MOYO J: The
accused person faces a charge of murder it being alleged that on 6
November 2014 at GVL Motors, corner Harare Road and Netherby Drive,
in Bulawayo he slapped the deceased resulting in deceased falling and
hitting his head on the tarmac. Deceased later died at the United
Bulawayo Hospitals, the following day.
The
parties prepared and tendered a Statement of Agreed Facts whose
material aspects read as follows:
1.
That accused and deceased are cousins.
2.
That on 6 November 2014 at GVL Motors, corner Harare Road and
Netherby Drive, the accused and deceased started quarreling and
arguing over the issue of their failure to get transport to
Mahatshula.
3.
That the misunderstanding degenerated into a fist fight which was
started by the deceased.
4.
That the accused retaliated by clapping the deceased once with an
open hand on his face.
5.
That the deceased fell down onto the tarmac with the back of the head
and got injured.
6.
That the deceased, accused and one Foreman proceeded home and the
deceased complained of a headache.
7.
That the accused went to local shops and bought headache pills.
Deceased continued to complain of a headache and around 23:00 hours
the deceased was rushed to United Bulawayo Hospital where he was
treated and discharged.
8.
That at around midnight the deceased's condition deteriorated
further and he was transported to United Bulawayo Hospitals where he
was admitted.
9.
That deceased succumbed to injuries and died on 7 November 2014.
The
Statement of Agreed Facts was marked exhibit 1.
The
State also tendered an affidavit by one Constable Chikunguru the
officer who identified deceased's body to the pathologist. It was
marked Exhibit 2.
The
post mortem report was also tendered and marked Exhibit 3. It gives
the cause of death as intracranial haemorrhage, skull fracture, head
injury, assault.
Clearly
from the facts, the accused and deceased had a misunderstanding,
accused slapped deceased and deceased then fell hitting his head on
the tarmac. This is an unfortunate state of affairs where deceased's
death was an accident although it resulted from accused's actions.
The
concession by the State to the charge of culpable homicide was
correctly made in our view.
The
accused person is accordingly found not guilty of the charge of
murder but he is found guilty of the lesser charge of culpable
homicide.
Sentence
Having
found that there is weighty mitigation in this matter, the accused
person is sentenced to 36 months imprisonment, with 18 months
imprisonment suspended for 5 years on condition the accused person is
not within that period convicted of an offence of which violence is
an element.
The
remaining 18 months are suspended on condition accused performs 525
hours of community service at Mahatshula Primary School.
National prosecuting Authority's
office, the State's legal practitioners
Kossam Ncube and Partners,
the accused's legal practitioners
