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Nkgatogang v The State (Criminal Appeal No. 11 of 1988) [1988] BWCA 13; [1988] B.L.R. 219 (CA) (4 July 1988)

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IN THE HIGH COURT OF BOTSWANA
Criminal Appeal No. 11 of 1988
In the matter between:
BAITSEMANG NKGATOGANG Appellant
versus
THE STATE        Respondent
Mr. S. T. Pilane for the Appellant Mr. S. A. Afful for the Respondent
JUDGMENT
Coram: AMISSAH, J. P. AGUDA, J. A. DOYLE, J.A.
AGUDA, J.A.:
The appellant was charged with the murder of one Itumeleng Morupisi on the night of December 30, 1986. When he appeared before Barrington-Jones, J., on May 9, 1988, he pleaded not guilty to the charge, and the hearing commenced. On the whole the prosecution called ten witnesses whilst the appellant gave evidence in his defence and called two other witnesses. After taking the addresses of counsel for the prosecution and the defence the learned trial judge adjourned on May 17, 1988, for judgment to be delivered on May 19, 1988. In the judgment delivered on the latter date the learned trial Judge found the appellant guilty as charged and convicted him accordingly. Not finding any extenuating circumstances, the learned trial judge sentenced the appellant to death. It is against the conviction and the sentence that the appellant filed this appeal.
The undisputed facts would appear to be as follows. On the night of December 30, 1986 one man knocked on the door of the hut occupied

2
by the deceased and her grand-daughter at a place called Makoro Lands. The grand-daughter, one Ompatile Morupisi, gave evidence at the trial as PW1. According to her she answered the knock, and she was asked by the man for direction to one Radipata's place. She noticed that the man had a knife with him. Subsequently both the grand-mother and PW1 came out into the courtyard. It was the evidence of PW1 that she again saw the same man outside the courtyard where he attacked the deceased with a stick and beat her over the head with it. According to PW1 both she and the deceased ran away. It was further her evidence that later she heard the deceased scream out: "he has stabbed me with a knife!" As she walked out of the gate she realised that she was being followed by the man. She then got hold of a thorn bush branch and beat the assailant on the face three times and in the result the branch was broken. She then ran into a bush, and later went to the house of one Margaret Nkgatogang who gave evidence as PW3 where she made a report. The medical evidence by PW2, Dr. Vermoolen established that the deceased, a woman of about 70 years of age died of internal bleeding caused by penetrating wounds to the chest and abdomen.
The learned trial judge correctly appreciated the most vital issue in the case, namely the identification of the appellant as the person who assaulted and stabbed the deceased, when he said that "the question of the identification of the assailant by PW1 is, of course, vitally important in this trial." It is mainly but not entirely on this point that Mr. Pilane, Counsel for the appellant forcefully addressed this Court.
In coming to the conclusion that the appellant was indeed the assailant the learned trial Judge relied on a number of allegations

3
and circumstances. The first relates to the dress alleged worn by the
assailant. It was admittedly a moonless night and the time of the
assault was put at about 9 p.m. PW1 told the Court -
"Yes he (i.e. the assailant) was putting on a short jean trousers and he was putting on a top and I could not realise whether it was black or brown, and it is like a jersey. I cannot say whether it was brwn or black and it was open in front."
Later under cross-examination she said "I could not see properly what
he was wearing that time ... I could not see what he was putting on
top, I could only see the trouser but he was putting something open on
top." In regard to this, the learned trial Judge held that -
"Although the accused denied wearing shorts he owns a pair of jean shorts and indeed he was wearing such when he was arrested by the police the next day, the 31st December, 1986."
In my view Mr. Pilane was right in his submission that the learned trial Judge was in error by making this as one of the basis of his decision that indeed it was the appellant who was the assailant of the deceased on December 30, 1986. Mr. Afful, counsel for the Attorney-General, indeed agreed that the type of jean shorts in question was a common form of apparrel.
As stated earlier it was the evidence of PW1 that she hit the assailant thrice on the face with a thorn bush, but the Medical doctor who examined the appellant on January 1, 1987, found on him two superficial scratches, (1) at the left anterior chest above the nipple, horizontal and about 8 cm in length, and (2) at the right wrist, about 2 cm. in length. The learned trial Judge failed totally to attempt to reconcile the evidence of the doctor with that of PW1 in this regard. Had he done so, he might have come to the inevitable conclusion that it was at least doubtful if it was the appellant that

A
PW1 attacked with a thorn bush on the face on the night of December 30, 1986. The failure of the learned trial judge to direct himself on this very important issue in this case is fatal to the conviction of the appellant.
Apparently on January 6, 1987, the police took the appellant to a place where he was alleged to have thrown the knife with which he was alleged to have stabbed the deceased. Detective Sergeant Ntloyakhumo, PW7, who gave that evidence did not say how the appelant came to give him or any other police officer that information. His examination-in-chief goes as follows:
"On the 6th January, 1987 you went to the place where the accused said he had thrown the knife?
Yes. He led you to the place? Yes, my Lord. But you (were) unable to find the knife? That is correct my Lord." Clearly these questions were improperly put on examination-in-chief and should have been disallowed by the trial judge. The learned trial judge having wrongly admitted the fact thus elicited in this matter, it was his duty to disregard it. Having failed t do so, it is the duty of this court to disregard it as evidence unlawfully admitted. But the matter does not end there. In dealing with this matter the learned Judge said as follows:
"In terms of section 228(2) of Criminal Procedure and Evidence Act I formally find that it is in this pointing out the scene where he had thrown a knife and identifying the broken stick. Notwithstanding that such pointing out formed part of a confession made by the accused which was not admissible against him at the trial."

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Before us Mr. Pilane submitted very strongly that this was a
serious misdirection and an erroneous view of Section 228(2) of the
Criminal Procedure and Evidence Act. I am persuaded by the arguments
put forward by Mr. Pilane, and I find myself unable to accept the
strong submission of Mr. Afful that the view of the learned trial
Judge is correct. Section 228(2) says that -
"It shall be lawful to admit evidence that anything was pointed out by the person under trial or that any fact or thing was discovered in consequence of information given by such person, notwithstanding that such pointing out or information forms part of a confession or statement which by law is not admissible against him on such trial."
Mr. Pilane kindly brought to our atention two decisions of the
Appellant Division of the Supreme Court of South Africa based upon
similar provision of a similar Act of that country, viz. section
245(2) of the criminal Procedure and Evidence Act No. 56 of 1955.
They are: R v Tebetha 1959(2) S.A. 337, and R v Nhleko 1960 (4) SA
712.
The view I take of this provision is that it is not meant to
permit the admissibility of a confessional statement which in law is
inadmisible. What the subsection says is that it is lawful to admit
evidence that an accused person pointed out something; and that it is
lawful to admit evidence that some fact or some thing was discovered
in consequence of information supplied by an accused person. See
R. v. Nhleko, supra. In the case before us, the knife which the
appellant was alleged to have thrown to the place pointed out was not
found there. Had a knife been found the pointing out would have been
admissible to connect the appellant with the knife but the fact that
he had said he had thrown it there would not. In my view this was an

6
error in law made by the learned trial judge which was sufficient to
vitiate the conviction.
The main defence of the appellant is one of alibi. It was the
contention of Mr. Pilane that upon the facts established by the
prosecution the appellant could not have been the person who murdered
the deceased on December 30, 1986. The fact that the murder took
place sometime around 9 p.m. on that date was not much in dispute. It
was also accepted by the trial court that the appellant was able to
establish his presence at Radisele up to 7 p.m. and from about 9 p.m.
on that day. The question therefore was, apart from anything else,
could the appellant have been able to go from Radisele to Makoro
lands, committed the murder there, and returned to Radisele within the
period of about two hours. In considering this matter the learned
trial Judge said:
"But on this, I have to keep in mind that there is evidence to suggest that there is short-cut between Radisele and Makoro lands, and that one can walk the distance in about an hour; moreover, I do not think that I should lose sight on the fact that it is at least feasible that the accused may have been able to obtain a lift to the lands on an outward or return journey he might have made."
Mr. Pilane submitted before us that this amounts to very serious
misdirections, and I am in agreement with him. One witness, Daniel
Samuel, DW2, told the court in examination-in-chief that the distance
between Radisele and Makoro lands is about 10-12 kilometres, and under
cross examination that "it could take two hours from Makoro to
Radisele". On the other hand Inalame Nkgatogang, PW4, told the Court
that it would take one five hours to walk the distance between Makoro
and Radisele. According to a police witness, PW7 it would take three
to four hours. There was no shred of evidence that any one could valk

7
the distane in one hour. Therefore it was a serious misdirection by the learned trial Judge to have found that "one can walk the distance in about an hour."
Mr. Afful very properly agreed with Mr. Pilane that the rest of the so-called findings by the learned trial Judge in the above quoted passage were mere speculations. There was some evidence that there was a short-cut, but there was no shred of admissible evidence as to the distance between the two places concerned if one went through the short-cut. There was no evidence, not even any suggestion on the evidence, that the appellant had made use of the short-cut or had been given a lift in a motor vehicle that night. It is the duty of a trial judge to decide cases on credible evidence led before him, not on speculations as to what might or might not have happened, as was done in this case.
For all the reasons given above, the conviction of the appellant cannot be allowed to stand. The appeal is allowed. The conviction and sentence passed on the appellant are set aside. He is acquitted and discharged.
GIVEN AT THE COURT OF APPEAL, LOBATSE, this 4th day of July, 1988.


T. A./ AQUDA
Timor? /-IT? I nnu A T


I agree,
A. N. E. AMISSAH JUDGE PRESIDENT


I agree,
        
B. A. DOYLE JUDGE OF APPEAL.

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