CRI/T/27/86

IN THE
HIGH COURT OF LESOTHO

In the
matter of:

REX

Vs

KEKELETSO
MOHLOKI

JUDGMENT

Delivered
by the Hon. Sir Peter Allen on the 14th day of May, 1987

The
accused is indicted on two counts. The first is of the murder of his
wife 'Maitumeleng Mohloki and the second count is of the
attempted
murder of his cousin Tankiso Moerane. Both occurred on 28th June 1985
at Ha Ramokhele in Mafeteng District. At the end
of the prosecution
case counsel for the defence submitted that there was no case to
answer.

The Crown
called four police officers to testify and the evidence of four other
witnesses was admitted. This included the medical
report on the
injuries sustained by the complainant Tankiso in the second count and
the post mortem report on the deceased in the
first count and brief
evidence by a police photographer who photographed the body of the
deceased.

With
regard to eye-witnesses, the complainant Tankiso (P.W.6) revealed at
the start of his testimony that he was, in effect, a hostile
witness.
He stated that he was so drunk

2

at the
time that he did not observe what was going on. Consequently he was
abandoned by the prosecution. It could be that, as a
close relative
of the accused, he decided or was persuaded not to testify against
the accused. At any rate, as a witness he was
of no use to the
prosecution or the Court and he must be disregarded.

The only
other eye witness was Litlhong Fosa (P.W.5) who testified that she
was sitting in the kitchen at the time of the gunshots.
A beer
drinking party was going on in the sitting room next to the kitchen
and a number of people were drinking and some were dancing
to music
on a cassette player. Beyond the sitting room was a bedroom in which
two children slept on the bed. Under the bed was
a Commando
sub-machine gun, kept there by the accused's wife (the deceased) who
was a policewoman.

The
witness saw the deceased dancing in the doorway of the bedroom. She
saw the accused go into the bedroom and the heard two gunshots.
The
deceased fell down in the door-way with a bullet through her right
eye and brain and another through her right breast. Both
bullets went
right through her body and it appears that one of those bullets then
went on through the upper chest of Tankiso who
was sitting at a table
near to the deceased.

Nobody
saw who picked up the gun and who fired it or in what circumstances
it was fired. The witness denied hearing any argument
or seeing any
quarrel between the accused and the deceased.

There was
no certain evidence of whether or not there could have been someone
else in the bedroom. It is probable

3

that
there was not anyone else there and it is probable that the accused
fired the gun but these were not proven facts. Even if
he did fire
the gun the circumstances are not known. Was it fired accidentally or
negligently or deliberately? Was the accused
provoked in some way by
the deceased or was he so drunk that he did not know what he was
doing? It may well be that the accused
could answer some of these
questions but he does not have to do so. He need say nothing at all.
It is not the duty of the defence
to fill in the gaps in the
prosecution case. The defence does not have to prove anything at all
in a case of this sort.

It is up
to the prosecution to prove its case beyond all reasonable doubt. At
this stage, that is, at the end of the prosecution
case,the Court has
to consider whether or not the prosecution has made out a prima facie
case against the accused upon which a
reasonable Court might convict
the accused. In other words, there must be a case based on proven
facts on which the accused could
be convicted If no further evidence
is adduced to the Court by the defence.

Yet, as I
have already pointed out, what we have is a list of probabilities and
a strong suspicion, perhaps, that it was the accused
who shot and
killed the deceased. But does this mean that there is no doubt about
it? The Court cannot convict anyone based upon
suspicion or mere
probabilities. The Court cannot speculate about what may or must have
happened. It can only draw conclusions
based upon the facts and
circumstances described by the witnesses.

Murder is
a most serious crime and there has to be absolute certainty before a
Court can convict anyone of it. Any reasonable doubts
at all about
the evidence mean that

the
prosecution has failed to make out its case.

4

This
particular case, in my opinion, is full of such doubts. The
credibility and reliability of the eye-witness Fosa is not a question

to be decided at this stage. But the facts are very relevant and she
really did not tell the Court anything upon which a definite
finding
can be based. The police and medical evidence is largely technical
and it is based on what was found and seen after the
crime. It does
not advance the case against the accused as far as the main facts in
issue are concerned.

It is
strange that none of the people in the sitting room, so close to the
deceased, could be produced to testify as to what exactly
happened.
Were they all so drunk or so unhelpful that they were discarded as
witnesses? This is not known.

At any
rate, upon the meagre evidence before the Court I am satisfied that
the Crown has failed to make out a prima facie case against
the
accused on the two counts on which he was indicted. The Assessors
agree with me.

Accordingly,
the accused is acquitted on both counts and he is to be released
forthwith

P. A. P.
J.

ALLEN
JUDGE

14th May
1987

For the
Crown : Mr. Mthluli

For the
Defence : Mr. Pitso Accused present on bail Judgment delivered

P. A. P.
J.

ALLEN
JUDGE

14th May
1987

5

ORDER

The
firearm (exhibit 1) and the spent bullets (exhibit 3)and empty
cartridge cases (exhibit 2) are to be handed over to the R.L.M.P.
for
disposal.

P. A. P.
J. ALLEN

JUDGE

14th May
1987