CRI/T/67/89

IN THE
HIGH COURT OF LESOTHO

In the
Matter of:

REX

vs .

SANONO
RALESHOAI & 2 OTHERS

JUDGMENT

Delivered
by the Hon. Mr. Justice B.K. Molai on the 16th day of February. 1990.

The three
accused appear before me on two counts namely murder and robbery. On
count I, the allegations contained in the main body
of the charge
sheet disclose that on or about the 14th day of July, 1988 and at or
near Ha Thamahane in the district of Leribe,
the said accused one or
each or all of them did intentionally and unlawfully kill Thabo
Mokaeane.

On count
II, the allegations contained in the charge sheet are that on or
about the 14th day of July, 1988 and at or near Ha Mo
thamahane in
the district of Leribe, the said accused, one or each or all of them
did unlawfully assault Lisebo 'Moleli and Thabo
Mokaeane by using
force and violence and at gun

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point
stole from the said Lisebo 'Moleli and Thabo Mokaeane a cash box
containing money, amounting to M2,000.00, or there about.
The exact
amount is to the Crown Counsel unknown. The property being that of
Vincent Korotsoane in the lawful possession of Lisebo
'Moleli.

When the
charges were put to them, the accused replied that they were not
guilty and the plea of not guilty was accordingly entered
on both
counts.

At the
commencement of this trial, Mr. Qhomane. Counsel for the crown,
accepted the admissions made by Mr. Moorosi. counsel for
the defence,
that the defence would not dispute the depositions of all the
witnesses who testified at the proceedings of the Preparatory

Examination.

In terms
of the provisions of Section (273) of the Criminal Procedure and
Evidence Act of 1981. the depositions of all the witnesses
who had
testified at the Preparatory Examination proceedings were, therefore,
accepted as evidence and it was unnecessary to call
the deponents as
witnesses in this trail.

Mr.
Moorosi called the three accused into the witness box to testify in
their defence. Their evidence does not differ materially
with the
evidence

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of the
Crown witnesses, who had testified at the proceedings of the
Preparatory Examination.

Briefly
stated, the evidence adduced before the court is, in as far as it is
material, that on the day in question, No.l accused
met the other two
accused at the bus-stop and requested them to go with him to the
village of Ha Mothamahaue, where they were to
take money from a shop
or cafe. Initially, the two accused were not prepared to join him in
that venture. He then told them that
he had been sent on an arrant to
that village and they should accompany him. They complied.

When they
came to the village of Ha Mothamahane, No.l accused then told the
other two accused that he was in fact deceiving them
when he said he
had been sent on an errand. He was in fact serious in his suggestion
that they should go to that village to break
or commit house breaking
at a certain shop from which they were to take money. To give them a
dutch courage, he showed them a firearm
(a pistol) which he said it
would be used in the commission of the robbery.

The plan
was that he and accused No 3 would enter into the shop whilst accused
No.2 would remain outside the shop to make sure that
there were no
people coming to the shop or if any people came to the shop, he

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would
presumably alert them. Accused No.2 highly approved of this plan and
accordingly accused No.1 and accused No.3 entered into
the shop.

Inside
the shop, accused No. 1 and 3 found a sales lady and made sure that
she was aware of the firearm. When she saw the firearm,
accused No. 3
and accused No.l (who was covering his face with a balaclava hat) the
sales lady was apparently frightened for she
immediately summoned the
nightwatchman who was outside the shop.

According
to the sales lady, Lisebo 'Moleli, when he came into the shop, the
nightwatchman went with her to the storeroom. She told
the
nightwatchman that the two accused were in possession of a firearm.
When the nightwatchman asked her what she was saying, the
two accused
approached them and accused No.l fired a shot at the nightwatchman.

The
evidence of the accused was slightly different on that point.
According to them after accused 1 and 3 had entered into the shop
the
sales lady called for the nightwatchman, and when he entered into the
shop the nightwatchman assaulted Accused No.l. At that
time accused
No.3 fled out of the shop. Accused 1 was prevented from going, out of
the shop by the nightwatchman, who stood at
the door asking him

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who he
was and what he wanted there. Because he could not go out, accused
No.l fired at and shot the nightwatchman so that he could
go out.

I simply
do not believe accused No.1's story, because, if he really shot at
the nightwatchman in order that he might get out of
the shop, he
would have gone out the moment he had shot that man. However, in his
own words, No.l accused told the court that having
shot the
nightwatchman, he rushed for the money or the cash box, which was on
the counter instead of going out of the shop. It
was only after he
had taken the cash box.that he ran out of the shop. That in my view
is not consistent with the story of account
No.l that the purpose of
shooting the nightwatchman was to enable himself to go out of the
shop. Be that as it may, Lisebo 'Moleli
testified that when the
nightwatchman was shot, she also ran out of the shop in fear.

Coming
back to the accused story, after he had ran out with the cash box,
accused No. 1 joined the other 2 accused and they returned
home with
their loot. On the way, they sat down and divided or shared the loot.

I am
quite sure the accused have told me a lot of lies as to how much
share each one of them got.

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According
to Accused No.1, the total amount of money found in the cash box was
M2,000-00. They divided it equally among themselves.
He told the
court that each of them got an amount of M555.00. It is to be
observed, however, that the sum total of those amounts
does not come
to M2,000-00.

According
to accused 2, he was not able to count money when he had a lot of it.
The money he got from that loot was a lot of money
and, therefore, he
was not able to count it.

According
to Account No.3, his share was M2. He, however, did not know how much
money was in the safe or cash box.

I am not
convinced with the accused No.3's story. After they had obtained this
lot of money, the accused had time to sit down and
count it. I am
quite sure that they counted it well and they knew how much money
each of them got.

In any
event, it is common cause that as a result of what they did on that
day, the accused persons were eventually arrested, cautioned
and
charged, as aforementioned, by the police. For the sake of
convenience, I shall start with count II, robbery. The essential

elements which have to be proved to

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establish
the commission of robbery are, shortly put, that there was an assault
and the purpose of that assault was to induce submission
on the
victim so that he or she could part with his/her property.

There can
be no doubt, from the evidence, that two of the accused persons went
into the shop armed with a firearm which they made
sure that the
sales lady would see. There can be no doubt also that when she saw
the firearm in the possession of one of two of
the accused persons,
the sales lady got frightened, particularly so because the other one
of the accused who entered into the shop
had his face covered with a
balaclava hat. As if that was not enough, Accused No. 1 fired the gun
inside the shop and killed the
nightwatchman. The sales lady fled out
of the shop. Accused No.l then immediately rushed for the cash box
containing money, took
possession thereof and ran out of the shop.

In my
view that is enough to prove that the accused persons especially
accused No.l induced submission on the shop workers. By means
of that
submission, he stole the money, the subject matter of the Count II.
There is in my opinion sufficient evidence establishing
the
commission of that offence by accused No.l. As it has been pointed
out, No.l accused was acting in concert with the other two

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accused.
That being the case, the other two accused were, on the basis of the
well known doctrine of common purpose, as criminally
liable as No.l
accused in the commission of that offence.

Coming
now to count I, there can be no doubt that Accused No. 1 shot at, and
killed, the night watchman (the deceased in count I).
There was no
lawful reason at all why. the accused person shot at, and killed, the
nightwatchman. It must be remembered that when
they went to the shop,
all the accused were aware that Accused No.1 was armed with a
firearm. They were, in my finding, aware that
the purpose of carrying
the firearm was to make sure that if there were any resistance
against the execution of their plan, it
would be removed out of the
way by the use of the firearm. On arrival at the shop, the night
watchman did show his disapproval
of their presence there especially
that they were armed with a firearm. There was, therefore, resistance
against the execution
of their plan. Accused No.1 had not hesitation
to remove that resistance out of their way by the use of the firearm.
In using the
firearm, in the manner he did, No.1 accused had the
requisite subject intention to kill, at least in the legal sense.
Assuming
the correctness of my finding that they were aware that No.1
accused might use the firearm in the manner he did, the other two
accused likewise had, on the

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principle
of common purpose, the requisite subjective intention to kill.

In the
result, I am prepared to find all the three accused persons quilty of
murder on the first count and guilty of robbery on
the second count.

EXTENUATING
CIRCUMSTANCES;

Having
found the accused persons guilty of murder. Section 196 of the
Criminal Procedure and Evidence Act of 1981 enjoins the court
to
state whether or not there are any factors tending to reduce the
moral blameworthiness of the accused's act. In this regard,
there was
evidence, as Mr. Moorosi, counsel for the accused, has pointed out,
that shortly before they killed the nightwatchman,
the accused
persons had been at a wedding feast in the village, where they drank
a considerable amount of a concoction known as
pine-apple. It is
common knowledge that if people take intoxicating beverages their
minds become affected by such drinks and start
doing things they
would not do when sober.

It must
also be pointed out that it is clear from the evidence, that what the
accused planned was to commit armed robbery. There
is no evidence
that they planned or premeditated the death of the deceased.

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Now, it
is trite law that the absence of premeditation of the deceased's
death is a factor to be properly considered for purposes
of
extenuating circumstances.

In the
result, I come to the conclusion that in this case, there are
extenuating circumstances namely, intoxication and the absence
of
premeditation. The proper verdict for the accused is, therefore, that
in count 1, the accused are guilty of murder with extenuating

circumstances.

Both my
assessrs agree.

SENTENCE:

I have
already convicted the accused on count I and court II. Coming now to
the question of sentence, I have taken into account
all the factors
that have been raised, in mitigation, by Mr. Moorosi. counsel for the
accused persons. As regards count I, I also
take into account that,
in accordance with our custom, the relatives of the deceased will, in
all probabilities, sue the accused
persons in civil court for
compensation or to raise the head of the deceased. This criminal
court is, therefore, only the first
to impose punishment on the
accused persons. Another

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court
viz. a civil court is yet to punish them. In sentencing the accused
I, therefore, take this point into account in order that
it may not
be said the courts of law punish people twice for the same offence.

I must
say I feel sorry for the accused persons who are still young and have
a long future ahead of them. But what sort of a future
are they
preparing for, if at their ages, the accused are already murdering
people and committing armed robbery? That is not the
way youngsters
like the accused persons should be preparing for their future.

As far as
count II is concerned, the law of this country prescribes a minimum
sentence of 10 years following a conviction on a charge
of robbery.
Each of the accused is, therefore, sentenced on count II to 10 years
imprisonment with no option of a fine.

Likewise
on count I the court is not empowered to impose an option of a fine
as a sentence nor can it suspend any portion of the
term of
imprisonment imposed as a sentence. Moreover this court takes a diem
view of people who deprive their fellow humans of
their life for no
lawful reason. In the circumstances of this case an appropriate
sentence for the accused persons (on count I)
will be 12 years
imprisonment.

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Each of
the accused persons is accordingly sentenced to:

12 years
imprisonment on count I

10 years
imprisonment on count II.

B.K.
MOLAI

JUDGE

16th
February, 1990.

For Crown
: Mr. Qhomane,

For
Defence: Mr. Fosa for accused 1,2 and 3.