MOYO
J: The
accused person faces a charge of murder, it being alleged that on 15
November 2007 he unlawfully caused the death of Tashinga Mhike by
striking him with a log several times on his body. He pleaded not
guilty to the charge of murder but instead offered a limited plea of
guilt to the lesser charge of culpable homicide.
The
State accepted this limited plea. Both parties drew a statement of
agreed facts which was tendered by the State and whose material
aspects read as follows:
1.
Try Muzerengani, (hereinafter referred to as the accused) resides in
village Muzerengani, Chief Nemangwe, Gokwe in the Midlands Province.
He was 35 years old at the material time.
2.
The deceased is Tashinga Mhike and was staying in the same homestead
with the accused and the two are blood brothers.
3.
On the 15th
of November 2007 in the morning, the accused went to water some
cattle at the gardens. While there the deceased arrived, armed with a
log.
4.
The deceased at that time was suffering from a chronic headache and
was alleging that it was the accused who was bewitching him.
5.
The deceased then delivered a blow on the accused with the log. The
accused ducked the blow.
6.
It is then that the accused also armed himself with a log which he
pulled from the hedge of the garden and started striking back. In the
process he struck the deceased on the head once. The deceased fell to
the ground as a result of the blow.
7.
While the deceased was on the ground, the accused delivered more
blows on the deceased all over the body with the log. The deceased
cried out in the process, causing some boys who were herding cattle
nearby to alert other people.
8.
These people went to the scene and found the deceased lying on the
ground.
9.
The deceased was then ferried in an ox-drawn cart to the police who
then advised that deceased be ferried to hospital.
10.
Unfortunately deceased died before arrival at the hospital resulting
in his body being ferried to Gokwe Hospital. While there a
Government Clinical Officer, Aaron Chikara, conducted a post mortem
examination and concluded that the cause of death was fractured skull
and brain haemorrhage.
11.
The accused accepts the evidence of the State witnesses as well as
the post mortem report. The accused denies having the requisite
intention in the form of dolus
directus
or dolus
eventualis
to kill the deceased, but acknowledges that through his conduct
aforesaid, he was negligent in causing the deceased's death.
12.
The State concedes that the accused was negligent in the way he
conducted himself and in that he did not take all the necessary steps
to ensure that his actions did not cause the deceased's death. The
State therefore accepts the accused's plea to culpable homicide.
It
was marked Exhibit number 1. The post mortem report which gives the
cause of death as a fractured skull, and brain haemorrhage was
tendered and marked Exhibit 2. The log that was allegedly used in the
commission of the offence was marked Exhibit 3. From the facts
before us, we accordingly find the accused person not guilty of the
charge of murder but proceed to convict him on the lesser charge of
culpable homicide.
Sentence
The
accused person stands convicted of the offence of culpable homicide.
He is a first offender, he was 35 at the time of the commission of
the offence. He is now aged 44. He is married with six children. He
has compensated deceased's family. The deceased in this case was
the aggressor. The accused has waited for justice for 9 years.
However,
these courts, do not take lightly any circumstances where life has
been lost through violence. These courts are day in day out inundated
with cases involving the loss of life where people are killed over
disputes that can otherwise be handled in a lawful manner. It is not
justified to kill another person simply because they have sought to
attack you or have attacked you. Surely, in an open field there were
other available options of averting the attack like fleeing. It is
therefore this court's view that accused persons should not resort
to violence at the slightest of provocation, for the simple reason
that life, being sacred, these courts will never take such matters
lightly.
It
is for these reasons that the accused person will be sentenced to 8
years imprisonment of which 2 years imprisonment will be suspended
for 5 years on condition the accused person does not within that
period commit an offence of which violence is an element, whereupon
conviction the accused person shall be sentenced to imprisonment
without the option of a fine.
National
Prosecuting Authority,
state's legal practitioners
Legal
Resources Foundation,
accused's legal practitioners
