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.

2

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

3

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.

4

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

5

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

6

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

7

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

8

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

9

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

10

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.

11

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.

12

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.

13

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.

14

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

1st
October, 1987.