R v Khatitsita (CRI/T/98/2002 )

Case No: 
CRI/T/98/2002
Media Neutral Citation: 
[2004] LSHC 126
Judgment Date: 
19 October, 2004

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CRI/T/98/2002

IN THE HIGH COURT OF LESOTHO


In the matter of:

REX

vs

KHATITSITA


JUDGMENT


Delivered by the Honourable Mr. Justice B.K. Molai On 19th day October, 2004


The accused has appeared before me on a charge of murder, it being alleged that on or about 19th April 2001 and at or near Mokhotlong Reserve, in the district of Mokhotlong, he unlawfully and intentionally assaulted Lerato Kutoane and inflicted upon him a gun shot wound as a result of which he (Lerato kutoane) died at Marakabei, in the district of Butha-Buthe.


When it was put to him, the accused pleaded not guilty to the charge. Six (6) witnesses were called to testify in support of the Crown case. One (1) witness was called to testify on behalf of the accused who also gave evidence in his defence. The court also called two (2) witnesses to testify in this trial.


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In his testimony P.W.1, Tpr. Senooe, told the court that he was a member of the Lesotho Mounted Police Service, stationed at Mokhotlong Police Station. At about 4:00 p.m. on 19th April 2001 he was still at his duty station when the accused, who was carrying a rifle, was brought to him by Pte. Kutumela. According to P.W.1, Pte. Kutumela reported to him that the accused had allegedly shot a person. He, at the same time, took, from the accused, the rifle which he handed to P.W.1. He also handed over to P.W.1 three (3) live cartridges and a fired cartridge case. P.W.1 took possession of the rifle, the three live cartridges and the fired cartridge case which have since been in the custody of the police. He (P.W.1) handed in the rifle, the three (3) live cartridges and the fired cartridge case as exhibit 1, 2 and 3, respectively. After P.W.1 had cautioned him, the accused chose to give no explanation. He (accused) was then arrested and put in the police cell. Later, on the same day, 19th April 2001, P.W.1 learned that the person who had allegedly been shot by the accused had passed away.


It is, perhaps, convenient to mention, at this juncture, that by the consent of the parties a ballistic report was handed, from the bar, as exh. "B". However, when it was pointed out that although the Commissioner of Oath had written that the statement (or report) consisted of two (2) pages, there was in fact only one (1) page, Mr. Tlali, the Crown Counsel, decided to call inspector Pali who testified as P.W.4 and told the court that he too was a member of the Lesotho Mounted Police Service attached to the Forensic ballistic section thereof as a firearm examiner.


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According to P.W.4, he was trained as a firearm examiner at Metropolitan Forensic Science in London U.K. where he obtained his qualification/certificate in 1998. He remembered that on 2nd May 2001 a certain Detective Policewoman, by the name of Hlabana, came to his office at the Police Headquarters here in Maseru and handed in the following items for examination: exh. "1" (one 12 gauge maverick shotgun serial number MV01433D) and exh. "3" (one 12 gauge fired cartridge case). He examined exh."l" and found it to be in good working condition. He also subjected exh. "3" to a microscopic examination and found that it had been fired from exh. "1".


P.W.4 told the court that he was the one who compiled exh."B" and swore to it before the Commissioner of Oath, Mr. J.M. Sematlane. He assured the court that the report he compiled, exh. "B", consisted of only one (1) page and he was, therefore, surprised that Mr. J.M. Sematlane had written that it consisted of two (2) pages.


P.W.2, Tpr. Masimole, told the court that he too was a member of the Lesotho Mounted Police Service, stationed at Mokhotlong Police Station. On 19th April 2001 he was next to a place called Nonyan'a Mpitsa and Supreme Furnisher in Mokhotlong when he heard a gun report from the direction of Ying Yong Supermarket. He immediately rushed to that supermarket. As he did so, P.W.2 could see many other people also running towards the door of Ying Yong Supermarket. On arrival at the Supermarket, P.W.2 entered inside where he noticed a person fallen on the floor, clearly injured as there was blood coming from his belly. Whilst P.W.2 was looking at him, that person spoke and said:


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"can I die for one shilling worth of "koankoara (biscuit)? " He again said; "Can I be shot at for just one shilling koankoara? "


At that stage, a certain Tpr. Hlabi also came into the supermarket, followed by two police assistants namely Temane and Seeko. According to P.W.2, he, Tpr. Hlabi and the two police assistants carried the injured person to the verandah of Ying Yong Supermarket. P.W.2 and Tpr. Hlabi, thereafter, proceeded to the public road from where they found a van by which the injured person was conveyed to Mokhotlong government hospital.


Whilst the medical doctor and the nurses were attending to his injury, P.W.2 heard the injured person saying:


"Oh my God, receive my soul. "


Thereafter P.W.2 and his party left the hospital and returned to their Police Station.


P.W.3, Tpr. Tenane, testified that he was a member of the Lesotho Mounted Police Service, stationed at Mokhotlong Police Station. He told the court that at about 4:15p.m. on 19th April 2001 he was at the police station, in the company of Tpr. Ranko, when he heard a gun report from the direction of a Chinese shop, presumably Ying Yong Supermarket. Shortly, thereafter, they were joined by another policeman by the name of Seeko who came from inside the police charge office. Immediately thereafter, P.W.3 and Seeko left Tpr. Ranko and proceeded to Ying Yong Supermarket to investigate what was taking place there. On the way, they met the accused, a security man at the Supermarket, who was carrying a


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firearm on his shoulder. Asked as to what was happening at the Supermarket, the accused told P.W.3 and Seeko that he had shot a person at the Supermarket and was on his way to surrender himself at the police station. P.W.3 and Seeko then parted with the accused and continued on their way to the Chinese Supermarket. P.W.3 confirmed that, on arrival at the supermarket, he found P.W.2 and Tpr. Hlabi already there. They were attending to a man who was lying on the floor inside the supermarket, clearly injured as he was bleeding from the left side of his belly. According to P.W.3, Tpr. Hlabi and P.W.2 asked him and Seeko to remain with the injured person inside the supermarket whilst they went out to look for a vehicle by which to transport him (the injured person). Shortly, thereafter, Tpr. Hlabi and P.W.2 returned into the supermarket and said they had found the vehicle. The injured person should, therefore, be carried to the vehicle outside the supermarket. P.W.3, P.W.2, Tpr. Hlabi and Seeko accordingly carried the injured person to a vehicle which was waiting outside the supermarket. They loaded the injured person on the vehicle which transported him to Mokhotlong government hospital. They all accompanied the injured person when he was being transported to the hospital.


It is to be observed that whilst the evidence of P.W.3 was that the injured person was carried out of the supermarket after P.W.2 and Tpr. Hlabi had found the vehicle which transported him to the hospital, P.W.2 had told the court that the injured person was carried out of the supermarket to the verandah before he and Tpr Hlabi could go to look for the vehicle. To that extent, the evidence of P.W.3 and P.W.2, therefore, differed.


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Be that as it may, P.W.3 went on to tell the court that after he and the other police officers had brought the injured person to the hospital, they left him in the care of the nurses and the medical doctor. They then returned to their police station where they found the accused already there. He was talking to a number of police officers.


By agreement of the parties, a post-mortem report was handed in, from the bar, as exh."A". According to exh. "A", at about 3:00p.m. on 10th May 2001 and at Mokhotlong government hospital a certain Dr. Tarique performed a post-mortem examination on a dead body of a male adult African. The dead body was identified before the medical doctor by Teboho Kutoane as being that of Lerato Kutoane, the deceased in this trial.


The external examination revealed that the 20 years old deceased had sustained a big penetrating wound on his left lumber region. There was no exit wound. On opening the body, the examination revealed that the deceased had a ruptured spleen, multiple perforations on the intestinal coil, mesentery and ourenta. On these findings the medical doctor formed the opinion that death was due to intra-abdominal haemorrhage secondary to left thermo-abdominal penetrating wound caused by a gun shot.

I can think of no good reasons why the opinion of the medical doctor, that the deceased died as a result of intra-abdominal haemorrhage caused by the injury inflicted on him, should be doubted. The salient question that arises for the determination of the court is whether or not the


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accused is the person who inflicted, upon the deceased, the injury that brought about his death. In that regard the court heard the evidence of P.W.5, 'Marorisang Mothae, who testified that she lived at Ntlholohetsane, in the district of Mokhotlong. She had been employed at Ying Yong supermarket as a cleaner since May 1999. She knew the accused who was her co-worker at the supermarket. The accused was working as a security man at the supermarket. She also knew the deceased in his life time. The deceased was, also employed at the supermarket and, therefore, her co-worker.


At about 4:00p.m. on 19th April 2001 P.W.5 was cleaning in the supermarket. The deceased was assisting one of the customers by the name of Masoballa, in the supermarket. After he had assisted Masoballa, the deceased assisted yet another customer. Thereafter, P.W.5 heard the accused asking the deceased why he was eating Chinese "Koankoara". In reply the deceased asked the accused why he did not arrest him if he had seen him eating the "koankoara".


According to P.W.5 as they talked to each other the accused and the deceased were about 8 paces (ind.) away from her. Eventually the deceased left the accused and went to report to Eric, the Chinese who was, at the time, in-charge in the supermarket. Thereafter, Eric and the deceased went to the accused. As she was busy with her work, P.W.5 did not follow the conversation between Eric, the accused and the deceased. She, however, heard Eric telling the accused and the deceased to return to their work. The accused and the deceased did not, however, part immediately, they continued talking to each other until P.W.5 heard the


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accused saying to the deceased: "Man, do you know that we will end up going to the police?" The deceased was, at the time, holding nothing except the trolley which he had been pushing in the supermarket whilst the accused was still carrying the firearm on his shoulders.


According to P.W.5, she noticed the accused removing the firearm from his shoulder. She then heard the sound "koatla" as the accused cocked the firearm. He (accused) fired at the deceased who was standing at a distance of about 1 1/2 pace infront of him. The deceased dropped on the floor. After the deceased had dropped on the floor, P.W.5 heard him saying:


"Is it true that this person is killing me for a koankoara? It does not matter, he has accomplished his wish, "


In the evidence of P.W.5, there was no scuffle between the accused and the deceased before the shooting. She did not see the deceased in any way threatening to attack the accused before the latter shot at him. Nor did she see the accused attempting to arrest the deceased, at all.


P.W.6, Libe Tsita, testified that he lived at ha Mojakisane, in the district of Mokhotlong. He too was an employee at Ying Yong supermarket. He, therefore, knew the accused and the deceased, in his life time. They were his co-workers.


P.W.6 told the court that one day in April 2001 at about 4:00p.m. he entered into the supermarket from outside. He passed next to the accused


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and the deceased who were talking to each other. As he did so, P.W.6 heard the accused telling the deceased that he (deceased) had taken a "koankoara". The deceased denied to have taken the "koankoara " and told the accused that they had already been to the Chinese when no "koankoara " was found in his possession. In any way the deceased invited the accused to search him if he really thought that he had taken the "koankoara". Thereafter, P.W.6 passed the accused and the deceased. He went to the Chinese who was working at the till, in the supermarket. The name of that Chinese was Eric, alias, "nene". When P.W.6 inquired from him what the accused and the deceased were quarrelling about, Eric told him that the accused was saying the deceased had stolen a "koankara ", a fact, however, denied by the deceased.


P.W.6 told the court that whilst he and Eric were talking, he noticed the accused removing his firearm from the shoulder, cocking it and firing at the deceased. He actually shot the deceased next to the kidney of the left side. According to P.W.6, he and Eric were about 6 paces (ind.) away from the deceased and the accused when the latter shot at the former. He assured the court that the deceased had not used any abusive language or threat of any kind against the accused before the latter shot at him. The accused did not even tell the deceased that he wanted to arrest him.


P.W.6 confirmed that when he was shot at, the deceased fell to the floor and pleaded for help. He told the court that the practice at the supermarket was to search all the workers when they reported for work in the morning and/or left for home at the end of the day. The purpose of the search was to ensure that the workers did not bring weapons into the


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supermarket and when they left for home, at the end of the day, they did not carry out things they did not have when they reported for work in the morning. P.W.6 told the court that when he and other workers reported for work on the morning of the day in question, 19th April 2001, they were as usual searched to ensure that they did not bring any weapons into the supermarket.


In his defence, Khati Tsita, testified as D.W.1and told the court that he was born in 1974. On 19th April 2001 he was working at YingYong supermarket as a security man. He was armed with a loaded rifle which he carried on his shoulder. He told the court that when he reported for work in the morning of the day in question, 19th April 2001, he had cocked his rifle but properly locked its safety cash. That was in accordance with instructions from his head office, here in Maseru. As a result of a robbery which had taken place in one of the shops, in the district of Butha-Buthe, some years back, the head office had issued instructions that all security men on duty should carry their firearms cocked at all times so that robberies such as the one which had taken place in Butha-Buthe might not be repeated.


D.W.1told the court that at about between 4:00p.m. and 5:00p.m. on the day in question, 19th April 2001, he was on duty in the supermarket, when he noticed the deceased taking a packet of "koankoara" from the shelves, going behind the shelves where he opened the packet and ate it ("koankoara"). According to him, D.W.1then went to Eric, one of the Chinese who was working at the till, in the supermarket, and inquired whether or not the deceased had already paid for the "koankoara ". In reply Eric told D.W.1 that the deceased had not paid for any "koankoara".


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Thereafter D.W.1reported the incident to Wang who was the Chinese in-charge and walking around in the supermarket. In the evidence of D.W.1, Wang told him to arrest and take the deceased to police station.


It is significant to observe that Wang was not called to testify as a witness, in this trial. What he is alleged to have done or said remains, therefore, inadmissible hearsay evidence and of no assistance to the court.


Be that as it may, D.W.1testified that, he then called out the deceased and asked him why he had taken the Chinese property ("koankoara") and eaten it without first paying for it. When the deceased denied to have done so, D.W.1told him that he was arresting and taking him to the police. The deceased told him (D.W.1) that he could not do it. D.W.1then moved towards the deceased, presumably to arrest him. As he did so, D.W.1noticed the deceased putting his hand into the pocket. According to him, D.W.1feared that the deceased might be taking, out of the pocket, a knife with which he was going to attack him. He (D.W.1) immediately removed his rifle from the shoulder, unlocked the safety cash and fired at the hand which the deceased had put into the pocket. However, at that time the deceased turned to the right and the bullet hit him below the left armpit. He fell to the floor.


It will be recalled that in her evidence, P.W.5 told the court that at the time D.W. 1 shot at the deceased she was just about 8 paces from them. The deceased had not done anything that could have threatened D.W.1in anyway before the latter shot at him. P.W.5's evidence was, in that regard, corroborated by P.W.6 who told the court that, at the time D.W.1shot at the


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deceased, he (P.W.6) was standing with Eric at the till, about 6 paces away. He assured the court that he did not see the deceased do anything that could have threatened D.W.1before the latter shot at the former.


I must say I watched all the witnesses as they testified before me in this trial. P.W.5 and P.W.6 gave their evidence in a straight forward manner. They gave me the impression that they were reliable witnesses who testified to the truth on this point. I, therefore, believed their story that the deceased had not put his hand into the pocket in a threatening manner before D.W.1shot at him, as the latter wished the court to believe. It is worth mentioning that in his evidence D.W.1told the court that at the time he noticed the deceased putting his hand into the pocket he did not know that he (deceased) had a knife or any weapon in the pocket. Even if I were wrong in my finding that the deceased did not put his hand into the pocket before he was shot at and it is held that the deceased did so, D.W.l's assertion that when he saw the deceased putting his hand into the pocket he feared that he (deceased) was reaching for a knife which he (D.W.1) had not even seen in his (deceased's) possession does not, in my view, make sense.


Be that as it may, D.W.1 went on to testify that when the deceased fell on the floor, he left the supermarket and proceeded to the police station where he reported that he had shot at a person (deceased). D. W. 1 confirmed that on his way to the police station, he met P.W.2 who was going in the company of another police officer. In reply to P.W.2's question as to what had happened at Ying Yong Supermarket, D.W.1told P.W.2 that he (D.W.1) had shot a person and was on his way to report the incident at the police station. He further explained to P.W.2 that he was trying to arrest the person


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he had shot when the latter fought him with something he (D.W.1) could not see. Thereafter D.W.1parted with P.W.2 and continued on his way to the police station. Shortly after he had parted with P.W.2, D.W.1met Pte Kutumela who also asked him what had happened, presumably at Ying Yong Supermarket. In reply D.W.1told him what he had already told P.W.2. Pte Kutumela then accompanied D.W.1to the police station where he handed him to the police with an explanation as to what had happened. It may be mentioned, however, that Pte Kutumela was not called to testify as a witness, in this trial. In any event, D.W.1told the court that after Pte Kutumela had handed him over to the police he too explained what had happened. He confirmed that his firearm which was still loaded was also handed over to the police. Thereafter he was arrested, charged as aforesaid and kept in the police cells.


D.W.2, Lu Shing Nin, testified that his other name was Eric. On 19th April 2001 he was working as till-operator at a Chinese shop (Ying Yong Supermarket) in Mokhotlong. He knew D.W.1and the deceased both of whom also worked as security guard and shop assistant, respectively at the supermarket. He knew Xiao Wang who also worked as the manager of Ying Yong Supermarket. D.W.2 remembered that on 19th April 2001 there was an altercation between D.W.1and the deceased, at the supermarket. The cause of the altercation was that D.W.1was accusing the deceased of eating biscuits for which he had not paid at the supermarket, a fact, however, denied by the deceased.


In his evidence, D.W.2 told the court that he had himself actually seen the deceased eating the biscuit for which he suspected that he (deceased) had


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not paid. He then called at D.W. 1 and instructed him to go and arrest the deceased. D.W.2 denied, therefore, the evidence of D.W.1that he (D.W.1) came to him and inquired whether the deceased had paid for the "koankoara". In any event D.W.2 told the court that it was at the time D.W. 1 approached the deceased to arrest him that the latter put his hand into the pocket as if he was reaching for something that the former fired at him.


It is also to be recalled that in his evidence D.W.1told the court that he was instructed to go and arrest the deceased by Mr. Wang and not D.W.2, as the latter wished the court to believe. If it were true that it was D.W.2 and not Mr. Wang who instructed him to go and arrest the deceased, I fail to understand why D.W.1would lie about an innocent thing like that. In any event it is not really disputed that Mr. Wang was the person in charge at the supermarket. I find it reasonable to accept D.W.'l story that it was Mr. Wang, the person in-charge at the supermarket, who instructed him to arrest the deceased, if at all D.W.1was ever instructed to do so. I reject as false, therefore, D.W.2's version that he was the one who instructed D.W.1to arrest the deceased.


It will be remembered that in their evidence, P.W.5 and P.W.6 told the court that they had not seen the deceased putting his hand into the pocket before D.W.1fired a shot at him, thus clearly suggesting that to their knowledge the deceased did not put his hand into the pocket before he was shot at by D.W.1. However, D.W.2 denied the suggestion of P.W.5 and P.W.6 and told the court that the deceased did put his hand into the pocket before D.W.1fired a shot at him.


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It is common cause that, at the time D.W.1fired at the deceased, D.W.2 was the person operating the till, in the supermarket. That being the case, I am not convinced that D.W.2 could have had a good opportunity to observe with certainty that the deceased had put his hand into the pocket at the time D. W. 1 fired a shot at him.


Be that as it may, D.W.2 testified that when D.W.1went to arrest the deceased, he (D.W.1) actually caught hold of the deceased's arm and tried to twist it. However, the deceased resisted, freed himself and stood at a distance of about 3 metres away from D.W.1, thus suggesting that there had been a physical struggle between the deceased and D.W. 1 before the latter fired a shot at the former. It is to be recalled, however, that in his evidence D.W.1never mentioned that there was any such physical struggle between him and the deceased before he shot at the deceased. The evidence of D.W.1was, in a way corroborated by P.W.5 and P.W.6 according to both of whom there was no physical struggle between the deceased and D.W.1before the latter shot at the former. I am prepared to accept as the truth the evidence of D.W.1corroborated by P.W.5 and P.W.6 that there was no physical struggle between the deceased and D.W.1before the latter shot the former and reject as false D.W.2's version that there was any such physical struggle.


There is no doubt in my mind that, on the evidence of P.W.6, P.W.5 and D.W.2, the deceased was shot at and injured by D.W.1. Indeed, that was confirmed by D.W.1himself The answer to the question that I have earlier posted viz whether or not the accused is the person who, on 19th April 2001,


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shot at and inflected the injury on the deceased must, therefore, be in the affirmative.


It is common cause that after he had been shot at and injured, the deceased was taken to Mokhotlong government hospital for medical treatment. However, according to the charge sheet and, indeed, the opening address of the crown counsel, the deceased subsequently died at a place called ha Marakabei, in the district of Butha-Buthe. There was no evidence of how it came about that the deceased who had been taken to Mokhotlong hospital for medical treatment died at ha Marakabei, in the district of Butha-Buthe. To that extent there was, in my view, a lacuna or gap in the evidence. The deceased could have been referred to another hospital, e.g. Butha-Buthe hospital and on the way thereto collapsed and died as a result of the injury he had sustained, in which case, D.W.1would be responsible for his death. Alternatively the vehicle which was conveying the deceased to the referential hospital could have been involved in a road accident with the resultant death of the deceased in which case D.W.1could not be held responsible for his death. For that reason, after the defence had closed its case, the court called two (2) witnesses viz. Dr. M.D. Tarique and Matseki Lemphane to close the gap.


Dr. M.D. Tarique testified as C.W.I and told the court that he was a medical doctor stationed at Mokhotlong hospital, in the district of Mokhotlong. On 19th April 2001 he was still at his duty station when he was called to the casualty department to assist his colleague (Dr. Khumalo). On arrival at the casualty Department of Mokhotlong hospital he found the nurses and Dr. Khumalo busy assisting the deceased who was lying on a


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stretcher. He also examined the deceased and found that he (deceased) had sustained a gun wound on the left lumber region. The deceased was still fully conscious and oriented but could not sit or stand. He complained of serious pain in the abdomen and there was moderate bleeding from the wound which had no exit. The deceased looked moderately pale. His abdomen appeared to be full and tender. C.W.I and his colleague formed the opinion that the spleen, intestines and liver were involved and there was, therefore, a need for surgical operation as early as possible. The doctors also found that the deceased's blood pressure was low. He had to be given blood transfusion, antibiotic, tranquillizer and intravenous feeding. According to C.W.I, all those measures were measures to help a patient to remain alive and not to precipitate his death.


C.W.I told the court that immediately after assisting the deceased, as they did, he and Dr. Khumalo issued a referral letter by which the deceased was sent to Queen II hospital in Maseru. They could not find a plane and so an ambulance was used to transport the deceased to Maseru.


'Matseki Lemphane, a nurse assistant who was usually used by Mokhotlong hospital to accompany patients who were referred to Queen II hospital, was detailed to accompany the deceased to Queen II hospital, in Maseru. She was, as usual, given necessary instructions on what to do and medication to administer to the deceased, on the way.


'Matseki Lemphane testified as C.W.2 and told the court that she had been employed as a nursing assistant at Mokhotlong hospital since 1988. She confirmed that on 19th April 2001 she was detailed to take the deceased


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to Queen II hospital, in Maseru. They traveled by an ambulance. She conceded that before they left Mokhotlong for Maseru she was given medication which she had to administer on the deceased on the way.


According to C.W.2, on their way to Maseru, she noticed that the condition of her patient (deceased) was deteriorating. At her request, the driver stopped the ambulance on the side of the road in order that she might administer injection on the deceased. However, the deceased was so violent and restless that she (C.W.2) could not inject him even with the assistance of the driver of the ambulance.


Realising that she was unable to administer the injection on the deceased, C.W.2 asked the driver of the ambulance to drive the ambulance fast so that they could quickly reach Butha-Buthe hospital where she would be able to find help. Unfortunately, when they were at a place called ha Marakabei and before they could actually reach Butha-Buthe hospital, the deceased collapsed and died.


C.W.2 and the driver of the ambulance then took the dead body of the deceased to the mortuary of Butha-Buthe hospital. They were allowed to place the deceased's dead body at the mortuary because it was already late at night. On the following day C.W.2 and the driver of the ambulance returned to Mokhotlong leaving the deceased's dead body at the mortuary of Butha-Buthe hospital. However, the dead body was later returned to Mokhotlong hospital for post-mortem examination.


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It may be mentioned that in his evidence C.W.I said he was the medical doctor who performed the post-mortem examination on the dead body of the deceased and compiled the post-mortem examination report (exh."A'). According to exh. "A", C.W.I found that the deceased died as a result of the gun wound that had been inflicted on him. On the evidence of C.W.I and C.W.2, I find that after the gun wound had been inflicted on the deceased, nothing that can be construed as actus interveniens happened to him. That being the case, I am prepared to accept as reasonable the finding of C.W.I that the death of the deceased was caused by the gun wound that had been inflicted on him (deceased) by D.W.1.


The question that remains for the determination of the court is whether or not in inflicting the gun wound on the deceased, as he did, D.W.1had the requisite subjective intention to kill. Intention is not something that can be seen, heard or reached by any of our five (5) senses. It is something to be inferred from the words or acts of the accused person. In the instant case, there is no evidence indicating that D.W.1has uttered words from which it can be inferred that he intended to kill the deceased. There is, however, undisputed evidence that D.W.1did shoot at the deceased with his gun and inflicted upon him a fatal injury. However, D.W.1told the court that he did so in self-defence and it could not, therefore, be inferred that, he had the requisite subjective intention to kill the deceased.


It will be recalled that, in his evidence, D.W.1told the court that during the altercation he had with the deceased in the supermarket on 19th April 2001 he noticed the latter putting his hand into the pocket. He believed that the deceased was reaching for a knife with which to attack him.


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D.W.1then shot at the deceased, presumably in self-defence. According to him, D.W.1had aimed at the deceased's hand which was in the pocket. However, the moment D. W. 1 opened fire, the deceased also suddenly turned to the right and the bullet hit him bellow the left armpit. He (deceased) immediately dropped on the floor, inside the supermarket.


I have found, on evidence, that the reasons advanced by D.W.1for shooting at the deceased viz. that he had noticed the latter putting his hand into the pocket and believed that he was reaching for a knife with which to attack him could not have been the truth. Even if I were wrong in my finding and it is held that the deceased did put his hand into the pocket before he was shot at by D.W.1who believed that the deceased was reaching for a knife with which to attack him, it is significant to observe that there was no evidence that a knife or, for that matter, a weapon of some sort was ever found in the possession of the deceased before or after he had been shot at.


Indeed, it may be mentioned that in his evidence D.W.1told the court that before shooting at him, he had not seen any weapon, in particular a knife, in the possession of the deceased. Moreover, he (D.W.1) was aware that the practice at the Ying Yong supermarket was to search all the employees to ensure that they did not leave the supermarket with articles they did not have when reporting for work at the supermarket. It may be mentioned that, in his evidence, D.W.2 also confirmed this and mentioned that another reason for searching the employees at the supermarket was to ensure that they did not bring to the supermarket dangerous weapons such as knives. D.W.1's belief that by putting his hand into the pocket the deceased


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was reaching for a knife with which to attack him had no basis and could not, therefore, amount to a pending danger which he (D.W. 1) was entitled to repel by shooting at the deceased. That being the case, the private defence of self-defence could not, in my finding, avail D.W.1.


Assuming the correctness of my finding that when he shot at, and fatally wounded the deceased, D.W.1could not have acted in self-defence, it stand to reason that in shooting at the deceased, as he did, D.W.1was aware that death was likely to occur as a result of his act. He nonetheless acted reckless of whether or not death did occur. In the result I come to the conclusion that in killing the deceased, as he did, D.W.1had the requisite subjective intention to kill, at least, in the legal sense.

The accused (D.W.1) is, in my judgment, guilty of murder as charged. He is accordingly convicted.


Extenuating Circumstances


Having convicted the accused of murder, as charged, the court is enjoined by the provisions of section 296 of the Criminal Procedure and Evidence Act 1981 to determine the existence or otherwise of factors that tend to reduce the moral blameworthiness of his act. In this regard there was evidence that the accused was employed as a security guard at the Ying Yong supermarket. Whilst he was going about his duties the accused noticed the deceased stealing and eating biscuits, in the supermarket. When he confronted him about it, the deceased denied to have stolen the biscuits. In my view, that was highly provocative to the accused person. Provocation


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is a factor to be properly taken into account in determining the existence of extenuating circumstances (Rex vs Mamolumeli Molefe CRI/T/47/92 p. 13 unreported).


In convicting the accused of murder the court found that he had not premeditated or planned to kill the deceased. His intention to kill was merely in the legal sence i.e. what is commonly known as dolus eventuates. It is trite law that the absence of premeditation is also a factor tending to reduce the moral blameworthiness of the accused's act.


In the result, I find that there are, in this case, extenuating circumstances. The proper verdict is, therefore, that the accused is guilty of murder, with extenuating circumstances.


Both my assessors agree with this finding.


Sentence


Mr. Tlali, who represents the Crown, in this case, informed the court that the accused had no record of previous convictions. He is, therefore, regarded as a first offender - A factor which the court took into consideration in assessing the appropriate punishment for the accused person.


In mitigation of the accused's punishment, Mr. Fosa, counsel for the defence, invited the court to consider a number of factors. They have been tabulated and eloquently argued by the defence counsel. There is, therefore,


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no need for me to go over them again. Suffice it to say they have, all been taken into account for the benefit of the accused person.


The court is, however, not prepared to turn a blind eye to the seriousness of the offence with which the accused has been convicted. He has deprived another human being of his life. The life of a human being is God-given and, for that reason, sacred. It is the Divine command that "thou shall not kill." The accused is no exception to that command. If he thought the deceased had wronged him, his duty was to bring him before the courts of law where their dispute would be settled in a civilized manner. Certainly not to take the law into his own hands and kill the deceased.


There is a need to impose a sentence that will serve as a lesson to the accused and people of his mind that the courts of law do not encourage the sort of behavior as the one against which he (accused) has been convicted. In the circumstances, the accused is sentenced to serve a term often (10) years imprisonment, without an option of a fine.


B.K. MOLAI

JUDGE


19/10/04


For Crown : Mr. Tlali

For Defence: Mr. Fosa