IN an intriguing court ruling, a Banket man was acquitted of murder by the High Court after a suspected thief he was chasing jumped into Munene River and drowned while fleeing.
Zachariah Baton, who appeared before Chinhoyi High Court judge Justice Philda Muzofa, was, however, convicted of a lesser charge of assault and sentenced to a wholly suspended 18 months imprisonment.
The High Court suspended six months on condition of good behaviour and another 12 months on condition he performs 430 hours of community service at Banket Police Station.
The murder charge raised one issue for determination: whether the accused is liable for the death of the deceased, who fled from the accused and jumped into a river and died.
According to court documents, on January 20, Baton, who was in the company of one other person, apprehended Tawanda Musona, a suspected thief.
They assaulted him using open hands and switches and they intended to take him to the farm office.
Along the way, the deceased bolted and the duo pursued him.
Seeing that the two were gaining ground on him, Musona decided to jump into Munene River.
- Cornered thief plunges into river, dies
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The accused waited by the river for about 10 minutes, but he did not emerge and so they then left.
Musona’s body was discovered later on by the river bed.
Baton was subsequently arrested and charged with murder, with police alleging that he assaulted the deceased “with intention to cause his death or with a realisation that death may result but persisted in the conduct”.
Baton denied the offence saying he only slapped the deceased.
The State, however, produced a post-mortem report with the cause of death indeterminable as the deceased’s body had decomposed.
The two witnesses who gave evidence, including a police officer, confirmed the accused person’s version of events.
The investigating officer testified that the deceased had no injuries when his body was found.
The doctor could not conclusively tell the cause of death and the post mortem report showed that most of the deceased’s body parts were swollen due to decomposition, but there were no injuries.
It is also recorded that Musona’s body was discovered five days later.
The judge said the deceased, in a bid to escape, ran away from his pursuers, hence he did not want to go where the two would interrogate him and he jumped into the river.
She said the cause of death is not known and the State should establish a causal link between the accused’s act or omission and the death of the accused saying the charge of murder required proof of both the unlawful action and intention to kill.
The State submitted that there was no evidence that the accused inflicted fatal wounds, but that he created a situation where the deceased was cornered and was left with no option but to jump into the river.
The defence submitted that the deceased’s conduct to jump into the river was an intervening act that should absolve the accused, saying the deceased took a conscious risk.
According to the defence, the setting of the scene of crime was that from the point the deceased was assaulted and fled from the accused, he crossed the Banket-Raffingora road.
To his right about 200 metres, there was a police roadblock.
The defence further said to the left, there was nothing and he could have run towards his left along the road.
But he chose to cross the road and run into Madzingura Farm, where he ran for about 250 metres where there was adequate room to flee in any other direction except to the river.
However, the judge said if the deceased was seeking protection, he could have approached the police at the roadblock, but he chose the river.
“There was ample room for the [deceased] to flee in any other direction save for the river. Even though the accused pursued him to about seven metres of the river, it was not reasonable to jump into the river.
“He had options to flee in any other direction except the river. There was evidence that the river was full of water and it was known that it had crocodiles. For an act to constitute an intervening act, there must be a new set of factors that break the link between the accused’s conduct and the result,” the judge said.
“Accordingly, the accused is found not guilty and acquitted on the charge of murder. He is found guilty of assault in contravention of section 89 of the Criminal Law Codification and Reform Act [Chapter 9:23].”
The judge said a life was lost as a result of high-handedness, adding that they should have taken the deceased to the police officers manning the roadblock.
“The accused has been in custody for five months. A custodial sentence with a portion suspended on the usual conditions and the remaining suspended on condition of performance of community service will meet the justice of this case,” the judge said before giving him a suspended sentence.
