The
accused was charged with murder in that on the 8th
day of September 2016, at Umsweswe Bottle Store, Pingo in Kadoma, he
unlawfully and with intent to kill caused the death of Linda
Runyararo Mushangi by stabbing her on the stomach with a knife
causing injuries from which she died.
The
summary of the State's case ...
The
accused was charged with murder in that on the 8th
day of September 2016, at Umsweswe Bottle Store, Pingo in Kadoma, he
unlawfully and with intent to kill caused the death of Linda
Runyararo Mushangi by stabbing her on the stomach with a knife
causing injuries from which she died.
The
summary of the State's case was that on the day in question, the
accused, Arnold Jeri, who had been drinking beer at Umsweswe Bottle
Store when the deceased, Linda Mushangi, visited her friend, Tatenda
Gwata, had tried to endear himself to the deceased but had been
spurned. This had apparently irked the accused who had slapped the
deceased on the face with an open hand and had intensified his
assaults with booted feet. The deceased had picked up an empty beer
bottle and had hit him with it.
Attempts
had been made to stop the accused from assaulting the deceased. She
had used this window of opportunity to run away from the accused by
seeking refuge from some patrons. The accused had followed her with a
knife and had tried to stab her from both left and right sides before
he succeeded in stabbing her in the stomach from the left. She had
screamed and had run out of the room and had collapsed at the foot of
the veranda. The accused was said to have run way from the scene. He
had eventually surrendered himself at ZRP Nyamapanda on 14 November
2016.
The
accused's defence was that the deceased had shouted at him using
obscene language and that she had caught him unaware and struck him
twice with a beer bottle on the head. He had used his knife in
self-defence as he wanted to disarm the deceased whom he said was
holding a broken beer bottle. It was during this time that he had
accidentally stabbed the deceased's stomach.
Admitted
in evidence as exhibit 1 was the post-mortem report done by Dr
Gonzalez, a duly attested medical practitioner and forensic
pathologist. His report concluded that the deceased died as a result
of hypovolemic shock, abdominal aortic artery damage, and the stab
wound.
Admitted
as exhibit no. 2 was the accused's confirmed warned and cautioned
statement which captured his stated defence.
Also
admitted as exhibit 3 was the sketch plan drawn by the Investigating
officer, Sergeant Blessing Tsuro.
Exhibit
4 was a photograph of the deceased after the stabbing. It showed her
lying down with her intestines clearly protruding from her stomach as
a result of the stab wound.
The
statements which were admitted as evidence in terms of section 314 of
the Criminal Procedure and Evidence Act [Chapter 9:07] were those of
Doctor Gonzalez basically summarizing the post mortem report and that
of Gift Chari, an attested member of the ZRP, who had visited the
scene on the fateful day.
The
gist of his evidence was that at around 20:30 on that day he had
received a murder report. He had teamed up with Kadoma CID, Canine
and District Reaction group and had gone to the scene. Upon arrival,
he had found the deceased on the ground in front of the bottle store.
The area had been well lit and he had observed the stab wound and the
protruding intestines. The following day, on 9 September, the body
had been ferried to the general mortuary.
It
was therefore not in dispute that the accused had stabbed the
deceased in the stomach.
The
main issue for resolution were the circumstances surrounding the
stabbing; in other words, the reasons for the misunderstanding.
The
State relied on the oral evidence of Tatenda Gwata, the bar lady, who
was present on that day as well as the accused's friend, Kabanga
Muyambo, also known as Denny, who had also been present. Oral
evidence was also led from the Investigating Officer, Blessing Tsuro.
The
State's evidence
Tatenda
Gwata:
She worked as bar lady for the owner who had several bars and bottle
stores. The deceased was her friend who would come to the bar to
assist her with relief duties and preparing food. She knew her as a
relative of one of the women who also worked at the bar. She also
knew the accused as a patron at the bar. He was called Pipiro by his
friends. She had been working at that particular bar for a week as
the owner had several bars.
Her
collection of the events of that day was that Kabanga Muyambo had
been the first to arrive at the bar and she had sold him beer. The
accused had then arrived later. The deceased had arrived between
16:30 and 17:00 hours. They had discussed what they would eat and had
decided on buying plain sadza to consume with milk. It was when the
deceased was coming from buying the sadza that the accused had thrown
an empty bottle of water at her and the deceased had protested and
indicated that she did not like that behaviour. The accused had not
responded, but, when they started eating he had returned again and
wanted to know why he had been excluded from joining them in their
meal. He had not been answered.
It
was at around 20:00 hours that the accused had again approached the
deceased saying she should come to him as he had summoned her on
several occasions. The deceased had responded that she had already
told him that she was not interested in his advances. She had asked
the deceased if she had any relationship with the accused to which
she had said no. The accused had, at that point, slapped the deceased
on the face and had kicked her resulting in her hitting the
refrigerator. He had also gotten hold of the deceased and had head
butted her several times. At that point this witness had screamed and
had thrown a bottle top at Kabanga Muyambo, the accused's friend,
who had been asleep. So vicious was the attack against the deceased
that she had had to close her eyes and hold her face in her hands as
she let out that the accused would injure the deceased from the way
he was head-butting her. It was also at this point in the assault
that the deceased had taken an empty beer bottle and had hit the
accused with it.
Kabanga
Muyambo had woken up and had tried to pull the accused away but he
had been beaten and pushed against some empty crates stacked against
the wall. The accused had pushed Kabanga Muyambo outside the bottle
store and had himself come back to continue his pursuit of the
deceased who had now taken refuge behind one of the three patrons who
were in the bar. He had continued his assault even as one of the men
stood between the accused and the deceased as a human shield.
It
was also her evidence that two of the men had managed to subdue the
accused and had taken him out of the bar but he had come right back
in. It was when he returned again that he had drawn a knife from his
satchel which he had been carrying on his back. He had, once again,
gone to the deceased who was behind a patron and had tried to stab
her several times until he had been successful in doing so on the
left side. The deceased had screamed that she was dying and had run
outside at that point before collapsing to the ground.
The
accused had put back the knife in his satchel and had walked out of
the bar.
Whilst
at the height of the assault on the deceased, she had hidden behind a
door; she had, nonetheless, been able to continue observing from a
vantage point provided by wide gap between the hinges.
The
police had been called and had attended the scene. She had only left
the following morning when her statement and photographs from the
scene had been taken.
Asked
to comment on the accused's sobriety at the time of the assault she
stated, in her examination in chief, that on that day she herself had
not observed him drinking but had noticed that he was carrying a
bottle of water which looked like it had water inside although she
did not verify its actual contents. She however did not think he was
drunk.
As
to whether the deceased had provoked the accused in any manner she
had not heard anything and certainly at no time had she heard the
deceased hurl any insults at the accused.
In
cross examination, she confirmed when asked that she had heard that
the deceased was a sex worker but that she had not seen her solicit
at the bar in question.
Counsel
for the accused had also put it to her that she herself was a sex
worker like her friend before the court objected to this line of
questioning of the witness's moral turpitude as irrelevant to the
case at hand.
She
conceded that hitting someone with a bottle was dangerous.
She
was asked why the other three men who were drinking in the bar had
not intervened at the time of the slap on the basis that if she had
done nothing to the accused they would not have left him to assault
the deceased. She did not know their reasons for not intervening
then.
She
had also stood steadfast that the deceased was no longer armed with a
bottle and was merely hiding behind the man in question for
protection when she was stabbed by the accused.
As
regards the accused's sobriety, it was put at her that the bottle
of water that the accused was carrying may in fact have contained
alcohol and that she could therefore not dispute that he was drunk.
From
her evidence, therefore, what we deduced materially were the
following crucial points:
(a)
It was the accused who had assaulted the deceased first and had
engaged in a vicious assault including pushing and head-butting the
deceased.
(b)
It was during this assault by the accused on the deceased that the
latter had retaliated by hitting him with a bottle.
(c)
Efforts had been made to restrain the accused from further assaulting
the deceased before the fatal stab.
(d)
At the time of the stabbing, the deceased had been standing behind a
patron who had stood as a buffer between the accused and the
deceased.
Kabanga
Muyambo:
His evidence was that he had arrived at the bar at 11am in the
morning whilst the deceased had arrived at around 15:00 hours. He
said he had bought the accused three opaque beers and that when the
accused had finished these he had consumed a drink called double
punch mixed with water. He himself had fallen asleep at around 18:00
hours whilst the accused whilst still drinking his double punch.
However,
he had still been awake when the deceased and Tatenda Gwata, the
first witness, had eaten their meal. He had observed the accused
talking to the deceased but said he had not heard what the
conversation had been about but the tone had been cordial. He said he
had been awoken suddenly by glass shards falling on him when a bottle
hit the accused. He had seen the accused head butting the deceased
and had grabbed the accused who shook himself free and jumped over
the counter and continued beating the deceased. He had followed him
and dragged him from there and the accused had started beating him
until he fell against some crates alongside the wall. He said he had
managed to pull the accused outside but the latter had rushed back in
again.
This
corroborated Tatenda Gwata's evidence that there had been efforts
to restrain the accused from assaulting the deceased save to say that
she had said it was the accused who managed to push this witness
outside whilst the witness said it was him who pushed the accused
outside. This was not material since no two persons experiencing the
same event have identical experiences particularly because they
cannot be precisely at the same place at precisely the same time;
BARRY
R. MORRISON and WARREN COMEAU, Judging Credibility of Witnesses 25
Advoc. Q. 411 2001-2002…,.
The
crucial point on which there was consensus was the clear effort to
restrain the accused.
Further
corroborated was Tatenda Gwata's evidence that the deceased had
sought shelter behind one of the patrons and that the deceased had
not been holding any beer bottle fragment at that time....,.
The court observed that the accused was most at pains in crafting his
version of events when it came to relating the cause of the violent
rupture. What was particularly observable from the accused's
narration of his version of events was that he clearly struggled to
tell his story. His own counsel had to prod him several times to give
the fuller accounts of what happened.
This, to the court, was
indicative of a person who was having to make up his story as he went
along since deceivers tend to use fewer words in communication and
make fewer factual statements for fear of being caught in the lie;
see BARRY
R. MORRISON and WARREN COMEAU, Judging Credibility of Witnesses 25
Advoc. Q. 411 2001-2002…,.
The
story that the deceased had harassed him for sex and had become
annoyed at his lack of co-operation and uttered profanities at him
was clearly made up.
There was no evidence from any of the two
witnesses that they had heard the deceased utter any obscenities
against the accused as he claimed that could have led to his being
provoked as he was the first to assault the deceased before she threw
the beer bottle at him when he was head-butting her.
