Criminal
Trial
MUTEMA
J: Accused
is facing a charge of murder it being alleged that on 4 April 2014 at
house number 32443 Entumbane, Bulawayo, accused did wrongfully,
unlawfully and intentionally kill and murder his elder brother
Eddington Muchairi.
According
to the state summary Annexure “A” the deceased was 40 years old
at the time he met his demise, while accused was aged 35 years. The
two brothers stayed at the same house 32443 Entumbane. At around
19:30 hours on the fateful day the deceased and accused had an
altercation on family issues which resulted in accused striking
deceased with a hoe on the head and he collapsed. Deceased was rushed
to Mpilo Hospital where he succumbed to his injuries on 6 April 2014.
In
his defence outline annexure “B”, accused, in denying the charge,
denied the intention to kill and raised self defence.
He
averred that he was defending himself from the deceased who was
approaching him with the intention of attacking him with a stone and
from deceased's wife who had picked up the hoe first and later had
thrown it into the garden where he then picked it up.
He
added provocation by the deceased and intoxication whose combined
effect he alleged made him not realise the real risk/possibility his
conduct would cause.
The
other addendum was that the deceased, who was intoxicated, had
earlier on fallen to the ground a couple of times on a hard surface
with rocks.
He
said he struck deceased with a hoe once on the back slightly below
the neck and once on either shoulder. He denied the allegation that
he uttered the phrase “minus one” soon after assaulting deceased.
The
following exhibits were tendered by the state by consent:
(i)
Exhibit 1 - affidavit deposed to by Constable Mwembe who identified
deceased's body to Dr I. Jekenya on 7 April 2014.
(ii)
Exhibit 2 - the post mortem report number 86/67/2014 by the
pathologist Dr I. Jekenya.
(iii)
Exhibit 3 - the metal hoe used by accused to strike deceased with the
following specifications:
(i)
Weight = 2,5kg.
(ii)
Length of handle = 84,5cm.
(iii)
Length of blade = 14cm.
(iv)
Sharp edge = 16cm.
Two
witnesses Tragedy Muchairi accused and deceased's sister and
Sikhumbuzo Ncube, accused's neighbour gave viva
voce
evidence for the state.
The
evidence of Lovemore Mutsakani the police officer who recovered the
hoe and that of the pathologist Dr I. Jekenya was introduced by
consent in terms of section 314 of the Criminal Procedure and
Evidence Act [Chapter 9:07].
Accused
gave evidence and closed his case.
What
is common cause in
casu
is that on the day in question accused did strike the deceased 3
times with the hoe exhibit 3 bearing the specifications alluded to
supra.
He denied landing the blows on deceased's head saying he struck him
once on the back and once on either shoulder.
He
sought to throw spanners into the fireworks by saying before the
assault deceased had slipped and fallen twice on a rocky surface. He
did not say deceased sustained injuries as a result of the fall.
We
are not persuaded any bit that deceased sustained the head injuries
observed by the pathologist which occasioned his demise from the
alleged fall. We are satisfied that it was accused who caused those
head injuries.
This
is corroborated by the evidence of Tragedy Muchairi whose testimony
we accept that although she did not actually see accused deliver the
blows on deceased's head, when accused approached her and deceased
on the road she jumped across a drain and then heard “boom” the
sound of the hoe striking deceased 3 times. When she later checked
deceased he was lying down in a pool of blood.
Sikhumbuzo
Ncube also heard the same sound and after accused had run away he
found deceased lying in a pool of blood bleeding from his head.
Also,
the pathologist found no injuries on the parts of the deceased's
body accused said he aimed the blows at.
Accused
raised 3 possible defences viz
self defence, provocation and intoxication.
The
latter 2 can be quickly dismissed as mere sophistry which at best
amounts to either extenuation or mitigation or both.
Granted
both accused and deceased were intoxicated but accused clearly from
the evidence knew what he was doing. He could run and he recalled
with clarity all that transpired.
As
for the alleged provocation the evidence does not reveal that he
acted in the heat of passion when his name continually featured in
the discussion deceased and Tragedy were having as the cause of the
family wrangles.
That
deceased's wife shouted at accused from the yard hurling
vulgarities including referring to accused's mother's clitoris –
we are not persuaded that this occurred.
None
of the witnesses heard this except accused alone.
It
is highly improbable that deceased's wife would allude to her
husband's mother's clitoris.
Even
assuming she did insult accused so, accused had no plausible reason
to then direct/vent his venom at deceased instead of at deceased's
wife. No reasonable man would have lost his self control in the
circumstances.
The
1st
defence requires closer scrutiny.
Self
defence can only succeed if all its requirements are met. The
requirements are:
1.
there must have been an unlawful attack which had either commenced or
was imminent.
2.
Upon accused or a 3rd
party to whom accused owed a protective relationship.
3.
Accused acted to avert the unlawful attack if escape is not
practical/feasible.
4.
Means used must be reasonable and proportionate to the unlawful
attack.
5.
Accused must desist as soon as the danger is past.
The
evidence in
casu
shows that the self defence raised by accused is a red herring
(fallacy). It cannot succeed.
Even
accused's counsel conceded so in his closing arguments.
Admittedly
there was a series of episodes of pushing and shoving e.g. collar
grabbing between deceased and accused which the sister would quell,
including accused punching deceased and some stones being held or
thrown by the parties.
However,
what is crucial is that at the critical moment when accused struck
deceased with the hoe accused was not under any attack at all from
the deceased.
According
to Tragedy's evidence she was standing with deceased on the road
and accused had gone back to the house. Accused then returned
wielding a hoe which he then used to butcher the deceased.
Accused
was therefore not under attack at that time.
Even
if the court were to be benevolent to accused and go by his version
that deceased was following him holding stones, this still would not
exculpate him.
He
said he ran into the yard and deceased's wife dropped the hoe and
deceased was following him. He then picked up the hoe and went back
towards deceased who bent down and he then struck him and he fell
When deceased tried to get up for the 2nd
time he delivered two further blows.
(i)
First, accused had the opportunity to escape instead of going back to
meet deceased;
(ii)
secondly, he had no reason to strike deceased who at the time was
bending down; and
(iii)
thirdly, accused had no cause to deliver the second further blows to
a man who was already down and was failing to rise – the feared
danger was already past.
The
means used to avert the imagined attack were both unreasonable and
disproportionate to the attack. Accused did not desist as soon as the
danger was past.
In
the event self defence cannot avail him.
The
next stage of the enquiry following the failure of the raised
possible defences is whether the accused had the intention to kill
deceased.
He
contended that he harboured no such intention.
It
is not cumbersome to conclude that accused did have the intention to
kill if account is had of the following factors:
(i)
the weapon used – a metal hoe weighing 2,5kg with its handle 84,5cm
long, a blade of 14cm long whose sharp edge was 16cm wide. This is
undoubtedly a mean and dangerous weapon to use on a human being.
Accused had earlier on wanted to strike deceased with the hoe but the
sister had wrenched it from him and thrown is away. He was undaunted.
(ii)
the part of the human anatomy the blows were aimed – the head – a
very vulnerable and delicate part of the body.
(iii)
the number of blows delivered – 3 – shows determination and
perseverance.
(iv)
the degree of force used as gleaned from the post mortem report
exhibit 2 was very severe in view of the nature of the injuries
caused.
(v)
the injuries actually occasioned –
(a)
there is a 3cm very deep transverse wound about 7cm vertically above
left ear. There is associated soft tissue haemorrhage.
(b)
There is a 2,5cm wound (very deep) about 5cm above and slightly in
front of the left ear. There is associated soft tissue haemorrhage.
(c)
There is an 8cm vertical superficial wound about 5cm in front of the
left ear running from the left frontal (forehead) of the face down to
the side of the upper jaw (left).
(d)
Just 1,5cm from wound (c) going towards the left ear is an oblique
superficial wound 3,5cm.
These
caused deceased's death whose cause the pathologist listed as
severe brain damage with haemorrhages, skull fractures and callous
head injury.
(vi)
the phrase “minus one” uttered by accused as he ran away from the
scene is indicative of an intention to kill.
Despite
accused's denial of it 2 witnesses prosecution witness 1 and 2
corroborated each other that accused did utter the words. His sister
and neighbour friend could not have contrived without basis to lie
against accused on this aspect.
The
penultimate question is whether the intention to kill was actual or
constructive.
We
agonised on the issue and came to the conclusion that taking into
consideration all the attendant circumstances of the case it was a
borderline case between actual and constructive intent and it is only
fair and just to give accused the benefit of the borderline doubt and
eschew a conviction of murder with actual intent.
The
circumstances of the case justify the conclusion that when the
accused attacked the deceased with the hoe in the manner he did he
must have realised that there was a real risk/possibility that his
conduct may cause death and he continued to engage in that conduct
despite the risk or possibility.
In
the result accused is found guilty of murder with constructive
intent.
The
Prosecutor General's Office,
State's
legal practitioners
Messrs
Ndove, Museta & Partners,
accused's legal practitioners
