S v Gengezha (233 of 2023) [2021] ZWHHC 709 (23 November 2021)

1 HH 233-23 CRB 27/21 THE STATE versus TICHAONA GENGEZHA HIGH COURT OF ZIMBABWE MUREMBA J HARARE, 4, 5, 8 & 23 November 2021 Assessors: Mr Shenje Mr Chakuvinga Criminal Trial P Gumbo, for the State Ms Z Takawira, for the accused MUREMBA J: The accused (29) is charged with murder as defined in s 47 (1) (a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He is alleged to have caused the death of Russel Kandororo by stabbing him with a knife on 14 August 2020 on both sides of the abdomen resulting in his death on 24 August 2020. The stabbing is alleged to have happened at Kashashe Bottle Store in Guruve, in the evening around 7pm. In denying the charge the accused did not deny being at the scene on the evening in question. His defence however, is that he is not the one who stabbed the deceased. He averred that he was actually a victim of assault himself on the evening in question. He said that he was stabbed on the shoulder, but since it was dark, he did not see who stabbed him. The State’s evidence The State had eleven witnesses who were lined up to give evidence. However, the evidence of six of its witnesses was formally admitted in terms of s 314 of the Criminal Procedure and Evidence Act [Chapter 9:07]. Viva voce evidence was led from Brian Ruveira, Artwell Kandororo, and Smart Kandororo. From their evidence what is common cause is that they were in the company of the deceased drinking beer in Siyawamwaya bottle store at Mudhindo HH 233-23 CRB 27/21 business centre in Guruve. Around 7 pm the accused phoned Brian Ruveira enquiring about the whereabouts of Smart Kandororo, a nephew to the deceased. The accused is said to have made accusations that Smart Kandororo was having a love affair with Tracy Mavhunga whom the accused said was his wife. The accused threatened to assault the witnesses especially Smart Kandororo. The accused asked Brian Ruveira where they were and he was told that they were at Siyawamwaya Bottle Store. Brian Ruveira’s phone was on loud speaker. So, the rest of the witnesses and the deceased could clearly hear what the accused was saying. The accused was known to all of them as he is from the area where the witnesses reside. The witnesses said that after the phone call, they stayed a little longer and then decided to go home, in the villages. They left the bottle store spaced out. Brian Ruveira, the deceased and Smart Kandororo who were walking ahead of the others met the accused at Jena homestead. As soon as the accused saw them, he started attacking Smart Kandororo and the two fought. When Artwell Kandororo arrived at the scene, he asked what was happening. The accused took to his heels and fled from the scene. Artwell Kandororo was an elder brother whilst Smart Kandororo was a nephew to the deceased. Brian Ruveira was the deceased’s friend. At Jena homestead visibility was good because there were lights at the nearby houses. The State witnesses said that after the accused had fled into the night they continued walking home. When they got to Kashashe Bottle Store which is close to Siyawamwaya General Dealer, the accused emerged from the gate of a certain house with a durawall. The accused was holding a log and was shouting that Smart Kandororo had defeated him at Jena homestead. He drew closer and attempted to strike with the log. It was Brian Ruveira’s evidence that the accused was attempting to strike Smart Kandororo. But according to Artwell Kandororo and Smart Kandororo, the accused intended to strike Artwell Kandororo. However, they all said that when the accused attempted to strike with the log he was held by Artwell Kandororo, who then disarmed him of the log. According to Artwell Kandororo and Smart Kandororo, when the accused was being disarmed, he drew a silver knife from somewhere around his waist. According to Brian Ruveira, the accused drew the knife from the pocket of his pair of a three – quarter short. The accused cut the sleeve of the jacket that Artwell Kandororo was wearing. Fortunately, his arm was not cut. When Artwell’s sleeve was cut, he let go of the accused and started to run away from him. He had noticed the knife. The accused chased after Artwell HH 233-23 CRB 27/21 Kandororo, but he (accused) then made a U-turn and faced the deceased who was walking following behind. It is not really clear why the deceased was following behind, but it is said that the deceased was drunk and was not fighting anyone. All the three witnesses said that when the accused turned, he then advanced towards the deceased who was walking towards him. The accused deliberately bumped into the deceased and pushed him. The deceased fell on his back. The accused straddled on top of the deceased and stabbed him three times, viz once on the shoulder and twice in the abdomen on both sides. Smart Kandororo said that as the accused was stabbing the deceased, he (Smart Kandororo) moved closer up to a distance of 2m with the intention of rescuing his uncle. However, each time he moved closer, the accused would stand up and swing the knife thereby causing Smart Kandororo to retreat and he (the accused) would then kneel on the deceased and stab him. The accused did this three times as he continued to stab the deceased. He only stopped when Artwell Kandororo who had been 20 – 30 metres away when the accused started stabbing the deceased came running and kicked him with booted feet. That is when the accused stood up and ran away. Visibility was said to have been good at this place because there were lights that were coming from the nearby shops. In addition, the sun had just set and it was still dusk. People could see objects at a distance. After the accused had run away, the deceased immediately stood up and walked towards the back of Kashashe bottle store toilet. Brian Ruveira followed him and shouted that the deceased had been injured. All of them followed the deceased and found him trying to put back his intestines which were protruding from the abdomen. They took off their shirts and tied them around the wound. They tried to walk with him to the clinic, but after 20 metres the deceased could not walk anymore. They looked for a car which then ferried him to the clinic. From there he was referred to Guruve hospital and then to Bindura hospital where he later died. Tracy Mavhunga’s evidence was to the effect that the accused is her former husband. She denied having been in a relationship with Smart Kandororo. Tedious Masauso is a nurse at Bepura Clinic. He attended to the deceased on 14 August 2020 when he was brought to the clinic. He observed two wounds on the abdomen. He sutured the wounds and the deceased regained consciousness. He referred the deceased to Guruve Hospital. HH 233-23 CRB 27/21 Conrad Shambare, a medical doctor at Bindura General Hospital attended to the deceased from 16 August 2020 to 24 August 2020 when he then passed on. Masoso Tarwirei, a driver in the Zimbabwe Republic Police ferried the deceased’s remains for an autopsy at Parirenyatwa hospital. Enos Muranda is a police officer in the Zimbabwe Republic Police. He attended the scene of crime. Smart Kandororo, Artwell Kandororo and Brian Ruveira made indications to him. Reza Effort, the investigating officer gave viva voce evidence, but he had nothing to say about who murdered the deceased because he was not an eye witness to the stabbing incident. The State produced the post mortem report which states that death was due to among other things, severe abdominal trauma due to stab wound. The defence’s evidence The accused said that on the day in question he had a misunderstanding with the State witnesses who testified in court. He said that Tracy Mavhunga was his wife. He was lodging a place for her at a bar called Masowe at Mudhindo Business Centre. He said that this is where he was staying with Tracy. The accused said that on the day in question when he got into the kitchen, he found Tracy on the phone and he asked her who she was talking to and she s