R v Mohloai (CRI/T 7 of 95) [2000] LSCA 21 (14 February 2000)

IN T HE H I GH C O U RT OF L E S O T HO In the matter between CRI/T/7/95 R EX vs M O H L O AI M O H L O AI J U D G M E NT Delivered by the Honourable Mr Justice S. N. Peete on the 14th February 2 0 00 T he accused a m o s o t ho m a le adult aged about sixty years is charged with the crime of murder it being alleged that u p on or bout the 1st d ay of M a r ch 1 9 91 a nd or near Ha N t h o a n y a na - Matelile in the district of Mafeteng, the accused did unlawfully a nd intentionally kill Khothatso Seleke. He pleaded not guilty to the killing; he tendered a plea to assault c o m m on but this w as rejected by the crown. Mr M d a, counsel for the accused, then admitted all the preparatory examination depositions of P. W.1, P . W . 2, P . W . 3, P. W.4, P. W.5, P. W.6, P . W . 7, P . W .8 and P. W.9. T he defence dispensed with the reading of these depositions a nd the court h o w e v er directed that the depositions be photocopied and be supplied to Assessor Mr K h o b o ko as they n ow formed part of the record of the case. T he admitted evidence s h o w ed that one the 1st day of M a r ch 1991 at Ha N t h o n y a na village, a squable arose between the deceased and the wife of the accused M p h e ng over s o me m o n ey which deceased had apparently given to one Moleleki with instructions to give to his children. T he deceased w as in such a fighting m o od that M p h e ng rushed into a house of P. W.3 Ithabeleng M a k h a b a ne and locked herself therein. P. W.3 then ordered s o me children to run to the h o me of the accused and m a ke a report. Later P. W.5 Eliza M o q u lo passed by and P. W.3 asked her to escort the deceased a w a y. She succeeded to do so. T he accused then arrived and shouted at Eliza saying; "Eliza, wait with that person of yours." She stopped but asked the deceased to run a w ay because the accused sounded very angry. T he deceased began running and the accused pursued h im until they disappeared from view. P. W.2 M a m a k h o oa M a n o sa s aw the accused chasing the deceased and s aw w h en the t wo m en grappled. She s aw w h en the accused pull the cane stick of the deceased and hit h im with it. T he deceased w as seen warding off the blows with his arms. T he deceased followed the accused d e m a n d i ng his stick but soon fell d o w n. People c a me and transported h im h o me in a wheelbarrow. He had knife w o u n ds on the neck and waist. P. W.4 stated that he s aw the accused behind the deceased and heard h im loudly d e m a nd " H ow long have I reprimanded y ou for my wife?" He says he s aw the accused assault the deceased with a stick on the thigh. T he h e a d m an then called the accused w ho then explained that the fight w as caused by the attack the deceased had m a de on M p h e ng and that he had stabbed the deceased with a knife because the deceased grabbed his testicles. He handed an okapi knife and a cane stick to the h e a d m a n. A postmortem examination w as carried out by Dr Mario Drechsel on the 5th M a r ch 1991 and he w as of the opinion that death w as due to a stabwound under the left armpit causing intrathoracal bleeding into the left lung; he opined that a sharp instrument like a knife could have been used with a considerable force. It w as also c o m m on cause that the accused w as arrested by D/Trooper K o e na on the 2nd March 1991. T he trooper also examined the body of the deceased and noticed an open w o u nd on the left side of the neck and another w o u nd on the left side of the waist. T he crown closed its case after which the accused then gave evidence in his o wn defence upon oath. He informed the court that he is an illiterate peasant farmer and had g r o wn up with the deceased. He says that on the day the deceased met his death he had been sitting at his h o me peacefully eating peaches with his okapi knife w h en a young boy from P. W.3 arrived reporting that the deceased had barricaded his wife M p h e ng and had assaulted her. He says he jumped up and rushed towards P. W.3's house and along the w ay he met his wife M p h e n g. She w as crying and explained that deceased had assaulted her. Along the w ay he then saw the deceased with Eliza crossing a rivulet. He shouted at Eliza to stop the m an but Eliza urged deceased to run away. A chase began. He told the court that he w as chasing the deceased in order to ask him w hy he had been assaulting his wife. He says he w as very angry "I w as very angry -I could die". W h en he caught up with him he says he asked him w hy he had been assaulting his wife - the deceased vouchsafed him no reply but then turned to attack him with his cane stick. He says he warded off the blows using his hands and caught hold of the deceased w ho then suddenly grabbed his testicles very tightly. He says he felt extreme pain which caused him to b e c o me dizzy, he felt he w as going to die. He then took out his okapi knife, opened it single handedly with his left a rm (he demonstrated this to the court) and then stabbed the deceased. He says he then m a n a g ed to get hold of the cane stick a nd b e g an swinging it at the deceased w ho w as still approaching. He then told the court that on previous occasions the deceased h ad molested a nd assaulted his wife and that the family councils a nd the chief had intervened to no avail. He further states that m o st villagers w e re in great fear of the deceased. U n d er cross examination it w as suggested to h im that he h ad not stabbed the deceased in self-defence but because he w as angered by the conduct of the deceased w ho w as even alleged to h a ve been carrying an illicit affair with M p h e n g. He denied ever uttering the w o r ds "For h ow long h a ve I reprimanded y ou for my wife." Mr N ku candidly conceded that the evidence did not support a charge of m u r d er but that of culpable homicide because it w as the killing under provocation. Ms N ku contended that the deceased grabbed the testicles of the accused because the accused w as attacking him. That m ay be so but we have no direct evidence of the circumstances under w h i ch the stabbing occurred; we only have the version of the accused. In the case of R. v . M o h l e r e pe - 1 9 79 (1) L LR 14, late M o f b k e ng J. held that w h e re there are t wo mutually destructive versions presented to the court the test to be applied in such a situation is simply that the court m u st be satisfied, on adequate grounds that the version it accepts is true a nd the other false; a court is not entitled to convict an accused person merely because his explanation is improbable. It will only do so if b e y o nd reasonable doubt it is false. An accused person should not be convicted merely because he is a liar. In the present case, it appears that m o st c r o wn witnesses s aw the fight from a distance because no o ne of t h em ever s aw a knife being brandished or being used. We only h a ve the version of the accused and there are no adequate grounds - without speculating - to reject the accused's version as false. That he w as grabbed with his testicles by the deceased is rendered e v en m o re probable by the report he is alleged to have m a de to his chief. Mr M da also referred to the case of R ex vs Lerato Phatsoane - CRI/T/6/91 (unreported) a case factually similar to the present case and submitted that there is a reasonable possibility that the accused's version m ay substantially be true. In the cited case K h e o la C. J. acquitted the accused because the c r o wn had failed to prove its case b e y o nd reasonable doubt. In the present case the stabbing m u st h a ve occurred at a close encounter and w as not seen by the by-standers; it is reasonably possible that w h en he stabbed the deceased, the latter w as holding or pulling the testicles of the accused. T h e re is no adequate grounds to reject this as being false and to convict the accused even on a competent verdict of culpable homicide. T he truth of the accused's version is reasonably possible a nd has not b e en p r o v en false by the crown. T he accused is found not guilty and discharged on the m u r d er charge. T h e se is h o w e v er uncontroverted evidence that the accused lashed the deceased; with a cane stick - He has also pleaded guilty to assault c o m m on at the beginning of the trial - a plea w h i ch w as rejected by the c r o w n. T he court finds h im guilty of assault c o m m o n. Mr M da then pleaded in mitigation pointing that his client w as a first offender and h ad s h o wn remorse in pleading guilty to assault c o m m o n. We agree. Sentence: Six m o n t hs imprisonment or Ml 00.00 wholly suspended for three years on condition that the accused is not found guilty of an offence involving violence to person for w h i ch he is sentenced to six m o n t hs imprisonment without an option of a fine. S. N. P E E TE J U D GE For Crown For Respondent : : Ms Nku Mr Z. Mda