CRI\T\39\92

IN THE
HIGH COURT OF LESOTHO

In the
matter of:

REX

v

MOBLOMI
MOLAHLI

JUDGMENT

Delivered
by the Hon. Mr. Justice M,L. Lehohla on the 24th day of October, 1994

In this
case the accused is charged with a crime of Murder in that on about
the 31st day of December, 1990 and or near Ha Tsautse
in the district
of Maseru the said accused acting unlawfully and with intent to kill,
did assault Pheko Mojaki and inflict certain
stab wounds upon him
from which the said Pheko Mojaki died at Queen Elizabeth II Hospital,
Maseru on the 3rd day of January, 1991.

In an
endeavour to shorten the proceedings the defence admitted the
evidence of the following witnesses; and I may even at this
stage
indicate that the crown accepted the admissions so tendered - the
evidence admitted first was that of PW1 at Preparatory
Examination
Thulo Mojaki, PW2 Motsamai Joseph Rathulo, PW7 Morakane Mojaki PW8
Det. Trooper Khanyapa, PW9 Trooper Lehata, PW10
Ex-Warrant Officer
Molahli.

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The oral
evidence that was led before Court was that of PW3 Teboho Mokolokolo,
PW6 Zola Maseela and PW11 Retselisitsoe Makhele.

PW1 is
the father of the deceased PW3 was the deceased's girl-friend while
PW4 was the deceased's elder sister.

The
accused and the deceased are purported to have been, at least in
terms of what the accused said, friends. PW6 happened to have
been a
friend of both the accused and the deceased according to evidence led
by PW6. PW11 lived in mortal fear of the accused and
PW6.

It
happens that on the day or just the day preceding the event a big
party was going on at PW1's place. What was being celebrated
was the
coming of New Year's day which was to come in a matter of hours.

Earlier
that day the deceased had been moving in the company of his friends
PW5 and PW11. The particular place that he was seen
around was near
the garage at Lekhaloaneng where he went past to go and buy beer or
replenish supplies for the party that was to
take place later in the
evening. It is interesting that on one such occasion when the
deceased went past the garage going to this
place where he was to buy
bottles of beer he met with the accused. The deceased was in the
company of PW5 and PW11. But on account

3

of the
deceased's fear of what the accused had either said or done - it was
suggested and accepted that they should take, on their
way back, a
round about way.

It is
PW11's evidence that he himself actually had walked ahead of the
deceased and PW5 when they came to this garage. He said he
heard,
when later joined by the deceased, that the accused had tried to stab
him with a knife. Strangely, PW5 makes no such statement
yet he is
the one who was supposed to be in company of the deceased when this
took place.

One other
thing that this witness PW11 said before the Magistrate's Court was
that while at the garage he stopped and looked back;
and he went
further to say "I saw accused chasing the deceased with the
knife raised up". But when this was brought to
his attention
that in this Court - in other words at this instant trial - he seems
to make no mention of such thing he said he
never said it to the
Magistrate at all at the P.E. of this trial. When it was suggested to
him that perhaps he had said it in view
of the fact that at the time
he was giving evidence before the Magistrate's Court events were
fresher in his mind than they are
today his illogical answer was
that, or implied that, he remembers things a lot more clearly today
than he would at the time he
was giving evidence before the
Magistrate's Court.

Well, it
has been urged on the Court by the defence that

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Retselisitsoe's
evidence should be rejected and I accept that submission.

On the
day of events it appears that during the dancing that was going on at
PW1's place an occasion arose when PW3 wanted to go
to the toilet. No
sooner had she left the dancing crowd than was she followed by the
deceased. What actually happened when the
two were together was
related by PW3. The upshot of it is that the boy-friend was
assaulting the girl friend. While this was going
on the accused and
PW6 pitched on the scene. PW6 was quick to intervene on PW3's
account, while the accused probably relishing
the event was standing
there saying either that PW6 should let the deceased assault PW3, or
discrediting the girl-friend by suggesting
to PW6 not to interfere as
the deceased was going to have sex with PW3. What is consistent with
this sort of attitude by the accused
is the fact that when PW4
apparently under orders to the deceased to call him to their parental
home, the accused was seen picking
up stones and throwing them at
PW4. It was thanks to the deceased who stopped in front of the
accused that PW4 was able to betake
herself from the scene after
dodging the stones. It was just about this moment when the deceased
was standing face to face with
the accused that PW6 and PW5 heard the
deceased say "look, you have stabbed me with a knife" - I
should mention that
immediately after PW6 had intervened on account
of PW3, PW4 was able to lead her away to PW1's home - so at the time
that stones
were thrown at PW4 it was on her return back to the scene
from home.

5

It is her
evidence that she heard the accused say "you know I can stab
you" (saying this to the deceased). She also said
she heard the
deceased say "I know you can" - no sooner had she heard
this than did she hear the deceased say "look
you have stabbed
me with a knife" as he said so the deceased grabbed hold of the
left side of his rib-cage around the armpit
area and sped home.

Further
evidence shows that attempts were made to stop the bleeding from the
injury. First by application of a doek and taking the
deceased to
Doctor Mokete's home and eventually to hospital where the injury was
treated. The deceased had arrived there in the
early morning of 1st
January, 1991 but he died two days later on 3rd of January, 1991.

The
doctor who performed the postmortem examination shows that as to
external injuries; there were two stab wounds i.e. one 1 cm

laceration between the second and the third ribs; and the other an 8
cm laceration between the sixth and seventh ribs. This injury
has
been recorded to have been 8 cm deep. Looking at the length of the
blade exhibit "1" that was being used, it looks
like the
entire blade is about the same length of 8 cm - so it cannot be
altogether discarded as far-fetthed what was suggested
by the crown
that "what stopped the knife from further penetrating could have
been the accused's hand". This may even
enjoy support of the
accused's own story that he believed he had stabbed the deceased

6

when he
saw blood on his own hand.

The
accused of course denies that he threw any stones at PW4 or rather a
very strange thing he says is that PW4 is not telling the
truth when
she says the accused was throwing stones at her. But he accepts PW5
and PW6 version to the same effect, relating to
the same event which
occurred around the same time and place.

So to
that effect one sees in the accused a young man with a confused mind.
Apparently the confusion he had at the time that he
inflicted these
injuries due to drunkenness has not abated. To this moment one asks
oneself what could be the source of his present
confusion. Be that it
as it may - I need hardly refer to the number of instances where the
accused gave evidence which amounts
really to nothing.

I have
considered seriously the question of whether in fact the crown has
proved beyond reasonable doubt that what the accused has
committed is
Murder and Murder alone and nothing else.

In its
submission the crown brought to the attention of the Court or rather
submitted before Court that the nature of the wounds
inflicted would
then tend to support that Murder has been committed. Apart from the
nature of the injury the locality of such injury
- it being on the
upper vital part of the body. The next consideration was the nature
of the weapon - a knife a lethal

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weapon
sharp as it appears to be.

I have no
doubt that in a proper case factors such as those would suffice, to
establish or for oneto gather from them, an intent
to kill.

The
accused seemed to have a problem concerning the one centimeter wound
that is between the second and the third ribs. Evidence
has shown
that the injuries that the deceased sustained were then the only
injuries that he sustained from where they were inflicted
until he
came to the hospital where he was treated. In other words such
evidence was to the effect that the deceased suffered no
further
injuries between the place where the injuries were inflicted to the
place where he was treated. Accordingly, the accused
when asked to
account then for this one centimeter injury he was unable to say how
this other one was caused - well in the light
of evidence that one
has heard and in the light of the fact that the accused himself says
he was drunk one would find it hard to
side with the accused that the
other injury could have occurred out of the blue - occurred without
any cause at least attributable
to him.

The
accused did indirectly suggest that perhaps it could have been caused
by the doctor because there was occasion when water and
blood were
pumped out of the deceased's body. But this view by the accused
plausible as it might have been defies the fact that

8

clinical
or surgical wounds are different from injuries crudely caused. The
doctor who performed the postmortem had his attention
fixed on the
business of finding the cause of death. Therefore it cannot be
suggested that a surgical wound would fall among what
are classified
as the crude injury liable for the cause of death; generally
speaking. Furthermore the accused was at large both
in the
Subordinate Court and this Court to have required that the doctor be
called to account for this postmortem if he was not
satisfied with
the way it stood. But instead he admitted the evidence tendered by
that doctor. This was not the only occasion when
the accused in the
conduct of his own defence would let pass in silence evidence which
is in conflict with the version that he
says he know to be correct.
Thus he would let that witness go unchallenged and only when the
accused is in the witness box would
he suggest that such evidence
should be rejected as untrue and his own version be preferred.

In short
one such instance was when the accused after letting the evidence of
PW4 and PW5 including that of PW6 pass in silence
he said the
deceased came to whisper to him that he didn't want PW4 to see him as
he didn't want to oblige her by going home -
such a point should have
been raised when PW4 was still in the witness's box in order to
afford the Court an opportunity to see
how PW4 would have reacted and
hear if she agrees with what the accused says or denies it in order
to avoid a charge that the accused's
story is a mere afterthought or
instantly contrived fabrication.

9

I have
earlier alluded to the fact that in order to prove that murder exists
there has to be proof of intent. But it is not unusual
that such an
intent is negatived by a number of factors; and drunkenness is not
excluded from such. It has a practical application
in obliterating
the so called positive intent. But in such instances the accused's
defence should be drunkenness. Where drunkenness
is pleaded
successfully he must show that he was so drunk that he didn't know
what he was doing and such drunkenness or its effect
on the mind is
no different from what induces or leads to insanity. If it is proved
that the accused did not induce this obliteration
of clear thinking
of the mind personally or voluntarily and if he is charged with
Murder he will have pleaded drunkenness successfully
because the
Court will make a finding that the state of his mind was that of an
insane person whose insanity was induced involuntarily.
In such
circumstances the accused person is to be acquitted and discharged.

But on
the other hand if the same state of insanity is reached but it
appears that the drunkenness which led to it was voluntary
then if
the accused person is found liable for the death of the deceased he
will be, in terms of our law, kept in custody at a
place where he
will remain pending the signification of the Head of State. But I
find that this particular case with which I am
seized falls in
neither of these two categories. It is a border­line case between
what one would call Murder with intent and

10

voluntary
insanity induced by drunkenness.

While
drink is a factor here there is this vital aspect that it doesn't
appear that the accused in fact had intended subjectively
or
otherwise to kill the deceased. There is no history of a quarrel
between the accused and the deceased. All that appears is that

whenever he is drunk the accused, according to his father,
constitutes himself a nuisance. This being the case then I am
prepared
to give this accused, insofar as the question of Murder is
concerned, benefit of doubt and acquit him of the capital charge. He

is however found guilty of Culpable Homicide.

MITIGATION

I have
just been told by your counsel that you are married and that your
wife is expectant. I have taken into account that this
is a first
offence that you have ever been convicted of. Even if it is the first
one I will tell you that it is a very serious
one because you have
deprived the deceased's own family of his life for no apparent
reason. But to your credit I will take into
account the fact that you
did plead guilty to Culpable Homicide from the word go. That
generally speaking does not indicate remorselessness
on the part of a
man who has caused such grief to the relatives and community. But the
Court and particularly this Court constantly
disproves use of the
knife. Unfortunately here is the knife having been used with
disastrous consequences once more. This necessitates
that the Court
should take more serious steps in

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trying to
curb this menace. It is necessary to give a remedy that will be seen
to be observed.

There is
no denying that you probably are going to face the prospects of
raising the deceased's head in accordance with the Basotho
Law and
Custom.

Well, the
Court has a duty to protect society and prevent reckless use of
knives. While I cannot stop sales of beer on the one hand,
I cannot
be seen to promote wanton taking away of innocent life through
drunkenness on the other.

You are
sentenced to pay a fine of M8,000-00 or serve eight years'
imprisonment of which half is suspended for two years on condition

that you be not convicted of a crime involving violence to a person
committed during the period of the suspension.

JUDGE

24th
October, 1994

For
Crown: Mr. Mofelehetsi

For
Defence : Mr. Mashinini