The appellant suggested that the allegations against him were fabricated by the complainant's mother as there was bad blood between him and her….,.

This allegation was said for the first time only in the appellant's evidence after the close of the State case.

We are unable to accept the evidence told by the accused as true. His explanations were glib and unsatisfactory in many respects.

We were not impressed, and of course completely taken aback, by his contradictory explanations as to the origins of the murder weapon. In his defence outline he stated:

The State's summary on Tawanda Wairosi's evidence is at variance with Tawanda Wairosi's evidence.

He is, there, said to have seen the accused's accomplices wearing black clothes and the accused receiving money from the accomplices. It is, there, alleged that he heard the driver and the accused conversing about cutting the ear and the head as they pointed at the deceased. The State's outline also alleges that the deceased remained in the truck held by one of the men, while he and his father were ordered to disembark He is alleged to have seen the driver coming out of the motor vehicle holding three knives, and the accused going to the motor vehicle where the deceased was being held. He is alleged to have thereafter witnessed a violent scene at the motor vehicle after which he ran away.

The State did not ask Tawanda Wairosi about these details. The defence did not cross-examine him on them but put it to him that his evidence in court was different to what was recorded in his statement to the police.

Tawanda Wairosi's statement to the police was not produced.

The court cannot determine whether or not he would have confirmed what is alleged in the State's summary of his evidence if he had been asked about them or given an opportunity to comment on them….,.

The difference between the State's outline and a complainant's or witness's evidence during the trial cannot be held against the complainant or the witness as they do not take part in the preparation of the State's outline. The difference must, however, be satisfactorily explained as it will be fatal to the State's case if it remains unexplained when the State closes its case. In S v Nicolle 1991 (1) ZLR 211.., KORSAH JA commenting on the functions of the State's and defence's outlines, and the effect of the complainant's departure from the State's outline, said -

“Commenting on the importance of the part played by the respective outlines of cases in a criminal trial SQUIRES J said in S v Seda 1980 ZLR 109 (G) at 110H - 111A:

'They perform a similar function to the pleadings in a civil trial, and serve not only to identify what may be in issue between the State and the accused, but to advise each of the substance of the matters that are in issue, with the obvious advantages this affords of avoiding delay in completing the trial. In addition, it must always be appreciated that just as any significant and unexplained departure by the accused in his evidence from the outline of the defence which he makes may be a matter for comment or even adverse conclusions, so does such a consequence affect what is said by the State witnesses.'

While citing the above dictum of SQUIRES J with approval, I hasten to point out that whereas the outline of defence is prepared from what the accused person tells counsel and is tendered in evidence with his approval, the outline of State case is not prepared on the instructions of the complainant and is certainly not approved by the complainant before it is tendered in evidence and does not constitute part of the complainant's testimony. I would suggest that the reason for drawing an adverse conclusion when the outline of State case is seriously at variance with the evidence of the prosecution witnesses is that because of the conflict between the two a doubt is raised as to whether the State witnesses are being truthful. Such a conflict may easily be explained by the production of the complainant's statement to the police. But if this is not done, so long as that conflict is unresolved at the end of the hearing, the benefit of the doubt must be accorded to the accused; for it would not be possible to say that the State has proved the case which it undertook from the onset to prove and has therefore proved its case beyond a reasonable doubt.”

In Ephias Chigova v State 1992 (2) ZLR 206…., KORSAH JA again commenting on discrepancies between the complainant's evidence and the State's outline said -

“While I agree that the State is bound to prove the ingredients of the offence it alleges, a précis of a case by the State is not to be given equal weight with the outline of defence on behalf of the accused. The reason for this is simple. The complainant has no control over what a policeman may find relevant enough to include in a precis. The précis is not her word and deed. She is not to be taken as having made categorical statements on matters which, though relevant, are not essential to establish the offence alleged. The complainant's credibility is not to be assessed on apparent conflicts between her viva voce testimony and a summary of the case prepared by someone else.

The "defence outline", however, is prepared at the behest of the accused and usually read over by, or to, him and then signed by him or on his behalf. A complainant cannot be discredited because of discrepancies between a summary of the State case and her testimony, in the same way as an accused who, having made categorical statements in his "defence outline", testifies to something other than that which he has put his hand to or stated in his outline of defence, which may tend to underscore the veracity or otherwise of the accused. To discredit a complainant because of discrepancies between the State outline and her testimony, the divergence between the two must be so gross as to be utterly irreconcilable or her testimony patently false.”

The weight to be attached to Tawanda Wairosi's evidence, must, in my view, in view of the irreconcilable variance between his evidence in court and what the State outline said he was going to tell the court be carefully considered.

In terms of section 319H of the Criminal Procedure & Evidence Act [Chapter 9:07] the effect of the appointment of an intermediary for a vulnerable witness must be considered. Tawanda Wairosi was treated as a vulnerable witness. He gave evidence through closed circuit television. Could that have had the effect of causing him to depart from what he had previously told the police? An examination of section 319H of the Criminal Procedure & Evidence Act [Chapter 9:07] is called for to ascertain the Legislature's intention on the weight to be given to evidence of a vulnerable witness. Section 319H of the Criminal Procedure & Evidence Act [Chapter 9:07] provides as follows:

“When determining what weight, if any, should be given to the evidence of a vulnerable witness for whom an intermediary, or a support person, has been appointed, the court shall pay due regard to the effect of the appointment on the witness's evidence and on any cross-examination of the witness.”

The apparent intention is to guard against the effect the appointment of an intermediary or support person will have on the witness's evidence in the sense that, in the case of the appointment of an intermediary the questions are put in the manner deemed appropriate by the intermediary. The taking out of the sting from the questions may bring out answers not consistent with the question asked. If that happens, the prosecutor or defence counsel would point that out or ask the question in a different manner. That did not happen in this case. Counsel for the State and the defence did not question the professionalism of the intermediary.

She therefore did not adversely affect Tawanda Wairosi's evidence.

Section 319H of the Criminal Procedure & Evidence Act [Chapter 9:07] is also meant to assess the effect of the appointment of an intermediary, or support person, on the mind of the vulnerable witness and the resultant effect of that mindframe on the vulnerable witness's evidence. This is so because the appointment of a support person does not, in terms of section 319H(3) of the Criminal Procedure & Evidence Act [Chapter 9:07], include the receiving and answering of questions through the support person, but merely the rendering of moral support. This means the effect of the appointment should also be that which the appointment will have on the mind and subsequent conduct of the vulnerable witness. In the case of the appointment of an intermediary, and the use of a separate room, the witness could, due to the relaxed atmosphere from which he will be testifying, lose the effect of the oath or admonition to tell the truth and drift away into the world of play losing the need to tell the truth.

In our view, Tawanda Wairosi did not, because of the comfort of the separate room, drift away from the need to tell the truth. He gave answers to the questions which were put to him. He did so to the best of his ability regard being had to his age and lack of education. He did not drift away from the need to tell the truth. His evidence was generally corroborated by Munyaradzi Kondo's evidence and the place where the deceased's body was found.

The variance between the State's outline and Tawanda Wairosi's evidence cannot be blamed on his testifying through an intermediary from a separate room. The explanation should have come from other State witnesses. Tawanda Wairosi's explanation for the variance is, in my view, not enough to dispel the doubt created by the wide gap between his testimony in court and what the State, in its summary of his evidence, said he was going to tell the court.

In my view, the major part of the variance remained unexplained at the end of the State case. This, in my view, leaves a reasonable doubt in the State's case, which, if not resolved through other evidence, must be resolved in the accused's favour. The doubt is strengthened by Tawanda Wairosi's prevarications on whether or not he was left by the motor vehicle when the deceased was taken into the bush where he was murdered. This determines whether or not he witnessed the murder. Detective Sgt Nhari said the deceased's body, and the stone alleged to have been used, were found 800m from the road. If the deceased was murdered 800m from the road how could Tawanda Wairosi ,who in one of his versions, said he observed the murder from where he had been left by the motor vehicle, parked by the side of the road, have witnessed what happened far away from where he had been left?

The Assessors are, however, satisfied that Tawanda Wairosi's refusal to go along with the police's suggestion that the deceased was murdered by strange people is sufficient to explain the variance between the State's outline and his evidence. They are of the view that, as explained by Tawanda Wairosi, the difference is because the police wanted him to tell a story as per the State's outline.

The court has derived much assistance from both counsel's extensive heads of argument to which they both conscientiously addressed their minds.

The respondent's counsel rightly conceded that the complainant's testimony was at variance with the State Outline appearing in the record of proceedings.

She also correctly highlighted the fact that two statements were recorded from the complainant pertaining to the rape allegation. One was recorded at Dangamvura Police Station, not by the officer that she initially told about the rape, but by another, at about 8:00pm on 2 September 2011. The second statement was recorded on an undisclosed date at Southerton Police Station by yet another officer who had presumably taken over from a different officer who had been arrested for extortion. Whereas the complainant's testimony is in line with the statement recorded at Southerton Police Station, the State Outline appears to have been prepared on the basis of the statement recorded at Dangamvura Police Station. State counsel also rightly observed that the major difference between the two statements is the description of the manner in which she was raped. Furthermore, that what is of significance is that events which occurred prior to the rape; the place where the offence was allegedly committed, the identity of the assailant, the allegation that she was raped and the events after the rape, particularly, that the complainant was given money by the appellant, all remain unchanged in both statements. Thus, the divergence between the two was not so gross as to warrant rejection of the complainant's evidence by the trial court on that basis.

By the same reason this court would not interfere with the trial court's decision to readily accept the complainant's testimony as the truth of what had transpired. This is particularly so regard being had to the fact that an appeal court will not readily interfere with a trial court's findings on credibility such being the trial court's domain.

It is also of significance that in her testimony the complainant said that she was raped at gunpoint. Although he denied the charge, the appellant confirmed that he owned a pistol which, at one point, the complainant saw.

The trial court's acceptance of the complainant's evidence as reflecting the truth is justified on the evidence adduced before it….,.

An examination of the appellant's defence on the other hand reveals the following. The contention in his defence that the charges against him were a fabrication by the police who were bent on extorting money from him does not hold especially when regard is had to the fact that the police in Mutare got to know of the allegations first before the police in Harare were made aware of them. The appellant also claimed, in his defence, that he was impotent. Although his doctor testified, inter alia, that the appellant could not perform any sexual act, he was unable to explain how the appellant had fathered a child some 4 years before, a child that the appellant initially said was his. Another curious aspect of the defence case is that although the Defence Outline stated that the night watchman was one Itayi Tom, it was one Remember Chiripanyanga, a bus cleaner, who testified and claimed that he was the guard on duty on the night of 1 September 2010.

In our critical assessment of Sikhumbuzo Mpala's statement we also appreciated that quite often what may appear as contradictions in the witness' recorded statement might be a reflection of a much more complex challenge in the collation of evidence at the initial stages of investigations. The irony of it is that we tend to always assume that when these statements are recorded in the indigenous language, the police officer who gathered such evidence is not only able to fully appreciate the diametrix of that language but is also competent to do the actual translation of the collated evidence in the official language of record, that is, English.

We are aware that there are many Zimbabweans (police officers inclusive) who do not understand the local languages but encounter serious challenges in the translation of that language into the accepted language of record. There are many occasions in our courts when the prosecution or defence counsel or even the court may not agree with the interpretation of a witness' evidence by an interpreter, for example.

It occurs to us that witness' recorded statements must never be looked at as some sacred document recorded in heaven but as documents recorded by police officers, some of whom are stalked by the many language challenge that we are all aware of.

It occurs to us that because we do not actually know the actual circumstances under which the recorded evidence is collated at the stage of investigations, it is imperative that where the recorded statement of a witness is in contradiction with the viva voce evidence of the witness, the latter be afforded greater weight. This should be particularly so where the court is not afforded the opportunity to see for itself the original language in which the statement was recorded….,.

Just like aspects of Sikhumbuzo Mpala's testimony, which were in conflict with his recorded testimony, Kuno Ngwenya's evidence suffered the same challenge, of particular note was the averment in his recorded statement that alleged that the witness had said that Accused 2 and 3 rode on two separate bicycles as they fled from the scene of the crime. The witness disowned that part of his statement and many other aspects which were not in line with his evidence in court.

The accused made an extra curial statement which was confirmed by a magistrate at Inyathi on 18 August 2003 which was produced as exhibit 3. In it the accused had this to say:

“On the 7^th of June during the evening around six o'clock I disembarked from a Sihube bus on my way from Mbembesi whereupon I came across Zenzo Maphosa. There were certain young men there among whom I recognized one of them called Khumbu and they invited me for some traditional brewed beer. I the (sic) stated that I did not drink traditional beer. Zenzo Maphosa then asked me who I was who claimed not to drink traditional beer. Following that, Zenzo Maphosa pursued me and struck me once on the back with a stone. I then picked up a wooden log and whilst he was still picking up some stones I struck him five times on the head with the log and I then run away (sic) leaving him lying on the ground. I had no intention of killing him other than acting in self defence.”

When the charge was put to the accused, his response was that he had no intention of killing the deceased. A plea of not guilty was accordingly entered on his behalf.

The State Outline was read and produced as exhibit one while the accused's Defence Outline was read and produced as exhibit two. While I do not propose to reproduce the State Outline, I shall recount the accused's Defence Outline which reads:

“The accused person is as described on the State papers.

The accused person understands the charge against him and pleads not guilty to murder but guilty to culpable homicide. He will state that on the 23^rd of December 2009, in the afternoon, he was visited by a friend called Butross and they spent the whole afternoon together. Thereafter, they decided to go to Gijima Nite Club.

He will state that he arrived at the night club with his friend, Butross, at around 7pm and two ladies who were acquainted to Butross were already at the night club. He will state that one of the ladies was called Cynthia. The accused will state that at all material times he was inside the club with Butross and the two ladies wherein they were consuming copious amounts of alcohol.

At around 3:00am the following day, the four of them decided to leave the night club and go home. He will state that, at that time, he was already drunk and was taking Cynthia with him to spent (sic) the night with her. He will state that when they left the night club, Cynthia briefly disappeared and they continued walking without her, assuming that she will follow them. Whilst they proceeded along Herbert Chitepo to look for transport, Cynthia emerged and joined them but she was crying and nose bleeding and claimed that she had been assaulted by the deceased who was walking with his three friends.

He will state that they proceeded to walk, and whilst walking, they were approached by the deceased.  The deceased was in the company of his friends, who, however, distanced themselves whilst deceased came straight to the accused. He will state that the deceased came straight to him and started assaulting him and he consequently fell on the ground. The accused shall give the details of the fight and how he subsequently stabbed the deceased on the thigh. He will state that he had intended to call Butross, his friend, to testify on his behalf but the same cannot be located.

He will further state that he stabbed the deceased on the thigh in an attempt to defend himself from the deceased who was overpowering him with blows and whilst he struggled helplessly on the ground. For the avoidance of doubt, he will state that at all material times, it had not been his intention to fight with the deceased who was the initial aggressor. Further, it had not been his intention to use the knife in the manner that he did, or at all, and the knife was produced in the heat of the moment; with hindsight, he realized that his judgment had been impaired by the effects of alcohol.

The accused shall tell this honourable court that he did not intend to cause the death of the deceased and that there had been no premeditation in the manner in which the deceased met his death.

Wherefore, the accused shall pray for judgment in terms of the law.”

The third exhibit was the accused's confirmed extra curial statement wherein he said the following when matters were still fresh on his mind:

“I do admit to the allegations leveled against me. What happened on the fateful day is that I was coming out of Gijima Nite Club in the company of Butross Moyo on our way to board a combi to Pumula. While we were outside the night club, I saw the now deceased, Mkhululi Maseko, in the company of a lady by the name Cynthia whom I had a love affair with. I confronted him and asked him where he was going with my girlfriend. Mkhululi attacked me and I fell on the ground then Mkhululi sat on top of me. Butross then gave me an Okapi knife and I stabbed Mkhululi once on his thigh.

Police officers who were on cycle patrol came to the scene and apprehended me. The knife that I used was confisticated by the police. I had no intention of killing him.”

The accused has given two different stories in respect of the same event.

In an attempt to justify his conduct, the accused sought to rely on the defence of provocation as raised in his Defence Outline. 

That position shifted to a defence of self-defence when he gave evidence in chief.

Dorcas Ncube was asked, under cross-examination, why her story that the accused ordered the deceased to come out or else he would set the hut alight and burn him with his church knobkerries did not appear in the State Outline. 

Her response was that she had told that to the police. 

INCONSISTENCIES IN COMPLAINANT'S EVIDENCE

According to the record, the State's evidence consists of the following:

(i) The complainant's statement at Dangamvura Police Station, dated 2 September 2010 (the Dangamvura statement);

(ii) The later undated statement made at Southerton Police Station (the Southerton statement);

(iii) The undated outline of the State case; and

(iv) The complainant's evidence-in-chief and under cross-examination.

According to counsel for the appellant, these, together, constitute four different versions of the State case.  

However, counsel for the respondent takes the view that there were two versions before the courts below, i.e. the Dangamvura statement as read with the State outline on the one hand, and the Southerton statement coupled with the complainant's evidence on the other.

Whichever position one adopts, there are several notable inconsistencies as between the Dangamvura statement, the State Outline, the Southerton statement and the complainant's testimony in court.

Firstly, there is the complainant's evidence that she spent two nights in the appellant's cottage and was raped on the second night. Her statements to the police, and the State Outline, indicate that she only spent one night in the cottage. 

I do not think that this inconsistency is particularly significant in light of the probability that she did not divulge as much detail in her statements as she did in her testimony, particularly under cross-examination. On balance, having regard to all of the evidence adduced at the trial, it seems to me that her version of having slept in the cottage on two nights was properly accepted by the trial court.

The second set of inconsistencies arises from the manner and circumstances in which the alleged rape was carried out.

The complainant's evidence was that the appellant entered the cottage holding a firearm and threatened her with it. The act of rape involved him placing his penis on her vagina rather than inserting it. After she was raped, he forced her to lick his penis. He then left at some later stage and did not spend the whole night in the cottage.

The Dangamvura statement and the State Outline make no mention of any firearm having been used on the night in question, whereas the Southerton statement is consistent with the complainant's evidence in this respect. Again, the Dangamvura statement and the State Outline are silent as to the licking of the appellant's penis. The Southerton statement does refer to the eating of the appellant's penis but indicates that this occurred before, instead of after, the alleged rape. As regards penetration, the State Outline avers sexual intercourse, while both the Dangamvura and Southerton statements clearly indicate that the appellant inserted his penis into the complainant's vagina. Lastly, the State Outline and the Dangamvura statement are to the effect that the appellant spent the whole night in the cottage, while the Southerton statement accords with the complainant's evidence at the trial….,.

As for the inconsistencies in the evidence generally, it is clear that the State Outline was drawn from the Dangamvura statement, which is relatively thinner in its coverage. The Southerton statement, on the other hand, is somewhat more detailed, and, in essence, broadly consistent with the complainant's testimony. In this regard, I am inclined to agree with counsel for the respondent that, in the Southerton statement and her evidence in court, the complainant was adding flesh to her earlier report at Dangamvura Police Station. She gave the latter statement soon after the alleged rape, at a time when she was probably not in full control of herself, and only made full disclosure at Southerton Police Station. On that basis, it seems to me that the trial court and the court a quo cannot be faulted for having placed greater reliance on the Southerton statement coupled with the viva voce evidence, as opposed to the Dangamvura statement as read with the State Outline.

Generally speaking, as was held in S v Mandwe 1993 (2) ZLR 233 (S)…, a State Outline is crucial to criminal proceedings. If the divergence between the Outline and the evidence of the complainant is gross and irreconcilable, it may be proper and necessary for an appellate court to set aside the conviction as being unsafe. However, it was also observed in that case that a State Outline is usually compiled by police officers without the requisite legal training. As was highlighted by KORSAH JA…,:

“It is, however, incumbent to caution that, as the State Outline is often a précis of the testimony of the State's witnesses, often compiled by a policeman with no legal training (as opposed to the Defence Outline being a categorical assertion by the accused person of facts upon which he relies for his defence), the divergence between the State Outline and the testimony of a State witness must be so gross as to be utterly irreconcilable, so as to invite an adverse conclusion. As SQUIRES J clearly stated [in S v Seda 1980 ZLR 109 (G) at 110 H], the departure by a witness in his evidence from the Outline must be significant and unexplained to be deserving of an adverse conclusion.”

In the instant case, I take the view that the inconsistencies as to the specific manner in which the alleged rape occurred are largely attributable to the youthfulness of the complainant. Having regard to the record of proceedings as a whole, the complainant's detailed evidence in court could not possibly have been concocted. She did not implicate anyone else and there was no ulterior motive for her to implicate the appellant. Indeed, she might not have raised any complaint of rape at all had she not been thoroughly interrogated at Dangamvura Police Station. Furthermore, many material aspects of the complainant's testimony are clear and were not challenged at the trial. These relate to the events prior to the rape, the place where the offence was committed, the identification of the alleged assailant, and the events that occurred after the rape.

In Ephias Chigova v State 1992 (2) ZLR 206…, KORSAH JA…, commenting on discrepancies between the complainant's evidence and the State's Outline said:

“While I agree that the State is bound to prove the ingredients of the offence it alleges, a précis of a case by the State is not to be given equal weight with the outline of defence on behalf of the accused. The reason for this is simple. The complainant has no control over what a policeman may find relevant enough to include in a précis. The précis is not her word and deed. She is not to be taken as having made categorical statements on matters which, though relevant, are not essential to establish the offence alleged. The complainant's credibility is not to be assessed on apparent conflicts between her viva voce testimony and a summary of the case prepared by someone else.

The first accused's defence counsel sought to make a suggestion, in his closing submissions, that Lazarus Gwerena deposed from his testimony as contained in the State summary in that in the State summary it was stated that the trio left to buy explosives but in court the witness was now saying they had left to buy drill bits.

This submission, in my view, came a little too late as the witness was never questioned on this disparity during cross examination. As it is, that aspect of his evidence remains un-queried and the first accused person's defence counsel had a duty to question the witness so that his testimony would be tested in that regard. To let the witness go away and submit that he was lying does not assist the court at all….,.

In any event, the Supreme Court has held that witnesses are not responsible for the information contained in the State summary as it is not prepared by them neither is it prepared on their specific instructions like the accused's Defence Outline….,.

We found the witness a credible witness. In our view, his denials of some of the contents of the statement to the police of 16 December 2008 did not dent his credibility….,.

In our view, the discrepancies are immaterial and do not affect the probative value of his overall testimony.

Now, in the Defence Outline, Accused One's version differs from the one given in court…,.

The accused person faces a charge of murder as defined in section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. It being alleged that on 12 September 2015, he stabbed the deceased, Albert Sibanda, with an okapi knife. The deceased subsequently died as a result.

It is common cause that the accused person stabbed the deceased with an okapi knife on the day in question.

The State case is that the deceased and Reveal Sibanda were walking home after collecting money from an ecocash agent. They met the accused who was in the company of another person. The accused then queried the deceased's manner of dressing. The deceased responded by saying that it was his style and that it was none of the accused person's business. The accused then said the deceased acted like he owned the world. He then drew an okapi knife from his trousers and chased after the deceased and his brother, caught up with the deceased and stabbed him once on the left side of the back. The deceased had fallen down at the time that the accused stabbed him. It is also the State case that the accused person was never assaulted by anyone and that he did not suffer any injuries.

The accused person's versions, because there is more than one of them, are that, firstly, in the Defence Outline, the accused says that the deceased was in the company of four men when the accused and friend met them and he was visibly drunk. The accused greeted the deceased and his friends and respectfully told the deceased to dress properly; the deceased did not heed the advice but instead started to insult the accused telling him to mind his own business. Thereafter, the accused and the deceased exchanged harsh words. He was kicked by one of the persons in the deceased's company whilst another held his hand; he staggered to the ground and the rest of the group joined to assault him all over the body. He fought back to defend himself; he was hit with a beer bottle on the head and was also kicked in the mouth with what he believed to be a safety shoe; he lost three teeth; he was overpowered and then fell down; whilst lying down, one of the deceased's friends pulled out a knife and attempted to stab him; the accused rose from the ground and kicked the hand of the person who was holding the knife and the knife fell down; the accused then rushed to pick the knife. He said that once he had the knife his attackers then retreated; the accused, who was still furious, then pursued the deceased.

The second version, as contained in his evidence-in-chief, is that his friend and him met four young men dressed in a deplorable manner with their trousers pulled down showing their underwear. He commented on the manner of dressing and his friend laughed about this. He then rebuked them as to their manner of dressing. It was at that stage that him and the young men started shouting at each other. He then told them to desist from showing off. He then proceeded until he got to his place of residence. When he arrived at his house, there were some two young men who followed behind; they had beer bottles. They then questioned him about what he had been doing insulting their colleagues. They then started assaulting him and the four persons he had an altercation with before also came and all six swarmed him. They apparently stoned him and as he chased the deceased they were still pelting stones at him.

Now, there are significant issues on the two versions.

In the Defence Outline, the accused person met the deceased and company only once and was not followed to his home by two of them with the four joining later. In the second version, the accused was now at home and yet in the first version, as per the Defence Outline, the accused met the quartet resulting in the altercation and the fight whilst on the way to Mandava Shops. Again, in the Defence Outline, when he got possession of the knife, the deceased and his companions retreated but he followed the deceased as he was furious and was in severe pain. Yet, in this court, he told us that he followed the deceased and wanted to tear his shirt with the knife in order to scare him and because the others were still following him and pelting him with stones.

Asked to describe how he managed to set himself free, kick the knife from the hand of one of his attackers, get up and pick it, as they had pinned him to the ground and two of them held his hands from the back, others kicking him, others pelting stones at him, the accused person failed to do so and ended up just saying he just managed to do so.

Again, he lost three teeth, had a deep cut in the head, but none of the State witnesses observed all that.

The court can only draw the conclusion that the accused person's version of events crumbled on its own as almost always a concocted story falls apart as it is difficult to lie and maintain a fabricated version. We thus find that the accused's version is hogwash and this court cannot rely on it. We can only throw it out in its entirety.

We are thus left with the version of the State witnesses, which we believe is the only true version of what transpired on that day.

Reveal Sibanda told the court how the accused rebuked the deceased for his manner of wearing the trousers lowered down beneath his underwear. He told of how the deceased answered back and how the accused then said the deceased thought that he owned the world and then started chasing them resulting in the accused stabbing the deceased when the deceased had fallen down.

There is nothing irrational here as to render the version unbelievable in our view.

The third State witness, the police officer, confirmed that the accused was violent at the police station and that he was drunk.

It is our finding that the accused person did behave in the manner as alleged by the State witnesses.

Whilst Reveal Sibanda is a brother to the deceased and could have reason to lie to suit his side of the coin, he was never shown to be such during cross-examination. In fact, his evidence on the injuries on the accused was corroborated by the police officer and the Neighbourhood Watch member who this court's views as independent witnesses. There would not have been any reason for them to fail to observe the injuries on the accused person if they were there.

It is for these reasons that we believe the evidence of the State witness and reject the accused person's version.

The post mortem report, Exhibit 4, gives the cause of death as hypovolemic shock, left lung damage, severe pneumothorax, stabbing injury. The wound penetrated deep into the thoracic cavity and through the left lung. From the nature of the wound, clearly, excessive force was used.

Again, as we rejected the accused's version in its totality, we find that the okapi knife, Exhibit 5, in fact belonged to the accused person and not the deceased and his brother….,.

We then move on to determine what the accused person is guilty of.

We look at murder with actual intent, wherein the accused must have desired death; death must have been his aim or object. Again, in another leg of actual intention, the accused might not have desired death but he ought to have foreseen that death was certain from his action. With constructive intent, the accused person must have the requisite legal intention to kill, that is, he must have foreseen that there is a reasonable possibility that death would ensue from his actions. Although the accused carried a lethal weapon on the day in question, we are unable, from the facts, to infer that he actually desired death or that he foresaw that death was certain from his actions but he nonetheless continued to act in a reckless manner. Refer to FELTOE, A Guide to Criminal Law in Zimbabwe, 2005 edition…,.

It is for these reasons that we will find the accused person guilty of murder with constructive intent.

The 40 years old accused stands accused of the crime of murder which was alleged to have been committed on 20 September 2013 at Gore Village, under Chief Nyamhondo, in Mberengwa in the Midlands Province.

He is alleged to have caused the death of Chipochashe Ndlovu, a female infant aged 3 years, by forcibly having sexual intercourse with her per vaginam and per anum, and assaulting her all over her body with an unknown object, intending to kill her or realizing that there was a real risk or possibility that his conduct may cause death and continued to engage in that conduct despite the risk or possibility.

He denied the charge when it was put to him and went on to state that he never did all that was being alleged.

The State Outline was read for the record and produced as exhibit one. I do not intend to read it all over again. I shall, however, read the Defence Outline which was produced as exhibit 2 and it reads thus:

“The accused, having been served with the charge sheet informing him that he is facing a charge of murder as defined in section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], provides his defence outline as follows:

(1)The accused denies that he caused the death of Chipochashe Ndlovu in any way whatsoever.

(2)The accused denies that he had sexual intercourse with Chipochashe Ndlovu either through the vagina or through the anus.

(3)The accused person denies that he assaulted Chipochashe Ndlovu in any way whatsoever.

(4)The accused will state, that, on 20th September 2013, he was accompanied by Chipochashe Ndlovu to a goats pen within the family homestead where Chipochashe Ndlovu sat in the road or path while he fetched firewood from the homestead perimeter screen. The next time he looked at Chipochashe Ndlovu, he observed that she was in fits, frothing from the mouth, and had fallen to the ground. He will state that he carried her to the homestead and laid her in one of the huts. She later died that same day.

The accused will give evidence but will not call any other witness.”

Exhibit 3 was the accused's confirmed extra curial statement where he maintained the story in his Defence Outline as follows:

“I have understood the caution, I do not admit to the allegations levelled against me, that I killed Chipochashe Ndlovu, an infant of 3 years, by forcing sexual intercourse with her through the vagina or through the anus and used an identified object to cause bruises on her body and she died because I did not kill her.

I took Chipochashe Ndlovu to look for firewood in the nearby bush and later sat the deceased at a foot path whilst I searched for firewood. I later realised that the deceased had fallen to the ground as if attacked by fits. I carried deceased by the arm pit but she was unconscious until I reached home where she later died with froth coming out of the mouth. That is all.”

There is a material discrepancy between the accused's confirmed statement and his Defence Outline which he sought to rely on his evidence.

When he made his statement to the police, two days after the death of the deceased, matters were still very fresh on his mind. He stated thus:

“I took Chipochashe Ndlovu to look for firewood in the nearby bush and later sat the deceased at a foot path whilst I searched for firewood….,.”

In his Defence Outline, which was compiled two days before the trial, on 26 January 2015, which was after a period of one year four months, he stated as follows:

“The accused will state, that, on 20th September 2013, he was accompanied by Chipochashe Ndlovu to a goats pen within the family homestead where Chipochashe Ndlovu sat in the road or path while he fetched firewood from the homestead perimeter screen….,.”

The fourth exhibit was a report form for the alleged sexual abuse and rape cases which was compiled by a nursing sister at Musume Hospital who examined the remains of the deceased a day after her death.

The nurse recorded the following in the report:

(a) Fresh bruise above the right eye;

(b) Two (2) fresh bruises on each side of the abdomen just above the groins; and

(c) A fresh bruise on the back.

On the genital examination, she recorded thus:

Bruises seen on the labia majora.

She marked both sides of the labia majora and also shaded both sides of the libia minora but made no narration about the shading on the labia minora.

She noted that the hymen was intact and there was no bleeding.

She finally opined that penetration was very likely.

The nurse gave viva voce evidence…,.

Exhibit 5 was a post mortem report compiled by Doctor S. Pesanai. He examined the remains of the deceased five days after her death.

He observed that the body was decomposed and had severe blotting; there was a small laceration 0.5cm at 6 o'clock; the anus was dilated with rectal laceration on the posterior. The skull had separated sutures frontal and both parieto.

He further remarked, that, the separated sutures that join the cranial bone could have been caused by pressure of decomposing brain or due to head injury.

The doctor could not see any obvious cause of death due to decomposition but went on to state that the child was sexually abused and that there was penetration though the anus causing a laceration in the rectum.

He concluded that the cause of death was uncertainable due to decomposition.

There was, however, a lacerated rectum giving rise to the conclusion that the child was sexually abused.

The doctor gave viva voce evidence…,.

The evidence of two police officers was admitted in evidence, by consent, as it appears in the State Outline in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07].

Both officers were stationed at Mataga Police Station. The officers were Simbarashe Makope and Freedom Nyamutsamba. Their evidence, which was substantially materially similar, was that they did not know both accused and deceased prior to this case. On 21 September, they received a report of a suspected case of rape and murder at the station. They both proceeded to Nkomonye Village accompanied by one Shumeka Shumba, the informant.

On arrival, they found the deceased placed in a hut.

On examining the body, they observed bruises on the right side of the head, on the back, on the forehead, and on the abdomen; and froth coming out of the mouth. They then caused the body to be ferried to Musume Hospital for a medical examination. Later, the body was conveyed to United Bulawayo Hospitals for a post mortem examination.

They learnt, that, the accused had disappeared during a funeral wake. He was, however, arrested on 22 September 2013. An extra curial statement, exhibit 3, was recorded from the accused. He made his statement freely and voluntarily without any undue influence brought to bear on him.

The accused signed the statement.

By signing the statement, two days after the death of the deceased, the accused was signifying that what he had told the police was the correct sequence of events that took place on the fateful day.

He took Chipochashe Ndlovu to look for firewood in the nearby bush.

The assertion, in his Defence Outline, that he was accompanied by Chipochashe Ndlovu to a goats pen within the family homestead where she sat in the road or path while he fetched firewood from the homestead perimeter screen is clearly a hopeless after thought and must be rejected from the onset.

This court therefore makes a specific finding that the accused took the toddler with him to the bush on the pretext that he was going to look for firewood.

The accused…, departed from the contents of his Defence Outline….,.

A closer look at the accused's three versions shows that the Defence Outline is closer to the warned and cautioned statement and that his evidence in court became stranger and stranger as he continued to conjure a new defence as he went along. In the end, his testimony assumed not only chameleon colour changes in response to whatever was thrown at him at any one time but also the complexion of a fictious novel.

The accused surmised that the minor child may have heard rumours circulating in the village that he had killed his father.

The accused's suggestion was not only far-fetched but without foundation.

As correctly noted by counsel for the State;

(i) The accused did not raise this issue with the police when the warned and cautioned statement was recorded.

(ii) Secondly, the accused did not raise the issue in his Defence Outline.

(iii) Thirdly, the accused did not raise the issue in his evidence in chief; neither was the issue raised under cross-examination.

The inescapable conclusion is that the assertion by the accused that Andrics Moyo may have been influenced by villagers to create the damaging allegations against him are an after-thought.

In his defence case, the accused was unable to reconcile his Defence Outline and the confirmed warned and caution statement.

It became clear to us that the new version narrated by the accused in his Defence Outline and evidence was an afterthought.

On that basis we reject the accused's evidence.

The accused could not stand by his Defence Outline because there was no Defence Outline. His Defence Outline was a bare denial. He denied each and every allegation as contained in the State Outline.

He deprived himself the opportunity of rebutting the crucial allegations regarding the link between himself and the deceased's cellphone.

At the trial, the appellant did not proffer any defence. He was contented with proffering a bare denial as a defence to the charge.

The accused's denial of the assault on the person of the deceased was in direct contrast, not only to his warned and cautioned statement that was recorded only some six days after the event, but also to his Defence Outline that was drafted by his counsel only some six days before trial. In the warned and cautioned statement, the accused admitted striking the deceased with a knobkerrie more than once and to the deceased falling to the ground. In his Defence Outline, the accused expressly admitted attacking the deceased, albeit with a knobkerrie, and albeit “…, never severely…,.”

Still on the assault on the deceased, the accused's denial of having used a slasher contradicted his warned and cautioned statement. In that statement, he admitted to being armed with a knobkerrie “…, and an iron rod/bar…,.”

The accused stated, in his Defence Outline, that he was overcome by anger and emotions due to cumulative disputes with his wife and suspected that his wife was having an affair with the deceased.

In his warned and cautioned statement.., the accused states that the reason he killed the deceased was that his wife had advised him that she had consensual sexual intercourse with the deceased.

The accused raised a new defence, of self-defence, in his evidence-in-chief. For the very first time the accused suggested that he had struck the deceased with an axe because he was under imminent attack from the deceased. He stated, for the very first time, that he had been kicked by the deceased.

The picture that emerges is that the accused was inventing his defence at every stage of the case.

To both counts, the appellant's defence was basically a bare denial....,.

There was not much in the form of a defence that the appellant himself proffered...,.

The accused's confirmed warned and cautioned statement…, is somewhat different from the accused's Defence Outline and evidence….,.

These disparities between the accused's evidence and confirmed warned and cautioned statement indeed create problems for the accused's case. It puts into issue the truthfulness of the accused's version….,.

The other notable aspect in that statement is that the accused did not state that he acted in self defence at all…,. In fact, nowhere in that statement does the accused refer to the alleged rape of his wife by the now deceased….,. Lastly, in that statement, the accused did not mention at all that the now deceased was fatally injured when he hit his head against a 3 legged pot. No such pot is mentioned….,.

If this is what had transpired the accused would have told Cst Chigudu such a version and include it in his confirmed warned and cautioned statement on how the now deceased was injured. The accused would not have failed to make such material disclosures which were central to the police investigations.

The conclusion we make is that this latter version by the accused is a sanitized one and an afterthought.

There was a slight variation in the facts.

The State Outline said when Some Jim and his sons arrived, Emmanuel Mugwira asked them to leave. But, when canvasing the essential elements, and in mitigation, this was not quite the version that came out. The accused said following an exchange of words, the complainant assaulted Some Jim.

There was another slight variation on what happened next.

The State Outline said after Emmanuel Mugwira had asked him and his sons to leave, Some Jim approached the complainant and tried to strike him with a knobkerrie. It said Some Jim fell down together with the complainant. Some Jim asked his sons to help him. It was then that the accused allegedly took the knobkerrie and struck the complainant twice on the head. The complainant fell unconscious. Some Jim and his sons are said to have left together. But, in court, this is not what was said to have happened. The exchange between the court and the accused, in canvassing the essential elements, was this….,.

The trial court did not explore the variations in the facts.

What the accused and his witnesses said went unchallenged yet it is contradictory to what is contained in the State Outline - which contents the accused did not dispute when the essential elements were canvassed….,.

While the learned magistrate did the correct thing of allowing the accused to lead evidence from witnesses in line with section 70(1)(h) of the Constitution of Zimbabwe, Amendment Act (No.20), which states that any person accused of an offence has the right to adduce and challenge evidence, the procedural irregularity that he made was of not allowing the State to cross-examine those witnesses in order to ascertain the veracity of what they had said and what the accused had said. It is a rule of criminal procedure that if one party leads evidence from witnesses, the other party has a right to cross-examine those witnesses….,.

In the State Outline, it is stated that the accused lied to Mr Kahuni that he was related to the complainant and that the complainant had authorised him to take four beasts for the purposes of paying lobola for his (accused's) wife. Mr Kahuni is said to have allowed him to take the four (4) beasts which beasts the accused then sold and squandered the proceeds. It is obvious that what the accused submitted on special circumstances is totally different from and irreconcilable with the contents of the State Outline yet the learned magistrate allowed this to go unchallenged. As the accused was making his submissions, the court should have asked him to reconcile what he was submitting with the contents of the State Outline - but this was not done. The court has a duty to ask the accused to explain any contradictions for it to be able to make an informed decision on the existence or otherwise of special circumstances.

The court should not just accept submissions blindly….,.

There are contradictions between the contents of the State Outline and the submissions made by the accused as he addressed the court on special circumstances. Since the accused's submissions were not challenged I will take it that he, in a way, disputed the contents of the State Outline. So I will go by what he said.

The accused also failed to explain precisely what happened on the night in question.

In his Defence Outline, paragraph 6, he says as he approached the kitchen, he saw a man leaving and upon querying the deceased, he was provoked. However, in court he says he entered the kitchen and found the deceased with a man. He could not explain precisely to the court what happened as he entered. He says this man attacked him with fists, and he, in turn, turned on the deceased as he did not care much about this man. He could not clearly explain at what stage he introduced the axe.

The accused had so much difficulty in presenting the scenario that obtained on the night in question because he is trying to create an event that never happened hence the difficulty.

A concoted story will not stand the test of cross-examination in this court as usual. That's the predicament the accused finds himself in.

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….,.

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 is 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 accused who is facing a charge of murder as defined in section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] offered a limited plea to the lesser charge of culpable homicide as defined in section 49 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The State declined to accept the limited plea.

The charge is that on 15 May 2017, at Down Town Bar, Mashingaidze Business Centre, Zaka, Masvingo the accused unlawfully and with the intent to kill stabbed Peter Chinyaka once on the right leg and once on the collar bone causing his death.

Both the accused and the now deceased were well known to each other. It is common cause that on 15 May 2017 the accused and the 30-year-old now deceased were among beer patrons enjoying themselves drinking beer, dancing to music and watching TV in Downtown Bar at Mashingaidze Business Centre in Zaka, Masvingo. The State case is that when the accused entered the bar he pulled out an okapi knife and went on to challenge other beer patrons in the bar waiving the knife. It is alleged the now deceased felt offended and took up the challenge. The now deceased is said to have proceeded to kick the accused who fell down.

It is the State case that as the accused lay down he stabbed the now deceased on the right leg above the ankle after which he stood up and fled from the bar still armed with the knife. The now deceased is said to have chased after the accused out of the bar. The State alleges the accused then stabbed the now deceased with the okapi knife on the collar bone outside the bar after which he fled from the scene. The now deceased is said to have returned to the bar bleeding where he collapsed and died.

In his Defence Outline, the accused said he started to drink beer at the business centre at 1600hrs on that fateful day. The accused said he partook a cocktail of opaque beer called “scuds” which he mixed with a lethal brew called “chimusoja” with a very high alcohol content and also black label. The accused said when he was in Downtown Bar the now deceased pestered him asking for beer but the accused replied that he no longer had any money to buy the beer for the now deceased. The accused said around 2100hrs the now deceased assaulted him causing him to fall down. The accused said he stabbed the now deceased on the leg and fled from the bar. The accused said he later realized that he too had been injured on his leg but he has no recollection of how he got injured or at what stage. The accused said he was shocked to be arrested in relation to the now deceased's death.

The accused puts into issue all the evidence incriminating him.

It was indeed an arduous task to try and appreciate the accused's defence throughout this trial.

Was the accused denying stabbing the now deceased at all? If so, why then was he offering a limited plea of the charge of culpable homicide?

Is the accused alleging he only stabbed the now deceased on the leg and not on the collar bone?

Again, the accused seems to say that he was so intoxicated to such an extent that he has no recollection of how the now deceased was fatally injured. This would probably entail that allegation that the intention to kill was vitiated due to the high degree of intoxication.

These are the issues we grappled with in this case.

The evidence of the accused can be summarized as follows;

The accused said from about 1600hrs he spent $14= drinking the opaque beer, the lethal brew called “chimusoja”, and black label when this incident happened. He said when he went into Downtown Bar he found the now deceased drinking beer with one Francis Magweregwede. The accused said when the now deceased asked him to buy beer for the now deceased he told him that he no longer had money but the now deceased would not accept that. The accused said as a result the now deceased attacked him. He explained how the attack took place.

The accused said the now deceased followed him and slapped him in the face. The accused said he was carrying a knife which he had intended to use to skin a beast for the Beef Committee that day but the said beast was however not slaughtered. The accused said he pulled out the knife from his pocket. He said the now deceased kicked him on the head causing him to fall. The accused said he was kicked as he lay down trying to get up. He said when he managed to get up he fled from the bar. From that stage he said he has no recollection of what transpired. Besides this altercation the accused said he had no previous issues with the now deceased.

Under cross examination, the accused's evidence became muddled up further.

The accused denied waiving the said knife at all in the bar. He however admitted stabbing the now deceased on the leg. The accused insisted he had no recollection of what transpired as he was excessively drunk. He even disowned his confirmed warned and cautioned statement in which he admitted to have stabbed the now deceased twice, once on the leg and once on the shoulder. He now seemed to allege that these words were put in his mouth by the police....,.

A total of three (3) exhibits were produced by consent, being Exhibit 1, the post mortem report; Exhibit 2 the accused's confirmed warned and cautioned statement; Exhibit 3(a) the okapi knife; and Exhibit 3(b) being the certificate of weight relating to the okapi knife.