MATHONSI J: The 6 accused persons are charged with murder
the allegations being that on 22 March 2009 at Kambasha Business Centre and at
Mutero village, Chief Nemangwe Gokwe South, they unlawfully and with intent to
kill, assaulted Moses Chokuda, then aged 25, all over the body with fists, logs
and booted feet thereby causing injuries which led to his death.
The allegations are that at about 1200 hours on the fatefully day, Abel
Maposa (Accused 2), discovered that Farai Sanders Machaya's (Accused
1) shop at Gokwe Centre had been broken into.
Accused 1 and 2 then teamed up with Edmore Gana (Accused 3) and Bothwell
Gana (Accused 4) as well as with Obert Gavi (Accused 5) and Tirivashoma
Mawadze (Accused 6). They went to
Isheunesu Sibanda's homestead as he was their prime suspect, he having been
employed at Accused 1's shop as a security guard and had been on duty the night
of the burglary.
They allegedly took Sibanda in their vehicle and assaulted him until he
confessed to the commission of the offence and implicated the deceased, Moses
Chokuda, as his accomplice.
It is alleged that accused 1 to 4 then picked up the deceased at his
homestead, got him in their vehicle and assaulted him with open hands, booted
feet and logs all over the body and he sustained a swollen face. He was made to confess as well telling the
accused persons that the stolen goods had been taken by Leroy Ndukwana to his
home in the Sizanani area under Chief Nemangwe.
It is said that the accused persons then proceeded to Ndukwana's
homestead where upon arrival they assaulted Leroy Ndukwana who however managed
to flee with the accused persons in hot pursuit.
When they failed to apprehend Leroy, the accused persons are alleged to
have returned to Ndukwana's homestead where they took turns to assault the deceased
all over the body with logs, booted feet and open hands. They only stopped when the deceased lost
consciousness. Whereupon they dragged
him into a kitchen hut and returned to Gokwe Centre.
On 23 March 2009 at about 1100 hours the deceased died in Mutero
village, Chief Nemangwe as he was being ferried to hospital for treatment.
On 24 March 2009 the body of the deceased was examined by Dr Patron T.
Venge, the District Medical Officer stationed at Gokwe South District Hospital
who observed the following:
“Clothes were
soiled with dirty, (sic) bleeding per mouth and nostrils. Bruises on the back. The face was extensively swollen with
fractures of both mandibles. The
cervical spine was fracture(d) evidenced by a very mobile neck in rigor
mortis.”
The doctor concluded that in his opinion the cause of death was
“severe cervical spinal injury 2° (secondary to) assault.”
The findings of the doctor were recorded in an affidavit sworn to on 24
March 2009 before a commissioner of oaths.
That affidavit was produced in terms of S278 (2) of the Criminal
Procedure and Evidence Act [Chapter 9:07].
That section provides:
“In any criminal
proceedings in which it is relevant to prove,
(a) any fact ascertained by a medical
practitioner in any examination carried out by him which is proper to the duties
of a medical practitioner; -
(b) ---
(c) any opinion of a medical practitioner
referred to in paragraph (a) or (b) relating to any fact or treatment referred
to in that paragraph;
a document
purporting to be an affidavit relating to any such examination or treatment and
purporting to have been made by a person who in that affidavit states that he
is or was a medical practitioner and in the performance of his duties in that
capacity he carried out such examination and ascertained such facts in such
examination or administered such treatment; and, in either case, arrived at
such opinion, if any, stated therein shall, on its mere production, in
those proceedings by any person; but subject to subsections (11) and (12); be prima
facie proof of the facts and of any opinion so stated.”
Subsection (11) requires service of such affidavit on the accused giving
the accused three (3) days notice of the intention to produce it. Subsection (12) gives the court a discretion
to, mero motu, or at the request of the prosecutor or of the
accused to call the doctor who deposed to the affidavit to appear and give oral
evidence in relation to any statement contained in the affidavit.
In casu, Dr Venge appeared in court and gave evidence on behalf
of the state. Her evidence shall be
referred to later in this judgment.
The state led evidence from five (5) witnesses and it is proposed to
examine that evidence.
Tinoziva
Batisa
This 21 year old young man, who was about 19 years old at the time of
the incident, comes from village Sungwa under Chief Nemangwe in Gokwe. He went to school up to Form 3.
He testified that he and his brothers, Rozias, Tawanda, Tarisai
and Tafara, all of whom do not drink alcohol, were at Mukombegumi Shopping
Centre watching television, on the night of 22 March 2009 when a white open
truck arrived. They and the shop keeper
were the only people at the shops which comprise of a shop and bottle store.
Inside that vehicle were a number of people he did not count but who could
have been more than 10 but less than 15 in number. Before the vehicle could come to a halt some
of the occupants who were seated in the load box of the truck jumped off. He observed that the deceased was also seated
in the load box and had his hands tied in front with a string similar to that
used by school children on their school bags.
Those who remained in the vehicle with the deceased lifted him by the
legs and threw him off the vehicle causing him to fall, head first, to the
ground.
All the occupants of the vehicle alighted and proceeded to talk to his
brothers trying to find out if they knew Sirodo's homestead. When the brothers indicated that they knew
the place, these people ordered them to lead them to that place. When the brothers tried to first notify those
at home that they were going with the group, these people roughed them up
pointing out that they were police officers and soldiers from Gokwe Centre,
they were ordering them to lead them and that if they tried to be playful they
would be shot.
This forced the brothers to comply and they led these strangers to where
they wanted to recover their stolen goods.
The manner in which his brothers were coerced to act as guides for these
strangers did not go down well with this witness. He and Tafara then decided to follow the
group keeping an eye for his brothers.
They caught up with the group at Mbumbuzi River which was flooded with
water reaching just below his chest. The
brothers were being tortured by being made to stand in the water. Thereafter they were forced to assist the
group to cross the river.
The witness stated that when they got to Sirodo homestead, the strangers
announced their presence and Tinashe responded asking who these people
were coming at that time of the night.
Again the group repeated to Tinashe that they were police
officers and commanded Tinashe to come out.
According to this witness, the strangers lit the face of the deceased
with a cellphone torch and demanded to know from Tinashe if he recognised
him. After repeated questioning during
which he was told the name of the deceased as Moses Chokuda, Tinashe was able
to recognise him as his uncle. He was
then forced to lead the way to village head Esau Ndukwana's homestead which was
less than a kilometre away.
The group refused to let the witness's brothers return home and they
forced them to continue with them on the journey to village head Ndukwana's
home. On the way Tinashe was instructed
to announce their presence at Ndukwana's homestead and to tell him that he had
brought people from Gokwe.
Upon arrival Tinashe did as instructed and when the village head
responded, the group again repeated to him that they were police officers. They ordered him to get up and as he tried to
dress up, they forced the door open. When
Ndukwana came out he was held by the trousers at waist level and assaulted with
a log on the back.
When the group was eventually shown Leroy's bedroom hut, the y viciously
beat him up questioning him about their stolen groceries. Leroy managed to free himself and fled for
dear life. Although some, among the
group, gave chase they failed to apprehend Leroy and they returned.
Upon their return they were in a menacing mood. That is when the witness heard one of them
issue a command saying; “everybody weapon.”
This prompted his four (4) brothers to flee but the witness says he was
paralysed by fear and remained rooted where he was and could not flee.
After the group had searched all the village head's huts and failed to
find their groceries, they turned to the deceased stating that he had wasted
their time making them walk all the way for nothing. Tinoziva says he heard the deceased tell them
that he had led them astray because they had assaulted him too much and he had
done so to save his skin.
He said the group then set upon the deceased with logs as he lay on the
ground. Some were assaulting him on the
head. This, the witness says, he
observed from a distance of about 6 paces.
When the deceased cried out that they were killing him, the group
responded that they were not killing him but they continued with the
assault. By the time they were done with
the deceased, he was no longer able to talk, or even raise his head. Two of the assailants got hold of both his
hands and dragged him into a hut and abandoned him there.
The witness denied that any of these people had tried to stop the
assault. He denied that the deceased
requested his assailants to place him in the hut. He insisted that those who assaulted the
deceased were the group that had come from Gokwe in the vehicle which had been
left at Mukombagumi Business Centre. He
stated that after the assault they had force-marched village head Ndukwana to
Mukombagumi Business Centre.
He stated in no uncertain terms that he did not ascertain the faces of
the assailants but can only say that the assailants had come with the deceased
in the vehicle from Gokwe. He denied
that 30 people had joined the group at Mukombagumi as the place has never been
frequented by that number of people even on Christmas Day. As far as he was concerned only five (5)
locals, including himself, joined the group at Mukombagumi.
This witness was subjected to intense and thorough cross examination
which at times degenerated into name calling by counsel for the accused
persons. For someone of his age, his
lack of sophistication and education, he acquitted himself exceedingly
well. He was not shaken at all and stuck
to the story of what he said he witnessed on the day in question.
It is noteworthy that this witness stated under cross examination that
he dictated his statement to the police officer investigating the matter at
Ndukwana's homestead. In doing so he
gave the whole story as the officer took it down in his hand writing. After that the officer got him to sign the
statement without allowing him to read it or reading it back to him.
The witness was surprised that quite a lot of useful evidence was
omitted from the statement. It includes
the following:
- that at Mukombagumi the
deceased had arrived with his hands tied with a string
- that
upon arrival there he had been thrown off the vehicle and he fell to the ground
head first.
- that
the group had arrived carrying what he initially thought was a gun but it later
turned out to be an iron or metal bar;
- that
his brothers had been forced to assist the group across the river.
- that
Ndukwana had been assaulted by the same assailants who assaulted the deceased.
If we believe this witness, then the manner in which the Gokwe Police
investigated the matter falls far too short of expectations. One cannot resist the inference that they
tried to tamper with evidence in an attempt to influence what was placed before
the court and down play the severity of the offence.
Tinashe
Kwicho
This 21 year old witness hails from Chimbani village in Chief Nemangwe
Gokwe. He went to school up to Grade 6
and the deceased was his uncle.
He corroborated the evidence of Tinoziva in all material respects
from the time that the group got to his homestead after he had just had supper
right up to the time of the fatal assault of the deceased.
He added that in his estimation the people who had accosted him at his
home and ordered him to lead the way to Ndukwana's place were more than
10. He observed even before they got to
Ndukwana that they were armed with logs as signified by the fact that one of
them had poked him on the back with a log after he had stumbled onto a ditch.
When the deceased's face was lit up at his homestead for him to identify
him, Tinashe observed that he was badly injured such that he could not
immediately recognise him.
This witness stated that the gang was using cellphones as light during
the encounter. He stated that when the
deceased had told them that he had led them to the village head's homestead in
order to stop them from further assaulting him, they had been angered and they
severely assaulted him with booted feet and logs indiscriminately all over the
body. Some were stamping on him with
booted feet.
In the process one of them had tried to burn the deceased with a
firebrand but was stopped by some of his colleagues. He also denied that the people who attacked
the deceased numbered 30.
In our view this young man gave his evidence extremely well. Although subjected to exhausting cross
examination which was repetitive, his story remained the same. Although he could not identify the assailants
in the night, he gave a good and clear account of how the deceased was
assaulted by the people who had abducted him at his home and forced him to lead
the way to the village head's home.
It is also noteworthy that this witness says most of the damning
evidence he gave to the police was omitted from his statement. In that regard, our remarks made earlier
relating to the evidence of Tinoziva apply to this witness as well.
Esau Ndukwana
This old man is the village head in his area. He has two wives and also comes from Chimbani
village in Chief Nemangwe Gokwe. He did
not know the deceased and is the father of Leroy who was being sought after by
the people who came from Gokwe in pursuit of stolen groceries.
This witness repeated most of what the first two witnesses said
regarding the events which unfolded at his homestead on the fateful night.
The person who had announced the arrival of the uninvited visitors was
Tinashe. The intruders introduced
themselves as police officers from Gokwe before assaulting him demanding their
stolen groceries.
The deceased already had a swollen face when they arrived and
illuminated his face with a cellphone.
They also assaulted his son Leroy who escaped from them and never
returned home. They searched his
homestead when they returned angry from chasing after Leroy. They were angry with the deceased accusing
him of having wasted heir time for nothing.
The assailants were far less than 30 and in his estimation they were
between 8 and 10 in number.
He did not know the deceased or his assailants. There was a commotion when the assailants set
up-on the deceased which the witness described as a goal mouth melee in a
football match. They attacked him
viciously with booted feet and logs which they were pulling from his foul
run. Most of them broke and were thrown
into the fire by his daughters in law the following day except for exhibit 13.
After the attack, which lasted about 7 minutes, they dragged the
deceased into a hut and closed the door before abandoning him at his
homestead. They then abducted the
witness as well intending to deal with him at their vehicle.
Upon the witness's return the deceased had a faint breath and was unable
to talk or move. He died the following
day as the witness and others tried to take him to hospital.
This was a very impressive witness who was subjected to a stern test of
cross examination by very experienced defence counsel. A lot was thrown at him including some insinuation
that he and his son or other locals may have assaulted the deceased after the
group that came from Gokwe had left. It
was even suggested to him, in our view unfairly, that he was protecting the
real assailants. However the thrust of
his testimony remained intact.
This is another witness whose statement was recorded and he was made to
sign it without it being read to him. He
also complains of damning evidence, including the fact that he had been
assaulted by the same people who fatally assaulted the deceased, was omitted
from his recorded statement.
Dr Patron
Venge
She was the District Medical officer when she performed a post mortem on
the body of the deceased on 24 March 2009.
Her findings are contained in an affidavit we have referred to above.
What comes out from her evidence is that the injury which caused the
death of the deceased is the severe cervical spinal injury as a result of
assault. In her view if the deceased had
sustained that injury he would not have been able to walk a distance of 5 to 7
km because he had a fractured neck. She
added that if the deceased had the fractures of the 2 mandibles which she
observed, he would not have been able to talk because when talking one uses the
jaws which were broken.
Magumise Mugwagwa
He is the police officer who attended the scene and recovered exhibit 13
at Ndukwana's homestead. He also
recovered the deceased's body at Mhonda's homestead near Mukombagumi Business
Centre where it had been left by Ndukwana and others. He had then ferried the body to Gokwe
Hospital mortuary.
That the deceased died a painful and defining death at the hands of a
group of people is pretty obvious. The
question is; who killed the deceased?
The state says it is the six (6) accused persons and it has lined up a
number of impressive witnesses who saw the assault perpetrated on the deceased
at Ndukwana's homestead on 22 March 2009.
The other pressing issue to be decided is; At what stage during the
lengthy period of time that the deceased was in the custody of the accused
persons did he suffer the mortal wound or at what point and by whom were the
fatal wounds inflicted on the deceased?
All the accused persons deny causing the death of the deceased or in any
way inflicting the mortal wounds on his person.
I propose to examine what each of the accused persons said about the
allegations levelled against them.
Accused 1: Farai Sanders Machaya
He gave a statement to the police under caution on 24 March 2009 two
days after the attack on the deceased.
He said;
“He (the deceased)
was initially assaulted at his house by two soldiers, namely Tiri Maphosa and
his friend---“
He went on to say that at Leroy's homestead that night, the deceased was
assaulted by a mob of people he and his group had taken to that place. He says:
“At that time there
were many people who were present and started to assault Moses Chokuda. I don't (know) these people at all. I then stopped people from further assaulting
Moses Chokuda. I then requested Moses
Chokuda to go back to Gokwe and he told me that he was no longer able to
walk. We left him and we went to Gokwe.”
Accused 1 did not bother to explain how the two soldiers who initially
assaulted the deceased at his homestead became involved and who invited them
there. He also did not explain why he
ended up with a mob of people he could not control at Leroy's place and what
their interest in the matter was, especially as he had gone there to recover
his stolen property and certainly did not need a mob to do so.
In his defence outline, which he happens to share with accused 2,
accused 1 stated that:
“At Mukombagumi
Business Centre there were a lot of patrons and more than 30 people who claimed
to come from the same area with Leroy volunteered to accompany the accused
persons to Leroy Ndukwana's residence.
It was at night and most of them, if not all, were drunk or exhibited
drunkenness.”
He went on to state that when Leroy fled from them the crowd which was
there gave chase but Leroy out paced them into the bush.
On the assault itself accused 1 said:
“As the accused persons
were talking to Esau Ndukwana, that is when they heard the deceased crying
indicating that he had been injured.
That is when they saw that he was being assaulted by the group of people
who had accompanied them from Mukombagumi Business Centre. They immediately went there to stop the
assault.”
Again he did not explain why he needed 30 people to show him the way to
Leroy's homestead, neither did he say what interest those people had suddenly
developed on the issue of his stolen property as would propel them to attack the
deceased as alleged, a person who was already in the custody of the accused
persons and had already made a confession to them.
In his evidence in court, the Accused 1 repeated his story set out
above. He shifted the blame for the
initial assault of deceased on the soldier, Accused 6. He stated that at Mukombagumi 30 people
volunteered to go with them and as they left, the bar remained empty as he was
the last person to leave after locking his vehicle which remained parked there. This means that all the people at the bar
came from Sizanani and were all ready to knock off and go home at the time the
group from Gokwe arrived.
Accused 1 shifted the blame for the assault on deceased at Ndukwana's
homestead to these 30 people he was not in control of and presented himself as
the deceased's saviour as he stopped the assault.
Accused 2: Abel Maphosa
In
his warned and cautioned statement given on 24 March 2009 Accused 2 said:
“We then started
looking for Moses Chokuda and we located him at his homestead. We took him to the shop and (he) was
assaulted by two soldiers namely Tiri Maphosa and Obert Gavi---.”
On
the assault which occurred at Ndukwana's homestead he said:
“I then asked Leroy
about the theft of goods from Farai Machaya's shop. He then ran away and all
people who were there started assaulting Moses Chokuda. I never assaulted him at all. We then left him going to Gokwe since he was
saying that he was not able to walk also he had a sister who was married at
Sizanani area.”
Like the Accused 1, Accused 2 did not explain why the two soldiers
Accused 5 and 6 got involved and why they found it necessary to assault the
deceased. He also did not explain why
they had to collect a multitude at Mukombagumi on their way to Ndukwana's
homestead and why the group found it necessary to assault the deceased who was
already in their custody and had already made a confession. He does not take us into his confidence as to
what interest those people had in the matter.
In his evidence in court, the Accused 2 stood by his story set out
above. He said Accused 5 and 6 slapped
the deceased but when they set off for Sizanani the two (2) had remained behind
at Gokwe Centre and did not accompany them to Sizanani. Like Accused 1 he said at Mukombagumi they
had talked to 4 or 5 people asking to be led to Ndukwana's place but in the end
they went with 30-40 people. He says it
is those people who assaulted the deceased at Ndukwana's homestead.
Like Accused 1 he could not explain why the state witnesses, who did not
know him prior to 22 March 2009 would decide to fabricate evidence implicating
them in the commission of the offence.
He could not give a satisfactory explanation as to why they took almost
3 hours to travel a distance of about 30km from Gokwe Centre to
Mukombagumi. He blamed it on the bad
tyres and the bad road.
Accused 3:
Edmore Gana
Accused 3 also gave a statement under caution on 24 March 2009 in which
he said nothing about the assault of the deceased at Gokwe Centre. He said at Leroy's homestead Leroy had fled
while being interrogated and that:
“At that time
people who were there started assaulting Moses Chokuda. I don't (know) these people at all. We placed Moses Chokuda in a hut since he was
not able to walk and we then returned to Gokwe.”
Accused 3 did not explain why they took this crowd of people to Leroy's
place just to collect the stolen property.
He did not explain what interest this crowd had in the matter as to
assault the deceased who was already on their custody and had already confessed
to the break in.
Accused 3's defence outline is word almost the same as that of Accused 1
and 2 which we have already made reference to.
In his evidence in court Accused 3 stated that Accused 1 had requested
him to accompany him to recover his stolen property. As they left Accused 4, his young brother who
was coming from church, jumped onto the vehicle. It was around 5pm when they set off and they
did not stop on the way to Mukombagumi.
Accused 3 also repeated that they were accompanied by 20-30 people from
Mukombagumi to Ndukwana's homestead. He
denied that anybody chased after Leroy when he absconded and stated that it is
these 20-30 people who assaulted the deceased and not any member of their
group.
Accused 4:
Bothwell Gana
In his warned and cautioned statement given on 24 March 2009 Accused 4 also
said nothing about the attack on the deceased at Gokwe.
On the attack later that evening at Ndukwana's
homestead he said:
“During that, I was
in the kitchen hut and I saw nothing at all.
I never assaulted him at all.”
Accused 4 also shares a defence outline with Accused 3 which outline is
worded almost the same as that of Accused 1 and 2 which we have made reference
to.
In his evidence in court Accused 4 said they were accompanied to
Ndukwana's place by many people and ended up committing to a figure of 30. He said that when they got to Ndukwana's
homestead he had been afflicted by pimples caused by being exposed to cold
water. For that reason, when the group
were going to Leroy's bedroom hut he had sneaked into a small kitchen where
there was a fire to warm himself. He did
not witness anything except that he later heard Accused 1's voice stopping the
assault.
Accused 5: Obert Gavi: Accused 6: Tirivashoma A. Mawadze
In their warned and cautioned statements they denied any involvement at
all.
The state did not lead any evidence on these two accused persons. It seems common cause that they did not travel
with the group of Accused 1 to 4 on their expedition to Sizanani.
According to Dr Venge, if the deceased had sustained the injuries that
caused his death he would not have been able to walk a distance of 5 to 7km
which he walked from Mukombagumi to Ndukwana's place. If he had sustained the broken jaws which she
observed, he would not have been able to talk.
Therefore, the question as to when the deceased suffered the mortal
wound, can only be answered by consideration of the fact that he was able to
walk 7km from Mukombagumi and he was still able to talk immediately before he
was thumped at Ndukwana's homestead. He
told his alleged assailants that had led them on a goose chase to save his
skin. They then attacked him after which
he was neither able to talk nor walk.
The inescapable conclusion therefore is that when Accused 5 and Accused 6
disengaged from the group, the deceased had not suffered the mortal
wounds. Whatever happened to him
thereafter cannot be visited upon the door steps of Accused 5 and Accused 6.
What has been placed before us on Accused 5 and 6 is contained in warned
and cautioned statements of their co-accused persons, in particular Accused 1 and
2.
It is trite that those cannot be used against Accused 1 and 2's
co-accused persons. A warned and
cautioned statement is evidence only against the maker of the statement and is
not evidence against any other person. See S259 of Criminal Procedure and
Evidence Act. However when the maker
of that statement repeats it from the witness box, such evidence is admissible
against the co-accused.
Because of the dangers of false incrimination which exist with
accomplice evidence, this evidence must be approached with caution. The court must be satisfied that the inherent
danger of relying on this testimony has been eliminated and that the evidence
can safely be relied upon.
Having warned ourselves of the dangers of false incrimination, we still
believe that Accused 6 was a reliable witness.
His demeanour was good and he did not attempt to exaggerate
anything. Therefore when he says the
deceased was assaulted by himself and Accused 5, he did not stand to benefit
anything. His incrimination of Accused 5
was never going to be of benefit to himself.
We therefore accept his evidence which is to the effect that both
himself and Accused 5 assaulted the deceased once each with open hands.
Having heard and assessed the evidence of the state against Accused 1 to
4 and weighed it against that of those accused persons, it is clear that these
accused persons are placed at the scene of the crime. They actually also place themselves there as
well.
Clearly the evidence of the Accused persons has an air of surrealism
about it. The evidence of the two young
state witnesses can be considered, for the youthfulness, to be consistent,
composed and possessed of a quiet air of dignity. The quality of their presentation is
persuasive and we find no reason whatsoever to impeach their evidence. The same goes for village head Ndukwana whom
we found to be an impressive witness.
The evidence of the state far outstrips that of the accused
persons. We therefore find as a fact
that the 4 accused persons had an opportunity during the almost 3 hours they
spent between Gokwe Centre and Mukombagumi, a distance of 30km, to assault the
deceased and inflict the swelling injuries on his face which were observed by
the state witnesses.
We find as a fact that only five (5) people – Tinoziva, Rozias, Tawanda,
Tarisai and Tafara accompanied the accused persons to Ndukwana's homestead and
they were joined by Tinashe.
We find as proved that the Accused persons are the ones who assault
village head Ndukwana and Leroy. They
are the ones who also assaulted the deceased at Ndukwana's homestead.
On this day in question the accused persons deliberately avoided any
involvement of law enforcement agencies because they set about to act outside
the law. We discern a pattern in their
behaviour which is curious indeed namely that of;
(a) Abducting
people and forcing them to come with them again their will. They abducted Isheunesu, Moses, the village
boys at Mukombagumi, Tinashe and village head Ndukwana and forced them to do as
they pleased.
(b) They
claimed to be police officers and/or soldiers.
This they did at Mukombagumi, Tinashe's home and Ndukwana's home in
order to coerce people to do their bidding.
(c) They
had this readiness to use force to get what they wanted. This they did on Isheunesu, Moses, Ndukwana
and Leroy.
(d) Can
it be said that they did not do the same on the deceased at Ndukwana's home
after their frustration of failing to get their goods? They had the motive to assault the deceased;
that is;
- their goods had been
stolen
- they
had come a long way from Gokwe, through the night and across a flooded river
only for Leroy to flee.
- they had failed to
catch Leroy or to find their groceries after the search.
- only
for the deceased to tell them that he had sent them on a goose chase to stop
them from assaulting him further.
In our view this was the breaking point.
They lost control and vented their anger and frustration on the deceased
with devastating consequences.
Can it be said that any of the Accused persons dissociated themselves
from the activity as to fall outside the realm of liability? Accused 1 presented a defence that each time
the deceased was subjected to assault he would step in a stop the assault.
Accused 4 presented himself as having been a disinterested person who
was warming himself by the fire when the assault on the deceased was taking
place.
The state witnesses, which we have already believed, stated that all the
accused persons participated in the assault of the deceased. They denied that any of them was a
disinterested onlooker. Village head
Ndukwana said only one of them who was walking away and had reached the edge of
his yard shouted that they should leave the deceased and that they should all
go back. Even if we were to assume that
it was Accused 1 who said that, it cannot, by any stretch of the imagination,
be regarded as dissociation from the crime.
In any event, even if we were to believe Accused 4, he would still be
caught under the web of section 196 of the Criminal Law Code [Chapter 9:23]
which provides:
“(1) Subject to this section where-
(a) 2 or more persons knowing associate with
each other with the intention that each or any of them shall commit or be
prepared to commit any crime; and
(b) any one of the persons referred to in
paragraph (a) (“the actual perpetrator”) commits the crime; and
(c) any one of the persons referred to in
paragraph (a) other than the actual perpetrator (“the co-perpetrator”) is
present with the actual perpetrator during the commission of the crime;
the conduct of the
actual perpetrator shall be deemed also to be the conduct of every
co-penetrator, whether or not the conduct of the co-perpetrator contributed
directly in any way to the commission of the crime by the actual perpetrator.
(2) If the state has established that 2 or
more accused persons-
(a) were associated together in any conduct
that is preparatory to the conduct which result in the crime for which they are
charged; or
(b) engaged in any criminal behaviour as a
team or group prior to the conduct which resulted in the crime for which they
are charged;
and that they were
present at or in the immediate vicinity of the scene of the crime in
circumstances which implicate them directly or indirectly in the commission of
that crime, then it shall be presumed, unless the contrary is shown, that –
(c) they knowingly associated with each
other for a criminal purpose; and
(a) the crime actually committed-
(i) was the crime for the commission of
which they associated with each other; or
(ii) was, if not the specific crime for the
commission of which they associated with each other, a crime whose commission
they realised was a real risk or possibility.”
In light of these provisions and the conduct of the Accused persons from
the time they congregated at Gokwe Centre, through Mukombagumi and right up to
the misfortunate events late that night at Ndukwana's homestead, it is clear
that they associated with each other in such a way that none of them can escape
liability.
Looking at the manner in which the deceased was attacked at Ndukwana's
residence it can be said that while pursuing their objective, the death of the
deceased was foreseeable but the Accused persons persisted that
notwithstanding.
Otherwise you do not attack a human being as a group the way the
deceased was attacked as he lay on the ground, with booted feet open hands and
logs without foreseeing death as an outcome.
In the result the Accused 1 to 4 inclusive are found guilty of murder
with constructive intent.
The Accused 5 and 6 are found not guilty of murder but guilty of assault
as defined in Section 89 of the Criminal Law Code which is a permissible
verdict in terms of section 275 as read with the 4th Schedule to the
Code.
Reasons for
sentence
Accused 5 and
6
In assessing sentence we have considered all that has been said on your
behalf in mitigation. In particular we
have taken into account the fact that your participation was minimal. You assaulted the deceased each of you once
with open hands.
The assaults did not result in any serious injury other than the fact
that it caused fear which resulted in a confession.
You then dissociated yourself from the activities of the rest of the
accused persons.
In a way you, in particular Accused 6, co-operated with the court by
telling the truth of what happened.
Against that is the fact that you are members of the army. You were used in this instance as soldiers
for hire or for fortune in an entirely private problem of the Accused 1.
That way you have brought the name of the army into disrepute. We can not allow our government institutions
to be abused in this manner.
There is need therefore to impose a sentence which we will allow to hang
over your heads for a while as a constant reminder not to misbehave in future.
Sentence
Accordingly you are sentenced to 12 months imprisonment which is wholly
suspended for 5 years on condition you do not, during that time commit an
offence in which violence is an element for which you are sentenced to
imprisonment without the option of a fine.
Accused 1 – 4
We have taken into account what has been said on your behalf in mitigation. In particular, we are mindful of the fact
that
- On
the day in question there had been a burglary where Accused 1's stock had been
wiped out.
- deceased
had confessed to committing the offence and had led you on a goose chase to
Sizanani making you spend more money in fuel, to walk at night, crossing a
flooded river all for nothing.
- Leroy had absconded and
you had not recovered anything.
- this must have annoyed
you very much causing you to lose your heads.
However, we are alive to the fact that this is a serious offence in
which a young life was lost. Our courts
always emphasise the sanctity of human life.
On the day in question you clearly exhibited an unwillingness to operate
in terms of the law. From the very
beginning you decided to act as a law unto yourselves.
Instead of enlisting the services of the police you first thought of
using soldiers who have no mandate to investigate crime.
Instead of driving 3km to the police station to pick up an officer you
drove first to pick up soldiers, then Accused 3 and 4 and went on an expedition
in Sizanani.
You abducted people at will starting with Sibanda, then the deceased,
then the group at Mukombagumi, and Tinashe and eventually Ndukwana.
Each time you claimed to be police officers.
You attacked the deceased as a group beating him indiscriminately
resulting in his death.
We cannot allow this kind of lawlessness and vigilante justice to take
root in our society.
There is therefore a need to impose a sentence that will remind society
that these courts will step in on the side of civilisation and good order and
stop any kind of lawlessness without fear or favour.
Sentence
Accordingly you are sentenced each to 18 years imprisonment.
Criminal
Division, Attorney General's Office, applicant's legal practitioners
Mkushi,
Foroma and Maupa, accused 1 & 2's legal practitioners
Dururu
and Associates, accused 3 & 4's legal practitioners
Wilmot
& Bennett, accused 5's legal practitioners
Mapfumo
and Associates,
accused 6's legal practitioners
