Man cleared of murder, convicted of assault

The Bulawayo High Court has acquitted Kudzai Mutangadura of murder and instead convicted him of assault after finding that the State failed to prove beyond reasonable doubt that the injuries he inflicted on a friend caused the man's death.

In a judgment delivered by Justice Ngoni Nduna, the court ruled that while Mutangadura unlawfully assaulted the deceased following a dispute over stolen tomatoes, the evidence did not establish that the assault resulted in the victim's death.

The court heard that Mutangadura had left a truckload of tomatoes at a bus stop while accompanying a friend to a nearby homestead to assist with cattle dipping.

During his absence, the deceased allegedly took some of the tomatoes, sold them and used the proceeds for his own benefit.

Upon discovering the tomatoes were missing, Mutangadura demanded payment but was informed that the money had already been spent.

An altercation followed, during which Mutangadura assaulted the deceased before taking him to a police station, where the matter was reported. It was agreed at the police station that the deceased would repay the money for the tomatoes.

The deceased was later found dead on a date that remained uncertain during the trial. A post-mortem examination concluded that he had died from injuries he had sustained.

Mutangadura admitted assaulting the deceased on the chest and taking him to the police station but denied inflicting the fatal injuries.

Justice Nduna found that the State's evidence was insufficient to establish that the accused was responsible for the man's death.

The judge noted that the prosecution's two witnesses could not state with certainty when the confrontation had occurred and gave vague evidence about the incident.

"The witnesses' testimony was vague. They were no longer certain of the date on which they saw the accused and the deceased in conflict," Justice Nduna said.

The court also noted evidence that the deceased was a heavy alcohol consumer who lived alone, raising the possibility that he may have sustained fatal injuries elsewhere after the confrontation.

"Clearly, it is not safe to conclude that the accused inflicted the fatal injuries sustained by the deceased in the circumstances of this matter. There remains a real possibility that the deceased sustained the fatal assault elsewhere," the judge ruled.

Justice Nduna explained that where the evidence fails to prove the offence charged but establishes all the elements of a lesser offence, the court is entitled to return a competent verdict.

"It is clear, therefore, that a person appearing before a court may be convicted on a competent verdict where the evidence does not prove the offence charged but establishes a less serious offence in respect of which it is competent for the court to return a verdict of guilty," he said.

The judge held that Mutangadura's own admission, together with the evidence before the court, proved beyond reasonable doubt that he had unlawfully assaulted the deceased.

"It was unlawful for the accused to assault the deceased. However, the evidence does not establish that the degree of force used in the assault caused the deceased's death. Indeed, the deceased was observed to be in a good state of health thereafter," Justice Nduna said.

"The accused admits assaulting the deceased but denies that the assault caused the deceased's death. On the evidence before the court, the State has failed to prove beyond a reasonable doubt that the accused caused the death of the deceased.

"However, the accused's own admissions, together with the evidence led, establish beyond reasonable doubt that he unlawfully assaulted the deceased. Accordingly, the accused is found not guilty of murder but guilty of assault on the competent verdict."