HIGH COURT OF LESOTHO
THE HON. MR JUSTICE S.N. PEETE
: Mr Makhera and Mr Penane
23rd OCTOBER 2006
accused originally appeared before this court facing a charge of
murder it being alleged that on the 23 March 2002 and at
Maputsoe in the district Leribe the accused did unlawfully and
intentionally kill one Tseliso Mafa.
this charge he had pleaded not guilty.
court dismissed an application for his discharge at the end of the
crown case made in terms of section 175 of the Criminal
and Evidence Act 1981.
court held that there was a prima facie case for the accused to
answer upon a charge of culpable homicide only.
evidence of the crown in brief proved that the deceased met his
death on the 23rd March 2002 as a result of a wound suffered
bullet fired from the gun being handled by the accused at the time.
This was not disputed by the accused who however raised
of accident namely that when the gun fired it did so as a result of
a hang or delayed fire. He says he had not been
in anyway negligent
in the freak accident.
crown witness Inspector Pali — a firearm expert at Police
Headquarters Technical Support Services explained to the court
ballistics of hang and delayed fire and that the accused had not
received training in such ballistics at the Police Training
is quite clear that that even though the accused was probably
humanly negligent in the handling and lowering of the gun after
failed to fire after the trigger had been pressed, it cannot be said
that he was in the circumstances of the case criminally
regard having been had to the fact that he had received no basic
the hang/delayed fire ballistics. His version that the gun fired
accidentally is reasonably possibly true.
is a lurking doubt over the critical issue whether the accused ought
to have foreseen that the gun having failed to fire
in the air, it
would suddenly fire as it was being lowered. In our view, a
reasonable policeman, untrained in delayed/hang fire
could not have foreseen such a freak occurrence happening.
mysterious behaviour of this gun is worsened by the fact that even
though it suddenly fired killing the accused's colleague
the spent cartridge was not ejected (as it ought to) but was later
retrieved much later when the gun was being tested
and unloaded at
Hlotse Police Station.
the circumstances of this case the Court entertains some doubt as to
criminal blameworthiness of the accused and he is given
of it and is found "Not Guilty".
Gentlemen Assessors agree.
: Ms Khubetsoana
Accused : Mr Teele
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