MAKONESE J: The
accused who was aged 56 years at the time of this offence appears in
this court on a charge of murder. It is alleged that on the 30th
November 2008 and at village Matavire, Chief Chireya, Gokwe, accused
did wrongfully and unlawfully kill and murder a female juvenile Linda
Mutopa, then aged 8 years.
The accused pleads not guilty to
the charge and tenders a limited plea of guilty with respect to
culpable homicide.
The state accepts the limited
plea.
The brief facts of the case as
contained in the state of agreed facts (exhibit 1) are that on the
date in question accused resided with the deceased who was her
granddaughter at her homestead. In the early hours of the day accused
left her home to fetch some water, leaving the deceased and her
siblings behind.
Later in the day the accused
returned home and learnt that the deceased had consumed groundnut
seed which had been reserved for planting. The accused confronted the
deceased and demanded to know why she had consumed the groundnuts.
The deceased remained silent and accused slapped her in the face. The
accused proceeded to hold the back of the deceased's hand, hitting
the head against the kitchen wall.
The deceased fell to the ground
unconscious.
Despite attempts to render
assistance to the deceased she died as a result of injuries sustained
in the assault. The matter was reported to the police leading to the
arrest of the accused.
The accused's body was ferried
to Mpilo Central Hospital for a post mortem examination.
A report compiled by Dr I.
Jekenya under report number 548/543/2008 reveals that the proximate
cause of death was:
(a) Brain haemorrhage;
(b) head injury;
(c) assault;
On external and internal
examination the pathologist observed that the body was in an advanced
state of decomposition. The post mortem report has been marked as
exhibit 2.
We are satisfied that from the
evidence presented to this court, the accused negligently caused the
death of the deceased. The accused, however, did not have the
requisite mens
rea to bring about
the death of the juvenile.
We accordingly find the accused
not guilty in respect of the charge of murder. The accused is found
guilty of culpable homicide.
Sentence
The accused was aged 56 years old
at the time of the commission of the offence. Time has moved on.
Accused is now aged 65 years. Accused appears old and frail. She is
poor sighted. It has been submitted on her behalf that she has two
minor grand children to look after. She takes care of an elderly
sister who is mentally challenged.
The mitigating factors of this
case far outweigh the aggravating features.
The court would be failing in its
duty if it lost sight of the weighty mitigating factors that have
been placed before the court.
The matter has taken an
inordinately long time to finalise. Inspite of the fact that the
accused is partly to blame in this matter because she could not be
located at some stage during 2010, nonetheless the accused's
constitutional right to a fair and speedy trial has been violated -
the accused has waited for 9 years for her trial.
The accused has pleaded guilty
and shown remorse and contrition. She will forever live with the
stigma of having caused the death of her grandchild.
The accused has gone through
emotional and mental trauma for the period she has awaited trial. We
are informed that accused has been in remand prison for almost three
months awaiting trial since her indictment.
She appears distraught and weak.
It is the view of this court that
nothing will be achieved by sending the elderly female first offender
to prison.
The courts have a duty to uphold
the sanctity of human life but in the same breath this court has to
be alive to this stark reality of the accused's physical condition
at this stage.
A custodial sentence would be
wholly inappropriate.
This court therefore sentences
the accused as follows:
“4 years in prison wholly
suspended for 5 years on condition accused is not within that period
convicted of an offence involving violence and for which she is
sentenced to a term of imprisonment without the option of a fine.”
The National Prosecuting Authority,
State's legal practitioners
Masawi & Partners,
accused's legal practitioners
