On 6 April 2008, the accused, who was 17 years old and in the company of his cousin, the late Trust Macharangwanda, approached the deceased and accused her of practicing witchcraft and being responsible for death and illnesses in the family.

The deceased, who was 69 years old, protested her innocence and suggested that the accusations required the presence of family elders. The result was a combined assault initiated by Trust Macharangwanda and joined in by the accused. The two randomly assaulted the deceased using two sticks leading to the subsequent death of the deceased.

The post mortem report compiled by Dr David Tarumbwa recorded that there were multiple bruises and abrasions on the deceased's body. The doctor also observed and recorded the deceased had sustained a fractured occipital skull which was depressed with massive haemorrhage. The doctor concluded that the cause of the deceased's death was the head injury caused by the assault perpetrated on her.

The State alleged the accused was partly to blame because of his involvement in the tragic assault and in doing so they relied on the doctrine of common purpose.

Whilst agreeing to having taken part in assaulting the deceased the accused raised the defence of compulsion which was basically an averment by the accused that he had been compelled or forced to commit the assault by the late Trust Macharangwanda who was older than him and assumed control of the proceedings leading to the assault and subsequent death of the deceased.

The basic requirements of the defence of compulsion has been eloquently stated and unanimously agreed by both counsel and it is not my intention to re-state it. Suffice it to say that it basically requires that for it to succeed evidence must abound to demonstrate, in very clear terms, that the crime in issue was induced by real and substantial threat and not cosmetic threats. Committing the crime in issue must have been the only avenue open to the accused in the given circumstances. The evidence must also show, very clearly, that the accused could not reasonably have been expected to have avoided the crime.

Authorities are in agreement that this defence will not avail itself to someone who voluntarily joins in advancing a criminal objective.

Having carefully weighed the requirements of the defence of compulsion both the State and the defence concluded the defence of compulsion was not sustainable in this case.

We entirely agree with counsels' reading of the evidence presented and the conclusion arrived at. The issue of compulsion is accordingly put to rest.

The viva voce evidence of Esinath Mwareka took us through how the assault itself was carried out. The accused also testified on the assault itself.

We are satisfied that despite some unconvincing aspects of her testimony, like her indifference in describing to the court's satisfaction the type of switch used by the accused, Esinath's version of events leading to the death of the deceased was quite credible. Her version was more revealing as opposed to the version given by the accused person which was characterised by rough edges.

We found it to have been quite revealing and significant that the accused's version of what transpired, as explained by him in court, almost three (3) years after the event, was at variance with his summary of events given on 26 April 2008 at Mukurasine Police Station and subsequently confirmed at Chiredzi Court on 26 June 2008. We are satisfied his explanation in Court was calculated to mislead the Court and therefore we had no hesitation in rejecting it.

From the agreed evidence, the prosecution advocated for the accused to be found guilty of the crime of murder with constructive intent whilst the defence passionately argued that the evidence suggested no more than the commission of the crime of culpable homicide.

From a practical point there is a very thin line between murder with constructive intent and the offence of culpable homicide but the distinction must and has always been maintained.

For murder with constructive intent to be returned as a verdict the issue which must occupy the mind of the Court is whether, as a matter of inference deriving from the set of facts accepted by the Court, it can be said the accused foresaw that his conduct would result in the death of the deceased. An accused can only be convicted of murder if the only reasonable inference that can be drawn from the facts proved is that the accused had legal intention to do so. The test becomes a subjective one. The Court is enjoined to take into account factual evidence which bears upon and could have affected the accused's perception, powers of judgment, and state of mind, deriving from such factors like the level of the accused's intelligence, age of the accused person, personality etc - the list is endless.

If the Court concludes that the accused could not have foreseen the possibility of death but that he should have foreseen it (relying on the reasonable man's test) and that a reasonable man would have guarded against it, the correct verdict must be culpable homicide.

It must be emphasised that in borderline cases, the Court must lean in favour of the verdict of culpable homicide and this approach appears to be influenced by the time-honoured and well cherished principle of our approach that the accused, as opposed to the State, must generally be granted the benefit of doubt.

It is never an easy walk.

In the instant case, the Court has had the benefit of seeing one of the sticks used. We have assessed the accused's level of intelligence, age at the time of the committing of the offence, and the fact that there is overwhelming evidence that the accused was not himself in control of the situation that led to the accused's tragic assault.

We are in agreement that it cannot be concluded, with a degree of certainty, that the accused could have foreseen that his involvement in the assault of the deceased would ultimately lead to the deceased's death.

However, it is our firm view that although the accused did not foresee death as a result of his conduct, a reasonable man placed in the shoes of the accused person would have foreseen that subjecting a sixty nine year old woman to the assault with the sticks or switches described to the Court would have resulted in her death and that the accused should have guarded against it.

He did not do so and we are enjoined to return a verdict of guilty of culpable homicide.

Verdict – Not guilty of murder but guilty of Culpable Homicide….,.

The conduct of some of our traditional healers and self proclaimed profits has not escaped our attention. So much confusion and hatred are sometimes as a result of the conduct of such traditional healers.

The accused persons in this case are charged with three separate counts of murder, assault, and arson. These three counts arise from events which took place in 2000 at Nehanda Resettlement Village, Madziwa.

All five accused pleaded not guilty to the charges against them when trial commenced in December 2006.

At the resumption of the trial, in July 2007, the court was advised that the first accused (Yomence Chaitezvi) had died on 4 of January 2007. This was later confirmed by an affidavit deposed to by his brother.

The trial duly proceeded on the same charges as against the remaining four accused who were now represented by different counsel....,.

State Evidence

At the beginning of its case, the State produced, by consent, the post-mortem report of Dr. Mutamba, dated 8 May 2000 [exhibit 1].

In essence, the report shows that the deceased, Peter Karidza, died as a result of a head injury from the assault perpetrated upon him on the fatal day.

At a later stage, the evidence of Vincent Kambanga, and that of Dr. Mutamba, as contained in the State Summary of Evidence, was also admitted by consent.

Vennas Chimangemange is the deceased's widow.

She testified, that, on the night of 23 April 2000, a group of people gathered outside her homestead chanting political songs. They then began to throw stones at the main house and eventually torched the main house as well as the surrounding structures. At the same time, they called out for the deceased.

When she and the deceased went outside they were attacked by some of the men in the group.

At that point, the first accused (Yomence Chaitezvi) tried to verbally restrain the assailants and took the witness away to the back of the house. Therefore, she could not say whether any of the other accused were present or involved in assaulting the deceased.

When she returned to the front of the house, after about 30 to 45 minutes, she found that the deceased had been severely beaten. The main four-roomed house and five other structures had been destroyed by stones and fire. All the domestic furniture, utensils, and equipment was also destroyed.

The deceased passed away at about 5:00am on the following morning.

Molline Chimangemange is the deceased's daughter.

Her testimony was similar to that of her mother as regards the general picture of what transpired on the night in question. However, her evidence was that she actually saw the first accused (Yomence Chaitezvi) and the second accused (Notice Kida) each strike the deceased once before the others in the group joined the attack.

She was able to see what happened and positively identify the assailants because of the burning huts.

She did not see the third accused (Obert Muchemwa) or the fourth accused (Zvidzayi Marufu) at the scene of the attack. However, she did see the fifth accused (Jacob Kagogoda) running around encouraging the assault, but did not witness him actually assaulting the deceased or causing any fires.

The witness was present throughout the duration of the attack.

The group consisted of about 100 men and about 40 of them took part in the assault.

The deceased eventually lay on the ground after being assaulted for about 30 minutes. The first accused (Yomence Chaitezvi) then told the others to stop.

Savory Hodza was, at the relevant time, the Chizinga District Chairman of the ZANU-PF youth wing. All five accused were office-bearers in the political party in various branches which fell under Hodza's command.

He testified, that, on the night in question, he met and drank beer with the deceased at Muzivi Growth Point. He heard that the second accused (Notice Kida) had planned a meeting at which the deceased was to be summoned. He warned the deceased who then ran away.

On his way home, he passed by Nehanda Village and saw a group of about 50 people, including the second accused (Notice Kida), who had gathered for a “pungwe” about 300 metres from the deceased's homestead. Further along the road he encountered two more groups, of about 50 and 20 people respectively, who were also going to the 'pungwe'. The first group included the first accused (Yomence Chaitezvi) and the second group included the fourth accused (Zvidzayi Marufu).

When Savory Hodza arrived home, about 2 to 3 kilometres away, he saw fires burning over Nehanda Village. Although he was fairly drunk, he walked towards the village. About 300 metres away from the deceased's homestead he observed that all the groups had dispersed.

The witness was arrested as a suspect on the following morning but was later released after recording his statement to the police.

According to Savory Hodza, the second accused (Notice Kida), third accused (Obert Muchemwa) and fourth accused (Zvidzayi Marufu) wanted his position in the party and therefore resented him. They had arranged the gathering in question without his authority and knowledge.

Under cross-examination, he admitted that he had been convicted for public violence and sentenced to 30 months imprisonment in respect of another offence involving political violence in the same area.

Detective Sergeant Nemaisa is a member of the Zimbabwe Republic Police. He was based in Bindura in April 2000.

On 25 April 2000, he was tasked to record warned and cautioned statements from four suspects, namely, the first accused (Yomence Chaitezvi), second accused (Notice Kida), third accused (Obert Muchemwa) and Savory Hodza.

He met the three accused for the first time at that stage.

They corroborated Savory Hodza's statement that he was not present at the scene of the attack and that he knew nothing about it. Each of the three accused was then allowed to write his own statement in three separate rooms. At that time, each accused was unguarded and not handcuffed. Detective Sergeant Nemaisa then confirmed their statements in Shona and translated them into English. Thereafter, the statements were given to the accused to read before they were signed and witnessed.

In their statements, the three accused admitted the charge of having murdered the deceased.

After Detective Sergeant Nemaisa's evidence-in-chief, the warned and cautioned statements of the first (Yomence Chaitezvi), second (Notice Kida) and third accused (Obert Muchemwa) (exhibits 2, 3 and 4) were admitted by consent, subject to challenge under cross-examination.

When cross-examined, Detective Sergeant Nemaisa confirmed that the three accused had understood and signed their respective statements freely and voluntarily and without any duress whatsoever. Moreover, he did not see any visible signs of the accused having been assaulted, nor did they complain of having been assaulted by other police officers.

Inspector Absai Muchemedzi testified that he was involved in attending the scene of the attack on the morning after. He found the body of the deceased covered in bruises and observed that some of the structures at the homestead had been burnt or otherwise damaged. Certain suspects were arrested later that day but he could not recall any of them other than the first accused (Yomence Chaitezvi).

The warned and cautioned statements of the fourth (Zvidzayi Marufu) and fifth (Jacob Kagogoda) accused were compiled and signed over nine (9) months later, in the presence of different police officers who were not called to testify.

These statements were therefore not adduced or admitted in evidence.

Evidence for the Defence

The second accused (Notice Kida) used to reside in Nehanda Village and was a ZANU-PF cell chairman in April 2000.

His evidence was that it was Savory Hodza, in his capacity as the District Chairman, who had convened the ZANU-PF members from the surrounding villages to attend the gathering at the deceased's homestead. He disagreed with Savory Hodza's mission as he knew the deceased as a village elder and because there was a strong probability that violence would occur. Therefore, he and the other Nehanda Village members dispersed to go home, having been told to do so by Hodza.

On his way home, he observed flames emanating from the deceased's homestead. On the following morning, he and the third accused (Obert Muchemwa) were arrested by the police.

When cross examined, Notice Kida accepted that 2000 was a very politically charged year and that the ZANU-PF youth wing was an important element in strengthening the party's base. At that time, it was unheard of that anyone in the locality should belong to the opposition MDC party.

The third accused (Obert Muchemwa) was a senior official of ZANU-PF in the Chizinga District.

His testimony was that from 21 and 24 April 2000 he was attending his father-in-law's memorial service at Batsinarayi Village, about 12 kilometres away from Nehanda Village. He only returned to Nehanda Village on the morning of 24 April, together with his wife and child. He was not aware of Savory Hodza's plan to visit the deceased at his homestead. He was arrested by the police because he was the ZANU-PF political leader in Nehanda Village.

He and Notice Kida were taken to the scene of the attack where he was assaulted for arguing with the police.

The deceased's wife identified Savory Hodza and Yomence Chaitezvi as the perpetrators of the assault upon the deceased. They were both arrested but Hodza was given preferential treatment and was not detained.

Under cross-examination, he accepted that he was not assaulted at the police station and that his arrested colleagues did not complain to him of having been assaulted. Again, he was not assaulted at the time that he signed his warned and cautioned statement, but he denied having read his statement before signing it. As this was the first time that he had been arrested he did not appreciate the significance of signing the statement.

When questioned by the Court, he stated that he had attained 8 “O” Levels in 1990 and a Certificate in Tobacco Culture in 1996 or 1997.

Juliet Kaingidza resides at Batsinarayi Village and is Obert Muchemwa's sister-in-law.

She endeavoured to corroborate Obert Muchemwa's version of his having attended her father's memorial service at her village from 21 to 24 April 2000. However, she contradicted him in one material respect – by stating, with certainty, that he left the village on 24 April on his own and without his wife and child. Moreover, although she could recall exactly the date and time of Obert Muchemwa's departure, she could not remember the month or year when her father had died.

The fourth accused (Zvidzayi Marufu) was an official in the Chitepo Branch of ZANU-PF.

According to him, it was Savory Hodza who directed him to mobilise the members from Chitepo Village. When they arrived at Nehanda Village, he met Yomence Chaitezvi, Notice Kida and Savory Hodza, together with 120 to 150 party members, gathered on a hill approximately 300 to 400 metres away from the deceased's homestead.

He deduced that Savory Hodza was drunk and that his plan to confront the deceased as an MDC sympathiser would probably entail violence.

Zvidzayi Marufu then told the Chitepo members to return to their village and returned home himself soon thereafter. He was surprised the following morning when he heard about the attack on the deceased and his homestead. He was arrested about nine months later.

He signed his warned and cautioned statement after being threatened and slapped by the police.

The fifth accused (Jacob Kagogoda) was also an official in the Chitepo Branch of ZANU-PF.

He testified, that, at the time of the attack on the deceased, he was in bed suffering from malaria. He was under medication and unable to walk. He was arrested much later, in January 2001.

After his warned and cautioned statement was recorded he was assaulted by three police officers. He then signed the statement without having read it....,.

Findings – Murder

In considering the charge of murder, it is necessary to assess the extent to which each accused was or was not present and involved in the events that took place on the night in question. Thereafter, it must be determined whether any or all of them are guilty of murder or some lesser offence.

The evidence against the second accused (Notice Kida) stems from various sources:

(i) Firstly, there is the evidence of Molline Chimangemange who was adamant that he used a stick to assault the deceased on the head. She indicated that visibility was good because of the burning huts and she positively identified the second accused as an assailant. Moreover, she knew him because he was from the same village.

(ii) Secondly, the second accused was also identified by Savory Hodza as having gathered with his group for a “pungwe” about 300 metres from the deceased's homestead.

(iii) Finally and crucially, there is the second accused's warned and cautioned statement in which he made several critical admissions: that he had circulated the letter that resulted in the gathering of ZANU-PF youth at the deceased's homestead; that, although it might not have been agreed to assault the deceased “to death”, it was agreed to assault him in order to “inflict pain”; and that he could not defend the deceased because he was standing outside the homestead.

The third accused (Obert Muchemwa) stated that he was attending his father-in-law's memorial service at the relevant time.

However, his alibi was not satisfactorily corroborated by his sister-in-law and is wholly rebutted by his warned and cautioned statement.

In that statement, he admits the following: that ZANU-PF youth were recruited from neighbouring villages to deal with the deceased's case; that he was invited by the second accused (Notice Kida) to accompany the group to the deceased's homestead where it was planned to assault him, and that the latter was in fact assaulted; and that, although he did not enter the homestead, he “could not go against that (assault) because it is a taboo in our party to go against any planned thing.”

The main evidence against the fourth accused (Zvidzayi Marufu) is that of Savory Hodza, to the effect that he encountered the fourth accused leading a group of about 20 people going to the “pungwe” near the deceased's homestead.

The fourth accused (Zvidzayi Marufu) admits that he was present at the “pungwe” but denies having been involved thereafter and claims to have withdrawn from the planned assault.

The fifth accused (Jacob Kagogoda) was identified by Molline Chimangemange as running around the homestead encouraging the assault. The witness did not know him in person as he was from a different village.

In his defence, the fifth accused's testimony is that, at the time of the attack, he was in bed suffering from malaria and that he was under medication and unable to walk.

As is conceded by State counsel, his alibi was not meaningfully challenged or rebutted.

Elements of Murder and Conspiracy to Murder

On a charge of murder, it must first be established whether the accused's action was the factual cause of the end result, viz. if but for his action, the deceased would not have died when he did.

It must also be shown that there was legal cause, viz. whether it was objectively foreseeable or within the range of ordinary human experience that the accused's action would lead to the death of the deceased.

Where there has been a supervening event, this will not break the causal link between the accused's act and the end result if that subsequent event was foreseeable.

As regards mens rea, it must be shown that there was actual or legal intention to kill.

Legal or constructive intention to kill arises where the accused does not mean to bring about death but continues to engage in an activity after he foresees that there is a real risk or possibility that the activity will result in the death of a person and is reckless as to whether or not death ensues.

Under our law, it is trite that conspiracy is a competent verdict on a charge of having committed the completed crime. It is also trite that a conspirator is liable to the same punishment as the person who has actually committed the principal crime.

A conspiracy to commit a crime is usually defined as an agreement by two or more persons to do an unlawful act or to do a lawful act by using unlawful means.

In essence, there must be agreement as to the criminal object.

There does not have to be agreement on the exact ways and means of putting into effect the plan before conspiracy is committed. Provided that the criminals have agreed on their object, they are guilty of conspiracy even if they are still negotiating towards full agreement on the means to be used in the criminal enterprise: see FELTOE, A Guide to the Criminal Law of Zimbabwe (2006).

Moreover, each conspirator will be responsible for specific criminal conduct committed by any one of the conspirators which falls within their common purpose or design: see S v Chauke & Another 2000 (2) ZLR 494 (S)…, citing BURCHELL and HUNT, South African Criminal Law and Procedure Vol. 1 (3rd ed.)…,.

Again, even where a conspirator withdraws at any stage from the common enterprise, he may be entitled to an acquittal on the main charge but remains liable to be convicted of the offence of conspiring to commit the crime in question: see R v Chinyerere 1980 ZLR 3 (AD)…,.

Verdict

The general picture that emerges from all of the evidence before the Court is that the leaders of various ZANU-PF village groups within the district convened a night time gathering of their respective members, comprising circa 100 men, near the deceased's homestead. The purpose of the gathering, which purpose was agreed by the leaders and understood by their followers, was to confront the deceased at his homestead and assault him for his supposed affiliation with the MDC opposition party.

Given the nature, timing, and object of the gathering, as well as the number of men involved, the leaders present must have foreseen the possibility of the gathering turning so violent against the deceased as to culminate in his death.

The second accused (Notice Kida) was identified not only as having been present but also as having struck the deceased on his head with a stick that was approximately 2ft long.

According to the postmortem report, the cause of death was stated to be “head injury due to assault.”

Nevertheless, in light of the overall attack on the deceased perpetrated by about 40 men, it cannot be stated, with any certainty, that, it was the second accused's particular blow to the deceased's head that was the specific cause of his death.

In the event, it is difficult, on the evidence available, to sustain the charge of murder against the second accused (Notice Kida) on his own.

What the evidence does clearly show is the following:

The second accused (Notice Kida), third accused (Obert Muchemwa) and fourth accused (Zvidzayi Marufu) were all present at or near the deceased's homestead on the night in question.

All three of them held positions of leadership and control over the groups that they had called together at the gathering.

As already stated, they were fully aware of the planned assault.

Additionally, they must have foreseen, and, by unavoidable inference, did foresee, the possibility of the attack on the deceased resulting in his death.

Subsequently, after their followers were unleashed on the deceased's homestead, they either actively participated or did nothing to defuse the situation and avert the attack on the deceased. Moreover, in the aftermath of the attack, they did nothing to report the matter to the police or any other responsible authority.

In short, all three accused conspired, in varying degrees, in the planned assault on the deceased and all three of them foresaw the real possibility of the attack resulting in his death but were reckless as to whether or not death ensued.

In the event, all three accused are acquitted on the charge of murder but are found guilty of the offence of conspiring to murder the deceased.

It is…, not in dispute that a group of some MDC-T members gathered at Glenview 4 Shopping Centre on 29 May 2011 to celebrate what was termed the 'MDC-T' T- Shirt Visibility day.

It is common cause that security officials considered the gathering to be unlawful for want of compliance with security regulations and statutes. As a result, the deceased was tasked to lead a troop of police officers to go and disperse the gathering. The deceased teamed up with Assistant Inspector Nyararai, Sergeant Chikwanda, Sergeant Major Mutsigwa, Constable Solomon Mushaninga, Constables Magonangona, Magutarima and Dehwe. The team constituted the mobile reaction group on a mission to disperse the reported illegal gathering at Glenview 4 Shopping Centre. Enroute to that place, they passed through Glenview Police Station where they were accompanied by Inspector Nyararai.

At Glenview 4 Shopping Centre, they confronted and ordered the group of alleged MDC-T activists that was feasting, drinking and roasting meat to disperse. They met with no resistance at that stage. The activists, in fact, successfully negotiated for permission to finish roasting their meat before dispersing.

The three (3) accused are facing a charge of murder in that on the 30th of July 2012, and at Maramba Business Centre, Zvishavane, in the Midlands Province, Golden Bako, Erisha Simango and Amiri Phiri or one or more of them unlawfully caused the death of Manford Moyo, by striking him all over the body with booted feet and clenched fists, and striking him on the head with a stone, intending to kill him, or realizing that there was a real risk or possibility that their conduct may cause death, and continued to engage in that conduct despite the risk or possibility.

The three pleaded not guilty.

Accused 1 relied on self-defence while Accused 2 denied causing the deceased's death in that he did not foresee that Accused 1 would assault the deceased with a stone causing his death. Accused 3 denied killing the deceased. He admitted that he assaulted the deceased inside the bottle store. He further denied harbouring an intention to kill the deceased.

The State led evidence from three (3) witnesses.

The first witness was Charity Danira who was employed as a bar lady at Maramba Bottle Store - the scene of the crime. She was on duty on the fateful day. The accused persons arrived around 4pm and they were listening to music from a memory card. Later, the deceased arrived and shortly thereafter there was a misunderstanding between the deceased and Accused 2 over how the music was to be played. The deceased and Accused 2 started fighting and the others joined by assaulting the deceased using their hands. The accused persons hit the deceased all over the body. The accused persons pushed the deceased outside and continued to assault him. She did not follow the group outside but later she saw Accused 2 and 3; the two asked for some water. The witness said she did not witness the assault outside the shop. The assault inside the shop did not involve kicking….,.

The second witness, Jester Sithole, said she was in an adjacent shop when she saw all three (3) accused persons assaulting the deceased with booted feet, fists and open hands. They assaulted the deceased indiscriminately. She said the accused and the deceased later went outside where they (accused persons) continued to assault the deceased. According to this witness, the taller accused person then picked up something, threw it and the deceased then fell down. She said the deceased had his back towards the person who was throwing the missile. She said he was attempting to walk away when he was struck from a distance of approximately 1½ metres. The witness would see clearly because of the moonlight. She said she did not see the deceased picking up a stone; at the time the deceased was assaulted the fight had stopped according to her. She also said at that stage, Accused 2 was no longer assaulting the deceased.  After that, Accused 2 asked for some water.

Despite being asked to raise her voice, she kept on murmuring. We had to stretch our ears to hear what was saying. However, her evidence was not seriously challenged by the defence – none of them put it to her that they never used booted feet on the deceased.

Accused 1 admitted that he picked up a stone and threw it at the deceased. He admits the deceased fell down. The deceased sustained an injury at the back of the head. Post mortem confirms this. 

This corroborates the witness' testimony.

We do not believe that the witness would mention the use of booted feet if this had not occurred. She has no motive to fabricate evidence against the accused persons. For these reasons, her evidence is accepted.

The third witness was David Madhadha. His testimony is basically as follows:

He is a headman. The Accused persons are his neighbours. The deceased was his maternal uncle.

On the day in question, he found the accused persons drinking beer at Maramba Bottle Store. They had ordered the bar lady to play one song repeatedly – the deceased did not like this and a misunderstanding ensured. The witness went to relieve himself. Upon return, he found the three (3) accused persons and the deceased on the verandah with Accused 2 holding the deceased on his right, Accused 3 by the left side while Accused 1 was pushing the deceased out of the verandah. The deceased's shirt had been violently removed from his body. It was hanging by the sleeves. It was torn. The witness then got hold of Accused 2 in an effort to restrain him. Accused 2 told the witness that they should be left alone to do as they pleased i.e. assaulting the deceased. He said the deceased had to be taught a lesson because he was belittling them. Meanwhile, the deceased was telling Accused 1 and 3 that he did not want to fight with them. Accused 1 and 3 did not take heed. The witness saw the deceased fall down, the deceased got up but fell down again and this time he did not get up. He believed the deceased had been injured at this stage. The deceased was not armed and the accused persons were assaulting the deceased with booted feet and clenched fists all over his body. The witness said he failed to protect the deceased from being assaulted by the three accused persons because he could only hold one accused at a time and the other would…, time assaulting the deceased. After the deceased fell down, the witness heard one of the accused persons saying “Golden, why did you kill this person? Accused 1 then ran away. The witness checked the deceased's pulse and realized that he had died. Since it was dark, he did not observe any injury but later saw that the deceased had been injured at the back of his head. When police attended the scene he saw Accused 1 showing the police the stone he had used i.e. Exhibit 9. The witness said stones similar to Exhibit 9 were found a few metres from the verandah. He said there are many stones around that area. He denied that the deceased picked up a stone when he was running away. According to this witness, Accused 1 paid three (3) cattle to the deceased's family. Accused 2 paid five (5) cattle and Accused 3 paid one (1) beast and $250= cash. He conceded that the accused persons…., have paid in the form of groceries etc. 

He said from his assessment, the accused persons were drunk but would appreciate what they were doing. He said he was not drunk because he had only taken ½ of the scud he had bought. According to this witness, the deceased was close to the first accused when he saw him falling down….,.

Most parts of his evidence are common cause and I need not analyse those portions; suffice to say as regards contentious areas, they are narrow and are as follows:

(a) The witness said after striking the deceased with the stone, Accused 1 ran away while the accused said he remained at the scene.

In our view, this fact is colourless in the circumstances of this case.

(b) Witness said all accused persons used booted feet and fists. Accused 1 said they did not do so.

It is common cause that at some point during the commotion the deceased fell down. We do not believe that given the zeal and gusto the accused persons had to assault this old man (as they put it) would stop assaulting the deceased when he was on the ground. There were no rules in this fight and naturally one would resort to all the methods available and convenient - including kicking. 

We find that this witness, like Jester Sithole, told the court the…, that the accused persons kicked the deceased while he was on the ground.

(c) Witness said he did not see the deceased picking up a stone before he was hit by Accused 1. On the other hand, Accused 1 said the opposite is what happened. 

In our view, Accused 1 is not being truthful on this one point. We say so for the following reasons:

(i) The medical evidence shows that the deceased was hit on the ocerpit i.e the back of the head. If what Accused 1 told the court is what happened, this quite obviously means the deceased could not have been injured on that part of his body. That the deceased had a wound at the back of the head makes the accused's version thoroughly discreditable and false. 

This is the coup de grace to Accused 1's defence.

(ii) Further, if more proof is required, it is to be found in Accused 2 and 3's evidence to the effect they did not see the deceased bending down before he was hit. Accused 2 and 3's evidence is admissible against Accused 1 – trite. Accused 2 and 3 were very close to where Accused 1 was standing when he threw the stone. Also, it is their testimony that they saw the deceased running away. They also saw him fall to the ground.

(iii) Of the six people who witnessed the incident, five (5) say they did not see the deceased bending down before he was hit and it is only the forlorn first accused who said he did so.

We find Mr Madhadha to be a credible witness on this point as his evidence has been sufficiently corroborated by other witnesses and the post mortem report. We accept his evidence and reject Accused 1's evidence.

As against Accused 2, the following areas are in dispute:

(a) The witness said while the deceased was on the ground all the accused persons were kicking him with booted feet. Accused 2 said at that stage he was no longer assaulting the deceased. 

I have already analysed this evidence when I dealt with Accused 1's testimony. Our findings thereof equally apply to the second accused. However, I must add that what was more telling and instructive of Accused 2's state of mind at that time is the following evidence by the third State witness, Mr Madhadha; and I quote;

“I attempted to hold Accused 2 whilst at the verandah in order to stop him from further assaulting the deceased but Accused 2 said; “uncle, let me assault this old man who is belittling us.” 

This portion of the witness' testimony was not challenged during cross examination. 

In our view, this is the final nail in Accused 2's defence that he was acting in self-defence, for at that stage he was undoubtedly the aggressor.

The first accused gave evidence in his defence and his version, as pointed out above, differs from that of the other witnesses. We make an adverse finding in respect of Accused 1's credibility for the simple reason that he told us a false story. He lied that when he threw the stone he did not see where it went to. We find that he aimed the stone on the upper part of the deceased's head. Indeed, the first accused admitted that he aimed the stone at the deceased. 

We find that the throwing of the stone by Accused 1 was a confirmation of the assault that had commenced inside the shop.

Accused 1 admitted that he realized that he was throwing a stone at a human being. When asked what he thought would happen to the deceased, his answer was;

 “Deceased was going to stop throwing a stone at me.” 

When asked, further, how this was going to stop the deceased, he became evasive saying this would scare the deceased. 

This evidence from Accused 1, coupled with the earlier concession, that he used excessive force to propel the stone that he aimed at the deceased, is indicative of a mind that foresaw the real possibility of death resulting from his reckless conduct.

Accused 2 also gave evidence in his defence.

Apart from what we said earlier on, he also confirmed that the deceased was running away from where they were with his back toward them when he was assaulted by Accused 1 with a stone. He said the throwing of the stone was Accused 1's own decision. Further, he said the deceased was about ten (10) metres from the first accused when he was struck. He was standing about five (5) metres from the first accused. Accused 2 denied that the deceased picked up a stone before he was hit. He also said although he had taken a sizeable amount of alcohol he appreciated everything that was happening. He said he drank opaque beer mixed with ZED and a scud. 

The thrust, or gist, of Accused 2's defence is that when he assaulted deceased, he did so in self defence since the deceased was the aggressor. He denied using booted feet but admitted using clenched fists.

As pointed out before, the rest of Accused 2's evidence is in tandem with that of other witnesses except on the issue of self-defence where he drew a distinction between “assaulting someone” and fighting someone.

Accused 3 admitted assaulting the deceased with fists. As regards the manner in which the deceased was assaulted he evidence tallies with that of Accused 2, Jester Sithole, and David Madhadha.

Whether accused persons are guilty of murder or any other competent verdict.

State counsel conceded that Accused 2 and 3 could not be found guilty of murder as there was insufficient evidence to establish the requisite intention. He submitted that they be found guilty of assault as defined in section 89 of the Criminal Law (Codification and Reform) Act. 

Accused 3 pleaded guilty to that offence in his Defence Outline. Accused 2, however, denied the offence, arguing that since the deceased started the fight he only assaulted the deceased in self defence. Therefore his assault was lawful. 

As regards Accused 1, the State submitted that he be found guilty of murder with constructive intent. 

Counsel for Accused 1 said Accused 1 should be found guilty of culpable homicide. 

We find that the State's concession is sound and proper at law. 

This brings us to two issues, namely;

(i) Whether Accused 1 is guilty of murder with constructive intent;

(ii) Whether accused 2 is guilty of assault.

Let me deal with Accused 2 first.

If I understand the answers proffered on his behalf correctly, it feels like this:

If A is an aggressor who assaults B with fists and B retaliates and over-powers A, B is nevertheless permitted to continue to assault A simply because A was the initial aggressor. This argument is fallacious for two reasons, namely;

(a) It makes a mockery of the requirements of the defence of self-defence; and

(b) It leads to an absurdity in that in a fight, the protagonists may change from aggressor to victim or vice versa within a short space of time. 

In such a scenario the categorization of protagonists as aggressor and victim leads to disastrous consequences.

In casu, there is overwhelming evidence that from the moment Accused 1 and 3 joined in the fight, the deceased was immediately subdued. There is overwhelming evidence that the three accused continued assaulting him, tore his shirt, pushed him out of the shop onto the verandah where the deceased fell down and all three (3) kicked him with booted feet. In view of this evidence, it is unconvincing to argue that Accused 2 was still acting in self defence. Put differently, the accused persons were now the aggressors in that they had exceeded the bounds of reasonable self-defence – the threat had been eliminated. 

On this basis, the second accused must be found guilty of assault….,.

Coming to Accused 1, let me state the legal principles first. (Go to Mugwamba vs SC…,.; S v Sigwahla 1967 (4) SA 556 (A). Go to legal intention page 9.

In casu, the following facts are salient;

(a) That it is common cause that the sworn intention of the first accused and his companions was to assault the deceased. It follows, therefore, that the death of the deceased was not the desired objective. It, however, occurred while Accused 1 was engaged in the desired activity of assaulting the deceased. The first accused did not desire to kill, he intended to punish the deceased for fighting with Accused 2.

(b) In pursuance of Accused 1's activity i.e. the assaulting of the deceased, one wound was inflicted on the deceased's head. The degree of force and depth of the wound is unknown although the accused admitted that he used excessive force to propel the stone. The accused admitted that he aimed his blow at the deceased. He hit him at the back of the head (vital part of the body).

(c) The deceased fell down and died instantly from the injury.

(d) Although the accused had taken alcohol he admitted that this did not inhibit his faculties of comprehension and appreciation.

These facts, in my view, are sufficient to establish, beyond reasonable doubt, that the accused did foresee the possibility of the death of the deceased as a consequence of the assault and persisted with the assault regardless.

Both accused persons are facing a charge of murder, as defined in section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The charge is that on 1 February, at No.23758 Zvita Street, Rujeko 'C' in Masvingo each of the accused, or both of them, intentionally caused the death of Emisirayi Chinyengetere by assaulting him all over the body with hands and booted feet inflicting injuries from which the said Emisirayi Chinyengetere died.

The accused persons and the now deceased were known to each other and neighbours in Rujeko 'C' in Masvingo.

The State case is that on 1 February 2015 a dispute arose between the now deceased and the accused persons regarding the use of a footpath which passed through the now deceased's yard which had been barricaded by the now deceased. It is alleged the accused persons insisted in using the said foot path despite the now deceased's protestations. As a result, the State alleges that both accused, acting in common purpose and in cahoots, assaulted the now deceased with clenched fists all over the body and the head and proceeded to kick him with booted feet in the stomach and private parts as he lay down. It is alleged that the accused persons were only stopped from assaulting the now deceased by one John Hunyani. It is further alleged that the now deceased's health condition worsened the next day, 2 February 2015, and he passed on before he could be ferried to Masvingo General Hospital. The postmortem report revealed the cause of death as head injury and abdominal haemorrhage arising from blunt trauma.

The accused persons, for some inexplicable reasons, completely denied that they assaulted the now deceased. Surprisingly, they raise the defence of self-defence and defence of another.

The contradiction is clear.

In their Defence Outlines, both accused persons said the now deceased was the aggressor who attempted to hit them with an iron bar as they passed through his yard for no apparent reasons. The accused persons said they managed to avoid the blow with the iron bar and the now deceased pulled out a knife from his trousers pocket and first stabbed Accused 1, Tawanda Gono (Gono), piercing his t-shirt and inflicting a minor injury on the arm. They said Accused 2, Lee Shumba (Shumba), came to the rescue of Accused 1, Tawanda Gono, by trying to hold the now deceased by the waist but he was stabbed by the now deceased on the knee causing Accused 2, Lee Shumba, to fall down. In order to avert further attacks, the accused persons said Accused 1, Tawanda Gono, managed to hold the now deceased in order to disarm him of the knife and Accused 1, Tawanda Gono, and the now deceased fell to the ground. They both said Accused 1, Gono, and the now deceased wrestled on the ground until the now deceased lost possession of the knife after which Accused 1, Gono, released the now deceased. They said they both went to ZRP Rujeko police station to report the matter and were accompanied to the scene by a police detail who recovered both the iron bar and the knife the now deceased had used. Both accused persons denied assaulting the now deceased in the manner alleged or in any manner.

They, nonetheless, insisted to have acted in self-defence and the defence of another.

The State led viva voce evidence from Martha Teketeke (Martha), John Hunyani (John), Edmore Matsikidze (Edmore) and Sgt Oswald Tongai Pamire (Sgt Pamire)….,.

Both the accused persons gave evidence and called Cst George Mururi (Cst Mururi) as their defence witness.

In support of its case, the State produced the following exhibits;

Exhibit 1 which is Accused 1 Tawanda Gono's confirmed warned and cautioned statement. The contents of that statement are the same as Accused 1, Gono's, Defence Outline save the addition that when a police detail attended the scene on 1 February 2015 the now deceased was warned to desist from violence and that it is this police detail who recovered the knife the now deceased had used to attack the accused persons.

Exhibit 2 is Accused 2, Lee Shumba's confirmed warned and cautioned statement which is also similar to his Defence Outline. The only addition being that the next day, on 2 February 2015, Accused 2, Shumba, was informed that the now deceased was ill which prompted Accused 2, Lee Shumba, to go to the now deceased's house where he found the now deceased complaining of stomach pains and hunger. Accused 2, Shumba, said he went to advise the police of the now deceased's condition.

Exhibit 3 is the post-mortem report compiled by Dr Zimbwa after conducting an autopsy of the now deceased on 4 February 2015. The Doctor noted the following;

(i) Bleeding from the mouth and nostrils.

(ii) Significant abdominal distension paracentesis showing blood.

(iii) Massive scrotal and penile haematoma.

(iv) Abdominal bruising.

The doctor concluded that the cause of death was head injury and abdominal haemorrhage arising from blunt trauma.

It is significant to note that the cause of the now deceased's death has not been put into issue. The injuries observed on the now deceased by the doctor are clearly consistent with an assault. All the accused persons are saying is that they do not know how the now deceased, who had hitherto been fit to attack two persons viciously, sustained those injuries and passed on the next morning.

Exhibit 4 is the Report Received Book (RRB) made on 2 February 2015 in relation to the now deceased's condition and subsequent death by Edmore Matsikidze. In our view, this exhibit is of no probative value and its contents are not in issue….,.

In our view, the narrow issue to be resolved by the court is whether indeed the accused persons assaulted the now deceased and inflicted the fatal injuries. In this regard we turn to viva voce evidence led in court.

Martha Teketeke (Martha)

The now deceased was a neighbour of Martha Teketeke and she knew both accused persons as they lived in her neighbourhood. She said the now deceased stayed alone in an incomplete house and was apparently mentally unstable, poor, and destitute. According to Martha, the now deceased would, at times, prevent people from using a path which passes through his yard especially when he was drunk.

Turning to the events of the day in question, Martha said the now deceased was drunk. She said as she was doing her laundry she heard the now deceased telling both accused that they should not use the path which passed through his yard. She heard both accused insisting that they would use that path. She was obstructed by a house and could not see the accused and the now deceased but just heard their voices.

Martha said the now deceased threatened to stab both accused with a knife if they insisted on using the path in issue and that the accused persons, in turn, threatened to beat up the now deceased. She did not see how the confrontation between the now deceased and the accused persons started but went on to explain what she saw when they were now within her sight.

When both accused persons and the now deceased were within her sight she saw both accused persons assaulting the now deceased. She could not, in specific detail, explain how each of the accused assaulted the now deceased but said Accused 1, Tawanda Gono, used booted feet. Martha said the now deceased fell down and people who had gathered stopped the assault but Accused 2, Lee Shumba, would not take heed as he continued to assault the now deceased. In fact, she said within her sight it is Accused 2, Lee Shumba, who assaulted the now deceased most severely. According to Martha Teketeke, the now deceased, at that point, was on the ground and did not fight back in any manner.

Martha said when the assault stopped she saw the now deceased washing some blood at a water tap. She did not see any injuries the now deceased sustained. Martha only heard of the now deceased's demise the next day.

Under cross examination, Martha Teketeke insisted that Accused 1, Tawanda Gono, assaulted the now deceased with booted feet. She further said she only saw the knife, Exhibit 5, at the police station as it was alleged it had been with the now deceased. She said Accused 2, Lee Shumba, used his hands to assault the now deceased. Martha conceded, under cross examination, that she heard the accused persons ordering the now deceased to drop the knife and the now deceased insisting that he would not drop the knife….,.

John Hunyani (John)

John has known the now deceased since 2005 and described his behaviour as generally erratic when drunk. He stays in the same neighbourhood with the accused persons and the now deceased.

John Hunyani's testimony was that on the day in question he was at his work place when he was attracted to the scene of the crime by the people who were shouting that the now deceased was being assaulted. He said he peeped over the durawall from his workplace and saw people gathered at the now deceased's house. Curiosity took the better of him and he rushed to the scene. On arrival, he said he found the now deceased lying down and being assaulted by Accused 2, Lee Shumba, with booted feet. He verbally told Accused 2, Lee Shumba, to stop the assault and Accused 1, Tawanda Gono, was just standing by. John did not check if the now deceased or any of the accused had injuries nor did he seek to ascertain the cause of the assault. He said Accused 2, Shumba, did not take kindly to his remonstration of Accused 2, Shumba, as Accused 2, Shumba, alleged the now deceased had injured Accused 2, Shumba, with a knife.

Under cross examination, it was extremely difficult to appreciate the evidence of John Hunyani as he rumbled on many occasions without answering questions put to him. John continually changed his evidence to the extent that the import of his testimony is unclear. Initially, he said he witnessed only Accused 2 Lee Shumba, assaulting the now deceased but later changed and said both accused persons were assaulting the now deceased with clenched fists and booted feet. When he was taken to task about this inconsistency John changed again and said he only say Accused 2, Lee Shumba, assaulting the now deceased….,.

Edmore Matsikidze (Edmore)

The evidence of Edmore Matsikidze is largely unchallenged. He is a friend of both accused persons and stayed in the same neighbourhood with the now deceased. His evidence relates to the events of the next day, 2 February 2015.

Edmore passed through the now deceased's house on 2 February 2015 when he found the now deceased groaning in pain. On inquiring what was wrong, the now deceased told him that he had been assaulted by the accused persons the previous day, on 1 February 2015. This prompted him to go to the accused persons' house where he found Accused 2, Lee Shumba, and advised him of the now deceased's report and state of health. He said Accused 2, Shumba, did not protest but was co-operative as he agreed to accompany Edmore to the now deceased's house. Edmore said in the presence of Accused 2, Shumba, the now deceased repeated the allegation that the accused persons had severely assaulted him the previous day and in the process injured him. In view of the now deceased's critical health state he took Accused 2, Lee Shumba, to Rujeko police station and filed a report. However, upon his return with the police to the now deceased's house they found that the now deceased had passed on.

Under cross examination, Edmore Matsikidze said the now deceased was in the habit of prohibiting people from using a path which passes through his yard when drunk.

It is clear that the now deceased, as he explained his condition to Edmore Matsikidze, implicated both accused persons as his assailants. This evidence can be described as a dying declaration which is admissible in our law. See Criminal Procedure in Zimbabwe by JOHN REID ROWLAND…,.

Sgt Oswald Tongai Pamire (Sgt Pamire)

Sgt. Pamire is the Investigating Officer in this matter and has 15 and a half years experience in the police force. However, in his evidence he did not exhibit such experience as a police officer. In fact, besides being needlessly irrational and a very poor witness he was amazingly untruthful.

Sgt Oswald Tongai Pamire took over the investigations in this matter on 2 February 2015 after the now deceased's death and the Report Received Book (RRB), Exhibit 4, had been completed. He proceeded to record statements from State witnesses who implicated both accused persons in the assault of the now deceased. The accused persons were arrested and he recorded their warned and cautioned statements, Exhibits 1 and 2. Sgt Pamire also recorded statements from Cst George Mururi who had attended the scene of crime on 1 February 2015 pursuant to a report by the accused persons at Rujeko police station. Surprisingly, in his evidence, he professed ignorance that the accused persons had made such a report at Rujeko police station the previous day, on 1 February 2015, to Cst George Mururi. The detailed statement to that effect which he recorded from Cst George Mururi was tendered by the defence in court. We wonder why during his evidence when he was misleading the court, the trial prosecutor, who is an officer of this court did not bring this statement to his attention in order to lay bare his misleading evidence. In fact, it is Cst George Mururi who gave him the knife, Exhibit 5, recovered at the scene of the crime on 1 February 2015. Again, Sgt Pamire misled the court that he did not know how the knife Exhibit 5 had been recovered!

Sgt Pamire said although the accused persons alleged that they had been injured by the now deceased he did not see any injuries on them.

It is difficult to accept his evidence to that effect moreso as he never bothered to take Accused 1, Tawanda Gono's t-shirt allegedly pierced with the knife as an exhibit in order to disprove Accused 1, Gono's, assertions. To his credit, he admitted that the iron bar, Exhibit 6, was identified to him by the accused persons during indications as one of the weapons used by the now deceased in attacking the accused persons.

What we find irritating about his evidence was the persistent denial that he was aware the accused persons had made a report of assault against the accused persons on 1 February 2015 to Cst George Mururi at Rujeko police station when he had a recorded statement from a fellow police officer to that effect.

We now turn to the evidence of the accused persons.

Accused persons' evidence

The evidence of both accused persons was similar to what they both told the court in their defence outlines which is basically the same as their confirmed warned and cautioned statements. No useful purpose, in our view, would be served by repeating it at this stage.

Both accused persons identified the knife, Exhibit 5, and the iron bar, Exhibit 6, as the weapons the now deceased used to attack them, and that they caused the recovery of those exhibits by the police.

While the accused persons described the now deceased as mentally stable, the State witnesses referred to his mental instability and erratic behaviour when under the influence of alcohol. As the accused persons were well known to the now deceased we doubt they were not aware of this trait.

The other unconvincing aspect about the accused persons' testimony was their insistence that they were unaware of the cause of the altercation between themselves and the now deceased. To our minds, it is clear as daylight that the source of the dispute or altercation was the now deceased's insistence that the accused persons should not use the path which passed through his yard. The accused persons insisted in using that path. This is the only logical inference which can be inferred from the facts and is supported by the evidence of Martha Teketeke. We are not persuaded by the rather bizarre evidence of the accused persons that Martha did not witness this incident. We are equally not persuaded that they are implicated in the assault of the now deceased solely on account of their bad luck.

Constable George Mururi (Cst. Mururi)

Cst George Mururi was called as a defence witness, and this, in our view, was occasioned by the manner in which the State sought to present their case and Sgt Oswald Tongai Pamire's misleading evidence. We say so because the State was aware of Cst Mururi's evidence as his statement was recorded during investigations but the State chose to ignore that evidence.

Cst Mururi confirmed that on 1 February 2015 both accused persons came to ZRP Rujeko to report an altercation they had had with the now deceased who had barricaded a footpath which passes through the now deceased's yard with an iron bar. The accused persons reported that they had tried to remove the iron bar which had caused the now deceased to attack them.

This is precisely why we dismiss as untrue the evidence by the accused persons that they were not aware of the source of the dispute between them and the now deceased.

Cst Mururi said the accused persons said the now deceased had attempted to hit them with an iron bar and that when that failed he pulled out a knife, Exhibit 5, and inflicted some minor injury on Accused 1, Tawanda Gono's elbow and another minor injury on Accused 2, Lee Shumba's leg.

Cst Mururi said both accused persons disclosed to him that the now deceased was of unstable mental state hence they did not want to make a formal report but simply wanted him to be admonished for such conduct, moreso as both accused persons had not been seriously injured.

Again, this is why we precisely reject the accused persons' evidence that they did not know the now deceased's state of mind. In fact, Cst Mururi said he personally knew that when the now deceased was drunk he was of violent disposition, would behave as mentally unstable, and would even visit Rujeko Police Station for no apparent reason.

After receiving this report, Cst Mururi accompanied both accused persons to the now deceased's house where he recovered the knife, Exhibit 5, and took it to the police station. He later handed over the same knife to Sgt. Pamire on 2 February 2015, after the now deceased's death, as part of exhibits. Cst Mururi said he found the now deceased, on 1 February 2015, lying down in a drunken state hence the now deceased was unable to meaningfully answer to his enquiries on what had happened.

We are persuaded to accept that the now deceased was drunk, as per Cst Mururi's evidence, because how was it possible that the next day the now deceased was able to tell Edmore Matsikidze what had happened, but had failed to tell Cst Mururi the same explanation the previous day? If at all the now deceased had failed to give any explanation on 1 February 2015 to Cst Mururi due to serious injuries inflicted on him, he would have not miraculously been able to do so to Edmore Matsikidze the following day when his condition would have worsened.

Cst Mururi said he nonetheless cautioned the now deceased and the accused persons were satisfied by that. He said he did not see any injuries on the now deceased but observed minor injuries on both accused persons which was consistent with their report.

Cst Mururi said the next day he was on duty when Edmore Matsikidze made a report that the now deceased was unconscious in his house. He proceeded to the now deceased's house and found him seated naked leaning on the bed with many empty beer bottles scattered on the floor. The now deceased was unresponsive to his inquiries and he called for an ambulance but the now deceased passed on before he could be ferried to hospital.

In our assessment, we find Cst Mururi's evidence to be very useful to the court. In our view he was a clear and straightforward witness.

The denial by both accused persons that they did not assault the now deceased at all cannot be sustained in view of the evidence placed before us. To our minds, the cause of the altercation is clear, though petty. There is an eyewitness who witnessed the assault on the now deceased by the accused, one Martha Teketeke. Accused 2, Lee Shumba, is further implicated by John Hunyani despite the imperfections of John's evidence. There is also a dying declaration by the now deceased made to Edmore Matsikidze, in the presence of Accused 2, Lee Shumba, which implicates both accused persons. Given the results of the post mortem report, the only probable cause of the now deceased's fatal injuries point to an assault, which assault was perpetrated by the accused persons. From the evidence placed before us there was no novus actus interveniens that might have broken the chain of causation which would explain the now deceased's injuries.

A novus actus interveniens or nova causa interveniens is an abnormal, intervening act or event which is in accordance with general human experience which serves to break the chain of causation. See South African Criminal Law and Procedure, Vol 1, 4^th ed by JONATHAN BURCHELL…,.

In our view, there is no basis to treat either of the accused persons different from the other. Their moral blameworthiness is the same.

VERDICT:

The accused is facing the charge of murder as defined in section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The accused was jointly charged with Personally Ngundu who is currently at large. The State successfully applied for separation of trial.

The charge is that the accused, or one or both, unlawfully caused the death of Lessie Temai, a female adult, by striking her with a switch and kicking her on 21 March 2015 in Madziya Village, Chief Murove, Mwenezi in Masvingo.

The accused is 45 years old and his alleged accomplice, Personally Ngundu, is 27 years old. The accused resides in Munongwani Village, Chief Mawarire, Mwenezi, Masvingo. His alleged accomplice resides in Madziya Village, Chief Murove, Mwenezi, Masvingo; the same village the now deceased resided.

The now deceased was a 52 year old widow and is described as a person who was of ill-health and well known for patronising beer drinks.

On 21 March 2015, there was a beer drink at Ngundu's Homestead, the parents of the alleged accomplice, Personally Ngundu, in Madziya Village, Chief Murove, Mwenezi, Masvingo. There were a number of patrons partaking in the traditional brew which included the now deceased, Mukowa Moyo, Personally Ngundu and the accused. Esnath Ngundu, the mother of the alleged accomplice, was selling the beer at her homestead.

It would appear from the evidence that the traditional brew was very intoxicating as many people who were present seemed to have been very drunk from the evidence placed before us. A number of brawls also arose which culminated in the now deceased's demise.

At about 1600 hours, the now deceased and one Mukowa Moyo (Moyo) were involved in an altercation which degenerated in a fight. The source of dispute is said to have been a mini skirt the now deceased was wearing which provoked the ire of Moyo. The now deceased did not take kindly to being rebuked for her attire.

The State alleges that Personally Ngundu, who is at large, stopped the fight by in turn assaulting both Mukowa Moyo and the now deceased with a switch. The now deceased is said to have turned her wrath towards Personally Ngundu by shouting at him. It is alleged that Personally Ngundu responded by kicking the now deceased causing her to fall only to be helped to her feet by Esnath Ngundu who assisted her to sit down. The State alleges that the accused, for no apparent reason, took a switch and struck the now deceased on the head, again, causing her to fall down. It is alleged that Esnath Ngundu assisted the now deceased to get up and took her into one of Esnath Ngundu's huts.

The now deceased unfortunately passed on at around 1800 hours.

The accused flatly denied assaulting the now deceased in any manner. Instead, the accused lays the blame squarely on his alleged accomplice, Personally Ngundu, who is at large, whom he said heavily assaulted the now deceased on the head with a switch. According to the accused, the old adage that the guilty are afraid explains why Personally Ngundu is at large. The accused said Personally Ngundu's mother, one Esnath Ngundu, a State witness, is simply living by the saying that blood is thicker than water by protecting her son, Personally Ngundu, and falsely incriminating the accused. The accused, who denied that he was heavily intoxicated, said, in his evidence, that the now deceased and one Mukowa Moyo, who was also initially arrested in connection with this matter, are the persons who first quarrelled and then engaged in a fight. According to the accused, Mukowa Moyo was heavily drunk and he was unable to meaningfully fight back as the now deceased overpowered him. The accused's version is that this fight was not stopped by anybody but the protagonists stopped on their own.

The accused said Personally Ngundu then took a switch and assaulted Moyo whom he took out of the yard. Upon his return, the accused said Personally Ngundu proceeded to assault the now deceased on the head with a switch, and several times, all over the body. The accused said Personally Ngundu then proceeded to kick the deceased with safety shoes on the chest causing her to fall headlong.

The accused said the now deceased exclaimed that Personally Ngundu has killed her.

The accused's evidence is that at that point Personally Ngundu threw away the switch and ran away. The accused said he picked the switch and secured it on top of a garage well-knowing it was an exhibit.

The accused said Personally Ngundu's mother, Esnath Ngundu, took the now deceased into one of her huts but came out to advise those people present that the now deceased's condition was deteriorating. The accused said some water was poured on the now deceased to no avail as she passed on and most of the patrons vanished from the scene.

The accused said he proceeded to the nearby Sengejira Business Centre where he unfortunately met Personally Ngundu who attacked the accused. The accused said his crime was telling people at Sengejira Business Centre what Personally Ngundu had done; that is killing the now deceased. The accused said he was severely assaulted by Personally Ngundu with one of the bigger switches in court produced as Exhibit 2(b) and was also hit on the head with a stone resulting in him bleeding profusely. The accused said no one came to his rescue as all the local people know Personally Ngundu as a person of a violent disposition who does not even hesitate to use weapons like knives.

The accused said Personally Ngundu then fled from the scene and the accused went to Esnath Ngundu's homestead to wait for the police whom he heard had been called to attend the deceased's death. The accused said he also hoped to report to the police the assault perpetrated on him by Personally Ngundu. However, when the police arrived, the accused said the tables were turned as he was implicated in the murder of the now deceased. He said his report of assault was virtually ignored by the police despite the visible injuries he had. The police did not even bother to have him medically examined timeously - even after the magistrate had made such an order. Instead, the accused said the investigating officer frantically tried to prevail upon the accused to coerce him to admit to having a hand in the now deceased's death.

The accused said he did not flee from the scene as his hands were clean and that he even tried to render first aid to the now deceased; not because he had assaulted her but out of his good heart. He denied that any compensation was demanded from him by the now deceased's relatives.

It is the accused's contention that Esnath Ngundu and Pesani Singateri, both State witnesses, are simply conniving to falsely implicate him. The accused alleges Esnath Ngundu is trying to lessen her burden for compensation to the now deceased's family by also involving the accused, and that Pesanai Singateri was the now deceased's boyfriend.

The accused thus insisted that he never laid his finger on the now deceased and has completely no hand in her demise.

The postmortem report, Exhibit 1, compiled by Dr Godfrey Zimbwa, who examined the now deceased's body on 22^nd May 2015, reveals the following observations and findings;

(i) The now deceased had facial and scalp bruises.

(ii) Bilateral periorbital haematomas.

(iii) Multiple bruises on the upper chest.

(iv) Bleeding from the mouth and nostrils.

The doctor concluded that the cause of death was head injury arising from blunt trauma.

The observations and findings by the doctor are not being challenged. It is therefore a fact that the now deceased was assaulted fatally….,.

The State case is premised on the evidence of two eye witnesses, Esnath Ngundu and Pesanai Singateri….,. We therefore turn to their evidence.

Esnath Ngundu (Esnath)

Esnath is the mother of the alleged accomplice, Personally Ngundu. She is well known to the accused who stays in the neighbouring village. The now deceased was her fellow villager. This tragic event occurred at her homestead where there was a beer drink. She is not aware of the current whereabouts of her son, Personally Ngundu, who has since defaulted court.

Esnath Ngundu said on the day in question she attended a meeting and only came back home at about 1600 hours. Her daughter was selling the beer in her absence.

In her evidence, she said the now deceased and one Mukowa Moyo quarrelled and ended up in a fight. She said Moyo was the first to hit the now deceased on the chest. The now deceased then stood up and the two were embroiled in a fist fight. She said Mukowa Moyo was overpowered and felled to the ground. The now deceased then sat on Moyo's stomach.

It is at that point that Esnath said her son, Personally Ngundu, intervened.

She said he, Personally Ngundu, plucked a switch from a Mutobwe tree and proceeded to assault both Moyo and the now deceased ordering them to stop the fight at his homestead. She was not able to count the blows delivered by Personally Ngundu on either Moyo or the now deceased. They were several. The switch got broken. Personally Ngundu got another switch. She did not see where the blows landed. Esnath said, armed with a second switch, Personally Ngundu ordered both the now deceased and Mukowa Moyo to leave the beer drink. Apparently Moyo complied but the now deceased protested shouting at Personally Ngundu.

Esnath said Personally Ngundu then turned on to the now deceased and hit her causing her to fall down on her side. She did not see what Personally Ngundu used, whether it was a clenched fist or booted foot. All she did was to pull up the now deceased causing her to stand.

According to Esnath Ngundu, the accused then got involved at that stage.

She said the accused came running wielding a switch and hit the now deceased twice on the head. This prompted Esnath to pull away the now deceased into her hut protecting her as she realised the now deceased had been assaulted by a number of people; that is Mukowa Moyo, Personally Ngundu and the accused.

Esnath identified Exhibit 2(b), the thicker switch, as the switch used by the accused to assault the now deceased, and Exhibit 2(a), the thinner switch, as the one used by her son, Personally Ngundu.

According to Esnath, the now deceased, Mukowa Moyo, and the accused well all extremely drunk. She said another State witness, Pesanai Singateri, was also heavily intoxicated as he was just seated dozing oblivious to all these developments. Her son, Personally Ngundu, was moderately drunk.

After she took the now deceased into her hut, Personally Ngundu then left the scene.

She said while she was in the hut with the now deceased she realised the now deceased was having difficulties in breathing. As a result, she tried to wash her face and pour some water onto her. The accused helped her to remove the now deceased's blouse. She realised the condition of the now deceased was worsening and she tried to find a scotch cart to ferry her to a nearby clinic. The now deceased passed on before she could secure one. She advised the Village Head, the Chief and proceeded to ZRP Sarahuru where she only got the next day.

The police attended the scene the next day and arrested the accused and Mukowa Moyo. Her son, Personally Ngundu, had fled and was only arrested after some months.

Esnath said the now deceased was generally of ill-health as she suffered from TB and was given to drinking heavily. Despite the absence of her son, Personally Ngundu, she paid to the deceased's family a chicken, maize meal and a goat before the deceased's burial. The deceased's family demanded 10 herd of cattle from each of the three (3); that is, Personally Ngundu, Mukowa Moyo and the accused. She has since paid seven (7) herd of cattle to the deceased's family on behalf of her son, Personally Ngundu.

Under cross examination, Esnath Ngundu disputed her statement to the police that Personally Ngundu kicked the now deceased. She conceded that her son, Personally Ngundu, is at large as a result of this case. However, she said she cannot tell who delivered the fatal blow among her son, the accused and Mukowa Moyo. Esnath conceded that as Moyo and the now deceased fought they wrestled each other on the ground strangling each other. She told the Court, in cross-examination, that she paid compensation to the now deceased's family on behalf of her son in line with the African tradition. She insisted that the accused had used the bigger switch, Exhibit 2(b), which the accused had put on top of the garage and that police later failed to find it. She does not know how and where Exhibit 2(b) was later recovered.

Esnath Ngundu indicated that she was unaware of the alleged assault perpetrated on the accused by Personally Ngundu at Sengejira Business Centre….,.

Pesanai Singateri (Pesanai)

Pesanai was known to the now deceased but refuted the allegation by the State that he was the now deceased's boyfriend. He is 25 years old. He agreed with Esnath Ngundu that the now deceased was of ill-health and given to heavily drinking. In fact, he said the now deceased had wounds all over her legs and hands.

Pesanai Singateri was not known to the accused, Mukowa Moyo and Personally Ngundu prior to this case.

The evidence of Pesanai is that he arrived at this beer drink at about 1400hrs. His version of events is at cross-purpose with that of Esnath Ngundu on virtually most of the issues or events. We shall highlight the following;

(i) Whereas Esnath said she only arrived at her homestead at about 1600 hours and that her daughter is the one who was selling the beer, Pesanai said upon his arrival at 1400 hours Esnath was present selling the beer and that he never saw the daughter selling the beer.

(ii) Esnath said Pesanai was extremely drunk at the material time to the extent that he was just seated dozing. Pesanai said he was not drunk at all and had taken little beer when all this happened.

(iii) Esnath and Pesanai differ materially in how Mukowa Moyo and the now deceased fought.

Esnath said the two wrestled each other on the ground and that Personally Ngundu stopped the fight by assaulting both of them as the now deceased sat on Mukowa Moyo's stomach. Pesanai said Moyo and the now deceased fought by exchanging fist fights and that they stopped on their own. He denied that Personally Ngundu stopped the fight or that the now deceased sat on Mukowa Moyo's stomach.

(iv) Pesanai said when Personally Ngundu kicked the now deceased on the chest the now deceased fell on her back. On the other hand, Esnath did not see if the now deceased was kicked or hit with a fist by Personally Ngundu but she said the now deceased fell on her side.

They both, however, agree that Esnath is the one who, pulled up the now deceased.

(v) Both Esnath and Pesanai agree that the accused assaulted the now deceased with a switch on the head - but this is the only aspect of their evidence on which they agree.

They differ on the position the now deceased was when she was assaulted by the accused. Esnath said the now deceased was seated but Pesanai said the now deceased was walking being held by Esnath. They differ on the exact switch used by the accused. Esnath said it is the bigger and thicker switch, Exhibit 2(b), but Pesanai said it is the seemingly harmless very thin Exhibit 2(a). Esnath said the accused delivered two blows to the head but Pesanai said they were three blows.

(vi) Pesanai's evidence is that the thicker and bigger switch, Exhibit 2(b), was recovered by the police from the top of the garage on Esnath's indications. Esnath disputes this and said she led to the recovery of the thinner switch, Exhibit 2(a), and is not aware how Exhibit 2(b) was recovered.

(vii) Whereas Esnath said she was not sure as to who inflicted the fatal blow on the now deceased, Pesanai was emphatic and clear that the accused's assault was not fatal in view of the type of the switch the accused used.

(viii) Esnath said Personally Ngundu used a switch to first assault the now deceased before possibly kicking her or using a fist. Pesanai said Personally Ngundu never used a switch but simply kicked the now deceased on the chest with safety shoes.

The evidence of the investigating officer, Sgt. Timothy Manasa, which is material, is that he recovered Exhibit 2(a), the thinner switch, at the instance of Esnath Ngundu, and Exhibit 2(b), the thicker switch, some 300m away from the scene at the instance of the accused.

This would seem to corroborate Esnath Ngundu's evidence.

It is clear to us that the State's case is plagued with material contradictions which remained un-cured by the evidence led by the State. The two key State witnesses, Esnath Ngundu and Pesanai Singateri, remained poles apart on the material issues.

The question which arises is which version should the Court believe in those circumstances?

Was Pesanai Singateri heavily intoxicated to the extent that he was dozing or not? Most importantly, which switch did the accused use to assault the now deceased? Was it Exhibit 2(a), the thinner and harmless one, or the thicker Exhibit 2(b)? When Personally Ngundu assaulted the now deceased did she fall on her side or on her back?

These material contradictions in the State's case remain unresolved. Further, given these contradictions, it is even difficult to invoke the doctrine of common purpose.

What even compounds the State's case is that the doctor was not called to testify.

This is a case which cried out for the viva voce evidence of the doctor. The doctor would have shed more light on the now deceased's alleged ill-health vis-à-vis her demise. Besides that, and most importantly, the doctor would have assisted the Court on the nature of the head injury the now deceased suffered which is given as the proximate cause of the now deceased's death. It is the doctor who would possibly explain and clarify if such an injury could have been caused by a switch or from a fall on the head. The doctor would assist in shedding light as to whether Exhibit 2(a) or Exhibit 2(b), the switches, could have caused fatal injuries or just one of the switches.

In our view, the State has dismally failed to prove the case of murder against the accused, either with actual or constructive intent. The contradictory evidence led by the State cannot even possibly sustain the conviction of the accused on a permissible verdict of culpable homicide.

Despite the accused's spirited defence, we are satisfied that the accused indeed assaulted the now deceased. It is the nature of that assault, and its consequences, which is unclear. The accused benefits from that doubt or lack of clarity. We are therefore inclined to return a verdict on a permissible verdict of assault.

VERDICT

The accused person was charged with the murder of Nyamitumba Saopa who died at Ealing Farm, Beatrice on 13 October 2008. He was alleged to have assaulted the deceased with a rubber baton stick resulting in hypovolemic shock, laceration on the spleen, and pulmonary haemorrhage from which the deceased died.

He denied the charge.

The State called the evidence of two witnesses and produced two documentary exhibits. The two witnesses were Tonderai Kazembera, who was employed as a general hand in charge of the tobacco nursery and doubled as a blacksmith at the farm in question, and Sergeant Steyn Munovapei, the investigating officer. The two documentary exhibits were the confirmed warned and cautioned statement of the accused, exhibit 1, and the post mortem report, exhibit 2….,.

The accused also testified and called the evidence of two witnesses. These were John Gostino, his 29 year old brother-in-law and Chimbilani Njinga a fellow security guard at the farm.

It was common cause that the assaults which led to the death of the deceased took place at the farm workshop, interchangeably referred to by the witnesses on both sides of the divide as garage. A basic description of the layout of the workshop was given by Chimbilani Njinga. It is fenced off from the rest of the farm. It is accessed through a gate separate from the main farm gate. It consists of sections housing farm equipment and tractors and an office. John Gostino stated that the area outside the workshop was lit by a tower light. His version was contrary to the uncontroverted testimony of Tonderai Kazembera that a fluorescent lamp lit inside the workshop.

The accused was the head of security at Ealing farm. Aleck Mlambo, who was and remains a fugitive from justice from the time the trial commenced, worked under him. The deceased was an ordinary farm worker at the farm in question. Some irrigation pipes were stolen from the farm. Owen Masocha, an employee at the farm was arrested for the theft by farm guards. Before his arrest, he had taken some of the pipes to Tonderai Kazembera to forge pots for him. Tonderai Kazembera declined to do so and Owen Masocha left with the pipes. The deceased was also apprehended on suspicion of the theft of the pipes. He was taken from the fields to the farm workshop for questioning at around 10pm on 12 October 2008. He was detained and beaten at the workshop until he died at around 4am on 13 October 2008.

The evidence of Tonderai Kazembera was that the deceased was interchangeably beaten by both the accused and Aleck Mlambo indiscriminately in the workshop veranda and outside that veranda in the dark. Tonderai Kazembera stated that he was summoned from his house to the farm workshop by the accused at 10pm on 12 October 2008 for questioning. On arrival, he found Isaac Gunya, Owen Masocha, Murambiwa, Chatonga, Ernest Mangoti and Aleck in the company of the deceased and the accused. Owen was handcuffed behind his back to a pole. The deceased was seated in the veranda. He was weak and in tears from which he concluded that he must have been assaulted before his arrival. Tonderai identified the pipes in the workshop as the ones Owen Masocha had earlier brought to him to forge pots. His story must have been similar to the one Owen had given in his absence for he was absolved of any wrongdoing by the accused. He was, however, detained at the workshop until 5am when he left for the tobacco nursery.

At the workshop, the accused and Aleck Mlambo took turns to indiscriminately hit the deceased on his buttocks and back with a rubber baton stick about 50cm long. The accused dragged the deceased from the veranda into a dark spot from where the howls and cries of innocence of the deceased were ignored as the accused be-laboured him in a bid to extract a confession from him. Aleck went after them in a bid to restrain the accused from assaulting the deceased. Later, the accused and Aleck Mlambo carried the deceased, who was now unable to walk on his own, back to the veranda. The witness was released from the workshop by the accused at 5am. He proceeded to the tobacco nursery from where he received the news of the demise of the deceased. He failed to identify the baton stick in court with the assault weapon used on the deceased.

He was cross examined by the accused's counsel.

He maintained his testimony that he found the deceased seated in the veranda when he reached the workshop. He disputed the contents of his statement to the police of 16 December 2008 to the effect that the deceased was brought to the veranda when the witness was already at the workshop. He disputed the contents in his statement that he left the workshop at the time the deceased was crying out in the dark. He, again, disputed the contents of his statement that Gunya told him that the deceased had died at 4am. He maintained that Aleck Mlambo followed the accused outside the workshop in order to restrain him from assaulting the deceased. He was not present when the deceased allegedly attempted to escape from the workshop, and was, for his efforts, assaulted under his feet by Aleck Mlambo and all over his body by Jonathan Gijima. He denied that some of the pipes were recovered from his house. They were recovered from the bush where Owen Masocha had hidden them. He maintained, contrary to the accused's version, that he was present at the workshop in response to the accused's summons.

We found the witness a credible witness. In our view, his denials of some of the contents of the statement to the police of 16 December 2008 did not dent his credibility.

His evidence in chief and his responses under cross examination clearly demonstrated that he went to the workshop at 10pm after the deceased's arrest. According to Chimbilani Njinga, the deceased was taken to the workshop around 7pm by Aleck Mlambo, Jonathan Gijima and Isaac Gunya under a barrage of blows. That Tonderai Kazembera was summoned to the workshop after 10pm accords with the probabilities. In his testimony, the accused stated that he was called from his house by Isaac Gunya and went to the workshop at 10pm. It was while he was present that he alleged that Owen Masocha confessed leaving some pipes with Tonderai Kazembera which he allegedly recovered from Tonderai Kazembera's home.

Any Head of Security worth his salt, in the shoes of the accused, would naturally wish to question Tonderai Kazembera as a possible suspect. Secondly, whether he left during the deceased's cries in the dark or not did not detract from the assaults he saw. He did not attribute any further assaults to the deceased after carrying the deceased back into the workshop from the dark. Lastly, that he was told the deceased had died at 4am when he was already at the nursery did not dent his evidence that he left the deceased lying on the ground at around 5am. In our view, the discrepancies are immaterial and do not affect the probative value of his overall testimony….,.

The accused denied the charge.

He received a report at his residence at 7pm from the Farm Manager, Mr Kadyauswa. He accompanied the Farm Manager to where Owen Masocha was. Owen made a report to them. They took him to the small office in the workshop. He left him with his deputy, Isaac Gunya, and went to his house. At 10pm Gunya came and made a report to him. He went with him to the workshop where he saw the deceased, whom he knew as Wellington Saopa, held at a separate spot in the workshop from Owen Masocha. Wellington Saopa protested his innocence. The accused proceeded to question Owen Masocha. He went to Tonderai Kazembera's house and recovered some pipes. He did not speak to Tonderai Kazembera who must have been at the tobacco seed beds some 300m from the workshop where he commenced duty at 8pm. He took the pipes to the workshop to Owen Masocha.

While conversing with Owen Masocha, he saw Aleck Mlambo and Jonathan Gijima assaulting Wellington Saopa, and, in the process, generating commotion and screams from the deceased. The deceased was crying. Aleck Mlambo was using a baton stick to belabour the deceased who lay on his stomach on the ground while Jonathan Gijima was stamping him with his feet. He stopped the two from assaulting the deceased whom the accused knew was of ill-health. He was a herpes patient who used to share a broad spectrum drug, cotrimoxazole, with the witness.

At 11pm, he left Aleck Mlambo and Jonathan Gijima guarding the deceased whilst he and Isaac Gunya went for patrol where they remained until 5.30am. He observed Aleck Mlambo outside the workshop by the fire. Jonathan Gijima had deserted his post. He proceeded to shake the deceased awake but discovered that he was dead. Isaac Gunya joined him and they carried the deceased to the spot inside the workshop where the police found him covered by a blanket. He made a report to the manager and farm owner. He went in a farm vehicle to Marirangwe police base and made a report against Aleck Mlambo and Jonathan Gijima - the latter in absentia. He handed the baton stick used by Aleck Mlambo to assault the deceased to Constable Sakonda. Instead, he and Aleck were locked up and assaulted by Constable Sakonda for killing the deceased. Constable Sakonda took them back to the farm in handcuffs. He left the two in the vehicle and went to the scene and later ferried the accused and Aleck Mlambo to Beatrice police station where the two were assaulted by plainclothes policemen to admit murdering the deceased. At the same time, the uniformed policemen questioned him while Sergeant Steyn Munovapei typed out his responses. The two suspects were held in police cells. The following morning they were asked to sign statements before they were taken to court. He did not read the statement. He identified exhibit 1 as the statement he signed. He, however, denied the entire contents of the confirmed warned and cautioned statement as having emanated from him.

He was taken to court.

The police who hit him sat in the gallery in plain clothes. In fear, he simply admitted the contents to the confirming magistrate. After the confirmation, he raised his hand to engage the magistrate who told him to reserve his concerns for his lawyer who was on her way to see him. Instead of being taken to prison he was detained at Beatrice police cells awaiting collection by prisons.

It was not clear to us why counsel for the accused objected to the production of the baton stick used to assault the deceased when the accused conceded, in cross examination, that he had handed it to Constable Sakonda, who, in turn, had taken it to the Investigating Officer at Beatrice police station. He disputed that Tonderai Kazembera was ever at the workshop at all material times that the deceased was assaulted. He could not dispute that the deceased died from the multiple injuries observed and noted by the forensic pathologist in exhibit 2. He denied assaulting the deceased averring it was contrary to his duties as a security officer. While he stated that he was under a barrage of blows from plain clothes policemen when the investigating officer was recording his warned and cautioned statement, these allegations were never canvassed with the investigating officer by his counsel during cross examination. He averred that he was taken from Beatrice police cells the following day to Chitungwiza police station contrary to his earlier version that he was detained at Beatrice for three days after remand into prison custody. He agreed with the confirmed warned and cautioned statement of Aleck Mlambo that was read to him in cross-examination. It was to the effect that Aleck Mlambo only hit the deceased four times under his feet after the deceased had received several blows on his buttocks from the accused and that he was awakened by the accused at 4am on 13 October 2008 and advised of the deceased's death.

We found the accused an incredible witness who went to great lengths to resile from his confirmed warned and cautioned statement.

He falsely claimed protracted police brutality from Marirangwe police base to Beatrice police station. Yet he did not complain of such assaults to the confirming magistrate or even to his own counsel the following day. One would have expected his counsel to have made arrangements for medical examination of the accused at the time to crystallize any injuries he may have sustained from such assaults. In our view, the accused is given to hyperbole and was completely untruthful on the manner in which his confirmed warned and cautioned statement was recorded.

It was strange that he would admit to the accuracy of the contents of Aleck Mlambo's warned and cautioned statement put to him by State counsel in which Aleck Mlambo alleged that he had assaulted the deceased under his feet with a baton stick after he had been assaulted several times by the accused on his buttocks.

We did not believe John Gostino's testimony.

It differed with that of the accused in one material respect. He averred that the accused was called to the workshop by Aleck Mlambo. The accused stated that at 7pm he was approached at his house by the Farm Manager who took him to Owen Masocha. The accused further stated that he was called to the workshop at 10pm by Isaac Gunya.

While it was clear that Aleck Mlambo and Jonathan Gijima also assaulted the deceased, as John Gostino averred, in our view, he exonerated the accused on grounds of his marital relationship with him. His version that he was able to see the accused emerge from the workshop office was contradicted by the last defence witness, Chimbilani Njinga, who testified that John Gostino's view was blocked and he could not observe the workshop office from where he stood. We did not find John Gostino a truthful witness.

The last defence witness, Chimbilani Njinga, was, on 12 October 2008, manning the main farm entrance, some 150m away from the workshop.

Three security guards entered through the entrance soon after 7pm with the deceased. They were slapping him to extract a confession from him about the whereabouts of the irrigation pipes. He followed them to the workshop after an hour and some minutes. At the workshop he saw the accused was in an office with Owen Masocha questioning him. Aleck Mlambo was hitting the suspect with a baton stick and the suspect was rolling on the ground. Jonathan Gijima used his hands to assault the suspect. A visitor, John, was standing close to the witness. The accused emerged from the office after the witness had been at the workshop for 30 minutes, attracted by the cries emanating from the deceased, and asked why the security guards were assaulting him when they knew he was of ill-health. The suspect was questioned for a long time before he was left in the custody of Aleck Mlambo and Jonathan Gijima. Isaac Gunya and the accused left for farm patrols and the witness returned to his station.

He basically confirmed the accused's version of events.

We, however, did not believe that he witnessed the events that took place at the workshop. His version places him at the workshop before 9pm. He saw the accused questioning Owen Masocha. The accused's version was that he questioned Owen around 7pm. Thereafter, he went home and only returned to the workshop around 10pm after Isaac Gunya called him. Chimbilani Njinga's testimony contradicted that of the accused in regards to when the deceased was collected from the fields to the farm workshop. It could be that he witnessed the arrival of Owen Masocha at 7pm and whatever he described related to Masocha and the accused before Tonderai Kazembera appeared on the scene. It seems to us he was called by the accused to falsely exonerate him from the assault and to deny the presence of Tonderai Kazembera at the workshop at the material time.

The test to be applied in determining whether the accused's version is substantially true was set out succinctly by GREENBERG JA in R v Difford 1937 AD 370. At 373, the learned Judge of Appeal stated that:

"…., no onus rests on the accused to convince the court of the truth of any explanation he gives. If he gives an explanation, even if that explanation be improbable, the court is not entitled to convict unless it is satisfied, not only that the explanation is improbable, but that beyond any reasonable doubt it is false. If there is any reasonable possibility of his explanation being true, then he is entitled to his acquittal…,."

See also S v Dube 1997 (1) ZLR 229 (H)…, and S v Manyika HH215-02…,.

We find that the inconsistencies in the accused's version, and as between the accused and his witnesses, call for adverse conclusion that his defence cannot reasonably possibly be true. We therefore accept the evidence adduced by the State witnesses as against that of the accused and his witnesses as the truth of what transpired on the fateful night and subsequent days.

We are satisfied that the State proved, beyond a reasonable doubt, that the accused participated in the indiscriminate assault of the deceased all over his body. He was the head of security at the farm. He did not stop his juniors from assaulting the deceased. Rather, he was at the forefront of inflicting the injuries observed by the Investigating Officer and confirmed and recorded in the post mortem report by the forensic pathologist in exhibit 2. The conclusions of the pathologist on the cause of death are consistent with the proven facts of the injuries found on the deceased's body. See Levy v Tune-O-Mizer Centre (Pvt) Ltd 1993 (2) ZLR 378 (S)…, where KORSAH JA stated that -

“However, before receiving such expert opinion in evidence, the facts which he relies to form that opinion must themselves be proved in the trial by admissible evidence.”

His participation is not only based on his confession that he made freely and voluntarily but also on the credible evidence of a percipient witness, Tonderai Kazembera. In addition, it is a proven fact that the deceased was assaulted, even by the accused's own evidence, by, among other weapons, a baton stick, which he handed over to Constable Sakonda. The contents of the post-mortem report is evidence aliunde that the deceased died from the vicious assault on his person. Unlike in S v Shonhiwa 1987 (1) ZLR 215 (SC)…, where the cornerstone of the State case was the confirmed warned and cautioned statement, the evidence of Tonderai Kazembera and the postmortem report confirm the extent of the accused's participation in the assault that caused death.

In S v Taputsa 1966 RLR 662 (A)…, LEWIS JA said that:

“The effect of s 301(2) seems to be that, where there is evidence aliunde proving that the offence has actually been committed, the court may satisfy itself of the genuineness of the confession by the accused that he committed it or took part in it from the nature of the confession itself; where, however, there is no evidence aliunde proving that the offence itself has been committed, the court must, in addition, go outside the confession and be satisfied that it is confirmed by other evidence. In the leading case of R v Blythe 1940 AD 354, TINDALL JA, delivering the judgment of the Full Bench of the Appellate Division, laid down that the confirming evidence required by the statute must be such as to corroborate the confession 'in a material respect', although it need not directly implicate the accused in the offence, and that the statutory requirement, in this regard, was similar to that in respect of an accomplice, as explained by SOLOMON ACJ in R v Lakatula 1919 AD 362. In Lakatula's case, it was said that there should be corroboration in some material respect 'in order that the jury may be satisfied that the accomplice is a reliable witness upon whose evidence they may safely act.'

(See also R v Troskie 1920 AD 466 at 468, per INNES CJ).

Applying this test to confessions, it seems that the confirming evidence need not amount to evidence directly confirming that part of the confession in which the accused actually implicates himself in the commission of the offence; it need only be evidence which is sufficiently corroborative of a material part or parts of the confession to satisfy the court that it can safely rely on the confession as a whole in convicting the accused."

In our view, both the intrinsic test arising from the contents and nature of the confession itself and the extrinsic test emanating from external evidence were satisfied. The genuineness of the confession is intrinsically demonstrated by the attempt to minimize the area the accused directed his blows and his purported acts of kindness and compassion and extrinsically by the other evidence already referred to of Tonderai Kazembera and the post mortem report.

Murder is defined, in section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23], as follows:

“47 Murder

(1) Any person who causes the death of another person;

(a) Intending to kill the other person; or

(b) Realising that there is a real risk or possibility that his or her conduct may cause death, and continues to engage in that conduct despite the risk or possibility; shall be guilty of murder.”

Paragraph (a) above covers actual intention while paragraph (b) covers legal intention.

The correct interpretation of this section is found in S v Mugwanda 2002 (1) ZLR 574 (S)…, where actual intention and legal intention to kill are explained. CHIDYAUSIKU CJ stated that:

“On the basis of the above authorities, it follows that for a trial court to return a verdict of murder with actual intent it must be satisfied beyond reasonable doubt that:

(a) Either the accused desired to bring about the death of his victim and succeeding in completing his purpose; or

(b) While pursuing another objective foresees the death of his victim as a substantial certain result of that activity and proceeds regardless.

On the other hand, a verdict of murder with constructive intent requires the foreseeability to be possible (as opposed to being substantially certain; making this a question of degree more than anything else).”

We agree with State counsel that the accused lacked actual intent to kill in both its ramifications. We are satisfied that he must have realized the existence of a real risk that his conduct could cause death but nonetheless persisted in that conduct. We are satisfied of this from the nature of weapon used. It was a 50cm long rubber baton stick. He used it to indiscriminately inflict injury upon the well-nourished deceased, with others, until the deceased could not walk. The result of his handiwork left fatal injuries on the deceased in the form of fractured ribs, lacerated spleen, pulmonary haemorrhage which resulted in hypovolemic shock that triggered death. The assault was persistent, protracted and vicious. He must have foreseen that death could result but was reckless as to whether or not it did as he mercilessly assaulted the deceased.

Accordingly, we return a verdict of guilty of murder with constructive intent in terms of section 47(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The accused person in this matter faces a charge of murder, with being alleged that on or about 16 March 2002, at Nelson Nare Mudau's homestead, the accused person, acting in common purpose with others, assaulted Nelson Mudau who subsequently died from the injuries sustained in that assault.

The accused person pleaded not guilty to the charge of murder, but, instead, offered a limited plea to the charge of culpable homicide. The State counsel accepted that limited plea. The parties drew and tendered a statement of agreed facts and it read as follows:

1. The deceased, Nelson Nare Mudau, was aged 68 years at the time of his death.

2. The accused person was 46 years at the time of the commission of the offence.

3. On the 16^th day of March 2002, after the results of the general election had been announced, the accused person attended election victory celebrations with a group of ZANU PF members and perpetrators who were found guilty of culpable homicide and who have since served their sentences.

4. As these ZANU-PF members were walking from the celebrations in groups, another group which was ahead, made largely of ZANU PF youths, and the perpetrators, an altercation ensued as they passed the homestead of the now deceased person.

5. The accused's group, which was following behind, became aware of the commotion. Realizing that the perpetrators were in the homestead of the now deceased person, the accused person also ran to the now deceased's homestead.

6. The accused person entered the homestead of the now deceased person and because it was dark and there were a lot of people and the accused is well known in the area he was identified as one of the perpetrators acting in common purpose with the perpetrators who were assaulting the deceased and the deceased's family members with fists and sticks resulting in the deceased suffering injuries.

7. The accused understands the elements of common purpose and realizes that he associated himself with the acts of the principal perpetrators and did not do enough to dis-associate himself with their said culpable conduct which led to the deceased's demise.

8. The following morning, the deceased was taken to Beitbridge Rural Hospital and was later transferred to Gwanda Provincial Hospital.

9. On the 22^nd day of March 2002, the deceased passed away at Gwanda Provincial Hospital as a result of the injuries sustained during the assault.

10. On the 27^th day of March 2002, a post mortem was conducted on the remains of the now deceased and the cause of death was found to be:

(a) Septic shock;

(b) Severe peritonitis; and

(c) Assault.

11. The State and Defence counsel agree that the accused and the perpetrators' negligence and actions caused the death of the deceased.

The post-mortem report was also tendered and gives the cause of death as;

(a) Septic shock;

(b) Severe peritonitis; and

(c) Assault.

The facts before us do not sustain the charge of murder, but, instead, point towards a verdict of culpable homicide. The accused person is thus found not guilty on the charge of murder but is convicted on the lesser offence of culpable homicide.

Both accused were initially charged with the crime of murder as defined in section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The State and the defence found each other and the matter proceeded by way of agreed facts. Consequently, both were convicted of culpable homicide as defined in section 49 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

In brief, the agreed facts are as follows:-

The 53-year-old Accused 1 and 27 years old Accused 2 resided in the same Mandivenga Village, Chief Mukanganwi, Bikita, Masvingo with the 50-year-old now deceased. The now deceased was Accused's 1 cousin and an uncle to Accused 2.

On 19^th July 2013 the accused persons and the now deceased were drinking traditional beer at Chenjerai Tichaenzana's homestead at about 0700 hours. At about 1600 hours the now deceased, who apparently was believed to be practising witchcraft, told Accused 2 that Accused 2 should not marry as the now deceased wanted Accused 2 to take over the now deceased's tools of trade relating to witchcraft and to be in control of the whole family. Accused 2 was un-impressed and advised Accused 1. Both accused persons then asked the now deceased to go with them to their home to discuss what the now deceased had said. The now deceased refused but insisted he would not reverse the pact he had made with the underworld in relation to Accused 2. This infuriated the accused persons who proceeded to assault the now deceased with fists and a switch. The now deceased fell down but the assault continued until the owner of the homestead ordered the accused persons and the now deceased to leave his homestead. The three of them left and the now deceased was later found unconscious by the road side at about 1808 hours. The now deceased was rushed to hospital as his condition worsened and he passed on the next day on 20 July 2013.

As per the post mortem report by Doctor Zimbwa, compiled on 23 July 2017, the now deceased had the following injuries;

(i) Multiple bruises and whiplash marks on lower limbs and trunk.

(ii) Multiple haematomas and injuries on the head and face.

(iii) Dislocation of the right sternoclavicular join.

The cause of the now deceased's death was severe head injury….,.

The fact of the matter is that this was a gang assault involving two physical fit people. Severe force was used as the now deceased lost consciousness and died the following day despite being taken to hospital. The assault itself was indiscriminate judging by the injuries reflected in the post-mortem report. It was also prolonged. The now deceased sustained multiple bruises on the limbs, trunk, the head and face. The accused persons also targeted the head which is a vulnerable part of the human anatomy. As a result, death resulted from the severe head injury inflicted.

The two accused were blood brothers. Together with their third brother, Richard Makuchete [“Richard”], they were arrested and charged with the murder of their cousin, Zvinowanda Zvinowanda [“the deceased”].

Richard has since been convicted and sentenced under judgment HMA07-16.

The State explained that there had been a separation of trials because the two accused herein had been unavailable by the time the case was ready for trial, and that, in the interests of justice, it had been decided to have Richard tried on his own.

The allegations were that on 10 May 2014, in rural Masvingo, under Chief Chikwanda, and following a beer drink at a certain homestead, the two accused, and Richard Makuchete, or one or other of them, unlawfully caused the death of the deceased by striking him with knobkerries and a slasher all over the body, intending to kill him, or, despite realising the real risk or possibility that their conduct might cause death, nonetheless continued with it.

Both accused pleaded not guilty.

The State called three witnesses, namely, Edward Zvinowanda [“Edward”], the deceased's younger brother ; Vimbai Sithole [“Vimbai”], Edward's wife; and Munyori Zvinowanda [“Munyori”], a cousin to both the Zvinowandas and the Makuchetes. These people; i.e. the accused; the deceased; Edward, and Munyori, were all closely related, being first cousins in the sense that their fathers had been brothers.

The synopses of the evidence of three further witnesses for the State were admitted without objection. They were Rashweth Mutaki, the police investigating officer [“the IO”]; Last Ziyambi [“Last”], another police officer, and Doctor T Nyasha [“Dr Nyasha”], the medical practitioner who conducted a post mortem examination on the remains of the deceased and compiled a report.

Edward Zvinowanda's evidence, in summary, was this.

On the day in question, he and his brother, the deceased, were drinking traditional beer at a certain homestead. The two accused and their brother, Richard Makuchete, were also drinking there, but not together with him and the deceased. At some stage, the first accused, Bernard Makuchete [“Bernard”], aged 25 years, the oldest of the three brothers [in HMA07-16 it was incorrectly stated that he was 21 years old and that he was the youngest], stood up from their drinking place, approached Edward and provoked a fight. Bernard accused Edward that he had once assaulted him on some previous occasion. In court, Edward admitted that he had once fought with Bernard but said that the incident had happened a very long time ago when they were youngsters and still growing up.

Edward said Bernard slapped him twice. He retaliated. The two started fighting. Richard and the second accused herein, Rabson Makuchete [“Rabson”], the third brother, joined the fight on Bernard's side. The deceased, who at 44 years old, was the oldest of the lot, intervened and quelled the fight. Bernard turned on him. He accused the deceased of marital infidelity with his wife leading to the collapse of his first marriage.

The brawl eventually died but the accused and Richard continued to shout at Edward and the deceased. The two of them decided to leave. The time was around 15:00 hours. The accused and Richard followed later. At the deceased's homestead, the three milled around the edge of the fields shouting. The deceased invited them inside the homestead in order to discuss the issue amicably.

The three brothers refused to enter the deceased's home. They later left for their own homes. The deceased, Edward, and their wives had supper together with Munyori Zvinowanda, who had called on them. After supper, the deceased and Edward walked Munyori to his own home. The time was now around 19:00 hours. There was plenty of moonlight. The three used a footpath that passed through the accused persons' homestead. On their way back, the three brothers confronted the deceased and Edward. The three were all armed with wooden knobkerries. In addition, Richard was armed with a metal slasher.

With no prior ado, Richard struck Edward on the top of his head with the knobkerrie. Edward fell down. Bernard and Rabson joined in and started beating Edward with knobkerries as he lay on the ground. Bernard soon turned on the deceased whom he struck with a knobkerrie. Richard and Rabson both joined the assault on the deceased. Richard was using a slasher and Rabson a knobkerrie. The three of them randomly assaulted the deceased with their weapons all over his body. He had fallen down. He was wailing asking why they were killing him. The three continued to assault the deceased until he went limp. Edward said all the while he lay bleeding very close by and that he could see everything that was taking place. There was a lot of shouting and lots of noise.

At some stage Vimbai Sithole and Tecla Matema [“Tecla”], the deceased's wife, approached the scene. Bernard and Richard chased them away. Richard came back and ordered Edward to carry the deceased home. The deceased was lying face down, lifeless. Edward was himself in no state to lift the deceased on account of the assault on his own person. He staggered to the deceased's homestead and found both Tecla and Vimbai waiting. He told them that the deceased had died. Tecla wailed. Eventually Edward was ferried to hospital where he was admitted for two days. A report was made to the police. They came immediately but all the accused persons had fled; however, they were all apprehended four days later at the homestead of one of their uncles, Winston Zvinowanda [“Winston”] which was in another chiefdom.

Edward said all the three accused persons were subsequently tried in the Magistrate's Court for the attempted murder of himself. He said he gave similar evidence but he did not know the exact outcome of that case, save to say that Richard had been sent back to custody and his two brothers released.

The next State witness was Vimbai Sithole. The material portions of her testimony were that she witnessed the assault on both Edward and the deceased. Together with Tecla Matema they had crawled to the edge of the maize field near the accused's homestead. They had been attracted by the noise of the struggle. Richard chased them away.

The next State witness was Munyori Zvinowanda. He had been at the beer drink on the day of the fight. He witnessed the first brawl between Edward and Bernard at the traditional beer drink earlier in the day. Munyori's evidence on this aspect was contradictory. According to his evidence-in-chief, it was Bernard who provoked the brawl. He said Bernard shouted at Edward that he [Edward] had once beaten him up. Bernard had stood up from the place where he had been seated and had approached Edward. He slapped Edward twice. It was then that Edward had retaliated and the two had fought. The deceased had quelled the fight. However, under cross-examination, Munyori maintained it was Edward who had provoked the fight; that it was Edward that had slapped Bernard first; and that Edward had lied if he told the court that it was Bernard who had hit him first. Munyori was emphatic that it was Edward's tomfoolery on the day in question that had ultimately led to the death of the deceased.

Munyori did not witness the fatal assault on the deceased later on that night. He confirmed his having had supper at the deceased's homestead and the deceased and Edward having walked him home. He said when the three of them had passed through the accused's homesteads none of them had appeared.

The gist of Rashweth Mutaki's summary of evidence that was admitted without objection was that he had arrested all the accused persons from their hiding place in a village under another chief. He had brought them back to the scene of the crime. None of them had any injuries. After properly warning and cautioning them he had taken them for indications and had recorded their statements which they had made freely and voluntarily. They had admitted that the murder weapons belonged to them.

Last Ziyambi's summary largely corroborated that of Rashweth Mutaki. He accompanied Rashweth on the arrest mission. He witnessed the recording of the accused's warned and cautioned statements.

The last summary was that of Dr Nyasha. From his post-mortem examination of the body of the deceased, he observed deep cuts on the deceased's head and forehead. He observed bruises on the chest. From such observations he concluded that the cause of death had been head injury.

That was the State's case.

None of the murder weapons was produced. Counsel for the State said all three accused had once been tried in the Regional Magistrate's Court for attempted murder in respect of the assault on Edward. They had been the same weapons produced in that trial. Apparently, after the conclusion of the trial, all those weapons had been destroyed on the orders of the court.

The accused's warned and cautioned statements were also not produced. None of the parties said anything about them.

Both accused persons gave evidence. It was very similar - almost identical in some respects. The material aspects of their evidence were these. They confirmed the brawl at the traditional beer drinking place. They said Edward had provoked it. Bernard said Edward accused him that he had once beaten him up sometime in 2004. It was Edward who had struck Bernard first. Bernard had retaliated. The two had fought. Bernard had overpowered Edward. The deceased had got up and restrained them. Edward had produced a knife wanting to stab Bernard but he had been restrained by other people. The owner of the homestead then asked that everyone answering to the name Makuchete should leave the place because they had fought at a traditional beer drink. Edward and the deceased had been the first to leave. The three brothers had followed later.

The accused admitted the fight with knobkerries at the edge of their homesteads. But their version was at variance with that of the State witnesses. They maintained that Edward and the deceased had provoked the fight. Bernard said he had already retired to bed with his wife when Rabson had come knocking at the door. He was shouting that Edward and the deceased were fighting Richard at his home. When he went to find out Edward stabbed him with a knife on the top of his head. He bled profusely.

Both accused denied that they had fought with either Edward or the deceased, let alone joined Richard in assaulting the deceased. They maintained that only Richard had fought with the deceased. They maintained that both Edward and the deceased had been armed with knobkerries which they used to fight Richard.

Bernard said that after Edward had stabbed him with a knife, he fell down. Edward left him to join the deceased in fighting Richard. He [Bernard] woke up and went home. He washed off the blood from his head. Later, he went to make a report to the village constable, one Cephas Tebwe [Cephas”], about Edward having stabbed him with a knife. At that time, he was not aware of the deceased's death. From Cephas' place Bernard said he came back home. But a number of people were now gathered. That is when he learnt that the deceased had died. One of their cousins, Ishmael Zvinowanda, was threatening revenge. He was shouting that nobody was going to sleep at that homestead that night. Fearing for their lives all the three of them had run away and sought refuge at Winston Zvinowanda's house.

The accused said they arrived at Winston's place very late in the night. They informed him of the fracas and sought his mediation and counsel as the surviving patriarch of the entire extended household. Winston immediately left for the scene. He did not come back until about two or three days later when they were arrested by the police.

The accused said they had once been charged for the attempted murder of Edward but had both been acquitted.

Rabson Makuchete called two witnesses: Cephas Tebwe and Winston Zvinowanda.

Cephas confirmed that that three brothers had knocked on him late in the night of the fateful day. They reported that the deceased and Edward had come to their place and that there had been a fight. They said that Edward had stabbed Bernard with a knife on the head. Cephas said he had seen Bernard bleeding. Quizzed on this by the State, Cephas conceded he had seen no wound on Bernard but merely blood on his person.

Cephas also said that he advised the three that he would call on them only on the following day. He said on the following day he had gone to the accused persons' residence with the intention of arresting both Edward and the deceased. However, he aborted the mission when he learnt that the deceased had died the previous night. He also observed that the regular police details were already in attendance. The accused had fled.

Winston's evidence confirmed that the three accused had indeed taken refuge at his homestead after the fracas. However, there was a material discrepancy in the narrative. The accused said when they called at Winston's house it was them that informed him of what had taken place. It was only after their report to him that he had left for the accused persons' homesteads. However, Winston said he never saw them on the day. He heard of the news of the fracas from his sister-in-law, Esther, the accused persons' own mother. She had travelled all the way from her village to inform him of the incident as the patriarch. Together with Esther, Winston had departed that very night. He stayed at the accused persons' homesteads throughout the duration of the mourning period. He said it was about one and half weeks. It was on the second or third day after the incident that the accused, Bernard in particular, had contacted him on the mobile telephone to inform him that they had taken refuge at his homestead. The accused wanted him to resolve the matter. Winston said he immediately informed the police about the telephone call. The police then went and arrested the accused.

That was the defence case.

In his closing submissions, counsel for Bernard, the first accused, seeks an outright acquittal from the charge of murder or any other offence. He argues that Bernard had not at all been involved in the assault on the deceased and that none of the State witnesses could be believed.

Counsel for Rabson, the second accused, tacitly admits that Rabson was armed with a knobkerrie; that a knobkerrie could not have inflicted such fatal injuries; that the State had failed to prove the element of common purpose; but, nonetheless that Rabson's actions could be regarded as having been negligent, and that, therefore, Rabson might be found guilty of culpable homicide in respect of the death of the deceased.

The accused persons' version of events was manifestly contrived. It did not add up. It is unworthy of belief. Each of them was at pains to downplay their own roles in the whole violent incident. They denied any assault on either Edward or the deceased. In respect of the deceased, they alleged it was Richard who single-handedly fought him with knobkerries and a slasher. Ironically, at his own trial, Richard distanced himself from any altercation with the deceased. He blamed it all on Bernard and Rabson - the two herein.

Some aspects of the accused persons' version of events that we have rejected include the following:

(i) That at the beer drink earlier in the day, it was Edward, not Bernard, who had provoked the fight. Munyori, who seemed more favourably disposed towards the accused, said, before his summersault, that it was Bernard who had provoked the fight. To us, that it was Bernard, and not Edward, who had started the fight, was more believable. Bernard had a motive. At least he deemed himself to have an unresolved grudge against Edward, dating back to their childhood tiffs and brawls. Furthermore, although in his evidence he claimed to have been unbothered by the issue of the alleged affair between the deceased and his former wife, whom he called a loose woman, it seemed the wound had never quite healed and had remained a festering sore point.

(ii) It is common cause that the deceased died from the injuries sustained on the night in question. Richard's role in the brawl is beyond question. Among other things he has since been convicted. Both accused confirm he had a slasher and that he used it to assault the deceased. Both confirm knobkerries had also been used, only that they said it was Richard and the deceased using them against each other. But there was no significant challenge to the evidence of Edward and Vimbai on this point. They were direct eye-witnesses. They remained firm in their evidence that the two accused persons fully and actively participated in the assault of the deceased. Furthermore, there is the admitted evidence of Rashweth. He said the accused had freely and voluntarily admitted the murder weapons as belonging to them.

(iii) That Edward was armed with a knife which he used to stab Bernard with was manifestly a concoction. It is not believed. If Bernard had been stabbed and had been injured to the degree imagined, then the wound would definitely have required proper medical attention. But he sought none. In contrast, Edward, whom they assaulted and left for dead, had to be admitted in hospital for two days. The deceased died. Cephas' evidence takes the accused's case no further. He did not see any wound on Bernard, only blood. But it was evidently his victims' blood. Rashweth's summary of evidence said none of them had any injuries.

(iv) The accused ran away after the offence. If they had been the victims of the assault they should have reported to the regular police. Cephas was just an old man and a villager – albeit, a member of the village constabulary.

(v) The accused openly lied that when they sought refuge at Winston's house they found him there and informed him of the incident. Winston, their own witness, denied this. He said he heard of the incident for the first time from Esther and that until they were arrested he had not seen the accused.

That Richard might have delivered the fatal blow, as urged upon us by Rabson's counsel, is completely immaterial given the circumstances of this case. All three of them had made common purpose with one another since the fight at the traditional beer drinking place earlier in the day. To Bernard's fight with Edward, Richard and Rabson had joined in. They were in one another's company from the beginning to the end. They were in one another's company when they called on the deceased's homestead later in the evening. They were all armed with knobkerries when they assaulted the deceased. Richard just did have the slasher as an additional weapon. All of them were armed for the purpose of assaulting Edward and the deceased. The assault was severe, sustained and brutal. They only abandoned it after their mission had been accomplished. Only when the deceased had become motionless did they leave him.

The doctrine of common purpose says that where two or more people agree to commit a crime, or actively associate in a joint unlawful enterprise, each will be responsible for specific criminal conduct committed by one or other of them which falls within their common design. Liability arises from their 'common purpose' to commit the crime: see JONATHAN BURCHELL, Principles of Criminal Law, 5^th ed….,.

In murder cases, the act of one in causing the death of the deceased is imputed, as a matter of law, to the other or others. Prior planning is not significant. A common purpose needs not be derived from an antecedent agreement. It can arise on the spur of the moment and can be inferred from the facts surrounding the active association with the furtherance of the common design: see S v Safatsa & Ors 1988 [1] SA 868 [A].

The requirements for common purpose are:

(i) Presence at the scene of the crime.

(ii) Knowledge of the criminal act.

(iii) Intention to make common cause with the actual perpetrator of the crime.

(iv) Manifestation of a sharing of a common purpose with the actual perpetrator of the crime by the performance of some own act of association with the conduct of the perpetrator.

(v) Mens rea, [either in the form of dolus directus or dolus eventualis] in respect of the perpetration of the crime.

See S v Mgedezi & Ors 1989 [1] SA 687 [A].

In casu, just about every aspect of the accused persons' conduct on that night classically fits into all the facets of the doctrine of common purpose.

The court is satisfied that the State has proved its case beyond any reasonable doubt. We find that the accused actually did intend to kill the deceased. They desired his death. They willed the result that ensued. Until he stopped moving, the accused continued to pummel him. Therefore, both accused are hereby found guilty of the murder of the deceased, Zvinowanda Zvinowanda, with actual intent.

Accused 2, Richard Makuchete [“the accused], aged 25 years at the time, was one of three brothers arrested for the murder of their cousin, Zvinowanda Zvinowanda [“the deceased”]. The murder happened in rural Masvingo under Chief Chikwanda. By the time of trial only the accused was available.

The allegations were that on 10 May 2014, following a beer drink, the accused and his two brothers, or one or other of them, unlawfully caused the death of Zvinowanda Zvinowanda (the deceased) by striking him with knobkerries and a slasher all over the body, intending to kill him, or, despite realising the real risk or possibility that their conduct might cause death, continued with it.

The accused pleaded not guilty.

The State called six witnesses. Four gave viva voce evidence. The other two, who included the doctor who conducted the post mortem examination on the deceased, had their evidence admitted by consent.

The first, and, obviously, the star witness for the State was Edward Zvinowanda [“Edward”]. He was the deceased's brother. On the day in question, he and the deceased were drinking traditional beer at a certain homestead. The accused and his two brothers were also drinking there, but not together with Edward and the deceased. At some stage, Bernard Makuchete [“Bernard”], aged 21 years, the youngest of the three brothers, stood up from their drinking place, approached Edward and the deceased and provoked a fight. He accused Edward of having assaulted him previously. In court, Edward said that that incident had happened way back in 1989 when both he and Bernard were still youngsters.

We note, in passing, that from 1989 to 2014 it was twenty-five years. So, if Bernard was twenty-one years old at the time of the offence, then, in 1989, he had not yet been born. However, Edward was not categorical that the incident had happened in 1989. It was purely an estimate that he gave when pressed by counsel.

Back to the fight.

Bernard slapped Edward twice. The two started fighting. The accused and the third brother, Rabson Makuchete [“Rabson”], aged 23, joined on Bernard's side. The deceased, who at 44 years old, was the oldest of the lot, intervened and quelled the fight. Bernard turned on him. He accused the deceased of having destroyed his first marriage by snatching his first wife. He also accused the deceased as the author of the continuous misfortunes in his life.

In court, it transpired from the testimonies of Edward, the deceased's wife, Tecla Matema [“Tecla”], and even the accused himself, that the incident relating to the deceased allegedly having had an affair with Bernard's wife had been almost a decade old. Edward said it was 2007. Again, we note that then Bernard would have been only about fourteen years old. But, again, Edward was just estimating.

The brawl eventually died; but the accused and his brothers continued to scold Edward and the deceased. The accused, in particular, said, omniously, that it was not the end of the matter. Edward and the deceased decided to leave. The time was around 15:00 hours. The accused and his brothers followed them. At the deceased's homestead the three milled around the edge of the fields shouting. The deceased invited them inside the house. He wanted them to discuss and resolve the issue amicably, seeing that they were all members of the same family. These two sets of brothers were first cousins. Their respective fathers had themselves been brothers.

The three accused persons refused to enter the deceased's house. Later on they left for their own homes. The deceased, Edward and their wives had supper together with another cousin, Munyori Zvinowanda [“Munyori”], who had called on them. Munyori was the other State witness whose evidence was admitted by consent.

After supper, the deceased and Edward walked Munyori to his own home. The time was now around 19:00 hours. There was plenty of moonlight. The three used a footpath that passed through the accused's homestead. On their way back, the accused and his brothers confronted the deceased and Edward. The three were all armed with wooden knobkerries. Each of those knobkerries comprised a 10 to 12cm long head and a shaft about 90cm to a metre long. In addition, the accused was armed with a metre long metal slasher with a rubberised handle. The slasher was angled at the tip.

With no prior ado, the accused struck Edward on the top of his head with the knobkerrie with so much force that it immediately snapped. The accused turned to the slasher. He struck Edward between the eyes. Edward fell down. The accused turned to the deceased, He struck him twice with the slasher. His two brothers joined in. Together, they randomly struck the deceased with their knobkerries and the slasher all over the body. The deceased fell down. They continued to assault him until he went limp. They had been at him for about 10 minutes. Meanwhile, Edward lay bleeding some six to eight metres away. But he said he could observe everything.

Tecla Matema and Vimbai Sithole [“Vimbai”], Edward's wife, had crawled out of their hiding place in the maize field and had silently encroached closer to the scene. Bernard noticed them. He chased after them but failed to catch up with them. He came back and ordered Edward to carry the deceased home. The deceased was lying face down, lifeless. Edward was himself in no state to lift the deceased on account of the assault on his own person. He staggered to the deceased's homestead and found both Tecla and Vimbai waiting. Upon telling them that the deceased had died, Tecla started wailing. The noise attracted other villagers. They congregated at the deceased's homestead. Eventually, Edward was ferried to hospital where he was admitted for two days. A report was made to the police. They came immediately but all the accused persons had fled. However, they were all apprehended four days later at their uncle's homestead in another chiefdom.

Edward said all the three accused persons were subsequently tried in the Magistrate's Court for the attempted murder of himself. He said he gave similar evidence but he did not know the exact outcome of that case, save to say that the accused was sent back to custody and his two brothers released.

The next State witness was Tecla Matema. The material portions of her testimony were that she witnessed the assault of both Edward and the deceased from start to finish. Together with Vimbai they had crawled to the edge of the maize field near the accused's homestead. They had been attracted by the noise of the struggle. Amid a mixture of thuds, shouts, and swears, the accused's voice was the sharpest and most dominant. The accused was making constant reference to the deceased having taken Bernard's first wife. He was saying the deceased was going to pay for it that day.

Tecla said when she married the deceased, the issue of his having taken Bernard's first wife had been the talk of the village. She had no first-hand knowledge of it. She had heard that the wife in question had been questioned about it by a village court but that she had completely denied any affair with the deceased.

Tecla's testimony corroborated that of Edward virtually in all material respects. She stressed that at no stage did the deceased try to retaliate or defend himself - a detail that Edward had also mentioned. From their evidence, it seems when the first blow caught him, the deceased's one hand was still inside his trousers' pocket. He must have died like that because when the body was examined the following morning, the hand was still inside the pocket.

The only slight difference between Edward's testimony and that of Tecla was on who, of the three accused persons, after they were done assaulting the deceased, had chased after Tecla and Vimbai. Edward said it was Bernard who had chased them both but Tecla said it was the accused that chased after her, with Bernard chasing after Vimbai. However, this difference is of no significance.

As said before, the summary of Munyori Zvinowanda's evidence was admitted without objection. He had been at the beer drink on the day of the fight. He witnessed the first brawl from start to finish. His evidence on it corroborated that of Edward in all material respects. It was also the same with his evidence on the issue of their having had supper at the deceased's home and the walk to his own home. The extra detail in Munyori's testimony that was not, and naturally, could not have been in those by Edward and Tecla, was that after Edward and the deceased had accompanied him to his own homestead, he had received a phone call from yet another of their cousins, Ishmael Zvinowanda [“Ishmael”], at around 23:00 hours. Ishmael informed him of the attack on Edward and the deceased. Munyori had rushed to the scene. He had found the deceased lying on the side of a footpath near the accused's homestead. Munyori inspected the body. He observed several deep scalp wounds. Part of the head was covered with blood. The blood was coming from the mouth and nostrils. He also observed three knobkerries and a slasher beside the deceased's body. One of the knobkerries was broken. The police arrived at the scene around 03:00 hours the following day.

The next two State witnesses were police officers, Sergeants Rashweth Mutaki [“Rashweth”] and Last Zimbandi [“Last”]. Rashweth was the Investigating Officer. Last, the last State witness to give viva voce evidence, was part of the team of police details that arrested the three accused persons.

Material portions of the evidence of the police witnesses was that after the accused persons had been arrested and had been brought back to the scene of the crime, Rashweth asked each of them to pick the respective weapons that they had used to assault the deceased. The accused picked the broken knobkerrie and the slasher. Bernard and Rabson each picked a knobkerrie…,.

It also transpired that all the three accused persons had been charged with attempted murder in the Magistrate's Court. But none of the police witnesses was quite sure what the final outcome of the case had been.

In the present trial, none of the weapons used in the commission of the offence was produced as exhibits.

The police witnesses said they had been the same weapons produced in the attempted murder trial. Apparently, after the conclusion of the attempted murder trial it was not realized that the same weapons would be relevant exhibits for the current trial. They had been destroyed on the orders of the court.

The last State witness, but whose evidence had been admitted without objection, was Dr T. Nyasha, a medical practitioner. From his post-mortem examination of the body of the deceased he concluded that the cause of death had been head injury. The postmortem report recorded deep cuts on the forehead and bruises on the chest.

That was the State's case.

The accused gave evidence. He would admit only such evidence as was not directly incriminatory and deny everything else. He claimed all the State witnesses had lied against him in order to secure a conviction simply because he was the only one that was in the dock.

The accused was largely incoherent. He admitted the evidence of the first brawl at the beer drink but he denied that Bernard had provoked it. Instead, he said it was Edward who had stood up from his drinking place to go and slap Bernard. Bernard had retaliated. Edward had been overpowered. He had then produced an Okapi knife intending to stab Bernard. The deceased had intervened and stopped the fight. The accused denied he and Rabson had joined the fight on Bernard's side or at all. The accused said the deceased and Edward were chased away from the beer drink by some village heads who had been around.

Next, the accused admitted the fight with knobkerries at the edge of his homestead between him and his brothers on the one side, and the deceased and Edward on the other. But he completely denied having ever assaulting the deceased or in any way having engaged him in any violent physical contact.

The accused's version of events, as far as we could make out from the rumbling incoherence, was materially different from that of the State witnesses. He maintained that in the evening fight, the deceased was assaulted by Bernard and Rabson. For him, the only person he ever fought with was Edward. Edward had been the aggressor. He had come banging at his door demanding that he should come out or else he would burn down the house. The accused was lying inside with his wife. Edward was armed with a knobkerrie. At first, the accused ignored Edward's violent knocks. Later, he observed that Edward, who was using his cell phone light, had moved away to Rabson's compound. The accused then came out of the hut and ran to Bernard's place. His reason for going to Bernard's place was to inform him that the people that he and Rabson had fought with earlier on in the day had come bothering him at his house. Bernard had to come and deal with them himself.

The next lucid detail in the accused's testimony was on the actual fight. He said he and Bernard came back together. They ran into the deceased and Edward. Edward slapped him on the face. They started fighting using knobkerries. At that time, the deceased, Bernard and Rabson also arrived. They also started fighting using knobkerries, the deceased on one side, and Bernard and Rabson together on the other. At some stage Edward stabbed the accused at the back with an Okapi knife, inflicting a 2cm deep wound.

It was not altogether clear from the accused's testimony how his fight with Edward eventually ended. He did mention a slasher. But he denied it had been his weapon or that he had ever used it. Instead, he claimed it was Ishmael Zvinowanda who had arrived at the scene holding a slasher. But, under cross-examination he said it was Bernard's slasher and that it was Bernard who had used it on the deceased. The accused said he became more certain that indeed it was Bernard's slasher when he saw it on the day of indications because Bernard always had one like that….,.

Asked why he had not sought medical treatment given that he had been seriously wounded from the knobkerrie attacks and the knife stabbing by Edward, the accused, at first, said he had been waiting for a letter of instruction from the village constabulary, one Tembwe, to whom they had made a report of the fight. However, upon being given the report, Tembwe had allegedly advised them to wait for sunrise given that the deceased was of a violent disposition. But, later on, the accused said he had opted for traditional medicine for his wounds because he could not afford clinic or hospital fees.

That basically was the accused's case. It was a pack of lies. We had little difficulty dismissing it. It did not add up. It was contradictory in many respects. A few examples will suffice:

(i) That at the beer drink it was Bernard, not Edward, who had provoked the fight was corroborated by Munyori Zvinowanda. Munyori's summary of evidence was admitted by consent. So the accused, rather than the State witnesses, was lying on that score. At any rate, the accused could ascribe no reason or suggest why Edward would just stand up, unprovoked, and go and attack Bernard. That would be irrational. At least Bernard deemed himself to have an unresolved grudge against Edward.

(ii) Admittedly, given Bernard's age at the time, the dates ascribed by Edward to the incident of the old fight, 1989, and the incident of the alleged affair between the deceased and Bernard's first wife, 2007, did not add up. However, this has little significance. The State witnesses were merely trying to emphasize lengthy periods of time that had elapsed.

(iii) The accused's denial of the assault on the person of the deceased was in direct contrast, not only to his warned and cautioned statement that was recorded only some six days after the event, but also to his Defence Outline that was drafted by his counsel only some six days before trial. In the warned and cautioned statement, the accused admitted striking the deceased with a knobkerrie more than once and to the deceased falling to the ground. In his Defence Outline, the accused expressly admitted attacking the deceased, albeit with a knobkerrie, and albeit “…, never severely…,.”

(iv) Still on the assault on the deceased, the accused's denial of having used a slasher contradicted his warned and cautioned statement. In that statement, he admitted to being armed with a knobkerrie “…, and an iron rod/bar…,.” At any rate, there was no significant challenge to the evidence of Edward and Tecla, who were direct eye-witnesses, that the accused had been armed with a knobkerrie and a slasher; that he had smashed Edward with the knobkerrie which had then snapped, and that he had then used the slasher on the deceased. Furthermore, there was no serious challenge to the evidence of the police witnesses who testified that, at indications, each of the three accused persons had been asked to stand by the weapons that each of them had used during the fight and that the accused had picked the broken knobkerrie and the slasher.

(v) Still on the issue of weapons, if the deceased and Edward had each been armed with a knobkerrie, then there should have been five of them on the day after the fight or on the day of indications. But there were only three - one of them broken. Every relevant witness on that point said they were only three. The accused did not deny or challenge that. He did not say anyone might have concealed the others.

(vi) From the evidence, the deceased did not fight back. There is a salient detail that seems to confirm that he did not fight back. It was that he died with one hand inside his trousers' pocket. That could not have been a fighting posture or even a defensive one. The first blow on him must have been a surprise attack. It must have knocked him out instantly otherwise he would naturally have had to try and deflect it. So the accused must have been lying when he said, in his warned and cautioned statement, that the deceased had been attacking him, or when he implied or insinuated in his testimony that the deceased had attacked Bernard and Rabson.

(vii) The accused's version of how his warned and cautioned statement was recorded and confirmed would probably make sense in kindergarten. If believed, it would mean Rashweth, as the investigation officer, conspired to fix him. Last Zimbandi, as the witness, and the magistrate who confirmed the statement would also have conspired against him. Finally, the court that tried him of attempted murder, and all the court officials involved in that trial, including the prosecutor, would also all have conspired to use a statement that clearly referred to a charge of murder. This is incredible and therefore not believable.

There were several other contradictions and inconsistencies in the defence case. In the final analysis, the accused's version of events is rejected in favour of that of the State.

The court is satisfied that the State has proved its case beyond any reasonable doubt. We find that the accused actually did intend to kill the deceased. Therefore, the accused is hereby found guilty of murder with actual intent.

The seven (7) accused persons are charged with murder as defined in section 47 of the Criminal Law (Codification and Reform Act) [Chapter 9:23]. In the alternative, or concurrently, they are charged with public violence as defined in section 36 of the Criminal Law (Codification and Reform Act) [Chapter 9:23].

They were initially jointly charged with 22 others who were discharged at the closure of the State case. The seven are alleged to have murdered a policeman on duty, Inspector Petros Mutedza, at GlenView 3 Shopping Centre on 29 May 2011 in the course of politically-motivated mob violence, acting in common purpose and consort.

The facts giving rise to the charges are by and large common cause as there is no serious dispute concerning the bulk of the circumstances leading to the death of Inspector Mutedza on the day in question. It is not in dispute, and a matter of common cause, that, on 29 May 2011, members of a political party going by the moniker MDC-T were gathered at Glen-View 4 Shopping Centre to celebrate what they termed the T/Shirt Visibility Day. They were feasting, drinking, roasting and merry-making in their common purpose to project the visibility of their political party in the area.

The political gathering was, however, unsanctioned in terms of the prevailing laws and regulations of the country. For that reason, the police deemed the gathering to be unlawful. As a result, the deceased was tasked to lead a troop of seven (7) police officers to go and disband the unlawful gathering. The troop comprised the deceased, Assistant Sergeant Chikwanda, Sergeant Major Mutsigwa, Constables Solomon Mushaninga, Magonagona, Magutarima and Dehwe.

Enroute to Glen View 4 Shopping Centre they passed through Glen-View 4 police station where they were joined by Inspector Nyararai before proceeding to Glen-View 4 Shopping Centre to disperse the unlawful gathering. Inspector Nyararai was familiar with the area and knew some of the participants in the MDC-T, T/shirt Visibility Day. At Glenview 4 Shopping Centre they confronted, and ordered, the group of MDC-T activists that was drinking, roasting meat and merry-making, to disperse. The activists did not resist but successfully negotiated for permission to finish roasting their meat before dispersing. After finishing roasting their meat the activists relocated to Glenview 3 Shopping Centre to continue with their unsanctioned celebrations previously aborted at Glenview 4 Shopping Centre. The relocation to Glenview 3 Shopping Centre was clearly an act of defiance of the order to disband the unlawful gathering. Upon learning of the group's relocation to Glenview 3 Shopping Centre, Inspector Mutedza and his details followed in hot pursuit to, once again, disperse the un-sanctioned gathering. They however met with stiff violent resistance when they confronted the group at Glenview 3 Shopping Centre leading to the tragic death of Inspector Mutedza in the ensuing melee.

The accused persons are alleged to be members of the Movement for Democratic Change (Tsvangirai) (MDC-T). It is common cause that some of the accused persons are in fact members of that party. That Inspector Mutedza died as a result of the confrontation with some of the people who were celebrating the MDC-T, T/shirt Visibility Day is beyond question. There is, however, a dispute as to whether all the accused persons are members of that political party. The determination of the case does not, however, hinge on whether or not one was a member of that political party. Each accused person's liability is based on whether or not he or she participated in the commission of the offence either directly or by association. It is, therefore, not necessary for this court to determine whether or not each accused person is in fact a member of the MDC-T political party.

The State, however, led credible evidence to the effect that the bulk of the people who participated in the attack and killing of the deceased were members of the MDC-T political party who were celebrating their t/shirt visibility day. They could be identified by their regalia and the slogans they were chanting. Some of the accused persons frequented the local police station and were personally known to some police witnesses. Some of the accused persons personally known to some police witnesses were observed actively aiding and abating the commission of the crime. Some incriminating MDC-T t/shirts, though not produced in court on account of having been misplaced, were allegedly recovered during investigations.

The State case hinges on the doctrine of common purpose. It is, therefore, necessary to briefly traverse the origin, effect and application of that doctrine before delving into the facts to ascertain each accused person's liability on the facts found proved.

The common purpose doctrine is firmly grounded in English Law. The underlying principle of that doctrine is set out in Macklin, Murphy and Others (1834) 2 Lewis 225 (1838) 168 ER 1136 where ALDERSON B observed that:

“It is a principle of law that if several persons act together in pursuance of a common intent, every act done in furtherance of such intent by each of them is, in law, done by all.”

The learned author, BURCHELL, in his book South African Criminal Law and Procedure Vol. 1, 3^rd ed..., elaborates and redefines the doctrine of common purpose as follows:

“Where two or more people agree to commit a crime or actively associate in a joint unlawful enterprise, each will be responsible for specific criminal conduct committed by one of their number which falls within their common design.”

That definition was adopted in the local case of S v Chanke 2000 (2) ZLR 494 (S)…,.

The long and short of it all is that the law ascribes joint collective criminal responsibility to people who collude or act with a common intent in furtherance of the commission of a crime regardless of who the actual perpetrator of the crime is. What this means is that every associate in crime is criminally liable for the criminal conduct of his compatriot in crime. This is meant to discourage and punish fellowship in crime. The underlying principle is that he who does a thing through another does it himself.

At this juncture, I now proceed to identify the common purpose, and motive, for the attack on the police in this case.

From the proven facts, I hold that the common purpose or design was to protect an unlawful gathering by unlawful violent means in furtherance of the MDC-T t/shirt visibility day celebrations. I come to that conclusion because Constable Mushaninga gave credible evidence to the effect that during the standoff between the police and the MDC-T mob one young man was heard shouting the MDC-T party slogan “Chinja!” and others responding “Maitiro!” before protesting and urging the mob to attack the police saying:

“When MDC members have a meeting the police would disturb them, but not ZANU PF members, and so they are supposed to be killed!”

That statement categorically sets out the common purpose and motive for the mob attack on the deceased and his fellow police officers. Constable Mushaninga's evidence to that effect was amply corroborated by his fellow police officers and the absence of any other credible reason for which the MDC-T mob could have attacked the police.

Having identified the common purpose or motive for the commission of the offence, it is necessary to determine, as a matter of fact, how the deceased met his death.

How the deceased met his death

It is an established fact, beyond question, that the deceased was killed in a violent confrontation with a mob comprising mainly members of MDC-T who were celebrating their t/shirt visibility day. There are, however, two conflicting versions as to how the deceased met his death.

The State's version is that he was pursued and stoned to death as he was fleeing from the violent marauding mob that was resisting police orders to disperse. On the other hand, the defence's version is that the fatal injuries were sustained when he fell off a truck he attempted to board as he was fleeing from the mob. Cleopas Chikwira, a neutral bystander who observed the skirmish from a distance of about 58m, gave a vivid graphic account of how the deceased was attacked and mortally injured. In his own words, according to my longhand notes, this is what he had to say:

“I heard some noise from the bar. I did not know what was transpiring but it seemed something was wrong from inside. The MDC people seemed they had just arrived at the shops. They were walking towards the bar because I saw them the time I entered the bar. They were not doing anything else.

I recognised them as MDC members because they were wearing red and white T/shirts. They were written the party name. I did not listen to what they were saying.

I saw people running. I do not know what was happening because there were some vendors. I do not know exactly what transpired, I saw members of the police and ordinary members of the public running. Stones were being thrown from all directions. I do not know who was throwing stones because I was also afraid of being struck.

I just thought the police were running from the stones that were being thrown. I just saw a few MDC members who had removed their T/shirts but most of them I did not see where they were. They were holding their T/shirts in their hands. They were putting on other clothes.

Everyone was running from the shops and no one was left. The officer who was struck was struck from nowhere. And he fell down. I was some distance from him but it was from here to the main gate about 58 metres.

The policeman who was struck was running coming from Munyarari Bar. He was struck from the side. The stone came from the front of Munyarari Bar, at the front of the door. I was unable to see the person who threw the stone because there were quite a number of people.”

Joshua Daka, an off duty police officer who was standing at a nearby butchery also gave an eye witness account of the skirmishes. His version of the commotion more or less dovetails with that of Cleopas Chikwira with the exception that he stated that as the deceased was fleeing he attempted to board a pickup truck which drove off and he fell down heavily on his back. The mob of about 20 people then set upon him randomly attacking him as he lay helplessly on the ground. This is what he had to say:

“When he was running that is when stones were being thrown at him. When he got to the car he went to the driver's door. He tried to open the door but he couldn't because the driver was inside. It was a white pickup Hardbody. He tried to get onto the back of that car. The car was driven off and he fell down. The stones being thrown while he was running were coming from people who were behind him wearing red and white t/shirts that were inscribed “Yes or No” at the back. These people were coming from Munyarari Bar.

After the motor vehicle the police officer had tried to board had driven away, the people started to assault the police officer. I did not manage to see how many they were. They were about 20. They were taking turns to strike him with booted feet.”

Constable Daka was standing at Chirandu Butchery while Cleopas Chikwira was standing at Munyarari Bar where the commotion started. He conceded that Cleopas was closer to the scene and had better vision of the events than him. That being the case, the court is inclined to lean more in favour of Cleopas' evidence than that of Constable Daka.

Ednah Chihota, a rustic lady who had recently arrived in the area, was at Glenview 3 Shopping Centre helping her elder sister to vend. She was seated about 20m in front of Munyarari Bar selling her wares. She confirmed she saw the arrival of about 100 people clad in MDC regalia. She later saw the arrival of the police who entered Munyarari Bar; a short while later she saw the deceased coming out of Munyarari Bar with a barrage of stones being thrown at him. The stones were being thrown by the people clad in MDC regalia. She saw the motor vehicle which Constable Daka said he attempted to board but fell on his back as it drove off. She however disputed that the deceased fell off as the vehicle drove off. It was her testimony that he only fell down under a barrage of stones long after the vehicle had driven away.

This witness' evidence was discredited under cross-examination when she confessed that she was confused when she gave her statement to the police. Her evidence was therefore unhelpful in determining whether or not the fatal injuries the deceased suffered were sustained in a car accident or by stoning…,.

The situation on the ground was however volatile, fluid and dangerous such that the witnesses could not be expected to have followed the skirmishes with the same accuracy and attention to detail as if they were watching a film on television. They could all be telling the truth but may have missed a detail or two observed by the other. That much is not surprising especially in cases of mob violence. One witness could have fixed his attention on the stone striking the deceased while the other fixed his attention on the deceased's desperate attempt to board the pickup truck. This is a real possibility considering that humanity is not endowed with a photographic memory. While a doctor may fix his attention on a child's runny nose, an adoring lady may fix her attention on its floral dress. When giving evidence, the doctor may have no idea what the child was wearing but will remember that it had a runny nose. Conversely, the lady may have no recollection that the child had a runny nose but will remember that it was wearing a floral dress. Despite the inconsistency both witnesses will be telling the truth. It therefore does not follow that whenever there are inconsistencies, the evidence proffered is tainted and unreliable. Each case must be treated according to its own exigencies. The same applies to all the other witnesses. Minor differences on detail should not be allowed to distract the court from the bigger picture established by facts beyond question. The remarks of BERE J in the case of Moyo v Nkomo & Another HB38-11 are apposite. In that case, the learned judge had occasion to remark as follows:

“Witnesses who testify on anything are not expected to recount events as if they were recording machines. People will observe or hear certain things but put emphasis on different aspects of what they hear and see. There is absolutely no way witnesses can hear and then repeat the same thing in similar fashion. What is required is to try and see if there is a common denomination/common thread running in the witnesses' evidence.”

Despite the differing testimonies as to what actually killed the deceased, all relevant State witnesses are agreed and corroborate each other on the critical issue that he sustained fatal injuries during an attack by people bearing the brand of MDC-T political party. Apart from mere speculation and conjencture in this case, lay witnesses are unable to tell us the exact cause of death with any degree of accuracy. The exact cause of death can only be determined scientifically through a post mortem report. To that end, the State called the evidence of Dr Aguero Gonzalis a specialist expatriate Forensic Pathologist. He is a qualified Legal Medicine Specialist of 30 years standing. He conducted an examination of the deceased's body and compiled a post-mortem report, exhibit 8.

Doctor Aguero is Spanish and not so proficient with the English Language. He gave his evidence through an interpreter.

It was his testimony that upon examining the body he observed that it had bruises on the forehead. A wound on the right ear as well as bruises on the right hand. Swollen left side above the left ear and swollen left eye. The head had sustained a depressed skull fracture on the left parietal area. Upon opening the head he observed that blood had accumulated on the left side of the head. The depression had caused brain damage. As a result of such observations he concluded that death was due to severe head injury, depressed skull, and damaged brain due to assault.

Despite searching, vigorous cross-examination, he was adamant that in carrying out the post mortem he was not influenced by anyone. He relied entirely on his observations and analysis of the evidence exhibited by the corpse before him. He denied that he suffered any constraints or impediment from his limited proficiency in the English language because the terminologies used both in Spanish and English were the same. As a result of his findings he concluded that the fatal injury had been inflicted by a hard object which struck the deceased on the left side of the head.

That conclusion is consistent with Cleopas Chikwira's evidence that he saw the deceased being struck by a stone on the side of the head. His evidence to that effect was amply corroborated by constables Dehwe and Magonagona who rushed to the deceased's aid shortly after he had been mortally wounded.

The absence of any injury at the back of the head is wholly inconsistent with constable Daka's evidence that he saw the deceased falling on his back and hitting his head on the tar mark. Even if we were to give him the benefit of a doubt the absence of any injury at the back of the head will still mean that the alleged fall did not cause the deceased's death….,.

All the same, there is, however, overwhelming evidence that the deceased was attacked with a barrage of stones thrown by a group of people comprising mainly MDC-T members celebrating their t/shirt visibility day. Although one culprit may have delivered the fatal blow, his conduct and intention must be ascribed to all those who made it their common purpose to attack the deceased. I accordingly find, as a matter of fact, that the deceased was mortally injured when he was struck by a stone thrown by a group of people comprising mainly members of the MDC-T political party resisting police orders to disperse.

Like I have already said before, in the eyes of the law it does not matter who actually threw the stone which killed the deceased. Whoever threw that stone was acting in solidarity and common purpose with the group of MDC-T members celebrating their t/shirt visibility day. Whether or not the assailant was a member of the MDC-T is an irrelevant consideration. The stone was thrown with reckless abandon, with ferocious murderous intent as evinced by the accompanying shouts and threats to “kill the frogs”; meaning, “kill the police officers.”

On the basis of such finding we come to the unanimous conclusion that the group had the actual intention to kill the deceased. That intention must be ascribed to whoever associated himself with the attack on the deceased. It therefore follows that whoever associated with the murderous group had the necessary intention to kill the deceased, and, therefore, guilty of murder with actual intent.

Having established the cause of death, I now turn to consider the liability of each accused person on the basis of the evidence before this court. The critical issue for determination in this case is whether or not each of the accused persons has been correctly identified and shown, beyond reasonable doubt, to have participated in the commission of the offences charged. The case, therefore, to a large extent, falls to be determined on findings of facts based on the credibility and quality of evidence proffered before the court.

1. Tungamirai Madzokere and 2. Yvonne Musarurwa

The first accused is the local councillor for Glenview, Ward 32. He admits having attended the MDC-T t/shirt visibility day celebrations on 29 May 2011 at Glenview 4 Shopping Centre. He voluntarily contributed $10= to buy meat for the braai or barbecue. He accompanied the group to Glenview 3 Shopping Centre after being ordered to disband by the police at Glenview 4 Shopping Centre. He was present at Glenview 3 Shopping Centre when the police arrived leading to the commotion that led to the deceased's death. He however denies ever having participated in the confrontation that led to the deceased's death. His defence is that at the time of the commotion he was drinking beer in the nearby council park with Gladys, Nohlahla and Yvonne Musarurwa among vendors, while Nohlahla's shoe was being repaired by a cobbler.

Inspector Spencer Nyararai, stationed at Glenview police station, had prior knowledge of the accused as a frequent visitor to the police station. It was his testimony that he observed the accused participating in the commission of the offence on the day in question. He saw him among people who were in front of Munyarari Bar chanting slogans and shouting “Uraya datya” “kill the frog.” In his testimony, this is what he had to say:

“Yvonne and Tungamirai were chanting slogans. I saw them. The 1^st accused did not run away from the scene. The same as Accused 2. Yvonne Musarurwa did not run away. She was standing in front of Munyarari Bar. When the police arrived, they were chanting slogans.”

There is some contradiction between the evidence of Inspector Nyararai and Sergeant Major Mutsigwa as to who was at the entrance of Munyarari Bar when the police reaction group arrived. Inspector Nyararai said it was the group of MDC-T members clad in their party regalia whereas Sergeant Major Mutsigwa said it was ordinary members of the public, who, when ordered to disperse, complied.

That contradiction, to me, is not material. What is material is that when the disturbances started members of the MDC-T pursued the deceased through the front of Munyarari Bar chanting slogans and attacking the police with stones resulting in the deceased being mortally wounded in front of the bar.

During the commotion, Inspector Nyararai received information to the effect that one police officer had been injured. He proceeded to the scene and found the deceased lying unconscious at the front of Munyarari Bar. He observed that the deceased had a swollen lump on the left side near the left ear. There was some white stuff in his nose. There was a broken police communication radio lying next to the deceased as well as three (3) stones and a half-brick. He later collected the three (3) stones and half brick which were produced in evidence as exhibit 2. His evidence in this respect was amply corroborated by Sergeant Major Mutsigwa.

Most of the police officers witnessed the violence and attack on the police but did not see how the deceased was injured as they fled from the scene of the disturbances in different directions. It is however needless to say that the accused's defence places him squarely at the scene of the crime. It again establishes an association with the group that killed the deceased. By his own admission he was an active participant who played a supervisory role in the activities of the group on that day.

I have already made a factual finding that the act of relocating to Glenview 3 Shopping Centre, after being ordered to disperse by the police, was an act of unlawful defiance calculated to resist police authority. Thus, this accused, Tungamirai Madzokere, made it his common purpose with the group that eventually killed the deceased to unlawfully resist police orders in promotion of the unlawful MDCT-, t/shirt visibility day celebrations. At no time did he dissociate himself from the activities of the group.

Yvonne Musarurwa is the Youth Deputy Secretary of the MDC-T party, Budiriro District.

Her case is no different from that of the first accused, Tungamirai Madzokere, as they were together before and during the skirmishes that led to the deceased's death. Her defence is that she actively participated in the MDC-T, t/shirt visibility day celebrations organised by the Provincial Youth Committee on the day in question, that is to say, 29 May 2011. At the time of the commotion she was drinking beer in the council park in the company of the first accused, Nohlahla, and Gladys while Nohlahla's shoe was being repaired by a cobbler at the entrance to Munyarari Bar where the police were eventually attacked leading to the deceased's death.

Both accused told the court that they fled from the park as soon as they saw the police arrive at Glenview 3 Shopping Centre because people were in the habit of running away as soon as they saw the police. In the words of Yvonne Musarurwa:

“I do not know what happened after we had fled. Myself and others fled because it is the habit of people to run away if they see the police arriving.”

Both accused were not telling the truth in this respect because it is common cause that they had not fled from Glenview 4 Shopping Centre earlier that day when the police arrived. They, in fact, engaged the police and successfully negotiated to finish roasting their meat before dispersing. Undisputed evidence abound from State witnesses, including the police officers at the scene, that far from running away members of the public assisted the police in rendering first aid to the deceased. In fact, it were members of the public who alerted the police that their colleague had been attacked and injured.

On that score, we find that there is no shred of truth in the accused's assertion that they fled from the police upon sight without having done anything wrong and in the absence of any commotion or skirmishes with the police. That cannot be the behaviour of a councillor and a high ranking party official.

Pheneas Nhatarikwa, a co-accused, who gave them a lift as they were fleeing from the scene testified that when both accused stopped him they appeared to be fleeing from the commotion. We believe Nhatarikwa's evidence in this respect as they are fighting from the same comer. His evidence on that point of fact was virtually unchallenged and he had absolutely no reason to misrepresent facts against the accused. Fleeing from a scene of crime may be interpreted as admission, by conduct, as the guilty are always afraid. Thus, the only reasonable inference to be drawn from their behaviour is that this time around they fled from Glenview 3 Shopping Centre because of their participation in the skirmishes that led to the death of the deceased.

The commotion occurred soon after the arrival of the police at Glenview 3 Shopping Centre. It is therefore unbelievable that both accused saw and heard nothing as they were fleeing from the scene of the crime until the following day. The glaring misrepresentation in this respect gives credence to the State's assertion that they were observed by Inspector Spencer Nyararai actively participating in the commission of the crime. They were observed chanting party slogans and encouraging members of her group to attack the police.

As already demonstrated above, Inspector Nyararai knew both of them very well prior to the commission of the offence.

If, at one time, both accused separated from the main group to attend to other side issues they were still in the vicinity of the scene of the crime in the company of part of the group comprising Gladys and Nohlahla. They were still drinking beer in the nearby municipal park in pursuit of their collective scheme of things and common purpose. By side-tracking to assist with the repair of Nohlahla's shoe, the accused were not dissociating themselves from the common purpose of the group that killed the deceased. They still harboured the desire and object to defy and resist police orders to disperse in furtherance of the illegal MDC-T, t/shirt visibility day celebrations. When the commotion started they must have left the park to join in the fray as they were active members of the group. I come to that conclusion because they were seen by Inspector Nyararai who knew them well and could not have mistaken them for anyone else in broad daylight.

Inspector Nyararai must therefore have been telling the truth when he said he saw the accused chanting slogans and urging their compatriots to attack the police in front of Munyarari Bar where Nohlahla's shoe was being repaired.

When a group of about 100 people randomly throw stones and attack others with ferocious determination, uttering death threats, the intention to kill cannot be excluded. Thus, whoever threw the stone with sufficient force to depress the skull causing brain damage, had the actual intent to kill the deceased. Both accused's presence at the scene of the crime and close association with the marauding group of youths that eventually resisted and attacked the police lead inexorably to the conclusion that the State has established, beyond reasonable doubt, that both accused colluded and acted in common purpose in killing the deceased.

The State has therefore established its case against the first accused, Tungamirai Madzokere, and the second accused, Yvonne Musarurwa, beyond reasonable doubt. They are accordingly found guilty as charged of murder with actual intent and not guilty of the alternative charge of public violence as it forms part of the main charge.

3. LAST MAENGEHAMA

This accused person is a businessman and a national executive member of the Movement of Democratic Change (MDC-T) political party. He is also a member of the United Family International Church. His defence is that commonly known as an alibi. He flatly denies having been anywhere near the scene of the crime at the material time. He claims that he was at the City Sports Centre attending a church service of the United Family International Church led by Prophet Emmanuel Makandiwa. The service was conducted by Pastor Kufa as prophet Makandiwa was not present. He sought to call at least four people who accompanied him to church on that day to confirm his defence. There is however State eye witness evidence to the effect that the accused was seen at Munyarari Bar actively participating in the commission of the crime.

Constable Solomon Mushaninga, who was in the company of the deceased when he met his death, gave a graphic description of the accused's peculiar features as fitting one of his attackers who threw a stool at him inside Munyarari Bar. He identified the accused by his dark complexion, medium built and swollen forehead. That description fits the accused.

It was his testimony that as the mob attacked them with a hail of stones the deceased fled into Munyarari Bar and he followed suit with Constable Makopa. Inside the bar there were people clad in MDC t/shirts and others in plain clothes who attacked them with open hands and booted feet. As he fled through the bar he encountered, at close range, a certain boy, dark in complexion and of medium height with a swollen forehead. That person picked up a stool and threw it at the witness. He ducked and the stool missed him. He came face to face with his assailant for about two (2) minutes before running away. This was his first time to encounter his assailant. He however identified Accused 3, Last Maengehama, in the dock as the culprit. This occurred at around 4pm. He was able to see the accused clearly because the room was lit by an electric lamp. He was however unable to recall what the accused was wearing.

Constable Makopa was not called to buttress constable Mushaninga's evidence on what transpired between the accused and constable Mushaninga in the bar as they were fleeing. The failure to call constable Makopa is however quite understandable. He might not have witnessed that encounter as he was pre-occupied with his own safety and also busy trying to escape from the attack.

The accused denied being at the scene of crime and behaving in the manner alleged or at all. It was his defence that on the day in question he left home for church between 10:00 hours and 11:00 hours in the company of his neighbours Martin Rwafa and his wife Embedzai Paradzai, Ronald Nyaude and his wife Martha, Pius and Irene Nthando. He drove them to and from church on that date, the 29^th of May 2011. The church service ended at 16:30 hours and he only left the venue of the church service, at the City Sports Centre, around 17:00 hours. He only learnt of the disturbances when he got home.

In his Defence Outline, he states that the only reason why he was arrested is that he is a high ranking member of the MDC-T who stays very close to the scene of the crime. He accused the State of refusing to investigate his defence of an alibi. Chief Inspector Maida, the arresting detail, told the court that when they raided Last Maengehama's residence it was his wife who told him that she had been at prophet Makandiwa's church service. The accused did not tell him that he had been at church at the material time. The investigating officer, Chief Inspector Ntini, denied that Last Maengehama advised him of his alibi otherwise he would have investigated it. His evidence reads:

“I would have made a follow up to verify if the accused person had made such an alibi. I recorded a warned and cautioned statement from him. That information is not contained in his warned and cautioned statement.”

In cross-examining this witness, the defence makes it clear that Last Maengehama did not, infact, raise the defence of an alibi with the police. This emerges quite clearly from the following exchanges between defence counsel and Chief Inspector Ntini:

“Q. You agree that when you record a warned and cautioned statement you would have conducted interviews, interrogations and other investigations?

A. That's correct. Yes.

Q. And that not everything that comes out of the interviews goes into the warned and cautioned statement?

A. What goes into the interview is the preamble and the reply by the accused. The interview is never recorded in the warned and cautioned statement.

Q. So, not every alibi is therefore in the warned and cautioned statement?

A. An alibi forms part of the reply by an accused person and for that reason it should be in the warned and cautioned statement.

Q. Did you investigate any of the other accused persons' alibis?

A. Yes.

Q. Which accused persons?

A. Gift Zwelibanzi Dube, Solomon Madzore, and Cynthea Fungai Manjoro.

Q. Does Mr Madzore mention his alibi in his warned and cautioned statement?

A. No, he doesn't.

Q. So how did you know about his alibi?

A. The matter came up during his bail application.

Q. So he did mention his alibi though it is not in his warned and cautioned statement?

A. Yes.”

Considering that the accused's defence hinged on the alleged alibi, it is inconceivable that he could have failed to raise the defence in his warned and cautioned statement had he in fact been at the church when the offence was committed.

In my view, what the accused person says in his warned and cautioned statement forms the basis of his defence. In carrying out their investigations, the police cannot be blamed for being guided by the warned and cautioned statement which made no mention of the alleged alibi. Considering that the accused consistently failed to raise the alleged alibi with the arresting detail as well as the investigating officer this gives the impression that the defence is concocted and a product of recent fabrication. The accused's concerted effort to blame the police of failure to investigate an alibi which he had not raised at the appropriate time is rather dishonest and misleading.

The accused's admitted failure to raise his alleged alibi in his warned and cautioned statement is ample proof, and support, of police evidence that the accused did not raise the defence of any alibi with them. We accordingly find, as a fact proved, that the accused did not raise with the police the defence of the alibi which he now proffers before the court. That being the case, the police could not have been expected to go on a wild goose chase in search of an alibi they were not aware of. It therefore, stands to reason that the police were under no obligation to investigate an alibi not drawn to their attention.

The accused's reliance on the case of S v Manuwa 2012 (1) ZLR 174 is misplaced as that case is authority for the proposition that an accused person has the obligation to furnish the State with material details of the alibi he seeks to rely on timeously for the truth of the alibi to be investigated. Failure to do so may result in the defence being rejected leading to conviction of the accused as happened in that case.

This should really put paid to the defence of the alleged alibi - but, for the sake of completeness, it is necessary to interrogate the cogence of the defence as proffered by the accused.

The accused alleges that he was at the UFI church service when the offence was committed. To that end he led evidence of a video recording allegedly taken on the day in question showing him attending the church service. The video recording was done by one Ruwezha Mazhata.

The critical issue is not whether the accused appears in the video but the date on which it was recorded.

The State disputed that the video was recorded on the day in question, that is to say 29 May 2011. In challenging the authenticity of the video recording the State pointed out that the video camera has a facility to show time and date on the film. Despite the availability of that function, the video clip shown to the court does not show the date and time of the recording. Ruwezha Mazhata, under-cross-examination, conceded that the digital data storage device he used had a Random Access Memory (RAM) meaning that what is recorded on that film can easily be edited, modified or deleted. There was no evidence that the video tapes were kept in a safe place free from interference. There was no official handover takeover of the video tapes. Ruwezha Mazhata was not responsible for the safe keeping of the video tapes, and, as such, he was unable to vouch for their safe keeping.

If we were to assume, for one moment, that the accused was at the church service as he alleges this would still not vindicate him. This is because the video recording was done for 5 hours - from 7:30am to 12:30pm. The video clip shown to the court cannot therefore be evidence of the fact that the accused was still at the church service after 12:30pm.

The offence was committed around 4pm thereby giving him ample time to travel to the scene of the crime beforehand.

That finding is consistent with his co-accused brother Lazarus's evidence that he remained home while others went to church. His relatives began to trickle back home around lunch hour. While the evidence of the video recording is admissible because it was presented by the recorder, it is heavily discredited and of no probative value. No reliance can be placed on it.

The accused is a high ranking member of the MDC-T. Its T/shirt Visibility Day celebrations were being held in his area - close to his residence. Viewed from that angle, the possibility that he could have skipped church service or left early to join in the celebrations cannot be excluded. That finding is fortified by the accused's failure to raise the alibi timeously as did his wife who was then absolved from any wrongdoing. Once the accused's own evidence is severely discredited, as shown above, any supporting evidence is equally tainted. The accused's conduct, in proffering a fake alibi long after the event, is wholly inconsistent with an innocent frame of mind. That conduct on his part tends to lend weight to the State's evidence that he was seen by an eyewitness actively participating in the commission of the offence.

Constable Mushaninga came face to face with his assailant for about two (2) minutes, in broad daylight, with the benefit of an electric light in the bar. The accused is dark in complexion and of medium height. One can easily describe him as tall or of medium height as there is no fixed point at which medium height ends and tallness begins when one is of medium height. Constable Mushaninga's description of the accused as of medium height or tall is of little consequence one way or the other in the circumstances of this case. These are only relative terms, which, standing alone are not of much use in the precise identification of an accused person.

What is material is that the accused bears a striking brand in the form of a bulge on his forehead.

This makes him an exceptional being easily identifiable in a crowd. He stands out like a sore thumb. That being the case, and having regard to his own personal circumstances as a high ranking member of the MDC-T residing in the neighbourhood, and, coupled with his behaviour upon arrest, the possibility that he has been wrongfully identified is remote.

Constable Mushaninga's identification of the accused was amply corroborated by Inspector Nyararai who testified that he had seen the accused, Last Maengehama, earlier that day at Glenview 4 Shopping Centre actively participating in the MDC-T, t/shirt visibility day celebrations. He later saw him, again, at Glenview 3 Shopping Centre chanting slogans in front of Munyarari Bar where the deceased was murdered.

While the court is mindful of the need to exercise caution in dealing with the evidence of identification, in this case we are convinced that the danger of false or mistaken identification has been wholly excluded.

Constable Mushaninga did not know the accused prior to this day. He therefore had no motive to falsely implicate the accused of all people who were at the scene of crime. Both Constable Mushaninga and Inspector Nyararai were honest and believable witnesses. We believe them. In the final analysis we find as a matter of fact that the accused Last Maengehama has been correctly identified as the person who threw a stool at Constable Mushaninga inside Munyarari Bar. By participating in the attack he made it his common purpose with the MDC- T group to resist police orders to disperse by perpetrating an unlawful attack on the police thereby causing the deceased's death.

The Court has already made the finding that the attack was made with the actual intention to kill. That intention is equally ascribed to the accused. We are of the unanimous view that the State has proved its case beyond reasonable doubt against the accused, Last Maengehama. He is accordingly found guilty of murder with actual intent and not guilty of public violence as that charge is embodied in the charge of murder.

4. Lazarus Maengehama

This accused person is a brother to the third accused, Last Maengehama. His defence is that at the material time he was employed in Botswana but he was back home on a visit and residing with his co-accused brother, Last Maengehama, at House Number 4712-58^th Crescent Glenview. He denies being a politician or political activist. He states, in his Defence Outline, that on the day in question he remained at home while his wife and others went to church. His wife found him at home upon her return from church around lunch time. After lunch he was joined by Micah Muzambi and Willard Magaya in drinking beer at home. His relatives, who had gone to church in the morning, started to trickle home round about this time.

He only learnt of the disturbances at the shops from his wife who had been to the shops around 4pm. He was surprised to be arrested during a night police raid. At 44 years of age he is no longer a youth, and, as such, he could not have been participating in the said MDC-T youths activities. He proposed to call his drinking mates to confirm his alibi - but subject to their availability.

Despite his spirited denial, Inspector Nyararai identified him as one of the persons he saw participating in the commission of the crime. It was his testimony that he knew the accused prior to the commission of the offence because he had previously seen him at Glenview 4 earlier that day.

Apart from the uncorroborated evidence of Inspector Nyararai, no other evidence emerged positively identifying this accused person as having been at the scene of the crime participating in the commission of the crime. Inspector Nyararai did not know this accused person prior to that date. Unlike his brother he bears no striking mark to make him easily identifiable. For that reason, we consider it unsafe to convict on the basis of rather shaky evidence of identification. The accused, Lazarus Maengehama, is entitled to the benefit of a reasonable doubt. He is accordingly found not guilty and discharged on both counts.

5. Phineas Nhatarikwa

This accused person admits being at the scene of crime associating with the group that eventually killed the deceased. He is however adamant that his association with the group was innocent as he was merely performing his official duties in the course of employment.

His defence is that he is employed by the MDC-T party as a driver. On the day in question he was on duty attending to the party's T/Shirt Visibility Day at Glenview 3 Shopping Centre. At or about the time of the disturbances he was at the scene of the crime attending to his duties with an MDC-T pick-up truck. He had been called by one of the youths leaders to ferry utensils and empty bottles. As he arrived at Glenview 3 Shopping Centre he noticed police in riot gear arriving in a police vehicle and he decided to drive off. As he was driving off he was stopped by Accused Two, Yvonne Musarurwa, in the company of Accused One, Tungamirai Madzokere, and others who appeared to be fleeing from the commotion. He then drove off to avoid being caught in the cross-fire.

The State led evidence to the effect that a truck was seen being used as a gate-away vehicle from the scene of the murder. The accused's presence at the scene, with a truck, and his association with the group of persons responsible for the death of the deceased, renders him a prime suspect in the commission of the offence. The accused, having associated with the group that allegedly killed the deceased, the onus is on him to satisfy this Court that his association with the group was innocent.

This accused's admitted involvement in the group's activities, and providing some of the criminal elements with the means of escaping from the scene, provides a nexus between the accused and the commission of the offence.

There is, however, no direct evidence linking the accused to the killing of the deceased.

That being the case, we find that there is a ring of truth when he says, as a driver for the MDC, he was at the scene merely to collect the dishes, as directed, in the course of employment. Section 206 of the Criminal Law (Codification and Reform Act) renders persons who give assistance to criminals after the commission of an offence criminally liable as accessories after the fact. It reads:

“Any person, other than an actual perpetrator of a crime, who -

(a) Knowing that an actual perpetrator has committed a crime; or

(b) Realising that there is a real risk or possibility that an actual perpetrator has committed a crime; renders to the actual perpetrator, or to any accomplice of the actual perpetrator, any assistance which enables the actual perpetrator or accomplice to conceal the crime or to evade justice or which in any other way associates the person rendering the assistance with the crime after it has been committed, shall be guilty of being an accessory to the crime concerned.”

That definition makes it clear that one can only be guilty of being an accessory after the fact of a crime if one with knowledge or realizing that there is real risk or possibility an actual perpetrator has committed a crime, associates with the perpetrator, renders the actual perpetrator assistance to conceal or to evade justice.

In this case, it is abundantly clear that the accused rendered assistance to his associates who were fleeing from the scene of the crime of public violence. He knew of their involvement in the MDC-T, t-shirt visibility day and that they had sparked the public violence. By giving them a lift he was aiding and assisting them to evade justice. It should be noted that the accused's official duties were to collect the dishes but he ended up providing some of the criminals with the means of escape from the scene of the crime by giving them a lift. He was not a dis-interested bystander. He had an insight and interest in what was going on between the police and members of his party. He must have known, and, therefore, did know that members of the MDC-T party had caused the commotion and public violence. He knew both Tungamirai Madzokere and Yvonne Musarurwa as leading members of the group. For that reason he knew that they were somehow responsible for the public violence that had erupted at the Shopping Centre.

It follows, therefore, that when he gave them a lift as they fled from the scene he intended to help them escape from the scene of crime. This is because he knew of the violence that had erupted - as mere arrival of the police, without more, could not have induced him to flee leaving his official duties. He must have seen the public violence erupting in his presence. It is only then that he decided to flee to avoid being caught in the melee. The accused's conduct, in deliberately spiriting away people he knew to have committed the crime of public violence, renders him criminally liable as an accessory after the fact of that offence.

The accused, Phinias Nhatarikwa, is accordingly found guilty of the competent verdict of being an accessory after the fact of public violence as defined in section 206 of the Criminal Law (Codification and Reform Act) [Chapter 9:23] and not guilty of the main charge of murder.

6. Edwin Muingiri

This accused person's defence is that on the day in question, that is to say 29 May 2011, he was selling airtime at Glen View 4 Shopping Centre. He mixed and mingled with the MDC youths who were clad in their party regalia to show that the party was still active in the area. They were merry-making, drinking and roasting meat. When the youths dispersed, around 1400 hours, he remained behind gathering empty bottles and dishes. Later on he decided to follow the youths to Glenview 3 to recover some empty bottles from the youths. On his way to Glenview 3 he met someone who advised him that there were police in riot gear at Glenview 3. He then decided to abort his journey to Glenview 3 Shopping Centre.

He therefore denies having been at the scene of the crime at the time of the deceased's death.

The State was unable to lead credible evidence to rebut the accused's defence that he was not at Glenview 3 Shopping Centre when the offence was committed. There being no nexus between the accused and the commission of the offence, the accused, Edwin Muingiri, is entitled to the benefit of a reasonable doubt. He is accordingly found not guilty and acquitted.

7. Paul Nganeropa Rukanda

This accused person is the MDC-T Organising Secretary for Glenview. He is 34 years of age. In his Defence Outline he admits having attended the MDC-T, T/shirt Visibility Day Celebrations at Glenview 4 Shopping Centre to see how the proceedings were progressing. Despite such involvement he denies having been part of the youths' activities as his responsibilities lie with the main wing. It is his defence that after monitoring events at Glenview 4 he went straight home. He denies ever going to Glenview 3 Shopping Centre on that day.

Apart from providing evidence that the accused was at Glenview 4 Shopping Centre actively associating with the group that later killed the deceased at Glenview 3 Shopping Centre, the State was unable to provide independent evidence proving beyond reasonable doubt that this accused was present at the scene of crime when the offence was committed. Mere presence at Glenview 4 Shopping Centre, where the offence was not committed, does not constitute a criminal offence in the absence of evidence of conspiracy to commit the offence having occurred at Glenview 4 Shopping Centre. There being no evidence linking this accused person to the commission of the offence at Glenview 3 Shopping Centre, we consider it wholly unsafe to convict.

The accused is entitled to the benefit of a reasonable doubt. He is accordingly found not guilty and acquitted on both counts.

This is a rather unusual case in which both accused persons are facing two counts of murder as defined section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] committed on the same day and at the same place.

Initially, both accused persons were jointly charged with Calvin Vurayai and Tafara Joramu who are now at large and warrants for their arrest were issued. A separation of trial was granted hence the proceedings are only in respect of Accused 1, Wiklove Vurayai (Wiklove), and Accused 2, Munyaradzi Vurayai (Munyaradzi).

The charges are that on 10 March 2016 each of the accused persons, or all of them, caused the death of Saul Kani (hereinafter the first deceased) and Pauro Stanslas Masimura (hereinafter the second deceased) by assaulting them with iron bars and booted feet at Shashe Business Centre in Mashava.

Accused 1, Wiklove Vurayai is aged 28 years and Accused 2, Munyaradzi Vurayai is 25 years. They are both brothers with one Calvin Vurayai. Tafara Joramu is their nephew. They all reside in Hwarikwari Village, Headman Madamombe in Chivi, Masvingo. Both the now deceased, that is the first deceased, Saul Kani (Saul), and the second deceased, Pauro Stanlsus Masimura (Pauro), resided in Murove Village, Headman Madamombe, Chivi, Masvingo. The first deceased, Saul Kani, was, 31 years and the second deceased, Pauro Stanlsus Masimura, 65 years old.

On 10 March 2016 the accused persons, together with their alleged accomplices, Calvin Vurayai and Tafara Joramu, were at Shashe Business Centre at night. The now deceased persons and other patrons were also at the same business centre. They were all enjoying themselves drinking beer at the bottle stores at the said business centre.

It is alleged that the accused persons had an altercation with one Thomas Ndambira inside Mudziro Bottle Store and that the second deceased, Pauro Stanlsus Masimura, inquired what was wrong as Thomas Ndambira sought refuge behind the second deceased, Pauro. The State alleges the accused persons attacked the second deceased, Pauro Stanlsus Masimura, and that the second deceased's sons, Golden Masimura and Simbarashe Masimura, also present in the bottle store, intervened to rescue their father the second deceased, Pauro Stanlsus Masimura. During the said melee, Thomas Ndambira is alleged to have hit Accused 1, Wiklove Vurayai, with an iron bar on the head causing a deep cut and briefly rendering Accused 1, Wiklove Vurayai, unconscious. It is said Accused 1, Wiklove, was resuscitated by the first deceased, Saul Kani, who poured water on him.

It is the State case that Accused 1's brothers, that is Accused 2, Munyaradzi, Calvin and their nephew, Tafara Joramu, attacked the second deceased's sons, Golden Masimura and Simbarashe Masimura who both fled leaving their 65-year-old father Pauro Masimura. The State alleges that all the accused persons turned on to the second deceased, Pauro Masimura, whom they assaulted with iron bars and bricks until he was unconscious. The first deceased, Saul Kani, tried to assist the second deceased, Pauro, and it is alleged the first deceased, Saul, was also attacked by the accused persons in the same manner until he was unconscious. The police were later called in and both deceased persons were ferried to Masvingo Provincial Hospital after which they were transferred to Parirenyatwa Hospital due to the severity of the injuries where the first deceased, Saul Kani, died on 14 March 2016 and the second deceased, Pauro Stanlsus Masimura, died on 17 March 2016.

The defence proffered by Accused 1, Wiklove Vurayai, is that he never attacked any of the deceased persons at all on the day in question. Accused 1, Wiklove, said all started when Thomas Ndambira confronted Accused 1, Wiklove, in Madziro Bottle Store ordering him not to illegally mine gold in Thomas Ndambara's village, an activity Accused 1 and his accomplices were engaged in together with many other local gold panners. Accused 1, Wiklove, said this altercation degenerated into a fist fight with Thomas Ndambira and that his alleged accomplices stopped the fight. Accused 1, Wiklove, said villagers from Thomas Ndambira's village then declared war against Accused 1, Wiklove, and his alleged accomplices who were thereafter attacked inside the bottle store. Accused 1, Wiklove, said he tried to flee but was struck on the head with an iron bar by Thomas Ndambira as he tried to get out of the bottle store causing him to fall unconscious. As a result, Accused 1, Wiklove, said he is unaware as to what befell the now deceased persons as he was unconscious. Accused 1, Wiklove, said he had no cause at all to fight or injure both deceased persons.

This is the same version Accused 1, Wiklove, maintained in his evidence in chief and under cross examination. Accused 1, Wiklove, insisted throughout the trial that he does not know how both the first deceased, Saul Kani and the second deceased, Pauro Stanlsus Masimura, were fatally injured. In fact, Accused 1 said he is surprised to be falsely implicated in their demise. Instead, he maintained that he was a victim of this brawl as he sustained a serious head injury inflicted by Thomas Ndambira.

Accused 2, Munyaradzi Vurayai's version, as per his defence and evidence, is that a fist fight ensued among the deceased persons and their relatives against Accused 1, Wiklove Vurayai, Accused 2, Munyaradzi Vurayai, Calvin Vurayai and Tafara Joramu. During the ensuing fight he said Accused 1, Wiklove, was attacked with a machete on the head by Thomas Ndambira and fell unconscious. Accused 2 said the first deceased, Saul Kani, was mistakenly struck by Thomas Ndambira with a stone as Thomas Ndambira intended to strike Accused 2, Munyaradzi, and his alleged accomplices. Accused 2, Munyaradzi, said this is how the first deceased, Saul Kani, was fatally injured. Accused 2, Munyaradzi, said the second deceased, Pauro Stanlsus Masimura, was injured in the same manner, a deflected blow scenario, by one of the second deceased's sons who intended to hit Accused 2, Munyaradzi, but missed and fatally injured the second deceased, Pauro. Accused 2, Munyaradzi, said we did not attack any of the deceased persons. Instead, he said he carried Accused 1, Wiklove Vurayai, who had been seriously injured and unconscious until they got home. Accused 2 said when he and Accused 1, Wiklove, left, his alleged accomplices, Calvin Vurayai and Tafara Joramu were still engaged in the fist fight with the now deceased persons and their relatives.

Accused 2 maintained, in his evidence, that he never attacked any of the deceased persons but that he and his alleged accomplices were victims of an attack by people from the now deceased persons' village over disputed gold claims which they were all illegally exploiting. Accused 2, Munyaradzi Vurayai, said indeed the first deceased, Saul Kani, poured some water on Accused 1, Wiklove Vurayai, who had been rendered unconscious by Thomas Ndambira after being hit with an iron bar on the head. He said it was during that process that Thomas Ndambira threw a stone and mistakenly hit the first deceased, Saul, who fell down. Accused 2, Munyaradzi, said after he carried his unconscious brother, Wiklove, home he later surrendered himself to Mashava police after he gathered police were looking for him and that he had nothing to fear as he was innocent.

Our task is to assess whether the version given by both accused persons is indeed correct. As already said, the accused persons' alleged accomplices, Calvin Vurayai and Tafara Joramu, are not part of this trial. Further, Thomas Ndambira, who is continuously implicated in this brawl, did not testify.

The cause of death of both the first deceased, Saul Kani, and the second deceased, Pauro Stanlsus Masimura, is not in issue. They both died as a result of injuries inflicted upon them as per the post mortem reports, Exhibit 3 and Exhibit 4, which show the cause of their deaths as subdural haematoma and head trauma arising from assault. The second deceased, Pauro, also suffered from pneumonia aspiration. The evidence of Doctor Gonzalez, who carried out the post-mortem examinations, is uncontested and was admitted in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:23].

During the course of the trial, two iron bars, Exhibit 1, which is 1-metre-long and weighs 2.809kg and Exhibit 2, which is 1,95m long and weighing 5.045kg, were produced by consent. These implements are used for illegally gold panning and the State alleges they are part of the arsenal the accused persons used to attack the now deceased persons. All we noted is that these iron bars are indeed lethal weapons which can inflict fatal injuries.

We now turn to the evidence led from seven (7) State witnesses.

What emerges from the evidence is that the accused persons initially had an altercation with the second deceased, Pauro Stanlsus Masimura's nephew, one Vincent, over some $1= allegedly owed to one of the accused persons and that the second deceased, Pauro, intervened, as an elderly person, by telling his nephew to go home. This is clear from the evidence of the second deceased's sons, Isheunesu Masimura and Golden Masimura.

The State led evidence from Nyengeterai Zvavatonga, a bar lady in Mudziro Bottle Store; John Kaza, a fellow patron and villager who was in Mudziro Bottle Store; Isheunesu Masimura, Golden Masimura both sons of the second deceased, Pauro Stanlsus Masimura; the Investigating Officer, Sgt. Shepherd Musindo, and Lloyd Mutombo, also a fellow villager, who was at Shashe Business Centre.

We now turn to that evidence.

1. Sgt Shepherd Musindo (Sgt Musindo)

Sgt Musindo testified that when he attended the scene he found three people, that is, the two deceased persons Saul Kani and Pauro Stanlsus Masimura and one Lloyd Mutombo severely injured at Shashe Business Centre. He said they all had serious head injuries and bleeding from the nose and mouth. None of them could talk. He recovered iron bars, Exhibit 1 and Exhibit 2, although he was advised some stones or farm bricks were also used to injure the now deceased persons and Lloyd Mutombo. He ferried the three (3) injured persons to Masvingo General Hospital and said due to the severity of the injuries they were transferred to Parirenyatwa Hospital where both deceased persons later passed on. A separate docket was opened in respect of Lloyd Mutombo who survived the injuries and also Golden Masimura who was stabbed with a knife. These matters are yet to be finalised. Sgt Musindo confirmed Accused 1, Wiklove Vurayai, was injured on the head and that he was arrested while being hospitalised at Chivi District Hospital. He confirmed that Accused 2, Munyaradzi Vurayai, and his alleged accomplices, surrendered to the police.

His evidence is largely uncontested and does not take the State case much further.

2. Lloyd Mutombo (Mutombo)

Lloyd Mutombo was at Shashe Business Centre on the day in question and at Makava Bottle Store, separate from Mudziro Bottle Store where this altercation started. His evidence is that he was just caught in the cross-fire as it were and ended up severely injured after which he was hospitalised at Masvingo General Hospital and Parirenyatwa Hospital.

Mutombo said on that day, at about 2200hrs, he left Makava Bottle Store proceeding to Mudziro Bottle Store unaware that “a war” had erupted at the latter. He said as he innocently walked Calvin Vurayai, who was in the company of Accused 1, Wiklove Vurayai and Accused 2, Munyaradzi Vurayai, confronted him demanding that he identify himself. His “crime” was that he stays in the same village with the deceased persons. Mutombo said Calvin held him by the throat and Accused 1, Wiklove, pronounced that he was to join fellow villagers whom the accused persons said they had disciplined. He said both Calvin Vurayai and Accused 1, Wiklove Vurayai, tripped him as Accused 1, Wiklove, throttled him. As he fell, Accused 1, Wiklove, hit him with an iron bar at the back of the head rendering him unconscious. Mutombo said he only gained consciousness the next day at 1600hrs when he found himself admitted in Masvingo Hospital from where he was transferred to Parirenyatwa Hospital in Harare.

Lloyd Mutombo said he does not even know why he was attacked by the accused persons.

The evidence of Lloyd Mutombo rebuts Accused 1, Wiklove Vurayai's assertion that he was unconscious throughout this incident. It also shows that the accused persons were virtually on a warpath attacking persons for no apparent reason. Lloyd Mutombo's evidence is uncontroverted and implicates both Accused 1, Wiklove Vurayai and Accused 2, Munyaradzi Vurayai.

3. Christopher Hofisi (Hofisi)

Christopher Hofisi is a fellow villager and was in Mudziro Bottle Store on that night. He said Accused 1 was hit with an iron bar on the head and fell down. He did not see the assailant. Hofisi said the first deceased, Saul Kani, rushed to fetch water and assisted Accused 1, Wiklove Vurayai, by pouring water on Accused 1. He said Accused 1, Wiklove Vurayai, regained consciousness and woke up.

Hofisi said after about 45 minutes he left Mudziro Bottle Store for the other bottle store. On his way, he was surprised to see the first deceased, Saul Kani, lying down injured; he tried to help him, but some young men came running threatening to also injure him wielding iron bars. He was unable to identify them; he fled for dear life and sought refuge in one of the bottle stores until police arrived at 0400hrs and when he came out he found out that both deceased persons and Lloyd Mutombo had been severely injured. His evidence is not challenged and it confirms that on that night Shashe Business Centre had been turned into a war zone and no one was spared or safe.

4. Golden Masimura (Golden)

As already said, he is the son of the second deceased, Pauro Stanlsus Masimura and was in Mudziro Bottle Store. Golden said after their nephew, Vincent, had left for home the accused persons started an altercation with one Thomas Ndambira, who, in turn, sought refuge behind the second deceased, Pauro Stanlsus Masimura. He said the second deceased, Pauro, tried to calm down the accused persons but Tafara Joramu assaulted the second deceased, Pauro. Golden said realising his father, Pauro Stanlsus Masimura was under attack he rushed to assist him but Accused 1, Wiklove Vurayai, Accused 2, Munyaradzi Vurayai and Calvin Vurayai blocked him. During the altercation he said Accused 1, Wiklove, stabbed him with a knife on the left shoulder and twice on the head. He showed us a healed stab wound on the shoulder.

Golden said his brother, Isheunesu Masimura, intervened to disarm Accused 1, Wiklove, and this gave Golden a chance to flee. As he fled, his father, the second deceased, Pauro, was being held by Tafara Joramu. He managed to get home after which he went to the police to report and was hospitalised.

The evidence of Golden Masimura shows that the accused persons were indeed the aggressors and not innocent victims. In fact, when Golden fled none of the deceased persons had been injured and Accused 1 had not been injured also.

5. Nyengeterai Zvavatonga (Nyengeterai)

Nyengeterai was the bar lady in Mudziro Bottle Store and well known to both deceased persons and accused persons as local persons.

She testified that her attention was drawn when Accused 1, Wiklove Vurayai, had an altercation with Thomas Ndambira and that Thomas Ndambira sought refuge behind the second deceased, Pauro Stanlsus Masimura, who inquired why there was the altercation. She said Accused 1, Wiklove, turned to the second deceased, Pauro, and assaulted him. This caused the second deceased, Pauro's sons, to rush to protect their father and a fight ensued between the accused persons and the second deceased Pauro's sons. Nyengeterai said in the ensuing melee Accused 1, Wiklove, was hit on the head with an iron bar but she did not identify the assailant. Accused 1, Wiklove, fell down and patrons fled from the bottle store.

Nyengeterai said the first deceased, Saul Kani, took water and helped Accused 1, Wiklove, by pouring water on him until Accused 1, Wiklove, gained consciousness. She remained in the bottle store fearful of the commotion which was going on outside.

Nyengeterai said the first deceased, Saul, later came into the bottle store asking for a torch saying he wanted to check on the second deceased, Pauro, who was lying down outside injured. She had no torch.

She explained how the first deceased was attacked.

Nyengeterai said as the first deceased left the bottle store Accused 2, Munyaradzi Vurayai, and Calvin Vurayai tripped him as Accused 2 held him. The first deceased fell just outside the bottle store and was assaulted as follows;

(i) Calvin Vurayai picked a big stone and hit the first deceased on the head who cried out in pain.

(ii) Accused 2, Munyaradzi Vurayai and Calvin Vurayai then used iron bars, Exhibit 1 and Exhibit 2, to assault the first deceased, Saul Kani, with severe force directing blows on the head and ribs.

(iii) Accused 1, Wiklove Vurayai, who had now gained consciousness, joined in the assault of the first deceased, Saul Kani, using the shorter iron bar which he took from Calvin Vurayai and shouted that he would kill the first deceased, Saul Kani.

(iv) That Accused 1, Accused 2 and Calvin Vurayai only stopped the assault when the first deceased, Saul Kani, was unconscious, no longer crying out, and seemingly dead.

(v) She did not witness how the second deceased, Pauro Stanlsus Masimura, was injured.

Nyengeterai refuted that Accused 1, Wiklove, was unconscious for a long time but that he gained consciousness when the first deceased, Saul, assisted him by pouring three (3) buckets of water after which he joined Accused 2 and Calvin Vurayai in attacking the first deceased, Saul. She indicated that she clearly saw how the accused persons attacked the first deceased, Saul, as the scene of crime was well illuminated by lights on the verandah of her bottle store. She only came out of the bottle store after the police came and realised that both the deceased had been severely injured all over the body - especially on the head and bleeding from the nose.

In our assessment, Nyengeterai Zvavatonga's evidence is very clear on how the first deceased, Saul Kani, was fatally injured. She was on duty and sober hence clearly perceived what happened. Nyengeterai is unbiased. She is not related to either the deceased persons or accused persons. Clearly, she has no interest in the matter. Both accused persons and the victims were patrons in her bottle store. She was an impartial witness who stated that indeed Accused 1, Wiklove Vurayai, was injured and rendered unconscious for a brief period. Indeed, she limited herself to what she perceived as she said she did not see how the second deceased, Pauro Stanlsus Masimura, was injured. To show her objectivity and sincerity she confirmed that the second deceased, Pauro's sons fought Accused 1, 2 and Calvin Vurayai with clenched fists initially inside the bottle store. It is for these reasons that we accept her evidence.

6. John Kaza (John)

John is well known to both deceased persons and accused persons. He too was in Mudziro Bottle Store and corroborates, in material respect, Nyengeterai Zvavatonga's evidence.

John said after Thomas Ndambira had an altercation with the accused persons and Calvin Vurayai he sought refuge behind the second deceased, Pauro Stanlsus Masimura and that Calvin Vurayai assaulted the second deceased for inquiring what was wrong. This resulted in the second deceased Pauro's sons, Golden, Simbarashe and two others to intervene resulting in a fist fight with the accused and Tafara Joramu. He said during the fight the second deceased's son, Golden, was stabbed with a knife inside the bottle store and many patrons fled out of the bottle store. He realised Accused 1, Wiklove Vurayai, had been injured and was lying on the verandah of the bottle store. He did not see the assailant. He said the first deceased, Saul Kani, administered first aid by pouring water on Accused 1, Wiklove, as the second deceased's sons were still fighting with Accused 2, Calvin Vurayai and Tafara Joramu. The second deceased, Pauro, also got out of the bottle store. John said when he got out of the bottle store he found the second deceased, Pauro, lying near a shop injured and that Accused 2, Munyaradzi Vurayai and Calvin Vurayai were holding one Isheanesu saying they wanted to discipline him and cause him to lie near his father, the second deceased, Pauro Stanlsus Masimura - already injured. John said he intervened and told Accused 2, Munyaradzi Vurayai and Calvin Vurayai to let go Isheunesu and that Isheunesu managed to flee. John said Accused 2, Munyaradzi Vurayai and Calvin Vurayai were incensed by his intervention and turned to John, who, in turn, fled from the menacing brothers and hid behind a grinding mill. He said from this vantage position he witnessed the conduct of the accused persons as follows;

(a) Accused 1, Wiklove Vurayai, who had gained consciousness, teamed up with Accused 2, Munyaradzi Vurayai, Calvin Vurayai and Tafara Joramu to assault the second deceased, Pauro Stanlsus Masimura who was already lying down injured; they took turns using iron bars...,. Severe force was used and blows were directed at the second deceased's head and chest.

(b) Accused 2, Munyaradzi Vurayai, picked a very big stone and hit the second deceased with it.

(c) The second deceased groaned in pain and unable to get up and John Kaza was scared to intervene.

(d) John Kaza said he also realised that the first deceased, Saul Kani. had been injured as he said the accused persons also moved to where the first deceased, Saul Kani, lay injured and further assaulted him with iron bars and would interchange the assault between the first deceased and the second deceased persons. The blows were indiscriminate and delivered with severe force.

(e) As John Kaza was hiding he saw a passer-by, Lloyd Mutombo, coming from Makava Bottle Store oblivious of what was going on and he was held by Accused 1, Wiklove Vurayai and assaulted with an iron bar. Lloyd Mutombo was left for dead as the accused persons resumed the assault on the deceased persons.

(f) John Kaza said he telephoned the police fearful of the deceased persons' lives and when police later came he realised both deceased persons had severe head injuries.

In our assessment, John Kaza gave clear and free flowing evidence. He has no interest in the matter. There is nothing to suggest he was unable to see what happened. His testimony rebuts Accused 1's evidence that he remained unconscious throughout this incident but that Accused 1, Wiklove Vurayai, participated in the assault which John Kaza said lasted for an hour. He also dismissed as untrue that Accused 2, Munyaradzi Vurayai carried Accused 1, Wiklove Vurayai, but participated in the assault.

7. Isheunesu Masimura (Isheunesu)

Isheunesu is the son of the second deceased (Pauro Stanlsus Masimura) and a sculptor. Isheunesu said when he got into Masimure Bottle Store his father, the second deceased (Pauro Stanlsus Masimura) wanted to discuss certain family issues with him but failed as the accused persons had an altercation with their nephew, Vincent, over $1= Calvin Vurayai said he was owed. The second deceased (Pauro Stanlsus Masimura) told Vincent to go home and Vincent complied.

Isheunesu Masimura said moments later the accused persons had another altercation with one Thomas Ndambira whom they assaulted. Thomas Ndambira sought refuge behind the second deceased (Pauro) who inquired why the accused persons were violent. He said the accused persons turned to the second deceased (Pauro) manhandling the second deceased. This caused his brothers, Simbarashe, Golden and nephew to intervene to restrain Tafara Joramu resulting in a fist fight between the accused persons and Isheunesu's relatives. He said both Accused 1, Wiklove Vurayai and Tafara Joramu had knives and Accused 1, Wiklove, stabbed Golden on the left shoulder and head. Isheunesu then intervened to restrain Accused 1, Wiklove, and managed to rescue Golden who was severely injured. He decided to take Golden home but realised their father, the second deceased, had remained behind hence he came back. When he returned to the bottle store he saw Thomas Ndambira hitting Accused 1, Wiklove, with an iron bar on the head and Accused 1, Wiklove, fell down unconscious. His father, the second deceased, called for help and the first deceased, Saul Kani, poured water on Accused 1, Wiklove, who, moments later, regained consciousness and got up. Isheunesu then explained how his father, the second deceased (Pauro), was attacked as follows;

(i) He said Accused 2, Munyaradzi Vurayai, Calvin Vurayai, and Tafara Joramu encircled or surrounded the second deceased, Pauro Stanlsus Masimura, saying he was not clever by pretending to be a good Samaritan in asking for help in respect of Accused 1, Wiklove Vurayai and had caused the accused persons not to recover their $1= from Vincent.

(ii) Accused 2, Munyaradzi Vurayai hit the second deceased with a fist.

(iii) Calvin Vurayai delivered a blow with a short iron bar causing the second deceased to fall down and delivered further several blows.

(iv) Tafara Joramu picked a big stone and hit the second deceased, Pauro Stanlsus Masimura, in the head.

(v) Realising that the life of his father was in danger, Isheunesu Masimura pleaded with the accused persons to stop the savage attack but he was held by the accused persons who said he too was to be their prey. He was hit with a brick on the back and hands but John Kaza arrived and intervened which enabled him to flee.

(vi) Isheunesu fled to the bottle store and called the first deceased, Saul Kani, to come and possibly help the second deceased and they both returned to where the accused persons and the second deceased, Pauro Stanlsus Masimura, were.

(vii) The accused persons immediately attacked the first deceased, Saul Kani, with iron bars, exchanging the iron bars amongst themselves vowing to also kill the first deceased, Saul Kani.

(viii) Isheunesu realised he was helpless and he fled to make a report to the police who returned later to the scene with him.

Isheunesu said the second deceased, his father, had been severely injured as he could not even recognise him as his face and head were swollen. The first deceased, Saul Kani's head was also swollen. Lloyd Mutombo was also lying injured. All were helpless, unconscious, and were ferried to hospital.

Despite that Isheunesu Masimura is a son to the second deceased, Pauro Stanlsus Masimura, and regarded the first deceased, Saul Kani, as his nephew, he gave a very clear and graphic account of what happened. Indeed, he was emotional and broke down as he narrated how his father, the second deceased, Pauro Stanlsus Masimura, was attacked. We appreciate and understand his emotional disposition. This was not, in our view, some feigned demeanour but genuine emotional distress.

Isheunesu was truthful and fair minded as he admitted and revealed that Accused 1, Wiklove Vurayai, was also attacked with an iron bar and lost consciousness - albeit for a brief period. He was clear on how the first deceased, Saul Kani, was attacked and how the assault on his father, the second deceased, unfolded. He revealed that the accused persons' families paid for transport costs of ferrying both deceased's bodies from Harare for burial in Chivi and paid a beast to each deceased's family for relish to be used at both funerals. All in all, we assessed Isheunesu to be a calm, clear and truthful witness.

Our findings are that the version given by both accused persons is false. They are both clearly implicated by the State witnesses who materially corroborated each other. It is untrue that Accused 1, Wiklove Vurayai, was perpetually unconscious and did not know how the now deceased persons were fatally injured. The evidence of Accused 2, Munyaradzi Vurayai, is false in how both deceased persons were injured. In fact, it is so incredible that no reasonable court can accept such a poorly thought out account.

The fact of the matter is that both Accused 1, Wiklove Vurayai, and Accused 2, Munyaradzi Vurayai assaulted both the first deceased, Saul Kani, and the second deceased, Pauro Stanlsus Masimura, in the clear manner explained by the eyewitnesses. The assaults were both brutal and prolonged rendering both victims unconscious and severely injured. Both deceased had to be hospitalised at our highest referral public hospital. They both, nonetheless, lost their lives. The accused persons used lethal weapons..., iron bars, together with stones and farm bricks. They delivered several blows indiscriminately targeting vulnerable parts of the deceased persons' bodies including the head and ribs. It is clear that both accused persons acted in common purpose as they took turns to assault their victims who were helpless and never fought back. The accused persons vowed to kill both deceased persons and left them for dead.

While we are hard pressed to find that the accused persons contravened section 47(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Criminal Code) it is clear that they realized that there was a real risk or possibility that their conduct may cause death but continued to engage in that conduct despite the risk. We accordingly find both accused guilty of murder as defined in section 47(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Criminal Code).

VERDICT: Both accused guilty of contravening section 47(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] – Murder with Constructive Intent in respect of both counts.

Initially, both accused were charged together with one Shepherd Ziwacha (Shepherd) but Shepherd is now at large. The accused persons are facing a charge of murder as defined in section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The charge is that on 7 July 2010, at Mufakose Beerhall in Triangle, one of the accused or both of them caused the death of Coster Chiwande by kicking him all over the body with booted feet.

Both accused persons reside in Mufakose B in Triangle. The now deceased was a member of the ZRP attached to the Support Unit and was based at Buchwa Camp. At the material time he and other details had been deployed to Triangle. The now deceased's rural home is Ganyani Village, Chief Sadza in Shurugwi.

On 7 July 2010 the now deceased and a fellow workmate, Matambudziko Maluleke (Maluleke), were off duty and in civilian attire in Triangle when they decided to proceed to Mufakose beerhall to drink beer at about 16:00hrs. The accused persons were also at the same beerhall with other patrons drinking beer watching soccer until the time the beerhall closed at about 23:00hrs.

The State alleges that as the beerhall was about to close the now deceased and Matambudziko Maluleke attempted to effect a trap arrest on one Shepherd Ziwacha, an alleged known dagga dealer. It is alleged that Shepherd fiercely resisted the arrest and elicited the assistance of other beer patrons. It is said during this melee some unknown patrons snatched the packet of dagga Matambudziko Maluleke had been handed over by Shepherd Ziwacha. It is further alleged that the beer patrons pounced on the now deceased and Maluleke. The accused persons are alleged to have joined in the assault which led to the now deceased's death.

In his Defence Outline, Accused 1, Luckson Madunga (Luckson) stated that although he was at the said beerhall he did not assault either the now deceased or Matambudziko Maluleke. In his confirmed warned and cautioned statement…, Accused 1, Luckson, said he witnessed a fight between Shepherd and one Maluleke who identified himself as a police officer. He said the two pushed each other until they got to a nearby market. Accused 1, Luckson, said as he left for home he saw some clothes, a jacket and t-shirt on the ground belonging to Shepherd. Accused 1, Luckson, said he then picked the clothes and took them to Shepherd at the market. At the market Maluleke was busy identifying himself as a police officer producing his identity card to Shepherd. Accused 1, Luckson, said he then left the scene and did not see the now deceased at all.

On the other hand, Accused 2, Watson Mutovori |(Watson), in his Defence Outline said Matambudziko Maluleke fought Shepherd Ziwacha until the two got out of the beerhall where Accused 2, Watson, restrained them. Accused 2, Watson, said thereafter he went home leaving Maluleke and Shepherd going towards a nearby market. He too denied assaulting the now deceased. This is the same version Accused 2, Watson, gave in his confirmed warned and cautioned statement…, and that as he left Maluleke had produced his identity card saying he was a police officer. Accused 2, Watson, further said, in his evidence, that he is implicated in this matter simply because he was drinking beer with his colleague, Shepherd Ziwacha, also an alleged accomplice in this matter.

The post mortem..., was produced by consent. Accused 1 sought, through counsel..., to belabour the point that the pathologist said the circumstances of the offence, as per the police report, were that the now deceased was attacked or assaulted by robbers. To his mind, Accused 1 believes this is at war with the State case and is fatal to the charge preferred. The Accused further contends that both the police and the pathologist were not called to explain this apparent contradiction that the now deceased was fatally injured during the course of a robbery.

While this may have been prudent for the State to do the totality of the evidence before us is clear that the now deceased was assaulted during a brawl at the beerhall on the day in question. Further, Accused 1, Luckson Madunga's defence is simply that he did not take part in the assault of the now deceased. To our minds the police or the pathologist may have simply made an error in summarising the alleged circumstances of the offences which error is cured by evidence led during the trial. Further, the cause of the now deceased's death is not in issue. He suffered from pneumonia and had head injuries both arising from an assault. At the end, Accused 1, Luckson Madunga's protestations are inconsequential. The simple task before us is whether Accused 1, Luckson Madunga (Luckson) and/or Accused 2, Watson Mutovori (Watson), fatally assaulted the now deceased.

The evidence of Dr Estrada, the pathologist, Tendai Masvinyangwa, Dr W. Phiri, and D/Cst Mupedzi was all admitted in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07].

As already said, Dr Estrada examined the now deceased's remains on 15 July 2010 and compiled…, the post-mortem report which states the now deceased's cause of death. As per that report, there is clear evidence of assault noted like trauma on the temporal right area, bruises on left arm and right side of the face.

Dr W. Phiri, of Chiredzi District Hospital, attended to the now deceased in the early hours of 8 July 2010 and noted the following;

(i) The now deceased was smelling of alcohol.

(ii) The now deceased was unconscious.

(iii) The now deceased had bruises on his body – notably, the face.

(iv) He put the now deceased on a drip and inserted a catheter.

Tendai Masvinyangwa, a nurse at Chiredzi District Hospital, also attended to the now deceased who had been brought from Collin Saunders Hospital in Triangle after an alleged assault. This nurse observed that the now deceased exuded smell of alcohol, was unconscious with bruises on the head which was also swollen. It is therefore clear that the now deceased had been severely injured as he was unconscious. It is common cause the now deceased was transferred to Parirenyatwa Hospital where he passed on on 14 July 2010.

The evidence of D/Cst Mupedzi is that she witnessed the recording of both accused confirmed warned and cautioned statements and also indications they made at the scene of the crime.

The State led viva voce evidence from Matambudziko Maluleke (Maluleke), Newyear Unganai (Unganai), Cst Darlington Dukwendo, and another detail, Peter Taurai Chitsanzara.

In our assessment, the evidence of both police officers is largely immaterial. Cst Dukwendo attended the scene on the day in question and found only the now deceased, Matambudziko Maluleke and Newyear Unganai present. He was advised of the now deceased's assailants by name by Maluleke and Unganai as the now deceased could no longer talk. He noted head injuries on the now deceased and ferried him to Collin Saunders Hospital in Triangle. The other detail, Peter Taurai Chitsanzara, later attended the scene during investigations and his evidence is not useful.

The critical evidence in this case is that of Matambudziko Maluleke (Maluleke) and Newyear Unganai (Unganai) who allege were eye witnesses to the now deceased's assault. We turn to that evidence.

Matambudziko Maluleke (Maluleke)

Matambudziko Maluleke (Maluleke), a fellow workmate of the now deceased, gave background information leading to the attack on the now deceased. He said as they were at the Mufakose beerhall they gathered information that one Shepherd Ziwacha was selling dagga. They were shown the said Shepherd whom they kept under surveillance as he moved in and out of the beerhall. They were drinking beer until the time the beerhall was about to close.

Maluleke said he and the now deceased hatched up a plan to trap Shepherd with Maluleke posing as a buyer of dagga. At around 22.00hrs Maluleke called Shepherd outside the beerhall and inquired if he could be sold a large quantity of dagga. Shepherd fell for the trick but he was only left with about 1kg of dagga, which he offered for $15=.

Maluleke said he pretended to be taking out the cash to buy dagga but pulled out his police identity card and pronounced to Shepherd that he was under arrest for selling dagga. He held Shepherd by the belt. At that point he said all hell broke loose.

Maluleke said Shepherd fiercely resisted the arrest and felled Maluleke to the ground. The two rolled on the ground as Maluleke kept a tight hold on his prey and Shepherd trying to wrestle free. He said as they struggled outside the beerhall the prized exhibit, being the packet of dagga, was snatched from Maluleke by some unknown person. By then, a crowd hostile to Maluleke's efforts had gathered and threatened to assault him. Sensing the impending danger, he managed to bite Shepherd on the hand as Shepherd was now holding on to Maluleke. Due to pain inflicted Shepherd released him.

Maluleke said the now deceased, who was close by, inquired from the people present as to who had snatched away their prized exhibit, the dagga. He said this is how the now deceased's woes started and unfolded the follows;

(i) Shepherd Ziwacha delivered a fist on to the now deceased who fell down.

(ii) Accused 1, Luckson Madunga (Luckson), joined and started to kick the now deceased with booted feet as the now deceased lay on the ground.

(iii) Accused 2, Watson Mutovori also joined in the assault kicking the now deceased.

(iv) The mob, inclusive of Accused 1 and Accused 2, was shouting that Matambudziko Maluleke and the now deceased wanted to masquerade as police officers and that if they were indeed police officers they could not reap when they did not sow by getting dagga for free.

(v) Maluleke said only Accused 1, Luckson, Accused 2, Watson, and Shepherd assaulted the now deceased for about 2–3 minutes with booted feet as the now deceased lay outside the beerhall at a well-lit area.

(vi) Maluleke said realising that the now deceased was in grave danger he restrained Accused 1, Luckson, and a security guard present restrained Accused 2, Watson. By then, some people present were shouting the names of Accused 1, Luckson, Accused 2, Watson, and Shepherd saying they had killed the now deceased. At that stage all the three assailants fled.

(vii) Maluleke said the now deceased had been gravely hurt. He could hardly breathe. The security guard called for a motor vehicle which ferried the now deceased to Colin Saunders Hospital.

Matambudziko Maluleke (Maluleke) insisted that the now deceased's assailants were Accused 1, Luckson Madunga (Luckson), Accused 2, Watson Mutovori (Watson), and Shepherd Ziwacha (Shepherd) as a mob of about 20 people just watched. He disputed that the mob joined in the assault.

The evidence of Matambudziko Maluleke (Maluleke) firmly implicates the accused persons in the assault of the now deceased. Indeed, Maluleke had consumed alcohol just like the accused persons but he had a full appreciation of what happened. His recollection of events in sequence cannot be faltered. Although this was at night he explained that the area was well lit from lights at the market and beerhall. This was not seriously refuted by the accused persons. We are at pains to find why Matambudziko Maluleke would falsely implicate the accused persons who were strangers to him and not drug peddlers like Shepherd Ziwacha. In that vein we are inclined to accept his evidence.

Newyear Unganai (Newyear)

Newyear Unganai was a security guard deployed at Mufakose beerhall on the night in question. He is well known to both accused persons and Shepherd Ziwacha who stay in the same compound with him.

Unganai testified on how the now deceased was fatally assaulted. He said after the soccer match patrons trooped out of the beerhall and he and the cashiers started to lock up the premises. As he was closing one of the gates he observed the following;

(a) Shepherd Ziwacha pushed the now deceased who fell down and started to kick him with booted feet.

(b) Accused 1 and 2 joined the assault also kicking the helpless now deceased who was visibly more drunk compared to Matambudziko Maluleke (Maluleke).

(c) A group of about 15 people gathered watching the drama and were shouting that Accused 1, Luckson Madunga (Luckson), Accused 2, Watson Mutovori (Watson) and Shepherd Ziwacha (Shepherd) were killing the now deceased in the manner they assaulted him.

(d) Matambudziko Maluleke (Maluleke) then held one of the accused persons after which the assault stopped.

(e) Newyear Unganai realised the now deceased had been severely injured as he was unconscious and bleeding from the head. He called for a motor vehicle to ferry the now deceased.

(f) Newyear Unganai said only Accused 1, Luckson Madunga (Luckson), Accused 2, Watson Mutovori (Watson) and Shepherd Ziwacha (Shepherd) assaulted the now deceased. The other people just watched. He said the blows were directed on the head and the ribs.

In our assessment, Newyear Unganai gave his evidence well and materially corroborated Matambudziko Maluleke. The only notable contradiction between them we observed is that Newyear Unganai denied that he restrained Accused 2, Watson Mutovori as per Matambudziko Maluleke's evidence. He dismissed suggestions that he harboured a grudge against any of the accused persons over some kudu meat.

Newyear Unganai was sober and on duty. He could not have failed to see what transpired at his premises leading to the fatal injuries inflicted on the now deceased. It is indeed preposterous that he would falsely implicate the accused persons over some kudu meat.

The truth of the matter is that the accused persons indeed assaulted the now deceased in the clear manner explained by both Matambudziko Maluleke and Newyear Unganai. They acted in common purpose and in concert. They used booted feet directing the blows to the head and upper part of the body. Fatal injuries were inflicted as the now deceased was rendered unconscious. We however do not believe that the accused persons formulated the requisite intention to kill the now deceased. They were simply negligent in the manner they assaulted him. In the result, we find them not guilty of murder but they cannot escape liability on a permissible verdict of culpable homicide as defined in section 49 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

VERDICT: Both accused. Not guilty of murder but guilty of contravening section 49 of Criminal Law (Codification and Reform) Act [Chapter 9:23] – Culpable homicide.