The
accused is facing a charge of murder as defined in section 47(1) of the
Criminal Law (Codification and Reform) Act [Chapter 9:23]. It being
alleged that on the 18th May 2013, and at Gretina Green Mine, Lower
Gweru in the Midlands Province, the accused unlawfully caused the death of
Chrispen Makuvire by stabbing him with a knife once in the chest, intending to
kill him, or realizing that there was a real risk or possibility that his
conduct may cause death, and continued to engage in that conduct despite the
risk or possibility.
The
accused pleaded not guilty to murder. The accused raised self defence as
his defence and produced Exhibit 2 as his Defence Outline.
In
an endeavour to prove its case, the State produced Exhibit 7 which is the
summary of evidence, Exhibit 3 which is the accused's confirmed warned and
cautioned statement, Exhibit 4 which is the post mortem report and Exhibit 5,
the Okapi knife which is the weapon used to murder the deceased. evidence of
the 3rd, 4th, 5th and 6th witnesses
into evidence in terms of section 314 of the Criminal Procedure and Evidence
Act…,. The defence consented to the production of this evidence. The
evidence of those witnesses was then formally admitted.
The
State then called its first witness, one Sidhube Muchochomi, a Mine Manager at
Gretina Green Mine, Range Farm 2, Lower Gweru.
He
knows the accused as an ex-employee of the mine. The deceased was his
workmate. On 18th May 2013, at approximately 8pm, the accused
arrived at his workplace looking for beer to buy. The witness told the
accused that they had closed, and, in any case, beer had been sold
out. The accused went away but returned shortly thereafter whereupon the
witness asked the accused why he had returned. The accused did not proffer
any explanation or response. At that moment, the deceased arrived and
asked the accused why he was still there when he had been told to go
away. Before the deceased finished or was answered, he was stabbed in the
chest with a knife by the accused. The witness said the accused used his
left hand to stab the deceased on his left hand side. The witness said he
was standing about ½ a meter away and the visibility was good as the place was
illuminated. He further went on to say the accused, who was wearing a
jacket, had both hands in his jacket pockets and at the time he stabbed the
deceased, he suddenly pulled out his hand from the pocket, delivered the fatal
blow in a flash and ran away from the scene. The witness said he failed to
give chase. At that time, he noticed two men running abreast the accused. These
men were taller than the accused. He noticed the trio running into a bush
near the compound and he gave up the chase. He returned to where the
deceased was and noticed that the deceased was in a stooping position clutching
his chest. The deceased uttered the following words and I quote; “Uncle, I
am now dead;” end of quote. The witness informed the mine owner and later
secured a vehicle to ferry the deceased to hospital.
He
was subsequently advised that the deceased had died.
The
witness denied that he called the accused a thief who was persona non grata at
the farm. Further, the witness denied assaulting the accused or witnessing the
accused being assaulted by anyone. The witness denied that it is the
deceased who produced a knife and stabbed the accused first. He insisted
that the knife came from the accused's pocket. He agreed that the deceased
was his nephew who had worked at the mine since February 2013. According
to him, the whole event happened “swiftly” depriving him of an opportunity to
either warn or prevent the deceased from being stabbed. The witness went
on to tell the court that the deceased was physically bigger than the accused
and that the deceased had taken some alcohol during the day. He said the
accused leapt towards the deceased and stabbed him. As regards the
accused's state of sobriety on that night, the witness said the accused was
“drunk as he was unable to walk.” Finally, he said the accused's refusal
to leave the mine made him to suspect that the accused was loitering with some
intent to commit some unknown crime….,.
The
State then called its second witness, one Portia Zvidzai, a former employee of
Gretina Mine.
She
started working at the mine in January 2013 and left in June 2013. She
testified that on 18 May 2013 she was at the mine tuck shop where she had gone
to buy air time at approximately 8pm. The witness said that the accused
arrived in the company of two other men. Upon arrival, the accused pushed
her with his chest at the same time asking her whether the tuck shop had been
closed. She told him that the tuck shop had indeed been closed. The accused
did not believe this witness because, instead of going away, he went straight
to the tuck shop door where the first witness was standing. The accused
indicated that he wanted to buy beer and was told that there was no beer left
and that the shop was closed anyway. The accused then went and stood in a
shed in the “shadow”. This was at a different spot from where the other two men
were seated. The accused stood against a wall with his hands in his jacket
pockets. The first witness came out of his house, and upon seeing the
accused, who had moved to a spot that was lit ,said ,and I quote; “Man are you
still here;” end of quote.The accused did not answer, instead he returned to
the dark portion of the shed. At this point, the deceased arrived to
collect his cellphone from the first witness. The first witness entered his
house to collect the cellphone. Upon his return, the accused again moved out of
the shadow and the first witness asked the accused why he was still on the
premises despite his earlier explanation. The deceased then said, and I quote;
“Man if it's closed it means it's closed;” end of quote. The accused
remained standing there while the deceased and the first witness were
conversing and laughing. Shortly thereafter, she saw the accused “jumping
towards deceased and his hand touched deceased's chest.” Next, she saw the
deceased touching his chest where he had been 'touched”. The deceased bent
down and said, I quote; “Gentlemen, I am now dead these people have killed
me.” When the deceased removed his hand from his chest she saw blood
“gushing” out upwards. The accused and his two companions then fled and the first
witness then made arrangements for the deceased to be ferried to
hospital. The witness said she was standing approximately 10 metres from
the scene and could see and hear clearly.
When
it was put to her that (the first witness) assaulted the accused she said
nothing about that happened. She also denied that the deceased is the one
who pulled a knife intending to stab the accused with it. Asked where the
knife came from, she said it came from the accused's pockets since he had his
hands in his pockets. The witness denied knowing the accused prior to this
day. She also told the court that she does not have any reason to falsely
implicate the accused. Like the first witness, she thought the accused and
his companions were thieves.
Under
cross-examination, she stuck to her story. When it was put to her that
there was nothing peculiar in the accused wearing a jacket with a hood and
placing his hands in his pockets, the witness' answer was (I quote); “The
unusual thing is he went to a shed where there was a shadow twice – why not go
to where his colleagues were.” End of quote. She told the court that
she was not related to both Sidhube Muchochomi and the deceased….,.
This
witness is what can be terms an independent witness in that she has no
conceivable interest in the matter apart from telling the truth. She gave
her evidence confidently and truthfully. Her evidence flows
naturally. Even under cross examination. She did not pause to think
about her answers. Her answers would just come out naturally and
spontaneously. The witness' demeanour was good and her evidence is corroborated
on material respects by that of the accused himself and Sidhube Muchochomi (the
first witness). She did not exaggerate her testimony, for example, she
could have said she saw the accused producing a knife from his pocket instead,
she said she only inferred that the accused had the knife in his pocket. For
these reasons we accept her evidence in toto.
The
State closed its case and the accused gave evidence in his defence.
The
accused's version is basically that on the day in question, he went to Gretina
Mina to buy beer from the first witness. He agreed that he was advised
that there was no more beer. He said the first witness told him that he (the
first witness) did not want to see the accused at the mine since he was a
thief. The first witness started assaulting him with open hands on his
cheeks. He said as he was trying to run away “Chrispen” got hold of him by his
“trousers” around the waist and the first witness continued to assault him with
open hands accusing him of being a thief.
According
to the accused, “Chrispen” then stabbed him with a knife on the wrist and he
got hold of “both hands” and “disposed him of the knife” then stabbed him with
the same knife. That is when they let go of the accused and he ran
away. The following morning he threw the knife into a thicket on his way
home. He was arrested that morning and he showed the police the
knife. On the day, he said he had been drinking beer at a tuck shop at a
place called Shamrock. The accused denied being drunk that night but said
he had smoked dagga and felt an urge for more alcohol. He denied seeing Portia
Zvidzai at the tuck shop but saw her husband.
The
accused's version is highly improbable and incredible.
This
is so because the accused himself did not perform well as a witness. He
contradicted himself on a number of occasions. For example, in the warned
and cautioned statement he said his hand was cut in the process of disarming
the deceased of the knife, yet in the Defence Outline he said the deceased
stabbed him with a knife before he took it. Secondly, in the Defence Outline,
he admitted being in the company of two male “friends”, a fact he vigorously
denied in his evidence in chief. Thirdly, in the Defence Outline, it is
not denied that Portia Zvidzai was present at the scene and witnessed the
incident, yet in his evidence in chief he strenuously denied that Portia
Zvidzai was there. Fourthly, as regards his state of sobriety he initially said
he was not drunk although he had taken alcohol in the afternoon; later, under
cross examination, he changed and said he was drunk and this made it difficult
for him to escape.
Apart
from this prevarication, the accused failed to answer questions promptly and
meaningfully. He would take time to answer, and, in some instances, he
would avoid the question despite it being repeated several times. It became
clear to us that the accused was bent on fabricating his evidence in a bid to
exonerate himself from those portions he felt were incriminating. For
example, while the accused admitted that he had a jacket, he continuously said
this jacket had one pocket which was on the left side. When he said this,
he was trying to mislead the court for he knew that the witnesses had said the
knife came from the right hand side pocket. Also, despite the fact that
both witnesses said they saw two men with the accused and that these two (2)
ran away with the accused, the accused denied this fact. The reason he
denied this is that he realized he rather belatedly that it would not make
sense that his friends would stand and watch while he was being
assaulted. By saying he was alone he was hoping to portray himself as a
victim of the assault by the first witness and the deceased.
The
accused's explanation of how he disarmed the deceased is improbable in that
initially he admits that he was being assaulted by the first witness before the
deceased arrived at the scene. One wonders why, if this is what happened,
the accused failed to run away. On his own admission, he was not being
held but he was being “pushed”. Further, in view of the fact that the
deceased and the first witness were stronger than the accused it is unlikely
that the accused would be able to twist the deceased's arm, take the knife and
stab him while the first witness was just watching. Also, according to the
accused's explanation, namely, that the deceased was behind him holding him by
the belt, it would not have been possible for the accused to stab the deceased
on the chest simply because the deceased was taller, and, from accused's
indications, he swung the knife with his hand at his waist level therefore the
blow should have landed either in the deceased's groin or/over abdomen.
From
the above, we find that the central issue is whether or not the accused was
acting in self defence when he stabbed the deceased.
We
make, from the totality of the evidence, the following findings:
(i)
That the accused went to Gretina Mine in the company of two men;
(ii)
That upon being told that there was no beer and that the shop had been closed
the accused did not go away;
(iii)
That the accused was armed with an Okapi knife, Exhibit number 5;
(iv)
That at no stage before the stabbing was the accused assaulted by anyone;
(v)
That the deceased died from the stab wound;
(vi)
That although the accused had consumed alcohol, he was not so drunk as not to
appreciate what he was doing….,.
In
casu, the accused does not deny the actus reus; that is, the physical element
of stabbing the deceased. He also admits using the knife.
As
a result, the only issue is whether the accused committed the crime with the
requisite intention.
Both
the State and the defence counsels submitted that the accused be found guilty
of murder with constructive intent. The defence counsel submitted that
although the accused was acting in self-defence, he nevertheless, the means he
used, exceeded the bounds of reasonable self defence.
We
do not agree with counsel that this defence fails for this reason.
The
real reason is that from our factual findings, there was no unlawful attack on
the accused. For this reason, the rest of the requirement for this defence
fall away. We, however, agree with the defence counsel's submissions that
the accused was reckless and that at that time he had consumed some alcohol.
Counsel for the State submitted
that the accused be convicted of murder with constructive intent. He
relied on the following cases;
(i)
Mugwanda v S SC19-02.
(ii)
Tichaona Mudzana v S SC76-04.
(iii)
Witness Siluli v S SC146-04.
The
common thread running through these cases is the principle that;
“'the expression intention to kill' does not,
in law, necessarily require that the accused should have applied his mind to
compassing the death of the deceased. It is sufficient if the accused
subjectively foresaw the possibility of his act causing death and was reckless
of such result. This form of intention is known as dolus eventualis as distinct from dolus directus.”
In casu, we agree with counsel
that the proper verdict is one of guilty of murder with constructive
intent. We say so for the following reasons:
(a)
Accused plunged a knife into the deceased's chest without any provocation at
all.
(b)
The accused did so recklessly.
(c)
The accused delivered only blow and fled from the scene.
(d)
The accused stabbed the deceased on the upper part of his body i.e causing an
injury on the deceased's heart.
(e)
The medical evidence shows that it was a deep stab wound.
(f)
The accused subjectively foresaw the possibility of his act causing death.
(g) The
accused had consumed some alcohol but this did not prevent him from knowing
what he was doing in approaching Sidhube Muchochomi, asked if he could purchase
some beer, producing a knife which we find to have already been opened,
stabbing the deceased with severe force, and fleeing into the bush.
Accordingly,
the accused is found guilty of murder with constructive intent.
