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Selaledi v The State (Criminal Appeal No. 28 of 1986) [1986] BWCA 7 (1 January 1986)
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IN THE COURT OF APPEAL OF BOTSWANA
Criminal Appeal No. 28 of 1986
In the matter between:
BEN NTOMBO SELALEDI
Appellant
versus
THE STATE
Respondent
Mr. L. Z. Ngcongco for the Appellant Mr. S. A. Afful for the State
CORAM: A. N. E. AMISSAH, J.A. B. A. DOYLE, J. A. G. BIZOS, J. A.
JUDGMENT
BIZOS, J.A.:
The appellant was convicted by O'Brien Quinn, C.J. of Attempted Murder contrary to section 222(b) of the Penal Code and sentenced to five years imprisonment.
An appeal was noted both against the conviction and sentence.
No serious attempt was made to challenge the facts found proved.
The appellant a thirty-one year old plumber, was excessively jealous of
his twenty-year old companion of some eight months, KEAFIWE KAILE. A
few days before the 13th April, 1985 he slashed a bag belonging to her
because of his apparently unjustified suspicion that it had been given
to her by another man as an expression of his interest in her. During
the night of the 13th whilst they were in bed the appellant accused
her of being in love with one Thabo Masioae one of his relatives. She
denied this. The appellant then got out of bed and took an object
described as a string in the Indictment, as a rope in the evidence but
more correctly described as a nylon cord approximately •both a centimetre thick. He took it from under the blankets on the adjoining bed in the
i.2.j
same room. There was no explanation given as to why it was there at all. When he approached with this frightening object she sat up.
He tried to tie the cord around her neck. She struggled for some time until she tired and fell back on the bed. He tried again and
another struggle ensued. When she could not put up any further resistance she fell on the bed with her face down. He put his legs
between hers, from behind he pulled her head back and looped the long string around her neck. He tried it at the back of her neck
after pulling it at both ends. She cried out for help
whilst she could still breathe. She lost consciousness and when she came
by around the appellant was standing fe+ratr the bed holding the cord.
The appellant attempted to put up a somewhat different version which was correctly rejected by the court a quo.
The complainant, not unlike many battered wives did not immediately report the matter to the police. We do not believe that her explanation
for this delay was unacceptable. She was seen by the doctor four days later. He found that there was a bruise and single lineojr
abrasion mark circling her neck. The doctor also found that the complainant had a conjuctival haemorrhage of the left eye consistent
with strangulation.
Mr. Ngcongco in an able argument on the appellant's behalf submitted that the verdict of attempted murder was not justified by the
facts and the learned Chief Justice was not justified in finding that the appellant intended to kill her but merely to frighten her.
He further submitted that although the appellant wilfully inflicted bodily harm he should have been convicted of a lesser offence.
He submitted further that if the appellant wanted to kill the complainant there was nothing to stop him
and that we should infer from this lack of desire on the appellant's part to put an end to the complainant's life that he did not
have the necessary intention.
The learned Chief Justice found that he intended to kill her and changed his mind. We can find no reason to disagree with that conclusion. The appellant may have thought that the complainant's unconsciousness was the end of her, his fury subsided, and that is why he did not continue the attack. The appellant's sister and possibly the young person visiting them who were in the house at the time may have
responded to the complainant's cries for help. The complainant would
of not have been able to tell/them as she was unconsciousness. The learned
Judge a quo was correct to have reservations about their evidence in
view of their relationship with the appellant. The appellant's apparent
remorse by giving her water at that stage is not inconsistent with his
original intention found by the court a quo. In view of the conclusion
that we have arrived that there is no warrant to disagree with the learned
Chief Justice, it is not necessary for us to consider the interesting
argument advanced by Mr. Ngcongco as to whether or not the recklessness
or indifference shown in this case as distinct from intent would have
been sufficient to support the conviction of attempted murder.
The sentence of Five years imprisonment was a severe sentence. As, however, it was pointed out by the learned Chief Justice a serious injury was inflicted on a very sensitive part of the body which was likely to cause the death of the complainant.
Mr. Afful for the State, correctly, in our view submitted that there were no misdirections in the learned Chief Justice's judgment nor were there any other grounds to interfere with the sentence.
The appeal is dismissed.
The conviction and sentence are confirmed.
14
G. BIZOS JUDGE OF APPEAL.
I agree
A. N. E. AMISSAH
JUDGE OF APPEAL.
I agree
L/B. A. DOYLE
JUDGE OF APPEAL.
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