dyton mupawaenda
Mathew Masinge
THREE Rushinga artisanal miners have escaped jail time after they fatally assaulted their colleague for stealing their US$165.
The trio consisting of two brothers, Lovemore, Naison Masauki, and Ellin Joe were acquitted of murder by High Court Judge Justice Esther Muremba but found guilty of assault.
They were convicted and each sentenced to two months, which was wholly suspended on condition that they do not commit a similar offence for the next five years. Prosecuting, the State said the crew was panning for gold at Ruya River along the Zimbabwe-Mozambique border when the deceased stole their US$165 and 2200 Metcash.
The deceased proceeded to Kasika Business Centre in Mat Darwin where he bought beer for a number of his friends.
When the Masauki brothers discovered that the cash was missing, they teamed up with Joe, pursued the deceased, and confronted him leading to a scuffle.
The deceased became aggressive and the three men took turns to assault him before he escaped to a nearby village.
The trio pursued him and continued with the assaults and in the process the deceased retaliated by pelting stones.
He hustled and tussled with Joe on the ground and was struck with an axe on the back of his head from where he bled profusely.
The deceased was taken to a nearby hospital where he died upon admission.
The State conceded that, under the circumstances, Lovemore and Naison could not be held responsible for the death and as a result, they were found not guilty and acquitted of murder.
However, the State also found that Joe had no other means of defence while on the ground, and since he was in a vulnerable position, using the axe, which was within reach, was a desperate measure to protect himself.
“Joe’s use of the axe was proportional, given the circumstances he found himself in.
“In light of the enumerated factors, a reasonable person in the same situation might have acted similarly to protect themselves.
In view of the foregoing, the defence of self-defence suffices. We thus find him not guilty and acquit him of murder” ruled Justice Muremba.
Accordingly, the judge ordered the release of the trio after noting that they had already served two months in pre-trial incarceration.
Online Reporter