MAWADZE
J: The concession by Ms Busvumani for the State at the close
of the state case that the State had not been able to prove the charge of
murder as defined in s 47(1) of the Criminal Law (Codification and Reform) Act
[Cap 9:23] is not only properly made
at law but professional. After all the State witnesses had testified it was
clear that a charge of murder was not sustainable in the circumstances.
The
bare bones of the matter are that both accused persons and the now deceased
were drinking beer in Nganda bottle store situated in Chief Shindi's area in
Chivi, Masvingo until the bar closed. The evidence led clearly shows that both
the accused persons and to some extent the now deceased were so intoxicated that
they could hardly walk. Both the accused were throwing each other to the ground
in a manner one of the witnesses described as similar to what happens in the
popular TV programme of wrestling known as WWE Wrestling. It is not surprising
that they even quarrelled on the route to use as they departed for home. There
is no witness as to what happened as the three walked together but the now
deceased who had just returned from South Africa was found injured and barely
conscious by the road side the next morning on 14 June 2016. He was taken to
Shindi Clinic and was transferred to Masvingo General Hospital where he passed
on 15 June 20-16 due to a skull fracture.
Both
the accused persons admitted having fought the now deceased on their way home
but indicated that they were all heavily intoxicated to such an extent that
they could hardly appreciate what was happening. Indeed, this degree of
intoxication was confirmed by all witnesses who saw them and that they had
taken copious amounts of opaque beer virtually the whole day.
In
their respective defence outlines both accused person tendered pleas of guilty in
respect of contravening section 49 of the Criminal Law (Codification and
Reform) Act, which relates to culpable homicide. Initially the State was not
prepared to accept this limited plea but at the close of the prosecution case
the State accepted the limited plea. This is in order after considering the
provisions of both s 221(1) and s 221(2) of the Criminal Code [Cap 9:23].
Section
221(2) of the Criminal Law (Codification and Reform) Act, [Cap 9:23] provides as follows:
“(2)
Where a person is charged with a
crime requiring proof of negligence, the fact the person was voluntarily
intoxicated when he or she did or omitted to do anything which is an essential element
of the crime shall not be a defence to any such crime, nor shall the court
regard it as mitigatory when assessing the sentence to be imposed.”
The offence of culpable homicide for which both
accused persons stand convicted of requires proof of negligence.
In
assessing the appropriate sentence, we have weighed both the mitigatory and
aggravating features of this case as was submitted by counsel.
The
personal circumstances of both accused persons are almost the same and we
therefore find no basis to differentiate their sentences.
Accused
1 is 31 years old and accused 2 is 30 years old. Both of them are married.
Accused 1 has one child and accused 2 has 2 children. The accused persons are
of no means as they are not employed with no savings. At least accused 2 owns 3
cattle and 5 goats.
We
are bound to exercise some degree of leniency as both accused persons are first
offenders. The fact that both accused persons were voluntarily intoxicated is
immaterial and would not assist their cause in any manner.
Although
this matter proceeded to trial, the accused persons, as already started were
admitting to the charge of culpable homicide. This is our view shows that both
accused persons were not keen to waste the court's time.
It is
an important mitigatory factor that both accused suffered from pre-trial
incarceration from June 2016 to March 2017, a period of 9 months before they
were admitted to bail pending trial.
The
offence of culpable homicide arising from violent conduct remains a serious
offence. It generally attracts lengthy custodial sentence unless there are
special reasons or circumstances. The reason for this approach is that it
entails loss of life. The sanctity of human life cannot be over-emphasised.
It is
saddening to note that offences of this nature committed after beer drink are
very prevalent. Our young people seem not to value human life especially after
taking to the bottle. The court has to play its role by handing down deterrent
sentences in order to restore the moral fibre of our society and discourage
such conduct. In most cases the disputes leading to loss of life are petty like
in the instant case where both accused persons and the now deceased haggled
over the route to use to their respective homes. The consequences are however
serious as a precious life has been unnecessarily lost.
The
degree of negligence in this case is very high. Severe force was used to
assault the now deceased on the head, a delicate part of human anatomy. The now
deceased's skull was fractured. Both accused persons simply left the now
deceased along the road at night and fled to Beit Bridge. The conduct of both
accused persons deserve censure.
In
our view the following sentence would meet the justice of this case;
Each
accused is sentenced to 8 years imprisonment of which 2 years imprisonment are
suspended for 5 years on condition each accused does not commit within that
period any offence involving the use of violence upon the person of another for
which each accused would be sentenced to a term of imprisonment without the
option of a fine.
An
effective sentence of 6 years imprisonment is appropriate for each accused
person.
National
Prosecuting Authority,
counsel for the State
Mupindu
Legal Practitioners,
pro deo counsel for accused 1
Mutendi & Shumba Legal Practitioners, pro deo counsel for
accused 2
