S v Makotore (CRB 21 of 2017; HMA 18 of 2017) [2017] ZWMSVHC 18 (24 March 2017)

1 HMA 18/17 CRB 21/17 THE STATE versus GODKNOWS MAKOTORE HIGH COURT OF ZIMBABWE MAWADZE J MASVINGO, 6,7 & 24TH March, 2017 Assessors 1. Mr J. Mushuku 2. Mr E. J. Gweru Criminal Trial S. Busvumani for the State E. Shoko, for the accused MAWADZE J: In the absence of background facts of this case the circumstances of this case were rather bizzare or weird. It was only during the course of the trial that it became sensible as to why the event of this day occurred in the manner which unfolded. The accused is facing two counts. Count 1 relates to murder as defined in s 47(1) of the Criminal Law (Codification and Reform Act) [Cap 9:23] and count 2 relates to assaulted as defined in s 89(1)(a) of the same Act, [Cap 9:23]. In count 1 which relates to murder the charge is that on 10 May 2015 at Machele Village, Chief Nhema, Zaka the accused unlawfully assaulted Mbambo Machele with an HMA 18/17 CRB 21/17 unknown object several times intending to kill him or realising that there was a real risk or possibility that his conduct may cause death and continued to engage in that conduct despite the risk or possibility. In count 2 which relates to assault the charge is that on the same date and place as in count 1 the accused unlawfully assaulted Margreth Machele with an unknown object on the back and right arm. The accused who resides in Chiwami Village, Chief Nhema, Zaka was known to both the now deceased and the complainant. The now deceased who was about 73 years old was the husband of the 64 year old complaint. It is not in dispute that on 10 May 2015 at about 19.00 hrs the accused met both the now deceased and the complainant. What is in issue is what happened with they met. The State alleges that accused attacked both the now deceased and the complainant with an unknown object when he suddenly appeared from behind. It is the State case that the accused firstly attacked the now deceased with the unknown object on both his legs and all over the body causing him to fall down. The complainant is said to have tried to flee from the scene calling for help but was allegedly attacked three times on her back and once on her right arm by the accused with the same unknown object. It is the State case that Apolonia Machel and Zezekai Ganyata answered to the complainant’s distress call by rushing to the scene of crime where they found the now decease lying down groaning in pain as he bled from both legs. It is common cause the now deceased was ferried to his nearby homestead in a wheel barrow where he passed on the same night before he could be taken to hospital. The complainant was taken to hospital. The cause of the now deceased’s death is said to be haemorrhage shock and multiple limp fractures. The accused denies assaulting the complainant in any manner and instead alleged she was mistakenly assaulted by her husband the now deceased. The accused further alleges that he only assaulted the now deceased three times on the legs with the now deceased’s walking stick which was an iron rod when he acted in self-defence. The accused disputed inflicting the fatal injuries. In his defence outline the accused’s version of events is that when he met both the now deceased and the complainant on the day in question at about 19.00 hrs he properly greeted HMA 18/17 CRB 21/17 them but they both initially failed to recognise the accused as they were both heavily intoxicated. The accused said he had to identify himself after which all hell broke loose. The accused said both the now deceased and the complainant alleged that the accused was coming from their homestead and went on to block the accused’s way. The accused said it is the complainant who first held the accused’s jacket raising the issue of a case accused had previously reported to both the police and Chief Nhema when complainant had allegedly assaulted the accused causing him to lose three front teeth and leaving other teeth being loose. The accused said as he was being held the now deceased hit him with a walking stick. The accused said when the now deceased tried to deliver a second blow, the accused ducked and the now deceased mistakenly hit his wife the complainant with the walking stick on her right arm. The accused said realising the now deceased was hell bent on attacking him with the walking stick, the accused held the walking stick and he wrestled with the now deceased over the walking stick, as they both fell to the ground. Meanwhile the accused said the complainant came to the aid of her husband the now deceased by picking stones which she threw at the accused. The accused said he managed to overcome the now deceased and dispossessed him off the walking stick. In a bid to fend off further attack accused said he assaulted the now deceased three times slightly above the knees. The accused said he was however hit on the knee with one of the stones thrown by the complainant causing the accused to fall down and losing grip of the now deceased’s walking stick. At that point accused said he sensed danger and managed to flee despite limping from the injuries inflicted with a stone by the complainant. The accused said he decided to hide in the nearby bush and both the complainant and the now deceased failed to locate him. As he was hiding the accused said both the now deceased and the complainant turned against each other as the now deceased accused his wife the complainant for causing all this altercation because complainant had previously assaulted the accused causing accused to lose his teeth. Accused said he went home leaving the two quarrelling and does not know what further transpired between them. The accused said he acted in self-defence and had been provoked by both the now deceased and his wife the complainant. The accused gave almost a similar version of events in his confirmed warned and cautioned statement Exhibit 2. The only notable difference being that he said he was hit by the now deceased with an iron rod and not a walking stick (although the now deceased was using that iron rod as a walking stick). HMA 18/17 CRB 21/17 The evidence of Joyce Chidzungu, Dr Zimbwa, Dr Muchinguri and Colen Muchinganwa was accepted in terms of s 314 of the Criminal Procedure and Evidence Act, [Cap 9;07]. In brief that it is as follows; Dr Godfrey Zimbwa examined the now deceased’s body and compiled a post mortem report Exhibit 1. Dr L. Muchinguri examined the complainant and compiled a medical report Exhibit 3. Joyce Chidzingu is the police detail who attended the scene of crime on 11 May 2015 and caused the now deceased’s body to be ferried to Masvingo Provincial Hospital mortuary. Colen Muchinganwa is the investigating officer who also arrested the accused and recorded accused’s warned and caution statement Exhibit 2. A total of 4 Exhibits was produced by the State in support of its case. They include the following; Exhibit 1 is the post mortem report compiled by Dr Zimbwa who examined the now deceased’s body on 12 May 2015. Dr Zimbwa made the following pertinent observations and findings; (i) the now deceased had a compound fracture of the right tibia and fibula just below the knee with an associated laceration which was about 8 cm long (ii) another compound fracture on the left tibia and fibula just above the ankle joint (iii) that the cause of death was haemorrhage shock arising from multiple limb fractures Exhibit 2 is the accused’s confirmed warned and cautioned statement which we have already alluded to. Exhibit 3 is a medical report in respect of the complainant in count 2 compiled by Dr P. Muchinguri on 26 May 2015. The doctor noted that the complainant had a laceration on the right upper limb and suffered from backache. The doctor said the injuries on the complainant were caused by both sharp and blunt trauma and that several blows were delivered with moderate force inflicting serious injuries although permanent disability was unlikely. HMA 18/17 CRB 21/17 Exhibit 4 is the iron rod which weighs 0,240 kg and is 95 cm lo