Both accused appeared before the court facing murder allegations as defined in section 47(1)(a) or (b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].It is alleged, that, on 12 October 2015, at around 0300 hours, and at Chemushowe Business Centre, Chief Chitsunge, Buhera, the two accused persons interchangeably ...
Both accused appeared before the court facing murder allegations as defined in section 47(1)(a) or (b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
It is alleged, that, on 12 October 2015, at around 0300 hours, and at Chemushowe Business Centre, Chief Chitsunge, Buhera, the two accused persons interchangeably assaulted the now deceased using switches all over the body several times. The deceased sustained serious injuries from which he died.
The body was examined by Doctor Tendayi Mutsvayi who concluded that cause of death was haemathorax (in simple terms, collection of blood between chest walls and lungs due to blunt trauma causing shock to the body).
Both accused pleaded not guilty to the charge.
The first accused denied assaulting the deceased with an intention to kill the latter. He admitted assaulting the deceased while in the company of the second accused and admitted his conduct was negligent and thus proffered a plea of guilty to culpable homicide.
The second accused denied assaulting the deceased although he was at the scene. He blamed Accused 1 for assaulting and occasioning the death of the deceased.
The State adduced the following evidence:
(i) The post-mortem report by Doctor Tendayi Mutsvayi outlining the cause of death, exhibit 1, by consent
(ii) The first accused's confirmed warned and cautioned statement, exhibit 2, by consent;
(iii) The sketch plan of the general layout of the scene, exhibit 3, by consent;
(iv) Certificate of weight of sticks, exhibit 4 and 4(a) and bundle of sticks, exhibit, 5 by consent.
Fanuel Muchengeti gave oral evidence while the rest of the witnesses, namely, Joyce Masunda, Mateya Tawanda Patson, Sophia Dhenya, Lloyd Jonhera, George Chematumba, Timothy Kapesu, Tendayi Mutsvayi and Marazi Liberty's evidence was formerly admitted in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07].
Fanuel Muchengeti was apparently the only eye witness.
His evidence was to the effect, that, he witnessed both the accused assault the deceased with switches - especially at the front of the second accused's shop. The witness, who was an employee of the second accused, told the court, that, he proceeded to raise alarm with the second accused's wife, Joyce Masunda, the second State witness.
According to the witness, Fanuel Muchengeti, the deceased was now lying down when the second accused's wife came and restrained her husband.
The witness also took away the stick which Accused 2 was holding as he restrained further assaults by switches.
The witness told the court, that, the switches used were plucked from nearby trees.
He later heard that the deceased had passed on behind a grinding mill at the same shopping centre.
The assaults were perpetrated in the early morning hours, around 0300 hours, and he learnt of the death around 1000am on the same day.
The witness appeared to have been shocked by the events of the day on question as he appeared to be in a state of fright when he testified on the actual assault and eventual death. The fear, however, did not cloud his evidence as clearly what prompted him to go and call the second accused's wife was the attack on the deceased.
His evidence, in so far as the two accused both assaulted the deceased, tallied with the first accused's version to a great extent.
The witness generally gave his evidence in a straight forward manner. He was economical with detail but was sincere with the court that both the accused assaulted the deceased who was very drunk compared to the two accused persons.
The first accused maintained his plea of guilty to culpable homicide.
He pointed out that Accused 2 alerted him that he suspected the deceased was a thief who wanted to steal from him. He was invited to assist in handling the thief and he responded and assaulted the deceased with switches.
According to the first accused, the second accused also assaulted the deceased with switches tendered as exhibits in court.
The first accused, as outlined in his confirmed warned and cautioned statement, Defence Outline and evidence in chief was consistent in his narration of what transpired on the fateful day.
The first accused, together with Accused 2, suspected that the deceased wanted to enter into the second accused's shop to steal hence they unleashed the assaults on him causing injuries from which the deceased passed on.
The first accused was generally viewed as being genuine with the court given the manner he testified. He was candid with the court.
The second accused was adamant that he did not assault the deceased but that it was the first accused who assaulted the deceased.
He stated that he was, throughout the assault, not involved at all.
Despite this denial, it was clear the second accused, as the shop owner, had more to protect and could not fold his arms on a suspected thief.
In fact, during cross examination by both counsel for the first accused and the State, the second accused was exposed as being economical with the truth. He was exposed as a man bent on exploiting the economically weaker for his own benefit.
He portrayed the first accused as an overzealous, violent person. He sought, unconvincingly, to portray himself as an innocent bystander while at the same time admitting that he suspected that the deceased was a thief.
The second accused was holding a switch when his wife arrived.
He accepted that the sticks produced in court were used to assault the deceased by Accused 1 and that the other three (3) sticks he did not see them being used.
He was exposed as an untruthful witness for clearly he also used switches to assault the deceased.
The sticks he said he did not observe Accused 1 use are sticks he used to assault the deceased.
His answer, that, he did not observe them being used, was a flimsy excuse for not telling the court his role in the assault.
Generally, the second accused fared badly under cross-examination. He presented an unbelievable account of events which exposed him as a stranger to the world of truth.
The denial by Accused 2 was exposed as merely designed to mislead the court.
Moreso, when one considers that the assault of the deceased only stopped after the intervention of Accused 2's wife when she retorted words to the effect, that, the accused should stop so as to avoid inviting an avenging spirit on their family.
The first State witness's evidence was very clear on both the accused's participation in assaulting the deceased and we found no reason why he would falsely incriminate the second accused.
At the close of both the State and defence cases it was clear, that, on the fateful morning at Chemushore Business Centre, Chitsunge, Buhera the deceased succumbed to assault-induced injuries and died.
Both accused persons participated in assaulting the deceased using switches thereby causing serious injuries.
There is apparent evidence that both accused persons are liable for causing injuries from which the deceased died.
The question that has to be determined, given the charge of murder the accused are facing, is as regards the degree of liability.
It is settled, murder consists of both the unlawful and intentional killing of another.
In their closing submissions, the State and defence counsels correctly assessed, that, from the circumstances of this matter, and evidence adduced, the accused persons cannot be said to have set out with an aim to kill the deceased and proceeded to achieve the goal.
Given the nature of sticks used in assaulting the deceased, one cannot deduce that death was substantially certain.
To that extent, therefore, the accused persons cannot be held liable for murder with actual intention.
See S v Lloyd Mukukuzi and Another HH577-17 and also Mungwanda v S SC19-02 on the definition of actual and legal intention.
Having discounted murder with actual intention, the second question is whether or not the State has proved, beyond reasonable doubt, that, the accused unlawfully and with legal intention caused the death of the deceased.
The question is whether the accused subjectively foresaw the possibility of his act causing death and was reckless of such result.
If, from the circumstances, the accused has the dolus eventualis, then, they should be found liable for murder with legal or constructive intention. The legal intention emanating from subjective foresight, just like any other factual issue, may be proved by inference.
In this case, both accused interchangeably struck the deceased severally with switches plucked from nearby trees. The accused unreasonably suspected the deceased, a person they were drinking with, to be a thief. They sought to chastise the suspected thief by assaulting him with switches.
Going by the manner of assault, and the smallness of the switches used, even though the assault was prolonged one cannot infer that the accused foresaw that death would ensue and foresaw that there was a real risk or possibility that death would occur.
In this case, the accused cannot be convicted of murder with legal intention: see S v Mema HB143-13.
It remains a fact that the accused assaulted the deceased occasioning injuries from which he died.
The next question is: would a reasonable person in the circumstances which the accused found themselves in have realized that death may result from their conduct and persisted with that conduct?
If the answer is in the affirmative, then, the accused should be held liable of culpable homicide.
In this case, the accused, severally and interchangeably, assaulted the deceased using sticks indiscriminately. The deceased fell to the ground and was not retaliating in any manner. The assault caused injuries around the pleural cavity occasioning accumulation of blood leading to the fatal results.
Considering the deceased's posture upon being assaulted, would a reasonable person in the circumstances of the accused have realised that death may result from his conduct?
In this case, when the accused persons continuously, for a prolonged period, assaulted the helpless deceased, they were negligent in failing to realize that serious injury or death may result from their conduct.
The facts of this case are indeed similar to the circumstances of the case of State v Gumbo HB19-18.
In State v Gumbo HB19-18 the accused, who used sticks to assault the deceased all over the body, was convicted of culpable homicide.
Clearly, as in this case, the nature of the sticks used cannot be viewed as lethal or life-threatening in the context of death being substantially certain, but, teaming up to assault, several times, a defenceless person is certainly carelessness on the part of the accused.
A reasonable man in the circumstances of the accused would have realised that serious injuries or death may result from their conduct.
The first accused admitted to culpable homicide.
Accordingly, both accused are found not guilty of murder and are found guilty of culpable homicide as defined in section 49 of the Criminal Law (Codification and Reform) Act.
