R v Namane (CRI/T/61/03)

Case No: 
CRI/T/61/03
Media Neutral Citation: 
[2004] LSHC 32
Judgment Date: 
20 February, 2004

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CRI/T/61/03

IN THE HIGH COURT OF LESOTHO


In the matter between:

REX VS

POULO MATSABANE NAMANE


JUDGMENT


Delivered by the Hon. Mr. Justice G. N. Mofolo On the 20th February. 2004


The accused Poulo Namane was charged summarily with the crime of murder it being alleged:


In that upon or about the 31st day of March, 1996 and at or near Ntlo-Kholo, Thaba-Bosiu in the district of Maseru, the said accused did unlawfully and intentionally kill Malefetsane Makhooane.


The charge having been read to accused he had pleaded not guilty. The crown had called 4 witnesses.


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P.W.I Philemon Makhooane sworn had testified he was a Rev. gentleman and did not know accused before court. He knew deceased in his lifetime as he was his elder brother. On 31 March, 2002 he was at Liolong Thaba-Bosiu and had received a report to the effect that his brother was murdered. He had found his brother murdered and covered with a shawl. He had returned home to secure transport and deceased had been taken to Maseru Police Station. Before conveying deceased he had not had the opportunity to examine deceased and had not seen injuries sustained by deceased, though it had been explained to the police his elder brother was murdered. Asked who the murderer was it had been said who was. Police had been ordered that deceased be taken to the mortuary. From the police station to the mortuary deceased had sustained no injuries. He knew Mokhele Mots'oane who was married to Nthakoana Thamae and both were late having died a year before deceased's death. He says it could have been in 1985 when they were found dead in a house they lived in. He had not got to know accused though his name was mentioned by a group of people and had only known later who Poulo Namane was and he points at him in the dock. Nthakoane and accused were related and Nthakoana said uncle to accused and accused's niece was married to his younger brother. Nthakoana and husband had sustained bullet wounds. Accused had known of the death of his niece and there was friction between Makhooane's family and his sister. After the two were taken to the mortuary they had tried to meet Thamae's family being accused's brother-in-law. As they made funeral arrangements the Thamae's said they were going to bury their own daughter and then accused was absent. The witness has testified the Thamae's had said they were


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going to bury their own daughter because the witness's younger brother had killed their daughter. Accused's uncles were also making their own burial arrangements. Regarding his younger brother's death, he did not know what accused's attitude was.


Cross-examined by Mr. Hoeane for the accused the witness has said he did say he did not know accused.


No Re-examination.


Postmortem report is handed in by consent, marked Exh. "A" and read into the machine.


P.W.2 'Manyefolo Mafoso sworn has stated she lives at Ntlo-Kholo, Thaba-Bosiu, she is a hawker and knew accused. Her means of knowing accused was that they lived in the same village. She knew deceased in his lifetime. Her means of knowing him was that he resided in a neighbouring village. On 31 March, 1991 she was at her home and whilst outside Malefetsane the deceased person had gone past. He had asked for water and he had said there was not water and he had passed on. It seemed he took way to his home though he was drunk. It was after 1 p.m. The deceased had staggered on until he disappeared from her view. She says she then heard something like a skin was being beaten; she had not taken this seriously. This beating of skin or hide took quite some time. After a while she had seen Napo and 'Mamothibe her neighbour going past running until they disappeared and she had run after them. When she came into view she found Napo,


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'Mamothibe and Poulo pulling at each other and somebody was sprawled on the ground. 'Mamothibe and Napo were pulling Poulo and deceased was lying on the ground. Poulo was the accused person. 'Mamothibe and Napo were pulling accused saying what has he had done and accused answering had said" 'I want to kill this dog, he killed my sister's child.' She had then caught hold of the accused and deceased said: 'although you are holding him, he has finished me off and the while deceased was lying of the ground. Accused person had then run, took a stick lying next to her with an iron bar like a clutch saying he was using the stick to support his weak knee. The stick belonged to deceased. Accused had then taken the stick next to accused and the witness had forestalled accused seizing the stick first and then threw the stick into the field. As accused was pulling deceased, the witness and 'Mamothibe restrained accused pulling him towards them and drove accused to 'Mamothibe's home where they left accused lying on his back. She says they had left accused at 'Mamothibe's about 300 metres away. They had decided to lock up accused in 'Mamothibe's house and then fetch deceased. When they rushed to the door accused had noticed this pulling the door open and 'Mamothibe had come running after accused and reaching accused he had said: 'Now I want nothing and I don't know what you are asking for' and accused had taken a stick and struck the witness on her shoulder and struck 'Mamothibe on her knuckles and she bled. Deceased was still lying on the ground and they drew back. Accused had then taken a stone this size: she shows the size by converging her open palms and says it was flat. The deceased had struck the deceased on the latter's ear with the stone. He says it was a big blow for accused


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had hit the deceased a resounding blow. After this deceased had opened his mouth and they fled with 'Mamothibe. She says they had then said to accused: now that you have killed deceased, we are leaving you alone because we were trying to restrain you. They had left the scene meeting two boys carrying sticks namely: Polinyane and Chaka Mothunye and accused had fled the scene. As they had told the boys accused killed the deceased, the boys have stopped accused; they had further said to the boys: there's accused assaulting deceased and there he flies away and the boys had said: stop, we want to take you to where you have killed a person. The boys had stopped the accused and it seemed they wanted to fight him but accused's sister and husband had appeared and accused's sister had stopped the boys saying: don't assault my brother; she says her name is 'Mathamae and the husband is Thamae. 'Mathamae had then said: do you know what the dispute is about.' while the witness and 'Mamothibe left 'Mathamae and her husband had got to the scene and they were standing next to deceased. She knew Nthakoana and had heard she died and her parents are 'Mathamae and Thamae to whom she had been speaking. The witness has testified reference to killing this dog because it has killed my sister's child was reference to Nthakoana who is Thamae's and 'Mathamae's daughter; it had been said Nthakoaa died in her home. Accused and 'Mathamae were related accused being 'Mathamae's brother.


Cross-examined by Mr. Hoeane the witness has said she knows the source that caused the fighting between deceased and accused. She says she did say she heard the pounding of skin where Malefetsane had


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disappeared and had followed up. She says knows the source because when she came on the scene she had asked accused who said: 'I want to kill this dog because it had killed my sister's child. She says she knows the source because accused told her the source. She says she did ask accused who said; 'I want to kill this dog because it has killed my sister's child.' She says she knows the source because accused told her the source. She says she did ask accused who said: 'if it were your child, what would you do?' The witness denies what she had told the court is an afterthought and insists she knows the cause of the fighting for when the assault started she was present. She says she testifies to what she saw and witnessed the stone that killed deceased. 'Mamothibe had asked the question and when people intervene they say what they wish to say and everybody was asking the question and the reply was: 'I want to kill this dog, it has killed my sister's child. Deceased was lying on the ground face up and he was dispossessed of the stick. Accused wanted to grab the stick next to deceased. She denies she wanted deceased to assault accused. She says accused rushed for the stick and she grabbed it. She says the reason she rushed for the stick is the pounding sound she had heard. Put to her the pounding sound, she heard was deceased beating accused she says she grabbed the stick. She says she denies it was accused being beaten for when she asked deceased he said 'he has finished me off.' She says she threw the stick into the field for fear accused would assault her afterall he had already assaulted her. She agrees they restrained accused. She denies the intervention was to give deceased advantage over accused. She says their intention was to lock in accused to save deceased's life. Deceased lying on the ground could talk but not rise to his feet and had


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not found deceased on his feet. That none of them helped deceased arise she says none could for they were being assaulted and they could not lift up deceased for accused was angry. When they left deceased and returned to the scene deceased was in the same position. She had not noticed whether deceased was injured and saw no injuries on accused for he was fresh. That accused was injured she says she has no knowledge of this. Accused had overpowered them at 'Mamothibe's and returned to the scene and returning to the scene accused was angrier than before. She says the distance between where they were and deceased was about 6-7 paces. She says accused threw the stone at deceased. Put to her accused threw the stone at deceased but misled, the witness says accused did hit the deceased with the stone.


No Re-examination.


By Assessor Mr. Matete. When deceased hit with stone Napo not present; she says she means Napo and Neo. By Assessor Mr. Mathiba. She says even if she did not ask the question it was nevertheless asked and she heard the reply. Accused had no injuries.


By court she says she said Poulo, pardon him, leave him alone; she says it seemed deceased was listening for he said: 'he has finished me off. Accused had not said that deceased had been fighting him.


P.W.3 Malefetsane Chaka Mothunya sworn has stated he lives at Sekake Ntlokholo at Thaba-Bosiu. He knew accused before court who is Poulo Namane Matabane and is otherwise unemployment. His


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means of knowing accused was that they lived in the same village. He knew deceased in his lifetime and his means of knowing him is that they lived in the same village. He remembered 31 March, 1996 when he was at home doing nothing. On the occasion he had met deceased and accused. He had met deceased in a bar drinking liquor. He was happy with them and bought them liquor and it appeared he knew his parents. Whilst in there deceased asked about accused with whom they had apparently grown up together and wondered where accused was. After saying accused was around the latter had entered and accused and deceased were happy with each other. Deceased had produced some money saying accused could buy himself some tobacco and beer. Shortly thereafter deceased rose saying he had sustained an injury on the knee and he was keen to go and work for the children. The knee was bandaged and they had not noticed where accused went. Accused had then left. Between deceased and accused the latter had disappeared first. One 'Mapaballo had then reported someone was being assaulted outside the village. She had not said who they were but people in the bar proceeded to the scene. They had found accused some distance away from deceased and they had asked accused where was he going leaving someone there the reason being accused was leaving deceased lying prostrate. He says they had met 'Manyefolo and Mamothibi. Accused had tried to assault them but accused's brother-in-law and sister had appeared and Peete accused's brother-in-law had asked what they wanted there. Peete's surname was Thamae. Accused had returned to where deceased was, taken a stone and struck the deceased while the latter was lying prostrate. The stone was near deceased and accused had returned to where they were saying: did you not know


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Malefetsane killed my sister's child? He says it was a big stone and demonstrates by open palms of his hands apart a few centimeters as P.W.2 demonstrated. He says they were surprised what accused was trying to say. He says he knows accused sister's daughter Nthakoana Thamae who was married by Mpu Makhooane Nthakoana was late and died before the incident. In the bar there had been no conflict between accused and deceased both being happy together. At the scene of crime accused had said did we not know deceased had killed his sister's child. Deceased had a slight limp.


Cross-examined the witness testified accused was the last to arrive and accused and deceased were happy together and deceased took out money to buy accused liquor and tobacco and relations between accused and deceased were good in the bar. 'Mapaballo had not said who was assaulting who. Coming on the scene he says they saw accused walk away from the scene and they had asked accused where he was going. On arrival there had been no contact between accused and deceased. He says when accused's brother-in-law appeared asking what they were there for, accused had returned and hit deceased on the head with a stone and they concluded accused was assaulting deceased because accused was walking away instead of helping deceased. He says he was surprised accused leaving deceased there as they were happier together before and accused had not returned deceased's change. Accused left the bar first. He says he does not know why deceased was lying prostrate except when accused bludgeoned the deceased with a stone. That whatever happened to deceased did not affect accused he denies saying accused assaulted


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deceased with a stone. That accused had a fight with deceased he says he has no knowledge. That deceased started the fight he says he does not know. He says when accused assaulted deceased with a stone on his head deceased was still lying prostrate. He says it was on the side of the head a little above the ear and deceased was lying on the left side of his head. He says he does not dispute P.W.2 saying deceased was lying face up and he denies they interfered with deceased. Apart from P.W.2 and themselves, many other people arrived. Put to him accused will say he is not telling the truth for accused hit deceased on the head but missed, he denies saying accused hit deceased on the head with a stone and it is fine if accused will come forward to contradict him. The witness says he was surprised accused behaved as he did. He says accused was not drunk but yes, deceased was drunk. He says the reason they believed it was accused who assaulted deceased was because when they accosted accused he picked up sods to assault them. The stone was big because it is a stone one cannot lift. He says accused did not throw the stone for he picked up the stone and hit the deceased. He says at least deceased was hit twice. He says in his absence he cannot say what happened.


Re-examined the witness saying after passing 'Manyefolo and some other person at the scene it was himself and Polinyane and 'Mamothibe and there were many other people on the scene.


By Assessor Mr. Mathiba he says they avoided the sods and did not fight back.


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P.W.4 no. 9052 Tpr. Makhooane sworn has stated he resides at Liholong, Thaba-Bosiu and knows accused before court. His means of knowing him was that he is a neighbour. He knew deceased in his lifetime and his means of knowing him is that he was his great uncle's son. At the postmortem inquiry he identified the body of the deceased. He did examine deceased's body and noticed some injuries. Deceased had assault wounds on the leftside of the ribs, and lefthand shoulder and a fracture of the skull according to medical doctor.


Cross-examined the witness says when the doctor examined the deceased he was present as an identifying witness and they had had a chat with the doctor who told him of a broken skull. The crown had closed its case.


The matter had been postponed and on postponement Mr. Hoeane for the accused had informed the court he was going to call accused.


When, however, the matter resumed Mr. Hoeane had said he had changed his mind and was now desirous of applying for the discharge of the accused.


The court had refused the application saying there was a case to go trial. Mr. Hoeane had then called D.W.I Poulo Matasane Namane who sworn had stated he lived at Thaba-Bosiu Ha Sepake. He has said the deceased was well known to him his means of knowing him being that they attended school together and grew up together even before


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deceased left for Liolong. He remembered 31/03/96 when then he was in his village at Sepake's. He had gone to a beer and smoking shop. Getting there deceased was present and excited saying to him; — see the child of my concubine. He says he was hearing this for the first time. He says he did not reply realizing deceased was drunk. He says he left trying to secure liquor and tobacco but deceased had stopped him buying the items for him. He says deceased was overwhelmed with joy. He says deceased wanted him to partake of the beer to an extend where he spilled the beer on him. He says he was so disgusted he left the deceased. He says he realized deceased was challenging him for a fight and he left. He says he bought tobacco in some other shop whose name he forgets. He says he did not get to the shop and it was then that deceased came and fought him saying did he complain when he said he was his concubine's child? And the witness had said alright you are in love with my mother and not with me; he says he had not completed the sentence for deceased had lifted a stick and struck him on the head twice. He says he had taken deceased's stick and hit him with it once on the head and he staggered, fell and had fled in an attempt to flee. He says he was going home but Polinyane and Mothinya had stopped him.


He says Polinyane and Mothunya threw stones at him and returned him to the deceased. He says he avoided the stones but others hit deceased; he says accused's brother-in-law came and reprimanded them asking that they go away. He says they had left being advised to report to police that people had invaded him. He says he had gone to Mabote Police Station. He says he never throw a stone at deceased.


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Cross-examined by Mr. Tlali the witness says he did not take the tobacco for it was not his brand. He says he was offended deceased calling him child of his concubine. He says he was unhappy and did not drink with deceased for he felt insulted. He partook of the beer though he did not finish it. He says deceased tried to force him partake of the beer but realized he was provoking him into a fight. He says when he left there was no altercation and had not told deceased where he was going. He says deceased did not know where he was going and he went towards Liolong. He says deceased emerged from maize fields, drunk as he was from where they had been drinking. He says at no stage did anybody question what he was doing to deceased or why do you hit deceased with a stone. He says the two of them fought is out throughout. He says no one came on the scene separating them. He agrees Polinyane and Mothunya came on the scene throwing stones at him. He says he saw where stones hit deceased as he was looking side­ways. He says eventually he got to know that deceased had died. By Assessor Mr. Matete the witness says Polinyane and Mothunya are the ones who came. He says when he left he saw 'Mamothibe and 'Manapo but they were away from where he was. He says he heard when his counsel said he threw a stone at deceased and missed but this was not true.


By Assessor Mr. Mathiba he says he ran away for fearing deceased would fight him. He says deceased fell when he hit him with a stick. He says he saw when Chaka and Polinyane collected stones and feared they would hurt him.


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By court he agrees accused hit him with a stick on his ribs twice and it was painful he nearly fell. He says he did not consult the doctor and had not told anybody deceased hit him with a stick though he replied by defending himself. He says where accused found him he had gone past his home. He says where deceased found him deceased was going to his home. The court had noted the accused answered the question after a long time and wish great difficulty. He says when stones thrown he was leaving deceased going away. He says since the stones hit deceased Chaka and Polinyana would have seen these.


D.W.2 Peete Thamae sworn stated he lived at Ntlokholo at Sepake's. He remembered 31 December, 1996 when he was present at his home and was called by a messenger. 'Manyefolo's child had given him a message to intervene as Paul Mats'abane was being attacked and he was to separate them. He says he hurried to the scene and there he had found 3 boys throwing stones at accused being Thabang Mothunye, Chaka Mothunye and he forgets the third one. He had reprimanded the boys and took accused home with him. He says before they got home accused explained to him that deceased ambushed him, hit him with a stick and he defended himself.


Cross-examined by Mr. Tlali for the Crown accused says he was attacked by 3 boys. Put to him accused says it was two boys he agrees. He says accused was carrying his stick and after he was hit by deceased accused hit deceased with the stick. He says accused told him deceased


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hit him on the head or hand and further said deceased could have hit him twice.


No Re-examination.


By Assessor Mr. Matete he says he is related to accused being his brother-in-law.


Defence Case


This is a case in which, according to the evidence deceased was seen in a drinking place; he was happy with P.W.3 and seemed to know P.W.3's parents. Deceased had inquired about the whereabouts of accused and shortly accused arrived and accused and deceased were happy together to an extent where deceased gave accused money to buy tobacco and beer. According to the evidence, accused had left the premises before deceased and there had been a report that someone was being assaulted outside the village and people in the bar had proceeded to the scene. According to crown evidence, the deceased was seen going past P.W.2's village and asked water from P.W.2 who said there was no water. It seemed, according to P.W.2, deceased was on his way home but was drunk. It was after 1 p.m. and deceased had staggered on until he disappeared from view.


In my view, P.W.1's evidence was not that very material afterall he did not know accused and knew nothing of the events of the day. All he did was to establish the relationship between accused and the


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Thamae's whose daughter had died under suspicious circumstances. The witness also testified between the police station and mortuary deceased had not sustained injuries.


P.W.2 'Manyefolo Mafoso was a state witness. It was her evidence on the day in question she had seen deceased go past the village and unfortunately could not offer deceased the water he requested. Deceased had taken the way to his home and was drunk but had staggered on until he disappeared from her view. Shortly she had heard some pounding noise like a skin being beaten and then she had seen Napo and 'Mamotheba going past running until they disappeared and she had run after them and coming closer she found Napo, Mamothibe and Poulo pulling at each other and someone was sprawled on the ground. While 'Mamothibe and Napo were pulling accused deceased was lying on the ground. She says Poulo is the accused person. According to the witness accused while 'Mamothibe and Napo pulled accused away the accused had said: 1 want to kill this dog, he has killed my sister's child.' P.W.2 has gone further to say when she caught hold of accused the deceased had said 'although you are holding him, he has finished me off and the while the deceased was lying on the ground. The witness had also thrown a stick into the field which accused intended seizing. In order to restrain accused and save deceased, according to P.W.2, accused had been taken to 'Mamothibe's with the intention to lock him up there but accused had escaped from their custody. According to the witness, accused had assaulted both her and 'Mamothibe. It was, according to the witness, on escaping from 'Mamothibe's that accused struck the deceased with a stone causing


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deceased to open his mouth, a factor which made the witness and 'Mamothibe flee the scene. The witness has gone further to say they had then said to accused: 'now that you have killed deceased, we are leaving you alone because we were trying to restrain you.' In leaving the scene the witness says they had met two boys namely Polinyana and Chaka and accused had fled the scene. The witness says they had informed the boys that the accused killed deceased and he was fleeing the scene. The boys had stopped the accused and accused's brother-in-law and sister had arrived on the scene. The witness had testified reference by accused to killing this dog because it has killed my sister's child had to do with Nthakoana who is Thamae's and 'Mathamae's daughter, 'Mathamae being accused's sister.


In a long, rambling and irrelevant cross-examination accused's defence was not put to this witness except alluding to the witness that the pounding sound which she heard was deceased beating accused which assertion was denied by the witness. There was damning evidence against accused by this witness and this was not denied. Indeed the witness was not taken to task and emerged unscathed. Of paramount importance is the fact that it was put to the witness that accused threw a stone at deceased but missed while the witness countered that no, accused hit deceased with the stone. This court was impressed with and believes this witnesses' testimony which was, in any, event, not materially challenged.


P.W.3 was Malefetsane Chaka Mothunya who, according to his evidence, had been to the same bar with deceased and accused and,


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according to him the atmosphere was friendly and convivial. It was this witness's evidence that accused left the premises first and when he left there had been no confrontation between accused and deceased save a spirit of friendship and understanding. It was after the report that someone was being assaulted that some people including him from the bar proceeded to the scene and there had found accused some distance away from the deceased and had asked why accused was going away leaving someone lying prostrate. The witness had confirmed they met P.W.2 and 'Mamothibe. It was also P.W.3's evidence confirming the testimony of P.W.2, that accused returned to where deceased was, taken a stone and struck deceased while the latter was lying prostrate saying: did you not know Malefetsane (deceased) killed my sister's child?' It is also of significance that it was put to this witness by defence counsel that accused will testify 'accused tried to strike deceased on the head but missed' and to this the witness had replied 'accused hit deceased on the head with a stone and it is fine if accused will come forward to contradict me.' In fact when the accused got into the witness box he did no such thing for it was accused's testimony that deceased lifted the stick and struck him once on the head twice and he took deceased stick and struck him once on the head when he staggered, fell and accused went away in an attempt to flee. He has said he was going home but Polinyana and Mothunya (P.W.3) stopped him. Contradicting his counsel accused said 'I never threw a stone at deceased.' Despite evidence tendered by the Crown accused has said no people came to separate them and at no stage did anybody say what are you doing to deceased or why do you hit deceased with a stone for the two fought it out throughout. Accused had also said he heard when


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the defence said he took a stone, threw it at deceased but missed; he says this is not true.


In answer to questions by the court accused said that deceased hit him with a stick twice on his ribs and it was painful and he nearly fell. He also said he did not see a Dr. and noticeably there was no medical evidence before court. Where an accused person is assaulted and consults a Dr. as to his injuries, such evidence is furnished the crown as part of the evidence and if the crown suppresses it is an irregularity which the defence would rightly complain of. Crown evidence was that accused suffered no inquiries and there is no evidence before this court that accused suffered injuries. I have already said that accused has denied submission by his counsel that he threw a stone at deceased and missed. Not only this, D.W.2 Peete Thamae accused's brother-in-law has said he found three boys throwing stones at accused while accused said the boys were two. D.W.2 has also said that accused disclosed to him that accused ambushed him. It was also D.W.2's evidence that accused said to him deceased struck him on the hand or head.


There wasn't much in P.W.4's evidence for he was only an identifying witness.


Mr. Hoeane for the defence has submitted that accused be found not guilty for the reason that the murder weapon, a stone, has not been exhibited before court for the court to form an impression whether the stone was such that could have caused deceased's death. There is merit in the submission though the court is quick to point out that Crown


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witnesses have testified that the stone was fairly big and on this aspect the court has believed Crown witnesses. Not only this, there was Crown evidence which this court believed that on deceased being struck with the stone the deceased had opened his mouth causing on­lookers to flee the scene. This court has also taken into consideration the fact that it was the defence case that a stone was thrown missing the deceased. That in this respect the defence contradicted itself in no way advanced the defence case. This court has rejected the defence that in course of stone throwing episode between Polinyana, Chaka and accused stones from Polinyana and Chaka (P.W.3) hit deceased. This court is also conscious of the fact that the medical report in the form of Postmortem report admitted by consent of the crown and defence shows that death was due to head injury being 'depressed fracture right temporal bone with subdural haemotoma.' The injuries in this court's view are consistent with having been caused by a weapon as described by the Crown witnesses and this court does not agree that non-production of an exhibit amounts to the Crown not having proved its case beyond reasonable doubt.


I have rejected the accused's alleged self-defence or that the accused was in any way provoked by the deceased for it was the Crown evidence supported by the defence that in the bar there was no altercation between the accused and deceased. Further, that it was accused who left the bar first, went past his home, found deceased on his way home, and ambushed deceased causing deceased fatal injuries.


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By disclosing to Crown witnesses he wanted to kill deceased because the latter was responsible for the death of accused's sister's child, accused had the intention to kill deceased and by bludgeoning the deceased with a large stone on his head, a vital part of the body accused had specific intention to kill deceased.


The Crown having proved its case reasonable doubt, the accused is found guilty as charged.


My Assessors agree


G. N. MOFOLO

JUDGE


For the Defence: Mr. Hoeane

For the Crown: Mr. Tlali


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EXTENUATING CIRCUMSTANCES


Mr. Hoeane has submitted these was a lot of drinking resulting in diminished responsibility. He says some of the things accused did were not consistent with a sober person. He has further submitted there was a lot of confusion surrounding the death of accused's niece allegedly perpetuated by the deceased.


Mr. Tlali has nothing to say.


The Court has found there are extenuating circumstances particularly because of the state of accused's drunkenness. I do not think accused consumed liquor to give himself Dutch courage as is often said. I am of the view accused because of the state of his intoxication had a blurred mind. It has been submitted on behalf of the prisoner that he is an elderly man of 60 years, supports an aged 80 year-old mother, has no previous convictions and until the present incident led an unblemished life and the Court is to take the prisoner as a fallen angel.


This Court has taken into account mitigating circumstances favouring accused but the Court cannot be indifferent to the fact that this was a savage, calculated murder. Accused waylaid the deceased and killed him to avenge the death of his niece in circumstances in which there was no iota of evidence that accused was responsible for the murder. Even were deceased responsible, accused had no legal right to take the law into his hands.


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The least sentence to be imposed is ten (10) years imprisonment and accordingly accused is sentenced to ten (10) years imprisonment.


My Assessors agree.


G.N. MOFOLO

JUDGE

For the Defence: Mr. Hoeane

For the Crown: Mr. Tlali


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