CRI/T/38/86
IN THE HIGH COURT OF LESOTHO
In the matter of
REX
v
BEN THULO
JUDGMENT
Delivered by the Hon. Mr. Justice B.K. Molai on the 1st day of October, 1987.
The accused is before me dp a charge of murdering Molefi Moholoholo, it being alleged that on or about 2nd May, 19B6 and at or near Mafeteng Reserve in the district of Mafeteng he unlawfully and intentionally killed the deceased., He has pleaded not guilty to the charge.
It may be pointed out that at the start of the hearing of this trial Mr. Khauoe who represents the accused told the court that the defence would not dispute the depositions of Pheello Selinyane, Lehlohonolo Ramarothole, Mamase Mohaleoamathe, Samuel Sebata, Seabata Ralitlhare , Ralipampiri Ralitlhare, re, Selomo Hlalele and Tsoanelo Masoetsa who were respectively, P.W.1,2,3,4, 6,7,8,9,11 and 12 at the proceedings of the Preparatory Examination. Mr. Mokhobo for the crown accepted the admissions made by the defence counsel.
In terms of the provosions of section 273 of the Criminal Procedure and Evidence Act, 1981, the depositions of P.W.1,2,3,4,6,7,6,9,11 and 12 at the Preparatory Examination proceedings became evidence and it was unnecessary, therefore, to call the deponents as witnesses in this trial.
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The testimony of Selomo Hlalele was to the effect that he was a driver at Le Joint Restaurant in the township of Mafeteng. On the night of 2nd May, 1986 he received a certain report following which he proceeded to the front of the Restaurant where he found the deceased lying on the ground apparantly injured. He drove his vehicle and rushed the deceased to Mafeteng Government hospital after which he went to report at the police charge office. The deceased sustained no injuries whilst he was being transported from the restaurant to the hospital.
By the consent of the parties a post-mortem Examination report compiled by a certain Dr. Schumacher who, I was told, had since left the country and was, therefore, not available to testify in this trail was handed in from the bar as exhibit "A". According to the post-mortem examination report, on 9th May, 1986 Dr. Schumacher conducted an autopsy on the dead body of a 22 years old man. The body was identified as that of the deceased by Seabata Ralitlhare and Ralipampiri Ralitlhare. The autopsy revealed a single stab-wound which had cut through the fifth rib penetrating into the heart. The pericardial sac and the pleura were full of blood. On those findings the medical doctor concluded that the deceased had died as a result or the stab wound.
I have no good reason to doubt the medical doctor 's conclusion that the deceased had died as a result-Df the stab-wound found on him., The question that immediately arises for the determination of the court is whether or not the accused is the person who inflicted the injury and, therefore brought about the death of the deceased.
In this regard, the evidence of 12 years old Tseliso Mohaleoamathe was that on the late evening or 2nd May, 1986 he and two other small boys, Pheland and Lisema, were playing next to the home of one
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Monaheng when their ball ran into the road. Phelane went to collect the ball but the deceased who was apparently passing on the road caught hold of and dragged him away. Tseliso and Lisema asked him where he was taking the boy to but there was no response from the deceased. When he came to a place called White Cafe the deceased stood outside the door still holding Phelane. At that time Phelane noticed his father inside the cafe and pleaded with him for help. I shall return to his evident in a momenta
The evidence of Pheello Selinyane was that he was the father of Phelane. He confirmed the evidence of Tseliao Mohsleoamathe that at about 6.45 p.m. an the evening in question he was inside White Cafe when he heard his 11 years old son, Phelane screaming for help. He went outside the cafe and found the deceased hulding him. Tselisa Mohaleoamathe and another bay whose name he did not know were nearby. According to him Pheello Selinyane enquired from the deceased what the matter was. The deceased politely replied that Phelane had been playing in the road and he was merely reprimanding him. Realising that the deceased was very drunk, Pheello Selinyane took the boy from him and left for his home. On the way they met two boys one of whom was the accused. He knew then as the boys who were employees of one Lereko. Accused and his companion asked where the person who had taken a child was. In reply Pheello Selinyane told them that he had left that person at White Cafe and he seemed to be drunk. He declined the invitation of the accused and his companion that he should return with them to the cafe. The accused and his companion then requested Tseliso Mahaleoamethe to take them to the person who had taken the child. Tseliso Mohaleoamathe returned with accused and his companion
whilst he (Pheello Selinyane) continued on his way home in the company of Phelane.
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Returning to his evidence, Taeliso Mahaleoamato confirmed that after he had taken Phelane from the deceased, Pheello Selinyane left for home with the boy. He and Lisema accompanied them. On the way they met the accused and one Thabang who were employees of his father Lereko Mohaleoamathe. According to Tseli30 Mohaleoamathe when they met the accused and Thabang no conversation took place between them and Pheello Selinyane. As it will become clear later in this judgment the accused and his companion had apparently received a falso information that Tseliso Mohaleoamathe had been abducted by a strange person. They were, therefore, anxious to find the boy and the person who had allegedly abducted him. I find it improbable that they could have facted to speak to Pheello Selinyane whom they found wallsing with the boy they were looking for. 1 accept as the truth the story of Pheello Selinyane that he did have a chat with the accused and his companion at the time he met them on his way home from White cafe.
Be that as it may, Tseliso Mohaleoamathe did confirm the evidence of Pheello Selinyane that after they had met the accused and Thabang, he did return with them to point out the person who had caught hold of and dragged away Phelane. They eventually came to Le Joint Restaurant where he pointed out the deceased as the person they were looking for. He was seated at v table in the company of Lehlohonolo
Ramarothale and other people. The accused and Thabang then caught hold of the deceased and told him to go out with them.
Lehlohonolo Ramarothole, Tsoanelo Masoetsa and Julius Manyaki confirmed that they were sitting with the deceased at Le Joint Restaurant when Thabang and the accused came in and the latter told him to go out with them for a talk. According to him Lehlohonolo Ramarathole told the accused that the deceased would came to him after he had finished what he was discussiny with him. The deceased, however, stood up and on his own
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followed the accused and his companion out of the Restaurant.
Shortly after the deceased had followed the accused and Thabang out ,Lehlohonolo Ramarothole, Tsoanelo Masoetsa and Julius Monyaki
noticed that there was a commotion outside the Restaurant. They immediately went out and found that the accused and Thabang were
bitting the deceased with fists and/or open hands. The deceased was, however, not returning the blows. They intervened by holding back the accused and Thabang who then left the place.
Thereafter the deceased who was unable to speak dropped to the ground. When deceased's jacket was removed to examine him for injuries Lehlohonolo Ramarathole, Tsoanelo Masoetsa and Julius Monyaki noticed that he had sustained a stab-wound below the left breast. They confirmed the evidence of Selomo Hlolele that an alarm was raised and the deceased rushed to Mafeteng Government hospital in a vehicle. No additional injuries were sustained by the deceased whilst he was being conveyed to the hospital. According to Lehlohonolo Ramarothnle, Tsoanela Masoetsa and Julius Monyaki the deceased was certified dead on arrival at the hospital. They confirmed that they then went to report at Mafeteng police charge office.
The evidence of Mamase Mohaleoamathe was that at about 7.30 p.m. an 2nd May, 1986, she was sitting with her brother Lereko Mohaleoamathe
outside the house when Lisema, a boy of about the same age as Handyboy, alias, Tseliso Mohaleoamathe came and reported that the
latter and Phelane had been abducted by a strange person. Mamase, Lereko and other people including the accused and Thabang immediately
set out in search of Tseliso Mohaleoamathe and the strange person who had allegedly abducted him. On the way they Separated into two groups, the accused and Thabang following the main road whilst
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she, Lereko and others followed a different direction. On the way she, however, united next to a certain butchery whilst Lereko and others continued in the search. Whilst waiting next to the butchery she noticed Pheello Selinyone walking with Phelane. When she asked them the whereabouts of Tseliso Mohaleoamathe. Pheello Selinyane informed Mamase Mohaleoamathe that he had returned with the accused and Thabang to find the deceased. She followed the main road to look for them. Shortly thereafter the accused and Thabang came with Tseliso Mohaleoamathe. They all returned home.
I think it is now clear from the crown evidence that the person who had been taken away by the deceased was Phelane and not Tseliso Mohaleoamathe . If Lisema, who was not even called as a witness, did give infoi-mation that Tseliso Mahsleoamathe had been abducted, such informatio was obviously wrong.
Be that as it may Mamase Mohaleoamathe told the court that after they had returned home she, the accused, Thabang and one Archie, alias, Nale Mohaleoamathe went to her house. They all contributed some money with which to buy liquor at the beer house of one Matlosa. Before leaving for the beer house the accused gave her a knife and some money for safekeeping. She handed them to a woman with whom she lived in the house.
At about midnight Mamase Mohaleoamathe and her drinking mates were still enjoying their drinks at Matlosa'a beer house when Lereko and some police officers came in. On the request of Lereko the accused and Thabang when out with him and the police officers. According to Mamase the accused and Thabang never returned to the beer house. It was only an the following day that the accused came to her house. He was then in the company of the chief's representative, one Lekhooa alias, Samuel Sabata, and members of the C.I.D. one
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of whom was D/Tpr. Ramokone. On arrival the accused asked Mamase Mohaleoamathe to produce the knife he had given to her for safekeeping an the previous night. She did produce the knife which was examined and seized by D/Tper Ramokane after pointing out to all the people in the house that it had what appeared to be blood stains an its blade.
According to P.W.1, D/Tper Ramokone, he met the accused on 3rd May, 19B6 at the Mafeteng police charge office where he was detained. The accused then gave him a certain explanation following which they proceeded to the village of Phahameng where they were joined by Lereko Mahaleoamathe and the chief's renresen-tative, Samuel Sebata. That was confirmed by Samuel Sebata. The accused then took them to the house of Mamase Mahaleoamathe. As to what took place when they came to her house, the evidence of P.W.1 (D/Tpr. Ramokone) and Samuel Sebata corroborated in all material respects that of Mamase Mohaleoamathe. According to P.W.1, he then returned to the police charge office together with the accused and the knife which he handed in as Exh. "1" in this trial. He subsequentely cautioned and charged the accused as often
P.W.2, Thabang Tetsa, was declared an accomplice witness and accordingly warned. As such he was not merely a witness with a passible motive to tell lies about an innocent accused but a witness peculiarly equipped, by reason of his inside knowledge of the crime, to convince the unwary that his lies were the truth. It is because of its inherent danger that the court approaches the evidence of P.W.2 with caution.
Very briefly P.W.2 confirmed that he and the accused were the employees of Lereko Mohaleosmathe. On the evening of the day in question an alarm was raised that a strange person had abducted children one
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of whom was Tseliso Mohaleoamathe, the son of his employer He and the accused were among the people who went out in search of the children and the person who had allegedly abducted them. On the way they met Tseliso Mohaleoamatho. in the company of Pheella Selinyane and Phelane. Tseliso Mohaleoamathe then took them to Le Joint Restaurant where he pointed at the deceased as the person who had abductad the children. The deceased was in the company of Lehlohonolo Ramarothole and other people in the Restaurant Accused caught hold of and actually dragged the deceased out of the Restaurant.,
When the accused and the deceased were outside the Restaurant he (P.W.2) told the deceased that they should proceed to the police charge office but the latter refused by pulling himself from the accused. P.W.2 then started hitting the deceased with open hands on the face. The accused joined in the assault on the deceased by bitting him with fists- The deceased was so drunk that he could not return the blows. Eventually Lehlohonolo Ramarothole, Tsoanelo Masoetsa and others came and inter vened by holding them (P.W.2 and the accused) away from the deceased. As the accused was being pulled away from the deceased, P.W.2 noticed him claspping his knife which he put into the hind pocket of his trousers. P.W.2, the accused and Tseliso Mohaleoamathe then left the place and returned horns at the village of Phahameng.
On entering the village teey met Lereko Mahaleoamathe who enquired about the whereabouts of the person who had abducted the children. In reply the accused said " (Nkamola, ke mo noele and ho chaile ke eena." By those words P.W.2 understood the accused to mean that he had stabbed the deceased who was piobobly dead. Lereko, who was, however not called as a witness, then rebuked P.W.2 and the accused saying he had instructed them to arrest the deceased and bring him to him but not to kill him. He confirmed the evidence that they then went to the house of Mamase where they
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contributed some money for drinks at the beer house of Mstlosa. He was, however, drinking only soft drinks as he did not take liquor at the time. Whilst they were at Matloaa's. Lereko and the police arrived. He end the accused were arrested and escorted to the charge office where they were locked up in a cell. They did not discuss the incident that had occurred at Le Joint Restaurant as there were many other people in the same cell.
It should be observed that although P.W.2 testified that the deceased was caught hold of and actually dragged out of the Restaurant by the accused there was no corroborative evidence on that point. On the con-trrary the evidence of Lehlohonolo Ramarothole corroborated
by that of Tsoanelo Masoetsa and Julius Manyski was that after the accused had spoken to him the deceased went outside the Restaurant on his own. Indeed. the accused himself testified on oath and confirmed the evidence that the deceased voluntarily followed him outside the Restaurant.
I am inclined to reject as false P.W.2's story that the deceased was physically dragged out of the Restaurant by the accused and accept as the truth the latter's version corroborated by the other crown witnesses that the deceased went out of the Restaurant on his own.
As regard P.W.2's evidence that he had to assault the deceased because the latter was refusing to go to the police charge office, it may be meritioned that on the evidence of P.W.2 himself the police charge office was just across the road from Le Joint Restaurent. If it were true that the deceased had refused to accompany him to the police charge, P.W.2 could have easily run across the road ana reported him to the police rather than take the law into his own hands by assaulting the deceased Even after assaulting him, P.W.2 did not bother to report at the police station. Instead he left the scene and
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returned to the place where he stayed at the village of Phehameng.. In any event P.W.2's evidence that before he started assaulting him the deceased had refused to accompany him to the police station was not corrabord ted by any other evidence and far that reason alone I am not prepared to accept it as the truth.
Bearing in mind that after they had found Tseliso Mohaleomthe P.W.2 and the accused came to Le Joint Restaurant in search of the deceased who was alleged to have abducted children, it seems to me sensible to infer from this that they had already decided to was assault the deceased wherever they would find him. That being
so, I am inclined to accept the accused's story that as soon as the deceased came out of the Restaurant P.W.2 started bitting him with fiats.
According to the accused, the deceased, who was quite sober at the time returned the blows. When he (accused) tried to intervene the deceased hit him with fists. He bit back and it was whilst he and the deceased were exchanging blows that he (accused) got fed up and took out a knife with which he stabbed the deceased an self-defence. The fight was eventually stopped by Lehlohonolo Ramarathole and some other people .
Although the accused claimed that the deceased was on the evening in question, sober and returning the blows the evidence of P.W.2 that he was not was corrode rated by that of Lehlohonolo Ramarothole, Tsoanelo Masoetso and Julius Monyaki. I find it reasonable to accept as the truth the evidence of P.W.2 corroboraled by the other crown witnesses and reject as false the uncorroborated story of the accused on this point.
Granted that at the time the accused
assaulted him the deceased was drunk and not fighting at all, it must be accepted that he was posing no danger to the accused. Consequently
the defence of self-defence cannot avail the accused.
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Athough he conceded that when they met Leieke Mohaleoamathe at the village of Phahameng he told him that he had stabbed the deceased with a knife , the accused denied that he ever used the words "Nkamola ke mo noele and ho chaile ka eena". Wall, whether or not he used those words it now seems immaterial for in his own words the accused has admitted that he is the one who on 2nd May, 1986, stabbed the deceased with a knife.
The accused conceded that on the following day, 3rd May, 1986, he took P.W.1 to the home of Mamase Mohaleonmathe who produced the knife he had handed to her for safekeeping on the previous night. He denied, however, that it was the same knife that was handed in as exhibit "1" in this trial.
I examined exhibit "1" at the time it was handed in end noticed that it had what appeared to be blood stains on its blede.
Mamase Mohaleoamathe herself and P.W. 1 were positive that it was the seme knife that accused had left at the home of Mamase Mohaleoamathe
for safekeeping. I am convinced that they were tailing the truth and the accused was being untruthful on this issue .
By and large, I am satisfied that the accused did stab the deceased with a knife and the question whether or not he is the person who inflicted upon the deceased the injury that brought about his death must, therefore, be answered in the affirmative. I have already rejected the accused's story that when he stabber him the deceased web fighting or posing any danger to him and consequently the defence of self-defence did not avail him. The only question remaining for the determination of the court is whether or not when he stabbed the deceased to death the accused had the requisite subjective intention to kill.
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If it were borne in mind that the accused used a knife to stab the deceased, who was defenceless and posing no danger to him on the cheat which is the upper portion of the body there should be no doubt that the accused was aware that death was likely to result. He, nonetheless, acted reck]es3 of whether or not death did occur. That being so, I come to the conclusion that the accused did have the requisite subjective intention to kill, at least in the legal sense.
In the result, I have no alternative but to find the accused guilty of murder as charged.
Both my assessors agree.
B.K. MOLAI,
JUDGE,
1st October, 1987.
For Crown Mr . Mokhobo
For Defence Mr. Khauoe.
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CRI/T/389/86
EXTENUATING CIRCUMSTANCES
Having convicted the accused of murder, the court is now enjoined by the provisions of S.296 of the Criminal Procedure and Evidence Act, 1981 to make a finding on the existence of Extenuating Circumstances i.e. whether or not there are any factors tending to reduce the moral blameworthiness of the accused's act.
In this regard there was evidence, which I accepted, that the accused had received a report, albeit false, that the deceased, who was a complete stranger, had kidnapped Tseliso Mohaleoamathe, a son of his employer. In all probabilities, that served as provocation to the accused. Although it was not such that it could reduce murder to culpable homicide the provocation should properly be considered for purposes of extenuating circumstances.
It may be mentioned that in the course of his evidence, the accused denied that at the time he assaulted the deceased he was under the influence of intoxication. He however, admitted that shortly before going to Le Joint Restaurant he had been at Mafeteng bus stop where he took some beer. Assuming the correctness of his evidence that he had taken some beer it rust be accepted that the accused was under the influence of intoxcation, at least to some degree., It is trite law that intoximation affects the minds of people so that they do things they would not do when sober. There is no evidence that the accused took the intoxicating beverage with the sole purpose of fortifying himself to insensitively kill the deceased. His intoxication may, therefore, betaken into account as an extenuating circumstance.
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In the premises, I come to the conclusion that extenuating circumstances do exist in this case and the proper verdict is that the accused is guilty of murder with extenuating circumstances.
My assessors agree with this finding.
SENTENCE
Nine(9) years imprisonment.
B.K. MOLAI
JUDGE