R v Sebatana and Another (CRI/T 56 of 90) [1991] LSCA 143 (19 November 1991)

-1- CRI/T/56/90 IN THE HIGH COURT OF LESOTHO In the Matter of : R EX v 1. SEBATANA SEBATANA 2. MOETI SEBATANA J U D G M E NT Delivered by the Hon. Mr. Justice B. K. Molai on the 19th day of November, 1991. The two accused persons have pleaded, not guilty to two counts viz. murder and assault with intent to do grievous bodily harm. The body of the charge sheet discloses the following allegations: Count I : "In that on or about the 21st day of October, 1989 and at or near Ha Leqele in the district of Maseru the said accused one or each or both of them did unlawfully and intentionally kill one Mpho Masoabi." Count II: "In that upon or about the 21st day of October, 1989 and at or near Ha Leqele in the district of Maseru the said accused one or each or both of them did unlawfully and intentionally assault one Ntseka Masoabi by inflicting injuries on him with intent to cause him grievous bodily harm." -2- When the hearing of this trial started, Mr. Drametru. counsel for the defence, admitted on behalf of the accused persons the depositions of D/Tpr Mosili and D/Sgt Mokoroane who were P. W.4 and P. W.5, respectively, at the proceedings of the Preparatory Examination, Mr, Lenono. counsel for the crown, accepted the admissions made by the defence counsel. In terms of S.273 of the Criminal Procedure and Evidence Act. 1981 the depositions of D/Tpr Mosili and D/Sgt Mokoroane became evidence in this trial. By the agreement of both counsels the post-mortem examination report and the medical report compiled in respect of the deceased and the complainant in count II were also handed in, from the bar, as exhibit "A" and "B", respectively. In the course of the hearing of this trial and notwithstanding the fact that he had accepted the admissions made by the defence counsel Mr. Lenono, counsel for the crown, decided to call D/Sgt Mokoroane to testify from the witness box. It is, perhaps, worth mentioning that the defence counsel objected to the calling of D/Sgt Mokoroane as a witness in this trial on two grounds viz. that the Sergeant had been sitting in the court room whilst the other crown witnesses were giving evidence and it was not clear what evidence the witness would give besides the one he had already given at the Preparatory Examination Proceedings. -3- Assuming the correctness of the allegation that Sergeant Mokoroane had been sitting in the court room whilst the other crown witnesses were testifying before the court and had, therefore, heard their evidence, it seems to me that in itself could not render him an incompetent witness. It could only lessen the weight of his evidence. As regards the second leg of the objection this court could not be in a position to know in advance what evidence the crown wished to adduce from Sergeant Mokoroane. Only the crown counsel could know it. The court could not, therefore, properly prevent the crown counsel from calling Sergeant Mokoroane to testify from the witness box. What I considered to be of importance was whether or not the calling of Sergeant Mokoroane to testify from the witness box would prejudice the defence case. Frankly speaking, I was unable to find how the defence case would, in the circumstances, be prejudiced. The objection was for these reasons disallowed and despite the fact that his depositions at the proceedings of the Preparatory Examination had already been accepted as evidence Sergeant Mokoroane also gave evidence on oath before this court. It may be mentioned that after the crown had closed its case the defence counsel applied, on behalf of the accused persons for their discharge on the ground that the evidence -4- adduced by the crown had failed to establish a prima facie case for the accused to answer. The application was opposed by the crown counsel in whose contention the evidence did establish prima facie case. In Rex v, Thoabala 1981(2) L. L. R. 363 I have had the occasion to deal with this issue and at p. 364 et seg. said the following: "There is no law compelling a court of law to deal with the question of credibility of evidence at this juncture, unless it can be said that on the face of it the crown evidence is so hopeless that to refuse application for his discharge and require the accused person to answer the charge against which he stands charged will amount to asking him to help build the case which the crown itself has failed to establish. The test to be applied at this stage is whether or not on the face of it the crown evidence has established a prima facie case against the accused. If the reply is in the affirmative, the court is entitled to refuse the application and reserve the question of credibility to the end when the defence will have closed its case. However, this does not mean that where, at the close of the crown case, the application for the discharge of the accused is refused the defence is obliged to call the accused person into the witness box or lead any evidence at all. The defence is perfectly entitled to close its case without calling upon the accused to give evidence in his defence. It is only then that the court will be bound to deal with the question of credibility of evidence and apply the more stringent teat of proof beyond a reasonable doubt to determine whether or not the accused has committed the offence with which he is charged." I find no good reasons why I should now depart from the attitude I adopted in the above cited decision. -5- There was, in the present case, evidence that A2 was seen assaulting the complainant in Count II with the bud of a rifle he was armed with when he came to a stockfair party which was held in the village of Ha Leqele on 21st October, 1989. A1 took the police to his home in the village where he produced a knobkerrie he had allegedly used in a fight during which the deceased was fatally injured at the stockfair. Without going into the question of its credibility the evidence does, on the face of it, establish a prime facie case for the accused to answer. I have in the circumstances, turned down the application for the discharge of the accused person at the end of the crown case. I have, however, pointed out that the fact that the application is turned down does not mean that the defence is bound to call the accused persons into the witness box, or call any witnesses, to testify in their defence. The defence is perfectly entitled to tell the court that the accused persons will remain silent and close their case without leading any evidence at all. In that eventuality the court will be bound to deal with credibility of evidence and apply the test of proof beyond a reasonable doubt to determine whether or not the accused have committed the offence against which they stand charged. Following the decision of the court, the defence called the accused persons into the witness box to testify in their defence. The defence having closed its case I shall now -6- proceed to deal with the question of credibility of evidence and apply the more stringent test of proof beyond a reasonable doubt to decide whether or not the accused have committed the offenses against which they stand charged. The evidence of D/Tper Mosili, who as it has already been pointed out earlier testified as P. W.4 at the proceedings of the Preparatory Examination was to the effect that on 21st October, 1989 he received a certain report as a result of which he proceeded to a house in the village of Ha Leqele. Inside the house he found the dead body of the deceased. There was a basin containing bloody water next to where the body was lying in the house. He examined the body for injuries and found that it had sustained multiple wounds above the left eye, the left temple, the nose ridge and the lower lip. According to him, D/Tper Mosili conveyed the dead body of the deceased in a police vehicle to the mortuary at Queen Elizabeth II hospital here in Maseru. It did not sustain any additional injuries whilst it was being transported from Ha Leqele to the mortuary. The post-mortem examination report (Exh A) revealed that at about 2.43 p.m. on 24th October, 1989 a medical doctor performed an autopsy on a dead body of a male African adult at the mortuary of Queen Elizabeth II hospital. The body was identified as that of the deceased by Bothata Masoabi who has, however, not been called as a witness in this trial. -7- The external examination showed that the deceased had sustained a battered face with multiple deep lacerations on the left side. Blood was coming from the nostrils and the right eye was swollen. On opening the skull, the medical doctor found that there was extensive left subdural haematoma and a fracture of the skull extending from the left frontal to the occipital bone. From these finding, the medical doctor formed the opinion that the deceased had died as a result of the head injuries. I can think of no good reasons why the opinion of the medical doctor that the deceased died as a result of the injuries found on his head should be doubted. That being so, the salient question that immediately arises for the determination of the court is whether or not the accused are the persons who inflicted the injuries on the deceased and, therefore, brought about his death. In this regard, it is common cause that there was a stockfair party held at the home of P. W.2, Leloko Masoabi, in the village of Ha Leqele on Saturday, 21st October, 1989. P. W.2 and P. W.1, Ntseka Masoabi, who is the complainant in count II were some of the organisers of the party. -8- According to P. W.1 A1 had attended the party on the day in question, 21st October, 1989. A2 did not attend during the day. However; at about 6 p.m. he (P. W.1) was standing in the middle of the house, in which the party was held, addressing the people with whom he had organised the party. He was telling them that as it was time to close down the party they should contribute whatever money each could afford so that they could drink together the beer that had remained. That was in accordance with the practice in all the stock fair parties they had previously organised. It was whilst he was talking to the organisers of the stockfair party that A2 came into the house. He was dressed in a truck suit commonly used by members of the army in this country. As he entered into the house A2 bumped against P. W. I who staggered and asked the accused why he was bumping against him. In reply A2 said to P. W. I: "Your mother's vagina you are, what are you saying?" Before P. W. I could say anything his paternal uncle, Bothata Masoabi, asked A2 whether he knew that the person he was insulting by his mother's private parts was his child. A2 then turned to Bothata and insulted him by his mother's private parts. The deceased who had just arrived at the party also asked A2 why he was insulting people. He too was insulted by the accused. -9- After insulting P. W.1, Bothata and the deceased, A2 turned to A1 who had all the time been standing behind the door, holding a knobkerrie in his hand and peacefully drinking beer. As he turned to him A2 said to A1: "Brother, I shall be coming. It looks as if I might be beaten up by people I do not even know here." It is, perhaps, necessary to mention that P. W.1 and the deceased stayed together in a different village of Lithabaneng about 11/2 mile away from Ha Leqele. They were admittedly strangers and unknown to A2. After A2 had addressed himself to A1, he went out of the house in which the stockfair party was held. Shortly thereafter P. W. I was still standing in the house when he heard A2 again using abusive language at the door entrance: "Where is he, his mother's vagina he is! " When P. W. I turned in the direction towards Che door entrance A2, who was then wearing a blanket, poked him below the nose with the bud of a rifle he was holding in his hands. There was then a stampede at the door as people were fleeing out of the stockfair house. When A2 poked him on the nose with the bud of the rifle P. W. I caught hold of the rifle and a struggle ensued between the two men for possession of the weapon. In the course of the struggle A2 violently pushed the rifle towards P. W.1 and in so doing the rifle poked the latter on the kidney region. He fell to the floor and did not know what then happened. -10- The next thing P. W. I found that it was Sunday morning and he was in his house at Lithabaneng. The deceased with whom he shared the house was not there. The door was, however, still locked although one of the windows was left open. When he tried to get out of bed P. W. I felt pain on the kidney region and was unable to walk properly. According to him, P. W. I had been drinking a lot of a concoction known as "Sekumukumu". It is brewed with bread and potent. He had been drinking from 1 p.m. until when the commotion started at about 6 p.m.. He was quite drunk at the end of the day. Well, assuming the correctness of his evidence that he does not even know how he left Ha Leqele for his house at Lithabaneng and how he got into his house, I agree that P. W. I must have been very drunk on that day. Be that as it may, P. W. I went on to tell the court that with great difficulty he managed to get out of his house through the window that had been left open. After talking to some women he found outside the house, he went to the house of his father's sister (Rakhali) on the same site where he learned that the deceased had died at the home of P. W.2 in the village of Ha Leqele. He went to report the incident to the police who referred him to a doctor for medical treatment. It has already been stated in the course of this judgment -11- that the medical report compiled in respect of P. W. I was by consent handed in from the bar as exhibit "B", The evidence of P. W. I that A2 had poked him with the bud of a rifle is supported by exhibit "B" according to which P. W. I was found to have sustained bruises below the nose and on the kidney region. In the opinion of the medical doctor who attended to him a blunt instrument could have been used, with great force, to inflict the injuries on P. W. I. After he had received medical treatment P. W. I went to the mortuary at Queen Elizabeth II hospital where he found in, and took from, one of the deceased's pockets the key to the house which they shared at Lithabaneng. In as far as it is material the evidence of P. W. I was corroborated by P. W.2 who told the court that he was from one of his houses when he found A2 using abusive language in the house in which the stockfair party was held. He confirmed that, after he had told A1 who was standing behind the door, holding a knobkerrie and drinking beer, that he would be coming back, A2 left the house in which the party was held. He, however, returned after a short while. On his return into the house A2 started hurling insults at and poking P. W. I on the ribs with his rifle. P. W.2 conceded, however, that as there were many people in the house he could not be positive that A2 had hit P. W. I on the ribs. I have already pointed out that the evidence of P. W. I as -12- to where he was hit by A2 is supported by Exh B, the medical report compiled by the Doctor who attended to his injuries. According to him P. W.2 was, for fear of the rifle with which A2 was armed when he returned into the house in which the stockfair party was held, the first to run out. He ran to the house of his sister in the same village of Ha Leqele. He however, had to return to his house because he remembered that he had left small children still sleeping in one of his houses. On arrival at his house P. W.2 found that the people who had been at the party, including the two accused had all left. There was only the deceased who was lying on the ground outside the door of one of his (P. W.2's) houses viz. the house next to the one in which the stockfair party had been held. The deceased could neither move nor speak. He was breathing with difficulty. With the assistance of one Molahlehi who had returned to the place of stockfair party more or less simultaneously with P. W. 2 the latter was able to carry the deceased into the house. He then noticed that the deceased had sustained injuries on the left temple, the nose the lower lip and the front teeth which had been broken into the mouth. According to P. W.2 after he and Molahlehi had placed the deceased into the house many villagers gathered at his house. He then went to look for a vehicle with which to rush the deceased to the hospital for medical attention. When he -13- returned with the vehicle P. W.2, however, found that the deceased had passed away in the house. He reported the incident to a certain police woman by the name of 'Matoloane who lived in the village. He confirmed that later on the same evening police officers arrived, examined the dead body of the deceased for injuries and conveyed it to the mortuary in a police vehicle. According to P. W.2 whilst he was waiting for the arrival of the police officers he noticed that there was a pool of blood on the carpet next to where the dead body of the deceased was lying in the house. He took some water in a washing basin into which he cleaned the blood from the carpet. Although he had initially testified that he was the one who had identified the body of the deceased before the medical Doctor who performed the post-mortem examination P. W.2 later conceded that he was wrong and the truth of the matter was that Bothata did so. In his evidence P. W.2 told the court that after the deceased had been buried, he had on several occasions met A2 at the beer houses in the village when the latter suggested that rather than take this case to the courts of law the relatives of the deceased would be well advised to demand that the accused raise the head of the deceased in accordance with -14- custom (compensation). According to him P. W.2 had always declined to discuss this suggestion with A2. In their defence the two accused gave evidence on oath. A1 conceded that at about 10 a.m. on 21st October, 1989 he attended the stock fair party that was held at the home of P. W.2 in the village of Ha Leqele. Although he conceded that he was carrying a knobkerrie at the party A1 denied that he was all the time standing behind the door of the house in which the party was held. According to him he had, most of the time, been sitting outside the house about 5 or 6 paces from the door entrance. This is, of course, in conflict with the evidence of P. W.1 and P. W.2 both of whom as it has already been stated, told the court that during the party A1 was inside the house and standing behind the door. Although A1 denies that he stood behind the door during the party the evidence is, in my finding, simply overwhelming against him. I accept as the truth, therefore, the evidence of P. W. 1 and P. W. 2 that during the party A1 was standing behind the door and holding in his hand a knobkerrie whilst drinking beer. I reject as false his denial on this point. According to him, A1 neither heard A2 using abusive language nor did he see him arriving at the party. However, at about 7 p.m. his (A1's) wife arrived at the party and told him that people were fighting A2 in the house in which the -15- stockfair party was held. A1's wife has, however, not been called as a witness. What she allegedly said or did is inadmissible hearsay and of no evidential value. A1 went on to testify that as a result of what his wife told him he immediately stood up from where he had been seated outside the house and went into the house to investigate what was taking place. As he entered into the house he noticed that there was a commotion and many people were crowding around A2 in the middle of the house. He could not clearly see what those people were doing to A2. However when they noticed him entering into the house those people moved away from A2, He noticed that A2, who was holding a rifle, had sustained a wound on the forehead and another wound around the neck. He then pulled A2 by the hand telling him that they should leave that place. A1 conceded that as they left P. W.2'3 place it was already dark. If the evidence of A1 that at the time he went and pulled away A2, following the report made by his wife, it was already dark I find it incredible that on arrival the wife could have seen that the person who was being fought in the house was A2. Nor could A1 himself have, in the circumstances, positively seen that the person who was being fought in the house was A2 as he wants to impress this court. -16- In his evidence A2, who is a member of the R. L. D. F. (Royal Lesotho Defence Force) and a close relative of A1 testified that at about 5 p.m. on 21st October, 1989 he left his place of work for his home in the village of Ha Leqele. He was not wearing his army uniform. On the way home he went via a drinking place where he bought and drank several bottled beer. From the drinking place he continued on his way home. Before he could come to his house in the village of Ha Leqele A2 heard some music being played at the home of P. W.2. He went there to investigate what was taking place. It was a little after 7 p.m. On arrival at P. W.2's house A2 opened the door and entered. As he opened it, the door hit P. W. I who was apparently standing in the door way. P. W. I made an issue of the matter. A2, however, apologized and explained to P. W. I that he was not aware of him when he opened the door. Whilst A2 and P. W. I were talking to each other a certain Molahlehi came and insulted A2 by his mother's private parts. Bothata then told A2 that those were his children. In reply A2 complained about the manner in which Molahlehi was talking to him and advised Bothata to reprimand his children. Aware that they wanted to fight him A2 left the house and told P. W. I and Molahlehi that he would be coming back. Both Bothata and Molahlehi have not been called as witnesses in this trial. What they are alleged to have said -17- or done is, in my view, hearsay evidence on which I shall make no reliance. According to him when he left P. W.2's place A2 went to his house, put on a blanket and returned to P. W. I and Molahlehi. He was going to confront and ask them as to why they wanted to fight him. According to him A2 had armed himself with his duty rifle so that he could defend himself if P. W.1 and Molahlehi tried to fight him. Assuming, for the sake of argument, that P. W. I and Molahlehi wanted to fight A2, as he wishes this court to believe, it is to be observed that there is no suggestion that they were armed with any weapon. That being so, I find it unreasonable that A2 should have armed himself with a rifle with which to defend himself against people who were apparently not armed with any weapons. Be that as it may A2 told the court that when he returned to P. W.2's house he found the door thereof closed, a fact which is, however denied by P. W.1 and P. W.2 both of whom testified that the door of that house was, at all times during the stockfair party, left open. He opened the door and entered into the house. As A2 thus entered into the house someone caught hold of -18- his rifle from the back. At the same time P. W. I and Molahlehi caught hold of the barrel of the rifle from the front. A struggle then ensured between him on one side and P. W.1, Molahlehi and the person who was holding his rifle from the back on the other side, for possession of the rifle. In the course of the struggle A2 noticed a person who was holding up a stick appearing behind his attackers. That person hit him a blow on the forehead with his stick. Molahlehi then produced a knife with which he stabbed him (A2) on the neck. Whilst he was struggling with them for possession of the firearm A2 noticed his assailants suddenly leaving him. A1 then came and took him out of the house. He denied, therefore, the evidence that when he entered into the house he ever used abusive language against F. W.1 and other people in the manner described by P. W.1 and P. W.2. He denied that when he went out of the house, on the first occasion, he could have addressed himself to A1, who was not in the house, saying he would be coming back for he realised that he might be assaulted by people he did not know. In their evidence both A1 and A2 told the court that after they had gone out of the house in which the stockfair party was held they left for A2's house where Al left him and went to his own house. -19- According to A1 as he and A2 approached the gate leading out of P. W,2's premises, it was already dark. He heard foot steps of a person following them. He looked back and noticed a person holding up what appeared to be a stick. That person was about two {2} paces away from them. Initially A1 told the court that because he believed the person who was following them was about to strike A2 a blow with his stick he hit him on the chest region with his knobkerrie. Later on A1 changed and said that person actually delivered a blow with his stick on A2, He (A1), however warded off the blow with his arm and then hit that person with the knobkerrie. He had used great force to hit that person who even fell to the ground, some 35 paces away from the houses of P. W.2. When that person fell to the ground A1 did not belabour him. He and A2 continued on their way to the latter's house. The evidence of A2 was slightly different. According to him, when he and A1 approached the gate leading out of P. W.2's premises he heard people exchanging stick blows behind him. He found it was a stick fight between A1 and some people he could not recognise as he himself was bleeding and covered with blood all over. After the stick fight, he and A2 continued on their way to his (A2's) house. After explaining to him how he had sustained bleeding wounds on the forehead and the neck A2 left for his house. -20- In my view, the only reasonable explanation to the contradiction in the evidence of A1 and A2 is that they are not telling the truth in their story that as they approached the gate leading out of P. W.2's premises they were followed by a person or persons who attacked them in the manner they have described. It is to be remembered that in his evidence P. W.2 he found the deceased fallen next to one of his houses unable to move or speak because of the head injuries he had sustained. If it were true, as the accused want this court to believe, that the deceased was hit the blow that fell him to the ground next to the gate leading out of P. W,2's premises, some 35 paces away from the houses he would have been found lying next to the gate and not P. W.2's houses. In my finding the deceased was assaulted and injured at the spot where P. W.2 found him next to his (P. W.2's) houses and the accused are not being honest . with the court in their evidence that the deceased was assaulted and fell next to the gate some 35 paces away from P. W.2's houses. In any event the two accused told the court that early in the morning of the following day they went to A2's father in the village of Qoaling. It was whilst they were at Qoaling that members of the R. L. D. F. came, arrested and escorted them to the C. I. D. on the allegation that they had killed the deceased. I shall return to their evidence in a moment. -21- P. W.3, D/Sgt Mokoroane, confirmed the evidence of the accused persons that they were brought to his office by Lt II. Lelosa who was a member of R. L. D. F. It is common cause from the evidence of P. W.3 and the two accused that at the time the accused persons were brought to the C. I. D. the rifle admittedly belonging to A2 was handed in. According to him P. W.3 warned the two accused in terns of the judges' rules after which they gave him explanations. Following their explanations A1 took P. W.3 to his house in the village of Ha Leqele where he produced a knobkerrie he was allegedly armed with at the stockfair party on 21st October, 1989. P. W.3 took possession of both the rifle and the k n o b k e m e. He cautioned and charged the accused persons as aforesaid. Both the rifle and the knobkerrie have since been in the custody of the police. He handed them in as exhibits 1 and 2, respectively. P. W. 3 further told the court that he was the investigating officer in this case. As his depositions at the proceedings of the preparatory examination were accepted as evidence when the hearing of this trial commenced, he had been sitting in the court room whilst the other crown witnesses were testifying before this court. I have already stated that the fact that P. W.3 was -22- aitting in the court room whilst the other crown witnesses were giving their evidence may affect the weight of his evidence. What P. W.3 told the court from the witness box is, however not disputed by the defence. I have no reason, therefore, to doubt that he has been testifying to the truth. Returning to their evidence A1 and A2 told the court that whilst in their custody the police brutally assaulted them in an attempt to elicit a confession from them. As a result the accused sustained bleeding lacerations and weals all over their bodies. They, however, did not report to any senior police officer that they had been assaulted whilst in the police custody. Although A2's injuries on the forehead and the neck were visible the magistrate before whom they appeared for remand did nothing about it. When they arrived at the prison on remand the prison authorities asked them whether or not they had sustained any injuries. They replied in the affirmative and showed their injuries to the prison authorities who, however, did not refer them to a medical doctor for treatment or in anyway attended to their injuries. I fail to see the purpose of the prison authorities inquiring from the accused person whether or not they had sustained any injuries if when they were shown the injuries they neither referred the accused persons to a medical doctor nor afforded them any medical treatment at all. There is not -23- the slightest doubt in my mind that the accused are deceiving the court in their evidence that before they were remanded in prison they had sustained any injuries which they showed to the prison authorities. Experience has taught me that every person who has sustained injuries is either referred to a medical doctor or given medical treatment on arrival at the prison. There is no reason why A1 and A2 would have been treated differently by the prison authorities. Although A2 denies that when he returned to the house of P. W. 2 on the second occasion he used abusive language and assaulted P. W. I in the manner described by the latter the evidence of P. W. I that A2 did poke him with the bud of his rifle below the nose and on the kidney region is consistent with the findings of the medical doctor according to whose report a blunt instrument could have been used with brutal force to inflict bruises found below the nose, on the ribs and kidney region of P. W.1. I am prepared to accept as the truth the evidence of P. W. I in a way corroborated by the medical report (Exh 8) that he was assaulted in the manner he described by A2 and reject as false the latter's evidence that he did not. By poking P. W. I with the bud of a rifle on the upper portion of his body in the manner described by the evidence A2 had, in my finding the requisite intention to cause him grievous bodily harm. -24- As regards count I, in his own mouth, A1 told the court that he was the person who had inflicted the fatal head injuries on the deceased with as lethal a weapon as the knobkerrie which is exh 2 before the court. The evidence of A1 that he hit the deceased only once with exh 2 is not consistent with the testimony of P. W.2, D/Tpr Mosili and the medical doctor who performed the autopsy on the body of the deceased, all of whom found the deceased had sustained multiple injuries on the head thus indicating that the deceased had been hit at least more than once on the head. I, however, take cognisance of the fact that the assault on the deceased took place in the dark during a commotion when many people were fleeing out of the stockfair house. A1 may well have believed that the deceased and others whom A2, his brother, had been insulting were going to assault him. However, he could not, in the circumstances, have lawfully assaulted the deceased on the upper portion of his body inflicting upon him multiple wounds on his head as it is disclosed by the evidence. He had, in my opinion, acted with negligence. In the result, I return the following verdicts: Count I ; A1 guilty of culpable Homicide A2 not guilty and discharged. Count II: A1 not guilty and discharged. -25- A2 guilty of Assault with intent to do grievous bodily harm as charged. My assessor agrees. SENTENCE Having convicted A1 and A2 of culpable Homicide and assault with intent to do grievous bodily harm, respectively, it now remains for the court to decide what sentences will be appropriate for the accused persons, in the circumstances of this case. The court has been informed that the accused persons have no record of previous convictions. They are, therefore, treated as first offenders. In mitigation of the accused's sentences the court has also been invited to consider a number of factors. They have been eloquently enumerated by the defence counsel and there is no need for me to go over them again. Suffice it to say they have all been taken into account in assessing what sentence is appropriate for each of the two accused. -26- I, however, find it totally unacceptable that the accused persons should have gone to an obviously innocent party armed with lethal weapons, like Exh 1 and 2 before the court and started insulting, bulling or assaulting people for apparently no good reasons. If a repetition of this sort of a thing were to be brought to a halt there is, in my opinion, the need to impose a deterrent punishment. I would, in the circumstances, sentence A1 and A2 to serve a term of four(4) years and two (2) years imprisonment, respectively. B. K. MOLAI JUDGE 18th November, 1991. For Crown : Mr. Lenono. For Defence: Mr. Drametru.