CRI/T/67/89
IN THE HIGH COURT OF LESOTHO

In the Matter of:

REX

vs .

SANONO RALESHOAI & 2 OTHERS

JUDGMENT

Delivered by the Hon. Mr. Justice B.K. Molai on the
16th day of February. 1990.

The three accused appear before me on two counts namely
murder and robbery. On count I, the allegations contained in the main
body
of the charge sheet disclose that on or about the 14th day of
July, 1988 and at or near Ha Thamahane in the district of Leribe, the
said accused one or each or all of them did intentionally and
unlawfully kill Thabo Mokaeane.

On count II, the allegations contained in the charge
sheet are that on or about the 14th day of July, 1988 and at or near
Ha Mo thamahane
in the district of Leribe, the said accused, one or
each or all of them did unlawfully assault Lisebo 'Moleli and Thabo
Mokaeane
by using force and violence and at gun

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point stole from the said Lisebo 'Moleli and Thabo
Mokaeane a cash box containing money, amounting to M2,000.00, or
there about. The
exact amount is to the Crown Counsel unknown. The
property being that of Vincent Korotsoane in the lawful possession of
Lisebo 'Moleli.

When the charges were put to them, the accused replied
that they were not guilty and the plea of not guilty was accordingly
entered
on both counts.

At the commencement of this trial, Mr. Qhomane.
Counsel for the crown, accepted the admissions made by Mr.
Moorosi. counsel for the defence, that the defence would not
dispute the depositions of all the witnesses who testified at the
proceedings
of the Preparatory Examination.

In terms of the provisions of Section (273) of the
Criminal Procedure and Evidence Act of 1981. the depositions
of all the witnesses who had testified at the Preparatory Examination
proceedings were, therefore, accepted as evidence
and it was
unnecessary to call the deponents as witnesses in this trail.

Mr. Moorosi called the three accused into the
witness box to testify in their defence. Their evidence does not
differ materially with the evidence

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of the Crown witnesses, who had testified at the
proceedings of the Preparatory Examination.

Briefly stated, the evidence adduced before the court
is, in as far as it is material, that on the day in question, No.l
accused met
the other two accused at the bus-stop and requested them
to go with him to the village of Ha Mothamahaue, where they were to
take
money from a shop or cafe. Initially, the two accused were not
prepared to join him in that venture. He then told them that he had
been sent on an arrant to that village and they should accompany him.
They complied.

When they came to the village of Ha Mothamahane, No.l
accused then told the other two accused that he was in fact deceiving
them when
he said he had been sent on an errand. He was in fact
serious in his suggestion that they should go to that village to
break or commit
house breaking at a certain shop from which they were
to take money. To give them a dutch courage, he showed them a firearm
(a pistol)
which he said it would be used in the commission of the
robbery.

The plan was that he and accused No 3 would enter into
the shop whilst accused No.2 would remain outside the shop to make
sure that
there were no people coming to the shop or if any people
came to the shop, he

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would presumably alert them. Accused No.2 highly
approved of this plan and accordingly accused No.1 and accused No.3
entered into
the shop.

Inside the shop, accused No. 1 and 3 found a sales lady
and made sure that she was aware of the firearm. When she saw the
firearm,
accused No. 3 and accused No.l (who was covering his face
with a balaclava hat) the sales lady was apparently frightened for
she
immediately summoned the nightwatchman who was outside the shop.

According to the sales lady, Lisebo 'Moleli, when he
came into the shop, the nightwatchman went with her to the storeroom.
She told
the nightwatchman that the two accused were in possession of
a firearm. When the nightwatchman asked her what she was saying, the
two accused approached them and accused No.l fired a shot at the
nightwatchman.

The evidence of the accused was slightly different on
that point. According to them after accused 1 and 3 had entered into
the shop
the sales lady called for the nightwatchman, and when he
entered into the shop the nightwatchman assaulted Accused No.l. At
that
time accused No.3 fled out of the shop. Accused 1 was prevented
from going, out of the shop by the nightwatchman, who stood at the
door asking him

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who he was and what he wanted there. Because he could
not go out, accused No.l fired at and shot the nightwatchman so that
he could
go out.

I simply do not believe accused No.1's story, because,
if he really shot at the nightwatchman in order that he might get out
of the
shop, he would have gone out the moment he had shot that man.
However, in his own words, No.l accused told the court that having
shot the nightwatchman, he rushed for the money or the cash box,
which was on the counter instead of going out of the shop. It was
only after he had taken the cash box.that he ran out of the shop.
That in my view is not consistent with the story of account No.l
that
the purpose of shooting the nightwatchman was to enable himself to go
out of the shop. Be that as it may, Lisebo 'Moleli testified
that
when the nightwatchman was shot, she also ran out of the shop in
fear.

Coming back to the accused story, after he had ran out
with the cash box, accused No. 1 joined the other 2 accused and they
returned
home with their loot. On the way, they sat down and divided
or shared the loot.

I am quite sure the accused have told me a lot of lies
as to how much share each one of them got.

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According to Accused No.1, the total amount of money
found in the cash box was M2,000-00. They divided it equally among
themselves.
He told the court that each of them got an amount of
M555.00. It is to be observed, however, that the sum total of those
amounts
does not come to M2,000-00.

According to accused 2, he was not able to count
money when he had a lot of it. The money he got from that loot was a
lot of money and, therefore, he was
not able to count it.

According to Account No.3, his share was M2. He,
however, did not know how much money was in the safe or cash box.

I am not convinced with the accused No.3's story. After
they had obtained this lot of money, the accused had time to sit down
and
count it. I am quite sure that they counted it well and they knew
how much money each of them got.

In any event, it is common cause that as a result of
what they did on that day, the accused persons were eventually
arrested, cautioned
and charged, as aforementioned, by the police.
For the sake of convenience, I shall start with count II, robbery.
The essential elements
which have to be proved to

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establish the commission of robbery are, shortly put,
that there was an assault and the purpose of that assault was to
induce submission
on the victim so that he or she could part with
his/her property.

There can be no doubt, from the evidence, that two of
the accused persons went into the shop armed with a firearm which
they made
sure that the sales lady would see. There can be no doubt
also that when she saw the firearm in the possession of one of two of
the
accused persons, the sales lady got frightened, particularly so
because the other one of the accused who entered into the shop had
his face covered with a balaclava hat. As if that was not enough,
Accused No. 1 fired the gun inside the shop and killed the
nightwatchman.
The sales lady fled out of the shop. Accused No.l then
immediately rushed for the cash box containing money, took possession
thereof
and ran out of the shop.

In my view that is enough to prove that the accused
persons especially accused No.l induced submission on the shop
workers. By means
of that submission, he stole the money, the subject
matter of the Count II. There is in my opinion sufficient evidence
establishing
the commission of that offence by accused No.l. As it
has been pointed out, No.l accused was acting in concert with the
other two

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accused. That being the case, the other two accused
were, on the basis of the well known doctrine of common purpose, as
criminally
liable as No.l accused in the commission of that offence.

Coming now to count I, there can be no doubt that
Accused No. 1 shot at, and killed, the night watchman (the deceased
in count I).
There was no lawful reason at all why. the accused
person shot at, and killed, the nightwatchman. It must be remembered
that when
they went to the shop, all the accused were aware that
Accused No.1 was armed with a firearm. They were, in my finding,
aware that
the purpose of carrying the firearm was to make sure that
if there were any resistance against the execution of their plan, it
would
be removed out of the way by the use of the firearm. On arrival
at the shop, the night watchman did show his disapproval of their
presence there especially that they were armed with a firearm. There
was, therefore, resistance against the execution of their plan.
Accused No.1 had not hesitation to remove that resistance out of
their way by the use of the firearm. In using the firearm, in the
manner he did, No.1 accused had the requisite subject intention to
kill, at least in the legal sense. Assuming the correctness of
my
finding that they were aware that No.1 accused might use the firearm
in the manner he did, the other two accused likewise had,
on the

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principle of common purpose, the requisite subjective
intention to kill.

In the result, I am prepared to find all the three
accused persons quilty of murder on the first count and guilty of
robbery on the
second count.

EXTENUATING CIRCUMSTANCES;

Having found the accused persons guilty of murder.
Section 196 of the Criminal Procedure and Evidence Act of
1981 enjoins the court to state whether or not there are any
factors tending to reduce the moral blameworthiness of the accused's
act.
In this regard, there was evidence, as Mr. Moorosi,
counsel for the accused, has pointed out, that shortly before they
killed the nightwatchman, the accused persons had been at a wedding
feast in the village, where they drank a considerable amount of a
concoction known as pine-apple. It is common knowledge that if
people
take intoxicating beverages their minds become affected by such
drinks and start doing things they would not do when sober.

It must also be pointed out that it is clear from the
evidence, that what the accused planned was to commit armed robbery.
There is
no evidence that they planned or premeditated the death of
the deceased.

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Now, it is trite law that the absence of premeditation
of the deceased's death is a factor to be properly considered for
purposes
of extenuating circumstances.

In the result, I come to the conclusion that in this
case, there are extenuating circumstances namely, intoxication and
the absence
of premeditation. The proper verdict for the accused is,
therefore, that in count 1, the accused are guilty of murder with
extenuating
circumstances.

Both my assessrs agree.

SENTENCE:

I have already convicted the accused on count I and
court II. Coming now to the question of sentence, I have taken into
account all
the factors that have been raised, in mitigation, by Mr.
Moorosi. counsel for the accused persons. As regards count I, I
also take into account that, in accordance with our custom, the
relatives
of the deceased will, in all probabilities, sue the accused
persons in civil court for compensation or to raise the head of the
deceased.
This criminal court is, therefore, only the first to impose
punishment on the accused persons. Another

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court viz. a civil court is yet to punish them. In
sentencing the accused I, therefore, take this point into account in
order that
it may not be said the courts of law punish people twice
for the same offence.

I must say I feel sorry for the accused persons who are
still young and have a long future ahead of them. But what sort of a
future
are they preparing for, if at their ages, the accused are
already murdering people and committing armed robbery? That is not
the
way youngsters like the accused persons should be preparing for
their future.

As far as count II is concerned, the law of this country
prescribes a minimum sentence of 10 years following a conviction on a
charge
of robbery. Each of the accused is, therefore, sentenced on
count II to 10 years imprisonment with no option of a fine.

Likewise on count I the court is not empowered to impose
an option of a fine as a sentence nor can it suspend any portion of
the term
of imprisonment imposed as a sentence. Moreover this court
takes a diem view of people who deprive their fellow humans of their
life
for no lawful reason. In the circumstances of this case an
appropriate sentence for the accused persons (on count I) will be 12
years
imprisonment.

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Each of the accused persons is accordingly sentenced to:

12 years imprisonment on count I 10 years imprisonment
on count II.

B.K. MOLAI

JUDGE

16th February, 1990. For Crown : Mr. Qhomane,
For
Defence: Mr. Fosa for accused 1,2 and 3.