CRI/A/16/81 IN THE HIGH COURT OF LESOTHO. In the appeal of : MPHONYANE LEHOQO Appellant v REX Respondent JUDGMENT Delivered by the Hone. Mr, Justice I. Isaacs on the 6th day of May. 1981. The appellant in this matter appeals against a conviction of culpable homicide. He was charged with the unlawful killing of Frank Moiloa by shooting him on the, head. He was found guilty in the Magistrate's Court of Mafeteng and sentenced to imprisonment for three years of which one year was suspended for three years. The Crown witness Tsokolo Khabo (P.W.1) stated that he had taken some socks belonging to one Tefo. In cross-examination he admitted that he had stolen those socks. A week after the theft he was walking with the deceased when they met some men who asked for their names. It was dusk at the time and they both threw stones at the men. On the following day he was sleeping with the deceased on a hillock when he was awakened by the appellant and one Thahanyane, who asked the witness and deceased to go with them. He and deceased ran away. As they ran a shot was fired by the accused and the deceased fell. The following day he found the deceased dead. in cross-examination he denied that he and deceased threw stones at the appellant. He denied that the appellant /2.
-2- and his companion were trying to arrest him because he and the deceased had thrown stones at the chief and appellant and others the previous night. He denied that he and deceased were resisting arrest and throwing stones at the appellant. P.W.2 was Thahanyans. He said that he and the appellant were members of the P.V.R. He said that on the 7th August, 1979 he went with the appellant and Phakiso to Mathebe to fetch P.W.1 who had been alleged to have stolen socks. He was carrying a stick while appellant was carrying a rifle. They did not find P.W.1 at Msthebe that day. They went to Maholokoane to chief Mafa Setlokoane who detailed his messenger Tsietsi to accompany them. On the way when it was dark they saw two men above them. A stone was thrown at them. Witness with his torch identified the men as the deceased end P.W.1, who both threw stones at them. One of the stones hit the appellant above his right eye. P.W.1 and the deceased ran away The next day he was with the appellant when they saw two men lying on a hill who he identified as P.W.1 and the deceased. They were sleeping. The witness shouted at them and asked them to come to him. They got up ana the appellant said "come so that we can arrest you and take you to the chief's place as you are wanted." The deceased and P.W.1 then picked up stones and threw them at appellant and the witness. They dodged the stones and the appellant fired a shot on the eastern side of the two men. P.W.1 and the deceased ran away and disappeared behind a big rock. They were both carrying sticks. He then left the appellant and went on top of a hill to see if the two men would appear on the western side of the rock. He heard a shot and saw the deceased lying down near a donga. P.W.1 ran away from where deceased was lying. The appellant fired three shots. Ho went down to appellant who /3.
-3- was already down to where deceased was lying. Afterwards they went to the chief's place. He saw two wounds on deceased's head. In cross-examination he admitted the appellant had been hit above the left eye with a stone the previous night. He would not deny that when he was on the hill the appellant had followed P.W.1 and the deceased as they disappeared behind the rock. He could not deny that deceased threw a stone at appellant which hit him in the stomach. He said he would not be table to see what was happening. According to the Medical evidence the deceased was shot from the front. The appellant gave evidence to the effect that after a report he had, on the 7th August, 1979 gone with P.W.2 and others to look for P.W.1 to arrest him on a charge of theft. When it was dusk they saw two men who threw stones at appellant ana his party. Appellant was hit by a stone and fell down and lost consciousness. When he recovered the two men were no longer there. He was brought to Mafeteng and on the same day he was examined by a doctor. (A Medical Report was handed in by consent). Ho agreed with the evidence of P W.2 that they both were together on the day they saw P.W.1 and the deceased on a hill. He said he introduced himself and said he had powers to arrest them. P.W.1 and the deceased stood up and threw stones at them. He said he fired a shot in the sky. The deceased and P W. 1 continued to throw stones and he fired a shot on their side but on the ground, P.W.1 and the deceased then ran away. He chased them in order to arrest them. The deceased somehow returned and hit the appellant with a stone in the stomach. He felt pains and closed his eyes. When he opened his eyes he saw deceased with a stone in his hand about to hit him with it. /4.
-4- He said he loaded his rifle by moving one bullet from the magagine into the chamber. The deceased moved his head slightly and when he raised his arm about to throw a stone the appellant fired a shot trying to shoot the ground near his feet but the bullet struck the deceased down. Afterwards he went to the chieftainess to report the matter. He said he thought the deceased would kill him with the stone he held in his hand. In cross-examination it was put to him that he was not in danger. He said that he was in danger. In his judgment the magistrate said, inter alia, "It is improbable that after the accused had fired two warning shots the deceased could possibly have returned to the accused to hit him with stones My findings are that as the deceased and P.W.1 were running away and the accused and P.W,2 were chasing them, the deceased must have looked back and it must therefore be then the bullet from the accused's gun struck him on the right side of his forehead, penetrated has head and came out at the back of the head. This finding is consisting with the doctor's evidence. Owing to the above reasons I cannot accept the evidence of the accused when he told the Court that he was acting in self- defence when he fired the fatal shot " Mr. Mda counsel for the appellant contended that as the Crown has the onus to negative the accused's defence of self-defence, the evidence does not prove that the Crown has proved this beyond reasonable doubt. He has in his heads of argument contended that the magistrate in his judgment has ruled out all other reasonable inference to the drawn from the evidence. He has referred to the case of R. v. Blom /5.
-5- 1939 A.D. 188 and R. v. Magatuse 1941 A.D. 201. He has further contended that it was sufficient if the version of the accused could reasonably be true. (R. v. Du Plessis 1924 T. 103) Mr, Khauoe, counsel for the Crown, in his heads of argument and in this Court contended that the magistrate has rejected the story of the accused which was improbable. He said that the law was, though courts should not have to believe the accused story but should accept it if it is reasonably possibly true, the law would fail to protect the community if it admits fanciful possibilities which are aimed to deflect the course of justice. He referred to the case of Miller v. Min. of Pensions (1947) 2 A.E.R. 372. He contended that in the present case the evidence was so strong against the accused as to leave only a remote possibility in his favour. He referred to several cases where the law regarding self-defence has been considered. He correctly said that the test was an objective one. (R. v. Stephen 1926 W.L.D. 170. R. v. Altewood 1946 A.D. 331). He contended that on the evidence it could not be said that the accused had a reasonable relief that he would suffer grievious bodily harm before he fired the fatal shots. In my view both counsel have correctly set out the law. The Crown must prove beyond reasonable doubt that the killing of the deceased was illegal and where self-defence is raised the Crown must negitive this beyond a reasonable doubt, the Crown does not discharge this onus if the version of the accused though improbable might be reasonably possibly true. In the present case it seems to me that the accused's story though improbable cannot be said not to be reasonably possible. I think that counsel for the appellant was correct /6.
-6- in his contention that the magistrate did not consider there were other reasonable inferences to be drawn from the evidence other than the one he set out in his judgment referred to above. I do not think that the accused's version is so fanciful as to be rejected as not being reasonably possible. It is not beyond the realms of reasonable possibility that he might have had a stone thrown at his stomach by the deceased and that he was threatened by the deceased with another stone. It was contended by counsel for the Crown that he exceeded the bounds of self-defence by shooting even if he was threatened in the manner he alleged. But in considering whether a person acted reasonably in self-defence one must try to imagine oneself into the position in which the accused was (c.p. R. v. K. 1953 (3) SA. 35 3(A.D.) at pages 358/359 It must be remembered that shortly before the incident the appellant had been seriously injured by a stone thrown at him whether or not such had been thrown by the deceased and it is reasonably possible that (as he said in his evidence) he became scared when threatened by another stone. Having considered the whole of the evidence I am of the view that the version told by the appellant might reasonably be possible and that the Crown had not proved beyond a reasonable doubt that the killing of the deceased was illegal. Accordingly the appeal is upheld and the conviction and sentence set aside The appellant is entitled to return of his deposit. I wish to place on record that I much appreciate the assistance of both counsel who appeared in this appeal. ACTING JUDGE. 6th day of May, 1981. For Appellant -Mr. A.P.S. Mda For Respondent -Mr. K.T. Khauoe
