The prosecution lost its bid to appeal the Oshakati High Court’s decision to convict a Rundu resident on a lesser charge of culpable homicide, rather than murder and arson for killing his four-year-old niece in 2017.
According to acting judge Danie Small, the State failed to convince the court they would be successful if granted leave to petition the Supreme Court.
He said the State’s notion the court misdirected itself when it convicted Ndumba Paulus Muronga on a charge of culpable homicide is far-fetched.
Muronga was subsequently sentenced to seven years, of which three years were suspended for three years, on the condition that he is not convicted of culpable homicide during the period of suspension.
He explained the burden of proof lies with the prosecution.
However, the State had two destructive versions of what transpired, while Muronga’s version was corroborated by the victim’s grandmother.
Small said not only did the State fail to prove that Muronga negligently caused the minor’s death, but it also failed to prove the arson charge.
The court accepted Muronga’s version that on 4 April 2017, he was chopping wood with a traditional axe within a typical northern courtyard, where two very young children, one being the victim, were present.
Without considering the exact whereabouts of these young children or what risks his actions held for the children, he continued chopping wood, and the victim ran underneath the arc of his axe, causing a fatal injury to the top of her head.
According to the judge, he found that a reasonable possibility exists that the version of the accused is true – and he, thus, cannot be convicted of murder as charged.