R v Sephapo (CRI/REV 199 of 90) [1990] LSCA 124 (1 August 1990)

CRI/REV/199/90 IN THE HIGH COURT OF LESOTHO In the m a t t er of : R EX V RALITAPOLE SEPHAPO J U D G M E NT Delivered by the H o n. M r. Justice M . L. Lehohla on the 1st day of A u g u s t, 1990. The accused was charged before the Teyateyaneng Subordinate Court with the crime of assault with intent to do grievous bodily harm. The victim was P. W.1 Tsiloko Qoai a 50 year old m an w ho according to t he medical report was wounded all over the f a ce and head. He suffered laceration of the scalp and both his eyes were ruptured through use of a blunt object wielded with severe f o r c e, Needless to state the complainant sustained loss of sight in both e y e s. The assault was effected on 8th October 1989 at or near Ha Nkhahle in the district in question. When this m a t t er came on automatic review from the Subordinate Court which had convicted t he accused as charged and imposed a six /year year prison term, this Court ordered that the accused should come prepared to argue why in the event that the conviction is confirmed the sentence should not be appreciably enhanced. The court below gave a proper evaluation of P. W.1's evidence. P. W.1 was the only eye witness to the assault, before he went blind. He testified to its cause, course and result. The terminal portion of the assault was testified to by P. W.2 who was attracted to the scene by someone crying "Ntate Ralitapole leave me alone as you have already finished m e ." P. W.2 testified that he approached the accused and P. W.1. He observed that they were holding each other fighting. Nowhere did he say he saw the accused use a stick to gouge out any of P. W.1's eyes. He testified that he observed that the complai- nant's head was covered with blood. It would seem therefore that when P. W.2 came to the scene P. W.1 was already blinded in both eyes. Taken along with the fact that P. W.2 heard the voice of someone calling out the accused's name and pleading that the accused should let him be it can safely be concluded that the caller was the complainant and that the fight attested to by P. W.2 was in fact not a fight in the sense of both people exchanging blows but a struggle in which a blinded party was desparately clutching at his assailant to stop him effecting further damage. I would reject therefore the argument that it would appear the fight had to be going on when P. W.2 came to the scene because the accused was defending himself. How -? From a blind man -? My view is based on the fact that when the first eye had been ruptured P. W.1 must have been doubled up with pain to the extent that he was effectively put out of the fight. Thus there was no need to rupture his second eye by means of poking at it. Poking at the eye conveys to me a deliberate act calculated at blinding one's victim. /P. W.1 P. W.1 testified that he was riding on horseback when t he accused came and walked along side t he right side of P. W.1's m o u n t. P. W.1 was holding a horse w h i p. The accused was asked by P. W.1 why he spoke about P. W.1's daughter who had eloped to M a c h o a b o l e n g. The accused took offence and swore at P. W.1. P. W.1 turned his head to f a ce the accused who hit P. W.1 on the forehead with a stick and spilled him to t he ground. When P. W.1 tried to rise the accused poked at P. W.1's eye with a stick. P. W.1 fell backwards and when he tried to sit up t he accused poked at P. W. 1's remaining eye and effectively blinded him. Then t he accused continued belabouring him until P. W.1 heard a woman's voice pleading that the accused should let go of P . W . 1. The court below believed P . W . 1. S ee section 2 38 of our C. P. & E A ct 9 of 1981. In his evidence t he accused gave a garbled account of the encounter which in my view was properly rejected by t he trial m a g i s t r a t e. The accused failed to say why he never put to P. W.1 that P. W.1 had waylaid him. He failed to say why he never put to P. W.1 that P. W. I had insulted him. He failed to put to P. W.1 t he fact that P. W.1 had whipped him. He did not gainsay P. W.1's version that t he accused felled him from his mount with a stick blow to t he forehead. Accused's counsel attributed these failures to t he fact that t he accused was n ot represented and is unsophisticated. But in C of A (CIV) N o. 5 of 1988 Letlatsa vs Letlatsa (unreported) at 5 Schutz P. said : "Mr. Maqutu claimed that this happened because of the inexperience of the cross-examiner. This may or may not be s o, but if he was inexperienced that fact should not be visited on t he plaintiff." It is worth mentioning that t he learned Judge in that c a se warned against ".....turning the rule in Small vs Smith 1954(3) 4 34 (SWA) on its head. The rule exists because it is only fair to t he w i t n e s s, and to t he party calling him, that the /witness - - witness be given an opportunity to comment and perhaps to rebut the (other's) version and because the party calling the witness is entitled to know which facts are in issue and which n o t ." I am not unmindful of that learned Judge's statement of the law in C of A (CRI) 7 of 1989 Naro Lefaso vs Rex (unreported) at 7 to 8 that "Indeed it was not put to the two eye witnesses even that the appellant had not been at the scene of the c r i m e. The need f or the defence to put t he salient parts of the defence case to the relevant crown witnesses has been stressed by this Court over and over a g a i n. One reason for putting the defence version is to give the crown witnesses a chance to counter it. Another is that crown counsel is entitled to assume that a fact is not in issue if it has been deposed to and is not challenged in c r o s s- examination. There is no call on prosecuting counsel to call further witnesses to prove a fact which is not in issue. From an accused person's point of view failure to reveal his version before he gives evidence leads to the natural inference that he has concocted a version at the last m i n u t e, even though such an inference should not always be d r a w n ." This is one such occasion when it should be d r a w n. The accused's life w as in no danger at all when he embarked on this savage attack that has resulted in the victim being blind for life, saying nothing of the pain that he must have suffered in the p r o c e s s. Even assuming the accused was threatened with a horse w h i p, that did not justify the savage maiming of another for life. I accordingly confirm the verdict of the court below but set aside the sentence on grounds of manifest inadequacy and in substitution thereof impose an imprisonment term of eight (8) y e a r s. J U D G E. 1st A u g u s t, 1 9 9 0. For Crown : Miss Moruthoane For Defence : M r. Fosa.