CRI/T/1/86
IN THE HIGH COURT OF LESOTHO
In the matter of
REX
v
THABANG MARAISANE LAI
JUDGMENT
Delivered by the Hon. Mr. Justice Sir Peter Allen on the 30th day of November, 1987
The accused Is indicted on a charge of murdering one Thapelo Belebese at Motimposo, Maseru over three years ago on 26 May 1934 by shooting him through the head
The main eye-witnesses were Thapelo Taetsane (PW1) and TSokolo Sekhampu (PW2) who were then aged about 17 years The deceased Thapelo Belebese was aged 18 years. These three with other people were at a place called Peter's cafè Motimposo at some time between 7 and 8 p.n. on the day in question. it was dark at the time.
Apparently the deceased boy had been drinking and he snatched Thapelo's (PW1) cap from his head. Thapelo demanded it back and they quarrelled An elder intervened and told the deceased to return the cap which he did. Thapelo then went home where he remembered that he had not bought some sugar. He returned to the cafè accompanied by his brother Taleli (who did not testify).
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They arrived at the cafè before 9 00 p.m. and, on the way, they met the accused whom Thapelo knew quite well He was clean shaven at the time although more usually he wore a beard Thapelo said he wore a green blanket under which he carried a shotgun. He added that the accused was known in their village to be a policeman and he claimed to be one although he never wore uniform He had an identity card of some sort which he told people was a police identity card.
Knowing this about the accused, Thapelo approached him and told him of the earlier incident in the cafè and said that he was nervous about whether the deceased would continue the quarrel. The accused then accompanied Thapelo and his brother to the cafè.
Outside the cafè they found the deceased talking to a woman and Thapelo pointed him out to the accused. The accused beckoned to the deceased to come to him but the deceased did not respond.
The accused then approached the deceased and removed the shotgun from under his blanket where it had been slung on his shoulder. The accused asked the deceased where Thapelo's cap was. The deceased replied something like, "you can shoot me if that's what you want."
The accused was carrying the shotgun pointing upwards in the direction of the deceased's head and, without a word, he immediately
fired it when he was very close to the deceased. There was no time for the many pellets to separate before they struck the deceased and the whole lot, together with the plastic cartridge cap, made a
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large hole in the deceased's forehead above his right eye and the tremendous force of the impact flung the deceased into the air. He fell to the ground dead. The accused then asked, "where are the others?" Thapelo was frightened and replied that there were no others involved. The accused left the place carrying the gun and nobody tried to stop him.
Detective Sergeant Molefi (whose P E. evidence was admitted) came to the scene shortly afterwards. He saw the deceased with a fresh open wound on his forehead which had been bleeding. He took the body to the mortuary
On 28 May 1984 a post mortem examination of the body was carried out by Dr. Mapetla (PW3) at the Queen Elizabeth II Hospital, Maseru. She completed a written report which was put in as exhibit 'A'. The body was identified to her by Motlalepula Mokhatla (whose P E. evidence was admitted) who was related to the deceased by marriage (he was brother-in-law of the deceased's mother).
The doctor found a large hole in the deceased's forehead about 35 cms in diameter caused by an object penetrating the skull and shattering it with extensive brain damage, which was the cause of death. There was no exit wound and the doctor found about nine pieces of metal and a circular piece of plastic inside the skull.
Unfortunately this doctor had no experience of gunshot wounds and the police appear to have carelessly lost the items removed from inside the deceased's head. It would appear that the pieces of metal were pellets from the shotgun cartridge and the circular piece of plastic
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was probably the cartridge cap.
There was a spent cartridge in the shotgun (exhibit and as the top of the cartridge had not been crimped it would no doubt have been sealed with a cap of some sort. At such close range everything that came out of the gun barrel would have entered the deceased's head.
Detective Trooper Masupha (PW5) of Maseru C I.D. claimed to have been the investigating officer although he seemed to have very little idea of how to do the job, and he did nothing effective as far as I can see. In every homicide trial that I have conducted here so far the so-called investigations have been carried out by inexperienced troopers insteads of by experienced senior officers, as they clearly should have been. It ought to be obvious to the police that a serious case that is likely to be tried in the High Court must be thoroughly and carefully investigated. Junior officers are not capable of such work and they should not be left to deal with these cases without at least very close supervision from their superiors
Although the accused was apparently well-enough known locally, he was not located by Trooper Masupha On 6 June 1984 another junior officer, Trooper Ramashamole (PW4), of Maseru Central Charge Office, received a report and he went with another trooper to Motimposo to arrest the accused who was known to him by the nickname of Sergeant Molapo. In fact the accused himself stated that Ramashamole was his brother-in-law although this was not put to Ramashamole himself. At any rate he knew that he was looking for one Thabang Maraisane and he enquired first
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of the chief. But he did not find the accused until he reached Ha Ts'iu. There he found the accused at the home of Boesame Mafoea (D.W.I) where he was in the habit of going daily to drink beer. The accused had no beard at the time, he was clean shaven.
When he saw the two policemen the accused pointed his shotgun at them. Ramashamole grabbed hold of the nun which the accused then released and he ran away They chased him but did not catch him The gun was put in as exhibit 1. It was an old Greener Police Gun which is a shot gun that used to be manufactured for use by police forces dealing with riotous mobs. In the breach was a spent cartridge case of the type called an SP 70 for 12 bore shotguns. Around the forward part of the butt was bound a piece of green material. The carrying sling was made partly of leather and partly of metal chain. In fact it looks like a lead chain for a dog.
Thapelo (PW1) when he identified the gun as that used by the accused at the scene of the shooting, especialy pointed out the green binding and the chain sling as being on the gun that he saw the accused use then and also carrying on other occasions in the village during the few weeks prior to the shooting
Boesane Mafoea (DW1) who appeared at the P E as a prosecution witness, and whose brief testimony there was admitted by the defence, stated that the accused regularly drank beer at his place and he carried the same shotgun (identified) with him daily. He added confirmation that the accused was known locally as a policeman
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It was not until 1 October 1984 that Det Tpr. Masupha (PW5) again met the accused. That was in Maseru and he than arrested the accused on a charge of murder.
The accused gave sworn testimony in his defence and he denied the entire prosecution case. He said he was not at Peter's cafè on the day in question, that he did not shoot the deceased, and that he had never had a green blanket or a gun and had never claimed to be a policeman. Nor had he called himself Molapo. He did not know Thapelo (PW1) at all and he could not say why Thapelo should have lied about the matter. He alleged that Tpr. Ramashamole was his brother-in-law (though, as I indicated earlier, this was not put to Ramashamole in cross-examination) But the accused could not suggest any reason why Ramashamole was lying about him The accused admitted knowing Boesame but denied that he ever went to Boesame's house drinking. The accused stated that he was convinced that there was a conspiracy to implicate him and blame him for the killing.
He stated that he was at home in May 1984 suffering from what he called cancer of the thigh. He said that it was later cured by using local medicine obtained from a Mrs Mapanya He had not been for any treatment from a medical doctor.
The defence did not call Mrs Mapanya or the accused's wife to support this claim. Of course, the defence does not have to prove an alibi but, in the face of the prosecution evidence identifying the accused at the scene of the crime and later, in possession of the gun at Ha Ts'iu, it would surely have been prudent of the
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defence to call these witnesses in order to support his version.
Thus the prosecution case depends upon the identification of the accused at the scene by Thapelo (PW1). The other witness, Ts'okolo (PW2), spoke of a man in a green blanket carrying a gun. He was not able to identify the accused as that man. But his description of the killer supports that of Thapelo (PW1) as far as it goes.
This was further supported by Tpr. Ramashamole's (PW4) testimony of having taken the same gun from the accused eleven days later, on 6 June 1984. Also by the admitted evidence of Boesame Mafoea (DW1) that the accused regularly carried the same gun with him when he was drinking at Boesame's home. This last witness was only called by the defence to testify about events that were alleged to have happened at the police station afterwards. Boesame claimed that he was arrested because he was known as a close friend of the accused (denied by the accused) and later released. The only useful and relevant evidence from this witness was the very brief statement that he made at the P.E. which was admitted in this Court, and to which I have already referred.
I found Thapelo (PW1) to be a straightforward witness, not particularly intelligent, but truthful and credible. He was not at all shaken in cross-examination and there was revealed no reason at all why he should have told lies or made up his evidence against the accused Apart from the actual identification of the accused, Thapelo's version of the shooting was corroborated by the other eyewitness Ts'okolo (P.W.2), who did not know the accused and
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had no apparent reason to lie about what he saw.
On the other hand I did not find the accused's testimony and complete denial at all convincing. I am satisfied that the prosecution version that the accused shot the deceased and caused his death was the truth.
Mr. Matlhare for the defence submitted that the prosecution had failed to call expert ballistic evidence that the shotgun (exh.1) was capable of being fired, and I agree that this should have been done.
However, in this case the gun was clearly identified by Thapelo (PW1) as the weapon used by the accused for the shooting. The witness particularly recognised the green band around the stock of the gun and the peculiar leather and chain sling attached to it. The same identification was made by Tpr. Ramashamole when he seized the gun from the accused a few days after the shooting. Thus this gun was identified as the gun which actually fired the fatal shot.
But, even if it was not so identified, the evidence-is clear that the deceased was shot to death and,even if the gun had not been recovered, that would not have saved the accused, provided the prosecution witnesses could be believed In such cases a clear description of the weapon without it being produced, would usually be sufficient.
In the present case I am satisfied that the shotgun exhibited was the weapon used to shoot and kill the deceased by the accused, and I so find.
The next matter for consideration is whether there was sufficient evidence of malice aforethought, the
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accused's intention to kill the deceased. From the evidence available it does not appear that the accused went to the cafe with any formed intention to harm the deceased. It appears to have been an act committed by him on the spur of the moment without any thought behind it.
There is no doubt that the accused acted in a very foolish and irresponsible manner. He had no business to be carrying a firearm at all and certainly no authority to use it against anyone. The deceased had done him no harm at all, there was no provocation and the shooting was totally without justification. The previous incident was nothing but a rather childish quarrel between these two youths over a cap. It was no business of the accused and he should not have interfered at all.
It is possible that the accused fired the gun merely to frighten the deceased and without intent to harm him. This is not known because the defence was a complete denial. Whatever it was the accused was thinking or intending at the time, he pointed the gun in the direction of the deceased and pulled the trigger while standing very close to him. It was a very dangerous and unlawful act.
I am not satisfied beyond reasonable doubt that it was proved that the accused intended to kill the deceased, but I do find that the accused unlawfully caused the death of the deceased. The Assessors agree with this verdict.
Accordingly the accused is acquitted of the offence of murder but, instead, he is convicted of the lesser offence of culpable homicide.
P. A. P J ALLEN
JUDGE
30th November, 1987
Mr. Matlhare for the defence
Mr. Mdhluli for the Crown
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SENTENCE
I have said the shooting was unjustifed. It was an irresponsible, stupid and callous act by the accused for which there is no excuse. The accused was not drunk and not provoked. Mr. Matlhare has asked for leniency for the accused but he took the life of this 18 years old boy for no good reason at all and I do not consider that he deserves much mercy.
The accused will go to prison for five (5) years.
P. A. P. J. ALLEN
ORDER
The shotgun (exh.1) is to be handed to the police Maseru for disposal.
P. A. P J. ALLEN
