KAMOCHA J: The 19 year old accused was charged with the crime of murder. It being alleged that on 24 December 2009 at
4th Avenue and Herbert Chitepo Street in Bulawayo he did wrongfully,
unlawfully and intentionally kill and murder Mkhululi Maseko a male adult aged
21 years at the time he met his death.
Going by the estimated age the
accused would have been 17 years at the time he allegedly committed the
crime. I shall deal with this latter in
this judgment.
When the charge was put to the
accused his response was that he had no intention of killing the deceased. A plea of not guilty was accordingly entered
on his behalf.
The state outline was read and
produced as exhibit one while the accused's defence outline was read and
produced as exhibit two. While I do not
propose to reproduce the state outline, I shall recount the accused's defence
outline which reads:
“The accused person is as described
on the state papers.
The accused person understands the
charge against him and pleads not guilty to murder, but guilty to culpable
homicide. He will state that on the 23rd
of December, 2009, in the afternoon, he was visited by a friend called Butross
and they spent the whole afternoon together.
Thereafter they decided to go to Gijima Nite Club.
He will state that he arrived at the
night club with his friend Butross at around 7pm and two ladies who were
acquainted to Butross were already at the night club. He will state that one of the ladies was
called Cynthia. The accused will state
that at all material times, he was inside the club with Butross and the two
ladies wherein they were consuming copious amounts of alcohol.
At around 3:00 am the following day
the four of them decided to leave the night club and go home. He will state
that at that time, he was already drunk and was taking Cynthia with him to
spent (sic) the night with her. He will
state that when they left the night club, Cynthia briefly disappeared and they
continued walking without her, assuming that she will follow them. Whilst they proceeded along Herbert Chitepo
to look for transport, Cynthia emerged and joined them but she was crying and
nose bleeding and claimed that she had been assaulted by the deceased who was
walking with his three friends.
He will state that they proceeded to
walk and whilst walking, they were approached by the deceased. The deceased was in the company of his
friends who however distanced themselves whilst deceased came straight to the
accused. He will state that the deceased
came straight to him and started assaulting him and he consequently fell on the
ground. The accused shall give the
details of the fight and how he subsequently stabbed the deceased on the
thigh. He will state that he had
intended to call Butross his friend to testify on his behalf but the same
cannot be located.
He will further state that he stabbed
the deceased on the thigh in an attempt to defend himself from the deceased who
was overpowering him with blows and whilst he struggled helplessly on the
ground. For the avoidance of doubt he
will state that at all material times, it had not been his intention to fight
with the deceased who was the initial aggressor. Further, it had not been his intention to use
the knife in the manner that he did or at all and the knife was produced in the
heat of the moment with hindsight, he realized that his judgment had been
impaired by the effects of alcohol.
The accused shall tell this
honourable court that he did not intend to cause the death of the deceased and
that there had been no premeditation in the manner in which the deceased met
his death.
Wherefore the accused shall pray for
judgment in terms of the law.”
The third exhibit was the accused's
confirmed extra curial statement wherein he said the following when matters
were still fresh on his mind.
“I do admit to the allegations
leveled against me. What happened on the
fateful day is that, I was coming out of Gijima Nite Club in the company of
Butross Moyo on our way to board a combi to Pumula. While we were outside the night club, I saw
the now deceased Mkhululi Maseko in the company of a lady by the name Cynthia
whom I had a love affair with. I
confronted him and asked him where he was going with my girlfriend. |Mkhululi attacked me and I fell on the
ground then Mkhululi sat on top of me.
Butross then gave me an Okapi knife and I stabbed Mkhululi once on his
thigh.
Police officers who were on cycle
patrol came to the scene and apprehended me.
The knife that I used was confisticated by the police. I had no intention of killing him.”
The accused has given two different
stories in respect of the same event. In
his confirmed extra curial statement he confessed that he confronted the
deceased as he was taking away a lady he had an affair with. He claimed that when he had been pinned onto
the ground his friend Butross came to his aid and provided him with the Okapi
knife with which he stabbed the deceased on the thigh.
The fourth exhibit was an age
estimation from compiled by a doctor who estimated the accused's age as 19
years. The estimated age could be wrong
because the accused in evidence told the court that he was born in 1992 went to
school up to grade 7 which he completed in 1999. Children complete grade 7 at 13 years. If the accused completed grade 7 in 1999 his
age is likely to be 22 years now and was 20 years at the commission of the
crime.
The fifth exhibit was an affidavit
by Cst Tendai Chinyunyu who identified the body of the deceased to the doctor
who performed the post mortem examination on the remains of the deceased and
compiled exhibit 6. The doctor remarked
that deceased had been stabbed with a knife on the thigh and the knife
perforated the femoral enteric. The
wound was 7cm deep. The cause of death
was that the deceased was stabbed on the thigh with a knife which perforated
the femoral enteric resulting in hemorrhagic shock.
The last exhibit was the Okapi knife
with which the accused stabbed the deceased.
Its handle is 12.5cm with a 10cm long blade which was very sharp and had
a very sharp tip. The knife is indeed a
lethal weapon.
The evidence of the following
witnesses was produced by consent in terms of the provisions of section 314 of
the Criminal Procedure and Evidence Act [Chapter 9:07]; Jimmy Brown, Joe Ncube,
Cst Zvavanoda; Lawrence Mauru, Ass. Inspector Chinokora; Ass. Inspector Shumba
Nhete and Dr A. R. Casteiinos. It was
further admitted by the defence counsel that the knife exhibit 7 was the weapon
used by the accused to inflict the injury on the deceased.
The state then led evidence from
Shadreck Sibanda a cousin of the deceased.
He said on the fateful day he went to Gijima Nite Club with the deceased
and two other young men during the early hours of the morning. He did not have a watch but he thought it was
around 3am. He said after he had taken
about 3 pints of beer the deceased suggested that it was time to go back home.
They went out of the night
club. The deceased walked in front with
the girl called Cynthia while he walked behind with two young men. They were going to look for transport to go
home.
As they were walking the witness
heard footsteps of a person who ran past them towards the deceased and
Cynthia. It was the accused. When he caught up with them the witness
heard him saying words to the following effect – “Samantha or Cynthia is mine.”
The deceased replied saying – “No, I
am taking her home.”
The witness said he and the two
young men moved faster to get to where this was happening and when they were 10
paces away the accused grabbed hold of the deceased. When the deceased was in the process of
turning to face the accused, the accused then stabbed him on the thigh – on the
outer aspect of the thigh towards the back.
The deceased fell down. The
police on cycle patrol arrived and summoned an ambulance.
The witness said there was no fist
fight between accused and deceased. He
said that suggestion was false.
He said the accused was alone when
he ran past them to go and confront the deceased. He said it was not correct to say deceased
was the aggressor as he was confronted by accused. It was not true that the accused had been
knocked down by the deceased who then pinned him to the ground. He said that suggestion was clearly false.
The witness is corroborated by the
accused himself in his confirmed extra curial statement where he said he
confronted the deceased.
The witness gave his evidence
clearly and in a straight forward manner.
He was worth to be believed.
The same cannot be said about the
accused who was clearly untruthful. He
had been so, right from the beginning.
For instance he lied in his statement that he had been given the knife
with which he stabbed the deceased by Butross Moyo. He also lied that Cynthia was his girlfriend
when in fact he had just been introduced to her by Butross that night at the
night club.
Where the accused story conflicts
with that of Shadreck I prefer that of the state witnesses' evidence which was
well given.
The court makes the following
specific findings.
-
That the accused was the aggressor
-
At no stage was he pinned to the ground
-
he stabbed the deceased as he was about to turn and face him
-
the accused may have been under the influence of alcohol but
not to an extent of not knowing what he was doing
-
he was able to run and follow the deceased and Cynthia
-
he remembers clearly what took place
-
the deceased did not provoke the accused.
The accused was not defending himself
from anything as he was in fact the aggressor.
But what is the accused guilty of?
He stabbed the deceased on the thigh
with a lethal weapon. Is it in the
ordinary human experience that when one stabs the other with a knife on the
thigh death would result. The thigh is
not one of those vulnerable parts of the human body. It is a different story if one used a lethal
weapon on a vulnerable part of the human body.
The accused chose the thigh. Did
he reasonably foresee that death would result?
I think not. He would not have
foreseen that an artery in the thigh would be perforated.
He is guilty of causing the
deceased's death negligently. I would in
the result find him guilty of culpable homicide. Accused has got a record.
Mitigation on tapes.
Sentence
All that needed to be said on behalf
of the accused was well put forward by his lawyer. He is a young first offender whose age is
likely to be in the region of 22 years.
If the estimated age were to be accepted he would be 19 years. His youthful age has been taken into
account. Also to be taken into account
is that he has spent over 18 months in pre-trial incarceration. Had it not been for those mitigating features
he would have been looking at not less than 12 years.
Here
is why.
The accused is a person who moves
around carrying a dangerous weapon - the Okapi knife. He relied on it so much that it gave him the
courage to run after the deceased and confronted him. He then stabbed him with it inflicting a 7cm
deep wound from which he died. The accused
showed no remorse at all. He instead
lied about what took place.
A young life was unnecessarily
lost. The court always guards jealously
the sanctity of human life.
This court was referred to the case
of Richards 2001 (1) ZLR 129 where community service was imposed the facts in
that case are clearly distinguished.
In
casu imposing community service would be trivialising the offence leading
to society losing faith in the criminal justice system.
The accused is in that age group
which is the one causing trouble in society.
Most murders are committed by this group of people who at the slightest
of provocation or even without provocation resort to the use of lethal weapon
to kill. This should not be allowed to
continue unchecked. A loud message must
be sent out there that offenders will be adequately dealt with.
In the result the justice of this
case will be met by a sentence of:-
TEN YEARS IMPRISONMENT
