MOYO
J: The
accused person faces a charge of murder; it being alleged that on 1
March 2017, he assaulted the deceased Bright Sibanda who is his
half-brother with a hoe handle. The deceased later died from the
injuries he had sustained which were on the head.
The
accused pleaded not guilty to murder but tendered a limited plea to
culpable homicide. The State rejected that plea and the matter
proceeded to a full trial.
The
following documentary exhibits, were tendered;
(a)
the State summary was marked Exhibit 1;
(b)
accused's Defence Outline was marked Exhibit 2;
(c)
his confirmed warned and cautioned statement was marked exhibit 3;
and
(d)
the postmortem report was marked exhibit 4.
The
hoe handle that was allegedly used in the commission of the offence
was not brought to court as it was allegedly not recovered.
The
facts of this matter are fairly straight forward;
The
two brothers had an altercation earlier in the evening where they
fought over 10 pula. The deceased assaulted the accused on the head
with a spirit level, resulting in the accused suffering injuries on
the head in the form of a cut. They were restrained. Later at home,
as accused arrived, deceased was narrating to Tauyanashe Muturukwa
what had happened in the altercation. Accused was within hearing
distance, he armed himself with a hoe and hit the deceased once on
the head. The deceased then fell to the ground injured and bleeding
profusely.
The
post mortem report gives the injuries as a laceration on the right
parietal region which was 8cm with a depressed skull fracture in the
same region as well as brain damage and subarachnoid haemorrage in
the same region. The cause of death is given as:
(1)
brain damage.
(2)
depressed skull fracture.
(3)
assault.
The
first State witness Tauyanashe Muturukwa did not see accused strike
the deceased, he only realized that deceased had been struck.
The
second State witness Elvis Katena observed from some distance,
accused carrying a hoe behind him and raising his arms above his head
as he struck the blow on deceased's head. He confirmed that the
accused did not use the hoe itself to strike the deceased but the
back of the handle.
The
accused's version is basically similar to that of the State save to
vary the circumstances in the kitchen when he assaulted deceased.
State
witness say deceased was unarmed but accused says he was; State
witness also say he aimed at the head and he says he did not.
Whatever
version one adopts, it is the nature of the assault which is decisive
on the verdict in our view.
The
State counsel submitted that from the weapon used, and the injuries
suffered the accused must be found guilty of murder with constructive
intent.
We
have not been favoured with the weapon that was used. And a hoe
handle can be any size. It was the State's duty to provide the
court with the exhibit if it so much wanted to lean on its nature. A
hoe handle is a form of log that varies in thickness, length and
width as well as weight.
How
can this court sit here and imagine a lethal hoe handle?
The
State bears the burden of proof and it cannot seek to have this court
assume issues that it should prove.
The
nature of the injuries I do not know how they lead to a conclusion on
the intention.
There
are numerous culpable homicide cases wherein an accused person would
either have been dealt a single blow on the head with a knobkerrie, a
village wooden stool, a stone or a log. I am not aware of any
principle of law that stipulates that where such was used on the head
and a person suffers skull fractures and brain damage, then
definitely murder has been committed. Only in the presence of other
relevant considerations can one be persuaded as such. In fact there
is ample case law to the contrary, which I believe is the reason why
the State counsel could not cite even a single case in support of the
State's contention.
The
defence counsel on the other hand contends that the verdict should be
culpable homicide.
The
Law
We
now have to assess what the accused is guilty of.
Distinction
between murder with constructive intent and culpable homicide
Professor
Feltoe in his Guide to The
Zimbabwean Criminal Law
2005 Edition at page 96 says that in deciding upon whether there was
legal intention all the factual evidence which bears upon and could
have affected the accused's perception, powers of judgment and
state of mind and foresight at the time he committed the offence must
be most carefully scrutinized, factors such as intoxication,
provocation, level of intelligence, personality etc. would obviously
be relevant in this regard. If the court concludes that accused did
not foresee the possibility of death but that he should have foreseen
it, the correct verdict is culpable homicide.
This
assessment however, is for those borderline cases which I do not
believe the current case is.
In
this case the accused and deceased fought, they were restrained, they
were both drunk, accused used a hoe handle and dealt a single blow on
the deceased. We were not favoured with the size and dimensions of
the hoe handle and without its size and weight you cannot hold that
from its usage only an intention to kill can be deduced.
This
case is a straightforward culpable homicide like any other
knobkerrie, village wooden stool, log, single blow cases onto the
head. That the blow was on the head and resulted in a fracture would
not on its own amount to an intention to kill.
This
case is certainly no different from the following cases by the High
Court where the verdict was found to be culpable homicide.
In
the case of S
v Mukwacha
HH233/16, the accused and deceased had an earlier altercation where
accused was assaulted, he later came back with a knife and stabbed
deceased once on the chest. A verdict of culpable homicide was given
by the court.
In
the case of S
v Mbano
HB114/15, the accused and deceased had an altercation while herding
cattle, accused struck deceased with a knobkerrie on the head once,
deceased later collapsed and died of a severe injury, trauma on
skull. He had a depressed skull fracture. The accused was convicted
of culpable homicide.
In
the case of S
v Sibanda
and Another
HB216/15, the accused struck the deceased once with a stone on the
head and the deceased died from severe brain oedema, subdural
haematoma, severe head trauma, and was convicted of culpable
homicide.
In
the case of S
v
Ncube
HB162/15 the deceased struck accused on the head once with a log.
The deceased died from subrachnoid haemorrhage, depressed skull
fracture, blunt force trauma, and the verdict returned was that of
culpable homicide.
The
list is endless.
These
single blow on the head cases where a culpable homicide verdict was
returned are so many that one wonders what motivated the State to
reject the limited plea by the accused person. Whilst the State has
the prerogative to prefer charges against an accused, one would
expect that they do so after a proper examination of the facts and
the evidence at hand. Certainly, an accused person should not be
charged with a more serious offence as a matter of course, but the
State counsel should carefully examine the burden of proof and the
State's ability to sustain the charge.
In
this case, even the weapon used was not tendered, and its size, shape
and weight obviously could not be assessed. These facts where a hoe
handle was used and a skull fracture resulted from a single blow on
the head could obviously not sustain a murder charge by the stretch
of any imagination.
At
the core of any justice delivery system is the consciousness by all
the stakeholders, to adopt all possible avenues that would lead to
curtailed litigation, as that does not only amount to a speedy
finalization of cases, but, it also saves the limited resources that
we have. The accused person is accordingly acquitted on the murder
charge and is convicted on the lessor charge of culpable homicide.
Sentence
The
accused is convicted of culpable homicide. He assaulted his
half-brother with a hoe handle resulting in his death. He is aged 34.
He is married has two minor children. He pleaded guilty to the
appropriated charge. He said he was hurt by his brother's death.
Deceased had assaulted accused before. He spent 10 months
imprisonment before trial.
However,
this court frowns on any loss of life in which violence is involved.
Families are butchering each other day in and day out. Violence is
now the norm in our society and this court should at all times
emphasise the sanctity of life.
The
accused spent 10 months in prison before that.
The
accused person is accordingly sentenced to 10 years imprisonment with
3 years imprisonment suspended for 5 years on conduct the accused
person does not within that period commit an offence involving
violence, whereupon conviction he shall be sentenced to imprisonment
without the option of a fine.
National
Prosecuting Authority,
state's legal practitioners
Pundu
and Company,
accused's legal practitioners
