Convicted killer escapes with lesser charge

Mpho Mokwape | Tuesday August 18, 2015 11:50

 

Poelo Kebonang, convicted of murder in 2011 was given a lesser charge by the Court of Appeal (CoA) following his appeal on the argument that the trial court did not prove he had any intention to kill the deceased.

The ground of appeal was that the state did not prove any malice.  He was accused of killing the husband of Bico Vinolia Tshegetsi, an employee of Botswana Unified Revenue Services (BURS) in 2007 while trying to rob the couple of their mobile phones.

He stabbed the deceased twice on the thigh. He was convicted of murder and sentenced to 12 years in jail. In agreement with acquitting the appellant on the murder charge was the bench comprised of Justices Ian Kirby, Monametsi Gaongalelwe and Lord Arthur Hamilton.

Reading the judgment, Justice Gaongalelwe said that malice being the essential element in the offence of murder was not proven as argued by the appellant’s lawyer.

“Malice shall be deemed to be established by evidence proving any one or more of circumstances of an intention to cause the death of or to do grievous harm to any person, whether such person is killed or not, and also knowing that the act is likely to cause death,” he said.

He explained that from the submitted facts the killer had intended on robbing the deceased of his cell phone rather than causing grievous harm.

“The evidence did not prove beyond reasonable doubt an intention to do grievous harm and further the evidence did not establish beyond reasonable doubt that  he knew that his act was likely to cause death,” he said.

Justice Gaongalelwe explained that the pertinent fact from which the inference was drawn was that the appellant had shouted ‘cellophone cellphone’ when inflicting the stab wounds and that he chose to inflict them on the thigh, a less sensitive part of the body.

“He could have easily inflicted the injuries on some more sensitive parts of the body like the abdomen, neck or head and the post mortem examination report did not reflect that the knife penetrated deep into the flesh,” he said. The judge further pointed out that the post mortem examination report though confirming that the deceased succumbed to death the same evening, did not indicate the depth of both or any of the injuries.

He said the report only stated that death was due to ‘ hemorrhages and shock’, that there were stab injuries 0.3cm apart from each other measuring 1.5 cm in length and further that the stab injuries had severed the femoral artery.

Kebonang was sentenced to 10 years behind bars of which two years and two months spent in pre-trial incarceration were deducted.