HIGH COURT OF LESOTHO
by the Hon. Mr. Justice B.K. Molai on the 13th day of November 1987.
accused has pleaded not guilty to a charge of murdering Mokete
Raphoto, it being alleged that on or about 16th May, 1983 and
near Matebeng village in the district of Qacha's Nek he unlawfully
and intentionally killed the deceased.
It may be
mentioned from the out set that at the close of the crown case Mr.
Seotsanyana counsel for the defence applied for the
discharge of the
accused on the ground that no prima facie case has been established
against him by the crown evidence. The application
was opposed by Mr.
Mokhobo, counsel for the crown.
no law which compells a court of law to deal with the question of
credibility of evidence where at the end of the crown
application is made for the discharge of the accused person. The
court is entitled to reserve the question of credibility
to the end
when the defence will have closed its case unless of course it can be
said the crown evidence was so hopeless that to
applica-tion for his discharge and required the accused to answer the
charge would amount to asking him to help built
a case which the
crown itself had failed to establish.
present case there was evidence adduced by the crown that the accused
was seen assaulting the deceased and inflicting upon
that brought about his death Without going into the question of its
credibility it seemed to me there was evidence
which on the face of
it, connected the accused with the commission of this offence,
accordingly declined to deal with the question
of credibility and
refused the application For the discharge of the accused person at
the close of the crown case. As he was perfectly
entitled to do Mr.
Seotsanyana told the court that in that event the accused did not
wish to lead any evidence in his defence.
He was, therefore, closing
the defence case.
being so, the court is now bound to deal with the question of
credibility and apply the test of proof beyond reasonable doubt
determine whether or not the accused has committed the offence
against which he stands charged.
regard the court has only the crown evidence to rely upon. P.W.5,
Masilo Mokhachane, is an ex-police officer who told the
court that in
1984 he was the officer commanding Police in Qacha's Nek district
when the accused was brought before him by his
lawyer with an
explanation that he might be wanted by the police. According to
P.W.5, the accused himself told him that he was,
at the time, coming
not from his home but from the Republic of South Africa. Prior to
that day P.W.5 himself knew nothing about
the accuser. Apparently
after learning that accused originally Came from Mashai, P.W.5
radioed Mashai Police who gave him a certain
report following which
he cautioned and charged the accused as aforesaid.
reason for the move taken by P.W.5 becomes clear From the rest of the
crown evidence. According to him P.W.1, Tumelo Motoeko,
lived in the
same village with the deceased and the accused who was, in fact his
paternal uncle. Although there were rumours in
the village that the
deceased was having an illicit love affair with accused's wife he
(P.W.1) had no personal knowledge of it.
late in the night of the day in question, 16th May, 1983, the accused
woke him up saying he wanted to go to the house of
one Sechaba who
was also a paternal uncle of P.W.1. The accused then asked P.W.1 to
accompany him to Sechaba's place. P.W. 1 obliged
and the two men
proceeded first to the house of the accused who armed himself with a
tomarhawk. On the way to Sechaba'a house the
accused deviated and
followed the foot path leading to deceased's house. To P.W.1's
question why he was deviating from the
foot path leading to
Sechaba's house the accused gave no response. However, P.W.1 followed
the accused to the deceased's house.
On arrival at the deceased's
house the accused simply pushed the door open without knocking and
he initially said he had seen the accused assaulting the deceased in
the house whose door he had left open P.W.1 later
conceded that he
merely heard the blows inside the house which was not illuminated.
Bearing in mind that it was at night I do not
believe that P.W.1
could have actually seen the accused assaulting the deceased in the
house. In all probabilities the truth la
that he only heard the blows
being delivered inside the house.
as it may, according to him P.W.1 got frightened by the blows he
heard inside the house and ran to Sechaba's house which
was not far
from the deceased's house. He reported to Sechaba with whom he went
to wake up one Mahleke. The three of them went
to the deceased's
arrival they first woke up the deceased's mother from another of the
deceased's houses. When they entered into the deceased's
put on a light. They found the deceased lying in a pool of blood on
the floor next to the door He was breathing hard
and had multiple
bleeding wounds on the head and face. The accused had disappeared and
was nowhere to be found.
evidence that on the night in question the accused came to his house
and asked him to accompany him to Sechaoa's place was
his wife, P.W.2, 'Matsoanelo Motseko, who also told the court that on
the late afternoon of 16th May, 1983 she had
seen the accused and one
Shine arriving home from their place of work at the mines of the
Republic of South Africa. After the accused
and P.W.1 had left for
Sechaba's place, P.W.1 did not return home and P.W.2 only saw him in
the morning at the deceased's house
where many villagers had
Motsoloane Raphoto testified that the deceased was the son of his
elder brother. On the night in question P.W.1 and Mahleke
came to his
house and made a certain report following which he immediately
accompanied them to the house of the deceased. He found
deceased had sustained multiple injuries on the face and was already
dead inside his house. The death of the deceased
was reported to the
chief who in vain looked for the accused.
later accompanied the body of the deceased when it was being conveyed
first to the police station and then to mortuary where
it before the medical doctor who performed the post-mortem
examination. He assured the court that the body sustained
additional injuries whilst it was being transported from home to the
evidence of P.W.4, D/S/Sgt Makara, was that on 17th May, 1983 he was
stationed at Mashai police post when he received a certain
following which he proceeded to the mortuary at Mashai. He found the
deceased's body which he examined for injuries. He
open injuries on the face and head of the deceased. Three days later
he went to the home of the deceased. He found
that the house in which
the deceased had allegedly been killed had already been cleaned and
he was, therefore, unable to find anything
that could be of interest
then looked for the accused but could not find him. In fact he saw
the accused for the first time when he appeared before
at the Preparatory Examination proceedings.
testimony P.W.4 confirms the evidence of P.W.3 that an autopsy was
conducted on the body of the deceased. Indeed, by agreement
counsels a post mortem examination report was handed in from the bar,
as exhibit A. According to Exhibit A the post mortem
on 19th May, 1983 performed on the body of a male African adult by
the medical officer of Qacha' Nek. The body
was identified as that of
the deceased by P.W.3 and one Sebakeng Maphokhe. In his findings the
medical Doctor confirmed that the
body of the deceased had sustained
multiple injuries on the chest, neck, lips, cheeks, ears, back and
the head. He formed the opinion
that death was due to severe brain
damage as a result of a fractured skull.
be no doubt from the evidence of P.W.1, P.W.3 and P.W.4 all of whom
saw the body of the deceased that multiple injuries
inflicted on the deceased's face and head, I can think of no good
reason why the unchallenged opinion of the medical doctor
performed the post mortem examination that the deceased died as a
result of the injuries inflicted upon him should be doubted
circumstances of this case. I am prepared to accept it as the truth.
question is whether or not the accused is the person who inflicted
the injuries that brought about the death of the deceased.
been pointed out earlier P.W.1 saw the accused who was armed with a
tomarhawk entering the house in which the deceased was
then heard the sound of blows inside the house. Shortly thereafter
the deceased was found lying in a pool of blood
with the injuries
described by the crown witnesses. The accused himself had disappeared
air and was nowhere to be found. That the accused who ordinarily
worked at the mines in the Republic of South Africa was
at home on
the day in question is confirmed by P.W.2 the wife of P.W.1. I see no
reason why P.W.1 and P.W.2 who are close relatives
accused should falsely incriminate him in this case. The fact that
immediately the deceased had been fatally injured the
accused who had
just returned home from his place of work in the Republic of South
Africa disappeared and was not seen at his home
for more than a year
indicates to his guilty conscience.
large, I am satisfied that on the only available evidence adduced by
the crown the accused is the person who inflicted upon
the injuries that brought about his death. Granted that he assaulted
the deceased with a tomarhawk on the head which
is a vulnerable pert
of a human body it must be accepted that the accused was aware that
death was likely to result. He nonetheless
acted reckless of whether
or not death did occur. That being so, I come to the conclusion that
in assaulting the deceased as he
did the accused hod the requisite
subjective intention to kill, at lease in the legal sense.
premises, I would find the accused guilty of murder as charged.
assessor agrees with this finding.
Defendant Mr. Seotsanyana.
enjoined by S.296 of the Criminal Procedure and Evidence Act 1981 to
state factors, if any that tend to reduce the moral blameworthiness
of accused's act.
pointed out in the course of judgment that the accused's intention to
kill the deceased was on the legal sense i.e. there
was no evidence
that he planned or premeditated death of the deceased. The absence of
pre-meditation is in itself a factor to be
properly considered for
purposes of extenuating circumstances.
Even if I
were wrong in holding that the accused had intention in the legal
sense and the truth of the matter was that the accused
left his home
with a settled intention to kill the deceased and not to see Sechaba,
there was evidence adduced by P.W.1, that the
rumour was rife in the
village that the deceased was having an illicit love affair with the
the correctness of P.W.1's evidence on this point,it seems to me
probable that the rumour must have reached the accused
who was no
doubt provocked by the knowledge that during his absence at home the
deceased was messing up with his wife. True enough
may not have been such that it could reduce murder to a lesser
offence but it must, in my opinion, be properly
taken into account
for purposes of extenuating circumstances.
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.
6 years imprisonment.
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