The
accused person faces 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 12 September 2015, he stabbed the deceased,
Albert Sibanda, with an okapi knife. The deceased subsequently died
as a result.
It
is common cause that the accused person stabbed the deceased with an
okapi knife on the day in question.
The
State case is that the deceased and Reveal Sibanda were walking home
after collecting money from an ecocash agent. They met the accused
who was in the company of another person. The accused then queried
the deceased's manner of dressing. The deceased responded by saying
that it was his style and that it was none of the accused person's
business. The accused then said the deceased acted like he owned the
world. He then drew an okapi knife from his trousers and chased after
the deceased and his brother, caught up with the deceased and stabbed
him once on the left side of the back. The deceased had fallen down
at the time that the accused stabbed him. It is also the State case
that the accused person was never assaulted by anyone and that he did
not suffer any injuries.
The
accused person's versions, because there is more than one of them,
are that, firstly, in the Defence Outline, the accused says that the
deceased was in the company of four men when the accused and friend
met them and he was visibly drunk. The accused greeted the deceased
and his friends and respectfully told the deceased to dress properly;
the deceased did not heed the advice but instead started to insult
the accused telling him to mind his own business. Thereafter, the
accused and the deceased exchanged harsh words. He was kicked by one
of the persons in the deceased's company whilst another held his
hand; he staggered to the ground and the rest of the group joined to
assault him all over the body. He fought back to defend himself; he
was hit with a beer bottle on the head and was also kicked in the
mouth with what he believed to be a safety shoe; he lost three teeth;
he was overpowered and then fell down; whilst lying down, one of the
deceased's friends pulled out a knife and attempted to stab him;
the accused rose from the ground and kicked the hand of the person
who was holding the knife and the knife fell down; the accused then
rushed to pick the knife. He said that once he had the knife his
attackers then retreated; the accused, who was still furious, then
pursued the deceased.
The
second version, as contained in his evidence-in-chief, is that his
friend and him met four young men dressed in a deplorable manner with
their trousers pulled down showing their underwear. He commented on
the manner of dressing and his friend laughed about this. He then
rebuked them as to their manner of dressing. It was at that stage
that him and the young men started shouting at each other. He then
told them to desist from showing off. He then proceeded until he got
to his place of residence. When he arrived at his house, there were
some two young men who followed behind; they had beer bottles. They
then questioned him about what he had been doing insulting their
colleagues. They then started assaulting him and the four persons he
had an altercation with before also came and all six swarmed him.
They apparently stoned him and as he chased the deceased they were
still pelting stones at him.
Now,
there are significant issues on the two versions.
In
the Defence Outline, the accused person met the deceased and company
only once and was not followed to his home by two of them with the
four joining later. In the second version, the accused was now at
home and yet in the first version, as per the Defence Outline, the
accused met the quartet resulting in the altercation and the fight
whilst on the way to Mandava Shops. Again, in the Defence Outline,
when he got possession of the knife, the deceased and his companions
retreated but he followed the deceased as he was furious and was in
severe pain. Yet, in this court, he told us that he followed the
deceased and wanted to tear his shirt with the knife in order to
scare him and because the others were still following him and pelting
him with stones.
Asked
to describe how he managed to set himself free, kick the knife from
the hand of one of his attackers, get up and pick it, as they had
pinned him to the ground and two of them held his hands from the
back, others kicking him, others pelting stones at him, the accused
person failed to do so and ended up just saying he just managed to do
so.
Again,
he lost three teeth, had a deep cut in the head, but none of the
State witnesses observed all that.
The
court can only draw the conclusion that the accused person's
version of events crumbled on its own as almost always a concocted
story falls apart as it is difficult to lie and maintain a fabricated
version. We thus find that the accused's version is hogwash and
this court cannot rely on it. We can only throw it out in its
entirety.
We
are thus left with the version of the State witnesses, which we
believe is the only true version of what transpired on that day.
Reveal
Sibanda told the court how the accused rebuked the deceased for his
manner of wearing the trousers lowered down beneath his underwear. He
told of how the deceased answered back and how the accused then said
the deceased thought that he owned the world and then started chasing
them resulting in the accused stabbing the deceased when the deceased
had fallen down.
There
is nothing irrational here as to render the version unbelievable in
our view.
The
third State witness, the police officer, confirmed that the accused
was violent at the police station and that he was drunk.
It
is our finding that the accused person did behave in the manner as
alleged by the State witnesses.
Whilst
Reveal Sibanda is a brother to the deceased and could have reason to
lie to suit his side of the coin, he was never shown to be such
during cross-examination. In fact, his evidence on the injuries on
the accused was corroborated by the police officer and the
Neighbourhood Watch member who this court's views as independent
witnesses. There would not have been any reason for them to fail to
observe the injuries on the accused person if they were there.
It
is for these reasons that we believe the evidence of the State
witness and reject the accused person's version.
The
post mortem report, Exhibit 4, gives the cause of death as
hypovolemic shock, left lung damage, severe pneumothorax, stabbing
injury. The wound penetrated deep into the thoracic cavity and
through the left lung. From the nature of the wound, clearly,
excessive force was used.
Again,
as we rejected the accused's version in its totality, we find that
the okapi knife, Exhibit 5, in fact belonged to the accused person
and not the deceased and his brother….,.
We
then move on to determine what the accused person is guilty of.
We
look at murder with actual intent, wherein the accused must have
desired death; death must have been his aim or object. Again, in
another leg of actual intention, the accused might not have desired
death but he ought to have foreseen that death was certain from his
action. With constructive intent, the accused person must have the
requisite legal intention to kill, that is, he must have foreseen
that there is a reasonable possibility that death would ensue from
his actions. Although the accused carried a lethal weapon on the day
in question, we are unable, from the facts, to infer that he actually
desired death or that he foresaw that death was certain from his
actions but he nonetheless continued to act in a reckless manner.
Refer to FELTOE, A
Guide to Criminal Law in Zimbabwe,
2005 edition…,.
It
is for these reasons that we will find the accused person guilty of
murder with constructive intent.
