The
tragic events in this matter unfolded on the new year's day, being
1 January 2017, a day normally associated with merry making, at Bhuka
Business Centre a few kilometres outside Masvingo town along the
Masvingo to Beit Bridge highway.
The
accused is alleged to have caused the death of one Taruvinga Tazira
by stabbing him which an okapi knife on the head in contravention of
section 47(1) of the Criminal Law (Codification and Reform) Act
[Chapter
9:23]
which relates to murder.
On
this fateful day, the now deceased, Taruvinga Tazira, aged 23 years,
was at Bhuka Business Centre with his friends Wadzanai Sakadzo,
Alfred Muteti and Brian Dube, all residents of Action B Resettlement,
Mushandike, Masvingo. The then 22-year-old accused, a resident of
Village 9B Mushandike Resettlement, Masvingo was also at the said
business centre with his young brother Innocent Mapurisa. They were
all enjoying the new year celebrations with other merry-makers.
Matters of the heart also took centre stage as a 21-year-old, Shelter
Mukaro, a resident of the same village with the now deceased fell in
love, on that day, with the accused whom she had met for the first
time on that day at Bhuka Business Centre. Shelter Mukaro was in the
company of her friend, a fellow villager, Roselyn Philemon, younger
to her who apparently found comfort in the company of the accused's
young brother, Innocent Mapurisa.
Later
in the day a misunderstanding arose between the now deceased's
friend, Wadzanai Sakadzo, and the accused's young brother, Innocent
Mapurisa, almost resulting in a fist fight. The State alleges that
the now deceased, as a good samaritan, tried to forestall this fight
much to the chagrin of the accused who apparently wanted to watch a
free boxing match between his young brother and Wadzanai Sakadzo. It
is alleged the accused told the now deceased not to stop the fight
but the now deceased was unperturbed.
It
is the State case that this was the genesis of the altercation
between the now deceased and the accused. The accused is alleged to
have jumped on to the now deceased causing the now deceased to fall
down. The accused is said to have sat on the now deceased's chest
and pulled out a knife. One of the now deceased's friends sensing
danger, Alfred Muteti, is said to have tried to avert the danger by
pulling the accused away from behind but was allegedly stopped by the
accused's young brother, Innocent Mapurisa, who, in turn, held
Alfred Muteti. The accused is said to have proceeded to stab the now
deceased in the left side of the head with a knife which the accused
failed to remove. The accused is said to have fled from the scene.
The now deceased is alleged to have tried to flee also but collapsed
after a distance. He was ferried to Masvingo General Hospital from
where he was transferred to Parirenyatwa Hospital in Harare where he
passed on three days later, on 4 January 2017, allegedly as a result
of the head trauma arising from the stab wound.
In
denying this charge, the accused raised the defence of self-defence.
As per his Defence Outline, the accused proffered the following
version of events;
The
accused said he was walking with his girlfriend, Shelter Mukaro, at
Bhuka Business Centre on that fateful day on 1 January 2017, at about
20:00hrs, when some two young men not known to the accused one Brian
Dube and Wadzanai Sakadzo threatened to beat up the accused for
indecently behaving with Shelter Mukaro whom they allege was their
sister. The accused said these two young men pulled away Shelter
Mukaro saying they were taking her home. Thereafter, the accused said
he saw a group of young men, including the now deceased and Alfred
Muteti, who threatened to assault the accused. The accused said he
was cornered by the now deceased and his colleagues who proceeded to
assault him with fists. The accused said he fell down and was further
pummelled on the face, head and neck as he lay helplessly on the
ground. The accused said as he lay down he fortuitously picked a
knife which should have been dropped by the deceased or one of the
now deceased's friends. In a bid to escape, the accused said he
threw the knife in the direction of the now deceased. The now
deceased then cried out that he had been stabbed which caused the now
deceased's colleagues to retreat. The accused said this gave him
the chance to flee from the scene. It is the accused's contention
that he reasonably acted within the bounds of self defence as he
genuinely believed his life was in danger. On that basis, therefore,
the accused prays for his acquittal on the proffered charge of
murder.
During
the trial, a total of three (3) exhibits were produced. These are;
Exhibit
1 a post mortem report authored by Dr Roberto who examined the
remains of the now deceased and indicated the cause of death as
severe celebral oedema and damage, subdural haematoma and subdural
haemorrhage arising from the head trauma caused by the stabbing….,.
Exhibit
2 is the knife which the accused stabbed the now deceased with. We
noted that it is a rather unique knife, probably a hunting knife. Its
blade has a cutting edge on one side and rugged or grooved edge on
the other. The handle is 14cm long, the blade is 11cm long and it
weighs 159g. The thick part of the blade is 200mm. Indeed, it is a
lethal weapon. This knife can be folded and fits well in a pocket.
Lastly,
Exhibit 3 is a report by Dr Maxmillian N. Dzowa who attended to the
now deceased at Parirenyatwa Hospital in Harare, after his admission
on 2 January 2017. The following is outlined in that report;
(i)
The now deceased had the knife lodged in his left side of the head.
(ii)
He was sedated for a CT scan of the head to be taken and in
preparation for the theatre.
(iii)
The now deceased's condition is described as being bad as he was
deeply torpid (i.e. death like or comatose).
(iv)
He was intubated and taken for CT scan which revealed that he had
sustained “a perforating injury starting from the left temporal
area with a trajectory passing through the suprantorial compartment
on the left crossing the mid-line in a diagonal posterior inferior
direction through the posterior fossa. The tip of the knife was
lodged in the bone of the right side posterior fossa and there was
evidence of pressure in posterior fossa and bleeding along the tract
of the knife.”
(v)
The knife was removed on 2 January 2017 and the now deceased was put
in the intensive care unit for the post-operation care but he passed
on 4 January 2017.
The
testimony of Dr Roberto, a forensic pathologist who compiled the post
mortem report, and Forgiveness Nkomo, a police detail who arrested
the accused, was admitted in terms of section 314 of the Criminal
Procedure and Evidence Act [Chapter
9:07].
The
State adduced evidence from Shelter Mukaro, Wadzanai Sakadzo, Alfred
Muteti and Dr Maxmillian N. Dzowa. In turn, the defence led evidence
from the accused.
In
our view, the cause of the now deceased's death is not in issue.
The same can be said about the injury he sustained and the medical
procedure the now deceased went through before he unfortunately
passed on 4 January 2017. To shed more light on this we shall deal
with the evidence of Dr Maxmillian N. Dzowa who led a team of doctors
who attended to the now deceased and compiled the report, exhibit 3.
He also explained certain medical terms contained in a rather
illegible post-mortem report compiled by Dr Roberto.
Dr
Maxmillian N. Dzowa (Dr Dzowa)
Dr
Dzowa, who has a Degree in medicine and surgery and a Masters'
qualification as a neuro surgeon with 3 years experience. He
specialises in diseases relating to the brain, spinal cord and
nerves. He was the lead doctor who attended to the now deceased from
2 January 2017 at Parirenyatwa Hospital until the now deceased's
death on 4 January 2017.
In
his evidence, Dr Dzowa said the now deceased was admitted with a
knife lodged in his head. His blood pressure was inaudible (or very
low) and was bleeding profusely from both the nose and the mouth. He
explained how the now deceased was treated and the medical procedure
carried out.
Dr
Dzowa said the now deceased was given medication to raise his blood
pressure and had to be sedated in order to insert a tube to enable
him to breathe and avoid blood going into his lungs. In order to
remove the knife embedded in the now deceased's head a scan was
done. This was a necessary procedure as pressure was building in the
now deceased's brain.
In
relation to the injury sustained by the now deceased, Dr Dzowa said
the knife entered through the left side of the head right into the
head and was lodged on the opposite (right side) of the head. As a
result, there was a lot of bleeding inside the head and also pressure
was building inside the head. The now deceased, whose blood pressure
was exceedingly low and going down, was in a comatose which meant he
was unresponsive and not feeling any pain.
According
to Dr Dzowa, the now deceased had to be taken to the theatre in order
to remove the knife lodged in his head. He said this was a difficult
process as the knife was embedded in the skull. The knife was in the
skull bone to the hilt. The whole blade was inside the skull and in
order to remove it they had to first remove the bone around the knife
blade and its end was also lodged into the bone. After this delicate
process of removing the knife the blood was removed around the knife
tract or path. He said the other specialists dealt with stopping the
bleeding from the ear, nose and mouth. After this procedure the now
deceased was taken to the ICU but his blood pressure remained very
low and was virtually brain dead. The now deceased passed on two (2)
days later on 4 January 2017.
Dr
Dzowa was of the view that in order to inflict such an injury severe
force was used. This was informed by the fact that the knife
perforated the skull and remained embedded in the other side of the
skull. It could not be removed without going through the medical
procedure he explained. Further, Dr Dzowa pointed out that despite
their valiant efforts the now deceased's chance of survival was
very minimal because the knife perforated the brain from one side of
the head to the other side thus cutting across the vital brain areas
responsible for important body functions like breathing and
performance of the heart.
Dr
Dzowa commented on the accused's version on how the now deceased
was injured, which is that the accused had thrown the knife at the
now deceased from a distance. The doctor dismissed this as not
possible because the knife went through the skull to the other side
of the head and was only stopped by the handle. This means that the
whole blade, 14cm long, was inside the skull and this could not have
been achieved by merely throwing the knife at the now deceased
hitting his head at a distance. In fact, Dr Dzowa said the knife
entered the skull above the right ear and went through the skull up
to below the left ear (which is on the other side).
We
also benefitted from Dr Dzowa's explanation of the medical terms
contained in the post mortem report which was also not very legible
in some portions. The important findings contained in the postmortem
report are as follows;
(i)
The now deceased's brain was swollen and there was bleeding inside
the brain.
(ii)
There was lots of water inside the now deceased's lungs which
impaired his breathing.
(iii)
The heart muscle of the now deceased was swollen.
(iv)
There were fluids outside the now deceased's intestines.
(v)
There was blood within the now deceased's stomach and there was
irritation of the stomach wall.
(vi)
The cause of the now deceased's death was the severe swelling and
damage on the passage of the knife; bleeding inside the skull - all
arising from the head injury caused by the stabbing with the knife.
There
is no doubt in our minds that the now deceased sustained very serious
and fatal injuries caused by being stabbed with a knife in the head.
The knife was lodged deep in the now deceased's head and could not
be removed by hand. It is our finding that for the knife to be
embedded to such an extent and depth severe force was used. It can
therefore be inferred that the intention in inflicting such an injury
was clearly to cause death.
Having
resolved the cause of the now deceased's death our next task is to
resolve how the now deceased sustained this fatal injury. Put
differently, which version is true, the one given by the accused or
the other alleged by the State. To resolve this, we turn to the
evidence of the witnesses who were present at the scene and juxtapose
their testimony with that of the accused.
Shelter
Mukaro (Shelter)
Although
Shelter did not witness how the now deceased was stabbed her evidence
is important in shedding light on the events preceding the stabbing
of the now deceased.
Shelter
Mukaro resides at Stand No.3 Action B Mushandike, Masvingo in the
same neighbourhood with the now deceased and his friends. She grew up
with the now deceased. She had no love relationship with the now
deceased or his friends, but, instead, regarded them as her brothers.
She only came to know the accused on 1 January 2017 when they met at
Bhuka Business Centre where she had gone to celebrate the new year's
day with her friend, Roselyn Philemon, at midday. The accused
proposed love to her and she accepted. She was thereafter introduced
to the accused's young brother, Innocent Mapurisa, who, in turn,
ended up in the company of her friend, Roselyn Philemon.
Shelter
said she and Roselyn Philemon are the ones who approached the now
deceased and his colleagues requesting that they should go home with
them later that day as it would be unsafe for the two girls to
proceed alone in the evening. The now deceased and his friends Brian
Dube, Wadzanai Sakadzo and Alfred Muteti agreed.
Shelter
said as it was getting dark the now deceased's colleagues Brian
Dube and Wadzanai Sakadzo came to where she was with the accused and
told her that it was time for them to go home. This was in order as
per her previous request and the accused raised no objection. She
said in a friendly manner both Brian Dube and Wadzanai Sakadzo each
held her hand pulling her and as persons she regarded as brothers
there was nothing amiss about it. She told them to release her and
let her walk on her own as she wanted to follow behind them with the
accused. They obliged. By then Roselyn Philemon was ahead of them
with the accused's young brother, Innocent Mapurisa.
Shelter
said when she and the accused caught up with the accused's young
brother, Innocent Mapurisa, she realized Innocent Mapurisa was having
a misunderstanding with Wadzanai Sakadzo. She was not privy as to the
cause of this misunderstanding. The now deceased then arrived and got
in between Innocent Mapurisa and Wadzanai Sakadzo telling them not to
fight. The accused was un-amused. Instead, the accused told the now
deceased to let his young brother, Innocent Mapurisa, fight with
Wadzanai Sakadzo. Shelter said at that point the accused suddenly
pulled out a knife from the right side of his trousers pocket. She
was terrified and screamed for help realising the impending danger.
In fear she fled in the direction of her home. After a distance, and
along the tarred road, she saw a group of people gathered. She could
not ascertain what was going on as then people started to blame her
for having caused the injury to the now deceased. She proceeded home.
Shelter
dismissed the accused's version of events as false. She said at the
time the accused pulled out the knife from his trousers pocket the
accused was not under attack from anybody or involved in any
altercation with any person. In fact, she said she was surprised by
the accused's conduct.
Under
cross examination, Shelter Mukaro dismissed as false the assertion
that she was in love with one Alfred Muteti. She said Alfred Muteti,
Brian Dube, Wadzanai Sakadzo and the now deceased were simply her
fellow villagers whom she respectfully regarded as her brothers. She
said the now deceased and his colleagues were of sober habits as they
did not drink beer. Lastly, Shelter said it is untrue that Brian Dube
and Wadzanai Sakadzo alleged that the accused was indecently
assaulting her. Instead, none of them talked to the accused who was
following Shelter and later walked behind them with Shelter after
they had released Shelter's hands.
Wadzanai
Sakadzo (Wadzanai)
Wadzanai
grew up with the now deceased. They were friends and church mates. He
only got to know the accused on 1 January 2017 at Bhuka Business
Centre. Shelter Mukaro and Roselyn Philemon were his neighbours and
regarded them as his sisters. The two girls requested Wadzanai, the
now deceased, Brian Dube and Alfred Muteti not to leave them at the
business centre later in the day but to go home with them. He later
saw Shelter Mukaro and Roselyn Philemon in the company of the accused
and one Innocent whom he later learnt to be the accused's young
brother.
Wadzanai
said when it was time to go home Alfred Muteti proceeded to go and
alert Roselyn Philemon who was with Innocent Mapurisa and Wadzanai,
together with Brian Dube, in turn, advised Shelter Mukaro who was
with the accused. They both held Shelter's hands telling her it was
time to go home. The accused followed behind and when they released
Shelter, the accused walked behind them with Shelter. Roselyn
Philemon was in front with Innocent and Alfred Muteti.
Wadzanai
said when they caught up with Innocent Mapurisa, Roselyn Philemon and
Alfred Muteti he heard Innocent Mapurisa saying “nxaa” a sign
that he was unhappy. Wadzanai said he asked Innocent Mapurisa what
was wrong. Innocent Mapurisa looked angry and was poised for a
confrontation. Wadzanai said he retorted that he did not understand
Innocent Mapurisa's conduct telling him that they had allowed the
accused and Innocent Mapurisa to enjoy the company of Shelter Mukaro
and Roselyn Philemon all day and that it was time to go home with
their sisters. He said Innocent responded saying Wadzanai was
disrespecting him. At that point the now deceased intervened to stop
a confrontation between Innocent Mapurisa and Wadzanai explaining
that the two girls were their sisters.
Wadzanai
said the accused told the now deceased to let Innocent Mapurisa and
Wadzanai engage in a fight. The now deceased intervened. At that
point the accused said he was now dealing with the now deceased whom
he pushed causing him to fall down. Wadzanai said Alfred Muteti
rushed to try and rescue the now deceased as the accused had pulled
out a knife and was sitting on the now deceased's chest. By then,
the accused had cut the now deceased in the face with a knife on the
forehead and below the left eye. Alfred Muteti failed to pull the
accused away. The accused then stabbed the now deceased on the head
as he sat on the now deceased's chest and tried to pull out the
knife but failed. The accused immediately fled. Since they did not
know the accused and Innocent Mapurisa, Wadzanai said they held
Innocent Mapurisa but immediately released him as stones rained at
them. Innocent Mapurisa also fled. The now deceased got up with the
knife embedded in is head and walked towards home. When they followed
they found that the now deceased had collapsed along the
Masvingo–Beit Bridge road. Fortunately, an ambulance from Masvingo
stopped and the now deceased was ferried to hospital.
Wadzanai
said the accused's conduct surprised him as no one had attacked the
accused or provoked him in any manner. He said the knife was in the
deceased's head to the hilt (handle) and that only the handle was
visible.
Under
cross examination, Wadzanai Sakadzo said he and his colleagues never
had an altercation with the accused. He disputed that the accused
behaved in an indecent manner with Shelter Mukaro. He denied that the
accused just fortuitously picked the knife but that he pulled it out
of his pocket. Wadzanai insisted that he never fought Innocent
Mapurisa but simply had a misunderstanding with him.
Alfred
Muteti (Alfred)
Alfred
regarded the now deceased as uncle and he knew the accused as they
had written 'O' Level examinations at the same school. The now
deceased, Wadzanai, Brian Dube, Shelter Mukaro and Roselyn Philemon
were fellow villagers. He corroborated Shelter and Wadzanai on the
request made by Shelter and Roselyn Philemon and how he later
approached Roselyn Philemon to advise her that they were going home.
Alfred
said he approached Roselyn Philemon who was with the accused's
young brother Innocent Mapurisa. Roselyn Philemon obliged. As he was
walking with Roselyn Philemon he heard Shelter Mukaro shouting for
help. He rushed back.
Alfred
Muteti said on arrival at the scene he found the accused wielding a
knife and seated on top of the now deceased. The now deceased was
holding on to the accused's hands to prevent being stabbed. Alfred
said he tried to pull the accused from the now deceased as the
accused was cutting the now deceased on the forehead and nose with
the knife. Innocent Mapurisa prevented him by pulling Alfred away.
The accused then stabbed the now deceased in the head and fled
leaving the knife embedded in the now deceased's head. The now
deceased got up and also ran away in the direction of their home.
Alfred held Innocent but released him as stones were thrown at Alfred
and his colleagues. Alfred said they later found the now deceased who
had collapsed along Masvingo–Beit Bridge highway. When an ambulance
stopped Alfred accompanied the now deceased to Masvingo General
Hospital. He was present when the now deceased was sutured above the
eye and on nose bridge. These injuries had been inflicted by the
accused with the knife. He said since the knife was embedded in the
now deceased's head he was transferred to Parirenyatwa Hospital.
Under
cross examination, Alfred Muteti denied that he was in love with
Roselyn Philemon. He denied that any of his colleagues attacked the
accused or that the accused was under any threat. Alfred said none of
his colleagues had a knife and that no one ever alleged that the
accused had indecently behaved with Shelter Mukaro.
All
the witnesses, Shelter Mukaro, Wadzanai Sakadzo and Alfred Muteti
gave their evidence well. They materially corroborated each other on
how the now deceased was fatally injured. They all dismissed the
accused's version, that he was under attack and acted in
self-defence, as false. They all disputed that the accused
fortuitously picked the knife. Wadzanai and Alfred explained how the
accused stabbed the now deceased.
It
was evident to us that counsel for the accused had serious
difficulties in cross examining Shelter, Wadzanai and Alfred. Her
task was not an easy and enviable one. It was a herculean task for
her. Indeed, she groped for meaningful questions but nonetheless
failed to ask any relevant questions.
In
our assessment, Shelter, Wadzanai and Alfred were clear, coherent and
consistent. Shelter was the accused's girlfriend and would have no
reason to lie against him. Further, we find no motive for the
witnesses to falsify their evidence. They were credible witnesses and
we shall place reliance upon their testimony.
The
Accused
From
the evidence before us and the accused's testimony it is clear to
us that the accused's version of events is improbable and cannot
reasonably be true. If the accused had met Shelter Mukaro, Roselyn
Philemon, Wadzanai Sakadzo, Brian Dube and the now deceased for the
first time that day at Bhuka Business Centre why then is he alleging
Shelter Mukaro was in love with one of the deceased's colleagues?
The accused dismally failed to prove this allegation.
The
accused's story on how he ended up in possession of the knife is a
very poorly thought account which even a kindergarten kid cannot
believe. Even his own girlfriend saw him pulling out the knife from
his trousers pocket.
Lastly,
the manner in which the accused said he injured the now deceased was
dismissed by Dr Dzowa, an expert witness, as improbable. Even common
sense would dictate that it is impossible to have inflicted such an
injury by throwing a knife from a distance at the now deceased.
Indeed, both Wadzanai Sakadzo and Alfred Muteti saw clearly how the
accused stabbed the now deceased. We are baffled that the accused
believes this court would buy such a story.
The
accused failed to prove the requirements of the defence of
self-defence as provided for in section 253(1) of the Criminal Law
(Codification and Reform) Act [Chapter
9:23].
He was not under any unlawful attack when he stabbed the now deceased
nor was such an attack imminent. It is the accused who was simply the
aggressor for no apparent reason except to probably foolishly believe
that he was impressing his newly found girlfriend, Shelter Mukaro,
who, instead, found his conduct frightening. The defence of
self-defence is therefore not available to the accused.
From
the evidence before us, the accused's intention when he stabbed the
now deceased is clear. He intended to cause death and indeed he
accomplished this mission.
Accordingly,
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.
