State v Bernard Mushonga

### Preamble

1

HH 25-18

CRB No. 102/17

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STATE

versus

BERNARD MUSHONGA

HIGH COURT OF ZIMBABWE

HUNGWE J.

MUTARE, 24 & 30 October 2017; 1 November 2017

ASSESSORS: (1) Mr Rajah

(2) Mr Chagonda

Criminal Trial

J. Chingwinyiso, for the State

B. Majamanda & T. Jakazi, for the accused

HUNGWE J: The accused faces a charge of murder arising from the events of 8th April 2017, at Nyavanhu Village, Chief Tandi in Rusape. It is alleged that on that day, the accused, with intent to kill or realizing 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, unlawfully caused the death of McDonald Kasinje by assaulting him with clenched fists on the face several times and kicking him with booted feet on the face, head and chest. He pleaded not guilty to the charge.

In his defence outline, the accused states that the deceased, who is his step-father, had partaken of some intoxicating liquor that morning. He then began to shout at him leading to a verbal altercation between him and the deceased. This verbal altercation degenerated into a physical confrontation as the deceased tried to strike him on the head with a plank. In order to prevent further attacks on his person by the deceased, the accused told the court that he struck the deceased three times on his face using clenched fists. He was struck on the hand after partially avoiding the head blow. The deceased attempted to strike him further, but because he used force to block that attempt, the deceased fell over. The deceased lost consciousness after hitting his head on the ground.

He then uplifted the deceased and conveyed him into his bedroom. The deceased fell unconscious and this was prior to him carrying him into the bedroom.

The oral evidence led from the young witness, Innocent Pendekali, established the following facts:-

The accused expressed his desire to assault the deceased to this young man. There had been no exchange of any insult of any kind when he stated his desire to assault the deceased.

When the deceased came out of his bedroom hut, the accused accosted him, grabbed him by the collar and began to assault the old man using clenched fists. The old man did not retaliate or take any evasive action.

The accused then tripped the old man to the ground. As he lay on the ground, the assault continued. The accused continued to kick the deceased with his booted feet in the face, around his head and in the chest.

This assault continued despite the deceased’s call to Innocent Pendekali to go and summon his brothers. As a result of this persistent assault to the deceased, the deceased lost consciousness. It was only then that the accused desisted from further assaulting the deceased.

The accused then dragged the old victim by his hand into his bedroom where he abandoned him.

The commotion attracted the attention of neighbours who quickly attended to the scene, As a result, the deceased was conveyed to Rusape General Hospital in his unconscious state that same day.

The initial examination by a Medical Officer of Health at Rusape General Hospital corroborates the evidence of the State witness as the Doctor found that the deceased had a swollen face, swollen right eye and a mobile jaw.

In assessing the credibility of this young witness, who was ten years at the time he gave evidence, we were acutely aware of the following facts. The young boy was extremely traumatized by this event. He testified to this court as much. He was so fearful of the accused on that occasion that he did not comply with his grandfather’s plea to him to go and call his brothers to come to his rescue. It was because the accused ordered him not to comply with his grandfather’s wish.

In our view, this witness was forth-right enough to indicate that, if at all the deceased had had a verbal altercation with the accused it may well have occurred during his brief absence after the accused had sent him on an errand to his friend nearby. The witness was subjected to thorough cross-examination, but he remained largely unshaken in the material aspects of his evidence. This unfortunate event occurred some five months prior to his giving evidence in Court.

We are satisfied that the boy’s memory was still fresh when he gave his testimony in court on the events of that fateful day. We believe that he was as truthful as one could be notwithstanding the fact that it was his first time to testify in a court of law. On the other hand, we were not impressed by the accused’s demeanor as a witness. The reason why we found him to be an unreliable witness are as follows. Firstly, the probabilities of the case do not lie in his favour. He says that he punched his step-father three times to the face and fell down. It is highly unlikely that only three punches to the face would result in a swollen face and mobile jaws noted during medical examination on the same the day when the incident occurred. It is also highly unlikely in our view that the only three punches to the face would result in blood accumulation below the skin of the face and a clot of blood in the frontal region of the brain as established by the post mortem examination.

Secondly, if he had acted in self-defence as he claimed, he would not have fled the scene, but would have, in all likelihood, tried to help his victim step-father when he realized that that the effect of the three blows were beyond what he had expected.

Thirdly, he did not in our view act in self-defence. He approached the old man, held him by the collar and unleashed a most vicious and brutal assault on the elderly and defenceless man to whom he owed his life. The accused came nowhere near establishing the defence of self-defence. In our view, as the accused himself pointed out, he bore a grudge against the deceased who kept asking him to go and look for employment so as to establish his own home. The feeling of hostility appeared to have been mutual as the accused believed that the deceased was using black magic to stifle his luck.

It is likely that the deceased broached the subject of when the accused will leave his home in search of work, which then incensed the accused leading to this brutal assault on the deceased. In a fit of unrestrained rage, the accused unleashed a most vicious and brutal attack on a hapless old man who was 71 years of age, knocking him out of his senses in no time.

In our view, when a person kicks another in the head, the face and the chest, that person clearly realizes the risk involved with that conduct or the possibility of death apparent in that type of behavior. This must have been even more obvious in the case of the accused as he was just 23 years and the deceased was a frail old man of 71 years of age. He realized that the kicking of the head and the face might result in death, but despite that realization, he persisted in his conduct.

In those circumstances, he must be found guilty of murder as defined in s 47(1)(b) of the Criminal Law Codification and Reform Act.

S E N T E N C E:

In assessing your sentence, the only mitigatory feature that we find is that, you are a young first offender. And that is all one could have said in your favour, and we appreciate the submissions made on your behalf by Mr Majamanda. I say this because you unnecessarily killed your own benefactor, your step-father. He was 71 years of age, he had neither provoked you, but on the contrary, he had been providing for your upkeep for the part twenty odd years. You owed him a lot in life.

Notwithstanding that and without any provocation, you had physically brutalized him to the point where he died, shortly after the assault. And one cannot find enough words to describe the cruelty with which you conducted yourself towards the deceased. I am not sure what your mother felt about this, but quite clearly like anyone else, she would have been incensed by your conduct.

An appropriate sentence is a sentence which reflects the society’s abhorrence of this type of conduct. In our view, the following sentence is appropriate.

You are sentenced to 19 years imprisonment.

National Prosecuting Authority, legal practitioners for the State

Maunga, Maanda & Associates, legal practitioners for the accused