The accused is facing the charge of murder as defined in section
47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] in that
on 14 January 2016, at Gutsaruzhinji Village, Mkwasine, the accused caused the
death of Tizirai Mutendera by hitting him with a stone on the right earlobe
intending to kill the said Tizirai Mutendera or realising that there was a real
risk or possibility that his conduct might cause death and continued to engage
in that conduct despite the risk or possibility.
The 29-year-old accused and the now deceased, who was 42
years old, were brothers. They lived separately in the Mkwasine area.
On 14 January 2016, there was a traditional beer ceremony
at the accused's homestead where members of the Mutendera family or clan,
including the now deceased, were in attendance. There were also other close
relatives and neighbours. From the evidence led before us, an altercation arose
between the accused's wife, Elizabeth Mavhu, and the accused's sister, Vongai
Mutendera. This altercation was centred on the allegation that sometime in the
past Vongai Mutendera had stolen some clothes belonging to the accused's wife.
This altercation sucked in the accused who intervened on the side of his wife.
The State alleges that the accused assaulted his sister, Vongai
Mutendera, who fled and sought refuge at one Simplicio Matsengo's homestead. It
is alleged that upon his return, the accused also assaulted his mother who had
tried to restrain him and this resulted in a misunderstanding between the
accused and the now deceased who took exception to the accused's conduct. The
State alleges that the now deceased took the accused's amplifier and said he
would only return it when the accused paid some token to appease their mother
whom the accused had assaulted. It is the State case that this angered the
accused who then intercepted the now deceased who was leaving the accused's
homestead. The accused is alleged to have picked a stone and threw it at the
now deceased at a close range hitting him on the right earlobe. The now
deceased is said to have collapsed, bleeding profusely, and was unconscious.
The now deceased was taken to a local clinic the next day and later transferred
to Chiredzi District Hospital where he subsequently died due to the head
injury.
In his Defence Outline, the accused said the now deceased
arrived at the accused's homestead on the day in question already drunk in the
morning. He said his sister, Vongai Mutendera, and an aunt, Serudzai, later
arrived in the afternoon after which they engaged in an altercation with the
accused's wife over some clothes belonging to the accused's wife which Vongai
Mutendera had previously stolen. The accused said when these two attacked his
wife he rushed to rescue his wife and his mother also got entangled in this
altercation. The accused said the now deceased then joined in the dispute
alleging the accused was not respecting the now deceased and wanted to
discipline the accused. The accused said the now deceased proceeded to hit him
with clenched fists and proceeded to a pile of firewood intending to pick a
piece of firewood so as to assault the accused. Due to pain already inflicted
on him by the now deceased, the accused said he picked the stone and threw it
at the now deceased. The accused said he aimed at the lower part of the body
but the now deceased was now in a bending position intending to pick a piece of
wood hence was hit on the head. The accused said the now deceased fell down and
he and others applied first aid as the now deceased was bleeding. The accused
said, at his own expense, he later took the now deceased to a local clinic
called Chipiwa and later to Chiredzi District Hospital where, unfortunately,
the now deceased passed on.
The accused's defence is that he acted in self-defence and
also in a drunken stupor. It is his defence that he had no intention to kill
his brother or cause the death of his elder brother…..,.
The cause of the now deceased's death is not in issue. It
was caused by the stone which was thrown at the now deceased by the accused
inflicting the fatal injuries.
Exhibit 2 is the
accused's confirmed warned and cautioned statement. The bulk of the contents of
that statement outlines the events of that day leading to the now deceased's
injuries and subsequent death.
We may simply highlight what we believe are material
contents of that statement as follows;
(i) That his sister, Vongai Mutendera, had previously
stolen his wife's clothes and that this sparked the dispute between his wife
and Vongai Mutendera that day when Vongai arrived.
(ii) That it is Vongai Mutendera and the accused's aunt or
sister in law who teamed up to assault the accused's wife which caused the
accused to intervene by assaulting Vongai with a switch.
(iii) That the now deceased then intervened and assaulted
the accused using booted feet causing the accused to fall.
(iv) That it is the now deceased who rushed to pick a log
to further assault the accused.
(v) That due to pain inflicted on him, the accused decided
to retaliate and did so by hitting the now deceased with a stone, at close
range, on the ear.
(vi) Lastly, that when he realised he had seriously injured
the now deceased, the accused rendered first aid and took him to a local clinic
and then to hospital where the now deceased died.
We noted that there are material differences between the
accused's Defence Outline and his confirmed warned and cautioned statement.
This relate to two aspects, which are;
(i) The manner in which the accused said he was assaulted
by the now deceased; and
(ii) The reason he attacked the now deceased with the
stone.
The accused gives different versions on how he said he was
attacked or assaulted by the now deceased and he failed to reconcile these
versions throughout the trial. Further, the accused, in his warned and
cautioned statement, suggests that when he hit the now deceased with the stone
he was simply retaliating for the pain inflicted upon him. In the Defence Outline,
he raises self defence and voluntary intoxication.
In his address to the court, counsel for the accused conceded to these disparities and alludes these
inconsistencies to the accused's alleged high level of intoxication….,.
We now turn to viva voce evidence led from two witnesses by
the State and the accused's evidence.
Simplicio
Matsenga
He is married to the accused and the now deceased's sister,
one Eliza Matendera, and resides in the same village with the accused. He was
at the accused's homestead for the traditional ceremony on that day.
Simplicio Matsenga (Simplicio) said he arrived at the
accused's homestead that day at about 10:00 hours and found both the accused
and the now deceased already drunk. He joined others present for the ceremony
which was being held inside the house.
Simplicio said the accused's sister, Vongai Mutendera,
later arrived and entered into the house where she greeted people inside. He
said as Vongai left the house, and at the doorway, the accused's wife, also
known as Elizabeth, head-butted Vongai alleging that Vongai had previously
stolen her clothes, being underpants and a jacket. Simplicio said the accused
left the house and picked a log which he intended to use to assault Vongai as
all the people got out of the house. He said Vongai fled to Simplicio's homestead
nearby and locked herself inside the house as the accused chased after her.
Simplicio Matsenga said the accused, upon his return, was
calmed down by his mother, but, instead, he assaulted his mother causing her to
fall down.
Simplicio said the accused was alleging that his mother had
given birth to a thief like Vongai. It is at this stage, Simplicio said, the
now deceased intervened pointing out that it was improper for the accused to
assault their mother. The now deceased then took the accused's amplifier which
was being played saying he would only return it to the accused if the accused
paid a chicken to appease their mother he had assaulted. He said as the now
deceased was about to leave, the accused intercepted him and hit the now deceased
with a stone on the head causing him to fall down. The accused was protesting
that the now deceased should not take the accused's amplifier.
Simplicio said by the time the accused hit the now deceased
with a stone, the accused was unaware that his sister, Tadzei, had already
retrieved the amplifier from the now deceased. Simplicio said the accused had
not realized this because the accused was very drunk.
According to Simplicio, the now deceased was hit with a
stone at a close range of about 10m and that he was caught unaware. He said the
now deceased fell down unconscious bleeding profusely.
Simplicio said when this incident happened, at about 3.00
pm, both the accused and the now deceased, who had been drinking beer since
morning, were already heavily intoxicated, unlike him who was moderately drunk.
In fact, Simplicio said the accused was so intoxicated that he seemed not to
appreciate fairly what he was doing.
According to Simplicio, the accused and the now deceased
enjoyed cordial relations as brothers. As a brother in law, he too enjoyed good
relations with both the accused and the now deceased.
Simplicio denied that the accused was attacked or acted in
self defence but that the accused was incensed when the now deceased took the
accused's amplifier as the accused said he wanted to discipline the now
deceased. He said the accused threw the stone at the now deceased with a lot of
force at close range.
Under cross examination, Simplicio Matsenga denied that the
now deceased tried to pick a piece of wood to assault the accused. He dismissed
as completely untrue that the accused acted in self-defence….,.
Simon Haruzi
Mudzingwa (Simon)
Simon is not related to both the accused and the now
deceased. He said he arrived at the accused's homestead that day at about 14;00
hrs when the ceremony was over and people were now just drinking beer.
Simon Haruzi Mudzingwa said the problem started when an
altercation erupted between the accused's wife and the accused's sister which
caused the accused to intervene. He said the accused attacked his sister whom
he chased up to Simplicio Matsenga's homestead where she sought refuge.
Simon said upon his return from chasing after his sister,
the accused assaulted his mother who had tried to intervene in the fracas. This
prompted the now deceased to take the accused's amplifier saying he would only
return it to the accused after the accused would have appeased their mother. Simon
Haruzi Mudzingwa said this resulted in an exchange of harsh words between
accused and the now deceased which prompted the now deceased to state that he
was now leaving the accused's homestead. Simon said as the now deceased was
leaving, the accused picked a stone, Exhibit 3, and threw it at the now
deceased hitting him on the right ear. He said the now deceased fell down
bleeding profusely and was unconscious. This prompted Simon to tell the accused
and other family members to immediately take the now deceased to hospital.
Simon said when this incident happened he was not drunk as
he had just arrived. He however said both the accused and the now deceased were
extremely drunk. He disputed that the accused attacked the now deceased in self
defence but most probably due to his high degree of intoxication as the accused
was not prepared to be restrained by anyone; which conduct was out of character
for the accused as he normally took advice from Simon when sober.
In fact, Simon said the accused seemed not to appreciate
all what the accused did due to intoxication.
Under cross examination, Simon Haruzi Mudzingwa said he was
a good friend of the accused and had no cause to falsely implicate the accused.
He said he and other people witnessed the accused hit the now deceased with a
stone as they were now out of this house when all this commotion erupted. He
denied that the now deceased tried to pick a log or attacked the accused in any
manner and that the accused did not act in self-defence.
Accused's Evidence
From the accused's evidence, most of the sequence of events
are not in issue. The accused admitted that he intervened in a dispute between
his wife and his sister Vongai, although the accused says both Vongai and the
accused's aunt Sarudzai teamed up to attack his wife. The accused confirmed
that his mother held him restraining him and that his sister Vongai fled. The
accused denied assaulting his mother but said he simply pushed her away.
The accused said the now deceased proceeded to attack the
accused on the false allegation that the accused had assaulted their mother. The
accused said he was hit with a log and fell down. He said the now deceased
continued to hit him as he lay down saying he was disciplining the accused for
assaulting their mother. The accused said he picked a stone as the now deceased
was trying to pick a piece of wood to further assault him. The accused said he
aimed to hit the now deceased's lower part of the body but hit him on the head
as the now deceased was bending down to pick the piece of firewood.
The accused refuted that he was heavily drunk, insisting
that he fully appreciated what he was doing and what transpired. The accused
said both Simplicio Matsenga and Simon Haruzi Mudzingwa were inside the house
and did not witness what happened between him and the now deceased. The accused
said Simplicio and Simon connived to falsely incriminate him as they are
friends. The accused said Simplicio wants to have the accused incarcerated so
that Simplicio would not pay outstanding lobola for the accused's aunt; which
lobola the accused always demanded.
The accused said he hit the now deceased from a distance of
2 metres with the stone and that the deceased was more intoxicated than the
accused. The accused denied that there was any dispute in respect of his
amplifier.
In our view, the accused did not fare very well as a
witness.
We have already alluded to the contradictions or
inconsistencies between his explanation on how he was allegedly attacked by the
now deceased and his reason for attacking the now deceased. Even the accused's counsel
concedes to this material contradictions. The issue that the accused acted in
self defence only emerges here in court. In his confirmed warned and cautioned
statement, the accused was clear that he simply retaliated and does not mention
acting in self-defence. This material contradiction by the accused puts his
story or defence into serious doubt.
It is clear to our minds that the accused is building his
case as the trial progresses.
The accused did not suggest to both Simplicio Matsenga and Simon
Haruzi Mudzingwa any possible reasons as to why both would falsify their
evidence. The allegation of connivance was belatedly raised by the accused. The
same goes for the allegation that Simplicio owes some outstanding lobola. It
was never suggested to both of them that they did not witness how the accused hit
the now deceased with the stone as they were inside the house. The inescaple
conclusion is that all these assertions by the accused are a result of an
afterthought on the part of the accused. All these issues could not have
possibly escaped the accused's mind.
It is for these reasons that we do not find the accused to
be a credible witness.
Findings by the Court
We accept the clear version given by both Simplicio
Matsenga and Simon Haruzi Mudzingwa on how the accused attacked the now
deceased. These two witnesses materially corroborated each other on how the
accused attacked the now deceased and why he did so. They were both eye
witnesses to the attack and fairly sober. Our finding is further fortified by
the fact that they materially corroborated each other on the altercation
between Vongai and the accused's wife, how the accused got involved to this
altercation, the assault by the accused of his mother, why the now deceased
intervened, the source of dispute between the accused and the now deceased, the
degree of both the accused and the now deceased's level of intoxication, and,
most importantly, how the accused attacked the now deceased. They both discount
that the accused acted in self-defence.
From the facts and evidence placed before us, the defence
of self defence, as provided for in section 253(1) of the Criminal Law
(Codification and Reform) Act [Chapter 9:23] is not available to the accused. It
is a fact that the accused did not act in self-defence.
It is a fact that the accused attacked the now deceased
with the stone which weighed almost 2kg. The stone was thrown at a very close
range of 2 metres, as per the accused's version. It is not true that the now
deceased was in a bending position. This means the accused aimed at the head
and hit the now deceased on the right earlobe. It is clear that severe force
was used as the now deceased was immediately incapacitated and seriously
injured. The severe head injury inflicted is the proximate cause of death.
The question to be answered is therefore whether the
accused had the requisite intention, actual or constructive, to cause death.
In our view, despite the accused's protestations, we accept
the evidence of both Simplicio Matsenga and Simon Haruzi Mudzingwa that the
accused was heavily intoxicated and did not fully appreciate his conduct. The
effect of the defence of voluntary intoxication as a defence to a charge which
requires proof of intention or mens rea is provided for in section 221(1) of
the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The degree of
intoxication can vitiate the requisite mens rea or intention. Our view is that
the accused's brain had been numbed by the alcohol he had taken. This,
therefore, means he had no requisite intention, actual or constructive, to kill
the now deceased. Our view, therefore, is that the accused was so intoxicated
that he did not have the intention to commit the specific intent crime like
murder.
The accused, however, was negligent in his conduct and
cannot escape liability in respect of a permissible verdict on a charge of
culpable homicide.
VERDICT: NOT GUILTY OF MURDER BUT GUILTY OF c/s 49 of the Criminal Law
(Codification and Reform) Act [Chapter 9:23] – CULPABLE HOMICIDE.
