Initially,
both accused were charged together with one Shepherd Ziwacha
(Shepherd) but Shepherd is now at large. The accused persons are
facing a charge of murder as defined in section 47(1) of the Criminal
Law (Codification and Reform) Act [Chapter
9:23].
The
charge is that on 7 July 2010, at Mufakose Beerhall in Triangle, one
of the accused or both of them caused the death of Coster Chiwande by
kicking him all over the body with booted feet.
Both
accused persons reside in Mufakose B in Triangle. The now deceased
was a member of the ZRP attached to the Support Unit and was based at
Buchwa Camp. At the material time he and other details had been
deployed to Triangle. The now deceased's rural home is Ganyani
Village, Chief Sadza in Shurugwi.
On
7 July 2010 the now deceased and a fellow workmate, Matambudziko
Maluleke (Maluleke), were off duty and in civilian attire in Triangle
when they decided to proceed to Mufakose beerhall to drink beer at
about 16:00hrs. The accused persons were also at the same beerhall
with other patrons drinking beer watching soccer until the time the
beerhall closed at about 23:00hrs.
The
State alleges that as the beerhall was about to close the now
deceased and Matambudziko Maluleke attempted to effect a trap arrest
on one Shepherd
Ziwacha,
an alleged known dagga dealer. It is alleged that Shepherd fiercely
resisted the arrest and elicited the assistance of other beer
patrons. It is said during this melee some unknown patrons snatched
the packet of dagga Matambudziko Maluleke had been handed over by
Shepherd
Ziwacha.
It is further alleged that the beer patrons pounced on the now
deceased and Maluleke. The accused persons are alleged to have joined
in the assault which led to the now deceased's death.
In
his Defence Outline, Accused 1, Luckson Madunga (Luckson) stated that
although he was at the said beerhall he
did not assault either the now deceased or Matambudziko
Maluleke.
In his confirmed warned and cautioned statement…, Accused 1,
Luckson, said he witnessed a fight between Shepherd and one Maluleke
who identified himself as a police officer. He said the two pushed
each other until they got to a nearby market. Accused 1, Luckson,
said as he left for home he saw some clothes, a jacket and t-shirt on
the ground belonging to Shepherd. Accused 1, Luckson, said he then
picked the clothes and took them to Shepherd at the market. At the
market Maluleke was busy identifying himself as a police officer
producing his identity card to Shepherd. Accused 1, Luckson, said he
then left the scene and did not see the now deceased at all.
On
the other hand, Accused 2, Watson Mutovori |(Watson), in his Defence
Outline said Matambudziko
Maluleke fought
Shepherd
Ziwacha until
the two got out of the beerhall where Accused 2, Watson, restrained
them. Accused 2, Watson, said thereafter he went home leaving
Maluleke and Shepherd going towards a nearby market. He too denied
assaulting the now deceased. This is the same version Accused 2,
Watson, gave in his confirmed warned and cautioned statement…, and
that as he left Maluleke had produced his identity card saying he was
a police officer. Accused 2, Watson, further said, in his evidence,
that he is implicated in this matter simply because he was drinking
beer with his colleague, Shepherd
Ziwacha,
also an alleged accomplice in this matter.
The
post mortem..., was produced by consent. Accused 1 sought, through
counsel..., to belabour the point that the pathologist said the
circumstances of the offence, as per the police report, were that the
now deceased was attacked or assaulted by robbers. To his mind,
Accused 1 believes this is at war with the State case and is fatal to
the charge preferred. The Accused further contends that both the
police and the pathologist were not called to explain this apparent
contradiction that the now deceased was fatally injured during the
course of a robbery.
While
this may have been prudent for the State to do the totality of the
evidence before us is clear that the now deceased was assaulted
during a brawl at the beerhall on the day in question. Further,
Accused 1, Luckson Madunga's defence is simply that he did not take
part in the assault of the now deceased. To our minds the police or
the pathologist may have simply made an error in
summarising the alleged circumstances of the offences which error is
cured by evidence led during the trial. Further, the cause of the now
deceased's death is not in issue. He suffered from pneumonia and
had head injuries both arising from an assault. At the end, Accused
1, Luckson Madunga's protestations are inconsequential. The simple
task before us is whether Accused 1, Luckson Madunga (Luckson) and/or
Accused 2, Watson Mutovori (Watson), fatally assaulted the now
deceased.
The
evidence of Dr Estrada, the pathologist, Tendai Masvinyangwa, Dr W.
Phiri, and D/Cst Mupedzi was all admitted in terms of section 314 of
the Criminal Procedure and Evidence Act [Chapter
9:07].
As
already said, Dr Estrada examined the now deceased's remains on 15
July 2010 and compiled…, the post-mortem report which states the
now deceased's cause of death. As per that report, there is clear
evidence of assault noted like trauma on the temporal right area,
bruises on left arm and right side of the face.
Dr
W. Phiri, of Chiredzi District Hospital, attended to the now deceased
in the early hours of 8 July 2010 and noted the following;
(i)
The now deceased was smelling of alcohol.
(ii)
The now deceased was unconscious.
(iii)
The now deceased had bruises on his body – notably, the face.
(iv)
He put the now deceased on a drip and inserted a catheter.
Tendai
Masvinyangwa, a nurse at Chiredzi District Hospital, also attended to
the now deceased who had been brought from Collin Saunders Hospital
in Triangle after an alleged assault. This nurse observed that the
now deceased exuded smell of alcohol, was unconscious with bruises on
the head which was also swollen. It is therefore clear that the now
deceased had been severely injured as he was unconscious. It is
common cause the now deceased was transferred to Parirenyatwa
Hospital
where he passed on on 14 July 2010.
The
evidence of D/Cst Mupedzi is that she witnessed the recording of both
accused confirmed warned and cautioned statements and also
indications they made at the scene of the crime.
The
State led viva
voce
evidence from Matambudziko Maluleke (Maluleke), Newyear Unganai
(Unganai), Cst Darlington Dukwendo, and another detail, Peter Taurai
Chitsanzara.
In
our assessment, the evidence of both police officers is largely
immaterial. Cst Dukwendo attended the scene on the day in question
and found only the now deceased, Matambudziko
Maluleke and
Newyear
Unganai present.
He was advised of the now deceased's assailants by name by Maluleke
and Unganai as the now deceased could no longer talk. He noted head
injuries on the now deceased and ferried him to Collin Saunders
Hospital in Triangle. The other detail, Peter
Taurai Chitsanzara,
later attended the scene during investigations and his evidence is
not useful.
The
critical evidence in this case is that of Matambudziko
Maluleke (Maluleke)
and Newyear
Unganai (Unganai)
who allege were eye witnesses to the now deceased's assault. We
turn to that evidence.
Matambudziko
Maluleke (Maluleke)
Matambudziko
Maluleke (Maluleke),
a fellow workmate of the now deceased, gave background information
leading to the attack on the now deceased. He said as they were at
the Mufakose beerhall they gathered information that one Shepherd
Ziwacha was
selling dagga. They were shown the said Shepherd whom they kept under
surveillance as he moved in and out of the beerhall. They were
drinking beer until the time the beerhall was about to close.
Maluleke
said he and the now deceased hatched up a plan to trap Shepherd with
Maluleke posing as a buyer of dagga. At around 22.00hrs Maluleke
called Shepherd outside the beerhall and inquired if he could be sold
a large quantity of dagga. Shepherd fell for the trick but he was
only left with about 1kg of dagga, which he offered for $15=.
Maluleke
said he pretended to be taking out the cash to buy dagga but pulled
out his police identity card and pronounced to Shepherd that he was
under arrest for selling dagga. He held Shepherd by the belt. At that
point he said all hell broke loose.
Maluleke
said Shepherd fiercely resisted the arrest and felled Maluleke to the
ground. The two rolled on the ground as Maluleke kept a tight hold on
his prey and Shepherd trying to wrestle free. He said as they
struggled outside the beerhall the prized exhibit, being the packet
of dagga, was snatched from Maluleke by some unknown person. By then,
a crowd hostile to Maluleke's efforts had gathered and threatened
to assault him. Sensing the impending danger, he managed to bite
Shepherd on the hand as Shepherd was now holding on to Maluleke. Due
to pain inflicted Shepherd released him.
Maluleke
said the now deceased, who was close by, inquired from the people
present as to who had snatched away their prized exhibit, the dagga.
He said this is how the now deceased's woes started and unfolded
the follows;
(i)
Shepherd
Ziwacha delivered
a fist on to the now deceased who fell down.
(ii)
Accused 1, Luckson Madunga (Luckson), joined and started to kick the
now deceased with booted feet as the now deceased lay on the ground.
(iii)
Accused 2, Watson Mutovori also joined in the assault kicking the now
deceased.
(iv)
The mob, inclusive of Accused 1 and Accused 2, was shouting that
Matambudziko Maluleke and the now deceased wanted to masquerade as
police officers and that if they were indeed police officers they
could not reap when they did not sow by getting dagga for free.
(v)
Maluleke said only Accused 1, Luckson, Accused 2, Watson, and
Shepherd assaulted the now deceased for about 2–3 minutes with
booted feet as the now deceased lay outside the beerhall at a
well-lit area.
(vi)
Maluleke said realising that the now deceased was in grave danger he
restrained Accused 1, Luckson, and a security guard present
restrained Accused 2, Watson. By then, some people present were
shouting the names of Accused 1, Luckson, Accused 2, Watson, and
Shepherd saying they had killed the now deceased. At that stage all
the three assailants fled.
(vii)
Maluleke said the now deceased had been gravely hurt. He could hardly
breathe.
The security guard called for a motor vehicle which ferried the now
deceased to Colin Saunders Hospital.
Matambudziko
Maluleke (Maluleke)
insisted that the now deceased's assailants were Accused 1, Luckson
Madunga (Luckson),
Accused 2, Watson
Mutovori (Watson),
and Shepherd
Ziwacha (Shepherd)
as a mob of about 20 people just watched. He disputed that the mob
joined in the assault.
The
evidence of Matambudziko
Maluleke (Maluleke)
firmly implicates the accused persons in the assault of the now
deceased. Indeed, Maluleke had consumed alcohol just like the accused
persons but he had a full appreciation of what happened. His
recollection of events in sequence cannot be faltered. Although this
was at night he explained that the area was well lit from lights at
the market and beerhall. This was not seriously refuted by the
accused persons. We are at pains to find why Matambudziko
Maluleke would
falsely implicate the accused persons who were strangers to him and
not drug peddlers like Shepherd
Ziwacha.
In that vein we are inclined to accept his evidence.
Newyear
Unganai (Newyear)
Newyear
Unganai was
a security guard deployed at Mufakose beerhall on the night in
question. He is well known to both accused persons and Shepherd
Ziwacha who
stay in the same compound with him.
Unganai
testified on how the now deceased was fatally assaulted. He said
after the soccer match patrons trooped out of the beerhall and he and
the cashiers started to lock up the premises. As he was closing one
of the gates he observed the following;
(a)
Shepherd
Ziwacha pushed
the now deceased who fell down and started to kick him with booted
feet.
(b)
Accused 1 and 2 joined the assault also kicking the helpless now
deceased who was visibly more drunk compared to Matambudziko Maluleke
(Maluleke).
(c)
A group of about 15 people gathered watching the drama and were
shouting that Accused 1, Luckson Madunga (Luckson), Accused 2, Watson
Mutovori (Watson) and Shepherd
Ziwacha (Shepherd)
were killing the now deceased in the manner they assaulted him.
(d)
Matambudziko Maluleke (Maluleke) then held one of the accused persons
after which the assault stopped.
(e)
Newyear
Unganai
realised the now deceased had been severely injured as he was
unconscious and bleeding from the head. He called for a motor vehicle
to ferry the now deceased.
(f)
Newyear
Unganai said
only Accused 1, Luckson Madunga (Luckson), Accused 2, Watson Mutovori
(Watson) and Shepherd
Ziwacha (Shepherd)
assaulted the now deceased. The other people just watched. He said
the blows were directed on the head and the ribs.
In
our assessment, Newyear
Unganai gave
his evidence well and materially corroborated Matambudziko
Maluleke.
The only notable contradiction between them we observed is that
Newyear
Unganai denied
that he restrained Accused 2, Watson
Mutovori as
per Matambudziko
Maluleke's
evidence. He dismissed suggestions that he harboured a grudge against
any of the accused persons over some kudu meat.
Newyear
Unganai was
sober and on duty. He could not have failed to see what transpired at
his premises leading to the fatal injuries inflicted on the now
deceased. It is indeed preposterous that he would falsely implicate
the accused persons over some kudu meat.
The
truth of the matter is that the accused persons indeed assaulted the
now deceased in the clear manner explained by both Matambudziko
Maluleke and Newyear
Unganai.
They acted in common purpose and in concert. They used booted feet
directing the blows to the head and upper part of the body. Fatal
injuries were inflicted as the now deceased was rendered unconscious.
We however do not believe that the accused persons formulated the
requisite intention to kill the now deceased. They were simply
negligent in the manner they assaulted him. In the result, we find
them not guilty of murder but they cannot escape liability on a
permissible verdict of culpable homicide as defined in section 49 of
the Criminal Law (Codification and Reform) Act [Chapter
9:23].
VERDICT:
Both accused. Not guilty of murder but guilty of contravening section
49 of Criminal Law (Codification and Reform) Act [Chapter
9:23]
– Culpable homicide.
