BHUNU J: The two accused persons are charged
with murder as defined in s 47 of the Criminal Law (Codification and Reform)
Act [Cap. 9:23]. They are alleged to have assaulted the now
deceased Henry Kativhu on 24 August 2008 with fists, open hands and booted feet
at Johane Temba's Homestead. The deceased managed to escape but the
accused pursued and caught up with him and started to assault him again with
sticks thereby inflicting fatal injuries on the deceased.
The post-mortem report compiled by Doctor Mujuru states
that death was due to haemorrhage secondary to multiple lacerations caused by a
sharp object.
Both accused pleaded not guilty to the charge. They,
however, admitted fighting the deceased in a drunken brawl sparked by a long
standing grudge. The state alleges that the accused persons started the
fight as a carryover of a previous fight in 2007. Both accused admitted
the existence of the grudge but denied having started the fight on the day in
question. They countered that the deceased was a village bully who was in
the habit of abusing his position as a neighbourhood watch policeman to assault
them. On the day in question he started the fight without any provocation
prompting them to fight back.
They both admit having overpowered the deceased who fled. They, however,
deny chasing after him in hot pursuit. Their defence is that upon running
away the deceased who was a known bully engaged in another fight with some
unknown villagers during which he may have fallen and hit his head against a
sharp object possibly a stone.
The difficult with that defence is that Doctor Mujuru who
compiled the post mortem report was of the opinion that death was due to
haemorrhage secondary to multiple lacerations caused by a sharp object.
If death was due to multiple lacerations then, the accused have a case to
answer as to the effect of the initial fight which they admit.
Murder being a direct intent crime, it has competent
verdicts comprising attempted murder, culpable homicide or assault. The
mere fact that both accused admitted that they engaged in a fight with the
deceased and the evidence point to him sustaining serious injuries in that
fight as observed by the doctor renders the accused liable to any of the
competent verdicts of murder if not murder at the end of the day.
The state having conceded in its written submissions that
there was no intention to kill, one wonders on the wisdom of persisting with
the charge of murder when the evidence clearly points in a different direction.
It would, however, be incompetent and wholly inappropriate
to discharge the accused at the close of the state case in terms of s 198 (3)
in circumstances where the state has established a prima facie case
against both accused pointing to the existence of a competent verdict.
The court finds that the state has established a prima facie case
against both accused persons at the closure of its case. The accused have
a case to answer, they must therefore be put on their defence.
It is accordingly ordered that the application for
acquittal at the closure of the state case be and is hereby dismissed.
SENTENCE
Both accused stand convicted on their own plea of
guilty to a charge of assault as defined in s 89 of the Criminal Law
(Codification and Reform) Act [Cap 9:23]. Initially the accused
were charged with the crime of murder. After hearing evidence both the
State and the defence came to an understanding that the facts disclosed the
lesser charge of assault.
In assessing sentence the court takes into account that the
offence was committed during a drunken brawl in which the two accused vented
their anger on their long standing enemy. Both accused persons are
youthful, first offenders. They are married and have attendant family
responsibilities.
The court will however, not lose sight of the fact that
offences of this nature are prevalent and on the increase. People must
not hide behind beer so as to commit unnecessary assaults which may lead to
fatal consequences. In this case the two accused persons were fortunate
that no link could be proved between the assaults which they perpetrated and
the cause of death. But nevertheless this court has a responsibility to
protect society from that type of conduct.
Reference has been made to the recent case over which I
presided of Mukomba in which the accused in a bid to commit suicide
exposed his own child to the poison in which he intended to take with fatal
consequences. That is totally different from what happened in this case
because in the Mukomba case it was a question of negligence, in this
case it is a question of one person deliberately assaulting another. In
this case there is need to pass a deterrent sentence so that the accused will
be reminded to keep the narrow and straight path whenever they are drinking.
In the circumstances, each accused person is sentenced to
pay a fine of US$100-00 or in default of payment 30 days imprisonment. In
addition six months imprisonment the whole of which is suspended for a period
of five years on condition the accused does not again, within that period
commit any offence involving assault and for which he is sentenced to
imprisonment without the option of fine.
The National Prosecuting Authority, the State's Legal Practitioners
Venturas and Samukange, the Defence's Legal Practitioners
