CRI/T/23/63

IN THE
HIGH COURT OF LESOTHO

In the
matter of :

R E X

v

SELLO
RANKHOLO

JUDGMENT

Delivered by the Hon. Mr. Justice B.K. Molai on the 22nd day of
February, 1984.

The
accused pleaded not guilty to a charge of murder on the following
allegations :

"In that upon or about the 8th February, 1983 and at or near
Qoaling in the district of Maseru the said accused did unlawfully
and
intentionally kill one Ts'eliso Lesenyeho."

At the
commencement of the trial, Mr. Peete, counsel for the crown, accepted
the admissions, tendered on behalf of the accused by
Mr. Molapo,
counsel for the defence, of the depositions made by Dr.Moji, Thabo
Nkolanyane and Tpr. Makhakhe who were respectively
P.V.1,4 and 5 at
the Preparatory Examination proceedings. As their depositions were,
in terms of the provisions of section 273
of the Criminal Procedure
and Evidence Act, 1981 admitted in evidence, it became unnecessary,
therefore, to call as witnesses Dr.
Moji, Thabo Nkolanyane and Tpr,
Makhakhe. The crown then called three (3) witnesses to testify in
support of its case after which
the defence,as it was perfectly
entitled to do, closed its case without adducing any evidence.

The court
had, therefore, only the crown evidence to consider for determining
whether the commission of the offence by the accused
had been
established beyond a

2

reasonable
doubt.

Briefly,
the evidence of P.W.1, Tpr. Nthonyane, was that at about 4.30 p.m. on
8th February, 1983, he was visiting his grandmother
at a place called
Qoaling in the district of Maseru. He was in the company of P.W.2
Tpr. Liau,

When the
two police officers came to the home of P.W.I's grandmother, they
noticed a white ford car outside the yard. It had neither

registration numbers nor temporary permit papers. Its bonnet was open
and a person appeared to be fiddling with something in its
engine.
They went to the car and found that the accused was the person
fiddling with something in its engine. P.W.2 also noticed
that the
car had no insurance and clearance discs.

They
greeted and introduced themselves to the accused as police officers.
He reluctantly responded to the greetings, closed the
bonnet and got
into the car from which he came out carrying a ladies' handbag. Asked
whoso car that was, the accused replied that
it belonged to two men
with whom he was going.They had left him with the car and would come
for it at about 10.00 p.m.

As it
displayed no registration number plates, no temporary permit papers,
no insurance and clearance discs and the accused claimed
that it
belonged to people who would only come for it at 10.00 p.m., the
police officers became suspicious that the car had been
stolen. In
the circumstances, the police's suspicion that the car had been
stolen was reasonable.

According
to P.W.2, they then informed the accused that they were arresting him
for the theft of that car. As officers empowered
by law to execute
criminal warrant, the police were, in terms of section 24(b) of the
Criminal-Procedure and Evidence Act, supra,
entitled to arrest the
accused. The section reads, in part:

"24. Every peace officer and every other officer empowered by
law to execute criminal warrants may arrest without warrant
–

3

(a) .....................

(b) every person whom he has reasonable grounds to suspect of having
committed any of the offences mentioned in Part II of the
First
Schedule; ....."

Theft is
one of the offences mentioned in Part II of the First Schedule. When
the police officers informed him that he was being
arrested, the
accused explained that he could take them to a place called
Borokhoaneng where he would show then the owners of the
car. As he
said so, the accused was moving backwards before he suddenly turned
round and took to his heels. The two police officers
chased him.

After
running for some distance, the accused turned round, produced a
revolver with which he fired two shots at the police officers.
He,
however, missed them and the chase continued. The police officers
raised an alarm to which many people in the village responded
by
joining in the chase. One of those villagers was the deceased,
Ts!eliso Losenyeho. He was running ahead of the two police officers.

As they ran after him, accused's pursuers were throwing stones at
him.In the course of the chase, accused again turned round and
for
the second time fired a shot in the direction of the police officers.
He again missed and the chase continued. After he had
run for some
distance, the accused again turned round and for the third time fired
two shots. The deceased was hit by one of the
bullets.

According
to the evidence, at the time he fired the shot that hit the deceased
a hail of stones was being thrown at the accused
and many of the
stones were actually hitting him. He could not have the opportunity
to aim at any perron in particular he just
fired aimlessly. After the
deceased was hit, the accused managed to escape and continued running
away.

P.W.3,
Mojaki Thebe, testified that on the day in question, he was in the
village when he heard the alarm and the report of a firearm.
He then
noticed that many people were running after the accused. Among the
people who were chasing the accused, P.W.3 recognised
P.W.1 whom

4

he knew
to be a'police officer. He noticed the deceased whom he also knew
very well fallen behind a toilet belonging to a certain
woman by the
name of Mary P.W.3 got the impression that the accused had committed
an offence of some kind and the reason for his
chase was to assist
the police officer, P.W.1, to arrest him. He immediately ran to
intercept the accused.

When he
appeared where the accused was, P.W.3 noticed that he was aiming a
firearm at the people who were following him.He fired
a shot at them
and tried to run away. When he noticed P.W.3, accused fired at him
but missed. P.W.3 was holding a knife with which
he threatened the
accused. Accused fired another shot at P.W.3 but missed. when the
accused tried to fire a third shot, P.W.3 heard
only a click after
which the accused dropped the firearm to the ground. P.W.3 picked it
up and at the same time caught hold of
the accused. He told him that
they should go back so that he might see his victim (the deceased).
The accused who by that time
had already sustain a bleeding head
injury complied.

When they
came to the deceased, P.W.3 found him lying on his back. Ho had
sustained a bleeding wound on ;he right side of the collar
bone and
was clearly dead, P.W.3 was, on this point, confirmed by P.W.2.

With the
help of one Sempe, the deceased and the accused were carried in a
vehicle to the hospital and the police charge office,
respectively.
The body of the deceased sustained no additional injuries whilst it
was being conveyed to the hospital.

The
evidence of P.W.1 was slightly different in that when they returned
with the accused to the deceased, the latter was still alive.It
was
only when they arrived at the hospital that he noticed that the
deceased was already dead.

Whether
the deceased died at the scene of crime or was dead on arrival at the
hospital is immaterial. What is important is that
after he had been
shot by a bullet, fired by the accused, the deceased died before any
treatment could be given to him. There could
be no suggestion,
therefore of novus actus interveniens perceptating his death.

5

The
evidence of Dr. Moji was that on 11th February, 1983, he performed a
post mortem examination on the deceased's body which was
identified
before him by Thabo Nkolanyane. He found that the body had a gun
wound on the right clavical region. The bullet had
obliquely entered
the body of the deceased thus injuring his left lung, the diaphram
and the stomach before it finally settled
between the 10th and the
11th rios. He removed the bullet which he handed to Tpr. Makhakhe. He
formed the opinion that death was
due to haemothorax as a result of
the gun wound.

There can
be no doubt, on the evidence, that the deceased died of the injury
inflicted on him by the accused. The only question
for determination
by the court is whether or not at the time he fired the fatal shot,
the accused had the requisite subjective
intention to kill - be it
direct or legal.

The
evidence adduced by the crown itself is that at the time he fired the
shot that fatally injured the deceased ,a hail of stones
thrown by
his pursuers was falling on the accused. He could not, therefore,
have the opportunity to aim the shot at any particular
person and he
just fired at random, presumably to scare away the people who were
trying to forcibly arrest him.

perhaps a
pertinent question here is whether the action of accused's pursuers
was lawful. I have already decided that in the circumstances
of this
case, the two police officers were, in terms of the provisions of
S.24 (b) of the Criminal Procedure and Evidence Act,
1981,empowered
to arrest The accused. On the evidence, the deceased and other
villagers joined in the chase against the accused
as a result of the
alarm raised by the two police officers who were actually seen
running after him.

They
believed, therefore, that the accused had committed an offence of
some sort and was escaping from a lawful arrest by the police

officers who ordinarily had the authority to arrest criminal
offenders.

Now,
section 27(2) of the Criminal Procedure and Evidence Act, supra.
provides:

"Every person may arrest without warrant

6

any other person whom he believes on reasonable grounds to have
committed an offence and to be escaping therefrom, and to be freshly

pursued by one whom the private person believes on reasonable grounds
to have authority to arrest the escaping person for that
offence,"

There can
be no doubt, therefore, that the deceased and other villagers were,
in the circumstances of the present case, empowered
by the above
cited section to come to the assistance of the police officers and
arrest the accused - even by force if need be.
It follows, therefore,
that in my opinion their action was likewise lawful. The question
whether or not the action of accused's
pursuers was lawful must,
therefore, be answered in the affirmative.

Granted
that the deceased and other pursuers were effecting a lawful arrest
of the accused, there can be no question of accused
acting in
self-defence for'that defence avails only a person who acts to repel
an unlawful attack on him. However if, on the evidence,
the accused
was, at the time he fired the fatal shot, not aiming at the deceased,
or any person in particular for that matter,
it would seem to me
illogical to infer that he had the intention to kill. It follows,
therefore; that, in my view, the question
whether the accused had the
requisite subjective intention to kill must be answered in the
negative.

It does
not, however, necessarily follow that the accused must now go scot
free. Even if it were accepted that at the time he fired
the fatal
shot, the accused did not aim at the deceased or any other person in
particular there can be no doubt, on the evidence,
that he was fully
aware of the presence of a large number of people around/. He
nevertheless used a firearm aimlessly and for no
lawfully
justifiable' reason. That he could not be allowed to do. He had a
duty of care not to injure the people who were around
him carrying
out a lawful duty. His failure to do so constituted, in my view,
neglegence which has resulted in the unfortunate
death of the
deceased.

I take
the view that the accused is guilty of culpable homicide and
accordingly convict him.

My
assessors agree.

7

SENTENCE

In
mitigation, Mr. Molapo, on behalf of the accused, invited the court
to take into consideration the fact that, following his conviction
of
assault with intent to do grievous bodily harm, the accused was
already serving a prison term. Whatever sentence the court might

impose on him should, therefore, run concurrently with the sentence
the accused was already serving in gaol. I certainly take that
into
account.

I am also
aware that the accused is about 3½ years old. He probably has
dependants to look after. In trying to punish the
accused, it is
unfortunately his innocent dependants who will suffer mostly.

Nonetheless,
I shall not turn a blind eye on the seriousness of the offence width
which the accused has been convicted. He has unlawfully
deprived
another human being of his life. In a number of decisions this court
has re­peatedly warned that the courts of law
take a rather dim
view of people who unlawfully deprive their fellow humans of the
right to live. The warning seems to be going
unheeded. It is about
time the courts of law demonstrate their determination to deal
effectively with those who like the accused
commit this horrible
crime.

The
incident of car stealing has, of late, become a real nuisance.
Consequently the law of the land empowers the police and all

responsible persons to arrest the perpetraders of this and other
related crimes. It was in the course of discharging his lawful
duty
as a responsible citizen that the deceased was unlawfully killed by
the accused. This, in my view, is an aggravating factor
calling for
appropriate punishment if only the accused and those of his mind were
to be deterred from a repetition of this kind
of behaviour,

8

In the
premises, I come to the conclusion that the circumstances of this
case warrant a sentence of seven (7) years imprisonment
and the
accused is accordingly sentenced.

The
sentence will, however, run concurrently with whatever term of
imprisonment the accused may presently be serving in gaol.

B.K.Moloi.

JUDGE

22nd
February, 1984.

For the
Crown : Mr. Peete,

For the
Defendant: Mr. Molapo.