HMA29-18 - THE STATE vs WIKLOVE VURAYAI and MUNYARADZI VURAYAI

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Murder-viz section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

Indictment-viz multiple accused persons re separate trials.

Charges-viz multiple accused persons re separation of trials.

Murder-viz mob assault re the doctrine of common purpose.

Murder-viz multiple assailants re the doctrine of common purpose.

Murder-viz infliction of harm on an unintended victim re the aberratio ictus rule.

Procedural Law-viz rules of evidence re competent witness.

Procedural Law-viz rules of evidence re compellable witness.

Procedural Law-viz rules of evidence re expert evidence iro postmortem report.

Procedural Law-viz rules of evidence re unchallenged evidence iro section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07].

Procedural Law-viz rules of evidence re undisputed averments iro section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07].

Procedural Law-viz rules of evidence re uncontroverted submissions iro section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07].

Procedural Law-viz rules of evidence re physical evidence.

Procedural Law-viz rules of evidence re findings of fact iro assessment of evidence.

Procedural Law-viz rules of evidence re direct evidence iro eyewitness.

Procedural Law-viz rules of evidence re direct evidence iro key witness.

Murder-viz intention re prior utterances made by the accused person before the commission of the crime.

Procedural Law-viz rules of evidence re findings of fact iro witness testimony.

Procedural Law-viz rules of evidence re corroborative evidence.

Procedural Law-viz rules of evidence re evidence of identification.

Procedural Law-viz rules of evidence re physical evidence iro murder weapon.

Procedural Law-viz rules of evidence re corroborative evidence iro pervasive influence.

Procedural Law-viz rules of evidence re corroborative evidence iro the principle that lies told by an accused person amount to corroboration of State witnesses.

Procedural Law-viz rules of evidence re improbable evidence.

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

Sentencing-viz murder with constructive intent.

Sentencing-viz sentencing approach re prevalent offences iro exemplary sentences.

Sentencing-viz murder committed in aggravating circumstances re section 47(2)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

Sentencing-viz murder committed in aggravated circumstances re section 47(2)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

Sentencing-viz sentencing approach re prevalent offences iro deterrent sentences.

Sentencing-viz sentencing approach re first offenders.

Sentencing-viz mitigatory factor re diminished mental responsibility iro intoxication.

Sentencing-viz mitigation re diminished mental responsibility iro intoxication.

Sentencing-viz sentencing approach re pre-trial incarceration.

Sentencing-viz sentencing approach re restitution.

Sentencing-viz sentencing approach re compensation.

Indictment or Charge re: Multiple or Co-Accused, Multiple Charges and Differing Pleas iro Joint or Separate Trials

This is a rather unusual case in which both accused persons are facing two counts of murder as defined section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] committed on the same day and at the same place.

Initially, both accused persons were jointly charged with Calvin Vurayai and Tafara Joramu who are now at large and warrants for their arrest were issued. A separation of trial was granted hence the proceedings are only in respect of Accused 1, Wiklove Vurayai (Wiklove), and Accused 2, Munyaradzi Vurayai (Munyaradzi).

Murder re: Mob Assault, Multiple Assailants or Murder By a Group

The charges are that on 10 March 2016 each of the accused persons, or all of them, caused the death of Saul Kani (hereinafter the first deceased) and Pauro Stanslas Masimura (hereinafter the second deceased) by assaulting them with iron bars and booted feet at Shashe Business Centre in Mashava.

Accused 1, Wiklove Vurayai is aged 28 years and Accused 2, Munyaradzi Vurayai is 25 years. They are both brothers with one Calvin Vurayai. Tafara Joramu is their nephew. They all reside in Hwarikwari Village, Headman Madamombe in Chivi, Masvingo. Both the now deceased, that is the first deceased, Saul Kani (Saul), and the second deceased, Pauro Stanlsus Masimura (Pauro), resided in Murove Village, Headman Madamombe, Chivi, Masvingo. The first deceased, Saul Kani, was, 31 years and the second deceased, Pauro Stanlsus Masimura, 65 years old.

On 10 March 2016 the accused persons, together with their alleged accomplices, Calvin Vurayai and Tafara Joramu, were at Shashe Business Centre at night. The now deceased persons and other patrons were also at the same business centre. They were all enjoying themselves drinking beer at the bottle stores at the said business centre.

It is alleged that the accused persons had an altercation with one Thomas Ndambira inside Mudziro Bottle Store and that the second deceased, Pauro Stanlsus Masimura, inquired what was wrong as Thomas Ndambira sought refuge behind the second deceased, Pauro. The State alleges the accused persons attacked the second deceased, Pauro Stanlsus Masimura, and that the second deceased's sons, Golden Masimura and Simbarashe Masimura, also present in the bottle store, intervened to rescue their father the second deceased, Pauro Stanlsus Masimura. During the said melee, Thomas Ndambira is alleged to have hit Accused 1, Wiklove Vurayai, with an iron bar on the head causing a deep cut and briefly rendering Accused 1, Wiklove Vurayai, unconscious. It is said Accused 1, Wiklove, was resuscitated by the first deceased, Saul Kani, who poured water on him.

It is the State case that Accused 1's brothers, that is Accused 2, Munyaradzi, Calvin and their nephew, Tafara Joramu, attacked the second deceased's sons, Golden Masimura and Simbarashe Masimura who both fled leaving their 65-year-old father Pauro Masimura. The State alleges that all the accused persons turned on to the second deceased, Pauro Masimura, whom they assaulted with iron bars and bricks until he was unconscious. The first deceased, Saul Kani, tried to assist the second deceased, Pauro, and it is alleged the first deceased, Saul, was also attacked by the accused persons in the same manner until he was unconscious. The police were later called in and both deceased persons were ferried to Masvingo Provincial Hospital after which they were transferred to Parirenyatwa Hospital due to the severity of the injuries where the first deceased, Saul Kani, died on 14 March 2016 and the second deceased, Pauro Stanlsus Masimura, died on 17 March 2016.

The defence proffered by Accused 1, Wiklove Vurayai, is that he never attacked any of the deceased persons at all on the day in question. Accused 1, Wiklove, said all started when Thomas Ndambira confronted Accused 1, Wiklove, in Madziro Bottle Store ordering him not to illegally mine gold in Thomas Ndambara's village, an activity Accused 1 and his accomplices were engaged in together with many other local gold panners. Accused 1, Wiklove, said this altercation degenerated into a fist fight with Thomas Ndambira and that his alleged accomplices stopped the fight. Accused 1, Wiklove, said villagers from Thomas Ndambira's village then declared war against Accused 1, Wiklove, and his alleged accomplices who were thereafter attacked inside the bottle store. Accused 1, Wiklove, said he tried to flee but was struck on the head with an iron bar by Thomas Ndambira as he tried to get out of the bottle store causing him to fall unconscious. As a result, Accused 1, Wiklove, said he is unaware as to what befell the now deceased persons as he was unconscious. Accused 1, Wiklove, said he had no cause at all to fight or injure both deceased persons.

This is the same version Accused 1, Wiklove, maintained in his evidence in chief and under cross examination. Accused 1, Wiklove, insisted throughout the trial that he does not know how both the first deceased, Saul Kani and the second deceased, Pauro Stanlsus Masimura, were fatally injured. In fact, Accused 1 said he is surprised to be falsely implicated in their demise. Instead, he maintained that he was a victim of this brawl as he sustained a serious head injury inflicted by Thomas Ndambira.

Accused 2, Munyaradzi Vurayai's version, as per his defence and evidence, is that a fist fight ensued among the deceased persons and their relatives against Accused 1, Wiklove Vurayai, Accused 2, Munyaradzi Vurayai, Calvin Vurayai and Tafara Joramu. During the ensuing fight he said Accused 1, Wiklove, was attacked with a machete on the head by Thomas Ndambira and fell unconscious. Accused 2 said the first deceased, Saul Kani, was mistakenly struck by Thomas Ndambira with a stone as Thomas Ndambira intended to strike Accused 2, Munyaradzi, and his alleged accomplices. Accused 2, Munyaradzi, said this is how the first deceased, Saul Kani, was fatally injured. Accused 2, Munyaradzi, said the second deceased, Pauro Stanlsus Masimura, was injured in the same manner, a deflected blow scenario, by one of the second deceased's sons who intended to hit Accused 2, Munyaradzi, but missed and fatally injured the second deceased, Pauro. Accused 2, Munyaradzi, said we did not attack any of the deceased persons. Instead, he said he carried Accused 1, Wiklove Vurayai, who had been seriously injured and unconscious until they got home. Accused 2 said when he and Accused 1, Wiklove, left, his alleged accomplices, Calvin Vurayai and Tafara Joramu were still engaged in the fist fight with the now deceased persons and their relatives.

Accused 2 maintained, in his evidence, that he never attacked any of the deceased persons but that he and his alleged accomplices were victims of an attack by people from the now deceased persons' village over disputed gold claims which they were all illegally exploiting. Accused 2, Munyaradzi Vurayai, said indeed the first deceased, Saul Kani, poured some water on Accused 1, Wiklove Vurayai, who had been rendered unconscious by Thomas Ndambira after being hit with an iron bar on the head. He said it was during that process that Thomas Ndambira threw a stone and mistakenly hit the first deceased, Saul, who fell down. Accused 2, Munyaradzi, said after he carried his unconscious brother, Wiklove, home he later surrendered himself to Mashava police after he gathered police were looking for him and that he had nothing to fear as he was innocent.

Our task is to assess whether the version given by both accused persons is indeed correct. As already said, the accused persons' alleged accomplices, Calvin Vurayai and Tafara Joramu, are not part of this trial. Further, Thomas Ndambira, who is continuously implicated in this brawl, did not testify.

The cause of death of both the first deceased, Saul Kani, and the second deceased, Pauro Stanlsus Masimura, is not in issue. They both died as a result of injuries inflicted upon them as per the post mortem reports, Exhibit 3 and Exhibit 4, which show the cause of their deaths as subdural haematoma and head trauma arising from assault. The second deceased, Pauro, also suffered from pneumonia aspiration. The evidence of Doctor Gonzalez, who carried out the post-mortem examinations, is uncontested and was admitted in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:23].

During the course of the trial, two iron bars, Exhibit 1, which is 1-metre-long and weighs 2.809kg and Exhibit 2, which is 1,95m long and weighing 5.045kg, were produced by consent. These implements are used for illegally gold panning and the State alleges they are part of the arsenal the accused persons used to attack the now deceased persons. All we noted is that these iron bars are indeed lethal weapons which can inflict fatal injuries.

We now turn to the evidence led from seven (7) State witnesses.

What emerges from the evidence is that the accused persons initially had an altercation with the second deceased, Pauro Stanlsus Masimura's nephew, one Vincent, over some $1= allegedly owed to one of the accused persons and that the second deceased, Pauro, intervened, as an elderly person, by telling his nephew to go home. This is clear from the evidence of the second deceased's sons, Isheunesu Masimura and Golden Masimura.

The State led evidence from Nyengeterai Zvavatonga, a bar lady in Mudziro Bottle Store; John Kaza, a fellow patron and villager who was in Mudziro Bottle Store; Isheunesu Masimura, Golden Masimura both sons of the second deceased, Pauro Stanlsus Masimura; the Investigating Officer, Sgt. Shepherd Musindo, and Lloyd Mutombo, also a fellow villager, who was at Shashe Business Centre.

We now turn to that evidence.

1. Sgt Shepherd Musindo (Sgt Musindo)

Sgt Musindo testified that when he attended the scene he found three people, that is, the two deceased persons Saul Kani and Pauro Stanlsus Masimura and one Lloyd Mutombo severely injured at Shashe Business Centre. He said they all had serious head injuries and bleeding from the nose and mouth. None of them could talk. He recovered iron bars, Exhibit 1 and Exhibit 2, although he was advised some stones or farm bricks were also used to injure the now deceased persons and Lloyd Mutombo. He ferried the three (3) injured persons to Masvingo General Hospital and said due to the severity of the injuries they were transferred to Parirenyatwa Hospital where both deceased persons later passed on. A separate docket was opened in respect of Lloyd Mutombo who survived the injuries and also Golden Masimura who was stabbed with a knife. These matters are yet to be finalised. Sgt Musindo confirmed Accused 1, Wiklove Vurayai, was injured on the head and that he was arrested while being hospitalised at Chivi District Hospital. He confirmed that Accused 2, Munyaradzi Vurayai, and his alleged accomplices, surrendered to the police.

His evidence is largely uncontested and does not take the State case much further.

2. Lloyd Mutombo (Mutombo)

Lloyd Mutombo was at Shashe Business Centre on the day in question and at Makava Bottle Store, separate from Mudziro Bottle Store where this altercation started. His evidence is that he was just caught in the cross-fire as it were and ended up severely injured after which he was hospitalised at Masvingo General Hospital and Parirenyatwa Hospital.

Mutombo said on that day, at about 2200hrs, he left Makava Bottle Store proceeding to Mudziro Bottle Store unaware that “a war” had erupted at the latter. He said as he innocently walked Calvin Vurayai, who was in the company of Accused 1, Wiklove Vurayai and Accused 2, Munyaradzi Vurayai, confronted him demanding that he identify himself. His “crime” was that he stays in the same village with the deceased persons. Mutombo said Calvin held him by the throat and Accused 1, Wiklove, pronounced that he was to join fellow villagers whom the accused persons said they had disciplined. He said both Calvin Vurayai and Accused 1, Wiklove Vurayai, tripped him as Accused 1, Wiklove, throttled him. As he fell, Accused 1, Wiklove, hit him with an iron bar at the back of the head rendering him unconscious. Mutombo said he only gained consciousness the next day at 1600hrs when he found himself admitted in Masvingo Hospital from where he was transferred to Parirenyatwa Hospital in Harare.

Lloyd Mutombo said he does not even know why he was attacked by the accused persons.

The evidence of Lloyd Mutombo rebuts Accused 1, Wiklove Vurayai's assertion that he was unconscious throughout this incident. It also shows that the accused persons were virtually on a warpath attacking persons for no apparent reason. Lloyd Mutombo's evidence is uncontroverted and implicates both Accused 1, Wiklove Vurayai and Accused 2, Munyaradzi Vurayai.

3. Christopher Hofisi (Hofisi)

Christopher Hofisi is a fellow villager and was in Mudziro Bottle Store on that night. He said Accused 1 was hit with an iron bar on the head and fell down. He did not see the assailant. Hofisi said the first deceased, Saul Kani, rushed to fetch water and assisted Accused 1, Wiklove Vurayai, by pouring water on Accused 1. He said Accused 1, Wiklove Vurayai, regained consciousness and woke up.

Hofisi said after about 45 minutes he left Mudziro Bottle Store for the other bottle store. On his way, he was surprised to see the first deceased, Saul Kani, lying down injured; he tried to help him, but some young men came running threatening to also injure him wielding iron bars. He was unable to identify them; he fled for dear life and sought refuge in one of the bottle stores until police arrived at 0400hrs and when he came out he found out that both deceased persons and Lloyd Mutombo had been severely injured. His evidence is not challenged and it confirms that on that night Shashe Business Centre had been turned into a war zone and no one was spared or safe.

4. Golden Masimura (Golden)

As already said, he is the son of the second deceased, Pauro Stanlsus Masimura and was in Mudziro Bottle Store. Golden said after their nephew, Vincent, had left for home the accused persons started an altercation with one Thomas Ndambira, who, in turn, sought refuge behind the second deceased, Pauro Stanlsus Masimura. He said the second deceased, Pauro, tried to calm down the accused persons but Tafara Joramu assaulted the second deceased, Pauro. Golden said realising his father, Pauro Stanlsus Masimura was under attack he rushed to assist him but Accused 1, Wiklove Vurayai, Accused 2, Munyaradzi Vurayai and Calvin Vurayai blocked him. During the altercation he said Accused 1, Wiklove, stabbed him with a knife on the left shoulder and twice on the head. He showed us a healed stab wound on the shoulder.

Golden said his brother, Isheunesu Masimura, intervened to disarm Accused 1, Wiklove, and this gave Golden a chance to flee. As he fled, his father, the second deceased, Pauro, was being held by Tafara Joramu. He managed to get home after which he went to the police to report and was hospitalised.

The evidence of Golden Masimura shows that the accused persons were indeed the aggressors and not innocent victims. In fact, when Golden fled none of the deceased persons had been injured and Accused 1 had not been injured also.

5. Nyengeterai Zvavatonga (Nyengeterai)

Nyengeterai was the bar lady in Mudziro Bottle Store and well known to both deceased persons and accused persons as local persons.

She testified that her attention was drawn when Accused 1, Wiklove Vurayai, had an altercation with Thomas Ndambira and that Thomas Ndambira sought refuge behind the second deceased, Pauro Stanlsus Masimura, who inquired why there was the altercation. She said Accused 1, Wiklove, turned to the second deceased, Pauro, and assaulted him. This caused the second deceased, Pauro's sons, to rush to protect their father and a fight ensued between the accused persons and the second deceased Pauro's sons. Nyengeterai said in the ensuing melee Accused 1, Wiklove, was hit on the head with an iron bar but she did not identify the assailant. Accused 1, Wiklove, fell down and patrons fled from the bottle store.

Nyengeterai said the first deceased, Saul Kani, took water and helped Accused 1, Wiklove, by pouring water on him until Accused 1, Wiklove, gained consciousness. She remained in the bottle store fearful of the commotion which was going on outside.

Nyengeterai said the first deceased, Saul, later came into the bottle store asking for a torch saying he wanted to check on the second deceased, Pauro, who was lying down outside injured. She had no torch.

She explained how the first deceased was attacked.

Nyengeterai said as the first deceased left the bottle store Accused 2, Munyaradzi Vurayai, and Calvin Vurayai tripped him as Accused 2 held him. The first deceased fell just outside the bottle store and was assaulted as follows;

(i) Calvin Vurayai picked a big stone and hit the first deceased on the head who cried out in pain.

(ii) Accused 2, Munyaradzi Vurayai and Calvin Vurayai then used iron bars, Exhibit 1 and Exhibit 2, to assault the first deceased, Saul Kani, with severe force directing blows on the head and ribs.

(iii) Accused 1, Wiklove Vurayai, who had now gained consciousness, joined in the assault of the first deceased, Saul Kani, using the shorter iron bar which he took from Calvin Vurayai and shouted that he would kill the first deceased, Saul Kani.

(iv) That Accused 1, Accused 2 and Calvin Vurayai only stopped the assault when the first deceased, Saul Kani, was unconscious, no longer crying out, and seemingly dead.

(v) She did not witness how the second deceased, Pauro Stanlsus Masimura, was injured.

Nyengeterai refuted that Accused 1, Wiklove, was unconscious for a long time but that he gained consciousness when the first deceased, Saul, assisted him by pouring three (3) buckets of water after which he joined Accused 2 and Calvin Vurayai in attacking the first deceased, Saul. She indicated that she clearly saw how the accused persons attacked the first deceased, Saul, as the scene of crime was well illuminated by lights on the verandah of her bottle store. She only came out of the bottle store after the police came and realised that both the deceased had been severely injured all over the body - especially on the head and bleeding from the nose.

In our assessment, Nyengeterai Zvavatonga's evidence is very clear on how the first deceased, Saul Kani, was fatally injured. She was on duty and sober hence clearly perceived what happened. Nyengeterai is unbiased. She is not related to either the deceased persons or accused persons. Clearly, she has no interest in the matter. Both accused persons and the victims were patrons in her bottle store. She was an impartial witness who stated that indeed Accused 1, Wiklove Vurayai, was injured and rendered unconscious for a brief period. Indeed, she limited herself to what she perceived as she said she did not see how the second deceased, Pauro Stanlsus Masimura, was injured. To show her objectivity and sincerity she confirmed that the second deceased, Pauro's sons fought Accused 1, 2 and Calvin Vurayai with clenched fists initially inside the bottle store. It is for these reasons that we accept her evidence.

6. John Kaza (John)

John is well known to both deceased persons and accused persons. He too was in Mudziro Bottle Store and corroborates, in material respect, Nyengeterai Zvavatonga's evidence.

John said after Thomas Ndambira had an altercation with the accused persons and Calvin Vurayai he sought refuge behind the second deceased, Pauro Stanlsus Masimura and that Calvin Vurayai assaulted the second deceased for inquiring what was wrong. This resulted in the second deceased Pauro's sons, Golden, Simbarashe and two others to intervene resulting in a fist fight with the accused and Tafara Joramu. He said during the fight the second deceased's son, Golden, was stabbed with a knife inside the bottle store and many patrons fled out of the bottle store. He realised Accused 1, Wiklove Vurayai, had been injured and was lying on the verandah of the bottle store. He did not see the assailant. He said the first deceased, Saul Kani, administered first aid by pouring water on Accused 1, Wiklove, as the second deceased's sons were still fighting with Accused 2, Calvin Vurayai and Tafara Joramu. The second deceased, Pauro, also got out of the bottle store. John said when he got out of the bottle store he found the second deceased, Pauro, lying near a shop injured and that Accused 2, Munyaradzi Vurayai and Calvin Vurayai were holding one Isheanesu saying they wanted to discipline him and cause him to lie near his father, the second deceased, Pauro Stanlsus Masimura - already injured. John said he intervened and told Accused 2, Munyaradzi Vurayai and Calvin Vurayai to let go Isheunesu and that Isheunesu managed to flee. John said Accused 2, Munyaradzi Vurayai and Calvin Vurayai were incensed by his intervention and turned to John, who, in turn, fled from the menacing brothers and hid behind a grinding mill. He said from this vantage position he witnessed the conduct of the accused persons as follows;

(a) Accused 1, Wiklove Vurayai, who had gained consciousness, teamed up with Accused 2, Munyaradzi Vurayai, Calvin Vurayai and Tafara Joramu to assault the second deceased, Pauro Stanlsus Masimura who was already lying down injured; they took turns using iron bars...,. Severe force was used and blows were directed at the second deceased's head and chest.

(b) Accused 2, Munyaradzi Vurayai, picked a very big stone and hit the second deceased with it.

(d) John Kaza said he also realised that the first deceased, Saul Kani. had been injured as he said the accused persons also moved to where the first deceased, Saul Kani, lay injured and further assaulted him with iron bars and would interchange the assault between the first deceased and the second deceased persons. The blows were indiscriminate and delivered with severe force.

(e) As John Kaza was hiding he saw a passer-by, Lloyd Mutombo, coming from Makava Bottle Store oblivious of what was going on and he was held by Accused 1, Wiklove Vurayai and assaulted with an iron bar. Lloyd Mutombo was left for dead as the accused persons resumed the assault on the deceased persons.

(f) John Kaza said he telephoned the police fearful of the deceased persons' lives and when police later came he realised both deceased persons had severe head injuries.

In our assessment, John Kaza gave clear and free flowing evidence. He has no interest in the matter. There is nothing to suggest he was unable to see what happened. His testimony rebuts Accused 1's evidence that he remained unconscious throughout this incident but that Accused 1, Wiklove Vurayai, participated in the assault which John Kaza said lasted for an hour. He also dismissed as untrue that Accused 2, Munyaradzi Vurayai carried Accused 1, Wiklove Vurayai, but participated in the assault.

7. Isheunesu Masimura (Isheunesu)

Isheunesu is the son of the second deceased (Pauro Stanlsus Masimura) and a sculptor. Isheunesu said when he got into Masimure Bottle Store his father, the second deceased (Pauro Stanlsus Masimura) wanted to discuss certain family issues with him but failed as the accused persons had an altercation with their nephew, Vincent, over $1= Calvin Vurayai said he was owed. The second deceased (Pauro Stanlsus Masimura) told Vincent to go home and Vincent complied.

Isheunesu Masimura said moments later the accused persons had another altercation with one Thomas Ndambira whom they assaulted. Thomas Ndambira sought refuge behind the second deceased (Pauro) who inquired why the accused persons were violent. He said the accused persons turned to the second deceased (Pauro) manhandling the second deceased. This caused his brothers, Simbarashe, Golden and nephew to intervene to restrain Tafara Joramu resulting in a fist fight between the accused persons and Isheunesu's relatives. He said both Accused 1, Wiklove Vurayai and Tafara Joramu had knives and Accused 1, Wiklove, stabbed Golden on the left shoulder and head. Isheunesu then intervened to restrain Accused 1, Wiklove, and managed to rescue Golden who was severely injured. He decided to take Golden home but realised their father, the second deceased, had remained behind hence he came back. When he returned to the bottle store he saw Thomas Ndambira hitting Accused 1, Wiklove, with an iron bar on the head and Accused 1, Wiklove, fell down unconscious. His father, the second deceased, called for help and the first deceased, Saul Kani, poured water on Accused 1, Wiklove, who, moments later, regained consciousness and got up. Isheunesu then explained how his father, the second deceased (Pauro), was attacked as follows;

(i) He said Accused 2, Munyaradzi Vurayai, Calvin Vurayai, and Tafara Joramu encircled or surrounded the second deceased, Pauro Stanlsus Masimura, saying he was not clever by pretending to be a good Samaritan in asking for help in respect of Accused 1, Wiklove Vurayai and had caused the accused persons not to recover their $1= from Vincent.

(ii) Accused 2, Munyaradzi Vurayai hit the second deceased with a fist.

(iii) Calvin Vurayai delivered a blow with a short iron bar causing the second deceased to fall down and delivered further several blows.

(iv) Tafara Joramu picked a big stone and hit the second deceased, Pauro Stanlsus Masimura, in the head.

(v) Realising that the life of his father was in danger, Isheunesu Masimura pleaded with the accused persons to stop the savage attack but he was held by the accused persons who said he too was to be their prey. He was hit with a brick on the back and hands but John Kaza arrived and intervened which enabled him to flee.

(vi) Isheunesu fled to the bottle store and called the first deceased, Saul Kani, to come and possibly help the second deceased and they both returned to where the accused persons and the second deceased, Pauro Stanlsus Masimura, were.

(vii) The accused persons immediately attacked the first deceased, Saul Kani, with iron bars, exchanging the iron bars amongst themselves vowing to also kill the first deceased, Saul Kani.

(viii) Isheunesu realised he was helpless and he fled to make a report to the police who returned later to the scene with him.

Isheunesu said the second deceased, his father, had been severely injured as he could not even recognise him as his face and head were swollen. The first deceased, Saul Kani's head was also swollen. Lloyd Mutombo was also lying injured. All were helpless, unconscious, and were ferried to hospital.

Despite that Isheunesu Masimura is a son to the second deceased, Pauro Stanlsus Masimura, and regarded the first deceased, Saul Kani, as his nephew, he gave a very clear and graphic account of what happened. Indeed, he was emotional and broke down as he narrated how his father, the second deceased, Pauro Stanlsus Masimura, was attacked. We appreciate and understand his emotional disposition. This was not, in our view, some feigned demeanour but genuine emotional distress.

Isheunesu was truthful and fair minded as he admitted and revealed that Accused 1, Wiklove Vurayai, was also attacked with an iron bar and lost consciousness - albeit for a brief period. He was clear on how the first deceased, Saul Kani, was attacked and how the assault on his father, the second deceased, unfolded. He revealed that the accused persons' families paid for transport costs of ferrying both deceased's bodies from Harare for burial in Chivi and paid a beast to each deceased's family for relish to be used at both funerals. All in all, we assessed Isheunesu to be a calm, clear and truthful witness.

Our findings are that the version given by both accused persons is false. They are both clearly implicated by the State witnesses who materially corroborated each other. It is untrue that Accused 1, Wiklove Vurayai, was perpetually unconscious and did not know how the now deceased persons were fatally injured. The evidence of Accused 2, Munyaradzi Vurayai, is false in how both deceased persons were injured. In fact, it is so incredible that no reasonable court can accept such a poorly thought out account.

The fact of the matter is that both Accused 1, Wiklove Vurayai, and Accused 2, Munyaradzi Vurayai assaulted both the first deceased, Saul Kani, and the second deceased, Pauro Stanlsus Masimura, in the clear manner explained by the eyewitnesses. The assaults were both brutal and prolonged rendering both victims unconscious and severely injured. Both deceased had to be hospitalised at our highest referral public hospital. They both, nonetheless, lost their lives. The accused persons used lethal weapons..., iron bars, together with stones and farm bricks. They delivered several blows indiscriminately targeting vulnerable parts of the deceased persons' bodies including the head and ribs. It is clear that both accused persons acted in common purpose as they took turns to assault their victims who were helpless and never fought back. The accused persons vowed to kill both deceased persons and left them for dead.

While we are hard pressed to find that the accused persons contravened section 47(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Criminal Code) it is clear that they realized that there was a real risk or possibility that their conduct may cause death but continued to engage in that conduct despite the risk. We accordingly find both accused guilty of murder as defined in section 47(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Criminal Code).

VERDICT: Both accused guilty of contravening section 47(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] – Murder with Constructive Intent in respect of both counts.

Sentencing re: Murder iro Murder with Constructive Intent

SENTENCE:

As we pointed out in the reasons for judgment, this is an unusual case involving two counts of murder. This has prompted the State to point out that in terms of section 47(2)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Criminal Code) it is an aggravating circumstance. In that in vein, the State has prayed for a sentence of imprisonment for life.

Indeed, this is a very serious case when one considers the manner the offences were committed. Two people lost their lives, and, in the process, the other two were severely injured. The sanctity of human life cannot be over-emphasised. This court has said, times without number, that cases of murder are worryingly prevalent in Masvingo Province and that young people are shockingly exhibiting scant respect for human life. They easily resort to violent conduct with an assortment of dangerous weapons at the slightest provocation, or, at times, for no reason at all.

In this case, the level of violence exhibited by the accused persons is shocking to say the least. This was a gang offence as it were. What is saddening is that the victims had not provoked or wronged the accused in any way. In fact, the victims were good Samaritans who went out of their way to ensure that peace prevailed and even tried to help the injured - including Accused 1. That is precisely why even the accused persons conceded in their evidence that they had not been wronged by either of the deceased persons.

The assault perpetrated on both the deceased persons was prolonged and sustained. As articulated in our reasons for judgment, lethal and dangerous weapons were used with severe force targeting the vulnerable parts of the human anatomy. The accused persons literally turned Shashe Business Centre into a war zone. It should be appreciated that business centres are places of leisure and not war zones or death places. The accused persons should be dis-abused of the notion that they can be village bullies. In that regard, a deterrent and exemplary sentence is called for - moreso as the accused persons are not contrite at all. Their degree of moral blameworthiness is too high.

We are, however, mindful of the mitigatory factors which have dissuaded us from imposing a sentence of life imprisonment.

Accused 1, who is now 30 years old, is married with one minor child. Accused 2 is 27 years old and single. Both accused persons are unemployed and survived by engaging in illegal gold panning. Apparently they have no meaningful savings or assets.

The accused persons deserve to be treated by some measure of leniency as they are first offenders. It is apparent that the accused persons had taken alcohol although they fully appreciated what they were doing. Despite the violent conduct exhibited by the accused persons there is no evidence to suggest that these offences were pre-meditated. It is a fact that the accused have been in custody from March 2016 to date and are still to stand trial in respect of other victims of their violent conduct. We have considered that the accused persons assisted in the burial of the deceased persons by transporting the bodies from Harare to Chivi, providing coffins and two beasts to be used as relish at both funerals.

In the circumstances, the following sentence is appropriate. Each accused is sentenced as follows;

Count 1: 18 years imprisonment.

Count 2: 18 years imprisonment.

Total for each accused is 36 years imprisonment.

Subpoena, Witness Summons or Compellable Witness, Subpoena Duces Tecum and the Claim of Privilege

Thomas Ndambira, who is continuously implicated in this brawl, did not testify.

Corroborative Evidence re: Admissions, Unchallenged Evidence, Right to Examine Witnesses & Audi Alteram Partem Rule

The evidence of Doctor Gonzalez, who carried out the post-mortem examinations, is uncontested and was admitted in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:23]....,.

Christopher Hofisi said after about 45 minutes he left Mudziro Bottle Store for the other bottle store. On his way, he was surprised to see the first deceased, Saul Kani, lying down injured; he tried to help him, but some young men came running threatening to also injure him wielding iron bars. He was unable to identify them; he fled for dear life and sought refuge in one of the bottle stores until police arrived at 0400hrs and when he came out he found out that both deceased persons and Lloyd Mutombo had been severely injured.

His evidence is not challenged and it confirms that on that night Shashe Business Centre had been turned into a war zone and no one was spared or safe.

Physical Evidence re: Approach

All we noted is that these iron bars are indeed lethal weapons which can inflict fatal injuries.

Findings of Fact re: Witness Testimony, Candidness with the Court and Deceptive or Misleading Evidence

It is for these reasons that we accept her evidence....,.

In our assessment, John Kaza gave clear and free flowing evidence. He has no interest in the matter. There is nothing to suggest he was unable to see what happened. His testimony rebuts Accused 1's evidence that he remained unconscious throughout this incident but that Accused 1, Wiklove Vurayai, participated in the assault which John Kaza said lasted for an hour. He also dismissed as untrue that Accused 2, Munyaradzi Vurayai, carried Accused 1, Wiklove Vurayai, but participated in the assault.

Corroborative Evidence re: Pervasive or Undue Influence, Partisan Evidence, Prejudicial Evidence and Witness Coaching

This was not, in our view, some feigned demeanour but genuine emotional distress.

Isheunesu was truthful and fair-minded as he admitted and revealed that Accused 1, Wiklove Vurayai, was also attacked with an iron bar and lost consciousness - albeit for a brief period....,.

All in all, we assessed Isheunesu Masimura to be a calm, clear, and truthful witness.

Corroborative Evidence re: Approach and Principle that Lies Told By Accused Amount to Corroboration of State Witnesses

Our findings are that the version given by both accused persons is false.

Irrelevant Evidence, Speculative Evidence, Character Evidence, Implausible or Improbable Evidence and Rule of Relevance

The evidence of Accused 2, Munyaradzi Vurayai, is false in how both deceased persons were injured. In fact, it is so incredible that no reasonable court can accept such a poorly thought out account.

Direct and Circumstantial Evidence, Causation and Inferential Reasoning re: Key Witness, Eyewitness & Res Gestae

The fact of the matter is that both Accused 1, Wiklove Vurayai, and Accused 2, Munyaradzi Vurayai, assaulted both the first deceased, Saul Kani, and the second deceased, Pauro Stanlsus Masimura, in the clear manner explained by the eye witnesses.

Murder re: Murder with Constructive Intent, Foreseeability Intention, Reckless Conduct or Dolus Eventualis

The assaults were both brutal and prolonged rendering both victims unconscious and severely injured. Both deceased had to be hospitalised at our highest referral public hospital. They both, nonetheless, lost their lives. The accused persons used lethal weapons..., iron bars, together with stones and farm bricks. They delivered several blows indiscriminately targeting vulnerable parts of the deceased persons' bodies including the head and ribs. It is clear that both accused persons acted in common purpose as they took turns to assault their victims who were helpless and never fought back.

The accused persons vowed to kill both deceased persons and left them for dead.

VERDICT: Both accused guilty of contravening section 47(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] – Murder with Constructive Intent in respect of both counts.

Sentencing re: Approach iro First Offenders

The accused persons deserve to be treated by some measure of leniency as they are first offenders.

Sentencing re: Approach iro Contritional Compensation & Conduct of Accused Ex Post Facto Commission of the Offence

We have considered that the accused persons assisted in the burial of the deceased persons by transporting the bodies from Harare to Chivi, providing coffins and two beasts to be used as relish at both funerals.

MAWADZE J: This is a rather unusual case in which both accused persons are facing two counts of murder as defined section 47(1) of the Criminal Law (Codification and Reform) Act [Cap 9:23] committed on the same day and at the same place.

Initially, both accused persons were jointly charged with Calvin Vurayai and Tafara Joramu who are now at large and warrants for their arrest were issued. A separation of trial was granted hence the proceedings are only in respect of Accused 1 Wiklove Vurayai (Wiklove) and Accused 2 Munyaradzi Vurayai (Munyaradzi).

The charges are that on 10 March 2016 each of the accused persons or all of them caused the death of Saul Kani (hereinafter the 1^st deceased) and Pauro Stanslas Masimura (hereinafter the 2^nd deceased) by assaulting them with iron bars and booted feet at Shashe Business Centre in Mashava.

Accused 1 Wiklove is aged 28 years and accused 2 Munyaradzi is 25 years. They are both brothers with one Calvin Vurayai. Tafara Joramu is their nephew. They all reside in Hwarikwari Village, Headman Madamombe in Chivi, Masvingo.

Both the now deceased, that is 1^st deceased Saul Kani (Saul) and 2^nd deceased Pauro Stanlsus Masimura (Pauro) resided in Murove Village, Headman Madamombe, Chivi, Masvingo. The 1^st deceased Saul was, 31 years and the 2^nd deceased Pauro 65 years old.

It is alleged that the accused persons had an altercation with one Thomas Ndambira inside Mudziro Bottle Store and that the 2^nd deceased, Pauro, inquired what was wrong as Thomas Ndambira sought refuge behind 2^nd deceased Pauro. The State alleges accused persons attacked the 2^nd deceased Pauro and that the 2^nd deceased Pauro sons Golden Masimura and Simbarashe Masimura also present in the bottle store intervened to rescue their father 2^nd deceased Pauro. During the said melee Thomas Ndambira is alleged to have hit accused 1 Wiklove with an iron bar on the head causing a deep cut and briefly rendering accused 1 Wiklove unconscious. It is said accused 1 Wiklove was resuscitated by 1^st deceased Saul who poured water on him.

It is the State case that Accused 1's brothers, that is Accused 2, Munyaradzi, Calvin and their nephew, Tafara Joramu, attacked the 2^nd deceased sons Golden Masimura and Simbarashe Masimura who both fled leaving their 65-year-old father Pauro Masimura.

The State alleges that all the accused persons turned on to the 2^nd deceased Pauro whom they assaulted with iron bars and bricks until he was unconscious. The 1^st deceased Saul tried to assist the 2^nd deceased Pauro and it is alleged the 1^st deceased Saul was also attacked by the accused persons in the same manner until he was unconscious. The police were later called in and both deceased persons were ferried to Masvingo Provincial Hospital after which they were transferred to Parirenyatwa Hospital due to the severity of the injuries where the 1^st deceased Saul died on 14 March 2016 and the 2^nd deceased Pauro died on 17 March 2016.

The defence proffered by Accused 1 Wiklove is that he never attacked any of the deceased persons at all on the day in question. Accused 1 Wiklove said all started when Thomas Ndambira confronted Accused 1 Wiklove in Madziro Bottle Store ordering him not to illegally mine gold in Thomas Ndambara's village, an activity Accused 1 and his accomplices were engaged in together with many other local gold panners. Accused 1 Wiklove said this altercation degenerated into a fist fight with Thomas Ndambira and that his alleged accomplices stopped the fight. Accused 1 Wiklove said villagers from Thomas Ndambira's village then declared war against Accused 1 Wiklove and his alleged accomplices who were thereafter attacked inside the bottle store. Accused 1 Wiklove said he tried to flee but was struck on the head with an iron bar by Thomas Ndambira as he tried to get out of the bottle store causing him to fall unconscious. As a result, Accused 1 Wiklove said he is unaware as to what befell the now deceased persons as he was unconscious. Accused 1 Wiklove said he had no cause at all to fight or injure both deceased persons.

This is the same version Accused 1 Wiklove maintained in his evidence in chief and under cross examination. Accused 1 Wiklove insisted throughout the trial that he does not know how both the 1^st deceased Saul and 2^nd deceased Pauro were fatally injured. In fact, Accused 1 said he is surprised to be falsely implicated in their demise. Instead he maintained that he was a victim of this brawl as he sustained a serious head injury inflicted by Thomas Ndambira.

Accused 2 Munyaradzi's version as per his defence and evidence is that a fist fight ensued among deceased persons and their relatives against Accused 1 Wiklove Accused 2 Munyaradzi, Calvin Vurayai and Tafara Joramu. During the ensuing fight he said Accused 1 Wiklove was attacked with a machete on the head by Thomas Ndambira and fell unconscious. Accused 2 said the 1^st deceased Saul was mistakenly struck by Thomas Ndambira with a stone as Thomas Ndambira intended to strike Accused 2 Munyaradzi and his alleged accomplices. Accused 2 Munyaradzi said this is how 1^st deceased Saul was fatally injured. Accused 2 Munyaradzi said the 2^nd deceased Pauro was injured in the same manner, a deflected blow scenario, by one of 2^nd deceased's sons who intended to hit Accused 2 Munyaradzi but missed and fatally injured 2^nd deceased Pauro. Accused 2 Munyaradzi said we did not attack any of the deceased person. Instead he said he carried Accused 1 Wiklove who had been seriously injured and unconscious until they got home. Accused 2 said when he and Accused 1 Wiklove left, his alleged accomplices Calvin Vurayai and Tafara Joramu were still engaged in the fist fight with the now deceased persons and their relatives.

Accused 2 maintained in his evidence that he never attacked any of the deceased persons but that he and his alleged accomplices were victims of an attack by people from the now deceased persons' village over disputed gold claims which they were all illegally exploiting. Accused 2 Munyaradzi said indeed 1^st deceased Saul poured some water on Accused 1 Wiklove who had been rendered unconscious by Thomas Ndambira after being hit with an iron bar on the head. He said it was during that process that Thomas Ndambira threw a stone and mistakenly hit 1^st deceased Saul who fell down. Accused 2 Munyaradzi said after he carried his unconscious brother Wiklove home he later surrendered himself to Mashava police after he gathered police were looking for him and that he had nothing to fear as he was innocent.

Our task is to assess whether the version given by both accused persons is indeed correct. As already said accused persons' alleged accomplices Calvin Vurayai and Tafara Joramu are not part of this trial. Further Thomas Ndambira who is continuously implicated in this brawl did not testify.

The cause of death of both 1^st deceased Saul and 2^nd deceased Pauro is not in issue. They both died as a result of injuries inflicted upon them as per the post mortem reports Exhibit 3 and Exhibit 4, which show the cause of their deaths as subdural haematoma and head trauma arising from assault. The 2^nd deceased Pauro also suffered from pneumonia aspiration. The evidence of Doctor Gonzalez who carried out the post mortem examinations is uncontested and was admitted in terms of section 314 of the Criminal Procedure and Evidence Act [Cap 9:23].

During the course of the trial two iron bars Exhibit 1 which is 1-metre-long and weighs 2.809kg and Exhibit 2 which is 1,95m long and weighing 5.045kg were produced by consent. These implements are used for illegally gold panning and the State alleges they are part of the arsenal accused persons used to attack the now deceased persons. All we noted is that these iron bars are indeed lethal weapons which can inflict fatal injuries.

We now turn to the evidence led from 7 State witnesses.

What emerges from the evidence is that accused persons initially had an altercation with the 2^nd deceased Pauro's nephew one Vincent over some $1.00 allegedly owed to one of the accused persons and that the 2^nd deceased Pauro intervened as an elderly person by telling his nephew to go home. This is clear from the evidence of 2^nd deceased Pauro's sons Isheunesu Masimura and Golden Masimura.

The State led evidence from Nyengeterai Zvavatonga a bar lady in Mudziro Bottle Store; John Kaza a fellow patron and villager who was in Mudziro Bottle Store; Isheunesu Masimura, Golden Masimura both sons of the 2^nd deceased Pauro; the Investigating Officer Sgt. Shepherd Musindo and Lloyd Mutombo also a fellow villager, who was at Shashe Business Centre.

We now turn to that evidence.

1. Sgt Shepherd Musindo (Sgt Musindo)

Sgt Musindo testified that when he attended the scene he found three people, that is the two deceased persons Saul and Pauro and one Lloyd Mutombo severely injured at Shashe Business Centre. He said they all had serious head injuries and bleeding from the nose and mouth. None of them could talk. He recovered iron bars Exhibit 1 and Exhibit 2 although he was advised some stones or farm bricks were also used to injure the now deceased persons and Lloyd Mutombo. He ferried the 3 injured persons to Masvingo General Hospital and said due to the severity of the injuries they were transferred to Parirenyatwa Hospital where both deceased persons later passed on. A separate docket was opened in respect of Lloyd Mutombo who survived the injuries and also Golden Masimura who was stabbed with a knife. These matters are yet to be finalised. Sgt Musindo confirmed Accused 1 Wiklove was injured on the head and that he was arrested while being hospitalised at Chivi District Hospital. He confirmed that Accused 2 Munyaradzi and his alleged accomplices surrendered to the police. His evidence is largely uncontested and does not take the State case much further.

2. Lloyd Mutombo (Mutombo)

Mutombo was at Shashe Business Centre on the day in question and at Makava Bottle Store separate from Mudziro Bottle Store where this altercation started. His evidence is that he was just caught in the cross fire as it were and ended up severely injured after which he was hospitalised at Masvingo General Hospital and Parirenyatwa Hospital.

Mutombo said on that day at about 2200hrs he left Makava Bottle Store proceeding to Mudziro Bottle Store unaware that “a war” had erupted at the latter. He said as he innocently walked Calvin Vurayai who was in the company of Accused 1 Wiklove and Accused 2 Munyaradzi confronted him demanding that he identified himself. His “crime” was that he stays in the same village with the deceased persons. Mutombo said Calvin held him by the throat and Accused 1 Wiklove pronounced that he was to join fellow villagers whom accused persons said they had disciplined. He said both Calvin Vurayai and Accused 1 Wiklove tripped him as Accused 1 Wiklove throttled him. As he fell Accused 1 Wiklove hit him with an iron bar at back of head rendering him unconscious. Mutombo said he only gained consciousness the next day at 1600hrs when he found himself admitted in Masvingo Hospital from where he was transferred to Parirenyatwa Hospital in Harare.

Mutombo said he does not even know why he was attacked by accused persons.

The evidence of Mutombo rebuts Accused 1 Wiklove assertion that he was unconscious throughout this incident. It also shows that accused persons were virtually on a warpath attacking persons for no apparent reason. Mutombo's evidence is uncontroverted and implicates both Accused 1 Wiklove and Accused 2 Munyaradzi.

3. Christopher Hofisi (Hofisi)

Hofisi is a fellow villager and was in Mudziro Bottle Store on that night. He said Accused 1 was hit with an iron bar on the head and fell down. He did not see the assailant. Hofisi said the 1^st deceased Saul rushed to fetch water and assisted Accused 1 Wiklove by pouring water on Accused 1. He said Accused 1 Wiklove regained consciousness and woke up.

Hofisi said after about 45 minutes he left Mudziro Bottle Store for the other bottle store. On his way he was surprised to see the 1^st deceased Saul lying down injured, he tried to help him but some young men came running threatening to also injure him wielding iron bars. He was unable to identify them he fled for dear life and sought refuge in one of the bottle stores until police arrived at 0400hrs and when he came out he found out that both deceased persons and Mutombo had been severely injured. His evidence is not challenged and it confirms that on that night Shashe Business Centre had been turned into a war zone and no one was spared or safe.

4. Golden Masimura (Golden)

As already said he is the son of 2^nd deceased Pauro and was in Mudziro Bottle Store. Golden said after their nephew Vincent had left for home accused persons started an altercation with one Thomas Ndambira who in turn sought refuge behind the 2^nd deceased Pauro. He said the 2^nd deceased Pauro tried to calm down accused persons but Tafara Joramu assaulted the 2^nd deceased Pauro. Golden said realising his father Pauro was under attack he rushed to assist him but Accused 1 Wiklove, Accused 2 Munyaradzi and Calvin Vurayai blocked him. During the altercation he said Accused 1 Wiklove stabbed him with a knife on left shoulder and twice on the head. He showed us a healed stabbed wound on the shoulder.

Golden said his brother Isheunesu Masimura intervened to disarm Accused 1 Wiklove and this gave Golden a chance to flee. As he fled his father the 2^nd deceased Pauro was being held by Tafara Joramu. He managed to get home after which he went to the police to report and was hospitalised.

The evidence of Golden shows that accused persons were indeed the aggressors and not innocent victims. In fact, when Golden fled none of the deceased persons had been injured and Accused 1 had not been injured also.

5. Nyengeterai Zvavatonga (Nyengeterai)

Nyengeterai was the bar lady in Mudziro Bottle Store and well known to both deceased persons and accused persons as local persons.

She testified that her attention was drawn when Accused 1 Wiklove had an altercation with Thomas Ndambira and that Thomas Ndambira sought refuge behind 2^nd deceased Pauro who inquired why there was the altercation. She said Accused 1 Wiklove turned to 2^nd deceased Pauro and assaulted him. This caused 2^nd deceased Pauro's sons to rush to protect their father and a fight ensued between accused persons and 2^nd deceased Pauro's sons. Nyengeterai said in the ensuing melee Accused 1 Wiklove was hit on the head with an iron bar but she did not identify the assailant. Accused 1 Wiklove fell down and patrons fled from the bottle store.

Nyengeterai said 1^st deceased Saul took water and helped Accused 1 Wiklove by pouring water on him until Accused 1 Wiklove gained consciousness. She remained in the bottle store fearful of the commotion which was going on outside.

Nyengeterai said 1^st deceased Saul later came into the bottle store asking for a torch saying he wanted to check on 2^nd deceased Pauro who was lying down outside injured. She had no torch. She explained how 1^st deceased was attacked.

Nyengeterai said as 1^st deceased left the bottle store Accused 2 Munyaradzi and Calvin Vurayai tripped him as Accused 2 held him. The 1^st deceased fell just outside the bottle store and was assaulted as follows;

(i) Calvin Vurayai picked a big stone and hit the 1^st deceased on the head who cried out in pain.

(ii) Accused 2 Munyaradzi and Calvin Vurayai then used iron bars Exhibit 1 and Exhibit 2 to assault the 1^st deceased Saul with severe force directing blows on the head and ribs.

(iii) Accused 1 Wiklove who had now gained consciousness joined in the assault of 1^st deceased Saul using the shorter iron bar which he took from Calvin Vurayai and shouted that he would kill the 1^st deceased Saul.

(iv) That Accused 1, Accused 2 and Calvin Vurayai only stopped the assault when the 1^st deceased Saul was unconscious, no longer crying out and seemingly dead.

(v) She did not witness how 2^nd deceased Pauro was injured.

Nyengeterai refuted that Accused 1 Wiklove was unconscious for a long time but that he gained consciousness when the 1^st deceased Saul assisted him by pouring 3 buckets of water after which he joined Accused 2 and Calvin Vurayai in attacking the 1^st deceased Saul. She indicated that she clearly saw how accused persons attacked the 1^st deceased Saul as the scene of crime was well illuminated by lights on verandah of her bottle store. She only came out of the bottle store after the police came and realised that both deceased had been severely injured all over the body especially on the head and bleeding from the nose.

In our assessment Nyengeterai's evidence is very clear on how the 1^st deceased Saul was fatally injured. She was on duty and sober hence clearly perceived what happened. Nyengeterai is unbiased. She is not related to either the deceased persons or accused persons. Clearly she has no interest in the matter. Both accused persons and the victims were patrons in her bottle store. She was an impartial witness who stated that indeed Accused 1 Wiklove was injured and rendered unconscious for a brief period. Indeed, she limited herself to what she perceived as she said she did not see how the 2^nd deceased Pauro was injured. To show her objectivity and sincerity she confirmed that the 2^nd deceased Pauro's sons fought Accused 1, 2 and Calvin Vurayai with clenched fists initially inside the bottle store. It is for these reasons that we accept her evidence.

6. John Kaza (John)

John is well known to both deceased persons and accused persons. He too was in Mudziro Bottle Store and corroborates in material respect Nyengeterai's evidence.

John said after Thomas Ndambira had an altercation with accused persons and Calvin Vurayai he sought refuge behind 2^nd deceased Pauro and that Calvin Vurayai assaulted 2^nd deceased for inquiring what was wrong. This resulted in 2^nd deceased Pauro sons, Golden, Simbarashe and two others to intervene resulting in a fist fight with the accused Tafara Joramu. He said during the fight the 2^nd deceased Pauro's son Golden was stabbed with a knife inside the bottle store and many patrons fled out of the bottle store. He realised Accused 1 Wiklove had been injured and was lying on the verandah of the bottle store. He did not see the assailant. He said the 1^st deceased Saul administered first aid by pouring water on Accused 1 Wiklove as 2^nd deceased's sons were still fighting with Accused 2, Calvin Vurayai and Tafara Joramu. The 2^nd deceased Pauro also got out of the bottle store. John said when he got out of the bottle store he found 2^nd deceased Pauro lying near a shop injured and that Accused 2 Munyaradzi and Calvin were holding one Isheanesu saying they wanted to discipline him and cause him to lie near his father 2^nd deceased Pauro already injured. John said he intervened and told Accused 2 Munyaradzi and Calvin Vurayai to let go Isheunesu and that Isheunesu managed to flee. John said Accused 2 Munyaradzi and Calvin Vurayai were incensed by his intervention and turned to John who in turn fled from the menacing brothers and hid behind a grinding mill. He said from this vantage position he witnessed the conduct of accused persons as follows;

(a) Accused 1 Wiklove, who had gained consciousness teamed up with Accused 2 Munyaradzi, Calvin Vurayai and Tafara Joramu to assault the 2^nd deceased Pauro who was already lying down injured, they took turns using iron bars Exhibit 1 and Exhibit 2. Severe force was used and blows were directed at 2^nd deceased Pauro's head and chest.

(b) Accused 2 Munyaradzi picked a very big stone and hit the 2^nd deceased with it.

(d) John said he also realised that 1^st deceased Saul had been injured as he said accused persons also moved to where 1^st deceased Saul lay injured and further assaulted him with iron bars and would interchange the assault between the 1^st deceased and 2^nd deceased persons. The blows were indiscriminate and delivered with severe force.

(e) As John was hiding he saw a passer-by Lloyd Mutombo coming from Makava Bottle Store oblivious of what was going on and he was held by Accused 1 Wiklove and assaulted with iron bar. Lloyd Mutombo was left for dead as accused persons resumed the assault on the deceased persons.

(f) John said he telephoned the police fearful of deceased persons' lives and when police later came he realised both deceased persons had severe head injuries.

In our assessment John gave clear and free flowing evidence. He has no interest in the matter. There is nothing to suggest he was unable to see what happened. His testimony rebuts Accused 1's evidence that he remained unconscious throughout this incident but that Accused 1 Wiklove participated in the assault which John said lasted for an hour. He also dismissed as untrue that Accused 2 Munyaradzi carried Accused 1 Wiklove but participated in the assault.

7. Isheunesu Masimura (Isheunesu)

Isheunesu is the son of the 2^nd deceased Pauro and a sculptor.

Isheunesu said when he got into Masimure Bottle Store his father the 2^nd deceased Pauro wanted to discuss certain family issues with him but failed as accused persons had an altercation with their nephew Vincent over a $1.00 Calvin Vurayai said he was owed. The 2^nd deceased Pauro told Vincent to go home and Vincent complied.

Isheunesu said moments later accused persons had another altercation with one Thomas Ndambira whom they assaulted. Thomas Ndambira sought refuge behind 2^nd deceased Pauro who inquired why accused persons were violent. He said accused persons turned to 2^nd deceased Pauro manhandling the 2^nd deceased. This caused his brothers Simbarashe, Golden and nephew to intervene to restrain Tafara Joramu resulting in fists fight between accused persons and Isheunesu's relatives. He said both Accused 1 Wiklove and Tafara Joramu had knives and Accused 1 Wiklove stabbed Golden on the left shoulder and head. Isheunesu then intervened to restrain Accused 1 Wiklove and managed to rescue Golden who was severely injured. He decided to take Golden home but realised their father 2^nd deceased had remained behind hence he came back. When he returned to the bottle store he saw Thomas Ndambira hitting Accused 1 Wiklove with an iron bar on the head and Accused 1 Wiklove fell down unconscious. His father the 2^nd deceased called for help and the 1^st deceased Saul poured water on Accused 1 Wiklove who moments later regained consciousness and got up. Isheunesu then explained how his father the 2^nd deceased Pauro was attacked as follows;

(i) He said Accused 2 Munyaradzi, Calvin Vurayai and Tafara Joramu encircled or surrounded the 2^nd deceased Pauro saying he was not clever by pretending to be a good Samaritan in asking for help in respect of Accused 1 Wiklove and had caused accused persons not to recover their $1.00 from Vincent.

(ii) Accused 2 Munyaradzi hit the 2^nd deceased with a fist.

(iii) Calvin Vurayai delivered a blow with short iron bar causing the 1^st deceased to fall down and delivered further several blows.

(iv) Tafara Joramu picked a big stone and hit 2^nd deceased Pauro in the head.

(v) Realising that the life of his father was in danger Isheunesu pleaded with the accused persons to stop the savage attack but he was held by accused persons who said he too was to be their prey. He was hit with a brick on back and hands but John Kaza arrived and intervened which enabled him to flee.

(vi) Isheunesu fled to the bottle store and called the 1^st deceased Saul to come and possibly help the 2^nd deceased and they both returned to where the accused persons and 2^nd deceased Pauro were.

(vii) The accused persons immediately attacked 1^st deceased Saul with iron bars, exchanging the iron bars amongst themselves vowing to also kill the 1^st deceased Saul.

(viii) Isheunesu realised he was helpless and he fled to make report to police who returned later to the scene with him.

Isheunesu said the 2^nd deceased his father had been severely injured as he could not even recognise him as his face and head were swollen. The 1^st deceased Saul's head was also swollen. The 1^st deceased Saul's head was also swollen. Lloyd Mutombo was also lying injured. All were helpless, unconscious and were ferried to hospital.

Despite that Isheunesu is a son to the 2^nd deceased Pauro and regarded 1^st deceased Saul as his nephew he gave a very clear and graphic account of what happened. Indeed, he was emotional and broke down as he narrated how his father 2^nd deceased Pauro was attacked. We appreciate and understand his emotional disposition. This was not in our view some feigned demeanour but genuine emotional distress.

Isheunesu was truthful and fair minded as he admitted and revealed that Accused 1 Wiklove was also attacked with iron bar and lost consciousness albeit for a brief period. He was clear on how the 1^st deceased Saul was attacked and how the assault on his father the 2^nd deceased unfolded. He revealed that accused persons' families paid for transport costs of ferrying both deceased's bodies from Harare for burial in Chivi and paid a beast to each deceased's family for relish to be used at both funerals. All in all, we assessed Isheunesu to be a calm, clear and truthful witness.

Our findings are that the version given by both accused persons is false. They are both clearly implicated by the State witnesses who materially corroborated each other. It is untrue that Accused 1 Wiklove was perpetually unconscious and did not know how the now deceased persons were fatally injured. The evidence of Accused 2 Munyaradzi is false in how both deceased persons were injured. In fact, it is so incredible that no reasonable court can accept such a poorly thought out account.

The fact of the matter is that both Accused 1 Wiklove and Accused 2 Munyaradzi assaulted both the 1^st deceased Saul and 2^nd deceased Pauro in the clear manner explained by the eye witnesses. The assaults were both brutal and prolonged rendering both victims unconscious and severely injured. Both deceased had to be hospitalised at our highest referral public hospital. They both nonetheless lost their lives. The accused persons used lethal weapons Exhibit 1 and Exhibit 2 iron bars together with stones and farm bricks. They delivered several blows indiscriminately targeting vulnerable parts of deceased persons' bodies including the head and ribs. It is clear that both accused persons acted in common purpose as they took turns to assault their victims who were helpless and never fought back. The accused persons vowed to kill both deceased persons and left them for dead.

While we are hard pressed to find that accused persons contravened section 47(1)(a) of the Criminal Code [Cap 9:23] it is clear that they realised that there was a real risk or possibility that their conduct may cause death but continued to engage in that conduct despite the risk. We accordingly find both accused guilty of murder as defined in section 47(1)(b) of the Criminal Code [Cap 9:23].

VERDICT: Both accused guilty of contravening section 47(1)(b) of the Criminal Law (Codification and Reform) Act [Cap 9:23] – Murder with constructive intent in respect of both counts.

SENTENCE:

As we pointed out in the reasons for judgment this is an unusual case involving two counts of murder. This has prompted the State to point out that in terms of section 47(2)(b) of the Criminal Law (Codification and Reform) Act, [Cap 9:23] it is an aggravating circumstance. In that in vein the State has prayed for a sentence of imprisonment for life.

Indeed, this is a very serious case when one considers the manner the offences were committed. Two people lost their lives and in the process the other two were severely injured. The sanctity of human life cannot be overemphasised. This court has said times without number that cases of murder are worryingly prevalent in Masvingo Province and that young people are shockingly exhibiting scant respect for human life. They easily resort to violent conduct with an assortment of dangerous weapons at the slightest provocation or at times for no reason at all.

In this case the level of violence exhibited by the accused persons is shocking to say the least. This was a gang offence as it were. What is saddening is that the victims had not provoked or wronged the accused in any way. In fact, the victims were good Samaritans who went out of their way to ensure that peace prevailed and even tried to help the injured including Accused 1. That is precisely why even accused persons conceded in their evidence that they had not been wronged by either of the deceased persons.

The assault perpetrated on both the deceased persons was prolonged and sustained. As articulated in our reasons for judgment lethal and dangerous weapons were used with severe force targeting the vulnerable parts of human anatomy. The accused persons literally turned Shashe Business Centre into a war zone. It should be appreciated that business centres are places of leisure and not war zones or death places. The accused persons should be disabused of the notion that they can be village bullies. In that regard a deterrent and exemplary sentence is called for more so as accused persons are not contrite at all. Their degree of moral blameworthiness is too high.

We are however mindful of mitigatory factors which have dissuaded us from imposing a sentence of life imprisonment.

Accused 1 who is now 30 years old is married with one minor child. Accused 2 is 27 years old and single. Both accused persons are unemployed and survived by engaging in illegal gold panning. Apparently they have no meaningful savings or assets.

The accused persons deserve to be treated by some measure of leniency as they are first offenders. It is apparent that the accused persons had taken alcohol although they fully appreciated what they were doing. Despite the violent conduct exhibited by the accused persons there is no evidence to suggest that these offences were premeditated. It is a fact that the accused have been in custody from March 2016 to date and are still to stand trial in respect of other victims of their violent conduct. We have considered that the accused persons assisted in the burial of the deceased persons by transporting the bodies from Harare to Chivi, providing coffins and two beasts to be used as relish at both funerals.

In the circumstances the following sentence is appropriate.

Each accused is sentenced as follows;

Count 1: - 18 years imprisonment.

Count 2: - 18 years imprisonment.

Total for each accused is 36 years imprisonment.

National Prosecuting Authority, counsel for the state

Ruvengo Maboke & Company, pro deo- counsel for accused 1

Matutu & Mureri, pro deo counsel for accused 2

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HMA29-18 - THE STATE vs WIKLOVE VURAYAI and MUNYARADZI VURAYAI

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