CRI/T/3/90

IN THE
HIGH COURT OF LESOTHO

In the
Matter of :

REX

v

LICHABA
MASILO

JUDMENT

Delivered
by the Hon. Mr. Justice B.K. Molai on the 8th clay of March, 1990.

Held at
Quthing

The
accused appears before me charged with the crime of murder on the
following allegations:

"On
or about 2nd June, 1988 and at or near Daliwe Ha Setsumi in the
district of Quthing, the said accused did unlawfully and

intentionally kill 'Makhothatso Raleaoa".

When the
charge was put to him, the accused pleaded not guilty.

At the
commencement of the trial Mr. Z. Mda, who represents the accused,
informed the court that the defence would admit the depositions
of
Lejone Raloaoa, 'Mahopolang Masilo, Lenka Raleaoa, Tper Moshe and
D/Tper Kolobe who were respectively P.W.2, 3,4,5 and 6 at
the
proceedings of the Preparatory Examination. Mr. Mokhobo for the crown
accepted the admissions made by the defence counsel.

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In terms
of the provisions of S.273 of the Criminal Procedure and Evidence
Act. 1981. the depositions of Lejone Raleaoe. 'Mahopolang
Masilo,
Lenka Raleaoa, Tper Moshe, and D/Tper Kolobe were admitted in
evidence. It was, therefore, unnecessary to call the deponents
as
witnesses in this trial.

By
consent of both counsels the post mortem examination Report was
handed in from the bar as Exhibit "A". It was likewise

unnecessary to call the medical doctor who had performed the autopsy
as a witness in this trial.

In as far
as it is relevant, the evidence of Tper Moshe was to the effect that
on 2nd June, 1983 he received a report as a result
of which he
proceeded to the village of Ma-Aoweng in the area of Daliwe Ha
Setsumi where he found the dead body of the deceased
lying in the
village. He examined the body for injuries and found that it had
sustained a single wound on the left side of the
chest. He caused the
body to be carried to a spot next to the public road where it was
taken away in a police vehicle on the following
day.

This is
confirmed by Lenka Raleaoa who testified that he accompanied the body
of the deceased to the spot next to the public road
and then to
Ralebona clinic. From the clinic he accompanied the deceased's body
to the mortuary at Quthing Government hospital.
It sustained no
additional injuries whilst it was being transported from the village
of Ma-Aoweng to the mortuary. I shall return
to the evidence of Lenka
Raleaoa later in this judgment.

According
to the post-mortem Examination Report (Exh A), on 6th June, 1988 a
medical doctor, at Quthing Government hospital, performed
an autopsy
on a dead boy of a female African adult. The

3

body was
identified as that of the deceased, 'Makhothatso Raleaoa, by Seabata
Raleaoa and Lejone Raleaoa.

This is
confirmed by Lejone Raleaoa who testified that the deceased was his
wife and the accused his brother-in-law. The accused's
sister was
married to his elder brother. On 2nd June, 1988 he noticed the
accused standing on the forecourt of a house belonging
to his (Lejone
Raleaoa's) elder brother in the village of Ma-Aoweng. He invited the
accused to the feast which was being hosted
by one Bonang in the
village. The accused obliged. Shortly there after the two men were
joined by the deceased. The trio then walked
together to the place of
the feast. I shall return to the evidence of Lejone Raleaoa in a
moment.

The
external examination of the deceased's body by the medical doctor
revealed that the body had sustained a superficial laceration
below
the (R) eye, a 1 cm long sharp edged wound on the insertion
(beginning) of the 3rd rib on the left side of the chest.

The wound
had cut the cartilage of the 3rd rib through the sternum or breast
bone.

On
opening the body the medical doctor found that the wound on the chest
had penetrated into the heart, severing the right ventricle.
The
pericardial sac was filled with blood some of which was also found in
the left side of the chest cavity.

From
these findings the medical doctor formed the opinion that death was
due to sudden heart failure which had occurred instantly
as a result
of the severing of the (R) ventricle of the heart. The injuries were
consistent with the use of a sharp instrument.

4

I can
think of no good reasons why the opinion of the medical doctor that
the deceased died as a result of the chest injury should
be doubted.
That being so, the salient question is whether or not the accused is
the person who inflicted the injury upon the deceased
and, therefore,
brought about her death.

In this
regard, P.W.1, 'Mamotseko Kotelo, told the court that on the day in
question, 2nd June, 1988, she attended the feast that
was hosted by
Bonang in the village of Ma-Aoweng at Daliwe. Save for about an hour
when at 5 p.m. her father called her to his
house, she spent
virtually the whole day at the feast with the deceased who was, in
fact, the wife of her parternal uncle.

At about
between 8 p.m. and 9 p.m. she and the deceased went to fetch beer
from the latter's house which was some distance away
from the place
where the feast was held. On the way the accused who had apparently
been following them called at the deceased and
demanded that she
should stop or come to him. The deceased ignored the accused's demand
and the two women simply continued on their
way to her house. They
took the beer to the place where the feast was held.

On the
way back to the place of the feast, P.W. 1 and the deceased found the
accused still waiting at the spot where they had left
him on their
way to the deceased's house. The accused again called at the deceased
and angrily told her to stop. Because of the
rude manner in which the
accused told the deceased to stop, P.w.1 suggested to her that she
should run away - A suggestion which
was, however, declined by the
deceased who told P.W.I that she knew the accused would beat her up
if she dared ran away. The accused
then came to the two women and
violently caught hold of the deceased.

5

According
to her, P.W.1 left the accused and the deceased together and
continued alone to the house where the feast was held, just
a short
distance away. She had hardly entered into the house when she heard
an alarm being raised from the| direction in which
she had left the
accused and the deceased. She and many other people rushed to the
scene. On arrival at the spot where she had
left the accused
violently holding the deceased P.W.I found the latter lying prostrate
on the ground. She was already dead

Now,
coming back to his evidence, Lejone Raleaoa further testified that
some time after he, the deceased and the accused had come
to the
place where the feast was held, he had the occasion to go to the home
of one Seabata Raleaoa in the village, leaving the
accused and the
deceased at the feast. Whilst at the home of Seabata, he heard scream
as a result of which he rushed in the direction
from which the scream
came. When he reach a certain spot on that direction he found the
deceased lying prostrate on the ground.
She was already dead.

Returning
to his evidence, Lenka Raleaoa further testified that on the evening
in question he was at his home when he received a
certain report from
Bonang, who was, however, not called as a witness in this trial.
Following the report, he raised an alarm and
rushed to the spot where
the deceased Was found dead. As a result of the alarm many people
came to the scene. He subsequently reported
the matter to the chief
and the police.

D/Tper
Kolobe testified that on 28th July, 1988 he was stationed at Mt.
Moorosi when he received a message following which he came
down to
Quthing police station. At the police station he

6

met the
accused who gave him a certain explanation as a result of which he
and the accused proceeded to a place called Ha Piti.
He reported
himself to the chief of the area. A messenger was detailed to
accompany him to the home of 'Mahopolang Masilo. From
the horns of
'Mehopolang the accused produced a knife which he handed over to the
police officer. This is confirmed by 'Mahopolang
Masilo according to
whom the knife was the property of the accused.

The
accused gave evidence on oath in his defence and his version was
completely different from that of Lejone Raleaoa and P.W.1.
First of
all, it is common cause that the accused lives in a neighbouring
village to that of Ma-Aoweng. According to him, the accused
spent
greater part of the day in question at the house of Lejone Raleaoa
who, as it has already been pointed out earlier, is his
brother
in-law. He was drinking beer in the company of Lejone Raleaoa
himself, the deceased and P.W.1 It is. however, worth remembering

that in his evidence, Lejone Raleaoa testified that it was only in
the evening of the day in question, 2nd June, 1988, that he
noticed
the accused standing on the forecourt of his elder brother's house in
the village of Ma-Aoweng. It was only then that he
invited the
accused, not to his house but to the place of the feast. The evidence
of Lejone Raleaoa contradicted, therefore, the
accused's story that
he had spent greater part of the day in question drinking beer with
him at his house. Furthermore, the; accused's
story was in that
regard also con tradicted by the evidence of P.W.I according to whom
she was with the deceased at the feast hosted
by Bonang on the day in
question.

Indeed,
It is significant to mention that in her evidence P.W.I testified, on
oath, that she was a close relative of Bonang and
did not drink
alcoholic beverages at all. As her close relative-she had a family
duty to assist at the feat that was being hosted
by

7

Bonang.
The accused's suggestion that she could have spent greater part of
such a day drinking beer at the house of Lejone Raleaoa
was,
therefore, preposterous.

I must
say I find it unconvincing that both Lejone Raleaoa and P.W.I would
fabricate against the accused on such apparently innocent
issue. The
truth of the matter is that the accused's story that he spent greater
part of the day in question drinking beer with
P.W.1, the deceased
and Lejone Raleaoa at the letter's house is nothing but a figment of
his imagination which I have no hesitation
to reject as false.

Be that
as it may, the accused did concede that later on the day in question,
he went to the place where the feast was held. He
conceded further
that whilst drinking at the feast, Leione Raleaoa went to the house
of Seabata Raleaoa in the village of Ma-Aoweng
leaving him and the
deceased at the feast. At about 10 p.m. P.W.I and the deceased left
the place of the feast to fetch beer from
the latter's house. At that
time he too left for his home village. As he was very drunk and
walking slowly he arrived home at 2
a.m. i.e. it took him four(4)
hours to reach his house in the neighbouring village which according
to him was more or less 6 kilomenters
(ind.) from the village of
Ma-Aoweng.

It is
perhaps convenient to mention at this juncture that in view of the
fact that the accused had clearly testified that he had
left the
village of .Ma-Aoweng at 10 p.m. and arrived home at 2 a.m. he was
asked whether he could read a watch. He replied in
the negative and
was quick to elaborate that the watch he was wearing on his wrist was
nothing but a mere decoration. I considered
it incredible that the
accused who could not read a watch, as he wanted this court to
believe, would be so positive that he left
Ma-Aoweng at 10p.m. and

8

arrived
at his home village at 2.00 a.m. There is not the slightest doubt in
my mind that the accused is a liar of the first order.

In any
event, what is of importance in this case is that in his evidence the
accused denied P.W.1's story that when she and the
deceased went to
fetch beer at the latter's house he followed thorn and called at the
deceased to stop or come to him. He in fact
raised the defence of
alibi and said he was, at the time, on his way to his home village.
He could not, therefore, have been at
the spot P.M.1 alleged he was.

I am
mindful of the fact that the events which P.W.1 says took place at
the time she and the deceased were fetching beer from the
latter's
house occurred during the night when there was no light and the
vicibility was not all that good. It is, therefore, basically
a
question of whether or not P.W.1 had a good opportunity, to identify
the accused.

It was,
however, common cause that P.W.1 and the accused had known each other
well for many years. Indeed, in his own mouth the
accused told the
court that P.W.I was a one time fiance of his own elder brother who,
however, turned down the relationship on
the influence of his
parents. P.W. 1 then blamed him for the break down of the
rela­tionship. Of course, P.W.1 denied the accused's
story that
any such relationship ever existed between her and his elder brother
and told the court that the accused's story was
just another of his
park of lies before this court. Apart from the fact that the accused
and P.W.1 knew each other well, it must
be borne in mind that
according to the latter she and the deceased twice met the accused on
their way to and from the deceased's
house. On both occasions the
accused spoke to the deceased in the presence of P.W.1. That being
so, it

9

seems to
me that P.W.1's chances of mistaken identity were greatly reduced for
in my view, one does not need light to identify a
person by his voice
if one knew the voice of that person well.

In the
present case, I have no doubt that as acquaintances of many years
both the accused and P.W.1 know each other well, not only
facially
but also by their voices. When the accused spoke to,and eventually
caught hold of,the deceased, P.W.1 was so close to
them that it would
be unreasonable to suggest that she could have mistaken the identity
of the accused by his voice. I am prepared,
therefore, to accept as
the truth P.W.1's story that she positively identified the accused,
at least by his voice, as the person
who called at the deceased to
stop i.e. at the time she and the deceased were going to the latter's
house and at the time they
were returning from the deceased's house
when he (accused) violently caught hold of the deceased and, in a
rude manner, told her
to stop or come to him. I reject as false,
therefore, the accused's denial and his version that he was, at the
time, on his way
to his home village.

True
enough, there is, in this case, no direct evidence that the accused
is the person who inflicted up the deceased the injury
that brought
about her death. There is, however, plenty of circums­tantial
evidence which I accept, that the accused is the
person who on the
first occasion called at the deceased and demanded that she should
stop. When the deceased failed to respond
to his demand the accused
was the person who, on the second occasion, angrily called at the
deceased and, in a rude manner, again
told her to stop. He was
eventually seen manhandling the deceased who, shortly, thereafter,
was found fatally injured at the very
spot where the accused had been
vilently holding her. The accused himself had

10

disappeared
into thin air. Indeed, the accused subsequently took the police
officers to the home of 'Mahopolang Masilo from where
he produced a
knife which was admittedly his property.

From all
this circumstantial evidence, it seems to me reasonable to infer that
the answer to the question I have earlier posted
viz. whether or not
the accused is the person who inflicted upon the deceased the
injuries that brought about her death must be
in the affirmative.
That being so, the only question that remains for the determination
of the court is whether or not in assaulting
the deceased as he did
the accused had the requisite subjective intention to kill.

It is
clear from the evidence I have accepted that the accused assaulted
the deceased and inflicted upon her a fatal wound on the
chest, which
is a vulnerable part of a human body. When he thus assaulted the
deceased on the upper portion of the body the accused
was aware that
death was likely to occur. He nonetheless, acted reckless of whether
or not it did occur. Consequently, I have no
alternative but to come
to the conclusion that in assaulting the deceased as he did, the
accused had the requisit subjective intention
to kill, at least in
the legal sense.

I
accordingly find him guilty of murder as charged. Both my assessors
agree with this finding.

B.K.
Molai.

JUDGE

8th
March, 1990.

For Crown
: Mr. Kokhobo

For
Defence: Mr. Z. Mda.

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EXTENUATING
CIRCUMSTANCES

I Have
already convicted the accused person of murder and the court is now
enjoined by Section 296 of the Criminal Procedure and
Evidence Act,
1981 to state whether or not there are extenuating circumstances,
viz. factors which tend to reduce the moral blame-worthiness
of the
accused's act.

In this
regard the court has been invited to consider the youthfulness of the
accused. It is alleged that at the time of the commission
of this
offence he was only eighteen years. It is, however, significant that
as she testified on oath before this court, P.W.1
kept on referring
to the accused as "Abuti" a term which suggests that the
accused is older than her. The accused himself
has not disputed that
P.W.1 is younger than him. Indeed, at one time he referred to her as
"ngoananyane" - a diminitive
of the word"ngoanana"
- thus suggesting that P.W.I is younger than himself. P.W.1 has,
however, told the court that her
age is twenty-six years. If he were
older than her, the accused cannot, in my view,be eighteen.

In any
event, the question of the estimation of the accused's age is a
matter which is entirely within the court's assessment. Although
the
accused told the court that he is eighteen years old, it is to be
observed that according to the charge sheet he is twenty
years old. I
have myself looked at the accused and assessed his age as around
twenty-five/twenty-seven years. For purposes of extenuating

circumstances a youth is a person who is eighteen years and below. In
my assessment the accused is far older than that. Although
the
accused is still relatively young, I am not prepared to treat him as
a youth of about eighteen or below.

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There
was, however, evidence that the accused had been drinking on the day
in question. There was a feast in the village of Ma-Aweng.
The
accused attended the feast and was seen at least by Lejone Raleaooa,
drinking at the feast. The evidence of Lejone Raleaooa
is
corroborated by the accused himself who also testified that he had
been drinking beer at the feast.

Assuming
the correctness of the evidence that the accused had been drinking
beer at the feast it stands to reason that the beer
must have
affected his mind and was, therefore, intoxicated on the day in
question. It is common knowledge that when people are
intoxicated
after taking alcoholic beverages their minds are so affected that
they do things they would not do when sober. It is
trite law that
intoxication is a factor that can properly be taken into account for
purposes of extenuating circumstances.

As Mr.
Mda, counsel for the defence, has rightly pointed out-there is no
evidence indicating that the accused had planned or pre-mediated
the
death of the deceased. The absence of premeditation is, in law, a
factor that can properly be taken into account as extenuating

circumstance.

In the
circumstances, I come to the conclusion that there are extenuating
circumstances in this case. viz. intoxication and the
absence of
premeditation of the deceased's death. The proper verdict is,
therefore, that the accused is guilty of murder with extenuating

circumstances.

SENTENCE:

Coming
now to the question of sentence, I am informed by the Crown Counsel
that the accused has no previous convictions. I take
it,

13

therefore,
that he is a first offender The court has also been invited by Mr. Z.
Mda, counsel for the defence to consider a number
of factors in
mitigation of the accused's sentence. He has so eloquently tabulated
them that there is no need for me to go over
them again, save to say
I take them all into con­sideration.

My
attention was called to the words of the famous English writer,
Shakespeare, that "Justice is always tempered with mercy".

These are words of wisdom. However, I must at the same time point out
that the court over which I am presiding is a court of Justice
and
not mercy. What should be of utmost consideration to the court is
that the accused has been convicted of a serious offence
calling for
a commensurately serious punishment.

I am
perturbed by the fact that the accused went to a feast, where many
people had gathered, carrying a knife. Far too many people
have lost
their lives by the use of knives in this country. If this sort of a
thing were to come to a halt, it must be brought
home to people like
the accused that they will not be allowed to go to feasts where
people are enjoying themselves after a day's
hard work and butcher
them with knives. It must be made abundantly clear to the accused and
people of his mind that the carrying
of knives is out of question
when they decide to go and mix with other people at the feasts.

I am
aware that the accused is a relatively young man who still has many
years to live. He has not been to gaol before and in all

probabilities still entertains the fear that going to that place will
not be a very pleasant experience. That fear will no doubt
serve to
guide him against mischief. One of the undesirabilities of sending a
young first offender like the accused to prison is
that sooner or
later he will realize that our prisons are not such bad places. They
are not like the

14

German
concentration camps where people were tortured and ill-treated. We
punish people by merely depriving them of their liberty.
Once they
are within the four walls of the prison, people are given a humane
treatment. This may have the effect of destroying
whatever fear the
accused had of going to gaol so that he starts boasting that gaols
are built for people.

I must
emphasise to the accused and people of his mind that prisons are not
just built for people. One of the cardinal principles
behind building
prisons is to reform criminals so that they can come out better
members of society than when they were sent there.
With this
objective in mind it is of utmost importance that if and when the
need arises to impose a custodial sentence upon a person
in the
accused's situation the court must allow sufficient time to enable
the prison authorities to do their work of reforming
the accused
efficiently.

In my
finding the accused has committed a very bad offence killing another
human being. There is nothing wrong with the law of this
land that
prevents people from killing others. Even in the Divine Law it is
written: "Thou Shalt not kill." This court
takes a rather
dim view of people who do not hesitate to kill others. I have
therefore, considered it necessary to sentence the
accused to a term
of imprisonment As it has been pointed out earlier, the court has to
be careful not to sentence the accused to
prison for just a brief
period. This can have the disadvantage of enabling the accused to be
merely adversely influenced by the
heart-hardened prisoners so that
he cones out of prison a worse member of society than when he was
sent there.

With all
these considerations in mind,I have come to the conclusion that
appropriate sentence for the accused is that he should
go to gaol for
eleven (11) years. I accordingly sentence him.

B.K.
MOLAI

JUDGE

8th
March, 1990

For Crown
: Mr. Mokhobo

For
Defence : Mr. Mda.