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.
