IN THE HIGH COURT OF LESOTHO
In the matter of:
1. MALEFETSANE MOHLAKOLA
2. MALIKA MOHLAKOLA
Delivered by the Honourable Mr. Justice B.K. Molai On 31st October, 2005
The accused persons appear before me on a charge of murder, it being alleged that on or about llth May 2001, and at or near ha Mpoba in the district of Berea, they each or both unlawfully and intentionally killed Khatebe Mohlakola.
It may be mentioned that originally the two accused were charged together with their mother, 'M'akhatebe Mohlakola, who allegedly passed away in August 2005 and was, therefore, not available to stand her trial at the commencement of the hearing of this case. Only the two accused who are a brother and a sister stood the trial.
When the charge was put to them, the two accused pleaded not guilty. Mr. Putsoane, who represents the accused, told the court that the plea of "not guilty" tendered by the accused persons was in accordance with his instructions. The plea of "not guilty" was accordingly entered in respect of the two accused persons.
Four (4) witnesses were called to testify in support of the crown case. At the close of the crown case the defence also closed its case without adducing any evidence in defence. The court has, therefore, only the crown evidence to determine this case.
The evidence heard by the court was that of 48 years old P.W.1, 'M'ampho Machobane, who told the court that she lived at Sefikaneng ha Mpoba in the district of Berea. The two accused persons also lived in the same village as she did. The accused were, therefore well known to her. She also knew the deceased in his life time. The deceased was the elder brother of the two accused. They all lived at their parental home in the village of ha Mpoba together with their late mother, 'M'akhatebe Mohlakola.
P.W.1 told the court that, at about 8:30p.m., on 11th May 2001, she was in her house at ha Mpoba when the deceased, who was not wearing any clothes, rushed into the house. He appeared to be frightened. According to P.W.1, she then asked the deceased what the matter was and in reply the deceased said there were people chasing him. P.W.1 was about to go and find something for the deceased to wear when 'M'akhatebe, A1 and A2 came in. On arrival, 'M'akhatebe Mohlakola explained that she had come to
fetch Khatebe (deceased) because, as she (P.W.1) knew it, he (Khatebe) was a person with a mental illness. She ('M'akhatebe) did not, therefore, want him to remain at her (P.W.l's) house.
P.W.1 testified that when they came to her house, the two accused and 'M'akhatebe were not armed with any weapons, nor did they appear to be in a fighting mood. She, therefore, allowed them to leave with the deceased. However, before the deceased could leave with them, P.W.1 gave him a skipper to wear.
At about 10:00a.m. on the following day, 12th May 2001, P.W.1 was surprised to learn, from one 'M'ampitla, that the deceased had passed away. Indeed, later on that day, P.W.1 noticed a police vehicle going to the home of the deceased, in the village of ha Mpoba.
Under cross-examination P.W.1 testified that she would not dispute it if it were said that, on the night in question, the two accused merely accompanied their mother who was going to fetch the deceased from her (P.W.l's) house. Nor would she (P.W.1) dispute that on arrival back home 'M'akhatebe prepared bedding for the deceased who then got into bed and slept.
Seventy eight (78) years old 'M'afusi Machobane testified as P.W.2 and told the court that she lived at the village of ha Mpoba. P.W.1 was her daughter in-law.
According to her, P.W.2 had her own separate house on the same site that P.W.1 had built her own separate house. The site, however, belonged to her (P.W.2).
At about 8:30p.m. P.W.2 went to P.W.l's house where she found 'M'akhatebe, the deceased and the two accused persons with P.W.1. After P.W.1 had told her that the deceased had come to her house saying people were chasing after him, P.W.2 inquire from 'M'akhatebe why they were chasing after the deceased whom they knew very well that he was a sickly person. In reply, 'M'akhatebe said the deceased was looking down upon her. P.W.2 told the court that when she said the deceased looked down upon her, 'M'akhatebe was, however, not angry at all. In fact she and the two accused left P.W.l's house with the deceased peacefully on that night. P.W.2 was, therefore, surprised when, on the following day, 12th May 2005, she learned that the deceased had passed away.
72 years old Mofothola Mpoba testified as P.W.3 and told the court that he was the headman at the village of ha Mpoba. He knew the two accused persons before court. They were his subjects. He also knew the deceased in his life time.
P.W.3 told the court that between 10:00a.m. and 11:00a.m. on a date he no longer remembered in 2001, he was sleeping in his house when Malefetsane (Al) came and told him that his (Al's) mother, 'M'akhatebe, was calling him at her house.
P.W.3 told the court that the reason why he was sleeping at that time of the day was because on the previous night he had attended a night vigil in his village. He told the court that 'M'akhatebe had also attended the night vigil for the whole night and when people left the house in which the night vigil was held, he noticed that the dress which 'M'akhatebe was wearing had some blood stains.
P.W.3 further told the court that after A1had told him that his (Al's) mother was calling him he proceeded to the house of 'M'akhatebe. On arrival, he found 'M'akhatebe in. Many other villagers had also gathered at the home of 'M'akhatebe. After P.W.3 had arrived at her home, 'M'akhatebe told him that Khatebe (deceased) was inside the house but refused to open the door thereof. According to him, P.W.3 himself tried to open the door but found that it could not open. He then went round the house and found that, on the eastern side, there was a window which was opened and had a window pane broken.
P.W.3 peeped into the house, through the opened window, and noticed a person next to the door. That person was lying on a blue overcoat and covered with a grey blanket.
There was also a grinding stone (leloala) placed against the door so that it could not open. According to him, P.W.3 thought of entering into the house through the window but realized that the window was too small to allow him to enter into the house. Only a small child could enter into the house through that window. P.W.3 then returned to the door and forced it open by physically pushing on it. The door opened a little and P.W.3 managed to squeeze himself into the house.
Inside the house, P.W.3 called Khatebe by his name three times but he did not respond. P.W.3 told the court that he did not notice any weapon next to the deceased who was lying on his back and neatly covered with a grey blanket. Nor did he (P.W.3) notice any blood where the deceased was lying.
P.W.3 told the court that when the deceased failed to respond when he (P.W.3) called him by his name three times, he (P.W.3) called at the people outside the house and said: "this person does not speak. Do you hear me?" One of the people outside the house answered and said: "Yes, we do hear,"
P.W.3 testified that when he saw her at her home on the day in question 'M'akhatebe was no longer wearing the blood stained dress he had seen her wearing at the night vigil during the night. Under cross-examination P.W.3 conceded that he did not tell the police that he had noticed what he considered to be blood stains on the dress of 'M'akhatebe. The blood stains were, therefore, never subjected to a test to verify that they were, indeed, blood stains, in particular, blood stains of a human being.
56 years old Mohau Tjatji testified as P.W.4 and told the court that he lived at ha Mpoba, in the district of Berea. The two accused and the deceased were his co-villagers. He, therefore, knew them very well.
P.W.4 further told the court that one day, in May 2001, he was at the home of one Tlala Makiba where there was a feast. Whilst he was at the feast P.W.4 heard an alarm raised by P.W.3. As a result of the alarm P.W.4 and some other people proceeded to 'M'akhatebe Mohlakola's home where P.W.3 instructed him (P.W.4) to attend to the police when they arrived.
Eventually the police, from Sefikeng police station, did arrive and on arrival, asked for the chief's messenger. When P.W.4 told them that he was the chief's messenger, the police officers told him to accompany them to see the corpse.
According to P.W.4, the police officers then opened the door of the house into which he entered with them. Inside the house, the police officers uncovered a corpse which was covered with a grey blanket. P.W.4 identified the corpse as being that of the deceased, Khatebe Mohlakola. He also noticed that the deceased had sustained multiple injuries on the head and all over the body. There was also a wound on the ribs. It appeared to have been inflicted with an iron rod. One of the deceased's legs appeared to have been crushed with a hammer and the marrow was oozing out. P.W.4 also noticed a big grinding stone and its grinder (Tsiloana) next to where the deceased was lying in the house.
P.W.4 told the court that thereafter the police officers brought a stretcher on which the corpse was carried to the police vehicle. The corpse did not sustain any additional wounds whilst it was being carried from the house to the police vehicle. Thereafter the corpse was conveyed away with the police vehicle. In his evidence, P.W.4 did not accompany the corpse whilst it was being conveyed away, in the police vehicle, from the home of 'M'akhatebe at ha Mpoba. He would not, therefore, know if it sustained any additional injuries whilst it was being transported away.
It is significant to mention that a post mortem examination report was, by agreement of the parties, handed in, from the bar, as exhibit "A".
According to exh."A", on 31st May 2001 and at the mortuary of Berea government hospital a medical practitioner conducted an autopsy on a dead body of a male African adult. The dead body was identified, as being that of Khatebe Mohlakola, by Pakalitha Mohlakola.
The external examination of his corpse revealed that the deceased, a young man of about 31 years of age had sustained multiple bruises and wounds on the body and right forearm; multiple lacerations on both shins and a fracture on the left leg. On opening the body the examination revealed that there was a huge haemothorax on the right side of the chest cavity. From these findings the medical doctor formed the opinion that death was due to pulmonary failure secondary to the injuries that had been inflicted on the deceased.
I can think of no good reasons why the opinion of the medical doctor that the deceased died of pulmonary failure resulting from the injuries that had been inflicted on him should be doubted.
The salient question that immediately arises for the determination of the court is whether or not the accused are the persons who inflicted the injuries on the deceased and, therefore, brought about his death. In this regard, the crown relied on the circumstantial evidence that the accused were the last people seen going in the company of the deceased when they left the home of P.W.1, on the night of 11th May 2001.
It is, however, significant to observe that, in her evidence, P.W.1 told the court that when they came to her house, on the night of 11 May 2001,
the two accused were in the company of their mother, 'M'akhatebe, who explained that they had come to fetch the deceased who, as P.W.1 knew it was a sickly person. P.W.1 assured the court that when they came to her house, the accused were not angry or in a fighting mood. Indeed, they eventually left her place with the deceased peacefully. Under cross-examination P.W.1 told the court that she would not dispute it if it were said when the accused and their mother arrived home with the deceased, the mother prepared a bedding for the deceased who got into bed and slept. The evidence of P.W.1 that when they were at her home on the night of 11th May 2001, the two accused and their mother did not appear to be angry with the deceased with whom they eventually left her (P.W.l's) place peacefully was corroborated by P.W.2. P.W.2 and P.W.1 were, therefore, surprised to learn, in the morning of 12th May 2001, that the deceased had passed away.
In my view the evidence of P.W.1 and P.W.2 does not depict the accused persons as people who were angry with the deceased when they left P.W.l's place with him, on the night of 11th May 2001. Consequently, I doubt that the testimony of P.W.1 corroborated by that of P.W.2 can properly be said to be circumstantial evidence from which a reasonable inference can be drawn that the accused are the persons who assaulted and inflicted on the deceased, the injuries that brought about his death. In our law, the benefit of a doubt is always given to the accused persons. The