The
accused is
facing a charge of murder as defined in section 47(1) of the Criminal
Law (Codification and Reform) Act [Chapter
9:23].
The
charge is that on the 10th
of January 2014, at Number 20583 Nzungu Street, Rujeko 'C',
Masvingo the accused unlawfully stabbed Antony Manzonza with a knife
once on the upper right thigh intending to kill him or realising that
there was a real risk or possibility that his conduct might cause
death and continued to engaged in that conduct despite the risk or
possibility.
At
the material time, the then 19-year-old accused was residing with the
36-year-old now deceased who was his uncle (young brother to
accused's father) at No.20583 Nzungu Street in Rujeko 'C',
Masvingo together with the accused's sibling, Innocent Manzonza,
then aged 17 years, the accused's cousin, Piniel Manzonza, then
aged 18 years, and their aunt (sister to their father), Esnath
Manzonza, who was the eldest.
The
house in question belonged to the accused's parents. The accused's
father is said to have been in Beit Bridge prison at the material
time and the accused's mother was at the family shop in Zvishavane.
The deceased was employed by the accused's parents as a commuter
omnibus driver plying the Masvingo to Gweru route. The deceased had a
wife and child who were not staying at this house.
The
facts which are common cause in this matter are as follows;
On
10 January 2014, the accused arrived home and found his young
brother, Innocent Manzonza (Innocent), alone at home watching
television at about 20:00hrs. The accused asked Innocent to accompany
him to ZAOGA church which they attended but Innocent refused. The
State alleges that this was because the accused was drunk but
Innocent said he refused because he had spent the whole day at
church. This did not go down well with the accused who believed
Innocent was prioritizing watching television. The accused proceeded
to disconnect the DVD player and took the AV cables and left the
house.
The
deceased later arrived from work and asked Innocent to accompany him
to go and park the commuter omnibus at a local car park and Innocent
agreed. When the accused arrived home thereafter he realised Innocent
had agreed to accompany the deceased. The accused did not take kindly
to this.
Meanwhile,
Innocent had advised the deceased about his altercation with the
accused earlier on and that the accused had removed AV cables and
took them away. The deceased then ordered the accused to connect the
AV cables but the accused refused, and, instead, started to demand
money, US$15=, owed to the accused by the deceased for a jean
trousers the accused had sold to the deceased in 2013. A
misunderstanding arose and the deceased took a broom stick or feather
duster stick inside the house and assaulted the accused who sustained
swellings and bruises and the broomstick got broken. The accused fled
the house and picked stones which he threw at the deceased who ran
into the house and closed the door. A neighbour, Gloria Mugweni
(Gloria), intervened and counselled the accused who calmed down and
after about an hour accompanied the accused to the house where Esnath
Manzonza (Esnath) opened the door for the accused and Gloria returned
to her house as the accused entered the house.
The
accused, while in the house, took a knife from the kitchen. The
reason for taking the knife is in issue. The State alleges that he
wanted to use the knife to threaten to kill the deceased; but, the
accused says he wanted to use it to fix the AV cables which he had
connected but were no longer working.
It
is not in dispute that a misunderstanding arose, again, between the
accused and the deceased. The cause of this dispute is in issue. The
State alleges that it was caused by the accused who blocked the
deceased's way as the deceased wanted to go and bath threatening to
kill the deceased. The accused, on the other hand, said it was
because of the deceased who insulted the accused saying he was not
going to give the accused the money for the jean trousers and that
the deceased went on to spite the accused by taking the jean trousers
and throw it at the accused. The accused said he could not take the
jean trousers as it was now worn out, and, instead, demanded that the
deceased should pay for the jean trousers which irritated the
deceased.
The
deceased proceeded to pick a log outside the house intending to
assault the accused. The accused fled into the bedroom with the
deceased in pursuit. The accused failed to escape from the bedroom
and was held by the deceased as the two struggled. During that brawl,
the accused stabbed the deceased on the right thigh, once, after
which the deceased released the accused who fled. The deceased bled
profusely, collapsed, and was, moments later, pronounced dead on
arrival at Masvingo General Hospital.
The
issues raised by the accused, in his Defence Outline, are mostly not
in dispute. We shall therefore only highlight those aspects which are
in dispute.
The
accused said what initially angered the deceased was the accused's
response that the deceased was also a bully as the deceased was
refusing to pay for the jean trousers sold to the
deceased. The accused said this prompted the deceased to arm himself
with a
broom-stick and assaulted the accused several times causing the
accused to flee from the house.
The
accused's story is that upon returning to the house it is the
deceased who re-ignited the misunderstanding by boasting that he
would not pay the accused for the jean trousers alleging that the
accused was ill-disciplined and proceeded to impolitely throw the
jean trousers at the accused; which jean trousers were now worn out.
The accused said he then insisted that the deceased could not proceed
to go and bath without resolving the issue of payment for the jean
trousers. The accused said as he was working on the AV cables it is
the deceased who went out to fetch a log in order to assault the
accused. The accused's version is that he fled into the bedroom
where he was cornered by the deceased who attempted to hit him with
the log on the head. The accused said he ducked and the log hit the
wall and fell out of the deceased's hands. The accused tried to
escape through the window but he said the deceased held him from
behind and then pinned the accused judo-style with the deceased's
left hand around the accused's midriff while the inner side of the
deceased's elbow was tightly locked around the accused's neck.
The accused said both Gloria Mugweni (Gloria) and Piniel Manzonza
(Piniel), who were at the scene, did not assist him or intervene. The
accused said he was still holding the knife in one hand and the
cables in the other. He said he refused to drop the knife when Gloria
requested him to do so because the accused had first assaulted him
with the broom stick, later tried to use the log, and was now
throttling him. Further, the accused said the deceased ignored
Gloria's plea for the deceased to let go the accused but instead
tightened his grip, squeezing even harder as the accused stretched
his leg trying to free himself. The accused said when the bed on
which they were standing slid to one side they both fell down facing
upwards with the deceased below the accused but keeping his vice like
grip around the accused's neck using his fingers which caused the
accused to run out of breadth. The accused said in order to avoid
being strangled to death he proceeded to thrust the knife into the
deceased's thigh in order to inflict sufficient pain thereby
compelling the deceased to let go of the accused's throat.
In
essence, the accused said he acted in self-defence when he stabbed
the deceased with the knife.
In
support of it's case, the State produced, by consent, three
exhibits which are as follows;
(i)
Exhibit 1: is the accused's confirmed warned and cautioned
statement in which the accused indicated that he acted in self
defence. It may be prudent for us to quote what the accused said;
“I
admit the charge levelled against me. I stabbed Antony Manzonza with
a kitchen knife on the right thigh and he died. I did this because I
wanted to free myself as he was tightly holding me.”
(ii)
Exhibit
2: is the post mortem report whose findings are not in issue. The
deceased had a laceration from the right femoral triangle which was
about 15cm long. The findings by the doctor is that the deceased died
due to haemorrhage caused by perforated right femoral artery
inflicted by the stab wound.
(iii)
Exhibit 3: is the knife used by the accused to stab the deceased. It
is a kitchen knife 33cm long with a 21cm blade which is very sharp at
the end. The black handle is 12cm long and it weighs 0.010kg.
The
testimony of both Nyasha Mkonzo, the Investigating Officer, and Dr
Samson Pomo, who examined the now deceased and compiled the
post-mortem report.., was admitted by consent in terms of section 314
of the (Criminal Procedure and Evidence) Act [Chapter
9:07].
In
brief, Nyasha Mkonzo attended the scene of the
crime where he recovered the kitchen knife…, and proceeded to
record the accused's confirmed warned and cautioned statement…,.
As already said, Dr Samson Pomo examined the deceased's body and
compiled…, the postmortem report.
In
order to resolve the narrow issue in dispute on whether the accused
acted in self-defence we now turn to the viva
voce
evidence led from the State witnesses; Innocent Manzonza (Innocent);
Piniel Manzonza (Piniel), Esnath Manzonza (Esnath) and Gloria Mugweni
(Gloria). We shall also look at the accused's evidence. Thereafter,
we shall outline the law in respect of the defence of self defence
and apply it to the facts of this case as per the evidence before us
in order to arrive at an appropriate verdict.
THE
EVIDENCE
We
have already alluded to the facts which are common cause, and, in
dealing with the evidence of each witness, no useful purpose would be
served by repeating those facts.
Innocent
Manzonza said
the reason why he refused to accompany the accused to church was not
that the accused was drunk but that Innocent had spent the whole day
at church. Innocent said when the accused tried to assault him he
fled out of the house and the accused proceed to remove AV cables of
the DVD and TV. In retaliation, Innocent said he also removed some
cables. It was his evidence that when he accompanied the now deceased
to the car park he reported to the now deceased his altercation with
the accused and that upon their return from the car park Esnath
Manzonza and
Piniel
Manzonza were
at home and the accused was still away with the AV cables.
Innocent
said upon the accused's return, the accused was ordered, by the
deceased, to return
the AV cables but the accused refused retorting that the deceased
owed the accused money for the jean trousers sold to the deceased by
the accused. According to Innocent, this is what angered the deceased
who then took a broom stick and assaulted the accused all over the
body indiscrimately forcing the accused to flee out of the house and
throwing stones at the deceased from outside. This prompted
the deceased to lock the door.
Innocent
said when Gloria Mugweni later brought the accused home Innocent was
preparing to retire to bed as they could not watch the TV. The
accused had not reconnected the AV cables. Innocent said the deceased
then left the bedroom intending to go and bath and he heard some
exchange of words between the accused and the deceased in the lounge
but was not able to tell the subject of discussion. All what Innocent
said is that the deceased came to the bedroom and took a jean
trousers which the accused had sold to the deceased and returned to
where the accused was. He said the exchange of words continued
between the accused and the deceased. He later on heard a thudding
sound of a log in the kitchen and the accused immediately came
running into the bedroom with the deceased in pursuit. Innocent said
the accused was holding the knife…, in one hand and AV cables in
the other hand and that the deceased was wielding a log some 1 to 2m
long and about 12cm in diameter.
Innocent
went on to explain what happened inside the bedroom.
He
said upon entering the bedroom, the accused pulled the curtains at
the window trying to escape through the window. He said the accused
picked a small table in order to smash the window panes but failed to
do so as the deceased had arrived and tried to hit the accused with
the log. He said the accused ducked the blow jumping onto the bed and
the log smashed into the wall causing the deceased to lose grip of
the log which fell down. At that point he said the deceased also
jumped onto the bed and held the accused by the waist and thereafter
put his hand around the
accused's neck and then used both hands round the accused's neck
as both were in a standing position facing the same direction with
the deceased behind the accused. Innocent said both the accused and
the deceased struggled in a very violent manner, and, due to fear
caused by the intensity of the struggle, Innocent ran out of the
bedroom. He later heard Gloria, who had rushed to the scene, shouting
asking the accused what he had done. Innocent said he immediately
returned into the house and found the deceased lying in the kitchen
bleeding profusely and was later ferried to hospital as Innocent went
to make a police report. He was advised, that night, that the
deceased had passed on at the hospital.
Prior
to this day, Innocent said the accused and the deceased enjoyed very
cordial relations.
Under
cross examination, Innocent denied that he ever heard the accused
threatening to stab or kill the deceased with a knife. Innocent's
view was that when the accused took the knife from the kitchen the
accused used it to try and fix the AV cables or cords and did not
threaten the deceased. In fact, he said he later on realized that the
accused had cut one of the cables with the knife before the accused
ran into the bedroom holding both the knife and the cables.
In
relation to how the accused and the deceased struggled, Innocent said
the way the now deceased held the accused was frightening as the grip
was very tight and the accused failed to free himself. Innocent
denied that the accused was drunk or smelling beer. Instead, he said
both the accused and the deceased were sober….,.
We
turn to Piniel Manzonza's (Piniel) evidence.
Piniel
confirmed that when the accused arrived home, the accused was
confronted by the deceased in relation to AV cables and that a
misunderstanding arose when the accused demanded money owed to him by
the deceased resulting in the accused being assaulted with a
broomstick and fleeing from the house. He described the assault with
the broom-stick as severe as the deceased used a lot of force and
that it was indiscriminate. He also stated that a neighbour, Gloria
Mugweni, brought
the accused back home.
Piniel
testified that back home the accused tried to put back AV cables
using the kitchen knife…, and that a misunderstanding developed
with the deceased when the deceased wanted to go and bath and the
accused demanded money owed to him. He said the deceased then took
the pair of jean trousers and threw it at the accused after which the
deceased got out of the house and came back holding a log. This
caused the accused to flee into the bedroom and the deceased chased
after him.
He
went on to describe what happened inside the bedroom.
According
to Piniel, the deceased tried to hit the accused with the log but the
accused ducked and the log fell down. He said the deceased then
grabbed the accused by the neck, tightly, as the accused tried to
free himself to no avail. At that point, he said the accused was
still holding the knife in one hand and the cables in the other hand.
He said after the accused failed to free himself from the deceased's
tight grip he stabbed the deceased once on the thigh forcing the
deceased to release the accused. The accused then dropped the knife,
got up, and fled from the bedroom. He said the deceased tried to
chase after the accused but he failed and fell down after which he
was ferried to hospital where he was later pronounced dead on
arrival.
Contrary
to what Innocent said, Piniel said the accused was moderately drunk
and was smelling of beer but the deceased was sober.
Under
cross examination, Piniel said the log the deceased picked and chased
after the accused was about 2m long and fairly thick. He
categorically denied that the accused took the kitchen knife from the
kitchen in order to threaten the deceased. Instead, he said the
accused never uttered any words threatening to kill the deceased,
but, instead, he said the accused took the knife in order to repair
the AV cables and proceeded to fix the cables as he quarrelled with
the deceased demanding payment of the money for the jean trousers. In
fact, Piniel said the accused had cut one of the AV cables with the
knife when he was chased after by the deceased and only handed over
the AV cables to Piniel later at the Police Station.
Piniel
was probed on how the accused stabbed the now deceased. He said the
deceased was older, of bigger stature, and stronger compared to the
accused. He said before the accused stabbed the now deceased, the
accused was being strangled by the deceased and had been overpowered
as the accused had failed to free himself from the deceased's grip.
He explained, in graphic terms, that the deceased was using both
hands to squeeze tightly around the accused's throat and that the
accused could have suffocated to death. To quote his own words Piniel
said in Shona; “pakange pakaipa”; which means the situation was
bad. He went further to say he too was afraid to intervene because of
the intensity of the grip and the struggle which went on for some
time before the deceased was stabbed. Piniel said, in his view, the
accused was left with no other option other than to use the knife to
force the deceased to let go the accused as the accused had totally
failed to free himself from the deceased's life-threatening
grip….,.
Gloria
Mugweni's (Gloria) testimony is material on how the accused stabbed
the now deceased as she witnessed the assault inside the bedroom.
Gloria,
an elderly woman, said she was alerted to the events of this day when
she saw the accused throwing stones outside the accused's house.
She intervened and stopped the accused. The accused then explained to
her that the deceased had assaulted him for demanding money owed to
the accused by the deceased. She said the accused showed her the
swellings and bruises the accused had sustained. Gloria said she
nonetheless calmed and counselled the accused for about an hour after
which the accused reacted positively and she took him back to his
house and she returned to her house.
Gloria
said after some time Esnath called her advising her that the accused
and the now deceased were quarrelling again. She rushed to the house
and found the accused and the deceased in the bedroom.
Gloria
testified that inside the bedroom both the accused and the deceased
were standing on the bed facing the same direction with the deceased
at the back of the accused. She said the accused had a knife in one
of his hands and the deceased was using both his arms to hold the
accused's both upper arms pressing them against the accused's
body. Gloria said the accused was trying to free himself, and,
fearful that the accused could use the knife she asked the accused to
give her the knife but the accused refused saying the deceased was
strangling him and that he had been assaulted before. She said she
then pleaded with the deceased to let the accused free but the
deceased refused saying the accused had a knife. Gloria said the two
continued to struggle, and, in the process, the bed they were
standing on moved and they both fell down facing upwards with the
accused on top of the deceased. She however said the deceased kept
his hold on the accused and the accused then stabbed the deceased on
the thigh with a lot of force resulting in the deceased releasing the
accused who then threw down the knife…, and fled. Gloria said the
deceased tried to chase after the accused but he collapsed in the
kitchen, vomited, and fell unconscious after which he was ferried to
hospital where he later died.
Under
cross examination, Gloria said the deceased was holding the accused
with a lot of force to such an extent that the accused was unable to
extricate himself from the deceased's grip. She said the accused
had no other means except to use the knife to force the deceased to
release him….,.
We
now turn to the accused's evidence.
We
find no cause to summarize the accused's evidence-in-chief as it
materially captures what the accused said in his Defence Outline. It
also confirms what the accused said in his confirmed warned and
cautioned statement…,. In brief, the accused explained the
following:
(a)
The accused's initial quarrel with Innocent and how he disconnected
the DVD and television by removing AV cables.
(b)
The accused's first misunderstanding with the deceased and how he
was first assaulted with the handle of the feather duster and fled
from the house until his return - after Gloria's intervention. The
accused indicated that he sustained bruises and swellings as a result
of the assault with the feather duster.
(c)
The accused's second quarrel with the deceased; which he blamed on
the deceased.
(d)
How the deceased tried to assault him with a log for the second time
as he was trying to fix the AV cable with the knife he had taken from
the kitchen and how he fled to the bedroom.
(e)
The accused explained how he failed to escape from the bedroom
through the window and how the deceased cornered him in the bedroom
and proceeded to strangle him in a near fatal manner.
(f)
The accused explained why he stabbed the now deceased acting in
self-defence using the knife he had fled holding in his hands
together with the AV cables after he had refused to let go the knife
when Gloria requested him to do so as it was the only weapon he could
use against the deceased.
The
accused pointed out that he was sober.
In
cross-examination, the accused was taken to task in relation to his
dispute with the deceased. In response, the accused said he had sold
a pair of jean trousers to the deceased for US$15= in 2013 and the
deceased had failed to pay that amount since 2013 giving many excuses
and promises. The accused insisted that he took the knife…, not to
threaten the deceased but to fix AV cables. The accused was
questioned as to why he kept holding the knife until he stabbed the
deceased. In response, he said the deceased was strangling him hence
he could not let go the only weapon he had to defend himself. The
accused admitted that he used a lot of force to stab the deceased in
order to cause the deceased to release him. The accused insisted that
before he stabbed the deceased he tried, in vain, to struggle to free
himself for about 5 minutes and was losing breath due to the
deceased's firm grip around his neck….,.
THE
LAW
In
terms of section 253(1) of the Criminal Law (Codification and Reform)
Act [Chapter 9:23] the defence of self-defence is a complete defence.
It provides as follows;
“253.
Requirements for defence of person to be complete defence
(1)
Subject to this Part, the fact that a person accused of a crime was
defending himself or herself or another person against an unlawful
attack when he or she did or omitted to do anything which is an
essential element of the crime shall be a complete defence to the
charge if
-
(a)
When he or she did or omitted to do the thing, he or she believed, on
reasonable grounds, that the unlawful attack had commenced or was
imminent; and
(b)
He or she believed, on reasonable grounds, that his or her conduct
was necessary to avert the unlawful attack and that he or she could
not otherwise escape from or avert the attack; and
(c)
The means he or she used to avert the unlawful attack were reasonable
in all the circumstances; and
(d)
Any harm or injury caused by his or her conduct -
(i)
Was caused to the attacker and not to any innocent third party; and
(ii)
Was not grossly disproportionate to that liable to be caused by the
unlawful attack.
(2)
In determining whether or not the requirements specified in
subsection (1) have been satisfied in any case, a court shall take
due account of the circumstances in which the accused found himself
or herself, including any knowledge or capability he or she may have
had and any stress or fear that may have been operating on his or her
mind.”
The
requirements in section 253(1)(a) to (d) of
the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the
Code)
are conjunctive and not disjunctive. In other words, for the defence
of self defence to succeed as a complete defence the accused should
satisfy all those requirements.
The
starting point to consider is obviously whether, as a fact, the
accused was under any unlawful attack.
An
unlawful attack is that conduct which put one's life into danger or
endangers one's bodily integrity or freedom. See section 252 of the
Criminal Law (Codification and Reform) Act [Chapter 9:23].
In
assessing whether the requirements in section 253(1) of the Criminal
Law (Codification and Reform) Act [Chapter 9:23] are met, the court
is enjoined to apply both the objective test and the subjective test.
In other words, the Court should consider what a reasonable person in
the accused's situation would have done taking into account the
specific circumstances of the accused person.
Our
law therefore accepts that it is permissible for one to harm or cause
death upon an unlawful attacker. The key issue is whether such harm
caused was reasonably necessary to fend off or ward off the unlawful
attack. In deciding what is reasonable in the circumstances of each
case, the Court, as already alluded to, should place itself in the
shoes of the accused person and not expect the accused person to
behave or act like a
movie star hero, a super human with papal infallibility, or an angel.
This point is well made by McNALLY JA in the case of S
v Banana
1994 (2) ZLR 271 (S)…, in which the learned Judge of Appeal said;
“But
also, HOLMES JA said in S
v Ntali
1975 (1) SA 429:
'the
Court adopts a robust approach, not seeking to measure with nice
intellectual callipers the precise bounds of legitimate
self-defence.'
See
also S v Nicolle 1991 (1) ZLR 211 (S) at 217 B–D, and the CHIEF
JUSTICE in S
v Mandizha
SC200-01 which dealt specifically with the question of whether
self-defence was excessive. It repeated the point, made earlier in S
v Phiri
SC190-82, that one cannot take an armchair view of the events. They
must be seen and judged in the light of the circumstances of the
occasion. Finally, I refer to S
v Moyo
SC45-84 where the then CHIEF JUSTICE, DUMBUTSHENA CJ, stressed the
fact that it was for the State to negative the plea of self-defence.”
In
applying the law to the facts of this case we find the following
facts and sequence of events not to be in issue;
(a)
It is the deceased who first assaulted the accused indiscriminately
with a broomstick or feather duster all over the body until the
handle broke and inflicted swellings and bruises on the accused's
body causing the accused to flee out of the house.
(b)
After a good Samaritan and neighbour, Gloria Mugweni, counselled and
calmed the accused it is the deceased who instigated the second
misunderstanding by insisting that he would not pay for the pair of
the jean trousers and proceeded to provokingly throw the pair of the
jean trousers at the accused - which pair of trousers the deceased
had worn since 2013.
(c)
Despite being aware that the accused was in possession of a knife,
whose purpose was not being rebutted by the State that the accused
was using it to repair AV cables, and being warned by Esnath Manzonza
that the accused had a knife, the deceased went on to take a log and
attempted to assault the accused, now for the second time, causing
the accused to again flee.
(d)
The deceased remained undeterred and blocked the accused's exit
from the house. In fact, he went on to chase the accused into the
bedroom where he cornered the accused, despite the accused's
valiant efforts to try and escape through the window, and, again,
tried to assault the accused with the log.
(e)
It is the deceased who thwarted the accused's escape bid by holding
him first on the waist and then around the neck using both hands to
throttle or strangle the accused.
(f)
The deceased rebuffed the pleas by Gloria to let go the accused
despite the fact that the deceased was aware that the accused was
still holding the knife and had refused to drop the knife as the
accused viewed it as the only weapon the accused had to defend
himself.
(g)
The deceased was unrelenting because even after they both fell down
he would not let go the accused. Instead, the deceased tightened his
grip around the accused's neck. The accused's version that he was
losing breath and was now dazed has not been rebutted by the State.
Now,
taking into account all these factors what was the accused expected
to do?
The
accused had tried to flee, in vain, and was now at the brink of
losing his life through strangulation. No one came to help the
accused.
The
learned author, JONATHAN BURCHELL, in Principles of Criminal Law, 5th
Edition, 2016…., outlines some of the factors a court would take
into account in assessing whether an accused person acted reasonably
in the manner in which he defended himself or herself. The list is
not exhaustive but include, inter
alia;
(i)
The relationship between the parties.
In this case, the deceased was an uncle to the accused and the
accused regarded him as a father. This explains probably why he fled,
tried by all means not to fight the deceased or hit back but chose to
flee.
(ii)
The respective ages, gender, and physical strength of the parties.
The deceased was much older to the accused. He was 36 years old and
the accused only 19 years old. The evidence placed before us is that
the deceased was of a bigger physical stature and stronger than the
accused. This explains why he possibly overpowered the accused.
(iii)
The location of the incident.
The fatal blow was inflicted when the accused had been cornered
inside a bedroom and had no other escape route.
(iv)
The nature, severity, and persistence of the unlawful attack.
In
casu, the
accused had been first assaulted with a broom stick or feather
duster. The accused had been bruised and had swellings. The deceased
persisted by using a 1–2 m long log and when he failed, the
deceased decided to suffocate the accused by strangling him to the
point that State witnesses said the accused could have died.
(v)
Nature of weapon used in the unlawful attack.
Despite that the deceased ultimately used bare hands
when he was fatally stabbed his conduct was nonetheless life
threatening.
(vi)
Nature and severity of any injury or harm likely to be sustained in
the unlawful attack.
The accused pointed out that his life was in danger as the deceased
throttled him. This was confirmed by the State witnesses, Innocent
Manzonza, Piniel Manzonza and Gloria Mugweni.
(vii)
Means
available to avert the unlawful attack.
The accused had a kitchen knife in his hand. He had tried to run away
but the deceased caught him. The accused failed to wrestle free from
the deceased's vice-like grip. It is clear the accused had no other
option to save his life.
(viii)
The
nature of means used to offer defence.
The accused's irrefutable evidence is that he decided to stab the
deceased with a knife on the thigh in order to inflict pain and cause
the deceased to let him go.
(ix)
The
nature and extent of harm caused or likely to be caused by the
defence.
In this case, the accused aimed the blow not necessarily on the most
vulnerable part of the deceased's body but on the thigh. Indeed, he
used a lot of force but it was fortuitous that he perforated the
right femoral artery resulting in excessive bleeding. It remains a
fact that all he intended was to inflict pain as the blow was not
directed at an inherently fatal part of the human anatomy.
In
conclusion, it is our view that the accused did not exceed the bounds
of self-defence when one considers all the circumstances of this
case. It is universally accepted that one is entitled to defend and
protect both life and limb in self defence. Our law clearly provides
for this.
We
are satisfied that the defence of self- defence is available to the
accused. The accused has managed to meet all the requirements set of
in section 253(1) of the Criminal Law (Codification and Reform) Act
[Chapter 9:23].
Accordingly,
we find the accused not guilty and he is acquitted.
VERDICT:
Not guilty and acquitted.
