The State v Elijah Snsingo

### Preamble
1
HB 73/20
HC (CRB) 23/20
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THE STATE

Versus

ELIJAH SNSINGO

IN THE HIGH COURT OF ZIMBABWE

MOYO J with Assessors Mr T. E. Ndlovu & Mr N. Ndubiwa

HWANGE HIGH COURT 13 MARCH 2020

Criminal Trial

Mrs M. Cheda for the state

V. J. Mpofu for the accused

MOYO J:	The accused person faces a charge of murder, it being alleged that on the 28th of June 2019 he assaulted the deceased Larry Sibanda with a stone on the head causing his death.

The accused denies the charge.  The following where tendered into the court record;

the state summary

the defence outline

the accused’s confirmed warned and cautioned statement

the post mortem report

the 2 stones that were allegedly used in the commission of the offence

The state led viva voce evidence from Shamiso Mawarire and Sicelo Ndlovu.   Shamiso Mawarire told the court that she is a barmaid at Ntabazindna and that on the fateful day she saw deceased on the veranda of her shop and spoke to him because accused and his young men were making noise.  She told deceased to get into the shop so that they close themselves in there.  Accused and his boys were throwing stones indiscriminately.  She saw accused carrying 2 stones and he ran past her bar. That is when he hit the deceased with one of the stones behind the right ear, deceased staggered for 3 steps then fell.  After that accused came trying to attack the people at the back and she closed the door.  She said accused beat deceased when they were about 1m apart and that there was a source of light.  She also heard accused saying I want to kill you talking to deceased.

She was a fair witness because during cross examination she said she only saw accused hit deceased once and did not see the kicking.  If she was bent on nailing the accused she would say she also witnessed the kicking.

Sicelo Ndlovu told the court that deceased was his friend and that they were walking together when deceased was suddenly hit with a stone.  He then went behind and hid.  He said accused and his group threw stones and that they were fighting everyone.  According to him the source of light was the moon.  He said he was drunk.  Accused told the court that some people fought him over a mining pit that was highly productive in terms of gold ore.  He said at the time he struck deceased, he was fleeing the mob and when he picked a stone and threw it at deceased he meant to strike and scare the people who were attacking him so that they flee and then he would get an opportunity to hide.  In his evidence in chief he says deceased was caught up in a cross fire as the stone was thrown at accused’s attackers and not at deceased.  Deceased emerged as the stone was being thrown.  Asked under cross-examination at what stage he realised that he had struck the wrong person he said, “At the time I wanted to enter the passage that is when I found the deceased lying.”

He was further asked you noticed you had hit the wrong person and he said;

“A	-	Yes I did”

In his defence outline paragraph 5 he says, “The accused only became aware after his arrest of the fact that the deceased whom he had struck was not part of the gang that were attacking him but a mere customer who had been caught up in the fight”.  These are conflicting statements on a material point as clearly it matters as to who accused thought deceased was at the actual time.  In his evidence in chief and defence outline he also gives an impression that deceased was caught up in a cross fire when he was hit by a stone not aimed at him, but in his confirmed warned and cautioned statement he says;

“I admit the charge.  I had a misunderstanding with Big Three young men/boys.  I then saw the now deceased and assumed he was one of them because he emerged from their direction that is when I threw a stone and which struck him on the head and he fell down.  I picked a small stone and hit him slightly on the lower back whilst holding it.”

Clearly, accused’s version is not reliable because on one hand he wants this court to believe that he threw the stone without seeing the deceased at all, and on the other, he stated that he saw the deceased and mistook him for one of his attackers as stated in his confirmed warned and cautioned statement.  It is trite that a statement by the accused to the police, confirmed by a magistrate will be produced as evidence before court without any further ado.  The evidence contained in the confirmed warned and cautioned statement is thus accepted as the earlier and true version of the accused since the events were still fresh in his mind.  Such version is also consistent with the first state witness’s testimony who saw accused carrying 2 stones and confirming that deceased did not just emerge but that he was by the veranda when accused came and struck him.  This court therefore rejects the account given by the accused in court as it is clearly an after-thought.  The accused having been inconsistent in his version, this court is at liberty to throw it away and accept the evidence of the 1st state witness.  It is for these reasons that this court finds that accused threw the stone at the deceased whom he could see.  Per the witnesses’ accounts the accused and his boys threw stones indiscriminately and therefore where reckless.  It is reckless to throw stones indiscriminately at a business centre where a lot of people frequent.  The accused did not care about the consequences of his actions.

In throwing a stone in the nature of exhibit 5 at a man, the accused must have foreseen a real possibility of death but was reckless in his conduct.  It is for these reasons that accused will be found guilty of murder with constructive intent.

Sentence

Accused is convicted of murder.  He is a first offender.  He is a family man and a breadwinner.  He is 27 years old.  However, a life was unnecessarily lost in the most unfortunate circumstances.  Accused and his group behaved in a wayward manner resulting in the death of an innocent man.  I n a nutshell accused and his group were violent on the night in question leading to an unnecessary loss of life.  These courts frown at the loss of life through violence.  An appropriate sentence would be in the region of 15 years, however, accused has in his favour the fact that he has already spent almost a year in pre-trial incarceration. It is for these reasons that he will be sentenced to 14 years imprisonment.

National Prosecuting Authority, state’s legal practitioners

V. J. Mpofu & Associates, accused’s legal practitioners