THE State V Munyaradzi Nyika

### Preamble
1
HMT 41-20
CRB 02/20
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THE STATE

versus

MUNYARADZI NYIKA

HIGH COURT OF ZIMBABWE

MWAYERA J

MUTARE, 20, 24 and 30 January 2020, 7 February 2020, 4 and 12 March 2020

Criminal Trial

ASSESORS:	1. Dr Sana

2. Mr Raja

Mrs  J Matsikidze, for the State

T.G Nenzou, for the accused

MWAYERA J: In yet another domestic violence related murder, a 4 year old lost his life for soiling his pants much to the chagrin of the step-father. Precious human life was unnecessarily lost in circumstances depicting the dark and cruel side of humanity. The accused Munyaradzi Nyika was charged with murder of his 4 year old step-son. It is alleged that on 18 June 2018 and at Muswere Village, Chief Makoni Rusape, the accused unlawfully caused the death of Denzel Mutungwazi by striking him all over the body with open hands and a stick 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 Denzel Mutungwazi died. The accused pleaded not guilty to the charge.

The accused admitted having assaulted the deceased using a Mzeze tree switch and open hands as a way of disciplining the child for defecating on himself. The accused admitted assaulting the deceased indiscriminately but denied touching the deceased’s head and having an intention to cause death. The accused pointed out that all he intended was to punish the deceased for soiling his pants.

The state adduced evidence from 8 witnesses and also tendered the following exhibits by consent. The post mortem report by Dr Matienga exh 1, the confirmed warned and cautioned statement by accused exh 2, the sketch plan exh 3. The Muzeze tree switch exh 4 and the certificate of weight also showing length exh 4 (a). As largely confirmed in both counsels closing submission most of  the evidence in this case was common cause. The state adduced evidence of total of 8 witnesses. 6 of the witnesses’ evidence was on common cause aspects hence it was formerly admitted in terms of s 314 the Criminal Procedure and Evidence Act [Chapter 9:07]. Defala Nyika’s evidence was to the effect that the accused was incensed upon observing that the deceased had soiled himself. The accused assaulted the deceased indiscriminately till he fell and further assaulted him all over the body using a switch plucked from a Muzeze tree till the deceased lost consciousness. The witness was ordered to carry deceased home whereupon he placed him near a sink. The witness heard accused notify the mother that the child had fell from the sink before the deceased was taken to St Mary’s Hospital. He later learnt that the deceased had died and that subsequently accused was arrested. The witness’s evidence was formerly admitted. Precious Taruvinga the mother of deceased gave oral evidence. She narrated how the accused had caused the 4 year old to go with him to the garden around early morning hours before having breakfast. According to the witness the accused would usually get back around 9:00am. On the day in question she was worried he took long. After 10:00 am the accused phoned her to join him as he wanted her to assist him with something. She was tied up serving customers at the home run tuck shop so she took long to be free. When she eventually got the chance she phoned to notify her husband that she was now going to join him. The accused advised her not to come as he had already done what he wanted her to attend to. She told the court how the accused arrived at home and caused the child to lie on the ground and later he bath the child who appeared to be lifeless. The witness told the court how the accused requested her to calm down so that people would not gather and know what had transpired. The plan was that they would mention that the child fell from the sink. Thereafter the accused and witness took the deceased to the witness’s paternal home for burial. The grandparents of the witness refused to accept the body leading to hospital and police involvement. The witness was basically not subjected to much cross-examination on her account of events. It was apparent she was hurt by accused’s violent conduct towards children and in particular her boy child. It was that violent conduct which culminated in the fatal assault. The witness’s evidence was accepted by the court as the witness appeared to be sincere with the court despite the emotions of having lost her child at the hands of her husband.

The third witness Dr Salime Mwelula’s evidence was essential that she observed the deceased’s body when it was brought to St Mary’s Hospital and advised the parents to report to the police. The evidence was formally admitted. Also without contention was the evidence of the police details Goshen Madeya, Tinashe Riwambara and Innocent Magwendeza. All the police officers observed the multiple head injuries, open wounds and bruises on the deceased. The investigating officer Innocent Mangwendezi investigated the matter, recorded indications and warned and cautioned statement from the accused. He also recovered the stick used to perpetrate the assault and caused it to be weighed and measured by Takemore Chiringa a Zimpost Rusape official. All the admitted evidence was not in dispute. The last state witness’s evidence was orally given by Dr Simbarashe Matienga. The Doctor examined the remains of the deceased and compiled the post-mortem report exh 3. The Doctor observed multiple bruises involving the lower lips, back, buttocks, upper limps, neck and face. He further observed hematomas on the forehead’s right temporal region and occipital region and concluded that the cause of death was intracranial haemorrhage. The doctor’s finding on multiple injuries done tallied with Defala Nyika the eye witness who observed the deceased being assaulted severely all over the body. The doctor’s observations were also in tandem with the attending police details and investigating officer’s observation on the nature and multiplicity of injuries.

The accused was the only witness in the defence case. He maintained that he assaulted the deceased on the day in question as a way of chastising the child who had defecated in his pants. The accused admitted to assaulting the deceased indiscriminately but denied touching the head. Assaulting indiscriminately all over the body would include the head for it is a body part. The accused denied the obvious for the simple reason that assault directed to the head a vulnerable part of the body is serious and in most cases as occurred here culminate in fatal consequences. In his confirmed warned and cautioned statement the accused admitted assaulting deceased on the head. The move to exclude assault targeted on the head in evidence in chief was viewed as an afterthought to try and minimise liability. The evidence of the state witnesses in particular the accused’s son Defala and the Doctor’s evidence speak volumes given the nature and extent of injuries observed. Infact the accused was exposed as an untruthful witness when he sought to doggy he assaulted on the head. This was more pronounced upon considering the evidence of his wife Precious Taruvinga. She made it clear the accused sought to explain the severe injuries by coming up with a plan to mislead people and suggest the child fell from the sink. This clearly shows that when the accused came back from the garden with the deceased, the latter already had injuries which accused sought to explain and wash away by the suggestion that the child fell from the sink. That the injuries were already on the head shortly after accused inflicted the assault is in sync with his confirmed warned and cautioned statement. The sudden shift in evidence in chief was meant to mislead the court. In the same manner of deceit, he planned to hide the cause of death and proceeded with intention to bury the child. The accused concocted his version in a fashion calculated to mislead the court. Generally the accused’ was viewed as a dishonest witness.

From the totality of evidence adduced before the court it is apparent the accused took the 4 year old deceased to the garden when the child had no injuries at all. At the garden the accused assaulted the deceased indiscriminately for soiling his pants. The deceased sustained injuries including head injuries from which he succumbed to death.

The charge accused is facing requires both the unlawful conduct and intention to be proved beyond reasonable doubt for a conviction to attach. Both the state and defence counsels ably addressed the court on the degree of liability given the totality of the evidence presented. Despite the obvious hatred of the child there was no premeditation on the part of the accused warranting a conviction of murder with actual intention. The accused cannot however escape liability when one considers the circumstances of the matter, the nature of assault, the weapon used, the body parts to which the assault was directed, the vulnerability of the victim and the severe force applied. In this case the accused an adult man used his hands and fists and a Muzeze tree switch to indiscriminately assault a 4 year old. The multiple blows inflicted all over the body inclusive of the head obviously speak volumes to the inescapable conclusion that death would ensue. The circumstances in particular heavy blows on the head of deceased point to the fact that accused realised that in assaulting the 4 year old in the manner he did, death was possible. The accused, despite the realisation proceeded to assault the deceased till he lost consciousness culminating in his death. The state and defence counsels both correctly suggested that the accused’s actions went beyond negligence.

The court can easily infer legal intention given the age of the victim severely and severally assaulted all over the body inclusive of the head a vulnerable part.

Accordingly the accused is found guilty of murder with constructive intention as defined in terms of s 47 (1) (b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]

Sentence

In reaching at an appropriate sentence we have considered the circumstances of the matter, mitigatory and aggravatory circumstances submitted. That the accused is a first offender and family man with responsibilities is mitigatory. We have also taken note of the time taken before the matter was finalised. The accused has been anxiously awaiting the finalisation of the matter for about 2 years. That the accused contributed towards burial of his step son is a good moral obligation, just like the move to compensate customarily. However, such gesture cannot bring back the lost precious human life.

This is a bad case of domestic violence culminating in loss of human life. The deceased looked up to the accused, the step father for love and protection but got cruel and vicious attack causing loss of precious human life. The multiplicity of injuries and severity of the attack leaves one with questions as regards whether or not the accused appreciated humanity.  The attack for soiling or defecating in pants for a 4 year old was most cruel and callous.

The accused showed no remorse or regret for his conduct. He actually appeared boastful about his prowess when it came to assaulting children for conduct he viewed as improper. Such physical and intentional attack of children in general and assault on the deceased is a clear indication of violation of the children’s right to life. In fact the accused reneged from the duty of care and obligation to protect and victimised an innocent child. There is no justification for causing the death of a 4 year old for soiling his pants. What further aggravates the offence is the deceitful nature of the accused. After  unlawfully and intentionally killing the child he sought to hide the cause of death a position he exhibited even during trial by dissociating himself from the obvious fatal savage assault on the deceased’s head. No one has a right to take away anyone’s life for whatever reasons. In this case life was unnecessarily lost. The courts have to register their displeasure to domestic violence related murders by passing severe and deterrent sentences.

20 years imprisonment.

Mupindu Legal Practitioners, appellant’s legal practitioners

National Prosecuting Authority, state’s legal practitioners