S v Jeri (CRB 40 of 2017; HH 516 of 2017) [2017] ZWHHC 516 (31 July 2017)

1 HH 516-17 CRB 40/17 STATE versus ARNOLD JERI HIGH COURT OF ZIMBABWE TSANGA J HARARE, 19, 20, 21 June, 14, 21 & 31 July 2017 ASSESSORS: 1. Mr Mtambira 2. Mr Mhandu Criminal Trial SW Munyoro, for the State J Mudimu, for the accused TSANGA J: The accused was charged with murder in that on the 8th day of September 2016 at Umsweswe bottle store, Pingo in Kadoma, he unlawfully and with intent to kill caused the death of Linda Runyararo Mushangi by stabbing her on the stomach with a knife causing injuries from which she died. The summary of the state’s case was that on the day in question, the accused, Arnold Jeri who had been drinking beer at Umsweswe bottle store when the deceased, Linda Mushangi, visited her friend, Tatenda Gwata, had tried to endear himself to the deceased but had been spurned. This had apparently irked the accused who had slapped the deceased on the face with an open hand and had intensified his assaults with booted feet. The deceased had picked up an empty beer bottle and had hit him with it. Attempts had been made to stop the accused from assaulting the deceased. She had used this window of opportunity to run away from the accused by seeking refuge from some patrons. The accused had followed her with a knife and had tried to stab her from both left and right sides before he succeeded in stabbing her in the stomach from the left. She had screamed and had run out of the room and had collapsed at the foot of the veranda. Accused was said to have run way from the scene. He had eventually surrendered himself at ZRP Nyamapanda on 14 November 2016. The accused defence was that the deceased had shouted at him using obscene language and that she had caught him unaware and struck him twice with a beer bottle on the head. He had used his knife in self-defence as he wanted to disarm the deceased whom he said was HH 516-17 CRB 40/17 holding a broken beer bottle. It was during this time that he had accidentally stabbed the deceased’s stomach. Admitted in evidence as exh 1 was the post-mortem report done by Dr Gonzalez, a duly attested medical practitioner and forensic pathologist. His report concluded that the deceased died as a result of hypovolemic shock, abdominal aortic artery damage, and the stab wound. Admitted as exh no. 2 was the accused’s confirmed warned and cautioned statement which captured his stated defence. Also admitted as exh 3 was the sketch plan drawn by the Investigating officer Sergeant Blessing Tsuro. Exhibit 4 was a photograph of the deceased after the stabbing. It showed her lying down with her intestines clearly protruding from her stomach as a result of the stab wound. The statements which were admitted as evidence in terms of s 314 of the Criminal Procedure and Evidence Act [Chapter 9:07] were those of Doctor Gonzalez basically summarising the post mortem report and that of Gift Chari an attested member of the ZRP who had visited the scene on the fateful day. The gist of his evidence was that at around 20:30 on that day he had received a murder report. He had teamed up with Kadoma CID, Canine and District Reaction group and had gone to the scene. Upon arrival he had found the deceased on the ground in front of the bottle store. The area had been well lit and he had observed the stab wound and the protruding intestines. The following day on 9 September the body had been ferried to the general mortuary. It was therefore not in dispute that the accused had stabbed the deceased in the stomach. The main issue for resolution were the circumstances surrounding the stabbing, in other words, the reasons for the misunderstanding. The state relied on the oral evidence of Tatenda Gwata the bar lady who was present on that day as well as the accused’s friend Kabanga Muyambo also known as Denny who had also been present. Oral evidence was also led from the Investigating Officer Blessing Tsuro. The state’s evidence Tatenda Gwata: She worked as bar lady for the owner who had several bars and bottle stores. The deceased was her friend who would come to the bar to assist her with relief duties and preparing food. She knew her as a relative of one of the women who also worked at the bar. She also knew the accused as a patron at the bar. He was called Pipiro by his friends. She had been working at that particular bar for a week as the owner had several bars. Her collection of HH 516-17 CRB 40/17 the events of that day was that Kabanga Muyambo had been the first to arrive at the bar and she had sold him beer. The accused had then arrived later. The deceased had arrived between 16.30 and 17:00 hours. They had discussed what they would eat and had decided on buying plain sadza to consume with milk. It was when the deceased was coming from buying the sadza that the accused had thrown an empty bottle of water at her and the deceased had protested and indicated that she did not like that behaviour. The accused had not responded but when they started eating he had returned again and wanted to know why he been excluded from joining them in their meal. He had not been answered. It was at around 20:00 hours that the accused had again approached the deceased saying she should come to him as he had summoned her on several occasions. The deceased had responded that she had already told him that she was not interested in his advances. She had asked the deceased if she had any relationship with the accused to which she had said no. The accused had at that point slapped the deceased on the face and had kicked her resulting in her hitting the refrigerator. He had also gotten hold of the deceased and had head butted her several times. At that point this witness had screamed and had thrown a bottle top at Kabanga Muyambo the accused’s friend who had been asleep. So vicious was the attack against the deceased that she had had to close her eyes and hold her face in her hands as she let out that the accused would injure the deceased from the way he was head butting her. It was also at this point in the assault that the deceased had taken an empty beer bottle and had hit the accused with it. Kabanga Muyambo had woken up and had tried to pull the accused away but he had been beaten and pushed against some empty crates stacked against the wall. The accused had pushed Kabanga Muyambo outside the bottle store and had himself come back to continue his pursuit of the deceased who had now taken refuge behind one of the three patrons who were in the bar. He had continued his assault even as one of the men stood between the accused and the deceased as a human shield. It was also her evidence that two of the men had managed to subdue the accused and had taken him out of the bar but he had come right back in. It was when he returned again that he had drawn a knife from his satchel which he had been carrying on his back. He had once again gone to the deceased who was behind a patron and had tied to stab her several times until he had been successful in doing so on the left side. The deceased had screamed that she was dying and had run outside at that point before collapsing to the ground. Accused had put back the knife in his satchel and had walked out of the bar. HH 516-17 CRB 40/17 Whilst at the height of the assault on the deceased she had hidden behind a door, she had nonetheless been able to continue observing from a vantage point provided by wide gap between the hinges. The police had been called and had attended the scene. She had only left the following morning when her statement and photographs from the scene had been taken. Asked to comment on the accused’s sobriety at the time of the assault she stated in her examination in chief that on that day she herself not observed him drinking but had noticed that he was carrying a bottle of water which looked like it had water inside although she did not verify its actual contents. She however did not think he was drunk. As to whether the deceased had provoked the accused in any manner she had not heard anything and ce