MAWADZE
J:
The
then 30 year old accused is facing the charge of killing his then 38
year old sibling as defined in section 47(1) of the Criminal Law
(codification and Reform) Act [Cap
9:23]
by assaulting him all over the body at Gwati vllage, Chief Zimuto,
Masvingo on 2 February 2019.
At
the material time only the accused and the now deceased stayed at
their parent's homestead in Gwati village, Chief Zimuto, Masvingo.
It
is not in dispute that sometime between 2017 or 2018 the now deceased
was afflicted with some mental illness and had to be hospitalised for
two weeks at Ngomahuru Psychiatric hospital in Masvingo and that he
fully recovered.
On
2 February 2019 the accused collected some maize from the Social
Welfare Department as drought relief and took it home. It has not
been disputed that the now deceased sold one of the maize bags
without accused's consent. Accused alleges the now deceased even
wanted to sell the remaining bag and that this led to the altercation
between the two.
The
state alleges that the now deceased assaulted the accused with a yoke
pin (chikeyi) and that accused dispossessed the now deceased of the
yoke pin. It is alleged the now deceased picked a hoe but was again
dispossessed by the accused.
The
state case is that the accused proceeded to assault the now deceased
with the hoe causing injuries on right hand, right leg and the head
resulting in the now deceased's death.
The
accused is said to have dragged the now deceased's lifeless body
from their main house and left it in a disused kitchen hut at the
homestead.
The
next morning on 3 February 2019 the accused advised their cousin
sister Gladys Mavise that he had assaulted the now deceased the
previous night. Gladys Mavise then found the now deceased's body in
the disused kitchen hut and alerted her father Nelson Mavise.
Meanwhile the accused proceeded to the police and handed himself
over. The police attended the scene and recovered the hoe.
The
accused's basic defence is that he acted in self-defence as he was
being indiscriminately attacked by the now deceased.
In
our view this is the narrow issue this court has to resolve as most
of the facts are not in dispute.
The
evidence of the village head of Gwati village, Solomon Zimuto, an
attending police detail Pasca Musengezi and Dr. Godfrey Zimbwa who
examined the remains of the now deceased and compiled a post mortem
report was all admitted in terms of section 314 of the Criminal
Procedure and Evidence Act [Cap
9:07].
In a summary it is as follows:
(a)
Solomon Zimuto
The
accused woke him up in the early hours of 3 February 2019 at around
0100hrs and disclosed that he, the accused, had assaulted the now
deceased after the now deceased had sold maize meant for their food.
He said the accused advised him that since the now deceased was
injured the accused was now proceeding to hand himself over to the
police. Later at dawn around 0500hrs, Solomon Zimuto proceeded to the
now deceased and accused's homestead to check on the now deceased.
He found the now deceased's body in a kitchen hut with injuries on
right leg, right hand and back of the head. He also observed a trail
of blood from the main house to the disused kitchen where the now
deceased's body was.
Our
only brief comment is that accused did not tell Solomon Zimuto that
he had fought the now deceased or acted in self-defence as the
accused now alleges. Further, the accused, did not also reveal that
the now deceased had been fatally injured or was dead.
(b)
Pasca Musengezi
He
is one of the police details who accompanied the investigating
officer Rtd Sgt Augustine Magadzi to the crime scene. He observed
blood in accused's main house and the blood spoor or trail led to
the disused kitchen hut where the now deceased's body was.
Our
brief comment is that accused admits that he indeed assaulted the now
deceased whilst in the main house and later on dragged him to the
disused kitchen hut.
(c)
Dr Godfrey Zimbwa
Dr
Zimbwa carried out the examination of the now deceased's remains
and authored the Post Mortem report exhibit 1 on 4 February 2019. He
observed the following:
(i)
extensive body bruises;
(ii)
multiple skull fracture;
(iii)
fracture of the left tibia and fibula;
(iv)
fracture of the right humerus;
(v)
massive abdominal inflation or distention.
Dr
Zimbwa concluded that the cause of the death was haemorrhagic shock,
arising from the head injury and the multiple fractures.
The
cause of the now deceased`s death is not an issue.
The
accused admits inflicting the fatal injuries. It is clear from the
nature of the injuries that the assault was indiscriminate and severe
force was used. A potential lethal weapon, a hoe, Exhibit 3 was used.
It`s weight is 660g (after being broken) and the broken hoe handle
was 14cm.
Indeed
the blows by the accused landed on the deceased`s head, a vulnerable
part of the body, causing not only hand and leg fractures but
multiple skull fractures. This is indicative that several blows were
delivered.
The
State led viva
voce
evidence from 3 witnesses Gladys Mavise a cousin to both accused and
the now deceased, her father Nelson Mavise who is an elder brother to
both accused and the now deceased`s late father and the investigating
officer Rtd Sgt Augustine Magadza.
None
of all these 3 witnesses was an eye witness to the assault of the now
deceased by the accused. Their testimony therefore is very peripheral
and of no probative value to the issue at hand. We simply refer to it
for the sake of completeness of the facts.
1.
Rtd Sgt Augustine Magadza
In
our view nothing turns on his evidence other than that he is the
investigating officer and attended the scene. He observed the
injuries on the now deceased and the blood spoor from the main house
to the disused kitchen where the now deceased's body was found. He
also recovered the hoe Exhibit 3 on accused's indications.
2.
Nelson Mavise
Nelson
Mavise confirmed that accused and the now deceased had normal sibling
misunderstandings and that at one point the now deceased suffered
from mental illness but was successfully treated. He denied that the
now deceased was a person of violent disposition as alleged by the
accused. His daughter Gladys Mavise called him on 3 February 2019 and
led him to the disused kitchen hut where the now deceased`s body was
and he noted injuries on the now deceased`s head.
3.
Gladys Mavise
Gladys
Mavise (Gladys) is an elder cousin of both accused and the now
deceased and she stayed about 100m from accused and now deceased`s
homestead. Gladys confirmed that prior to this day the accused and
the now deceased had once fought over a dispute of food and she
counselled them. Contrary to the accused`s assertions she said it is
the accused and not the now deceased who was of violent disposition.
She confirmed that the now deceased was once afflicted with mental
illness and admitted to Ngomahuru Psychiatric Hospital, Masvingo, but
was successfully treated.
As
regards the events of this day Gladys said on 2 February 2019 at
around 1900 hours it is the accused who came to her. The accused was
moderately drunk and advised her that the now deceased had sold the
maize accused had collected as drought relief. She said accused said
he was going to deal with the now deceased or to sort him out
(kumugadzirisa in shona). Gladys said being aware of the accused`s
inclination to violent behaviour she implored the accused to shelve
the matter until the next morning. The accused then left and she
never saw him again that night. Later that night the now deceased is
the one who came and collected some food from Gladys. The now
deceased was sober.
This
is contrary to accused's assertions that the now deceased was
drunk.
Gladys
said at around 2100 hours she heard both accused and the now deceased
quarrelling in high pitched voices but she got scared to check on
them as it was late at night. She said it is the accused who came to
her the next morning saying he was going to the police. Upon
inquiring why the accused said he had broken the now deceased's
leg. She asked accused to take her to the now deceased but before
they got to the disused kitchen hut the accused disappeared.
Inside
the kitchen hut she saw the naked lifeless body of the now deceased
lying on his back. She also observed a blood spoor from main house to
the kitchen hut. Realising the gravity of the situation she called
her father Nelson Mavise.
Under
cross examination Gladys admitted that on 4 November 2018 the accused
had assaulted Gladys's father Nelson Mavise accusing him of
practising witchcraft and that accused had been arrested.
She
denied that the now deceased was of a violent disposition but had
burnt their grandmother's hut when he was mentally ill.
Gladys
insisted that accused had said he would sort out the now deceased
that night for selling the maize and that the accused was moderately
drunk. She denied that accused made any other report other than that
he had broken the now deceased's leg.
In
our assessment of Gladys is a mature woman who was very balanced in
her testimony. We did not find any possible motive for her to lie on
any issue but was fair and objective. Further, most of the factual
issues she testified on are not in dispute. We therefore find no
objective basis not to accept her evidence.
In
order to resolve the issue as to whether accused acted in
self-defence and be absolved of any criminal liability we shall focus
more on accused`s own evidence as it unfolds from his confirmed
warned and cautioned statement exhibit 2, the defence outline
Annexure B and viva
voce
evidence.
Thereafter we shall evaluate whether the accused`s testimony is not
only credible but whether it meets the legal requirements as
self-defence.
In
terms of section 253(1) of the Criminal Law (Codification and Reform
Act) [Cap
9:23]
the defence of self-defence is a complete defence.
The
requirements outlined is section 253(1)(a) to (d) of the Criminal Law
(Codification and Reform) Act [Cap
9:23]
are conjunctive.
In
the case of the State v Collet Baira Manzonza HMA02/16 at pp11-12
of the cycostyled judgement I dealt at length with the requirements
of self-defence and how they should be applied.
I
now turn to accused's evidence.
In
his defence outline the accused lied that he went to advise Gladys
Mavise that the now deceased had become violent. This was disputed by
Gladys Mavise.
The
impression accused gave in his defence outline is that when he
delivered the fatal blows it was in darkness and in self-defence.
What
the accused concedes is that after disarming the now deceased he
proceeded to attack him.
In
his warned and cautioned statement Exhibit 2 accused said after he
kicked the now deceased on the chest the now deceased fell down. The
accused said he disarmed the now deceased of the hoe. The reason the
accused gave for attacking the now deceased was that he was angry or
I quote “I
struck him as a result of anger.”
Under
cross examination the accused conceded that by the time he assaulted
the now deceased the now deceased did not retaliate. Accused further
conceded that his life was no longer in danger. Most importantly
accused conceded that he acted in anger rather than in self-defence.
In
our view that concession by the accused puts to bed his assertion
that he acted in self-defence. It was futile for the accused to try
to disown incriminating parts or contradictory parts of his confirmed
warned and cautioned statement.
Our
finding is that whereas the accused may have been under unlawful
attack his conduct of savagely attacking the now deceased was not
necessary to avert the unlawful attack. The accused could simply have
fled from the scene. Further the means he used to avert the unlawful
attack cannot be said to be reasonable in all circumstances.
Lastly
the injuries he inflicted on the now deceased were grossly
disproportionate to the unlawful attack he faced. In fact the accused
had virtually no injuries.
It
is therefore clear that on the facts proved the defence of
self-defence is not available to the accused. The accused is simply
raising that defence in a dishonest manner.
He
was angered by deceased`s conduct of selling the maize and decided to
“sort him out” to quote his own words.
While
the accused may not have intended to kill the now deceased, the
manner in which he assaulted him indiscriminately leads to the
finding that the accused realised that his conduct may cause death
but nonetheless continued to assault the now deceased in that manner
despite the risk or possibility.
In
the result we find the accused guilty of murder with constructive
intent as defined in section 47(1)(b) of the Criminal Law
(Codification and Reform Act) [Cap
9:23].
VERDICT.
Guilty
of C/S 47(1)(b) of the Criminal Law (Codification and Reform Act [Cap
9:23]:
Murder with constructive intent.
National
Prosecuting Authority, counsel for the State
Mutendi,
Mudisi and Shumba, pro deo counsel for the accused