The accused was arraigned before this court facing a charge of murder as defined in section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].The brief allegations are, that, the accused struck the deceased, his mother, with a stone on 9 March 2018 at Matereke Village, Chief Zimunya, ...
The accused was arraigned before this court facing a charge of murder as defined in section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
The brief allegations are, that, the accused struck the deceased, his mother, with a stone on 9 March 2018 at Matereke Village, Chief Zimunya, Arda, Odzi. It is the State's contention, that, when the accused struck his mother, Constance Muchadei, he intended to kill her or realised that there was a real risk or possibility that his conduct might cause death and continued to engage in that conduct despite the risk or possibility resulting in injuries from which the said Constance Muchadei died.
The accused pleaded not guilty to the charge.
The accused's defence was basically a denial of the charges. He stood by his confirmed warned and cautioned statement which was tendered as exhibit 2 by consent. His stance was that he found the deceased already injured and lying on the floor in the house in which where many stones which showed the deceased had been struck by stones and sustained injuries on the forehead.
The accused denied even having an altercation with the deceased.
He pointed out, that, on the day in question, there were many people at the homestead drinking beer as his mother, the deceased, was in the habit of selling traditional brew.
The accused was the only witness who testified in the defence case while the State relied on 14 witnesses, two (2) of whom gave oral evidence while the other 12's evidence, which was not contentious, was formerly admitted as it appears on the summary of the State case.
Rutendo Matereke gave oral evidence.
She narrated events of the fateful day, as per her observation from the time she arrived at the scene. The witness, a member of the neighbourhood watch committee, told the court, that, upon her arrival at the scene, she received a report, that, the accused had assaulted the deceased with a stone. She entered the room and found the deceased lying unconscious on the floor. She also observed a cut on the deceased's forehead from which the deceased was bleeding.
She, with the help of others, carried the deceased outside whereupon the deceased regained consciousness.
According to the witness, the deceased spoke words to the effect, that, Benard had hurt her and was supposed to finish her off. She stated the deceased said:
“Benard why have you killed me? Come and finish me off.”
The witness told the court, that, at that stage, the accused picked another stone intending to strike the deceased and was restrained by other people.
The witness identified the stone which she recovered from the scene as the murder weapon.
She then arrested the accused, and, as she was taking the accused to the police station, she was interrupted by one Timothy Mutore who interfered insisting it was a domestic matter to be resolved at home.
The accused's mother, the deceased, who was being wheeled in a wheel barrow by Madeline Javason was then wheeled back home instead of proceeding to hospital.
The witness evidence was straight forward. She maintained her version even under cross-examination. It was clear she did not seek to exaggerate her testimony. She got to the scene after the deceased had been struck and the report she received, that the accused had struck his mother, tallied with the deceased's statement when she regained consciousness. The witness impressed the court as an honest witness.
Isaac Muchadei, a juvenile 14 year old, also gave oral evidence.
His evidence was to the effect, that, on the day in question, he was at home not having attended school at the deceased's behest. The witness told the court, that, the accused and the deceased had a misunderstanding over failure of the witness and other children to go to school in the morning. The altercation ended and people, including the accused, drank beer. Later, around 5:00pm a misunderstanding again arose between the accused and the deceased; when the deceased sought refuge inside, the accused pursued her and struck the deceased on the forehead.
The witness told the court, that, the stone used to strike the deceased was the only stone besides the deceased in the house and other stones were just outside in the yard.
The witness observed, that, the deceased was hurt on the forehead and was bleeding.
The witness's evidence tallied on all material aspects with Rutendo Matereke.
There was only one stone indoors and that was indicated as the murder weapon.
The witness evidence, that he observed the accused pursue the deceased while the accused was armed with a stone, exhibit 5, when viewed in conjunction with the fact, that, the accused and the deceased had a misunderstanding, and that the deceased sustained injuries on the forehead, gives a clear picture of what transpired.
The witness stood his ground even during cross examination.
He was clear, at the time of delivery of the fatal blow, there were not many people gathered. The accused pursued the deceased. The stone was recovered from beside the deceased indoors.
We find no reason why the witness would have given false evidence against the accused protecting the actual perpetrator.
Generally, the witness gave a substantial and credible narration of events of the fateful day regard being had to his age.
Worth noting is the fact, that, the witness, Isaac Muchadei's version tallied with Timothy Mutore's evidence which was formerly admitted in terms of the law.
The evidence of Timothy Mutore was to the effect, that, around 5:00pm the accused exchanged harsh words with the deceased. The witness observed the accused entering the house in which the deceased was and shortly after heard the deceased crying accusing the accused of stoning her. The witness rushed to the house and observed the deceased lying on the floor whilst holding her forehead from which she was bleeding.
Also formerly admitted was evidence of an 11 year old grandchild of the deceased, Maxwell Muchadei.
His evidence was essentially to the effect, that, the accused had an altercation with the deceased. At around 5:00pm the witness invited Isaac Muchadei to the scene. He witnessed the accused stone the deceased on the forehead from which she bled. The witness also saw the stone beside the deceased.
The admitted evidence corroborated the oral evidence of the two witnesses who testified, especially on the issue of altercation between the deceased and the accused and also the murder weapon and the striking of the deceased itself.
Also formerly admitted was the evidence of Madeline Javason which confirmed the deceased was injured on the forehead.
The witness, before being interrupted by one Timothy Mutore, ferried the injured deceased towards Odzi Clinic in a wheel burrow.
It is apparent the admitted evidence of Kuziva Zinyundu is that he ferried the now deceased in an ambulance from Odzi Clinic to Mutare Provincial Hospital.
At Mutare Provincial Hospital, Mufaro Mhungu admitted the deceased who passed on during admission process, following which Doctor Domonic Khulu examined the remains and compiled a post mortem report, exhibit 1, concluding that cause of death was head injury.
The police details, namely, Itai Chawatama and Artwell Mangwindime, who attended the scene, recorded statements and drew a sketch plan - their evidence was formerly admitted.
Also formerly admitted is the evidence of Liberty Mukwavaya who measured the stone and compiled a certificate of weight, exhibit 4, showing the stone weighed 2,080kg and had a circumference of 43cm.
Further adduced in evidence, by consent, were the following exhibits:
(i) The post-mortem report, exhibit 1.
(ii) The accused's confirmed warned and cautioned statement, exhibit 2.
(iii) Sketch plan, exhibit 3.
(iv) Certificate of weight, exhibit 4.
(v) The stone, exhibit 5.
The accused, in turn, testified in the defence case.
The accused insisted, that, he only got to the scene after the deceased had been struck while he was answering to the call of nature.
He could however not dispute, that, he was the only person who was with the deceased at the time the deceased was struck.
Absurdly, the accused was the only witness who observed more than one stone in the house next to the deceased.
Also, he seemed to be the only witness from those who were at the scene (Isaac Muchadei and Timothy Mutore) who did not know that he had an altercation with the deceased.
We observed and viewed the accused as a dishonest witness who was raising dust so as to mislead the court.
In the face of clear evidence that the stone recovered from the kitchen hut was the one used to strike the deceased, the accused sought to unconvincingly introduce existence of other stones so as to shift liability.
The other patrons, if they were still at the deceased's home, would have been well known to the State witnesses, and the neighbourhood watch member, Rutendo Matereke, would have taken them in for questioning if it was not clear.
Only the accused had an altercation with the deceased, and only the accused struck the deceased as evidenced by not only the deceased's utterances, which amount more to a dying declaration, but by the juvenile witnesses who were at the homestead.
The accused impressed the court as an incredible man with no conscience and heart for the truth.
He was evasive and denied even the obvious, that, the deceased died as a result of head injuries caused by being struck with a stone tendered as exhibit 5 in court.
The accused is simply foreign to truth and thus unreliable.
This unreliable personality was also envisaged in closing submissions where it is suggested, that, the accused be found guilty of culpable homicide because there was an altercation between him and his mother and that they were in a drunken state thus the accused negligently caused the death of his mother.
The accused, throughout the proceedings, as evidenced by the contradictions, inconsistencies, and change of stance in his defence, sought to raise smoke so as to mislead the court.
The accused simply has no defence.
We are alive to the fact, that, the accused has no obligation to prove his innocence; however, the accused's story has to be reasonably possibly true.
In this case, the accused's story of having gone to the lavatory and coming back after the deceased had been struck is not only unbelievable but false.
A lot of questions come in, given the eye witness evidence - inclusive of Timothy Mutore, the accused's friend. What further exposes the accused's version is that he could not have guessed his mother was lying unconscious indoors if the injury had been caused during his absence.
The accused is facing a charge of murder which requires both the actus reas and mens rea to be proved beyond reasonable doubt.
A reading of section 47(1) of the Criminal Law (Codification and Reform) Act defines murder with actual intention and murder with constructive intention.
It is apparent when there is no clear evidence of one setting out with an aim to kill, and proceeding to kill, then, the second stage of murder with constructive intention has to be considered.
This is murder emanating from the realisation or possibility of risk of death, but, despite the realization, proceed with conduct resulting in death.
The law is clear, that, where there is no actual intention, legal intention can be inferred from the circumstances of the matter, with factors such as the nature of blow, weapon used, and the body parts to which the blow is directed among others falling into consideration.
Where the State has discharged the required onus of proof, then, the accused ought to be convicted. The reverse is true, that, where the State has failed to prove the guilt of the accused beyond reasonable doubt, then, the accused ought to be acquitted.
In this case, therefore, upon considering the totality of the evidence adduced, the issue to be determined is whether or not the accused unlawfully and intentionally killed the deceased.
It is clear from the circumstances of the matter there was no plan by the accused to kill the deceased which the accused executed.
He may, from the evidence, escape liability for murder with actual intention, but, certainly, going by the nature of weapon used, a stone weighing 2,080kg, aimed at the head, one cannot fail to realize the risk of death occurring.
The accused and the deceased had both partaken the traditional beer, but, there is no evidence placed before the court to show that the accused did not know what he was doing.
In any event, if he was intoxicated, voluntary intoxication is not a defence: see S v Musina 2010 (2) ZLR 498 and also section 221 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Criminal Code).
In this case, events shortly before striking and after striking do not show, that, the accused was not capable of having foresight, that, by striking his mother with a big stone in the head there was real risk and possibility of death occurring. Despite such realisation, the accused proceeded with his conduct and struck the deceased on the head resulting in the fatal injuries.
The accused is accordingly found guilty of murder with constructive intention as defined in section 47(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
