S v Chibwana (Criminal Application ) [2023] ZWCHHC 43 (24 November 2023)

1 HCC61/23 THE STATE Versus TAFADZWA CHIBWANA HIGH COURT OF ZIMBABWE MUZOFA J CHINHOYI, 26, 31 October, 12 & 24 November 2023 Assessors 1. Mrs Mawoneke 2. Mr Manyangadze Criminal Trial R. Nikisi, for the State Chikwangwani, for the accused MUZOFA J [1] On the 7th of September 2022 and at Chipunza Street Rimuka, Kadoma, it is alleged that the accused acting in common purpose with his accomplices still at large stabbed Ian Mharadze using an unidentified weapon with intent to cause his death or realizing that death may result but persisted in their conduct. Ian Mharadze subsequently succumbed to the injuries he sustained. [2] The State opted to proceed against the accused in the absence of his accomplices. As a matter of law, an accomplice can be charged and convicted even where the actual perpetrator is a witness or where for some reason the actual perpetrator cannot be brought to trial as in this case. [3] For his participation in the assault on the deceased, the accused was arrested and charged with murder in contravention of S47 (1) of the Criminal Code. [4] The accused denied the charge. In his detailed defence outline he narrated how the deceased attacked him. He did not even retaliate. His friends rescued him from deceased’s attack. In short, he said he had no knowledge who caused the deceased’s death. HCC61/23 The State Case [5] The state case is that the accused and his accomplices were at Kumbowedza Hotel, Kadoma drinking beer. One Panashe Mugota was struck on the forehead by the accused. Panashe went back home where his wound was cleaned and bandaged. He returned to the Hotel with the deceased who inquired who struck Panashe. [6] A misunderstanding ensued between the accused with his accomplices on one side and the deceased with his colleagues on the other. When the Hotel closed, the deceased and his friends intended to go to another and continue imbibing. [7] On their way they met the accused who appeared to have been waiting for them. The accused challenged the deceased and friends. He charged towards them. [8] The deceased pulled a knife ready for attack. The deceased’s friends fled from the scene. They ran along Mariga Street. The deceased also fled but took a different street towards Chipunza Street. [9] The accused and his colleagues pursued the deceased and caught up with him. They stabbed him and left him lying helplessly along a dusty road. [10] The state produced the following exhibits by consent of the defence. i. A post mortem report. The cause of death was recorded as hypovolemic shock, laceration of the external artery and severe groin trauma due to stab wound. ii. The accused’s confirmed warned and cautioned statement. His statement is similar, word for word to his defence outline. In short, he said he was attacked by the deceased and friends. The accused’s friends came to his rescue and pursued the deceased. He remained lying by the road wounded. A good Samaritan one Kudakwashe Gangira assisted him. iii. The indications, the sketch plan and affidavits sworn to by medical personnel that examined the deceased’s body. iv. The evidence of the following witnesses as summarized on the outline of the state case was formally admitted into the record of proceedings. Innocent Nyikadzino, Edmore Nkata, Cuthbert Chimweta, Mafios Dube and Sunweight Gavaza. HCC61/23 [11] The witnesses had no knowledge of what transpired on the fateful day. They got involved in the case after the commission of the offence. Their evidence can be summarized as follows. [12] When the deceased was chased, he was was finally caught up with and assaulted near No 9 Chipunza Street Rimuka where Juliet Chareuka and Innocent resided. Innocent assisted the deceased who was still conscious by then. The deceased he gave Innocent his address so that he may advise his relatives. Innocent proceeded to the address where he advised the deceased’s relatives. The relatives then went to collect the deceased. Edmore Nkata’s evidence was similar to Innocent’s evidence. [13] Cuthbert Chimweta was approached by deceased’s relatives to assist them with transport. He used his motor vehicle to take the deceased to Kadoma General Hospital. [14] Mafios Dube a police officer stationed at Battlefields police station, drove the deceased’s body from Kadoma General Hospital to Parirenyatwa Hospital in a police vehicle. Sunweight Gavaza a police officer also attended the scene of crime. The deceased was still alive. He completed a request for medical examination for the deceased to access medical attention. [15] Four witnesses gave oral evidence. Panashe Mugota was the first witness. On the fateful day, he was in company of Kelvin Sanzu, Benjamin Mapuranga and Noel Musauli drinking beer at Kumbowedza Bar. He went outside the verandah. From nowhere he was struck on the head near his left ear by a bottle. He did not see who hit him. [16] His friends took him home, cleaned his wound and bandaged him. The deceased was a tenant at accused’s residence. He arrived and inquired as to what happened. After being told, the deceased mocked the witness for being a victim of an assault. [17] Later they together with the deceased returned to the bar. He said they wanted to drink beer. The assertion was highly contested. Under cross examination it was contended that they returned to revenge. [18] When they got to the bar, deceased inquired who had assaulted the witness. The accused teased the deceased because he thought he had assaulted the witness. They started arguing. They left the bar. HCC61/23 [19] On their way home the accused and friends caught up with them. The accused challenged them that he cannot be bullied by other men. The deceased retrieved a knife from his pocket. The accused ran away, the deceased pursued him. The accused’s friends followed and pursued the deceased. He and his colleagues took to their heels and went straight home. [20] After a few minutes someone arrived at their place and advised them that the deceased was badly injured. They went to the scene of crime. They attended to the deceased and caused him to be conveyed to Kadoma General Hospital. [21] Under cross examination he confirmed that they were very drunk on the day. It was apparent that on this night a gang fight occurred. The deceased’s gang pitting the accused’s gang although Panashe would not admit it. [22] Panashe was not candid why they returned to the Hotel. He was evasive. However, we did not find it normal for a person having been struck and wounded now bandaged, to go back to drink beer. He did not go to report neither did he seek medical attention. The probabilities are that when the deceased and colleagues proceeded to the Hotel it was not for the sole purpose of drinking but to take revenge for the assault on Panashe. [23] However, Panashe’s evidence established that the deceased was the main aggressor who produced a lethal weapon amongst the antagonists. He pursued the accused who was fleeing. Most crucially he did not know who assaulted the deceased. [24] The second witness was Juliet Chatewuka. Juliet’s evidence was simple and straight forward. The waring gang finally landed in her yard. This was around 0200 hours when people should be in deep sleep. She saw three men and heard noise and a voice threatening someone with assault. She called through her window for them to solve their differences amicably. For that she was threatened. She could not identify the people she called her son in law who assisted the deceased when his assailants left. [25] Charity Chikwawa was the investigating officer. She recorded statements from witnesses. She also recorded a statement from the accused which was subsequently confirmed. Indications were made by witnesses Kelvin, Panashe and the accused. She came up with a sketch plan which was produced as an exhibit. [26] Her responses under cross examination were damning to the state case. She conceded that the only link between the accused and the offence was an utterance heard