Criminal
Trial
MAKONESE
J: The
accused was arraigned in this court on a murder charge. The state
alleges that on 29 December 2014 at Chitete 1, Lusulu, Binga, the
accused did wrongfully, unlawfully and intentionally kill and murder
Linda Bongiwe Manyathela, a female juvenile aged 6 years at the time
of her death.
The
accused pleaded not guilty to the murder charge and tendered a plea
of guilty to the lessor charge of culpable homicide.
The
state accepted the limited plea.
We
are satisfied that the concession by the state was properly made.
The
state tendered a statement of agreed facts (Exhibit 1), with the
consent of defence counsel. The statement of agreed facts is in the
following terms:
“STATEMENT
OF AGREED FACTS
The
state and the defence are agreed that the following are common cause
being that:
1.
Accused resides at his homestead, Chitete 1, Lusulu, Binga and was
aged 23 years at the time of the commission of the offence.
2.
The deceased used to reside at Qiniso Sibanda's homestead, Chitete
1, Lusulu, Binga and was aged 6 years at the time she met her death.
3.
The accused is stepfather to the deceased.
4.
On the 29th
of December 2014 the deceased was left in the custody of accused by
Sithembize Manyathela mother to the deceased.
5.
The accused wanted to go to work and he could not find the deceased
and was angry.
6.
Accused found the deceased at Adam Sibanda's homestead who is their
uncle.
7.
Accused beat the deceased with a switch and an unknown object until
the deceased became unconscious.
8.
The accused thereafter carried the deceased to Monicah Sibanda's
homestead who is mother to the accused.
9.
The accused left the deceased in the kitchen hut.
10.
Monicah Sibanda found the deceased in the kitchen hut and tried to
render first aid but the deceased showed no signs of life.
11.
The accused person pleads not guilty to murder but to culpable
homicide in that he negligently cause the death of the deceased.”
It
was clearly unlawful for the accused person to chastise the young
juvenile indiscriminately and all over the body, inflicting serious
and fatal injuries upon the defenceless child.
The
Post Mortem Report (Exhibit 2) reveals that that the cause of death
was:
(a)
subarchnoid haemorrhage;
(b)
head injuries;
Dr
S. Pesanai is a qualified medical practitioner and is attached to
United Bulawayo Hospitals. On 31 December 2014 he examined the
remains of the deceased and compiled his findings in the Post Mortem
Report number 937/934/14.
On
marks of violence the post mortem report indicates that the deceased
sustained the following injuries; abrasion on the right knee; thigh
(4x3)cm, Hip (3x2)cm, face (4x3cm, temporal region (2x1)cm, left face
(2x2)cm, multiple abrasions on the neck, too small and numerous to
measure, bruises on the buttocks and the back.
An
internal examination by the pathologist reflects that there was scalp
haematoma on the left frontal region (3x2)cm and extensive
subarchnoid haemorrhage.
In
the opinion of the Doctor, the injuries were consistent with an
assault.
On
the basis of the evidence presented before the court we were
satisfied that the accused negligently cause the death of the
juvenile.
We
found the accused not guilty of murder and duly acquitted him on that
charge. The accused was found guilty in respect of the lessor charge
of culpable homicide.
In
assessing an appropriate sentence the court took into account all the
mitigating factors advanced by the accused on behalf of the accused
on his behalf by his legal counsel.
The
accused was aged 23 years at the time of the offence.
The
accused is married to the deceased's mother and they have one child
together who is of a tender age of 1 year and 8 months. The accused
is the sole breadwinner for his family who survives by performing
part time piece jobs.
The
accused pleaded guilty and showed some amount of regret.
He
is a youthful offender and lacks maturity.
Accused's
moral blameworthiness is however on the high side. He was left in the
custody of the deceased. When he could not locate her, he searched
for her and eventually found her at Monicah Sibanda's homestead. He
was annoyed by the disappearance of the deceased and when he finally
caught up with her he was angry. He subjected to her to a brutal and
sustained assault using a switch and an unknown object. He assaulted
the deceased indiscriminately and used excessive force.
The
Post Mortem Report Exhibit 2 confirms that the deceased had multiple
bruises and abrasions all over the body. The deceased also suffered
subarchnoid haemorrhage.
The
child must have endured unimaginable pain.
It
is unconscionable that someone could inflict such injuries on a
child. This is the worst form of child abuse. This form of assault on
young children goes against all Legal Instruments on the Rights of
Children. The assault has no place in a modern society and is
barbaric.
The
courts have noted that cases of child abuse have become common place.
Parents who are charged with the duty of looking after young children
stand in loco
parentis
to the minor children.
The
young girl's only crime was that she was not at home when the
accused wanted to go and work.
The
court must pass sentences that reflect the seriousness of this type
of offence.
What
is more disconcerting is that upon realizing that the young girl was
injured and motionless, the accused carried the child on his shoulder
and dumped her at his mother's homestead. Accused did not bother to
render first aid or alert other villagers about the injured girl. The
accused fled the scene.
A
young life was needlessly lost.
The
court is of the view that a sentence that would fit the offence and
the offender is as follows:
Accused
is sentenced to 7 years imprisonment.
National
Prosecuting Authority,
the State's legal practitioners
Mashindi
and Partners,
the accused's legal practitioners
