BHUNU J: The accused stands convicted on his own plea of
guilty to a charge of culpable homicide. He initially pleaded not guilty to a
charge of murder that was later reduced to the lesser charge of culpable
homicide with the consent of the State.
The agreed facts are that the deceased and the accused
person picked up a quarrel at a beer drink at Farm 182 Chesa Mount Darwin. The
drunken brawl broke up into a fist fight in which the deceased was over powered
and he fled.
He later returned to the scene armed with a brick and a
stick with which he attacked the accused. He threw the brick at the accused but
missed. Undeterred he advanced towards the accused and attacked him with the
stick on the head. The accused sustained moderate injuries on the head. The
doctor's report exh 4 shows that the accused sustained head injury, swollen
eyes, bruised face and soft nose.
Upon being attacked the accused fought back and managed to
disarm the deceased dispossessing him of the stick. He then set upon the
deceased with the same stick culminating in the deceased's death. The post
mortem report shows that death was due to severe head injuries due to assault.
Both parties are in agreement that the accused
brought about the deceased's death while acting in self defence. He however
exceeded the bounds of self defence in warding off the unlawful attack
perpetrated upon him by the deceased. While the law imposes a duty on the
accused to flee it does not require the accused to flee in circumstances where
he might expose himself to an attack from the back. The undisputed facts of the
case show that the deceased was a man of a violent disposition who could easily
have attacked the accused from the back had he been given any chance to do so.
The accused's moral blameworthiness is therefore, of a very low degree indeed.
In assessing the appropriate sentence the court shall also
take into account that the accused is a responsible family man with five minor
children to look after. He is the sole breadwinner for the family. He earns
about US$1000.00 per month as a gold panner. He has pleaded guilty and has
shown contrition.
On the other hand, very little can be said in favour of the
deceased. All what the Court can say is that human life is precocious.
It must be preserved at all costs whenever circumstances permit.
It being correctly accepted by the State that the deceased
brought about his demise on himself, this Court finds that the 8 months period
that the accused has already spent in remand prison is more than enough to
atone for his misdemeanour. Nothing can be saved by any further punishment
beyond what he has already endured.
In the result it is accordingly ordered that the accused be
and is hereby sentenced to 12 months imprisonment the whole of which is
suspended for a period of 5 years on condition the accused does not again
within that period commit any offence involving the unlawful killing of a
fellow human being.
The Attorney General's Office, The State's
legal practitioners
Muskwe
& Associates, defence's legal
practitioners
