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.

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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?

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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.

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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?

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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.

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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.

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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

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