THE State V Samuel Virimai AND Lydia Mutukwa

### Preamble
1
HMA 57-20
CRB 49 – 50/20
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THE STATE

versus

SAMUEL VIRIMAI

and

LYDIA MUTUKWA

HIGH COURT OF ZIMBABWE

MAWADZE J

MASVINGO 15 OCTOBER, 2020

Assessors

Mr Nish

Mrs Chademana

Criminal Trial – Sentence

B.E. Mathose, for the State

J.Chipangura, for accused 1

T. Bhunu, for accused 2

MAWADZE J:  	This is a rather tragic matter in all material respect. The now deceased was a mental patient who unfortunately lost his life in rather bizarre circumstances. Both accused persons are in the afternoon of their lives.

Initially both accused persons were arraigned for murder as defined in s 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. However both counsel for the accused and the counsel for the State found each other hence the matter proceeded on a statement of agreed facts.

Accused 1 was convicted of contravening section 49 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] which relates to culpable homicide. Accused 2 was convicted of contravening section 206 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] as an accessory to the crime committed by accused 1.

Accused 1 is a 70 years old male and accused 2 is an 88 year old female. Both are residents of Chimuka Village and Makuvaza Village respectively of Chief Gutu in Gutu.

The now deceased was a 62 year old male of Mubaiwa Village, Chief Serima, Gutu.

The agreed facts in this matter are as follows;

On 3 September, 2019 the now deceased who was mentally ill wandered away from his homestead in Serima, Gutu and found himself at accused’s 2 homestead at about 2300 hrs. Accused 2 believed the now deceased was a thief hence she raised alarm by calling accused 1 via a cellphone call. Accused 1 rushed to accused 2’s homestead armed with a shovel and found the now deceased at accused 2’s homestead. Accused 1confronted the now deceased who failed to identify himself or to explain the purpose of his presence at accused 2’s homestead. Instead the now deceased tried to flee and accused 1 chased after him. Accused 1 then struck the now deceased once on the head with a shovel killing him on the spot.

Accused 2 realising what had happened connived with accused 1 to ferry the now deceased’s body from accused 2’s homestead and they dumped it along some main road. Thereafter accused 2 in a bid to conceal all evidence took some bloody soil around her yard and disposed of it in a pit latrine. The now deceased’s body was later found and police investigations led to the arrest of accused persons.

The doctor who examined the now deceased observed the following;

“1. 	Single crescent shaped skull laceration fracturing right parietal bone and exposing brain tissue

2.	Significant bleeding

3.	Facial bruising due to fall

The cause of death is said to have been severe head injury.”

There is no doubt that a life was lost in very unfortunate circumstances. The sanctity of human life cannot be emphasised.  Once a life is lost if cannot be replaced.

The now deceased as a mental patient would ordinarily deserves protection from all normal members of society. Indeed he did not deserve to meet his death through such violent means, more so as he had not harmed anybody. It is important to send the message clearly that people should not take the law into their hands; Both accused persons as elderly persons should lead by example. If at all they had erred there was no reason for them to then try and conceal their role in the deceased’s death. If is fortuitous that a passerby discovered the now deceased’s body and that police investigations nabbed both accused persons.

It is clear from the findings in the post mortem report that accused 1 used severe force with a dangerous weapon. The blow with a shovel targeted the now deceased’s head causing severe injury and instant death.

Be that as it may both accused persons pleaded guilty to the offenses they stand convicted of. After their arrest they indeed co-operated with the police.

Both accused persons are now in the sunset of their lives as it were. They have blemish free records. Surely they cannot spend what is left of their lives in prison.

Accused 1 acted as a Good Samaritan. He answered to the distress call by accused 2. He also did not know that the now deceased was a harmless mental patient. To his mind he believed he was protecting a frail and vulnerable 88 year old woman from possible harm. The now deceased did not help matters by trying to flee.

Accused 2 is a very old woman at 88 years of age. She is indeed incapacitated as she is wheel chair bound. Accused 2 did not physically attack the now deceased although as per s 210 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] she can be punished in the same manner as accused 1.

Accused 2 was indeed frightened by the now deceased’s presence at her residence at almost midnight. She felt vulnerable and raised alarm. Her conduct of trying to conceal their evil deed could have been due to well-founded panic rather than inherent wickedness.

In our view no useful purpose is served by sending such fragile and old people to prison. They will be a burden to prison officials and to the fiscus. Their arrest and resultant prosecution is punishment on its own.

In the result the following sentence would meet the justice of the case;

Sentence

“Accused 1: is to pay a fine of $1 500 or in default of payment 6 months imprisonment. In addition 6 months imprisonment is wholly suspended for 5 years on condition accused does not commit within that period any offence involving the use of violence upon the person of another for which accused is sentenced to a term of imprisonment without the option of a fine.

The warrant of committal to prison for accused 1 is suspended on condition accused 1 pays the sum of $1 500 through the Registrar on or before 30 October, 2020 at 1600 hrs.

Accused 2: is sentenced to 1 year imprisonment wholly suspended for 5 years on condition she does not commit within that period any offence involving the use of violence upon the person of another or contravening section 206 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] for which she is sentenced to a term of imprisonment without the option of a fine.”

National Prosecuting Authority, counsel for the State

Chuma, Gurajena & Partners, pro deo counsel for accused 1

Bhunu & Associates, pro deo counsel for accused 2