R v Koena (CRI/T 36 of 98) [2000] LSCA 114 (16 November 2000)

CRI/T/36/98 IN T HE H I GH C O U RT OF L E S O T HO In the matter of: R EX vs M O K O T SO D. K O E NA J U D G M E NT Delivered by the Honourable Mr. G. N. Mofolo on the 16th day of November, 2000. The accused Mokotso D. M. Koena was charged of the crime of murder it being alleged that on the 20th day of August, 1995 and at or near Thamaes in the district of Maseru the said accused did unlawfully and with intent to kill did inflict a knife wound on Seabata Nyenye from which injury the said Seabata Nyenye died at Queen Elizabeth II Hospital at Maseru on the 20th August, 1995. The charge being read to the accused he had pleaded Not Guilty. Mr. Masiphole for the accused had said there were no admissions to make. The Crown had then called P. W. I (P. W.5 at the P. E.) 'Malebohang Christine Nyenye who sworn had stated she resided at Nyenye's, Maputsoe in the Leribe district. She has said in August, 1995 she resided at Thamae's, Maseru. She had known the deceased in his lifetime and his means of knowing him was that he was her husband. She had not known accused at the time he committed the crime and before today she had not seen him anywhere. The witness has testified she sees accused for the first time. She had been at the P. E. in Maseru Magistrate's court and had seen the accused in court. She recalled events of 20 August, 95 when deceased had come to Thamae's where they resided. He had taken M20-00 from her saying he was going to buy himself cold drinks. He had then proceeded to Peete Peete's place and a few minutes thereafter she had heard a gun report. 'Maitumeleng had called out to her and before responding to her call she had met deceased coming home next to Peete Peete's. Deceased had set in a furrow and had bloodstains on his chest. Deceased had laid on his back, prostrate. 'Maitumeleng had come with a vehicle and deceased had been conveyed to Makoanyane hospital. 'Maitumeleng had secured the vehicle within 10 minutes. The witness has testified deceased was taken to Makoanyane while still alive though he was speechless. From Makoanyane deceased had been conveyed in an ambulance to Queen II hospital and she had been in the ambulance with him. The witness says from Makoanyane to Queen II deceased was still alive. At Queen II deceased had been conveyed on a wheelchair to the Dr. and she had been told to go back home. The same day she was informed deceased had died. The witness has testified she heard gunshots after 6.00 p.m. She says from Thamaes to Makoanyane and hence to Queen II deceased has sustained no injuries. She says when she met deceased he was holding a firearm with his right hand. Her husband was a soldier and owned a service firearm though she did not know whether it was a revolver or a pistol. She had taken the gun to Makoanyane. The witness has testified prior to her husband's death her handbag was snatched from her. As she passed near Peete Peete's shop she had passed three boys one of w h om had greeted her from behind. It was after 7.00 p.m. and when she looked back the boy had snatched her handbag. She had not noticed the person who snatched her handbag and could not identify him. She says she did not identify Sankuena whose surname she did not know. She says she reported loss of her handbag to her husband. According to the witnesses, in the bag were clothes. She had also reported to the police at Thamae Police Station. She had not recovered her bag though she knew somebody had been arrested fro snatching her handbag. She says Mokotso Koena (accused) was arrested by police at Thamae's though she does not know the date of the arrest. It was, however, prior to her husband's death. She says she knew who had killed her husband. Cross-examined by Mr. Masiphole the witness says she did say she gave her husband M20-00. He had asked for the amount to buy drinks without saying how much he wanted. She says she does not recall whether at the P. E. she said accused asked for M3-00 though she cannot deny this. The witness says she did say when she found deceased in the furrow he was holding a small gun whose name she did not know and yet at the P. E. she had said he was holding a 9 mm pistol. She says the reason for the two conflicting statements is that she had not understood the question. She agrees that deceased was holding a p mm pistol. Her husband had not been present when the bag was snatched from her and she had said she had not known who snatched her bag. Re-examined she says she identified Sankoe because she had often seem him at Thamae's. By Assessor: She says at the furrow she knew deceased was still alive for he was breathing. P. W.2 Tpr. Paneng (P. W.3 at P. E.) Sworn had stated he was a police officer at Maseru Central Charge office. In 1995 he had been stationed at Thamae Police Station. He knew accused before court and had also known the deceased in his lifetime. Before 20 August, 1995 he had not known accused before court. He says he knew accused after he was arrested about 1995. He remembered events of 20 August, 1995 when he had been from the Police Station accompanying one Mohau Kakana with Tprs Phamotse, Thibeli and a person he could not recall. Near Peete Peete's at about 7.00 p.m. they had seen people standing in the road and as they approached had seen a person fall as if assaulted. The man had arisen, drawn a gun and shot. As it was not visible, they could not say what he was shooting at and had known later he was shooting at a person who stabbed him. He had not identified the person in the road. W h en one of the three persons fell, one had remained standing. The one who had assaulted the deceased had fled. He says he saw the person who fell being assaulted. He says he was punched. He says he means deceased was punched and he fell. He says the person who punched deceased causing him to fall was the one who ran away. W h en deceased rose from the ground he had pulled out his gun gave chase and it was during the chasing that deceased fired his gun. They had arrested the person who remained on the scene. The had asked him who fired and he had said it was a soldier called Nyenye and the person who fled was Mokotso Koena the accused. He says on the scene they had arrested Sangweni Cewba. The witness has testified they had proceeded with Thibeli in the direction of a person who ran away. A lady had then said: 'there's a person lying on the ground' and there they had found deceased lying on his back, alone holding his firearm with a round on his left chest. It was an open wound like a stab would and he was bloodstained. While waiting two ladies had come on the scene one of w h om had identified herself as deceased's wife. She had taken the gun from deceased saying the gun was safe in her custody. Deceased was lying on the ground. While still waiting a vehicle had arrived and they had taken him to Makoanyane hospital. He says during the fracas they were 20 paces away being from the door to the wall. They had returned to Thamae Police Station. The witness says he had not arrested accused but had been arrested by the C. I. D. at Thamae's. He says he does not know when accused was arrested. Cross-examined by Mr. Masiphole the witness says he did say at dusk and at about 7.00 p.m. as they approached they had seen 3 people and someone falling as if assaulted. He says it was not quite dark and there was no moonlight. He says although he had said it was dark and not visible, cloudy as it was, it was clear in the sky. He disagrees at 7.00 p.m. in the month of August it's dark. He agrees in July it is summer solstice and the longest night though August is not that dark. He agrees in March at 7.00 p.m. it is already dark. He agrees he has said he saw a person fall as if he was assaulted. Re-examined the witness agrees he could have forgotten certain facts owing to passage of time. He says he was not wearing a watch and that it was 7.00 p.m. was his estimation. No questions by the Assessors. P. W.3 (P. W.7 at the P. E.) Simon Moleleki sworn has stated he resided at had been arrested by deceased the witness says the right statement is that accused told him who had arrested him. Put to the witness he is not telling the truth the witness has said it would seem he had not made himself clear in that it was wrong to say Phamotse chased the deceased for accused had said he was chased by deceased. The witness has said accused was chased by Phamotse who later returned. He says he saw no other people chase accused. That accused denies being chased by Phamotse the witness says there is evidence to the effect. The witness has said he does not know whether deceased chased Phamotse. No re-examination. By Assessor Mr. Khoboko the witness says Phamotse was chasing accused from Peete Peete's to Lebusa's and was unable to catch accused. They had grown together with accused though they were not friends. P. W.4 (P. W.9 at P. E.) No. 1794 Tpr. Sekopo sworn had stated he is a police officer of the C. I. D. department stationed at Maseru Central Charge office. In 1995 he was attached to Thamae's C. I. D. branch. On 20 August, 1995 he had not been on duty while on 21 August, 1995 he had been on duty at Thamae's when he received a report and given instruction to investigate a murder case. He had proceeded with investigations pertaining to the present case and had looked for accused. He had received information as a result of which he had gone to accused. He had found accused but it was after 2 years. He thinks he arrested accused in 1997 having begun to look for him from 21 August, 1995. He had looked for accused at Thamae's, Qoaling and other places where information led him. Before deceased was killed he says he had not known accused and had known accused the day he arrested him. The witness has testified he had left information that he was looking for accused. He had arrested accused at Upper Thamae next to a school called Saint Kizito Primary School. He was around the Cafe/Liquor restaurant. On finding him he had identified himself as a member of the Police Service; had warned him and asked for an explanation from him and accused had given him an explanation which had not satisfied him. He had nevertheless charged accused of murder. He had then escorted accused to Thamae police station where he was kept until he appeared before a magistrate. The witness says he did come by a weapon identified to him as a knife. The knife had never reached his hands. The witness says the accused had shown him where he threw the knife being at Thamae's next to Peete Peete's restaurant. He says he has never seen the knife used on deceased. During his investigations he had come across a firearm and according to the explanation give him the firearm belonged to deceased. The firearm had been brought to him by War. Officer Fuma. He says police weapons were handed over to the armoury to be kept by soldiers to be handed in as exhibits when if so required. He says it was a 9 mm pistol. He says armoury in the Lesotho military was handed over to S A DC forces. He says this is the explanation he received when he looked for the firearm which was an exhibit at the P. E. No cross-examination by Mr. Masiphole. By court. He says having received information from accused he followed the explanation to the place near Peete Peete's, an open space near the road. He had looked for the knife in vain. He says he is not sure whether he inquired what type knife this was. P. W.5 (P. W. I at P. E.) Sangweni Cewba sworn had stated he resided at Motimposo and remembered August, 1995 when he resided at Upper Thamae. He knew accused before court and his means of knowing him was that they were neighbours and friends at Upper Thamae. He also knew deceased who had asked him look for accused person. He had known deceased before he was killed. Deceased had looked for accused because accused had sometime in the past snatched deceased wife's handbag. His means of knowing this was because deceased had approached him saying people he was with at Peete Peete's had snatched his wife's handbag and he was looking for them. He knew this because deceased's wife had passed while he was with accused and deceased's wife had recognised him saying people he was with at Peete Peete's had snatched her handbag. He says when deceased's wife's bag was snatched he was absent though he had come to know who had snatched it for deceased had said people he was standing with had snatched it. The witness says accused and Lethusang had followed deceased's wife and snatched the bag. He says he had led deceased to accused person. He recalled events of 20 August, 1995 on which day he had been drinking at Peete Peete's and Simon Moleleki had arrived saying accused was calling him outside; it was about 3.00 or 4.00 p.m. long before sunset. He had gone to accused whom he found with Tumello Lerotholi and deceased. Deceased had then said: 'here is a person I had been looking for - he refuses to go to the police station.' Accused had said he was not refusing but wanted to telephone his parents and asked the witness to give him money to telephone at the public telephones. Deceased had not wanted the witness to give accused money to telephone and had pulled accused. It was while there was argument about money that deceased pulled accused by hand whereupon accused punched deceased in the chest area and deceased fell. When deceased rose, he had already pulled out his gun and chased accused. Deceased was chasing accused fired after accused as the latter fled. He says he did not see if accused was carrying anything. He says when deceased rose he had seen no injury on him; the witness says as the chase proceeded police arrived and did not know what happened thereafter. He says when he next saw deceased he had bloodstains on his chest and had fallen to the ground. Deceased had not caught up with accused. He says when he saw deceased bloodstained it was about 3-4 minutes since the punching. He says the police had said they wanted to see the liquor he was drinking. The witness says he remained standing where he was with accused and deceased. He says when the police gave chase they had found him where he was with accused and deceased. The witness says in wanting to arrest him he was with Tumelo Lerotholi. The witness says he thinks the deceased sustained the injuries when he was punched. He says he was drunk and befuddled. The witness has said where they stood accused was on his right hand side and deceased on his lefthand side. He says accused was facing deceased and did not see if accused was holding anything. He says deceased was injured when he was punched by accused and the accused had met no other person though he was not that positive. He says he does not know who injured the deceased. Between accused punching the deceased and fleeing the witness says nobody came in between. He says he ended up seeing deceased lying on the ground bloodstained. He had seen accused punch deceased on the chest. After deceased was hit there was no third person who did anything to deceased. He says when deceased chased accused he was not injured but had seen people crowding on deceased. In deceased chasing accused the witness says he could not see deceased's front. Cross-examined by Mr. Masiphole the witness has repeated he did say accused snatched deceased's wife's handbag and deceased had approached to the effect that some people had snatched his wife's bag. He says he had also said in court deceased's wife's bag was snatched by people with w h om he had been. He says he is not aware he is confusing the court for he had said he learned of the events when deceased had approached him. The witness now says deceased did not know the people and it was for the witness to pin-point them. He says deceased approached him after his wife's bag was snatched - the reason he named the people he was with and Lethusang. According to the witness, he had taken deceased to the homes of accused and Lethusang and had informed them they are being wanted for they are the people and had left them. He says it is the occasion he told deceased these are the people. He says he did tell the court he did not know who snatched deceased's wife's bag. He says he had said to deceased: here are the people I was with last night and had left deceased person with them; deceased, according to the witness, was in an angry mood. He says in his presence nothing transpired between accused, Lethusang and deceased. He denies his presence deceased pointed a gun at accused. He agrees he met accused's grandmother. He says he did say he found Lethusang and accused only and there were no other people and had met Lethusang's grandmother on leaving. The witness has testified when deceased pulled accused by the hand accused had resisted hitting deceased on the chest with a fist and deceased had fallen. He says he did say he was drunk and did not quite see what transpired besides he had not expected these things to happen. That deceased did not pull out the gun after he was hit the witness says this is untrue for it was on rising from the ground that deceased pulled out the gun. The witness disagrees in pulling the accused with a hand deceased had also pointed a gun at accused. The witness says when accused struck deceased the latter had not pulled out the gun. The witness also disagrees accused struck deceased to prevent the latter from shooting him. Put to the witness he could not have seen the incident because he was drunk and not expecting these things to happen the witness says he did not see a firearm drawn though this is something he is not able to deny. The witness agrees accused ran away after striking the deceased and agrees deceased gave chase firing in the direction of the accused. He says when the chasing took place he remained on the scene and police had emerged arresting him. He says deceased never caught up with accused. The witness has said he does not know what happened between accused and deceased after disappearing from his view. The witness has said when deceased rose there were no injuries. By Assessor Mr. Khoboko. He says he accompanied deceased to accused's home because deceased had told him of the lost bag. He had lived at Upper Thamae since 1978. Accused had lived at Upper Thamae but away from him but they had often met. He says he used to find accused at his business premises on picking children from school and accused knew him very well. He says deceased came to him because he knew people who snatched the bag better. He says he was at the scene of crime. He says he did not know what accused was holding and a fist could not cause the injury. By Assessor Mr. Mafatle the witness says when the deceased went to see him the first time he wanted to know people who had snatched his wife's bag and the second time he wanted to know their residence. By court. The witness says deceased wanted to escort accused to the police because the case had been reported to the police. Accused has resisted arrest. The witness says when deceased had wanted to arrest caused and accused had resisted it was first outside Peete Peete's gate about 3-4 paces away from where they were. He says this is where, in attempting to arrest accused, the latter had struck the deceased and the time was then 4.00 p.m. The chase had gone as far as 25 - 30 paces away. The witness says he was watching and had not lost sight of deceased and accused. He had found deceased with bloodstains. He says on the scene and on being arrested he had seen the police. Ms. Mokitimi applies for an inspection-in-loco. Mr. Masiphole does not object and the court goes on an inspection-in-loco at Peete Peete's lodge. At Peete Peete's lodge P. W.5 does the pointing saying this is Peete Peete's lodge and the witness points to where Tumello Lerotholi, accused and deceased were outside the lodge. He says accused was facing East and deceased chased accused towards the West. Deceased had chased accused until they turned a comer 39 paces towards the North and 39 paces away from where he had been standing. He says in turning the corner he could not see deceased and accused. They turned the corner at Lebusa's garden. The police had then come to him and arrested him, gone into the lodge and thence to where deceased was found. At the corner he says deceased was bloodied lying on his back. He says from the lodge to where deceased was lying there were people crowding around the deceased. He says the time lapse between being arrested to where he found deceased lying on his back was about 4 minutes. The court had returned to court and read the results of the inspection-in-loco, and counsel on either side had said they had nothing to add. According to the inspection-in-loco it would appear where the witness P. W.5 was standing as deceased chased accused the two had disappeared from his view and when the witness was taken to where deceased was lying, it was after the chasing so that the witness could not know how deceased came to be where he was lying for when he last saw him, it was rounding off the corner of Lebusa's garden in a northerly direction. From the court's observation, from where accused, deceased and P. W.5 had been deceased was visible from where he had fallen. Ms. Mokitimi for the crown says witnesses have mentioned a policeman Phamotse and she is desirous of calling the witness. Mr. Masiphole has not objected to the witness being called. P. W.6 No. 0138 Tpr. Phamotse sworn has stated he is stationed at Mokhalinyane, Maseru. He remembers August, 1995 when he was stationed at Thamae Police Station. On 20 August, 1995 he had been on duty. He had reported on duty at 2.00 p.m. at Thamae police post and knocked off at 10.00 p.m. He knew Peete Peete's lodge and remembers going past it. He had gone past it between 4.00 - 6.00 p.m. And it was after sunset though not dark. He says then he was on duty but not uniformed. He was on patrol. He says something did happen. He had seen 4 men next to Peete Peete's along the road outside. The 4 men were chatting. He says he was from downward direction. He had heard sound of gunfire and the men had dispersed and two of them had followed the upward direction chasing each other; at the time he did not know these men. He says when he heard the shots he was about 20 paces away from the men chasing each other. The two had followed his direction and the other two in an direction. He had identified P. W.5 and the other man he did not know. He had caught hold of P. W.5 to explain to him what was happening and he had explained. He had said it was deceased who was shooting. He had asked at what deceased was firing and P. W.5 had said at accused. He says at the time he knew deceased. The witness says P. W.5 had given further explanation to the effect that accused had stabbed deceased with a knife and fled. The witness says he had asked why there was stabbing and P. W.5 had said it was because deceased was arresting accused to take him to the police station for stealing his wife's bag. He had taken P. W.5 to the police station. After leaving P. W.5 at the police station they had returned to look for deceased and accused. The had found the deceased. He says the police station is about 1 km away. After taking P. W.5 to police station nothing was done save rushing to find deceased and accused. He says approaching the scene he was in company of some people namely; policeman Thibeli and a soldier Liau. The soldier had left and the two of them had taken P. W.5 to the police station and nobody had remained at the scene. He had returned from the police station with policeman Thibeli back to the scene. At the scene there being nobody they had proceeded forward along the direction deceased and accused had taken past Peete Peete's when they had found deceased lying with people around him. He says the deceased was a little away from the passage but on the lefthand side alongside Peete Peete's premises. This is where he had found the deceased with many people crowding around. He says the time lapse between taking P. W.5 to police station and finding deceased was about 30 minutes. There were already people around looking for a vehicle to convey deceased to hospital. He had got closer to deceased and saw bloodstains on his chest. He had done nothing and this was the last time he saw deceased on being conveyed into the vehicle. He had not seen accused again until he had been arrested. Cross-examined by Mr. Masiphole the winless has said he heard a gunshot and saw 4 men dispersing before him 2 going in an upward direction chasing each other and P. W.5 coming in his direction. The witness says when he caught P. W.5 the other one escaped and he does not know his name. P. W.5 was also running away. He says he had asked P. W.5 to give him an explanation because he had not witnessed what happened. He says it is correct to say deceased and accused were chasing each other and accused was in front. He says deceased was chasing accused. He says as deceased chased accused, he was doing nothing but running. He says he had seen a firearm on his arrival on the scene and had heard one gunshot. He says it is correct to say with Thibeli they had taken P. W.5 to the police station. No re-examination. By Mr. Khoboko the Assessor the witness says when he heard the 4 men chatting they were 20 - 25 paces away from him. Though he could see their paces he was unable to identify them. He had no difficulty identifying accused. He had not investigated the cause of the wound. He says he was with Thibeli the other policeman having done nothing while soldiers were crowding around to convey deceased to hospital. By court: He says he knows P. W.5 very well and had knows him for a long time. He did not know him to do anything for a living and lived with his parents though he did not know what his work is of late. He says when he saw P. W.5 he was fairly normal. As for accused, he had known him for a long time. He did not know accused to be working and he did not know what he did for a living. Ms. Mokitimi has said she will endeavour to call a witness to testify. The matter was postponed so M s. Mokitimi could find the Dr. On 31.03.2000 M s. Mokitimi says her search for the witness is that the Dr. has left the country and accordingly is making an application in terms of sec.227 (iv) of the Criminal Procedure and Evidence Act, 1981 to have the evidence read into the record. Mr. Masiphole having no objection to the application evidence is read into the record. The Crown had then closed its case. Mr. Masiphole says he is applying for the discharge of the accused on the grounds that evidence led does not connect accused with the offence and the application being refused Mr. Masiphole has closed the defence case. Ms. Mokitimi has said she is not ready to address court and the case is postponed to 13 April, 2000. After several postponements counsel on either side had addressed the court on 31 August, 2000. W h en the court heard the addresses one Assessor namely Mr. Mafatle was available and the court had decided to proceed with the case. Ms. Mokitimi for the crown has submitted deceased and accused had an altercation resulting in accused hitting the deceased on the chest. She says by so doing accused had stabbed the deceased; even if this was not accepted and accused had stabbed deceased in the course of the chase, it did not matter when accused stabbed the deceased for it was the accused who stabbed deceased. She says the court having refused an application for discharge the accused was obliged to go into the box to explain why he stabbed the deceased. Mr. Masiphole for the defence has said there is no evidence that accused stabbed deceased with a knife. He says crown case was so confused accused did not know what case to answer and accused fled because he feared deceased would shoot him. The facts of this case are that deceased's wife's handbag having been snatched from her deceased had gone out to find who had stolen his wife's handbag. According to P. W.5, confused as his evidence was on this point he had informed the deceased that his wife's bag was snatched by accused. It would appear according to the deceased accused was not willing to hand himself over to the police and when deceased met accused he had decided to take him to a police station under arrest. Deceased had said to accused that he was arresting him and accused had asked deceased to allow him to inform his parents that he was being arrested and to this end had asked for money from P. W.5 to phone his parents but deceased would not allow this. Deceased had then caught hold of accused in an effort to turn him in at a police station. Deceased had struck the deceased with a fist on deceased's chest whereupon deceased fell and rising deceased had chased, shooting the fleeing accused. Deceased's wife had seen deceased coming towards him bloodied, had lain down and eventually taken to hospital where he died. At the end of crown case the defence had applied for the discharge of the accused and the application having been refused the defence had closed its case. There are not many inquiries in this case the question being who stabbed deceased and whether in stabbing deceased the accused was justified to do so. There is also the matter of arrest of accused and whether in law the deceased was entitled to arrest the accused. As I have said, the accused has not seen it fit to go into the witness box to deny evidence against him and the question is whether the Crown case was so weak it did not behove the accused to go into the witness box to defend himself. This court would like to address itself to whether deceased was justified to arrest accused and I start by saying there was evidence according to P. W.5 that accused had snatched deceased's wife's handbag; this evidence was not gainsaid. On balance it would seem that deceased had reasonable suspicion that accused had stolen his wife's bag. The other inquiry is: was deceased circumstanced as he was entitled to arrest accused? By circumstanced as he was the court is referring to the deceased as a soldier and secondly as husband of the w o m an whose handbag had been snatched by the accused according to P. W.5's evidence. Sec. 24 of the Criminal Procedure and Evidence Act, 1981 reads: 'Every peace officer and every other officer empowered by law to execute criminal warrants may arrest without warrant: (a) (b) every person w h om he has reasonable ground to suspect of having committed any of the offences mentioned in Part II of the First schedule; Theft is one of the offences mention in Part II of the First schedule. As to whether the deceased by virtue of being a soldier had no power to arrest, it was decided by Cullinan, C. J. (as he then was) in Rex v. Sekhobe Letsie and Another, LLR 1985-90 at p.253 that a private soldier in the Royal Lesotho Defence Force is a policeman for the purposes of sec.228 (2) so that it would seem as to power of arrest, a soldier and a policeman both being peace officers their powers of arrest are indistinguishable. As to whether the deceased could have arrested in a matter in which his wife is complainant, generally speaking, policemen are not barred from effecting arrests by reason of relationships. By the same token, there is no reason why they cannot effect arrests in which their close relatives are concerned. This court has given full summary of the Crown evidence and I do not propose to analyse in full the evidence of the witnesses save highlighting salient points. It was P. W.1's evidence that a few minutes after deceased had asked for money from her for drinks she had heard gunfire and shortly thereafter had seen deceased coming towards her from Peete Peete's bloodstained. The witness had testified she had heard gunfire after 6.00 p.m. Of importance is that when the witness espied deceased, he was alone. Also, from then on until deceased reached his final destination at Queen II, he had sustained no injuries. Also, her evidence was that after her handbag was snatched she had reported the same to her husband, the deceased. She had also said accused had been arrested by the police at Thamae for theft of her handbag. She also said she knew who had killed her husband. P. W.2 Tpr. Paneng's evidence on 20 August, 1995 he had been from Thamae's Police Station accompanying one Mohau Kakana with Tprs. Phamotse, Thibeli and a person he could not recall. Near Peete Peete's at about 7.00 p.m. they had seen people standing in the road and as they approached had seen a person fall as if assaulted. The man had arisen, drawn a gun and shot. It was not visible and they could not say what he was shooting at. One of the man in the road had fled. The witness said the man who fell was struck with a fist and fell and the man who struck deceased was the one who fled. He said it was during the chasing that deceased fired his gun. The witness had said on the scene they arrested Sangweni Cewba. On their way to a man who had fled a woman had said to them there was a person lying on the ground on his back and it was deceased still holding his firearm with a would on his left chest - an open would like a stab would. This witness has established who assaulted the deceased, the means used and the area where deceased was hit or struck. From the evidence, it is clear that the witness came on the scene for he arrested P. W.5. In tracking the man who fled and finding deceased prostrate, the witness and his company had come across no other people save deceased's wife and those she was with. P. W.3's evidence had been that at the gate leading to Peete Peete's lodge accused had shouted at him and it was about 4.00 p.m. to 6.00 p.m. and accused had said to him he was to tell Sangweni (P. W.5) he had been arrested. The witness has said he saw accused running going into Lebusa's garden chased by Phamotse. The witness has in the same breath under cross-examination that it would seem he had not made himself clear in that it was wrong to say Phamotse chased the accused for accused had said he was chased by deceased. The witness has also said accused was chased by Phamotse who later returned. Put to the witness there will be evidence by accused that accused was not chased by Phamotse the witness has disagreed saying, at the same time, he does not know whether deceased chased Phamotse. This witness contradicted himself on essential elements of the case and his observation seemed impaired as when he said from the bar he saw red colour and assumed it was blood. Because of the state of this witness's insobriety, this court has found it difficult to believe the witnesses's testimony in its entirety. P. W.4's evidence Tpr. Sekopo was to the effect that he was investigator in the case and had only arrested accused in 1997 having started to look for accused from 21 August 1995. Among places he had looked for accused was Thamae's and Qoaling. The witness says where he looked for accused, he had left information that he was looking for him. The witness says the accused had shown him where he threw the knife being at Thamae's next to Peete Peete's lodge but had not found or seen the knife. This evidence shows accused to have been looked for a considerable period. Also, accused, according to the witness, pointed to where he had thrown the knife. P. W.5 Sangweni Cewba has testified he knew deceased who had asked him to look for people who had snatched his wife's handbag something that had been mentioned to him by deceased's wife to the effect that people she was with had snatched her handbag. He has said when accused's wife's bag was snatched he was absent but had come to know of this for deceased had said people he was standing with had snatched it. In his evidence the witness has said accused and Lethusang had followed deceased's wife and snatched the bag. He has also said he had led deceased to accused person. The witness has said he was called outside at about 3.00 or 4.00 p.m., long before sunset. Deceased had then said: 'here is a person I had been looking for, he refuses to go to the police station.' Accused had said he was not refusing but wanted to telephone his parents and had asked him to give him money to telephone them. Deceased had not wanted the witness to give accused money to telephone and had pulled accused. The witness has said it was while there was argument about money that deceased pulled accused by the hand whereupon accused punched or hit deceased on the chest area and deceased fell. W h en deceased rose, he had pulled out his gun and chased accused. He says when deceased rose, he had seen no injury on him. He says it was during the chase that police arrived. The witness has testified when he saw deceased bloodstained it was 3 -4 minutes after accused hit deceased on the chest with his fist. He says the police had found him where he had been with accused and deceased. The witness has also testified he believed deceased sustained the injury when he was punched. Though not positive the witness has said between accused puching the deceased and accused fleeing nobody had come in between these two. The witness has said he does not know who injured deceased. The witness has also said after accused hit deceased on the chest no third person had done anything to the deceased. Cross-examined the witness had said deceased's wife's bag was snatched by people he had been with. The witness has said he did tell the court, he did not know who snatched deceased's wife's bag. The witness has also said when deceased pulled accused by the hand accused had resisted hitting deceased on the chest with a fist. The witness has said he was drunk and besides, had not expected these things to happen. He has also said the deceased pulled out his gun or rising from the ground and has denied in pulling accused by the hand deceased had also pointed a gun at accused. He had denied accused struck deceased to prevent the latter from shooting him. This was a typical witness, reliable and unreliable. He wriggled, turned hot and cold admitting and denying at the same time. In material respects though, his evidence reads well. For example, it was in arresting accused, pulling accused by the hand that accused resisted arresting hitting deceased on the chest with his fist. It was on rising after deceased had fallen that deceased drew his gun, shot at accused in pursuit of accused. Between being hit on the chest and found helpless, deceased had met no other people and his injury was ascribable to being hit on the chest. Despite the discrepancies in this witnesse's testimony, the court has believed this witness in material respects. P. W.6 Tpr. Phamotse's evidence had been that he went past Peete Peete's lodge between 4.00 - 6.00 p.m. and it was after sunset and he had seen 4 men chatting and had heard sound of gunfire and the men had dispersed in different directions. He had arrested P. W.5 and sought an explanation from him. The witness says after leaving P. W.5 at the police station they had returned looking for accused and deceased. Cross-examined the witness said he had asked for an explanation from P. W.5 because he had not witnessed what happened. The witness in his evidence has mentioned being with Thibeli even when P. W.5 was escorted to and left at the police station. There is no mention of P. W.2 Tpr. Paneng. And yet Tpr. Paneng has said in his evidence on 20 August, 1995 he was from the police station accompanying one Mohau Kakana with Tprs. Phamotse and Thibeli and it was 7.00 p.m. and had seen people in the road and as they approached a person had fallen as if assaulted and the man had arisen, drawn a gun and fired. He testified he had seen a person who fell being assaulted by punching. He said they had arrested the person who remained on the scene. The witness has also said they had proceeded with Thibeli in the direction of a person who ran away. In the first place, P. W.2 differs from P. W.6as to time for P. W.2 says it was 7.00 p.m. when P. W.6 says it was between 4.00 - 6.00 p.m. P. W. 2 has said he was with Tprs. Phamotse and Thibeli while P. W.6 makes no mention of P. W.2 at all. While P. W.6 says he asked for explanation from P. W.5 for he had not witnessed the events save hearing gunfire, P. W.2 appears to have witnessed the events. Having arrested P. W.5, P. W.6 says they escorted him to the police station and from there went looking for accused and deceased while according to P. W.2, they had gone to and found where deceased was lying. There is therefore considerable conflict in the evidence of P. W.2 and P. W.6 and this court is hesitant to go by this testimony but has on the contrary believed the evidence of P. W. I, P. W.4 and in material respects the testimony of P. W.5 and, in addition, probabilities point to accused having committed the crime. In particular evidence of P. W.4 reveals that the accused had a guilty mind for, according to P. W.4, accused pointed the spot where he had thown the knife used on deceased. This, in this court's view, is evidence of pointing out. On pointing out, it has been said this has elements of confession and it would seem the best way to deal with this is to option to refer such confession to a magistrate or justice of the peace. It would also seem if an accused has pointed out an object without accompanying explanation the pointing out gives an irresistible inference of guilty knowledge on the part of the accused; if he has given no explanation, that may be sufficient to justify a conviction. N o w, P. W.4's evidence is simply to the effect: 'accused showed me where he threw the knife' being at Thamae's next to Peete Peete's restaurant. From this it is clear that there was no accompanying explanation. It has also been said the cumulative effect of the evidence given before court plus the pointing out is indication of guilt rather than innocence - see S. Khomo and Others, 1975 S. A. 344 (D & C. L. D.). As to evidence of witnesses, one is reminded of the celebrated view of Rooney J. in 'Mota Phaloane 1980 (O)LLR 60 at 265 where the learned Judge had this to say: 'My long experience of the courts has taught me what may not be so obvious to laymen. There is no such this as the perfect witness. Witnesses are either reliable or unreliable according to the many factors which affect them. Some people are more observant than others and some have better recollections of past events. Some witnesses are more subjective that others and may confuse what they saw or heard with what they were subsequently told. Apart from honest human failings, there are other factors which may render evidence of witnesses unreliable.' Indeed this was the case with P. W.2 and P. W.6 for though purportedly together, it seemed as if they were never together. One also got the impression of building the crown case for the sole reason of propping it up. Regarding the evidence of P. W.3 and in particular reference to P. W.6, he related events which were never associated with P. W.6 and generally contradicted himself. P. W.5 good as his evidence was in material respects, seemed to have second thoughts, preferring to let accused off the hook. As to when the incident took place, there was no general consensus and this would well be ascribable to the state of sobriety of some of the crown witnesses. However, it is safe to say the incident could have occurred between 6.00 p.m. and 7.00 p.m. Mr. Masiphole for the defence has submitted that in striking deceased as accused did accused feared that deceased who was armed with a gun might shoot him. This despite the fact that Crown evidence in this respect was it was only after deceased had been knocked to the ground by accused that on rising from the ground he had fired. If by striking deceased on the chest accused was defending himself, this was no defence at all. According to the decision in Rex v. Poqa, LLR, 979 (1) 61 at 169, it was said after the deceased fell the events demonstrated a subjective intent to kill for according to Burchell and Hunt Vol. 1 dealing with private defence the author had said at p.75: 'The attack must have commenced and be imminent. It will not avail to use force against y if y's attack is only to begin at some time in the future.' In his 3rd Ed. Burchell and Hunt at p.90 reiterates the above warning saying: 'The threat of harm must have commenced or be imminent. It will not avail the accused if the threat is only to be implemented at some time in future .' Also, according to Visser and Vorster's General Principles of Criminal L aw though the cases 3rd Ed. at 18, a person is entitled to defend himself if there is an unlawful attack which has commenced or in imminent, upon a person's legal interest. The attacked person may in such a case ward off the attack by reasonable means directed at the attacker. But as shown above, there was no attack on accused by deceased for the latter was only effecting a lawful arrest which accused resisted. The entire fault lay with accused who resisted a lawful arrest. In striking the deceased on the chest, accused was not warding off the attack and the means accused used were not reasonable in the circumstances. In the instant case evidence which was not gainsaid has shown that deceased's intention was to arrest accused and I have said the arrest was lawful in the circumstances. According to crown evidence which this court had believed, when deceased was struck on the chest with a fist deceased was pulling accused by the hand in an effort to arrest him. In doing so, deceased was not assaulting accused or in any way threatening him. In fact there was no evidence of threats by deceased. W h en deceased drew his gun and shot, it was after he had been struck on the chest and fallen. Rising from the ground, deceased had drawn his gun and shot in reaction to the attack on him. As to whether deceased was stabbed, account has to be taken of the direct evidence on P. W.4 and P. W.5 and in particular evidence of P. W.4 as to pointing out. As was said in S. v. Khomo and Others, 975 (J) S. A. 344, the cummulative effect of the evidence given before the court plus the pointing out is indicative of guilt rather than innocence. Apart from this, account has to be taken of medical evidence which was admitted by consent of the parties. It reveals that death was due to Haemothorax and collapse of the lung which was punctured. The Dr. also found a stab wound on the left arm and a stab wound on the left chest so that it can be safely said that when accused purportedly struck the deceased with a so-called fist it was not with a fist but with a knife. As I have said, there was direct evidence implicating the accused and no inferences have had to be drawn. This court is also mindful of the fact that although before this court P. W.5 did not repeat this, he had, at the P. E., deposed that accused had 'ultimately stopped and stabbed deceased with the knife.' He had also said 'the accused stabbed the deceased before he could start running away.' Also please note that at the P. E. P. W.5 was forthright saying 'I am the one who told the deceased that the accused is the one who had stolen the handbag of the deceased's wife.' At the end of crown case the court rejected an application for the discharge of the accused because the court had found at that stage that the crown had established a prima facie case against the accused. M s. Mokitimi has said because there was a prima facie case against the accused at the end of crown case, the reason the court refused to discharge the accused, the case was then strong enough to call for an answer. This court agrees with this submission to the extend that in the absence of an explanation or answer, an inference of guilt can properly be drawn against the accused for, as Holmes, A. J. A. put in S. v. Khoza, 198 (3) S. A. 1099 (A) at 04 C - E: 'The fact that the appellant did not give evidence does not result in proof beyond reasonable doubt that he murdered or attempted to murder the deceased. I say this because, before the absence of gainsaying testimony from accused can be said to carry the day against him there must first be a prima facie case against him.' In this case is not that accused has no recollection of the incident in question but that, as is reflected by questions put to crown witnesses by the defence counsel (as when, for example, the defence counsel suggested the accused had struck the deceased on the chest with a fist because he feared accused might shoot him) the accused was perfectly aware of what had transpired between him and the deceased. As to the weight to be attached in a case where despite direct evidence implicating him accused remains silent, it was said in Khomo's case above at 345 that: 'In general greater weight will be attached to silence where there is direct testimony implicating the accused, which the court could reasonably expect he would simply explain away if it were not true than in a case where there is no such direct evidence, and where the question of his guilt depends on inferential reasoning - see S. v. Letsoko, 964 (4) S. A. 768 (AD.) At 776.' This is a different case in that there is, as I have said, direct evidence implicating the accused and in any case there was a prima facie case against him at the end of the crown case. As to intention, the accused stabbed deceased to resist a lawful arrest; in assaulting deceased as he did, accused used a dangerous weapon on a vital organ of the body well aware that death was likely to occur; despite this accused assaulted the deceased regardless of whether death would occur. In the premises this court holds that in inflicting injuries on deceased as he did accused had constructive intention to kill the deceased. The crown having proved its case beyond reasonable doubt, accused is found guilty of murder as charged. My Assessor agrees. G. N M O F O LO J U D GE 2nd November, 2000. For the Crown: For the Defence: Mr. Masiphole Ms. Mokitimi Extenuating Circumstances Ms. Kotelo has said accused never directed his will to killing deceased and that on the contrary accused wanted to escape from the purported arrest and accordingly the case was one of dolus eventualis. For purposes of extenuation, the question is whether it can be said that accused's conduct was morally less blameworthy. If the court (as it has to do) was to evaluate the moral blameworthiness of accused, I have already said that accused did not direct his will or campass it towards killing the deceased. In the heat of temper and being surprised by the deceased accused had stabbed deceased and having done so fled from the scene. Fleeing denotes fright though sometimes it denotes escaping arrest. It also has to be considered that these events took place around a tavern where drinks flowed freely and there was evidence that accused was soused. Serious as murder always is, accused behaved in a petulant and boyish way. As I also agree that this is a case of dolus eventualis there are factors, which, taken together, show that there are extenuating circumstances and accordingly this court has found that there are extenuating circumstances. Ms. Mokkimi has submitted there are no previous convictions. On Mitigation of Sentence This court has taken into account the fact that accused is first offender and taken into account the fact that accused has a wife with three (3) minor children who will lose support because of the incarceration of the accused. Accused is also a young man of 35 years requiring that he be not brutalised. Moreover, at Sesotho law and custom he is liable for compensation in the scale ten (10) head of cattle or the equivalent. This was also a 1995 case which has hung over the head of accused for wellneigh five (5) years. In the circumstances the least sentence imposed is ten (10) years imprisonment. G . N. M O F O LO Judge 6th December, 2000. For the Crown: For the Defence: Ms. Kotelo Ms. Mokitimi