BERE J: On 1 November 2010 the accused and the deceased
were drinking traditional beer at one Jestina Mutasa's homestead at Munhungeyi
Village, Chief Nhema, Zaka. The two had
a misunderstanding which led the accused to fatally stab the deceased on the
right side of the chest with an okhapi knife.
The
post-mortem external examination conducted on the deceased revealed that the
deceased had sustained a single penetration stab wound on the right side of the
chest above the nipple. It also recorded that the doctor had noted substantial
bleeding as a result of the stab wound.
The cause of death was given as haemorrhagic shock due to the stab
injury.
From these facts
the state alleged that the accused intentionally caused the death of the
deceased and moved the court to return a verdict of murder with constructive
intention.
The defence argued very strongly
against the verdict of murder with actual intent and
instead advocated for murder with
constructive intent.
The
state evidence started with the production of the following exhibits with the
consent of the defence; accused's warned
and confirmed statement, the post mortem report and the okhapi knife whose
dimensions were given as 24cm in length with the length of the blade being 10cm
and with the width of the blade at its widest part being 2,5cm. its weight was given as 70 grams.
This
was followed by the production of the evidence by way of admissions in respect
of the recorded evidence of Zivanai Denhere, Sergent Freeman Chinyerere,
Constable Mgcini Tshuma and Doctor Zimbwa.
Amos
Kwangware, Moses Mashiri and the accused Collen Makura gave viva voce evidence
in court and their evidence was tested under cross-examination.
There
was no agreement amongst the 3 witnesses as regards the exact cause of the
misunderstanding between the deceased and the accused. The three witnesses gave varying explanations
as the possible cause of the fatal assault.
The
court does not consider the reason for the assault in this matter to be the
central issue. The decisive and critical
issue is how the deceased sustained the fatal injury.
The
two state witnesses were in agreement that the accused violently stabbed the
deceased on the right side of the chest and that the attack was so severe that
the deceased could only stagger and that from the moment he was stabbed the
deceased was unable to utter a word. The
deceased died shortly at the same sport before any meaningful assistance could
be rendered to him.
Whilst
Moses Mashiri suggested that the accused delivered two blows, we are unable to
accept this part of his evidence as it is in consistent with exhibit II, the
post-mortem report. We are more inclined
to accept the version of the first witness Amos Kwangware as it accords well
with exhibit II and the accused's warned and cautioned statement exhibit I.
Other
than the minor discrepancies in their testimony we are satisfied that the
deceased sustained injuries in the manner described by the two witnesses. The two explanations accords well with
exhibit 1 which was recorded at Zimbabwe Republic Police Zaka on 23 November
2010, barely two days after the tragic event.
There
was another dimension to Amos Kwangware's testimony when it was suggested to
him that the okhapi knife that claimed deceased's life actually belonged to the
deceased. The witness denied this
suggestion. He indicated that the knife
actually belonged to the accused person.
In justifying his position he explained that on the morning of 28
November 2010 prior to the murder they had as a village gathered for a
meeting. It was his very clear and
unsolicited explanation that at that meeting the accused had much to the
surprise and disbelief of those who heard him exhibited the same knife and
vowed to use it to kill someone that same day.
It was because of this that he was categoric that the knife belonged to
the accused as opposed to the deceased as suggested by the accused person
through cross-examination and his evidence in chief.
We
have examined the evidence of the two state witnesses and we are satisfied that
despite all the criticism raised by the defence and the prosecution against
some aspects of that testimony, the two substantially told the truth. We find no reason to disbelieve their evidence. We accept their evidence as true and accurate
on the manner the deceased met his fate.
We
are unable to accept the evidence told by the accused as true. His explanations were glib and unsatisfactory
in many respects.
We
were not impressed and of course completely taken aback by his contradictory
explanation as to the origins of the murder weapon. In his defence outline he stated;
"When accused blocked one of the blows
a knife fell from deceased's pocket and landed on the ground" Compare this with
his evidence in chief when he suggested the exhibit fell from the deceased's
pocket as a result of the heavy blow he delivered on the deceased's chest. Strange
and contradictory explanations!
Even
if one were to temporarily accept the story told by the accused, one would still
find it extremely unbelievable that the deceased would have been keeping the
opened okhapi in his front pocket before it dropped from his chest pocket in
the dramatic manner suggested by the accused person.
In
any event, the accused completely discredited himself by producing a defence
outline which was a complete departure from his confirmed warned and cautioned
statement. To compound his situation the
accused attempted to disown his warned and cautioned statement by alleging (I
suppose much to the surprise of everyone, his counsel included) that he was
literally forced into making the warned and cautioned statement. The accused portrayed himself in bad light
and wherever his evidence was in conflict with the evidence of the state
witnesses it was our well considered view that, we reject his explanations.
She
accused made an attempt to raise the defence of self-defence and his counsel
correctly read the evidence and conceded such a defence was unsustainable.
From
the respective positions of the State and the defence there is no denying that
the accused was responsible for the unlawful killing of the deceased.
The
State counsel argued in favour of a verdict of murder with actual intention as
the primary consideration while the defence passionately argued for murder with
constructive intent. Counsel referred
the court to the case of Josphat Mlambo
v The State SC 175/92. Counsel's persuasion stemmed from the fact
that according to his reading of evidence when the offence occurred the accused
was drunk to the extent that he could not have formulated an intention to
kill. He was persuaded by the 11 litres
of traditional beer which the accused alleged to have partaken on the day in
question.
On
the contrary, the State argued that the accused had already made the intention
to kill before he had even started drinking beer and that the conduct of the
accused person after the commission of the murder demonstrates that he was in
full control of his faculties.
In
the court's view, having accepted the evidence of Amos, it is clear that long
before the stabbing the accused had already formulated the intention to kill
before he went to partake beer at Jestina Mutasa's homestead.
The
actions of the accused person before he stabbed the deceased as explained by
Amos and Moses were well timed and calculated to kill hence his remark "I have
stabbed" after the act itself. This
showed the accused's celebration of an accomplished objective. His was certainly not an impulsive behaviour.
The
accused's behaviour after the stabbing of running away from the murder scene
and desiring to go to the police coupled with his narration of the events of
the day here in court demonstrates clearly that he knew what he was doing.
Besides,
both Moses and Amos were in agreement that although the accused had partaken of
beer he was not all that drunk to the extent that he
could be said not to know what he was doing.
Cumulatively,
we are satisfied that all these factors distinguish this case from Josephat Mlambo's
case and the ratio pronounced therein would be in appropriate in this matter.
The
accused, having formulated the intention to kill before partaking of beer,
subsequently drank beer to gather some courage and to nourish this timing, used
a lethal weapon to violently stab the deceased on the deceased's delicate and
vital organ, the chest with devastating consequences.
In
such situation we are more than satisfied that the accused intended to cause
death, and death he achieved. There can
only be one verdict - murder with actual intent.
Verdict - guilty of murder with
actual intention.
SENTENCE
In assessing
sentence in this case we accept that the accused person has fairly heavy family
responsibilities as outlined by his counsel.
He has a young family which naturally looks up to him for its
welfare.
The accused
person has been in custody awaiting trial for months and we are satisfied this
period should be taken into account in computing the appropriate sentence.
It is
commendable that at family level there has been some effort initiated to
appease the sprit of the deceased by paying 18 head of cattle to the deceased's
family.
We accept that
on the fateful day the accused was reckless in using an okhapi knife against
the deceased who had not even posedany threat to him. This was in our view an unprovoked attack
despite what the accused alleges as some long outstanding misunderstanding on
the day in question.
We find it as
negating remorse the abortive attempt by the accused person to disown the
murder weapon and suggesting that it belonged to the deceased. We think it is a heartless approach by an
accused to continue to try and lie against a deceased person whose demise he did. He did this merely because of the absence of
the deceased to defend himself.
Whilst it is true
that the accused looks forward to some day when he will be reunited with his
family, the deceased's dependants cannot look forward to that because of the
accused's evil hand of cutting short the deceased's life.
The use of the
okhapi knife was certainly disproportionate to the anger to which the accused
may have been subjected to by the conduct of the deceased. The deceased was violently attacked at a time
when from the look of it he least expected such an attack.
The bragging by
the accused after the attack on the deceased only helps to aggravate this case
and this case specifically screams for an exemplary penalty.
The message must
go loud and clear that these courts as custodians of societal rights will not
tolerate the conduct of those who toy around with human life as we hold it
sacred.
Sentence: 18 years
imprisonment.
L. Masuku,
legal practitioner for the plaintiff
C. Ndlovu, legal practitioner
for the defendant
