State v Shadreck Tagarira and Israel Tagarira

### Preamble
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HMT 95-20
CRB 44/20
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STATE

Versus

SHADRECK TAGARIRA

And

ISRAEL TAGARIRA

HIGH COURT OF ZIMBABWE

MWAYERA AND MUZENDA J

MUTARE, 24 November 2020 and 4 December 2020

ASSESSORS:  1. Mr Mudzinge

2. Mr Chagonda

Criminal Appeal

Ms T.L Katsiru, for the State

Mr M Hungwe, for First Accused

Ms T Gutuza, for Second Accused

MUZENDA J: The two accused are facing Murder as defined in s 47 (1) (a) (b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The State alleges that on 25 December 2007 and at Mharadzano Night Club, Marenga, Buhera, the two accused together with Moses Mpofu and Motion Chenzira, all and each or one or more of them unlawfully caused the death of Samuel Chinyama by striking him on the head with a half brick, stabbing him on the chest and assaulting him with fists and booted feet all over his body thereby causing him injuries from which the said Samuel Chinyama died.

Both accused pleaded Not Guilty to the charges. The first accused in his defence outline states that he will adhere to his warned and cautioned statement. He further states that he got involved by trying to restrain Philimon Manzvanda and Sam Ngirazi from fighting, then some unidentified people approached first accused and assaulted him on the neck and shoulder and knocked him unconscious.

First accused adds that he later on gained consciousness and staggered home wearing trousers but without a shirt. On his way home he met Moses Mpofu, Israel Tagarira, Claudius Tagarira and Believe Tagarira who were in Moses’ motor vehicle to whom first accused advised that he had been assaulted at Marenga shops. They told first accused to go back with them to understand what had happened.

First accused further states that on getting to Marenga there was commotion and they randomly alighted from Moses’ motor vehicle and went their ways. First accused did not go with others but remained by the motor vehicle outside the fence, still in pain and agony from previous assaults. First accused did not witness events that took place inside the fence but in a few minutes, Moses returned to the motor vehicle saying “I do not want to carry anyone in my motor vehicle. Motion has stabbed someone with a knife”. First accused heard people along the way confessing what they had done to the deceased. One saying he had hit the deceased with a brick and Motion saying he finished with deceased by stabbing him with the knife. That is when first accused learnt that someone had been killed on the day at Marenga. How deceased was killed, first accused states that he did not witness. First accused denies assaulting anyone on that day, and denies hitting deceased with a brick.

The second accused denies assaulting the deceased in any way. Second accused admits that he accompanied Moses Mpofu to the latter’s shop in Buhera. Along the way they met first accused who appeared inebriated to second accused. First accused told him that he had been assaulted, second accused and other passengers laughed it off assuming that first accused was just but joking.

Moses Mpofu decided that it was late for him to proceed to Muchemwa and all proceeded to Marenga Business Centre. Second accused adds that upon arrival at Marenga Business Centre, all passengers, with his exception disembarked the vehicle and went to Mharadzano Night Club. Second accused was nursing a swollen left leg. He later followed them when he got to the entrance of the Night Club, he perceived a group of rowdy people pelting bricks at each other.

Second accused states further that he saw the now deceased in a bowing stance and Motion Chenzira retreating from deceased’s direction. Motion was holding a knife and had blood on his hands. Second accused heard Moses Mpofu exclaiming that the now deceased had been stabbed. Moses Mpofu and second accused decided to leave the scene and went to Muchemwa.

On the way to Muchemwa they met Dipaniel Hwata who was running in the direction of the bar and advised him of what had happened to the deceased. All the while Dipaniel was shouting that Moses had shot the now deceased with a gun. Second accused and Moses later resolved to report the matter to Murambinda Police. Later that night second accused saw Moses Mpofu in the company of the police details at his place. He was surprised when he was arrested for the murder of the now deceased the following day. He denies causing the death of the now deceased.

Background of the matter

The summary of the State case, Annexure “A”, shows that on 25 December 2007 at around 1600 hours the deceased was at Mharadzano Night Club, Marenga Business Centre, Buhera, in the company of his brother Peter Mushure partaking Chibuku beer. The now deceased then saw first accused fighting Philimon Mharuyadziya. Deceased approached the two in a bid to refrain them. In the process the deceased slapped Philimon and head-butted first accused. First accused fell and became unconscious. After a while first accused regained consciousness and left the bar.

A misunderstanding occurred between the now deceased and Motion Chenzira and they started fighting and later stopped on their own. A while later first accused returned to Mharadzano Night Club in the company of second accused, Moses Mpofu and Motion Chenzira who joined them as the former entered the Night Club. The group removed their shirts and advanced towards the now deceased who started removing his shirt and sunglasses.

The first accused then struck the now deceased on the head with a half brick which broke into three pieces. Motion Chenzira drew a silver knife and stabbed the deceased in the chest, the now deceased collapsed and became unconscious. Whilst now deceased was lying on the ground unconscious, both accused and their outstanding colleagues started to assault deceased with fists and booted feet all over his body.

After the incident, Moses Mpofu went to Murambinda Police Station to report the case. Doctor B.N Mutseyekwa examined the remains of the deceased and concluded that the deceased’s death was due to head injuries and haermophothorax.

State Case

The State produced the post-mortem report No. 203251by consent of both counsel, exh 1 which shows that deceased at the time of his death was 27 years old, with a weight of 100kg. The Doctor noted the following injuries:-

a depressed skull fracture on the forehead.

severe bruising and haematoma on the back.

stab wound on the chest.

(iv)   	blood filled chest.

The State also produced the confirmed warned and cautioned statement of first accused and the salient potion of the English version reads:

“…….what I know is that I found Philimon Manzvanda and Sam Ngirazi having a mock boxing and I started refraining them. Philimon Manzvanda, who by then was drunk started fighting against me. During that time it is when two men whom I believe are Samuel Chinyama (deceased) and Peter Mushure came and started insulting us saying, “You young girls what are you doing?” I then told them that I was trying to refrain the boys from fighting but at that moment I did not know how I fell to the ground but I was told that somebody tripped me and later assaulted me thrice with a boot on the neck and on the right shoulder and I fainted. When I woke up I tried to proceed home and then met Moses Mpofu, Israel Tagarira, Claudius Tagarira, Wellington Tagarira and Believe Tagarira in a vehicle. They asked me on what had transpired as they saw me without a shirt. I told them that I had been assaulted at Mharadzano Night Club and they angrily headed to the Night Club to see those who had assaulted me. At the Night Club, there was commotion of Motion Chenzira and Samuel Chinyama……”

The State also produced second accused’s confirmed warned and cautioned statement by consent of second accused’s counsel, exh 3. The relevant extract of the statement reads:

“……What happened is that on the day in question, I left home in the company of Moses Mpofu, Claudius Tagarira, Wellington Tagarira and Believe Tagarira and three other children heading to Moses Mpofu’s shop in Buhera. When we were about to get to Marenga Business Centre, we met Shadreck Tagarira who was already there. He was not wearing a shirt and he was at the middle of the road. Moses Mpofu stopped the car so that he will get into the car. Shadreck Tagarira told us that he had been assaulted but he did not tell us people who had assaulted him. At Marenga, some of the people who were in the vehicle disembarked but I remained because my legs were painful. Later, I then followed my colleagues to Mharadzano Night Club. When I got there I saw Samuel Chinyama being struck with bricks but I could not identify the people who were throwing the bricks. At that time I saw Motion Chenzira holding a knife and he had blood on his hands. I hid so that he will not see me. I did not see him stabbing Samuel Chinyama…... I accompanied the police to Motion Chenzira’s place where they were told about Shadreck Tagarira. I then went to the police the following morning on my own and got arrested.”

Exhibit 4 are three pieces of broken half home-made brick and exh 5 is the certificate of weight indicating that the three pieces weigh 3,25kgs.

Exhibit 6 is the sketch plan showing the details of the scene, Mharadzano Night Club, and the indications made by the accused and the witnesses to the police details. Of importance are the following indications:

Point K: indicates the position where Samuel Chinyama, now deceased was standing as accused Moses Mpofu, Shadreck Tagarira, Israel Tagarira and Motion Chenzira advanced to him. It also indicates the position where Viola Mukuturi saw Motion Chenzira assaulting Samuel Chinyama with (clenched) fists and head butting him once on the chest. It is the position where Viola Mukuturi again saw Shadreck Tagarira kicking Samuel Chinyama on the chest as indicated to Sergeant Seremani and witnessed by Detective Sergeant Garandi.

Point I: indicates the position where Dipaniel Hwata saw Motion Chenzira stabbing Samuel Chinyama once in the chest whilst at the same time seeing Israel Tagarira kicking Samuel Chinyama with a booted foot all over the body as Samuel Chinyama lay on the ground helplessly as indicated to Sargent Seremani.

Point K: indicates the position where Patson Bhobho was standing when Shadreck Tagarira, Israel Tagarira, Moses and Motion Chenzira entered the premises and advancing to Samuel Chinyama who was at point L

Point H: indicates the position where Israel Tagarira first saw Samuel Chinyama being hit with stones/ half bricks as indicated to sergeant Seremani.

Point A: indicates the position where motion Chenzira met Philimon Tagarira informing him that Shadreck Tagarira was being assaulted by the now deceased, Samuel Chinyama inside Mharadzano Night Club premises as indicated to Sergeant Seremani.

Point B: indicates the position where Motion Chenzira found Shadreck Tagarira being assaulted by Samuel Chinyama as indicated to sergeant Seremani.

Point C: indicates the position where Motion Chenzira saw Samuel Chinyama lying on the ground being hit with stones by co-accused Moses Mpofu, Israel Tagarira and Shadreck Tagarira as indicated to sergeant Seremani.

The defence consented further to the evidence of the following witnesses evidence in terms of s.314 of the Criminal Procedure and Evidence Act, [Chapter9:07 ] Mr Patson Bhobho was employed  at Mharadzano Night  Club he knew both deceased and the accused . On 25 December 2007 he was assisting Viola Mukuturi selling beer. He saw the now deceased and Motion Chenzira having an argument as to why the now deceased had stopped the fight between first accused and Philimon Mharuyadziya. The melee led to a fight which later ceased. Moments later, Patson Bhobho saw first and second accused together with Moses Mpofu disembarking from Moses Mpofu’s car and started to remove their shirts and Motion Chenzira joined them, all four approached the deceased who was sitting with his brother Peter Mushure.

The witness rushed back into the Night Club, when he reappeared at the scene, he saw Peter Mushure and the deceased lying unconscious. He observed that deceased had a deep cut on the chest and a wound on the left side of his forehead. Peter Mushure had a cut on the forehead, back and arm and was bleeding as well. The injured brothers were later ferried to Murambinda Hospital.

Inspector Hudson Katanho of the Zimbabwe Republic Police then based at Buhera Police Station’s evidence relates to the injuries he observed on the deceased and Peter Mushure and that he is the one who took both injured brothers to Murambinda Hospital.

Constable Christopher Tarenyika witnessed the accused making indications at Mharadzano Night Club. Sergeant Seremani the investigating officer invited both accused to make their statements under warn and caution, later he invited them to make indications and both accused did. The remaining evidence of Kwirirayi Tarukwashu, Dr M Glenshaw and Dr B N Mutseyekwa is equally not in dispute and does not need to be repeated herein.

Peter Mushure gave oral evidence. He was with the deceased on the day in question. He saw two men fighting and deceased intervened in a bid to restrain them. The two fighting were Philimon and Motion Chenzira. One of the two pugilists was curious to assault the deceased. After some time the witness saw a motor vehicle approaching, the car had four occupants, Moses Mpofu, first accused and second accused and Motion Chenzira. All the four had no shirts. They all approached deceased who was seated with the witness. Second accused picked a half brick and threw it at deceased, hitting him on the left temporal region on the head. First accused also picked up a brick and hit the deceased on the occipital region. Deceased bent and whilst in that position Motion Chenzira stabbed deceased on the chest and on the collar. After stabbing deceased, Motion Chenzira pointed at the witness as being one of them. Peter Mushure was stabbed on the left wrist, occipital region and the back. The witness became feeble and lost consciousness.

The second State witness was Ms Kudzai Chinyama. On 25 December 2007 at around 1500-1600 hours she was selling green cobs at Mharadzano Night Club, Marenga Business Centre. She saw deceased in the company of Peter Mushure. She further saw two people fighting and deceased approached the two trying to restrain them. One of the pugilist tried to fight the deceased but deceased overpowered him and he ran out of the bar. Later they returned being four in number and all four had no shirts on from the four, the witness knows three, first, second accused and Moses Mpofu.

All the four approached deceased who reacted by stating that he was not there to fight them. In the process of those utterances, deceased was struck with a half brick on the frontal temporal region by second accused. Then Moses Mpofu stabbed the now deceased on the side of his chest. Then the other three were assaulting deceased using stones, bricks, booted feet and fists. She also saw one of the group stabbing Peter Mushure and when the car was leaving she heard the occupants shouting that deceased had gone to heaven.

The State witnesses were thoroughly, cross-examined by the defence and Peter Mushure could not explain as to who struck the deceased first between first and second accused. At first he stated that it was first accused and later changed to state that it was second accused. The second State witness also stated the person who stabbed the deceased was Moses Mpofu and not Motion Chenzira. These are the contradictions that would be significant but the court will not consider them material. All the State witnesses, as summarised above are in agreement that second accused struck the deceased on the frontal area and first accused also struck deceased at the back of the deceased’s head. The participation of both accused in the crime related to that evidence all State witness corroborated one another and they gave evidence remarkably well given the time lapse between the date when the offence was committed and the date of trial. We accept the State evidence on this aspect as credible. The two State witnesses, Peter Mushure and Kudzai Chinyama explained the contradictions and the court accepts their explanations. In any case the confirmed warned and cautioned statements of both accused and the indications captured on exh 6, the sketch plan vouchsafes the State witnesses in a material way.

Both accused gave evidence under oath. Both adopted what is contained in their defence outline and opted to add some extra information. First accused could not explain the marked discrepancy between his confirmed extra- curial statement, his defence outline and evidence in chief. It remains unclear as to whether the first accused only told second accused as to his assault at the Night Club or that he told the occupants of the car that included Moses Mpofu. In his defence outline as well as extra- curial statement it is clear that he told all the occupants to go to Mharadzano Night Club to find out why first accused had been assaulted. The first accused went to great pain to explain these grey areas under cross-examination. He could not explain why occupants of the motor vehicle would remove their shirts and go to the Night Club to confront the deceased. First accused could not explain why witnesses would lie that he was at the scene pelting deceased with the stones and bricks.

On the other hand the second accused also struggled to explain why he would not assist the deceased who was his in law when he realised that he had been stabbed. Second accused failed to explain why he would not ask Moses Mpofu to ferry deceased to the hospital, serve to go and inform second accused’s wife who was deceased’s sister. The second accused could not satisfactorily explain the discrepancies between his defence outline, his confirmed statement to the police and evidence in chief. He could not explain why the State witness would lie against him.

Both accused faired poorly on the witness box and they deliberately tried to down play their involvement in the matter and ended up lying in order to exculpate themselves. We found both of them to be untruthful.

Submission by the parties

Ms Katsiru for the State submitted that both accused (in the company of those who are still at large) acted in common purpose and are liable for the death of the deceased. She went on to cite SI 196A of the Criminal Law (Codification and Reform) Act [Chapter 9:23] which deals with the doctrine of common purpose. Both accused were present at the scene and directly participated in the assaulting of the deceased, both also hit the deceased with a brick on the head. State counsel cited the case of S v Lloyd Mukuzi and Another. And S v John Chiguyo and 3 Others  and concluded that both accused had the mens rea to commit murder. The State is of the view that both accused must be found guilty of murder with constructive intent.

The second accused’s counsel   Ms Gutuza submitted that second accused does not have prove his innocence, the State bears the onus to prove its case beyond reasonable doubt that second accused caused the death of the now deceased intending to do so or realising that there is real risk or possibility that his conduct may cause death, continued to engage in the conduct.

Counsel for second accused contends that the evidence led in court by the State creates uncertainty as to the actual events of the day. State witnesses’ versions differ. To the contrary, it was further submitted, second accused faired well in his defence and stuck to his extra-curial statements. Where he contradicted himself he explained why. Counsel urged the court to find that second accused’s story to be reasonably possibly true and that he be acquitted. She referred the court to the matter of S v Makanyanga and also S v Manzanza in which cases it was emphasised that where it appears that an accused’s version is reasonably possibly true that might be true the accused ought to be granted the benefit of doubt and no onus rests on the accused to convince court of truth of any explanation he gives. Second accused strongly attacked the evidence of the State witnesses more particularly on the variance between their evidence in chief and statements given to the police. Second accused further added that there is no link between him and the crime though he admits being at the scene. The court was urged to be alive that almost all the State witnesses are relatives of the deceased and hence are naturally aggrieved by his unfortunate death and since Motion Chenzira was not located by the State, the relatives chose to lay the blame on the two accused.  It was further conceded on behalf of the second accused that if it is established that second accused was untruthful, he should not be necessarily guilty.

The conviction of second accused should only follow if it is shown that he played an active role in the commission of the murder, it was submitted. To the second accused, it was not shown that he struck deceased with a brick. If there is no proof that the second accused intended to cause the death of the deceased, then there is no room for applying the doctrine of common purpose, it was contended on behalf of the second accused. In this case the second accused was not given a specific mandate to do the specific deed nor did he give anyone to do that task. It was prayed that the court acquit the second accused.

First accused’s counsel submitted that second accused’s evidence did not implicate him but corroborated his version. First accused denies throwing a brick or stone to the deceased. Given the findings of the doctor captured on the post mortem report, first accused further contend that he did not cause the death of the now deceased. Assuming that first accused hit deceased on the head with a brick the Doctor’s report exonerated him because the skull was not damaged  at the back it was submitted. Hence whatever the State witnesses say, none of the two accused caused the death of the now deceased, it was argued on behalf of the first accused.

First accused impugned gravely the contradictory and inconsistent evidence of Peter Mushure and Kudzai Chinyama and urged the court to disregard their evidence for it will be unsafe tor the court to convict on basis of their evidence. First accused added that the State did not manage to prove the essential elements of murder beyond reasonable doubt.

On the question of the first accused’s liability premised on the doctrine of common purpose, first accused further submitted that the actual perpetrators Motion Chenzira was not arraigned before the court so the doctrine should not be applied. In any case it was further argued on behalf of first accused, first accused did not know that Motion Chenzira had a knife, first accused did not enter into the night club nor did he associate himself with the fight and the requirements of s 196 of Criminal Law (Codification and Reform) Act, [Chapter 9:23] was not met and the first accused should be accorded the benefit of the doubt and be acquitted. It was added by first accused’s counsel that it would be a sad day if first accused is convicted of murder on the basis led by the State.

Applying law to the facts before the court

The following aspects are in our view not in dispute.

Accused and deceased’s families are known to each other and reside in the same locality sharing the same shopping centre at Marenga in Buhera.

First and second accused are brothers, though it is not clear as to whether they are siblings or cousins, but share the same surname.

Second accused was married to deceased’s sister.

On 25 December 2007 deceased Samuel Chinyama, Peter Mushure, (who are also brothers) first accused and Philimon Mharuyadziya were all at Mharadzano Night Club, Marenga Business centre at around 1600 hours.

First accused and Philimon Mharuyadziya had a fight and deceased stopped the fight. Later first accused was not amused by the conduct of deceased and they fought. Motion Chenzira also fought with deceased and the fight ended uneventfully.

After first accused left the bar/night club, he met second accused, Moses Mpofu and came back to Mharadzano Night Club. When they entered the night club they had no shirts on them.

Upon entry into the night club they advanced towards where deceased was. Deceased stood up and told the four that he was not interested in fighting them.

One of the accused picked up a brick and pelted it at the deceased hitting him on the forehead and breaking into three pieces.

Motion Chenzira then stabbed the deceased using a knife. Peter Mushure was also stabbed whilst the deceased was on the ground bricks and stoned were pelted on him. Both deceased and Peter Mushure lost consciousness and bled profusely. Both were taken to Murambinda Hospital where now deceased was declared dead. Fortunately Peter Mushure later on fully recovered after a couple of months in hospital.

The question for determination is whether both accused are liable for the death of the now deceased?

First accused in his confirmed warned and cautioned statement admits fighting Philemon and believes that deceased insulted him. According to his own statement he met Moses Mpofu and others who included second accused. He told them that he had been assaulted and the occupants of the car angrily headed to the club “to see those who had assaulted” him.

According to Peter Mushure after first accused had had a misunderstanding with the now deceased, he returned a while later in the company of second accused, Moses Mpofu and Motion without shirts. Deceased was then struck on the head with a half brick by second accused and first accused also assaulted deceased using a brick at the back of the head.

Kudzai Chinyama’s evidence is to the effect that she saw both accused in the company of Moses Mpofu and all had no shirts. Later Motion Chenzira also with no shirt on joined them. All four approached now deceased and second accused struck deceased with a half brick on the frontal region of the head. She later observed first accused using bricks/stones, fists and boots.

Patson Bhobho’s admitted evidence also confirms that he saw both accused together with Moses Mpofu and started removing their shirts, Motion Chenzira joined them before  all four approached the  now deceased.

The above synopsis of evidence summarily show that first accused having been assaulted by the deceased in the night club, met his relatives and agreed to go back and revenge. The agreed purpose by all the four was to settle the assault by beating deceased. Upon arrival at the night club all four removed their shirts in anticipation of a fight in revenge against the deceased. Those present at the scene yelled out Moses Mpofu’s alias, calling him “Hardy, Hardy” upon the arrival of the 3, first, second accused and Moses Mpofu.

We have no doubt that the first accused instigated the revenge and was at the centre of the plan to go and attack the now deceased. The fact that first accused told the occupants of Moses Mpofu’s vehicle about the assault in his confirmed statement and corroborated by second accused’s confirmed warned and cautioned statement which he attempted to disown in court.

Exhibit 6, which was produced by consent of first accused’s counsel further consolidates the position about the presence of first accused at the scene. The indications of Viola Mukuturi, Patson Bhobho and Motion Chenzira place the first accused right at the scene of the crime and explains what he did. Viola Mukuturi clearly indicated to the police point L where first accused, second accused, Moses Mpofu and Motion Chenzira advanced to where deceased was. It is also the point where the witness saw first accused kicking the deceased once on the chest. Point K where Patson Bhobho was when he saw first, second accused Moses Mpofu and Motion Chenzira entering the premises and advancing towards the deceased. Point C indicates where Motion Chenzira was when he saw deceased lying being hit with stones by Moses Mpofu, second and first accused.

The above evidence was not controverted by first accused at all in his defence outline nor evidence in chief. We accept it as the truth. We have no hesitation to reject his version in its totality to the effect that he stood by Moses Mpofu’s car and never entered the night club. First accused planned the revenge, associated with his co-perpetrators and took part in the assaulting of the deceased using stones or bricks and booted foot.

As regards the second accused, Peter Mushure and Kudzai Chinyama told the court that he is the one who came back after a while in the company of first accused, Moses Mpofu and Motion Chenzira. He was the one who hit the deceased using a brick on the head which immobilised deceased and provided Motion Chenzira with an opportunity to stab him. The indications exh 6, of Viola Mukuturi, Dipaniel Hwata, Patson Bhobho and Motion Chenzira equally and squarely place second accused at the scene and also specifically highlights the role played by the second accused. He attempted to change the contents of his warned and cautioned statement stating that first accused only confided in him alone about the assault but does not explain why he is changing the original statement. We are satisfied that the contents of his cautioned statement to the police, holds the truth that first accused informed the occupants of the car about the assault by deceased, and all resorted to go and revenge the assault. We find and conclude that second accused in collusion with first accused agreed to go and attack deceased in revenge, second accused associated and heavily participated in the assaulting of deceased.

In the matter of S v Lloyd Mukuzi and Anor HH577/17, Hungwe J (as he then was) clearly dealt with s 196 A (2) of the Criminal Law (Codification and Reform) Act, [Chapter 9:23]

“…. Where accused persons act together to commit an assault but they realise that there is a real risk that the assault may result in death of their victim, they both are culpably liable. It is the reckless disregard of the risk associated with their conduct which provide the necessary mens rea in a specific crime like murder.”

We are thus satisfied that both accused were present with Motion Chenzira while the victim was still alive before mortal wounds were inflicted (s 196 (8) of the Criminal Penal Code, cited above). Both accused planned to revenge the assault on first accused prior to the stabbing of the now deceased. Second accused delivered the first blow, Motion Chenzira stabbed deceased, first accused hit deceased with a brick and later on kicked on the chest region when deceased was already severely injured and helpless. Both accused were reckless as to their conducts and unavoidably their assault on the head of deceased using bricks and stones equally contributed to the death of the deceased as per the doctor’s findings. We reject first accused’s argument that the assault on the back of the deceased’s head did not contribute to the death of the deceased. The assault resulted in head injuries. Both accused are found guilty of Murder with constructive intent in contravention of s 47 (1) (b) of the Code.

SENTENCE

In assessing the appropriate sentence the court will take into account the submissions made on behalf of both accused by their defence counsel. They are both first offenders with family responsibilities. They have been waiting for finalisation of this matter for a period close to thirteen (13) years and that creates a lot of anxiety on the part of the accused. The conviction of murder will also hang over their heads for the rest of their lives. I will take into account that accused may have partaken alcohol on the day in question which may have impaired their judgment.

However in aggravation a young life was lost. At first deceased’s idea was to restrain the fight which was a noble idea. Taking revenge must be discouraged, first accused should have reported the assault to the police than resorting to gangsterism which led to the death of the deceased. This was a thanks-giving day of Christmas and someone loses life, society abhors unnecessary loss of life moreso where lethal weapons like a knife, stones and bricks are used to hit the head and chest which are vulnerable parts of the human body. The same violence was extended to deceased’s brother who is lucky to be alive. The moral blameworthiness of both accused is very high.

Having taken into account all these factors especially the date of commission of the offence 2007, if you had been afforded an early trial date, you would have served the bulk of your sentence. As a result you are sentenced as follows:

10 years imprisonment of which 4 years imprisonment are suspended for 5 years on condition within that period accused is not convicted of an offence in which violence is involved to which upon conviction accused is sentenced to imprisonment without an option of a fine.

National Prosecuting Authority, for the State

Hungwe & Partners, 1st accused’s legal practitioners

Bere Brothers, 2nd accused’s legal practitioners