S v Chitate & Anor (CRB 88 of 2019; HH 267 of 2021) [2020] ZWHHC 267 (29 September 2020)

1 HH 267-21 CRB 88/19 THE STATE versus ALFRED CHITATE and ALOUIS HUNGWE HIGH COURT OF ZIMBABWE CHITAPI J HARARE, 29 September 2020 Criminal Trial Assessors: Mr Msengezi Mr Gweme A. Masamha, for the State G. Machingauta, for the 1st accused C. T. Kathemba, for the 2nd accused CHITAPI J: The two accused pleaded not guilty to two counts of murder which occurred on 15 February, 2018 at a place between Cotton Company of Zimbabwe and Mashonaland Tobacco, along Bulawayo – Harare Railway line adjacent to Lytton Road. The place is a known hangout for day prostitutes, drug peddlars and other unlawful vices which occur there. In the 1st count the two accused were alleged to have assaulted the deceased Ernest kowo, with an iron bar and stabbed him with a knife on his body thereby causing injuries from which Ernest Kowo died. In the 2nd count, the two accused were alleged to have stabbed the deceased Tawanda Chirume three times on the stomach thereby causing injuries from which Tawanda Chirume died. In regard to both counts, the indictment alleged that the accused acted with intent to kill or with a realization of the real risk or possibility that their conduct might result in death but nonetheless persisting in the conduct despite such realization. Both accused filed defence outlines. In regard to 1st accused, the gist of his defence was that he was not present at the scene of the brawl between the 2nd accused and the deceased persons when the brawl occurred. The 1st accused averred that he only arrived at the scene sometime after HH 267-21 CRB 88/19 the altercation aforesaid had already happened and that he found many people including police officers in the surrounds of the place where the deceased Ernest Kowo lay on the ground. He outlined that the only reason for his arrest was that police had information that he had been seen in the company of the 2nd accused on that day. He outlined further that he did not see the body of the now deceased Tawanda Chirume because by the time that the 1st accused arrived at the scene, Tawanda Chirume had already been ferried to the hospital as reported by people at the scene. The 2nd accused’s defence outline was a little more detailed than that of the 1st accused. He outlined that he had been away from his Epworth home for sometime before he returned on 14 February, 2020 only to find that his live in wife had left for an unknown destination leaving the house deserted. He then decided to go to the railway marshalling yards along Lytton Road to scrounge for wheat spillages from train wagons which will have carried offloaded produce that includes maize, wheat and other produce. The place he went to was also the same area where he fortuitously encountered his “wife” who was in the company of some six or seven women. The 2nd accused outlined that he had an encounter with the two deceased persons. He only knew Ernest Kowo, the deceased in the 1st count as he had known him well before the encounter. He stated that he was then threatened by Ernest Kowo who ordered the 2nd accused to sit down before Kowo and the deceased in count 2 joined hands to attack him using a knife and an iron bar respectively. The 2nd accused outlined that he engaged in a struggle with both deceased persons in an endeavor to defend himself from the attack being perpetrated on him by the two. In particular he outlined that he engaged in a prolonged struggle for the knife which Kowo was using to attack the 2nd accused and that suffered cuts on his right palm, right thigh and on his buttocks. As the 2nd accused wrestled for the knife with Ernest Kowo, the deceased Tawanda Chirume was striking the 2nd accused with an iron bar. He denied that he had possession of an iron bar prior to the altercation with the two deceased persons. He stated that it was the deceased Tawanda Chirume who was armed with an iron bar. Notably in the defence outline, the 2nd accused did not allude to the injuries suffered by the two deceased nor how the injuries could have been occasioned during the brawl. In summary, therefore the 2nd accused’s defence outline was to plead the defence of person or self defence, so called, in daily parlance. The 2nd accused in his defence outline also indicated that he challenged his confirmed warned and cautioned statement on three grounds, namely, firstly that the contents were not HH 267-21 CRB 88/19 reflective of what he told the police. Secondly that the confirming magistrate did not cause the statement to be read to the 2nd accused. Thirdly, that police investigating officers were present in court during confirmation proceedings and that the police presence had an intimidatory effect upon him. The 2nd accused also outlined his position on indications. He outlined that he made indications whilst in leg irons and constrained by the leg irons to freely demonstrate what happened. Lastly, the 2nd accused outlined that he denied that Tawanda Chirume died of injuries sustained in the struggle which took place. The 2nd accused did not however suggest the cause of death in the defence outline. During the course of hearing, the 2nd accused filed a supplementary defence outline on 28 February, 2020. The supplementary defence outline was prepared consequent on the submission by the 2nd accused that he intended to call a witness. The court directed the 2nd accused’s counsel to comply with the provisions of section 66 (6) (b) (ii) of the Criminal Procedure and Evidence Act, [Chapter 9:07]. In terms thereof the accused who intends to call a witness at such accused’s trial is required to prepare, file and serve on the prosecution, a document containing names of witnesses that the accused intends to call and a summary of the evidence of the witness concerned. The summary of evidence must contain sufficient detail to inform the prosecution of the material details to be relied upon in the evidence. In the supplementary defence outline, the 2nd accused outlined that he would call a witness called Shine Jairosi as a witness. Shine Jairosi’s outlined evidence was that he knew the 2nd accused from numerous encounters they had within Magaba / Mbare area as vendors where the witness would be selling various paraphernalia whilst the 2nd accused would be selling maize and wheat in most instances. The witness would confirm that he knew a state witness Margret Hwinya as 2nd accused’s wife. It was outlined that the witness mediated in quarrels between the 2nd accused and the 2nd accused’s wife Margaret Hwinya several times. It was also indicated that the witness would speak to discussions which he held with the 2nd accused consequent on the 2nd accused’s arrest as well to observations he made on the date of the alleged altercation which resulted in the 2nd accused’s arrest. The prosecution opened the state case by seeking admissions of certain evidence of state witnesses as outlined in the summary of the evidence of the witnesses concerned. The so called summary is a document prepared by the state in terms of section 66 (6) (a) of the Criminal HH 267-21 CRB 88/19 Procedure and Evidence. It is in this document that the State lists the State witnesses proposed to be called at trial and the evidence of the witnesses is summarized. The provisions of section 66 (6) (a) are a flip side of the provisions of section 66 (6) (b) of the same enactment with the latter section being in regard to what the accused is required to do. The witnesses whose evidence was admitted as summarized were firstly Moses Titus Mtsi. He is a police detail who attended the scene of the crimes following a report made at Mbare Police Station where the witness was based. On arrival at the scene he was shown the victims of the alteration. He observed Ernest Kowo lying on his back facing upwards without exhibiting signs of life. He also observed the deceased Tawanda Chirume lying near the body of Ernest Kowo, writhing in pain with intestines protruding from the left side of the body. Tawanda Chirume could still