CRI/A/109/84

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of

MOSIUOA
PHEKO Appellant

Vs

REX
Respondent

JUDGMENT

Delivered
by the Hon Mr. Justice J L Kheola on the 3rd day of June, 1985

The
appellant and his brother were jointly charged with culpable homicide
in that on the 8th October, 1983 and at Kotoanyane in
the district of
Mafeteng they each or both of them unlawfully assaulted one Tlhoriso
Nthebe and inflicted certain injuries upon
him which caused the death
of the said Tlhoriso on the same day and that they negligently killed
him. They were found guilty as
charged. The appellant was sentenced
to twelve (12) months' imprisonment and his brother to two (2) years'
imprisonment.

The facts
of this case are not in dispute On the day in question the deceased
and other people were tape-recording the praise songs
sung by the
initiates who had just completed their traditional training at a
circumcision school The appellant who had been the
instructor at the
initiation school had apparently not given his permission to the
people to tape-record the songs. He seized the
tapes and went away
with them, when he returned them the deceased asked him what he had
been putting in his tapes. The appellant
asked him if he was
complaining The deceased's answer was in the negative.

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without
saying a single word the appellant went to a house and came back
armed with a stick and delivered a blow which the deceased
warded off
but immediately fell on his back when he was tripped by a fence The
appellant's brother Tseliso, came running from where
the boys were
assembled and stabbed the deceased with a knife on the upper part of
the thigh cutting one of the main arteries in
that area. It was
severe blood loss From this wound that caused the death of the
deceased. He actually died before he arrived at
the hospital

It was
also common cause that when the deceased fell down the appellant did
not attempt to hit him again with the stick but merely
stood where he
had been when he delivered the first blow. The learned magistrate has
given no reasons why he convicted the appellant
of culpable homicide.
If he was under the impression that there was common purpose, I am of
the view that he was wrong because
there was no evidence to that
effect. There was no evidence that the appellant knew that his
brother had a knife in his possession
and that he would use it (see
Khatampi Ramonyatsi v. Rex, C. of A (CRI) No 1 of 1983 dated the 25th
April, 1985) In my view the
Crown failed to prove beyond reasonable
doubt that a reasonable man in the position of the appellant would
have realised that his
brother had knife which he was likely to use
in the killing of the deceased.

Mr Lenono
for the Crown submitted that the appellant was at least guilty of
assault with intent to do grievous bodily harm. In my
view the
evidence led by the Crown seems to fall short of proving intent to do
grievous bodily harm because (a) there were no injuries
and (b) the
degree of force used by the appellant in wielding the stick has not
been proved (see G. v Mbelu, 1966 (1) P.H., H176
(N) ). The mere fact
that a person has used a stick does not prove that he intended to
cause grievous bodily harm unless the degree
of force used is proved
In cases where an injury has been sustained it is

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easy for
the court to infer from the nature of injury the intention of

the
accused.

The last
question is to decide whether the appellant has committed any offence
or not. He delivered a blow with a stick but fortunately
the deceased
warded it off. But that Was not the end of the matter, as he
retreated the deceased was tripped by a fence and fell
on his back. I
have come to the conclusion that this was common assault

In the
result the conviction and sentence imposed by the trial court are set
aside and replaced with a verdict of guilty of common
assault and a
sentence of caution and discharge .

J. L.
KHEOLA

JUDGE.

18th
June, 1985.

For
Appellant Mr Nthethe

For Crown
Mr. Lenono