MAWADZE
J: The
accused who was initially facing a charge of murder as defined in
section 47(1) of the Criminal Law (Codification and Reform) Act [Cap
9:23]
was subsequently convicted on his on plea of guilty of contravening
section 49 of the same Act which relates to culpable homicide. This
was after the matter proceeded on the basis of a statement of agreed
facts.
This
is a borderline case between murder and culpable homicide.
The
State may have found its work cut out as there was no eye witness to
the fatal assault of the now deceased. In addition to that the now
deceased was the aggressor who in fact followed the accused who had
decided to walk away from the confrontation. To compound matters the
State could not rebut that the now deceased is the one who possessed
the lethal weapon being an okapi knife and that he pulled it out to
stab the accused but was dispossessed and instead fatally stabbed.
The defence of self-defence in the circumstances is available to the
accused although the means he used were not reasonable. This in brief
informs the conviction of the accused on a lesser charge of culpable
homicide.
The
agreed facts are that both accused and the now deceased who are aged
22 years were patrons at Day and Night Club, Zano Business Centre,
Chief Chikwanda, Masvingo on Christmas day, 25th
December 2017. As usual they were merry making partaking beer and
playing a game of snooker. Apparently as the alcohol took its toll at
around 21.30hrs a quarrel ensued between them as to who was to play
the snooker first. A fight nearly ensued but one Lebison Sithole
restrained the two. The accused decided to take his snooker tokens
and left the bar for home using a foot path which passes through some
maize fields.
The
now deceased Tinashe Shepherd Shindi had other ideas.
He
followed the accused and caught up with him some 400m from the night
club. The altercation between the two resumed. There was no other
person present. Accused said the now deceased pulled out an okapi
knife. It weighs 0.058kg with a 13cm long handle and the blade is
10cm long. The accused said the now deceased tried to stab him and a
scuffle over the knife ensued. The now deceased was dispossessed of
the knife and stabbed three times. The now deceased rushed back to
the night club where he fell unconscious on the verandah and passed
on upon arrival at Zano Clinic the same night. The accused fled from
the scene and did not even proceed to his homestead. Instead he hid
at his aunt's resident in Matende Village where he was finally
apprehended at 0200hrs on 26 December 2017. The accused had hid the
knife in a shoe and wiped it of blood. The accused produced the knife
and confessed to what he had done.
The
post mortem report shows that the now deceased died of haemorrhage
shock arising from stab wounds. In fact, there were three stab wounds
described as follows;
“-
± 2cm stab wound on right subclavian area, piecing through chest
wall to lung.
-
± 2cm left subclavian stab wound piercing through muscle but not
chest wall.
-
± 1cm superficial stab wound left subclavian area.”
Our
task in this matter is to assess the appropriate sentence.
The
offence of culpable homicide arising from violent conduct is a very
serious offence and invariably attracts a custodial sentence unless
there are special mitigatory factors. This is so because the sanctity
of human life cannot be over emphasised. Human blood is sacred hence
once life is lost whether intentionally or through negligence it
cannot be replaced.
This
court is saddened by the fact that offences of this nature are
alarmingly prevalent in Masvingo Province. A lot of lives are
needlessly lost over minor disputes like a game of snooker. It is
unfortunate that these offences are being committed by our young
persons who are the future of this country. The mind boggles why
young persons easily resort to violent conduct using lethal weapons
like knives to settle very petty disputes. Our nation has the onerous
task to incalculate some sense of moral responsibility within the
young generation so that they value human life.
It
is clear from the facts of the case that the accused used severe
force. An okapi knife is a lethal weapon. Three stab wounds were
inflicted targeting the neck, one of the stab wound pierced through
the chest wall to the lung. The attack was vicious, barbaric and
unfeeling. In the circumstances the degree of negligence is extremely
high. As already said it borders on intention to kill.
The
accused's conduct after fatally injuring the now deceased deserve
severe censure. The accused saw if fit to flee from the scene. He did
not render any assistance to the now deceased. Instead he decided to
avoid the long arm of the law by deserting his residence, concealing
the weapon used after wiping it of blood. The moral blameworthiness
of the accused is very high. In such circumstances our courts can
only play their role by handing down deterrent sentences.
We
are alive to the mitigatory factors in this case.
The
accused is married with two children said to be 6 years old and 8
months old respectively. We just wonder whether accused had his first
child at 16 years of age as he is 22 years old. At that age accused
is fairly youthful. The accused is unemployed and the family relies
on his manual labour.
As
a first offender accused deserves some measure of leniency.
Further,
he did not waste the court's time and resources by admitting to the
charge without raising flimsy defences. To that extent he exhibited
contrition. This matter has been finalised in a short space of time.
It
is in accused's favour that his family assisted in the burial of
the now deceased. They provided a coffin and the food consumed at the
funeral.
We
take note that the now deceased was the aggressor. He is the one who
followed the accused, was in possession of the okapi knife and was
ready to use it. To that extent his was the author of his demise.
In
the circumstances we believe the following sentence will meet the
justice of the case;
“10
years imprisonment of which 2 years are suspended for 5 years on
condition the accused does commit within that period any offence
involving the use of violence upon the person of another for which
the accused is sentenced to a term of imprisonment without the option
of a fine.
Effective
term; 8 years imprisonment.”
National
Prosecuting Authority,
counsel for the state
Pundu
& Company,
pro deo counsel for the accused
