Online Reporter
Prosper Dembedza
Herald Correspondent
THE Bulawayo High Court has acquitted Kudzai Mutangadura of murder and instead convicted him of assault following the death of a friend he attacked after accusing him of stealing and selling his tomatoes.
Justice Ngoni Nduna ruled that the evidence did not support a murder conviction, finding Mutangadura guilty of the lesser offence of assault.
The court heard that Mutangadura had left a truckload of tomatoes at a bus stop while accompanying a friend to his homestead, where they were dipping cattle.
During his absence, the now-deceased man allegedly took some of the tomatoes, sold them and kept the proceeds for his own use.
When Mutangadura returned and discovered the tomatoes were missing, he demanded payment but was told the deceased had already spent the money.
A confrontation ensued during which the accused assaulted the deceased. The accused eventually took the deceased to the police station, where he made a report and it was agreed at the police station that the deceased would repay the money for the tomatoes.
Thereafter, the deceased was found dead on a date that remained in dispute, and his body was taken for a post-mortem examination, the results of which showed that he had died as a result of the injuries he had sustained.
Mutangadura admitted that he assaulted the deceased on the chest and took him to the police station, but he denied having inflicted the injuries that caused the deceased’s death.
The State led evidence from two witnesses and neither witness was able to state with certainty the date on which the accused confronted the deceased. Their evidence was shaky, and they only recalled having seen the two in conflict.
It is not clear whether the accused assaulted the deceased with such severity as to cause the fatal injuries.
Of concern was the evidence suggesting that the deceased was a person who drank alcohol excessively. He was staying alone at the home of one of the witnesses.
Justice Nduna said the most important question is on what date the accused assaulted the deceased?
The judge said Mutangadura maintained that he assaulted the deceased towards the end of September 2024 and the deceased was found dead on 5 October 2024.
“The witnesses’ testimony was vague. They were no longer certain of the date on which they saw the accused and the deceased in conflict,” the judge said.
“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.”
“For the avoidance of doubt it is declared that where a court finds that part but not all of the facts of an offence charged have been proved, it shall nevertheless convict the accused of that offence if the facts that are proved dis-close all the essential elements of that offence.
“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,” Justice Nduna said.
The judge said Mutangadura admitted that he assaulted the deceased on a date that is not clear, saying that conduct nevertheless constitutes an assault.
“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.
“It is therefore appropriate to consider the applicability of a competent verdict in relation to the charge of murder.
“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.”
