Murder
CHITAPI
J:
The
two accused persons are jointly charged with the offence of murder as
defined in section 47 of the Criminal Law (Codification and Reform)
Act [Chapter 9:23].
The
State alleged in the indictment that the two accused persons acting
with an intention to kill assaulted the late Radolph Cherekedzai Gora
with open hands and tree logs at about 9:00pm on 29 May 2015 at
Chitsungo Village, Chief Chitsungo, Pfungwe thereby causing his
death.
Both
accused persons pleaded not guilty to the charge.
The
summary of the State case which was produced as annexure A outlined
that on the fateful night, the deceased was at Victor Chitsungo's
homestead where he intended to buy tobacco. Victor Chitsungo
suspected that the deceased had an extra-marital affair with his wife
Naome Ahombile who was present at the homestead. Victor Chitsungo
summoned some villagers to his homestead intending to report to them
that he had caught the deceased at his homestead as well as his
suspicions.
The
accused persons were later to arrive at Victor Chitsungo's
homestead around 10:00pm. Other villagers were then about to leave
the homestead when the two accused arrived in the company of one
Tichaona Tichabwa. The two accused then assaulted the deceased with
the first accused using his open hands several times on the face and
the second accused using a munhondo tree log and striking the
deceased with it on the buttocks several times.
The
accused persons who would not be restrained continued to assault the
deceased until he fell unconscious.
The
first accused further assaulted the deceased with fists on the head
and face and also with two sticks plucked from a musawu tree at the
deceased's residence. The outline also stated that the first
accused threw the deceased into a fire whilst the second accused hit
the deceased with booted feet several times on the head.
The
deceased is alleged to have succumbed to his injuries in hospital on
28 June 2015.
The
State Outline summarizes what the State alleges to have happened. At
least 4 paragraphs have been devoted to the summary and it covers a
whole page. After the summary, the State Outline then lists 9
witnesses with summaries of what each such witness will testify to
being outlined.
A
word of caution is necessary to be given to the State.
This
court has noted an increased tendency by the State to provide lengthy
summaries of what the State Outline describes as having happened in a
specific case. The document which is loosely referred to herein as
the State Outline is a document which the law provides that it be
served upon the accused when he is committed by the magistrate for
trial before the High Court. The document and its content are
provided for under section 66(b) of the Criminal Procedure &
Evidence Act [Chapter 9:07].
The
court will divert a bit and comment on the pre-trial documents which
are required to be provided to the accused and also by the accused
prior to the commencement of his or her trial in the High Court.
In
terms of section 136(1) of the Criminal Procedure and Evidence Act;
“When
a person charged with an offence has been committed for trial or
sentence and it is intended to prosecute him before the High Court,
the charge shall be in writing in a document called an indictment.”
In
terms of section 137 of the Criminal Procedure and Evidence Act;
“As
soon as the indictment in any criminal case brought before the High
Court has been lodged with the Registrar of that court, such a case
shall be deemed to be pending in that court.”
In
terms of section 66 of the Criminal Procedure and Evidence Act, if
the Prosecutor–General decides that in respect of an offence which
a particular accused be charged with, should be tried in the High
Court, he is required to cause a notice to be served upon the
magistrate before whom the accused may be appearing for remand or the
magistrate for the Province in which the accused to be tried in the
High Court is residing or is present.
On
the strength of the notice, the magistrate commits the person to
custody until he appears for trial before the High Court on the
appointed date. The person so committed for trial remains in custody
unless liberated on bail pending such appearance for his trial. If
however the person was on bail, the committal for trial does not
cancel the bail.
This
judgment is not intended to comment on all the modalities of the
procedure for committal but on the documents which the accused being
committed should be served with by the magistrate.
The
documents which the accused should be served with include inter alia
the indictment as defined in section 136 of the Criminal Procedure
and Evidence Act, the notice of trial and in terms of section 66(6),
the document or State Outline.
In
this judgment, the court seeks as already indicated to comment on
this document.
Section
66(6) of the Criminal Procedure and Evidence Act, provides as
follows:
“Where
an accused has been committed for trial in terms of subsection (2)
there shall be served upon him or her in addition to the indictment
and notice of trial-
(a)
a document containing a list of witnesses it is proposed to call at
the trial and a summary of the evidence which each witness will give,
sufficient to inform the accused of all the material facts upon which
the State relies; and
(b)
a notice requesting the accused -
(i)
to give an outline of his or her defence, if any, to the charge; and
(ii)
to supply the names of any witnesses he or she proposes to call in
his or her defence together with a summary of the evidence which each
witness will give; sufficient to inform the Prosecutor-General of all
the material facts on which he or she relies in his or her defence;
and informing the accused of the provisions of section 67(2).”
Section
67(2) of course deals with the issue of inferences which the court is
entitled to draw from an accused's failure to mention or include
material facts in the outline of his defence where it is considered
by the court that the accused should have reasonably been expected to
include such facts if they were existing at the time of the making of
the Defence Outline.
This
judgment again does not concern itself with section 67(2) nor to
debate it in the light of an accused's right to remain silent as
provided for in section 50(4) of the Constitution. The court however
observes that there would appear to be nothing in section 50(4) which
entrenches the accused's right to remain silent on trial as opposed
to upon arrest or detention.
This
judgment concerns itself with pointing out that it is improper for
the State to give a summary of facts or to draw conclusions on what
it alleges to have happened. Such summarization and conclusions fall
outside the ambit of section 66(6)(a) of the Criminal Procedure &
Evidence Act.
The
State should comply with the provisions of the section. The
summarization of what happened does not assist the court and is of no
evidential value. If anything, it will be useless because it is based
on conclusions drawn by the State from a reading of witness
statements before they have given evidence.
Many
a time, the court after hearing evidence of witnesses finds that the
evidence is at variance with the summation by the State.
The
State should therefore desist from seeking to summarize its case in
the document referred to in section 66(6)(a).
A
distinction must be made between proceedings in the High Court and in
the Magistrates Court. In the Magistrates Court, where an accused has
pleaded not guilty, the prosecutor is required in terms of section
188 of the Criminal Procedure & Evidence Act to make a statement
outlining the nature of the State case and the material facts on
which the State relies. The accused will likewise do the same.
In
the High Court, the practice of summarizing evidence whilst it is not
provided for under section 66(6) of the Criminal Procedure &
Evidence Act is nonetheless provided for in section 198 of the same
Act. Section 198(1) of the Criminal Procedure and Evidence Act
provides as follows:
“(1)
The prosecutor may, at any trial before any evidence is given,
address the court for purposes of explaining the charge and opening
the evidence intended to be adduced for the prosecution, but without
comment thereon”.
The
State should be guided by this section if it intends to make an
address before leading evidence. In short this is done at the trial.
It
is hoped that the comments made in this judgment will in future guide
the State when preparing the document referred to in section 66(6) as
aforesaid.
In
this judgment, the court notwithstanding the purported summation by
the State as outlined at the beginning of this judgment will not be
swayed or influenced by it but will base its judgment on the
evidence.
Lastly
whilst section 65(v) of the Criminal Procedure & Evidence Act
provides that any irregularity in failing to comply with the
provisions of section 66 will not vitiate the validity of a trial,
the provision should not be read as giving the right to the State not
to comply with the clear provisions of section 66 as set out therein.
Reverting
to the case before the court, the State read out the summaries of the
evidence of the proposed State witnesses. The accused persons Defence
Outlines were also read into the record. The Sate summary was
admitted as Annexure “A”. The Defence Outline for Accused 1 was
admitted as Annexure B, and that of Accused 2 as Annexure C.
It
is not proposed to repeat the contents of the defence outlines and
indeed of the summaries of the State witnesses. The documents and
their contents are part of the record.
The
Prosecutor led evidence from 5 witnesses and applied for the
admission of the evidence of 4 other witnesses as outlined in the
summaries of their evidence and the defence counsels on behalf of the
accused persons admitted the evidence.
The
evidence on which the court heard viva-voce was from the following
witnesses, viz;
(i)
Doctor Tsungai Victor Jawangwe;
(ii)
Naome Ahombile;
(iii)
Nhamo Chitsungo;
(iv)
Winne Chekeredzayi; and
(v)
Victor Chitsungo.
The
evidence which was admitted related to summaries of the evidence of
witnesses, Kudakwashe Mubvongi, Casper Kamedza, Givemore Chiorese and
Shadreck Mavuka. The admitted evidence as outlined in the summary of
the State case was as follows:
Kudakwashe
Mubvongi:
He was summoned to the scene of the altercation by Naome Ahombile who
in turn had been sent to call the witness by Victor Chitsungo.
On
arrival at the scene he found Victor Chitsungo holding the deceased
by his jacket. He advised Victor to refer his dispute with the
deceased to the village Head or Chief to deal with. He remained at
the scene until the Village Head and others arrived. He was still at
the scene when the two accused persons arrived thereat.
He
witnessed the two accused persons attack the deceased.
When
he tried to restrain the second accused from further assaulting the
deceased with a log, the second accused turned against him and kicked
the witness on the groin forcing the witness to flee from the scene.
Casper
Kamedza:
He accompanied Nhamo Chitsungo, the Village Head to the scene and it
was accepted that his evidence was corroborative of that of Nhamo
Chitsungo.
Givemore
Chiorese and Shadreck Mavuka:
They are members of the Zimbabwe Republic Police. The former was the
arresting detail who also attended the scene of the alleged assault
on the deceased and he referred the deceased to the hospital for
treatment.
He
recovered the various exhibits which were produced in court. He
arrested the accused person.
The
latter, that is, Shadreck Mavuka was the investigating officer and
compiled the case docket.
No
comments are really necessary with regards the admitted evidence of
the witnesses already listed. Note is however made from the evidence
of Kudakwashe Mubvongi that the accused persons both assaulted the
deceased and that the second accused could not be restrained but
instead attacked the witness by kicking him in the groin resulting in
the witness removing from the scene.
Doctor
Tsungai Victor Jawangwe:
Is stationed at Parirenyatwa Hospital. He speaks with a stammer but
what he said was audible. His qualifications are MBCHB; M. Med
Histopathology and Diploma in Forensic Medicine: (Pathology).
He
conducted the autopsy on the deceased on 2 July 2015 following the
deceased's death on 28 June 2015 at the same hospital. The
highlights of his evidence which he explained are contained in a
report which was produced as exhibit 1. He recorded the deceased as
being an African male 71 years. The background information given to
him was that the deceased had been assaulted on 29 May 2015. His
external examination noted the following:
1.
Healed linear lacerations' 25 – 30mm long and 2mm wide on both
the left and right sides of the body.
2.
Healed lacerations on right hand 9mm above the wrist.
3.
Three (3) medial wounds 55mm x 3mm.
4.
Wounds 60mm x 45mm above the buttocks.
5.
15.8cm wound above the head.
6.
Lateral midline wounds 60mm x 7mm wide.
7.
Circular healing wound 19cm above midline on right leg.
8.
Healing bruise 16cm above midline on left leg.
His
internal examination revealed the following on the head, brain skull
and thorax:
9.
Intramuscular right temporal muscle haermorrage on left side 45 x
28mm.
10.
Subdural haemotoma on the skull.
11.
Swollen right cerebral hemisphere with shift of midline to the left.
12.
Large liquefied cystic cavity on right frontal lobe 50mm diameter.
13.
Inter–muscular haematoma in chest muscles 60 x 40mm.
14.
Intermuscular haematoma on 1st, 2nd 3rd intercostal spaces.
His
conclusion as to the cause of death was that the deceased died from
complications of blunt force induced head injury. He said that the
injuries were consistent with the use of a linear object and further
consistent with the use of a stick. He agreed that a fall could also
cause head injuries. The other lacerations were unlikely to cause
death. Subdural haemotoma was the immediate cause of death because it
consisted in bleeding of veins between the brain and the cranial
space.
He
said that aged people easily succumbed to such injuries because the
brain will have shrunk and easily shakes within the cavity where it
sits.
He
discounted HIV as a cause of death nor as being a contributory
factor.
The
evidence of the doctor was not really tested nor seriously disputed.
The court accepted without reserve that the deceased met his death
through complications which resulted from injury to his head as a
result of the application of blunt force by a linear object.
Naome
Ahombile:
The court approached the evidence of the witness with caution. This
was so because she engaged in secret conversation with the deceased.
She
was telephoned by the deceased and asked whether she was alone and if
her husband was away and she confirmed. She agreed to meet the
deceased. She did not report to anyone the deceased's approaches to
her. Her husband arrived whilst she had welcomed the deceased at
night and after he had made prior arrangements to meet with her.
Such
a witness would not surprisingly seek to cast herself as an innocent
participant.
The
court could not however make a conclusive finding that she was in
love with the deceased nor that the two had engaged in a sexual act.
The court however, raised its eyebrows on the nature of the two's
relationship. The court did not accept the seeming insinuation by the
witness that she found the deceased at her homestead by accident. The
probabilities point to an arranged meeting between the witness and
the deceased which however was unexpectedly disturbed by the
witness's husband.
The
court accepted that the deceased was caught unexpectedly at the scene
and hence ended up creating the story that he was looking for tobacco
to buy yet the tobacco would have been available at the shops being a
place where the deceased knew and had given out as his destination
when he bid his wife farewell saying that he was going to watch
soccer on television at the business centre.
Despite
its mistrust of the witness' designs with the deceased, the court
accepted the witness evidence that the assault upon the deceased was
perpetrated by the two accused persons and that the two appeared
drunk and would not be deterred. The court accepted the witness
evidence that the first accused slapped the deceased and the second
accused kicked the deceased with booted feet and also used exhibit 2,
the munondo stick, to assault the deceased.
Exhibit
2 as a matter of fact is linear in shape.
The
court accepted her evidence that the second accused assaulted the
deceased with exhibit 2 indiscriminately and not on one particular
area of his body.
The
evidence of the witness with regards the assault upon the deceased
was corroborated by Nhamo Chitsungo the Village Head and by Victor
Chitsungo.
Nhamo
Chitsungo:
His evidence largely corroborated that of Naome the last witness as
far as he described how the assault was perpetrated by the accused
persons. It is not necessary to go through it in any detail.
He
was called to the scene and was given a report on how the deceased
had been found by Victor at his homestead and failed to give a
convincing explanation about his intentions. The deceased had agreed
to compensate Victor for invasion of his privacy with the matter to
be talked over at the Village Court on the following day.
The
witness had no idea that the deceased had been seriously injured and
only became aware after he sent his messenger to summon the deceased
to the Village Court so that the previous night's events could be
concluded.
The
witness removed from the scene to escape threats of violence by the
accused persons. Victor did the same. The accused persons would not
be restrained. The second accused was more violent than the first
accused. The second accused used a weapon, exhibit 2, to assault the
deceased.
Exhibit
2 is 128cm long, 3cm in diameter at the thick end and 1–5cm in
diameter at the thin end.
The
witness said that exhibit 2 was applied to the accused's buttocks
whilst he was now prostrate. This therefore means that the deceased
fell because of the assault or in the process of being assaulted
because it is common cause that when the accused persons arrived at
the scene, the deceased was seated as confirmed by the accused
persons' own admission.
Victor
Chitsungo's
evidence also confirmed that of the other witnesses that the accused
persons never gave the deceased a chance to defend himself. They just
pounced on him and continued to assault him despite his pleas to them
that they were injuring him and killing him.
The
court accepted the evidence of this witness that the accused persons
would not be restrained especially the second accused. The evidence
of this witness read properly is materially similar to that of the
other State witnesses. Nothing new arises from its analysis and any
differences in the evidence relate to immaterial points or aspects.
This is to be expected when the scene is mobile.
The
last witness Winnie Cherekedzayi gave a chilling account of how the
accused persons assaulted the deceased at his homestead using their
hands, kicking him and using switches produced by consent.
It
was not denied by the accused that the switches were plucked from a
tree at the deceased's residence. The accused persons however
denied using the switches. The witness testified to deceased being
thrown into a fire and being unable to walk, stand or talk. Deceased
was almost stripped naked with accused persons having taken
possession of his jacket, shoes and hat which they were putting on.
The
witness presented a picture of an honest witness and her evidence as
to the deceased's condition was corroborated by the fact that the
deceased had to be taken to hospital and ended up in Harare. The
deceased could not attend at the police station to record statements
and failed to show up at the Village Court.
The
State closed its case.
The
evidence of the accused's persons and that of State witnesses are
not at variance on material points.
In
their defence outlines they accept or admit perpetrating an assault
upon the deceased. Their motives for doing so in the case of the
first accused lies in his grudge with the deceased whom he believed
to have caused the breakup of his marriage and also infected him with
HIV. As for the second accused his motive was that he wanted to
reprimand the deceased for his wayward ways of proposing love to
other men's wives and setting a bad example.
This
case is not difficult to determine because the material facts are
common cause. The two accused persons assaulted the deceased who did
not retaliate and was defenceless imploring them to stop their
assault because they were injuring him. The accused persons were not
deterred. Accused 1 used his hands and a switch at Victor Chitsungo's
home and the deceased's home respectively. Accused 2 used his
booted feet and a munondo stick, exhibit 2, although he says that he
used a mususu switch. It is not necessary to determine whether the
switch he used was plucked off a mususu or munondo tree. Whichever
tree it came from, it was sufficient to inflict some injuries noted
upon the deceased in so far as they were consistent with the use of a
linear object.
From
the testimony of the witnesses however, the court records that it
preferred the State evidence as to the use of exhibit 2 by Accused 2.
The
accused persons behaved like animals. They took it upon themselves to
inflict punishment upon the deceased. They were not the injured
parties and did not even have full information on what sin or wrong
the deceased had committed. They in typical style of village bullies
attacked deceased. The assaults were prolonged. The deceased's
clothes like the shirt were torn to tatters. The jacket was torn. The
deceased had his shoes removed. His spectacles were damaged. His
watch was damaged.
He
was thrown into a fire.
The
assaults were vicious in magnitude. The assaults ended only when it
was clear that the deceased was helpless.
This
is the evidence before the court.
The
first accused has sort to minimize the extent of his involvement and
the nature of assault he inflicted upon the deceased. The second
accused has similarly done the same.
The
accused persons were poor in demeanor as witnesses.
The
first accused was not entirely honest with the court. He however
ended up apologizing for his conduct. The second accused was such a
poor witness to the extent that the court had to intercede to bring
him to answer questions in his interest.
He
showed no signs of remorse and sought to portray State witnesses as
ganging up against him. Whilst he testified that he had had an
altercation with the Village Head, hence suggesting a motive for the
Village Head to lie against him, he could not advance any motive for
the other witnesses who corroborated the Village Head to also lie
against him. In the court's view, there are only two issues for the
court to answer. These are;
(1)
whether or not the accused acted in common purpose; and
(2)
the second one whether if they acted with a common purpose, they
foresaw that their actions could result in serious injury or the
death of the deceased.
The
law on common purpose is well settled; see S v Safatsa & Others
1988 (1) SA 868 (A); S v Mgedeza & Others 1989 (1) SA 687; S v
Mzwempi 2011 (2) SALR 227; S v Madzogo HH397/15.
The
requirements can be said to be as follows:
There
must be evidence adduced to prove that:
(i)
each accused was present at the scene of the offence when it was
committed.
(ii)
each accused must have been aware of the commission of the offence.
(iii)
Each accused must have intended to make common cause with the other
person or persons committing the offence.
(iv)
Each accused must have manifested his sharing of common purpose with
the other by performing some act of association with the conduct of
the other.
(v)
Each accused must have had the mens rea to commit the offence.
Jonathan
Burchell – Principles of Criminal Law 3rd ed (2008) at 574 writes:
“Where
two or more people agree to commit a crime or actively associate in a
joint enterprise, each will be responsible for the specific criminal
conduct committed by one of their number which falls within their
common design.”
See
also section 196 of the Criminal Law (Codification & Reform) Act
[Chapter 9:23].
In
this case both accused were aware that they were committing an
offence of assaulting the deceased. They associated in the assault
and intended to achieve the same result being the application of
unlawful force on the deceased. They had the necessary intention to
apply this force and their voluntary intoxication considered against
their actions did not negative mens rea.
On
the second enquiry as to whether or not the accused foresaw the
possibility subjectively that death could result from their conduct
if not serious injury, the answer is in the affirmative.
The
accused persons perpetrated a sustained brutal assault upon the
deceased and held him hostage. He was defenceless. One of them used a
weapon during the initial assault, that is exhibit 2 and the other
used weapons being two switches at the deceased's home. The
assaults contrary to what the deceased stated were applied
indiscriminately on the deceased. The court does not accept the
accused's explanation that they picked up and chose where on the
body of the deceased to direct their blows. The evidence of choice of
points on the body where to land blows is inconsistent with the
volatility of the situation. The possibilities certainly do not
favour a finding that the accused persons were composed to the point
of choosing areas on the deceased to direct their blows.
They
tore the deceased's clothes. Deceased was thrown into the fire. He
pleaded with the accused persons that they would kill him. The
deceased persons were not deterred. They continued to assault the
deceased until he was helpless and he had to be assisted into his
bedroom not talking and never to talk again.
The
accused's person's evidence that they walked with the deceased to
his home normally does not accord with the rest of the objective
evidence adduced and accepted by the court as well as the
probabilities.
When
a person perpetrates an unlawful, sustained and indiscriminate
assault upon another using either his hands, fists, booted feet or as
in this case weapons, such person if he perpetrates such an assault
knowingly must surely subjectively foresee the possibility that his
assault might cause serious bodily harm if not death.
The
manner of death is not important because people are made differently.
In any event the thin skull rule provides that you take your victim
as you find him.
It
is the finding of the court that the accused were aware of and
foresaw the risk or possibility that their actions could result in
the death of the deceased by infliction of mitigated injury upon him
and continued to engage in that conduct. The verdict of the court is
therefore that:
Each
accused is found guilty of the murder of the deceased under section
47(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter
9:23].
Sentence:
These
are the reasons for sentence. The accused persons have been convicted
of a very serious and capital offence. The offence of murder is
viewed by the courts in a very serious light.
Section
48 of the Constitution of Zimbabwe Amendment (No.20) Act, 2013
provides that every person has a right to life. The right to life is
a fundamental right and is the most sacrosanct right which should be
safeguarded. It is important that our society accepts that a person
should only lose his or her life due to natural causes or by
operation of law.
Section
86(3)(a) of the Constitution provides that the right to life cannot
be limited. Section 53 of the Constitution provides that no person
may be subjected to physical or psychological torture or to cruel
inhuman or degrading treatment or punishment. Section 86(3)(c) also
provides that no law may limit the right not to be tortured or
subjected to cruel inhuman or degrading treatment.
There
has been a sudden upsurge in cases of murder in the country of
recent. One reads of and the courts preside over cases of murder on a
daily basis. It is also observed that the police hierarchy continues
to bemoan the upsurge in cases of homicide.
As
a society, people need to respect the life of each other. The moment
that society behaves in a barbaric fashion where the sanctity of
human life is no longer held sacrosanct, society drifts back to the
barbaric ages. It is noted that there are institutions to be found at
all levels of society starting with the family to deal with disputes.
In
this case, the Village Head was called to intercede in the dispute by
the wronged person, Victor Chitsungo. The accused instead of
respecting the authority of the Village Head to resolve the dispute
threatened the Village Head. The Village Head, fearing for his health
or an assault on him, ran away from the scene. The accused persons
then took it upon themselves to torture the deceased who was old
enough to be their father if not their grandfather.
The
accused's conduct was very abhorrent. The two accused said that
they beat up the deceased in order to teach him to be exemplary.
How
so?
It
is foreign to cultural norms in Zimbabwe that the young as in this
case accused persons in their thirties should beat up a 71 year old
man and teach him how to behave and be exemplary. The nature of the
assault that the two accused person perpetrated upon the deceased
deserved of severe censure. They almost stripped him naked. They
behaved as untouchable kings and could not be deterred by anyone. The
prosecutor properly described the behaviour of the accused as
barbaric. They took away the deceased's clothes and put them on as
if the clothes were a trophy they had won in a contest. Over and
above this, the accused persons exhibited very little signs of being
remorseful for their conduct.
In
the case of the first accused, right up to the end of the trial and
despite any evidence to support his assertions being availed, he
continued to accuse the deceased of having afflicted him with the HIV
virus. He argued that he got the affliction from his wife who in turn
was infected by the deceased.
His
belief existed in his imagination because there was no evidence that
there was any sexual contact between the deceased and the accused's
wife. There was no evidence either of the HIV status of the deceased
which was led or placed before the court. The accusation that the
deceased was HIV positive amounted to an insult upon the dead.
The
State witnesses who were related to the first accused testified that
they were hearing about the first accused's accusations for the
first time in court which included the further accusation that the
first accused's wife had divorced him because she had hooked up
with the deceased. The subject matter of the first accused's
divorce was never discussed by his family yet the first accused had
the audacity to come to court and allege serious unsubstantiated
allegations in a bid to justify his barbaric conduct. The court found
such stance on the part of the first accused to be deplorable.
The
second accused's behaviour was that of an outright criminal. People
tried to reason with him not to be violent and he turned against them
threatening to assault them. The court as in the case of first
accused did not observe any signs of remorse or regret over his
conduct and the consequences which ensued.
It
was submitted by defence counsels that the accused persons were
unsophisticated rural persons. This is true and it will be given its
due weight.
The
accused both denied that they were prone to violence and said that
they had never been arrested before. Despite being unsophisticated
persons, they therefore appreciated right from wrong. They were thus
informed persons who appreciated that violence was a crime.
This
case presented itself as one of the bad cases which has come before
this court. The two accused persons appeared not to care whatsoever
as to what could become of the deceased, that is whether he was
seriously injured or died. Not only did the accused assault the
deceased at Victor Chitsungo's homestead, they dragged the deceased
to his home undressing him on the way. They also assaulted him in
front of his elderly wife. They were not deterred when the deceased's
wife tried to reason with them to desist from assaulting the
deceased. They threw the deceased into a fire at his homestead.
The
accused persons clearly took the law into their own hands holding
that it was their responsibility to punish the deceased. Such conduct
is not countenanced by courts of law.
The
court will however notwithstanding its strong disapproval for the
accused's conduct still consider the mitigatory factors submitted
on the accused's behalf.
The
first accused was said to be HIV positive. Thankfully, medicine has
made inroads in controlling the medical condition which used to be a
sure death eventuality. The accused can continue to access his HIV
medication in prison.
Both
accused persons were said to have family responsibilities. In the
case of the second accused, in addition to his own family it was
submitted that he was responsible for the family of his
brother-in-law. The brother in law is an invalid.
Family
people should always appreciate that they have a responsibility to
their families. They should not engage in conduct which is
irresponsible because in the end not only do they suffer the
consequences of their conduct but their innocent dependants also
suffer in the process. It is therefore inevitable that the dependents
in this case will be indirectly affected by the incarceration of the
accused persons.
The
State counsel submitted that undue weight should not be given to the
fact that the accused persons had partaken alcohol.
The
court was faced with evidence that the accused persons had been
drinking beer at the township. The State witness Naome Ahombile
testified that both accused upon arrival at Victor Chitungo's
homestead where the deceased was, appeared to be drunk.
In
terms of section 221 of the Criminal Law (Codification and Reform)
Act voluntary intoxication where it does not lead to an accused being
unable to form the intention required to be proven to found a
conviction for the offence charged may properly take voluntary
intoxication into consideration as a mitigatory factor together with
all other circumstances of the case being taken into account.
There
is no doubt that intoxication played a part in the accused's
conduct even though the accused denied this. It is a truism that a
person will lie unto himself or herself by denying that alcohol
influenced his or her conduct. The lie is usually motivated by the
fact that such persons then thinks that his or her position or
defence will worsen or not be believed if he or she admits to being
intoxicated.
The
court takes into account the observations made in the case of S v
Mario HH468/86 in which the judge stated that intoxication is one of
the age old frailties which will always reduce the intoxicant's
ability to act rationally. The legislature has also observed and
legislated as such in sections 221 and 222 of the Criminal Code.
The
court in sentencing the accused should not be affected by emotion.
Allowing emotion to affect its judgment would place the court in the
same boat as the accused persons who allowed their emotions to
override reason. It is important that any sentence which a court
passes should be measured. It will properly be measured through the
court exercising an appropriate degree of mercy in the given
circumstances. The court will be mindful of this and take the
principle into account.
The
State counsel has submitted that an appropriate sentence in this
matter despite the accused persons being first offenders is a lengthy
custodial sentence.
A
first offender will only benefit from being spared imprisonment where
the circumstances of the case allow.
A
human life was lost needlessly and societal interests must override
the personal interests of the accused.
There
appears to be no basis to differentiate the sentences of the two
accused persons nor is there justification to suspend any portion of
the sentence. If a long custodial sentence does not deter an offender
from future commission of crime, a suspended sentence is unlikely to
achieve this effect.
Taking
into account all the circumstances of this case, the accused's
personal circumstances and the interests of society, the following
sentence in the view of the court is merited.:
Each
accused is sentenced to 20 years imprisonment.
National
Prosecuting Authority, for the State
Dzoro
& Partners, accused's legal practitioners
