BERE J: The two accused persons Machekwa Shangwa and
Wellington Shangwa are blood brothers and the deceased Trust Chidhume was a
cousin brother to them.
The following
factors are common cause:
Having had a
misunderstanding with the deceased on 25 December 2009, the second accused went
and reported the deceased's conduct to the first accused. The first accused
armed himself with a screw driver which he subsequently used to stab the
deceased leading to the death of the deceased.
The post mortem
examination showed the deceased sustained "stab wounds on the anterior and
lateral sides of the chest as well as at the back. In addition there was
frothing from the deceased's mouth and chest. The doctor concluded the deceased
had died as a result of what he termed bilateral pneumothorax."
The warned and
cautioned statements of both the accused persons and the screw driver were
produced by consent. The screw driver weighted 8 grams, the length of its bled
was 10 cm and the handle was 8 cm.
The evidence of
Fungai Takaidza, Innocent Takaidza, Aleck Zambuko, Tinosi Munengwa and Dr T
Murambiwa was accepted by way of admissions in terms of s 314 of the Code. The
only evidence which was given viva voce
and subjected to cross examination by the defence was that of Mufaro Chidhume
and Sanangurai Chidhume.
The two accused
persons gave evidence and they two were subjected to cross-examination by the
State Counsel.
The first
accused person pleaded guilty to culpable homicide, a plea which was rejected
by the prosecution in preference of a verdict of murder per se. The second accused pleaded not guilty but as the trial
progressed his counsel reluctantly conceded that perhaps the appropriate
verdict against him was one for assault. His initial position was to advocate
for his outright acquittal.
In summation of
its case the State argued that accused 1 be found guilty of murder with actual
intent and that the second accused be found guilty of culpable homicide as the
State counsel reasoned there was no evidence the second accused had actually
participated in the actual murder of the deceased.
The
Evidence
The evidence of
Mufaro Chidhume was to the effect that when the second accused was chastised by
the deceased together with Sanangurai Chidhume for fighting, this did not go
down well with the second accused who did not hide his displeasure. The second
accused is said to have said he was going home to call accused one for revenge.
Indeed, both
accused came back and on meeting the deceased, Mufaro, Jacob and Sanangurai,
the witness was slapped and took to his hills. He did not get a chance to see
what happened at the scene. He was honest enough to tell the court that the
assault on him and his subsequent fleeing from the scene did not allow him to
see how the deceased was stabbed. The witness was certainly not a useful
witness in as far as assisting the court in appreciating how the deceased met
his fate. In our view, the only significant aspect of his evidence was his
hearing of the promise made by the second accused to go and seek accused one's
help promising to come back for revenge.
We are satisfied
that Mufaro gave a brief and credible evidence. We accept that he was not at
the scene when the deceased was stabbed.
The second State
witness Sanangurai advised the court that when they were accosted by the
accused persons he was hit on the head and before he fell down he heard the
first accused remarking "I have killed one." The head assault rendered him
unconscious only to fully recover two weeks later when he found himself at
Masvingo General Hospital.
From his own
testimony the witness appeared to have been terribly drunk on the day in
question as evidenced by his sleeping along the way before getting to his
homestead. This witness was also unable to take the court through the scene of
the murder itself as he had become unconscious after the assault.
The only helpful
piece of evidence was his hearing of the words to the effect "I have killed
one" which utterances he attributed to the accused one. He said he could not
possibly have mistaken these utterances for anyone else except accused one
because he knew him from childhood as they had grown up together.
If true, this
evidence would tend to demonstrate the belligerent attitude exhibited by the
accused number one. It would appear the conduct of the accused one was
consistent with the evidence of the accused number two that on meeting the
deceased and his other colleagues the accused one went straight for a fully
fledged attack on them. Evidence abounds from accused two which suggest the
accused person had prepared himself for nothing else but a fight.
For all its
criticism and the need to exercise caution given the close relationship between
the accused persons on one hand and the deceased and his fellow brothers on the
other hand, we are satisfied that Sanangurai's testimony was accurate and so
was the evidence of Mufaro. In fact, in this regard both counsels despite owing
a concomitant duty to their clients and to the court had difficulties in
negatively criticising the witness's testimony.
Having accepted
the evidence of Mufaro and Sanangurai as being credible and that the two were
not at the scene of crime when the deceased was fatally injured. It naturally
follows that both accused must not be believed when they state in their
respective warned and cautioned statements that the two witnesses were at the
scene and participated in a fight.
However, the
court cannot discount with the degree of certainty the confrontation which the
accused alleged he had with the deceased although the probabilities seem to
suggest that if at all the deceased attempted to fight the accused one he must
have done so in self-defence to the attack initiated by accused one against
Mufaro. This finding would be consistent with the evidence of Mufaro himself,
Sanangurai and the second accused person.
The accused one
admitted to have used the screw driver in stabbing the deceased in the manner
outlined in the post mortem report. The accused one's defence outline in so far
as it suggests that as a prelude to the assault the accused exchanged words
concerning the earlier assault on accused two does not find favour with the
court because it was not even supported by accused two. He was very clear that
if accused one were to suggest that he would be lying. We are indeed
comfortable in making a finding that indeed the accused one lied in this
regard. He did not get a chance to talk to the deceased before the assault. He
introduced himself at the scene by attacking Mufaro, then Sanangurai and
finally the deceased.
The defence of
self-defence which he attempted to raise in his defence outline would be untenable
because it would be contradicting his own unsolicited limited plea to the crime
of culpable homicide.
Secondly, both
the accused persons's testimonies as well as that of the two State witnesses
clearly show that the scene of the murder was very mobile and the accused one
could not possibly have seen the deceased appearing to be ready to attack
accused one in in the manner demonstrated by the accused himself.
There can be no
question of accused one being found guilty of murder per se as urged by the State because other than the testimony of
the accused one himself there was no other evidence which could be relied upon
to counter the accused's evidence as regards what happened at the scene of
crime. Whilst we are not obliged to religiously accept everything the accused
said we are enjoined to give him the benefit of doubt.
We are satisfied
that a reasonable person placed in the position of the accused one, having
armed himself with a screw driver and using it against the deceased in the
manner he did would have appreciated the consequences of his conduct. He was
negligent in causing the death of the deceased.
Accused
Two
The position
adopted by the prosecution was that the accused be found guilty of culpable
homicide on the basis of the doctrine of common purpose.
Whilst conceding
there was no evidence that the accused two participated in the actual assault
of the deceased the prosecution argued that it was the second accused who
played a substantial role in creating the events leading to the fatal assault
of the deceased.
The accused
two's counsel, after referring the court to a line of authorities from this
jurisdiction initially urged the court to acquit the accused two but subsequently
and with reluctance conceded the accused may have committed the crime of
assault.
For the record,
where the doctrine of common purpose is evoked the second accused can only be
convicted if the evidence suggest the accused two did something to associate
himself with the actions of the first accused.
It is clear from
the evidence accepted by the court that when the accused one went home his main
purpose was to go and get his brother, accused one so that the two would seek
revenge primarily against the deceased as it was the conduct of the deceased
which accused two had disapproved. We do not accept the motive was to go back
and seek clarification or to try and recover the accused two shirt'S and bag as
alleged. This is not borne out by what actually transpired at the scene of
crime.
The fact that
the two brothers had planned for revenge is demonstrated by the conduct of the
first accused when he went straight to assault the victims one after the other.
There is no evidence that accused two knew the accused one was armed with the
screw driver which turned out to be the murder weapon but the enquiry does not
end there.
There is
overwhelming evidence that revenge was the common objective.
Whilst the
accused two would want the court to believe that he was just a passive or
innocent bystander whilst the first accused meted out punishment on his
enemies, this suggestion did not impress us as a court.
The accused is
the one who initiated the whole idea of seeking revenge. As rightly observed by
his counsel Mr Mutendi, there is no
suggestion that the accused desired to cause the deceased's death but to mete
out some form of revenge on the deceased and his colleagues.
In accordance
with the finding of the court, the accused two could not have witnessed or been
involved in a fight with the people who had fled from the scene of crime.
It is
inconceivable in our view that having taken the trouble to run home to bring
more reinforcement to enable him to seek revenge the accused could have come
back to the scene, seen his adversaries and folded his hands whilst the accused
one did the dirty work for him. We do not accept this posture created by the
accused. He was the prime mover of the disturbances that took the deceased's
life that evening. He must have participated in exacting some form of
punishment against the deceased and his colleagues.
As a reasonable
person, the accused person must have foreseen that in the process of meting out
revenge against the deceased, the deceased might be seriously injured in the
process.
Whilst we are
prepared to grant the accused person the benefit of doubt on the offence of
murder itself that cannot be said of the offence of culpable homicide. Our very
story view is that in encouraging accused one to exact revenge on the deceased,
a bona paterfamilias individual
should have taken steps to ensure that the punishment did not exceed accepted
levels.
It was not out
of the ordinary that given the manner in which the revenge was going to be
meted the deceased might be seriously injured in the process. To this extent
the accused one's negligence stands high and remains clearly visible.
The accused
masterminded and participated in an extremely dangerous adventure. He
identified himself with accused one's conduct and must equally be found guilty
of culpable homicide.
Verdict
Accused one - not guilty of
murder but guilty of culpable homicide
Accused two - not
guilty of murder but guilty of culpable homicide.
Sentence
It has never
been an easy walk on the part of the court when it comes to sentencing. What
authorities say is that the sentence imposed must be blended with mercy and
must take cognisance of societal expectations.
We accept in
this case as mitigatory that both parties had partaken of alcohol and that must
have clouded their ability to think rationally.
Both accused
persons have family responsibilities which have been outlined by their
respective counsels.
Outside these
proceedings the accused demonstrated some form of remorse by contribution
eleven of the fifteen beasts required traditionally to appease the deceased's
spirit in accordance with their culture. There is some evidence that they or
their parents contributed towards funeral expenses at the deceased's funeral.
We will not lose sight of the youthfulness of accused two although against him should
be weighed the heavy influence and pressure he must have exerted upon accused
one in seeking revenge.
Murder by its
very nature is bound to create a permanent stigma on the part of both accused
persons. The two will always be remembered as the people who cut short the
deceased's youthful life.
In aggravation
we are concerned as courts that wherever cases of murder occur, there is no
amount of punishment that can be meted out to adequately recompense the
deceased's death. Once murdered one cannot be replaced. It is that sacred nature
of human life that we are obliged to always emphasise. Human life must be
respected because it is irreplaceable.
It is aggravating
that the two accused ganged up against the deceased, their bother, to punish
him for exercising his natural and brotherly authority over the accused two.
The deceased lost his life for doing nothing really except to encourage accused
two to follow the right path in life.
As courts we
have always insisted that conflicts in our society must be resolved in
civilised fashion and there should be no place for barbaric behaviour as
exhibited by the two accused persons.
Accused two's
blameworthiness in our view despite his age is high in that he set in motion
the events leading to the demise of the deceased.
The two decided
to gang up and take the law into their hands by meting out revenge. Punishment
must be left to be meted out by those who are trained to do so. The accused are
not such persons. They ought to have resolved the issue through the intervention
of their family elders at a time they would have sobered up and not what they
did.
We are satisfied
there is no need to differentiate the sentence in this regard.
In
the result it is ordered that:
Each
accused be sentenced to ten years imprisonment of which two years is suspended
for five years on condition the accused does not within that time commit any
offence involving violence upon the person of another and for which he shall be
sentenced to a term of imprisonment, without the option of a fine.
Muzenda
& Partners, 1st accused's legal practitioners
Mutendi
& Shumba, 2nd accused's legal practitioners
Attorney General's Office, State legal practitioners
