MAKONESE J: The accused is
facing a charge of murder. It being alleged that on the 1st
of April 2011 and at Village Simboti, Chief Nemangwe, Gokwe, the
accused wrongfully and unlawfully caused the death of Gaboyi Gabi a
male adult aged 71 years by striking him with a log and axe on the
head, leg and right arm several times.
The accused pleads not guilty to
the charge of murder but tenders a plea of guilty with respect to the
lesser charge of culpable homicide. The State accepts the limited
plea.
The brief facts of this matter as
contained in the Statement of Agreed Facts (exhibit 1) are that on
the 1st
of April 2011 and at about 1500 hours the accused's pig strayed
into the deceased's homestead. At that stage the pig grunted and
the accused heard it resulting in him approaching the deceased's
home. A misunderstanding arose leading to the deceased and accused
trading harsh words. The deceased picked up an axe (exhibit 5) and
struck the accused. The blows landed on the accused's chin, chest
and forearm.
The accused retaliated by arming
himself with a log (exhibit 4) which he used to strike the deceased
on the head once. The deceased fell to the ground as a result of the
blow. The accused then took the deceased's axe and struck him on
the leg and arm.
One Simboti Chiyamuri arrived at
the scene and restrained the accused from further assaulting the
deceased.
The deceased was attended at
Gokwe District Hospital and died that same day as a result of
injuries inflicted by the accused.
The State tendered a post mortem
report compiled by Dr Mapanga following an examination of the remains
of the deceased. The post mortem report was marked as exhibit 2 and
lists the cause of death as;
(a) fractured skull;
(b) two deep lacerations on the
parietal bone (right side);
(c) laceration on the right arm;
(d) fractured femur/deep cut
above knee.
The proximate cause of death is
head injury.
On the basis of the evidence
presented before this court we are satisfied that the accused did not
intend to bring about the death of the deceased. The accused, however
acted negligently in causing the death of the deceased. It is clear
that the limited plea was properly conceded.
The accused is found not guilty
and acquitted on the charge of murder. Accused is found guilty of
culpable homicide.
Sentence
The accused has been convicted of
a very serious offence. The accused has been convicted of culpable
homicide arising from the death of a 71 year old male adult. This
offence ordinarily would attract a term of imprisonment.
The courts frown upon persons who
resort to self help leading to the loss of human life. The court,
however, would be failing in its duty, by not taking into account the
weighty mitigating features of this case.
The accused is first offender. He
has pleaded guilty and has shown his remorse and contrition.
The accused indicates that he
paid compensation to the deceased's relatives in the form of 8 head
of cattle, 2 donkeys, 3 goats and a scorch cart.
This court does not sanction the
payment of such compensation but nonetheless the court must consider
it as a weighty mitigating factor.
The imposition of a custodial
sentence would be wholly inappropriate in the particular
circumstances of this case if one has regard to the inordinate delay
that has been occasioned in this matter.
Accused has had to wait for 6
years before the conclusion of this matter.
The accused would have served and
completed a prison sentence had he been tried earlier.
In addition the accused has spent
a cumulative period of 4 months in remand prison before trial and
after his indictment.
His experience in prison must
have had a lasting effect on him as he waited for his trial
anxiously.
As has been stated by these
courts on several occasions, the sentenced imposed on convicted
persons must be just and fair. The interests of justice must be
served in all aspects surrounding the commission of this offence.
It would not be proper for this
court to fail to observe that the deceased was the initial aggressor.
The deceased not only threatened the accused with an axe, but
delivered a blow to the accused. The accused was lucky not to have
sustained life threatening injuries.
It is this court's view that
the following would be an appropriate sentence:
“Accused is to pay a fine of
$100,00 in default of payment 12 months imprisonment. In addition 5
years imprisonment wholly suspended for 5 years on condition accused
is not within that period convicted of an offence involving violence
and for which the accused is sentenced to a term of imprisonment
without the option of a fine.”
The National Prosecuting Authority, State's legal
practitioners
Gonese & Partners, accused's legal practitioners
