THE State V Shadreck Sarupango AND Tendai Sarupango

### Preamble
1
HMT 43-20
CRB 15/20
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THE STATE

versus

SHADRECK SARUPANGO

and

TENDAI SARUPANGO

HIGH COURT OF ZIMBABWE

MWAYERA J

MUTARE, 4, 11 and 18 March 2020, 4 and 11 June 2020

Criminal Trial

M Musarurwa, for the State

Ms F Maroko, for the 1st Accused

Ms J Magama, for the 2nd Accused

MWAYERA J: In this case the deceased Bvumai Luke Sarupango lost his life over allegations of alleged witchcraft. It is alleged by the state that on 17 May 2019 and at Mutunduve Village Chief Saunyama, Nyanga, the accused persons and one or both or more of them unlawfully caused the death of Bvumayi Luke Sarupango by tying him against poles of a shed and assaulting him several times on the buttocks and feet using an iron rod and a sjambock intending to kill him or realising that there was a real risk or possibility that their conduct might cause death and continued to engage in that conduct despite the risk or possibility resulting in injuries from which the said Bvumayi Luke Sarupango died. Both accused pleaded not guilty to the charge.

The brief allegations informing the charge are that on 17 May 2019 at Mutunduve Village, Chief Saunyama both the accused who are sons of the deceased assaulted the deceased unlawfully and intentionally causing his death. The accused tied the deceased against poles that secured a maize shed and assaulted him several times on the buttocks and feet using an iron rod and sjambok. The deceased sustained injuries from which he passed on. The doctor who carried out the post mortem examination after examining the remains of the deceased concluded that the cause of death was anaemia post subcutaneous intra muscular haemorrhage and blunt force injuries. The doctor T Javangwe compiled a post mortem report which was tendered in evidence as exh 1 by consent. The doctor’s evidence was not contentious and it was formerly admitted in terms of s 314 of the Criminal Procedure and Evidence Act [Chapter 9:07]. Also admitted is the evidence of the following state witnesses. Tambudzai Mabvumbe, Maxwell Maradzike, Godfrey Mutsvapo, Tobias Mwonzora, Samson Madola, Godfrey Munyangata and Patrick Ngorima. Only one witness out of the 9 state witnesses gave viva voce evidence. Takesure Sarupango a half-brother to the accused and a biological son to the deceased narrated events of the day in question. He told the court that the accused persons in the company of their sister Eastle a suspected mental patient arrived at the homestead. Upon arrival the first accused tied the deceased’s both hands while accused tied the legs. The two then pulled the accused to a maize shed where they secured the deceased against poles. They then assaulted the deceased severally and severely with accused 1 using an iron rod and accused two using a sjambok. The assaults were targeted to the buttocks and bare feet. During the assaults the accused demanded that the deceased produce the paraphernalia which they believed he had in the form of a gourd with blood and names of people who would die. Both accused, accused the deceased of using that bloody gourd to cause death and mental illness on their sister. The accused after thoroughly beating the deceased who could no longer walk on his own dragged him to his bedroom hut demanding exposure of the witchcraft paraphernalia. They searched and did not recover anything so they dragged the deceased back to the maize shed. Again in a bound position they subjected the deceased to further assaults till he was left lying helpless on the ground. The accused persons left promising to come back.

The witness together with some neighbours who had gathered ferried the injured deceased indoors and left the scene for fear that the accused would come back and injure him also. The witness only returned home the following morning and found the deceased dead. The witness gave his evidence well. It was clear the assault on the deceased was perpetrated over witchcraft allegations against the deceased their father. That the witness left out some details is understandable given the volatile nature of the incident and also the fear he had of his brothers since he was the one staying with the father an alleged witch. That however did not detract the witness from giving an account of what transpired in fact it turned out from the other witnesses and accused persons the weapons used to assault deceased were brought to the homestead by the accused persons. The witness generally impressed the court as a credible witness. The first state witness Takesure Sarupango’s evidence was corroborated by Tambudzai Charles Mabvumbe’s evidence. Mabvumbe’s evidence which was formerly admitted was essential that he proceeded to the deceased’s homestead as a reaction to a call for help. He observed both accused assault the deceased severely. Accused 1 was armed with an iron rod and he directed blows to the buttocks while accused 2 was armed with a sjambok and directed blows to the sores of the feet. The assaults were perpetrated while both hands and legs of the deceased were tied or secured to a maize shed. Further the evidence was that the accused demanded production of a gourd of blood which caused death of family members upon being filled. The witness also confirmed that the deceased was assaulted severely rendering him incapable of walking. He together with the other state witnesses who had gathered assisted the first witness Takesure Sarupango carry the deceased indoors.

The evidence of Godfrey Musvapo and Tobias Mwonzora tallied with that of the other witnesses who attended the scene on hearing a call for help. Again the none contentious evidence was formerly admitted. Samson Madola and Godfrey Muyangara the attending police details ferried the deceased’s body to the mortuary. They both confirmed that the murder weapons were not at the scene as the accused had retrieved them. The police details’ evidence was also formerly admitted as it was on common cause aspects. The investigating officer Patrick Ngorima recounted how he attended the scene, observed the deceased’s body noticing swollen and soiled buttocks and feet. The murder weapons were not recovered from the scene. The investigating officer proceeded to record warned and cautioned statements from the accused persons and drew a sketch plan from the witnesses and accused’s indications. His evidence was also formerly admitted by consent.

Also adduced in evidence by consent was the sketch plan exh 2, photograph depicting the deceased’s remains exh 3, the accused persons confirmed warned and cautioned statements exh 4 and 5 respectively and the deceased’s soiled t-shirt exh6. Worth noting is both accused’s confirmed warned and cautioned statement which confirm assault on the buttocks and feet. Both accused suggested in their statements that the positions they assaulted would not cause death. In their defence outlines both accused denied having the requisite intention to kill the deceased their father. The first accused in his defence outline which was adopted as evidence in chief admitted assaulting the deceased with an iron rod on the buttocks demanding that the deceased reveals the paraphernalia which he possessed for witchcraft purposes. The second accused in turn also pleaded guilty to assault in his defence outline which was adopted as evidence in chief. He admitted having assaulted the deceased under his feet on the sores.

The first accused maintained in his evidence in chief that his father practiced witchcraft which caused many deaths and illness in his family. He had moved from Nyanga to stay in Mutare as a way of escaping the wrath of witchcraft by the father. Given the intensity of problems, the first accused together with the second accused decided to visit their father so as to get a solution even as regards the supposedly mentally ill sister Estell who they took along. The first accused was adamant that he beat up the deceased so as to extract a confession from him on the alleged witchcraft. He together with accused 2 assaulted the deceased demanding that he took out the gourd of blood he used to inflict illness, misery and death in the family. The first accused initially stated that he only assaulted the deceased 3 times with an iron rod but later he changed to saying he assaulted five times. Upon further probing he evaded the questions as it was apparent the deceased was severally and severely assaulted. The first assault after deceased was secured to a maize shed ended when the deceased offered the paraphernalia. The deceased at that stage had already been immobilised. The accused had to drag him to the bedroom hut from where searches were conducted and nothing was recovered. The deceased was again dragged to the maize shed and assaulted for the second time. He was immobilised and state witness Takesure Sarupango and other neighbours helped him indoors. This sequence of events and nature of injuries exposed the accused’s version on number of blows inflicted as false. The first accused was not candid with the court as evidenced by his denial of the obvious for example that accused 2 also assaulted the deceased. It emerged during cross-examination that the accused severally assaulted the deceased on the buttocks using an iron rod he had brought from Harare, which iron rod he took away with him after perpetrating the assault on the deceased. Generally, accused did not impress the court as an honest witness on the nature and extent of assault as he sought in an exaggerated manner to minimise the number of blows. He ended up with three versions firstly that he assaulted 3 times, secondly 5 times and lastly several times.

The second accused as a witness was highly evasive and he prevaricated on nature and extend of assault. The second accused was preoccupied with stating that he was a victim of the deceased’s witchcraft enterprises. He was so engrossed in the belief that he instead of answering straight forward questions parroted that the whole community knew the deceased was involved in witchcraft. He felt justified in having assaulted the deceased the “wizard father” but did not want to commit himself on the number of blows inflicted and intensity of blows. He initially stated he assaulted the deceased thrice but on realising his evidence that he was infuriated more when the deceased who had offered to reveal the paraphernalia failed, he changed to saying he again assaulted the deceased without committing to the number of times. It was apparent he brought a sjambok used to assault deceased and after assaulting he took it away. The failure to answer questions directly by the accused was apparently meant to minimise his participation in the assault of the deceased. It was however apparent accused 2 assaulted the deceased severally as a way of inducing confession. The accused’s none committal stance exposed him generally as not credible in so far as intensity of assault was concerned.

From the entirety of the evidence adduced. It is not in dispute that when both accused persons approached their father the deceased, their goal or aim to get to the bottom of his alleged witchcraft practices. 	They came armed with an iron bar and sjambok respectively. The items despite suggesting that they were to be used to wade off snakes, lizards and other witchcraft implements believed to be under control of the deceased were used to assault deceased. It cannot be argued that the assaults were desired at killing the deceased but were meant to force the deceased to confess and produce the witchcraft tool of trade for destruction. The charge of murder which the accused are facing requires the state to prove beyond reasonable doubt that the accused had both the actus reas and requisite intention to kill the deceased. From the totality of the evidence from the state witnesses and both accused persons the avowed intention of the accused persons was to inflict pain through assaulting the deceased so as to induce production of the witchcraft paraphernalia. The two accused from the onset demanded release of the tools of witchcraft. The death of the deceased was therefore not the aim or desired goal. Further going by the manner of assault directed to buttocks and feet the accused cannot be said to have foreseen that death was substantially certain. In the premises there is no actual or legal intention from the evidence adduced both accused therefore, cannot be found guilty of murder with actual or constructive intention. The evidence adduced falls short of sustaining a charge of murder.

The question that begs of answer given the common cause aspect of the  severe and several attacks on the deceased is whether or not the accused negligently caused the death of the deceased s 49 of the Criminal Law (Codification and Reform) Act reads as follows:

“Any person who causes the death of another person

(a) negligently failing to realise that death may result from his or her conduct; or

(b) realising that death may result from his or her conduct and negligently failing to guard against that possibility; shall be guilty of culpable homicide…”

The test is an objective test as negligence can only be judged against accepted norms and reasonable behaviour stands. The question put simply is would a reasonable person in the position in which the accused found themselves have realised that death may result from his conduct or under s 49 if a reasonable person would have realised that death may result from his conduct would he have guarded against the possibility of death.

See State v Fredrick Chifadza HMA 27/18 and S v Vincent Vhiriri. In this case the accused assaulted the deceased till he could no longer walk. They had to drag him to the bedroom hut. Upon failure to recover the witchcraft tools they again dragged the deceased secured him to the shed poles and severely assaulted him. The assault was vicious considering the deceased was bound and defenceless. A reasonable man in accused’s position ought to have realised that assaulting the anaemic person in the manner they did death may result. The second stage assault was on an already immobilised person whom the accused left lying helpless unattended. The dangerous situation created by the severe assault occasioning injuries was caused by the two accused who were acting with common purpose and concert. There is a nexus between the negligent attack of the deceased and the subsequent death. The accused negligently assaulted the deceased in circumstances where a reasonable person would have foreseen death occurring and they left the badly injured man, the deceased unguarded leading to his death. That the accused strongly believed their father was a witch and that they were angered by the none production of the witchcraft paraphernalia does not exonerate the two accused from having negligently caused the death of the deceased.

Accordingly both accused are found guilty of culpable homicide as defined in s 49 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

Sentence

In an endeavour to reach at an appropriate sentence we have considered all mitigatory and aggravatory factors submitted by counsel. Both accused are first offenders who also co-operated with the police and admitted to having assaulted the deceased right from the onset. Both accused are family man with fairly heavy responsibilities. The accused have been awaiting the finalisation of murder charges for a period of about 1 year. The waiting period brings about anxiety and it is not an easy period. Both accused will live with the stigma of having negligently caused the death of their father. In fact society is blind to the legal definitions of culpable homicide and murder.

In passing sentence the circumstances surrounding the commission of the offence fall for consideration. Although the accused did not plan to kill their father. What aggravates the offence is the fact that they both came armed with weapons, the iron rod and sjambok which they used to assault the deceased their father. The assault was vicious and severe leaving the deceased immobilised injured and unattended. Further in aggravation is the fact that the accused took away the murder weapons as if to conceal the heinous crime. The accused teamed up to assault their biological father over allegations of witchcraft. Despite searching and not recovering the witchcraft paraphernalia they persisted with the assault on their father. The accused’s moral blameworthiness is high given the biological relationship with the deceased and lack of respect. The courts have to pass appropriate sentences so as to conscientise society that disputes of whatever nature should not be resolved by violence or meting out instant justice. In a progressive society like Zimbabwe it is unacceptable to entertain witchcraft beliefs to alarming levels of taking another’s life. The accused persons violated the deceased’s constitutional right to life which happens to be a God given right which no one is allowed to take away for any reason.

It is important in passing sentence for the court to observe the old time but just sentencing principle of matching the crime to the offender while at the same time tempering justice with mercy in a manner which does not erode justice.

Culpable homicide is a serious and prevalent offence which occasions loss of precious human life. In this case precious life was unnecessarily lost because of unreasonableness on the part of the accused. The suggested sentence of a fine is not appropriate as does not only trivialise a very serious offence but would make society lose confidence in the sentencing system of the court. The case of S v Tshuma cited in which a fine and a suspended prison term was imposed is clearly distinguishable from this case. The court in Tshuma case emphasised the accused had waited for 6 years for the matter to be finalised which is not the case in casu. In any event by suspending 5 years the court in the Tshuma case reflected the seriousness of the offence. In this case having considered the mitigatory and aggravatory factors and circumstances of the case an effective prison term is deemed appropriate. You are sentenced as follows:

Each 4 years imprisonment of which 2 years 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.

National Prosecuting Authority, state’s legal practitioners

Mugadza and Chinzamba, 1st accused’s legal practitioners

Legal Aid Directorate, 2nd accused’s legal practitioners