CRI/T/46/86

IN THE
HIGH COURT OF LESOTHO

In the
Matter of :

REX

v

SEHLOHO
MZINE

JUDGMENT

Delivered
by the Hon. Mr. Justice B.K. Molai on the 30th day of March, 1987.

The
accused is before me on a charge of murdering Molahlehi Molibeli, it
being alleged that on or about 6th April, 1985 and at or
near Ha
Moseneke in the district of Quthing he unlawfully and intentionally
killed the deceased. He has pleaded not guilty to the
charge.

The
evidence of P.W.1, Tankiso Lesia, was that on the day in question he
and the deceased went to skin a cattle which had died on
the way from
the cattle posts. He was going on horseback whilst the deceased who
was his nephew was on foot.

On their
way back home, P.W.1 and the deceased called at certain house in the
village of Ha Ramoekholo where they were given some
food. Whilst they
were eating, the deceased went out of the house. When he eventually
went out of the house P.W.1 found that the
deceased had gone away
with his horse and he had to foot it back home.

As he
approached their home village, P.W.1 had to pass next to a tree
plantation from which he heard the voice of the deceased crying:

"malome Tankiso nthuse Sehloho oa mpolaea" (loosely
translated: maternal uncle Tankiso help ma Sehloho is killing me)
or
words to that effect.

2

P.W.1
immediately went into the tree plantation where he found the deceased
lying postrate on the ground. As it was raining and
already late at
night he could not see any injuries on the deceased due to darkness.
After he had, in vain, tried to assist the
deceased up, P.W.1 left to
seek assistance.

He first
went to the home of a certain old lady by the name of 'Mamoiloa.
There were no people except the old lady herself. He went
to the home
of her son who was, however, not in. He then went to his house to
take off his wet clothes and put on dry ones. While
P.W.1 was putting
off wet clothes at his house one Pule came and reported that the
deceased had been injured in the tree plantation.
He told Pule that
he had already been there. Pule then left. This is confirmed by Pule
himself who testified as P.W.2 in this trial.

Having
changed wet clothes for dry ones, P.W.1 proceeded to Morero's place
and found him in. He then returned in the company of
Morero, to the
spot where he had left the deceased in the tree plantation. This
is,however, denied by Pule who as we shall see
later in this jugment
told the court that Morero came to the spot where the deceased was
lying in the tree plantation after P.W.I
had already arrived there.

Be that
as it may, P.W.I went on to say on arrival he and Morero found the
deceased's wife and Pule already with the deceased in
the tree
plantation. They together managed to carry the deceased to his house
where they found his sister, 'Maleboea Molibeli,
with a badly swollen
face.

I may,
perhaps, digress a little here and mention that when the trial
started, Mr. Mokhobo, counsel for the crown, told the court,
from the
bar, that 'Maleboea Molibeli who was P.W.1 at the preceedings of the
Preparatory Examination had since died and would
not be available to
testify in this trial. Her evidence should, therefore, be admitted in
evidence under the provisions of S.227
of the Criminal Procedure and
Evidence Act, 1981.

3

It was
pointed out to Mr. Mokhobo that if 'Maleboea Molibeli's deposition,
at the Preparatory Examination proceedings, were to be
admitted,
evidence had to be adduced on oath to the satisfaction of this court
that she was in fact dead and her deposition in
the proceedings of
the Preparatory Examination correctly recorded. No such evidence had,
however, been adduced before this court.
That being so, the
deposition of 'Maleboea Molibeli could not, in my view, be properly
admitted in evidence in this trial.

Similarly
a disputed application to admit in evidence the post mortem
examination report of an expatriate medical doctor who had
allegedly
left the country could not be allowed for want of evidence on oath
that the doctor had in fact left the country and,
therefore, not
available to testify in this trial.

It will
also be remembered that under a separate judgment dated 19th
September, 1986 I made a ruling disallowing an application
for leave
to lead additional evidence of the investigating officer who had not
testified at the Preparatory Examination. We have,
therefore,neither
the evidence of the investigating officer nor the medical evidence as
to the course, of death in this trial.

Returning
now to his evidence, P.W.1 testified that, after he had been carried
into his house, the deceased was undressed and examined
for injuries.
It was then that he noticed that deceased had two open wounds on the
head, a cut on the lower lip, a cut on the ear
which was hanging and
a broken arm whose bone was protruding.

According
to him, P.W.1 had to spend the night with the deceased and his wife
while Pule and Morero returned to their respective
homes. At about
dawn on the same night, the deceased passed away. He (P.W.I) then
went to report to the chief who detailed messengers
to have the
accused arrested. The accused was accordingly arrested and eventually
escorted to the police.

4

The
evidence of P.W.2, Pule Molibeli, was that he and the deceased were
staying together although they slept in different houses.
On the
night of 6th April, 1985 he was already in bed when the accused
knocked at the door and asked the whereabouts of the deceased.

Although he did not get out of bed and open the door P.W.2 recognised
the accused by his voice. He told the accused that he did
not know if
the deceased were in the house in which he normally slept. The
accused then left and walked in the direction towards
the deceased's
house. Shortly thereafter P.W.2 heard the accused returning and
saying "O utloile ka sebono ngoan'a ntja"
(loosely
translated: He had heard through his anus the child of a dog).

as the
accused passed next to his house on his way from the house in which
the deceased normally slept, P.W.2 got out of bed and
peeped through
the window to make double sure that the person outside his house was
the accused. He then saw and recognised the
accused by his face and a
maroon hat which was covering neither the forehead nor the ears. The
accused was wet as it was raining.

If P.W.2
had to peep through the window to make , double sure that the person
outside his house was the accused, it necessarily
implies that P.W.2
had not definitely identified the accused by his voice. Having regard
to the fact that it was a rainy dark night,
I find it improbable that
P.W.2 could have recognised a maroon colour of the accused's hat and
that it was not covering both the
forehead and the ears.

Be that
as it may, P.W.2 went on to say about 45 minutes after the accused
had left, two women, 'Mathuso and 'Mathabo Molibeli,
came to him and
made a certain report con­cerning the deceased - Neither of the
two women was, however, called as a witness.
We do not, therefore,
know how they came to know about the deceased - According to him,
P.W.2 took some matches and accompanied
the two women to a spot in a
nearby wattle tree plantation where they found the deceased lying on
the ground. He was uttering the
words: "malome Tankiso, nthuse
Sehlono oa mpolaea". P.W.2 lit a match and noticed some blood on
the deceased's head.
He tried to raise up the deceased but could not.
As has been pointed

5

out
earlier he confirmed the evidence of P.W.1 that he made a report to
him.

According
to P.W.2.when he left P.W.1's place he went to call one Michael
Lekorotsoana on the instructions of P.W.I himself. He
and Michael
Lekorotsoana then proceeded to where the deceased was lying in the
tree plantation.

While
P.W.I had testified that when he returned to the tree plantation he
found P.W.2 with the two women at the spot where the deceased
was
lying, P.W.2 denied and told the court that he and Lekorotsoana found
P.W.I already there with the two women. They tried to
carry the
deceased but all in vain. P.W.I then sent him to go and find
something with which to carry the deceased. He went to the
home of
Maaumane Lekete and brought a canvas with which they were able to
carry the deceased to his house. After this P.W.2 returned
to his
house to sleep.

It did
not come to P.W.2's mind that the deceased had sustained serious
injuries, otherwise he would have suggested that he should
be taken
to hospital for treatment. Nor did he believe that when he said:
"maternal uncle Tankiso, help me Sehloho is killing
me",
the deceased was anticipating death.

Assuming
the correctness of P.W.2's evidence that when he uttered those words
the deceased was not anticipating death, it must be
accepted that the
words are inadmissablc hearsay evidence and no evidential value can
be attached to them.

P.W.3
'Nyane 'Molai, was one of the messengers detailed by the chief to
arrest the accused. He (P.W.3) was going in the company
of two other
messengers and P.W.1. After he had been traced in the village the
accused was brought to P.W.3 at the home of the
deceased. The accused
was fastened, escorted to his house and ordered to produce all the
weapons he had used to assault the deceased.

There is
a lot of contradiction as to what happened when the accused was
ordered to produce the weapons he had used to assault the
deceased.
According to P.W. 1 the accused

6

a stick
and only in the course of a search did P.W.3 find an iron rod and two
spears. This is, however, denied by P.W.3 who told
the court that the
accused himself produced the two spears. According to P.W.I the
accused then took the messengers to the scene
of crime where pieces
of a broken stick were found. This is again denied by P.W.3 according
to whose evidence the messengers were
taken to the scene of crime by
P.W.1 himself who picked up pieces of the broken stick.

In the
light of this contradicting evidence, I have a doubt as to whether
any of the weapons alleged to have been used to assault
the deceased
were in fact produced, or pointed out by the accused. In our law, the
benefit of such a doubt is always given to the
accused person.

An
application for the discharge of the accused person was made at the
close of the crown case. I declined to deal with the question
of
credibility at that stage and refuse the application on the ground
that on the face of it, the crown evidence did establish
a prima
facie case. As it was perfectly entitled to do, the defence told the
court that in that event it was closing its case without
calling the
accused into the witness box or leading any evidence in his defence.

In the
first place, there is no direct evidence that the accused is the
person who assaulted the deceased and brought about his
death. We can
only rely upon circumstantial evidence adduced by P.W.2 that he had
positively identified the accused as the person
who was hunting the
deceased on the night in question. I have, however, indicated in the
course of this judgment that P.W.2's evidence
that he had positively
identified the accused is, to say the least, unconvincing.

It may,
indeed, be added that according to the evidence adduced by both P.W.2
and P.W.3 the accused was a friend of the deceased
with whom he
ploughed the fields. The accused had, therefore, no apparent motive
to assault the deceased. On the other hand it
would appear that the
deceased must have offended P.W.I by taking away his horse without
permission when they were at the village
of

7

Ha
Ramoekholo. It was, therefore, P.W.1 who had the apparent motive to
assault the deceased.

If it
were to be properly drawn from circumstantial evidence a conclusion
must be based on proven facts as the only reasonable one.
In the
present case I am unable to hold that the facts are such that the
only reasonable conclusion to be drawn from them is that
the accused
is the person who has assaulted the deceased and brought about his
death.

I have,
therefore, no alternative but to find the accused not guilty and
discharge him.

My
assessor agrees with this finding.

B K.
MOLAI

JUDGE.

30th
March, 1987.

For Crown
: Mr. Mokhobo

For
Defendant: Mr. Kambule.