S v Macheka (CRB 75 of 2016; HH 212 of 2017) [2017] ZWHHC 212 (24 March 2017)

1 HH 212/17 CRB 75/16 THE STATE versus ELIFIGIO MACHEKA HIGH COURT OF ZIMBABWE PHIRI J HARARE, 20, 21 22 & 24 March 2017 Assessors Mr Gweme Mr Chogugudza Criminal Trial B. Murevenhema, for the State T. Marume, for the Accused PHIRI J: The accused in this case was facing a charge of murder in terms of s 47 of the Criminal Law (Codification and Reform) Act) [Chapter 9:23] it being alleged that on the 11th day of March, 2011 and at House number 2270 M, Magada Epworth, the accused unlawfully and with intent to kill assaulted one Shelton Tungwarara indiscriminately all over the body with an iron bar thereby causing injuries from which the said Shelton Tungwarara died. At the conclusion of this trial both the State and the Defence Counsel conceded that a charge of murder in term of s 47 (a) of the Code could not be sustained and that the accused should be found guilty of culpable Homicide in terms of s 49 of the Code. It is the courts finding that the concession so made by both counsel was properly made and accordingly the accused is hereby found not guilty and acquitted on the charge of murder in terms of s 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. This court also accepts the submissions made by both counsel that the accused be found guilty of Culpable Homicide, in terms of s 49 of the Code. THE FACTS The deceased met his demise as a result of an assault which took place on 11 March, 2011. HH 212/17 CRB 75/16 It is common cause that the deceased was once customarily married to the first State witness, one Chiedza Nyagomo. They were blessed with one child. Subsequently Chiedza Nyagomo got customarily married to the accused. It is also common cause that the accused paid a visit at number 2270 M Magara Epworth with the intention of seeing the aforesaid daughter, Napnel Patience, who was sick. The versions of what transpired at the aforesaid residence are somewhat different, in terms of the account govern by the first State witness and the accused. THE EVIDENCE OF CHIEDZA NYAGOMO The first State witness testified that accused was present when the deceased arrived and accused ordered the deceased to leave but the deceased refused. The accused and deceased went outside the house and she remained inside and “was cooking or preparing a meal”. She testified that the accused and deceased were fighting and she did not witness the fight but heard people shouting that there were people fighting. When she got outside she observed the deceased seated on the ground and she inquired what transpired. The accused stated “We have been fighting”. Accused was nowhere to be seen. She testified that she was advised by some people to take the deceased into the house. The deceased slept at the house. The following day she took the deceased to the police station. He was walking slowly and thereafter she got the assistance of a well-wisher who gave her a lift to the police station. At the police station the deceased went inside the charge office and made a report. Her testimony is that she remained outside. THE EVIDENCE OF THE ACCUSED The accused’s version of the events is somewhat different. He testified that deceased entered his homestead without knocking and suddenly punched him. He retaliated and there was a fist fight with the deceased. However his evidence in chief is somewhat different from what was stated in his defence outline wherein he stated that: “The accused welcomed the deceased into his house as their relations were cordial as the deceased used to come to visit his child. ‘He further alleged that the deceased started accusing the accused of being behind the child’s sickness.’” HH 212/17 CRB 75/16 A dispute arose resulting in the first fight in the house and the accused fought back using fists to defend himself using moderate force. Accused avers that fearing for his life he ran away from the scene and sought refuge at his mother’s house in Epworth. PHILANI KHUUMANI Testified that he is a member of the Zimbabwe Republic Police and he was on duty when Chiedza Nyagomo brought the deceased at the station, to make a report, of assault. He testified that the deceased was in a car outside and was unable to walk. He proceeded to the car and recorded a report of assault under reference 033077/11 (exh 4). He issued deceased with a request for Medical Report and advised deceased to go to the hospital. TRYMORE KWASHIRA Also testified that he is a member of the Zimbabwe Republic Police and he compiled a docket in this case. He recorded a warned and cautioned statement from the accused. This warned and cautioned statement was confirmed by a magistrate at Harare Magistrates Court. These documents were admitted by consent as exh 3. He also testified that he visited the crime scene where he drew a sketch plan for accused made indications. The Sketch Plan was admitted as Evidence by Consent. (Exhibit no 2). The Sketch Plan indicated positions C, and C2. C1 was marked as the position where accused indicated he removed an iron bar, from the fence, which iron bar he used to assault the deceased. C2 on the Sketch Plan was marked as the position where the accused assaulted the deceased with the iron bar. It is this court’s considered view that the warned and cautioned statement and the sketch plan were admitted by consent and these were not materially challenged. The witness also testified that he recorded a statement from the deceased. This was admitted into evidence by consent as exh number “5”. In that recorded statement the deceased alleged that he was assaulted by the accused with an iron bar. Several times on the left arm and he also sustained internal injuries on the stomach. HH 212/17 CRB 75/16 This statement was however not signed and dated, and also had an error as regards the date when the alleged assault happened. This witness admitted the error under cross-examination and given the reason that this occurred because the police were in a hurry to ensure that the deceased received medical treatment. The accused vehemently denied that he used the iron bar to assault the deceased. Doctor Eduardo Estrada The post mortem report compiled by Doctor Edurado Setrada was admitted by consent, as exh number 1. He examined the remains of the deceased. He could not determine the cause of death because the body was decomposed. Both the State and defence counsel submitted that it was clear that the deceased met his death after deceased had been assaulted by the accused. It was also agreed that there was no “novus actus interveniens” in respect of the resultant death of the deceased. The court holds that this concession was properly made by both counsel and accordingly finds that the cumulative evidence submitted in this matter establishes that the cause of death of the deceased was as a result of the assault that had been perpetrated on the deceased. Accordingly this court finds the accused guilty of culpable homicide in terms of s 49 of the Criminal Law (Codification & Reform Act) [Chapter 9:23]. SENTENCE In arriving at the sentence in this matter this court takes into consideration what has been submitted in mitigation on behalf of the accused. Accused was 29 at the commission of this offence. He is now 35. He is a youthful first offender and accordingly a rehabilitative sentence would meet the justice of this case. He is married with two children and also looks after his mother aged 68years. His pre-trial incarceration of two years and 9 months will also be taken into account although this was mainly caused by the accused’s flights from the country in an attempt to obvious by evade justice. It would also be accepted that the circumstances surrounding the commission of this case point in the direction that there was an element of provocation. Deceased appears to have accosted the accused at his homestead resulting in a misunderstanding which led to the ensuing fist fight in this case. HH 212/17 CRB 75/16 There appears to have been no premeditation in the commission of the offence. Accused appears to have acted on the spur of the moment. Accused also appears to have accepted the part he played in causing the death of the deceased and, has through concessions made, in accepting the conviction on the alternative charge of culpable homicide, shown some degree of contrition. The court accepts submissions in mitigation that at the centre of this dispute was the element of Chiedza Nyagomo the accused’s wife, and deceased’s former wife. However in aggravation, the court admits submissions made by the State counsel. This court has on multiple occasions emphasised the need for the respect for the sanctity of life. Often precious life is lost in circumstances wherein exercise of self-control is required. This court will not tolerate any total disregard and respect for the sanctity of life and will not hesitate to impose deterrent sentences to warn would be perpetrators that such conduct sis not tolerated. Deceased clearly had a right to life and was also a family man with responsibilities which accused was aware of. Instead of taking flight, and, not rendering assistance to the deceased, and or, his wife, demonstrates a deliberate lack of concern and responsibility on the part of the accused. This court accepts that a custodial sentence will meet the justice of this case and has taken into consideration the fact that a rehabilitative sentence necessary. Accordingly accused is sentenced to six (6) years imprisonment, of which, two years is suspended for 5 years on condition that the accused does not commit any similar offence of any offence involving violence for which he is sentenced to imprisonment without the option of a fine. Matsikidze and Mucheche, accused’s legal practitioners The Prosecutor General’s Office, State’s legal practitioners