HIGH COURT OF LESOTHO
matter of :
by the Hon. Mr. Justice M.L. Lehohla on the 5th day of August, 1991
accused pleaded not guilty to a charge of Murder preferred against
him in respect of the alleged unlawful and intentional killing
Thahang Mohapi on 9th Decemher, 1987 at Matlapaneng in the Mafeteng
having dispensed with the evidence of Molahlehi Moliko who deposed as
P.W.3 in the preparatory examination record, accepted
evidence of :-
P.W.8 - Detective Trooper Sekoto
P.W.7 - W/O Mohotlane
P.W.6 - Phatsoana Theoane
depositions were read into the recording machine and made part of the
record of proceedings before
mortem report marked "A" as well as Exhibit "1" a
knife and a stick collectively so marked were made
part of the record
in these proceedings.
"A" shows that the deceased's death was due to extensive
haemothorax couple with lung collapse.
mortem report further shows that the deceased had sustained multiple
stab wounds beneath the right axilla. There was also
a stab wound
behind the right ear. The doctor further indicated in his post mortem
report that both lungs had collapsed and that
he counted up to seven
wounds in the deceased's right arm-pit.
Mamonare Kapoko testified that on 9th December 1987 he saw the
deceased driving sheep along a path that passes near her yard.
deceased was approching P.W.1's yard. Time was around 4.30 p.m. P.W.1
did not knew whose these were.
opposite direction P.W.1 saw the accused who said to the deceased
within P.W.1's hearing; "you folded my sheep yesterday,
doso again today, it seems you are against me".
then the accused hit the deceased with a stick on the head. The
deceased fell to the ground.
P.W.1's evidence that deceased was not armed and that he did not
reply to the charges levelled at him by the accused. P.W.1
testified that the accused belaboured the deceased while the latter
ground. P.W,1's oral appeals at restraining the accused were to no
avail. P.W.1 had seen five blows being delivered at the
while he was down.
further to tell the Court that she saw the accused hold his stick in
his left hand and take out a knife and with it repeatedly
deceased whilst still on the ground. She did not see though where the
stab blows were inflicted.
stabbing the deceased thus the. accused rose and ordered his herdboy
to drive the sheep away. Throughout this encounter the
not doing anything but had laid prostrate apparently from the head
blow which had first felled him followed by the
belabouring that was
also witnessed by P.W.2 Motlokoa Kapoko a relative of the accused.
testified that she was able to see this encounter staged by the
accused on the deceased because she was only 10 to 15 paces
the spot where it took place,
testified that prior to the incident she knew of no bad blood between
the deceased and the accused.
appears however that the accused's sheep had on a previous occasion
shortly before the day of the incident destroyed the deceased's
and a Court before which the parties had come ordered that the
accused should pay damages.
appears that the accused had at one stage laid assault and robbery
charges against several men in the village including
the deceased and
P.W.4 Motlalentoa Tiea. These charges had been dismissed as baseless
by the Court
which parties had appeared.
evidence makes no mention of any assaults with a blunt instrument
such as a stick any where on the deceased's body despite
P.W.2's testimony that the accused used a stick to assault the
deceased before stabbing the deceased with a knife several
P.W.5's evidence does corroborate that of P.W.1 and that of P.W.2 as
far as the words allegedly the accused to the deaceased
and as far as the events borne witness to are concerned her evidence
is tainted by her deliberates lie before this
Court that she never
attended school at Matlapaneng and that she therefore cannot read or
write. Her lie was exposed by her school
teacher who showed that she
knows her well and taught her at lower primary school three or four
years before the alleged incident.
I view her evidence as possibly a
result of what she heard being spoken about. Because she has
discredited herself in her evidence
as a deliberate lair who without
any hint that she is inventing her testimony. I find it fitting not
to pay any regard to her evidence.
it is stated on Exhibit "A" that the postmortem was
carried out on 16th December 1987, the date stamp purportedly
the day when the post mortem form was filled bears the date 8th
February 1989 while the hand written date shows 7th February
Qhomane for the Crown submitted that this exhibit has been handed in
by the Crown and that the Court is not bound to rely on
submitted that P,W.8 Sekoto observed
injuries sustained by the deceased and testified to them before the
Court below. His evidence was admitted by the defence.
evidence the accused said he and the deceased were fellow villagers;
He received a report from a boy looking after his sheep.
was about the accused's sheep allegedly driven by the deceased
towards the pound.
accused went to the pound. Failing his sheep there he went along the
direction he expected them to take if driven towards the
accused met with the deceased near Matobonyane's gate. Matobonyane is
the husband of P.W.1. The accused asked what the
matter was with the
sheep but the deceased vouchsafed him no reply. Instead the deceased
took out a knife and lunged at the accused
trying to stab him with
that knife; The accused retreated and hit the deceased with a stick
on the hand that was holding the knife.
deceased kept coming at the accused who levelled a stick blow at the
deceased's neck. The knife slipped from the deceased's
hand and fell
to the ground. The accused picked it up and stabbed the deceased with
it; The deceased was still standing while thus
deceased fell down when the accused stabbed him with a knife.
Significantly the accused did not say the number of times or where
stabbed the deceased. He
after the deceased fell he went with his hordboy to pasture the
stabbing the deceased after he had fallen. He denied levelling a
stick blow which felled the deceased. The accused failed
to say in
what state of mind he was when thus attacking the deceased. He only
told the Court that he was scared. He said he did
not know how many
times he stabbed the deceased before the latter fell to the ground.
accused said after leaving the scene he went to the Police Station
and was carrying the stick and the knife which he handed
reiterated that before this incident he had taken the deceased and
others before the Magistrates' Court because they had waylaid
robbed him of M2000-00.
this Court that after the charge levelled at the deceased, P.W.4 and
others,P.W.4 appeared not to like him for P.W.4 used
to pass him
without greeting him.
accused says P.W.1 and P.W.2 are lying in saying he took out the
knife and stabbed the deceased with it. The accused said he
the deceased of the knife and stabbed him in self-defence.
he was surprised that the deceased appeared angry with him over what
the accused didn't know.
accused stated that the deceased was buried before Christmas 1987.
accused reiterated that when he went for the knife the stick was
still in his hand but he had transferred
it to his
accused denied that he had been lying to the Court. The accused
explained under cross-examination that even though he had hit
deceased's hand with a stick the knife did not fall because the stick
blow was not hard.
accused said the knife held by the deceased was already unclasped at
the stage he hit the deceased's right hand. It is a matter
surprise though because in questions put to Crown witnesses it was
made plain that there were two attacks at the accused;
and during the
first one the knife was not unclasped, The accused said he did not
remember reference to this incident.during.cross-examination
witnesses. Even though he was told that his statement that the knife
was already unclasped the first time he was attacked
consistent with the version put on his behalf to Crown witnesses he
said the knife was already unclasped at that stage.
accused said he dealt the deceased a harder blow during the
deceased's second attack for he realised the deceased was angrier
then. He explained that the deceased continued making for him
notwithstanding this hard blow.
the accused had thie time forgotten that according to his version he
had said what happened when he hit deceased on the
fell. Instead he told the Court he did not understand that question.
When it was put to him that he merely wanted
to work himself out of
the corner he said his misunderstanding of the question was due to
the fact that he is partly deaf,. Asked
if it is possible he did not
hear Crown witnessed testify against
version he gave on this point he said he heard them.
accused stated that he didn't recall his Counsel putting to Crown
witnesses that after a blow to the neck on the deceased the
fell. He denies that any stick blow by him to the deceased felled
many times he had hit the deceased with the stick the accused said
Court asked if this was his reply to the question put earlier by his
counsel the accused said his answer then was "twice".
accused said he did not know at what stage the deceased fell during
the stabbing, but that due to confusion he stabbed him even
latter was on the ground. He explained that he stabbed the deceased
in self-defence. Asked if hitting and incapacitating
the deceased and
continuing to stab him whilst on the ground is the accused's idea of
self-defence he replied that confusion caused
all this. Asked to
answer the question and to stop fencing with it he answered that
"this was not self-defence".
accused said that even though he hoard that what his Counsel put to
P.W.1 and P.W.5 was inconsistent with his own knowledge
of events he
said nothing to him. Asked why he didn't correct his Counsel he said
he was afraid.
that when applying for bail he had said he snatched the knife from
the deceased and did not say he picked it up from the ground
accused gave a garbled reply.
he accounted for the absence of the
in his bail application that the knife fell and he picked it up he
said ho didn't know for he had always been saying the
knife fell and
ho picked it up. Asked why P.W.1, P.W.2 and P.W.5 should say they saw
him produce the knife the accused said it
appeared they disliked him.
accused said ho was not drunk that day for he docs not take liquor or
alcohol. Ho said ho did not go to report about his sheep
by the deceased because there were no people at the Chieftainess's
place. Ho didn't go to the Senior Chief's for it
was too far.
he heard his Counsel put to Crown witnessed that he was angry he said
he did not hear that. Asked if nevertheless he was
angry he said no.
Asked where his Counsel could possibly have gathered the idea that
the accused was angry he said he did not know.
In P. vs.
Differd 1937 AD 370 at 373 read with R. vs M. 1946 (AD) 1023 at 1027
it is stated ;
"........ the Court does not have to believe the defence story,
still less docs it have to believe it in all its details;
sufficient if it thinks that there is a reasonable possibility that
it may be substantially true".
accused's story judged against the criterion that it should contain
reasonable possibility that it may be substantially true
meet this subminimum requirement. His story is substantially true on
peripheral issues such as that P.W.5 attended primary
Matlapaneng but when it comes to matters of substance such as his
threatening attitude borne out by his utterance to
the deceased when
the two first met near P.W.1's gate, coupled
the Crown witnesses saw the accused do, the truth in his story is
number of injuries inflicted on an unarmed man going about his lawful
duty of pinfolding stock which had destroyed his crops
ignored. There is an added factor that the accused scorned to have
motive for assaulting the deceased fatally because
the deceased had
won a case against him in 1986 where the accused was shown to. have
trumped up false charges against him and others.
Lately the deceased
had just boon awarded damages by a Court of law against the accused's
trespassing stock. A matter that the
accused must have resented to a
very high degree.
regard to intention that accompanied the unlawful killing of the
deceased the authorities arc unanimous that a man who drives
weapon such as a knife through the chest wall of another without any
lawful excuse must have had the requisite intent
to kill. Sec R. vs
Butelezi 1925 (AD) 169 at 194.
that the accused had no lawful excuse to stab an unarmed man with a
knife on the upper part of the latter's body - which
is vital. It was
particularly cowardly and wicked that the accused continued stabbing
the deceased when the latter was on the ground
and thus posing no
danger whatever to him.
In R. vs
Jolly 1923 (AD) 176 at 187 it is stated that :
"The intention of an accused person is to be ascertained from
his acts and conduct. If a man without legal excuse uses a deadly
weapon on another resulting in his death the inference is that ho
intended to kill the deceased".
accused's version is rejected as not only improbable but as devoid of
all truth. He is accordingly convicted of murder as charged.
to 12th August, 1991.)
accused is sentenced to thirteen (13) years' imprisonment.
' Mr. Qhomand
Defence: Mr. Khauod
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