Murder Accused Has Case To Answer
FRANCISTOWN: Justice Bashi Moesi has dismissed an application of a no case to answer in relation to a Mahalapye man who is charged with murder.
The accused, Bathusi Mpitsi, is charged with a single count of murder where the state alleges that he killed Maoto Biza Ntwaagae on September 30, 2016 in Mahalapye.
Justice Moesi said that for the charge to be sustainable, the state must prove that the death happened at the hands of the accused. “The requisite mental element vital in a murder case is that the accused acted with malice afterthought: that had an intention to cause the death of or do grievous harm to any person, whether such person is the person actually killed or not, knowing that the act or omission causing death is likely to cause the death of someone, whether that such person is the person actually or not although such knowledge is accompanied by indifference whether death is caused or not or by a wish that it may not be caused and whether an intention by the act or omission to facilitate the flight or escape from custody from any person who has committed or attempted to commit such an offence,” said Moesi adding that there is no obligation upon the accused to prove his innocence.
Moesi said he will without prejudging the matter, notwithstanding that the accused is alone facing a charge of murdering the deceased, incontrovertible evidence is there before court that the deceased was attacked by a group of people one of whom (Pakiri) disclosed the participation of the accused in the attack, whom, investigations revealed (a matter also confirmed by the accused), has been armed with a steel or metal pipe.
“Whilst it is true that there is also mention of an axe in the hands of one of the assailants that fact cannot offer any escape route for the accused in so far as the accused may still be caught in the net created by the provisions of either subsection 1 of section 21 of the Penal Code or section 22 of the same act.
The former renders the accused potentially liable to conviction for the murder on the grounds of aiding and abetting its commission whilst the former opens him to possible conviction on the grounds of forming a common intention to prosecute an unlawful purpose (assaulting the deceased) in conjunction with others in the course of which the murder was committed,” Moesi said.
Moesi concluded: “…In my judgment, having painstakingly examined the facts as well as the testimonies of the witnesses who testified under oath and having considered the arguments from both sides, the prosecution evidence as it stands has made out a prima facie (sufficient to establish a fact or raise a presumption unless disproved or rebutted) case in respect of the single count of murder faced by the accused. The accused person’s application for acquittal and discharge on the basis that he has no case to answer therefore fails”.