S v Jose (243 of 2022) [2022] ZWHHC 243 (28 March 2022)

1 HH 243-22 CRB 36/19 THE STATE versus ALUWISI JOE HIGH COURT OF ZIMBABWE FOROMA J HARARE, 6 June 2019, 23 & 28 March 2022 Criminal Trial Ms HV Huni, for the applicant Mr Mabhaudhi, for the respondent FOROMA J: The accused Aluwisi Joe has been charged with the murder of Solomon Munyezi whom it is alleged he stabbed with a knife on the chest resulting in the deceased sustaining an injury from which he died. Accused pleaded not guilty to the charge raising the defence of provocation alternatively self defence. The State produced the post mortem report which was admitted by the accused and was marked Exhibit 1. The post mortem report established the cause of death as (1) (2) (3) hypovolemic shock Pulmonary vein rapture and Stab wound injury on left chest. The State led evidence from 3 witnesses and closed its case. The first witness was one Petty Mupinga (hereinafter called Petty) a resident of Mhakwe Village in Hwedza where she resided with her child and grandparents. On the day in question the accused passed by her grand parents’ homestead. The witness claims that he wanted to ask for some cigarette from her grandfather but did not get it. He then left for his residence before returning not very long after his initial departure. Petty Mupinga testified that when accused returned he was in the company of the deceased. She claimed that the deceased appeared drunk. While in her grandmother’s kitchen the deceased was rowdy and demanded to know who between the deceased and accused she loved and she claims that she declined both of them indicating she was not in love with one of them. A quarrel HH 243-22 CRB 36/19 developed between accused and deceased and as it seemed to drag on she announced that she needed to go to bed as she needed to get up early and prepare the child to go to school. Later that evening in about an hour she was woken by her grandmother in order to follow the accused who had attacked the deceased in the scuffle. It was that attack which led to the deceased’s death. She claimed that she did not witness the fight between the accused and the deceased and yet in cross- examination she also claimed that deceased had punched accused on the chin. Petty testified also that she and her grandmother took the accused to the village head’s residence where the accused narrated his story to the village head whom he told that he had had a misunderstanding with the deceased resulting in a fight during which he delivered a blow to deceased with his hand which caused him to fall down. She further testified that the village head one (Sabhuku) caused villagers to gather at his house and proceeded to the Mupinga homestead where on checking on the deceased’s condition pronounced that he was cold suggesting he had already died and noted that he had been stabbed with a knife. The village Head then called police from Hwedza who attended the scene in the early hours of the morning. It is significant to note that Petty’s evidence was that (1) She did not observe any of the two (accused and deceased) holding any weapon when they arrived at the Mupinga homestead. (2) When deceased entered her grandmother’s kitchen he was drunk. (3) before proceeding to Mutsa Masaiti’s place and eventually proceeding to the village head’s residence she had not checked on deceased’s condition. (4) She knew that the knife used by accused to stab the deceased belonged to the accused. In fact accused admitted to the police that the knife was his. She however did not witness accused stab the deceased. The second state witness to testify was Benilia Mupinga. She was Petty Mupinga’s grandmother. She gave evidence under oath. Her evidence in summary was that on the day in question accused had passed by their homestead before returning a short while later in the company of the deceased who was in front. Both the deceased and accused were known to her. The two budged into her kitchen without knocking or seeking admission which caused her to protest why accused had come back. The deceased asked her ask Petty to indicate as between him and the accused she preferred as her lover to which Petty (had witness) indicated none of the two. As none of them reacted to Petty’s response the witness then told the accused and deceased to leave as she HH 243-22 CRB 36/19 wanted to go to bed. The deceased asked for permission to while up time but Petty left the kitchen indicating that she was retiring to bed as she would need to get up early in order to prepare her child to go to school. Benelia Mupinga and the deceased then remained in the kitchen. When the witness asked the accused and deceased to go as she too wanted to sleep accused left first followed by deceased who pushed the door trying to hit the accused who ducked. She then told the two (accused and deceased) to leave but not to fight. According to the witness Petty came out of the kitchen and saw the deceased try to hit the accused. When accused and deceased left the witness went into her bedroom to retire to bed but as she got into bed she heard the accused shouting “why did you beat me” and she immediately came out and saw the accused throw something in the easterly direction which she was not immediately able to identify. She then enquired what the problem was as accused was addressing the deceased who was on the ground and not responding. She then observed accused leaving and she asked him why he was going away leaving the other person who was not responding to his calling him. Accused then indicated that he wanted to report what had happened to Mutsa Masaiti. The witness asked Petty to come with her and follow the accused as she suspected the accused to be trying to escape and did not believe accused genuinely meant to go to Masaiti’s residence. At Masaiti’s residence the accused related his story and Masaiti declined to intervene and suggested they proceed to the village head to report the matter. At the village head (Panashe Mushore’s) residence accused narrated his story after which the Sabhuku instructed the members of the village be woken up to accompany him to the scene. The village head and members of the village who were gathered at the village head’s residence left for the witness’ residence where the village head observed that the deceased’s body had gone cold and on lifting deceased’s shirt noted and announced that deceased had been stabbed with a knife. The village head called the police after asking the villagers to settle down. When police arrived and asked what had happened the accused said he had stabbed the deceased with a knife and when police asked for the knife and accused suggested they ask her (witness). With the assistance of the police a search was made for the knife in the direction where the witness had observed accused throw something and using light from the witness mobile phone the knife was recovered by the police. Asked during her evidence in chief to comment on HH 243-22 CRB 36/19 accused’s suggestion that deceased had picked up accused’s axe during the fight and wanted to attack the accused with it the witness answered - “That’s a lie”. Benelia Mupinga testified that she did not witness accused stab the deceased. She did not observe accused in possession of a knife when he initially passed by her residence earlier on that evening. Neither did she observe the accused with an axe the second time he got back to the witness’ residence. She was not able to comment on the accused’s defence outline namely that the accused dropped his axe and dispossessed deceased of the knife, that accused had produced to attack him with it and that when accused dropped the axe the deceased picked it up and chased accused intending to axe him. Her answer was that she did not observe this as it took place, while she was inside her bedroom and by the time she came out of her bedroom the deceased had already fallen down. Before then she had tried to refrain them. She also testified that when the accused and deceased left the witness’ re