THE State V Webus Muranda

### Preamble
1
HMT 46-20
CRB 28/20
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THE STATE

versus

WEBUS MURANDA

HIGH COURT OF ZIMBABWE

MWAYERA J

MUTARE 19 May 2020, 21 May 2020 and 23 June 2020

Criminal Trial

ASSESSORS: 	1. Mrs Mawoneke

2. Dr Sana

M Musarurwa, for the State

Ms M Simango, for the accused

MWAYERA J: The accused person was arraigned before this court on a charge of murder as defined in s 47 (1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] in that on 21 August 2019 and at Rashipango Village, Chief Marange, Odzi  the accused person struck the deceased Webus Muranda (senior) twice with an axe on the head and leg and several times on the head with an axe handle 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 the said Webus Muranda (senior) died. The accused pleaded not guilty to the charge.

The accused in his defence outline which was adopted as evidence in chief pointed out that he struck the now deceased twice with an axe handle as a way of defending himself from an attack by the deceased. He also pointed out that when he went to accused’s homestead all he wanted was to ascertain why deceased continued to harass him after firstly it was alleged deceased and wife initiated accused’s wife into witchcraft and secondly that deceased improperly associated with accused’s wife. In summary the accused sought to rely on the defences of provocation and self-defence.

The brief facts forming the allegations are that accused and deceased who were related in that accused is a son to the deceased’s brother had an altercation. The accused person struck the deceased with an axe on the head and leg and several times on the head with an axe handle. The deceased sustained serious head injuries and died on the same day. The remains of the deceased were conveyed for post-mortem examination and the doctor who examines Dr Gillian Bowora compiled the post-mortem report tendered as exh 1 by consent, in which the doctor concluded that cause of death was head injury.

The issue that falls for determination in this matter is whether or not when the accused struck the deceased he had the requisite intention to kill the deceased.

The State relied on 12 witnesses’ evidence, 1 of whom gave oral evidence. The evidence of the other 11 witnesses was formerly admitted in terms of s 314 of the Criminal Procedure and Evidence Act as it was on common aspects and undisputed evidence, Getrude Nyashanu the wife to the deceased gave a narration of what transpired on the day in question. She gave background evidence which tallied with accused’s version. The witness told the court that there were allegations of her and the deceased having initiated the accused’s wife to witchcraft. There were consultations with the Village Head, Chief, prophets and traditional healers pursuant to the birth of accused’s child and refusal to breast feed. The child only breast fed after a confession. The witness pointed out she had to fork out money for the sake of peace. On the fateful day according to the witness accused just came armed with an axe and struck the deceased all over the body causing injuries from which the latter died. The witness’ description of the nature and extent of assault by the deceased was not confirmed by Dr Gillian Bowora who compiled the post-mortem report exh 1. There were no fractures observed on the deceased and there were no multiple injuries all over the body as injuries were confined to the head and leg. The witness extensively exaggerated her testimony in a bid to discredit the accused’s version that the two deceased and the witness assaulted the accused as a team. She generally was not reliable as evidenced by the exaggerations and denial of even the obvious. Despite saying she did not participate in the brawl, she could not explain with clarity how she retrieved the axe blade. The witness could not explain how the fracas started in a manner indicative of being economical with detail so as to mislead the court. We did not hold the witness to be credible.

The state tendered in the evidence exhibits as follows. The post-mortem report exh 1 by consent. The doctor observed lacerations on the head and leg and no fractures and concluded cause of death was head injury. Accused’s confirmed warned and cautioned statement in which accused essentially admitted striking the deceased on the head and left leg using an axe handle was tendered as exh 2 by consent. The certificate of weight compiled by Liberty Makwawaya reflecting length of the wooden handle and mass as well as the blade was tendered as exh 3. The sketch plan drawn per witnesses and accused’s indications was tendered as exh 4. The axe blade and handle were marked as exh 5 and 5 (a) by consent.

The accused was the only witness in the defence case. He was consistent that he struck the deceased with a wooden axe handle on the head and legs as per his confirmed warned and cautioned statement exh 2 and defence outline. The accused maintained that the deceased and wife had initiated his wife into witchcraft and the deceased had further been intimate with his wife so as to cement the witchcraft. These matters had been taken up to the Chief and accused moved to stay elsewhere. On that fateful day accused only came home because there was a break in at his homestead, only to be confronted by the deceased over reports to the Chief. The accused was worried why the deceased continued to harass him. The accused waited for his brother to come back so as to confront their uncle deceased the father figure in the family. Upon realising it was getting dark before the return of his brother, the accused proceeded to his uncle’s homestead which was some metres away. Upon his  arrival to consult with the father figure on the reason for continued harassment, the deceased took a chair or stool and struck him with it when he evaded the deceased took an axe and attempted to strike the accused. At the same time the witness Getrude Nyashanu was also assaulting him. The accused then held the axe handle while the witness took grip of the axe blade. In the fight and heat of the moment the accused struck the deceased with the axe handle and he fell to the ground. At that stage the accused then left the homestead. The accused denied having brought the axe. We believed the accused’s version of narration of events. The axe in question appears to have been at deceased’s homestead. No evidence was adduced to show it was accused’s axe or that he brought the axe.

From all evidence adduced, it is common cause the deceased died as a result of head injuries caused by an axe handle which accused used to strike. It is also common cause that the deceased and accused had frost relations over allegations of deceased and wife initiating accused’s wife into witchcraft. Further it was alleged that the deceased sealed the witchcraft by being intimate with the accused’s wife. It was not in dispute these matters were taken before the village head and Chiefs. It is also not in dispute that the deceased had not only inherited the witness after death of his brother but also inherited the accused’s mother and also had his own wife. When the allegations of improper association with his daughter in law accused’s wife arose the accused had good reason to believe it was happening and was thus provoked and sought redress from chiefs. It is also common cause deceased and his wife the witness were disturbed by the publicity. It is not in dispute that deceased threatened and harassed accused for going public about the allegations by reporting to the chief. Finally it is common cause that on the fateful day the accused confronted the deceased about the harassment on the same witchcraft issues and improper association and a fight ensued. From the sequence of events it cannot be said that accused went to the deceased’s place with a goal to kill and proceeded to kill. It equally cannot be said that he subjectively foresaw that death would occur when he fought with the deceased and his wife on one side. This is more so when one considered that accused retrieved the axe handle which was being used to try and strike him and he then struck the deceased. This was during a scuffle in which accused sought to free himself the deceased whom he entertained had improperly associated with his wife. He could not have realised the risk or possibility of death occurring. We cannot infer intention from the circumstances. The defence of self-raised is in the circumstances properly supported. However means used of striking three times after disarming brings about culpability of the accused. A reasonable man in the circumstances of the accused ought to have realised that death may result from his conduct.

In the premises accused is found guilty of capable homicide as defined in s 49 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

Sentence

In passing sentence we have considered all mitigatory factors submitted in your favour by Ms Simango, you are a youthful first offender who has always cooperated by accepting that you struck the deceased with an axe handle. The allegations of witchcraft and improper association have led to the disintegration of your family. You are a father of one. Also in mitigation is the fact that you are given as a breadwinner for your child and siblings. You stand convicted of culpable homicide but will forever live with the stigma of having caused your uncle a father figure’s death. The court is alive to the fact that you have been awaiting the finalisation of this matter for almost a year now. The anxiety that goes with waiting for results of murder charges cannot be under estimated. We have also considered the circumstances leading to the commission of the offence and accept that pressure was exerted on you over a long period of time. You sought the civil route of consulting village heads and Chiefs and even moved away from your homestead. The chief demanded money and deceased continually harassed you for having gone public about the matter. When you confronted the deceased it was to seek an understanding with him on the continual harassment and the deceased instead attacked you following which a fight ensued and you negligently caused deceased’s death. That you were provoked and defending yourself is considered as mitigatory. Also advanced in your favour is the fact that you showed you regret the offence by accepting you assaulted the deceased and paying compensation as customarily decided by Chief.

However, you stand convicted of a serious and prevalent offence, culpable homicide emanating from alleged witchcraft issues is prevalent. In most causes precious human life is unnecessarily lost. As correctly observed by the state counsel Mr Musarurwa you flouted the constitution by taking away the deceased your uncle’s life. No one has a right to take away the God given right to life for whatever reason. In this case you were negligent in that you left the deceased unattended after injuring him. That irresponsible conduct which connotes lack of respect of humanity is in aggravation. The offence is deserving of a custodial sentence. Upon considering the circumstances of this matter, the mitigatory and aggravatory factors and seeking to match the offence to the offender we feel a suspended prison term will meet the justice of the matter.

4 years imprisonment wholly suspended for five years on condition the accused within that period does not commit any offence involving violence on a person of another for which he is sentenced to imprisonment without the option of a fine.

National Prosecuting Authority, State’s legal practitioners

Mupindu Legal Practioners, accused’s legal practitioners