R v Masilo (CRI/T 3 of 90) [1990] LSCA 63 (8 March 1990)

IN T HE HIGH C O U RT OF L E S O T HO C R I / T / 3 / 90 In t he M a t t er of : R EX v LICHABA MASILO J U D M E N T Delivered by t he H o n. M r. Justice B. K. Molai on t he 8th clay of M a r c h, 1990. Held at Q u t h i ng T he accused appears b e f o re me charged w i th t he c r i me of m u r d er on t he f o l l o w i ng a l l e g a t i o n s: "On or about 2nd J u n e, 1988 and at or near Daliwe Ha Setsumi in t he d i s t r i ct of Q u t h i n g, t he said accused did u n l a w f u l ly and intentionally kill 'Makhothatso R a l e a o a ". When t he charge was p ut to him, t he accused pleaded not g u i l t y. At t he c o m m e n c e m e nt of t he trial M r. Z. M d a, w ho represents t he a c c u s e d, informed t he c o u rt t h at t he d e f e n ce w o u ld a d m it t he d e p o s i t i o ns of Lejone R a l o a o a, 'Mahopolang M a s i l o, Lenka R a l e a o a, Tper M o s he and D/Tper Kolobe w ho were r e s p e c t i v e ly P . W . 2, 3,4,5 and 6 at t he p r o c e e d i n gs of t he Preparatory E x a m i n a t i o n. M r. Mokhobo for t he crown a c c e p t ed t he a d m i s s i o ns m a de by t he d e f e n ce c o u n s e l. 2/ In t e r ms of -2- In terms of the provisions of S.273 of the Criminal Procedure and Evidence Act. 1981. the depositions of Lejone Raleaoe. 'Mahopolang Masilo, Lenka Raleaoa, Tper Moshe, and D/Tper Kolobe were admitted in evidence. It w a s, therefore, unnecessary to call the deponents as witnesses in this trial. By consent of both counsels the post mortem examination Report was handed in from the bar as Exhibit "A". It was likewise unnecessary to call the medical doctor who had performed the autopsy as a witness in this trial. In as far as it is relevant, the evidence of Tper Moshe was to the effect that on 2nd June, 1983 he received a report as a result of which he proceeded to the village of Ma-Aoweng in the area of Daliwe Ha Setsumi where he found the dead body of the deceased lying in the village. He examined the body for injuries and found that it had sustained a single wound on the left side of the chest. He caused the body to be carried to a spot next to the public road where it was taken away in a police vehicle on the following day. This is confirmed by Lenka Raleaoa who testified that he accompanied the body of the deceased to the spot next to the public road and then to Ralebona clinic. From the clinic he accompanied the deceased's body to the mortuary at Quthing Government hospital. It sustained no additional injuries whilst it was being transported from the village of Ma-Aoweng to the mortuary. I shall return to the evidence of Lenka Raleaoa later in this judgment. According to the post-mortem Examination Report (Exh A ), on 6th June, 1988 a medical doctor, at Quthing Government hospital, performed an autopsy on a dead boy of a female African adult. The 3/ body was -3- body w as identified as t h at of t he d e c e a s e d, 'Makhothatso R a l e a o a, by Seabata Raleaoa and Lejone Raleaoa. This is confirmed by Lejone Raleaoa w ho testified that the d e c e a s ed was his w i fe and t he accused his b r o t h e r - i n - l a w. The accused's sister w as married to his elder b r o t h e r. On 2nd J u n e, 1988 he noticed the accused standing on t he forecourt of a house b e l o n g i ng to h is (Lejone R a l e a o a ' s) e l d er b r o t h er in t he v i l l a ge of Ma-Aoweng. He invited t he accused to t he feast which w as being hosted by one Bonang in t he v i l l a g e. The accused o b l i g e d. Shortly t h e re after the two men were j o i n ed by the deceased. The trio t h en walked together to the place of the f e a s t. I shall return to the e v i d e n ce of Lejone Raleaoa in a m o m e n t. The external e x a m i n a t i on of t he deceased's body by the medical doctor revealed that t he body had sustained a superficial laceration below t he (R) e y e, a 1 cm long sharp e d g ed w o u nd on the insertion (beginning) of t he 3rd rib on t he left side of t he c h e s t. T he wound had cut the cartilage of t he 3rd rib through the sternum or breast bone. On o p e n i ng t he body t he medical doctor found t h at t he wound on t he chest had penetrated into t he h e a r t, severing t he right ventricle. The pericardial sac w as filled with blood some of which was also found in t he left s i de of t he chest cavity. From t h e se findings t he medical doctor formed the o p i n i on that death w as due to sudden h e a rt failure which had o c c u r r ed instantly as a result of t he severing of the (R) ventricle of t he h e a r t. The injuries w e re c o n s i s t e nt with t he use of a sharp instrument. 4/ I c an t h i nk -4- I can think of no good reasons why t he opinion of t he medical doctor t h at the deceased died as a result of t he chest injury should be doubted. T h at b e i ng s o, t he salient q u e s t i on is whether or not t he accused is t he person w ho inflicted t he injury upon t he deceased and, t h e r e f o r e, brought about her death. In t h is regard, P. W.1, ' M a m o t s e ko K o t e l o, told t he court t h at on t he day in q u e s t i o n, 2nd June, 1988, she attended t he feast t h at w as h o s t ed by Bonang in t he village of M a - A o w e ng at D a l i w e. Save for about an hour when at 5 p.m. her father called her to his h o u s e, she spent virtually t he w h o le day at t he feast with the deceased who w a s, in f a c t, t he w i fe of her parternal u n c l e. At about between 8 p.m. and 9 p.m. she and t he deceased w e nt to fetch beer from t he latter's house w h i ch w as s o me d i s t a n ce away from t he place where the feast w as held. On the way t he accused who had apparently been following t h em called at the deceased and demanded that she should stop or c o me to him. The deceased ignored the a c c u s e d 's demand and t he t wo w o m en simply continued on t h e ir way to her h o u s e. They t o ok t he beer to t he p l a ce w h e re t he feast was held. On t he way back to t he p l a ce of t he f e a s t, P. W. 1 and the deceased found t he accused still waiting at t he spot w h e re t h ey had left him on t h e ir way to t he d e c e a s e d 's h o u s e. The accused again called at the deceased and angrily told her to stop. Because of the rude m a n n er in which t he accused told t he deceased to s t o p, P.w.1 suggested to her that she should run away - A suggestion which w a s, h o w e v e r, d e c l i n ed by t he deceased who told P. W. I that she knew t he accused w o u ld beat her up if she dared ran away. The accused t h en c a me to the t wo w o m en and violently caught hold of the deceased. 5/ According to -5- According to h e r, P. W.1 left t he accused and t he d e c e a s ed t o g e t h er and continued alone to t he h o u se w h e re the feast w as held, j u st a short d i s t a n ce a w a y. She had hardly entered into the house w h en she heard an alarm being raised from the| d i r e c t i on in w h i ch she had left t he accused and t he deceased. She and m a ny o t h er people rushed to t he s c e n e. On arrival at the spot where she had left t he accused violently h o l d i ng t he deceased P. W. I found t he latter lying p r o s t r a te on t he g r o u n d. She w as a l r e a dy dead Now, coming back to his e v i d e n c e, Lejone Raleaoa further t e s t i f i ed t h at some t i me a f t er h e, the deceased and the accused had c o me to t he p l a ce w h e re t he feast w as h e l d, he had the o c c a s i on to go to the home of one Seabata Raleaoa in t he v i l l a g e, leaving t he accused and t he deceased at t he f e a s t. Whilst at t he h o me of S e a b a t a, he heard scream as a result of which he rushed in t he direction from which the s c r e am c a m e. When he reach a certain spot on t h at d i r e c t i on he found t he deceased lying p r o s t r a te on t he g r o u n d. She was already dead. Returning to h is e v i d e n c e, Lenka Raleaoa further testified t h at on t he e v e n i ng in q u e s t i on he w as at his home w h en he received a certain report from Bonang, w ho w a s, h o w e v e r, not called as a witness in this t r i a l. Following the r e p o r t, he raised an alarm and rushed to t he spot w h e re t he deceased W as found d e a d. As a result of t he alarm many p e o p le came to t he s c e n e. He subsequently reported t he matter to the c h i ef and t he p o l i c e. D/Tper Kolobe testified t h at on 28th July, 1988 he w as stationed at Mt. Moorosi w h en he received a m e s s a ge following which he c a me d o wn to Quthing p o l i ce s t a t i o n. At t he p o l i ce station he 6/ m et t he ...... -6- met the accused who gave him a certain explanation as a result of which he and the accused proceeded to a place called Ha Piti. He reported himself to the chief of the area. A messenger was detailed to accompany him to the home of 'Mahopolang Masilo. From the horns of 'Mehopolang the accused produced a knife which he handed over to the police officer. This is confirmed by 'Mahopolang Masilo according to whom the knife was the property of the accused. The accused gave evidence on oath in his defence and his version was completely different from that of Lejone Raleaoa and P. W.1. First of all, it is common cause that the accused lives in a neighbouring village to that of Ma-Aoweng. According to him, the accused spent greater part of the day in question at the house of Lejone Raleaoa who, as it has already been pointed out earlier, is his brother in- law. He was drinking beer in the company of Lejone Raleaoa himself, the deceased and P. W.1 It is. however, worth remembering that in his evidence, Lejone Raleaoa testified that it was only in the evening of the day in question, 2nd June, 1988, that he noticed the accused standing on the forecourt of his elder brother's house in the village of Ma-Aoweng. It was only then that he invited the accused, not to his house but to the place of the feast. The evidence of Lejone Raleaoa contradicted, therefore, the accused's story that he had spent greater part of the day in question drinking beer with him at his house. Furthermore, the; accused's story was in that regard also con tradicted by the evidence of P. W. I according to whom she was with the deceased at the feast hosted by Bonang on the day in question. Indeed, It is significant to mention that in her evidence P. W. I testified, on oath, that she was a close relative of Bonang and did not drink alcoholic beverages at all. As her close relative- she had a family duty to assist at the feat that was being hosted by 7/ Bonang -7- Bonang. The accused's suggestion that she could have spent greater part of such a day drinking beer at the house of Lejone Raleaoa w a s, therefore, preposterous. I must say I find it unconvincing that both Lejone Raleaoa and P. W. I would fabricate against the accused on such apparently innocent issue. The truth of the matter is that the accused's story that he spent greater part of the day in question drinking beer with P. W.1, the deceased a nd Lejone Raleaoa at the letter's house is nothing but a figment of his imagination which I have no hesitation to reject as false. Be that as it may, the accused did concede that later on the day in question, he went to the place where the feast was held. He conceded further that whilst drinking at the feast, Leione Raleaoa went to the house of Seabata Raleaoa in the village of Ma-Aoweng leaving him and the deceased at the feast. At about 10 p.m. P. W. I and the deceased left the place of the feast to fetch beer from the latter's house. At that t i me he too left for his home village. As he was very drunk and walking slowly he arrived home at 2 a.m. i.e. it took him four(4) hours to reach his house in the neighbouring village which according to him was more or less 6 kilomenters ( i n d .) from the village of Ma-Aoweng. It is perhaps convenient to mention at this juncture that in view of the fact that the accused had clearly testified that he had left the village of . Ma-Aoweng at 10 p.m. and arrived home at 2 a.m. he was asked whether he could read a watch. He replied in the negative and was quick to elaborate that the watch he was wearing on his wrist w as nothing but a mere decoration. I considered it incredible that the accused who could not read a watch, as he wanted this court to believe, would be so positive that he left Ma-Aoweng at 10p.m. and 8/ arrived at his -8- arrived at his home village at 2.00 a.m. There is n ot t he slightest doubt in my m i nd t h at t he accused is a liar of t he first o r d e r. In any e v e n t, w h at is of importance in t h is c a se is t h at in his e v i d e n ce t he accused d e n i ed P. W.1's story t h at w h en s he and t he d e c e a s ed w e nt to fetch beer at t he l a t t e r 's h o u se he followed thorn and c a l l ed at t he d e c e a s ed to stop or c o me to h i m. He in fact raised t he d e f e n ce of alibi and s a id he w a s, at t he t i m e, on h is w ay to h is h o me v i l l a g e. He could n o t, t h e r e f o r e, h a ve been at t he spot P. M.1 alleged he w a s. I am mindful of t he fact that the e v e n ts which P. W.1 says t o ok p l a ce at t he t i me s he and t he d e c e a s ed w e re f e t c h i ng b e er f r om t he latter's house o c c u r r ed d u r i ng t he n i g ht w h en t h e re w as no light and the vicibility was not all t h at good. It i s, t h e r e f o r e, b a s i c a l ly a q u e s t i on of w h e t h er or not P. W.1 had a good opportunity, to identify t he accused. It w a s, h o w e v e r, c o m m on c a u se that P. W.1 and t he accused had known e a ch o t h er well for m a ny y e a r s. Indeed, in his o wn mouth t he accused told t he c o u rt t h at P. W. I w as a o ne t i me fiance of his o wn e l d er b r o t h er w h o, however, t u r n ed d o wn t he r e l a t i o n s h ip on the influence of his p a r e n t s. P. W. 1 t h en b l a m ed h im for t he break d o wn of t he r e l a- t i o n s h i p. Of c o u r s e, P. W.1 denied t he accused's story t h at any such r e l a t i o n s h ip e v er existed between her and his e l d er b r o t h er and t o ld t he c o u rt t h at t he a c c u s e d 's story w as just a n o t h er of his park of lies b e f o re t h is c o u r t. Apart f r om t he fact t h at t he accused and P. W.1 knew each o t h er w e l l, it must be b o r ne in m i nd that a c c o r d i ng to t he latter s he and t he deceased t w i ce m et t he accused on t h e ir w ay to and f r om t he d e c e a s e d 's h o u s e. On both o c c a s i o ns t he accused spoke to the d e c e a s ed in t he presence of P. W.1. That b e i ng s o, it 9/ seems to me -9- seems to me that P. W.1's chances of mistaken identity were greatly reduced for in my view, one does not need light to identify a person by his voice if one knew the voice of that person well. In the present case, I have no doubt that as acquaintances of many years both the accused and P. W.1 know each other well, not only facially but also by their voices. When the accused spoke to,and eventually caught hold of,the deceased, P. W.1 was so close to them that it would be unreasonable to suggest that she could have mistaken the identity of the accused by his voice. I am prepared, therefore, to accept as the truth P. W.1's story that she positively identified the accused, at least by his voice, as the person who called at the deceased to stop i.e. at the time she and the deceased were going to the latter's house and at the time they were returning from the deceased's house when he (accused) violently caught hold of the deceased and, in a rude manner, told her to stop or come to him. I reject as false, therefore, the accused's denial and his version that he was, at the time, on his way to his home village. True enough, there is, in this case, no direct evidence that the accused is the person who inflicted up the deceased the injury that brought about her death. There is, however, plenty of circums- tantial evidence which I accept, that the accused is the person who on the first occasion called at the deceased and demanded that she should stop. When the deceased failed to respond to his demand the accused was the person who, on the second occasion, angrily called at the deceased and, in a rude manner, again told her to stop. He was eventually seen manhandling the deceased who, shortly, thereafter, was found fatally injured at the very spot where the accused had been vilently holding her. The accused himself had 10/suddenly -10- disappeared into thin air. Indeed, the accused subsequently took the police officers to the home of 'Mahopolang Masilo from where he produced a knife which was admittedly his property. From all this circumstantial evidence, it seems to me reasonable to infer that the answer to the question I have earlier posted viz. whether or not the accused is the person who inflicted upon the deceased the injuries that brought about her death must be in the affirmative. That being so, the only question that remains for the determination of the court is whether or not in assaulting the deceased as he did the accused had the requisite subjective intention to kill. It is clear from the evidence I have accepted that the accused assaulted the deceased and inflicted upon her a fatal wound on the chest, which is a vulnerable part of a human body. When he thus assaulted the deceased on the upper portion of the body the accused was aware that death was likely to occur. He nonetheless, acted reckless of whether or not it did occur. Consequently, I have no alternative but to come to the conclusion that in assaulting the deceased as he did, the accused had the requisit subjective intention to kill, at least in the legal sense. I accordingly find him guilty of murder as charged. Both my assessors agree with this finding. ' • v. • B. K. Molai. JUDGE 8th March, 1990. For Crown : Mr. Kokhobo For Defence: Mr. Z. Mda. - 1 1- EXTENUATING C I R C U M S T A N C ES I H a ve already c o n v i c t ed t he a c c u s ed p e r s on of m u r d er and the court is n ow e n j o i n ed by Section 2 96 of t he Criminal Procedure and Evidence A c t, 1981 to s t a te w h e t h er or not there are e x t e n u a t i ng c i r c u m s t a n c e s, v i z. factors w h i ch t e nd to reduce the moral b l a m e- w o r t h i n e ss of the accused's a c t. IN this regard t he court h as been invited to consider the y o u t h f u l n e ss of t he a c c u s e d. It is a l l e g ed that at the t i me of the commission of this o f f e n ce he w as o n ly e i g h t e en y e a r s. It i s, h o w e v e r, s i g n i f i c a nt t h at as s he t e s t i f i ed on o a th b e f o re t h is c o u r t, P. W.1 kept on referring to t he a c c u s ed as " A b u t i" a t e rm w h i ch suggests that the accused is o l d er t h an h e r. The accused h i m s e lf has not d i s p u t ed that P. W.1 is y o u n g er than him. Indeed, at o ne t i me he referred to her as " n g o a n a n y a n e" - a diminitive of the w o r d " n g o a n a n a" - thus suggesting that P. W. I is y o u n g er than h i m s e l f. P. W.1 h a s, h o w e v e r, told t he court t h at her age is t w e n t y - s ix y e a r s. If he w e re o l d er t h an h e r, t he accused c a n n o t, in my v i e w , be e i g h t e e n. In a ny e v e n t, t he q u e s t i on of t he e s t i m a t i on of t he accused's age is a m a t t er which is e n t i r e ly w i t h in t he court's a s s e s s m e n t. Although t he accused t o ld t he court that he is e i g h t e en years o l d, it is to be o b s e r v ed t h at according to the c h a r ge sheet he is t w e n ty years o l d. I have m y s e lf looked at t he accused and assessed his age as around t w e n t y - f i v e / t w e n t y - s e v en y e a r s. For purposes of e x t e n u a t i ng c i r c u m s t a n c es a y o u th is a person who is eighteen years and below. In my assessment t he accused is far o l d er t h an t h a t. Although t he accused is still relatively y o u n g, I am not p r e p a r ed to treat h im as a y o u th of about e i g h t e en or b e l o w. 1 2/ There w as -12- There w a s, h o w e v e r, e v i d e n ce that the accused had been d r i n k i ng on the day in q u e s t i o n. T h e re was a feast in the village of M a - A w e n g. The accused attended t he feast and w as seen at least by Lejone Raleaooa, drinking at the f e a s t. The e v i d e n ce of Lejone Raleaooa is corroborated by t he accused h i m s e lf who also t e s t i f i ed that he had been drinking beer at the f e a s t. A s s u m i ng the correctness of the e v i d e n ce t h at the accused had been drinking beer at the feast it stands to reason t h at t he beer must h a ve affected his mind and w a s, t h e r e f o r e, intoxicated on the day in q u e s t i o n. It is common k n o w l e d ge t h at w h en p e o p le are intoxicated after taking a l c o h o l ic beverages t h e ir minds are so affected that they do t h i n gs they would not do when s o b e r. It is t r i te law that intoxication is a factor that can properly be t a k en into account for p u r p o s es of e x t e n u a t i ng c i r c u m s t a n c e s. As M r. M d a, counsel for t he d e f e n c e, has rightly pointed out- there is no e v i d e n ce indicating t h at the a c c u s ed had planned or p r e- m e d i a t ed t he death of the deceased. The absence of premeditation is, in law, a factor that can properly be t a k en into account as e x t e n u a t i ng c i r c u m s t a n c e. In t he c i r c u m s t a n c e s, I c o me to t he c o n c l u s i on t h at t h e re are e x t e n u a t i ng c i r c u m s t a n c es in this c a s e. v i z. intoxication and t he absence of p r e m e d i t a t i on of t he deceased's d e a t h. The proper v e r d i ct is, t h e r e f o r e, t h at the a c c u s ed is guilty of m u r d er w i th e x t e n u a t i ng c i r c u m s t a n c e s. S E N T E N C E: Coming n ow to t he question of s e n t e n c e, I am informed by the Crown Counsel t h at the accused has no previous c o n v i c t i o n s. I t a ke it, 1 3/ t h e r e f o r e, - 1 3- therefore, that he is a first offender The court has also been invited by M r. Z. M d a, counsel for t he defence to consider a number of factors in mitigation of the accused's sentence. He has so eloquently tabulated them that there is no need for me to go o v er them again, save to say I take them all into con- sideration. My attention was called to the words of the famous English w r i t e r, Shakespeare, that "Justice is always tempered with mercy". These are words of wisdom. However, I must at the same time point out that the court over which I am presiding is a court of Justice and not mercy. What should be of utmost consideration to the court is that the accused has been convicted of a serious offence calling for a commensurately serious punishment. I am perturbed by the fact that the accused went to a feast, where many people had gathered, carrying a knife. Far too many people have lost their lives by the use of knives in this country. If this sort of a thing were to come to a halt, it must be brought home to people like the accused that they will not be allowed to go to feasts where people are enjoying themselves after a day's hard work and butcher them with k n i v e s. It must be made abundantly clear to the accused and people of his mind that the carrying of knives is out of question when they decide to go and mix with other people at the feasts. I am aware that the accused is a relatively young man who still has many years to live. He has not been to gaol before and in all probabilities still entertains the fear that going to that place will not be a very pleasant experience. That fear will no doubt serve to guide him against mischief. One of the undesirabilities of sending a young first offender like the accused to prison is that sooner or later he will realise that our prisons are not such bad p l a c e s. They are not like the 14/ German - 1 4- German c o n c e n t r a t i on c a m ps w h e re p e o p le w e re tortured and ill-treated. We punish p e o p le by merely depriving them of t h e ir liberty. Once t h ey are w i t h in t he four w a l ls of t he p r i s o n, p e o p le are given a h u m a ne t r e a t m e n t. This may h a ve t he effect of destroying w h a t e v er fear t he accused had of going to gaol so t h at he starts boasting t h at g a o ls are built f or p e o p l e. I must e m p h a s i se to the accused and people of his mind t h at prisons are not just built for p e o p l e. One of the cardinal p r i n c i p l es behind building prisons is to r e f o rm c r i m i n a ls so t h at they can come o ut better members of society t h an when they w e re sent t h e r e. With this o b j e c t i ve in mind it is of utmost importance t h at if and w h en t he need arises to impose a custodial sentence upon a person in t he accused's situation the court m u st a l l ow sufficient t i me to e n a b le t he prison authorities to do their work of reforming t he accused e f f i c i e n t l y. In my finding t he accused has committed a very bad o f f e n ce killing a n o t h er human b e i n g. There is n o t h i ng w r o ng w i th the law of this land that prevents p e o p le from killing o t h e r s. Even in t he Divine Law it is w r i t t e n: "Thou Shalt not k i l l ." This court takes a rather dim view of people who do not hesitate to kill o t h e r s. I have t h e r e f o r e, considered it necessary to sentence the accused to a term of i m p r i s o n m e nt As it has been pointed out earlier, t he court has to be careful not to sentence the accused to prison for just a brief p e r i o d. This can have t he d i s a d v a n t a ge of enabling t he accused to be merely adversely influenced by the heart-hardened prisoners so that he cones out of prison a worse member of society than when he was sent there. With all these considerations in mind,I have c o me to t he c o n c l u s i on that a p p r o p r i a te sentence for the accused is that he should go to gaol for eleven (11) y e a r s. I accordingly sentence him. For Crown : For Defence : M r. M d a. M r. Mokhobo B. K. MOLAI JUDGE 8th M a r c h, 1990