S v Muchowa (CRB 16 of 2020; HMA 49 of 2020) [2020] ZWMSVHC 49 (25 September 2020)

1 HMA 49-20 CRB 16-20 THE STATE Versus ZIVANAI MUCHOWA HIGH COURT OF ZIMBABWE MAWADZE J MASVINGO 20 FEBRUARY, 19 MARCH, 20 JULY, & 25 SEPTEMBER, 2020 Assessors 1. Mrs Chademana 2. Mr Chikukwa Criminal Trial Ms M. Mutumhe, for the state Ms Moffat with J. Makuni, for the accused MAWADZE J: The accused was arraigned for contravening s 47(1) of the Criminal Law (Codification and Reform) Act, [Chapter 9:23] relating to murder. The charge is that at House 48 Bossmine Compound, Mashava the accused caused the death of Edmore Jonathan by assaulting him all over the body with an iron bar. The then 34 year old accused resides at No. 48 Bossmine, Mashava and is an uncle to the then 27 year old deceased Edmore Jonathan of Makotore Village, Chivi, Masvingo. The facts giving rise to this charge are as follows:- On 16 April 2019 at night the now deceased was playing a game of snooker in Shumba Store, Bossmine, Mashava with some unknown adult and a bet of $2.00 was on offer for the HMA 49-20 CRB 16-20 winner. Apparently a dispute arose as to who was the winner and thus entitled to the $2. A quarrel ensued. The accused who was present intervened and declared that the now deceased had lost the game. The now deceased was unimpressed and a quarrel ensued between accused and the now deceased. During this heated argument the accused and the now deceased pushed each other. However the now deceased appeared to relent as he advised accused that they were related and should not fight each other. The accused however took possession of the $2 put as a bet for the winner and left for his residence. This prompted the now deceased to follow him. Upon arrival at his home the accused hid in a fire place at the verandah of his house. When the now deceased arrived he started to knock at the door of accused’s house, unaware that the accused was hiding. The state alleges that the accused got out of the hiding place armed with an iron bar and hit the now deceased from the back. It is said the now deceased fell on the veranda and rolled on to the ground. It is alleged that the accused followed him and further assaulted him with the iron bar now alleging that the now deceased was knocking at accused’s house because he should have been in a love affair or extra marital affair with the accused’s wife one Mavis Chebundo. According to the state, Brenda Sibanda accused’s neighbour witnessed the assault and called the now deceased’s relative Irene Dzemere. It is said both ladies could not intervene due to the anger exhibited by the accused and the vicious nature of the assault. The deceased is said to have pleaded for mercy to no avail. It is alleged that the assault only stopped when more people gathered and the accused fled from the scene leaving the now deceased in a pool of blood and severely injured. Andrew Phiri and Irene Dzemhere took the now deceased to the local Bere clinic. Due to the severity of the injuries the now deceased was transferred to Masvingo General Hospital and to Harare Hospital on 17 April 2019 but unfortunately passed on on 3 May 2019 while admitted in Harare due to the injuries. The accused was later arrested. The cause of the now deceased’s death is said to be bilateral pneumonia, left haemothorax and fractured ribs caused by the blunt force. In his defence outline the accused raised a cocktail defences including denial of fatally assaulting the now deceased, voluntary intoxication, self-defence and provocation. HMA 49-20 CRB 16-20 The accused said he fought the accused inside Shumba Store because the accused provoked the accused by boasting that he, the now deceased was having an extra marital affair with the accused’s wife. After this brief fight the accused said he left Shumba Store for his residence as he was intoxicated. However he said he was attacked by the accused with a catapult on his way home sustaining some injuries. Upon arrival home the accused said he naturally asked his wife if she had an extra marital affair with the now deceased. The accused said the now deceased suddenly arrived at the accused’s residence threatening mayhem. He said he was attacked with stones whilst in his house. Sensing imminent danger to himself and his family accused said he decided to act in self-defence and defence of his family by hitting the now deceased with an iron bar causing the now deceased to fall down. In the process the accused said the now deceased fell from the steps on the verandah rolling on to the ground resulting in the now deceased being seriously injured. He said he was then able to disarm the now deceased of the knife he had and a catapult. In explaining the now deceased’s injuries the accused said other than acting in self-defence by delivering a single blow with an iron bar the now deceased was injured when he fell from the steps leading to the verandah. The accused said the now deceased was however able to flee from the scene despite being injured. During the course of the trial a total of 4 Exhibits were produced by consent being Exhibit 1 the Autopsy report, Exhibit 2 accused’s confirmed warned and cautioned statement, Exhibit 3 Certificate of weight of the iron bar and Exhibit 4 the iron bar. As per Exhibit 3 the iron bar Exhibit 4 has a weight of 2.3 kg and is 83 cm long. We noted that it is quite sharp on the other end and fairly heavy. In his warned and cautioned statement the accused confirmed the fight with the now deceased inside Shumba Store after which he said the now deceased followed accused to accused’s house. He said he then struck the now deceased with an iron bar at accused’s house in self-defence. The narrow issue in this matter relates to how the now deceased was injured and also the cause of his demise. In resolving this issue we shall consider the evidence of state witnesses who allegedly witnessed the assault, and those who observed the injuries sustained by the now HMA 49-20 CRB 16-20 deceased. This would then be juxtaposed with the accused’s evidence, specifically whether factual issues he raises are not only truthful but amount to the various legal defences he raised. Ultimately the now deceased’s cause of death is not meaningfully disputed. As already said the Autopsy report Exhibit 1 was produced by consent and Dr Bopoto who compiled it testified. Dr Bopoto only examined the now deceased on 3 May 2019, some 16 days after the assault and after the now deceased’s death. Dr Bopoto was non-committal as to what exactly caused the injuries he observed on the now deceased’s body which he listed as; i) ii) iii) iv) Broken left arm above the elbow Multiple lacerations and bruises Sub jackal haematoma (bleeding under the skin of the skull) Fractured 3rd to 5th ribs resulting in damaged lung and bleeding inside the chest which in turn caused pneumonia v) Bleeding under the skin of the abdomen All Dr. Bopoto said these injuries were most likely caused by blunt trauma which could be a result of failing from steep steps or an assault. Dr Bopoto was not privy to the exact facts of the state case. He found it difficult to commit himself as to whether a fall from some steps whose height or steepness he did not know could cause such injuries. Equally he could not rule out the alleged assault. All he was clear about is that the cause of death was bilateral pneumonia, left haemothorax, and fractured ribs caused by blunt trauma. Dr Bopoto’s professional predicament is understandable. He only examined the now deceased’s body 16 days after the incident. He was not given the alleged facts. The now deceased had been in hospital from 16 April 2019 to 3 May 2019. Some of the injuries were attended to and could have healed. As to how the now deceased was injured we have therefore to consider other evidence. The evidence of the Investigating Officer Sgt Gold Zishiri is also not very material as he only took over the matter which was initially treated as attempted murder after the now deceased’s death on 3 May 2019. All he said is that it is the accused who