Criminal
Trial
MWAYERA
J:
A
plea of not guilty to a charge of murder as defined in section
47(1)(a) or (b) of the Criminal Law (Codification and Reform) Act
[Chapter
9:23]
was tendered by the accused when he appeared before this court for
trial.
The
State alleged that on 4 August 2017 at House number 15450 Gimboki
South, Dangamvura, Mutare, the accused person unlawfully caused the
death of Taurai Nyakunu by striking him once on the head with a
hammer or some other blunt object intending to kill him or realising
that there was real risk that his conduct might cause death and
continued to engage in that conduct despite the real risk or
possibility resulting in injuries from which Taurai Nyakunu died.
The
accused raised a defence of self-defence.
He
pointed out to the court that he assaulted the deceased with a stone
in self-defence upon realising that it was imminent, the deceased was
going to further assault him after the deceased had poked him on the
forehead and the deceased was being aggressive.
As
discerned from the summary of the State case; on the day in question,
the accused went to the deceased's homestead on a follow up for
some money owed to him by the deceased. A misunderstanding ensued
resulting in the accused assaulting the deceased leading to the fatal
consequences.
The
State adduced evidence orally from three witnesses and the evidence
of five witnesses namely Portia Bumhunza, Miriam Mapfumo, Lovemore
Mangezi, Emmanuel Mushaikwa and Dr E Sedze that is witnesses number
4–8 respectively as appears on the summary of the State case was
formerly admitted in terms of section 314 of the Criminal Procedure
and Evidence Act [Chapter
9:07]
(by consent of defence counsel.)
It
was clear from the evidence of Rufaro Jiriengo that on the night in
question the accused and her husband, the now deceased, had an
argument when the accused came demanding for his money. The witness
told the court that she observed the accused drag the deceased for a
distance to the next Stand about 5 – 5 and a half metres away. The
witness told the court that although she had not seen the hammer
earlier when the accused approached their home, she saw him strike
the deceased with a hammer. She pointed out that visibility was aided
by the moon and light from the house since the door was open.
Although the witness was economical with her evidence on the nature
of the argument, it was apparent what was central was the money owed
to the accused.
The
witness appeared lost and uncertain as she seemed to be still in a
state of shock after the demise of her husband. Despite that state of
confusion, it was clear that she with the help of her brother in law
and a neighbour assisted the deceased to be taken to hospital where
the latter eventually passed on.
Liberty
Nyakunu, a brother to the deceased confirmed the accused was owed
money by his brother, the now deceased. The accused had secured a
building contract for $240-00 for the deceased and the accused in
turn was to get $40-00. None payment of this $40.00 or part of it as
outstanding balance caused friction between the accused and the
deceased.
When
the witness got to the scene the deceased had already been struck and
was on the ground. The witness told the court that he observed the
accused was holding a hammer using moonlight and light from the
house. The witness had been drawn to the scene by a text message sent
by his brother, the now deceased, telling him that the accused had
come demanding his money and that he was aggressive.
The
witness seemed to have paid more attention to his brother who had
been injured. He did not seek to give any description of the hammer
in question. He appeared at the scene after the deceased had already
been injured.
Doris
Gombarume, a girlfriend to the accused confirmed having met with the
accused and proceeded with him to the deceased's place where he was
to collect money he was owed by the deceased. The witness did not see
the accused holding a hammer neither did she see him with a hammer at
the scene.
To
the extent that upon arrival at deceased's place the accused was
not holding a hammer, the witness' evidence tallied with the wife
of the deceased Rufaro Jiriengo's evidence.
The
witness was just standing by waiting for the accused and she did not
talk to the deceased's wife. The witness observed accused and
deceased arguing with deceased poking the accused and accused
dragging the deceased to the next yard and the two exchanged blows.
The witness told the court that she could not clearly see everything
but it was clear there was a scuffle which culminated in deceased
falling down. After the fall she saw the accused and deceased but she
did not see a hammer.
The
witness in general, was none committal as she indicated she watched
from a distance.
The
accused was the only witness in the defence case. He maintained he
struck the deceased with a stone he picked from the ground and not a
hammer.
From
the totality of the evidence before the court, there are apparent
common cause issues worth noting. It is common cause the deceased was
struck on the head by the accused and he died the following day. The
death was caused by head injury as reflected in the post mortem
report exhibit 2. The injuries observed by the doctor on the body
namely skull fracture and haematoma around covering the brain and
cerebral haematoma are consistent with blunt trauma.
The
State alleges that a hammer was used while the accused alleges a
stone was used.
From
the evidence, neither the hammer nor stone was recovered from the
scene. The evidence on use of a hammer was haze and equally accused
was at pains to describe the stone used. What remains a fact however,
is that the deceased was struck in the head by the accused who used a
blunt hard object occasioning fatal injuries.
Also
not in dispute is the fact that the accused accosted the deceased at
the latter's house demanding for payment of what he was owed
following cession of a building contract. It is also apparent from
the State witnesses and the accused that the deceased was not armed
in any manner.
The
issues that fall for determination can be safely crystallised as
follows:
1.
Whether or not the accused had an intention to kill the deceased.
2.
Whether or not the defence of self-defence as raised by the accused
is available to him in the circumstances of this case in a charge of
murder as defined in section 47.
It
is imperative for the court to analyse the evidence in relation to
whether or not the accused had the actual intention to kill the
deceased.
It
is settled that for actual intention to avail one ought to have set
out with an aim to kill and proceeds to kill.
In
this case the accused set out to collect what he was owed from the
accused. A misunderstanding ensued during the confrontation which led
to a scuffle which culminated in the accused striking the deceased
with a blunt hard object on the head. Evidence before the court does
not show that the accused desired to bring about the death of the
deceased and that he succeeded in accomplishing his purpose. To that
end therefore murder with actual intention has not been proved.
From
the evidence adduced it is clear the accused while pursuing to be
paid money owed to him by the deceased engaged in confrontation with
the deceased. The two struggled till they were out of the deceased's
yard. The deceased was unarmed when the accused struck him severely
on the head causing injuries from which the deceased died. I say
severely struck because of the nature of head injury which occasioned
a depression and fractured skull.
The
accused by striking the deceased in the head with a hard object, a
stone per his admission or hammer per State's version foresaw that
death would result. In other words the accused by using violence, in
pursuing his money foresaw the real risk or possibility of death
occurring by striking the deceased's head, but nonetheless
persisted with his action thereby occasioning the death of the
deceased.
Courts
have highlighted factors that fall for consideration on deciding on
the intention in murder cases.
In
the case of The
State v Munodawafa
SC220/95 the court pointed out that the weapon that is used, the
manner in which it is used and the part of the body where it is
directed assist in establishing the intention. See S
v Mungwanda 2002
(1) ZLR 574.
In
this case a hard object aimed on the head would mean death was
foreseeable.
In
the present case given the manner in which the accused struck the
deceased, the weapon used and the part of the body struck the accused
engaged in violent conduct realising that there was real risk that
his conduct might cause death and that despite the realisation
persisted with the conduct. The accused by aiming a hard object on
the head of the deceased realised the real risk and was reckless by
persisting with the attack despite the realisation.
The
self-defence raised as a defence cannot be sustained in the
circumstances.
The
wording of section 253 is clear that the defence of self-defence is a
complete defence where certain requirements have to be met.
In
this case the deceased and accused were fighting or involved in a
scuffle in open space. The deceased was not armed. The deceased if at
all he was under attack could have easily escaped. In any event,
given the deceased was unarmed the means used was clearly
disproportionate. The accused struck an unarmed man in the head with
a hard object on the head. The attack on the deceased was
unjustified. The accused had the requisite legal intent and fatally
struck the deceased thus causing the death.
Accordingly,
the accused is found guilty of murder as defined in section 47(1)(b)
of the Criminal Law (Codification and Reform) Act [Chapter
9:23].
Sentence
In
passing sentence we have considered all submissions in mitigation and
aggravation as advanced by Ms Dhlomo
for the accused and Mr Chingwinyiso
for the State respectively. The submissions just like closing
submissions which were filed timeously are of great help for the
court in coming up with an appropriate disposition and befitting
sentence. We are indebted to both counsels for the help extended to
the court.
The
accused is given as a first offender. Ms
Dhlomo
requested the court to consider the accused's personal
circumstances. The accused is a family man with responsibilities to
fend for his wife and children all of whom are dependants on him. The
accused has been in custody for almost a year and the trauma that
goes with having such serious allegations hanging over his shoulders
cannot be overlooked. Although the gesture of compensation and
assisting the bereaved family will not bring back the lost life the
courts cannot pretend that it is not a sign of regret and contrition
on the part of the accused.
However,
as correctly observed by Mr Chingwinyiso,
precious human life was lost in circumstances where it could have
been avoided. To strike someone on the head with severe force to
occasion death is a clear indication of lack of respect of the
sanctity of human life. Although the accused was owed at most $40-00,
it was deplorable conduct to engage in violence as a way of
collecting his debt. Even criminals are not subjected to violence to
pay for the criminal wrong. To then cause death of a family man with
responsibilities over a debt of $40-00 is frowned at in a civilised
and progressive society.
The
deceased died at a tender age leaving a young wife and children who
depended on him for sustenance.
The
courts should pass deterrent sentences not only to deter accused but
society at large. It should be made clear that violence does not pay
and that taking the law into one's own hands where there are
channels through law enforcement agents has no room in a progressive
society. The right to life is a God given right which the legislature
saw fit to protect in our Constitution; section 48 is instructive.
Upon
considering all mitigatory factors and aggravatory factors given the
circumstances of this case, it is our considered view that
imprisonment is called for.
The
international sentencing principle demands that upon considering
sentence the court should seek to strike a balance between the crime
and offender while at the same time satisfying the societal interest
of administration of justice.
It
is our considered view that the following sentence is appropriate;
12
years imprisonment.
National
Prosecuting Authority,
State's legal practitioners
Mutungura
and Partners,
accused's legal practitioners
