IN THE HIGH COURT OF LESOTHO
In the matter between :
Delivered by the Honourable Mrs.Justice KJ.Guni On the 5th February 2003
The accused in this matter is charged with the counts:- The first count is the charge of murder. It is being alleged that on the 19 day of March 2000 at HA - RAKHELELI in the district of BEREA, the accused did unlawfully and intentionally kill by shooting one MATATOLO LECHEKO.
The accused tendered a plea of guilty to Culpable Homicide. He admits that he killed the deceased by shooting at her but denies that he did so with the intention to kill her. The crown refused to accept the plea of guilty to Culpable Homicide. The plea of not guilty to the charge of murder was entered on behalf of the accused by the court. Therefore the crown had to
produce before court the evidence to support the charge of murder against the accused.
In the second count the accused is charged with the crime of contravening section 3 (2) (a) of THE INTERNAL SECURITY (ARMS and AMMUNITION) Act No.17 of 1966. To this charge the accused tendered a plea of guilty. The crown accepted the plea which the defense counsel had indicated that it was in accordance with his instructions. The court entered the plea of guilty on behalf of the accused in respect of count II.
Except for the accused's denial that he unlawfully and intentionally shot and killed MATATOLO LECHEKO, most of the deceased were seen walking together. The accused and the deceased are a brother and sister-in-law to each other. The accused is married to the deceased's home where the accused's wife, resided at that time. They were on their way back to their own homes at HA - RAKHELELI. The accused claimed he missed his wife whom he then visited early in the morning of that day. Apparently the deceased also visited her own parental home which according to the accused was being redecorated.
In the donga, near the forest, the accused and the deceased found 53 years old man by the name of RAMONYAKHENG MOHAPI - PW1 in this trial. He tried to talk to the accused who appeared to him to be in a hurry because the accused hurriedly walked passed P.W.I as he tried to speak to him. The deceased although she did not actually stop, she is alleged to have paid attention to P.W.1s effort to engage them in a brief conversation as
they walked passed him. She talked to P.W.I, however briefly, not totally ignoring him as the accused did.
The deceased and the accused came out of that donga before that old man. They approached the forest. This forest is made up of two (2) separate banches of trees. The accused and the deceased entered into the first part of the forest as P.W.I came towards it. When P.W.I came out of the first part of the forest, the accused and the deceased disappeared into the second part of the forest still following the footpath leading to their village. The footpath followed by P.W.I was running parallel to the one followed by the accused and the deceased. He, was going to a different but neighboring village.
Once the accused and the deceased were in that forest, P.W.I heard the gun reports. The gun report went the first time. Then the second time. Thereafter there were many gun reports, in rapid succession, so many that P.W.I lost count. It seems there were two intervals between those gun reports according to P.W.1. the first interval was between the first and the second gun reports. The second interval was between the second and the numerous ones that followed to the end.
While P.W.I was wondering what could be happening in that forest where the accused and the deceased had disappeared, he saw the accused emerge - running. He was not far. P.W.I shouted to the accused, asking him what was happening. The accused never answered. The accused was no longer following the same route towards their village. He got into the fields and therein disappeared still running.
The accused according to P.W.l's evidence had now changed his initial direction. The original route which he and the deceased had followed, was according to this accused going through the village of HA-RAKOTO leading to their own village of HA-RAKHELELI The accused told this court that he was no longer following any footpath. He did not want to go through that village. This is in confirmity with the fact of this accused's running away from the scene of crime, as described by P.W.I. The accused was running in the fields having abandoned the idea of following the footpath. Why did he not run to the village to raise an alarm or seek help? Was he really being attacked or this attack is just a figment of his mind?
According to this accused, when he and the deceased entered that second portion of the forest, the deceased told him that she is going inside the forest to collect a stump of wood. He waited outside the forest for her, presumably at the footpath. While the deceased was inside the forest, approximately fifty meters away from this accused according to him (this is a range of his gun according to the balistic experts evidence) he heard a male voice-coming directly from where the deceased was, though out of sight. This voice called the accused by name and said, "uena TS'EPO u tla soaba!" translated, "TSEPO you will be sorry!"
Thereafter the accused heard a gun report. By the sound of it, according to the accused he could tell and did tell that the firearm so discharged is pointed at him. There was a pause and another gun report. The accused then took out his own firearm. He aimed at the spot where the voice emanated from. This is the spot where the accused was certain the
deceased was. That voice was according to the accused, with the deceased. The accused fearing for his own safety he discharged his firearm four (4) or more times and run away.
It would appear that from that time the accused had been on the run. He however disputes that. As he run into the fields, he was not far away from P.W.I. Anxious to know what was happening P.W.I shouted to the accused and asked him what was the matter. According to P.W.I, the accused ignored him again as he continued running away. The accused explains his behaviour very well. He told the court that he did not hear P.W. 1 calls his name. He also did not hear P.W. 1 ask him what was the matter. But he also said he could not run to P.W.1, why? because P.W.1 was not armed. He did not say how and when he determined that fact. The accused further claimed that he was scared and in the state of shock. Did he get to his home that evening? It appears so from his evidence. Did he report the matter to his chief? No. Did he go to report to the deceased's husband? No. The accused said his brother told him that evening that the deceased has been found shot dead at HA - RAKOTO forest. Therefore there was no need to go and check upon the person whom he knew to be dead. This behaviour is very strange. As a man and also a close relative of the deceased, who was with her at the time, he should have checked upon the deceased. The sesotho tradition or custom makes the male relative the protector of the female who is regarded as weak.
The accused told the court that his brother came specially to his home to inform him that the deceased is late. When asked if he mentioned to his brother that he suspects that he shot the deceased, the accused answered that
he did not mention to his brother that he was with the deceased when she was shot. Why? He was in a state of shock so he claimed. When asked why he went to surrender himself to the police in connection with this murder charge, the accused explained that his brother informed him that P.W.I has reported that the deceased was with the accused at the time she was shot.
There is no eye-witness who actually saw the accused shoot the deceased. The evidence which connects the accused to the commission of the alleged offence is circumstantial. The ballistic report which was admitted before court by consent of all the parties shows without a doubt, that the gun which this accused produced and handed to the police as the weapon he used in the forest on that day in question, discharged bullets and spent cartridges found by the police near the body of the deceased at the scene of crime. There were no cartridges or spent bullets and/or shells of any other weapon that were found in that forest. Therefore the accused's gun was the only one which appears to have been used there at that material time. The male and his voice together with the alleged utterances seemed to be imaginary.
The report of the Post-Mortem Examination is pathetically inadequate. It simply shows that death was due to respiratory - cardiac shock haemo-pentonia, ruptured liver and stomach. It ends with the remark that the deceased is reported to have been shot. The doctor seems to have had no opinion as to what could possibly have caused those injuries.
The evidence of P.W.I shows that the accused and the deceased were together in one forest when P.W.I heard gun reports. The evidence of the
witnesses who examined the body of the deceased at the scene of the crime (e.g. Police) shows that she had sustained gun shot wounds. The chief and the deceased's husband also testified to the same effect. The accused does not dispute the fact that the bullets which caused her the injuries from which she died also came from his gun. The circumstantial evidence supported with the admissions made by this accused prove beyond doubt that the accused shot and killed the deceased. 'R v Blom 1939 AD 288'.
The only element of the alleged crime of murder with which this accused is charged, which remained to be established is his intention. He denies that he shot the deceased with intent to kill her. He claims he acted in private defense. When proved, the private defense justifies the taking away of the person's life.
Was there an unlawful attack against the accused? There is no evidence of such as attack. The story he has built up concerning the alleged attack fell apart. He did not report that alleged attack. He did not raise the alarm. Even when informed by his brother about the death of the deceased he pretended not to know despite his admission that at the time he discharged his gun in the direction of the deceased, he saw the possibility of shooting her. The accused told the court that he did not care at that time as he fired with his gun, whether or not he shot the deceased. It is the finding of this court that in fact there was no unlawfull attack against the accused, imagined or really.
The reasons the accused gave for taking the gun with him when he visited his wife was most unsatisfactory. He claimed that his door lock was
broken so he did not want to leave the gun in the house when he could not lock the door. This is reasonable enough. It gives me the impression that the accused acted with caution . But the very next day when he left his house, he left that some weapon in that same house. He claims he had repaired the lock. Then he turns round to say after all it was not the lock which was broken. He then hid the gun in a five (5) litre tin by covering it with salt with which he filled that tin. He claimed to have carried out the repairs on that door. But again he changes the story. He claims that the door was not broken after all. It had just expanded and refused to close because it was bigger than the door way. What caused the expansion? What go rid off it? There are no answers. These contradictions merely cause more confusion instead of providing answers.
Even if the accused believed that there was another gun man in that forest, but he was aware that he was likely to shoot and kill the deceased, but did not care if he did, he is guilty of murder with dolus eventualis.
As regards the second count the accused is also found guilty as charged. He has admitted that he has no license. He claims that the firearm belonged to his grandfather who gave it to him without his own father's knowledge. His grandfather however had told him that he has no license. The accused accepted the gift well knowing that he is not entitled to possess the gun without the valid firearm certificate. He made no attempts to acquire the firearms license. His plea of guilty to this charge was properly accepted. Therefore he is found guilty as charged.
The accused has been found guilty of murder with dolus eventualis. The counsel for the accused urged this court to find that the accused appears to have had no motive to eliminate the deceased. The absence of motive, I accept, extinuate against the murder charge therefore the accused in those circumstances escapes the death penalty provided for under our law.
The accused is the first offender because according to the crown counsel he has no record of any kind of previous convictions. Although he is a married man with one child there is nothing said about their support and maintenance. The accused told this court that his wife has collected from their matrimonial home the only child the couple have. The wife of this accused is at present still visiting her own parental home. It seems the visit is of an indefinate period. She never comes to prison to see her husband who also preferred to remain in custody since his arrest for the murder of his sister-in-law. The period for which he has been in custody is considered in his favour for the reduction of the period he should spent in prison in respect of this conviction. For conviction of committing what may be loosely described as an economic crime, Masupha Sole has been sentenced to eighteen (18) years imprisonment. Rex vs MASUPHA SOLE 2002 (not yet reported). For taking away someone's life in the circumstances of your case, the court must treat you with less sympathy than an economic criminal.
You are sentenced to 20 years imprisonment.
My brother assessor agrees with this judgement and sentence.
K. J. GUNI
Assessor - Mr. Makhera
For Crown - Mr. Mokuku
For Accused - Mr. Lesutu