CHEDA J: The accused is charged with murder to
which charge he pleaded Not Guilty.
The allegation against
the accused is that on the 9th of September 2008 at Bodega Stamp
Mills, Sun Yet Sen he did wrongfully, unlawfully and intentionally kill and
murder Javison Sibanda.
The facts as presented
by the State are that accused and deceased were working at Bodega Stamp Mills,
Sun Yet Sen, Kezi when this offence occurred.
The State sought and obtained admission from the defence, evidence of
the following witnesses:
1) Taurai Dlamini.
2) Bhekinkosi Dube
3) Vincent Mbwerere
4) Samuel Hove
5) Cephas Makombe and
6) Doctor Garcia Lucia
The state then led
evidence from Antony Ndlovu. He told
the court that on the day in question he was at a beer party together with other
patrons and amongst them were accused and deceased. At about 1900 hrs while sitting outside a hut
he observed accused and deceased sitting together, although they were
discussing he could not hear all their conversation. He, however, overheard deceased demanding
beer from accused. He then observed the
two stand up and were locked on each other and a scuffle ensued. During that scuffle accused tripped the
deceased who then fell down. Accused
then picked up a home-made wooden stool, which he used to strike the deceased
three times on the head while deceased was lying on the ground. He intervened and accused then left the
scene. After that because of his
drunkenness accused continued to threaten the witness, he together with others
rendered first aid on the deceased but unfortunately he passed away. Accused was subsequently arrested for this
offence.
Under cross-examination
he conceded that both accused and deceased were drunk but above all deceased
was aggressive and troublesome. He did
not see deceased holding a knife at any stage.
The state then closed its case.
The defence opened its
case by calling accused whose evidence was that on the day in question, he was
drinking beer with other patrons. It was
his evidence that deceased tried to take away his beer but he prevented
him. In return deceased slabbed him once
on the face and they started fighting.
He over powered him and he sat on top of him. While on top of the deceased he saw a stool
which was nearby which he used to assault the deceased with resulting in his
death. He further stated that deceased
was armed with a knife.
We find that indeed
both accused and deceased were drunk as stated by both Antony Ndlovu and the
accused. We also find that the evidence
of Anthony Ndlovu is worthy believing and we have no hesitation in accepting it
in its entirely. Infact it is corroborated
by the accused himself in all respects except with the issue of the knife.
We find that deceased
was not armed with a knife or any weapon at all. We further find that the deceased was indeed
the aggressor on this date.
We find that in view of
accused's drunkenness and provocation he lacked the requisite mens rea to kill the deceased. He however acted negligently in the
circumstances and we find him guilty of culpable homicide.
Lazarus and Sarif, Accused's Legal
Practitioners
Criminal Division, Attorney
General's office, Respondent's Legal Practitioners
