State v Lovemore Charuka

### Preamble
1
HMT 70-20
CRB 49/20
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STATE

versus

LOVEMORE CHARUKA

HIGH COURT OF ZIMBABWE

MUZENDA J

MUTARE, 6 October 2020, 12 October 2020 and 14 October 2020

Criminal Trial

ASSESSORS:  1. Mrs Mawoneke

2. Dr sana

M Musarurwa, for the State

T Musara, for the accused

MUZENDA J: Accused faces Murder charges. On 09 December 2018 at Manyasha Store, Charuka Village, Chief Nyashanu, Buhera, accused caused the death of Joseph Manyasha by striking him with bricks and stones on the chest and head.

Accused pleaded not guilty to the charge and tendered a plea of guilty to culpable homicide. Accused admits hitting deceased once on his body using a home-made mud brick. On the day in question whilst he was seated at the door steps of deceased’s house waiting for deceased to give him change in the amount of US$1.50, deceased got angry and struck accused with a knobkerrie, accused fell and could not run away due to his inebriation. Accused says in his defence outline, he staggered for a short distance, whilst deceased was in hot pursuit. Accused then picked a half brick from the ground and aimlessly struck the deceased once on the chest, accused then walked away. He did not intend to kill the deceased.

The State to prove its case, relied on the State witnesses. Most of the evidence was produced by the State by consent of the defence in terms of s 314 of the Criminal Procedure and Evidence Act, [Chapter 9:07]. The State however went on to call deceased’s wife Trador Munikwa and the investigating officer Assistant Inspector Seremani Seremani to give oral evidence. The post mortem report, the confirmed warned and cautioned statement of the accused, sketch plan, two stones and 3 half bricks and their certificates of weight were also produced in court by consent of both the State and defence. The iron bar was also produced. The accused was the only witness for the defence.

The question for determination is whether the accused assaulted the deceased in defence of self? In addition whether the accused intentionally caused the death of the deceased?

Deceased’s wife’s evidence is to the effect that she was with deceased at their shop on the day in question when the accused arrived in the company of his colleagues. Accused and his colleagues requested deceased and his wife to open the shop and sell alcohol to them. The witness advised deceased not to open, later deceased decided to sell the alcohol through the window. The witness whilst inside the house perceived some altercation between accused and Malvin Manyasha, the latter was reprimanding the former about the accused’s use of derogatory language directed at the witness. The accused’s colleagues then left the scene leaving accused behind at the deceased’s shop.

When the colleagues left, the accused started to violently shake the deceased’s screen gate demanding deceased to come outside. The screen gate got damaged. Deceased decided to go out of the house to find out what accused wanted, the witness followed the deceased. When the deceased got out of the house, accused violently pulled out the deceased to the outside of the house. The witness went back into the house and collected a torch light. When she directed the torch to the premises outside the house, she saw accused picking two half bricks at the same time using both hands and threw them violently at the deceased’s body. Deceased lost balance and started staggering backwards in pain. She also heard deceased saying that accused could kill him if that was what he wanted for deceased had not done anything wrong to accused. She then rushed to assist the deceased not to fall. Ever Sengai, deceased’s daughter in law assisted the witness to place the deceased on the door steps. Deceased said his last words to the witness, bidding her farewell and died on the spot. She confirmed that when accused arrived at the shop, he hailed insults calling her unprintable words.

The investigating officer, Seremani Seremani told the court that he attended the scene and confirmed the damaging of the screen gate. The two stones, three half bricks and the iron bar were shown to the witness by the accused during indications. The witness recorded these indications on the sketch plan more importantly point D on the sketch plan.

The State witness remarkably impressed the court as being honest and consistent during their testimony. Deceased’s wife apparently sobbed in court describing the manner the accused attacked her husband the deceased. However she remained steadfast and did not exaggerate her testimony. She was strongly subjected to a protracted cross examination by the defence, but she did not prevaricate nor shaken, she repeated consistently what she saw. She denied that deceased assaulted accused using a knobkerrie. She denied that deceased owed accused $1.50. Relations between deceased and accused used to be cordial and she could give accused food and deceased regarded accused as his father. The police detail stood the rigours of defence cross-examination on the aspect of the three half bricks and two stones. The court found both witnesses resultantly credible and honest and accept their evidence.

The accused, on the other hand exhibited some challenges in explaining what transpired on the day in question. When the court examined the totality of his evidence, his defence outline, his warned and cautioned Statement as well as his evidence in chief before us, we find that there are glaring irreconcilable versions. The assault on the head of the accused, allegedly by the deceased on two occasions, surprisingly has no medical evidence to bolster it. In any case no scar was left on the accused nor any trace of an injury was established. The accused is the one who showed the half bricks and the stones to the police detail, he could not satisfactorily explain why the police detail would lie against him. Accused could not explain how the injuries on the deceased’s head were sustained and the three wounds on the chest, whether a single blow of a half brick could have caused all the injuries on the head and chest. He was also asked why he would run into the mountain if he had assaulted deceased in defence of self. He could not explain why he would not have voluntarily presented himself to the police to explain what had transpired. The questions among a heist of other uncited instances led the court to conclude that the accused faired poorly in his defence.

It is important to note that the following issues were adjudged by this court to be incontrovertible:

both accused and deceased were related and known to each other.

accused was not happy about deceased.

accused assaulted deceased on the day in question using a half brick on the chest of the deceased and this assault injured the deceased who died on the spot.

accused admitted causing injuries on the head of the deceased.

deceased died as a result of the injuries caused by the accused and the pathologist concluded that the cause of death was pulmonary oedema, severe left lung contusion, head and chest contusion.

What is in dispute is whether the accused acted in self-defence?

The State had managed to prove beyond reasonable doubt that, on the day in question it was the accused who was the aggressor right from the onset. Accused insulted the wife of the deceased for refusing to reopen the shop. He deliberately remained behind when his colleagues left the scene. He damaged the screen gate to the deceased’s house to force deceased to come out. When deceased emerged from the inside, he pulled deceased outside and attacked him. It was the deceased who was telling accused that he (deceased) had done nothing wrong to him (accused). The accused on his own volition showed the police the weapons he used to assault the deceased on the head and the chest. All the injuries on the deceased were fatal. The knobkerrie allegedly used by the deceased to attack the accused was miraculously not recovered by the police. There is no medical evidence to at least prove that the accused was assaulted by the deceased twice on the head. The court is aware that no onus lies on the accused person, but these factual issues about the recovery of the knobkerrie and medical evidence about the assault could have credence to accused’s version. None was proved.

It is on this basis that we have no hesitation to find that the defence of self has no merit and it is rejected by this court. The chronicle of the events of what happened on the day in question comes from the deceased’s wife and partly from the accused himself. The accused States that he struck deceased once on the chest using a half brick. During cross-examination by the State Counsel he admitted being responsible for causing injuries on the deceased’s head. Indeed there is partial direct evidence from Tador Munikwa, deceased’s wife who saw accused pelting two half bricks at the deceased and immediately deceased struggled to sustain his gait which had been shattered by the impact of the accused’s blows. The nature of the injuries as espoused by the post-mortem report, the location of the injuries and their seriousness and fatal effect can assist the court to establish the mens rea of the accused. This can be done after looking at the totality of all underlying facts of the matter. (See the matter of S v Robert Mungwanda SC 19/2002) If the intention of the accused was to assault the deceased and not to kill him, the degree of assault and injuries actually sustained by the deceased can greatly help the court to assess the aspect of intention.

Accused admitted assaulting deceased using half bricks. As already mentioned herein, accused pointed to two stones as part of the weapon he used to assault the deceased. The three half bricks and two stones were all lethal weapons if they land either on the chest or head. Accused admitted that he used severe force when he pelted the weapons, he was also reckless in his action. The location of the injuries, the chest and head are both vulnerable parts of a human being’s body. Accused did not render aid to the deceased, according to the sketch plan he watched from a distance whilst deceased was being helped by other people. The deceased died on the spot showing that the attack was brutal.

Having looked at all the factors submitted by both the State and the evidence, more so given the fact that the accused had been partaking alcohol for the better part of the day, we are not convinced by the State Counsel to find accused guilty of murder with actual intent. Drunkenness of the accused may have impaired the judgment of the accused. However the accused from his narration of events seems to recall all that happened on the day in question including the position he hit the deceased. Accused admitted that he was reckless in his action, he assaulted deceased using lethal weapons on vulnerable parts of the body. Accused is therefore found guilty of murder with constructive intent in contravention of s 147 (1) (b) of the Criminal Law (Codification and Reform) Act, [Chapter 9:23]

Sentence

In assessing sentence the court will take into account all the mitigatory and aggravatory factors submitted by the parties. The court will factor in the personal circumstances of the accused, the aspect of drunkenness as well as the period, accused has been in custody pending trial.

On the other hand, the court will also look at the sanctity of life, the moral blameworthiness of the accused, the age difference between accused and the deceased. Partaking of alcohol by an accused must not expose innocent people to insult and death as what happened in this case. The deceased died an excruciating painful death and did so in front of his wife. This image would be traumatic to his family for the rest of the remainder of life of his wife.

Accordingly accused is sentenced as follows:

15 years imprisonment.

National Prosecuting Authority, State’s legal practitioners

Gonese and Ndlovu Legal Practitioners, for the accused - pro-deo