Judgment No. HB 12/15

                                                                                                               Case No. HC (CRB) 195/14

THE STATE

Versus

TONGOONA MUCHAIRI

IN THE HIGH COURT OF ZIMBABWE

MUTEMA J (with assessors Mrs A. Dhlula & Mrs A. Moyo)

BULAWAYO 22 & 23 JANUARY 2015

Miss S. Ndlovu for the state

T.W. Make for the accused

Criminal Trial

            MUTEMA J: Accused is facing a charge of murder it being alleged that on 4 April 2014 at house number 32443 Entumbane, Bulawayo, accused did wrongfully, unlawfully and intentionally kill and murder his elder brother Eddington Muchairi.

            According to the state summary Annexure “A” the deceased was 40 years old at the time he met his demise, while accused was aged 35 years.  The two brothers stayed at the same house 32443 Entumbane.  At around 19:30 hours on the fateful day the deceased and accused had an altercation on family issues which resulted in accused striking deceased with a hoe on the head and he collapsed.  Deceased was rushed to Mpilo Hospital where he succumbed to his injuries on 6 April 2014.

            In his defence outline annexure “B”, accused, in denying the charge, denied the intention to kill and raised self defence.  He averred that he was defending himself from the deceased who was approaching him with the intention of attacking him with a stone and from deceased’s wife who had picked up the hoe first and later had thrown it into the garden where he then picked it up.  He added provocation by the deceased and intoxication whose combined effect he alleged made him not realise the real risk/possibility his conduct would cause.  The other addendum was that the deceased, who was intoxicated, had earlier on fallen to the ground a couple of times on a hard surface with rocks.  He said he struck deceased with a hoe once on the back slightly below the neck and once on either shoulder.  He denied the allegation that he uttered the phrase “minus one” soon after assaulting deceased.

            The following exhibits were tendered by the state by consent:

• Exhibit 1         -           affidavit deposed to by Constable Mwembe who identified deceased’s body to Dr I. Jekenya on 7 April 2014
• Exhibit 2         -           the post mortem report number 86/67/2014 by the pathologist Dr I. Jekenya
• Exhibit 3         -           the metal hoe used by accused to strike deceased with the following specifications:
  • Weight = 2,5kg
  • Length of handle = 84,5cm
  • Length of blade = 14cm
  • Sharp edge = 16cm

Two witnesses Tragedy Muchairi accused and deceased’s sister and Sikhumbuzo Ncube, accused’s neighbour gave viva voce evidence for the state.  The evidence of Lovemore Mutsakani the police officer who recovered the hoe and that of the pathologist Dr I. Jekenya was introduced by consent in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07].

Accused gave evidence and closed his case.

            What is common cause in casu is that on the day in question accused did strike the deceased 3 times with the hoe exhibit 3 bearing the specifications alluded to supra.  He denied landing the blows on deceased’s head saying he struck him once on the back and once on either shoulder.  He sought to throw spanners into the fireworks by saying before the assault deceased had slipped and fallen twice on a rocky surface.  He did not say deceased sustained injuries as a result of the fall.  We are not persuaded any bit that deceased sustained the head injuries observed by the pathologist which occasioned his demise from the alleged fall.  We are satisfied that it was accused who caused those head injuries.  This is corroborated by the evidence of Tragedy Muchairi whose testimony we accept that although she did not actually see accused deliver the blows on deceased’s head, when accused approached her and deceased on the road she jumped across a drain and then heard “boom” the sound of the hoe striking deceased 3 times.  When she later checked deceased he was lying down in a pool of blood.  Sikhumbuzo Ncube also heard the same sound and after accused had run away he found deceased lying in a pool of blood bleeding from his head.  Also, the pathologist found no injuries on the parts of the deceased’s body accused said he aimed the blows at.

            Accused raised 3 possible defences viz self defence, provocation and intoxication.  The latter 2 can be quickly dismissed as mere sophistry which at best amounts to either extenuation or mitigation or both.  Granted both accused and deceased were intoxicated but accused clearly from the evidence knew what he was doing.  He could run and he recalled with clarity all that transpired.  As for the alleged provocation the evidence does not reveal that he acted in the heat of passion when his name continually featured in the discussion deceased and Tragedy were having as the cause of the family wrangles.  That deceased’s wife shouted at accused from the yard hurling vulgarities including referring to accused’s mother’s clitoris – we are not persuaded that this occurred.  None of the witnesses heard this except accused alone.  It is highly improbable that deceased’s wife would allude to her husband’s mother’s clitoris.  Even assuming she did insult accused so, accused had no plausible reason to then direct/vent his venom at deceased instead of at deceased’s wife.  No reasonable man would have lost his self control in the circumstances.

            The 1^st defence requires closer scrutiny.  Self defence can only succeed if all its requirements are met.  The requirements are:

1. there must have been an unlawful attack which had either commenced or was imminent.
2. Upon accused or a 3^rd party to whom accused owed a protective relationship.
3. Accused acted to avert the unlawful attack if escape is not practical/feasible
4. Means used must be reasonable and proportionate to the unlawful attack
5. Accused must desist as soon as the danger is past

The evidence in casu shows that the self defence raised by accused is a red herring (fallacy).  It cannot succeed.  Even accused’s counsel conceded so in his closing arguments.  Admittedly there was a series of episodes of pushing and shoving e.g. collar grabbing between deceased and accused which the sister would quell, including accused punching deceased and some stones being held or thrown by the parties.  However, what is crucial is that at the critical moment when accused struck deceased with the hoe accused was not under any attack at all from the deceased.  According to Tragedy’s evidence she was standing with deceased on the road and accused had gone back to the house.  Accused then returned wielding a hoe which he then used to butcher the deceased.  Accused was therefore not under attack at that time.  Even if the court were to be benevolent to accused and go by his version that deceased was following him holding stones, this still would not exculpate him.  He said he ran into the yard and deceased’s wife dropped the hoe and deceased was following him.  He then picked up the hoe and went back towards deceased who bent down and he then struck him and he fell.  When deceased tried to get up for the 2^nd time he delivered two further blows.  First, accused had the opportunity to escape instead of going back to meet deceased; secondly, he had no reason to strike deceased who at the time was bending down and thirdly, accused had no cause to deliver the second further blows to a man who was already down and was failing to rise – the feared danger was already past.  The means used to avert the imagined attack were both unreasonable and disproportionate to the attack.  Accused did not desist as soon as the danger was past.  In the event self defence cannot avail him.

            The next stage of the enquiry following the failure of the raised possible defences is whether the accused had the intention to kill deceased.  He contended that he harboured no such intention.  It is not cumbersome to conclude that accused did have the intention to kill if account is had of the following factors:

• the weapon used – a metal hoe weighing 2,5kg with its handle 84,5cm long, a blade of 14cm long whose sharp edge was 16cm wide.  This is undoubtedly a mean and dangerous weapon to use on a human being.  Accused had earlier on wanted to strike deceased with the hoe but the sister had wrenched it from him and thrown is away.  He was undaunted.
• the part of the human anatomy the blows were aimed – the head – a very vulnerable and delicate part of the body.
• the number of blows delivered – 3 – shows determination and perseverance
• the degree of force used as gleaned from the post mortem report exhibit 2 was very severe in view of the nature of the injuries caused.
• the injuries actually occasioned –

1. there is a 3cm very deep transverse wound about 7cm vertically above left ear.  There is associated soft tissue haemorrhage.
2. There is a 2,5cm wound (very deep) about 5cm above and slightly in front of the left ear.  There is associated soft tissue haemorrhage.
3. There is an 8cm vertical superficial wound about 5cm in front of the left ear running from the left frontal (forehead) of the face down to the side of the upper jaw (left)
4. Just 1,5cm from wound (c)  going towards the left ear is an oblique superficial wound 3,5cm.

These caused deceased’s death whose cause the pathologist listed as severe brain damage with haemorrhages, skull fractures and callous head injury.

• the phrase “minus one” uttered by accused as he ran away from the scene is indicative of an intention to kill.  Despite accused’s denial of it 2 witnesses prosecution witness 1 and 2 corroborated each other that accused did utter the words.  His sister and neighbour friend could not have contrived without basis to lie against accused on this aspect.

The penultimate question is whether the intention to kill was actual or constructive.  We agonised on the issue and came to the conclusion that taking into consideration all the attendant circumstances of the case it was a borderline case between actual and constructive intent and it is only fair and just to give accused the benefit of the borderline doubt and eschew a conviction of murder with actual intent.  The circumstances of the case justify the conclusion that when the accused attacked the deceased with the hoe in the manner he did he must have realised that there was a real risk/possibility that his conduct may cause death and he continued to engage in that conduct despite the risk or possibility.

In the result accused is found guilty of murder with constructive intent.

The Prosecutor General’s Office, state’s legal practitioners

Messrs Ndove, Museta & Partners, accused’s legal practitioners