S v Maposa (51 of 2024) [2024] ZWCHHC 51 (6 June 2024)

1 HCC 51/24 HCCR 439/24 THE STATE Versus TALKMORE ALIAS KUDAKWASHE MAPOSA HIGH COURT OF ZIMBABWE BACHI MZAWAZI J CHINHOYI, 04 June – 06 June 2024 Assessors: Mr. Mutombwa Dr. Mashavave Criminal Trial R. Nikisi, for the State T. K. Magavude, for the accused BACHI MZAWAZI J: The deceased Malunga aged twenty-seven years suffered one of the most vicious, atrocious and brutal deaths at the hands of the accused person and two of his accomplices now at large. His most pivotal vital organs the heart and the lungs were lacerated. The Pathologist observed several knife stabbing wounds enlisted as; 1. Perforated 3cm long lacerated in the right hemithorax above, 2cm above the right nipple and to the left of it that penetrated the cavity 20 cm. 2. Incised wound on the lateral aspect of the left buttock, 4cm long perpendicular to the longitudinal axis of the body. 3. Incised wound located on the external lateral aspect of the right lumbar foss 3cm. 4. Moderate brain edema. 5. 3500ml haemothorax. 6. Haemorrhagic infiltrate at the end of pectoral muscle. 7. Lung laceration. 8. Pericardium lacerated. 9. Heart right ventricle laceration. The cause of death was disclosed as 3500ml haemothorax, lung and hear laceration. Perforating stab wound in the right chest region. HCC 51/24 HCCR 439/24 To say the deceased was butchered is an understatement given the picture portrayed by the autopsy report admitted into evidence by consent as exhibit 1. Accused and Integrity Nguruve were arrested in connection with the killing. They were charged with murder in terms of s47 (1) of the Criminal Law Codification and Reform Act [Chapter 9:23]. The third accused fled from justice. Integrity Nguruve also followed suit when he was admitted to bail. The accused person admitted being present when the altercation giving rise to the numerous stab wounds commenced. He acknowledged fighting the deceased but stated that, the deceased overpowered him and he left. He however shifts all the blame to the fugitive, Integrity Nguruve who also confessed his own role in the murder to the police upon handing himself over. The accused person denied stabbing the deceased to death and in the manner alleged. He also objects to acting in common purpose with Integrity Nguruve. He thus tendered a plea of not guilty and prayed for an acquittal. The Facts It is the State case that on the 26th of December 2023, the deceased was walking home with his friend Courage Mudzitiri. They came across the accused person and his mentioned colleagues, Tinotenda Bosha and Integrity Nguruve in a parked vehicle in the middle of the road close to some residential houses. When they got closer to the vehicle which initially had its headlights flashed, the lights were switched off. The three occupants of the vehicle then alighted and confronted deceased and his colleague. Accused is said to have been holding an axe and together with Tinotenda Bosha accosted the deceased accusing him of snatching other people’s wives. It is said that they ordered both the accused and his friend to sit down whilst wielding the axe. The accused person handed over the axe to Bosha and they both pushed, pulled and shoved the deceased who refused to comply to the order. They then teamed to assault the deceased who stood his ground and fought back. In the process the accused produced a knife from his trousers thereby stabbing the deceased mercilessly. The deceased is said to have begged and pleaded with the gang but the accused’s accomplice Integrity also knived the deceased whilst assaulting him all over his body with Bosha. The accused is said to have stabbed the deceased on the right side of the chest. Nguruve also stabbed the deceased twice on the chest and once on the right side of the hip with a Columbian knife. The accused persons then fled the scene and left the deceased screaming in HCC 51/24 HCCR 439/24 pain. The members of the public came to the deceased’s aid and assisted in ferrying him to Chegutu Hosptital were he died upon admission. The state alleges that the accused was only apprehended on the 17th of April 2024. Amongst the documentary evidence produced unopposed in opening the State case were, the post mortem report, mortuary attendants’ and doctor’s affidavits, sketch plan and indications, accused’s confirmed warned and cautioned statement as well as that of Integrity Nguruve. The summarized evidence of eight of the lined up ten State witnesses was produced uncontested. Oral evidence was led from Courage Dzikiti and Jennifer Nyoni. Of note, most of the contents of the summary of the State case and facts are made as of the first witness’s testimony. Courage Dzikiti, the first State witness confirmed that he and the deceased were bosom buddies who grow up together and inseparable. They stayed in the same neighbourhood. He also testified that the three accused persons grew up with him in the same locality and were well known to him. They often crossed paths in the neighbourhood, drinking joints and at mines where they engaged in artisanal mining. He stated that on the day in question at around 7pm to 8pm when coming from a drug seller’s house and were close to the residential homes he and the accused saw a car parked almost in the middle of the road. It had its front lights flashed. Upon approaching the vehicle, the lights went out. Immediately, the occupants of the vehicle whom he identified as the accused, Bosha and Nguruve disembarked from the vehicle. He stated that at first there was one person outside acting as if the vehicle had developed a flat tyre and was attending to it. He also noticed that accused was not the person who was initially outside but that he alighted from the car wielding an axe in the company of Bosha. Bosha and the accused confronted the deceased with the accusations alluded to earlier. The witness said both Bosha and the accused were pushing and shoving the deceased who had refused to comply with their instruction to sit down. The witness stated that he did not want to react as he feared the violence the trio exhibited. He said that the push and shove took the opponents from the vehicle to some distance even closer to people’s homes. Though the witness said he could not clearly see the stabbings he said he saw the silhouette of accused and his accomplices’ hands striking up and down with the deceased crying. He told the court that he heard the deceased pleading with the witness to come to his aid and also pleading with the gang not to stab him. HCC 51/24 HCCR 439/24 The witness stated that he saw the deceased tyring to rise to his feet but fell. He watched the trio fled the scene. The witness then ran to call some friends. On cross examination he affirmed that he only left the scene after he had seen the trio fleeing from their victim. On cross examination, the witness was asked why he left out some details in his statement to the police, details like the three accused left the car all at once when in court he said the other two left the car at different intervals. The other discrepancy referred to by counsel for the defence is that the witness in his statement to the police he did not mention that the deceased was crying that he had been stabbed. These previous inconsistent statements of a very minor nature cannot be held against the witness. They do not address crucial issues. They also do not have any effect on the rest of his evidence. In our considered view, this witness gave his evidence very well. He stuck to his version that the deceased called to him thrice even after being asked from different angles by the defence counsel. It is clear that his evidence was even more detailed than the one he supplied to the police. It looks like each question triggered his memory and recollection of events which may have escaped him when his statement was recorded by the police. The discrepancies were minor and did not destroy his evidence. It should be borne in mind that not many people have photogenic memory. Neither