S v Magweregwede (33 of 2021) [2021] ZWMSVHC 33 (15 June 2021)

1 HMA 33-21 CRB 1-21 THE STATE vs GARIKAYI MAGWEREGWEDE HIGH COURT OF ZIMBABWE MAWADZE J. MASVINGO, 3rd and 15th June, 2021 Criminal Trial Assessors 1. Mrs Chademana 2. Mr Mushuku B. E. Mathose, for the applicant L. Muvengeranwa, for the accused MAWADZE J: The sole issue for determination in this criminal matter is how the now deceased was fatally injured. The then 26 years old accused was arraigned before this court facing a charge of murder as defined in s 47(1) of the Criminal Law (Codification and Reform) Act, [Cap 9:23]. The charge being that on 5 September, 2019 in Chiwara Village, Chief Nhema, Zaka the accused intentionally and unlawfully caused the death of one Pride Tovadini by stabbing him in the chest with a knife. The events leading to the now deceased’s death are largely common cause. On 5 September, 2019 the 24 year old now deceased a resident of Kwezuva Village and the then 26 year old accused a resident of Magweregwede Village, both of Chief Nhema, Zaka HMA 33-21 CRB 1-21 were amongst the patrons partaking in the traditional beer at one Parade Chiwawa’s homestead in Chiwawa Village, Chief Nhema, Zaka. They were in a kitchen hut in the afternoon around 1400 hrs. A dispute arose between the accused and the now deceased over the occupancy of a chair. The undisputed facts are that the accused was seated on the chair inside the kitchen hut. The accused then left the kitchen hut to go and relieve himself outside. He left his hat on that chair. In the accused’s absence the now deceased decided to remove the accused’s hat and sat on the same chair. Upon his return the accused took unkindly to the now deceased’s conduct and demanded the chair back. A misunderstanding erupted resulting in a fist fight. The patrons restrained the two protagonists. However after a short while the now deceased apparently unsatisfied with how the fight had ended approached the accused again. The now deceased proceeded to hold the accused by the shirt and started to pull him out of the hut. The two held each other and went out to the kitchen hut. The dispute is what then happened out of the kitchen hut. The State alleges that while outside the kitchen hut the accused pulled out a knife from his pocket and stabbed the now deceased in the chest causing severe bleeding and his death. The accused is said to have fled from the scene and was later arrested some 10 km from the scene at Gadziriso Business Centre. The knife was never recovered. In denying this charge the accused as per his defence outline Annexure “B” raised about three defences. These are voluntary intoxication, self-defence and a mistake or accident. In his defence outline the accused said while outside the kitchen hut the now deceased assaulted him with fists, open hands and a stick. The accused said both himself and the now deceased were intoxicated. It is accused’s case that when the now deceased tried to deliver one of the blows with the stick he missed. The stick hit the ground. It broke into two pieces. Accused said he picked the other part of the stick in a bid to defend himself and fend off the attack by the now deceased. The accused said he held the stick towards the now deceased. The now deceased oblivious to all this charged towards the accused and literally ran into the pointed stick and was thus accidentally stabbed by the stick the accused was holding. HMA 33-21 CRB 1-21 In support of its case the State led viva voce evidence from only two witnesses Towadini Ngonidzashe one of the patrons at the beer drink and Assistant Inspector James Chidhakwa the arresting and also investigating officer. The evidence of other two State witnesses Pomerai Tadzvirirwa a fellow patron at the beer drink who is now being said to be in South Africa and Dr Godfrey Zimbwa who examined deceased’s remains and compiled the post mortem report Exhibit 1 was admitted in terms of s 314 of the Criminal Procedure and Evidence, Act [Cap 9:07]. The accused gave evidence and did not call any witnesses. The cause of the now deceased’s death is uncontentious. As per Exhibit 1 the post mortem report the doctor observed the following injuries; “Single stab wound on left sternal edge in second intercostal space ± 3 cm wide, smooth edges penetrating deep into the lungs. Severe bleeding.” The cause of death was haemorrhage shock caused by this stab wound. Dr Zimbwa’s evidence simply repeats these findings in Exhibit 1 the post mortem report. We now turn to the evidence led by the State. Pomerai Tadzivirirwa As already said his evidence is not in issue. He was a neighbour to both accused and the now deceased. He was one of the beer patrons. He confirmed what led to the dispute between the accused and the now deceased and how the two were restrained by other patrons. Later on after about 30 minutes he confirmed that it is the now deceased who rekindled the dispute over the said chair by grabbing the accused. He said the two held each other and went out of the kitchen hut. When he later followed the now deceased had already been stabbed and was unable to speak. He rendered first aid to no avail. The now deceased who had collapsed passed on. The accused had fled only to be brought later by the police after his arrest the same day. Assistant Inspector James Chidhakwa (Ass Insp Chidhakwa) The evidence of Ass. Insp. Chidhakwa relates to how the accused was arrested and the investigations he carried out. He said after receiving the repot of murder he teamed up with fellow police officers from ZRP Zaka police station. They were not using a police vehicle but a Zaka Rural District Council vehicle. He said when they got to Gadziriso business centre some 10 km from the scene of crime HMA 33-21 CRB 1-21 they met a member of the local police special constabulary who advised them that the accused was approaching the business centre. Ass. Insp. Chidhakwa said he then saw the accused who was pointed at him some 50 m away. As the accused approached he said the accused realised that the occupants of the council motor vehicle were police officers. The accused took to his heels. The police officers who were armed gave chase. One of the details fired 8 warning shots. The accused was undeterred and continued to flee. He said after a spirited chase the accused was apprehended, subdued and arrested. Upon arrest the accused declined to give any warned and cautioned statement or to explain what had happened. The accused decided to keep his peace. He did not say anything. They then took him to the scene of crime some 10 km away. He said still the accused would not say anything. At the scene of crime Ass. Insp. Chidhakwa said many beer patrons were unwilling to be taken as State witnesses except Towadini Ngonidzashe and Pomerai Tadzivirirwa from who he recorded statements. Ass. Insp. Chidhakwa said upon examining the now deceased’s body he observed a stab wound on left upper side of the chest and that the now deceased was frothing from the mouth and nose. Ass. Insp. Chidhakwa said witnesses present said the now deceased had been stabbed with a homemade okapi like knife with a blue handle. The accused was uncooperative and did not respond. He never recovered the said knife. While at the police station the following day Ass. Insp. Chidhakwa said the accused was still difficult to deal with as he gave various versions of what had happened. He recorded these various statements from the accused but the accused would proceed to disown each version during confirmation proceedings. As a result no statement was confirmed. In brief he said accused first said the now deceased fell on to a piece of firewood as they wrestled. He then changed and said he stabbed the now deceased with a piece of firewood in self-defence. Lastly, he disowned both the versions. Ass. Insp. Chidhakwa said even when he took the accused to the scene to be shown the said piece of firewood the accused could not indicate it but said it was possibly used to make fire. HMA 33-21 CRB 1-21 Ass. Insp. Chi