S v Mudyanembwa (CRB 21 of 2020; HMA 3 of 2020) [2020] ZWMSVHC 3 (2 February 2020)

1 HMA 03/20 CRB 2/20 THE STATE versus TINOS MUDYANEMBWA HIGH COURT OF ZIMBABWE MAWADZE J MASVINGO, 16, 17 JANUARY and 7 FEBRUARY 2020 Criminal Trial T. Chikwati, for the state O. Mafa, for the accused MAWADZE J: The accused was arraigned before this court facing the charge of murder in contravention of s 47 (1) of the Criminal Law (Codification and Reform) Act [Cap 9.23]. The charge is that on 29 June 2019 of Mutumwapasi Village, Chief Shumba, Masvingo the accused unlawfully and intentionally caused the death of Clever Guvuriro by stabbing him in the neck with a knife. The 24-year-old accused is from Mugove Village and the 28-year-old now deceased is from Pedzisai Village both in Chief Shumba, Masvingo. Apparently, they were not known to each other. The facts in this matter are largely common cause and are as follows; On 29 June 2019 there was a church gathering for an all-night prayer at one Mutupo Madondo’s homestead in Mutumwapasi Village, Chief Shumba, Masvingo. It was attended by villagers from the surrounding villages. The accused was present with his friend one Moses Gundiro. The now deceased and his friend one Simbarashe Gumbochuma also attended the church service. HMA 03/20 CRB 2/20 It is not in dispute that earlier in the day with the now deceased and his colleague (Simbarashe) had spent the day from 1000hrs drinking opaque beer at the local shops. At around 1900hrs whilst now visibly drunk they proceeded to the church gathering. At the church gathering before the all-night prayer had started food was being served they asked for food. One Marko Gundiro and a woman Melody Mugore served them with sadza with dried vegetables of ‘munyemba’ as relish. As they ate the now deceased in his drunken state complained that they were being served sadza with poor relish which was like human hair. Marko Gundiro was unimpressed and retorted that the now deceased and his colleague Simbarashe should instead have eaten food and their own homestead. The now deceased’s colleague Simbarashe reacted by hitting Marko Gundiro, a young boy, with a morsel of sadza. Marko Gundiro in turn proceeded to make the report assault upon him to his older brother Moses Gundiro who was in the company of the accused. Moses Gundiro and the accused decided to confront Simbarashe and the now deceased in order for them to explain their conduct of assaulting Marko Gundiro. A misunderstanding then arose . Simbarashe and Moses Gundiro confronted each other holding and pushing one another. Meanwhile the now deceased confronted the accused. It is then alleged the accused and the now deceased engaged in a fist fight. The State case is that the accused was overpowered during the fist fight. It is common cause that the accused pulled out the knife and stabbed the now deceased on the left side of the neck. The accused fled from the scene and proceeded to his homestead some 3km away were he disposed of the knife in some field, in a contour ridge. The accused was arrested the next morning and led the police for the recovery of the knife. Meanwhile the now deceased after being stabbed staggered and fell down. He died immediately. The accused in denying this charge raised the defence of self-defence. In his defence outline the accused said that he and his colleague Simbarashe were drunk disturbing church proceedings. He said when he tried to talk to them to stop them from behaving in that manner a scuffle ensued between him and the now deceased. The accused said he was held by the throat by the now deceased who had a knife in his other hand threatening to stab the accused. The accused said he was in the process suffocating as he was being throttled. He said this caused him to pull out his own knife from his pocket and in self-defence stabbed the now deceased. The accused denied therefore that he had any intention to kill the now deceased. HMA 03/20 CRB 2/20 The cause of the now deceased’s death is not in issue. As per the post mortem report compiled by Dr Godfery Zimbwa Exhibit 1 the following was observed; “ - single stab wound in the left supraclavicular fossa ± 3cm wide severing major neck veins, ± 10 cm in depth into the neck. catastrophic haemorrhage noted on clothing” - The cause of death is said to be haemorrhagic shock arising from the stab wound. The accused does not dispute that he is the one who inflicted this stab wound on the now deceased on the left side of the now deceased’s neck with an okapi knife. The okapi knife in issue was tendered as Exhibit 3 (a). Its dimensions are outlined in Exhibit 3(b). It is 22cm long, the blade is 9 cm and 2 cm in width, the handle is 13.5cm and it weighs 0.0062kg. It is clear from the post-mortem report that the accused used severe force. This can be discerned from the nature of the wound the accused inflicted. A lot of force was used as the knife severed major neck veins and penetrated into the now deceased’s neck for 10cm. The injury caused the now deceased to lose a lot of blood and died immediately. The narrow issue this court has to resolve is whether the accused acted in self-defence in fatally stabbing the now deceased and thus absolved at law of any criminal conduct. To support its case the State relied on the evidence of Mark Gundiro, Gonovi Guvuriro, Simbarashe Gumbochuma, Moses Gundiro, Melody Mugore and Sgt Christian Gatsi. In addition to Exhibit 1 on the post-mortem report and Exhibit 3 (a) the okapi knife and its certificate of weight Exhibit 3(b) the state also relied on Exhibit 2 the accused’s warned cautioned statement. On the other hand in refuting the charge the accused gave evidence and did not call any witnesses. The bulk of the evidence of the State witnesses is not in dispute as already summarised from the facts not in issue. In fact the evidence of Marko Gundiro, Gonovi Guvuriro, Cst Nigel Javachava and Dr Godfrey Zimbwa was admitted in terms of s 314 of the Criminal Procedure and Evidence, Act [Cap 9:07]. We simply summarise it for completeness of the record as follows:- Marko Gundiro (Marko) Marko is accused’s cousin and a young brother to Moses Gundiro. He was not known to the now deceased. He is the one who served the now deceased and his friend Simbarashe Gumbochuma with sadza at the church gathering. The complaints by the now deceased and Simbarashe Gumbochuma about the poor or tasteless relish was directed at him. He is the one HMA 03/20 CRB 2/20 who was hit with a morsel of sadza by Simbarashe Gumbochuma after which he proceeded to report to his brother Moses Gundiro who was in the company of the accused. He did not witness what ensued thereafter. Gonovi Guvuriro (Gonovi) Gonovi is the now deceased’s father and was also at this church gathering. He is not known to the accused. Gonovi did not witness how his son the now deceased was stabbed. All he knows is that the now deceased came to him at a fire place saying he had been stabbed. He noted blood oozing from his son’s neck. He said the now deceased collapsed groaning. He rushed to look for a motor vehicle to ferry the now deceased to hospital but found none as most people had no fuel. Upon his return he found that the now deceased had passed on. Cst Nigel Javachava (Cst Javachava) Const Javachava simply assisted the investigating officer Chrispen Gatsi to conduct indications at the scene of crime and to carry out other investigations. Dr Godfrey Zimbwa Dr Zimbwa examined the now deceased’s remains and compiled the post mortem report Exhibit 1 already alluded to. The State led viva voce evidence from Simbarashe Gumbochuma, Moses Gundiro, Melody Mugove and Sgt Christian Gatsi. Again the bulk of that evidence is not useful to the resolve the issue in dispute. We turn to that evidence. Sgt Christian Gatsi (Sgt. Gatsi) Sgt Gatsi is the investigating officer and also the lead attending detail. Unfortunately for him all the State Witnesses disowned the material parts of their statements which he recorded from them on how the accused and the now deceased fought. He allude