15 Feb 2021

The Court of Appeal in Gaborone has on Wednesday acquitted and discharged a murder convict, Othusitse Molefu. 

The trio of Judges; Isaac Lesetedi, Modiri Letsididi and Tebogo Tau were not satisfied that with the evidence before court, the state had proved beyond reasonable doubt that the injuries inflicted by the stone thrown by the appellant was the substantive and operative cause of death.

The Court of Appeal learnt that the appellant and the deceased were friends, and that on the evening of August 31, 2013 they were at Sesame bar in Selebi Phikwe when they got into a fight with third parties. As a result of the fight the deceased sustained serious head injuries that resulted in his death at hospital on September 06, 2013. 

Delivering the verdict, Judge Lesetedi said some of the injuries were attributed to a stone thrown by the appellant, directed to one of their opponents, but missed the target, instead hitting the deceased on the forehead. 

He said the appeal was on the basis that the prosecution had failed to prove that the deceased died as a result of the injuries inflicted by the blow from the stone thrown by the appellant and the court quo erred in rejecting the appellant’s version of events. 

Analysing the appeal, the Court of Appeal said to prove its case against the accused person, the prosecution was required to establish all the essential elements of the offence. Justice Lesetedi said the events of August 31, 2013 were that the two friends were at Sesame bar, when the first prosecution witnesses joined them holding a P100 note, which the deceased snatched from him. It was said that after a scuffle the deceased handed back the P100 note to its owner. 

The court also learnt that the appellant also snatched the P100 note from the owner, and the scuffle degenerated into a fight, and at some stage friends came into the scene.

The Court Of Appeal established that at the commencement of the trial, the appellant’s counsel admitted the post mortem report from the Forensic Pathologist who examined the body of the deceased. 

Judge Lesetedi said the prosecutor probably believing that the case on causation of death was now wrapped up believed that it was not necessary to call the pathologist to testify and explain his findings of the cause of death. 

“This has turned out to be ill-advised. The post mortem report was produced as part of the admitted evidence. It gives the cause of death as cranio-cerebral injuries,” said Judge Lesetedi

He said the pathologist report listed external and internal injuries observed on the body of the deceased. 

“He had at least five external injuries from the head right down to the right heel.  As death resulted from cranio-cerebral injuries it is only injuries to the head that will be of focus. A single external injury and seven internal injuries to the head were observed by the Pathologist. The internal injuries were observed on different parts of the skull and brain and some can easily be related to the single blow of the stone,” he said.

The judges observed that it was not clear how the fracture of the anterior cranial fossa on the left side of the head was related to the single blow from the stone which inflicted the depressed fracture of the frontal bone. 

Therefore the court observed that the issue of causation with seeming inconsistent head injuries was complicated by the fact the deceased was normally functional for at least a day after being hit by the stone thrown by the appellant. 

“It is also evident from the Pathologist’s conclusion that he grouped all the above injuries together as the cause of death. The Pathologist most likely believed that the injuries were sustained as a result of an assault from a single transaction. 

“It is unclear whether he had insufficient information on the nature of the assault to give context to the injuries. Whatever the position, the unexplained cranio-cerebral-injuries appear grave on their own and it was necessary to shed light on their contribution, if any, to the injuries to the brain and the demise of the deceased,” said Judge Lesetedi.

The court has also learnt that from the evidence of the Investigating Officer, initially, there were two accused persons in the matter, which begs the question as to why the cause of death was linked to only one blow. 

“Was there a question of who between the appellant and the former co-accused inflicted that blow, or , were they initially more than one blow forming the subject of the charge,” he said.

Judge Lesetedi said as the deceased went to the hospital on his own at least the day after the incident, the question that arises was when and how some of the internal injuries were sustained and which of them were fatal. Ends