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Mogorosi v The State (CA 29 of 1984 ) [1984] BWCA 24 (4 December 1984)
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.RTF of original document
IH THE . COURT OF APPEAL OF BOTSWANA
Court of Appeal CA 29 of 1984 Hisfa Court Trial 8c. 6 of 1963
In the matter oft
SNICKSON MOGQROSI
Appellant
vs
THE STATE
Appellant in person
Mr* 2. Makhwade for the State
CORAM I O'BRIEN QUMN CJ. BARON JA. AGUDA JA,
JUDGMENT
O'BRIEN QUINN. CJ.
The appellant haa appealed against the sentence of 5 years imprisonment passed on him by Corduff, J* sitting in the High Court at Franoistown on 28th February 1984
on a oonviotion of manslaughter.
The appellant was originally charged with the murder of one Margaret Kenosi on or about the 13th September 1983 and, after trial,
the learned trial judge was satisfied that the appellant did kick the deoeased at least once, that the deceased1s stomach waa bruised and that the kiok waa directed at her abdomen* He was also satisfied that the appellant struck the deoeased with clenched iistc aM he rejected the appellant's evidence that he had been chastising and disciplining
the deoeased in a cool and calculated manner.
The deoeased sustained a three-inch laceration of the liver along the line of the ooramon bile which led to haemorrhage which In turn led
2
to shook resulting in death.
The learned trial judge said in his judgment that, from the evidence
of Doctor Sayana, he was satisfied that considerable force would be
required to laoerate the deceased's liver in the way described in the
post-mortem report and thatt
"•••••• the force involved was considerable and far and away
greater than would be used in administering lawful chastisement."
He went on to say that an intention to do grievioua harm could
be inferred from the nature of the assault and the resultant injury and
that the prosecution had established the necessary ffltffll rWt for murder*
However, he held that it must be aooepted from the evidence as a whole
that the appellant was provoked within the meaning of the term given in
section 211 of the Penal Code and that his response to the provocation bore a reasonable relationship to the provocation*
He, therefore, found the appellant guilty of manslaughter and not of murder and, after considering that the appellant had seemingly a
disposition towards violence but that he was not justified in behaving in an unrestrained way in reaction to insults, sentenced him to 5 years imprisonment ordered to commence from the date of his arrest, namely 11th September 1983*
On appealk the appellant argued that the sentence was severe in view of the fact that he was family man who had nobody to look after
or pay the school fees of his minor ohildrsn and the 6 ohildren of the deceased whom he had also, now, to look after* He also urged the Court to consider that he had not intended to kill the deceased,
that he was remorseful for what he had done and that the Court should consider
that he was now 57 years of age* He pointed out that he was the sole bread-winner in the household and that with the drought his presence
vaa needed to provide for the family*
Careful consideration was given to his arguments but, in view of the gravity of the offence* and the faot that the learned trial judge had been* in our view* moat lenient in passing a sentence of 5 yaars
imprisonment only* and in having given the appellant the benefit of the doubt on the question of provocation* I deoided not to oall
upon State Counsel to reply and dismissed the appeal against sentence.
The order of dismissal was made yesterday in open Court in the presenoe of the appellant and its purport explained to hinu
Written at Lobatse this 4th day of December, 1984.
J. A. O'BRIEN QUINN
I agree
I agree
T. A* AGOBA JA,
L. S. BARON JA.
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