S v Chirimudombo (582 of 2023) [2023] ZWHHC 543 (24 October 2023)

1 HH 582-23 CRB 49/23 THE STATE versus LIBERTY CHIRIMUDOMBO HIGH COURT OF ZIMBABWE MUTEVEDZI J HARARE, 12 May & 24 October 2023 Assessors: Mr Gweme Mr Jemwa Criminal Trial V Ngoma, for the State R Gasa, for the accused MUTEVEDZI J: The accused Liberty Chirimudombo faces a charge of murder. The allegations against him are that on 23 August 2022 at OK Mbare complex, he assaulted Munashe Mandebvu (the deceased) on his back and on the head with a wooden stick. The state alleged that he did so with intent to kill the deceased or realising that there was a real risk or possibility that his actions could lead to death but regardless of that realisation of the risk or possibility he persisted with his conduct. The deceased died from the injuries he sustained from the assault. In detail the state alleged that the deceased was apparently homeless and lived at OK Mbare premises and survived from hand outs given to him by some workers at the shop whom he assisted with labour. On the day in question he was behind the shop complex with one Trish Katonha and Aiti Chigwada both employees at OK. The accused approached them and demanded that the deceased hands over to him a pair of sandals and money amounting to USD $ 29 and ZW$ 1 600 which he claimed the deceased had stolen from him. The deceased denied such theft. An argument ensued. The accused picked a wooden stick with which he pointed at the deceased. Sensing violence, Aiti Chigwada intervened and pulled the accused towards the exit from the premises. The deceased followed. At the gate, both the accused and the deceased continued their argument. They squared up to each other spoiling for a fight. Trish Katonha once more intervened and HH 582-23 CRB 49/23 cautioned them against fighting. They both did not heed the warning. The accused then struck the deceased on the head, on the legs and on the back with the wooden stick which he had earlier picked. The deceased bled from the head as a result. The deceased ran back into the premises where he picked up bricks with which he threatened to hit the accused. He did not do so as he was stopped by Aiti. He ran back to the exit. The accused followed him. Thereat he struck the accused with a brick and once more ran back into the premises’ car park. The accused pursued him. In the car park a mob gathered and surrounded them. It urged the deceased to proceed to the police to report because he was wounded. The deceased obliged and went to Matapi Police Station to report. On 24 August 2022, the deceased’s injuries got worse. He was in pain and sought assistance from one Tongoona Chitiki who escorted him to ZRP Mbare post. At that time he could hardly speak. He was referred to hospital where he was attended to but died shortly thereafter. Doctor Laurelien Marlagai Martinez examined his remains and concluded that the death was due to brain damage, perenchimatos haemorrhage and severe head trauma secondary to assault. The accused denied the allegations. His defence was that he knew the deceased as a drug peddler in Mbare. Three days prior to his death, the deceased had stolen his money and sandals. The accused said he had been looking for the deceased since the night he stole from him. On 23 August 2022 around 1100 hours he then saw him at Ok Mbare walking towards the back of the complex. He followed him but once he noticed that he was being followed, the deceased took off. He ran towards the back of the shop. The accused said he pursued the deceased and found him talking to three employees at the shop who had already given him food. He demanded his sandals and money from the deceased. The deceased in turn mocked the accused that he slept at the veranda of Ok Mbare shop because he was homeless. That infuriated the accused who threateningly advanced towards the deceased still demanding his property. The deceased shouted back and a melee ensued. They both pushed and shoved each other. The deceased was holding a tin of baked beans with which he pointed at the accused. The accused picked up a broken broom handle which was about a metre long and threatened the deceased in return. One Kaitano, who during the trial turned out to be Aiti Chigwada tried to restrain them without success. He then advised them that management at the shop were against violence and as such the two of them had to go outside the premises to iron out their differences. The accused said he had given up the argument but as he walked towards the gate, the deceased followed him with a half brick in hand challenging him to a fight. He poked the accused in the face and belittled him as a small boy who could not beat him. The HH 582-23 CRB 49/23 accused became angry and frustrated. He was still holding the mop handle whilst the deceased still menacingly brandished the half brick. The accused then turned back intending to assault the deceased with the mop handle. The deceased turned his head as he tried to flee. The accused then hit him with the mop stick. Unfortunately, so alleged the accused, he did not check exactly where he struck the deceased. The assault happened fast and in the heat of the moment. The deceased then ran towards the gate where there was a pile of bricks. He threw down the half brick and picked a full one which he hurled towards the accused. It hit the accused on the hand. He said he fell down and when he rose, the deceased had ran out through the gate. He followed him and noticed that he had been apprehended by a mob. He observed that the deceased was bleeding from the head. The accused was also bleeding. The mob wanted to take them both to the police. The deceased however refused and was taken away by his friends. The next day, the accused said he did not come to work but when he did two days later he was advised by Kaitano that the man he had fought with had died. The news shocked him because he had only lightly assaulted him with a broken mop handle. In any case, when he had last seen him, the deceased was energetic and did not appear like he had been seriously injured. He rounded his defence by arguing that he did not intent to kill the deceased. There was no bad blood between them. They were both angry at each other and the fight was a light one in which they both had participated. He did not even foresee that death could result. He prayed for his acquittal. State case The prosecutor opened her case by applying for the formal admission of the evidence of witness Charles Dalufi, Tongoona Chitiki and Doctor Martinez in terms of s 314 of the Criminal Procedure and Evidence Act [Chapter 9:07]. The defence consented. The evidence of the three witnesses was therefore formally admitted in terms of the said provision as it appears on the state’s summary of evidence. Tongoona Chitiki’s testimony was basically that on 24 August 2022 around 0200 hours he was approached by the deceased who was distressed and could hardly speak. He then escorted the deceased to the police where he was referred to hospital. Charles Dalufi is a police officer. All which comes out of his testimony is that he was the investigating officer in the murder case. Likewise Doctor Martinez’s testimony related to his official function as a pathologist. His findings were detailed in the post mortem report which was tendered by consent and admitted as exhibit 1 in the trial. The cause of death was not contentious. It is as stated earlier. The prosecutor also sought and obtained by consent, the production of the accused’s confirmed, warned and cautioned HH 582-23 CRB 49/23 statement. It became exhibit 2. It was confirmed by a magistrate at Mbare Court on 19 October 2022. In it the accused repeated the same issues which he stated in his defence outline. Trish Katonha She works at Ok supermarket. She was present when the accused and the deceased fought. The fight started in exactly the way described in the state papers and by the accused in his defence outline. She then advised the protagonists to go and fight outside the premises. The