CRI/REV/199/90

IN THE
HIGH COURT OF LESOTHO

In the
matter of :

REX

V

RALITAPOLE
SEPHAPO

JUDGMENT

Delivered
by the Hon. Mr. Justice M.L. Lehohla on the 1st day of August, 1990.

The
accused was charged before the Teyateyaneng Subordinate Court with
the crime of assault with intent to do grievous bodily harm.
The
victim was P.W.1 Tsiloko Qoai a 50 year old man who according to the
medical report was wounded all over the face and head.
He suffered
laceration of the scalp and both his eyes were ruptured through use
of a blunt object wielded with severe force, Needless
to state the
complainant sustained loss of sight in both eyes. The assault was
effected on 8th October 1989 at or near Ha Nkhahle
in the district in
question.

When this
matter came on automatic review from the Subordinate Court which had
convicted the accused as charged and imposed a six

2

year
prison term, this Court ordered that the accused should come prepared
to argue why in the event that the conviction is confirmed
the
sentence should not be appreciably enhanced.

The court
below gave a proper evaluation of P.W.1's evidence. P.W.1 was the
only eye witness to the assault, before he went blind.
He testified
to its cause, course and result. The terminal portion of the assault
was testified to by P.W.2 who was attracted to
the scene by someone
crying "Ntate Ralitapole leave me alone as you have already
finished me."

P.W.2
testified that he approached the accused and P.W.1. He observed that
they were holding each other fighting. Nowhere did he
say he saw the
accused use a stick to gouge out any of P.W.1's eyes. He testified
that he observed that the complai­nant's
head was covered with
blood. It would seem therefore that when P.W.2 came to the scene
P.W.1 was already blinded in both eyes.

Taken
along with the fact that P.W.2 heard the voice of someone calling out
the accused's name and pleading that the accused should
let him be it
can safely be concluded that the caller was the complainant and that
the fight attested to by P.W.2 was in fact not
a fight in the sense
of both people exchanging blows but a struggle in which a blinded
party was desparately clutching at his assailant
to stop him
effecting further damage.

I would
reject therefore the argument that it would appear the fight had to
be going on when P.W.2 came to the scene because the
accused was
defending himself. How -? From a blind man -?

My view
is based on the fact that when the first eye had been ruptured P.W.1
must have been doubled up with pain to the extent that
he was
effectively put out of the fight. Thus there was no need to rupture
his second eye by means of poking at it. Poking at the
eye conveys to
me a deliberate act calculated at blinding one's victim.

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P.W.1
testified that he was riding on horseback when the accused came and
walked along side the right side of P.W.1's mount. P.W.1
was holding
a horse whip. The accused was asked by P.W.1 why he spoke about
P.W.1's daughter who had eloped to Machoaboleng. The
accused took
offence and swore at P.W.1.

P.W.1
turned his head to face the accused who hit P.W.1 on the forehead
with a stick and spilled him to the ground.

When
P.W.1 tried to rise the accused poked at P.W.1's eye with a stick.
P.W.1 fell backwards and when he tried to sit up the accused
poked at
P.W. 1's remaining eye and effectively blinded him. Then the accused
continued belabouring him until P.W.1 heard a woman's
voice pleading
that the accused should let go of P.W.1. The court below believed
P.W.1. See section 238 of our C.P. & E Act
9 of 1981.

In his
evidence the accused gave a garbled account of the encounter which in
my view was properly rejected by the trial magistrate.

The
accused failed to say why he never put to P.W.1 that P.W.1 had
waylaid him. He failed to say why he never put to P.W.1 that
P.W.I
had insulted him. He failed to put to P.W.1 the fact that P.W.1 had
whipped him. He did not gainsay P.W.1's version that
the accused
felled him from his mount with a stick blow to the forehead.

Accused's
counsel attributed these failures to the fact that the accused was
not represented and is unsophisticated. But in C of
A (CIV) No. 5 of
1988 Letlatsa vs Letlatsa (unreported) at 5 Schutz P. said :

"Mr. Maqutu claimed that this happened because of the
inexperience of the cross-examiner. This may or may not be so, but if

he was inexperienced that fact should not be visited on the
plaintiff."

It is
worth mentioning that the learned Judge in that case warned against

".....turning the rule in Small vs Smith 1954(3) 434 (SWA) on
its head. The rule exists because it is only fair to the witness,
and
to the party calling him, that the

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witness be given an opportunity to comment and perhaps to rebut the
(other's) version and because the party calling the witness
is
entitled to know which facts are in issue and which not."

I am not
unmindful of that learned Judge's statement of the law in C of A
(CRI) 7 of 1989 Naro Lefaso vs Rex (unreported) at 7 to
8 that

"Indeed it was not put to the two eye witnesses even that the
appellant had not been at the scene of the crime. The need for
the
defence to put the salient parts of the defence case to the relevant
crown witnesses has been stressed by this Court over and
over again.
One reason for putting the defence version is to give the crown
witnesses a chance to counter it. Another is that crown
counsel is
entitled to assume that a fact is not in issue if it has been deposed
to and is not challenged in cross-examination.
There is no call on
prosecuting counsel to call further witnesses to prove a fact which
is not in issue. From an accused person's
point of view failure to
reveal his version before he gives evidence leads to the natural
inference that he has concocted a version
at the last minute, even
though such an inference should not always be drawn."

This is
one such occasion when it should be drawn. The accused's life was in
no danger at all when he embarked on this savage attack
that has
resulted in the victim being blind for life, saying nothing of the
pain that he must have suffered in the process. Even
assuming the
accused was threatened with a horse whip, that did not justify the
savage maiming of another for life.

I
accordingly confirm the verdict of the court below but set aside the
sentence on grounds of manifest inadequacy and in substitution

thereof impose an imprisonment term of eight (8) years.

JUDGE.

1st
August, 1990.

For Crown
: Miss Moruthoane

For
Defence : Mr. Fosa.