CRI/S/6/85

IN THE
HIGH COURT OF LESOTHO

In the
matter of

REX

vs

KHUTLANG
SEMONKONG KHOAELE

JUDGMENT

Delivered
by the Hon Mr Justice J L. Kheola on the 17th day of June, 1985

The
accused appeared before the Senior Resident Magistrate of Maseru
charged with rape and housebreaking with intent to steal and
theft
The charges read as follows

Count I
In that upon or about the 6th March, 1985 and at Borokhoaneng in the
district of Maseru the said accused did unlawfully
and intentionally
have unlawful sexual intercourse with Puseletso Mofoka, a Mosotho
female who was at that time aged 5 years and
incapable in law of
consenting to sexual intercourse, and did thereby commit the crime of
rape

Count II
In that upon or about the 6th March, 1985 and at Borokhoaneng in the
district of Maseru the said accused did unlawfully
and with intent to
steal, break and enter the house there situate of 'Mamohlouoa
Mohlouoa and did unlawfully or steal one Supersonic
Radio the
property or in the lawful possession of 'Mamahlouoa.

The
accused pleaded not guilty to both charges but at the end of the day
he was found guilty as charged in both counts and committed
for
sentence by this Court in terms of section 293 (1) of the Criminal
Procedure and Evidence Act 1981 The learned Senior Resident

Magistrate made the right decision because this case is a very
serious one in which a child of tender age has been seriously injured

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The facts
of the case are as follows

The
complainant is a young girl aged five years At about 10 00 p m. on
the 6th March, 1985 she and another small child were sleeping
in the
bedroom while their mother, 'Mamohlouoa Mohlouoa was working in the
kitchen which is separated from the bedroom by a wall
without any
adjoining door The accused broke the window-pane opposite the handle
and opened the window He entered and found the
complainant lying on
the bed. She was apparently not asleep because she saw the accused
very well and is a person well known to
her He got hold of her and
strangled her and raped her It was just by chance that while this
brutal assault was going on the mother
got out of the kitchen to
spill some water and heard guttural sounds from the bedroom. She
knocked at the door and ordered the
children to open the door. While
she was still knocking at the door the accused got out of the window
holding a radio in his hand.
She shouted at him and screamed, the
accused rushed at her holding a knife in his right hand. She ran
away. The complainant reported
to her that the accused had raped her
They examined the child and found that she was bleeding from her
private parts.

The
medical evidence was to the effect that there were deep scratch marks
and bruises on both sides of the neck which suggested
attempted
strangulation, the labia and the vestibule were bruised, the hymen
was torn, the fourchette was bruised, the perineum
was torn and there
was haemorrhage, there were blood stains around the vulva and the
thighs. The doctor formed the opinion that
there had been forceful
penetration. The vaginal smear taken from the com­plainant showed
spermatozoa The accused was also
examined by a doctor and it was
found that he is suffering from syphilis .The accused elected to
remain silent at the close of
the Crown case He adopted the same
attitude before this Court and told me that he had nothing to say
about his conviction I have
thoroughly checked the record of
proceedings from the magistrate's court and I am con­vinced that
the accused was properly
convicted. I confirm the

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conviction.

Now with
regard to sentence I must emphasise that rape is a serious offence
for which a person may be sentenced to death by hanging
(Section 297
(1) of the Criminal Procedure and Evidence Act 1981) The medical
report in the present case shows a very brutal attack
on a helpless
young girl When I first read the record of proceedings in this case I
had the impression that, unless very sound
reasons were given, the
accused deserved to be sentenced to a very long term of imprisonment.
However, when he appeared before
me I was struck by his appearance of
extreme youth. He claims to be twenty-six years old and still
unmarried. He is a first offender
I have also taken into accout that
because of her age the complainant is likely to recover completely
both physically and mentally.

Sentence
Count I - Seven (7) years' imprisonment. Count II - One (1) year's
imprisonment.

J.L.
KHEOLA

JUDGE.

17th
June, 1985