SHADRECK ENZANISAI CHIRERE
HIGH COURT OF ZIMBABWE
UCHENA J SITTING WITH ASSESSORS
HARARE5, 23, 26 May and 15 July 2011
A.E Katsvairo, for the State
D.A Elliot, for the accused
UCHENA J: The accused was charged with murder in contravention of s 47 of the Criminal Law (Codification and Reform) Act [Cap 9: 23]. He pleaded not guilty.
The brief facts are that the accused and the deceased were friends and used to go hunting together. Some days before the fateful day, the deceased took the accused’s dog without the accused’s permission and went hunting on his own. He was successful in his endeavors, but did not share the animal he caught with the accused. The accused was not amused leading to their quarreling at Katsukunya Business Centre. The quarrel degenerated into a fist fight in which the accused was at the receiving end. He then took a knife from the waistline of his trousers and stabbed the deceased several times leading to his death.
The State led evidence from Tinashe Makaza, Rutendo Zisengwe, Cst Pamire Sgt Charles Machisa , and Doctor Mujuru.
Tinashe Makaza is a shop keeper at Katsukunya Business Centre. On 16 May 2010 he was in his shop attending to a customer, when the accused came into the shop inquiring from him if it was proper for one to take another’s dog for hunting, catch an animal and not share the meat with the owner of the dog. He did not respond as he was attending to a customer. The accused left his shop shouting abuses against the complainant. Tinashe saw the complainant coming and heard the accused raising the volume, of his voice as he continued to shout abuse at the complainant. The deceased initially ignored the abuse and walked away. The accused took out a knife from around his waist and put it back as he continued shouting abuses at the complaint. The deceased was stung by the continued abuse. He came back and hit the accused with a clenched fist and a fight ensued. The accused, who, was on the receiving end, took out a knife from around his waist line and stabbed the deceased’s left hand above the elbow. The deceased then fell the accused to the ground, pinned the hand which hand the knife to the ground and assaulted the accused with the hand which hand been stabbed. The deceased’s hand which had been stabbed lost power, and the deceased fell backwards, after which, the accused, stood up and sat on the deceased’s chest stabbing the deceased twice on the chest, once on the stomach under the navel. The accused stood up and walked about three steps away from the deceased, but came back and kicked the deceased asking him “are you dead?” He then stabbed the deceased three times on the head. He then removed his shirt and started shaking dust off it, walking towards Katsukunya Bar. Under cross examination he said the accused stabbed the deceased seven times. He denied selling any beer to the accused. He did not hear the accused calling out for help during the fight. He disputed the accused’s claim that he took the knife from deceased’s pocket. He accurately described the knife to finer details which where confirmed by the court’s observations when it was produced as exh 3. He admitted that the accused once borrowed cigarettes from his shop and failed to pay, but denied begrudging the accused as he had paid for them himself and was no longer pursuing the debt though the accused had promised to pay it in future. He had last asked the accused for that debt one to two months before the incident. He denied threatening to fix the accused because of his failure to repay that debt.
Tinashe gave his evidence confidently. He was forthright, and did not colour his evidence to favour the deceased. He in our view told the court what happened. He said it was the deceased who started the fight. He described how the deceased viciously assaulted the accused while holding the hand which had the knife. He described how the accused was bleeding from the nose and the mouth after the fight.
Rutendo Zisengwe also testified for the State. She told the court of how the accused entered their Bottle Store bleeding from the mouth and the nose. He was holding his shirt in his hand. He asked whether her husband Watmore Chipendo was in and she told him that he was not in, fearing that he would mess the counter. The accused then told people who where in the bar that he had killed the deceased for stealing his dog, and left. She said the accused was bleeding profusely and was using his shirt to wipe the blood.
Constable Gift Pamire was the next State wittiness. He has been in the Police Force for about five years. On 16 May 2010 he was stationed at Mutoko Police Station. The accused came to the charge office when he was on duty, and reported to him that he had had a fight with the deceased. The accused’s shirt was blood stained and there was blood on his face. He was holding a knife with a brown wooden handle. He took the knife, and put the accused in Police cells as they had already received a murder report. He handed the knife to Inspector Dzvete. Constable Pamire’s evidence was not disputed. It corroborates that of Tinashe and Rutendo, on the fact that the accused was bleeding, hence the blood on his face and shirt.
Sgt Charles Machisa also testified for the State. He went to the scene on the evening of the murder and left Police officers guarding the deceased’s body. The next day he went back to the scene where Ruth Nyamupinga identified the deceased’s body which was covered by a blanket. He removed the blanket and Ruth Nyamupinga identified the deceased’s body to him. He observed nine wounds, one on the stomach were intestines were protruding, two on the chest, two on the neck, three on the head and a slash on the right elbow. He checked for signs of life and noticed the deceased’s knees were stiff. He concluded that he was dead. He got indications from the accused and Reza and prepared a s/ plan which he produced in court as exh 1. He took the deceased’s body to Mutoko hospital where the deceased was certified dead by Dr Mujuru. On 19 May 2010 he recorded the accused’s warned and cautioned statement which he produced with the accused’s consent as exh 2. He was under cross examination questioned about checking if the deceased was alive on 17 May 2010, instead of when he first got to the scene on 16 May 2010, and said he did not check on 16 May 2010 because it was dark and he did not want to interfere with the scene. When defence counsel suggested to him that he could have been alive he said he did not know.
Dr Munyaradzi Mujuru was the State’s last wittiness. He told the court that he in 2004 graduated from the University of Zimbabwe with a Bachelor of Medicine and Surgery degree. He was in May 2010 the District Medical Doctor for Mutoko Hospital. He had assumed that post at Mutoko hospital in January 2008. He on 17 May 2010 conducted a post mortem examination on the deceased’s body. He observed multiple stab wounds, one was on the stomach from which intestines were protruding, there were two stab wounds on the neck one of which had cut the carotene artery which transports blood to the brain, the other affected the trachea (wind pipe), two were on the central part of the chest. One to the left of the central bone in the chest and the other was in front of the central bone. There was a laceration on the head. He concluded that death was due to severe hemorrhage (which is severe bleeding), due to stab wounds. He therefore observed six wounds. When asked to comment on the force used he said the wound on the abdomen went through the abdominal wall so severe force was used. He identified the post mortem report and produced it as exhibit 4. When questioned on his seeing one wound on the head he said it could be a result of one or more blows on the same place. He under cross examination said he studied pathology during his degree studies, and was send for a short course on pathology for District Medical officers. He conceded that pathologists study pathology at master’s degree level. During the short course they studied stab wounds. His evidence though slightly different from Tinashe’s supports his evidence. He observed six wounds which is close to the seven blows which Tinashe saw being delivered. The Dr said the head laceration could be a result of one or more blows on the same place. The difference on the number of blows to the head could be due to Tinashe observing from 30 to 40 meters away. Tinashe does not mention blows to the neck, but three blows to the head. In our view he could have seen the two blows to the neck as blows to the head. The doctor did not notice and record the stab wound on deceased’s arm which accounts for the seventh stab wound mentioned by Tinashe.
We are as a result satisfied that the slight difference between the Dr and Tinashe’s evidence does not affect the credibility of Tinashe’s evidence.
The accused person gave evidence. He told the court that he on the day in question went to Bond Nyamashingo’s homestead to collect his dog. He was advised that the deceased had taken the dog. He them went to drink kachasu with Bond Nyashingo after which Bond suggested they go to Katsukuya Bussiness Centre where he was going to buy the accused beer for the next day. On arrival at the business centre he saw the deceased and demanded why he had taken his dog without his permission. They quarreled leading to the deceased punching him on the face. He fell to the ground after which the deceased sat on his chest and started assaulting him on the head and the face. He saw a knife in the deceased’s pocket. He took it and stabbed the deceased on the arm. They struggled for the knife. The place was sandy so sand got into his eyes and he could not see properly. The deceased was stabbed as they struggled for the knife. Deceased later knelt down holding the arm which had been stabbed. The accused then got up from under the deceased, and walked to Chipendo’s shop which belongs to his friend. He wanted to phone the police to report the incident. Rosemary, Chipendo’s wife told him that he was not in. He then went to his home to tell his wife what had happened after which he proceeded to Mutoko Police station where he made a report, and was arrested and put in Police Cells. He said when the deceased knelt down he made a sound he used to make when under epileptic attacks. He denied coming back to ask if the deceased was dead, kicking him and stabbing him three times on the head. He said Rosemary did not like him because she often complained that he was influencing her husband to smoke dagga. He denied telling patrons in Chipendo’s Bar that he had killed the deceased because he had taken his dog without his permission.
The accused admitted that he started the quarrel when he asked the deceased why he had taken his dog. He said during the fight he was pinned to the ground by the deceased. He saw the knife took it and stabbed the deceased’s arm, but the deceased again pinned his hands by his knees, and assaulted him. They struggled for the knife and deceased was stabbed as they struggled. Sand had gotten into his eyes so he could not see what was going on during the struggle.
The accused’s version is corroborated by Tinashe on the following;
That he and the deceased met at the business centre, where the accused asked deceased why he had taken his dog, and hurled insults at him.
That the deceased punched the accused first and a fight ensued
That the deceased at one stage pinned the accused hands to the ground while assaulting him with the hand which had been stabbed.
This demonstrates that Tinashe was telling the court what happened. Tinashe and the accused’s versions differed on the accused, getting off from where he was pinned when the deceased fell to the ground. He then sat on the deceased and stabbed him several times causing the stab wounds observed by the doctor. We believe Tinashe’s evidence, and disbelieve that of the accused person where their versions differ because the accused is obviously seeking to minimize his culpability. The accused had asked the state to subpoena defence wittiness’s for him which the state did. Those witness’s included Bond Nyamasvingo who had been with the accused for most of the day in question. He accompanied him to the shops, where the offence was committed. However at the end of his own evidence the accused decline to call the wittiness’s he had caused the state to subpoena. This must be because their evidence was not favourable to him.
We therefore find that during the initial stages of the fight the accused was at the receiving end. He however gained an upper hand when he stabbed the deceased on the arm which eventually weakened the deceased causing him to fall on to the ground. The accused was then completely in control. He sat on the deceased and stabbed him on the stomach, abdomen, neck and the head. He even at one stage stood up and walked a few steps from the deceased as if satisfied by what he had done but came back, to kick, and stab the deceased again asking if he had died.. We are therefore satisfied that he was not defending himself when he stabbed the deceased who had fallen to the ground having been weakened by the stab wound on his arm. He then was at large, to the, extend, that he could walk away and come back to continue with the murderous attack. The deceased was no longer fighting him. He lay helplessly on the ground, causing the accused to ask if he had died. The accused was no longer in danger. The attack against him had stopped. His assailant had been incapacitated to the, extend that the accused thought he had already died. That is why he kicked him and asked “are you died”? We are satisfied that the accused was not acting in self defence when he struck the fatal blows. He was clearly avenging himself, for the assault he had suffered at the deceased’s hands.
The accused said he had taken straits of kachasu, and was so drunk that he did not know some of the things which happened. We do not believe that he was so drunk as not to know what he was doing. He identified the deceased when he met him and inquired from him about the dog Bond had told him the deceased had taken before he drank kachasu. This proves the drinking of kachasu had not affected his mind. He also gave details of what happened during the fight, which were confirmed by Tinashe. He gave details of where he went after the fight which were confirmed by Rosemary. He remembered that he had to tell his wife of what had happened before going to report what he had done to the police. This shows that he was conscious of what he was doing and took reasonable steps towards resolving what had happened. He had earlier gone to his friend’s shop wanting to phone the police.
It is not in dispute that the accused and the deceased were friends. They used to hunt together. They fought and the accused was seriously bashed during the early stages of the fight. He however was no longer under any threats when he delivered the fatal blows. We agonized over whether or not he committed this offence with actual intent. It is however beyond doubt that the accused was now revenging, and did so through a murderous attack accompanied by utterances inquiring if the deceased had died which were followed by further stabbings. That can not lead to any finding other than that the accused committed this murder with actual intent.
He is therefore found guilty of murder with actual intent.
The Attorney-General’s Criminal Division, the State’s legal practitioners
Coghlan, Welsh & Guest Inc Stumbles & Rowe, accused’s legal practitioners.