CRI/T/ 53 /99
IN THE HIGH COURT OF LESOTHO
HELD AT BUTHA-BUTHE
In the Matter of:-
R
V
LEKEBA
JUDGMENT
Delivered by the Honourable Madam Justice N. Majara
on the 14th July 2008
This is a case of murder wherein the accused was charged with the unlawful and intentional killing of one Matoloane Mokete on or about the 27th day of December 1997.
At the start of the case, the Crown informed the Court that only accused No. 1 was present whereupon they applied for a separation of trials. The application was duly granted and the Court proceeded with the case against him only.
After he was read his charge the accused pleaded not guilty and the defence admitted all the evidence contained in the depositions of the Crown witnesses that had testified at the preparatory examination.
A brief summary of the facts in terms of the admitted evidence is that on the day in question the deceased was assaulted by a group of people for having allegedly broken into the house of Accused No.1’s uncle and stealing some property. It is common cause that none of the witnesses saw the actual assault except for one who deposed that at the time he arrived at the scene, he saw accused No.8 whipping the deceased and that the latter was already injured at that time.
I might also mention at this stage that none of the Crown witnesses testified that they saw accused No.1 herein partake in the assault of the deceased although one did mention having seen him with some of the co-accused at the scene after the incident. It is also common cause that the said assault resulted in the death of the deceased. The post-mortem report showed that death was due to a head injury.
At the close of the crown case the defence put the accused to the stand. Per his testimony the accused was attending a feast in the village on that day when he received a report from the daughter of one of his erstwhile co-accused whereupon he proceeded to the latter’s house. Upon arrival thereat, he found the deceased outside the house bending over a tape recorder, three pairs of pants and a blanket. He greeted him and asked him what he was doing and instead of replying, the deceased rose and hit him with an iron rod on the hand whereupon the latter’s own stick fell down.
He bent to pick up the stick but was hit for the second time on the chest by the deceased. It is at that time that the other accused persons arrived and intervened by belabouring the deceased with sticks. It is not denied that the injuries sustained by the accused during this incident were also reported to and observed by the police who carried out investigations in this matter and to whom the sticks and iron-rod were handed.
I now proceed to consider the issue whether at the end of the entire case the Crown has successfully discharged its onus of proving its case beyond a reasonable doubt.
That he who alleges must prove is trite. On the basis of the evidence that was placed before this Court, I am satisfied beyond doubt that the Crown has not successfully discharged this onus in that there is no iota of evidence that linked and or implicated the accused in the alleged assault. It cannot even be correctly argued that the doctrine of common purpose should apply in this case in that all its basic elements have not been established.
Without further ado, I find the accused not guilty and accordingly discharge him. Accused is free to go home.
My assessors agree with me on this finding.
N. MAJARA
JUDGE
For the Crown : Ms Motinyane
For the Defence : Mr. Thulo
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