The accused, a 40 year old widow, faces a charge of murder,
it being alleged that on 2 April 2013, at Minihaha, Nyakupinga Resettlement
Scheme, Nyanga, with actual intent to kill or realising the real risk or
possibility that death may result, struck John Muchiriwesi (56) with an unknown
object and a stick thereby inflicting injuries from which the said John
Muchiriwesi died.
In her Defence Outline, she denies that her conduct led to
the death of the deceased.
She states that on that day, the deceased's cattle strayed
at her field and destroyed her maize. She had approached the deceased and
invited him to inspect the damage caused by his cattle. He suggested that he
could, after the inspection, take the matter up with his sister who was the
owner of the cattle. She went to his residence but was further upset when she
learned that the deceased's sister, Felistas Mawodza (“Felistas”) was not at
home. She then confronted him as to why he had had lied about the matter of his
sister. He became abusive. In the heat of the moment she had took a peach tree
stick and struck him twice on his legs.
On that day, she says she noticed that the deceased had a
wound on the back of his head but since he was always with one kind of wound or
the other, she did not bother to ask him how he had sustained this particular
one. He drove his cattle away.
In court, she repeated, in her evidence-in-chief, a version
similar to the above. She however added that she had not boasted to Cyril
Rumhungwe ('Cyril') about the severe beating she had meted on the deceased
subsequent to the assault. Instead, she said that she had told him that she had
struck the deceased twice on his legs with a stick as she had been upset by the
negligence the deceased displayed with his cattle; which negligence resulted in
the loss of her maize at the fields.
The evidence led from the State witnesses showed that the
deceased had been badly assaulted such that he had been helped to a neighbour's
residence by well-wisher on 3 April 2013. This well-wisher, Grace Saburi, had
found the deceased unable to walk home. She helped him to get to the Chihwayi
homestead where he spent the night. On 3 April 2013, Cyril Rumhungwe was in his
field when he noticed the accused pass by without exchanging pleasantries. He
asked her why she was in such a foul mood.
The accused told him that she was upset by the incident in which the
deceased's cattle had destroyed her maize. As a result, she said, she had
assaulted the deceased.
On 4 April 2013, acting upon this information Cyril decided
to call upon the deceased's residence to check on him. He did not find him
there but at the neighbouring Chihwayi's residence. He was not well. He decided
to bath him. As he did so, he observed a head injury. Upon asking how he had
been so injured, the deceased advised him that the accused had assaulted him
causing that injury. Cyril phoned the deceased's sister, one Felistas Mawodza
and advised her that the deceased was not well. She came and conveyed him to a
health facility at Nyanga.
For her part, Felistas told the court that when she came to
fetch her brother, she noticed that the accused was amongst the people who had
helped the deceased to reach the access road. At the time, no-one told her that
her brother had been assaulted. At the hospital, the deceased tested positive
for malaria. He was given the malaria prescription and discharged. According to
the sister, after completing the prescribed course of treatment, the deceased
did not get any better. If anything he got worse. Only then did Cyril Rumhungwe
relate to her the incident of the assault.
This prompted a report to the hospital and attention was
later directed at the head injury. The deceased was then referred to Mutare
Provincial Hospital on the third visit to this hospital.
We were satisfied that the two State witnesses were
reliable, honest, forthright, dependable and credible. On the other hand, the
accused did not impress us as a truthful witness for the defence. She was
uncomfortable when she gave her own version of the events surrounding her
encounter with the deceased. Even as counsel led her in-chief, she was uneasy,
unsure, and jittery to the point of exasperation by her counsel.
We are aware that a courtroom environment could induce
stage fright to someone who has come into it as an accused for the first time,
but, in the present case, a person accused of something she did not do could
not be so shaken as to fail to show belief in her own version of the events. It
only showed that the accused had decided to be less than honest with the court.
Her version, in our assessment, lacks any credibility.
Her bare denial of striking the deceased on the head is
contradicted by the evidence of two witnesses, Cyril Rumhungwe and Grace Saburi,
who heard the deceased state that the accused inflicted the head wound on him
on 2 April 2013.
In our view, the accused chose to suppress the truth for
fear of the obvious consequences associated with a grievous attack on the
deceased which she boasted to Cyril Rumhungwe about on 3 April 2013.
We therefore find that the accused struck the deceased with
an object causing the injury from which he died.
The question regarding intent poses some difficulty to us.
The court is unable, without any idea of the type, shape,
or form of weapon used, to state categorically that the accused intended to
kill or that she realised the real risk or possibility that death may result
from an assault with that particular weapon when she struck the deceased in the
head.
It is settled law that the test whether a person has
constructive intent to kill is a subjective one. Even accepting that it is
sufficient if there is an appreciation that there is some risk to life involved
in the action contemplated, coupled with recklessness as to whether or not the
risk is fulfilled in death, the difficulty still exists in arriving at that
inferential reasoning in the absence of the weapon used in the assault. The
absence of the description of the weapon used, in our view, places this case in
a category of its own where the general principles on the question of intent
are hardly applicable. Before one can conclude that the accused was reckless
one must have the factual position in respect of what aspect of the expected
conduct she was reckless. Recklessness must extend to the issue of whether or
not the risk involved is fulfilled in death but where the evidence is scant, as
here, it is difficult to conclude that the accused was indeed reckless as to
whether the risk is fulfilled in death.
At most, she was negligent in respect of assaulting the
deceased in the head with a weapon. See R v John 1969 (2) SA 560 (RA).
The facts in this case show that the accused assaulted the
deceased with an unknown object with sufficient force that the weapon inflicted
a 4cm laceration on the accused's head and induced a swelling of the brain. In
our view, on these facts, we find that in resorting to the use of such force on
the head, a vulnerable part of the human anatomy, the accused was negligent.
There is no doubt that the accused's conduct is the proximate cause of the
deceased's death. But for the injuries inflicted on him in the assault by the accused,
the deceased would not have died when he did.
In the result, we find that the accused is
guilty of culpable homicide and not guilty of murder.
