If it was not naïve in the extreme, it was downright utopian to hinge the entire State case on the evidence of an accused person's mother, son and nephew and expect that they would assist in sending their loved one to prison even if indeed he did pump six bullets into a hapless villager suspected of having broken into his homestead and stolen a bicycle among other valuables.

The whole case for the prosecution was built around Meikles Ncube, the accused's son, Mgcini Ndlovu his nephew, Edith Gwebu his very own mother and the ubiquitous Tongai Nyoni, a truck driver who has since retraced his steps to his home in Zvishavane and was as dis-interested in the whole incident he does not remember anyone that he came across on the fateful day - perhaps a question of selective amnesia.

Then there was the Investigating Officer, detective Lection Sibanda, who did not see the wisdom of even extracting finger prints from anything that could shed light on who the perpetrator was; content only to rough up the accused's family members, obtain statements from them incriminating the accused person and then spend the entire period of 6 years 8 months, when the accused was a fugitive from justice, waiting for him to surrender himself even after the accused had contacted him using a South African number and his relatives were available all the time to point out his address in that country.

Whatever happened to Interpol and extradition of accused persons?

This case was so mis-managed by those charged with the responsibility of bringing offenders to book who displayed a lackadaisical approach to criminality which is unprecedented. As it is, the deceased, who may have died for nothing when the law of the jungle was applied and vigilante justice took over, will never see real justice.

The accused is charged with the murder of one Nkosilamandla Moyo, a male adult who was aged 28 at the time he met his painful death on 13 April 2008, at Mbilamboyi Bus Stop in Esigodini. The accused himself was aged 40 years at the time.

The State alleges that there had been several break-ins at the accused's homestead in Esigodini when he returned home from his base in South Africa seething with anger. He was intent on finding the culprit and meting out vigilante justice. He is said to have set about on a manhunt for the deceased who was suspected of having stolen those valuables from the accused's homestead. Ably assisted by his wife, Sigezephi Sibanda, the accused had caught up with the deceased as they boarded the same lift from Mawabeni to Mbilamboyi Bus Stop in Long field, Esigodini. When they alighted from the motor vehicle, driven by Tongai Nyoni, at the bus stop, the accused is said to have confronted the deceased accusing him of having stolen from him. He chased away his wife, his son, and nephew, Mgcini Ndlovu, saying he wanted to deal with the deceased. Left alone with the deceased at the bus stop, it is alleged that he shot him six times with an unknown firearm leaving him dead.

The gunshots echoed through the village and were heard by all the relevant witnesses. In fact, that is the only thing the witnesses were prepared to admit when they testified. The accused then beat a hasty retreat leaving for South Africa very early the following morning in the company of his loving wife. The deceased's body was later discovered at the bus stop but it was not until 24 December 2014, some 6 years and 8 months later, that the accused was arrested as he had eventually crept back home from his sojourn in foreign land.

So much for the allegations.

When it came to proving its case against the accused, the State lined up four witnesses who were mainly the accused's relatives. Although it was pretty obvious that Mgcini Ndlovu and Edith Gwebu, who are the accused's nephew and mother respectively, had given statements to the police incriminating the accused as alleged by the State, it soon became apparent when they took to the witness's stand where their allegiance stood - after all blood is thicker than water. Mgcini Ndlovu pretended to be an extremely stupid witness who kept on swallowing his words, saying things and then reneging from them and in the end succeeded to contribute absolutely nothing to the State case. He claimed to have been arrested by the police who assaulted him and detained him for a long time while eliciting a statement to the effect that the accused committed the offence. He denied having been in the company of the accused on the fateful day when he went to Esigodini to identify stolen property which had been recovered. He said he turned back on the way without giving any reason for that, conveniently being elsewhere when the real events unfolded. Mgcini Ndlovu denied boarding Tongai Nyoni's motor vehicle with the accused, his wife, and son, Meikles Ncube, together with the deceased - that way, he deprived the State of any evidence placing the accused anywhere near the deceased or the scene of the crime.

Although he dithered about the whereabouts of the accused at the time the shots sounded, suggesting firstly, that he had been at home and then appearing to say that he only returned home after the shots were fired, nothing reliable could be gleaned from his untruthful testimony.

Then came the dramatist herself, Edith Gwebu, the mother of the accused person. A very old but clever woman; this witness also reneged from her statement electing to volunteer evidence which was not asked of her, like that the accused had never owned or held a gun in his hands ever since she gave birth to him. One would have thought that the accused was always under her watchful eye and did not live in South Africa. More importantly, Edith Gwebu insisted that when gunshots were fired the accused had been sitting at home next to her in a round hut while enjoying his supper. Again, this deprived the State of any evidence linking the accused to the shooting and presented the accused with an alibi - Christmas come early indeed.

Tongai Nyoni was next to wade away from his statement to the police. Appearing very timid and incoherent, the dreadlocked driver said he did not remember much except that he gave a lift to the deceased at Mawabeni Shopping Centre, although he did not even remember the deceased's name. He denied giving a lift to the accused and his wife putting the final nail in the coffin of the State case….,.

It is, however, the failure of the State to impeach any of the three hostile witnesses and to allow their evidence to remain intact and part of the State case which came as a surprise.

As it is, the State case, as presented to us, is that the accused did not board a lift with the deceased as alleged; he did not alight at Mbilamboyi Bus Stop with the deceased and the accused's family members; and when the six gunshots sounded he was at home with his mother conveniently enjoying a meal.

Presented with that kind of a sitter, counsel for the accused person gleefully made an application for discharge at the close of the State case on the basis that the State had failed to establish a prima facie case upon which the accused person could be put to his defence. He submitted that the State case always depended on circumstantial evidence. When both Mgcini Ndlovu and Edith Gwebu testified that he was at home when the shots that presumably killed the deceased were fired, there was no inference that could be drawn to the effect that he is the one who fired the shots.

We agree.

In terms of section 198(3) of the Criminal Procedure and Evidence Act [Chapter 9:07]:

“If, at the close of the case for the prosecution, the court considers that there is no evidence that the accused committed the offence charged in the indictment, summons or charge, or any other offence of which he might be convicted thereon, it shall return a verdict of not guilty.”

It is a provision which has been relied upon by legal practitioners repeatedly over the years even those that have nothing else to do but would want to appear to have done it. In that regard, the courts have pronounced themselves over and over again on an application for a discharge at the close of the State case in formulating the test to be applied in relating to such an application. See S v Hartlebury and Another 1985 (1) ZLR…,.; Attorney General v Bvuma and Another 1987 (2) ZLR 96 (S)…,.; Attorney General v Mzizi 1991 (2) ZLR 321 (S)…,.; Attorney General v Tarwirei 1997 (1) ZLR 575 (S)….,.; S v Kachipare 1998 (2) ZLR 273 (S)…,.

The essence of those judgments is that the court will acquit an accused person at the close of the State case where:

(i) There is no evidence to prove an essential element of the offence;

(ii) There is no evidence on which a reasonable court, acting carefully, might properly convict; or

(iii) The evidence of the State is so manifestly unreliable that no reasonable court could safely act on it.

In the present case one does not even go beyond the first question as there is no evidence that has been led pointing to the accused as having fired the shots that killed the deceased.

Counsel for the State submitted that such evidence exists in the form of the testimony of Detective Sibanda who says that he observed Northstar tennis prints at the scene and similar ones at the accused's homestead. This is the same witness who was quick to admit that Northstar tennis shoes are very common and could have belonged to anyone. In any event, he did not recover any such tennis shoes from the accused. Of course there is a lot that Detective Sibanda did not recover during his investigations - including the murder weapon.

This is a case in which nobody witnessed the killing of the deceased, and, as such, there is no direct evidence of the offence. The State case is therefore essentially circumstantial.

In our law, the guiding principle is that circumstantial evidence depends upon facts which are proved by direct evidence from which the court is required to draw inferences. Indeed, means, motive and opportunity are examples of circumstantial evidence. To show that the accused person had the means, a motive, and the opportunity assists in persuading the court of his guilt and raises a prima facie case against him for him to answer. However, where the conviction of the accused is dependent upon circumstantial evidence, the inference sought to be drawn must be consistent with the proved facts and the facts should be such that they exclude every reasonable inference from them except that which is sought to be drawn. See S v Edwards 1949 SR 30; R v Blom 1939 AD 188…,.; S v Vhera 2003 (1) ZLR 668 (H)…,.; S v Phiri HB19-16; HOFFMAN and ZEFFERT, The South African Law of Evidence, 3^rd edition…,.

All the evidence of the State relevant to the issue having been that of the accused's relatives who turned hostile, the State had the option to impeach the witnesses in terms of section 316 of the Criminal Procedure and Evidence Act [Chapter 9:07].

Where a State witness has become hostile and departed from the statement made to the police because of his or her relationship to the accused or for any other reason, the State may really have no choice but to impeach that witness with a view, not to persuade the court to accept the evidence contained in the statement to the police, but simply to destroy his or her reliability for both sides. Failure to do so leaves the evidence of that recalcitrant witness sitting in the State case and causing havoc to it.

The procedure for impeachment involves the production of the original statement of the witness and making available to the witness the details of where and when the statement was made in order to identify it. When that has been done, the witness must then be asked if he made the statement. If the statement was signed, the witness must be made to admit his signature. Once the witness has admitted making the statement, the statement should then be put to that witness in order to solicit an admission that he had said the words in the statement. Where the witness admits saying the words in the previous statement, the procedure is that the statement may be used without further proof. On the other hand, if the witness denies using the words contained in the statement, State counsel must then call witnesses who recorded and/or witnessed the making of the statement to prove that indeed the statement was made. In the process of impeachment, the witness must be made to explain the discrepancies between the previous statement and the hostile testimony in court. If the witness's explanation is not acceptable, the correct procedure is to impeach the witness in terms of section 316 of the Criminal Procedure and Evidence Act [Chapter 9:07].

See S v Chari 1989 (1) ZLR 231 (S); S v Muhlaba and Others 1973 (1) RLR 178 (GD).

It is when the State has made an application for the witness to be declared hostile, and the court has done so, that the State counsel may then proceed to cross-examine his own witness. Before the declaration of hostility, the State counsel cannot go beyond merely pointing out the discrepancies and seeking an explanation from the witness.

It is that procedure which the State failed to adhere to when Mgcini Ndlovu, Edith Gwebu and Tongai Nyoni became hostile. The State allowed them to waffle and abandon their statements without pointing out the discrepancies and without even producing the original statements they had made. In short, the State did nothing about the patent betrayal with the result that the hostile evidence is now the only State case.

In the end, what is left is the testimony of the Investigating Officer who did not witness the attack on the deceased and was nowhere near the scene.

Counsel for the State submitted that there are “pieces of evidence” which the accused should be put to his defence to explain. These are the footprints at the scene which Detective Sibanda said were similar to those found at his homestead after he had absconded and the telephone call he made to the good detective from South Africa when he heard the police were anxious to interview him. Although he undertook to avail himself at the end of the month he never did.

For counsel for the State to even allude to such evidence is indicative of the height of desperation the State was forced to scale. Surely, the accused's response by telephone cannot lead to any inference useful to the State. Even the footprints are useless evidence in the manner they were presented. One needs go no further than Detective Sibanda's own admission that the Northstar tennis shoe is very common and used by several people. Therefore, there are several other inferences that can be drawn from that fact.

In any event, while it is permissible for the court to rely on evidence of footprints, there are a number of precautions to be observed before such evidence is used. For instance, the witness must tell the court by what characteristics or peculiarities or marks he recognised the footprints as being those of the accused. It is the ability to give a precise and detailed description of the unique features of the print which points to reliable identification. Needless to say that Detective Sibanda's evidence does not even begin to meet the requirements. All this leads us to the inescapable conclusion that the State has not made a prima facie case against the accused person for him to be put to his defence. In fact, there is absolutely no evidence to prove that it is the accused who fired the shots that killed the deceased. The State case was not helped by the failure to locate the murder weapon or even to do the elementary follow up of crucial witnesses like the lady who employed the disinterested Tongai Nyoni and knew the locals. She was in the motor vehicle driven by Tongai Nyoni and would have easily identified the accused and his family.

Accordingly, it is ordered that;

(1) The State has failed to prove a prima facie case upon which the accused could be put to his defence.

(2) The accused person is hereby found not guilty and acquitted of the charge of murder.

The accused pleaded not guilty to contravening section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. It is alleged that on 26 February 2008, and at Number 3711 Old Highfield, Harare, the accused unlawfully, and with intent to kill, assaulted Memory Paliza by striking him with a knobkerrie all over his body thereby causing injuries from which the deceased died….,.

In his Defence Outline, the accused states that. on the day in question, the deceased, who was of unsound mind, shattered some window panes. When the accused attempted to talk to the deceased, the latter tried to attack him. The two had a scuffle and the deceased fell against the wooden arm-rest of a couch. The accused never intended to use the knobkerrie he was holding. Thus he denies intending to kill the deceased or realising the real risk or possibility of causing death. The deceased was violent and the accused meant to discipline him and to protect himself against attack.

It is common cause that the deceased was the accused's nephew and the two resided together with other relatives. The deceased was on medication for a mental disorder. He had defaulted in taking medication which rendered him belligerent.

The State led the bulk of its evidence by way of admissions of the witnesses' testimony as summarised in the summary of State case. The post-mortem report on the deceased was produced. The report noted bruises on the right shoulder, thigh, leg, and left shoulder. There was scalp haematoma of the right parietal as well as left pneumothorax due to collapsed lung which was perforated by fractured ribs. The fourth to sixth ribs were fractured on the anterior and posterior walls. The cause of death was noted as pneumothorax and multiple rib fractures arising from assault.

The accused's warned and cautioned statement was also produced. It (in its poorly translated version) reads as follows:

“I do not admit the charge. It is true that I assaulted the deceased with a knobkerrie but I wanted to discipline him as my nephew since he had a tendency of breaking window panes. I had no intention of killing him, and, furthermore, the deceased was of mental health (sic) so he liked violence. I wanted to defend myself. I assaulted him at the nineth (sic) hour and the following morning he requested for some water to drink and was given by my mother. He did not die soon after the assault. He should have died of other causes not assaults. The deceased was my nephew whom I loved and I looked after him since he was young. So I do (sic) like him to die in such a way.”

Laison Paliza, the accused's younger brother, was the only State witness to give viva voce evidence. He stated that following the shattering of two window panes by the deceased the accused came home and resolved to discipline the deceased. He told everyone to leave the dining room. This was around 8pm. He had seen the accused holding a broom stick. From his room, he could hear sounds of blows striking and the deceased's panting. The deceased also stated he would break more panes. He estimated the assault to have lasted for about twenty five minutes.

Considering the accused's admission to the use of a knobkerrie, Laison Paliza withheld evidence on this aspect. The evidence attributed to him, in the summary of State case, is to the effect that the accused used a knobkerrie. This was a material discrepancy which State counsel should have addressed with the witness.

Laison further testified that the following morning another nephew woke him up. When he went into the passage he saw the deceased lying on his back. The deceased was not stirring although the body was still warm. Attempts to resuscitate him proved futile.

The witness further explained that on the day of the assault, when the accused arrived home the deceased was seated in the lounge. Asked if the deceased had attacked the accused (per Defence Outline) he obviously speculated that it might have been so as the deceased was of a violent disposition on account of not taking medication. On the following day he said he saw a smaller piece of the broke broom stick.

Another remarkable aspect of this witness is that when the deceased was being assaulted he retired to bed. In fact, he made reference to taking some medication. He did not seek to intervene as he thought the deceased was merely being disciplined.

The accused's evidence-in-chief was quite brief. He stated that the deceased was in the habit of breaking window panes. He resolved to discipline him. Hence the use of a broom stick. He called the deceased to the dining room and he complied. He demanded to know why the deceased was behaving in a defiant manner. The deceased got up and advanced towards the accused. The accused picked up the broom stick and started to assault the deceased. He justified his action as being motivated by trying to deter the deceased from being violent. He did not foresee the fatal consequences. The deceased normally paid heed to what he said.

Under cross-examination he confirmed that he ordered everyone from the room. As to how he intended to discipline the deceased, he stated that by assaulting him with the stick. He also stated that he did not know that the deceased had defaulted in taking his medication. Asked if the deceased attacked him, he answered in the negative. He was then asked why he claimed the deceased was about to attack him and he replied that it was the manner in which he got up. They then grappled and fell down, with the deceased hitting against the arm rest of the sofa with his chest. He admitted that the fall was accidental. He also admitted that he desisted from assaulting the deceased after about twenty-five minutes. This, he said, was after the intervention of his mother.

In his address, counsel for the State quite correctly submitted that the requirements of defence of person, as provided in section 253 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code) were not met. He further submitted that even if it were accepted that the accused was under attack, the means he used were unreasonable. He also submitted that the accused was aware of the risk of using a stick on the deceased. In such a case there was an element of recklessness.

Having initially reasoned so well, counsel for the State then somersaulted in his next submission. He concluded that the accused should be convicted of culpable homicide. He based this submission on the accused's belief that he was disciplining the deceased. Counsel for the State also attacked his own case by submitting that there was no internal examination of the deceased's skull. The submission here is that it ought to have been established whether the deceased would have survived had he received medical attention. This, in my view is a superfluous submission as counsel for the State had earlier on submitted that there was no break in the chain of causation as he made reference to section 11 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code).

In his address, counsel for the defence made common cause with counsel for the State's submissions regarding a verdict of culpable homicide. He submitted that there is a fine line between a deliberate killing and death resulting from a realisation of real risk or possibility. He thus submitted that whilst the accused might not have subjectively foreseen death, a reasonable person would have foreseen the possibility of causing death.

There is no doubt that the accused's conduct caused death. He used a weapon and inflicted injuries which resulted in the deceased's death. It is immaterial and does not arise that the deceased could have survived if he had received medical attention. In any event, it is the accused himself who should have ensured that the deceased received medical attention.

The accused person was not under attack. He formulated a decision to assault the deceased and he used a weapon. This was not justified in the circumstances. He then called the deceased into the room where the assault took place. He firstly cleared the room of other people. That he assaulted the deceased because the latter made as if he wanted to attack him is not supported by his own admission and even by the somewhat hesitant testimony of Laison Paliza. Therefore, it is safe to reject self-defence.

In his testimony, the accused claimed to have used a broom stick. Nonetheless, his Defence Outline and the confirmed warned and cautioned statement refer to a knobkerrie. The two instruments cannot be mistaken for each other. Even if it were to be generously accepted that there was wrong interpretation from the vernacular in the warned and cautioned statement, the same cannot be said of the use of the same term in the Defence Outline. Suffice it to note that there was no satisfactory explanation why the accused mentioned knobkerrie in the two documents. Therefore, we hold that the accused used a knobkerrie as opposed to a broom stick. Even the injuries are likely to have been inflicted by a knobkerrie, especially the rib fractures.

We cannot conclude that the accused's avowed intention was to cause death. He set out to punish the deceased for breaking a mere two window panes. In doing so, he chose to use a weapon.

The test for realisation of real risk or possibility is subjective and is provided in section 15 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code). It has two components, namely -

(a) Awareness that there is a risk or possibility that the conduct embarked on might result in the relevant consequence and the relevant fact or circumstance existed when the accused engaged in the conduct.

(b) Recklessness. This entails that despite the real risk or possibility the person whose conduct is complained of continued to engage in such conduct.

In terms of section 15(2) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code), recklessness is implicit in the term realisation of risk or possibility. Where awareness of real risk or possibility is proved, recklessness shall be inferred from the fact that the relevant fact or circumstance actually existed when the accused engaged in the conduct.

To deliberately embark on an assault of another person entails an awareness of the real risk or possibility of injury.

In the present case, the assault lasted for close to half an hour. The accused only desisted after the intervention of his mother. It is inevitable to infer that because grievous bodily harm ensued, the accused must have realised the real risk or possibility of fatal consequences of his conduct. This is evidenced by the three ribs that got fractured and perforated the lungs. It is immaterial that the head injury was not fully explored. There is no doubt as to what caused death.

Accordingly, the accused is found guilty of contravening section 47(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code).

There was a heated debate generated in these proceedings as regards the origins of the knife that turned out to be the murder weapon.

Two schools of thought arose.

The prosecution urged the court to make a specific finding that the knife was with the accused person at the time he was being assaulted by the deceased. The defence, on the other hand, passionately argued and urged the court to make a finding consistent with the accused's testimony - that the knife was in the possession of the deceased person and that it was him who produced it when the accused was down and being punished by the deceased.

In its argument, the State was persuaded to take its position by the evidence of the accused's sister, Sibonginkosi Ncube, who testified that on the night of the assault, when she was awoken by the accused, the accused tussled and threw exhibit 2 on the top of her blankets and that she later gave this knife to the police.

It must be emphasised that Sibonginkosi Ncube was clear that this knife had no blood stains on it. Given the injuries reflected in exhibit 1, the post mortem report, it is very unlikely that that knife, if it was the murder weapon, would not have had bloodstains. Our view is that if the State wanted to derive some evidential value from that knife it should have been sent for forensic examination.

In any event, there is nowhere in the State case where it is shown that exhibit 2 was, at any time, shown to the accused for him to confirm that it was the murder weapon before he was taken to court for trial….,.

The court has been urged by the State counsel to pronounce the accused person guilty in this case on the basis of circumstantial evidence. As observed by my brother MAKONESE J in the case of The State vs Sonny Kuzomunhu Chasi HB29-14;

“The law of circumstantial evidence is, however, well traversed in our jurisdiction. The law on this subject has its basis on the two cordial rules of logical inference as laid down by WATERMEYER (JA) in the case of R v Blom 1939 AD 188, where the learned judge observed that the following rules must be observed;

“(a) The inference sought to be drawn must be consistent with all the proved facts. If it is not, the inference cannot be drawn.

(b) The proved facts should be such that they exclude every reasonable inference from them save the one sought to be drawn. If they do not exclude other reasonable inference, then there must be doubt whether the inference sought to be drawn is correct.”

See also the case of S v Marange 1999 (1) ZLR 244 SC where KORSAH JA…, referred to an English case as follows;

“Lord Normand observed in Tepes v R [1952] AC 480 @ 489 that;

'Circumstantial evidence may sometime be conclusive, but it must always be narrowly examined, if only because of this kind may be fabricated to cast doubt on another….,. It is also necessary, before drawing the inference of the accused's guilt from circumstantial evidence, to be sure that there are not other co-existing circumstances which would weaken or destroy the inference.'”

The story told by the accused person in this case is not without corroboration and it is as follows:

When he entered Manwele Beer Garden to drink beer he picked up a quarrel with the deceased and this resulted in a fight in which he was overpowered and ran away. The accused was then chased after by the deceased outside the bar where a few minutes later the deceased was found in a pool of blood.

All this is confirmed by the State witnesses.

The accused goes further to give a detailed, uncontroverted, explanation surrounding the circumstances of the actual stabbing leading to the death of the deceased. Taking into account the prior circumstances of the misunderstanding between the deceased and the accused, we believe the story told by the accused person is reasonably possible, and, in such circumstances, guilt by inference is clearly inappropriate.

Over the past few years, cases of domestic violence and child sexual abuse have been on the increase. Our courts process such cases daily throughout the country and there does not appear to be a solution to curb or indeed reduce the frequency of such cases. This case, sadly, illustrates the nature and depth of the problem.

The accused is aged 74 years. He faces one count of murder and 6 counts of rape. On the murder charge the State alleges that during the night of the 15^th of November 2012, and at a place near or around Lawley Road, Suburbs, Bulawayo, the accused did wrongfully, unlawfully, and intentionally kill and murder Dorcas Chasi (nee Majola) a female adult aged 41 years at the time of her demise. The accused pleaded not guilty to the charge….,.

I shall first deal with the murder charge.

The State opened its case by tendering into the record the State Outline…,. The brief allegations are that the accused was customarily married to the deceased, Dorcas Majola. Sometime in 2009 the accused was convicted on fraud charges and sentenced to undergo six years imprisonment. On the 6^th of July 2012 the accused was released on home leave from Connemara Prison. When the accused arrived at the matrimonial home, at No. 4 Allan Road, Waterford he got the shock of his life when he discovered that his wife was four months pregnant. An argument ensued and the deceased ran away and sought refuge with some relatives. The accused returned to Connemara Prison to complete the remainder of his sentence. In August 2012 the accused was once again released on home visitation for the second time.

The accused found his family at the Waterford house. He arrived unexpectedly. There was a physical confrontation between the accused and the deceased. The accused was demanding to know the man responsible for the pregnancy. The children went to seek help from Batanai Chipfunde who came to quell the violence. The children, fearing for their lives, went to sleep next door. The following day, the deceased and the children moved out of the Waterford home to reside at Nkulumane.

The accused was eventually released from prison on the 2^nd of November 2012. He realized that his wife and children had relocated to Lobengula West where they were living with a relative, Ambrose Musa Majola. The accused moved into the Lobengula house and was sleeping in the kitchen with his wife. The children slept in the living room. The accused pestered the deceased, demanding to know who was responsible for the pregnancy. He further demanded that the parties' undergo an HIV test as he suspected she could be infected with the HIV virus. The accused stalked the deceased and followed her wherever she went. He went to her workplace daily, collecting her from her place of employment, Royal Hotel, when she knocked off at 3pm. The accused threatened to kill his wife and the unborn baby unless he was told who was responsible for the pregnancy. On the 13^th of November 2012 the deceased lodged a complainant at Zimbabwe Republic Police, Magwegwe but the accused continued with his threats.

On the fateful day, the 15^th of November 2012, the accused went to the deceased's workplace and collected her, as usual, at 3pm. He then forced her to go with him to Bambanani Centre for HIV testing. From the New Start Centre the two went into the City Centre where the accused took her around the Central Business District until at around 7pm when he forced, or lured, her to a place at or near Lawley Avenue, in the suburbs not far from the City Centre. It is alleged that, that same evening, the accused, who had managed to isolate his seven-month pregnant wife, pummelled her to death using fists and other unknown objects. Around 5am, on the 16^th of November 2012, the accused left the scene of the crime and made a report to one Ndlovu at Holiday Inn Hotel, to the effect that he had been attacked by a gang of robbers. His wife (the deceased) was not so lucky as she received serious injuries and was raped by the assailants as he watched in horror. The State alleges that the accused made such false report to divert attention from the heinous crime he had committed. Police investigations revealed that there was no such robbery. The accused's wife, together with the unborn child weighing 2.9kg, died as a result of injuries inflicted by the accused.

The accused tendered a Defence Outline…, wherein he confirmed that in July 2012 he was released from Connemara Prison on home visitation. He discovered that his wife was four months pregnant. He demanded to know who the father was but no answers were forthcoming from the deceased. The accused stated that in August 2012, he was granted further leave from prison. He confirms that he wished to undergo an HIV test but this was not possible. He returned to complete his prison sentence only to return on his final release on the 2^nd of November 2012. He states, in his defence, that on the 15^th of November 2012 he went to pick up his wife at Royal Hotel and they proceeded to Bambanani Centre for HIV testing. The accused says he was pleased with the outcome of the HIV test and they proceeded into the City Centre were they bought some “eats”. At around 8pm, the accused says he decided to go and see an old friend, one Mambiro, who resided in the Suburbs area. The deceased opted to accompany the accused but they failed to locate Mambiro. It is the accused's defence that as they walked towards the City Centre they were attacked by unknown assailants. The accused tried in vain to protect his wife and cried for help but he failed to attract anyone in the area. The accused's wife suffered serious injuries as a result of the attack. The accused only left the crime scene around 5am on the 16^th of November 2012 when he made a decision to raise the alarm. He arrived at the reception desk at Holiday Inn Hotel, which is less than half a kilometre from the scene of the crime. He told a Mr. Ndlovu at the hotel that he had been attacked by robbers the previous night and that he had not sustained serious injuries. The police were called and in and in no time an ambulance was collecting the deceased, who at the time was unconscious. She was taken to the United Bulawayo Hospital where she died on arrival.

The post-mortem report…, was introduced into the evidence by consent of both defence and State counsel. The cause of death was indicated as:-

(i) Haemorrhogic shock.

(ii) Abruptio placentario (separation of the foetus from the uterus lining of the mother).

(iii) Assault.

The post mortem report also revealed that the deceased had abrasions on the left leg, thigh, arm and forearm; abrasions of the right face. There was also a scalp haematoma on the frontal region. There were blood clots under the placenta; mild celebral oedema consistent with blunt force trauma. The pathologist also observed a dead female foetus weighing 2.9kg.

The accused's warned and cautioned statement…, was tendered into evidence by consent. The statement was made by the accused in long hand, in the Shona language, at CID (Homicide) Bulawayo, on the 20^th of November 2012. The full version of the statement, in the translated version, is as follows:

“I, Sonny Kuzomunhu Chasi, do hereby deny the charge of killing my wife, one Dorcas, on the 15^th of November 2012. What happened is that we went to a New Start Centre for testing since I had found my wife with a seven months pregnancy upon my coming from Connemara Open Prison. This was after Ihad discovered, in July the 6^th and August, that she was pregnant.

We left Royal (hotel) together and then rested at the City Hall. I then told my wife to proceed home while I see a friend of mine, one Mambiro, at Youth Hostel, 12^th Avenue, where I intended to get some money but she (wife) refused and then proceeded there together. We waited for Mambiro until 2100hrs when we then left proceeding along Livingstone Road. When we got to the intersection of Livingstone Road and 4^th Avenue, we were attacked by four men armed with knobkerries and knives. They assaulted Dorcas and she fell down. They started attacking me while holding knives. I ran away but I tried to fight using stones as well as throwing some soil.

They ran away along 4^th Avenue. I tried to help my wife by screaming while she herself was crying but we did not get any help. We slept there while I was looking after my wife who had been complaining of pain. I later went to Holiday Inn at 05:00 hrs and called a police officer and an ambulance. The police came after a short while and we were then taken to Central Hospital. My wife started ailing and was taken to Petgreen Ward where she started becoming weak. She was further taken to the Intensive Care Unit (ICU) where upon she passed on at 15:00 hrs.

It shocked and drained me and I was mentally troubled indeed. To this day, I am still being troubled. They (perpetrators) had gotten hold of her and had sexual intercourse while I looked on. My wife had been working at Fort Group where I had written a letter while I was at Khami Maximum Prison. She had started working (there) in November 2009. She had refused to go home until I said so whereupon she came with me.”

The State led evidence from eight (8) witnesses, namely, Maidei Chasi, Davidson Mawoneke, Gasper Ngwenya, Saul Nkomo, Batanai Chipfunde, Ambrose Musa Majola and Edward Majawa.

I shall proceed to summarise the evidence of each and every witness without necessary repeating verbatim what each witness testified.

Maidei Chasi

This witness told the court that the deceased was her mother and the accused is her father. Sometime in August 2012 the accused came home on home visitation from Connemara Prison. The accused made an unexpected arrival at night. On that day she heard her parents arguing, and, later, she heard her mother crying. She observed her father beating up her mother. She went and called Batanai Chipfunde who was then residing in the main house at their Waterford home. Chipfunde physically separated the accused and the deceased who were fighting. After the situation was calmed down the witness went and slept next door. The deceased left the Waterford house that day, never to return.

She first went to live in Nkulumane and then moved to Lobengula West. The witness testified that in early November 2012 the accused was released from prison. The witness was at the Lobengula house when the accused arrived. At first, they refused to open the door only to do so when the accused brought the police. The deceased was not at home that night. The accused packed all of the deceased's clothes and left the house in the middle of the night. The following day, the accused returned to the Lobengula house where they resided until the death of the deceased. The witness testified that the accused continuously threatened the deceased demanding to know who was responsible for the pregnancy. At that time the deceased was then seven (7) months pregnant.

Maidei told the court that the accused was stalking her mother. Wherever she went he would go. If she went to the toilet he would follow her. If her mother's cellphone rang the accused would answer it. He would follow her to work. He would follow her to the bathroom. Eventually, the accused took physical custody of her mother's cellphone. At 3pm, the accused would collect the deceased from her place of work. The deceased had come to be nicknamed:-

“The lady with the bodyguard from Connemara.”

The witness stated that what worried her was the accused would always threaten to kill her mother and also kill the unborn baby, and then go on to kill the person responsible for the pregnancy. She also confirmed that her mother had, at some point, lodged a complainant with the police.

On the 16^th of November 2012, the witness stated that she saw the accused arriving at the Lobengula house early in the morning. She observed that the accused's brownish/greenish suit was blood-stained. She also noticed that the accused was holding her mother's purse which was bloodstained. The witness went and called Ambrose Majola. The accused then announced that “Dorcas is dead.” The accused said they had been attacked by four robbers near Gwanda Road. He further pointed out that he had tried to fight the robbers but they had overpowered him. The deceased had not been so lucky and had sustained serious injuries and had died. The accused pointed out that his attempts to get help had been in vain. All he could do was cry.

Maidei observed that the accused did not have any visible injury, neither did he say that he had received any treatment at the hospital.

The witness was subjected to extensive and lengthy cross-examination. She remained steadfast and stuck to her version of events. She was not discredited in any material respects. Her evidence reads well and she must be believed. Most of her evidence was corroborated by other State witnesses and we accepted her evidence as being worthy of belief.

Davison Mawoneke

This witness is employed as a security guard. Sometime in November 2012 he was employed by a company known as DPS. On the 15^th of November 2012 he reported for duty at 1800hours at the SDA Headquarters at the corner 4^th Street between Livingstone and Lawley roads, Suburbs, Bulawayo. He was alert throughout the night and the premises are armed with movement censors. During the course of the night he heard no disturbances within the vicinity of the premises he was guarding or any pleas for help. He knocked off the following day at around 0600 hours.

He testified, further, that on the 15^th of November 2012 there was an annual gathering of SDA congregants at the place he was guarding. There were several motor vehicles getting in and out of the premises until late in the night. This witness flatly denied that he would have failed to notice the accused in the vicinity of the premises that he was guarding if there had been involved with robbers.

The evidence of this witness was easy to follow. There was no tinge of exaggeration and the witness was an independent witness with absolutely nothing to gain. We believed the evidence of this witness which we found to be credible and consistent in all material respects.

Gasper Ngwenya

This witness testified that he is employed by the Bulawayo City Council's Fire and Ambulance service as an Ambulance Technician. On the 16^th of November 2012, at about 0530 hours, he was on duty when he went to attend a scene where the accused alleged he had been attacked by robbers. On arrival at the scene of the crime, the witness observed the accused seated next to the deceased. The accused did not have any visible injuries. The deceased had injuries on her head. She also had an injury on the left leg. She was not able to talk and they ferried her to the United Bulawayo Hospitals.

This witness confirmed that the accused said they had been attacked by robbers the previous night. The accused assisted to place the deceased in the ambulance and he did not appear to have any physical difficulties in moving around.

The evidence of this witness was straightforward and his evidence was not contradicted in any way under cross-examination.

Saul Nkomo

Saul Nkomo is employed as a domestic worker at 52 Pauline Road, Suburbs, Bulawayo. On the 15^th of November 2012 he was at work the whole day. His room is near the gate and during the course of the night he did not hear anyone screaming or crying out for help.

The witness stated that the accused was brought to his workplace by the police and he confirmed that he had not seen him on the 15^th of November 2012 or at any other time. The witness indicated that on the night in question no one had come to his gate seeking any assistance. He confirmed that Suburbs is generally a very quiet residential area and if there had been any commotion he would not have failed to hear it.

Batanai Chipfunde

The State then led evidence from Batanai Chipfunde. This witness was known to the accused and to the deceased and his family. He was residing at No.4 Allan Road, Waterford, Bulawayo. He was present at this address when the accused came from prison for home visitation. He was awoken by Maidei Chasi sometime in August 2012 at around 2200 hours. He was called to intervene in a dispute between the accused and the deceased. He said he physically separated the two who were exchanging blows. After he managed to control the fight the accused summoned his children and the deceased and lectured them about the lessons he had learnt at prison in relation to HIV. In particular, he said that they were taught that once they were released from prison they and their spouses should undergo HIV testing before engaging in sexual intercourse. The following day, the deceased collected her clothes and left the Waterford house together with her children.

The witness testified, crucially, that the deceased had told the accused that she was no longer interested in the marriage and the accused was refusing to accept the deceased's position on the matter. As far as the witness was concerned when the accused returned to prison the issue remained unresolved.

The defence declined to put any questions to this witness in cross-examination. We found the evidence of this witness to be credible in all material respects.

Ambrose Musa Majola

The witness testified that he resided at House 71971 Lobengula West, Bulawayo. The deceased was his niece and the accused was the husband to her niece. Sometime in August 2012 the witness was staying with the deceased and her children when the accused arrived. The children locked themselves in the house as soon as they realised the accused had arrived. The accused eventually entered the house with the assistance of the police. On this occasion, the deceased was not at the house. The accused woke up during the night and collected all of the deceased's property and took it away. The deceased returned to prison with the issue between him and the deceased unresolved.

On the 2^nd of November 2012, the accused arrived at the Lobengula house early in the morning. He indicated to the deceased that he had come “to finish the war he had started.” The witness said that the accused was very disturbed when he realized that he was in the house and that he had overheard the conversation. The accused started accusing the witness of keeping a family that did not belong to him.

The witness told the court that the situation between the deceased and the accused was very bad. The accused would follow the deceased wherever she went. The accused had taken possession of the deceased's mobile phone. The accused also escorted the deceased to and from work. The accused threatened to kill the deceased and the unborn child. He demanded that they go for HIV testing. The witness stated that the threats of death were continuous and on one day he demanded to know who was responsible for the pregnancy. He then uttered these words:-

“I want to kill you and remove the pregnancy that you have.”

The witness testified that on the 15^th of November 2012 the accused escorted the deceased to work. Both did not return that day. A day later, the accused come home in the early hours of the morning. He narrated that he had gone with the deceased to a New Start Centre for HIV testing. Later in the day they had gone to see a friend of the accused. On their way back they were attacked by a group of four (4) armed robbers. They attacked the deceased and raped her but he was lucky to escape without any injuries.

The evidence of this witness is critical in that it corroborates the evidence of Maidei Chasi in material respects. The evidence confirms that all was not well between the accused and the deceased before she died. The evidence further corroborates the fact that the accused person had, prior to the deceased's death, threatened to kill the deceased and destroy the pregnancy. The evidence also confirms that days before the deceased died he stalked her to the extent that he had almost become “her shadow.” Where she went he went also. He kept her mobile phone.

We find the evidence of the witness to be credible.

The witness was not shaken under cross-examination and his evidence was not controverted in material respects. All the criticisms levelled against this witness by the accused person are of no consequence in that most of his evidence is common cause in any event. His evidence must be accepted as being truthful.

Edward Majawa

This was the last witness for the State on the murder charge. Edward Majawa is a Detective Sergeant attached to CID Homicide for the past 7 years. He was the Investigating Officer of this case. He initially treated the accused as a witness after the accused had reported that he had been robbed in the company of his wife (the deceased). He recorded a warned and cautioned statement from the accused. The accused elected to give his statement in long-hand in the Shona language. After investigating the circumstances of the alleged robbery it soon became apparent to the witness that the police were being led on a wild goose chase. Their investigation then turned to the accused.

The accused took the witness to the corner of Lawley Street and 4^th Street in the suburbs area. They went to a Youth Centre where the accused said he wanted to see a friend. The alleged robbery occurred near a busy road, 12^th Avenue, and there is an SDA Headquarters which has 24 hour security. The accused's story did not add up and a murder docket was compiled with the accused as the suspect. Amongst several factors that did not make the accused's story credible are the following:

(a) The attack took place at or near the SDA church which was busy at the time.

(b) The accused should have, from indications he made, been attacked at the place where vehicles were parked.

(c) He should have raised the alarm.

(d) There was no coloured lady residing at the house the accused said he had gone for assistance; neither were there any vicious dogs.

(e) The accused had no visible injuries, save for his blood-soaked clothes.

(f) The witness established that there was no one by the name Mambiro at the Youth Centre where the accused alleged he had gone.

(g) The alleged robbers did not take anything of value from the accused and the deceased.

(h) There was no possible motive for the attack on the accused and the deceased.

The evidence of the police detective was very clear and concise. It was credible and worthy of belief. There was no contradiction or exaggeration in his evidence. The evidence is accepted by the court as truthful.

The Defence case

The accused elected to give evidence under oath. He testified that he is now 74 years old. At the time of the offence he was aged 72. He told the court that he was happily married to his wife in accordance with customary law. He was in such marital union for 20 years as at the time of death of the deceased. He said he loved his wife very much. He discovered that his wife was pregnant by another man when he went for home visitation from Connemara Prison in July 2012. He said although he was shattered by the discovery he had forgiven his wife. He said all he wanted was for the deceased to undergo an HIV test so that they could resume sexual relations. He confirmed that his wife was seven (7) months pregnant at the time of her death.

I shall not repeat most of the events which are common cause and which I have already commented upon.

It is beyond dispute that on the 15^th of November 2012, the accused and the deceased were together after the accused collected the deceased from her workplace around 3pm. It is also common cause that the two attended at Bambanani Centre for HIV testing on that day.

What is in dispute is what the parties did from that point onwards.

The accused states that he went into the Central Business District, bought something to eat and drink and they sat outside the City Hall discussing matters of mutual concern. Around 7pm, the accused informed the deceased that he wanted to go and borrow money from an old friend in the Suburbs. The accused repeated what is contained in his warned and cautioned statement (exhibit 4). It shall not be necessary to repeat the same.

We did not believe the accused person's defence and rejected it as false.

I shall now proceed to analyse the evidence that has been placed before the court which has led us to the conclusion that the accused's defence is false.

Analysis of evidence and findings

The State case is predicated upon circumstantial evidence. There is no direct evidence or an eyewitness account of what transpired on the 15^th of November 2012. The burden is accordingly upon the State to prove, beyond reasonable doubt, that the only conclusion that can be arrived at from the facts presented to the court is that the accused committed the crime of murder.

The State is not required to prove beyond a shadow of a doubt the guilt of the accused person, but a reasonable man looking at the facts objectively must come to the conclusion that “reasonable doubt” has been eliminated and that there could be no danger of false incrimination.

The evidence of Maidei Chasi and Batanai Chipfunde indicates that the accused person had an axe to grind with the deceased before her death. When the accused was released on the first home visitation, in July 2012, he observed that his wife was pregnant by another man. He made certain verbal threats against the deceased and returned to prison. The environment at the matrimonial home was so polluted that the deceased and family had to relocate and live elsewhere.

This is the first indicator that things were not well between the accused and the deceased.

On the second home visitation, in August 2012, the accused found his wife at Lobengula West having left the matrimonial home. On this occasion the accused made direct threats against the deceased. He vowed to kill the deceased and then eliminate the pregnancy. He also promised to deal with the person responsible for such pregnancy.

This piece of evidence is narrated by Maidei Chasi and corroborated by Ambrose Majola.

Upon the accused's release from Connemara Prison, on the 2^nd of November 2012, the accused person returned home to find that his family was literally broken. His wife was now 7 months pregnant. She was now living with a relative, Ambrose Majola. He demanded that his wife must undergo an HIV test before he could be sexually intimate with her. At the same time, he continued to threaten to kill her. He stalked the deceased. He followed her everywhere and the accused had become a “shadow” of the deceased. The accused took control of the deceased's mobile phone thereby cutting her lines of communication with everyone else. He became obsessed with the movements of the deceased to such a degree that he followed her into the toilet.

This behaviour by the accused proves beyond doubt that his assertion that he loved his wife cannot possibly be true. His assertion that he had forgiven the deceased cannot be possibly true as shown by his continuous threats. It cannot be mere coincidence that the person who makes death threats against the deceased is the same person who escorts the deceased from her work place on the 15^th of November 2012 and disappears with her only to return with an announcement that she has died. It cannot be coincidence that the accused person does not suffer any visible injury at the hands of robbers who presumably attacked both the accused and the deceased.

The accused person states, in his defence, that the gang of 4 armed robbers had knives and knobkerries and yet he was not attacked or injured in any way. The robbers took no property from their victims thereby showing no motivation. The court has found the story related by the accused to be so incredible that it is beyond belief. No reasonable or sensible person could believe such a version of events. The accused's version can only occur in fiction movies designed to entertain children. It is far from reality. For these reasons, we found that the accused's version could not be reasonably true and we rejected it.

I have already indicated that this is a case based on circumstantial evidence. There is no direct evidence linking the accused to the murder. The law on circumstantial evidence is however well traversed in our jurisdiction. The law on this subject has its basis on the two cardinal rules of logical inference, as laid down by WATERMEYER (JA) in the case of R v Blom 1939 AD 188, where the learned judge observed that the following rules must be observed:-

“(a) The inference sought to be drawn must be consistent with all the proved facts. If it is not, the inference cannot be drawn.

(b) The proved facts should be such that they exclude every reasonable inference from them save the one sought to be drawn. If they do not exclude other reasonable inferences, then there must be doubt whether the inference sought to be drawn is correct.”

See also the case of S v Marange 1991 (1) ZLR 244 SC where KORSAH, JA…, referred to an English case as follows:

“Lord Normad observed, in Teper v R [1952] AC 480 at 489, that:

“Circumstantial evidence may sometimes be conclusive but it must always be narrowly examined, if only because of this kind may be fabricated to cast doubt on another…,. It is also necessary, before drawing the inference of the accused's guilt from circumstantial evidence, to be sure that there are not other co-existing circumstances which would weaken or destroy the inference.”

The court, therefore, can only convict on circumstantial evidence provided it is sufficient to preclude every reasonable inference of the innocence of the accused. See also the case of S v Shoniwa 1987 (1) ZLR 215.

In casu, the proved and established facts are as follows:-

Motive

In July 2012, the accused had a physical confrontation with the deceased over the pregnancy that she carried. He made death threats against her. He further threatened to destroy the unborn baby. In August 2012, the accused made further threats to kill the deceased. The evidence of Maidei Chasi and Ambrose Majola on this aspect was not challenged. On the 2^nd of November 2012, the day the accused was released from prison, he moved into the Lobengula house with the deceased and the children.

The accused made further threats against the deceased and vowed to destroy the pregnancy. These threats were of a serious nature as shown by the conduct of the accused who took charge of the deceased's mobile phone. He stalked her. There was no evidence of reconciliation up to the day of the death of the deceased. When the accused first arrived from prison, on his release, he swore that he had come “to finish the war he had started.” The only outstanding issue between the accused and the deceased was the pregnancy.

The only reasonable and probable inference is that the accused had come to deal with the accused and the pregnancy. The accused's utterances preceding the death of the deceased, coupled with the accused's behaviour, indicate that he had the motive to kill.

Accused's presence at the scene

The only person to have been present when the deceased was fatally and brutally attacked was the accused. The police investigated the accused's claims of a robbery and quickly realized that they were being led on the garden path to nowhere. The accused was the only person at the scene of the crime at the material time who had a motive to kill the deceased. The accused told the court that he had demanded an HIV test because he wanted to resume sexual relations with the deceased. Curiously, the accused's defence version alleges that the deceased was raped before she was killed. All this happened as the accused was watching and all he could do was to watch and cry. The accused had the opportunity to put into action his threats to dispose of both the deceased and the unborn baby. He also desired to have sexual intercourse with the deceased - he actioned all his objectives.

Accused's false defence

It is trite that where the accused person is found to have lied then he ought to have intended to hide something. The accused's lies, though not necessarily proof of guilt, when taken together with the proved facts, lead to only one inference. That inference is that the accused is indeed guilty.

It is our considered view that the cumulative effect of the proved facts all point towards the guilt of the accused person. The evidence before us, taken as a whole, leave us in no doubt that the State proved its case beyond reasonable doubt on the charge of murder.

We, accordingly find the accused guilty of murder with actual intent.

The State relied, to a large extent, on the eyewitness account of Andrics Moyo….,.

For the State to secure a conviction in this case, the court must be satisfied that the case against the accused has been proved beyond reasonable doubt….,.

The evidence of Andrics Moyo is consistent with the results of the post mortem report. It is critical to note that the pathologist, Dr Sanganayi Pesanai, made the following observations on the remains of the deceased:

(a) Lineal skull fracture from the right parietal to the left parietal bone.

(b) Lineal fracture frontal bone.

(c) Fractured and missing right frontal bone including the orbit.

(d) Fractured right parietal bone missing piece.

(e) Fractured right temporal bone missing part.

On other remarks, the pathologist noted -

(f) Fractured right anterior fossae bones.

(g) Fractured right medial fossae bones.

The nature of the injuries, as reflected in the post-mortem report, are consistent with the observations made by the minor child who witnessed the accused axing the deceased behind the neck, on the head, and all over the body. It is inconceivable that given the age of the minor child he would have fabricated his evidence to such a degree that results of the post mortem would, in all material respects, fit into the puzzle of how the deceased met his death….,.

There is sufficient corroboration in the accounts of Priscilla Moyo, Kenneth Maphosa and Thambo Ncube.

The accused pleaded not guilty to the charge of contravening section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] which relates to murder.

The charge is that on 12 October 2001, at Katira homestead, Mashambanhaka Village, Chief Nyajina in Uzumba communal lands, the accused, with intent to kill or realising there was a real risk or possibility that his conduct may cause death, murdered one Sinoia Katema by assaulting him all over the body using open hands, booted feet and wooden sticks causing injuries resulting in his death.

The now deceased was the biological father of the accused. He was about 60 years old. The now deceased was estranged from his wife, Maruda Chisahwira, who is also the accused's mother. The now deceased stayed alone at the matrimonial home and his wife was staying nearby at the homestead of one of their sons. The accused had his own homestead.

As per Annexure A, the summary of facts, it is alleged that the accused, on 12 October 2001, visited the now deceased at his homestead at about 2300 hours. The accused started to accuse the now deceased that he was allowing some evil spirits to affect the family. A quarrel ensued. The accused is alleged to have proceeded to assault the now deceased with open hands, booted feet and sticks throughout the night until the early hours of 13 October 2001 when the now deceased was unconscious. It is alleged that the assault took place in the presence of the now deceased's wife, Maruda Chisahwira, who is also the accused's mother. It is further alleged that Maruda Chisahiwra was unable to assist the now deceased and that no other person came to restrain the accused. The accused was arrested in the morning on 13 October 2001. The now deceased died in hospital in Harare eight (8) days later, on 22 October 2001, from the injuries inflicted during the assault.

In his Defence Outline, Annexure B, the accused said on the day in question he and the now deceased visited a faith healer to consult and get help on family that affected the accused after which they returned home, each going his separate way. The accused said he proceeded to church and at about 0200 hours the now deceased summoned him to his homestead. On arrival, the accused said he noticed the now deceased was drunk and the accused decided to engage him in the presence of his wife and the accused's mother, Maruda Chisahwira, whom he fetched from his brother's homestead. The accused said while inside the now deceased's hut, in the presence of Maruda Chisahwara, a quarrel ensued. The accused said the now deceased picked an axe intending to attack the accused but the accused managed to wrestle it away and threw it out of the kitchen hut. Unperturbed, the accused said the now deceased took a spear with the intention of attacking the accused but the accused managed to dispossess the now deceased of the spear which spear the accused broke into two and threw the blade out of the kitchen hut. The accused said the now deceased went out of the kitchen hut to pick the axe and spear blade and the accused followed him. The accused said as the now deceased tried to pick up the axe on the ground the accused hit the now deceased on his back with a spear handle which had remained in the accused's hands. The accused said he proceeded to kick the now deceased with booted feet, twice, that is once on the ribs and once on the chest. The now deceased could not pick the axe and remarked that the accused had hurt him. The accused said the now deceased appeared unconscious but woke up unaided telling the accused he was feeling cold. The accused said he made a fire to warm the now deceased and spent the whole night with him. The next morning, the accused said his mother was unable to cook porridge for the now deceased as there was no mealie meal and he decided to go with his mother to a certain home in the village to get some maize. The accused said on his way back members of the neighbourhood watch committee then arrested him.

The accused stated that he had no intention to kill the now deceased and that he did not realize that his actions would result in the deceased's death. The accused pointed out that he had no pre-meditated notion of assaulting, let alone killing the now deceased. The accused said he acted in self-defence when the now deceased, who was drunk, decided to attack him, unprovoked, with an axe and spear. The accused said when he kicked the now deceased once on the chest and twice on the ribs he merely wanted to prevent him from picking up the axe hence acted at the spur of the moment and in self defence. The accused denied that he assaulted the now deceased throughout the night alleging that the injuries stated in the post mortem report are consistent with the accused's version of events….,.

In support of this case, the State relied on the evidence of Maruda Chisahwira, who is the now deceased's wife and the accused's mother, Phillimon Makuku, a neighbour to the now deceased, and the investigating officer, Assistant Inspector Andrew Makovera.

Exhibit 1 the post-mortem report and exhibit 2, the accused's confirmed warned and cautioned statement, were produced by consent.

The cause of the now deceased's death is not in issue. As per exhibit 1, the postmortem report, the deceased died from chest injuries which included bruises and rib cage fractures and lungs contusion all arising from the assault. The now deceased's remains were examined at Harare Central Hospital on 29 October 2001 by a pathologist Dr S A Mapunda. The following observations and findings were made:

(i) The now deceased was 60 years old and ill-nourished.

(ii) Surface wounds or injuries noted was the deformed rib cage with the crepitation of broken ribs bilaterally involving lower cage of the body i.e sound made by broken ribs.

(iii) Cynorosis of the body - which relates a condition in which the skin and mucous membrane take a bluish colour due to lack of enough oxygen in the blood.

(iv) Oedema or congestion of the brain - swelling or excess fluids.

(v) Injury on the right lung - there was bilateral fracture of the 7^th, 8^th and 9^th ribs with contusion (bruises) of the lung which was oedematous, achymotic and congested.

(vi) The cause of death is due to be chest injuries, i.e bruises, and rib fractures and lungs contusion.

It is not in dispute that the now deceased died from the injuries inflicted by the accused during the assault. There is therefore a nexus or causal link between the assault perpetrated by the accused and the now deceased's death.

It can be inferred from the nature of the injuries inflicted that the assault was not only very serious but clearly fatal. A lot of force was used as the now deceased's three (3) ribs were broken and lungs damaged. The now deceased, who had hitherto been in fairly good health, could not recover from the assault. It is therefore clearly misplaced for counsel for the accused to submit the assault was a minor one and that no serious injuries were inflicted. This flies in the face of the clear findings outlined in the post mortem report - which findings are not disputed.

The narrow issue which falls for determination in this case relates to the circumstances under which the accused assaulted the now deceased and whether the defence of self-defence is available to the accused.

The evidence of both Philemon Makuku and Assistant Inspector Andrew Makovera is not helpful in this regard. Briefly, it can be summed up as follows;

Philemon Makuku, a next door neighbour to the now deceased disputed what is said in both the summary of evidence and his statement to the police, which is that he heard the commotion or noise at of the now deceased's homestead on this night in question and that the next morning he found the now deceased lying down. Instead, he said he did not hear anything on the night in question as he was tired and fell asleep. He said the next morning, on 13 October 2001, at about 0600hrs, he passed through the now deceased's yard and was shocked to see the now deceased seated by the hut with legs stretched, head bowed down and arms on his legs. He noted the accused and Maruda Chisahwira were seated close by. He said he noticed that the now deceased was injured as he was bleeding from the mouth. This prompted him to ask the accused what he had done to the now deceased and the accused confirmed to him that he, the accused, had assaulted the now deceased. Philemon Makuku said he did not involve himself in the matter or tried to assist the now deceased as he was rushing for a funeral and was also afraid the accused could assault him. All in all he said the now deceased was in a bad state as he failed to raise up his head to look at him or to talk to him. He said the situation was terrifying as the accused and Maruda Chisahwira just seated there doing nothing.

Our assessment of Philemon Makuku is that he was a cagey witness who clearly was un-interested in assisting the court if that would give the impression of him involving himself in the affairs of the now deceased's family. He was not willing to answer simple questions or to explain inconsistencies between his statements and viva voce evidence. The impression we get is that he was rather an unwilling and dis-interested witness. However, the value of his evidence is that the now deceased had been seriously injured when he saw him in the morning on 13 October 2001.

Assistant Inspector Andrew Makovera told the court that in the morning on 13 October 2001, at Mashambanhaka Business Centre, a member of the neighbourhood watch committee handed over to him the accused who was under arrest, and the now deceased who was badly injured and lying helpless in a wheel barrow. He told the court how the now deceased could not talk, was clearly in agony and was bleeding from both the nose and the mouth. The accused confirmed to him that he assaulted the now deceased. Assistant Inspector Andrew Makovera said two sticks allegedly used in the assault were handed over to him by the neighbourhood watch committee members and taken as exhibits. He was unable to produce them as they could not be located at the High Court (may be because this is an old case). He however described them as follows;

(i) A thin switch from a mulberry tree about 80cm long.

(ii) A thick stick or log about 1 metre long and as thick as his forearm.

He said there was no axe or spear surrendered to him and the accused never mentioned to him those items. His evidence is unchallenged and we have no cause not to accept it.

The key witness in this matter is the now deceased's wife and the accused's mother, Maruda Chisahwira. She is now a very old woman who could not testify while standing. She also revealed that she has a very poor sight - even prior to the incident in 2001.

Maruda Chisahwira (Maruda) told the court that at the material time she was estranged from the now deceased as she was staying at one of her son's homestead and the now deceased was staying alone at the matrimonial home.

Maruda explained that she did not enjoy good relations with the accused or the now deceased. She said both the now deceased and the accused were addicted to gambling and would gamble away all the little property she worked for. In relation to the accused, she said the accused had previously burnt one of her huts (accused confirmed this and that he was sentenced to 10 months imprisonment for arson).

Generally, she said, the accused, despite being her son, always insulted, disobeyed and disrespected her.

In relation to the now deceased, she said she was enstranged from the now deceased whom she described as irresponsible; addicted to gambling; drunkard; and of violent disposition. She said the now deceased would gamble away any household goods; was quarrelsome; always engaging in brawls at beer drinks. At one point she said the now deceased assaulted her with an axe on the head and she showed the court a healed scar on her front part of the head towards the forehead. She described the now deceased as an irresponsible and abusive husband.

Turning to the events of the day in question, she said it was late at night when the accused came and knocked at her hut and came in and indicated that he would not leave her hut if she did not accede to his demands. She realized the accused was adamant and she decided to seek refuge at the now deceased's home. Instead, the accused chased after her until they got to the now deceased's home. On arrival, she alerted the now deceased of the accused's presence and the deceased came out of his hut.

The accused, in his evidence, admitted that he had to force Maruda Chisahwira to go to the now deceased's homestead.

It is clear from Maruda's evidence that when the accused and Maruda arrived the now deceased had retired to bed and had to be alerted of the presence of the accused and Maruda. This contradicts the accused's version that it is the now deceased who had caused this gathering.

Maruda Chisahwira said when the now deceased came out of his hut the accused immediately confronted him asking him if he, the now deceased, had done what was required of him as had been advised by the prophets. Maruda said she was not privy to this as it was only the accused and the now deceased who had consulted the prophets. She said the now deceased replied that he had not been able to do so and the accused asked why. The now deceased explained that he was having financial constraints.

Maruda said this incensed the accused who started to assault the now deceased. She said the accused first used his hands but because of her poor eye sight she said she could not tell if it was open hands or clenched fists. Thereafter, she said the accused would take switches from the nearby mulberry tree and continued to assault the now deceased. She said the assault was prolonged as the accused would rest and resume the assault.

Maruda Chisahwira said at no point did the now deceased fight back but remained seated. She said the accused was very violent, shouting; and when she tried to admonish him, the accused threatened to also assault her. Maruda said her attempts to leave or run away were foiled by the accused who threatened her and stood guard all night declaring that no one would leave the homestead. Maruda said this went on until dawn when she left on the pretext of taking a grandchild to the bus stop. She said the accused still followed her and members of the Neighbourhood Watch Committee, who had been alerted, arrived and arrested the accused.

As regards the state of the now deceased after the assault, she said at one point he was lying face down and she noted that he was bleeding from the nose and the mouth. She described the assault as severe and prolonged. Maruda Chisahwira said the sticks the accused used were recovered and she saw a thin switch and the other as thick as her forearm. She denied that there was a fight but that the accused just assaulted the now deceased.

Maruda Chisahwira was subjected to very lengthy cross examination dealing with her relations with accused, the extent of her poor eyesight and the nature of the assault. In our view, she acquitted herself well as she was able to answer all the questions clearly and satisfactorily.

She was asked why she did not leave and seek help that night. In response, she said the accused prevented her; ordering her to sit down and stay put or risk being assaulted too. She denied that the accused came to fetch her to go to the now deceased's home but that she got there fleeing from the accused. On what prompted the assault, she reiterated that it is the accused who confronted the now deceased as he came out of the hut asking if the now deceased had rectified their issue and that the now deceased's response, that he had financial challenges, invited the assault. She denied that there was a fight or that the now deceased tried to attack the accused. When it was put to her that the now deceased had an axe which he tried to use she was visibly surprised, retorting:-

“An axe, from where? There was no axe.”

Maruda Chisahwira was taken to task about her relations with the accused and whether this did not influence her to falsely incriminate the accused. She did not hide her disappointment with the accused whom she said did not accept her reprimand as a mother and always disrespected her saying she was an outsider in the family. She also insisted that she had every reason to cause the accused's arrest after he burnt her huts and refused to withdraw the charges. She said the accused, for a long time, had not respected her as his mother and that there was nothing she could do about it.

Maruda denied that this caused her to lie against the accused about the assault.

She insisted that on the day in question the accused was the aggressor and that the now deceased came out of his hut un-armed. She said she never saw an axe or spear but the sticks the accused used to assault the now deceased. She flatly denied that the accused acted in self-defence. Instead, she said it is the now deceased who pleaded for mercy asking to discuss the matter rather than being assaulted. Maruda said while she may have had problems with the accused, her son, she nonetheless told the court the truth of what happened.

Our analysis of Maruda Chisahwira's evidence is that she gave a simple coherent and straight forward account of her relations with both the accused and the now deceased and also the events of the night in question. Despite her advanced age she admirably withstood the lengthy cross-examination and was alert.

Our impression of Maruda is that she is an old long suffering woman who was abused by both the now deceased husband and the disrespectful son being the accused. That was very clear in her demeanour but did not distract her from being truthful to the court. Her recollection of the events of the night in question, after 13 years, and at her age, is amazing. It was clear that this incident traumatized her and should have remained etched in her mind.

Our assessment of Maruda Chisahwira is that she was a fair and balanced witness. She was candid with the court about her bad relations with both the accused and the now deceased and did not seek to minimise or exaggerate the vices of either of the two - especially their violent conduct.

In our view, she properly conceded that she suffers from poor eye sight, and, in her testimony, she limited herself to what she clearly saw indicating that she was compromised by both the darkness and the poor eyesight. We are not persuaded that we should disregard her evidence on account of her poor eye-sight. The fact of the matter is that she was not blind but had or has poor eye sight.

We are satisfied that Maruda Chisahwira was able to meaningfully, and without contradictions, explain how the accused assaulted the now deceased; who the aggressor was and why; what was used to assault the now deceased; and the injuries she noted on the now deceased, that is the bleeding from the nose and mouth. We find her to be an impressive and credible witness.

Maruda Chisahwira's evidence on what happened on the night in question finds corroboration from the accused's confirmed warned and cautioned statement…,. This is what the accused said:-

“I admit the charge of murdering Sinoia Katema after I had assaulted him with a switch, then with fists and kicking. I assaulted Sinoia Katema who was my father after he had refused to perform some traditional rituals in order to have me cured from the problems which I was facing customarily. On the day I killed him we had come back from some apostolic sect church where we had gone to consult some prophets there, where we were told of what was troubling me customarily. My father refused to perform rituals to solve my problems then I assaulted him and this caused his death.”

It is clear from this statement that the accused confirms that he was the aggressor and explained how and why he assaulted the now deceased. This dovetails with the evidence of Maruda Chisahwira. It's clear from this statement that the accused was not acting in self-defence as he now alleged.

There is no mention of any possession of or attempted use of an axe or a spear by the now deceased in that statement. In the statement, the accused admitted assaulting the now deceased by using switches, fists and booted feet.

In his defence case, the accused was unable to reconcile his Defence Outline and the confirmed warned and caution statement. It became clear to us that the new version narrated by the accused in his defence outline and evidence was an after-thought. On that basis we reject the accused's evidence.

In his evidence, the accused confirmed that he believed that the now deceased was responsible for his misfortunes and also unwilling to help him. The accused said the now deceased had not taken care of his own mother (the accused's grandmother) and had not even attended her funeral hence her spirit was haunting the accused. The accused said the now deceased was unwilling to perform rituals to appease his mother's spirit. This explains why the accused assaulted him.

The accused's evidence on how the assault took place is not only poorly thought out but inconsistent. As already said, there is no mention in his warned and cautioned statement that the now deceased was armed with a spear and axe or that the accused acted in self-defence as he later frantically tried to portray himself. This explains why Maruda Chisahwira and the police did not recover any axe or spear and neither did the accused surrender or mention those items to the police.

In his evidence, the accused downplayed how he said he assaulted the now deceased.

The State case is that the accused used open hands, booted feet and wooden sticks all over the body. In his Defence Outline, the accused said he first hit the now deceased once with a spear handle on the back and that thereafter he kicked him twice, that is once on the ribs and once on the chest.

In his evidence in chief the accused changed his version.

He said he first kicked the now deceased once on the ribs causing the now deceased to kneel down and thereafter hitting him twice on the back with a broken spear handle after which Maruda Chisahwira told him to stop and that he complied and did not proceed to pluck a switch from the malberry tree as he had intended. He denied assaulting the now deceased on the chest. This differs from the warned and cautioned statement in which he said he assaulted the now deceased with clenched fists, by kicking him and also used switches or switch. Again, the accused was unable to reconcile these versions on how exactly he assaulted the now deceased. The reason is that he is not being truthful.

The accused said at the time he kicked the now deceased in the ribs the deceased cried out that he had been injured. The accused did not help him at all. He did not call for help from neighbours but decided to spend the night with the badly injured deceased outside in the cold until dawn. Even the next day the accused did not seek any help when the now deceased was bleeding from the nose and the mouth and could not talk. The accused offers no explanation for that conduct. We are inclined to accept Maruda Chisahwira's evidence that the accused ensured that the now deceased did not receive any help….,.

The next question to consider is whether the accused, when he assaulted the now deceased, he desired death or death was his aim or object which relates to actual intention OR he did realize that there was a real risk or possibility that his conduct may cause death but nonetheless continued to engage in that conduct despite the risk or possibility of death.

Put differently, the question is that the accused may not have desired to bring about death.

Put differently, the quiz is that the accused may not have desired to bring about death but did foresee it as a possibility when he assaulted the now deceased and was reckless as to whether death ensued.

Did he have the subjective foresight as to the possibility of death but nonetheless exhibited recklessness?

See S v Mungwanda 2002 (1) ZLR 574 (S)…,. - this relates to legal intention or constructive intent.

Our finding is that the accused did not desire death and neither was his aim or object to cause death. The evidence shows that the accused wanted to simply assault the now deceased as a punishment for refusing to perform the ritual the accused wanted. He therefore lacked the actual intention to commit murder.

We are however satisfied that the accused did foresee the possibility that whilst he assaulted the now deceased in the manner he did death may result but was reckless as to whether it resulted or not. This can be inferred from the manner of the assault, the injuries inflicted, and the accused's conduct after the assault.

It is our finding that the accused assaulted a 60 year old man who was defenceless. The accused used his open hands or fists, booted feet, switches or sticks. It is clear the assault was over a prolonged period of time. A lot of force was used as the accused broke the now deceased's rib cage - that is three ribs. The now deceased's lungs were damaged. The now deceased bled internally with blood coming from the nose and mouth. The accused did not care to offer any help or call for help, but, instead, kept the now deceased and Maruda Chisahwira prisoners overnight. We therefore have no difficulty in finding that the accused, when he assaulted the now deceased, realised that there was a real risk or possibility that such an assault may cause death but continued to engage in that conduct; attacking the chest and the ribs despite the risk or the possibility.

Accordingly, we find the accused guilty of murder as defined in section 47(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

VERDICT: Guilty of murder as defined in section 47(1)(b) of the Criminal Code [Chapter 9:23].

The deceased was aged 24 years when she met her death. She died in a most horrific manner. At the time of her death she was employed as a merchandiser with a company known as Ocean Foods.

On the 19^th March 2016 the deceased dropped off from an omnibus at Makoni Shopping Centre in Pumula South around 2020 hours. She walked along an un-named tarred road linking the business centre and her place of residence. Without any warning the deceased was struck on the back of her head with a stone and she fell down. The deceased sustained a deep wound on the back of her head and started bleeding profusely. The deceased somehow managed to stagger to her home. She collapsed upon entering her bedroom. She was rushed to hospital where she succumbed to the injuries sustained in the attack and died in hospital on 22^nd March 2016.

The 19 year old accused was arrested in connection with the murder of the deceased. A mobile phone stolen from the deceased at the scene of the crime was traced to the accused. The accused pleads not guilty to the charge of murder. He proffers a complete denial to the charge and states that he has been wrongly implicated. His Defence Outline amounts to a bare denial. He alleges that he will dispute each and every allegation of fact that is inconsistent with his Defence Outline and puts the State to the proof of each allegation against him.

The accused further states, in his Defence Outline, that although he was found in possession of the deceased's cellphone he had bought it from one Nkosilathi at a beerhall at Makoni Business Centre, Pumula South. No-one witnessed the transaction and Nkosilathi's further particulars are not known to the accused.

The State tendered into the record the outline of the State case (exhibit 1). It shall not be necessary to repeat the entire contents of the State Outline, which now forms part of the record. The Defence Outline was tendered as exhibit 2. Its contents are brief and short on detail as I have already indicated. The accused's confirmed warned and cautioned statement was produced and marked exhibit 3. The accused's handwritten version of the statement was marked exhibit 3(a). The English translation of the accused's warned and cautioned statement, which was duly confirmed of a magistrate at Tredgold Building on the 19^th May 2016, is in the following terms:

“My name is Tinashe Siziba. I stay at Robert Sinyoka at Number 118. On 19^th day of March 2016 I was drinking beer at Makoni Business Centre, Pumula South, Bulawayo. I left this place around seven in the evening now going home. I met a certain lady near a church in Pumula South. I struck her with a stone and she fell down. I took from her a phone and her bag. It was a Lumia Nokia type of phone with an Econet sim card (line). I opened her bag, took out a white T-shirt written Oceans threw it down besides her. I ran away and when I got to a stream I threw away the bag taking away $2=. I went home to retire to bed. I woke up in the morning and went to Kudakwashe Mxolisi Moyo's place, I told him that I had a phone for sale but I did not tell him where I got it from. We left for Pumula Old Business Centre. On getting there we asked Mayors to look for someone who wanted it. Mayors sold the phone to Bekinkosi Gathuso for $15=. Mayors came and gave me the money.”

The next documentary exhibit, 4, is the affidavit by Constable Edson Chikunguru who identified the body of the deceased at the United Bulawayo Hospital mortuary on the 22^nd March 2016. The post mortem report, number 246/242/2016, compiled by Dr Roberto Trencu, after an examination of the body of the deceased, was tendered as exhibit 5. The post-mortem report lists the cause of death as:

(1) Severe cerebral oedema.

(2) Skull fracture compressive epidural haematoma.

(3) Head trauma in unknown circumstances.

Exhibit 6 is a brownish handbag, identified as the one that was in possession of the deceased when she met her tragic death. A Nokia Lumia, black in colour, with a purple pouch was produced as exhibit 7. The cellphone was identified as belonging to the deceased.

State Case

Best Ntini

The State opened its case by leading viva voce evidence from Best Ntini. He testified that he resides at 12129 Pumula South, Bulawayo. He knew the deceased as his niece. They were residing at the residence at the material time. On the 19^th of March 2016 the deceased left for work at about 0800 hours. She was carrying a brownish hand bag. On the same date, and at about 2000 hours. the witness realized that the deceased had not returned from work. This was unusual. At around 2030 hours the deceased arrived home with blood stains all over her clothes. She went straight to her bedroom. The witness followed her to her bedroom and observed that she had a deep cut at the back of her head. She was bleeding severely. She was also bleeding through the ears. She appeared confused. She attempted to get up but collapsed to the floor. The witness was terrified by what he saw but the deceased was unable to relate what had transpired.

The witness summoned Christopher Gwisi, a neighbour, for assistance. The witness and his wife failed to secure an ambulance and subsequently the deceased's employer sent a motor vehicle which ferried the deceased to hospital.

The following day when the witness went for a hospital visit he was informed that the deceased had been taken to the Intensive Care Unit. The deceased's condition deteriorated and she died in the early hours of the 22^nd of March 2016. The witness testified that he later recovered a T-shirt belonging to the deceased inscribed “Ocean Foods” at the scene of the crime. The witness testified that the deceased's handbag and cellphone were missing. The matter was left in the hands of the police who had commenced investigations.

The evidence of this witness was given in a clear and logical manner. He was not contradicted under cross-examination. He gave his evidence calmly and did not exaggerate events. He narrated precisely what he knew in connection with the matter. His evidence is credible and the court has no hesitation in accepting his testimony.

Ariel Ntini

He resides at 12129 Pumula South, Bulawayo with his father, Best Ntini. He knew the deceased during her lifetime as a cousin. His evidence is largely similar and corroborates that of the previous witness. He was seated in the kitchen when the deceased entered the house with blood dripping from her head. Her clothes were full of blood. The witness screamed and he called out for his father. He tried to speak to the deceased but she did not respond. The witness took a bucket of water and cleaned the wound at the back of her head. Best Ntini then went and sought the assistance of a neighbour, one Christopher Gwisi. The deceased was taken to hospital where she died after a few days from injuries sustained in an attack upon her on the night of the 19^th of March 2016.

On the 18^th May 2016 the witness was summoned to the CID Homicide offices at Bulawayo. Upon his arrival he was shown a variety of cellphones and was asked to identify the deceased's cellphone. The witness positively identified a Nokia Lumia cellphone as the one belonging to the deceased. The witness recognized the purple pouch and the cracked screen. This witness confirmed that when the deceased left she was carrying a brownish bag. The witness confirmed that the handbag, exhibit 6, and the cellphone, exhibit 7, tendered in evidence, indeed belonged to the deceased. The witness confirmed that he was not known to the accused prior to his arrest. He only came into contact with the accused when he observed him making indications at the crime scene.

This witness gave his evidence in a simple and straight forward manner. There was no tinge of exaggeration in his account. He narrated events in a clear and logical sequence. His evidence was not contradicted in any material respect under cross-examination. The court accepts his evidence as a correct reflection of what transpired on the fateful day. The court also accepts the observations made by the witness as it relates to the identity of the deceased's handbag and cellphone.

Gilbert Sigauke

The next witness for the State was Detective Constable Sigauke. He is a duly attested member of the Zimbabwe Republic Police. He is attached to the CID Homicide Squad, Bulawayo. He has 21 years service in the police force. He is the Investigating Officer in this case. On the 23^rd of March 2016, whilst on duty, he was allocated a docket of murder to investigate. The docket relates to the deceased, Petronella Zimende, a female adult during her lifetime.

The witness revisited the crime scene. He located Best Ntini and the other State witnesses from whom he recorded statements. The witness was alerted to the fact that when the deceased had left for work on the fateful day she was in possession of a Nokia Lumia cellphone with an Econet line. The witness proceeded to apply for a court order compelling network service providers to track and establish whether the deceased's handset was being used, using the IMEI (International Mobile Equipment Identity). The IMEI is a unique 15 digit serial number allocated to every mobile phone which can then be used to check information such as the phone's country of origin, the manufacturer and its model number. The model code or serial number and IMEI are printed on the back of the handset. No two devices will have the same IMEI which makes it a very useful tool for tracking lost or stolen cellphones.

On the 17^th May 2016, the witness received information from Telecel Zimbabwe to the effect that the deceased's handset was being used by a subscriber registered in the name of Bhekinkosi Gumbo of House Number C5074 Old Pumula, Bulawayo.

The witness managed to locate Bhekinkosi Gumbo who led him to Mayors Zulu as the person who had sold him the cellphone. Mayors Zulu then led the witness to the accused person. The accused was arrested and detained for further questioning.

At first, the accused told the witness that he had picked up the cellphone at the shopping centre. The accused later admitted involvement in the murder and reduced his version of events in his own handwriting in the Ndebele language. The statement was translated into the English version. A warned and cautioned statement was recorded from the accused and he was taken before a magistrate for confirmation of this statement. The accused confirmed before the magistrate that he had given his confession freely and voluntarily without any undue influence.

The witness testified that the accused took him and his team of detectives for indications at an open space at Pumula South where the deceased was attacked. The witness invited Best Ntini to the crime scene where he indicated the place where he had picked up the T-shirt belonging to the deceased. The accused led the witness to a stream bank where the brown handbag belonging to the deceased was recovered from a location where it was covered by grass. The handbag was positively identified by Ariel Ntini as the bag the deceased had been carrying on the day she had been attacked. The witness described the accused as a person who had given “excellent” co-operation during the course of indications and investigations. The witness flatly denied that the accused had been subjected to any physical assaults. The report from Telecel Zimbabwe indicating that the deceased's handset was traced to Bhekinkosi Gumbo was tendered into evidence as exhibit 8.

The evidence of the witness was credible and reliable. He was not contradicted under cross-examination in any material respect. His evidence corroborates the accused's version as contained in the confirmed warned and cautioned statement. There was no motivation for this witness to lie. In my view, this matter was properly investigated, leading to the arrest of the accused. The court accepts the evidence of this witness….,.

Defence Case

Tinashe Siziba

The defence led oral testimony from the accused person under oath. The accused stuck to his Defence Outline. He denied any involvement in the murder of the deceased. He stated that he never met the deceased person on the day in question. He denied attacking the deceased and robbing her of handbag, cellphone and cash amounting to $2= as alleged by the State. The accused averred that he was a victim of circumstances and that he was being falsely implicated. He stated that he was assaulted by police detectives leading him to admit committing the murder.

The accused could not, however, proffer any motive for him to be falsely implicated. The accused could not stand by his Defence Outline because there was no Defence Outline. His Defence Outline was a bare denial. He denied each and every allegation as contained in the State Outline.

He deprived himself the opportunity of rebutting the crucial allegations regarding the link between himself and the deceased's cellphone - that piece of evidence was extremely damaging to the accused's case.

When he was confronted by police detectives, at the first instance, the accused said that he had picked up the deceased's phone. When pressed to explain how and where he picked the cellphone, the accused had no choice but to relate the truth to the police. The police asked the accused to write his own statement in long hand in his own handwriting. The statement, recorded in the vernacular language, was translated into the English version. That version now forms part of the record. The statement contains precise details regarding the murder to such an extent that there is no possibility to infer that the statement was dictated to the accused. The details in the warned and cautioned statement could only have come from one with actual knowledge of how that crime was committed.

The Investigating Officer gave clear and reliable evidence of how he had used the IMEI (International Mobile Equipment Identity) number of the deceased's cellphone to link it to the deceased. The police followed their leads and interviewed Bhekinkosi Gumbo who led them to Mayors Zulu. Mayors Zulu led the police to the accused. The net had closed in, and, ultimately, the accused had nowhere to hide. His attempt to cast aspersions on the conduct of the police is without merit. If the accused had been assaulted to give a false confession, he would have raised this with the magistrate who confirmed his statement. The court takes judicial notice of the fact that if the accused had been kicked in the neck by the detective in the manner he described he would have suffered serious if not fatal injuries. This allegation, in my view, was made to simply mislead the court.

The accused conveniently averred that when he bought the cellphone from Nkosilathi there was noone to witness the transaction. The accused does not have any further details on this Nkosilathi. The court can safely conclude that the said Nkosilathi is a fictitious creation by the accused person.

The evidence of Kudakwashe Moyo was formally admitted into the record is to the effect that:

“…, accused told him that he had a cellphone he wanted to sell. The accused showed this witness a black Nokia Lumia cellphone with a purple cover. This witness will state that he asked the source of the cellphone and he told the witness that he stole it in Pumula North and his polo neck jersey, with a trade mark of Lacoste, was torn during the robbery.”

It has to be noted that Kudakwashe Moyo was the accused's friend at the relevant time. There was no motive for this witness to fabricate such evidence. There was nothing for Kudakwashe to gain. From the accused's own testimony the relationship between the two was good. The only conclusion is that Kudakwashe Moyo must have been giving the correct version of what transpired.

The handbag was recovered through the initiative of the accused. The police would not have guessed that the handbag was some 2 kilometres from the crime scene under some grass on a stream bank. The accused must have made the indications that led to the recovery of the handbag.

Conclusion

The court is satisfied that the State has adduced overwhelming evidence against the accused to secure a conviction. The accused was not an impressive witness. He sought to depart from his confession in the most unconvincing fashion. The accused's demeanour on the witness stand was poor. He did not answer questions directly and he put up a patently false defence.

Our law on the admissibility of confessions is settled. See the case of Colgate Duffen Mudenda v The State SC54-15.

In this matter, the Supreme Court upheld a death sentence imposed in the lower court and held that a confession had properly been admitted into evidence. The court held, per MALABA DCJ…, as follows:

“The trial court correctly found, on the analysis of the contents of the warned and cautioned statement, that it was an expression of a genuine confession by the appellant of his involvement in the planning and murder of the deceased. The statement contains references to facts which could only have come to the knowledge of the appellant through direct participation in the conspiracy and execution of the agreement to kill the deceased for money and to extract warm blood from his body for ritual purposes. Not only did the appellant give a comprehensive statement of what he said happened, the facts to which it relates were presented in a coherent manner producing a convincing story into which all the known facts dovetailed perfectly.”

See also the case of Edward Dima v The State SC129-04.

In the instant case, there is sufficient evidence aliunde to prove that the accused's confession is a genuine admission of the commission of the offence.

The court notes that there is no direct eye witness account relating to the murder. The State case is therefore premised on circumstantial evidence. The cardinal rules of logic were established in the case of State v Blom 1939 AD 188. We are satisfied that all the proved facts are consistent with the version contained in the accused's confession.

The State has conceded that the accused may only be convicted of murder with constructive intent.

We agree with that assertion.

There is no evidence before the court to establish the fact that the accused set out to rob and kill the deceased. On the facts, he, however, foresaw death as a real possibility:

Accused is accordingly found guilty of murder with constructive intent.

This is an appeal against the sentence of death passed on the appellant by the High Court on 21 March, 2012 following a conviction of murder of Innocent Mudimba with actual intent to kill him.

After hearing counsel, the Court dismissed the appeal and indicated that reasons for the decision would follow in due course. These are they.

The facts on which the trial court found that the deceased had been murdered by people who had the actual intention to kill him are set out in the judgment of the court a quo. These are they.

The deceased was aged 19 years at the time he met his death. He resided at Gillian Munkuli's homestead, Sikaputa Village 1, Binga. On 3 May 2011, at about 2000 hours, the deceased retired to bed with his young brother, Pronounce Munkuli. At about 0400 hours the following morning, Pronounce Munkuli woke up and discovered that the deceased was not on the bed and the bedroom door was slightly open. A few minutes later the deceased entered the hut holding his neck with both hands and fell to the floor writhing in agony. The deceased's young brother tried to ascertain what had happened but the deceased did not respond.

Seeing this, he called his grandmother who was sleeping in another hut. When the elders entered the bedroom hut they discovered that the deceased had died. He had a deep cut on the throat from which he was bleeding profusely. A report was made at Binga Police Station.

The police attended the scene and conveyed the deceased's body to Mpilo Hospital in Bulawayo for a post-mortem examination. The post mortem examination revealed a very deep wound, four centimeters long across the lower neck just above the left collar bone, cutting the left subclavian artery and penetrating to the right apex of the chest cavity collapsing the right lung. As a result of the wound, the deceased bled profusely and he died of haemorrhagic shock.

On 9 May 2011, following investigations, police from Criminal Investigations, Hwange arrested the accused in connection with the offence.

The direct evidence on which the court found that the appellant was involved in the murder of the deceased and that he had the requisite intent to kill the deceased was the confirmed warned and cautioned statement made by him and recorded at Hwange Police Station on 12 May 2011. The appellant said:

“I, Colgate Duffen Mudenda do admit that I killed the deceased person. I was in the company of Bhilo, Chiyanembo, Peter, Petros and Mr Daniel. Chiyanembo, Daniel and Peter entered the hut. I remained outside watching for anyone who would be awake by then. At this homestead there are several houses but they entered into the hut and lifted the deceased and took him to the kraal. Bhilo held the deceased from the back while Petros collected dripping blood into an empty sugar plastic. Chiyanembo stabbed the deceased on the wind pipe (oesophagus) with the knife while I also held him from the back. After that, Mr Daniel and Chiyanembo lifted the deceased's body and placed it in the deceased's bedroom hut. After that each of us left for his homestead. I then followed Mr Daniel so that he gives me some money that we were promised after successfully killing someone. Mr Daniel gave me US$700=. Out of that money I gave $50= to my junior wife to buy her blanket at Sinamatelele of which she did. I then used $50= in drinking beer and in gambling school. When the rumour had spread that I killed a person, I then took the remaining $600= and hid it underground in the mountain area of Bulawayo Kraal.”

The trial court correctly found, on the analysis of the contents of the warned and cautioned statement, that it was an expression of a genuine confession by the appellant of his involvement in the planning and murder of the deceased. The statement contains references to facts which could only have come to the knowledge of the appellant through direct participation in the conspiracy and the execution of the agreement to kill the deceased for money and to extract warm blood from his body for ritual purposes. Not only did the appellant give a comprehensive statement of what he said happened, the facts to which it relates were presented in a coherent manner producing a convincing story into which all the known facts dovetailed perfectly. Edward Dima v The State SC129-07.

There was sufficient evidence aliunde showing the deceased was killed in the manner revealed by the appellant in the warned and cautioned statement. The appellant was seen running from the direction of the deceased's homestead soon after the deceased had his throat slit with a sharp object. Three days later, he voluntarily and freely told the deceased's grandmother and grandfather that he had taken part in the killing of the deceased. At the trial, the appellant did not proffer any defence. He was contented with proffering a bare denial as a defence to the charge.

The conviction is, in the circumstances, unassailable.

On the 31^st July 2014, in the late hours of the night, the appellant was driving a Nissan Sunny saloon vehicle with at least four occupants. He drove the vehicle over rocky terrain, on a dirt road. The vehicle was laden with 194kgs of fresh beef in the boot.

At Cyrene Farm, the appellant was intercepted by farm workers who lay an ambush as they suspected he was ferrying stolen meat. After stopping the accused, the farm workers introduced themselves as farm workers who were on patrol. The appellant promptly produced his police identity card indicating that he was an Assistant Inspector in the Zimbabwe Republic Police and that he was coming from his plot. The appellant was requested to open his boot to confirm what he was carrying. The appellant pretended to be parking his car off the road but suddenly sped away.

A high speed chase resembling a Hollywood- style escape ensued.

The Cyrene Farm workers, who had quickly jumped into their pick-up truck, chased the appellant's vehicle for some distance. The appellant drove towards the Bulawayo-Plumtree road and on reaching the main road, he took a right turn. The pick-up truck continued to give chase and the two vehicles side-swiped. The appellant's vehicle suffered a puncture on the rear left wheel forcing him to drive off the road to West Acre shopping area. The appellant stopped his vehicle and his associates jumped out of the vehicle disappearing into the darkness. The appellant attempted to off-load the stolen loot from the boot of his car but he gave up and surrendered when he realised that he had been cornered. The appellant claimed that he was not aware that he was carrying stolen meat. He stated that he believed that he was carrying groceries which he had been hired to collect from a bush at Cyrene Farm.

The appellant, who was an Assistant Inspector based at ZRP Mzilikazi in Bulawayo, appeared before a provincial magistrate sitting at Plumtree facing one count of contravening section 114(2)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23], that is, stock theft. He pleaded not guilty, and, after a protracted trial, he was convicted and sentenced to the minimum mandatory sentence of 9 years imprisonment.

The appellant was not satisfied with the conviction and sentence and noted an appeal with this court. The appellant's appeal is premised on the following grounds of appeal as set out in the Notice of Appeal;

1. The court a quo erred in convicting the appellant when he was a hired driver and had no knowledge and could not foresee that he had been hired to transport stolen beef.

2. The court a quo erred in convicting the appellant when he had been exonerated by evidence given by the appellant's co-accused who was acquitted on the same charge.

3. The court a quo erred in convicting the appellant when it was proven that he had no knowledge or had not realized that he could have been in possession of stolen beef.

4. The court a quo erred by convicting the appellant on the basis of unreliable evidence led from State witnesses.

5. The decision reached by the trial magistrate was grossly unreasonable to such an extent that no reasonable court could have convicted on the facts laid before the court….,.

This court notes that the trial court delivered a well-reasoned and articulated judgment. Most of the issues raised during the trial are, to a large extent, common cause. There are as follows:

(a) The appellant drove off from the Plumtree-Bulawayo road into the bush well into the night.

(b) He found men with bags waiting for him at two different locations.

(c) The men loaded meat into the accused's motor vehicle.

(d) The accused claims that he did not bother to see what two men were loading into his car - in a bushy area at night.

(e) He drove the vehicle towards the direction of Bulawayo with two strangers and one Sheila with goods that weighed 194kgs.

(f) When the appellant was confronted by farm workers who wanted to search the boot of his car he produced his police identity document.

(g) The appellant sped away and only stopped when one of his tyres was punctured in a high-speed chase. The occupants of his vehicle fled and were never apprehended.

On the basis of the established facts, the trial court came to the conclusion that the State had proved its case beyond reasonable doubt.

This case is based on circumstantial evidence. There is no direct evidence linking the appellant to the commission of the offence.

The law on circumstantial evidence is well established in our jurisdiction. The law on this subject has its basis on two cardinal rules of logic as laid down in the case of R v Blom 1939 AD 188 where the learned judge observed that the following rules must be observed:

(a) The inference sought to be drawn must be consistent with all the proved facts. If it is not, the inference cannot be drawn.

(b) The proved facts should be such that they exclude every reasonable inference from them save the one sought to be drawn. If they do not exclude other reasonable inferences, then there must be doubt whether the inference sought to be drawn is correct.

In the instant case, the following facts are clearly established by the evidence led by the State;

(a) That the beast belonging to Matopo Research Institute was slaughtered on the night in question in a bushy area.

(b) The appellant's motor vehicle was seen headed in the direction of the farm that night.

(c) That, upon being stopped, the appellant introduced himself by producing a police identification card and stated his rank in the police force as an Assistant Inspector.

(d) The farm workers, who had erected a road block, indicated to the appellant their intention to search his motor vehicle.

(e) The appellant drove off without subjecting himself to the search.

(f) The farm workers gave chase, and, in the process, the two vehicles side-swiped. The appellant did not stop.

(g) The appellant ran out of luck when his rear left tyre was punctured. He only stopped at a dark area at West Acre. He attempted to removed the bags of meat from the boot before he was apprehended.

It is my view that the proved facts reflect an unusual behaviour on the part of the appellant who was a senior police officer. The purpose of the appellant's journey to Cyrene Farm, in the dead of the night, was certainly not an innocent adventure. His determination and commitment to the entire trip only leads one to the conclusion that he was aware that he was on a mission to collect stolen meat. His explanation that he was hired to collect groceries from a bush, at night, defies logic and common sense.

In our law, the State has to prove the guilt of an accused person beyond reasonable doubt. Proof beyond reasonable doubt does not translate to proof beyond a shadow of doubt. Proof beyond reasonable doubt does not mean proof of an absolute degree of certainty. It simply means that there should be such proof as leaves no reasonable doubt in the mind of an ordinary man capable of a sound judgment and of appreciating human motivations. The State does not have to close every avenue of escape and fanciful or remote possibilities. See the case of S v Isolano 1985 (1) ZLR 62 (S).

I entertain no doubt that the trial court did not err when it came to the conclusion that from the evidence adduced by the State the only reasonable inference that may be drawn is that the appellant was aware that he was carrying stolen meat. When he was intercepted he fled the scene because he was well aware that he had been caught with stolen meat. His attempt to produce his police identification card was meant to evade the road block.

The trial court cannot be faulted for the factual findings that it made.

The court was alive to the fact it was dealing with a case in which the guilt of the accused was sought to be established by circumstantial evidence. It was satisfied, upon application of the relevant test, that the only fact which can be established by reasonable inference from all the circumstances of the case was that the appellant was well aware that he was ferrying stolen meat.

The court said:

“It is clear that the accused did not behave like an innocent hired driver. He protected the contents of his car boot. He did not want them to be seen or discovered by the eye witnesses. He only turned into West Acre because he had a tyre burst, not that he wanted light, because even when he arrived there, he did not park where there was light. It is apparent that the accused lied that he had been hired. He lied too that he did not produce his police identity.

He also lied about the source of the groceries. It is an afterthought that he wanted to go the West Acre and get illumination as proved by the evidence as discussed above. The accused was fleeing. A hired driver has nothing to hide. The accused had already been paid $20= according to him. He had nothing to lose by allowing the witnesses to search the boot whose contents he did not know and in respect of which the owners did not protest. He could not allow that because the witnesses would have discovered the offence, hence his refusal and flight…,.”

The decision of the court a quo is supported by evidence.

There is therefore no basis on which this court can interfere with the conviction. The position of our law is that the court will not lightly interfere with the factual findings of a lower court. This is so because the trial court has the benefit of assessing the demeanour of witnesses and of commenting on their credibility.

In the result, there is no merit whatsoever in the appeal against conviction.

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 charge is that on 25 October 2016 in Chali Village, Headman Gezani, Chief Sengwe, Chiredzi, Masvingo the accused struck the now deceased, Lawrence Mutileni, twice on the head with an axe handle causing his death.

Both the accused and the now deceased were fellow villagers in Chali Village.

On 25 October 2016, the now deceased proceeded to the accused's homestead where he found the accused and his wife present. The purpose of the visit was to deal with the issue of the alleged infidelity between the now deceased and the accused's wife, one Mavis Maringa.

The State alleges that the now deceased approached the accused to inquire into the rumour allegedly spread by the accused that the now deceased was having a love affair with the accused's wife. It alleged that a misunderstanding arose between the accused and the now deceased. During the ensuing altercation the accused is said to have taken an axe or hoe handle. The accused is said to have first struck the now deceased with the hoe handle on the head causing him to fall down and delivered a second blow as the now deceased was lying down. It is the State case that the accused picked a stone to further attack the now deceased but was restrained by his wife, Mavis Maringa. According to the State, the now deceased sustained two deep cuts on the head. The now deceased managed to proceed to Alice Chauke's nearby homestead from where he was taken to Davata Clinic and later transferred to Chikombedzi Hospital where he passed on the following day on 26 October 2016 as a result of a skull fracture.

The accused, in denying this charge, raises two defences;

(i) One of self-defence which is a complete defence; and

(ii) The partial defence of provocation.

The accused alleged that when the now deceased came to the accused's homestead he alleged that the accused was a rumour-monger who was propagating the allegation that the now deceased was having an affair with the accused's wife, Mavis Maringa. The accused said, realising the sensitivity of the matter, he suggested that they proceeded to the village head to discuss the matter but the now deceased, who had no shirt and armed with a hoe handle, refused insisting that they should discuss the matter. The accused said he obliged and called his wife, Mavis Maringa, who was the centre of the discussion. The accused said he then asked his wife if she was in an adulterous relationship with the now deceased. The accused said the response by his wife was to the effect that the now deceased had raped her whilst the two of them were herding cattle in the grazing area. The accused said the now deceased then retorted that the sexual act had hardly lasted five minutes.

This sparked an altercation between the accused and the now deceased.

The accused said the now deceased then took a hoe handle in a bid to assault the accused. The accused said he disarmed the now deceased and proceeded to hit the now deceased with the hoe handle on the head. The accused said due to the blow the now deceased fell and hit his head against a 3-legged pot which was nearby and sustained head injuries. The accused said the now deceased got up and proceeded to his home. It is the accused's contention that he was provoked by what the now deceased said admitting to having been intimate with the accused's wife, Mavis Maringa. The accused said he acted in self-defence when he assaulted the now deceased.

A total of three exhibits were produced, by consent, being;

(i) Exhibit 1 - the post mortem report;

(ii) Exhibit 2 – the accused's confirmed warned and cautioned statement; and

(iii) Exhibit 3 - an affidavit on the details of the hoe handle.

The post-mortem report was compiled by Dr Lavaia Keith who examined the now deceased's remains on 31 October 2016 at Chiredzi General Hospital. The doctor noted the following;

(i) That the now deceased had blood clots in both the ears and nostrils.

(ii) The now deceased had a laceration on occiput.

(iii) There were no long bone fractures noted.

(iv) The cause of death was base skull fracture.

Dr Lavaia Keith gave viva voce evidence further explaining the contents of the postmortem report. He explained the cause of death was the fracture of the lower most part of the skull described in medical terms as base skull fracture. In brief, he explained that the skull bones protect the brain and that the base skull is where vessels and nerves from which the functions of the human body are passed in and out. According to the doctor, the bloods clots in the nostrils and ears were indicative of base skull fracture. The doctor's view was that in order to inflict such an injury a blunt object would be used with a lot of force. The doctor said a hoe handle could inflict such an injury or even where the deceased hit against a hard object like a 3-legged pot.

The testimony of the doctor was not contested. The cause of the now deceased's death is therefore not in issue. It was the base skull fracture.

What is in issue is how the now deceased sustained that base skull fracture.

As per Exhibit 3, the hoe handle in issue is 80cm long, the weight is 837g and the diameter is 7cm. We accept the doctor's evidence that such a hoe handle, which is a blunt object, could cause base skull fracture. The accused admits using the hoe handle but seems to allege that it was not the source or cause of the now deceased's fatal injuries. Instead, the accused said it was the 3 legged pot.

The accused's confirmed warned and cautioned statement…, is somewhat different from the accused's Defence Outline and evidence. In that statement the accused said;

“I admit the charge of murder of the deceased. I assaulted him which resulted in his death. The reason being that the deceased was in a love affair with my wife. I did not intend to ask him about the issue concerning my wife, but, instead, it is him who came to my homestead to ask me about his love relationship with my wife.”

What is pertinent to note is that in that statement the accused seems to admit to have inflicted the fatal injuries on the now deceased and that those injuries were the proximate cause of the now deceased's death.

The other notable aspect in that statement is that the accused did not state that he acted in self-defence at all.

A proper reading of that statement would suggest that what provoked the accused was the alleged love affair between the now deceased and the accused's wife as the accused did not, in that statement, refer to any provocative utterances by the now deceased like that the sexual act hardly lasted five minutes or even mere admission of the alleged intimacy. In fact, nowhere in that statement does the accused refer to the alleged rape of his wife by the now deceased. The impression, as per that statement, suggests that the accused's wife and the now deceased were in love. Lastly, in that statement the accused did not mention at all that the now deceased was fatally injured when he hit his head against a 3-legged pot. No such pot is mentioned. These disparities between the accused's evidence and confirmed warned and cautioned statement indeed create problems for the accused's case. It puts into issue the truthfulness of the accused's version.

The evidence of Brenda Ndavani, Foster Mutileni, Elizabeth Matsimbi and Cst Ralph Chivenge was admitted in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07]….,.

The now deceased's wife, Portia Chauke, and the Investigating Officer, Cst. Russel Chigudu, gave viva voce evidence. This is in addition to the viva voce evidence of Dr. Keith Lavaia which we have already alluded to. We now deal with the evidence of Portia Chauke and Cst. Russel Chigudu.

Portia Chauke (Portia)

Portia is the now deceased's wife. She was employed at 18 Cornershop as a shop attendant and had been married to the now deceased for 5 years. They had one child. She did not witness how the now deceased was fatally injured but was well known to the accused.

Portia Chauke testified that a week before the death of the now deceased the accused visited her consecutively at her workplace on two days whose date she could not specifically recall. She said on the first occasion the accused told her that her husband, the now deceased, was in love with his wife. As she was not aware of this she simply told the accused to discuss that issue with the now deceased instead of her. She, nonetheless, was hurt but did not disclose it to her husband the now deceased. Portia said the following day the accused again approached her and made similar allegations. She realized the accused was angry as he made threats to kill her husband, the now deceased, saying he would thereafter dispose of his body.

Realizing the seriousness of the matter she decided to confront her husband, the now deceased, about the accused's allegations. According to her, the now deceased was taken aback as he denied being in love with the accused's wife. Instead, her husband, the now deceased, indicated that he was proceeding to confront the accused and inquire about the allegations.

Portia testified that moments later, after the departure of her husband, she received word that her husband, the now deceased, had been injured and was admitted at Davata Clinic. Since she was still angry about the alleged love affair between her husband and the accused's wife she could not bother to visit her husband at Davata Clinic. She was advised of her husband, the now deceased's, death the next day. Portia has since gone back to her maiden home.

Counsel for the accused did not meaningfully challenge Portia Chauke's evidence in cross examination. It was only in his written closing submissions that he urged us to disregard Portia's evidence who he labelled as a liar. We are however at pains to find any plausible reason as to why Portia would lie in her evidence. Her testimony clearly explains why the now deceased confronted the accused about the allegation that the now deceased was in love with the accused's wife, a confrontation confirmed by the accused himself. How else would the now deceased have known that the accused was making such an allegation or harboured such a suspicion. It is clear from Portia's evidence why the now deceased ended up at the accused's residence. We are therefore inclined to accept Portia's testimony moreso as we find no motive for her to fabricate the visits by the accused. The accused himself does not dispute that he harboured the suspicion that something untoward was going on between the deceased and his wife.

Cst Russel Chigudu (Cst Chigudu)

Cst Chigudu was based at ZRP Chikombedzi and is the investigating officer.

Cst Chigudu said a case of assault was first reported against the accused at Davata police base. As a result, he proceeded to Davata Clinic where the now deceased was admitted but was unable to get the now deceased's version of events as the now deceased was seriously injured and could no longer talk. All he observed was the two injuries on the now deceased's head, one on left side of the head which was more of a laceration and the other a deep cut at the back of the head. Due to the serious nature of the injuries the now deceased was transferred from Davata Clinic to Chikombedzi Hospital the same day on 25 October 2016. By then, other police details had arrested the accused on assault allegations that same day.

Cst Chigudu said thereafter he proceeded to the accused's homestead where he inquired from the accused's wife what had happened. The accused's wife indicated to him where the accused and the now deceased were seated discussing the issue; the place the accused took the hoe handle; the places the now deceased fell after being struck with the hoe handle on both occasions; and the three (3) broken pieces of the hoe handle. He later learnt of the now deceased's death the following day. The accused, by then, was in remand in prison.

Cst Chigudu said he then collected the accused from prison for purposes of further investigations and indications as the accused was now facing a more serious charge of murder. He said the accused explained to him that he had suspected that his wife was in love with the now deceased after he had seen the now deceased and his wife herding cattle together in a bushy area. Cst Chigudu asked the accused's wife about the accused's allegations and she denied being in love with the now deceased.

As per his investigations, Cst Chigudu said the accused did not allege that he, the accused, had fought the now deceased but had simply struck the now deceased with a hoe handle. The same version was confirmed by the accused's wife. He said neither the accused nor his wife mentioned that the now deceased had hit his head on a 3-legged pot and that no one mentioned or showed him that 3 legged pot. In fact, he said both the accused and his wife agreed that the accused had delivered two blows with the hoe handle which got broken. The accused's wife added that the accused had thereafter picked a stone to further attack the now deceased but she restrained the accused. The accused also made indications at the scene.

The only issue counsel for the accused took issue with when he cross-examined Cst Chigudu relates to the language the accused used during the investigations and indications. Cst Chigudu said although the accused was conversant with Venda language he also fully understands and speaks Shona. No other questions were put to Cst Chigudu.

We were urged by counsel for the accused, in his closing written submissions, to disregard Cst Chigudu's evidence as irrelevant to what is in issue.

We do not share that view.

Cst Chigudu's testimony corroborates what the accused said in his confirmed warned and cautioned statement on the material aspect of how the now deceased was injured. His testimony contradicts the accused's version. Further, it is incorrect that all what Cst Chigudu said is hearsay evidence. His evidence explains how the broken pieces of the hoe handle were recovered and the nature of the injuries sustained by the now deceased. This is not disputed by the accused. His testimony further discounts the accused's version that the now deceased hit his head against a 3 legged pot. Again, we are inclined to accept Cst Chigudu's evidence.

The accused's evidence

We have already alluded to the accused's Defence Outline - which version he adopted in his evidence. The accused's version is simply that it is the now deceased who came to the accused's homestead on 25 October 2016 asking the accused about the gossip that the now deceased was in love with the accused's wife. He said the now deceased seemed poised for a fight as he had a hoe handle and was without a shirt.

What is missing from the accused's version is how this gossip had started in the first place.

The State case is clear that it is the accused who first made such allegations to Portia Chauke, the now deceased's wife, which prompted the now deceased to proceed to the accused's residence to ask him about such allegations.

The accused's evidence is that he felt disrespected by the now deceased to be approached at his residence and asked about such an issue.

We are pains to appreciate why the accused would feel disrespected if all what the now deceased wanted to know was the basis of the accused's suspicions.

What we find intriguing is the accused's version that during this discussion the accused's wife said the now deceased had raped her. The accused said his wife said while she was herding cattle in the bush with the now deceased, the now deceased had dragged her into some bush where he caused her to bend and forcefully had sexual intercourse with her. The accused said the now deceased did not dispute this but simply retorted that the sexual act hardly lasted five (5) minutes thus further provoking the accused, resulting in an argument.

What we find baffling is that how would the accused had known about this alleged rape if his wife had not hitherto disclosed to him the sexual act? Further, if this is what had happened and was a secret between the now deceased and the accused's wife; why then would the now deceased approach the accused.?

The accused's version of events is not only illogical but cannot possibly be true. This explains why it is different from the version the accused gave in his confirmed warned and cautioned statement.

In relation to the assault, the accused's version is that it is the now deceased who took the hoe handle during the argument intending to strike the accused. The accused said he then dis-armed the now deceased. The accused said he then struck the now deceased on the left side of the head with the hoe handle causing the now deceased to fall on his back. The now deceased bled from the head as he hit his head against a 3 legged pot. The accused denied that the hoe handle he used got broken.

We are inclined not to accept the accused's version for a number of reasons.

Firstly, if this is what had transpired the accused would have told Cst Chigudu such a version and include it in his confirmed warned and cautioned statement on how the now deceased was injured. The accused would not have failed to make such material disclosures which were central to the police investigations. The conclusion we make is that this latter version by the accused is a sanitised one and an afterthought.

Even if we were to accept the accused's version we wonder why the accused alleges he acted in self-defence as defined in section 253(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

If the accused had disarmed the now deceased of the hoe handle it meant he had he had thwarted the alleged attack? Was it then reasonable, in the circumstances, to proceed to strike the unarmed now deceased with a hoe handle in the head?

What makes the accused's version clearly improbable is that he hit the now deceased on the left side of the head; how had the now deceased fell on his back? The laws of motion dictate that the now deceased would, in all probabilities, have fallen on his side.

It is also crucial to note that the issue of the 3-legged pot only arises now in the accused's evidence in court. The bottom line is that the accused's version factually falls far short of meeting the requirements of self defence in our law. Such a defence can therefore not succeed in the circumstances.

Our view is that although no eye witness testified on how the now deceased was fatally injured the accused himself concedes that he struck the now deceased on the head with the hoe handle.

We have already discounted the possibility that the now deceased fell onto a 3 legged pot. The accused's motive was clear from Portia Chauke's evidence. He harboured unfounded suspicion that something improper was going on between his wife and the now deceased. Indeed, the suspicion was baseless hence the accused's various explanations that he suspected a love affair but later on said his wife was raped.

The accused has not discharged the evidential onus thrust upon him in terms of section 256(1) of the Criminal Procedure and Evidence Act [Chapter 9:07] for him to successfully distance himself from his confirmed warned and cautioned statement….,.

Our conclusion is that the accused has dismally failed to lay the factual basis that he acted in self-defence. In fact, that assertion is clearly false. The same goes for the accused's allegation that he was provoked as is provided in section 239(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] which is a partial defence to a charge of murder. The accused has dismally failed to show how he was provoked by the now deceased but has sought to mislead the court as regards the basis of the alleged provocation. No wonder why the accused blows hot and cold by alleging a love affair between his wife and the now deceased but in the same breath alleges forced sexual act.

We are satisfied that the accused struck the now deceased with the hoe handle twice on the head. The accused delivered two blows, one on the side of the head and the other at the back of the head. Severe force was used as the hoe handle broke into three (3) pieces. This resulted in basal skull fracture which is the proximate cause of the now deceased's death. Whatever the accused's motivation was he did realize that there was a risk or possibility that such a brutal assault may cause death but nonetheless proceeded to assault the now deceased in that manner oblivious of such a risk or possibility. We are inclined to find the accused guilty of murder with constructive intent.

VERDICT: Guilty of contravening section 47(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]:- Murder with constructive intent.

The appellant…, made a confession in the course of the court a quo's proceedings.

The trial court explained to him the meaning and exigencies of special circumstances after which it invited him to state whether or not such circumstances existed in respect of the case which it had convicted him of. His submissions were as follows:

“I committed the offence after the Human Resources Department at ZETD had held several meetings with meter readers and announced that the department of meter readers was going to be closed down due to the introduction of pre-paid meters. The same department further advised us that we should look for employment elsewhere. I was led into the commission of the offence by a colleague who is currently on the run without realising the gravity of the offence…,.”…,.

The appellant, therefore, stands convicted of the alternative charge.

The case against the accused was woven around his own statement to the police recorded two days after the death of his mother. That statement was duly confirmed by the magistrate on 19 May 2014 some five days after he killed his mother. It is important to quote his statement in extensor…,.

“I do admit the charge levelled against me. The reason for this is that the parental bondage between me and my mother had broken down because of problems between the two of us. When I got married, in 2012, my mother ran away from her duty of welcoming her daughter-in-law….,. Three days after my marriage I suffered an erection dysfunction (sic) and when I told her she said it was a spiritual issue and I had to go and consult prophets and traditional doctors for solution. She refused to accompany me to seek remedy saying I had not followed her wish that I should not get married and she was not my mother. I asked her that if she was not my mother could she tell me where my real mother was but she kept quite (sic).I then consulted a number of local prophets and traditional doctors who all pointed out that my mother was the source of all my troubles because I should have not married and she was using me as her spiritual husband. That did not surprise me because most of the time I used to dream of making love to her. I did not confront her for a while as I was gathering the courage. After a while I had the courage and I asked her about what the prophets had said and she denied having anything to do with my problems. I exchanged words with her and she had to report me to Nyanga Police….,. I was acquitted due to lack of evidence since there was no independent evidence to substantiate my mother's claim that I had verbally assaulted her whilst pointing her a finger. I then left my mother's homestead and went to lodge at Clive Melinda's homestead….,. Even though I had left my mother's homestead, we continued to have squabbles and I had to go to Watsomba sometime in 2013 to inform my uncles about the persistent problems between me and my mother. My uncle, baba wa Nyasha, and another who I only know as Longchase advised me to retain (sic) home and they promised to come and help solve our problems.”

He gives an insight into another possible source of problems between him and his mother on the same page where he states:

“In January 2014, my niece, Tinashe Lapoyo, phoned from Banket informing me that my mother was not giving him and his siblings their 50% share of the money which was realized from their father's house rentals. Tinashe Lapoyo is my late sister's son whose father is also late and the house of his parents, which is in Norton, was being administered by my mother. Tinashe had been complaining that my mother was abusing the money without giving them their share. I told my mother what Tinashe had said and she said that she could only discuss this with the bigger Lapoyos. In April 2014 I went to Banket to look for the Lapoyos and I found Sekai Lapoyo who is a sister to my late brother-in-law and I brought him to my mother's homestead to solve the issue of how the rentals of her brother's house was going to be managed (sic). Sekai Lapoyo, my mother held a meeting and we agreed that Tinashe Lapoyo was not supposed to get anything since he had refused to go to school. The money was supposed to be used to support Upenyu Hamunakwadi, my late sister's child, who she sired from her previous marriage before she was married to Lapoyo and Best Lapoyo who are still going to tertiary school. In April 2014, Upenyu Hamunakwadi was given US$200= meaning that in May 2014 Best Lapoyo was supposed to be given the same amount. In May 2014 my mother said that she had lost details of Best's bank account and she had sent Best Lapoyo's money through Upenyu's account. When she was later informed by Best that Upenyu had squandered his money she began to cry and in a few days she became sick possibly due to depression…,.”

Getting closer to the day of this evil deed he goes on in his own words which were not translated by anyone into English:

“On the 11^th May 2014 she was discharged from hospital and she passed through my homestead on her was (sic) to fetch some water and I welcomed her. On the 14^th May 2014 I was passing through my mother's homestead proceeding to my friend Wonder Mudiwa's homestead when I saw my mother's niece, Mai Emily Mhlanga, whom I had a confrontation with at Nyanga Hospital because of her refusal to let me use my mother's phone to phone a relative had visited (sic). I then went to her and asked her to explain to me why she behaved the way she did at the hospital. Before she could say any word, my mother interjected and told me that I should leave her alone and she regrets to have me as a son. I then pushed my mother into a granary hut and closed the door and chased her niece, Mai Mhlanga, from my mother's homestead. When I came back from chasing Mai Emily Mhlanga I was just cross and that is when committed this horrific act. I went into the main house and took a nylon cloth belt and told her that today was the end of our wars as I was going to kill her. She then fell to the ground facing down possibly frightened by what I had just said. I then used the belt to strangle her whilst pressing her down with my knees. I then set on top of her still choking her with the belt until she died. I then left her like that, got out of the hut and closed the door. I proceeded to my homestead where I found my wife at home.”

He went on to describe how he had attempted to leave the area but failed in this bid when he could not raise the bus fare for the trip. He went on to give detail of how he kept his wife unaware of his dark deed by pretending to escort his visitor away from home then surreptitiously finding his way back to his mother's homestead in order to put final touches to this horrible act and make it look like his mother had committed suicide. He first went into the granary and covered his mother's body with a cloth and a tent. He went to pass time with friends but then noticed that the persistent Mai Mhlanga and two others were back at the deceased's homestead looking for the deceased. He asked her why she had not gone to report him to the police as she was wont to do. She had no bus fare, she said. The ladies asked him where his mother was. He lied that he had seen her going towards her garden. They then left. Later, to his wife, he created a false visit to a neighbour as a means to find his way back without arousing his wife's suspicions. He described his final act in trying to stage-manage a suicide in the following terms:

“…, and proceeded to my mother's homestead around 1900hours. I proceeded to the granary hut where I carried the body of my mother and took it into her bedroom. I carried it on my shoulder and as I was about to enter her bedroom I removed the body from my shoulder put it in my arms and rested whilst supporting its weight with my legs. I rested for a few seconds and thereafter entered the bedroom. I then took the belt I had used to strangle her with and tied it on her neck. I took a trunk and placed her body and tried to lift her body toward the beam but failed because of the low height of the trunk. I then went to the dining and took a kitchen cupboard and then place her body on top of the cupboard and put the belt around the truss. I lifted the body being supported with the cupboard and tied the belt to the beam. After that I removed the trunk and left the body hanging. I had a hard time in doing all this but this was the only thing I could have done in trying to cover up on what I had done.”…,.

We are satisfied, by his own admission, that when he announced to his mother that he had decided to end the war between him and his mother on 14 May 2014, by killing her, he was genuinely announcing his true desire and intention to kill.

The delay in finalising this trial was occasioned by the absence of the doctor who performed the postmortem on the remains of the now deceased. The said doctor had relocated to Namibia and it took time to put logistical arrangements to enable him to travel to Zimbabwe to testify....,. The doctor's evidence is very critical in this case.

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

The charge is that on 10 November 2015, in Chinyerere Village, Chief Nyakunhuwa, Zaka, Masvingo the accused caused the death of Tinago Chitapa by knocking his head onto some bare rock and assaulting him on both cheeks with open hands.

The accused, who was 26 years old at the material time, regarded the 78-year-old now deceased as a nephew. They both resided in the same village.

The accused believed that the now deceased was practising witchcraft and causing bad luck on the accused. He alleged that he had seen the now deceased the previous night, on 9 November 2015, sprinkling some water calling out the names of the accused's family while at the homestead of the accused's grandmother. This prompted the accused, on 10 November 2015, to approach the now deceased at about 1900hrs to discuss the accused's suspicions. The accused misled the now deceased that he was wanted by their grandmother and took him away. Their grandmother was not at her homestead. Instead, the accused took the now deceased to a bare rock near one Philemon Tamurepi's homestead. The accused demanded that the now deceased confesses to practising witchcraft but the now deceased professed ignorance. This apparently incensed the accused.

The State alleges that the accused proceeded to bash the now deceased's head against a bare rock and slapping him twice on the cheeks. The State case is that the now deceased was, as a result of this assault, seriously injured.

Philemon Tamirepi heard the commotion near his homestead and rushed to the scene. It is alleged the now deceased informed him about the assault and that the accused warned Philemon Tamirepi not to involve himself in the dispute. The accused and the now deceased then left the scene going to their respective homes.

The State alleges that the now deceased advised his wife, Sophia Shiri, about the alleged assault that night as he complained of a headache. The now deceased advised the Village Head about the alleged assault the next day. It is the State case that three days later, on 13 November 2015, the now deceased's condition deteriorated and he was ferried to Musiso Mission Hospital in Zaka after which he was transferred to Masvingo Provincial Hospital and then to Parirenyatwa Hospital in Harare where he passed on on 17 November 2015. A post mortem was performed at Ndanga Hospital in Zaka where the cause of death was said to be a result of head injury.

The accused, in his Defence Outline, while not disputing the sequence of events of the night of 10 November 2015 denied assaulting the now deceased in the manner alleged and causing his death. The accused said as he confronted the now deceased about the witchcraft allegations, as they were near Philemon's Tamirepi's homestead, the now deceased became aggressive and assaulted the accused with the now deceased's walking stick. The accused said he, in turn, acted in self defence and hit back at the now deceased by slapping him on the cheeks with both hands. He denied bashing the now deceased's head against any rock. The accused said the assault he perpetrated on the now deceased, with open hands, could not have possibly caused the now deceased's demise. In fact, the accused said the now deceased was not injured as a result of the assault hence was able to perform his daily chores the next day fetching firewood and attending funeral in the village. He said the now deceased was also able to walk to make a report to the Village Head. The accused contends that the postmortem report is misleading as the findings therein were made at the behest of the now deceased's relatives who were hell bent on fixing the accused for the altercation he had had with the now deceased.

The evidence of Sgt. Paul Chimbaka and Sgt Anyway Mutamba was admitted in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07].

Sgt Anyway Mutamba is the one who recorded the accused's confirmed warned and cautioned statement. Sgt Paul Chimbaka investigated the matter. The gist of his evidence is that he took the accused for indications together with Philemon Tamirepi and drew a sketch plan.

Three State witnesses, Philemon Tamirepi, Sophia Shiri and Dr Chaibva gave viva voce evidence. The accused testified and did not call witnesses. A total of three (3) exhibits, being exhibit 1, the post mortem report; exhibit 2, the accused's confirmed warned and cautioned statement, and exhibit 3, Form 221 (Request for the post mortem report) were produced by consent.

In our view, nothing turns on Form 231 tendered as Exhibit 3.

The accused's confirmed warned and cautioned statement.., is almost the same as the accused's Defence Outline save for the concession that a day after this incident, now on 11 November 2015, the accused said the now deceased was not feeling well contrary to the averments in his Defence Outline.

The post-mortem report…, compiled by Dr Chaibva on 22 November 2015 indicates that no external injuries were observed. The cause of death is indicated as head injury.

The issue which this court is seized with relates to the manner the accused allegedly assaulted the now deceased and whether that assault was the proximate cause of the now deceased's death. What compounds the problem in this matter is that there is no eye witness to the alleged assault.

We turn to the viva voce evidence led;

Philemon Tamirepi (Philemon)

Philemon went to where the accused and the now deceased were on the night in question, on 10 November 2015, after the assault. He said what attracted him to the scene was the noise being made by both the accused and the now deceased near his homestead. He recognised the voices as those of the accused and the now deceased who were speaking at the top of their voices. The accused was demanding a confession from the now deceased who, in turn, was saying he knew nothing about the allegations levelled against him. He then approached the scene inquiring what the problem was. The accused told him it was none of his business.

Philemon said the now deceased was lying down on his back on some rock surface with his walking stick by his side and his cell phone handset on the ground. The accused was standing close by. He said he implored the two to go home and discuss their differences the next day during daylight. Philemon said the now deceased got up picking his mobile cellphone and walking stick remarking that he, Philemon, had arrived late as the accused had already assaulted the now deceased. Philemon did not inquire into the manner of the alleged assault perpetrated on the now deceased and the accused did not respond save to say it was none of Philemon's business. The accused and the now deceased then went their separate ways.

Philemon said thereafter he only saw the now deceased three days later and by then the now deceased was seriously sick and unable to talk or eat. The now deceased's son, who was away, advised them to take him to hospital. He said the accused's father paid for the transport cost to Musiso Mission Hospital in Zaka. Philemon said he accompanied the now deceased to Musiso Mission Hospital where the now deceased was treated of high blood pressure and diabetes after which he was referred to Masvingo Provincial Hospital for a scan to be done in relation to the alleged assault. Philemon played no further part. He said the accused's father, again, paid for the transport of the now deceased to Masvingo.

Philemon said he later learnt the now deceased had passed on and the accused's father, again, paid for the burial costs including transporting the body for burial at their rural home. Philemon said the body could not be immediately buried as a portmortem had not been done and the now deceased's body was ferried to Masvingo Provincial Hospital for that purpose. He however said the post-mortem was not done at Masvingo Provincial Hospital but at Ndanga District Hospital in Zaka. By then, the accused had been arrested in connection with the now deceased's death.

Philemon Tamirepi said the now deceased did not disclose to him the manner the accused had allegedly assaulted the now deceased. He did not see any visible injuries on the now deceased who, by then, was able to talk and walk on his own without any problem.

The accused did not materially challenge Philemon's evidence save to say Philemon was drunk and did not see properly in the darkness as the accused insisted that the now deceased was not lying on his back but seated at the scene.

In our view, Philemon Tamirepi's testimony does not answer the material question of how the accused allegedly assaulted the now deceased. In our assessment it matters not in what position Philemon found the now deceased at the scene. He could have been seated or lying on his back but that would not change the price of rice in China as it were. It was also not clear from Philemon's evidence why the accused's father took it upon himself to pay for the expenses related to the now deceased. Was it because the accused's father accepted the accused's responsibility in relation to the now deceased's illness? Did he do so at the accused's behest? Did he do so as a good Samaritan and/or relative? The accused's father did not testify as he was not called hence these questions remained unanswered. It is also not clear from Philemon's evidence as at what point the accused was arrested. At the end of the day Philemon's testimony does not answer the material question.

Sophia Shiri (Sophia)

Sophia is the now deceased's wife. She said when she protested that the now deceased could not go with the accused to their grandmother's homestead on the day in question as it was late at night the accused, who did not appear angry at all, promised to accompany the now deceased back home later that night. She however said the now deceased returned home alone at about 2100 hours.

According to Sophia, the now deceased suffered from painful legs hence he used a walking stick.

Upon his return home, Sophia Shiri said the now deceased reported to her that the accused had assaulted him by hitting the now deceased's head against some rock. This ordinarily would be hearsay evidence and the State did not allege that it fits within the category of a dying declaration. This puts the court in quandary in that it cannot accept this as a fact proved on how the accused allegedly assaulted the now deceased.

Sophia said they retired to bed and she realised the now deceased was in pain, crying, saying the accused had bashed his head against some rock for allegedly sprinkling some holy water to cast some evil spell on the accused's family at their grandmother's homestead.

Sophia testified that the next day the now deceased's head was swollen at the back and forehead. His eyes were bloodshot hence he went to report the alleged assault to the village head.

Sophia was unclear as to when the now deceased's condition deteriorated to the point where he collapsed and could no longer eat or talk. She confirmed that the accused's father paid for the now deceased's transport to Musiso Mission Hospital. She further confirmed that at Musiso Mission Hospital the now deceased was treated for diabetes and that he was referred to Masvingo Provincial Hospital for a scan to be done on his head. From Masvingo, Sophia said the now deceased was transferred to Parirenyatwa Hospital in Harare where he later passed on. Again, Sophia said the accused's relatives paid for all the required transport and burial costs inclusive of three buckets of maize consumed at the now deceased's funeral. She too did not explain what informed this gesture from the accused's relatives and at what point the accused was arrested.

When Sophia was probed, in cross examination, she said the now deceased's diabetic condition was only diagonised at Musiso Mission Hospital in Zaka. This would seem to suggest that the now deceased may well not have been aware of the fact that he was diabetic. Sophia further said the now deceased was allegedly assaulted on Tuesday night and that he was only ferried to Musiso Mission Hospital on Friday.

In our view, Sophia Shiri's evidence does not answer the question on how the now deceased was assaulted by the accused.

Dr Tafara Chaibva (Dr Chaibva)

In our assessment, Dr Chaibva is the most critical witness in this matter.

At the material time Dr Chaibva was based at Ndanga District Hospital in Zaka. Currently, he is based in Namibia.

Dr Chaibva testified that he examined the remains of the now deceased's body at Ndanga District Hospital in Zaka, as per Exhibit 3, at the behest of the police, on 22 November 2015. He said upon examining the now deceased's body he did not find any external injuries. He concluded that the cause of the now deceased's death was head injury.

The evidence of Dr Chaibva is not only puzzling but further complicates this matter. His professional conduct leaves much to be desired on how he compiled the post mortem report. We say so because he admitted that what he endorsed as the cause of the now deceased's death is solely based on what the police told him about the history of the now deceased's illness - it was not his own professional independent finding. Further, he had not observed any injury on the now deceased's head or any fracture on the head. The mind boggles as to why he did not simply say the cause of death was indeterminate from his examination and probably recommended a full postmortem by a pathologist as he had only done an external post-mortem. In fact, he conceded that his so-called finding was based on the police report to him that the now deceased's head had been bashed against a rock!!

From the evidence of Dr Chaibva this matter is further complicated by the fact that the police were not even candid with him in disclosing the medical history of the now deceased and the sequence of events. It turns out that the police, in a bid to have a postmortem done by him at Ndanga Hospital, lied to him that the now deceased had died at home when in fact he had died at Parirenyatwa Hospital in Harare. It is unclear why the post mortem was not done at Parirenyatwa Hospital where the now deceased died and how his body was released without such a post-mortem having been done. In fact, Dr Chaibva was unaware that the now deceased had been first taken to Musiso Mission Hospital, then to Masvingo Provincial Hospital. It was not even disclosed to him that he was requested to perform a post mortem four days after the now deceased's death. He was never advised that the now deceased also suffered from high blood pressure and diabetes. He was not aware that doctors at Masvingo General Hospital had refused to carry out a postmortem report insisting that it should be done at the hospital where the now deceased died - at Parirenyatwa. In fact, the now deceased had never been admitted at Ndanga District Hospital in Zaka where the post-mortem was subsequently done but had been attended to at Musiso Mission Hospital in Zaka, Masvingo Provincial Hospital and Parirenyatwa Hospital in Harare.

While Dr Chaibva's conduct cannot be said to be beyond reproach, the police conduct in this matter deserves censure. Why did the police lie to Dr Chaibva that the now deceased had died at home and failed to disclose to him the sequence of events? Clearly, the investigations in this matter were not only poorly done but done in an unprofessional and dishonest manner. The motive is difficult to understand. This is a case which called out for a proper full post mortem to ascertain the proximate cause of the now deceased's death or at least to have a postmortem done at Parirenyatwa Hospital where the now deceased died. The conduct of Dr Chaibva further adds to this jigsaw puzzle.

The cause of the now deceased's death is not an issue this court can speculate on. It is an objective fact which should be proved from the facts before the court. The fact that the accused lied to the now deceased in a bid to lure the now deceased from his home at night would not prove the now deceased's death. The same goes for the accused's belief that the now deceased practised witchcraft and that this angered the accused.

The accused admitted that he assaulted the now deceased. It is the manner of the assault which is in issue and whether it led to the now deceased's death. There was no eyewitness to the assault. The manner of the assault cannot be derived from the circumstantial evidence available.

What exercised the mind of this court is whether there is a causal link between the admitted assault perpetrated on the now deceased by the accused.

The question of causation is discussed by the learned author, JONATHAN BURCHELL, in his book Principles of Criminal Law 5^th Edition 2016....,. The learned author deals with the need for a causal link between the act alleged or omission and the ultimate unlawful consequence. These are both factual and legal issues. Put differently, the act or omission complained of against an accused person should create a causal link or connection to the now deceased's death. There must not be an intervening act or event which serves to break the chain of causation.

In this matter we are unable to say with certainty what caused the now deceased's death. In fact, it has not been proved that the now deceased had his head bashed against a rock on 10 November 2015 and that he sustained injuries leading to his death seven days later, on 17 November 2015, at Parirenyatwa Hospital. Was there any intervening act or event from 10 November 2015 to 17 November 2015, a novus actus (or nova causa) interveniens? Further, it has been shown that the now deceased suffered from other ailments like diabetes and high blood pressure.

At the end of the day this court is left in doubt on how the accused assaulted the now deceased. He might as well have bashed his head against the rock but has this been proved beyond reasonable doubt?

Clearly not.

The injuries inflicted on the now deceased remain unknown - if not unclear. It is therefore trite that in any criminal trial the doubt which exists should be resolved in favour of the accused person. It is unsafe, in the circumstances, to find the accused in this case guilty of the offence of murder as defined in section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] or even the permissible of contravening section 49 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] relating to culpable homicide if all what is proved is that the accused slapped the now deceased twice on his cheeks with open hands and the cause of the now deceased's death is unclear.

In the circumstances, the accused can only be found guilty of contravening section 89(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] which relates to the permissible verdict of assault.

VERDICT – Guilty of assault as defined in section 89 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

In S v Tambo 2007 (2) ZLR 33 (H)…, (a criminal matter), the court held that;

“Circumstantial evidence can only be used to draw an inference if the inference sought to be drawn is the only reasonable one which can be drawn from those facts. It must be supported by rational reasoning and an analysis of the proved facts. The correct judicial assessment of evidence must be based on establishing proved facts, the proof of which must be a result of careful analysis of all the evidence led. The final result must be the product of an impartial and dispassionate assessment of all the evidence placed before the court.”…,.

The accused person faces a charge of murder, it being alleged that on 7 October 2014 he chopped his wife, Fortunate Mutale, decapitating her head with an axe.

Documentary evidence was tendered in the following nature, State summary, Defence Outline, the post-mortem report, the accused's confirmed warned and cautioned statement, and the psychiatrist's report. They were duly marked. The axe that was allegedly used in the commission of the offence was also tendered and duly marked.

The State called two witnesses who gave viva voce evidence. They witnessed the aftermath of the deceased's death. The first witness was called by the deceased who was screaming alleging that the accused was killing her. She went there to find the deceased's decapitated body aside a pool of blood with no head. The second State witness also found the deceased's body aside a pool of blood with no head. The deceased's head was in a box in the bedroom hut underneath the bed. It was recovered by the police.

The evidence of Cuthbert Shonhiwa, Shadreck Tanikai, and Dr S. Pesanai was admitted into the court record in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07].

The accused person murdered the deceased in the absence of any other witness. It is his version that the court has to assess in a bid to establish what transpired.

In his confirmed warned and cautioned statement, he admits to killing the deceased. He says;

“I admit to the allegations of killing Fortunate Mutale on the 7^th of October 2014 around 2100 hours. By striking her with an axe on the head, and once on the thumb of the right hand, then several times on the neck, until I chopped off the neck, she then died. I took the head and put it in the hut and closed the door.”

In his evidence in court he sought to disown the confirmed warned and cautioned statement. Its important to note that in his confirmed warned and cautioned statement he does not mention any infidelity on the part of his wife. The court is entitled to draw an adverse inference on the failure to mention this crucial point at the time when his memory was still fresh.

His grandmother, and the other witness, who is a neighbour, knew the accused and the deceased to have a peaceful marriage and they never heard of her extra marital affairs as alleged. The accused himself failed to explain to the court how many boyfriends the deceased had as he alleged infidelity in his Defence Outline.

The accused also failed to explain precisely what happened on the night in question.

In his Defence Outline, paragraph 6, he says as he approached the kitchen, he saw a man leaving and upon querying the deceased, he was provoked. However, in court he says he entered the kitchen and found the deceased with a man. He could not explain precisely to the court what happened as he entered. He says this man attacked him with fists, and he, in turn, turned on the deceased as he did not care much about this man. He could not clearly explain at what stage he introduced the axe. The accused had so much difficulty in presenting the scenario that obtained on the night in question because he is trying to create an event that never happened hence the difficulty.

A concoted story will not stand the test of cross examination in this court as usual. That's the predicament the accused finds himself in.

He tries to portray his marriage as a troubled one in his Defence Outline. But, in court, he failed to sustain that point and even admitted that there were no other problems save in the fateful day. He also gives various reasons for going to the kitchen, firstly, in his evidence-in-chief he said he was going to check on his wife and children, and, later on, when asked by the court, he said that he had gone there to get his food. If his food was in the kitchen, and the deceased knew he would come for his food, obviously, would she then entertain a man in there before the accused would have taken his food?

The accused is a liar, he is the only person who knows why he committed this callous murder on the deceased. He is deliberately hiding the true reason to the court and trying to throw in various defences, first, that of provocation, which when he realized he could not sustain any longer, he changed to self defence.

Even if one were to follow the fabricated defence of self; what was he defending himself from the deceased, yet he told the court that it is the stranger who fought him with clenched fists and he then turned on the deceased instead of hitting back the person that was attacking him?

The accused is lying, and he is clearly a very bad liar who tries to build his case as it goes.

The accused killed the deceased in cold blood, in a very callous way, chopping a person's head with an axe several times until when the head is decapitated can only mean one thing - that he desired death. Death was his aim and object. The accused is accordingly convicted of murder with actual intent.

The appellant was jointly charged with two other persons with two Counts; namely, attempted murder in contravention of section 189 as read with section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and unlawful possession of a firearm in contravention of section 4 of the Firearms Act [Chapter 10:09].

After a protracted trial, he was convicted on both Counts….,. He now appeals against both conviction and sentence in respect of both Counts.

Of the several grounds of appeal raised in the notice and grounds of appeal by the appellant, a reading of the heads of argument reveals that only two grounds are relied upon on appeal. These grounds may be summarised as follows;

In respect of the first Count of attempted murder, the appellant contends that the court a quo erred in relying on the ballistic evidence tendered by Detective Assistant Inspector Dube to convict….,.

It is critically important to set out the evidence upon which the criticism on appeal is based and assess the impact of the evidence on the nature of the case against the appellant.

The court a quo heard evidence from seven witnesses called by the State. Only the complainant in the attempted murder charge was a non-police witness. The rest were.

I will discuss the evidence of Detective Assistant Inspector Dube and its probative value vis-a-vis the appellant's conviction on the first Count of attempted murder.

The appellant was convicted for attempted murder on the basis that the expert evidence from the ballistic examination identified the weapon recovered from the appellant's residence as the one that was fired at the complainant in the attempted murder charge. In respect of this Count the following facts were largely not in dispute;

On 29 February 2012, the complainant was trailed by two motor vehicles as he drove home from town. The one vehicle gave up the pursuit before the complainant went out of town. The other pursued him out of town. When he got to a certain spot, the complainant decided to pull off the road and see whether his pursuers would drive past. They did not. They pulled up alongside his vehicle and opened the off-side doors. The complainant saw the barrel of a gun and decided to speed off. He was shot at, with one bullet head lodging in the boot of his motor vehicle. He later discovered another lodged in a loaf of bread. After the assailants drove back into town, the complainant drove to the nearest police station. He took two police officers to the scene of the shooting that same night. The police officers recovered three spent cartridges from the tarred road at the scene of the shooting and one bullet head from the complainant's motor vehicle boot. These were taken to Marlborough Police Station. The investigating officer, Detective Inspector Brian Maigeta conveyed these items to Assistant Inspector Innocent Dube (“Dube”) of the Police Ballistics Laboratory for examination and further processing on 6 March 2012. Assistant Inspector Innocent Dube produced a report on 12 March 2012 in which he stated the following:

“REPORT

On the 6^th of March 2012, the following were received per hand of number 056826 R, Detective Sergeant Maigeta:

(a) 3 x 9 x19mm fired cartridge cases.

(b) 1 x bullet head.

Examination of exhibit (a) showed that they are 9 x19mm fired cartridge cases which were discharged from the same weapon that chambers 9 x19mm live ammunition.

Examination of exhibit (b) showed that it is a 9mm bullet head which was discharged from a weapon the chambers 9mm live ammunition.

Exhibits (a) and (b) did not match any outstanding scenes in the laboratory.”

On 23 May 2012, Assistant Inspector Innocent Dube produced another report in the same format to the following effect. He had received, from Detective Sergeant Nhokwara (“Nhokwara”), a 9mm CZ pistol serial number 20799/ BSAP 423 and a .38 Special Taurus revolver without a serial number as it had been erased. The two firearms were functional. He wrote;

“Examination of the chambers and barrels of exhibits (a) and (b) showed some deposits of gunshot residue an indication that weapons (a) and (b) were fired but cannot ascertain when they were fired.

Test cases from exhibit (a) matched exhibits (a) and (b) in FB65/2012, (CID HOMICIDE HARARE, MARLBOROUGH CR 12/3/2012, ATTEMPTED MURDER, CORNER ALENDALE ROAD AND KATHLEEEN CHRISTON BANK ON 29/02/2012).

Test cases fired from exhibit (b) did not match any outstanding scenes in the laboratory. Weapons (a) and (b) were manufactured after 1900.”

On 18 May 2012, a team of detectives, led by Detective Inspector Alexander Jachi of the Criminal Investigating Department's Vehicle Theft Squad, investigating some other offences, received a report concerning the appellant and others. That report gave them reasonable cause to believe that they might be able to recover firearms from the appellant. Acting on this piece of information the team proceeded to Dema. They found the appellant at his uncle's homestead and placed him under arrest. They asked him to take him to his residence which was a single flat-roofed room some 200m away. In the presence of his uncle, a search of the appellant's room yielded a CZ pistol from between the mattress and base-bed.

There is dispute as to whether the appellant and his uncle voluntarily signed an acknowledgement of the recovery of the fire-arm.

This is the pistol handed to Assistant Inspector Innocent Dube on 21 May 2012 by Detective Sergeant Nhokwara. This information was relayed to Detective Sergeant Maigeta (“Maigeta”) who is the investigating officer for the Christon Bank attempted murder report. The appellant and his co-accused were then charged for attempted murder and unlawful possession of firearms.

The defence attacked the ballistics reports as so lacking in detail that it could not possibly be the basis for the conclusions made by Assistant Inspector Innocent Dube.

In court, Assistant Inspector Innocent Dube suggested that the weapon recovered at the appellant's Dema residence was the same weapon which was fired during the commission of the attempted murder charge. Despite the heavy criticism of the lack of detail in the report by the defence, the learned trial magistrate went on to accept the report by Assistant Inspector Innocent Dube as sufficient evidence to link the appellant to the attempted murder of the complainant.

The trial magistrate also pointed to the fact that the appellant was known to his erstwhile co-accused as another factor which strengthened the case against the appellant, since, according to the court a quo, that other co-accused was linked to the break-in in Bulawayo in which the pistol was stolen.

He accepted that there was no eyewitness to the shooting which placed the appellant at the scene but still held it proper to convict the appellant. He reasoned that because the pistol found inside the appellant's residence was found to have been fired, therefore, it was the appellant who fired it. He convicted the appellant of illegal possession of the firearm too.

Counsel for the appellant persisted with his argument that there was no sufficient evidence that the CZ pistol was the same pistol fired in the attempted murder incident at Christon Bank. It was incumbent on the expert witness to have recorded the similarities which he testified to in court as the basis of the opinion which he expressed in court that the pistol recovered from the appellant is the same one fired on the complainant. Because he did not, the opinion he expressed ought not to have been accepted by the court below.

The Constitutional Court of South Africa expressed itself on the subject of expert witnesses in Glenister v President of the Republic of South Africa and Others (CCT 28/13) (2013) ZACC 20; 2013 (11) BLCR 1246 (CC) (14 June 2013) (accessed on 9 February 2015);

“In essence, the function of an expert is to assist the court to reach a conclusion on a matter on which the court itself does not have the necessary knowledge to decide. It is not the mere opinion of the witness which is decisive but his ability to satisfy the court that, because of his special skill, training or experience, the reasons for the opinions he expresses are acceptable. Any expert opinion which is expressed on an issue which the court can decide without receiving expert opinion is, in principle, inadmissible because of its irrelevance. The rule was crisply stated in Gentiruco A.G. v Firestone S.A. (Pty) Ltd 1972 (1) SA 589 (A) at 616H:

'[T]he true and practical test of the admissibility of the opinion of a skilled witness is whether or not the Court can receive “appreciable help” from that witness on the particular issue'.

Expert witness testimony on an ultimate issue will more readily tend to be relevant when the subject is one upon which the court is usually quite incapable of forming an un-assisted conclusion. On the other hand, the opinion of the witness is excluded not because of a need to preserve or protect the fact-finding duty of the court, but because the evidence makes no probative contribution.”

Expert testimony, like all other evidence, must be given only appropriate weight. It must be as influential in the overall decision-making process as it deserves - no more, no less. The weight to be given to expert evidence will derive from how that evidence is assessed in the context of all other evidence. This is because, while expert evidence is important evidence, it is nevertheless merely part of the evidence which a court has to take into account. Two critical matters spring to mind as a consequence;

(i) Firstly, expert evidence does not “trump all other evidence”. Woodhouse v Britannic Assurance p.l.c., Employment Appeal Tribunal, U.K.E.A.T. 0132/03/RN para. 25.

Expert evidence should be tested against known facts as it is the primary factual evidence which is of the greatest importance. It is therefore necessary to ensure that expert evidence is not elevated into a fixed framework or formula against which actions are then to be rigidly judged with a mathematical precision. Stewart v Glaze (2009) E.W.H.C. 704.

In HKSAR v Chan Sze Pui, Gloria (2004) H.K.C.U. 298 it was held that a court is not compelled to accept the evidence of an expert but is entitled to accept or reject that evidence, like any other, bearing in mind the whole of the evidence in the case. The court had placed the expert testimony in the context of the whole of the evidence and determined what weight could be placed upon it.

(ii) Secondly, a court must not consider expert evidence in a vacuum. It should not therefore be artificially separated from the rest of the evidence. To do so is a structural failing. A court's findings will often derive from an interaction of its views on the factual and the expert evidence taken together. The more persuasive elements of the factual evidence will assist the court in forming its views on the expert testimony and vice versa.

Similarly, the South African courts have said that expert testimony can serve as a useful tool or guide against which the reliability of the testimony of eyewitnesses can be checked and tested. Van der Westhuizen and Another v SA Liberal Insurance Co. Ltd 1949 (3) S.A. 160 (C). It is for the court to determine, on the balance of probability, on all the evidence, where the probabilities lie.

In Routestone Ltd v Minories Finance Ltd and Another (1997) B.C.C. 180, JACOB J observed that what really mattered in most cases was the reasons given for an expert's opinion, noting that a well-constructed expert report containing opinion evidence sets out both the opinion and the reasons for it. The judge pithily commented “(if) the reasons stand up the opinion does, if not, not…,.” A court should not therefore allow an expert merely to present their conclusion without also presenting the analytical process by which they reached that conclusion.

In R v Nyamayaro 1967 (4) SA 263 (RA) BEADLE CJ adopted the well-known dicta of GREENBERG JA in Annama v Chetty and Others 1947 AD 142…, where the learned Judge of Appeal said, in speaking of the evidence of a handwriting expert:

“His function is to point out similarities or differences in two or more specimens of handwriting and the court is not entitled to accept his opinion that these similarities or differences exist, but once it has seen for itself the factors to which the expert draws attention, it may accept his opinion in regard to the significance of these factors.”

See also S v Sibanda 1963 (4) SA 182 (SR).

The fact of the matter, in the present case, is that the expert witness, Assistant Inspector Innocent Dube, did not compile his report in a manner which would permit a court to understand and follow the reasoning behind his conclusions. He sought to excuse the scanty nature of his report by stating that although it was desirable to include the detail which would allow the court to follow his reasoning, this was not a legal requirement for the sufficiency of his report.

In maintaining this stance, he failed to play his role as an expert.

Assistant Inspector Innocent Dube ought to have demonstrated those grooves, if such were present, their similarities in their location on both sets and so on, in order to enable the trial court to make its own conclusion as to the probative value of his expressed opinion regarding the issue to be decided. It is clear his testimony, in its present form, could not possibly have helped the court to decide the question it was faced with. I am persuaded by the argument so clearly laid down in the case law, in this and other jurisdictions, that there has to be such evidence laid before the trier of fact as sufficient for him or her to make up his own mind as to the correctness of any proposition which the expert makes in his testimony.

Clearly, there is nothing, besides Assistant Inspector Innocent Dube's say so, to enable the court a quo to have arrived at the conclusion that the bullet which was fired at the complainant in the Christon Bank incident was discharged by the pistol recovered from the appellant. As such, one cannot state with certainty that this was indeed the case, as the prosecution argued. Without this detail, the trial court was not entitled to find, as it did, that the expert's evidence was admissible. It was not. His opinion was not backed by evidence. It remained that; an opinion; and was therefore irrelevant to the issue to be decided. Without the ballistic expert's evidence, there is no evidence linking the appellant to the shooting at Christon Bank.

There is another basis for coming to the same conclusion.

Even assuming that the ballistic report, as amplified by the oral testimony by Assistant Inspector Innocent Dube, was strong enough to place the CZ pistol at Christon Bank on 29 February 2012, the evidence on the record shows, beyond doubt, how fluid the movement of this particular pistol was. It was allegedly stolen in Bulawayo during a break-in at a police officer's residence. One Gerald Mugabe and the appellant's co-accused are said to have, at some point, dealt with it. Who then fired it on 29 February 2012? Could it be that a similar pistol was fired by someone on that day?

It is in my view quite probable that a similar pistol out there may have been fired.

This is why the ballistic report ought to have been detailed as to exclude this possibility. It has not been excluded. There is no date given for this break-in, nor when the officer, from who it was stolen, gave his report. This was extremely crucial and critical as the record states that this type of pistol is a standard police issue firearm. The possibility of a similar one having been fired by someone else was not, in my view, eliminated. On that basis, it was unsafe to convict on the charge of attempted murder, without further evidence.

In any event, the appellant was not identified as having been present when the complainant was shot at. As such, it is difficult to find any basis for a sound conviction on a charge of attempted murder.

In the result he ought to have been acquitted on this Count….,.

1. The appeal against conviction for attempted murder succeeds. The conviction in the court a quo is set aside and the sentence passed in respect of that Count is quashed.

2. The accused is found not guilty and is acquitted in Count 1.

The appellant contends that the police had not properly warned and cautioned him before they asked him to sign the diary in which a “mute confession” in the form of an acknowledgement of the fact of the recovery of the pistol was made.

If I understand this argument, the appellant contests the admissibility of the diary entry by Detective Inspector Alexander Jachi which the court a quo ruled admissible. Even if it were conceded that the procedure required to admit this type of evidence was not strictly followed, I come to the conclusion that the fact of recovery of the pistol is still saved by section 258(2) of the Criminal Procedure and Evidence Act [Chapter 9:07]. It provides:

“258 Admissibility of facts discovered by means of inadmissible confession

(1) It shall be lawful to admit evidence of any fact otherwise admissible in evidence, notwithstanding that such fact has been discovered and come to the knowledge of the witness who gives evidence respecting it only in consequence of information given by the person under trial in any confession or statement which by law is not admissible in evidence against him on such trial, and notwithstanding that the fact has been discovered and come to the knowledge of the witness against the wish or will of the accused.

(2) It shall be lawful to admit evidence that anything was pointed out by the person under trial or that any factor thing was discovered in consequence of information given by such person notwithstanding that such pointing out or information forms part of a confession or statement which by law is not admissible against him on such trial.”

The appellant pointed out his residence. A search without warrant followed on the basis that the police had reason to believe that they would recover firearms. (Section 258(2) of the Criminal Procedure and Evidence Act). The search was conducted in his presence. That search yielded a CZ pistol.

The magistrate correctly rejected the claims that police planted the firearm which was recovered…,. The fact that the firearm was recovered from the appellant's house is, in my view, by accounts, admissible. Reliance can be placed on the statutory provisions set out above. The irregularity posed by the admission of the police diary cannot, in my view, be said to be so gross as to vitiate the conviction. With or without that piece of evidence, the fact is the pistol was found in the appellant's possession. He was, in my view, properly convicted.

In the premises, the appeal against conviction in the second Count fails.

The accused, who was initially facing a charge of murder as defined in section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23], was subsequently convicted on his on plea of guilty of contravening section 49 of the same Act which relates to culpable homicide. This was after the matter proceeded on the basis of a statement of agreed facts.

This is a borderline case between murder and culpable homicide.

The State may have found its work cut out as there was no eye witness to the fatal assault of the now deceased. In addition to that, the now deceased was the aggressor who in fact followed the accused who had decided to walk away from the confrontation. To compound matters, the State could not rebut that the now deceased is the one who possessed the lethal weapon, being an okapi knife, and that he pulled it out to stab the accused but was dispossessed and instead fatally stabbed. The defence of self defence, in the circumstances, is available to the accused although the means he used were not reasonable.

This, in brief, informs the conviction of the accused on a lesser charge of culpable homicide.

The agreed facts are that both the accused and the now deceased, who are aged 22 years, were patrons at Day and Night Club, Zano Business Centre, Chief Chikwanda, Masvingo on Christmas day, 25^th December 2017. As usual, they were merry making partaking beer and playing a game of snooker. Apparently, as the alcohol took its toll, at around 21:30hrs, a quarrel ensued between them as to who was to play the snooker first. A fight nearly ensued but one Lebison Sithole restrained the two. The accused decided to take his snooker tokens and left the bar for home using a foot path which passes through some maize fields.

The now deceased, Tinashe Shepherd Shindi, had other ideas.

He followed the accused and caught up with him some 400m from the night club. The altercation between the two resumed.

There was no other person present.

The accused said the now deceased pulled out an okapi knife. It weighs 0.058kg with a 13cm long handle and the blade is 10cm long. The accused said the now deceased tried to stab him and a scuffle over the knife ensued. The now deceased was dispossessed of the knife and stabbed three times. The now deceased rushed back to the night club where he fell unconscious on the verandah and passed on upon arrival at Zano Clinic the same night. The accused fled from the scene and did not even proceed to his homestead. Instead, he hid at his aunt's residence in Matende Village where he was finally apprehended at 0200hrs on 26 December 2017. The accused had hid the knife in a shoe and wiped it of blood. The accused produced the knife and confessed to what he had done.

The post mortem report shows that the now deceased died of haemorrhage shock arising from stab wounds. In fact, there were three stab wounds described as follows;

“±2cm stab wound on right subclavian area, piecing through chest wall to lung.

±2cm left subclavian stab wound piercing through muscle but not chest wall.

±1cm superficial stab wound left subclavian area.”

Our task in this matter is to assess the appropriate sentence.

The appellant was convicted on one count of armed robbery by the Regional Court sitting at Harare. He had been charged with two Counts of armed robbery of two motor vehicles. He was, due to lack of evidence, acquitted on the other Count….,.

At the hearing of the appeal, counsel for the respondent conceded that the Regional Magistrate erred when he convicted the appellant of armed robbery when there was no evidence linking him to the robbery. Counsel for the appellant agreed with counsel for the respondent that the appellant should have been convicted of receiving the motor vehicle knowing it to have been stolen.

The complainant in the Count for which the appellant was convicted only had 30 seconds in which he observed the robbers. Thereafter, he was ordered not to look at his assailants and a gun was pointed at his head. In the 30 seconds he said he observed that the robber who approached his motor vehicle from the right was short, dark and stout. It is common cause that the appellant does not fit that description. The complainant said the robber who approached his motor vehicle from the left was tall and slim. Again, the appellant does not fit that description.

It must be noted that the complainant did not have sufficient time to observe the robbers. His brief observation, which was split between the robbers on either sides of his motor vehicle, could not have founded the appellant's conviction even if the description he gave fitted the appellant. On the contrary, the complainant said he was not able to identify the appellant as one of the robbers.

In view of the above we were satisfied that the Regional Magistrate erred when he convicted the appellant of armed robbery in the absence of evidence identifying him as having been at the scene of the robbery. We therefore found that the concession made by counsel for the respondent was properly made.

Counsel for the respondent, in making the concession, submitted that the applicant should be convicted on the competent verdict of receiving stolen property knowing it to have been stolen. He said this was to be premised on the appellant being in possession of the stolen motor vehicle the next morning after it had been robbed from the complainant after 10:00pm the previous night. He further pointed out that the appellant's conduct, after taking possession of the motor vehicle, proves he knew it was stolen. He pointed to the following as proof of such knowledge;

(1) That the appellant used an illegal exit from Zimbabwe to Mozambique resulting in the motor vehicle being stuck in Mukumbura River.

(2) He gave Cst. Muchira incorrect information about his identity and that of the motor vehicle;

(a) He told Cst. Muchira that he was Victor Mujuru Chatibva.

(b) He showed him a driver's licence in the name of Victor Mujuru Chatibva.

(c) He gave an incorrect registration number and colour of the motor vehicle.

This proves the appellant did not want to be linked to the motor vehicle he had driven from Harare to Mukumbura River. This can only be because he knew the motor vehicle had been stolen.

Counsel for the appellant agreed with counsel for the respondent that the evidence proved that the appellant received the motor vehicle knowing it to have been stolen.

We were satisfied that the concessions made by counsel for both parties were properly made.

We, after hearing counsel's submissions on sentence and hearing the appellant's father's evidence in mitigation, set aside the appellant's conviction on armed robbery and substituted it with one of receiving stolen property knowing it to have been stolen. We also set aside the Regional Magistrate's sentence of 10 years imprisonment with 1 year and one and a half years suspended on conditions of good behaviour and restitution and substituted it with one of 7 years imprisonment with 2 suspended on conditions of good behaviour.

We gave our brief reasons on tapes and indicated that a detailed judgment would follow.

In his submissions against the appellant's conviction on armed robbery, counsel for the appellant submitted that the doctrine of recent possession does not apply to robbery.

Counsel for the respondent, in his submissions, submitted that he has not been able to find a case where it was applied to robbery but submitted that it has been used in housebreaking with intent to steal and theft cases.

This is an important point of law which this court must determine even though this case can be resolved without relying on the doctrine of recent possession.

In the case of S v Parrow 1973 (1) SA 603 (A) referred to by counsel for the respondent, HOLMES JA…, said:-

“I pause here to refer briefly to the so-called doctrine of recent possession of stolen property. In so far as here relevant, it usually takes this form. On proof of possession by the accused of recently stolen property, the court may (not must) convict him of theft in the absence of an innocent explanation which might be reasonably true. This is an epigrammatic way of saying that the court should think its way through the totality of the facts of each particular case and must acquit the accused unless it can infer, as the only reasonable inference, that he stole the property. (Whether the further inference can be drawn that he broke into the premises in a charge such as the present one will depend on the circumstances). The onus of proof remains on the State throughout. Hence, even if after the closing of the cases for the State and the defence, it is inferentially probable that the accused stole the property, he must be acquitted unless the only reasonable inference is that he did so for the law demands proof beyond reasonable doubt.”

I respectfully agree with the learned judge of appeal. The important aspects of HOLMES JA's decision in S v Parrow 1973 (1) SA 603 (A) are:-

(1) The doctrine of recent possession is based on an inference being drawn that the possessor of recently stolen property stole the property.

(2 If he cannot give an innocent explanation of his possession; and

(3) The inference that he stole the property is the only reasonable inference that can be drawn from such possession.

In other words, recent possession can be used to found a conviction if the court, after sifting through the whole evidence before it, finds that the only reasonable inference which can be drawn from the recent possession is that the accused stole the property.

In the case of S v Parrow 1973 (1) SA 603 (A) the doctrine was applied to a house breaking with intent to steal and theft case. In my view, there is no reason why the doctrine cannot be used in any case of which theft is a component - like robbery. It would be absurd for the court, in a robbery case, to be satisfied that if it was only dealing with theft it could have drawn the inference that the accused stole the property but hesitate to find that since he stole the property he is the robber. There is, in my view, no reason for the hesitation. If the doctrine can be applied to house-breaking with intent to steal and theft cases there is no reason why it cannot be applied to robbery cases. The issue should simply be; does the evidence of recent possession prove he is the thief? If it does, and the stealing was during a robbery, then he will have been proved to be the robber just as such evidence can be used to prove that the thief is the housebreaker.

In the case of Black Samson v The Queen AD 106/69 BEADLE CJ…, said:-

“It appears from these cases that where fairly shortly after a housebreaking, the accused is found in possession of some of the articles which were stolen at the time and does not give an explanation that he received the stolen goods from a third party who may have stolen them, the court is perfectly justified in finding him guilty not only of housebreaking but also of the theft of the articles stolen at the time when the housebreaking occurred. The reasoning behind these cases is that where the evidence is sufficient to establish the fact that the accused stole a particular article from the complainant and if the theft of that particular article involved housebreaking, that evidence is sufficient to establish that the housebreaking which occurred at the time of the theft was committed by the accused…,.”…,.

In my view, this also applies to a person who is found in recent possession of goods stolen during a robbery. If the only inference that can be drawn from the totality of the evidence is that he stole the goods then he can be convicted of the robbery of those goods and others robbed from the complainant at the same time….,.

These then are our reasons for setting aside the appellant's conviction on armed robbery and substituting it with one for receiving stolen property knowing it to have been stolen…,.

The accused who is facing a charge of murder as defined in section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] offered a limited plea to the lesser charge of culpable homicide as defined in section 49 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The State declined to accept the limited plea.

The charge is that on 15 May 2017, at Down Town Bar, Mashingaidze Business Centre, Zaka, Masvingo the accused unlawfully and with the intent to kill stabbed Peter Chinyaka once on the right leg and once on the collar bone causing his death.

Both the accused and the now deceased were well known to each other. It is common cause that on 15 May 2017 the accused and the 30-year-old now deceased were among beer patrons enjoying themselves drinking beer, dancing to music and watching TV in Downtown Bar at Mashingaidze Business Centre in Zaka, Masvingo. The State case is that when the accused entered the bar he pulled out an okapi knife and went on to challenge other beer patrons in the bar waiving the knife. It is alleged the now deceased felt offended and took up the challenge. The now deceased is said to have proceeded to kick the accused who fell down.

It is the State case that as the accused lay down he stabbed the now deceased on the right leg above the ankle after which he stood up and fled from the bar still armed with the knife. The now deceased is said to have chased after the accused out of the bar. The State alleges the accused then stabbed the now deceased with the okapi knife on the collar bone outside the bar after which he fled from the scene. The now deceased is said to have returned to the bar bleeding where he collapsed and died.

In his Defence Outline, the accused said he started to drink beer at the business centre at 1600hrs on that fateful day. The accused said he partook a cocktail of opaque beer called “scuds” which he mixed with a lethal brew called “chimusoja” with a very high alcohol content and also black label. The accused said when he was in Downtown Bar the now deceased pestered him asking for beer but the accused replied that he no longer had any money to buy the beer for the now deceased. The accused said around 2100hrs the now deceased assaulted him causing him to fall down. The accused said he stabbed the now deceased on the leg and fled from the bar. The accused said he later realized that he too had been injured on his leg but he has no recollection of how he got injured or at what stage. The accused said he was shocked to be arrested in relation to the now deceased's death.

The accused puts into issue all the evidence incriminating him.

It was indeed an arduous task to try and appreciate the accused's defence throughout this trial.

Was the accused denying stabbing the now deceased at all? If so, why then was he offering a limited plea of the charge of culpable homicide?

Is the accused alleging he only stabbed the now deceased on the leg and not on the collar bone?

Again, the accused seems to say that he was so intoxicated to such an extent that he has no recollection of how the now deceased was fatally injured. This would probably entail that allegation that the intention to kill was vitiated due to the high degree of intoxication.

These are the issues we grappled with in this case.

The evidence of the accused can be summarized as follows;

The accused said from about 1600hrs he spent $14= drinking the opaque beer, the lethal brew called “chimusoja”, and black label when this incident happened. He said when he went into Downtown Bar he found the now deceased drinking beer with one Francis Magweregwede. The accused said when the now deceased asked him to buy beer for the now deceased he told him that he no longer had money but the now deceased would not accept that. The accused said as a result the now deceased attacked him. He explained how the attack took place.

The accused said the now deceased followed him and slapped him in the face. The accused said he was carrying a knife which he had intended to use to skin a beast for the Beef Committee that day but the said beast was however not slaughtered. The accused said he pulled out the knife from his pocket. He said the now deceased kicked him on the head causing him to fall. The accused said he was kicked as he lay down trying to get up. He said when he managed to get up he fled from the bar. From that stage he said he has no recollection of what transpired. Besides this altercation the accused said he had no previous issues with the now deceased.

Under cross examination, the accused's evidence became muddled up further.

The accused denied waiving the said knife at all in the bar. He however admitted stabbing the now deceased on the leg. The accused insisted he had no recollection of what transpired as he was excessively drunk. He even disowned his confirmed warned and cautioned statement in which he admitted to have stabbed the now deceased twice, once on the leg and once on the shoulder. He now seemed to allege that these words were put in his mouth by the police.

In support of its case, the State led evidence from Passmore Mhaka, Peter Mubaiwa, Raymond Mamvura and Dr Zimbwa whose evidence was admitted in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07].

The State led viva voce evidence from Jonisias Chiringa, the proprietor of Downtown Bar, Francis Magweregwede, the now deceased's drinking mate, and the Investigating Officer, Sgt. Mbonisi Kaweni.

A total of three (3) exhibits were produced by consent, being Exhibit 1, the post mortem report; Exhibit 2 the accused's confirmed warned and cautioned statement; Exhibit 3(a) the okapi knife; and Exhibit 3(b) being the certificate of weight relating to the okapi knife.

As per exhibit 3(b), the okapi knife weighs 0.055kg, its length is 24cm and the blade is 11cm. Indeed, an okapi knife is a lethal weapon if used to attack another person - especially in relation to the vulnerable part of the human anatomy.

The cause of the now deceased's death is not in dispute. As per exhibit, 1 the post-mortem report, the doctor noted the following injuries;

“1. Deep stab wound in right supravicular fossa, reaches apex of right lung; lung is puncture (air expels on chest compression); ±4cm wide, smooth straight edges.

2. Deep laceration right tibia area ±7cm (to bone level).”

The cause of death is stated as haemorrhagic shock arising from stab wounds.

The narrow question we have to answer, therefore, is whether the accused inflicted the fatal injuries.

We first deal with the evidence admitted in terms of the Criminal Procedure and Evidence Act [Chapter 9:07].

Dr Zimbwa

Dr Zimbwa carried out the post mortem of the now deceased and authored exhibit 1.

Raymond Mamvura

He is a police officer based at Zaka police station and was the one who attended the scene. He found the now deceased already dead lying on the floor with stab wounds on the right ankle and right collar bone. He is the detail who arrested the accused and observed that the accused had a wound on his right leg. He then recovered the okapi knife, exhibit 3(a), after which he witnessed the recording of the accused's confirmed warned and cautioned statement.

Peter Mubaiwa

Peter Mubaiwa is a local teacher at Mashingaidze Primary School near the business centre where this incident happened and was known to both the accused the now deceased. He was telephoned at night on 15 May 2017 and asked to rush to Downtown Bar in order to ferry the now deceased to hospital in his vehicle. As he was about to leave for the business centre the accused passed by, limping, and he offered to also take him to hospital but the accused refused. He drove to Downtown Bar and found the now deceased already dead.

Passmore Mhaka

He was one of the beer patrons inside Downtown Bar. He said at around 2130hrs he saw the accused holding an okapi knife, exhibit 3(a), shouting that he would kill anyone who dared to provoke the accused. Moments later, he saw both the accused and the now deceased in a scuffle and the accused fell down but still holding the knife. He said the now deceased tried to kick the accused's hand holding the knife but missed and he saw the accused getting up and running out of the bar with the now deceased chasing after him. He said within seconds the now deceased returned to the bar with his T/shirt soaked in blood. He saw that the now deceased had a deep cut on the right collar bone. He then observed the deceased sitting near the counter where he collapsed and died.

We now turn to viva voce evidence;

Jonisias Chiringa (Chiringa)

Jonisias Chiringa is the proprietor of Downtown Bar and both the accused and the now deceased were local beer patrons who frequented his bar.

He said on 15 May 2017 he arrived at the bar at 20:00 hours where he started to sell beer. He saw both the accused and the now deceased in his bar.

Jonisias Chiringa said the now deceased approached him requesting for a song by Allen Chimbetu called “Dear Rosy”. The now deceased was in a very jovial mood saying he wanted to dance and enjoy that song. He said as the now deceased was dancing to the song Chiringa went to the toilet out of the bar. Upon his return the song had finished playing. The now deceased was standing by the counter looking sad. Chiringa said he asked the now deceased if he could repeat that song or play other songs. The now deceased then said he was worried as the accused was waving a knife threatening the now deceased saying he did not care about the now deceased's big stature because the accused was capable of killing the now deceased like a chicken.

Jonisias Chiringa said the now deceased reacted by kicking the accused who fell down still holding the knife. He said the now deceased tried to step on the accused's hand holding the knife but the accused moved the hand. As a result, he said the now deceased proceeded to kick the accused. The accused then stood up fleeing. At that point Chiringa said the now deceased held his thigh as he had been stabbed but still ran after the accused who went out of the bar. He said seconds later the now deceased returned to the bar injured on the collar bone with blood flowing down up to the now deceased's shoes.

He said that the now deceased said the accused had stabbed him and that he was dying.

Jonisias Chiringa said the now deceased's last words were that the accused's family would be haunted by an avenging spirit.

Chiringa said the now deceased failed to stand and sat down breathing heavily. Realizing the gravity of the situation, Jonisias Chiringa ran out of the bar to find transport to ferry the now deceased to hospital. A local teacher, one Mubaiwa, answered his call saying he had seen the accused limping. Chiringa said upon his return to the bar he found the now deceased dead.

Jonisias Chiringa said the now deceased was not drunk. Instead, he said the accused was moderately drunk as he was not staggering and was able to fend off the now deceased's blows as the now deceased kicked him about three times. Further, he said the accused was able to flee running from the now deceased. Chiringa said the now deceased was heavily built and was regarded as a giant whereas the accused was of a small stature. Chiringa said he was very much familiar with both the now deceased and the accused's state of sobriety or degree of intoxication as his regular patrons.

Francis Magweregwede (Francis)

Francis was drinking beer with the now deceased when this incident happened. He said the accused was moderately drunk as he could properly dance to music, walk properly, and, later on, fled from the now deceased without staggering.

Francis Magweregwede said when the accused and the now deceased conversed, Francis was seated on a bench some 5m away watching television. He said suddenly the accused fled from the now deceased as the accused had a knife. Francis said he tried to intervene but other patrons told him that the accused had a knife. He said he saw the accused lying down but could not tell what caused him to fall. He said the accused then stabbed the now deceased on the leg after which the accused stood up and fled out of the bar. The now deceased chased after him.

Francis said he tried to follow the two but met the now deceased by the door of the bar. The now deceased had been severely injured with his T/shirt soaked in blood. He said the now deceased had an upper chest injury.

According to Francis Magweregwede the now deceased said he was dying and that his avenging spirit would forever haunt the accused's family. Thereafter, the now deceased collapsed and died and he saw a deep wound on the right leg and on the chest.

Francis said the report the now deceased made was that he had been stabbed by the accused at the veranda of Downtown Bar, he was dying, and that his avenging spirit would haunt the accused's family.

Sergeant Mbonisi Kaweni (Sgt Kaweni)

In our view, nothing turns on the evidence of Sergeant Kaweni, the investigating officer, as his testimony is more of formal evidence. He is the one who recorded the accused's confirmed warned and cautioned statement and caused the accused and witnesses to make indications. He confirmed the accused had an injury on his thigh, possibly caused by a knife, and that the accused could have injured himself as he allegedly waived the knife in the bar moreso as the now deceased did not have a knife and never dispossessed the accused of the knife. He said the accused himself could not say how he was injured.

The evidence of the State witnesses was largely uncontested at all.

In order to answer the question as to how the now deceased was fatally injured, or, precisely as to who fatally injured the now deceased; one can simply say reps ipsa loquitor (the facts speak for themselves).

The accused's own confirmed warned and cautioned statement answers this question. This is what the accused said;

“…,. I stabbed Peter Chinyaka with an okapi knife once on his leg and once on his shoulder after he slapped me with open hands on my face, kicking me several times on the stomach, and throttling me as he was taking me outside the bar. He was assaulting me because I had denied him beer (sic) I was drinking. When I stabbed him, I then fled, and, after I had run for an estimated distance of 300m, I discovered that I was bleeding on my left thigh. I do not know what injured me.”

It is clearly foolhardy for the accused to now try to allege that he did not stab the now deceased fatally on the collar bone. Despite the obvious half-truth and lies in his statement that he was throttled, the accused is clear in that statement that he is the one who stabbed the now deceased in the chest. This version finds favour with the evidence of the State witnesses to the effect that as soon as the now deceased ran after the accused out of the bar, the now deceased returned within seconds, injured, after which he immediately collapsed and died.

The only inference one can make is that he had been fatally stabbed by the accused who had bolted out of the bar wielding the okapi knife….,.

Our finding is that it is the accused who stabbed the now deceased with the okapi knife on the collar bone. The degree of force used was severe in that the knife damaged the lung. The intention was to cause death nothing else. The now deceased died immediately.

In the result, the accused is found guilty of contravening section 47(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] which relates to murder with actual intent.

VERDICT

Guilty of contravening section 47(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] – murder with actual intent.