The two accused persons are jointly charged with the offence of murder as defined in section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].The State alleged, in the indictment, that the two accused persons, acting with an intention to kill, assaulted the late Radolph Cherekedzai Gora with ...
The two accused persons are jointly charged with the offence of murder as defined in section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
The State alleged, in the indictment, that the two accused persons, acting with an intention to kill, assaulted the late Radolph Cherekedzai Gora with open hands and tree logs at about 9:00pm on 29 May 2015 at Chitsungo Village, Chief Chitsungo, Pfungwe thereby causing his death.
Both accused persons pleaded not guilty to the charge.
The summary of the State case, which was produced as Annexure A, outlined that on the fateful night, the deceased was at Victor Chitsungo's homestead where he intended to buy tobacco. Victor Chitsungo suspected that the deceased had an extra-marital affair with his wife, Naome Ahombile, who was present at the homestead. Victor Chitsungo summoned some villagers to his homestead intending to report to them that he had caught the deceased at his homestead as well as his suspicions.
The accused persons were later to arrive at Victor Chitsungo's homestead around 10:00pm. Other villagers were then about to leave the homestead when the two accused arrived in the company of one Tichaona Tichabwa. The two accused then assaulted the deceased; with the first accused using his open hands several times on the face and the second accused using a munhondo tree log and striking the deceased with it on the buttocks several times.
The accused persons, who would not be restrained, continued to assault the deceased until he fell unconscious.
The first accused further assaulted the deceased with fists on the head and face and also with two sticks plucked from a musawu tree at the deceased's residence. The Outline also stated that the first accused threw the deceased into a fire whilst the second accused hit the deceased with booted feet several times on the head.
The deceased is alleged to have succumbed to his injuries in hospital on 28 June 2015.
The State Outline summarizes what the State alleges to have happened. At least four (4) paragraphs have been devoted to the summary and it covers a whole page. After the summary, the State Outline then lists nine (9) witnesses with summaries of what each such witness will testify to being outlined….,.
Reverting to the case before the court, the State read out the summaries of the evidence of the proposed State witnesses. The accused persons Defence Outlines were also read into the record. The Sate summary was admitted as Annexure “A”. The Defence Outline for Accused 1 was admitted as Annexure B, and that of Accused 2 as Annexure C.
It is not proposed to repeat the contents of the defence outlines, and, indeed, of the summaries of the State witnesses. The documents and their contents are part of the record.
The Prosecutor led evidence from five (5) witnesses and applied for the admission of the evidence of four (4) other witnesses as outlined in the summaries of their evidence and the defence counsels on behalf of the accused persons admitted the evidence.
The evidence on which the court heard viva voce was from the following witnesses, viz;
(i) Doctor Tsungai Victor Jawangwe;
(ii) Naome Ahombile;
(iii) Nhamo Chitsungo;
(iv) Winne Chekeredzayi; and
(v) Victor Chitsungo.
The evidence which was admitted related to summaries of the evidence of witnesses, Kudakwashe Mubvongi, Casper Kamedza, Givemore Chiorese and Shadreck Mavuka. The admitted evidence, as outlined in the summary of the State case, was as follows:
Kudakwashe Mubvongi: He was summoned to the scene of the altercation by Naome Ahombile, who, in turn, had been sent to call the witness by Victor Chitsungo.
On arrival at the scene, he found Victor Chitsungo holding the deceased by his jacket. He advised Victor to refer his dispute with the deceased to the Village Head or Chief to deal with. He remained at the scene until the Village Head and others arrived. He was still at the scene when the two accused persons arrived thereat.
He witnessed the two accused persons attack the deceased.
When he tried to restrain the second accused from further assaulting the deceased with a log, the second accused turned against him and kicked the witness on the groin forcing the witness to flee from the scene.
Casper Kamedza: He accompanied Nhamo Chitsungo, the Village Head, to the scene and it was accepted that his evidence was corroborative of that of Nhamo Chitsungo.
Givemore Chiorese and Shadreck Mavuka: They are members of the Zimbabwe Republic Police. The former was the arresting detail who also attended the scene of the alleged assault on the deceased and he referred the deceased to the hospital for treatment.
He recovered the various exhibits which were produced in court. He arrested the accused person.
The latter, that is, Shadreck Mavuka was the investigating officer and compiled the case docket.
No comments are really necessary with regards the admitted evidence of the witnesses already listed. Note is however made from the evidence of Kudakwashe Mubvongi that the accused persons both assaulted the deceased and that the second accused could not be restrained, but, instead, attacked the witness by kicking him in the groin resulting in the witness removing from the scene.
Doctor Tsungai Victor Jawangwe: Is stationed at Parirenyatwa Hospital. He speaks with a stammer but what he said was audible. His qualifications are MBCHB; M. Med Histopathology and Diploma in Forensic Medicine: (Pathology).
He conducted the autopsy on the deceased on 2 July 2015 following the deceased's death on 28 June 2015 at the same hospital. The highlights of his evidence, which he explained, are contained in a report which was produced as exhibit 1. He recorded the deceased as being an African male, 71 years. The background information given to him was that the deceased had been assaulted on 29 May 2015. His external examination noted the following:
1. Healed linear lacerations 25–30mm long and 2mm wide on both the left and right sides of the body.
2. Healed lacerations on right hand 9mm above the wrist.
3. Three (3) medial wounds 55mm x 3mm.
4. Wounds 60mm x 45mm above the buttocks.
5. 15.8cm wound above the head.
6. Lateral midline wounds 60mm x 7mm wide.
7. Circular healing wound 19cm above midline on right leg.
8. Healing bruise 16cm above mid-line on left leg.
His internal examination revealed the following on the head, brain, skull, and thorax:
9. Intramuscular right temporal muscle haermorrage on left side 45mm x 28mm.
10. Subdural haemotoma on the skull.
11. Swollen right cerebral hemisphere with shift of midline to the left.
12. Large liquefied cystic cavity on right frontal lobe 50mm diameter.
13. Inter–muscular haematoma in chest muscles 60mm x 40mm.
14. Intermuscular haematoma on 1st, 2nd 3rd intercostal spaces.
His conclusion, as to the cause of death, was that the deceased died from complications of blunt force induced head injury. He said that the injuries were consistent with the use of a linear object, and, further consistent with the use of a stick. He agreed that a fall could also cause head injuries. The other lacerations were unlikely to cause death. Subdural haematoma was the immediate cause of death because it consisted in bleeding of veins between the brain and the cranial space.
He said that aged people easily succumbed to such injuries because the brain will have shrunk and easily shakes within the cavity where it sits.
He discounted HIV as a cause of death nor as being a contributory factor.
The evidence of the doctor was not really tested nor seriously disputed. The court accepted, without reserve, that the deceased met his death through complications which resulted from injury to his head as a result of the application of blunt force by a linear object.
Naome Ahombile: The court approached the evidence of the witness with caution. This was so because she engaged in secret conversation with the deceased.
She was telephoned by the deceased and asked whether she was alone and if her husband was away and she confirmed. She agreed to meet the deceased. She did not report to anyone the deceased's approaches to her. Her husband arrived whilst she had welcomed the deceased at night and after he had made prior arrangements to meet with her.
Such a witness would not surprisingly seek to cast herself as an innocent participant.
The court could not however make a conclusive finding that she was in love with the deceased nor that the two had engaged in a sexual act. The court, however, raised its eyebrows on the nature of the two's relationship. The court did not accept the seeming insinuation by the witness that she found the deceased at her homestead by accident. The probabilities point to an arranged meeting between the witness and the deceased which, however, was unexpectedly disturbed by the witness's husband.
The court accepted that the deceased was caught unexpectedly at the scene and hence ended up creating the story that he was looking for tobacco to buy; yet the tobacco would have been available at the shops being a place where the deceased knew and had given out as his destination when he bid his wife farewell saying that he was going to watch soccer on television at the Business Centre.
Despite its mistrust of the witness' designs with the deceased, the court accepted the witness evidence that the assault upon the deceased was perpetrated by the two accused persons and that the two appeared drunk and would not be deterred. The court accepted the witness evidence that the first accused slapped the deceased and the second accused kicked the deceased with booted feet and also used exhibit 2, the munondo stick, to assault the deceased.
Exhibit 2, as a matter of fact, is linear in shape.
The court accepted her evidence that the second accused assaulted the deceased with exhibit 2 indiscriminately and not on one particular area of his body.
The evidence of the witness, with regards the assault upon the deceased, was corroborated by Nhamo Chitsungo, the Village Head, and by Victor Chitsungo.
Nhamo Chitsungo: His evidence largely corroborated that of Naome Ahombile, the last witness, as far as he described how the assault was perpetrated by the accused persons. It is not necessary to go through it in any detail.
He was called to the scene and was given a report on how the deceased had been found by Victor Chitsungo at his homestead and failed to give a convincing explanation about his intentions. The deceased had agreed to compensate Victor for invasion of his privacy with the matter to be talked over at the Village Court on the following day.
The witness had no idea that the deceased had been seriously injured and only became aware after he sent his messenger to summon the deceased to the Village Court so that the previous night's events could be concluded.
The witness removed from the scene to escape threats of violence by the accused persons. Victor did the same. The accused persons would not be restrained. The second accused was more violent than the first accused. The second accused used a weapon, exhibit 2, to assault the deceased.
Exhibit 2 is 128cm long, 3cm in diameter at the thick end and 1–5cm in diameter at the thin end.
The witness said that exhibit 2 was applied to the accused's buttocks whilst he was now prostrate. This therefore means that the deceased fell because of the assault or in the process of being assaulted because it is common cause that when the accused persons arrived at the scene, the deceased was seated as confirmed by the accused persons' own admission.
Victor Chitsungo's evidence also confirmed that of the other witnesses, that the accused persons never gave the deceased a chance to defend himself. They just pounced on him and continued to assault him despite his pleas to them that they were injuring him and killing him.
The court accepted the evidence of this witness that the accused persons would not be restrained - especially the second accused. The evidence of this witness, read properly, is materially similar to that of the other State witnesses. Nothing new arises from its analysis and any differences in the evidence relate to immaterial points or aspects. This is to be expected when the scene is mobile.
The last witness, Winnie Cherekedzayi, gave a chilling account of how the accused persons assaulted the deceased at his homestead using their hands, kicking him, and using switches produced by consent.
It was not denied, by the accused, that the switches were plucked from a tree at the deceased's residence. The accused persons however denied using the switches. The witness testified to the deceased being thrown into a fire and being unable to walk, stand, or talk. The deceased was almost stripped naked with the accused persons having taken possession of his jacket, shoes, and hat which they were putting on.
The witness presented a picture of an honest witness and her evidence as to the deceased's condition was corroborated by the fact that the deceased had to be taken to hospital and ended up in Harare. The deceased could not attend at the police station to record statements and failed to show up at the Village Court.
The State closed its case.
The evidence of the accused persons and that of State witnesses are not at variance on material points.
In their Defence Outlines, they accept or admit perpetrating an assault upon the deceased. Their motives for doing so, in the case of the first accused, lies in his grudge with the deceased whom he believed to have caused the breakup of his marriage and also infected him with HIV. As for the second accused, his motive was that he wanted to reprimand the deceased for his wayward ways of proposing love to other men's wives and setting a bad example.
This case is not difficult to determine because the material facts are common cause.
The two accused persons assaulted the deceased who did not retaliate and was defenceless imploring them to stop their assault because they were injuring him. The accused persons were not deterred. Accused 1 used his hands and a switch at Victor Chitsungo's home and the deceased's home respectively. Accused 2 used his booted feet and a munondo stick, exhibit 2, although he says that he used a mususu switch. It is not necessary to determine whether the switch he used was plucked off a mususu or munondo tree. Whichever tree it came from, it was sufficient to inflict some injuries noted upon the deceased insofar as they were consistent with the use of a linear object.
From the testimony of the witnesses, however, the court records that it preferred the State evidence as to the use of exhibit 2 by Accused 2.
The accused persons behaved like animals. They took it upon themselves to inflict punishment upon the deceased. They were not the injured parties and did not even have full information on what sin or wrong the deceased had committed. They, in typical style of village bullies, attacked the deceased. The assaults were prolonged. The deceased's clothes, like the shirt, were torn to tatters. The jacket was torn. The deceased had his shoes removed. His spectacles were damaged. His watch was damaged.
He was thrown into a fire.
The assaults were vicious in magnitude. The assaults ended only when it was clear that the deceased was helpless.
This is the evidence before the court.
The first accused has sort to minimize the extent of his involvement and the nature of assault he inflicted upon the deceased. The second accused has similarly done the same.
The accused persons were poor in demeanor as witnesses.
The first accused was not entirely honest with the court. He however ended up apologizing for his conduct. The second accused was such a poor witness to the extent that the court had to intercede to bring him to answer questions in his interest.
He showed no signs of remorse and sought to portray State witnesses as ganging up against him. Whilst he testified that he had had an altercation with the Village Head, hence suggesting a motive for the Village Head to lie against him, he could not advance any motive for the other witnesses who corroborated the Village Head to also lie against him.
In the court's view, there are only two issues for the court to answer. These are;
(1) Whether or not the accused acted in common purpose; and
(2) Whether, if they acted with a common purpose, they foresaw that their actions could result in serious injury or the death of the deceased.
The law on common purpose is well settled; see S v Safatsa & Others 1988 (1) SA 868 (A); S v Mgedeza & Others 1989 (1) SA 687; S v Mzwempi 2011 (2) SALR 227; S v Madzogo HH397-15.
The requirements can be said to be as follows:
There must be evidence adduced to prove that:
(i) Each accused was present at the scene of the offence when it was committed.
(ii) Each accused must have been aware of the commission of the offence.
(iii) Each accused must have intended to make common cause with the other person or persons committing the offence.
(iv) Each accused must have manifested his sharing of common purpose with the other by performing some act of association with the conduct of the other.
(v) Each accused must have had the mens rea to commit the offence.
JONATHAN BURCHELL, Principles of Criminal Law, 3rd ed, (2008)…, writes:
“Where two or more people agree to commit a crime or actively associate in a joint enterprise, each will be responsible for the specific criminal conduct committed by one of their number which falls within their common design.”
See also section 196 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
In this case, both accused were aware that they were committing an offence of assaulting the deceased. They associated in the assault and intended to achieve the same result, being the application of unlawful force on the deceased. They had the necessary intention to apply this force and their voluntary intoxication, considered against their actions, did not negative mens rea.
On the second enquiry, as to whether or not the accused foresaw the possibility, subjectively, that death could result from their conduct, if not serious injury, the answer is in the affirmative.
The accused persons perpetrated a sustained brutal assault upon the deceased and held him hostage. He was defenceless. One of them used a weapon during the initial assault, that is exhibit 2, and the other used weapons, being two switches at the deceased's home. The assaults, contrary to what the deceased stated, were applied indiscriminately on the deceased.
The court does not accept the accused's explanation that they picked up and chose where on the body of the deceased to direct their blows. The evidence of choice of points on the body where to land blows is inconsistent with the volatility of the situation. The possibilities certainly do not favour a finding that the accused persons were composed to the point of choosing areas on the deceased to direct their blows.
They tore the deceased's clothes. The deceased was thrown into the fire. He pleaded with the accused persons that they would kill him. The deceased persons were not deterred. They continued to assault the deceased until he was helpless and he had to be assisted into his bedroom not talking - and never to talk again.
The accused's person's evidence, that they walked with the deceased to his home normally, does not accord with the rest of the objective evidence adduced and accepted by the court as well as the probabilities.
When a person perpetrates an unlawful, sustained, and indiscriminate assault upon another using either his hands, fists, booted feet, or, as in this case, weapons, such person, if he perpetrates such an assault knowingly, must surely subjectively foresee the possibility that his assault might cause serious bodily harm if not death.
The manner of death is not important because people are made differently. In any event, the thin skull rule provides that you take your victim as you find him.
It is the finding of the court that the accused were aware of and foresaw the risk or possibility that their actions could result in the death of the deceased by infliction of mitigated injury upon him and continued to engage in that conduct. The verdict of the court is therefore that:
Each accused is found guilty of the murder of the deceased under section 47(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
