S v Chagunda (596 of 2023) [2023] ZWHHC 480 (16 June 2023)

1 HH 596-23 CRB NO. 27/23 THE STATE versus PROSPER CHAGUNDA HIGH COURT OF ZIMBABWE MUNGWARI J HARARE, 8 March & 16 June 2023 Criminal Trial Assessors: Mr Barwa Mr Kunaka V Ngoma, for the State D V Gapare, for the accused MUNGWARI J: Prosper Chagunda of Ndamba village in Mudzi (hereinafter referred to as “the accused”) appeared before us charged with the crime of Murder in contravention of s 47(1) of the Criminal Law( Codification and Reform) Act [Chapter 9:23] (hereinafter referred to as “the Code”) The allegations against him are that on 22 April 2022 at Mapombo business centre in Mudzi, he unlawfully and intentionally caused the death of Nyasha Mungazi (hereinafter referred to as “ the deceased”) by striking him with a log on the head or realizing that there was a real risk or possibility that death may occur, persisted with his conduct despite the risk or possibility. The deceased died from the injuries sustained during the attack. In detail, the state’s allegations are that on the night of 22 April 2022 the accused who had a long-standing grudge with the deceased, spotted him standing at Tsoka shop. He was holding his phone. The accused armed himself with a log and approached the deceased. Without any provocation whatsoever, the accused struck the deceased on the head with the log. The impact caused the deceased to fall to the ground. He started bleeding from his mouth, nose and head. The accused fled the scene. One Sylvester who had witnessed the assault gave chase but was outsprinted. He was unable to apprehend the accused. A short while later, the accused returned to the scene with a half brick in hand. He threatened to strike the deceased again. Some patrons from nearby shops disarmed him while others rendered HH 596-23 CRB NO. 27/23 first aid to the deceased. The deceased’s father was informed of the incident and quickly made his way to the scene. He ferried his son to the hospital where he died shortly after admission. A post mortem examination conducted upon the remains of the deceased concluded that the cause of death was intracranial hypertension, global subdural hematoma and severe head trauma. The accused pleaded not guilty to the charge and presented a long and rambling defence outline. The gist of which is as follows: He claimed that he acted in self-defence when he struck the deceased with a log. The deceased had unlawfully attacked him. He explained that he had been bullied and harassed by the deceased for a long time. The deceased also mocked him by making reference to his crippled hand and being an orphan. All those issues, so he argued, made him a vulnerable member of society. In 2018, the bullying reached a crescendo. It morphed into a robbery attack by the deceased as a result of which the accused sustained serious injuries and lost his phone and money. After the incident the deceased fled the area and was not seen again. He only returned two years later in 2020. The accused said he met him by chance. The deceased allegedly declared that there was still bad blood between them and that the grudge could only cease with the death of the accused. From that day onwards the accused lived in constant fear of being attacked by the deceased. On the day in question, he went to the shops to buy meat for supper. While he was in the shop, the deceased demanded that he approach him. The accused refused. That refusal angered the deceased. In front of everyone in the shop, the deceased loudly declared that the accused should bid farewell to those around him, as they would be the last people to see him alive. The deceased held a long object in his hand which added to the accused’s trepidation. Due to the deceased’s threats, the accused’s father-in-law Chinake Chinake who was nearby and had heard the commotion, advised the accused that it was not safe for him to walk alone and that he required an escort to go back home. The father-in-law and another man escorted the accused for a short distance before leaving him. As the accused continued on his way home, the deceased suddenly appeared and attacked him with a stone, hitting him on the elbow. The accused ran back to the shops to seek assistance. He had to stay at the shops until when it was almost 10pm before he attempted to head home once more. However, the deceased suddenly appeared out of nowhere and startled him. In a state of panic, the accused instinctively picked up a nearby object and hit the deceased on the head with it. He then ran back towards the shops. He had a stone in hand, fearing that the people at the shops would HH 596-23 CRB NO. 27/23 assault him for causing the injuries on the deceased. When he realized that they were not going to attack him, he settled down to assist the deceased and poured water on him in an attempt to revive him. He told the court that he never intended to kill the deceased but had acted in self-defence as he feared for his own his life. In his view, the blow that he dealt to the deceased was not fatal. The deceased died due to the delay in getting medical attention. The state’s case The prosecution opened its case by seeking admission of the autopsy report compiled by Doctor Yoandry Olay Mayedo a pathologist stationed at Parirenyatwa Hospital on 28 April 2022. During the examination, of the remains of the deceased, the doctor noted serious head injuries. These included, a right temporal parietal subdural hematoma, a bone fracture on the skull and a global subdural hematoma. He concluded that the cause of death was due to intracranial hypertension, global subdural hematoma and severe head trauma. The presence of a skull bone fracture indicated the likelihood of an act of severe violence having been perpetrated on the deceased. With the consent of the defence, the postmortem report was admitted into evidence as exhibit no 1 and the cause of death became uncontentious. The court also admitted the accused’s confirmed, warned and cautioned statement which was recorded at ZRP Makosa on 26 April 2022 and confirmed by a magistrate sitting at Mutoko Magistrate’s Court on 12 May 2022. The statement was admitted with the consent of the defence as exhibit no 2. In the statement the accused mentioned the following under caution: “Indeed, I have understood the warned and cautioned statements of the offence. The allegations I am facing are true and that is what happened. This happened whilst defending myself from the deceased person who always assaulted me. I struck him once with a log intending to get a chance to escape from him since I was afraid.” The sketch plan depicting the crime scene was also tendered. It was drawn by sergeant Mujakachi and witnessed by Constable Gono. It was drawn from indications made by Sylvester Mucharwei, Chinake Chinake, Givemore Tsoka and Madya Mungazi who appended their signatures to it. It was produced and tendered as exhibit 3 and was admitted into evidence by consent. In addition to the above, the evidence of police details Peter Mutize and Darlington Mujakachi was formally admitted in terms of s 314 of the Criminal Procedure and Evidence HH 596-23 CRB NO. 27/23 Act [Chapter 9:07] as it appeared in the state’s summary of evidence. It established the following relevant facts: 1. That Peter Mutize arrested the accused at his house, four days after he had deserted it. He handed over the accused to Darlington Mujakachi who had looked for him and could not account for him. 2. Peter Mutizhe investigated the matter and visited the scene of crime. He noticed blood stains on the wall of the shop as well as the floor where the attack took place. 3. A warned and cautioned statement was recorded from the accused according to law. Oral Evidence In addition to the above evidence the State led oral testimonies from Sylvester Mucharwei, Chinake Chinake, Givemore Tsoka and Madya Mungazi. We deal with the evidence below: Sylvester Mucharwei (Sylvester) The witness a 24 year old man was employed as a part time shop keeper at Makombo shop and was acq