R v Refuoe Sesiu (CRI/T/0061/2025) [2025] LSHC 256 (21 November 2025)

**IN THE HIGH COURT OF LESOTHO** **CRI/T/0061/2025** **Held in Maseru** In the matter between **REX** **CROWN** And **REFUOE SESIU** **ACCUSED** _Neutral Citation:_ Rex vs Refuoe Sesiu [[2025] LSHC 382](/akn/ls/judgment/lshc/2025/382) CRIM (21st November 2025) **CORAM :** T. J. MOKOKO J **HEARD :** 18/11/2025 **DELIVERED :** 21/11/2025 **__SUMMARY__** **_Murder_** _\- The Accused pleaded the defence of self-defence and accidental stabbing of the deceased- two defences contradictory and cannot co-exist- The Court dealt with both defences- both rejected- the Crown proved beyond a reasonable doubt that the accused had the necessary mens rea- the accused was accordingly convicted of murder._ **__ANNOTATIONS__** __CITED CASES__ _LESOTHO_ _Lefaso v Rex_ _LAC 1990- 1994_ _Letuka v Rex_ _LAC 1995- 1999_ _Linake v Rex_ _LAC (2009 – 2010)_ _Mohlalisi and Others_ _LAC (1980 – 1984) 110_ _BOTSWANA_ _Bobe v The State [__2006] 1 BLR 254 (CA)_ _SOUTH AFRICA_ _R v Attwood_ _1946 AD 331_ _S v Ngobeni_ _1992 (1) SACR 628 (C)_ _S v Ntuli_ _1975 (1) SA 429 (A)_ _S v Mafela_ _1980 (3) SA 825 (A)_ _S v Petrus_ _1969 (4) SA 85 (A)_ _S v Prins_ _1990 (1) SACR 426 (A)_ __STATUTES__ _Criminal Procedure and Evidence Act 1981_ _Penal Code[Act No. 6 of 2010](/akn/ls/act/2010/6)_ **JUDGMENT** **INTRODUCTION** [1] The accused is charged with contravening _section 40 (1) of the Penal Code[Act No. 6 of 2010](/akn/ls/act/2010/6), read with section 40 (2) thereof_. In that upon or about the 27 day of November 2020, and at or near Pezzaria and Bar in the district of Thaba-Tseka, the said accused did perform an unlawful act or omission with the intention of causing the death of Batloung Jane, the said accused did commit the offence of murder of the deceased Batloung Jane, such death resulting from his act or omission, the said accused did thereby contravene the provisions of the code as aforesaid. [2] The accused pleaded not guilty to the charge. The Crown did not accept the accused’s plea; therefore, the Crown led the evidence of witnesses. **PW1- Teele Maboee** [3] He testified that in 2020 he resided at Phomolong Thaba-Tseka. He stated that he came to know the accused after the death of Batloung Jane. He testified that on 27 November 2020, he was at the Pizzaria bar with the deceased. Around 02:00 to 03:00 am, the deceased asked him to accompany him outside. Shortly after, he followed the deceased outside. The deceased encountered the accused, and he was about 2-3 steps away from them. The deceased informed him that the accused had stabbed him with a knife and that he was feeling weak. He assisted the deceased by sitting him on the stairs, and then rushed into the bar to raise the alarm. They then took the deceased to the main road to find transport to the hospital. After about 2-3 hours of being attended to, the deceased was declared dead. [4] PW1 clarified that when the deceased and the accused met, there was no fight, and no blows exchanged; they only grappled with each other's clothing. He stated that he was about 2-3 steps away and could clearly see what transpired. He mentioned that there was sufficient light in the area, provided by the large lights positioned there. He noted that the deceased had been stabbed in the upper body. [5] During cross-examination, the witness was asked whether he had seen the accused before the stabbing incident took place, and the witness replied that he had not. When asked how far he was from the deceased and the accused, the witness stated that he was approximately 2-3 steps away. When asked about the visibility at that area, the witness replied that there was enough light there due to the big lights positioned there. [6] During cross-examination, the witness was asked whether he was aware of the fight that had taken place before the stabbing incident, and the witness replied that he learned that there had been a fight previously between the deceased and the accused and other unidentified individuals. [7] During cross-examination, it was suggested to the witness that the deceased had an altercation with PW2, and the witness replied that he did not know anything about that. It was further put to the witness that the accused and PW2 arrived at the bar between 12:00 – 01:00 am, to which the witness said he did not know. It was suggested to the witness that the deceased and PW2 engaged in a fight, and were both carrying knives, and the witness replied that the deceased never carried a weapon on him. [8] During cross-examination, it was suggested to the witness that the deceased approached the accused, saying that the man who had attacked him was there. It was further suggested to the witness that the accused tried to move away, and in the process fell into a farrow, whereupon the deceased held him by the clothing, and attempted to pull the accused to the dark area. The witness denied all these allegations. It was further suggested to the witness that the deceased had slapped the accused twice, and the witness replied that, from his position, he had seen everything. He added that there was no exchange of blows between the accused and the deceased, and that no fists were thrown. [9] During cross-examination, it was suggested to the witness that the accused had heard one of the unidentified individuals telling the deceased to take something from the unnamed individual. The witness denied this suggestion. The defence put it to the witness that the accused saw the deceased holding the knife and attempted to stab him with it. The witness replied that the deceased was not holding a knife. The defence further suggested that the deceased was accompanied by several people, and the witness denied this suggestion. [10] During cross-examination, it was suggested to the witness that the accused tried to take the knife from the deceased, and the witness replied that he was the first person to follow the deceased outside, and he did not see the deceased holding a knife, nor did he see any struggle over the knife. [11] Further, during cross-examination, it was suggested to the witness that the accused managed to take the knife from the deceased while the deceased held the accused by clothing. The witness replied that he never saw any struggle over the knife. [12] It was further put to the witness that the accused disarmed the deceased, then tried to ward off the deceased’s hands with the knife, and the witness replied that it never happened. It was further suggested to the witness that while the accused stood in the furrow, the accused tried to ward off the deceased’s hands, and the accused was stabbed. The witness replied that there was no furrow at the bar. It was then suggested to the witness that the accused dropped the knife there and left the scene. The witness replied that he followed the deceased, and he was a few steps away from them when they held each other, and the deceased stabbed the deceased with the knife, and he reiterated that there was no furrow there. It was suggested to the witness that he did not say he saw the accused stabbing the deceased, and the witness replied that he saw everything because they were not far from him. [13] It was put to the witness that he said the deceased and the accused held each other, and the deceased informed the witness that he had been stabbed. The witness replied that the deceased told him that he had been stabbed and the witness added that he witnessed that too. [14] The court asked the witness to clarify whether there were other people with the deceased during the scuffle, and the witness replied that there were none. The court asked the witness if he was the only person closest to them, and he confirmed that he was. The court further asked the witness where he was standing, and he stated he was on the side of both the accused and the deceased. The court further asked the witness whether there was a furrow in their vicinity, and the witness replied that there was none. The court asked the witness whether he saw the knife after the deceased had reported that he had been stabbed, and the witness replied that he did not see it. **PW2- Kali Monaheng** [15] He testified that he resides at Hill side in Thaba-Tseka. He knows the accused as they are friends. He testified that on 27 November 2020, he was at a pizzeria bar, in the company of the accused. He stated that while there, a fight erupted, but he was not aware of how the fight started, and due to that fight, he was hit by a stone, which prompted him to leave the bar for his home. Approximately two hours later, the accused arrived and informed him that he had stabbed the deceased with the knife. [16] During cross-examination, the witness stated that he had gone to the bar with the accused. It was suggested to the witness that he had told the accused he wanted to talk to one Sethunya, but the witness denied this. It was suggested to the witness that the accused tried to stop the witness from approaching Sethunya since the witness was armed with a knife, and the witness denied this suggestion. It was suggested to the witness that he had a dispute with Sethunya, and the witness refuted this allegation. The defence then suggested that the accused tried to separate the witness from Sethunya, but the witness denied this and added that he had never fought with Sethunya. The defence then suggested to the witness that the deceased and the witness engaged in a fight and produced knives, and the witness denied these allegations. It was suggested to the witness that he did not go to the bar to drink but went via the bar while accompanying the accused to his home, and the witness denied this suggestion. [17] It was suggested to the witness that the accused returned to the bar, and the deceased approached him and held him by the clothing, and the witness replied that he did not know that. It was further suggested to the witness that when the accused tried to explain himself, the deceased slapped him, and the witness replied that he did not know. The defence then suggested that the deceased produced a knife, and the accused managed to take the knife from the deceased, to which the witness replied that he did not know. It was put to the witness that when the accused tried to ward off the deceased’s hand, the accused stabbed the deceased on the chest, to which the witness replied that he did not know. [18] The defence then put it to the witness that the accused stabbed the deceased in self-defence and accidentally, as the deceased had attacked him, and the witness replied that he was not there. It was suggested to the witness that he had taken part in the fight in which stones were thrown, but he denied this. [19] The court then asked the witness to shed light on whether there was a trench outside the bar’s yard, and the witness replied that there was none. **ADMISSIONS** [20] The following statements and reports were admitted in terms _of Section 273 (1) of the Criminal Procedure and Evidence Act 1981_. It 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._ 1\. **Report of Arrest by D/P/C Lelimo** [21] In his report, he stated that on 28/11/2020, approximately between 08:00 and 09:00 am, the accused arrived at the police station, and explained that he had murdered one Batloung Jane, and handed over the knife to him. He cautioned and warned him, and explained his rights to him, then gave him a charge of murder. He stated that he seized the knife as the exhibit. The report was marked exhibit A. **2\. Scene of Crime Report by D/P/C Monanthane** [22] He stated that on 28/11/2020, he received a report about the murder that occurred at pizzeria bar. He went to Paray hospital, accompanied by Police Lelimo. Upon examination of the body, he observed a sutured wound on the left side of the chest, and further observed that it was a large wound. The report was marked Exhibit B. **3\. LMPS 12** [23] It shows an okapi knife, brown 3-star. The LMPS 12 was marked exhibit C. The knife was marked Exhibit 1. **4\. Post-Mortem Report** [24] The report shows that death was due to one stab wound to the heart and internal bleeding. External Appearance- two stab wounds on the left chest. Pericardium, Pericardial Sac, and heart- perforation of the left ventricle of the heart, a lot of internal bleeding. Pleural sac and lungs- perforation of the right lung. Left- massive collection of blood in the thoracic cavity. The report was marked Exhibit D. Crown then closed its case. **DEFENCE’S CASE** **DW1- Refuoe Sesiu** [25] He stated that he resides at Thabong 2 Thaba-Tseka, and that he studied up to Form B. He testified that on 27/11/2020, between 01:00 and 02:00 am, he went to pizzeria bar in the company of PW2, who was accompanying him to his home. As they passed by the bar, he noticed Sethunya, the deceased, and Tsoaro. PW2 told him that he was not on good terms with Sethunya. He testified that PW2 approached one Sethunya, and a conflict ensued. He stated that he was aware that PW2 and Sethunya were armed with knives. [26] He testified that he encountered the deceased at the gate, who grabbed him by the clothing and said he had been looking for him. He stated that the deceased wanted to pull him into the dark area, and he struggled to free himself from the grip of the deceased. At that point, the deceased slapped him twice. He testified that he noticed that the deceased was holding a shiny object, and the deceased grabbed him with the left hand. He managed to take the knife from the deceased and tried to stab the deceased on the hands to free himself. He testified that by mistake, the blow landed on the chest. He then dropped the knife and went to PW2’s home. He informed PW2 that he had stabbed the deceased. [27] During cross-examination, it was suggested to the witness that he said he was stuck in the trench during the fight with the deceased, and the accused agreed with this suggestion. It was suggested that PW1 stated that there was not trench at that place, and the witness maintained that there was a furrow at that place. The witness was then asked about the identity of the person whom he claimed gave the deceased a knife, and the witness replied that there was a person there. It was suggested to the witness that PW1 said there was no exchange of blows between the accused and the deceased, and the witness persisted that the deceased slapped him. [28] During cross-examination, it was suggested to the witness that after he had disarmed the deceased, there was nothing to defend himself against. The witness replied that the deceased was still holding him. It was put to the witness that he said he stabbed the deceased on the hands, and the witness confirmed this. It was then put to him that, according to the post-mortem report, the deceased did not sustain any injuries on his hands. The witness replied that he thought that he had stabbed the deceased on the hands. The crown put it to the witness that he was not candid when he said he stabbed the deceased on the hand, because he intentionally stabbed the deceased on the chest, and the witness disputed this suggestion. It was suggested that, according to the accused’s version, after he had disarmed the deceased, the deceased was not armed; therefore, the accused should have retreated, and the witness replied that he could not run away because the deceased held him. [29] The court asked the witness to confirm whether his testimony was that he left the knife at the crime scene, and the witness confirmed this. The court then asked the witness whether he subsequently returned to the crime scene to pick up the knife, and the witness replied that he did not. The court then questioned the accused about the admitted report of Police Lelimo, that the accused handed the knife (Exhibit 1) to him, when he surrendered himself to the police. The witness replied that he did not take the knife to the police station. The court then asked whether the admitted report of Police Lelimo was false, and he said it was. [30] The court further asked the accused to confirm his testimony that he stabbed the deceased once, and the accused confirmed this. The court then asked the accused to clarify whether his defence was self-defence and accidental stabbing or both. The witness replied that his defence was self-defence. [31] The court drew the accused’s attention to the fact that the post-mortem report shows that the deceased sustained two stab wounds on the chest, and the witness replied that he was aware of one stab wound. The court then asked the accused whether he stabbed the deceased once, and the accused confirmed this. The court then asked the accused who could have inflicted the second wound, and the witness replied that he did not know because he inflicted one stab wound. The court invited the accused to respond to the evidence regarding the lighting at the location of the stabbing, which was reportedly illuminated by large lights positioned there. However, the witness contested this assertion, claiming there was insufficient light at the scene. The defence then closed its case. **Submissions by the Crown** [32] Advocate Sekoala, the crown counsel, stated that the accused admitted to stabbing the deceased. She argued that this defence should fail because the deceased did not attack the accused and was not armed with a knife, as testified by PW1. She claimed that the accused's assertion that an unidentified individual handed a knife to the deceased is untruthful, given that PW1 was clearly within view and witnessed no such event. Advocate Sekoala contended that the accused's defence of self-defence should be dismissed because the accused was not in imminent danger; thus, the stabbing of the deceased was unjustified. Finally, she noted that the defences of self-defence and accidental stabbing are contradictory and cannot coexist. **Submissions by Defence** [33] Advocate Makhera, the defence counsel, argued that the accused claims to have inflicted a single stab wound on the deceased while acting in self-defence. He stated that the deceased attacked the accused with a knife, which the accused then took from him. He emphasized that there is no evidence indicating that the accused was seen carrying a knife, and therefore, the accused's account should be taken as credible. [34] Advocate Makhera argued that the accused believed his life was in danger since the deceased’s brothers are known to possess dangerous weapons. He further claimed that the deceased confronted the accused with the intent to inflict bodily harm. Adv. Makhera stated that the means used by the accused were proportional to the threat he faced. Adv. Makhera argued that the accused accidentally stabbed the deceased in the chest while acting in self-defence. He emphasized that the accused had no intention of killing the deceased and should therefore be acquitted on the grounds of self-defence. [35] It is the accused’s defence that he acted in self-defence. The court will later deal with his other defence that the stabbing was accidental. **The Law** [36] _Section 20. (1) of the Penal Code Act, 2010_ provides that: _“No person shall be criminally responsible for the use of force in repelling an unlawful attack-_ 1. _Upon himself or herself or another person if-_ 1. _It was not reasonable to avail himself or herself of any means of retreat of which he or she was aware; and_ 2. _The degree of force used in repelling the attack was no greater than that which was reasonably necessary in the circumstances._ 2. _Upon his or her property or the property of another provided that the means he or she chooses and the degree of force he or she uses in so doing are reasonable in the circumstances.”_ [37] For the defence of self-defence to be successful, three conditions must be met. First, there must be an unlawful attack on the accused. Second, in the circumstances at the time, it was not reasonable for the accused to retreat. Lastly, the degree of force used by the accused must have been reasonably necessary to prevent the attack. These are the requirements outlined in _section 20 (1) of the Penal Code Act_. [38] Be that as it may, the principles of self-defence were well articulated in the Court of Appeal case of **_Linake v Rex_**** _**[1]**_****_,_ **where **Ramodibedi P** had this to say: At this stage I should like to repeat what l said in the Court of Appeal of Botswana in the case of **_Bobe v The State_**[2]**,** (**Grosskopf JA** and **Lord Coulsfield JA** concurring) remarked: _“Now it is a fundamental essence of this principle that where an accused person raises self-defence, the state bears the onus to negative such defence beyond reasonable doubt. Indeed, it is well established that this is so even though an accused person does not rely on self-defence. If the evidence suggests the existence of self-defence as a reasonable possibility, then the accused is entitled to an acquittal.**SeeS v Ntuli**[3]****. _ _As a general principle, there are three requirements for a successful defence of self-defence, namely, if it appears as a reasonable possibility on the evidence that:_ 1. _The accused had been unlawfully attacked and had reasonable grounds for thinking that he was in danger of death or serious injury at the hands of his attacker._ 2. _The means he used in defending himself were not excessive in relation to the danger._ 3. _And the means he used in defending himself were the only or least dangerous means whereby he could have avoided the danger.**SeeR v Attwood**[4]****.”_ **ANALYSIS AND DISCUSSION** [39] The question for determination by this court is whether the deceased attacked the accused, thus justifying the accused’s defence of self-defence. The evidence of both PW1 and the accused is critical in determining whether the accused acted in self-defence. [40] PW1 testified that he followed the deceased outside, whereupon the deceased encountered the accused. PW1 testified that when he was about to reach the accused and the deceased, he noticed that they held each other by the clothing. He stated that he was about 2 – 3 steps away from them. He stated that it was at that time that the deceased told him that the accused had stabbed him, and he felt weak. PW1 then assisted the deceased by taking him to the steps, while he went inside to raise an alarm. He stated that the place where he, the deceased, and the accused were, was sufficiently lit, as a large light illuminated the area. He stated that he was the only person closest to both the deceased and the accused, and that he was standing on their side. PW1 testified that no blows were exchanged between the accused and the deceased. [41] During cross-examination of PW1, it was put to him that the deceased caught the accused by the clothing and attempted to pull him to the dark area. PW1 denied this version. The accused further said the deceased slapped him twice, and PW1 was adamant that he was very close to them, and he did not witness the deceased slapping the deceased. PW1 reiterated that no blows were exchanged between the accused and the deceased. [42] During the cross-examination of PW1, it was suggested to the witness that the accused heard someone saying: “Hey, man, take this, “and PW1 denied this version. The defence then suggested that the accused saw that the deceased was holding a knife. PW1 denied that the deceased was holding a knife. Furthermore, the defence proposed that the deceased was in the company of several individuals, a claim that PW1 also denied. [43] Additionally, the defence suggested that the accused had managed to take the knife from the deceased and was attempting to fend off the deceased's hands with the knife until the accused stepped into a furrow. According to this account, it was during this struggle that the deceased was stabbed. It is important to note that PW1 denied the existence of a furrow at the scene. The defence further claimed that after the stabbing, the accused dropped the knife and left the scene. [44] During cross-examination of PW2, it was put to him that the deceased produced a knife, and the accused managed to take the knife from the deceased. It is worth noting that during the cross-examination of PW1, it was put to him that the accused heard someone telling the deceased to take something. Whereas during the cross-examination of PW2, the defence suggested to PW2 that the deceased had produced a knife. During the examination-in-chief, the accused stated that while he was stuck in the furrow, he heard someone say, “Take this.” He stated that he saw a shiny object in the dark. [45] It is important to note that during the cross-examination of PW2, it was suggested to him that the deceased had produced a knife; however, when the accused testified in his defence, he stated that after someone had told the deceased to take something, he saw something shiny in the dark. [46] According to PW1, he was the only person close to the accused and the deceased. He stated that since there were no people close by, after the deceased had been stabbed, he put the deceased on the steps and went inside to report that the deceased had been stabbed. Surely, if there were several people around the deceased when he was stabbed, PW1 would not have taken the trouble to leave the deceased at the steps to look for assistance. PW1’s evidence shows that he was the one who raised the alarm in the bar, because there were no people around when the stabbing took place. Surely if the accused’s version that someone gave the deceased a weapon was truthful, those people the accused claimed were around them could have observed the stabbing and would have assisted the deceased, without PW1 having to leave the deceased on the steps. The fact that PW1 assisted the deceased to sit on the steps and left him there alone, when he went to seek assistance, indicates that the accused’s version that there were several people around them, one of whom had given the deceased something, is not truthful. [47] The accused claimed that the area they were in was completely unlit. However, during the cross-examination of the crown witnesses and in his own testimony, he stated that the deceased attempted to pull him into a darker area. It's important to note that the scuffle occurred outside the bar's yard. This implies that, according to the accused, they were in a dark location. If this was indeed the case, then the deceased could not have been trying to pull him into an even darker area. Logically, if the deceased wanted to pull him into a darker space, it suggests that they were in a sufficiently lit area at the time. The accused’s version that the deceased wanted to pull him to the darker area confirms PW1’s evidence that the area where they were was sufficiently lit because of the big lights illuminating that area. [48] The accused claims that he did not see what object was handed to the deceased, but he noticed it was a shiny item due to the darkness. However, the court has already dismissed the accused's claim that it was dark where they were. During the cross-examination of PW2, it was suggested that the deceased had produced a knife. If the accused's version about the darkness were accurate, how could he have seen the deceased produce the knife? This contradiction highlights inconsistencies in the accused's testimony. [49] It is the accused’s version that someone handed the knife to the deceased. The accused did not identify the person who handed the deceased the knife. PW1 stated that he was the only person closest to the accused and the deceased. PW1 stated that he was standing on the side of the accused and the deceased when the accused stabbed the deceased. PW1’s evidence is credible because, after the stabbing, he rushed into the bar to raise the alarm. This evidence shows that no people were around the accused or the deceased. It should be remembered that PW1 left the deceased on the steps when he went inside to seek assistance. The totality of his evidence shows that the accused’s claim that several people were around them is not credible. The court therefore finds that the accused’s story that someone handed the knife to the deceased was not credible. This is further demonstrated by the accused’s version because at one point the defence said the deceased produced the knife, and later the defence’s story changed in that the defence said someone gave the deceased the knife. This contradiction shows that the accused did not take this court into his confidence about what transpired at the scene. [50] It is the accused’s defence that he acted in self-defence; however, the crown has negatived this defence because the crown has established beyond a reasonable doubt that the deceased was not armed with the knife during the scuffle. The crown has further managed to prove that the accused’s life was not in danger, as there was no threat directed to the accused by the deceased. PW1 witnessed that the accused and the deceased man handled each other without any blows being exchanged. It was at that point that the accused stabbed the deceased in the chest. It is worth noting that the deceased did not produce any weapon at any time. PW1 further vehemently denied the accused’s version that the deceased slapped the accused twice. PW1 stood his ground and was not shaken in this regard. The crown has managed to negate the accused’s defence of self-defence by showing that there was no imminent danger befalling the accused at the time he stabbed the deceased. [51] There is another issue this court has considered, directly connected to the defence of self-defence. The post-mortem shows that the deceased sustained two stab wounds on the left chest. This court has already found that the deceased was not armed at the time the accused stabbed him. It has been established by the post-mortem report that the accused stabbed the deceased twice on the vulnerable and delicate part of the body. Even assuming for a minute that the accused had acted in self-defence, two injuries would not have been justified. However, the present case is made worse by the fact that the deceased was not armed with any object, and the accused’s life was not in danger; thus, the accused was not justified in stabbing the deceased twice in the chest. There is no doubt that the means that the accused used on the fateful day were excessive when considering that the deceased was not carrying any weapon and had not slapped at the accused as claimed by the accused. The least the accused could have done was to retreat. [52] The court confronted the accused with the post-mortem report, which indicated that the deceased had sustained two stab wounds to the chest. The accused maintained that he only stabbed the deceased once. When the court inquired about the source of the second wound, the accused stuck to his assertion that he inflicted only a single wound. The defence counsel also supported the claim that the accused delivered just one blow; however, he conceded that the deceased had indeed sustained two stab wounds, although death resulted from one stab wound. [53] The court found that the accused was not truthful when he claimed he inflicted only a single stab wound. It is the court's view that the accused's denial of the second wound was an attempt to evade the fact that two stab wounds would undermine the defence of self-defence. [54] The court further questioned the accused regarding his statement that after stabbing the deceased, he dropped the knife at the scene and left. The accused maintained that this was indeed the case. The court then presented him with a report from Police Lelimo, which stated that on 28 November 2020, the accused surrendered himself to the police and handed over an okapi knife. This knife was entered into evidence as Exhibit ‘1’. However, the accused continued to assert his original claim that while he surrendered himself, he did not hand over the knife to Police Lelimo. [55] During the submissions, the court requested that the defence counsel address the issue of the defence’s admission of Police Lelimo's report. Advocate Makhera argued that, according to _Section 273(1) of the Criminal Procedure and Evidence Act of 1981,_ the defence had admitted the relevant fact concerning the issue, and this constituted sufficient evidence of that fact. This court strongly believes that the accused is not a credible witness, as he consistently denies obvious facts. [56] The post-mortem report shows that the deceased sustained two stab wounds on the left chest. The report indicates that there was a perforation of the left ventricle of the heart. There was a lot of internal bleeding. The post-mortem shows further perforation of the lung and a massive collection of blood in the thoracic/chest cavity. [57] The post-mortem report indicates that one wound perforated the ventricle of the heart, while the other perforated the lung. Both the heart and the lung were affected by the stabbing. These are fragile components of the human body. The accused deliberately targeted the chest area, which houses and protects both the heart and the lungs. The nature of the injuries sustained by the deceased demonstrates that considerable force was used in inflicting them. The injury to the lung indicates the severity of the force applied; the knife penetrated the rib cage and created a hole in the lung. The post-mortem findings reveal that these two stab wounds resulted in massive internal bleeding. Furthermore, this court acknowledges that an okapi knife is a dangerous weapon, and when used against the vulnerable parts of the human body, it is likely to cause death. The court has no doubt that this evidence shows that the accused had the necessary intention of causing the death of the deceased. [58] The defence further pleaded that the accused stabbed the deceased accidentally, as he had planned to stab the deceased on the hands, to free himself from the grip of the deceased. The court questioned the accused about his defence in this case, and he stated that it was self-defence. During submissions, Adv. Makhera submitted that in the process of defending himself, the accused accidentally stabbed the deceased. [59] The court struggled to understand the defence’s submissions that, in the process of defending himself, he accidentally stabbed the defence. The court says this because, by its nature, self-defence is a complete defence, and if successfully pleaded, the killing is justified. It is for this reason that the court agrees with the Crown‘s submission that the defence of self-defence and accidental stabbing are contradictory and cannot co-exist. [60] The reason is that if the accused's defence of self-defence had been successful, the matter would have ended. However, based on the totality of the evidence presented, the stabbing of the deceased by the accused was not accidental. The accused deliberately aimed for the deceased's chest, which is a vulnerable area of the body, resulting in perforations to both the heart and lung. [61] It is important to note that the deceased suffered two stab wounds, and there is no evidence to suggest that these wounds were inflicted accidentally. Furthermore, the accused's behaviour after the stabbing indicates his intent. He admitted to dropping the knife and leaving the scene. Someone who stabs another person accidentally would likely react differently; they would probably stay to assist the victim upon realizing what had happened. [62] The accused's immediate departure from the crime scene demonstrates that he had executed his plan and showed little regard for the deceased's well-being. In summary, his actions do not support the claim that the stabbing was accidental. **CONCLUSION** [63] The court concludes that the Crown has proven beyond a reasonable doubt that the accused possessed the necessary **_mens rea_** in the killing of the deceased. The accused's defence of self-defence and the claim that the stabbing was accidental are both rejected. **ORDER** **** The accused is found guilty of murder with _dolus eventualis_. My Assessors Agree. **SENTENCING** **Extenuating Circumstances** [64] _Section 296 (1) of the Criminal Procedure and Evidence Act**[5]** _ 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._ [65] In the case of **_Lefaso v Rex_**[6]**__ 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._ ” [66] In **_Letuka v Rex_**[7], **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[8]. [67] 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_**[9] and **_S v Petrus_**[10]. [68] 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 in the commission of the murder, absence of _dolus directus_ (**_S v Ngobeni_**[11], **_Mohlalisi and Others_**[12]), 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_**[13]). [69] 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**[14]**.”_ [70] After careful consideration of the principles enunciated in the cases referred to above, I conclude that the following extenuating circumstances exist in favour of the accused, to wit; (i) The accused was a youth aged 20 years at the time of the commission of this offence. (ii) The murder was not premeditated. 3. There was a heavy confrontation between the accused and the deceased before the murder. [71] The trial has now come to the stage of passing an appropriate sentence. In passing the sentence, the court must consider the seriousness of the offence, the interests of the accused, and the interests of society. [72] In mitigation of sentence, Adv. Makhera, the defense counsel, argued that the accused was only 20 years old at the time of the offense. He emphasized that the murder was not premeditated and noted that the case had been pending against the accused for five years. Adv. Makhera pointed out that the accused voluntarily surrendered to the police, which indicates remorse for his actions. He also mentioned that the deceased had provoked the accused. The accused, who is not married and works as a bricklayer, is now 26 years old and still qualifies as a youth. [73] During the aggravation of the sentence, Advocate Sekoala, the crown's counsel, argued that the accused used a dangerous weapon to commit the offense and specifically targeted a vulnerable area of the body, namely the chest. She contended that the accused robbed the deceased's family of their loved one by taking his life, emphasizing that they will never see him again. [74] In sentencing the accused, the court took into account that he was a young man, just 20 years old, at the time the offense was committed. The court recognized that his youth may have influenced his judgment during that period. Additionally, the incident occurred at a tavern, where both the deceased and the accused had been consuming alcoholic beverages. The court believed that the accused's actions were likely affected by the alcohol he had consumed. In sentencing the accused, the court took into account that he was a young man, just 20 years old, at the time the offense was committed. The court recognized that his youth may have influenced his judgment during that period. Additionally, the incident occurred at a tavern, where both the deceased and the accused had been consuming alcoholic beverages. The court believed that the accused's actions were likely affected by the alcohol he had consumed. [75] The court has taken into account that this matter has been looming over the accused's head for approximately five years, which has been a form of punishment in itself. It has taken about five years for the accused to learn his fate. The court also notes that the accused surrendered himself to the police following the commission of this offense, indicating that he felt remorse for his actions. [76] The court has recognized that the accused denied the evidence regarding the two stab wounds to the chest. However, the post-mortem report confirmed that the deceased indeed had sustained two stab wounds in that area. The accused's behaviour indicates that he did not fully trust the court and shows a lack of remorse for his actions. This is further complicated by the fact that the accused denied the Police report, which stated that he handed over the knife to the Police when he surrendered. Overall, the accused's actions demonstrate that he was not remorseful for what he did. [77] In determining the appropriate sentence, the court acknowledges that murder is a serious crime that warrants severe punishment. The court notes that two stab wounds were inflicted on the most vulnerable area of the body, specifically the chest. The court upholds the sanctity of life; therefore, it is imperative that those who commit murder face the full force of the law. This action is intended to convey a strong message to potential offenders that senseless killings will not be tolerated. [78] The court has further considered that the deceased was a young man aged about 20 years at the time of his demise. The family of the deceased has permanently lost their son and will never see him again. His life was cut short at a very young age, and like any parents, his parents had hoped that he would one day make them proud. Unfortunately, their dreams for him have been shattered. [79] The court concludes that the most appropriate sentence that will serve the interests of justice in this matter is the following; **Order** 1. The accused is sentenced to twenty-five years' imprisonment. My Assessors Agree. **____________________________** **T.J. MOKOKO** **JUDGE** **FOR THE CROWN :** ADV. M. SEKOALA **FOR THE DEFENCE :** ADV. MAKHERA * * * [1] LAC (2009 – 2010) at Page 7 [2] [2006] 1 BLR 254 (CA) at 257 [3] 1975 (1) SA 429 (A) [4] 1946 AD 331. [5] 1981 [6] LAC 1990- 1994 44 [7] LAC 1995- 1999 405 [8] LAC 1995-1999 at P 405 [9] 1980 (3) SA 825 (A) [10] 1969 (4) SA 85 (A) [11] 1992 (1) SACR 628 (C) [12] LAC (1980 – 1984) 110 at 117 [13] 1990 (1) SACR 426 (A) [14] LAC 1995 – 1999 at P 423