CRI/T/29/86 IN THE HIGH COURT OF LESOTHO In the Matter of R E X v MOSALA LIBABE J U D G M E N T Delivered by the Hon. Mr. Justice B.K. Molai on the 13th day of November, 1987. The accused is before me on a charge of murder. The Facts disclosed by the charge sheet are that on 15th November, 1985 at or near Mpharane in the District of Leribe, the accused unlawfully and inten- tionally killed one Mohlalefi Ntelane. It is common cause that the deceased lived in the same village as the accused does. They were in fact relatives According to her, P.W.1, 'Mathabang Soto, who also lived in the same village with the deceased and the accused, she was, on 15th November, 1985, returning home from the mill at Mokhanipi when she noticed the accused following her. The accused caught up with her. After they had greeted each other the accused passed on. P.W.1 then met another woman with whom she talked for a short time. She then noticed the deceased who was in the company of one Papa approaching on the same road but from the opposite direction. Then the accused, Papa end the deceased met and passed each other at a distance of about 12 paces (indicated) from her. Nothing was said between the deceased. Papa and the accused as they passed each other on the way. She would have heard it if the deceased and the accused talked to each other unless of course, they were whispering. 2/ However, she 2 However, she noticed that after passing the deceased and Paps on the way the accused walked fast in the direction towards his home. When the deceased and Papa came to P.W.1, the former stopped and talked to P.W.1 about her field which he was supposed to have measured in preparation for ploughing. It was whilst she was talking to the deceased on the road that P.W.1 noticed the accused running towards them. He was holding a knife similar to the one before court. P.W.1 was, however, not bothered for she thought the accused was returning to where he came from at the time he was following her. When he came to them the accused went round P.W.1 and suddenly stabbed the deceased, who stood facing her, on the chest. She immediately took to her heels and went to raise an alarm at a nearby house where there was a feast for removing a mourning cloth. Whilst she was running away, P.W.1 had the occasion to look back when she noticed the deceased picking up a stone. He did not, however, throw the stone at the accused. He remained holding it until accused's mother, one 'Mampheletso Libabe, came and intervened in the fight. The accused then left in the direction towards his home. The deceased eventually fell to the ground still holding the stone. Later on the police came and carried him away. He was still alive. However, on the following morning, P.W.1 learned that the deceased had passed away. According to the accused, the deceased was a secret lover of P.W.1, a fart which is, however, denied by P.W.1. When he met Papa and deceased, the latter asked him whether he was also in love with P.W.I. The accused denied it. The deceased then told him to stop talking shit. When accused returned the insult, the deceased then attacked and stabbed him with an okapi knife. He (accused) also took out his okapi knife with which he stabbed the deceased in self-defence. He denied, therefore, 3/ P.W.1's 3 P.W.1's evidence that before stabbing the deceased he first went home from where he brought the butcher knife before court. P.W.2, 'Manthatisi Thaate, one of the villagers, told the court that on the day in question she was one of the women who were cooking at the home of Papa where there was a feast for the removal of mourning cloth. At one time she went outside the shelter in which the cooking was taking place to attend to her baby. It was whilst she was outside the shelter that P.W.2 noticed the accused following P.W.1 on the road from the direction of Makhanipi. She also noticed the deceased who was walking in the company of Papa on the same road but from the opposite direction. There was a time when P.W.2 went into the shelter to put bread into the pot. When she got out she noticed the accused walking fast towards the direction of the deceased and P.W.1 who were talking to each other on the road. The accused was clearly holding a knife in his hand and coming from the direction of his house in the village. When the accused came to where P.W.1 and the deceased were, P.W.2 saw him stabbing the deceased with the knife he was holding. At that time Papa had left the deceased with P.W.1 and was at the entrance leading to his home. When she noticed the accused stabbing the deceased with the knife P.W.2 raised the alarm by calling out accused's mother who was inside a house at the place where there was a feast for the removal of a mourning cloth. Although the accused denied that he first went to his house, armed himself with a knife and then returned to stab the deceased where the latter was talking to P.W.1 on the road, it seems to me that the evidence of P.W.1 that he did is corroborated by that of P.W.2. I see no good reason why these two women should implicate him falsely on this point. I am inclined, therefore, to accept their story as the truth and reject the accused's version as false. 4/ Although -4- Although P.W.2 had initially told the court that after the accused had passed P.W.1 on the road, she saw him passing the deceased and Papa who were walking together on the same road but in the opposite direction, she later changed and said she only saw the accused when he was returning from the direction of his house in the village. She did not, therefore know if when the accused passed the deceased and Papa on the way to his house there was any discussion between them. The evidence of P.W.1 that she noticed that when the accused met the deceased and Papa on the road no conversation took place between them is not corrobo- rated by the evidence of P.W.2. There is, therefore, only P.W.1's word that no conversation took place between the accused and the deceased and Papa at the time they met on the road. On the other hand there is accused's word that such conversation did take place. In my view P.W.1's story that after meeting the deceased and Papa the accused for no reason, ran home, armed himself with a knife with which he returned to stab the deceased does not make sense. The accused's version that when he met the deceased and Papa there was an altercation between them is a more sensible explanation in as much as it gives a motive why the accused had to run to his home, armed himself with a knife with which he returned to stab the deceased. In her evidence P.W.3, 'Mampheletso Libabe, told the court that the accused was her own son. She confirmed that on the day in question she was inside a house at the home of Papa where there was a feast for the removal of a mourning cloth. She then heard P.W.2 raising the alarm by calling out her name and saying the accused was stabbing a person with a knife. P.W.3 then immediately rushed out of the house and noticed the accused and the deceased on the road just outside Papa's premises. The accused was holding up a knife at the deceased who was also holding a stone,. She ran and got between the two men. She noticed that the deceased was badly injured on the neck and bleeding profusely. 5/ When she 5 When she remonstrated with him for what he had done to the deceased the accused simply left in the direction towards hie home. Shortly thereafter she, however, noticed the accused running away from his home. P.W.3 assured the court that the knife before court and not an okapi knife is the one the accused was armed with on that day. In his testimony P.W.4 D/Tpr Seboka told the court that on 15th November, 1965 he left his station at T.Y. on his way to Kolojane. He was travelling in a police van. On the way he met one Monyane, another police officer who was at the time stationed at Mapoteng police post. The two police officers then travelled together to Kolojane. On their way back from Kolojane they went via Mpharane. As they passed on the road next to Mpharane. High School it was towards sun set. They were stopped by some women who asked them if they could assist by rushing to the hospital an injured person in the village. One of the women was 'Mathabang Soto. When P.W.4 inquired about the whereabouts of the person who had caused the injuries the women pointed at a person who was running on the upper side of Mpharane High School. The police officers then immediately turned their vehicle and chased after the person who was running away. When they came to the home of one Chabeli the road was bad. They then left the vehicle and continued the chase on foot. They called out at the person who was running away and told him to stop for they were police officers. When he did not stop they fired a warning shot. The man then stopped and returned to them. P.W.4 found that it was the accused who was a known person to him. When he was asked about the person he had allegedly injured in the village and the weapon used, the accused gave a certain explanation following which he took the police officers to a spot next to a kraal used for dipping animals. From that spot he produced and handed over to P.W.4 a long butcher knife which is before court. On 6/ examining 6 examining it P.W.4 noticed that the knife had what appeared to be blood stains on its blade. He took possession of the knife which he later handed to one D/Sgt Peete at Hlotse police station. It was labled in his presence. Although D/Sgt Peete has not been called as a witness in this trial P.W.4 assured the court that the knife before court is the one produced by the accused on that day and it was handed in as Exh. 1. According to P.W.4 after the accused had produced Exh. 1 he escorted him to the vehicle from where they drove to the village of Mpharane. They found the deceased bleeding profusely from the neck but still alive. In an attempt to save his life they put the deceased into the vehicle and rushed him to Hlotse hospital without examining him for further injuries. The deceased did not sustain additional injuries whilst he was being transported from Mpharane to the hospital. However, a few minutes after arrival at the hospital P.W.4 learned that the deceased was dead. Before returning to his station at T.Y. P.W.4 escorted the accused to HLotse police charge office where he handed him to the police after cautioning and charging him as afore- said. P.W.4 had neither observed any injuries on the accused nor did the accused himself complain that he had been injured on that day. However, the accused appeared to be some what drunk. In his evidence, the accused conceded that after P.W.3 had remonstrated with him for stabbing the deceased, he left and went to his home, then threw the knife he hod used to stab the deceased with into the garden. He conceded that he then ran sway and was chased by the police officers one of whom was P.W.4 who was an acquaintance of his. when shots were fired at him he realised that he might be injured and then decided to stop and surrender himself. He denied, however, that he produced to P.W.4 Exhibit 1 which was not the knife he used to stab the deceased. 7/ I find no ....... 7 I find no good reason why P.W.4 who is admittedly an acquain- tance of the accused would say the accused pointed or produced Exhibit 1 to him if he did not in fact do so. Indeed, the evidence of P.W.1 P.W.2 and P.W.3 who is accused's own mother confirm that Exh. 1 is the knife which was used by the accused to stab the deceased. While still on this point, it may be mentioned that P.W.3 impressed me as a very honest lady who came to this court prepared to tell the truth and nothing else. I have not the slightest hesitation in accepting her evidence corroborated by the evidence of the other crown witness that Exh 1 is the knife with which the accused stabbed the deceased. In an attempt to hide this knife the accused threw it away whilst he was running away and P.W.4 was telling the truth when he testified that after he had arrested him, the accused took him to the spot where he produced it. Although he claims to have been injured by the deceased and P.W. 4 denied him the opportunity to see a medical doctor, the evidence of the accused in this regard is denied by P.W.4 and all the crown witnesses who saw him on that day. In reply to the question that were put to him by the court, the accused himself testified that he did not report the alleged injuries to the police at Hlotse, the magistrate before whom he was remanded and the prison authorities. I am convinced that the accused's story that he had been injured by the deceased on the day in in question is nothing but a fabrication which I am not prepared to accept. The deposition of Raletsoai Ntelane who was P W.6 at the proceedings of the Preparatory Examination was admitted by the defence counsel. The crown counsel accepted the admission. In terms of the provisions of S.273 of the Criminal Procedure and Evidence Act 1981, the deposition became evidence and it was, therefore, unnecessary to call the deponent as a witness in this trial. According to Raletsoai Ntelane he is the father of the deceased. On 15th November, 1985 he was at his home in 8/the village 8 the village of Mpharane when he heard the alarm following which he proceeded to a place where a large number of the villagers had gathered. He found the deceased lying on the ground. He had sustained open injuries on the neck and the left side of the body. He confirmed that the deceased was subsequently conveyed to hospital in a police vehicle. He Jeter identified the body of the deceased before the medical doctor who performed the post mortem examination. It may be mentioned that during the course of this trial, Mr. Thetsane for the crown informed the court that Dr. Carola Walter Kochling who had performed the post mortem examination over the body of the deceased was on ex-patriate who had since returned to his home overseas and was therefore not available to testify before this court. Mr. Thetsane accordingly applied that the deposition of the medical doctor who was P.W.1 at the Preparatory Examination proceedings be admitted in evidence in terms of the provisions of S.227 of the Criminal Procedure and Evidence Act 1981. The application was, however, opposed by Mr. Mphalane, counsel for the defence. In that event, Mr. Thetsane had no alternative but to adduce the evidence of P.W. 6, Limakatso Khali, who testified that she was the Principal Personnel Officer in the Ministry of Health, As such her duties included recruitment of both Local and Expatriate staff in the Ministry. She knew Dr. Carola Walter Kochling and her husband Dr. George. They were both peace corp volunteers from Germany and recruited as medical officers in March 1984. They were both initially posted in Mokhotlong and later Hlotse Government hospitals. When in March 1986 their contracts expired, the two medical doctors left Lesotho for their home in Germany. Dr. Carols Kochling was, therefore, presumably in Germany. She used the word "presumably" because after Dr. Carola had left Lesotho for Germany she (P.W.6) did not trace if she volunteered to work in another country. 9/ It was 9 It was argued that Dr. Carola Kochling might have gone to any of the neighbouring countries where she is readily available to testify in this trial. In my view, the argument is not supported by the evidence of P.W.6 and I reject it as baseless. Mr. Thetsane also adduced the evidence of P.W.5 Mr Ramashamole the Resident Magistrate who presided over the Preparatory Examination proceedings in this rase, He told the court that as it appeared on the record of the Preparatory Examination the deposition of Carols Kochling who was P.W.1 was correctly recorded by him at the time of its making. The accused who was present at the proceedings of the Preparatory Examination was afforded the opportu- nity to cross-examine Dr. Carola Kochling. However, the Resident Magistrate told the court that Dr. Carola Kochling was a male Doctor who had since left the magiste- rial district. Regard being had to the evidence of P.W.6 and thy fact that the name "Carols" seems to be a Latin word of a femine gender I am convinced that the learned Resident Magistrate cannot be correct in his evidence that Dr. Carols Kochling was not a lady doctor. Be that as it may, I was otherwise satisfied that the deposition of Or. Carola Kochling who had since left this country was correctly recorded by the Resident Magistrate in the presence of the accused. The accused was addmittedly afforded the opportunity to cross-examine her. In the circumstances of this case DR. Carola Kochling cannot be compelled to attend this court without considerable amount of delay or expense. I accordingly allowed her deposition to be read as evidence in this trial. The evidence of Dr Carola Kochling was to the effect that she was the medical doctor who on 20th November, 1985 performed the autopsy (Exh A) on a dead body of a mole African adult. The body was identified before her by Raletsoai Ntelane as that of the deceased. The examination revealed stab wounds on the right side of the neck penetrating to the lung , lower chest, upper chest and lower arm. When opening the cavity, it was found that 10/ the pleural 10 the pleural sac was full of blood. On these finding the doctor formed the opinion that death was due to the stab wound on the neck. I can think of no good reason why Dr. Carola Kochling's opinion that the deceased died as a result of the stab wound inflicted on his neck should be doubted. I am therefore prepared to accept it. As has been pointed out earlier, the accused raised the defence of self-defence in that at the time he stabbed him the deceased was also attacking him with a knife. That was, however, denied by both P.W.1 and P.W.2, the two eye witnesses who told the court that at the time the accused fatally stabbed him the deceased was just talking to P.W.1 and posing no danger at all to his (accused's) life. I have rejected as false the accused's story and accepted as the truth the evidence of both P.W.1 and P.W.2 on this point That being so, self-defence cannot avail the accused. It was also argued that the deceased hod falsely accused the accused of having illicit love affair with P.W.1 and insulted him. The accused therefore, acted under provocation. That may be so, I have, however, accepted the evidence that the accused then went to his house where he armed himself with the butcher knife exhibited before the court before returning to stab the deceased where he was talking to P.W.1. The accused cannot, therefore, be said to have acted in the heat of passion. If any at all the provocation was not such that it could, in our law, reduce the crime of murder to a lesser offence. The argument does not, in my view, hold water and it is accordingly rejected. By and large,I am satisfied that the deceased died as a result of the injury unlawfully inflicted upon him by the accused person. That being so the only question remaining for the determination of the court is whether or not at the time he unlawfully stabbed the deceased to death the accused had the requisite subjective intention to kill. If it were borne in mind that the accused used a leathal weapon such as a knife to stab the 11/deceased on the 11 deceased on the upper portion of the body, there could be no doubt that he was aware that death was likely to result. He nonetheless acted reckless of whether or not death did occur. That granted, it must be accepted that the accused had the requisite subjective intention to kill, at least in the legal sense. I would, therefore, find the accused guilty of murder as charged. Both my assessors agree with this finding. B.K. MOLAI JUDGE. 13th November, 1987. For Crown Mr. Thetsane, For Defendant Mr. Mphalane. CRI/T/29/86 EXTENUATING CIRCUMSTANCES Having convicted the accused of murder I am enjoined by S.296 of the Criminal Procedure and Evidence Act, 1981 to make a finding as to the existence or other- wise of factors tending to reduce the moral blameworthiness of his act. In this regard I accepted the accused's evidence that before he stabbed the deceased to death the latter had insulted and accused him of having illicit love affair with P.W.1, There was, therefore, an element of provocation Although it may not have been such as to reduce murder to a lesser offence the provocation may properly be taken into account for,purposes of extenuating circumstances. The court has found that in killing the deceased as he did the accused had intention in the legal sense. Assuming the correctness of this finding, it must be accepted that the accused did not premeditate the death of the deceased. The absence of premeditation is in itself a factor to be considered in determining the existence or not of the extenuating circumstances. Finally there was evidence which I accepted that at the time he assaulted the deceased and inflicted upon him the fatal injuries, the accused was under the influence of intoxication . Although the accused's intoxication was hot such that it could constitute a defence in this case, it is trite law that intoxication affects the minds of people so that they do things they would not do when sober (S. v. Ndhlovu (2) 1965 (4) S.A. 692 at p.695 C-E, 696 A-B). This, in my view is a factor to be properly considered in deciding the existence or otherwise of the extenuating circumstances. 2/ By and large . ... 2 By and large I em satisfied that there are extenuating circumstances in this case and a proper verdict is that the accused is guilty of murder with extenuating circumstances* Both my assessors agree. SENTENCE 10 years imprisonment which is to operate with effect from 15th November, 1985 the date on which the accused has since been kept in prison. B.M. MOLAI JUDGE 16th November, 1987. For Crown Mr. Thetsane, For Defendant Mr. Mphalane.