HIGH COURT OF LESOTHO
by the Honourable Mr. Justice J.L. Kheola on the 12th day of April,
accused is charged with the murder of 'Mapiti Khumalo on the 9th day
of February, 1989 at Ha 'Makuini in the district of Butha
defence tendered a plea of guilty of culpable homicide which was
rejected by the Crown.
'Mamakoanyane Loki testified that she lives in the same village with
the accused. The deceased also lived in the same village.
On the 9th
February, 1989 she had invited her
to assist her to hoe her field. After they had finished hoeing they
set down and drank some liquor. The accused and
arrived and joined in the drinking. Having finished the liquor they
went to her home where she gave them more liquor
in a twenty - litre
tin. The accused drank the liquor with the people who had been hoeing
until late at night. The deceased had
also joined the group although
she had not gone to the fields. P.W.1 asked them to leave because she
wanted to sleep. They complied
with her request.
cross-examination the witness denied that she knew of any
relationship between the accused and the deceased.
'Maqenehelo Sepetla testified that on the 9th February 1989 she had
brewed some liquor to celebrate the birthday of her child.
celebrations went on until very late at night. The accused and the
deceased attended the celebrations but arrived at night
already drunk. There were about seven people in the house. They were
all drinking liquor and singing. They left one by
one until only the
accused and the deceased remained. Thereafter the deceased informed
P.W.2 that she was leaving. P.W.2 said she
should not go because it
was too late. The deceased insisted that she was leaving and even
asked P.W.2 to lend her a blanket because
it was cold. The accused
said P.W.2 should let her go because he would accompany her. P.W.2
lent the deceased a blanket and she
left with the accused. Some time
after they had left she heard their voices at the forecourt of her
house. She opened the door
the forecourt. She again pleaded with the deceased to come into the
house because it was too late for her to go to her home.
P.W.2 gave up and went into her house and slept.
some time the accused knocked at the door and asked P.W.2 to open for
him. She refused. The accused said he had brought her
dropped something at the door. She looked through the window and saw
that the accused was going away. She opened the
door and found the
blanket which the deceased had borrowed. She took . it and again
slept. The accused again returned and knocked
at the door and asked
.P.W.2 to open the door and allow him to come in because she did not
know why she had come to her place.
On this occasion she opened the
door because she was curious and wanted to know why he had brought
back the blanket at that time
of the night.
accused entered and sat down. He asked her if she knew that the
person with whom he left was dead. He explained that he caught
of her and choked her and she died. He said he was playing with her.
Finally he warned her not to tell anybody because
he would turn
against her. After that he went away. P.W.2 reported the matter to
her mother-in-law immediately after the departure
of the accused. On
the following morning the deceased was found dead near the aloes near
the chief's place.
cross-examination P.W.2 denied that she was in love with the accused.
She said she did not know any relationship
the accused and the deceased.
of the depositions of the Crown witnesses at the preparatory
examination were admitted by the defence. They relate to the
of the body of the deceased on the morning of the 10th February, 1989
as well as the injuries it had, the confession made
by the accused
and the post-mortem examination report which was handed in evidence
by agreement without calling the doctor who
performed the post-mortem
to the post-mortem examination report the death of the deceased was
due to intracerebral haemorrhage and?? Hanging. Externally
deceased had bruises on forehead (right), left cheek and jaw; Blood
was oozing from the mouth, ears and nostrils; the eyes
were protruding; there were pressure marks around the neck.
Internally there was linear fracture of the parietal bone
intracerebral haemorrhage. Both lungs were congested.
confession the accused states that when he left 'Maqenehelo's place
he accompanied the deceased who was his lover. On the
requested her to accompany her to Sajene's place. He said Sajene's
place was too far and he could not reach it. He told
her that he just
wanted to have sexual intercourse with her. The deceased said they
should go on and make preparations later. When
they came to the aloes
he again asked her to have sexual intercourse with him. She refused.
He caught her and threw her to the
ground and had sexual intercourse
with her. Because she was refusing he strangled her and pressed her
to the ground. He then dragged
her out of the path and tried to raise
her up, he noticed that
numb and her neck was loose or unbalanced. He took the blanket she
had borrowed from 'Maqenehelo and told her that his lover
preparatory examination the accused decided to make a sworn statement
after the Crown had closed its case. In that statement
he states that
he and one Sajene were the lovers of the deceased. She had warned him
to respect Sajene because he was her first
lover. On the 9th
February, 1989 the deceased asked him (accused) to accompany her as
Sajene had already left. He agreed. She borrowed
a blanket from
'Maqenehelo. On the way he asked the deceased to have sexual
intercourse with him. she refused. He threatened her,
choked her and
she died. He went back to 'Maqenehelo and told her about the matter.
testimony before this Court the accused deposed that when they left
'Maqenehelo's place the deceased said she was going to
place. He did not approve of that and when she insisted that they
should go there, he caught her and choked her. She fell
down. He also
fell down and they both rolled down the slope and over the barbed
wire until they landed in a yard. He did not actually
strangle her but merely intended to frighten her so that she could
stop insisting that they should go to Sajene's place.
three statements made by the accused at various time he admits in no
uncertain terms that he killed the deceased by strangulating
question is whether the killing can be regarded as justifiable
homicide. The accused does not say that he
the deceased in self-defence. In the confession which he made to a
magistrate on the 14th February, 1989 he says he choked
because he was refusing to have sexual intercourse with him. He
repeated the same story at the preparatory examination
8th November, 1989. However, at the trial he now says that he
strangled her because she insisted that they should go to
place and that he had already heard sexual intercourse when he
strangled her. I am of the opinion that the accused is
a lier and
that in his testimony before this Court he told a pack of lies. The
truth is what he said in his confession and in the
statement he made
at the preparatory examination that he strangled the deceased when
she refused to have sexual intercourse with
him. He strangled the
deceased and forced her to succumb to having sexual intercourse with
him. In other words he raped the deceased
and in the course of that
he strangled her to death.
no provocation on the part of the deceased. She was entitled to
refuse to have sexual intercourse with the accused even
if they were
lovers because she was not his wife. I have a very serious doubt that
the deceased had any illicit love affair with
the accused. The
witnesses who gave evidence in this case were not aware of such
affair. In addition to that the deceased behaved
in a manner which
indicates that she was not in love with the accused. The accused had
to use very savage force in order to overpower
her. This is an
indication that she resisted very strongly and struggled with the
accused before she was killed. The injuries show
clearly that the
accused lied when
all he did was to hold her at the throat and pressed hard. There were
pressure marks around the neck which even gave the
impression that the deceased was hanged. Something like a belt or
rope must have been used to cause the marks around
the neck. There
was a fracture of the parietal bone indicating that some hard object
must have been used to strike the deceased.
common cause that at the time of the commission of the offence
alleged against him the accused was drunk. The criminal liability
intoxicated persons is clearly set out in section 2 (1) (2) of the
Criminal Liability of Intoxicated Persons Proclamation No.
60 of 1938
2(1) Save as provided in this section, intoxication shall not
constitute a defence to any criminal charge.
(2) Intoxication shall be a defence to any criminal charge if by
reason thereof the person charged at the time of the act or omission
complained of did not know that such act or omission was wrong or did
not know what he was doing and -
(a) the state of intoxication was caused without his consent by the
malicious or negligent act of another person; or -
(b) the person charged was by reason of intoxication insane,
temporarily or otherwise, at the time of such act or omission.
accused in the instant case knew what he was doing and knew that it
was wrong. He described very well what he did although he
distorted the facts to suit his purposes. He knew that what he did
was wrong and immediately went to 'Maqenehelo and
told her what he
had done and strongly warned her not to tell any
that he had killed the deceased. This is a case of voluntary
intoxication and the accused was not insane, temporarily or
that the accused had the specific intent to kill the deceased in that
the foresaw the death of the deceased as a possibility
due to his
assault but was reckless as to whether it occurred or not.
him guilty of murder. My assessors agree.
- Mr. Qhomane
Defence - Mr. Fosa.
circumstance became obvious during the trial. They are that the
accused was drunk and that there was no premeditation.
I find that
there are extenuating circumstances.
SENTENCE: I took into account that the accused is a first offender;
he has four minor children; he was drunk when he committed
offence. However, the accused committed a very serious offence for no
apparent reason. I sentence him to seventeen (17) years'
- Mr. Qhomane
Defence - Mr. Fosa.
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