State v Maxwell Chihobvu

### Preamble
1
HMT 64-20
CRB 32/20
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STATE

versus

MAXWELL CHIHOBVU

HIGH COURT OF ZIMBABWE

MUZENDA J

MUTARE, 22 and 24 September 2020

Assessors: 	1. Mr Rajah

2. Dr Sana

Criminal Trial

M Musarurwa, for the appellant

A Nyamukondiwa, for the State

MUZENDA J: The accused is charged with Murder as defined in s 47 (1) (a) or (b) of the Criminal law (Codification and Reform) Act, [Chapter 9:23] in which the state alleges that on 26 November 2019 and at Village 12 C, Mutanda 3, Josias, Nyazura, the accused unlawfully caused the death of Tichaona Everson Zambuko (alias Zhabha) by assaulting him with an unknown object on the head intending to kill him or realising that there was a real risk or possibility that his conduct might cause death and continued to engage in that conduct despite the risk or possibility resulting in injuries from which the said Tichaona Everson Zambuko died.

FACTS

Accused and deceased were known to each other and used to stay in the same village, Village 12 C Mutanda 3, Nyazura, Chief Makoni. On 26 November 2019 deceased was observed by his family members as well as fellow villagers as being in sound healthy condition. He was last seen going out to look for his cattle. That night of 26 November, someone heard deceased making comments about accused’s property whilst at accused’s homestead. Later that witness met the accused that evening who remarked to the witness that, he (accused) had assaulted deceased and that according to the accused it would be doubtful if deceased would recover, accused said to have uttered words to the effect that he had finished with the deceased. Accused had also indicated to the witness where he had left deceased lying. Accused told the witness that he had assaulted deceased because the latter had destroyed accused’s two doors at accused’s homestead.

On 27 November 2019 the deceased was found by his family lifeless in a pool of blood at his homestead. Accused was informed and repeated his utterances, he initially agreed to go to deceased’s homestead, but later reneged, ran into the nearby mountains and disappeared. Upon his arrest he was found with a suicide note relating to the deceased’s death. He was subsequently arrested and charged with murder.

Doctor S. Karembo conducted a post mortem examination on the deceased’s body and concluded that the cause of death was due to head injury.

The accused is denying the charges and tendered his defence outline where he states that, on 26 November 2019, he left Gandiya Shop in the company of one Calva Chimbande and left deceased at the said shop drinking alcohol. On his way home he saw a man emerging from the bushes shouting at him. The man attacked him by attempting to grab hold of his legs and accused reacted by kicking that man on the face and then fled away. From the scene he ran towards Admire Tsikai’s homestead. Accused does not recall very well whether the man he kicked fell or not. He only realised that the man he had kicked was deceased when he was running away when deceased yelled at him. After talking to Admire accused returned to the scene to pick up his cap and went away. Upon his return to the scene he did not see the deceased. He learnt about deceased’s condition the following day and later on about his death. He denies that he intended to kill the deceased. He admitted kicking deceased but did so to avert the attack by the deceased. He prayed for acquittal.

After having heard evidence of the state and that of the defence we concluded that the following are issues of common cause.

Accused and deceased were known to each other and stayed in the same village.

The relations between them was not cordial and was a fact known to fellow villagers.

On the night of 26 November 2019 the deceased and accused met and the accused assaulted the deceased on the head.

The deceased died the following morning on 27 November 2019.

The deceased suffered a broken mandible, several skull fractures and lost a lot of blood.

The question for decision is whether the accused intended to kill the deceased on 26 November 2019.

Mr A Nyamukondiwa submitted that the accused kicked deceased once on the face with a booted foot and to the defence there is nothing which has been proved by the state to show that there was an intention to commit murder or cause injuries on the deceased. He further submitted that the accused was ambushed, deceased attempted to attack the accused, accused responded by kicking the deceased, after kicking the deceased, accused fled from the scene. This chronology of events, as it was contended by the defence shows that the accused never formulated an intention to attack the deceased. Accused acted in self-defence and kicked deceased once. On the aspect of intention Mr Nyamukondiwa cited the case of S v Mugwanda and averred that accused did not set out to kill the deceased. Accused only intended to avert the imminent attack by the deceased. It was further submitted that accused was drunk and could have panicked. Mr Nyamukondiwa added that the single blow on deceased’s face caused all the injuries observed by Dr Marembo on the deceased. He cited the matter of State v Edward Gumbo.

It was also submitted by defence counsel that the accused acted in defence of self. To the defence there was an unlawful attack, upon the accused, the attack had commenced or imminent, and the action taken was necessary to avert the attack, and the means to avert the attack was reasonable. The defence urged the court to acquit the accused on the strength of these submissions.

On the other hand Mr M Musarurwa, submitted that the accused had the necessary intention to cause the death of deceased. He averred that soon after the accused had assaulted the deceased he approached Admire Tsikai and informed him that he had crushed the deceased’s head. Dr Marembo’s evidence was that it would not make medical sense to believe that injuries detected on the deceased were caused by one kick, according to the medical doctor the severe injuries on the head should have been caused by severe force. The state further submitted that the accused shows to be economic with the truth of what happened on the fateful day. Further Mr Musarurwa pointed out that accused admitted during cross-examination that he unlawfully caused the death of the deceased, he also admitted causing the injuries noted by the pathologist. The state rejected accused’s version that he kicked deceased once and that that  blow caused all the injuries sustained by the deceased. It is the state’s contention that the accused be found guilty of murder with actual intent.

APPLYING THE LAW TO THE FACTS

In the matter of S v Mugwanda (supra) the late Chidyausiku CJ pointed out as follows:

“For court to return a verdict of murder with actual intent, the court must be satisfied beyond reasonable doubt either that the accused desired to bring about the death of victim and succeeded with completing the purpose, or that while pursuing another objective the accused foresaw the death of his victim as a substantially certain result of that activity and proceeded regardless.”

It is common cause in this matter that accused is the only witness who knows what happened on the day in question. Hence from the approach applied by the Supreme Court in the S v Mugwanda (supra) where there is no direct evidence on the mens rea of the accused person and intention was not to kill the deceased but to assault him, mens rea of the accused has to be inferred from the circumstances of the case. The Learned Chief Justice in the Mugwanda case (supra) highlighted that the expression “intent to kill” does not at law necessarily entail that the accused should have applied his will to compassing the death of the deceased. It is sufficient if the accused subjectively foresaw the possibility of his conduct causing death and was reckless of such result.

Further the Learned Chief Justice added that the fact that objectively the accused ought reasonably to have foreseen such possibility is not sufficient. The distinction must be observed between what actually went on in the mind of an ordinary person in the position of the accused. In other words the distinction between subjective foresight and objectively foreseeing must not be obscured.

The Mugwanda case (supra) further clarified that subjective foresight like any other factual issue may be proved by inference to constitute proof beyond reasonable doubt the inference must be only one which can be reasonably be drawn. If it cannot be the only one which can reasonably be drawn, if there is reasonability that subjectively the accused did not foresee, even if he ought reasonably to have done so and even if he probably did so.

Accused had had a problem with the deceased concerning his restituting a goat. He told Admire that deceased had damaged his 2 doors and has become a pest to accused. On the day in question it was the accused who left Gandiya Shop first without telling deceased so because he did not know the whereabouts of the accused. Accused could have met deceased and confronted him about the goat and the doors if it wat the deceased who had ambushed accused behind a shrub, deceased should have attacked the accused and harmed him. Instead it is the deceased who was fatally injured. We reject accused’s fanciful allegation that deceased waylaid him. The deceased had no motive to waylay the accused if he had been paid his stolen goat, it was the accused who was aggrieved, and had a goal to settle with the deceased.

The accused also contended that he acted in defence of self. The testimony of the accused on what happened leading to the injury of the deceased is shrouded with intended concealment of the truth in our view. He wants the court to believe that he was surprisingly attacked and spontaneously reacted to the attack. The accused said he aimed at the nearest part of the body and that part happened to be the head. We dismiss the defence of self as being implausible in the circumstances. We also reject accused’s contention that he kicked deceased one on the head given the nature of the medical evidence of Dr S Marembo. We accept the submission made by Mr Musarurwa that a more lethal weapon was used by the accused which authored the fatal injuries of the deceased. We find it totally difficult to accept that one blow on the forehead would result in all three areas of fractures and laceration on the mouth. It could have assisted the accused to confide in the court to assist it on the issue of intention but the accused chose to be secretive and took advantage of the fact that no one witnesses the incident.

Having looked at the circumstances of this matter we are unable to agree with the state that the accused intended to kill the deceased, although he bragged about it later that night. He was reckless in the manner he attacked the deceased. He ought to have foreseen that his action would lead to the death of the deceased in assaulting deceased on the vulnerable part of the body resulting in the fatal injuries.

Accordingly accused is found guilty of contravening s 47 (1) (b), murder with constructive intent.

SENTENCE

In assessing the appropriate sentence the court will take into account that you are aged 54 years and that you are widower looking after two minor children. You are a first offender, you have been in remand from 28 November 2019 to the date of your conviction. Your family paid seven bovine beasts to the deceased’s family and these were the only cattle you had. You cooperated with the state during investigation and you admitted kicking the deceased on the head. You had been provoked by the deceased and the conviction of murder will haunt you for the rest of your life.

In aggravation you terminated the life of deceased who was 42 years of age. He has left his family with no one to fend for in this period of harsh economic hardships. The injuries suffered by the deceased on the head were severe and deceased died a painful death. For the whole night on 26 November and morning of 27 November 2019 deceased was in excruciating pain that eventually led to his death. You were the older of the two (you and deceased) you ought to have exercised restraint, you were the village chairman, you should have been a social example of good behaviour.

I have also considered case law authorities cited by both counsel in this matter and accordingly you are sentenced as follows:

13 years imprisonment.

National Prosecuting Authority, State’s legal practitioners

Tanaya Law Chambers, accused’s prodeo