEME plateaux on that New year's day.
All the six men were riding on horse backs. Three
of these six horses
- including that of the accused person - climbed up quickly and
reached the top of the plateaux first while
the other three horses
came up leasurely behind them.

2

According
to the evidence of one RAOHANG NKHABU - [hereafter referred to as
RAOHANG] he was instructed to go back and ask those
of his colleagues
who were taking their time to climb that mountain to hurry up because
there were many cattle scatted all over
the plateuax and the
herd-boys were driving them away to prevent their seizure. RAOHANG
obliged. On his way back, after calling
his colleagues to hurry up he
rejoined the first group which was already engaged in the rounding up
of those trespassing cattle.
He then noticed that there was someone
who had fallen on an anthill. He continued the business of rounding
up the cattle. When
they had succeeded to capture and seize some of
those cattle RAOHANG came back to the scene where there was this
fallen men on
the anthill. According to him this man was already
dead.

When all
the men had gathered around that deadman, a general question was
addressed to them all thus:- "who shot this man?"
No one
replied. After a while Pw3 - RAOHANG replied, that when he came up
after he had called those of his colleagues who were
climbing slowly
behind them to hurry up, he found that man already lying there in
that same fashion. After giving that response
RAOHANG left the scene
of the crime. According to PW1 - TSELISO SEOEHLA - he saw a passerby
- perhaps one of the herd boys. One
NKHABU asked him what had
happened to this dead man. That passerby said he was shot by a man -
riding on a white horse.

3

This
stranger - passerby is not only unknown he also has not recorded any
statement to the police nor called to testify before this
court. It
seems there was an inquiry conducted by one SAMUEL NKHABU, there at
the scene of crime immediately after the dead man
was discovered.
This inquiry was held in order to determine who killed the deceased.

According
to the evidence of TSEBANG BOOSMAN the reply to the general question
of "who killed the deceased" was "we
don't know".
This stranger passing by who said the man was shot by a man riding a
white horse did not point out or indicate
the said white horse. There
was no one riding a white horse on that plateaux at that time. The
accused was present. He was riding
a roan horse. It is described as
the colour likely to be mistaken for white at the distance. He or his
horse were not pointed out
at that time. None of those who could be
relied upon to substantiate the story of a man on a white horse
agreed to come forward
before the chief. Nobody had seen the actual
shooting of the deceased. The suggestion made was that the white
horse was seen coming
from the direction where the body of the
deceased was found. Nobody ever heard a gun report at any time when
those people were
up that mountain. Nobody heard the echoe of such a
gun report. The presumption would be that the gun silencer was used
if the deceased
was shot at that time when the herd boys and the
pasture guardians were engaged in a struggle to take possession of
the animals
on the plateaux.

4

There is
yet another possibility that by the time the pasture guardians
climbed that mountain this man had already been shot and
had already
fallen on that ant hill.

5.
WEAPONS

Weapons
in the possession of the accused and his colleagues were according to
the evidence only horse whips. There is no evidence
that anyone of
them was armed with a gun. The gun was handed to the ex-warrant
officer KAKA by one man whom he did not know at
the time the police
were at chief's kraal on the date in question. This ex-warrant
officer together with the colleagues had searched
the place where
they found the body of the deceased and had found nothing which could
help them in their further investigations.
May be while at the chiefs
place that same unknown man handed to the police the two of rounds
ammunition which were produced before
this court together with the
gun by ex-warrant officer KAKA. There were two more rounds of
ammunition which the ex-warrant officer
KAKA did not know anything
about, but those two rounds were together with the exhibits
recognized and identified by him as those
he received from the
unknown man at the chiefs place on the 1st of January 1990. There is
no evidence as to who is the owner of
this gun. There is also no
evidence regarding the identity of the person who possessed that gun
on that day. In whose possession
was this gun at the time the
deceased was shot?

5

EVIDENCE
OF BALLISITIC EXPERT

A
Lieutenant in the Lesotho Mounted Police Service of the Kingdom of
Lesotho, employed as a firearms examiner, attached to Forensic

Ballistic Technical Service Department, microscopically examined the
fired bullet cartridge case and the dead bullet. He also fired

cartridges found in the special revolver serial number WO 37230. The
revolver was found to be in good working order. The tests
carried out
by the expert established that the cartridge case submitted for
examination had been fired from the gun Exhibit 1 which
had been
handed, to ex-warrant officer KAKA who produced it before this court.
The dead bullet which we do not know how and when
it came into the
possession of Detective Trooper RAMMOLE who passed it on to the
ballistic expert, was examined too and tested.
But the expert was not
able to determine from where and when it fired.

This
court therefore cannot, with the evidence before it, determine where
that bullet was fired from? [i.e. say from which gun?]
By whom it was
fired? When it was fired? The evidence that could provide answers to
these questions should have been led by the
crown. None was led. The
ownership and/or the possession of the gun at the time of the alleged
offence are not known. Crown led
no evidence to establish both or
either ownership and possession of that gun at the material time.

6

MEDICAL
EVIDENCE

It is
conclusive that the deceased died as a result of intra cerebral
contusion and haemorrhage secondary to gun shot. Evidence
of
ex-warrant officer KAKA who attended the scene of the crime on the
1st January, 1990, shows that he observed the bullet wounds
on the
head of the deceased person. The entry of the bullet wound was above
the left ear whilst the bullet exit wound was above
the right ear.
The doctor who carried out the post-mortem examination found a neat
entry wound on the left temporal region. There
is no exit wound
according to the doctor's findings. The bullet was sub coetaneous mid
frontal region. To some degree the doctor's
evidence corroborates
that of the ex-warrant officer KAKA.

IDENTITY
OF THE ACCUSED

There is
no evidence establishing the identity of the accused. It is not known
who shot the deceased, there is no evidence pointing
directly or
indirectly to anyone. Why should anyone be put to his defence in
those circumstances?

7

That the
crime of murder has been committed, is obviously an established case.
The crime of murder is the unlawful and intentional
killing of a
human being. Who is to be convicted of this murder? definitely it
must be the perpetrator. This is where our problem
lies. The fact
that the crime has been committed is not by itself enough to put the
accused who has not been implicated in any
way to his defence.

Mr.
MAIEANE and Mr. MAHAO are in a total agreement as regards the test to
be applied while considering the application for discharge
at the
close of the crown case. That test rests on this question, "whether
or not there is evidence upon which a reasonable
man acting carefully
might convict. Both parties underlined the "might". Which
lays emphasis only on the possibility.
They relied on the authority
of REX V HERDHORDT AND 3 OTHERS 1956 (2) SA 722 AT 725. In our
present case we must ask a further
question. That is the question
regarding the identity of the perpetrator. The evidence before this
court as has been pointed out
implicate nobody. True there is an
accused person in the dock. By virtue of his presence therein, the
court is not obliged to call
him to his defence. There is no evidence
pointing a finger at him. The supposition that to some people who
look at the roan horse
at some distance it could be mistaken for a
white horse is not evidence.

9

APPLICATION
IN TERMS OF SECTION 175 C P AND E ACT. NO.9 OF 1981.

The
attorney for the accused MR. MAIEANE made the application for the
discharge of the accused at the close of the crown case. MR.
MAHAO
for the crown opposed the granting of the application for the
discharge of the accused at this stage. He urges the court
to
exercise its discretion against the granting of this application on
the grounds that what is missing in the properly formed
prima facie
case against the accused at this stage, may be found and provided by
the accused himself when he is put to his defence.
Both parties agree
on the applicable law that governs applications such as this one.
This is SUB SECTION (3) OF SECTION 175 CRIMINAL
LAW AND PROCEDURE ACT
- NO. 9 OF 1981. The relevant portion thereof reads as follows :-

" If at the close of case for prosecution, the court considers
that there is no evidence that the accused committed the offence

charged or any other offence of which he might be convicted, the
court may return the verdict of not guilty". [My underlining]

When
considering an application of this nature the court is required to
ask itself a number of questions. The first question must
relate to
the evidence creating an offence charged or any other offence of
which this court may competently convict the accused.

8

There is
no burden on the accused to proof his innocence or even to say
anything. The deceased was killed by shooting with a gun.
There is no
evidence that this accused had a gun or that his gun was used in that
shooting. He is therefore entitled to a discharge.
THE VERDICT IS
THAT HE IS FOUND NOT GUILTY.

The two
assessors agree with me on the fact findings made in this case.

K. J,
Guni

JUDGE

Assessors
: Mr. Makhera

Mr. Sesioana

For Crown
: Mr. Mahao

For
Defence : Mr. Maieane

10