State v Zekias Moyana

### Preamble
1
HMT 48-20
CRB 23/20
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STATE

versus

ZEKIAS MOYANA

HIGH COURT OF ZIMBABWE

MUZENDA J

MUTARE, 7 July 2020

Criminal Trial

ASSESSORS:  1. MR MAGOROKOSHO

2. DR SANA

Ms T.L Katsiru, for the state

Ms S. Muzandaka with K.G Muraicho, for the accused

MUZENDA J: Accused is charged with a crime of murder as defined in s 47 (1) (a) or (b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] it being alleged by the state that on 27 December 2018 and at Piki Business Centre, Chief Zimunya, Mutare the accused unlawfully caused the death of Courage Anesu Mutanga by assaulting him several times on the head and strangling him 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 Courage Anesu Mutanga died.

The accused pleaded not guilty to the charge and in his defence outline stated that he never at any time had the intention to kill the deceased. On the day in question, he (accused) arrived home at around 1900 hours coming from doing his piece jobs and was informed that his mother Mary Komichi had been assaulted by the deceased on her right hand after she had caught deceased stealing sugar cane in the garden. Accused proceeded to Piki Business Centre where he normally slept everyday as he had a room there. Upon arrival he spotted deceased sitting at Mutasa Shop Verandah and he summoned him to come where he was. He enquired from deceased why he had assaulted his mother yet he was the one who was wrong. Deceased was not regretful and challenged accused asking him what he was going to do about the incident of assault. The accused felt provoked and slapped deceased. Deceased retaliated resulting in a scuffle. Accused says that he grabbed the deceased by the biceps, pushed him violently resulting in deceased falling by his back, accused then retreated into the safety of his home. Later when accused emerged from his room, he noticed that deceased was still lying on the ground and was groaning as if having difficulties in breathing. Accused then resolved to seek help from Rodrick Mutasa and Courage Mwedzi. Accused feels that he had the moral obligation to confront the deceased on his actions of assaulting his mother after stealing from the garden. He is adamant that he did not forsee his actions leading to the death of the now deceased, the least charge he can be convicted of is culpable homicide.

STATE SUMMARY

According to the state summary the accused and the deceased were local villagers of Piki Village Chief Zimunya, Mutare. On 22 December 2018, Mary Komichi saw the deceased stealing sugarcane from her garden and confronted him. The deceased threw a stone at Mary Komichi which struck her on her right hand. Mary Komichi returned home and informed her relatives about what had happened at the garden. At around 2000 hours on the same day, accused met the deceased at Piki Business Centre, Chief Zimunya and started to assault him several times on the head with an unknown object. The accused strangled the deceased and he died. Rodrick Mutasa and Courage Mwedzi who were at Moyana Shops saw the accused person standing next to the deceased’s body which was lying down facing the ground. Rodrick Mutasa enquired as to what had happened and the accused informed him that he had assaulted the deceased. A post-mortem was done by Doctor Capetillo who concluded that the cause of death was as a result of multiple head injuries and strangulation.

STATE CASE

The state applied in terms of s 314 of The Criminal Procedure and Evidence Act [Chapter 9:07] to have the evidence of Courage Mwedzi, Paul Moyana, Future Matanga, Mary Komichi, Taonga Mvuto, George Sithole, Patson Mudimbwa, Shorayi Rupapa, Charles Sailesi, Fadzai Musvibe, Kenneth Munjanja, Rumbidzai Chivhanga, Yehlyn Iselias Capetille and Serrano Gomez to be admitted as not being in dispute and the defence counsel consented. Further by consent the post mortem report, the accused’s confirmed warned and cautioned statement, the photo album showing the deceased’s body and the injuries as well the sketch plan were produced and marked exh 1,2,3 and 4 respectively. The state led evidence from one witness Rodrick Mutasa aged 27 years and resides at Piki Vilage. He is employed at Moyana Shop as a shopkeeper. He knows both the deceased and accused as locals and accused as his neighbour. On the 22nd day of December 2018 at around 2000 hours after closing the shop, he went to his room to prepare supper. When he went outside to throw away used water, he met accused and greeted him. Accused called the witness to go and see what had happened to the deceased. The witness complied and upon getting to where deceased was, the witness saw deceased lying on the ground facing down with deceased’s molars in contact with the earth. He called deceased’s name but got no response. He went on to shake deceased’s body but it was lifeless. He decided to go to the shops to inform Courage Mwedzi about what he had seen. Courage Mwedzi proceeded to the scene and asked accused what had transpired. He was informed by the accused that he had assaulted deceased because deceased had stoned his mother. The witness proposed that Courage Mwedzi get the commuter omnibus to ferry deceased to the clinic for he thought that deceased was unconscious after fainting. Courage Mwedzi left the scene and when he returned he was in company of other people and when the accused saw these people approaching the scene moved away from the scene. The witness did not observe any visible injuries on the deceased that night. He only observed froth on the deceased’s mouth the following morning upon the arrival of the police at the scene. The state then closed its case.

The accused testified and adopted his defence outline to form part of his evidence in chief. He is aged 33 years old, has two minor children. Asked by his counsel where he fought the deceased he told the court that after he slapped the deceased, accused retreated towards his residence and deceased followed him, he then grabbed deceased, held him by the biceps and shook and slapped him, deceased fell by his back. Accused told the court that when deceased fell he (accused) entered his room, he went on to repeat the contents of his defence outline. When he came out of the house at a later stage he ferried deceased from where he had collapsed to the point where he was found lying dead by the police. Accused said that he remained at the scene with Rodrick Mutasa, he left the scene after he noticed Courage Mwedzi approaching with a group of people, he felt terrified and went away.

During cross examination by the state, he stated that the attack of his mother provoked him. He also stated further that in terms of his confirmed warned and cautioned statement, he admitted killing the deceased because he thought that he was disciplining him. He assaulted deceased three times. He denies strangling the deceased. When accused was assaulting the deceased, the latter asked him why accused was assaulting him, accused thought that deceased was intoxicated for he smelt alcohol breath from him. The accused also brought a new dimension to his defence when he added that deceased fell on a rocky surface which could have caused injuries in his head. He did not agree with the post-mortem report which shows that deceased died due to multiple head injuries. The accused could not explain the injuries found on the deceased’s genitalia as well as at the back where blood was fresh.

Most facts are common cause in this matter. Accused’s mother was assaulted by the deceased and that did not go down well unto the accused. Accused admits assaulting the deceased three times on the face, shook him after grabbing his biceps. He also admits felling him and that after falling deceased never recovered. In his confirmed warned and cautioned statement accused admits killing the deceased. The post mortem report clearly shows that deceased died due to multiple injuries on the head and strangulation. The accused denies strangling the deceased. We are satisfied that accused may be deliberatively concealing this evidence to exonerate himself. He tries to argue that deceased had a history of fits and he never mentioned this version to the police nor in his defence outline. Where the medical expert make a conclusion about the cause of death this court is bound to accept it as the correct scientific position. The person who got into a physical contact with deceased on 22 December 2018 is the accused, he grabbed him and shook deceased, we have no hesitation to conclude that the accused also strangled the deceased to his death, that is why froth was detected on his mouth. Accused did not fair well during cross examination and having concluded that the accused strangled deceased, the next question is did he have actual intention? The conduct of the accused after deceased fell to the ground places doubts on the question of intention to kill. He sought help from the third parties to assist the deceased albeit too late. He remained at the scene for some considerable period of time discussing with Rodrick Mutasa on how they were going to help the deceased.

We are satisfied that the accused ought to have realised that there was a real risk or possibility that his conduct may cause death and continues to engage in that conduct despite the risk or possibility. Accused is found guilty of murder with constructive intent contravention of s 47 (1) (b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

In assessing the appropriate sentence the court will take into account that the accused is aged 33 years and a first offender. He looks after two minor children, the wife left the home after the accused committed the offence. Accused’s parents paid a bovine beast to the chief. Accused has been in custody for a period of a year. However after the accused committed this offence he ran away and was only arrested after a period of six months. In aggravation a young life of 16 years was killed. The accused should have exercised restraint being an older person to the deceased. Although the behaviour of the deceased was rather strange he did not deserve to lose his life, accused should have reported the matter to the police. He took the law into his own hands to apply corporal punishment on the juvenile. Accused’s moral blameworthiness is equally high. However accused tried to help the deceased after the event though it could not help him survive. Accordingly accused is sentenced as follows.

15 years imprisonment.

National Prosecuting Authority, state’s legal practitioners

Mugadza, Chinzamba and Partners, accused’s legal practitioners - pro-deo