CRI/T/42/89

IN THE
HIGH COURT OF LESOTHO

In the
Matter of :

REX

v

LEHOHNOLO
MAIEANE

JUDGMENT

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

Held at
Butha-Buthe

The
accused has pleaded not guilty to a charge of murdering. Keisi
Mathiba, it being allaged that on or about the 4th day of June,
1986,
and at or near Maqasane in the district of Leribe he unlawfully and
intentionally killed the deceased.

At the
commencsment of the trial, Mr, Mphutlane, who presents the accused
person, informed the court that the defence would not
dispute the
depositions of Doctor Cortink, Moloi Ntepe, Makuchumane Mathiba,
Lesika Lethebe, Mapeshoane Ntjana and Letsoakse Maiane
who were
respectively, P.W.1, P.W.2, P.W.3, P.W.5, P.W.7 and P.W.8 at the
proceedings of the Preparatory Examination. On behalf
of the Crown,
Mr. Chomane accepted the admissions made by the defence counsel.

In terms
of the provisions of Section 273 of the Criminal Procedure and
Evidence Act, 1981, the depositions of P.W.1, P.W.2, P.W.3,

P.W.5,P.W.7 and P.W.8 were admitted in evidence. It was,

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therefore,
unnecessary to call the deponents as witnesses in this trial.

In his
testimony P.W.1 ,S/Sgt Lepheene, told the court that on 4th June,
1968 he proceeded to Maqasane where he found the dead body
of the
deceased, he examined it for injuries and found a single wound above
the right eye. He caused the dead body to be conveyed
to T.Y.
mortuary and it sustained no additional injuries whilst it was being
transported from the scene of crime to the mortuary.

The
eveidence of Doctor Cortink was to the effect that on the 9th of
June, 1988, he performed an autopsy on the body of a male African

adult. The body was identified as that of the deceased by Macuchumane
Mathiba and Makhetha Mathiba. This is confirmed by Macuch
unarm
Mathiba

The
findings of the medical doctor were that he found that the deceased
had sustained a skull fracture and there was bleeding into.
the
brain. He formed the opinion that death was due to the bleeding into
the brain as a result of the skull fracture.

There can
be no doubt, therefore, that the deceased died of the single wound on
his head. The only question that remains for the
determination of
this court, is whether or not this accused person is the one who
inflicted the injury upon the deceased and, therefore.
brought about
his death.

In this
regard it is common cause from the evidence of P.W.2, P.W.5, P.W.6,
P.W.7 and P.W.8 at the Preparatory Examination and,
indeed, the
accused himself that on the day in question there was a night vigil
held in the village. During the course of that
vigil, there was a
quarrel between the accused and the deceased.

The
quarrel was, however, stopped and the two men were separated.

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According
to the accused, there was a time when he went to relieve nature
outside the village. when he had finished and was returning
to the
place where the vigil was held, the accused met the deceased who told
him to repeat what he had been trying to do at the
vigil. As he thus
accosted him, the deceased hit the accused with a fist and the latter
fell to the ground. Wren he tried to get
up, the deceased who was
armed with an iron rod, hit the accused a blow on the leg with a
stick. In self-defence the accused hit
back with his stick and the
blow landed on the deceased's head. The accused then managed to run
away and returned to the vigil.

It is
common cause that during the early hours of the morning the deceased
was found dead outside the village. According to the
accused, when he
want to where the deceased was lying dead, he mas attacked and chased
by some of the people who had gathered at
the scene of crime. He ran
to the police station where he reported that he had come to seek
security because he was being attacked
by the villagers after his
fight with the deceased. This is confirmed by S/Sgt Lepheane, the
Police Officer who gave evidence as
P.W.1 before this court.

It is
significant that, apart from the accused person, of the witnesses who
testified in this case have witnessed the fight. I have,
therefore,
only the evidence of the accused person as to how he and the deceased
fought and the latter sustained the injury that
brought about his
death.

According
to the only available evidence before me, namely that of the accused,
it is clear that the deceased was the agressor by
first hitting the
accused person with a fist and then hitting him a blow which

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an iron
rod on the leg. Assuming the correctness of his evidence it seems to
me in order to repel the unlawful attack on him the
accused used a
stick. I am not convinced that where he used a stick to repel the
unlawful attack perpetrated on him with an iron
rod the accused can
be deemed to have exceeded the bounds of self-defence. In the
circumstances, I find that the accused was perfectly
entitled to
defend himself in the manner he did.

Assuming
the correctness of my finding, I have no alternative but to find the
accused not guilty and discharge him.

MY
assessors agree.

B.K.
MQLAI

JUDGE

6th
February, 1990.

For Crown
: Mr. Qnomane

For
Defendant: Mr. Mphutlane