S v Bob (18 of 2024) [2024] ZWCHHC 18 (26 January 2024)

1 HCC18/24 HCCCRB 106/23 THE STATE versus INNOCENT BOB HIGH COURT OF ZIMBABWE BACHI MZAWAZI J CHINHOYI, 16 November 2023 to 26 January 2024. Assessors: Mr. Manyangadze Mr. Kamanga Criminal Trial T. H. Maromo, for the State M. Burukai, for the Accused BACHI MZAWAZI J: Innocent Bob had a fist fight with the deceased Isaac Tsingano in a night club on the night of the 9th of June 2022. Issac Tsingano later died on the 11th of July 2022 at Sally Mugabe Central Hospital. The cause of death as per the autopsy report, admitted into evidence as exhibit 2, was tripartite. It was stated as brain damage, brain abscess and head trauma. As a result, accused was arrested and charged with the murder of the deceased in terms of s47 (1) of the Criminal Law Codification and Reform Act [Chapter 9:23]. The brief non-contentious narrative of facts is that, the deceased and his colleagues Panashe Sabore and Gerald Shumba and another were drinking beer at a bar. The accused arrived in the company of Tafadzwa Bhuka. Panashe Sabore is the first State witness and a close relative of the deceased, whilst the other two were mere friends. It is not in dispute that Tafadzwa Bhuka complained about the malfunctioning snooker token he had purchased from Joel Josh Mayuni, the bar tender at the behest of the accused. A trading of insults then ensued between the two culminating into a fist fight. HCC18/24 HCCCRB 106/23 At some stage both the deceased and the accused ceased to be spectators of the show and got involved in the fight. The intensity of the initial exchange of blows then translocated to the newcomers who then engaged in a fierce battle with the deceased having an upper hand. It is alleged that both opponents ended on the floor with the deceased on top of the accused pummeling him with blows. This is the moment where the accused is said to have reached out for a full beer bottle and struck the deceased once, sideways on the forehead with the flat butt of the same as demonstrated by the first witness in court. What is in dispute firstly, are the roles of the accused and the deceased when they meddled in the fight between the barman and Tafadzwa. Secondly, whether there was the use of the alleged weapon in the physical confrontation between the deceased and the accused? Lastly what caused the injuries that ended up killing the deceased? The divergent views as to the questions posed above emerge from the testimony of the State witnesses making up the State case and the accused’s own version of the events, his defence. Initially the State had lined up twelve witnesses but only three gave oral evidence. The evidence of the rest was admitted as summarized by consent. In addition, the sketch plan, confirmed warned and cautioned statement, autopsy report and other attendant, exhibits were also produced without challenge. Most of the State witnesses including, Panashe Sabore, the first witness and Gerald Shumba all say that, the deceased intervened to stop the fracas between Bhuka and the barman only to be stopped by accused. They stated that accused wanted to enjoy the spectacle by seeing the two in a brawl. Notably, accused ‘s then friend Bhuka who started the whole saga also stated that accused joined in the fight to deter the deceased from pacifying the situation. An irrefutable assertion was then made that at the HCC18/24 HCCCRB 106/23 time Bhuka’s statement was recorded, close to four weeks after the incident he had defected to the deceased’s camp as he had taken over accused’s wife with whom he is currently staying with. As such his evidence will cautiously be approached. On the other side, one of the State’s own witnesses, the man who was the key player in the first fight Joel Josh Mayuni’s written evidence tendered uncontested, is more corroborative of the accused’s defence than the State case. He testified that it was the deceased who was both the aggressor and the provoker who had stopped the accused from stopping the initial fight between himself and Tafadzwa Bhuka not the other way round. This witness clearly states the role of the accused as that of an intervener and peacemaker not that of an aggressor as opposed to the averments by Sabore, Gerald Shumba and Bhuka. Joel Josh Mayuni, in sentence number 8, of his statement as paraphrased by the summary of the State outline states as follows; “The deceased then confronted the accused person and an altercation between them then commenced as well. He later saw the accused and the deceased both lying on the ground grabbing each other.” The import of that brief statement is that not only was he fighting Bhuka but a parallel fight took place between the deceased and the accused. On the issue of the bottle, both Bhuka and Mayuni, again, never mentioned the use of any weapon let alone a bottle. Bhuka did confirm that accused had purchased some bottled liquor but he never witnessed the bottle being used as a weapon. In contrast, on the second aspect, the State witnesses attested that during the heat of the fight, accused picked a bottle and struck the deceased on the forehead with the flat butt of the bottle. The two witnesses who testified in court differ as to where the bottle had been positioned before the fight. One said it was on top of the counter and the other that of the snooker table. HCC18/24 HCCCRB 106/23 On a skeptical examination of the aspect of the beer bottle, what is interesting is that all the people who were present said that it was full. In addition, that there was a real pulling and shoving of the two opponents during their fight in the arena where the snooker table was situate. This wrestling match ended with the deceased dominantly sitting on the accused’s chest assaulting him. We are told that is the time when the accused grabbed the empty bottle and used it to strike the deceased. Snooker table or counter they are both higher grounds to a person lying down. Surprisingly, the witnesses said the bottle was on a counter of some sort, if one is to picture the accused lying down then pulling a bottle on a counter, it does not add up. If he was in a sitting position or standing maybe it would make some sense. The State witnesses failed to demonstrate how a man who has been floored and is being beaten then reached a counter or the snooker table to grab a bottle without shifting to a standing or sitting position. Further, if the bottle was on the snooker table it was bound to fall and break. It defies logic that a beer bottle remains full and intact in the midst of a beer boxing match. In addition, the first witness admitted under cross examination that both himself and the deceased were drunk. He may have failed to visualize clearly the events of that day when he said a full beer bottle was used sideways with the flat butt striking the deceased. Logically, this does not make sense. A person under the heat of blows does not chose to strike with the flat part of a bottle and sideways. This is not synonymous with beer hall tussles involving the use of beer bottles. Normally, it is struck randomly, in a striking up and down position in order to ward off the blows not sideways with the flat part. This in turn casts doubt on the accused picking and using the bottle at all as alleged. Evidently, that doubt lies in favour of the accused as HCC18/24 HCCCRB 106/23 regards the use of the bottle and dispels the notion that the deceased was struck with a beer bottle. Accused person in his defence stated that after he had seen the bar tender assaulting his then friend Bhuka he intervened by shutting the security gate demarcating the beer counter from the bar floor. He insisted and maintained without variation that the deceased then attacked him. He was head butted and felled by the blow and was assaulted by the deceased. He said it was not vice versa that the deceased was the mediator. On that note, the deceased’s testimony tallies with that of Joel who the court finds credible and had nothing to hide. Further, the accused s