The appellant was twenty-seven (27) years old at the time
of commission of the alleged offence, while the deceased was aged forty-four (44)
years old at the time he met his demise. In the early morning of 2 January 2002,
the deceased's son, one Adam Gasura, aged ten (10) years old, was herding
cattle when a cow ran through the appellant's crop field to go to a nearby pool
to drink water. Adam said his cow did not graze the appellant's crops but the
appellant alleged that it did graze his cotton and groundnut crop. However, the evidence of the Investigating Officer,
Victor Ngoni, who visited the appellant's field with the appellant's brother,
Boyson Machena, Constable Kuzipha, and the kraal head, Mutemarungo, was that he
observed cotton plants about 6-7cm in height and no crops were grazed at all.
All that was seen was the spoor of one beast near a pool of water. His evidence
on this issue was clearly credible. He had no motive to lie against the
appellant whose injuries on the neck and finger, which he said were caused by
the deceased, he did corroborate.
Following the straying of the cow, the appellant approached
Adam holding a catapult and Adam ran home leaving the herd. The appellant drove
the herd of cattle to the deceased's homestead where he told Adam's elder
brother, Paul, about the cattle incident and stated that he would come back
later and discuss the matter with the deceased. Paul then followed the deceased
to the field and appraised him about the matter.
At about 1830 hours on the same day, the deceased returned
home alone and shortly thereafter the appellant arrived at the homestead. The
appellant said he met the deceased at the shops and they went to the deceased's
homestead together. It is not known why the appellant denied that the two of
them arrived at the homestead separately. Whether they arrived together or not
is of no moment but from the evidence of Lucia Gasura, Adam Gasura, and Erica
Bvutiwe, which we accept, coupled with the appellant's earlier promise to
return later to see the deceased in connection with the issue, it is not
difficult to find that the deceased arrived alone first.
It is common cause that the appellant was offered something
to sit on and greetings were exchanged between the two. It does not matter
whether the appellant was offered a stool or wheelbarrow to sit on. What transpired during the discourse that
ensued is hotly contested.
Adam said the appellant stood up during the discourse,
which he did not catch, and punched the deceased and the two grappled and both
fell down, following which the deceased got up saying he had been stabbed.
Lucia Gasura said the appellant accused the deceased of turning his fields into
a grazing area which the deceased disputed, laying blame on the children. The
appellant then said something to this effect:
“What I want to tell you is that either you move from this
area or I will have to move away because of your cattle.” Whereupon the
deceased said:
“Uncle, are you here to discuss the issue of cattle having
destroyed your crops or you are here for a fight?” The appellant then said:
“I can do whatever I want to do to you;” and he stood up
and the deceased followed suit and exchanged some words. Then the appellant said:
“I will kill you;” and he punched the deceased.
The two then grappled and fell down, with the deceased on
top. The deceased's wife went to the two, telling them to stop fighting. The
deceased got up and the appellant got up also and ran away. The deceased moved
towards the fowl run saying he had been stabbed. She held the deceased asking
him where he had been stabbed and the two of them fell down and the deceased
died on the spot.
The appellant's version, which can be gleaned from his
evidence-in-chief, which falls on all fours with his confirmed warned and
cautioned statement…, is that whilst the two were discussing the issue of stray
cattle the deceased insisted that he was not going to herd his cattle because
the appellant settled on the grazing area and that he could even kill him for
coming to his homestead. The appellant said he had not come there to fight. He
got up and bade the deceased's mother farewell, whereupon the deceased picked
up a stick and threw it at him but he dodged. The deceased grabbed him, bit him
on the cheek and tripped him. He fell to the ground and the deceased sat on his
stomach. He tried to hold the deceased by the throat but the deceased bit his
middle finger and also struck him on the upper lip and throttled him. Whilst lying there the deceased's Okapi knife
fell out of his shirt pocket, landing on his chest. He took it, opened it using
his left hand and body and poked it at the deceased's chest thereby stabbing
him as indicated on the post mortem report. The deceased stood up and he also
got up and ran away, leaving the knife at the scene so that its owners would
see it.
The evidence and probabilities do not support the
appellant's version that the deceased was the aggressor.
Although it was dusk and visibility no longer very clear,
the State witnesses who were present at the scene were adamant that the
appellant was the aggressor by punching the deceased first. This evidence,
despite coming from the deceased's sister, son and wife, is corroborated by the
following:
According to the appellant, when being cross examined, the
deceased was not angry when they met on the evening in question. He could not
say what then angered him subsequently. The appellant was aggrieved and angry
earlier in the day when he drove the deceased's cattle to the latter's
homestead and left word with Paul Gasura to inform the deceased about the issue
and that he would be back in the evening. He indeed returned as promised.
Whatever the nature of the verbal exchange that ensued between the two the appellant
struck first.
The appellant lied when he said it was the deceased who
first threw the metre long stick at him. Firstly, it is improbable that the
deceased would throw a meter long stick at the appellant who was two metres
away from him. The logical thing would be to strike whilst holding the stick.
Things which are inconsistent with human knowledge and experience are properly
rated improbable. To further lay bare, the appellant's mendacity on the same
aspect is the contradiction between what he said in his evidence-in-chief and
under cross-examination. In his evidence-in-chief on the aspect, the appellant
said the stick was hurled at him when he was standing after bidding farewell
and was leaving. However, under cross-examination, he proffered two versions, viz
the stick was thrown at him from two meters away while he was seated but he
dodged it and then stood up and the stick fell in front of him. Again, it is
not scientifically possible that a stick thrown at one seated from two metres
away and is dodged will fall onto the ground in front of the intended target.
The other version was that, when the stick was thrown at him from two meters
away, he was not facing the deceased but he sat down as the deceased was
throwing it. This presupposes that he was on his feet when it was thrown and it
also defies belief how the appellant managed to see and dodge the stick by
sitting down when he was not facing the thrower.
In view of the foregoing, the court is satisfied that the
appellant was the aggressor.
Lucia Gasura said the appellant did utter the threat to
kill the deceased before attacking him, while the appellant alleged that it was
the deceased who uttered the threat to kill.
The evidence and the probabilities favour the finding that
it must have been the appellant who threatened to kill the deceased.
Regarding ownership of the Okapi knife (the murder weapon),
the trial court's finding that it belonged to the appellant cannot be faulted.
The appellant was the aggrieved party who had promised to
return and confront the deceased regarding the cattle issue. The State
witnesses who stayed with the deceased did not know him to own an Okapi knife.
The appellant's story of how he says the knife ended up in his hand rings
hollow. If the knife belonged to the deceased, the appellant would have left it
at the scene. Contrary to his assertion that he left it at the scene he ran
away with it because it was his. Had he left it at the scene it would have been
found. It is fanciful to speculate that the deceased's kith and kin hid it in
order to conceal the fact that it was the deceased's. It was not engraved that
it belonged to the deceased.
Did the appellant harbour actual intent to kill the
deceased as found by the trial court?
This Court is persuaded, on the evidence advanced, that
this finding is not the correct one.
Counsel for the appellant submitted that the appropriate
verdict, on the evidence led, should have been either murder with constructive
intent or culpable homicide, while counsel
for the respondent, conceded, properly so in the Court's considered view,
that the evidence does not sustain a verdict of murder with actual intent but
murder with constructive intent and not culpable homicide.
The Court finds that the appellant lied when he said that
he used his left hand to stab the deceased.
Again, it is not consistent with human knowledge and experience that a
person lying on his back would stab the left side of his victim's chest who was
lying on his stomach using his left hand. Logic and common sense dictate, as
the court a quo rightly found, that the appellant used his right hand (and he
himself said he was not left-handed) to achieve the stab wound on the
deceased's right side of the chest as observed by the pathologist in the post
mortem report. There was no medical evidence that was led to establish the
degree of force used to inflict the injuries observed. Only one stab was
effected. The stab was not aimed at a specific part of the anatomy, as this was
during a scuffle in which the deceased was having the better of the appellant.
Indeed, there is evidence of a human bite on the appellant's middle finger as
well as bruising of the appellant's neck, occasioned by throttling, which
injuries were confirmed by the Investigating Officer. The appellant desisted
from the attack as soon as the deceased got off him and ran away. Had the
appellant actually intended to kill the deceased he would have continued
stabbing the deceased instead of conducting himself in the manner he did.
However, looking at the part of the body the single stab
landed, it is undoubted that the chest is a vulnerable part of the human body
and it houses vital organs. The cause of death is stated in the post mortem
report as haemothorax due to penetrating stab wound through the third coastal
cartilage. The doctor noted a 3.5cm laceration on the left side of the sternum,
broken third coastal cartilage and laceration through the second and third
intercostal space with lungs exposed and deeper laceration through upper lobe
of left lung with haemothorax. In order to achieve injuries of such a nature,
the appellant, no doubt, must have employed considerable force. This, coupled
with the nature of the weapon used and the part of the anatomy the Okapi knife
stabbed, leads to an inescapable inference that when the appellant stabbed the
deceased in the manner he did he must have foreseen the real possibility of
causing the deceased's death and was reckless as to whether or not such an
eventuality ensued.
The Court therefore concludes that that the appellant had
constructive intent to kill and not actual intent….,.
In the result, the appeal against both conviction and
sentence succeeds to the following extent:
1. The verdict of the court a quo of guilty of murder with
actual intent is altered to read -
“The accused is found guilty of murder with
constructive intent.”
