S v Chavhakaira (CRB 14 of 2017; HH 293 of 2017) [2017] ZWHHC 293 (29 March 2017)

1 HH 293-17 CRB 14/17 THE STATE versus SUCCESS CHAVHAKAIRA HIGH COURT OF ZIMBABWE CHITAPI J HARARE, 16, 20, and 29 March 2017 Criminal trial H M Muringani, for the state G Mhlanga, for the accused CHITAPI J: The accused is charged with one count of murder and another count of attempted murder as respectively defined in s 47 and s 189 as read with s 47 of the Criminal law (Codification and Reform) Act [Chapter 9:23). The indictment in count 1 alleged that on 4 February, 2008 and at Makalanga Farm, Mazowe, the accused acting with intent to kill unlawfully shot the deceased Innocent Numwitike with a 303 rifle on the back and chest causing injuries which resulted in the shot victim’s death. In count 2 it is alleged that on the same date and place and using the same weapon as in count 1, the accused unlawfully attempted to kill Moreblessing Chinoripi by shooting him once on the left arm, his intention being to kill the complainant or realising the real possibility or risk that his conduct might cause death. The accused pleaded not guilty to both charges. The accused elected to give a defence outline in which in respect of count 1, he pleaded that he accidentally shot the deceased in the course of executing his duties as a security guard at the farm in question. He alleged that around 8:00 pm on the night of 8 February, 2008, he was patrolling the farm where his duties were to guard against or prevent theft of crops and farm equipment including a water pump. He came across the deceased in count 1 and the complainant in count 2 within the farm at the water pump situated area. He confronted the two persons whom he believed to be thieves. He HH 293-17 CRB 14/17 did not know them and they also failed to give him a reasonable explanation for their presence. He decided to shepherd them to the farm house. He outlined that the two persons “bolted in flight” and he then fired a warning shot to make them stop and arrest both. When he fired the shot, he thought that he had fired the shot away from the fleeing suspects. However, because it was dark and the suspects were in flight he realised afterwards that he had shot one of them. He outlined further that when the deceased fell down after being shot, the complainant in count 2 turned back and charged at the accused. He threw an object at the accused but it missed him. In fear of being disarmed and the gun being turned against him, the accused then fired a second shot to ward off the imminent attack. It is this shot which hit the complainant on the arm and he ran away. The accused’s defence in essence was therefore one of causing death by accident and self defence in respect of the first and second counts respectively. It followed from the defence outline that the actus reus was common cause in that the accused admitted that he shot the deceased and also fired the second shot which hit the complainant on his left arm. The task of the court is therefore to determine the accused’s state of mind or intention when he committed the admitted acts and consequences which resulted therefrom. The prosecutor sought admissions of a number of pieces of evidence from the defence counsel in terms of s 314 of the Criminal Procedure and Evidence Act [Chapter 9:07]. The admissions were duly made and related to the following evidence: (a) Exhibit 1 – was the postmortem report on the examination of the deceased’s remains by Doctor Chimuka. The report shows that the deceased was 18 years old. The doctor observed two wounds on the deceased’s body being an anterior and posterior ones. They were the entry and exit wounds caused by the gunshot. The wounds showed the trajectory of the shot to have gone through the heart. The cause of death was given as penetrating chest trauma. (b) Exhibit 2 – was the medical report by the Doctor Mukungunungwa following his examination of the complainant in count 2, Moreblessing Chinoripi. The report was compiled on 5 February, 2008. He observed a gunshot wound on the mid shaft of the complainant’s forearm. The injury was described as severe with a possibility of permanent injury. HH 293-17 CRB 14/17 (c) The evidence of the following witnesses as set out in the summary of their evidence as per the state summary Annexure A, was admitted and will be set out in brief. (i) Joselin Andrigu – is the owner of Makalanga Farm where the shootings took place. She is the employer of the accused. On the fateful day she handed the accused the 303 riffle serial No. TV 1995 when he reported for duty. The rifle was loaded with three rounds of ammunition. She received a report of the shooting and proceeded to the scene where she observed the deceased who had been shot on his back and chest. She identified the fire-arm which she had given to the accused when he commenced duty. (ii) Rueben James is a resident of Makalanga Farm. He reported for duty and was supposed to relieve the accused. He proceeded to the fields and passed through the accused’s quarters. He observed the firearm which had been abandoned outside the accused’s quarters. He took possession of the firearm intending to hand it over to the accused who was not within the immediate vicinity of the witness. He then met up with police officers who had been summoned to attend the scene. He handed the firearm to the police. The accused was nowhere to be seen. (iii) Ranganai Tivenga resides at Safire Mbembe Farm within the Mazowe area. He was at home on the day of the shooting in this matter. The complainant in count 2 Moreblessing Chinoripi came to the witness’s residence and made a report to the witness. He observed that the witness had a gunshot wound on his left arm. He drove the complainant in his car to the scene of the shooting. On arrival the witness observed the deceased lying in a pool of blood. The witness drove to the local station with the complainant where the complainant made a report. In addition to the admitted evidence the state led oral evidence from the complainant in count 2. Moreblessing Chinoripi. Before dealing with his evidence, it is convenient to deal with evidence of another witness, Witness Munyaradzi Mabika whom the court was advised, was deceased. His evidence was admitted by consent. He was the attending police detail. He received the shooting report, attended the scene and deployed police details to guard and secure the corpse was as it at night. On the following morning he revisited the scene. He observed wounds on the HH 293-17 CRB 14/17 deceased’s back and chest. He also recovered a spent bullet cartridge and the 303 riffle which was used by the accused. He went to the accused’s residence and found it deserted. He arranged for the collection of the deceased’s remains to Concession Hospital. Reverting to the evidence of Moreblessing Chinoripi the complainant in count two, he gave evidence that he stayed at P. T. C complex in Mazowe. He repairs tyres and also operates a commuter vehicle. The deceased was his nephew and workmate. He testified that in the morning of 4 February, 2008, the accused came to his home stead purporting that he had 100 litres of diesel which he was selling. He introduced himself as one of the children of Mrs Mapanda. The Mapandas owned the farm where the deceased was shot. He gave out that Mr Mapanda had engaged some casual labourers who wanted payment and that this was reason why Mr Mapanda was selling 100 litres of diesel to raise funds to pay the casual labourers. It was agreed that the complainant would later in the day upon his return from Harare proceed to the Mapanda Farm (Makalanga Farm) and see the diesel. Around 3 pm - 4 pm and after convincing his nephew, the deceased, to accompany him, the complainant proceeded to Makalanga farm via some unidentified bar. They found the accused at this bar and proceeded with him to Makalanga Farm. When the trio got to a turn off leading to the farm house, the accused said that he wanted to check on some farm workers in the fields. The complainant followed him leaving th