HUNGWE
J: The
accused faces a charge of murder it being alleged that on the 17th
of November 2016, at Ross Common Estate, Chimanimani, he, with actual
intent or realizing the real risk or possibility of death, struck
Bigboy Matsangaise with an iron bar on the head, face and body
thereby inflicting injuries from which the said Bigboy Matsangaise
died.
He
pleaded not guilty to the charge.
It
is not clear what his defence, from his Defence Outline, was meant to
be. However, a careful analysis of the Defence Outline indicates that
the accused raised the defence of intoxication but it amounts to one
of intoxication. I mention this because in Exh 2, the Defence
Outline, the following appears;
“The
accused and the deceased drank from 1500 hours to late into the night
which the accused is not too clear as to the actual time. The accused
will state that he does not even remember how he followed the
deceased or how he assaulted the deceased or how he slept into the
deceased's quarters. He was only woken up to be informed that he
had seriously injured the deceased. He hazily remembers that during
the drinking spree there was an altercation between him and the
deceased over a woman with whom both were dating.
The
accused will further state that he was so drunk that he did not even
attempt to hide the weapon used to inflict the injury. Furthermore,
in the drunken stupor he went into the deceased's quarters thinking
that he was going into his own quarters to rest. As a result of the
intoxication the accused will state that he lacked the requisite mens
rea
to satisfy the requirements for murder.”
From
this Defence Outline it does not appear to me that the accused was
raising any factual dispute regarding the basis of the allegations
giving rise to the charge of murder. However, we must deal with the
matter as presented by the defence.
We
find that the following facts are not in dispute.
The
accused and the deceased are uncle and nephew, with the deceased
being the accused's uncle. They were both employed at Roscommon
Estates. The accused was the deceased's assistant. On the fateful
day, they had both gone drinking. They had argued over a woman's
affections. The accused felt that the deceased had snatched away his
woman. When the altercation subsided it would appear the deceased
left the beer drink first to go home. From the facts, it is common
cause that they both shared the same living quarters.
The
accused later followed home.
Upon
arrival, he had called for the deceased to come out of the quarters.
He must have been armed by then, because as soon as the deceased
emerged from their living quarters, he struck him with an iron bar in
the face, around the head and all over the body. The injuries
sustained in that assault are captured in the post mortem report.
Those injuries are concentrated around the head and the face. Despite
having been so severely injured, the deceased apparently walked away,
but he collapsed and died some six days afterwards in Mutare.
The
accused's defence is that he was so drunk that he does not remember
what happened. However, in our assessment, this defence is false as
demonstrated by the following facts.
(a)
The first person to find the deceased, who was then in distress,
Willard Mwasvipa testified that when he found the injured deceased,
he approached the accused at their living quarters. He observed upon
arrival that their quarters was door was locked from inside. He
called out for the accused. There was no response. Eventually, the
accused came out. When the accused emerged from their room, the
witness noticed that the accused had blood stains all over his
clothes.
(b)
When he asked the accused what had happened to the deceased, the
accused explained to the witness that he had assaulted the deceased
who had done a stupid thing.
Clearly,
the accused knew what had taken place.
(c)
When the accused was invited to make a statement to the police soon
afterwards, he explained that he had used an iron bar to assault the
deceased in the face. He gave the reason for such an assault. He
explained to police that, the deceased had snatched his girlfriend
from him.
(d)
His statement, which is exhibit 3 given on 20 December 2016 was given
a month after the event. In it, he spells out what is clearly
consistent with the injuries found in the post mortem examination.
(e)
In Court he gave the clear impression that he was unaware as to what
might have happened to the deceased, even suggesting that Mwasvipa
himself may have had a hand in the crime.
(f)
In his Defence Outline, he admitted that he had caused the death of
the deceased, but claimed that he was so intoxicated that he could
not have formulated an intention to kill.
The
accused was clearly a hopelessly unreliable witness for his case.
Even his defence counsel, Mrs
Mandingwa had
a torrid time leading him in-chief. It was clear that the accused was
prevaricating from one version to another.
Consequently,
Mrs Mandingwa submitted in closing that because of the gaps in the
evidence, an appropriate charge and verdict ought to have been
culpable homicide.
In
order for us to determine whether the State has proved a charge of
murder beyond a reasonable doubt, the Court is enjoined to assess the
evidence placed before it and decide that issue bearing in mind that
in criminal proceedings the onus always lies on the State to prove
its case beyond a reasonable doubt.
The
facts show that the accused and the deceased went out together for a
drink. The same facts also show that they quarreled over the
affections of a woman who the accused claimed was his. The deceased
left the beer drink earlier than the accused and went home to their
living quarters. The accused later followed and called the deceased
out of the living quarters. He unleashed a most vicious and brutal
attack using an iron bar around the head and the face.
The
result was a mobile skull fracture on the supra orbital area and a
raptured left eyeball and several lacerations and other head
injuries.
Unfortunately,
there was no eye witness to this assault.
Despite
the fact that in the Defence Outline, it is stated that the accused
did not hide the murder weapon, that weapon was not produced in
Court. Although the accused described the weapon to police and
maintained that that the police took possession of it, the iron bar
was not produced in court. It would appear that it is the police who
might have misplaced this exhibit.
The
Doctor described the injuries as severe and that a lot of force would
have been used or required in order to crack the human skull and
inflict the nature of the injuries that she described in the post
mortem report. There is no doubt in our mind that the assault on the
deceased was both brutal, vicious and unrelenting. Even in the
absence of the weapon used, it is clear that, whatever description
the iron bar fitted, it was used with fatal effects.
The
accused's defence is one of intoxication.
By
section 221 of the Criminal Law Codification and Reform Act [Chapter
9:23]
where a person is charged with a crime requiring proof of intention,
knowledge or realization of a real risk or possibility, was voluntary
or involuntary intoxicated when he or she committed the crime, but
the effect of such intoxication was not such that he lacked he
requisite intention or knowledge or realization, such intoxication
shall not be a defence to the crime.
In
our view, although the accused had consumed intoxicating liquor, he
was not so drunk as to have failed to appreciate his actions or the
consequences of such actions.
To
illustrate this, when he picked up a quarrel with the deceased at
Konaguru they did not fight at that stage. According to him he dozed
off. His nephew, the deceased left the scene. He got up and went
home.
One
would have reasonably expected that the nap that he took and the walk
home would have reduced his level of intoxication. This explains why
he neither got lost on his way home, nor stumbled and fell onto the
ground along the way, as a result of such intoxication (as one would
expect of someone who was motherless drunk).
When
he got home, he armed himself with a lethal weapon in form of an iron
bar and called out his nephew to come out.
In
our view, whilst his nephew believed that the quarrel over the woman
was over, for the accused it was not yet over. We find that in his
jealous rage, the accused decided to end the issue once and for all,
by inflicting the worst possible injuries on his nephew for what he
had done or for a perceived misconduct.
In
such a frame of mind, clearly the accused realized the real risk
involved in striking several blows to the face and head using an iron
bar, but despite that realization, he persisted with that conduct.
Although
he may not have intended the death of his nephew as a direct
consequence of his conduct, but if the death was to occur it was a
risk that he clearly was prepared to take when he pummeled the dead
nephew who had just awakened from slumber.
In
our view, the gaps in the evidence are not such that there is any
doubt as to what the accused's intention ultimately was. The gaps
exist in the proposed defence in that there was no independent
evidence of the extent of his drunkenness. There is no evidence as to
the actual quantities consumed by both the accused or the deceased,
or what effect generally, the consumption of those quantities would
be on an average person. There was no suggestion that the accused had
been involuntarily intoxicated when he attacked the deceased.
As
I said, voluntary intoxication is governed by the requirements set
out in section 221 of the Act.
The
accused voluntarily took certain amounts of liquor, the defence of
intoxication cannot be founded on the evidence of his say so, his
amnesia and so on, more would have been required for this Court to
rely on that as a full defence on a charge of murder. (section 220).
In
the result, we reject the claim that the gaps in the State's case
were such that, in light of the claim of intoxication, a proper
verdict ought to have been one of culpable homicide. We find that the
State has proved that the accused committed the crime charged beyond
a reasonable doubt and he is consequently found guilty of murder as
defined in section 47(1)(b) of the Criminal Law Codification and
Reform Act.
S
E N T E N C E
In
assessing sentence I take into account what your counsel has
submitted on your behalf in mitigation. And it is the best that
anyone could have said on your behalf in the circumstances. The few
factors that I find mitigatory include the fact that you are a first
offender and that you are aged 24 years. More importantly, your
family has paid in part the compensation demanded by the deceased's
family for the loss of their breadwinner.
But
as I said, there is nothing more one could have said in your favour
because this crime lacks rhyme or reason for it. From the evidence
that was led in Court, it would appear that your nephew had looked
after you and you were his assistant at your work-place and you
stayed together. He was a much older person than yourself. You owed
him some respect, although he was your nephew.
But
on the contrary you, for no apparent reason, decided to batter him to
his death. It was a most brutal and painful death for the deceased.
And as the prosecutor said, no amount of compensation will ever
replace him both to his family and to the community at large.
Throughout this trial you have not displayed the contrition that you
ought to have, since you do not deny killing your nephew.
Society
abhors such conduct as it would lead to unnecessary loss of life,
especially the sort of brutality that you displayed in this case. We
learn from the Doctor that there was a mobile skull fracture which
means that the bones were literally loose or loosened from the impact
of the blows that you perpetrated on the deceased. He had not died
immediately, but some days later. What it means is that, before his
death, he had suffered or endured pain and suffering all because of
your conduct.
Intoxication
can never justify such conduct and to our mind, it cannot be taken as
mitigatory, actually it must aggravate the circumstances of this
case.
In
light of the above, you are sentenced to 20
years imprisonment.
National
Prosecuting Authority,
legal practitioners for the State
Mhungu
& Associates,
legal practitioners for the accused
