1
HH 828/15
CRB NO. 126/15
THE STATE
versus
ELISHA MATAMBUDZO
and
CUSTON BENITO
HIGH COURT OF ZIMBABWE
HUNGWE J
MUTARE, 15, 16, 19, 24 & 25 June 2015
Assessors: 1. Mr Magorokosho
2. Mr Chagonda
Criminal Trial
Mrs J. Matsikidze, for the State
E. Mvere, for the 1st accused
S Chikamhi, for the 2nd accused
HUNGWE J: The two accused faced a charge of murder which they both deny.
The indictment alleged that on 28 July 2014 at Borntuff Bottle Store, Tsvingwe, Penhalonga, the accused unlawfully, and with intent to kill, assaulted Ernest Nyabinde with fists booted feet several times all over the body and stabbed him twice on his thighs with a knife thereby causing injuries from which the said Ernest Nyabinde died.
The evidence of what took place in the very early hours of this day case from two witnesses namely Blessing Thompson and Panganai Samukange.
It is not in dispute that the two accused and these two witnesses were part of revelers who had been on a drinking spree all night the previous night. They hopped from one drinking-hole to the next as these closed at different times. It is also not in dispute that everyone had had one too many and as such the effects of intoxicants imbibed was, by that time, taking its toll and beginning to show.
This in our view, accounts for the variations in the versions given by each witness, such as there may be. We have tried to make sense of the minor inconsistencies by attributing thereto, the effect of alcohol or the sheer lack of proper recall of detail by certain of the witnesses.
However, we were able, in the dust generated by the conflict which itself was sparked by the imminent shutting down of this final drinking joint, to pick and discern a clear picture of what occurred leading to the deceased’s death. Upon contrasting the accused’s defence and explanation it became easier to extrapolate where the probabilities in this case lay, as each person narrated his own version of events of this fateful night.
Whilst the state summary began its outline somewhere midway in the chronology of events as they unfolded, the two state witnesses give a good background to that incident involving accused 1 and the deceased. According to Panganai Samukange, the drama began towards the night club’s closing time. The deceased and members of his crew were employees of this Bottle Store-cum-night-club. They were preparing to close for the night around 02h50.
Panganai Samukange, Blessing Thompson and the two accused were drinking mates. They were in various stages of inebriation, with Blessing dosing off inside the bottle store. When the bottle store worker staff approached him to announce that it was time for him to leave the bottle store, Blessing must have responded to the announcement in a way which provoked this group because they began to apply force to eject him.
Blessing Thompson’s mates were scattered around the bar. Panganai Samukange witnessed the assault upon Blessing Thompson in which the deceased, Ernest Nyabinde, was also involved. Panganai Samukange alerted his crew members. They approached the other group to pacify them. They were not pacified. The group turned on Panganai as he was the more vocal of the crew. As a result of the assault on his person, the witness Panganai bolted out of the bar with deceased and two members of the deceased’s gang in hot pursuit.
He successfully evaded them and took refuge into the darkness away from the premises.
The now deceased went back to the bottle store. On his way to the bottle store the deceased then met up with accused one and engaged him in a fight. Blessing Thompson who was now nursing his wounds from a hiding he got from the gang was outside the bottle store at the veranda.
Blessing Thompson told the court that as Panganai was chased by deceased, accused one followed in a bid to render assistance to Panganai should the need arose. The deceased failed to catch up with Panganai. He abandoned this victim and was making his way back to the bottle store when he encountered accused one. The deceased engaged in a fight with him. They both fell down and rolled over the ground. Accused two then made his way to the new battleground where the two were locked in a fierce and mortal combat. Soon after accused two joined the fray, Blessing says that he heard the deceased cry out in pain. The fight ended soon afterwards. As the deceased lay bleeding profusely, accused two called upon the rest of the gang members to leave.
In brief this accounts for the stabbing of the deceased. As for his subsequent death, the evidence indicates that his friends secured transport for him. He was taken to the nearest health facility whilst still bleeding. He was declared dead on arrival.
Accused one gave a brief denial of the charge of murder when he was invited to give a warned and cautioned statement by ZRP Penhalonga on 30 June 2014. In it he claims that he was on the receiving end of the assault by the deceased until he over-powered him after accused two had stabbed him. In his defense outline he crisply raises the defense of self. He states that the deceased over-powered him and fell him to the ground on his back. The deceased then came on top of him and grabbed him by his testicles inflicting severe pain. Suddenly, the deceased fell on him thereby providing him with an opportunity to escape. He later learnt that accused two had stabbed him. He claimed he had no intention to kill the deceased and acted in self-defense throughout. In court he stuck to the defense of self-defense. He told the court that the deceased first gave chase to Panganayi. When he failed to catch Panganai, he returned. Upon his return, the deceased had met up with him and accused him of being part of the gang. Before he could respond, the deceased had punched him once causing him to fall backwards. The deceased had mounted him, grabbed him by the testicles as he pressed him down. He only managed to free himself after deceased collapsed onto him. He learnt later that the reason why the deceased had collapsed was that accused two had stabbed him.
For his part, accused two did not deny that he had stabbed the deceased. His reason for that attack was that the deceased had earlier assaulted him at the bottle store. When he saw him fight with accused one, he decided to stab him on his thigh. This much appears in his warned and cautioned statement to police on 30 June 2014. When he presented his defense outline to court the accused two stated the he had stabbed the deceased in defense of the second accused. This was, according to the accused two a continuation of the brawl which had its genesis at the bottle store earlier on. When Panganai shouted at the deceased to stop his assault on Blessing, the deceased had turned on Panganai who then fled with deceased giving chase. Deceased had dropped a knife as he commenced the chase. Accused two picked it up. When he failed to catch up with Panganai, the deceased returned and met up with accused one with who he engaged in a fight. Accused two then heard accused one call out for help. Upon getting to the scene, he realized that the deceased was pulling accused one by his private parts. He decided to break the hold firstly by pushing the deceased away and when this failed by stabbing him on the thigh. He feared that the accused one might die if nothing was done to effect a release of the deceased’s hold. He intended merely to get him off from his grip on the accused one. Upon stabbing the deceased, the latter indeed released accused one. They left for the next joint.
The accused had three opportunities to narrate these events. The first opportunity came when they were invited to give warned and cautioned statements. The second opportunity was when they briefed counsel and finally the third opportunity arose when they gave evidence in chief.
Accused one stated in his warned and cautioned statement that he was fighting with the deceased when accused two followed and stabbed him with a knife. He left deceased and proceeded to a shebeen. By then the deceased had been immobilized. In his defense outline he deftly avoids any reference to accused two joining in. Instead, he introduces a new feature wherein he was being overpowered by deceased who had grabbed him by his privates and was pulling.
Suddenly he says the deceased, who was enjoying the upper hand and was on top of him, just collapsed on him. He freed himself and fled the scene. He was later joined by accused two who then informed him that he had stabbed the deceased with a knife.
The second accused confirms the genesis of the brawl which subsequently ended with the stabbing of the deceased as related earlier on by the state witnesses. In his warned and cautioned statement he states that the reason why he had stabbed the deceased with an Okapi knife was that he had earlier on had a misunderstanding with the deceased inside the bar. When accused two stabbed the deceased, the deceased was engaged in a fight with accused one, not accused two. He gave an insight into how accused one got his shoes blood-soaked by explaining that he continued to kick and assault the deceased after he had been stabbed.
When the deceased and accused one engaged in a fight he realised that accused one was having the fight. He approached them in a bid to restrain deceased but to no avail as deceased was now pulling accused one’s privates. He decided to strike.
He then stabbed the deceased twice to force a disengagement of the fight. The account by both two accused lacks credibility where it mattered most. In assessing the credibility of the witnesses, we took into account the probable effects intoxication might have had on all of them. They had all been literally drinking for the better part of the night. They clearly suffered from varying degrees of inebriation. Their evidence was given under that limitation. Even so, we prefer the evidence given by the state witnesses over that of both accused where that of the accused differed from the state witnesses’ evidence, taking into account where the probabilities in the case lay.
For example, they both deny that deceased cried out in pain when he was stabbed.
Accused one pretends that he did not realize that accused two had come to his assistance throughout. In our view he does so in a vain attempt to mislead the court into believing that accused two acted on his own and not from his benefit. He was not truthful in this regard, in our view.
There is also the small matter of how his part of trousers and shoes got blood-soaked. The evidence tendered by the state witness suggests that this came from the deceased because he continued to fight the deceased even after he had been stabbed. Accused one’s shoes, produced in court bear testimony to this fact. In any event, accused two stated, in his statement to police, that accused one continued to kick the deceased as he lay in agony bleeding hence the blood on accused one’s shoes.
In our view this was just a continuation of the brawl which began inside the bottle store at the time when the deceased and his team mates assaulted Blessing Thompson. It had started spontaneously; involved a variety of parties and ended tragically.
We do not think that there was any common purpose to kill anyone either by deceased’s group or by the accused’s. This was a typical beerhall brawl which ended tragically. Even so, by engaging in a group brawl the accused acted negligently since the application of force is the essence of any fight. Unfortunately due to poor judgment by one of the group’s member, a lethal weapon was used with tragic consequences.
Accused in our view ought to have realised that in persisting with the assault on the deceased after he had been stabbed, he was, by conduct, associating with the stabbing of the deceased by accused two. He was negligent in respect of the death of the deceased. He did not dissociate himself upon realizing that accused two had stabbed the deceased.
His conduct in leaving the deceased bleeding helpless demonstrates that he was equally culpable in the death of the deceased.
In the event we are satisfied that in respect of both accused, an appropriate verdict is one of guilty of culpable homicide as defined in s 49 (a) of the Criminal Law (Codification and Reform) Act, [Chapter 9: 23].
They are both acquitted on the charge of murder.
National Prosecuting Authority, State’s legal practitioners
Muringi Kamdefwere, 1st & 2nd Accused’s legal practitioners
