S v Kufakwemba & Ors (CRB 121 of 2013; HH 795 of 2016) [2016] ZWHHC 795 (8 December 2016)

1 HH 795-16 CRB 121/13 THE STATE versus CHRISTOPHER KUFAKWEMBA and GODFREY MASENHU and BENSON JOEL and LANGTON NYAKUDIRWA HIGH COURT OF ZIMBABWE CHATUKUTA J HARARE, 2 September 2013 -8 December 2016 ASSESSORS: 1. Mr Gonzo 2. Mr Chakuvinga Criminal Trial C Chimbari, Nyazamba, for the State M Moyo, for the 1st accused S Rugwaro, Uchena for the 2nd accused Kunze, for the 3rd accused Mboko, for the 4th accused CHATUKUTA J: The accused persons were charged with contravening section 47 of the Criminal Law (Codification & Reform) Act [Chapter 9:23]. It was alleged that on the 19th of November 2011, accused persons proceeded to 10 Gardner Road, Ruwa, where they assaulted one Aldo Carlo (hereinafter referred to as the deceased), by knocking his head on to the floor, kicking him with booted feet and striking him all over the body with a log. The deceased sustained injuries from which he died on 6th January 2012. The accused were alleged to have stolen more than USD 2 500, three fire arms, a Colt pistol 45, a Webley revolver.22 and Smith & Wesson revolver 357. They ransacked the house and stole various clothing items and a Nokia 5230 cellphone. They also took the deceased’s Isuzu KB 280 which they used to flee from the scene. On the same night, that is the 19th of HH 795-16 CRB 121/13 November 2011, the vehicle was recovered by the police abandoned in Epworth Harare and the deceased’s Webley Revolver was recovered in the vehicle. The 1st accused was arrested at Number 2505, Glen Norah A, Harare on 2nd January 2012. The accused led to the recovery of a Nokia 5230 cellphone in the accused’s possession and the deceased’s Colt Pistol. The pistol was hidden under his bed. The 1st accused implicated the 2nd accused and led to his arrest. The 2nd accused led to the arrest of the 3rd accused. The 2nd and 3rd accused persons led to the recovery of the deceased’s Smith & Wesson revolver. It had been concealed in a disused hut at the 3rd accused’s homestead in Goromonzi. The 3rd accused led to the arrest of the 4th accused also in Goromonzi. The accused persons pleaded not guilty. All the four accused persons stated in their defence outlines that they were nowhere near 10 Gardner Road, Ruwa on the 19th of November 2011. The 1st accused stated that he was at his home in Glen Norah. He was going to call one Vengai Kufakwemba as a witness in support of his defence that he was at home. He admitted having been found in possession of the deceased’s Colt pistol and he stated that he had been given the pistol by the 2nd accused for safe-keeping. He denied any knowledge of the 3rd and 4th accused persons. The 2nd accused person admitted in his defence outline that he was at some stage in possession of both the deceased’s Colt pistol and the Smith & Wesson revolver. He stated that he guns were in a bag which had been left for safe-keeping by one James Jimmy Maisiri. At the time that he was given the bag, he was not aware that it contained the guns. He denied assaulting the deceased and he disputed that the deceased had died from the injuries sustained in the assault on 19th November 2011. The 3rd accused admitted being found in possession of the Smith & Wesson Revolver. He stated that the gun had been left in his custody by the 2nd accused for safe-keeping and he did not know the 1st accused person prior to his arrest. The 4th accused person stated that he did not know the 1st and 2nd accused persons prior to his arrest. He stated that he had previously under-taken construction work for the deceased at the latter’s residence. On the 19th of November 2011, he was at his home with his wife, sister, one Cephas Nyakudarika and Mike Mutandwa. He stated that he was going to call the four as witnesses. HH 795-16 CRB 121/13 The state called a number of witnesses, the first one being Leas Pfungwadzapera (Pfungwadzapera). He was employed by the deceased as a security guard. The second witness was Godfrey Kayii. The third witness was Blessing Munetsi. Both the second and third witnesses were also employed by the deceased. The fourth witness was Davidson Chatukuta. The fifth witness was Milward Tozivepi. The sixth witness was George Pfidze and the seventh witness being Previous Mutata. The fourth to the seventh witnesses were all police officers who were involved in the investigation of this case. Each accused person also testified, and none of the accused persons called any witnesses. The following facts are common cause arising from the evidence that was adduced from the state witnesses and the accused person. There was a housebreaking at the deceased’s home on 19 November 2011. The deceased was about 80 years old. The persons who broke into the deceased’s house severely assaulted the deceased and Pfungwadzapera. The deceased was taken to hospital and he subsequently died on the 6th of January 2011. According to the post mortem report, the pathologist observed that the deceased had intra-cerebral haematoma in the frontal region and subdural haematoma. He concluded that the cause of death was brain damage due to severe head injuries secondary to assault. Pfungwadzapera was also taken to hospital where he was admitted for about ten days after sustaining head injuries. The 1st and 2nd accused persons were known to each other. The 2nd and 3rd accused persons were also known to each other, the 3rd and 4th accused persons were equally known to each other. The 4th accused person knew the deceased prior to the date of the robbery. He had done, as indicated earlier, some construction work for him. The 4th accused person and the 1st state witness, that is Pfungwadzapera, knew each other as they had worked together at the deceased’s home. The 3rd and 4th accused persons resided in the same area that is in Goromonzi. They were both in the construction industry. It was also common cause that one of the guns, the colt pistol belonging to the deceased was recovered at the 1st accused’s home concealed under a bed. The second gun was recovered at the 3rd accused’s homestead concealed in a disused hut. It is also common cause that the 1st accused led to the arrest of the 2nd accused, the 2nd accused led to the arrest of the 3rd accused and the recovery of the revolver from the 3rd accused and the 3rd accused led to the arrest of the 4th accused person. HH 795-16 CRB 121/13 The issue for determination before us is in our view whether or not the accused persons were the persons who broke into the deceased’s home and fatally assaulted him and robbed him of his property. In other words the issue for determination is the identity of the assailants. The only person who witnessed the robbery and assault and was able to identify the assailants was Pfungwadzapera. The following is his evidence. He was aged 71 when the trial commenced, on 2nd September 2013. On the 19th of November 2011, he had just reported for duty in the early evening when he saw the 2nd accused and the 3rd accused person. They called out to him by name. They were putting on police uniform. When he approached them, they started assaulting him, they grabbed him and hand-cuffed him on allegations that he was cultivating dagga. The accused force-marched him to the deceased’s home and knocked on the door. The deceased opened the door holding a gun. Upon enquiring from the two accused persons the nature of their business, the accused told the deceased that they had arrested the witness for cultivating dagga. The deceased invited the accused inside the house to discuss the issue. When inside the house, the 2nd accused grabbed the deceased and a struggle ensued.. The 2nd and 3rd accused disarmed him and the gun went off during the struggle. The accused handcuffed the witness and the deceased together. The 2nd accused started assaulting them all over the body using hands and sticks. The 3rd accused appeared on the scene and joined in assaulting the deceased and Pfungwadzapera. The witness was assaulted on the head and legs. The deceased was assaulted main