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                                                                                                                                                                Judgment No. HB 16/14

                                                                                                                                                            Case No. CRB (HC) 194/14

THE STATE

versus

ABEL NKOMO

IN THE HIGH COURT OF ZIMBABWE

MOYO J

BULAWAYO 27 AND 28 JANUARY 2015

 Criminal Trial

Miss Ngwenya with S. Ndlovu for the applicant

Mr G. Nyathi for the respondent

MOYO J:       The accused person faces a charge of murder as defined in Section 47 of the Criminal Law Codification and Reform ) Act [Chapter 9:23]  it being alleged that on 28 June 2014 at Madlodlo beer garden the accused person stabbed the deceased Welcome Tshuma with a knife on the head resulting in deceased’s death on 2 July 2014.

The following were marked as Exhibits:

The state outline was marked Exhibit 1, the defence outline was marked Exhibit 2, the accused person’s confirmed warned and cautioned statement was marked Exhibit 3, the affidavit by the police officer who identified deceased’s body to the Doctor was marked Exhibit 4, the post mortem report was marked Exhibit 5, the weapon allegedly used in the commission of the offence was marked Exhibit 6.  Its an okapi knife whose total length is 24cm, the length of the handle is 14cm and the length of the blade is 11cm, the length of the sharp edge is 8,5cm.  The weight of the knife is 0,065kg.  Exhibit 5 the post mortem report by Doctor I. Jekenya gives the cause of death:

a)         brain haemorrhage,

b)         stabbing trauma

            The post mortem report further states that:

“The noted brain haemorrhages was as a result of trauma to the head.  The stabbed skin area has maximum brain haemorrhages under it, that is the stabbing caused a lot of trauma to the head with brain haemorrhages.  The first state witness Nkosinomusa Ndlovu told this court that the deceased was assaulted by the accused just after sunset on 28 June 2014.  She told the court that she knew both the accused and the deceased as deceased was a vendor at Madlodlo beer garden and accused used to sweep in the beer garden.”

            She was also a vendor in the beer garden. She told the court that on the fateful day, accused come to the kitchen where she was, to ask for his money, apparently she owed accused some money from a previous occasion.  As they talked about the money, deceased come to inform her that the person from whom they ordered cigarettes was outside so that she could go and make her order.  She said it is at that juncture that accused then pushed deceased saying deceased was disturbing him as he talked to the witness.  She said deceased then explained that all he wanted to do was to inform the witness about the presence of the person from whom they ordered cigarettes.  It is her evidence that deceased left and accused also left.   Later around 6pm she then saw accused in hot pursuit of deceased, deceased was at a distance from accused, but there was a bench on deceased’s way which then tripped him down.  Accused then caught up with him and she saw him hit the deceased who lay on the ground with a clenched fist on the heard, although she did not really see if accused held something inside the fist or not.  The deceased later got up and approached them on his way to a tap and she noticed that deceased was injured on the head as blood was oozing from deceased’s head.  She then said deceased left.  A mod .........instant justice on the accused who was then locked up in some room for his protection.  The police came in about 15 minutes and took accused away.  She later learn that deceased died on 2 July 2014. 

            The evidence of the state witness was admitted into the court record in terms of Section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07]. 

            Julia Lunga she had a kitchen at Madlodlo beer garden and her evidence is similar to and corroborates that of the first state witness Innocent Mativinge, Anna Mufudza, and TichatongaChabaya were all police officers involved with this case but Tichatonga Chabaya was the Investigating officer.  He recorded the confirmed and warned and cautioned statement from the accused.  He confirms the freedom and violation within which accused made the statement.

            Doctor Innocent Jekenya examined the deceased’s body and prepared the post mortem report.  That was the state case.  We now move on to the defence case.  The accused person gave evidence for the defence.

            Unfortunately I have to state at this juncture that this court failed to glean from the facts and the documents before it warned accused’s version of events is as it was so fraught with inconsistencies that this court up to the time of wanting the judgment could not make head or tail of the defence case.  In his defence outline he says deceased come into the kitchen in while he conversed with the first state witness, and just insulted him.  He was extremely provided by the insult but let it pass.  Later when it was getting dark, deceased confronted him again and hit accused once on the mouth with a fist.  Accused fell down.

            In his confirmed warned and cautioned statement he gives a version almost similar to that given on the defence outline. It is his evidence in Chief and cross-examination that bring about another set of versions.  Not only did he give a very long and meandering all on the money he was owed by the first state witness, how she went away to Republic of South Africa and was later chase away after Mandela’s death, but he gave a version that was difficult to comprehend and follow.  He even contradicted aspects of his defence outline.

            In his evidence in Chief he found, the first state witness with deceased in the kitchen but in his defence outline its the deceased who found him with the first state witness in the kitchen.

            In his evidence in Chief he says upon arrival, he spoke to the first witness asking for his money, and deceased said “you Nkomo go away.”  The accused then said to the deceased I am talking to this one that owes me , (meaning the first state witness).  He then said he walked away for a distance equivalent to the distance between the witness stand and the dock, (approximately 5m) and then deceased said “ You Nkomo, you can never beat me up.”  Deceased also insulted him with his anatomy.  He alleged that the first state witness was not there when deceased insulted him as she had turned her back.  This court taken note of the fact that in his defence outline deceased found him and the witness in the kitchen and deceased insulted him with his anatomy and that of his mother, and deceased insulted him once, but in his evidence in Chief deceased insulted him twice, and he only insulted him with his own anatomy, there is no mention of the insult regarding the mother’s anatomy.  In his evidence in chief we are also told for the first time about the boy who told to stop him accused as he fled from deceased later in the day when the deceased allegedly confronted him.

            Also in his evidence in chief we are told for the first time that it was very dark but in his defence outline, accused says in paragraph 3 thereof “Sometime later when it was getting dark” when it was not very dark.  This is what the first state witness also said that it was getting dark. 

            Under cross-examination he also said there was no chasing between him and deceased.  The only conclusion that his court can draw from the diverse versions given by the accused person, some versions that even the court had difficulty comprehending, like the last version he tried to give under cross-examination where he ended up saying there was no chasing between him and deceased, the court can safely conclude that the accused was bent on lying this Honourable court.  He can not be believed for if he is believed which version will the court believe and why?  The only prudent thing to do is for this court to throw away accused’s versions as hogwash.  This court accepts the evidence of the first witness as the true version of what transpired on the fateful day.  The first state witness was a fair and reliable witness in or view and she was not shaken at all under cross examination.   She was adamant on what she had seen and heard on the day in question.  It is therefore this court’s finding that the accused did act wrongfully on the fateful day and that his conduct then caused the deceased’s death. We then move to determine what the accused person is guilty of.  We first look at the offence of murder with actual intention.  Does the accused person’s conduct meet the criteria and the essential elements of murder with actual intent?  In this regard I will refer to G. Feltoe A Guide to Criminal Law in Zimbabwe 2005 Edition at page 96. He states thus:

“Accused desires death, death is his aim and object.  There will also be actual intention where death is not the aim and object but accused engages in an activity which he realises will almost result in death.”  Accused chased after the deceased, the deceased fell down, accused then took out an okapi knife from his pocket and stabbed deceased in the head.  The post mortem report states that the stabbing caused a lot of trauma to the head with brain haemorrhages.  This clearly means that severe force was applied to result in a lot of trauma to the head.  Again an okapi knife that is kept in the pocket and is used to stab a man already fallen and lying down on the head could only mean one thing that the activity that the accused person engaged in was such that he realised that death would almost result from it.  It is for this reason that this court funds that the second leg of actual intention is met by the accused’s conduct and the circumstances under which the offence was committed.  The accused person is accordingly found guilty of murder with actual intent.

Sentence

The accused person is a first offender, he is aged 51 years, he is a father of 4.  He had been drinking beer on the day in question.  He has spent almost seven months in remand prison awaiting trial.  The deceased died at the age of 24 years.  From the facts deceased died for absolutely nothing as all he did was to alert the first state witness a co-vendor that the person from whom they ordered cigarettes had aimed.  This was an unnecessary loss of life.  These courts have day in day out bemoaned the loss of life over petty issues.  Society has to be conscientised as to the sanctity of human life and this can only be done through passing sentences, which whilst meeting the personal circumstances of the offender, also send a strong message out there, that this court will not condone the kind of behaviour where people are just butchered at the slightest of misunderstandings.  It is our view that the circumstances of this case would see the interests of justice served if the accused person is given a sentence in the region of 30 years imprisonment.  The accused person is accordingly sentenced to 30 years imprisonment.

National Prosecuting Authority, applicant’s legal practitioners