Lobatse High Court has freed two murder-accused persons citing lack of evidence.
The duo, Gagotshwane Ramotlopi and Kabo Ngwako last week Wednesday possibly escaped the hangman due to the State’s insufficient evidence.
The pair had been on trial accused of murdering Phologo Olefile in Basarwa Lands near Molepolole on August 12, 2009.
Justice Ranier Busang when acquitting and discharging the pair, said the State had through the trial relied on circumstantial evidence.
In his ruling he explained that for the accused persons to be convicted there has to be proof that the deceased’s death was occasioned by their actions.
This means there must be also evidence excluding other persons or other cause in the demise of the accused.
“The evidence in this case point to the presence of persons other than the accused at the scene, after the accused persons left. In my view, it is not safe to convict a person of murder on the basis of circumstantial evidence,” he said. Busang said his decision was on the basis that the Court of Appeal had cautioned that circumstantial evidence be used only when it is necessary and where there are no dangers of convicting the wrong person.
In that regard, Busang maintained that the law required more than just the accused persons being seen last in the company of the deceased.
“In a free society such as ours, people have the right and freedom to associate with whom they choose, without fear of being accused of commission of an offence by
Accordingly, the judge noted that he also drew inference against the first accused for failure to testify, stressing that for court to draw that inference there must be prima facie evidence pointing to the guilt of the accused, which called for an answer.
In that case, Busang said there was no evidence that warranted an answer from the accused persons that was so because the circumstantial evidence sought to be used against them fell far short of what was required.
He said it was clear that conclusions and opinions were based on the prosecutor’s interpretation of the facts.
“The prosecution have conveniently omitted other proved facts and made no attempt to deal with the issue of footprints and exclude any link between their owners and the alleged assault on the deceased.
Meanwhile, the State alleged that the accused persons, who did not plead guilty, murdered the deceased on that fateful night after an argument broke following a drinking spree.
They alleged that the deceased left in the company of the accused persons to buy sugar at a certain place and were all sported drinking beer until they all left the place at night around 9pm.
Further, it is alleged that they left in a donkey cart that had a bench in it and in the morning the deceased was found lying on the road naked and the said bench in pieces next to him.