Degrees of participation https://old.zimlii.org/taxonomy/term/10115/all en S v Mandivenga & 6 Ors (HMA 34-20, CRB 8-14/20) [2020] ZWMSVHC 34 (17 July 2020); https://old.zimlii.org/zw/judgment/masvingo-high-court/2020/34 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>THE STATE</p> <p>versus</p> <p>ELLIOT MANDIVENGA</p> <p>And</p> <p>HARDLIFE KURIRAI</p> <p>And</p> <p>JONATHAN MUSIIWA</p> <p>And</p> <p>COSMAS NYAMBI</p> <p>And</p> <p>GIVEN TARU</p> <p>And</p> <p>MUNYARADZI LAITON BEN MUSHONI</p> <p>And</p> <p>FARAI MUSIMHI</p> <p> </p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MAWADZE J</p> <p>MASVINGO, 10, 11, 13, February, 22, 23 June &amp; 17 July 2020</p> <p> </p> <p>                                                                </p> <p> </p> <p><strong>Criminal Trial </strong></p> <p> </p> <p> </p> <p><strong>Assessors </strong></p> <ol> <li><strong>Mr Nish</strong></li> <li><strong>Mr Chikukwa</strong></li> </ol> <p> </p> <p> </p> <p> </p> <p> </p> <p><strong>T. Chikwati and B.E. Mathose for the State</strong></p> <p><strong>M. Vengesa for all 7 accused </strong></p> <p> </p> <p> </p> <p> </p> <p> </p> <p>MAWADZE J:           All the 7 accused are facing the charge of murder as defined in section 47(1) of the Criminal Law (Codification and Reform) Act [<em>Chapter 9:23</em>].</p> <p>The charge is that on 27 June, 2019 at Pisirai Village, Headman Makonese, Chivi, Masvingo each one of them or more of them caused the death of Wellington Zibako by assaulting him with switches, and a whip all over the body intending to kill him or realising that their conduct may cause death but continued to engage in that conduct despite such risk or possibility.</p> <p>The now deceased was 21 years old and residing in Muzondo Village, Headman Makonese, in Chivi. All the 7 accused reside in Pisirai Village, Headman Makonese in Chivi.</p> <p>At the material time accused 1 Elliot Mandivenga was 52 years old; accused 2 Hardlife Kurira was 27 years old; accused 3 Jonathan Musiiwa was 44 years old; accused 4 Cosmas Nyambi was 24 years old, accused 5 Given Taru was 31 years old, accused 6 Munyaradzi Laiton Ben Mushoni was 55 years old and accused 7 Farai Musimhi was a juvenile aged 17 years.</p> <p>During the trial accused 7 Farai Musimhi’s, mother Sheila Taru was present throughout because he is a juvenile.</p> <p>The agreed facts which emerge from the trial can be summarised as follows;</p> <p>On 26 June, 2019 the now deceased disappeared from his residence and his parents could not locate him for 2 days. His body was only found on 28 June, 2019 in a bush at about 1100 hrs.</p> <p>It them emerged that on 26 June, 2019 the now deceased intruded into accused 6 Munyaradzi Laiton Ben Mashoni’s homestead where he allegedly broke a window pane and stole a solar panel. This homestead has a durawall almost 2 metres high, is gated and the now deceased is said to have intruded into this homestead through an undesignated point.</p> <p>At the material time when the now deceased intruded into accused 6’s Munyaradzi Laiton Ben Mushoni’s homestead only accused 1 Elliot Mandivenga and accused 4 Cosmas Nyambi were at this homestead. It is these two who apprehended the now deceased.</p> <p>Accused 2 Hardlife Kurira and accused 7 Farai Musimhi only rushed to accused 6 Munyaradzi Laiton Ben Mushoni’s homestead after the now deceased had been apprehended and accused 1 Elliot Mandivenga and accused 4 Cosmas Nyambi had shouted that they had apprehended a thief.</p> <p>Accused 3 Jonathan Musiiwa, accused 5 Given Taru and accused 6 Munyaradzi Laiton Ben Mushoni had gone to Chivi growth point using KIA bakkie belonging to and driven by accused 6 Munyaradzi Laiton Ben Mushoni. They arrived soon after the now deceased had been apprehended. The now deceased was apprehended at night. Accused 6 Munyaradzi Laiton Ben Mushoni who used to work in South Africa was residing at his homestead with his aged mother.  His wife resides in South Africa. The aged grandmother was not present on that day.</p> <p>Accused 6 Munyaradzi Laiton Ben Mushoni employed accused 1 Elliot Mandivenga whom he stayed with as a herd boy. He is related somehow to all other accused persons. Accused 2 Hardlife Kurirai is a son of his cousin, accused 3 Jonathan Musiiwa is his nephew; accused 4 Cosmas Nyambi is his neighbour whom he normally gave piece jobs; accused 5 Given Taru is his nephew and accused 7 Farai Musimhi is his nephew and neighbour.</p> <p>For easy reference I shall refer to accused 1 Elliot Mandivenga just as Elliot; accused 2 Hardlife Kurirai as Hardlife, accused 3 Jonathan Musiiwa as Jonathan, accused 4 Cosmas Nyambi as Cosmas, accused 5 Given Taru as Given, accused 6 Munyaradzi Laiton Ben Mushoni as Mushoni as Mushoni and accused 7 Farai Musimhi as Farai.</p> <p>After the now deceased had been apprehended at accused 6 Mushoni’s homestead all the 7 accused assaulted him at this homestead. What is in issue is how each of the accused assaulted the now deceased at this homestead, that is the manner and extent of the assault.</p> <p>It is common cause that after the assault at accused 6 Mushoni’s homestead the now deceased was ferried in accused 6 Mushoni’s motor vehicle to some point into the bush. The motor vehicle was driven by accused 6 Mushoni who was seated in the cabin with accused 4 Given. The now deceased was in the loading box with accused 2 Hardlife, accused 3 Jonathan and accused 5 Given.</p> <p>It is not in issue that accused 1 Elliot and accused 7 Farai remained at accused 6 Mushoni’s homestead when all other accused left with the now deceased in accused 6 Mushoni’s motor vehicle.</p> <p>It is common cause that that after leaving accused 6 Mushoni’s homestead the now deceased was further assaulted and abandoned in the bush where he died. What is in dispute is who assaulted the now deceased at that stage and the manner of the assault.</p> <p>Lastly all the 7 accused have put into issue the cause of the now deceased’s death. Put differently, they all disputed that the assault they perpetrated on the now deceased has a nexus to his death.</p> <p>The state case is that after accused 1 Elliot and accused 4 Cosmas apprehended the now deceased at accused 6 Mushoni’s homestead they tied him on both hands with a rope and assaulted him. The other accused then arrived at the homestead and took turns to assault the now deceased with a whip and open hands indiscriminately at this homestead. Thereafter it is the state case that the now deceased was taken by accused 2 Hardlife, accused 3 Jonathan, accused 4 Cosmas, accused 5 Given and accused 6 Mushoni in accused 6 Mushoni’s motor vehicle to Chibhanguza Village, Headman Makonese, Chivi where the motor vehicle was stopped and the assault of the now deceased continued. The now deceased was then abandoned in the bush where he passed on only for his body to be discovered on 28 July, 2019 at about 1100 hrs. Police investigations led to the arrest of all 7 accused and the recovery of various exhibits including blood stained whips and switches. The state alleges that the now deceased sustained various injuries inclusive of the head injury and fractured neck which were the proximate causes of his death.</p> <p>In order to buttress its case the state called Judith Tavarera, Collen Zibako, Special Constabulary Tobias Taru, Dr Godfrey Zimbwa, D/Cst Wilbert Maruva and D/Sgt Nxumalo Mxolisi as state witnesses.</p> <p>All the 7 accused gave evidence and did not call any defence witnesses.</p> <p>A total of 14 Exhibits were produced by consent. They are as follows;</p> <p>Exhibits 1 to 7 are accused persons ‘confirmed warned and cautioned statements. I shall assess their probative value or relevance in dealing with all 7 accuseds’ evidence.</p> <p>Exhibit 8 a is post mortem report. I shall assess its probative value in dealing with Dr Godfrey Zimbwa’s evidence and the cause of the now deceased’s death.</p> <p>Exhibit 9 is a bunch of switches. We noted that these switches are broken, not very thick and of various sizes. They were recovered at the scene near where deceased’s body was found. It is not in dispute they were used to assault the now deceased.</p> <p>Exhibit 10 is a pair of accused 5 Given’s tackies which he worn on the day in question and were taken by police during investigations as they were blood stained.</p> <p>Exhibit 11 is the now deceased’s bag containing the now deceased’s clothes. It was recovered in the bush near the now deceased’s body.</p> <p>Exhibit 12 is sjambok or whip. It was recovered at accused 6 Mushoni’s homestead at accused 6 Mushoni’s instance. It is common cause it was used to assault the now deceased.</p> <p>Exhibit 13 is a long green rope. Again it was recovered at accused 6 Mushoni’s homestead at his instance and it is common cause of was used to tie the now deceased.</p> <p>Exhibit 14(a) to (f) are photo graphs of the now deceased’s body taken by police as he lay in various positions. What can be observed is the deep cut on right wrist, injured left leg, injured left leg, various broken switches near the body of the deceased and tree branches.</p> <p>What is important to note in this case is that other than the 7 accused persons no one else witnessed the assault of the now deceased. This means that in ascertaining the manner and extent of the assault perpetrated on the now deceased the court has to rely on accused persons’ testimony, the nature of injuries observed by witnesses and the post mortem report.</p> <p>We now turn to the evidence of the state witnesses.</p> <p>Judith Tavarera (Judith)</p> <p>She is the first person who discovered the now deceased’s body on 28 June, 2019 at about 1100 hrs on her way to the church. She thereafter alerted fellow villagers including special constabulary Tobias Taru. All Judith observed was that the now deceased was lying near a road in the bush on his back. She observed an injury on his left wrist, switches and foot prints near the now deceased’s body. Most importantly she observed motor vehicle tyre marks close to deceased’s body and that some of the switches were broken and blood stained.  It is common cause that tyre marks were of accused 6 Mushoni’s motor vehicle and the switches were used to assault the now deceased. Judith’s observations are not contested.</p> <p>Collen Zibako (Collen)</p> <p>Is an uncle to the now deceased. He knew the now deceased since birth.</p> <p>It was a bit difficult to comprehend his evidence as regards the now deceased’s life history. While Collen intimated that the now deceased exhibited signs of mental illness he nonetheless failed to lucidate on what those signs were. All he said is that the now deceased would spent months without bathing. The now deceased had no history of involving in any criminal conduct.</p> <p>Collen is the one who positively identified the now deceased to the police in the bush. He observed a deep cut on the hand and leg.</p> <p>According to Collen the accused persons paid 8 head of cattle as compensation out of 31 cattle and 10 goats demanded by the now deceased’s family. They also provided mealie meal for the mourners. However accused 6 Mushoni said he paid 4 cattle, and that his co accused Jonathan paid 2 cattle, accused 4 Cosmas two cattle, accused 2 Hardlife 4 goats and accused 5 Given 5 goats all as compensation. Accused 6 Mushoni said he bought deceased’s coffin and met all funeral expenses as pressure was brought to bear upon him after the now deceased’s body had been dumped at his homestead.</p> <p>All we noted is that Collen was a jittery and belligerent witness who failed to explain seemingly simple issues like accused’s alleged mental health and circumstances surrounding payment of compensation by some of the accused persons.</p> <p>Special Constabulary Tobias Taru (Sp/Cstbry Taru)</p> <p>S/Cstbry Taru is the first police detail who visited the scene where the now deceased’s body was found. His evidence also explains how the accused persons were arrested as the culprits. We assessed him to be a very impressive witness who surprisingly had an excellent eye for detail and comprehensive observations.</p> <p>S/Cstbry Taru said after being alerted by Judith he visited the scene where the now deceased’s body was and observed the following;</p> <ol> <li>the now deceased was lying in the bush near the road on his back</li> <li>there was a trail of blood drops from the body which he followed for few metres and they ended where there was motor vehicle marks showing that at that point a motor vehicle had reversed. This has a bearing on accused’s evidence on how they left the now deceased in the bush</li> <li>he observed pieces of broken mopani tree switches near deceased’s body although there were no mopani trees within the surrounding area. This would mean the mopani tree switches were plucked from some other area</li> <li>the scene of crime made him to suspect foul play and he made inquiries within the public until an informer advised him that accused persons were the culprits. He in turn advised members of the regular police at Chivi police station. He was present when police went to accused 6’s homestead and first arrested accused 1 Elliot, accused 4 Cosmas and accused 7 Farai which led to the arrest of other accused persons. Indeed credit is due to Special Constabulary Taru for such a sterling and excellent job which I believe even members of the regular police force should emulate without use of unlawful force to crack cases.</li> </ol> <p> </p> <p> </p> <p>D/Sgt Nxumalo Mxolisi’s </p> <p>His role was to take deceased’s photographs Exhibit 14(d) to (f) at the scene as he was part of the investigating team.</p> <p>D/Cst Wilbert Maruva (D/Cst Maruva)</p> <p>D/Cst Maruva only attended scene after details from ZRP Chivi had already first attended the scene. At the scene he observed some struggle marks a distance from deceased’s body and motor vehicle tyre marks. There were pieces of Mususu tree and Mopani tree switches some of which were blood stained. He observed several whip marks on the now deceased’s body and clots of blood on now deceased’s nose and mouth.</p> <p>After the arrest of accused 5 they recovered accused 5’s blood stained tackies which had made similar prints at the scene where the body of deceased was and took them as Exhibit 10. D/Cst Maruva said all 7 accused made indications at accused 6 Mushoni’s homestead where the assault first took place. Thereafter he said accused 4 Cosmas and accused 5 Given led them to the bush near deceased’s body where they recovered the now deceased’s bag Exhibit 11 with deceased’s various items. He said accused 6 Mushoni led to the recovery of the whip Exhibit 12 and the rope Exhibit 13 at his homestead.</p> <p>D/Cst Maruva said whilst all accused alleged the now deceased had intruded into accused 6 Mushoni’s homestead none of them was able to explain how the now deceased had done so as the durawall around that homestead is very high and both gates were locked. Further he was not shown any single item the now deceased had stolen or the alleged window pane he had broken. All the accused showed him were switches, and a whip they used to assault the now deceased and that they had also used open hands and booted feet.</p> <p>The evidence of D/Cst Maruva is not controverted.</p> <p>We now turn to Dr Godfrey Zimbwa’s evidence which is relevant to the now deceased’s cause of death.</p> <p>All the accused refuted that they had a hand in the now deceased’s death. They all said there was no nexus between the cause of deceased’s death and the assault each accused perpetrated on the now deceased with the whip, thin switches and open hands. All accused except accused 1 Elliot and accused 7 Farai said the now deceased was possibly fatally injured when he jumped from accused Mushoni’s moving vehicle and hit his head hard on to the ground or hit his head against tree trumps as he fled or had his neck stuck between some logs as he tried to flee in the bush. Now is this possibly true in light of the medical evidence available?</p> <p>As per Exhibit 8 the post mortem report the now deceased’s remains were examined by Dr Zimbwa on 1 July, 2019 and he made the following observations;</p> <p>“<em>1) extensive whole body lacerations with multiple whip lash marks</em></p> <p><em>  2) multiple head bruises with facial swelling </em></p> <p><em>  3) bilateral fracture of clavicles</em></p> <p><em>  4) neck is loose and hyper mobile</em>”</p> <p>Dr Zimbwa concluded that the cause of death was “head injury and fractured neck”.</p> <p>Dr Godfrey Zimbwa (Dr Zimbwa)</p> <p>Dr Zimbwa is a fairly experienced doctor with 23 years’ experience. He examined the remains of the now deceased and compiled Exhibit 8 the post mortem. He observed the whip lashes and broken collar bones (clavicles) on both sides.</p> <p>According to Dr Zimbwa switches could only cause whip lashes or marks or lacerations not neck fracture.</p> <p>Dr Zimbwa said while it was possible for the now deceased to sustain a fractured neck after jumping from a moving motor vehicle he found this to be most unlikely in this case. Dr Zimbwa explained that after breaking the neck on hitting the ground it could have been virtually impossible for the accused to flee let alone to be chased by the accused as they allege. Dr Zimbwa said this was not possible because a fractured neck would immediately give severance or partial tear of the spinal chord which in turn would trigger immediately 3 things which are;</p> <ol> <li>immediate paralysis or weakness of both hands</li> <li>immediate paralysis of both limbs and</li> <li>most fatally is the paralysis diaphragm muscles and breathing ceases</li> </ol> <p>Dr Zimbwa said it would not have been possible for the now deceased to flee and be chased after by the accused persons after sustaining such an injury as they allege as the now deceased would only have hobbled for about 3 metres and collapsed.</p> <p>Dr Zimbwa discounted that the neck could have been broken by the whip Exhibit 12 or switches but possibly using booted feet. He said the broken collar bones on both sides could not have possibly been caused by falling from a moving motor vehicle but application of direct force on both sides of the neck. Dr Zimbwa said after breaking the neck the now deceased would not be able to flee at all as he would virtually have no limbs or legs to do so, worse still would not be able to breathe.</p> <p>Dr Zimbwa said he did not find any injuries consistent with the now deceased having fallen from a moving motor vehicle because if he had done so head long the skull would have been injured not the neck. All he observed were whip marks all over the body indicative of indiscriminate, sustained or prolonged assault. Dr Zimbwa dismissed the version given by the accused on how the now deceased was injured as clearly falsely because after breaking the neck the accused persons could not even have bothered to assault the now deceased because they would simply be assaulting a corpse by then. </p> <p>What emerges from Dr Zimbwa’s evidence therefore is that the now deceased either never jumped from the motor vehicle or if at all he did he was not injured in the manner explained by the accused. The only inference we can rightly draw is that the fractured neck was a result of assault. This means that all accused except accused 1 Elliot and accused 7 Farai told a material lie on how the now deceased was injured and we are entitled to draw an adverse inference.</p> <p>Finally, we assess the evidence of each accused in order to determine whether any criminal liability can be ascribed to him.</p> <p>Accused 1 Elliot</p> <p>Elliot did not go with the now deceased where he was finally dumped. This means he only assaulted the now deceased at the homestead of accused 6 Mushoni. Indeed, Elliot was not truthful on how he assaulted the now deceased. In Exhibit 1 his warned and cautioned statement he did not explain how he perpetrated the assault. As per his defence outline he is the one with accused 4 Cosmas who tied the now deceased with the rope Exhibit 13.</p> <p>In his defence outline Elliot said he only assaulted the now deceased with open hands. Elliot could not explain why he omitted to explain the manner in which his assaulted the now deceased in his confirmed warned and cautioned statement. Further accused 2 Jonathan said Elliot just like all 7 accused assaulted the now deceased at the homestead with a switch. Accused 5 said Elliot also used a sjambok.</p> <p>While accused Elliot may have under played how he assaulted the now deceased the fact remains that he did assault the now deceased. However the assault at the homestead could not have been fatal although serious.</p> <p>In the circumstances, accused 1 Elliot can only be found guilty of contravening section 89(1) of the Criminal Code [<em>Cap 9:23]</em> relating to assault.</p> <p>Accused 7 Farai</p> <p>Just like accused 1 Elliot, accused 7 Farai remained at the homestead when the now deceased was ferried away in the motor vehicle. Accused 7 Farai admitted assaulting the now deceased at the homestead. However in his confirmed warned and cautioned statement accused 7 Farai did not explain the manner of the assault he perpetrated.</p> <p>In his defence outline accused 7 Farai said he used open hands only. However accused 3 Jonathan said accused 7 Farai used switches. Accused 5 Given said Farai also used a sjambok Exhibit 12. Again, accused 7 Farai may have underplayed the manner he assaulted the now deceased. However such an assault was not possibly fatal. He should be found guilty of contravening section 89(1) of the Criminal Code [<em>Cap 9:23</em>] which is the offence of assault.</p> <p>Accused 2 Hardlife, accused 3 Jonathan, accused 4 Cosmas, accused 5 Given and accused 6 Mushoni all assaulted the now deceased at the homestead and are the ones who drove away with the now deceased and abandoned him in the bush.</p> <p>It is also clear that accused 2 Hardlife, accused 3 Jonathan, accused 4 Cosmas, accused 5 Given and accused 6 Mushoni lied in their evidence. In their warned and cautioned statements they all said the now deceased jumped off the motor vehicle after it had stopped. This includes the version given by accused 6 Mushoni the driver. However in court they changed their story and said the now deceased jumped off the motor vehicle after it slowed down. They were all not able to reconcile these contradictory versions. They all gave the warned and cautioned statements in the presence of legal counsel. The warned and cautioned statements are confirmed. This casts serious doubt as to whether the now deceased even jumped off the motor vehicle moreso in view of observations at the scene by Special Constabulary Taru and Dr Zimbwa’s evidence.</p> <p>Accused 2 Hardlife does not explain the manner he assaulted the now deceased after he chased him and caught him in the bush nor that the now deceased hit against any tree trumps or caught between any logs as he later said in court. Again he was untruthful.</p> <p>Accused 3 Jonathan does not explain how he assaulted the now deceased at the homestead. While in the bush he said he remained standing at the motor vehicle with Mushoni after the now deceased fled as per his confirmed warned and cautioned statement. However this is refuted by accused 6 Mushoni who said he directed Mushoni on how to reverse and followed other accused persons.</p> <p>Accused 4 Cosmas and accused 5 Given do not explain in the warned and cautioned statements how they assaulted the now deceased in the bush after apprehending him.</p> <p>Accused 6 Mushoni in his warned and cautioned statement confirms his colleagues assaulted the now deceased in the bush although he himself did not.</p> <p>How then do we assess accused 2 to 6’s criminal liability?</p> <p>Accused 2 Hardlife</p> <p>Accused 2 Hardlife said he kicked the now deceased at the homestead. In the bush as per his defence outline he said he used open hands to assault the now deceased. In his evidence in chief he denied assaulting the now deceased after chasing him in the bush. These conflicting versions by accused 2 Hardlife cannot possibly true. We are persuaded to accept what Elliot said that at homestead accused 2 also used open hands and switches as explained.</p> <p>Accused 3 Jonathan</p> <p>At the homestead accused 3 Jonathan said he used open hands to assault the now deceased. He denied further assaulting the now deceased in the bush. However accused 5 Given said accused 3 Jonathan also used a sjambok Exhibit 12 at the homestead. Accused 5 Given also said accused 3 also chased after the now deceased and used a switch to assault the now deceased about 4 times. Accused 6 Mushoni said he also told accused 3 to follow other accused who had chased after the now deceased. It is clear to our minds that accused 3 Jonathan also assaulted the now deceased not only at the homestead but in the bush as explained. There is nothing to suggest he disengaged from the conduct of his colleagues.</p> <p>Accused 4 Cosmas</p> <p>At the homestead Cosmas said he assaulted the now decease with open hands. In the bush he said he also used switches to assault the now deceased. Accused 4 under cross examination changed and said he used booted feet and sjambok to assault the now deceased at the homestead.</p> <p>Our finding is that accused 4 Cosmas assaulted the now deceased at homestead with open hands and booted feet. In the bush he used switches.</p> <p>Accused 5 Given</p> <p>At the homestead accused 5 Given said he used open hands to assault the now deceased. In the bush he said he also used switches. However accused 1 Elliot under cross examination said he panicked and had to move away fearful of the severe manner accused 4 Cosmas and accused 5 Given were assaulting the now deceased at the homestead as it was clear that severe injury would result.</p> <p>Again our finding is that accused 5 Given assaulted the now deceased both at the homestead and in the bush.</p> <p>Accused 6 Mushoni</p> <p>Accused 6 Mushoni was allegedly the wronged party. The unlawful intrusion had happened at his residence. It is his property allegedly stolen and window pane of his house broken. He is the eldest of all the accused and was their benefactor. His motor vehicle was used to ferry the now deceased and he drove it. It is accused 6 Mushoni who decided that the now deceased should be left in the bush. Above all accused 6 did not bother to take the now deceased to police. He did not restrain any of the accused from assaulting the now deceased neither did he disengage from what the accused were doing, that is assaulting the now deceased. Instead he assaulted the now deceased with the sjambok Exhibit 12 at his homestead and watched the assault in the bush. The inference we can draw is that accused 6 at all material times acted in common purpose with the other accused persons.</p> <p>According to accused 2 Hardlife it is accused 6 Mushoni who instructed other accused to leave the now deceased in the bush. This is not refuted by accused 6 Mushoni himself.</p> <p>Accused 5 Given said accused 6 witnessed the assault in the bush. This is not refuted by accused 6 himself.</p> <p>In our assessment accused 6 Mushoni was a poor witness whose attempt to distance himself from all what happened is clearly futile. Why do we say so?</p> <ol> <li>At his homestead he decided to assault the now deceased whom he knew had been assaulted by all other accused before him oblivious of injuries the now deceased had sustained.</li> <li>It is accused 6 who took a conscious decision not to take the now deceased to the police but rather to inflict punishment and take the law in his hands.</li> <li>It is accused 6 despite witnessing the further assault in the bush who did not take the now deceased to his homestead or to check on the injuries inflicted but simply instructed his colleagues to stop the assault and leave the now deceased in the bush without checking his condition</li> <li>Accused 6 Mushoni totally failed to explain why he suddenly lost interest to take the now deceased to the now deceased homestead close by or alert the now deceased’s relatives of all what had happened. He could not explain why he never took the stolen items to the police or report the matter. He could not explain why he did not check whether the deceased who had allegedly jumped off his moving vehicle and had been further assaulted was injured. He saw deceased injured at his homestead and was tied while in his motor vehicle. Despite allegations of unlawful intrusion at his homestead he decided to ignore all what had happened by not making any report to the police or to anyone. He was happy to pretend nothing had happened. The only inference we can draw is that accused 6 Mushoni acted in this manner because he was acting in common purpose with all accused. He participated in the assault of the now deceased and was an accessory to all what happened. He was also negligent in his conduct.</li> </ol> <p>It is therefore our finding that accused 2 Hardlife, accused 3 Jonathan, accused 4 Cosmas, accused 5 Given and accused 6 Mushoni acted in common purpose. The assault on the now deceased was prolonged and persistent. The degree of force was quite high in view of injuries inflicted. None of them cared as regards nature of injuries indiscriminately caused. They all abandoned the now deceased in the bush. Al the accused 2 to 6 while not having intention, actual or constructive to cause deceased’s death, were nonetheless negligent in their conduct which conduct led to the deceased’s demise.</p> <p> </p> <p> </p> <p> </p> <p>In the result, we have entered the following verdict;</p> <p><strong>VERDICT</strong></p> <p>Accused 1 Elliot – not guilty of murder but guilty of contravening section 89 of the Criminal Code [<em>Cap 9:23</em>] – Assault.</p> <p>Accused 2 to 6 (Hardlife, Jonathan, Cosmas, Given and Mushoni) – not guilty of murder but guilty of contravening section 49 of the Criminal Code [<em>Cap 9:23]</em> – culpable homicide.</p> <p>Accused 7 Farai – not guilty of murder but guilty of contravening section 89 (1) of the Criminal Code [<em>Cap 9:23</em>] – Assault.</p> <p> </p> <p> </p> <p> </p> <p> </p> <p><em>National Prosecuting Authority</em>, counsel for the State</p> <p><em>Mugiya &amp; Muchami Law Chambers</em>, counsel for all 7 accused</p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/masvingo-high-court/2020/34/2020-zwmsvhc-34.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=28760">2020-zwmsvhc-34.docx</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/assault-intent-do-grievous-bodily-harm">Assault with intent to do grievous bodily harm</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/culpable-homicide">Culpable homicide</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/murder">Murder</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-general-principles">CRIMINAL LAW (General Principles)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/degrees-participation">Degrees of participation</a></li></ul></span> Tue, 28 Jul 2020 08:19:53 +0000 Sandra 9803 at https://old.zimlii.org S v Sipanda & Another (HMT 15-20, CRB 06/19) [2020] ZWMTHC 15 (31 January 2020); https://old.zimlii.org/zw/judgment/mutare-high-court/2020/15 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>STATE                                               </p> <p>versus</p> <p>REMIGIOUS VITALIS CHIBANDA SIPANDA</p> <p>and</p> <p>TAPIWA ZVOMUNO</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MUZENDA J</p> <p>MUTARE, 28, 29 and 31 January 2020</p> <p> </p> <p> </p> <p><strong>Criminal Trial</strong></p> <p> </p> <p> </p> <p>ASSESORS:   1. Mr Raja                  </p> <p>2. Mr Magorokosho</p> <p> </p> <p> </p> <p>Mrs <em>J Matsikidze</em>, for the State</p> <p><em>P Nyakureba</em>, for the First Accused      </p> <p><em>C Ndlovu</em>, for the Second Accused               </p> <p> </p> <p> </p> <p> </p> <p>MUZENDA J: The two accused are charged with Murder as defined in s 47 (1) (a) or (b) of the Criminal Law (Codification and Reform) Act [<em>Chapter 9:23</em>] where it is alleged by the State that on 4 November 2018 and at Magamba Turn-off, Rusape, the two accused in the company of one Lucky, who is still at large, all and each or one or the other of them, unlawfully caused the death of Emmanuel Ngwarati by assaulting him with booted feet and fists and stabbing him with a knife all over the body intending to kill Emmanuel Ngwarati or realising that there was a real risk or possibility that their conduct might cause death and continued to engage in that conduct despite the risk or possibility resulting in injuries which the said Emmanuel Ngwarati died. Both accused pleaded not guilty to the charge.</p> <p> </p> <p>RIMIGIOUS VITALIS CHIBANDA SIPANDA: ACCUSED ONE’S DEFENCE OUTLINE</p> <p>            Accused 1 stated that on 4 November 2018, he was at home in Overspill Epworth in Harare. He does not know the other accused person(s). He never participated in the commission of the crime. He was arrested because he was the last person to communicate with the deceased on the morning of 4 November 2018 through his mobile phone. He will further state that the deceased called him on 4 November 2018 only enquiring about his money and drugs. The deceased wanted to know when the accused person was coming to Rusape. Accused 1 was arrested on 23 November 2018 at Overspill, Epworth, Harare at a bar where he had gone to see his girlfriend. He prayed for an acquittal.</p> <p> </p> <p>TAPIWA ZVOMUNO: ACCUSED TWO’S DEFENCE OUTLINE</p> <p>            Accused 2 denies causing the death of the deceased as alleged. On the fateful day he received a call from his acquaintance Lucky inviting him to travel from Harare to Rusape so that they could indulge. When he arrived in Rusape he met up with Lucky who was drinking alcohol and already in the company of the deceased and one Remmy. To the second accused the three appeared before him to be mutual friends. All four of them were partaking alcohol in a Night Club. At some time accused 2 overhead an argument between deceased and Lucky centred on some gold parcel that had allegedly been left at Nyazura Township by the deceased. As the night progressed Lucky suggested to the deceased that they should all proceed to Nyazura to retrieve the gold parcel from deceased’s girlfriend’s place, where it had allegedly been left. The deceased agreed to the proposal on condition that his car was fuelled.</p> <p>Accused 2 loaned Lucky $20-00 to procure fuel and the money was given to the deceased to buy fuel which he did. The four of them got into the car with deceased driving and Lucky seated in the front passenger seat. Along the way the argument between Lucky and deceased intensified and the deceased stopped the car on the side of the road. He switched off the engine and lights and got out of the car. The deceased relieved himself by the side of the car. Lucky also got out of the car, deceased hinted that he was no longer taking them to Nyazura to pick up the gold parcel. Lucky was incensed and a fist fight erupted between the two. The deceased brought out a knife from the pocket of his trousers and threatened to stab Lucky. At that moment accused 2 and Remmy got out of the vehicle and restrained the two. Remmy held Lucky and the accused held the deceased’s hand which was holding the knife.</p> <p>Lucky got free from Remmy’s grip and charged at the deceased. Lucky forcibly took or snatched the knife from the deceased. During the melee, accused 2 was stabbed on his hand and began to bleed. He released the deceased and went to stand by the car. Lucky and the deceased continued their altercation and he observed Lucky stabbing deceased several times on the thigh. The second accused screamed at Lucky to refrain from the aggression as the deceased was apparently hurt and was bleeding. Lucky was not deterred and he continued to attack the deceased. Remmy was also calling out to Lucky to stop the violence. Eventually Lucky stopped and the deceased was crying out that he had been hurt badly.</p> <p>Lucky was belligerent indicating that he wanted his gold. Deceased indicated that he was not going to release the gold and that he was better off dead. The deceased twice crawled into the road so that he could be run over by passing vehicles. On both instances the deceased was pulled away from the pending danger by Remmy. Deceased shouted that he was going to commit suicide that night. Lucky suggested that deceased be restrained so that he could not harm himself. Lucky and Remmy tied up the deceased on his legs and arms. They ferried him a few metres away from the road and placed him there. Accused 2 pleaded with Lucky not to leave the deceased at that spot but Lucky would not hear any of it. Lucky ordered the accused and Remmy into the car and he drove back to Rusape. On the way back to Rusape the second accused pleaded with Lucky to be dropped off at the bus terminus to catch up a lift to Harare, Lucky obliged and he was dropped off. Before Lucky and Remmy drove away Lucky disclosed that he had taken deceased’s phone and that he was going to use same to recover the costs of the fuel that had been put in deceased’s car. Accused 2 got a lift that took him to Harare. The following day he was called by Lucky who suggested that they should meet in town. He obliged and upon arrival he found Lucky waiting for him. Lucky produced a white Samsung phone and indicated that he was looking for a buyer to sell the cell phone to so that he would raise bus fare  to his residence in Epworth.</p> <p>The second accused contacted Ernest Mhishi who came and purchased the phone for $10-00. Lucky took all the money and parted way. That was the last time accused 2 saw Lucky. A few days later he was arrested and he told the police the full story but they would not accept it. Accused 2 was psychologically and physically abused by the police during investigations to the extent that they forced him to sign a false Warned and Cautioned Statement. Even during the confirmation proceedings the police officers maintained vigil and a menacing presence. Accused 2 urged the court to appreciate that he never attacked the deceased, he was actually injured or stabbed when he intervened to stop the fight between deceased and Lucky, he did not participate in tying up the deceased he protested to Lucky that what he was doing was wrong. When deceased was tied up and taken away from the road he was much alive but had been injured. Accused 2 prayed for his acquittal.</p> <p> </p> <p>BACKGROUND</p> <p>            The State summary produced by the State briefly state that the two accused and one Lucky all resided in Epworth, Harare and the deceased lived in Rusape where he operated an unregistered taxi. On 3 November 2018, the deceased left his home to visit his rural home but returned the same day. On the same day, the accused persons and their accomplice left Epworth, Harare by bus destined for Rusape. In Rusape they went to Cheers Bar and drank beer. After some time the two walked to the Harare-Mutare road while their accomplice remained at the bar for a taxi. In no time the accomplice met the deceased who then called accused 1 to find their exact location. When the said Lucky and the deceased arrived where the two accomplice were, the three immediately attacked the deceased with clenched fists, booted fit and a knife all over his body. They immobilised him before taking his cell phone and wallet which were in his trousers pocket. They tied his hands and feet and blindfolded him before putting him on the car which one of them drove. They drove along in his vehicle and upon reaching Magamba turn off they stopped the car. They took the deceased out of the car and demanded the PIN to his ecocash account and assaulted him when he did not oblige. They took away his cell phone and case as well as his car before leaving him there. He was found by passers-by in the morning.</p> <p> </p> <p>STATE CASE</p> <p>In order to prove its case the State led the following evidence:</p> <ul> <li>The post mortem report, exh 1, the Doctor noted that: the left wrist was fractured, incisive wound penetrating on the right chest to 2cm above the nipple and 8cm of the sternum area, the wound was 5cm long by 4cm wide, incisive wound by 0.5cm of width on the upper portion of the left thigh, incisive wound of 7cm of length and 4cm of width located on the left tibia, plaque abrasion on the knee, contuse wound of 2cm of length on the left hand, incise wound of 3cm by 2cm of width on the left scapule, incise wound of 5cm of large by 4cm of wide on the right scapule, incise wound of 3cm of large on the outer of thoracic spine cord, incise wound of 2cm of large on the outer of thoracic spinal cord, incise wound penetrating of 4cm of large by 3cm of wide bipanetal area. On the brain, the Doctor detected haematoma, moderate brain oedema, moderate brain congestion, chronis anochroniditis signs. On the thorax: right haemothorax of 60ml, section of the right second rib with haemorrhagic injury, the pleura had a right rapture, the right lung had a rapture of 1cm of large on the upper lobe on the back side, the heart was affected, the liver had a rapture on the right lobe, both kidneys had shock appearance.</li> </ul> <p> </p> <p>As a result of the examination, the Doctor formed the opinion that the cause of death was:</p> <ul> <li>Hypovolemic shock.</li> <li>Right lung rapture and left saphengrum section.</li> <li>Multiple stab wound injuries.</li> </ul> <p> </p> <p>The Doctor further remarked that the traject of the stab wounds injuries are multiple, the weapon is a sharp object with approximately 4cm of wide and 10cm of large.</p> <ul> <li>The State also produced exh 2 which is the call history of the deceased’s cell phone showing that deceased called accused 1 after midnight on the morning of 4 November 2018.</li> <li>Exhibit 3 was the photo album of the post mortem process showing the deceased’s affected body parts.</li> <li>Exhibit 4 was the Vodafone cell phone.</li> <li>Exhibit 7 was the sim card for number 0784 742542.</li> <li>Exhibit 8 was the driver’s license belonging to the deceased.</li> <li>Exhibit 9 was the blood stained pair of jean trousers.</li> <li>Exhibit 10 is the confirmed warned and cautioned statement of accused 2. The statement was recorded by Detective Sergeant Muwowo at Rusape CID on 16 November 2018 at 1500 hours and the English version of the Shona translation was captured thus:</li> <li> </li> </ul> <p> </p> <p>The statement was confirmed at Rusape Magistrate’s Court on 26 November 2018. The State applied in terms of s 314 of the Criminal Procedure and Evidence Act [<em>Chapter 9:07</em>] to have the following evidence of the witnesses to be admitted by the court thereby dispensing the testimony of the witnesses, the defence counsel Mr <em>Nyakureba</em> and Mr <em>Ndlovu</em> indicated that the production of the synopsis of that evidence as outlined in the State summary was by consent. As a result the evidence of James Makolo, Last Adam, Cephas Maramba, Peter Chikwature, Thomas Nyamudya, Tafadzwa Changara, Mervis Ganyata, Tofirei Mazongonda and Dr Aisa was accepted by the court as not in dispute.</p> <p>The evidence of Lucia Munyikwa was expunged from the summary of evidence of the State. The State then proceeded to call the wife of the deceased Tsitsi Melanie Madziwa, Ernest Mhishi, Detective Assistants Inspector Gift Mazano, the investigating officer Detective Sergeant Muwowo and MacDonald Mutasa. The evidence of each of these witnesses will be analysed in respect of each accused.</p> <p> </p> <p>WHETHER THE STATE PROVED ITS CASE AGAINST THE FIRST ACCUSED</p> <p>The first accused in his defence stated that he was not at the scene of the crime on the early morning of 4 November 2018. He states that he was in Epworth. In other words he raised a defence of <em>alibi</em>. He however admits that he spoke to the deceased over the phone on the morning deceased was murdered. The defence counsel for the first accused submitted that there is no evidence led by the State to prove that the first accused participated in the robbery, assault and eventual killing of the deceased by the second accused and the other two accused who are still at large, Lucky and Remmy.</p> <p>He further submitted that accused 2 in this case exonerated first accused from the commission of the offence as he was clear that it was not accused 1 whom he refers to Remmy. First accused also contends that there is no evidence proving that the phone call made by the first accused had anything to do with the deceased’s death. No triangulation of the call history was produced to prove the geographical location of the first accused at the time he received deceased’s call. On the aspect of the bag, the defence for accused 1 submitted that the bag was not brought to the hospital by first accused but by a third party. When the first accused was already detained only the person who brought the satchel which had deceased’s driver’s license should explain where he got the bag and how the deceased’s driver’s license ended being there in the bag.</p> <p>In relation to the first accused, the State called Detective Assistant Inspector Gift Mazano. He knows first accused as a local of Rusape, he also knew deceased. On 15 November 2018 together with other detectives, they recovered deceased’s Vodafone cell phone from Ernest Mhishi who led detectives to accused two. They were then led to first accused by accused two.</p> <p>Counsel for first accused consented to the admission of the evidence of Mervis Ganyata in terms of s 314 of the Criminal Procedure and Evidence Act [<em>Chapter 9:07</em>] and the essence of her evidence is that on 23 November 2018 she was present when first accused was arrested at Overspill in Epworth. She was present when a search was conducted on the first accused which led to the recovery of a Nokia cell phone with an econet line number 0784 742542 which was the last number used to communicate with the deceased. The first accused confirmed the line was his and his participation in the deceased’s demise (my own emphasis). McDonald Mutasa is a duly attested member of the Zimbabwe Prison and Correctional Services. He only knows the accused only in connection with this case. On 26 November 2018, he was one of the officers guarding the first accused person. As per procedure at his workplace, he searched the first accused’s belongings and found in his satchel two screw drivers and a Zimbabwean driver’s license in the name of the now deceased. He informed the police of the findings and handed over the license and screw drivers.</p> <p>The foregoing evidence of Gift Mazano, Mervis Ganyata and McDonald Mutasa was not in principle challenged by the first accused. The court had no reason to impugn the same in any way. The first accused admits throughout the hearing that he indeed received a call from the deceased though to the first accused, the subject of the call kept changing. According to the State, deceased last called the first accused as to verify their location in Rusape so as to drive there. At the time the ultimate call was made by the deceased, deceased was already with Lucky and first accused at that time of call was with the second accused at a point in Rusape. First accused could not coherently explain to the court why he could be awake at 1245 am and answer incoming calls at that odd hour. We have no hesitation in accepting the version of the State that at the time first accused answered deceased’s call, he was with accused 2 in Rusape awaiting the arrival of Lucky and deceased.</p> <p>The first accused could not produce any evidence that he told the investigation officer about his alibi. He withheld his warned and cautioned statement which could have at least shown that through and through he has been raising a defence of alibi if he had done so surely detectives could have interviewed any witness at Overspill where the first accused was apprehended. Further according to the evidence of Mervis Ganyata, first accused admitted his participation in the deceased’s demise upon his arrest at Overspill in Epworth, thus we dismiss the whole euphoria about the defence of alibi raised by the first accused as an afterthought.</p> <p>McDonald Mutasa gave impeccable evidence, it was not exaggerated and the defence counsel for first accused mounted a casual challenge to his evidence. He did not exaggerate, he logically and fluently told the court when, why and where he searched the first accused’s satchel and how he discovered deceased’s license. He confronted first accused about the bag and first accused confirmed that it was his. If police had planted the license in the first accused’s satchel, they must be the ones to first take first accused to task well before placing first accused on remand. In any case Detective Assistant Inspector Gift Mazano searched the scene where deceased’s body was found as well as deceased’s motor vehicle, he did not mention that the license was found.</p> <p>The unavoidable conclusion we have reached is that deceased’s license was in his case or purse which was taken by the assailants from the car at the scene of murder together with the cash, the cell phones and other valuables. That group of assailants included first accused who among other things took possession of the subject driver’s licence that is exactly what the Shona adage accurately encapsulates what happened in this matter. “<em>Mhangachena inoparira parere nhema.</em>” The recovery of the license by the alert McDonald Mutasa, high recommendation to him, directly places the first accused into the chain of events up to the time deceased was murdered.</p> <p>We have no hesitation therefore in concluding that “the mysterious” “Remmy” continuously alluded to by the second accused is first accused. It also makes sense why second accused led the police to accused 1 and further as to where first accused was on 4 November 2018. First accused was with Lucky and accused 2 and the fourth person in the car was deceased. We are satisfied beyond reasonable doubt that the State had proved its case beyond reasonable doubt against first accused.</p> <p> </p> <p>WHETHER THE STATE PROVED ITS CASE AGAINST ACCUSED 2</p> <p>            Accused two gave a very long defence outline giving the interns of what happened on the fateful day. The quintessence of his defence is that he was at the scene on the day in question but did not participate in the murder case. It was Lucky who perpetrated the murder while he helplessly stood by. On the issue of the cell phone accused 2 insists that he was selling the phone on behalf of Lucky. He went on further to state that detectives intimidated him and forced him to sign the warned and cautioned statement which he did not agree with. He added that Detective Sergeant Muwowo threatened to shoot him. He was also threatened during confirmation proceedings. He was only refraining Lucky. The second accused further submitted that he has managed to challenge his confirmed statement for it was not made freely and voluntarily.</p> <p>            As regards the second accused, the State led evidence from Ernest Mhishi, the cell phone buyer. His evidence is not heavily contested by the second accused. Accused 2 contacted Ernest Mhishi and offered him a phone for sale. He sold it for $10-00 which money accused 2 says he gave to Lucky but thereafter both accused 2 and Lucky proceeded to Epworth together. Ernest Mhishi led to the arrest of accused 2. Detective Assistant Inspector Mazano’s evidence is on all fours with Ernest Mhishi as to how accused 2 was arrested. Detective Sergeant Muwowo the investigating officer in this matter went with Detective Assistant Inspector Mazano to Harare recovered the Vodafone cell phone from Ernest Mhishi and then arrested accused 2 upon the indications of Ernest Mhishi. He recorded a warned and cautioned statement from both accused and later facilitated accused 2’s statement’s confirmation but he did not attend court on the date of confirmation. Detective Sergenat Muwowo was cross examined at length by Mr Ndlovu but he remained cool and denied subjecting accused 2 to any pressure leading to the recording of the warned and cautioned statement and the confirmed statements. The second accused has placed himself squarely at the scene of murder, unavoidably he virtually knows what exactly transpired on the day in question.</p> <p> </p> <p>ACCUSED’S CONFIRMED WARNED AND CAUTIONED STATEMENT</p> <p>            Section 256 (2) of the Criminal Procedure and Evidence Act [<em>Chapter 9:07</em>] provides as follows:</p> <p>“A confession or statement confirmed in terms of subsection (3) of Section <em>one hundred and thirteen</em> shall be received in evidence before any court upon its mere production by the prosecutor without further proof.</p> <p> </p> <p>Provided that the confession or statement shall not be used as evidence against the accused if he proves that the statement was not made by him or was not made freely and voluntarily without him having been unduly influenced thereto, and if after the accused has presented his defence to the indictment, summons or charge the prosecutor considers it necessary to adduce further evidence in relation to the making of such confession or statement he may reopen his case for that purpose.”</p> <p> </p> <p>The confirmed warned and cautioned statement of accused 2 was produced by the State with the consent of Mr Ndlovu for accused 2. Accused 2 did not challenge the admissibility of the warned and cautioned statement which could have triggered the course of action as per the proviso to s 256 (2) cited <em>supra</em>. If the challenge was done by accused 2’s defence counsel that would have necessitated a trial within a trial. The court is at a loss when accused 2 in his closing submission contend that he managed to prove that he did not voluntarily give the warned and cautioned statement to the police. Maybe he thinks that by putting questions to the investigation officer during the main trial, he was challenging the admissibility of the statement before even the production of that statement. (See the matter of <em>Moffat Sibanda v The State</em> SC 61/91 per gubbay cj (as he then was) and also <em>R v Schumber Kuffler</em> 1969 (1) RLR 78 at 80 per beadle cj.)</p> <p>We are satisfied that the production of the second accused’s confirmed warned and cautioned statement by the State with the consent of the defence counsel was above board and the statement is admissible against accused 2, in terms of s 256 (2) of the Criminal Procedure and Evidence Act. See the case of <em>Kevin Woods and 2 Ors v The State</em> 1993 (2) ZLR 258, per gubbay cj (as he then was)). On page 11 of the report, he aptly held that:</p> <p>“…….in the absence of a patent irregularity in proceedings to confirm the warned and cautioned statement and indications made by the first and second appellants, all such statements were admissible on their mere production in terms of s 242 of the Criminal Procedure and Evidence Act…..”</p> <p> </p> <p>Accused 2 throughout his defence shifts all the blame to Lucky alleging that he initiated the trip to go to Nyazura to collect the gold parcel, confronted deceased, assaulted deceased and stabbed him several times using a knife. In our view accused is merely taking advantage of the absence of Lucky who is not before us. However the confirmed warned and cautioned statement, the selling of the cell phone to Ernest Mhishi places the second accused at the helm of the crime, why did not Lucky sell the cell phone on his own?</p> <p>Section 196A of the Criminal Law (Codification and Reform) Act [Chapter 9:23] provides:</p> <p>“If two or more persons are accused of committing a crime in association with each other and the State adduces evidence to show that each of them had the requisite <em>mens rea</em> to commit the crime, whether by virtue or having the intention to commit it, or the knowledge that it would be committed, or the realisation of a real risk or possibility that a crime of the kind in question would be committed, then they may be convicted as co-perpetrators in which event the conduct of the actual perpetrator (even if none of them is identified as the actual perpetrator) shall be deemed to be the conduct of every perpetrator, whether or not the conduct of the co-perpetrator contributed directly in any way to the commission for the crime by actual perpetrator.”</p> <p> </p> <p>The conduct of Lucky and the accused was collaborative of each other’s. We are satisfied that both accused and their outstanding accomplice, Lucky, set out from Harare with the express intention of committing robbery in Rusape. In Rusape they picked out the deceased upon the involvement of accused 1 who was incidentally very familiar to both deceased and the geography of the town, they tactfully lured him to an isolated rendezvous where they brutally assaulted deceased. They later kidnapped him to the place where his body was eventually found, demanded the PIN number to his ecocash account, assaulted him further then ransacked his motor vehicle. They then drove away after tying him and blind-folded him. The second accused is obviously not telling the truth that he did not report the matter to the police because he feared Lucky. He did report the matter because he was a co-perpetrator to the murder of deceased.</p> <p>We also reject his (accused 2’s) that he was just watching helplessly as Lucky was literally mutilating deceased’s body with a lethal weapon. As already highlighted hereinabove the detailed account of accused 2’s version both in the defence outline and confirmed extra-curial statement tallies with some of the facts admitted by both as common cause in this matter. The State has successfully managed to prove the case against accused 2 beyond reasonable doubt. He participated knowingly in the robbery of deceased and also participated actively in the killing of the deceased and dumping his body. He benefited a cell phone form the loot and accused 1 took away deceased’s driver’s license.</p> <p>            We are thus satisfied that both accused are guilty of Murder with actual intent in terms of s 47 (1) (a) of the Criminal Law (Codification and Reform) Act [<em>Chapter 9:23</em>].</p> <p> </p> <p><strong>Sentence</strong></p> <p>            In assessing an appropriate sentence the court will take into account both the mitigatory and aggravatory features submitted on behalf of the accused and the State. Accused 1 is aged 28 years and accused 2 is aged 30 years. Both are family men and first offenders. On the other hand they committed the offence out of greed and laziness in order to live a joyous life.</p> <p>            The offence committed by the accused is by all standards of evaluation punishable by capital punishment, the ultimate penalty for a murder charge committed in aggravatory circumstances in this case during robbery. The murder callous, heartless and brutal to say the least.</p> <p>Accused kicked deceased with booted feet, punched him with fists and stabbed him repeatedly and the post mortem shows that deceased’s body was littered with stab wounds all over the body, front, back, on the legs and arms. He was also bruised. Deceased died a horrible and painful death. The knife used was 4 cm wide and the blade 10 cm long. Accused stripped deceased and left him semi-naked in public for all passers-by to see. Deceased could not cry for help, could not move because accused had immobilised him. The offence calls for a severe penalty. However to second accused’s credit he led police to the arrest of the first accused.</p> <p>Section 47 (4) (a) provides that the penalty for murder committed in aggravated circumstances is a death penalty, imprisonment for life or imprisonment for any definite period of not less than twenty years.</p> <p>Accordingly given the horrific circumstances this murder was committed, both accused are sentenced as follows:</p> <p>Imprisonment for life.</p> <p><em>National Prosecuting Authority</em>, state’s legal practitioners</p> <p><em>Maunga Maanda &amp; Associates</em>, first accused’s legal practitioners</p> <p><em>Gonese &amp; Ndlovu</em>, second accused’s legal practitioners</p> <p>See also the provision of s 273 of the Criminal Law Procedure and Evidence Act [Chapter 9:07]</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/mutare-high-court/2020/15/2020-zwmthc-15.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=40691">2020-zwmthc-15.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/mutare-high-court/2020/15/2020-zwmthc-15.pdf" type="application/pdf; length=378949">2020-zwmthc-15.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/murder">Murder</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-general-principles">CRIMINAL LAW (General Principles)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/degrees-participation">Degrees of participation</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-procedure">CRIMINAL PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/admissions">Admissions</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/e">E</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/evidence-2">EVIDENCE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/accomplice-0">Accomplice</a></li></ul></span> Thu, 26 Mar 2020 10:22:53 +0000 Sandra 9593 at https://old.zimlii.org