The State v Cloudious Muchenje

### Preamble
1
HMT 96-20
CRB 37/20
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THE STATE

versus

CLOUDIOUS MUCHENJE

HIGH COURT OF ZIMBABWE

MWAYERA J

MUTARE 10, 11, 16, 19, 24 November and 15 December 2020

Criminal Trial

Assessors 1. Mr Rajah

2. Dr Sana

J. Chingwinyiso assisted by M Musarurwa, for the State

S Chikamhi, for the Accused

MWAYERA J: On 16 October 2016 at Zvimba Homestead Muchenje Village, Chief Chiendambuya, Inyati, Nyazura, the accused is alleged to have intentionally or with realisation caused the death of Anxious Chirombo by throwing a stone which struck him on the head thereby causing injuries from which the said Anxious Chirombo died. The deceased a 2 months old baby lost his life during a drunken brawl involving adults. The accused pleaded not guilty to the charge of murder as defined in s 47 of The Criminal Law (Codification and Reform) Act [Chapter 9:23].

The brief summary of the state case is outlined as follows. The deceased’s father one Talent Chirombo was at a beer drink with other villagers who included the accused. The accused slapped one Lovemore Gondo who was disabled accusing him of having stepped on his foot. Talent Chirombo the deceased’s father restrained the accused from further assaulting Lovemore Gondo and this did not go down well with the accused. A fight then erupted between Talent Chirombo and the accused. In the process accused picked stones and threw them at Talent Chirombo resulting in one of the stones striking the deceased who was strapped on his mother’s back. The mother had also rushed to the scene to try and restrain the fight between her husband and accused.

The accused in his defence denied having caused the deceased’s death at all. He at all material times did not see the mother and child in question. He admitted fighting with Talent Chirombo over a previous dispute between the two of them. The accused’s confirmed warned and cautioned statement was on more or less same lines with an additional ascertion that the child was sick. In the statement accused denied the murder charge and admitted to fighting Talent Chirombo. He did not see the wife and or child at the scene.

THE STATE CASE

The state adduced oral evidence from 3 witnesses and also formerly admitted by consent evidence of six witnesses. Talent Chirombo’s evidence is essentially that while at a beer drink accused assaulted one Lovemore Gondo. The witness intervened to stop the assault. It was then that the accused turned to him and they fought. Later during the fraca accused took stones and threw them in the direction of the witness. The witness ducked the stone and the second stone again missed him but it hit the witness’s child which was strapped to his mother’s back. The fight between the witness and accused only stopped when the child now deceased was injured. The witness gave his evidence in a clear and convincing manner as he narrated events of the fateful day. He was truthful and honest that the stones were directed at him and that which missed him hit the deceased.

Marjory Madhuku the wife of Talent Chirombo confirmed that accused and her husband were involved in a fight at a beer drink. She approached the scene with a view to restrain the two. Upon being advised by her husband to stay away from the scene since she was strapping a baby on her back she turned to retreat. It was at that stage that her child was struck on the head by a stone. According to the witness the child upon being hit on the head made an unusual sound as he cried. There is nothing to criticise about the manner the witness testified. We hold her as credible. Her evidence corroborated Talent Chirombo’s evidence.

Veronica Zvimba a fairly advanced old woman narrated how the accused and deceased’s father Talent Chirombo had an altercation and fought. During the fight the deceased’s mother approached while strapping a baby on her back. The baby was then struck on the head and sustained serious injuries. The witness advised that the child be rushed for medical attention considering the unusual crying on impact of the stone and also that upon being struck the baby defecated in its pants. To her the cry and defecation were a sign of serious injuries. The witness was quite clear that the deceased was struck by the accused during a scuffle between its father and accused. The witness had no reason to spice up her evidence. She just narrated what transpired per her observations. Generally the witness was candid and honest. Her version tallied with the state witnesses evidence. Paradzai Chisuko and Thomas Muchenje’s evidence was expunged from the record after all efforts to locate them failed. Lovemore Gondo’s evidence which was formerly admitted was essentially that accused and Talent Chirombo got involved in a fight after the accused had slapped him on the face for having stepped on him. The rest of the witnesses evidence was on common cause aspects of ferrying deceased to hospital were the deceased who was having breathing problems after sustaining a broken skull passed on. The police officers evidence was also not contentious and thus it was admitted by consent. The investigating officer Ronald Muderedzi and his team carried out investigations and attended the scene. A sketch plan was drawn per witnesses and accused’s indications. That the body of deceased was ferried for post mortem examination is not in dispute. The doctor who examined the deceased’s remains Doctor Tendayi Nyafeso observed a depression on the left side of the head, fractured parietal skull with brains exposed and concluded that cause of death was severe head injury. The doctor compiled a post mortem report which was tendered as exh 1 by consent. Further documentary exhibits were tendered in evidence and marked as exh 2, accused’s warned and cautioned statement and exh 3 the sketch plan.

DEFENCE CASE

The accused was the only witness in the defence case. He adopted his defence outline as evidence in chief. For the first time during the defence case the accused alluded to Talent Chirombo having pelted a stone from a catapult and that it is that stone that injured the deceased. The accused moved from part of his confirmed warned and cautioned statement wherein he stated that he never saw the deceased and his mother at the scene and suggested that the child was suffering from some ailment at their home and that could have caused his demise. Worthnoting is the fact that the doctor who examined deceased observed severe head injuries and not any ailment. The accused indirectly accepted that the deceased’s mother could have come to the scene but because of concentration in his fight with the father he might have failed to see them. The accused was exposed as having been aggressive on the day in question. He shortly after assaulting Loveness Gondo for stepping on him fought Talent Chirombo for restraining him. The accused was none committal in his versions as he prevaricated from one story to another as he sought to shift the use of stone to have been by the witness Talent Chirombo. The diverse versions of what transpired as outlined in his confirmed warned and cautioned statement, defence outline and defence case exposed accused as not being a candid witness. The accused was generally not consistent and we viewed him as an incredible and unreliable witness. However that did no cloud the common cause evidence that accused was fighting with the father of deceased who had restrained him from assaulting Lovemore Gondo. Also common cause is the fact that the deceased was struck during the scuffle between the accused and the father when the mother tried to intervene and restrain. Further is common cause that the child strapped to the mother’s back was injured when struck by a stone and she succumbed to the injuries occasioned.

ANALYSIS

From the totality of events considering the essential elements of murder namely unlawful and intentional killing of another the accused cannot be said to have set out with a goal to kill the deceased and proceeded to kill him. Also from the evidence on record the accused cannot be said to have assaulted the deceased with the realisation and possibility of real risk of death occurring but despite the realisation proceeded to assault the deceased. Both the actual and legal intention has not been proved beyond reasonable doubt, which is the standard of proof expected of the state.

It is however clear that the accused by throwing stones at the witness Talent Chirombo during a scuffle at a beer drink where there were many other patrons ought to have foreseen that death or harm might occur to the witness or others. The accused was negligent in the manner he threw stones at Talent Chirombo. That the stone missed Talent Chirombo and hit the 2 months old baby strapped to its mother’s back does not exonerate the accused from liability. The test for culpable homicide is objective as negligence can only be judged against acceptable behaviour standards. The question is simply whether a responsible person in the circumstances in which the accused found himself in would have realised that death may result from his conduct. If the answer is in the positive then the accused must be held liable for culpable homicide. See S v Moyo HB 85/10 and also S v Vhiriri HH 250/16.

In the present case the accused was aggressive and he slapped a disabled man one Loveomore Gondo. The witness Talent Chorombo set out to restrain and diffuse a volatile situation much to the chagrin of the accused. The accused and Talent Chirombo then engaged in a fight. This was at beer drink where the existence of moving patrons was common knowledge. Further this was at a home stead such that throwing stones can easily be viewed as negligent as the chances of a stone striking someone was high. The accused was aiming his blow at the witness Talent Chirombo in circumstances where one could not rule out chances of the missile harming or even killing another. As occurred in this case when the witness ducked the stone which was negligently thrown it struck the 2 months old baby strapped to its mothers’ back. The state in closing submissions insisted it proved murder but considering the evidence the intention to kill has not been proved beyond reasonable doubt. However that the accused was negligent in throwing stones at a homestead where there were many patrons is a clear show of negligence in circumstances where a reasonable man ought to have realised the dangers associated with such negligent conduct. The defence counsel in closing submissions despite the common cause evidence of the accused engaging in a fight with firstly Lovemore Gondo and then Talent Chirombo and the subsequent striking of the deceased urged the court to acquit the accused. This was despite the poor show by the accused under cross examination. The accused oscillated from saying the child, the deceased was ill at her own home to saying the mother and baby might have come but he did not see them. He even suggested the father Talent Chirombo accidentally pelted at the deceased. If the deceased and mother were not at the scene how then did the state witnesses like Mrs Zvimba see them there and how come the fight stopped soon after the child was injured. All these questions when viewed with the totality of the evidence and accused’s woven diverse versions exposed the defence as being foreign to the truth.

The accused’s actions on the fateful day expose him as having acted contrary to what a reasonable man in the same circumstances would have done. The accused was negligent when he threw stones at a beer drink thereby negligently causing the death of the deceased. The accused is accordingly found not guilty to murder and is acquitted but is found guilty of culpable homicide as defined in s 49 (a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

SENTENCE

The accused stands convicted of culpable homicide wherein a 2 months old baby lost his life at the hands of the accused who negligently threw stones at a homestead at which there were patrons drinking beer. We have considered all mitigatory and aggravatory factors submitted. The accused is a first offender. He is a family man with fairly heavy responsibilities. The accused has been in custody since December 2016, cumulatively 4 years to date of finalisation of the matter. The pre-trial incarceration with a serious murder charge hanging above one’s head is a traumatic period of suspense. The anxiety and trauma that goes with not knowing one’s fate cannot be understated. The accused will live with the stigma of having caused the death of an innocent 2 months old neighbour’s baby.

However in aggravating is the fact that accused stands convicted of a serious and prevalent offence. The accused by resorting to violence recklessly threw stones at a homestead disregarding the safety of all patrons at a beer drink and this had fatal consequences on the deceased. Considering the age of the deceased and severe injuries observed the deceased must have died a painful death. Further in aggravating the fact that accused was unrelenting on the day in question. He was physically violent with a disabled man Lovemore Gondo and when Talent Chirombo tried to restrain him he resisted with violence and started throwing missiles. His moral blameworthiness is high considering he was averse to restraint. The use of violence on the person or another is unacceptable as it is not only degrading but dehumanising. In this case the accused was reckless in throwing stones at a beer drink whereby he ended up negligently striking an innocent baby and causing his death. No one has a right to take away another’s life for the right to life is constitutionally guaranteed. The accused might have had his judgement affected by the fact that he might have partaken alcohol but certainly the courts should not treat with kid gloves people who commit crime and seek to hide behind being intoxicated. That would definitely lead to chaos in the community.

The offence is deserving of a custodial term. We are however alive to the four years that accused has been in custody and take it if the matter had also been expeditiously brought before the courts accused could have been almost through serving for the offence. It is with that in mind that we will impose a short prison term.

3 years imprisonment of which 1 year imprisonment is suspended for 5 years on condition accused does not within that period commit any offence involving the use of violence on the person of another for which he is sentenced to imprisonment without the option of a fine.

Mvere, Chikamhi & Mareyanadzo, Accused’s Legal Practitioners

National Prosecuting Authority, for the State