BERE J: The facts which are not in dispute in this
case are that on 29 February 2008 the deceased was a passenger in a Matongo Bus
which was travelling from Rusape to Mutare via Sherukuru area in Manicaland.
The accused was the driver of the bus. Upon arrival at Gonde Muchakata bus stop
in the Sherukuru area, the deceased and other passengers disembarked from the
bus. Immediately after alighting from the bus the deceased picked up a quarrel
with the conductor and the assistant conductor over the deceased's alleged
non-payment of luggage fare. The conductors resolved to take the deceased's
luggage along with them pending payment of the disputed fare.
The
deceased protested against the decision taken by the two conductors by going in
front of the bus in a bid to stop the driver from driving away with his luggage.
For close to 30 metres the deceased walked in front of the moving bus but his protestations
did not sufficiently persuade the driver to stop the bus.
In
desperation the deceased jumped onto the bumper or cow catcher of the bus and
continued with his plea to stop the bus. The deceased fell from the moving bus
and was run over by the bus. The result was a fatal accident. The deceased died
on the spot.
The
post-mortem report (exhibit 4) which was produced by the consent of both
counsels described death as having been caused by tyre tread marks across the
lower chest and upper abdomen which left multiple blisters and fractured bones
on the lower rib cage of the deceased's body.
The
State has preferred a charge of murder with actual intent against the accused
person. Exhibits 1 to 4 were accepted by the court by way of consent. In
addition the State relied on the viva-voce evidence of three witnesses; Gordon
Mwando, Leonard Osweld Marutawana and the attending detail Ass. Inspector Lloyd
Paradza while the defence relied on the sole evidence of the accused.
During
the brief addresses to the court both counsels accepted that the totality of
the evidence tendered could not support a conviction of murder with actual intent
but that if anything the evidence pointed to the possibility of a verdict of
murder with constructive intent. Counsel for the accused was at one stage
tempted to persuade the court to consider returning a verdict of guilty to
culpable homicide but on reflection he abandoned that line of argument and
conceded the proper verdict was murder with constructive intent.
We
comment both counsels for having properly read the evidence in this case.
We
derive our guidance mainly from the evidence of the State witnesses in
particular Gordon Mwando who in our view gave a fairly elaborate and revealing
testimony of what happened on the day in question. Throughout the evidence of
the first two State witnesses we remained cognisant of the need to exercise
extreme caution given the fact that these witnesses came from the same village
with the deceased hence the possibility of relying on deceptive evidence could
not be ruled out.
Gordon
Mwando gave a fairly detailed account of what transpired from the time the
deceased disembarked from the bus, picked up a quarrel with the two conductors
over alleged non-payment of deceased's luggage fare right up to the time the
deceased tragically lost his life. The version given by Gordon Mwando was
materially corroborated by the evidence of Leonard Osweld Marutawana and to a
certain extent by the evidence of the attending detail.
Our
unanimous view is that it is extremely difficult to find fault in that
testimony it was evidence well given and so given in an objective and unbiased
manner despite the fact that the first two witnesses came from the same village
with the deceased. Theirs was a fair summary of what transpired.
Accused's
counsel took issue with both witnesses as to when exactly the deceased rushed
to the front of the bus. The thrust of that part of his cross-examination was
to try and demonstrate that the accused could not have seen the deceased in
front of the bus because the deceased must have moved to the front of the bus
after one of the conductors had signalled him to take off and the accused therefore concentrated more on
checking his right hand side as he manoeuvred the bus from a parking position
into the main road.
The
second issue which counsel for the accused emphasized was that the deceased
must have jumped onto the bumper of the
bus at a time the bus had gathered speed as opposed to the bus gathering speed
following the deceased's hanging onto the bumper.
To
us these are not the decisive issues in this case. If anything, these are
peripheral issues to the issue before the court.
What
the court deems to be important is that for close to 30 metres the deceased was
seen by the first two State witnesses (and therefore must have been seen by the
accused) protesting in front of the moving bus which was being driven by the
accused person. Not only that but the deceased was further seen by the
witnesses jumping and holding onto the bumper of the moving bus and hitting the
windscreen of the bus directly in front of the accused and that the bus
continued to move and picked up speed for a distance of about 40 metres as a
result of acceleration by the accused before it eventually stopped, but only
after running over the deceased who had fallen off the bus.
Both
State witnesses were inside the bus and in a vantage position. Both witnesses
were behind the driver's (accused's) compartment and if they vividly witnessed
the day's ordeal the accused must not be believed when he purports not to have
seen what the witnesses saw.
We
have not allowed ourselves to be held hostage by the irrational denials of the
accused whose evidence was far from convincing. The accused was determined to
deny everything that was put to him by the State counsel including even conceding
that he was aware of the altercation between the conductors and the deceased
over the issue of the deceased's unpaid fare for his luggage. The accused was
also determined to deny that he did not attempt to stop the bus before the
fatal accident despite having clearly stated in his evidence in chief that
“Before I could break he had fallen down, he banged or hit the windscreen twice
and he then fell off” (p 37 of my long
hand notes)
Not
only that but in cross-examination accused was determined to make an abortive
attempt to disown indications which he made to the attending detail.
Such
antics as exhibited by the accused are consistent with a stout effort to
mislead the court.
Gordon
Mwando whose credibility we have found to be beyond reproach testified that in
his own assessment the conduct of the accused, (deriving mainly from the raves
of the bus) appeared to have aimed at scaring away the deceased with his bus.
We accept this position that in initially raving the bus slowly but
subsequently increasing the raves, the driver wanted to scare the deceased
away.
But
we will also accept that by literally pursuing the deceased with a bus and
continuing to drive the bus for such a distance and increasing speed at a time
the deceased was hanging by the bumper of the bus the accused must have
subjectively appreciated that a fatal accident would occur and the accused's
continuing with such reckless conduct led to the inevitable death of the
deceased.
Adopting a wholistic view of the
evidence that has been tabled before us we accept as a finding of this court
that when the deceased realised the futility of his pleas with the conductor
and his assistant not to take his luggage away with them, the deceased went to
the front of the bus and protested or pleaded with the accused and his crew
members not to drive away with his luggage.
We
also accept it as a finding of this court that the accused with his eyes wide
open and in full view of the deceased drove his bus behind the deceased for
about 30 metres from his point of take off. His motive was to scare off the
deceased.
We
also accept it as having been proved beyond a reasonable doubt that in a
desperate attempt to stop the bus, the deceased jumped onto the bumper of the
bus and continuously hit the windscreen on the driver's side in an attempt to
stop the bus and that at that stage but still in an effort to either shove off
or scare off the deceased the accused increased the speed of the bus as he
drove it for a distance of about 40 metres before the deceased succumbed,
dropped off the bus and was fatally injured by the right front wheel of the
bus. The accused was only able to stop after running over the deceased who died
on the spot.
It
is our perception or appreciation of the evidence placed before us that it
points to a verdict of murder with constructive intent. We comment the position
adopted by the State counsel and endorsed by the defence counsel that we return
a verdict of guilty to murder with constructive intent.
Verdict
– guilty of murder with constructive intent.
P.G. Takaidza, Counsel for accused
The
Attorney General's Office,
for the State
