By Nat Molomo

MASERU — Three men charged with death of a local radio journalist Thabang Moliko have applied for discharge.

Advocate Thulo Hoeane, for the accused, asked the court to return the verdict of not guilty upon the two accused because the crown has failed to prove its case.

He further indicated to the court that the crown evidence was contradictory and unhelpful to the court.

The third accused had been discharged after the crown could not establish any case against him.

Moliko a local radio journalist was allegedly killed by Molupe “Tsenyane” Temo, Seabata “Nonyana” Sekane and Moeketsi “Tally” Talanyane on March 29, 2012 near Sefika Bus Stop, Maseru.

The accused are also charged with contravening provisions of section 3 (1) (2) (a) of the Internal Security Act (Arms) and Ammunition) 1996 as amended by section 3 of Amendment Act of 1999.

They were found in possession of a firearm without a certificate.

Hoeane implored the court to discharge the two men arguing that even to call them into the witness box to give evidence would be nothing but to fill the gaping holes in the crown’s case.

“This would be tantamount to the accused convicting themselves innocent as they are sitting in the dock,” Hoeane submitted.

Hoeane pointed to the court the basis of this application was that the crown, having wound up its case with 11 witnesses, had failed to establish a case against which the accused could be called upon to answer.

Referring to section 175 (3) of Criminal Procedure and Evidence Act (CPE) 1981, he argued that there is no evidence that the accused committed the offence with which they are charged.

Hoeane said some crown witnesses like Moholi Lebesa, the first crown witness, had testified that he knew the deceased but knew absolutely nothing about anything to do with the cause of his death, and did not even know the accused persons.

On the evidence of one of the witnesses, Tšepiso Taaso, Hoeane said that witness had told the court he saw an unknown person shooting at a person unknown to him.

He also referred to the police evidence, of Police Constable Mokole, who testified that following their investigations, they had retrieved a .38 Special revolver with six rounds from Temo.

According to Hoeane this was denied in cross-examination. The defence lawyer also referred to  evidence of other crown witness like Police Constable Matobako, who he said, testified about retrieving a .38 special revolver and went further to give its serial number, and handed in a dead bullet.

All this, Hoeane said, was denied in cross-examination.

He criticised evidence of other crown witnesses, such as Police Constable Motanya, who attended an autopsy by Dr Tlhabi Moorosi, who had retrieved a bullet from the back of the deceased’ head. The bullet was given to another police officer, PC Matobako who took it to ballistic division.

The defence lawyer said this is circumstantial evidence. On the evidence of P/W Khauoe, he submitted that this is evidence of an expert on firearms who maintained to the end that the firearm that was given to her for examination was a .357 Taurus revolver.

According to Hoeane, she told the court she did not know any .38 special and that the firearm she handed to PC Matobako was a .357 Taurus.

He submitted that the ballistic expert (Khauloe) never did any ballistic tests in relation to the .38 special.

But the crown counsel Advocate L.Mofelikoane submitted that the crown has passed the test that the court has to apply in dealing with an application for discharge as far as accused one is concerned.

She said the crown has established through the evidence of all witnesses against accused one Temo.

On the submission that the police witnesses speak of two different weapons a .38 special and a .357, the crown said the expert had confirmed that the same gun she saw before this court is the one she received from PC Matobako and she compared it with the dead bullet which jointly matched with the gun as an exhibit.

“It is not a question of whether the crown has established its case beyond reasonable doubt or not but whether it has established a prema facie case against the accused.

The crown further indicated that the firearm found in Temo’s possession had been found the one which was used to shoot the deceased.

The crown submitted that as a result the accused has a case to answer and should not be released at this stage.

On accused three Talanyane conceded that the crown has not established a case for him to answer and his application for discharge was not opposed.

According to the crown accused two Sekane should not be released at this stage.

The evidence had shown that a crown witness took the two accused to Mafeteng to collect a firearm. The court reserved a ruling to December 5, 2013.