CRI\T\56\91

IN THE
HIGH COURT OF LESOTHO

In matter
between:

REX

and

NGENAPHI
KANYOTHI Accused

JUDGMENT

Delivered
by the Honourable Mr. Justice J.L, Kheola on the 8th day of
September. 1993

The
accused is charged with the murder of Makunyene Kanyoti upon or about
the 5th day of August, 1990 and at or near Ha Potso in
the district
of Quthing.

He
pleaded not guilty to the charge.

The
deceased's death was due to a fatal injury by a sharp abject
penetrating through the left superior thoracic inlet straight into

the superior lobe of the left lung.

P.W.1
'Maekha Kanyoti is the wife of the deceased. The accused is the
younger brother of the deceased. She testified that in 1990
the
accused and the deceased had a dispute concerning the ownership of a
tree plantation. The deceased won the case in the courts
of law.
However, ever since that case the

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relations
between the two families have not been good. On the day in question
she saw that the children of the accused were chasing
a domestic
fowl. She identified the fowl as hers and told the children that the
fowl was hers.

The
accused, who was at his home which is not far from P.W.1's home,
answered and said the fowl was his and instructed the children
to
continue to chase it till they caught it. P.W.1says that she told the
accused that to prove that the fowl was hers; when it
got tired it
would run into her house or into the culvert of her kraal according
to how she had taught all her fowls. The fowl
did run into the
culvert of her kraal. The accused came and caught it.

The
deceased joined his wife and told the accused that the fowl was his.
P.W.1says that at this juncture the accused invited them
to come to
his home with him so that he could show them the mate of that fowl.
The wife of the accused also shouted from her home
and said they
should come and see the mate of that fowl. When they came to the home
of the accused, she asked him where the mate
of the fowl was. The
accused said that it was there and fastened because it was going to
be slaughtered. All of a sudden the accused
produced a knife.
P.W.1says that at that time the accused was about four paces infront
of her. The deceased was behind her. She
turned and warned the
deceased that

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the
accused had produced a knife.

They both
turned and walked back to their home. The accused rushed at the
deceased and stabbed him just below the left shoulder.
The deceased
turned and held the blade of the knife. During the struggle over the
knife, the son of the deceased came and joined
his father in the
struggle to try to dispossess the accused of the knife. He was not
successful until he pushed the accused into
the kraal. During the
struggle the deceased got weak because of the stabwound and collapsed
on the kraal.

Thereafter
the accused rose from where he had fallen and rushed at the son of
the deceased still holding the knife. The latter picked
up a stone
and hit him on the forehead with it. The accused fell into the kraal
and fainted. P.W.1says that she cried and took
a bucket full of water
and poured it on the deceased and the accused. The accused regained
his senses, rose and left for his house.
The deceased was unable to
stand. They carried him to his house where he died immediately after
he had arrived there.

In
cross-examination P.W.1said that the son of the deceased (P.W.2
Velaphi Kanyoti) was at his home when he heard them talking about
the
fowl and then proceeding to the home of the accused. He was not with
them when they arrived at the accused's

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home. She
denied that they went to the home of the accused for the purpose of
taking the fowl from the accused by force. She admits
that the names
of the children who were chasing the fowl were Mampolokeag and
Nongoliso.

P.W.2
Velaphi Kanyoti testified that on the 5th August, 1990 at about 5.00
p.m. he was sleeping in his house when he was awakened
by a noise
outside. He heard accused's wife saying the fowl was hers. He came
out of the house and stood at the forecourt. He saw
the accused and
the deceased standing near the forecourt of the latter. Accused was
saying that they should go to his place so
that he could show them
the mate of that fowl as proof that it was his. They proceeded to the
home of the accused. P.W.2 says that
he got into his house and took a
blanket and followed them.

When he
got into the accused's site they had reached the accused's forecourt.
The deceased asked the accused as to where the fowl's
mate was. At
that time P.W.1warned the deceased that the accused had a knife. She
said they should go home. P.W.2 says that as
he approached, the
accused rushed at his father (deceased) and stabbed him with a knife.
The deceased turned and held the knife.
P.W.2 also came and held the
knife. During the struggle he pushed the accused over the wall into
the kraal. He fell into the kraal
but rose and advanced towards him.
P.W.2

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picked up
a stone and hit him on the head. He fell into the kraal again and
apparently fainted. P.W.1 brought a bucket full of water
and poured
the accused and the deceased with it. The

accused
rose and got into his house. The deceased was carried to his house
but died immediately after his arrival there.

The
version of the accused and his wife is in direct conflict with the
version of P.W.1and P.W.2. The accused testified that it
is true that
he and the deceased had a dispute over a tree plantation. He took the
case to the courts of law and lost. He denies
that as a result of
that dispute he was not on cordial relations with the deceased.

On the
day in question he was sitting near his kraal and busy making
yokeskeis and using a knife. On that same day he had sold a
fowl (a
cock) to one Sindephi. When Mampolokeng, Sindephi'a daughter came to
fetch the fowl she found him near the kraal where
he was etill making
yokeskeis. He instructed Mampolokeng and his daughter to catch the
fowl. They chased it. While they were chasing
it P.W.1 came out of
her house and said that the fowl was hers and asked them why they
were chasing it. They caught the fowl and
brought it to him at the
kraal. The toe of that fowl was not cut like P.W.1's fowl's whose
toes are cut.

P.W.1
went into her house and came out accompanied by the

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deceased
and P.M.2. They came to him. When they came to him they did not say
anything. The deceased just hit him with a stone on
the head and
blood (lowed down into hie eyes. He held the deceased around the
waist still holding the knife in his hand. He says
that he does not
know how he stabbed him because he was not fully conscious. He does
not even know how he held the knife after
he was hit with a stone.

D.W.2
'Mampolokeng Mokoteli testified that cm the day in question he was
sent by his father to go to accused's place to fetch a
fowl he had
bought from the accused, She found the accused near his kraal making
yokeskeis. The fowl was at the accused's place.
She and accused'
daughter, Nongoliao were instructed to catch it. They chased it until
it went to P.W.1's place where Nongoliso
caught it. P.W.1 said that
the fowl was hers. Nongoliso said that it belonged to her family.
P,W.l examined the fowl and said that
it belonged to her. D.W.2 says
that she did not know what P.W.1observed to confirm her claim that
the fowl was hers. They took
the fowl to the accused who was still at
his kraal. She denies that the accused left his kraal and went to
P.W.1's premises while
they were chasing the fowl.

After
they had given it to the accused, P.W.1and the deceased left their
home and came to the accused at his kraal.

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Without
uttering a single word, the deceased just hit the accused with a
stone on the head. Blood flowed down his face. They i.e.
the accused
and deceased grappled with each other. D.W.2 said that she ran away
towards her home. As she ran away she saw P.W.2
going to the scene of
the fighting. She ran until she came to her father and reported to
him whet was happening.

The
criminal standard of proof has been stated in a number of cases.

In R. v.
Difford, 1937 A.D. 370 at p. 373 Greenberg, J, said:

".... no onus rests on the accused to convince the court of the
truth of any explanation which he gives. If he gives an explanation,

even if that explanation is improbable, the court is not entitled to
convict unless it is satisfied, not only that the explanation
is
improbable, but that beyond any reasonable doubt it is false. If
there is any reasonable possibility of his explanation being
true,
then he is entitled to his acquittal."

In R. v.
M 1946 A.D. 1026 at p. 1027 Davis, A.J.A. said:

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"...... the court does not have to believe the defence story,
still lees does it have to believe it in all its details; it
is
sufficient if it thinks that there is a reasonable possibility that
it may be substantially true."

In Miller
v. Minister of Pensions (1947)2 All E.R. 372 at p. 373 Lord Denning,
J. said:

"It need not reach certainty, but it must carry a high degree of
probability. Proof beyond a reasonable doubt does not mean
proof
beyond a shadow of doubt. The law would fail to protect the community
if it admitted fanciful possibilities to deflect the
course of
justice. If the evidence is so strong against a man as to leave only
a remote possibility in his favour, which can be
dismissed with the
sentence of course it's possible but not in the least probable,' the
case is proved beyond reasonable doubt,
but nothing short of that
will suffice."

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In the
instant case the accused has given an explanation which is reasonably
possibly true. His version is corroborated by 'Mamolokeng
Mokoteli
who is an independent witness. I say she is an independent witness
because she is not related to the accused in any way,
I observed her
when she gave evidence before me and I formed the impression that she
was honest and reliable. She was not shaken
at all in
cross-examination. She corroborated the accused on the crucial points
in the case being that the accused never left his
kraal and went to
P.W.1's home; that it was the deceased who hit the accused with a
stone on the head; that at that time the deceased's
son had not
arrived at the kraal of the accused; that immediately after the
accused was hit with a stone by the deceased the two
men grappled
with each other.

The
effect of the evidence of the accused and 'Mampolokeng is that the
deceased and his wife invaded the accused at his home on
the ground
that he (accused) was taking their fowl. I have carefully considered
the story of P.W.1and P.W.2 as to the reason why
they went to the
home of the accused. They allege that the accused invited them to
come so that they could compare the fowl with
its mate. I do not know
what that really means because the fowls of both families meet during
the day as well as at night where
they sleep on the trees. Cocks mate
with the hens indiscriminately so that it is possible that one may
find fowls identical to
each other but belonging to a different

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family.

In any
case P.W.1 says that she showed the accused that the toe of that fowl
was cut. At that time the accused was at her place
holding the fowl.
It seems to me that the cut toe was conclusive proof that the fowl
was here because that was her mark. Accused's
fowls' toes were not
cut. Now why did the deceased and P.W.1go to accused's place. They
were convinced that the fowl belonged to
them and there was no reason
why they could agree to go and see the mate of the fowl. Their story
is improbable and unconvincing.

If their
story is true that it was the accused who caught the fowl at P.W.1's
kraal, it must have been clear to them that the accused
intended to
cause serious trouble. Fowls are usually chased and caught by
children and not by their parents. Why did the deceased
and his
family go to the home of the accused when he made it clear that he
was in a fighting mood? I tend to agree with the suggestion
that they
went there to take the fowl by force. And according to the evidence
of 'Mampolokeng the deceased actually used force
when he came there.

The
situation of the wound also seems to suggest that the deceased was
facing the accused when he was stabbed. If he was walking
away from
the accused and the accused is not left handed

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the wound
would have been on the right side of the body of the deceased.
However, if the accused grappled with the deceased while
he was still
holding the knife with his right hand it was possible to stab him on
the left side of the body. Be that as it may
the finding of the Court
is that the story of the accused may reasonably possibly be true.

I come to
the conclusion that the Crown has failed to prove its case beyond a
reasonable doubt.

The
accused is found not guilty and he is discharged.

J.L.
KHEOLA

JUDGE

8th
September, 1993.

For
Crown: Mr. Semoko

For
Defence: Mr. Lebusa.