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# Rex V Lillo Pitiri (CRI/T/0077/2022) [2023] LSHC 129 (3 November 2023) [ __](https://api.whatsapp.com/send?text=https://lesotholii.org/akn/ls/judgment/lshc/2023/129/eng@2023-11-03) [ __](https://twitter.com/intent/tweet?text=https://lesotholii.org/akn/ls/judgment/lshc/2023/129/eng@2023-11-03) [ __](https://www.facebook.com/sharer/sharer.php?u=https://lesotholii.org/akn/ls/judgment/lshc/2023/129/eng@2023-11-03) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://lesotholii.org/akn/ls/judgment/lshc/2023/129/eng@2023-11-03) [ __](mailto:?subject=Take a look at this document from LesLII: Rex V Lillo Pitiri \(CRI/T/0077/2022\) \[2023\] LSHC …&body=https://lesotholii.org/akn/ls/judgment/lshc/2023/129/eng@2023-11-03) [ Download PDF (507.8 KB) ](/akn/ls/judgment/lshc/2023/129/eng@2023-11-03/source) Report a problem __ * Share * [ Download PDF (507.8 KB) ](/akn/ls/judgment/lshc/2023/129/eng@2023-11-03/source) * * * * * Report a problem __ ##### Rex V Lillo Pitiri (CRI/T/0077/2022) [2023] LSHC 129 (3 November 2023) Copy citation * __Document detail * __Related documents Citation Rex V Lillo Pitiri (CRI/T/0077/2022) [2023] LSHC 129 (3 November 2023) Copy Media Neutral Citation [2023] LSHC 129 Copy Hearing date 2 November 2023 Court [High Court](/judgments/LSHC/) Case number CRI/T/0077/2022 Judges [Mokoko J](/judgments/all/?judges=Mokoko%20J) Judgment date 3 November 2023 Language English ##### __Collections * [Case indexes](/taxonomy/case-indexes) * [Refugees](/taxonomy/case-indexes/case-indexes-refugees) * [Criminal law](/taxonomy/case-indexes/case-indexes-refugees-criminal-law) * [Murder](/taxonomy/case-indexes/case-indexes-refugees-criminal-law-murder) Summary Read full summary * * * Skip to document content **IN THE HIGH COURT OF LESOTHO** **Held at Maseru** **CRI/T/0077/2022** In the matter between **REX** **** **CROWN** And **LILLO PITIRI** **ACCUSED** _Neutral Citation_ : Rex v Lillo Pitiri [2023] LSHC 129 CRIM (03rd November 2023). **CORAM:** T.J. MOKOKO J **HEARD:** 02ND NOVEMBER 2023 **DELIVERED:** 03RD NOVEMBER 2023 **__SUMMARY__** Murder- Crown’s case on Circumstantial Evidence- Accused convicted of murder with _dolus eventualis_. **_ANNOTATIONS_** **__Cases__** 1. _Broadhurst v Rex (1964) AC 441_ 2. _Director of Public Prosecutions, Gauteng v Pistorius[[2015] ZASCA 204](/akn/za/judgment/zasca/2015/204); [2016] 1 ALL SA 346 (SCA)_ 3. _Lefaso V Rex LAC 1990-1994_ 4. _Letuka v Rex LAC 1995-1999_ 5. _Mohlalisi and Others LAC (1980 – 1984)_ 6. Moshephi and Others v Rex LAC (1980-1984) 57 7. _Phaloane v Rex 1981 (2) LLR_ 8. _R v Blom 1939 AD 188_ 9. _R v Mlambo 1957 (4) SA 727 (A)_ 10. _R v Rajivee Soni_ CC 29/14P 11. _Rex v Ranthithi and Another_ _LAC 2007- 2008_ 12. _Rex v Ts’osane 1995-1999 LAC 635_ 13. _Rex v Tumelo Manesa_ CRI/S/4/10 [[2011] LSHC 45](/akn/ls/judgment/lshc/2011/45) 14. _Scout v Rex_ LAC 2009 – 2010 279 15. _S v Chabalala 2003 (1) SACR 134 (SCA)_ 16. S v Gentle 2005 (1) SACR 420 (SCA) at 430 17. _S v Mhlakaza and Another_ 1997 (1) SACR 515 (SCA) 18. _S v Mafela 1980 (3) SA 825 (A)_ 19. _S v Ngobeni 1992 (1) SACR 628 (C)_ 20. _S v Kruger_ 2012 (1) SACR 369 (SCA) 21. _S v Kubeka 1982 (1) SA 534 (W)_ 22. _S v Petrus_ _1969 (4) SA 85 (A)_ 23. _S v Reddy and others 1996 (2) SACR (A) 8C-E_ 24. _S v Scott-Crossley_ 2008 (1) SACR 223 (SCA) 25. _Small v Smith 1954 (3) SA 434_ 26. _S v Van Aswegen 2001 (2) SACR 97 (SCA)_ **__Statutes__** 1. _Criminal Procedure and Evidence Act 1981_ 2. _Penal Code[Act No. 6 of 2010](/akn/ls/act/2010/6)_ **JUDGMENT** **INTRODUCTION** [1] The accused is a member of the Lesotho Mounted Police Service. He is charged with the crime of contravention of _section 40 (1) of thePenal Code Act No. 6 of 2010_, read with _section 40 (2)_ thereof. It being alleged that upon or about the 21st day of June 2017 and at or near Monateng Public Bar, Cocobe in the district of Quthing, the said accused did perform an unlawful act or omission with the intention of causing the death of Lipakuoele Lehlosi, such death resulting from his act or omission, the said accused did thereby contravene the provisions of the code as aforesaid. **CROWN’S CASE** [2] Crown case is anchored on the evidence of ten (10) witnesses and admitted statements, viz, Jobo Letsie (PW1), Reatile Mohai (PW2), ‘Mapiti Kolisang (PW3), W/P/C Lireko Letsie (PW4), L/Sgt. Qacha (PW5), D/P/C Telu (PW6), Sgt. Tsietsi Mongalo (PW7), Tumane Nthuloane (PW8), L/Sgt. Masithela (PW9), Sub/Insp. Mollo (PW10). The post-mortem report marked exhibit “E” prepared by Dr. C.T Moorosi- in which he opined that death was due to multiple organ injuries with severe blood loss consistent with gunshot wounding. Accused pleaded not guilty to the charge. [3] **Jobo Letsie (PW1)** testified that on the 21/06/2017 at about 7:00 pm, he received a telephone call from Reatile Mohai (PW2), and the accused spoke with PW1, on PW2’S phone inviting PW1 to join them at Koali’s bar, where they were imbibing some alcohol. PW1 honoured the invitation by joining both Reatile Mohai (PW2) and the accused at the said bar. PW1 further testified that shortly, after his arrival at Koali’s bar, the accused took out a gun and PW1 said, he told PW2 to tell the accused to stop producing his gun. Around 8:00 p.m. PW1, Reatile Mohai (PW2), the accused, the deceased (Lipakuoele Lehlosi) and Poulo Lesoetsa, left Koali’s bar for Monateng bar. He also testified that along the way, the accused produced his gun and cocked it. They reprimanded the accused and the accused remained behind to clear the gun. Shortly, after their arrival at Monateng bar, the accused produced his gun and cocked it in front of the deceased. Then ‘Mapiti Kolisang (PW3) asked the accused to hand the gun to her for safe keeping until the following day, but the accused did not heed her advice. The accused then put the gun back on his waist. [4] PW1 testified moreover that the deceased asked the accused to buy some cigarette for him and the accused replied that he had money for alcohol only. It was at that stage that PW1 bought a cigarette for the deceased, he lit the cigarette on the heater, and went outside. The deceased then followed PW1. While PW1 and the accused were smoking, the accused joined them and told them he was leaving. PW1 furthermore testified that the accused asked the deceased to accompany him. The deceased and the accused left together, and PW1 remained standing there smoking. [5] Shortly after the deceased and the accused disappeared behind the bar (about 30 seconds) PW1 testified that he heard a gun report coming from behind the bar. Within a short space of time (within 5 seconds after the gun report) PW1 went to the corner of the bar to investigate. He saw that the deceased was on the ground, his back leaning on the fence. PW1 ran into the bar to raise an alarm. PW1 heard a second gun report. After about three to four minutes (3-4 minutes) later, PW1 and other revellers proceeded to where the deceased had fallen. PW1 did not observe any injuries nor blood on the deceased. The deceased was taken to the hospital, where he was pronounced dead. Under cross-examination it was put to PW1 that someone followed both the deceased and the accused as they left the bar. PW1 stuck to his version that no one followed them, as there was no one else outside, except the three of them. PW1 strongly denied the accused’s version that he was not in possession of the gun. Lastly, the accused’s version was that he was shot on the leg by an unknown assailant, and PW1 denied that this was the position. [6] **Reatile Mohai (PW2)** testified that on the 21/06/2017, in the afternoon, he was at Monateng bar with other people, whereupon the accused arrived. The accused called the deceased from his home to join them. The deceased joined the accused and PW2 at Monateng bar. PW2 further testified that while they were enjoying themselves with drinks, the accused produced a gun from his waist, and this conduct caused one Kananelo Jankie to leave the bar. However, the accused put the gun back on his waist. Later, the accused suggested to PW2 and the deceased to go to town with him. They indeed went to Quthing town, and while there the accused bought some food for them. In the evening while it was getting dark, they took a hike in Joshua’s taxi to their village. PW2 testified when they reached a place called Borokhong, the accused took out a gun, and through the open window, fired a shot in the air. The owner of the vehicle was not amused by that conduct, and he reprimanded the accused. The taxi dropped them off at Monateng bar. [7] PW2 and the accused left Monateng bar for Koali’s bar. When they had settled at Koali’s bar, the accused asked PW2 to telephone Jobo Letsie (PW1) to join them. PW2 telephoned PW1 and after he had picked the call, PW2 handed over his phone to the accused so that he could speak with PW1. Later, PW1 joined them at Koali’s bar. PW2 testified that the accused produced the gun and the bar-tender, namely one, ‘Mapuseletso reprimanded him. As a result of the accused’s conduct, one Mahlomola Mothabeng, left the bar. When Koali’s bar closed, the accused, the deceased, Reatile Mohai (PW2), Bokang Jankie, Jobo Letsie (PW1) and Poulo Lesoetsa went to Monateng Bar. Along the way, at a place called Pompong, the accused produced his gun. PW2 testified further that he asked the accused to hand the magazine to him, but the accused did not heed this request. It is PW2 testimony that while at Monateng bar, the accused took out the gun. ‘Mapiti Kolisang (PW3) asked the accused to hand the gun to her for safe keeping, but the accused did not heed her advice. The deceased asked the accused to buy some cigarette for him, but the accused replied that his money was for beer only. [8] PW2 testified that PW1 bought a cigarette and the deceased and PW1 went outside to smoke. The accused followed them. After a short while, PW1 came running into the bar, saying that the deceased had been shot. Before PW1 could even finish narrating his story, there was a gun report. PW1 and Bokang Jankie went to the window to peep outside, while PW2 blocked the doorway with speakers. PW2 proceeded to the scene and found that the deceased was on the ground, his back leaning on the fence. The deceased was taken to the hospital by PW1, PW2, Poulo Lesoetsa and Kananelo Jankie. PW2 observed that the deceased had sustained an injury below the neck on the left side of the body. [9] **‘Mapiti Kolisang (PW3)** a bar tender at Monateng bar, testified that (PW2), accused, the deceased, and Bokang Jankie were at Monateng bar, drinking some alcohol. Between 6:00 pm and 7:00 pm they left Monateng bar. They came back to Monateng bar later, between 8:00 pm and 9:00 pm. When bending down to warm her hands on the heater, PW3 saw the accused pointing the deceased with the gun, and the deceased raised up his hands in the air. The deceased said the accused should not point him with the gun. PW3 testified further that she could see the muzzle of the gun as it was pointed towards her direction. PW3 reprimanded the accused and asked the accused to hand over the gun to her for safe keeping. The accused replied that, that was the government property, so it could not be handled by anyone else. Thereafter, the accused put the gun back on his waist. [10] PW3 went further to state that, the deceased asked the accused to buy cigarette for him, but the accused declined to do so, the reason being that they should settle for beer only. However, PW1 bought some cigarette and both PW1 and the deceased went outside to smoke. The accused followed them. After a short period of time, PW1 came back into the bar, looking very frightened. He reported that the deceased was on the ground, and it seemed the accused had shot at him. PW3 then heard a gun report. She proceeded to the window and peeped outside. She saw the deceased who was on the ground. PW3 also testified that PW2 closed the door and put speakers behind the door. She went to the guard-man to report to him about the shooting. She then proceeded to the scene. She did not observe any injuries nor blood on the deceased. The deceased was then taken to the hospital. Under cross-examination, PW3 stuck to her evidence that the accused was in possession of the gun. Under cross-examination it was further put to PW3 that when the first shot was fired, the accused was shot on the leg. PW3 denied that the accused was shot when the first shot was fired. PW3 further was not shaken under cross-examination, that the accused pointed the deceased with the gun. [11] **W/P/C Lireko Letsie, (PW4)** a police officer, testified that on the 22/06/2017, she was at Cocobe village, and she was on her annual leave. Around 2:00 am she saw WhatsApp message to the effect that there was a shooting involving a police officer at Cocobe. Around 7:00 am, she went to Monateng bar, at the back yard of the bar, where there is a small pedestrian gate. About five (5) paces from the gate into the road, she found a shell (empty cartridge). PW4 further testified that she phoned Quthing Police Station and talked to Sgt. Mongalo (PW7). Sgt. Mongalo instructed her to mark the scene of crime and to take the shell. She took the shell and handed it over to Sgt. Mongalo at Quthing Police Station. The cross-examination of this witness suggested that there was an interference with the scene of crime. [12] **L/Sgt. Qacha, (PW5)** a member of the Lesotho Mounted Police Service, testified that on the 21/06/2017, between 10:30 pm and 11:00 pm, he was on mobile patrol, when he received a call from Sgt. Letsosa to the effect that a person had been shot at Cocobe. He rushed to the scene in the company of W/P/C Mothae and P/C Qekoa. Upon arrival at Monateng bar, they were informed that the deceased had been taken to the hospital. They drove to the hospital, where they were informed by the nurse that the deceased had passed on. After about an hour, L/Sgt Qacha and his team received another phone call, to the effect that the accused was at his home at Cocobe. They went to the accused’s place at Cocobe and found the accused there. [13] L/Sgt. Qacha further testified that he introduced himself to the accused, cautioned and warned him, and sought his explanation. The accused voluntarily gave an explanation. L/Sgt. Qacha testified that he asked the accused for the gun, and the accused went to the sofas, and took the gun which was under the cushion. It was a 9mm pistol, a police service gun belonging to Mohale’s Hoek Police Station. The gun had six (6) live rounds of ammunition. He also testified that when he cleared the gun, he discovered a shell stuck in the chamber. Since the accused was injured, they took him to the hospital for medical attention. [14] L/Sgt. Qacha testified additionally that, On the 23/06/2017, he filled in LMPS 12 in respect of the gun, magazine, six (6) live rounds of ammunition, and the shell. He presented these exhibits to the Clerk of Magistrate Court. He later handed these items to P/C Telu, so that they could be taken to the ballistics office in Maseru. LMPS 12 was handed in and marked exhibit “A”. 9mm pistol bearing police no: LSF 1300001330, shell, six (6) rounds of ammunition, were handed in and collectively marked exhibit “1”. Under cross-examination, it was suggested to L/Sgt. Qacha, that when he seized the gun, it was loaded with eight (8) rounds of live ammunition. L/Sgt stuck to his version that the gun had six (6) rounds of ammunition, when he cleared it. L/Sgt Qacha further denied the accused version that the shell was not stuck in the chamber. [15] **D/P/C Telu (PW6)** is a member of the Lesotho Mounted Police Service, stationed at Quthing Police Station. He testified that on the 23/06/2017, he received 9mm SP1 pistol, 9mm shell, and six (6) rounds of live ammunition from L/Sgt. Qacha (PW5). The 9mm SP1 pistol was a police service gun owned by Mohale’s Hoek Police Station. He received another 9mm shell from Sgt. Mongalo, alleged to have been found at the scene of crime. On the 26/06/2017, he handed all these items to Sub/Insp. Mollo for ballistics examination. [16] D/P/C Telu further testified that, on the 04/07/2017 he went to the accused residence. He cautioned, warned, and explained to the accused his rights and told the accused what brought them there. He then sought an explanation from the accused. The explanation of the accused was that he was in the company of the deceased and other people. The deceased went outside to smoke, and he followed the deceased. Both the accused and the deceased went at the back of the bar next to the toilet. He stated that while at the back of the bar, he shot at the deceased on the chest, and when the deceased fell, he was frightened and then ran away. On the way, the accused planned to shoot himself on the leg, to paint a picture that he had a fight with the deceased. He charged the accused with murder and arrested him. He handed in the submission form presented to the ballistic office, and it was marked exhibit “B”. Under cross-examination the accused denied that he ever talked to this witness upon his arrest. This version was strongly denied by the witness. [17] **Sgt. Tsietsi Mongalo (PW7)** , a member of the Lesotho Mounted Police Service, testified that on the 22/06/2017 around morning hours, W/P/C Letsie (PW4) handed over to him a 9mm shell, alleged to have been found at the scene of crime at Cocobe. He filled LMPS 12 in respect of the 9mm shell and presented it to the Magistrate Court. Later, he handed over the shell to D/P/C Telu (PW6). The LMPS 12 in respect of the 9mm shell, was handed in as exhibit, marked “C”. The cross-examination of this witness suggested that there was an interference with the scene of crime. [18] **Sgt. Tumane Nthuloane (PW8),** is a member of the Lesotho Mounted Police Service stationed at Mohale’s Hoek. In 2017, he was responsible for the Mohale’s Hoek Police Station armoury department. He testified that on the 15/06/2017, he issued 9mm pistol SP1, bearing serial number; S 102462 and eight (8) rounds of live ammunition to the accused. He testified that a week or so after this issuance, he was asked by his superiors if he had collected the gun from the accused. His answer was in the negative. He was told that the gun that he had issued to the accused, had been seized from the accused. Defence did not cross-examine this witness. [19] **L/Sgt. Masithela (PW9)** , is a member of the Lesotho Mounted Police Service stationed at Quthing Police Station. He testified that on the 22/06/2017, between 10:00 am and 11:00 am, he went to Monateng Bar at Cocobe village. He examined the scene of crime, and he did not find anything, either in the form of the gun, shell, or stains of blood. The defence did not cross-examine this witness. [20] **Sub/Insp. Mollo (PW10)** , is a member of the Lesotho Mounted Police Service, attached at the ballistic section. He testified that he is a firearm examiner and has been serving in the ballistic section since 2004. He has been trained in the microscopic examination of fired bullets and cartridge cases, identification of firearms, identification of ammunition, examination of home-made devices, examination of firearms mechanisms, crime scene techniques, acquisition of fired cartridge data on integrated ballistic identification system (IBIS), restoration of obliterated numbers on metals. He has successfully completed Forensic Dactyloscopy and Forensic Ballistic examination course at Moscow University of Internal Affairs of the Russian Federation in 2007 and was awarded certificates. [21] PW10 testified further that, on the 27/06/2017, D/P/C Teli (PW6), handed in 9mm pistol SP1, serial number- S 102462 and two (2) 9mm fired cartridge cases for examination. He also testified that these exhibits were properly packaged and labelled. The purpose of the laboratory examination was to determine whether or not there is any scientific evidence to support or refute the allegation that, the firearm obtained from the suspect, shot the cartridge case found at the crime scene. He indicated that the examination revealed that the firearm SP1 pistol was manufactured in the Republic of South Africa. It was marked “F176/17. When tested the pistol could not accidentally discharge. The pistol was tested fired with two rounds of ammunition for comparison purposes. The examination revealed that generally the pistol had no defects. The cartridge cases were straight, rimmed, centre fire and copper made marked F176/17. For comparison, the cartridge cases were compared with the test cases under the comparison microscope to establish whether they were fired from one firearm or not. He attested that the cartridge cases were found to have similar class, subclass, and individual characteristics with the test cases, which imply that they have been fired in one firearm. The cartridge cases had been fired in the pistol SP1, serial number S 102462. The conclusion was that the comparisons alone provide very strong evidence that the firearm obtained from the suspect, fired the cartridge cases found at the crime scene. The cross-examination was all about the handling of the exhibits found at the crime scene. [22] The defence admitted the post-mortem report examination in terms of _section 273 (1) of Criminal Procedure and Evidence Act 1981_. _Section 273(1)_ provides that an accused or his representative in his presence may, in any criminal proceedings, admit any fact relevant to the issue and the admission shall be sufficient evidence of that fact. The post-mortem report shows that the body of the deceased was identified by Moeketsi Lehlosi, as that of Lipakuoele Lehlosi (the deceased). Death occurred due to multiple organ injuries with severe blood loss, consistent with gunshot wounding. The external examination of the deceased showed that the deceased had sustained a round wound (0.5 cm) in diameter with peripheral abrasion about the left clavicle. The wound penetrates in the left pleural space following fracture of the Nearctic clavicle. There is also perforation of the left lung (middle lobe), there is one (1) litre of blood in the left pleural cavity. The left lung also collapsed. There is extensive haemorrhage into mediastinal soft tissue. A deformed bullet was found under the skin next to the margin of the right scapular. [23] After the admission of the post-mortem report, the crown closed its case. The defence intimated to the court that it intended to apply for the discharge of the accused. On the date of hearing of the discharge application, the defence after being interrogated by the court on certain material issues, correctly conceded that the accused has a case to answer. **DEFENCE’S CASE** [24] **Lillo Pitiri- DW1** testified that on the 21/06/2017 he came to his home at Cocobe in Quthing district. Upon arrival at his parental home, he put his service pistol under a couch and went to Monateng bar. When he arrived at Monateng bar, he found the deceased, Reatile Mohai (PW2) and Mojalefa Jankie there. He bought some beer for them, and they drank together. Later, DW1 left for town in the company of the deceased and Reatile Mohai (PW2) to get some food. After the meal, they boarded a taxi which dropped them off at Koali’s bar. When Koali’s bar closed, they went back to Monateng bar. Jobo Letsie (PW1) bought some cigarette for the deceased. Both PW1 and the deceased went outside to smoke. The accused followed them. DW1 further testified that he passed PW1 and the deceased smoking. He told them that he was leaving. When he was about to exit the gate behind the bar, he heard footsteps behind him. Before he could look back to see who was following him, he heard a gun report. He fled to his home. When he got to his home, he realised that he had sustained a gun wound on the leg. [25] Later on, three officers came to his home and L/Sgt. Qacha (PW5) introduced himself and his colleagues to him. He also testified that L/Sgt. Qacha said that they heard what happed to him and they had come to take him to the doctor for medical attention. Before he could leave, he asked L/Sgt. Qacha to allow him to take the service pistol, as he could not leave it there. He said L/Sgt Qacha (PW5) asked him to carry the gun for him. He additionally testified that the gun had eight (8) rounds of live ammunition, when he handed it over to PW5. DW1 said that PW5 never warned and cautioned him nor sought his explanation, as PW5 had not come to his house to arrest him. He further testified that on the fateful day, he was not in possession of his gun as he had left it at his home. He moreover testified that the empty cartridge found at the crime scene by W/P/C Letsie (PW4) was not fired from his firearm. [26] The cross-examination was aimed at showing the accused that when L/Sgt. Qacha (PW5) arrived at the accused home he introduced himself to the accused, warned and cautioned the accused and asked for the explanation. That the accused voluntarily gave PW5 his explanation. It was further suggested to the accused under cross-examination that it was not correct that PW5 went to the accused house to take the accused to the hospital, as PW5 and his team did not know that the accused had been injured. It was further put to the accused that after he had tendered his explanation, PW5 demanded the gun from the accused. The accused handed over the gun to PW5, and when PW5 cleared the gun, he discovered that there was an empty cartridge stuck in the chamber. Further under cross-examination, it was put to the accused that it was not true that he had left the gun at his home when he went to Monateng bar that afternoon. It was further suggested to the accused that PW1, PW2, and PW3, corroborate each other that the accused was brandishing the gun on the material times. The accused stuck to his version that he gave in chief. **EVALUATION OF EVIDENCE AND DISCUSSION** [27] The Crown case is based on circumstantial evidence. In evaluating the evidence, the court is guided by the following principles: In criminal proceedings the duty is on the crown to prove its case against the accused beyond a reasonable doubt. That the crown has a duty to prove a case against the accused beyond a reasonable doubt does not mean that it must “…close every avenue of escape which may be said to be open to an accused…”**_R V Mlambo_** _**[1]**_. [28] It is not correct to approach the evidence on the basis that because the court is satisfied with the credibility and reliability of crown’s witnesses, then _ipso facto_ , the accused’s version should be rejected. The correct approach is rather: … _whether, in the light of all the evidence adduced at the trial, the guilt of the appellants was established beyond reasonable doubt. The breaking down of body evidence into its component parts is obviously a useful aid to a proper understanding and evaluation of it. But, in doing so, one must guard against tendency to focus too intently upon separate and individual part of what is, after all, a mosaic of proof. Doubts about one aspect of the evidence led in a trial may arise when the aspect is viewed in isolation. Those doubts may be set at rest when it is evaluated again together with all the other available evidence. That is not to say a broad and indulgent approach is appropriate when evaluating evidence. Far from it. There is no substitute for a detailed and critical examination of each and every component in body of evidence. But, once that has been done, it is necessary to step back a pace and consider the mosaic as a whole. If that is not done, one may fail to see the work for the trees_.**_Moshephi and Others v Rex_** _**[2]**__._ [29] Equally trite is the principle that there is no _onus_ on the accused to prove the truthfulness of his version, so long as his version is reasonably possibly true, he must be acquitted: “ _Whether I subjectively disbelieved him is, however, not the test. I need not even reject the State case in order to acquit him…I am bound to acquit him if there exists a reasonable possibility that his evidence may be true. Such is the nature of the onus on the State”.**S v Kubeka**[3]****_. [30] In**_S v Chabalala_ _**[4]**_,** the court said the following of the approach to evaluating evidence: _The trial court’s approach to the case was however holistic and in this it was undoubtedly right.**S v Van Aswegen****[5]**. The correct approach is to weigh up all the elements which point towards the guilt of the accused against all those which are indicative of his innocence, taking proper account of inherent strengths and weaknesses, probabilities and improbabilities on both sides and, having done so, to decide whether the balance weighs so heavily in favour of the State as to exclude any reasonable doubt about the accused’s guilt. The result may prove that one scrap of evidence or one defect the case for either party (such as the failure to call material witnesses concerning an identity parade) was decisive but that can only be an ex post facto determination and a trial court (and counsel) should avoid the temptation to latch onto one (apparently) obvious aspect without assessing in the context of the full picture presented in evidence…_ [ 31] **Jobo Letsie -PW1** joined the accused and Reatile Mohai (PW2) at Koali’s bar. He stated that shortly after his arrival at Koali’s bar, the accused pulled out the gun. He observed that it was a black gun. He said he asked PW2 to tell the accused to stop producing the gun. PW2 reprimanded the accused and the accused put the gun back on his waist. When Koali’s bar closed, PW1, PW2, the accused, the deceased and Poulo Lesoetsa left for Monateng bar. While on the way to Monateng bar, the accused produced the gun and cocked it. PW1 testified that they reprimanded the accused about his conduct. The accused remained behind and took out the magazine. They arrived at Monateng bar and while they were enjoying their drinks, the accused produced the gun again and cocked it in front of the deceased. PW1 testified that one ‘Mapiti Kolisang (PW3) asked the accused to hand the gun to her for safe keeping. However, the accused did not heed PW3’s advise. [32] PW1 further testified that he bought cigarette for the deceased and they both went outside to smoke. The accused followed them. The accused asked the deceased to accompany him as he was leaving. Both the accused and the deceased left PW1 smoking and went behind the bar. PW1 testified that within a short period of time, he heard a gun report. After about five seconds PW1 went to the corner of the bar to peep behind the shop. He saw that the deceased was on the ground and his back was leaning on the fence. PW1 immediately ran into the shop to report what had happened. As he was narrating to others what he saw, a second gun report went off. He proceeded to the window and peeped outside, and he realised that the deceased was still on the same spot leaning against the fence. [33] Cross-examination on PW1 did not shake him on the issue that the accused was in possession of the gun and that he produced it on the material times. Under cross-examination PW1 stood his ground that both the accused and the deceased left him together, and shortly after they had disappeared behind the bar, he heard the gun shot report, and when he went to investigate, he saw the deceased who was on the ground and his back leaning on the fence. PW1 further stood his ground that when the second gunshot report went off, the deceased was already on the ground. PW1 strongly denied the accused version that the first gun shot, hit him on the leg. He further strongly denied the accused version that when both the accused and the deceased left him where he was standing smoking, someone followed them. PW1 stood his ground that they were the only people outside the bar at that time. I find PW1’s evidence reliable and credible. [34] Both PW2 and PW3 corroborate PW1’s evidence that on the material night, the accused was in possession of the gun. Not only that the accused was armed with a gun, but that he produced the gun at different times and places. I am satisfied that PW1’s testimony is truthful and reliable. [35] **Reatile Mohai PW2** testified that he was at monateng bar when the accused joined him. The accused called the deceased at his home as the deceased’s home is not far from the bar. The deceased honoured the accused ‘s invitation as he came to Monateng bar. While they were going with their conversation, the accused produced a gun from his waist. However, the accused put the gun back on his waist. After some time, the accused invited both the deceased and PW2 to go to Quthing town with him, to buy something to eat. They left for town together. Later, they boarded a taxi to their village- Cocobe. When they got to a place called Borokhong, the accused took out his gun and fired a shot through the open window of the taxi. The taxi dropped them at Monateng bar. After a while, they proceeded to Koali’s bar. [36] PW2 called PW1 and when PW1 had picked the call, PW2 passed on the phone to the accused. PW1 then joined them at Koali’s bar. The accused produced the gun and one Puseletso- the bar tender reprimanded the accused about his conduct. When Koali’s bar closed, the accused, PW1, PW2, the deceased, Bokang Jankie and Poulo Lesoetsa together, left for Monateng bar. When they got at a place called, Pompong the accused took out his gun. PW2 testified that he asked the accused to hand the magazine to him. However, the accused did not oblige, and the accused inserted the magazine back into the gun. [37] While at Monateng bar, the accused took out the gun and the bartender- ‘Mapiti Kolisang- PW3 reprimanded the accused and asked the accused to hand the gun over to her for safe keeping, but the accused did not heed her advice. The deceased asked the accused to buy cigarette for him. The accused declined the deceased’s request on the ground that the money was for beer only. Then PW1 bought a cigarette, and the deceased and PW1 went outside to smoke. PW2 testified that the accused followed them. PW2 testified that after a short while, PW1 rushed into the bar and reported that the deceased had been shot, and amid his narration, there was a gunshot report. PW2 proceed to the scene, where the deceased was on the ground, his back leaning on the fence. They took the deceased to the hospital. [38] Under cross-examination PW2 stuck to his version that the accused was in possession of the gun, and that the accused produced it on different times and at varying places he referred to. PW2 stood his ground that when they were at Borokhong, the accused took out the gun and fired a shot in the air. [39] PW2’s evidence is corroborated by both PW1 and PW3 that while at Monateng bar, the accused produced the gun. It is further corroborated by PW1 and PW3 that after the accused had produced the gun, PW3 reprimanded the accused and asked the accused to hand the gun over to her for safe keeping, but the accused declined that offer. PW2 further corroborates PW1’s evidence that after PW1 had bought the cigarette, both PW1 and the deceased went outside, and that the accused followed them. Both PW1 and PW2 corroborate each other that the deceased was on the ground, and his back leaning against the fence. Under cross-examination, it was suggested to PW2 that on the material day, the accused was not in possession of the gun, therefore he could not have produced it as alleged. PW2 stuck to his version and was not shaken that the accused was in possession of the gun. PW2 further stuck to his version that, when they got to the valley, the accused fired a shot in the air, through the window of the vehicle. Both PW1 and PW2 corroborate each other that when they were at Koali’s bar, the accused produced the gun. Both PW1 and PW2 corroborate each other that when they reached Pompong, the accused took out the gun. I am satisfied that PW2’ s testimony is reliable and truthful. [40] **‘Mamptiti Kolisang PW3** was a bartender at Monateng bar. She testified that the accused, the deceased, PW2 and Bokang Jankie came to Monateng bar. Between 6 pm and 7 pm they left the bar. Between 8pm and 9 pm they came back to Monateng bar. PW3 testified that while she was warming her hands on the heater, she heard the gun that was being cocked. She saw the accused pointing the deceased with the gun, and the deceased put his hands up in the air. She testified that she could see the muzzle of the gun, as the gun was pointed towards her direction, because the deceased was standing close to her. PW3 testified that she reprimanded the accused about his conduct, and she asked the accused to hand over the gun to her for safe keeping. However, the accused did not heed her request. She testified that the deceased was so terrified that he asked the accused to buy him some cigarette. The accused did not buy him the cigarette, that is when PW1 bought the cigarette, lit it on the heater and proceeded outside with the deceased to smoke. She testified that the accused followed them. [41] She testified that PW1 came back into the bar terrified, saying that the deceased was on the ground. Before PW1 could finish his narration, she heard a gunshot report. She went to the window and saw the deceased on the ground. PW3 went outside through the other door to report to the guard man, what had happened. From there PW3 went to the deceased who was on the ground. She did not observe any injuries on the deceased. The deceased was then taken to the hospital. Under cross-examination, PW3 stood her ground that the accused was in possession of the gun and that he pointed the deceased with the gun. Further under cross-examination, PW3 strongly denied the accused’s version that the first gun shot hit him on the leg. [42] The evidence of PW3 that the accused was in possession of the gun while at Monateng bar, and that the accused produced the gun, is corroborated by both PW1 and PW2. PW3’s testimony that PW1 after lighting the cigarette went outside the bar with the deceased to smoke, is corroborated by both PW1 and PW2. These two witnesses (PW1 and PW2) corroborate PW3’s testimony that, the accused followed both PW1 and the deceased outside the bar. Both the testimonies of PW1 and PW2 corroborate the testimony of PW3, that PW3 reprimanded the accused for producing his gun, and further that PW3 asked the accused to hand over his gun to her for safekeeping. I find the evidence of PW3 reliable and truthful. [43] When dealing with corroboration, the court in**S v Gentle**[6]**** , said:**** “ _It must be emphasised immediately that by corroboration is meant other evidence which supports the evidence of the complainant, and which renders the evidence of the accused less probable on the issues in dispute”._ [44] I find that the accused version that he was not in possession of the gun and that he did not produce the gun at material times and places is less probable. [45] **W/P/C Lireko Letsie -PW4** is a member of the Lesotho Mounted Police Service. She testified that on the 22/06/2017, she was at Cocobe, as she was on annual leave. However, around 2:00 am, she saw WhatsApp message to the effect that there was a shooting at Monateng bar, which involved a police officer. Around 7:00 am she went to the crime scene and found an empty shell. She took the empty shell to Sgt. Tsietsi Mongalo (PW7). Under cross-examination she was taken to task on the handling of the exhibits and the interference with the crime scene. Be that as it may, PW4’s evidence that she found an empty 9mm shell at the crime scene has not been denied by the defence. [46] **L/Sgt. Qacha PW5** is a member of the Lesotho Mounted Police service stationed at Quthing Police Station. He testified that he went to the home of the accused and demanded the gun from the accused. He stated that the accused handed the gun over to him, and when he cleared it, he discovered a shell that was stuck in the chamber. He testified that the gun was loaded with six (6) rounds of live ammunition. These are the items that were eventually handed over for ballistic examination. Under cross-examination PW5 stuck to his version that when he cleared the gun, he discovered six (6) rounds of live ammunition and not eight (8) rounds of ammunition as suggested by the accused. I found PW5 to be a credible and reliable witness. He stuck to his version and was not shaken at all. [47] **D/P/C Telu (PW6)** is a member of the Lesotho Mounted Police Service, stationed at Quthing Police Station. He testified that on the 23/06/2017, he received the following items from L/Sgt. Qacha; 9mm SP1 pistol, 9mm empty shell, and six (6) rounds of live ammunition. PW6 testified further that he received another 9mm empty shell from Sgt. Mongalo (PW7), alleged to have been found at the crime scene. On the 26/06/2017, he handed over these items over to Sub/Insp. Mollo (PW10) for ballistic examination. I find the evidence of this witness reliable and credible. [48] **Sgt. Mongalo PW7** is a member of the Lesotho Mounted Police Service. He testified that on the 22/06/2017, W/P/C Letsie- PW4 handed to him a 9mm shell, alleged to have been found at the crime scene. He filled LMPS 12 in respect of the shell and took it to the Magistrate Court. Later he handed this empty shell to P/C Telu- PW6, for ballistic examination in Maseru. The LMPS 12 was handed in as exhibit, marked exhibit “C”. The defence did not dispute that PW4 found an empty shell at the scene of crime. This court has no basis for disputing that PW4 handed the empty cartridge to PW7, who then handed it over to P/C Telu- PW6 for ballistic examination. I find the testimony of this witness reliable and credible. [49] **Sgt. Tumane Nthuloane PW8** is a member of the Lesotho Mounted Police Service stationed at Mohale’s Hoek Police Station. He testified that on the 15/06/2017, he issued the pistol- SP1 S/N 102462 and eight (8) rounds of live ammunition to the accused. It is a matter of common cause that this pistol is the one that was found in the possession of the accused, by L/Sgt. Qacha-PW5. PW5 testified that he handed this gun to P/C Telu-PW6 for transmitting it to ballistic office in Maseru. It is a matter of common cause that the accused was issued eight (8) rounds of live ammunition by PW8. The defence does not dispute that the pistol- SP1, serial number S 102462 and the eight (8) rounds of ammunition had been issued to the accused by PW8. [50] **L/Sgt. Masithela PW9** is a member of the Lesotho Mounted Police Service, who was stationed at Quthing Police Station in 2017. He proceeded to the crime scene on the 22/06/2017. However, he did not observe anything at the crime scene. [51] **Sub/Insp. Mollo PW10** is a member of the Lesotho Mounted Police Service. He is a Firearms Examiner attached to the Forensic Ballistic Section of the Police Technical Support Services since 2004. [52] He testified that on the 27/06/2017, D/P/C Telu- PW6 handed in the 9mm pistol SP1 S/N 102462 and two (2) fired cartridge cases. He testified that the exhibits were properly packaged and labelled. He stated that the purpose of the laboratory examination was to determine whether or not there was any scientific evidence to support or refute the allegation that, the firearm obtained from the accused, shot the cartridge case found at the crime scene. [53] Upon testing the firearm, the pistol could not accidentally discharge. He testified that the firearm was tested fired with two (2) rounds of ammunition for test and comparison purposes. The two fired cartridges, one found at the crime scene and the other one found in the chamber of the firearm, were compared with test cases under the comparison microscope to establish whether they were fired from one firearm or not. He found that the fired cartridge cases have similar class, subclass, and individual characteristics with the test cases, which imply that they have been fired in one firearm. The two fired cartridges, one found at the crime scene and the one found in the chamber of the pistol, had been fired in the pistol. He concluded that these comparisons alone provide very strong evidence that the firearm obtained from the suspect, fired the cartridge cases found at the crime scene. [54] The starting point in relation to the pistol in question, is the fact that it is a matter of common cause that the pistol obtained from the accused had been issued to him officially. It is further not in dispute that this pistol is the one that was seized from the accused by the police, when they had gone to the accused home. This court has already found that the evidence of W/P/C Letsie (PW4) that she found the empty cartridge at the crime scene is reliable and truthful. It was not even disputed by the defence that she found the empty cartridge at the crime scene. On the other hand, the accused denies that L/Sgt. Qacha found an empty cartridge in the chamber when he cleared the gun. The accused further stated that, when the gun is fired, a shell is discharged from the gun and there is no way that an empty shell can be stuck in the chamber. [55] Accused testified that the standard operating procedure, is that when the firearm exchanges hands, the person handing over the gun to another person, must clear it first, to ensure that it is safe, and the person receiving the gun, also must clear it to ensure that it is safe. L/Sgt. Qacha testified that when the accused handed over the gun to him, he cleared it first, that is when he discovered that the empty shell was stuck in the chamber. It is this very shell that was taken to PW10 for ballistic examination. I reject the accused version that L/Sgt Qacha upon receipt of the gun, he did not clear it. This is so because I find it highly improbable that L/Sgt. Qacha could just take the gun, suspected to have been used in the commission of the offence, from the suspect, without clearing it first. The other reason is that standard operating procedure, demands that the person receiving the gun, should clear it first, for safety purpose. I doubt that L/Sgt. Qacha with his training as a police officer, coupled with his long experience in the police service would simply take the gun, from the accused, who was a suspect without first clearing it. I find that if L/Sgt. Qacha had not cleared the gun, there was no way he could have found the shell stuck in the chamber. It is for these reasons, that I find the accused version that the gun was not cleared by L/Sgt Qacha highly improbable, thus false. I therefore find L/Sgt Qacha’s evidence in this regard reliable and credible. [56] The accused denied that when the gun was confiscated it had 6 rounds of ammunition. The accused contented that the gun had eight (8) rounds of ammunition. It should be recalled that it is not disputed that upon issuance of the pistol to him, the accused was given 8 rounds of live ammunition. If this court was to go by the accused version, then considering, the fired cartridge found in the chamber, mathematically, 7 rounds of ammunition would have remained in the gun and not 8. This is so because, the empty cartridge found in the chamber means that the gun had been fired, otherwise a fired cartridge would not have been found in the chamber. Insp. Mollo strongly denied the accused version that an empty cartridge can never be stuck in the chamber. He testified that there are two reasons which may cause the extractor hook not to discharge the shell from the chamber. The first reason is that if the extractor hook is not functioning properly due to dirt on it, that might affect the spring on the extractor hook not to function properly. The second reason is, if the person loading the magazine does not align the bullets properly in the magazine, the shell might not come out when the gun is fired. I therefore find the evidence of Insp. Mollo credible in this regard and hold that an empty shell was found in the chamber of the pistol obtained from the accused. It should further be remembered that the ballistic examination, concluded that the two empty cartridges had been fired from the accused gun. Considering that 8 rounds had been issued to him, there was no way that after firing two shots, that the number of eight (8) rounds would remain the same. I therefore reject the accused’s version in this regard as false. [57] This court has already concluded that the evidence of W/P/C Letsie is credible and reliable. Her evidence that she found an empty cartridge at the crime scene, connects the gun obtained from the accused to the crime scene. The ballistic examination concluded that there is strong evidence that the fired cartridge found at the scene of crime was fired from the gun obtained from the accused. The test cases fired for comparison purposes were found to have similar class, subclass, and individual characteristics, which mean that the two fired cases from the crime scene and the test cases, had been fired in the pistol obtained from the accused. I therefore reject the accused version that the pistol had 8 rounds of ammunition, when L/Sgt. Qacha confiscated it. Two fired cartridges meant that eight (8) rounds of ammunition allocated to the accused, were reduced by two rounds, that is why six (6) rounds of ammunition remained in the magazine. It is for this reason that I believe the evidence of L/Sgt. Qacha that when the accused handed the gun to him, it had six (6) rounds of ammunition. [58] The post-mortem report shows that death was due to multiple organ injuries with severe blood loss, consistent with gunshot wounding. Round wound 0.5 cm in diameter with peripheral abrasion about the left clavicle. Wound penetrates in the left pleural space following fracture of the natal coville. There is also perforation of the left lung. There is 1 litre of blood in the left pleural cavity. The left lung also collapsed. Death was a result of gunshot wound on the deceased on the left clavicle. I have no doubt in my mind that the shell that was found at the crime scene, was discharged from the gun that was used to shoot at the deceased. Evidence of Insp. Mollo- (PW10) was to the effect that the empty cartridge found at the crime scene had been fired from the accused gun. Moreover, the gun that was officially issued to the accused, has been proved to be scientifically connected to the shell that was found at the crime scene. The only inescapable logical conclusion is that the gun that was used to kill the deceased, was the accused’s gun. [59] In my view the deceased was shot at shortly after disappearing behind the bar with the accused, having left Jobo Letsie (PW1) standing in front of the bar smoking. After the gun report, Jobo Letsie saw the deceased on the ground, his back leaning on the fence. The accused was nowhere to be seen. In my view the deceased was on the ground because he had been shot at. When the second gun report was heard the deceased was already shot. The post-mortem report shows that the deceased sustained one gunshot wound. In my view, when the deceased and the accused left Jobo Letsie (PW1) standing in front of the bar smoking, nobody followed the deceased and the accused behind the bar, because they were the only people outside the bar. When Jobo Letsie (PW1) heard the first gun report, he was the only person outside the bar. He is the one who raised an alarm after realising that the deceased was on the ground. [60] The issue for determination at this stage is whether the crown has proved its case against the accused beyond a reasonable doubt. The crime of murder consists in the unlawful and intentional killing of another human being. The intention (mens rea) required must either be _directus, eventualis_ , _indeterminatus_ etc. Direct intention to kill is much easier to discern. My view is that this case is one in which the intention to kill was _dolus eventualis._ This form of intention manifests itself in the following manner, as articulated in **_Director of Public Prosecutions, Gauteng v Pistorius_**** _**[7]**_****__** the court said the following: [A] _Person’s intention in the form of dolus eventualis arises if the perpetrator foresees the risk of death occurring, but nevertheless continues to act appreciating that death might well occur, therefore “gambling” as it were with the life of the person against whom the act is directed. It therefore consists of two parts: (1) foresight of the possibility of death occurring, and (2) reconciliation with that foreseen possibility. This second element has been expressed in various ways. For example, it has been said that the person must act “reckless as to be consequences” (a phrase that has caused some confusion as some have interpreted it to mean with gross negligence) or must have been “reconciled” with the foreseeable outcome. Terminology aside, it is necessary to stress that the wrongdoer does not have to foresee death as a probable consequence of his or her actions.**It is sufficient that the possibility of death is foreseen which, coupled with a disregard of that consequence, is sufficient to constitute the necessary criminal intent. (Emphasis added).**_ **CIRCUMSTANTIAL EVIDENCE** [61] When dealing with circumstantial evidence the court must heed the warnings as articulated in** _S v Reddy and Others**[8]**, _**the court said: _In assessing circumstantial evidence, one needs to be careful not to approach such evidence upon piece-meal basis and to subject each individual piece of evidence to a consideration of whether it excludes the reasonable possibility that the explanation given by an accused is true. The evidence needs to be considered in its totality. It is only then that one can apply the opt-quoted dictum in**R v Blom****[9]**, where reference is made to two cardinal rules of logic which cannot be ignored. These are, firstly, that the inference sought to be drawn must be consistent with all the proved facts and, secondly, the proved facts should be such that they exclude every reasonable inference from them save the one sought to be drawn._ [62] When dealing with circumstantial evidence the court in the case of **_Rex v Ts’osane_** _**[10]**_, stated that in considering circumstantial evidence in criminal cases, the inference sought to be drawn must be consistent with all proved facts, and the facts must exclude all other reasonable inferences except the one sought to be drawn. [63] **Jobo Letsie PW1** :**** There is evidence that on the fateful day/night the accused was in possession of the pistol and that he produced it on several occasions. PW1 and the deceased went outside the bar to smoke. The accused followed them. There is evidence that the accused and the deceased left together, leaving PW1 standing in front of the bar smoking. Shortly after they disappeared behind the bar, PW1 heard the gun report. When PW1 went to the corner of the bar to investigate, he observed that the deceased was on the ground. I conclude that the deceased was on the ground because he fell, after sustaining a gunshot wound. [64] The court has already held that it believes PW1, PW2 and PW3 evidence that the accused was in possession of the gun, and that the accused produced this gun on numerous occasions. [65] PW2 has testified that when PW1 raised an alarm, he peeped through the window, and saw the deceased on the ground, his back leaning on the fence. He heard a gun report. I concluded that when PW2 peeped through the window and saw the deceased on the ground, after hearing the gun report, that was the second gun report, following the one that was heard by PW1. When PW1 reported to PW2 and others that the deceased had been shot, PW1 had heard the first shot as he was outside, while the rest of the revellers were inside the bar. [66] **‘Mapiti Kolisng PW3** testified that the accused was armed with the gun and that she saw the accused pointing the deceased with the gun in the bar. She reprimanded the accused and suggested to the accused to hand the gun over to her for safe keeping. She proceeded to the scene and found the deceased on the ground, his back leaning on the fence. I conclude that when PW3 heard the gun report, the deceased was already on the ground, because the deceased fell when the first gun shot was fired. [67] **W/P/C Letsie PW4** : It is not disputed that she found an empty cartridge at the crime scene. This empty cartridge was taken for ballistic examination. [68] **L/Sgt. Qacha PW5** : His evidence was to the effect that the accused handed the gun over to him. Upon clearing the gun, he discovered an empty cartridge stuck in the chamber. The magazine was loaded with six rounds of ammunition. These three items were taken for ballistic examination. [69] **Sub. Inspector Mollo PW10** : The ballistic examination of the shell found at the crime scene, the gun, and the empty shell found in the chamber of the gun, concluded that the two shells had been fired from the gun obtained from the accused. [70] What becomes clear from the evidence of PW1 is that the deceased was shot at when PW1 heard the first gun report. The first gun report went off, shortly after the deceased and the accused left him and disappeared behind the bar. PW1 said the first gun shot went off approximately within thirty seconds after the deceased and the accused had disappeared behind the bar. The presence of the empty cartridge at the crime scene, means that the gun was fired within the area where the deceased had been found. **Accused ‘s Explanation.** [71] The accused’s explanation is that on the day/night in question he was not in the possession of the gun, as he had left the gun at his home when he arrived earlier that afternoon. His version is that crown witnesses say he was armed with the gun because they know that he is a policeman. He denied ever producing the gun, as he was not in possession of the gun. His version was that, when he left the bar with the deceased, while they were behind the bar, he heard some footsteps behind them, and before he could look back, he heard the gun report. This gun report prompted him to run away. He realised when he got to his home that he had been shot on the leg. [72] During arguments, it was submitted by Mr. Mosuoe, counsel for the accused that the police fired several shots from the accused ‘s gun to implicate the accused. However, Mr. Mosuoe conceded that this version was never put to the crown witnesses. Mr. Mosuoe submitted further that the empty shell alleged to have been found by PW4 at the crime scene, was never found at the crime scene as alleged by PW4. He invited this court not to believe the evidence of PW4 in this regard. He submitted further that 9mm pistol would never cause a round wound 0.5cm in diameter, as shown in the post-mortem report. Mr. Mosuoe conceded that he did not put this version to PW10 – the ballistic examiner. However, he insisted that a 9mm pistol would never cause a wound of that size. I hold that the accused has admitted the handing in of the post-mortem report, and in terms of section 273 (1) of the Criminal Procedure and Evidence Act, the accused has admitted the fact that the accused sustained a wound 0.5 cm in diameter, and his admission is sufficient evidence of that fact. [73] It became apparent that the defence attempted to persuade the court to reject the crown’s evidence in favour of the accused version, where the defence had failed to put the accused version to the crown’s witnesses. When confronted with similar situation the Court of Appeal in the case of **_Phaloane v Rex_**** _**[11]**_****, Maisels P.** as he then was stated: “ _It is generally accepted that the function of counsel is to put the defence case to the crown witnesses, not only to avoid the suspicion that the defence is fabricating, but to provide the witnesses with the opportunity of denying or confirming the case for the accused. Moreover, even making allowance for certain latitude that may be afforded in criminal cases for a failure to put the defence case to the crown witnesses, it is important for the defence to put its case to the prosecution witnesses as the trial court is entitled to see and hear the reaction of the witnesses to every important allegation.”_ [74] In**_Small v Smith**[12]**_ , Classer J.** pointed out that: “It _is grossly unfair and improper to let a witness’s evidence go unchallenged in cross-examination and afterwards argue that he must be disbelieved”._ [75] In **_Broadhurst v Rex_**** _**[13]**_**, **Lord Devlin** said: “ _Save in one respect, a case in which an accused gives untruthful evidence is not different from one in which he gives no evidence at all… But if on the proved facts two inference may be drawn about the accused’s conduct or state of mind, his untruthfulness is a factor which the jury can properly take into account as strengthening the inference of guilt…”_ [76] On the basis of the authorities referred to above, I am of the view that failure by the defence to put its case to the crown witnesses during cross-examination, means that the crown witnesses’ evidence has gone unchallenged, therefore it would be grossly unfair and improper to let the witnesses’ evidence go unchallenged and later argue that such evidence must be disbelieved. I therefore reject the accused version that the empty shell was not found at the crime scene by PW4. I further reject the accused version that a 9 mm pistol would never cause a round wound 0.5 cm in diameter. [77] Mr. Mosuoe, argued further that the crown’s evidence was inconsistent with the doctor’s finding regarding severe blood loss. He submitted that all the crown’s evidence revealed the fact that there was no blood found at the scene. I hold that the defence argument is ill conceived because the post-mortem report shows that the wound penetrated the left pleural space following fracture of the neurotic clavicle. There is perforation of the left lung. There is 1 litre of blood in the left pleural cavity. The report shows that there was one litre of blood in the left cavity, and I find that it was an internal bleeding as opposed to external bleeding. That is why none of the crown witnesses observed any blood on the deceased or at the crime scene. [78] It is worth mentioning that PW1 said after the first gun report, he went to the corner of the bar to see what was happening. That is when he saw the deceased on the ground. I am of the view that the deceased was shot at when the first gun shot was fired. It is worth noting that PW1 testified that no one followed the deceased and the accused, as they left him alone there smoking. It was within a short space of time (thirty seconds) after their disappearance from PW1 that the gun shot went off. It is highly improbable that the accused was shot at when the first gun report went off, because PW1 immediately following the first gunshot report, peeped at the corner of the bar, and saw that the deceased was on the ground. The deceased was on the ground because he had been shot at. It is highly improbable that one gunshot would hit the deceased on the neck and hit the accused on the leg, at the same time. The accused’s version that someone followed them and shot at him is not reasonably possibly true and is rejected as false. [79] D/P/C Telu- PW6 testified that he proceeded to the home of the accused. He cautioned and warned the accused and sought his explanation. He testified that the accused explanation was that, when the accused and the deceased were behind the shop, the accused pointed the deceased with the gun, and the accused was not aware that the gun was engaged, a shot went off and hit the deceased on the chest. The accused ran away from the scene. On the way he hatched a plan to shoot himself in the leg as a cover up. I am of the view that the injury on the accused was self-inflicted by the accused, to give the impression that he had been attacked. If the first gun shot hit the accused on the leg, how come that the deceased fell after the first gunshot report. The answer is simply that the first gun shot hit the deceased. When the second gunshot report was heard by PW1, PW2 and PW3, the deceased was already on the ground because he had been hit by the first gun shot. I have no doubt in my mind that when the second gun report went off, it was that self-inflicted shot by the accused on his leg, to cover up his earlier conduct. [80] The inference I am drawing from the evidence is that the deceased was shot at by the accused. The inference is consistent with the following proven facts: (a) The accused was armed with the pistol on the fateful night. The same gun which had been officially issued to him. (b) The accused pulled out the gun on several occasions, and on one occasion pointed the deceased with it. (c) 9 mm empty shell was found at the crime scene. (d) The deceased sustained a gunshot wound. (e) The accused and the deceased together went behind the bar, and shortly thereafter the gun shot went off. (f) Immediately after the first gun report the deceased fell to the ground and he never got up. (g) Nobody followed the deceased and the accused as they left PW1 standing in front of the bar. (h) The 9mm empty shell found at the crime scene was fired from the accused’s gun. [81] Evidence led has been to the effect that though there was no direct evidence to say the accused was seen shooting the deceased. However, the empty cartridge that was found at the crime scene, matched the gun that was seized from the accused, and that the empty cartridge had been fired from the accused gun. Having dealt with the merits and demerits of the versions of both the crown and the accused, together with the probabilities and improbabilities of each version, I am of the view that I am justified in concluding that as follows. (1) The accused is guilty of murder with _dolus eventualis_. My Assessors agree. **SENTENCING** **Extenuating Circumstances** [82]_Section 296 (1) of the Criminal Procedure and Evidence Act 1981_ , provides that, where the High Court convicts a person of murder, it shall state whether in its opinion there are extenuating circumstances and if it is of the opinion that there are such circumstances, it may specify them. _Section 296 (2)_ provides that in deciding whether there are any extenuating circumstances, the High Court shall take into consideration the standards of behaviour of an ordinary person of class of the community to which the accused belongs. [83] In the case of **_Lefaso V Rex_**[14], **Schutz P.** explained extenuating circumstances as follows: “ _Extenuating circumstances are such as reduce the moral, if not the legal guilt of the accused. The onus of proving them on a balance of probability rests on the accused_ ”. [84] In **_Letuka v Rex_**[15], **Steyn P** stated that extenuating circumstances are any facts associated with the commission of the crime, whose effect in the minds of reasonable persons is to reduce the moral blameworthiness of the accused, as distinct from the accused’s legal culpability[16]. [85] The Court of Appeal in the **_Letuka case_** (_supra_) stated that there is ample authority for the proposition that the subjective state of mind of the accused is certainly one factor which can be considered in determining whether extenuating circumstances are present. Moreover, it is one that stretches to each and every factor which may throw light on what went on in the accused’s mind. See **_S v Mafela_**[17] and **_S v Petrus_**[18]. [86] The Court of Appeal in the **_Letuka case_** (_supra_) remarked further that, each factor may individually have little weight taken cumulatively however, they may well tip the scale in an accused’s favour when evaluated against the aggravating features. Factors which can be considered include the following; youth, liquor, emotional conflict, the nature of the motive, provocation, sub-normal intelligence, general background, impulsiveness, a lesser part on the commission of the murder, absence of _dolus directus_ (**_S v Ngobeni_**[19], **_Mohlalisi and Others_**[20]), belief in witchcraft, absence of premeditation or planning, heavy confrontation between an accused and the deceased before murder, rage of an accused (See **_S v Prins_**[21]). [87] In the **_Letuka case_** (_supra_) **Steyn P**. stated that: “ _It is trite that mere presence of one of these features do not axiomatically mean that they are extenuating in relation to the commission of the crime in casu. Each factor must be weighed and assessed in the light of the evidence as a whole and its relevance to the conduct and the state of mind of the accused, as well as cumulatively with any other factor associated with the commission of the offence**[22]**”._ [88]__ I conclude that there are extenuating circumstances in favour of the accused person, to wit; the accused had been drinking alcohol on the fateful night, the accused has been found guilty of murder with _dolus eventualis_ , this means there is absence of _dolus directus_ , and there was absence of premeditation or planning of the killing of the deceased. At the time of the commission of this offence the accused was aged twenty-five years, therefore I have considered that he was a youth. [89] The court has now come to the most difficult stage of the trial which is the passing of the appropriate and just sentence that will serve the interests of justice. In passing sentence this court should consider three main factors, which are the nature of the offence, the interests of the accused, and the interests of society at large. Murder is a capital offence which carries with its maxim punishment in this country which no longer seems to be a deterrent anymore. In cases such as this one, where the court finds that the death sentence is not appropriate under the circumstances, imprisonment is the only appropriate sentence. In the case of **_Rex v Ranthithi and Another_**[23], **Ramodibedi JA** , as he then was, stated that in determining a proper sentence, it is necessary to have regard to the trial consisting of the offence, the offender and the interests of society. As regards the consideration relating to the crime committed, there can be no doubt that murder is a very serious offence. This court believes in sanctity of human life. It is in the interests of society that people convicted of murder be put away for a long time. This is so in order to protect society itself against such people. There must also be a distinction drawn between sentence for murder and sentence for culpable homicide. The court is enjoined to strike a proper balance between all these factors. [90] In **_R v Rajivee Soni_**[24], It was remarked that a court must not over-emphasise one factor and ultimately a balance must be struck. In** _S v Kruger**[25]** _**the court remarked [p]unishing a convicted person should not be like taking revenge. In my view, every sentence that must be imposed must be tempered with a degree of mercy no matter the crime. A sentencing court must not over-emphasise the public interest and general deterrence. The Supreme Court of Appeal in **_S v Scott-Crossley_**** _**[26]**_****__** said the following: “ _Plainly any sentence imposed must be deterrent and retributive force. But of course, one must not sacrifice an accused person on the altar of deterrence. Whilst deterrence and retribution are legitimate elements of punishments, they are not the only ones, or for that matter even the overriding ones. The judgment further states at para 35:_ “ _It is true that it is in the interests of justice that crime should be punished. However, punishment that is excessive serves neither the interests of justice nor those of society_ ”. [91] The court in **_Soni’s case_** _(supra_) remarked further at page 34, that as our courts have often said, the object of sentencing is to serve the public interest and not satisfy public opinion. In **_S v Mhlakaza and Another_**** _**[27]**_**, **Harms JA** said the following: “ _It remains the court’s duty to impose fearlessly an appropriate and fair sentence even if the sentence does not satisfy the public_ ”. [92] The crown stated that the accused has no record of previous convictions. On mitigation of sentence Mr. Mosuoe on behalf of the accused submitted the following mitigating factors, to wit; that at the commission of this offence the accused was a young man of twenty-five years, who still has a bright future ahead of him, that the accused attended his trial to completion without failure, he has a five year daughter who is dependent on him, he is a divorcee and is engaged to his fiancée who is currently pregnant with his child, he is a reformed man because since the occurrence of this offence, he stopped drinking alcohol, he is a breadwinner, he financially maintains his sister’s children, he did not plan the killing of the deceased, and that he had drank some alcohol. [93] On aggravation of sentence, Adv. Tlali for the crown submitted that in passing the appropriate sentence the court should consider that murder is a serious offence, which should be severely punished. He submitted that the court should pass a sentence that demonstrates that the courts abhor the conduct of the accused and the like-minded. Adv. Tlali submitted that the court cannot ignore the prevalence of murder in the Mountain Kingdom, where the killing of the people with guns appears to be the order of the day. It is the courts that can come to the rescue of the nation by imposing severe sentences. He submitted that the accused is a police officer whose duty inter alia involves protection of the lives of the citizens and their property, but not to harm them. He submitted further that the court should consider that a state gun has been used in this case. He contended that if the court imposes sentence that does not demonstrate that the courts cannot tolerate the behaviour like that of the accused, the nation will be in danger. [94] In the case of **_Scout v Rex_**[28], the Court of Appeal stated that sentence is pre-eminently a matter in the discretion of the trial court and that interference with a sentence is only justified on limited grounds. It is in the interest of society that people convicted of murder be put away for a long time. None the less, a sentence for murder must be individually tailored to the facts of each case. Thus, some cases call for heavier sentences than others[29]. [95] In the case of **_Rex v Tumelo Manesa_**[30], **Majara J** , as she then was, when dealing with mitigating factors for sentence, had this to say: "_I now proceed to consider the factors that were pleaded on the accused’s behalf in mitigation of his sentence to wit: that he is a first offender, he showed remorse by pleading guilty to the charge and thus saving court’s time, he is uneducated thus his distinction between right and wrong differs from that of a more educated person. I do accept that all these should count in the accused’s favour. However, as I have stated, I also have to strike a proper balance between those factors and others such as the nature of the offence, the interests of the victim and those of society at large. Further, it is my view that it does not take education for one to know that use of force and violence against other human beings is a terrible and unjustifiable thing. I have already stated that every member of society looks up to the courts for the protection of the vulnerable and censure and punish crime. I most certainly have the duty to fiercely guard and promote the rule of law, not to mention winning back the confidence of the public in the criminal justice system, which has steadily been eroded over time_ ”. [96] In the case of **_Rex v Ranthithi and Another_**** _**[31]**_****_,_** **Ramodibedi JA** , as he then, stated that in determining a proper sentence, it is necessary to have regard to the trial consisting of the offence, the offender and the interests of society. See **_S v Zinn_**[32]. As regards the consideration relating to the crime committed, there can be no doubt that murder is a very serious offence. This court believes in the sanctity of human life. It is in the interests of society that people convicted of murder be put away for a long time. This is so in order to protect society itself against such people. There must also be a distinction drawn between sentence for murder and sentence for culpable homicide. Regarding the personal circumstances of the accused, the following factors must be considered; accused is the first offender, accused is unsophisticated, tribesman from the rural area, by pleading guilty. [97] I now proceed to consider factors that were pleaded on the behalf of the accused in mitigation of his sentence to wit; that he is the first offender, he was a young man of twenty- five years at the time of the commission of this offence. I have considered that the accused is not someone who is prone to offending against the law. He is currently thirty-one years, and he has a five-year-old daughter. He is a bread winner, supporting his sister and her children. He had been drinking alcohol on the fateful day, that since the occurrence of this incident, the accused stopped drinking alcohol. I have considered that he is a divorcee, and his fiancée is pregnant with his child. I accept that all these factors favour the accused person. However, this court must strike a balance between these factors and others such as the nature of the offence, the interests of the victim and those of society at large, prevalence of the kind of crime which the accused has committed either throughout the country and or within a specified or limited area, the restitution undertaken by a wrongdoer, remorse shown by a wrongdoer and of course some other related circumstances. [98] On the other hand the court has considered the following aggravating factors to wit; that the deceased was a young man in his early twenties, when he met his death, the deceased’s parents lost their son at the hands of the accused, the sentence to be imposed by this court should deter other people from committing similar offence as the accused, the sentence to be imposed by this court should restore the society’s confidence in the courts of law. [99] This court has further considered that murder is a serious offence, and the sentence that this court should impose must reflect the seriousness of this offence. This court believes in the sanctity of human life. The life of the deceased in this matter was taken away, by the accused who is a police officer, whose official duty amongst others was to protect lives of the citizens of this country. Sadly, the life of the young man was lost at the hands of the police officer. I have also considered that the accused is a trained police officer. I have taken judicial notice of the fact that, training of police officers, amongst others involves the use of firearm and its handling. The accused knew that it was wrong to handle the gun in the manner he did, but despite several reprimands he continued with his conduct. As a trained police officer, he knows better that a gun is a lethal weapon, which should always be handled with utmost care. I agree with Adv. Tlali that the prevalence of killings with guns in Lesotho is very high, and that the accused should be punished severely so that those like him, can learn that courts will not tolerate this kind of behaviour. This court must send a strong message to the accused and others who think like him, that resort to violence through use of guns, cannot go unpunished. The court has taken into consideration that murder is prevalent in this country, and this court should demonstrate in its sentence that society at large should be protected against such people, and those who commit murder should be put away for a long time, to protect members of society from such people. I have had an occasion to observe the demeanour of the accused throughout the trial. I got the impression that the accused did not show any remorse. I have considered this factor in passing this sentence on the accused. The parents and the relatives of the deceased have been permanently robbed of their loved son. [100] I have concluded that the most appropriate sentence that will fit this crime, the offender, and the interests of society in these circumstances is the following. **ORDER** 1. The accused is sentenced to twenty (20) years imprisonment. My Assessors agree. **DISPOSAL ORDER** 1. In terms of _section 56 (1) (b) of the Criminal Procedure and Evidence Act 1981_ , the exhibits, to wit: the pistol SP1, serial number **S 102462** and the six (6) 9mm rounds of live ammunition should be returned to the office of the Commissioner of Police. **____________________** **T.J. MOKOKO** **JUDGE** **FOR THE CROWN:** ADV. M. TLALI **FOR THE ACCUSED:** Mr. P. M. MOSUOE * * * [1] 1957 (4) SA 727 (A) at 738 A-C [2] LAC (1980-1984) 57 at 59 F – H [3] 1982 (1) SA 534 (W) at 537 F – H [4] 2003 (1) SACR 134 (SCA) at para. 15 [5] 2001 (2) SACR 97 (SCA) [6] _2005 (1) SACR 420 (SCA) at 430_ [7] [[2015] ZASCA 204](/akn/za/judgment/zasca/2015/204); [2016] 1 ALL SA 346 (SCA) at para. 26 [8] 1996 (2) SACR (A) 8C-E [9] 1939 AD 188 at 202 -203 [10] 1995-1999 LAC 635 [11] 1981 (2) LLR at 246 [12] 1954 (3) SA 434 [13] (1964) AC 441 at 457 [14] LAC 1990- 1994 44 [15] LAC 1995- 1999 405 [16] LAC 1995-1999 at P 405 [17] 1980 (3) SA 825 (A) [18] 1969 (4) SA 85 (A) [19] 1992 (1) SACR 628 (C) [20] LAC (1980 – 1984) 110 at 117 [21] 1990 (1) SACR 426 (A) [22] LAC 1995 – 1999 at P 423 [23] LAC 2007- 2008 245 [24] CC 29/14P at Page 34 [25] 2012 (1) SACR 369 (SCA) para 11 [26] 2008 (1) SACR 223 (SCA) [27] 1997 (1) SACR 515 (SCA) at 51 8f-g [28] LAC 2009 – 2010 279 [29] LAC 2009 – 2010 at P 289 [30] CRI/S/4/10 [2011] LSHC 45 (31 March 2011) [31] LAC 2007-2008 245 [32]1969 (2) SA 537 (A) #### __Related documents ▲ To the top >

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