S v Masambu (CRB 5 of 2020; HMT 13 of 2020) [2020] ZWMTHC 13 (29 January 2020)

1 HMT 13-20 CRB 05/20 THE STATE versus OBEYMASAMBU HIGH COURT OF ZIMBABWE MUZENDA J MUTARE, 28 and 29 January 2020 Criminal Trial ASSESORS: 1. Mr Chagonda 2. Dr Sana M Musarurwa, for the state N Nhambura, for the accused MUZENDA J: The accused is charged with the crime of Murder as defined in s 47 (1) (a) or (b) of the Criminal Law (Codification and Reform Act [Chapter 9:23]. It is alleged that on 7 May 2019 and at Musanga Village, Chief Saunyama, Nyanga, the accused unlawfully caused the death of Emmanuel Nyasha Masambu by hitting him several times on the legs and head with a wooden pick-handle, intending to kill him or realising that there was a real risk or possibility that his conduct might cause death and continued to engage in that conduct despite the risk or possibility resulting in injuries from which the said Emmanuel Nyasha Masambu died. The accused pleaded not guilty to the charge and stated in his defence outline that there was bad blood between him and the deceased who was his biological young brother. On 7 May 2019 the accused was in the company of his uncle Rodney Gwezere who resides in the same compound with the accused. As the accused was accompanying Rodney Gwezere to the house that he slept in accused saw a person emerging from a disused room where various tools are kept. Rodney Gwezere managed to identify the person that the accused had seen and he indicated that it was the deceased. The deceased started walking towards the direction where accused and Rodney were coming from. Accused expressed his displeasure on why the deceased had visited his homestead at night since the accused was misusing some of the items that were stored in the store-room. At that juncture the deceased started to insult the accused HMT 13-20 CRB 05/20 and both parties exchanged harsh words. Deceased kept on walking towards the accused and the accused went away to avoid confrontation. The accused went straight to Mr. Dhokotera’s residence, his uncle to inform him of what the deceased was doing. The accused did not get any answer. The accused proceeded to the residence of Patrick Gwezere, his uncle and informed him of what was transpiring. Accused was advised to go to his homestead so that the issue would be resolved on the following day. As accused arrived at his homestead he saw deceased standing near his house. The deceased then threw an object which looked like a small axe towards the accused and accused managed to dodge it. The deceased then picked a wooden pick-handle and assaulted the accused on his back. The accused then took the wooden pick- handle from the deceased. In the heat of the moment the accused struck the deceased twice on the legs and on the head. The accused shall therefore state that he acted in s elf defence and that the situation was exacerbated by the deceased who attacked the accused at his own homestead. Accused was provoked by the unwarranted attack from the deceased. He however believes that he might have used excessive force in defending himself. He shall state that he had no actual or constructive intention to kill the deceased. He prayed that he be found guilty of culpable homicide. The state, by consent of the accused’s counsel, produced the following: (a) the post mortem report, No 248875 prepared by Dr. Caroline T. Makadzange on 10 May 2019, which was marked exh 1. The doctor observed the following: (i) (ii) bleeding both nostrils (clotted blood) clotted blood in left ear (iii) 3 lacerations on scalp noted (iv) Bruises on both arms. As a result of the examination the doctor concluded that the cause of death was severe head injury due to a blunt trauma. (b) Confirmed warned and cautioned statement of the accused which read as follows: “I admit that I caused the death of Emmanuel Nyasha Masambu after I had assaulted him with pick handle. I struck him with force twice on the legs and twice on the head after he had come to my place in the night and tried to attack me with an axe.” The confirmed extra-crucial statement was marked exh 2. (c) Exhibit 3 was the wooden pick handle. Exhibit 4 was the certificate of weight which showed that the handle measured 84cm and weighed 0,895 kilograms. HMT 13-20 CRB 05/20 (d) Exhibit 5 was the sketch plan prepared by Assistant Inspector Musongora upon the indications made to him by the accused and state witnesses. Exhibit 5 reflects the following points and explained by the police detail: (i) (ii) (iii) (iv) Point C: “Indicates the fowl run where Obey Masambu says he took the pick handle which he used to assault Emmanuel Nyasha Masambu as indicated by Obey Masambu to Assistant Inspector Musongora and witnessed by Constable Chakururama. Point D: “Indicates first point of contact where Obey Masambu says he first assaulted Emmanuel Nyasha Masambu twice on the legs with the pick handle before Emmanuel ran away to point E as indicated by Obey Masambu….. Point E: “Indicates the point where Obey Masambu says Emmanuel Masambu fell down after he had assaulted him twice on the head as indicated by Obey Masambu…… Point F: “Indicates a Mutondo tree near the point where Obey Masambu says he assaulted Emmanuel Masambu twice on the head as indicated by Obey Masambu….” The state applied in term of s 314 of the Criminal Procedure and Evidence Act [Chapter 9:07] to have the following witnesses’ evidence admitted as not being disputed and the defence indicated that that application was not opposed, hence it is recorded that the evidence of Gladys Masambu is not in dispute. She is the biological mother of both accused and deceased. Accused and deceased had had many quarrels before the fateful date and there was bad blood between them, she stated. On 7 May 2019 at around 2300 hours she was awakened by Rodney Gwezere who had brought the deceased to her. She saw the deceased standing against the wall of his bedroom in the moonlight. She tried to speak to the deceased and he was not responding. On 8 May 2019 she filed a report about the assault. She accompanied deceased to Nyanga District Hospital where deceased passed on. Tafadzwa Chakururama is a police detail based at Nyamaropa Police Station. He witnessed Rodney Gwezere and Beauty Ngarazi making indications. He saw blood at the scene of crime where the accused assaulted deceased. He also witnessed accused’s warned and cautioned statement and accused made his indications at the scene in his presence. Thomas Musongora is an assistant inspector in the police. He is the investigations officer. Witnesses and the accused made indications at the scene of the crime to him. He saw blood on the ground that had dropped from the deceased’s head. He is the one who drew the sketch plan, he also recovered the wooden pick handle and recorded accused’s warned and cautioned statement and caused same to be confirmed. Dr Caroline Makadzange carried out the post mortem report examination on the deceased’s body. She compiled a post mortem report exh 1. The evidence of Miasimbaashe Sambama the ambulance driver has no HMT 13-20 CRB 05/20 much weight in this matter. Noah Douglas Posi is employed by Zimpost and stationed at Nyanga Post Office. He is one who weighed, the wooden pick handle, exh 3. The state led evidence from Rodney Gwezere. He resides at Matanga Village, Chief Saunyama Nyanga. Both accused and deceased are his nephews, he is related to the mother of deceased’s father. On 7 May 2019 he was with the accused at the latter’s homestead. Accused’s wife was also present. There is a disused hut at accused’s homestead where accused’s grandmother used to stay. Deceased had his bag there whilst accused and the witness were at the homestead they heard some noise and both went out to check. Upon accused’s arrival at the hut he saw deceased carrying a bag on his shoulder. The witness told the court that the accused confronted deceased on what deceased wanted, he told deceased that he wanted to steal. Deceased told accused that he had nothing to steal since there was nothing worth steal