S v Mukunguma (CRB 11 of 2020; HMT 32 of 2020) [2020] ZWMTHC 32 (20 May 2020)

1 HMT 32-20 CRB 11/20 THE STATE versus KUZIVA MUKUNGUMA HIGH COURT OF ZIMBABWE MWAYERA J MUTARE, 18, 19, 20 and 27 February 2020, 5 and 23 March 2020 and 20 May 2020 Criminal Trial ASSESORS: 1. Mr Chipere 2. Mr Mudzinge M Musarurwa, for the State S Chikamhi, for the Accused MWAYERA J: The accused pleaded not guilty to a charge of Murder as defined in s 47 (1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. It is alleged that on 19 April 2019 at around 2100 hours and at Village 26, Mount Zonwe, Odzi, the accused person stabbed the deceased thrice on the left arm, abdomen and left side of the chest with a bayonet knife intending to kill him or realising that there was a real risk or possibility that his conduct might cause the death and continued to engage in that conduct despite the risk or possibility resulting in injuries from which the said Agent Mukunguma died. The remains of the deceased were taken for post mortem and Dr Chibowa compiled a Post Mortem Report tendered as exh 1 by consent. The doctor observed wounds and concluded that cause of death was massive hemothorax chest trauma. The accused in his defence outline denied having an intention to kill the accused at all. The accused pointed out that they had spent the greater part of the day together with the deceased drinking beer. Upon their return home that is when an argument ensued when accused threatened to assault his wife after she served sadza. The two engaged in a fight and when deceased took stones accused then took a knife to scare off the deceased. The fight continued until one Simbanai Mawoyo restrained and deceased escaped. The accused was however undeterred so he followed and the fight continued. It was then that the accused started to stab the deceased in self-defence. HMT 32-20 CRB 11/20 Worth noting at this stage is the accused’s confirmed warned and cautioned statement, exh 2 in which the accused admitted stabbing the deceased with a bayonet knife while the two who were drunk were fighting. In the warned and cautioned statement there is no mention of use of stones by the deceased. Also tendered in evidence by consent was the sketch plan exh 3, the certificate of weight of the bayonet knife exh 4 and the bayonet knife itself exh 5. The State relied on evidence of 14 witnesses, 2 of whom gave oral evidence while the other 12’s evidence was formerly admitted in terms of s 314 of the Criminal Procedure and Evidence Act [Chapter 9:07]. Beaulah Mutoma the wife of the accused gave oral evidence to the effect that the accused and deceased, his nephew, engaged in a fight. The fight was occasioned by the efforts to intervene made by the deceased in an attempt to stop the accused from assaulting his wife the witness. The witness’s account was that the accused was violent on the day in question as he would physically lift her and then throw her on the ground over an issue of the quantity of sadza. The witness who was visibly bitter and keen on seeing the accused punished exaggerated her testimony. She sought to convince the court that she observed the first fist fight and then remained in attendance and watching while the accused was armed and striking the deceased with a bayonet knife. Despite pointing out that she fled with her children, she sought to paint a picture that she witnessed the accused strike the deceased who had fled to his home. Further she stated that she also witnessed the tobacco field slashing of deceased and the striking at the homestead. The witness sought to have the court accept that she was everywhere and that despite the darkness of the night she had a vivid picture of how the accused struck the deceased. She did not hide her desire to have the accused punished and nailed for his violent conduct. She could have done better as a witness if she had maintained an honest stance as opposed to being vindictive and thus exaggerate the testimony. We did not take the witness as entirely credible. What we deduced from the bitter witness’s testimony is that accused and deceased engaged in a fraca because the deceased sought to stop accused from assaulting his wife the witness. Her overzealous manner of testifying is understandable when one considers the manner of assault perpetrated on her, that is being raised and thrown to the ground. To correspond with what the witness stated, the accused was generally of violent disposition and that he was in the habit of violently abusing her. She obviously was not candid with the court when she stated that she observed each and every stage and blow of the fight, but we cannot ignore the common cause aspects particularly HMT 32-20 CRB 11/20 that the accused and deceased engaged in a fight and that the accused stabbed the deceased with fatal consequences. Shylet Manyanga’s evidence which was formerly admitted was essentially as follows. She was married to the deceased and the accused is a brother to her father in law. The deceased proceeded to the accused’s homestead reacting to the accused’s wife’s scream for help since accused was assaulting her. The witness also followed and found the accused and deceased fist fighting. The fight was stopped by one Simbanai Mawoyo and Pirato Machingura. Later the deceased went back to look for his shoe and a fight erupted in the tobacco field. She then heard her husband scream, he had been stabbed. She observed him bleeding from the arm and abdomen. The deceased then followed accused at his homestead requesting him to finish him off. It was then that accused stabbed deceased in the chest and he instantly fell to the ground whereupon he died. The third witness Simbanai Mawoyo’s evidence was formerly admitted. It was essentially that the accused and deceased were earlier drinking beer together. They went home together with the witness. After accused’s wife served the two with sadza he together with deceased left accused’s homestead and parted ways. He later heard screams from a female voice from accused’s homestead. This prompted the witness to rush to the scene whereupon he observed accused fighting with the deceased while one Pirato Machingura was restraining. After restraining the two dispersed and everyone went home. After a while the witness heard accused and deceased at it again shouting. This time the two were now in a tobacco field. He heard deceased shouting words to the effect that he had been stabbed with a knife by the accused. The deceased had injuries in the abdomen and on the arm. The two protagonist were unstopable as they returned to accused’s homestead. Straight thereafter accused shouted he had stabbed the deceased and was going to report himself to the village head. The witness observed the deceased lying dead on the ground with blood oozing from the chest. The fourth witness Pirato Machingura gave oral evidence. His evidence tallied with Simbanai Mawoyo’s evidence on all material respects. The witness stopped the fist fight between accused and deceased. He together with Simbanai Mawoyo tried to stop the second fight in the tobacco field but failed. The accused who was armed with a knife was violent occasioning the first stab wound in the arm and abdomen and finally back at the homestead a stab wound in the chest. The witness gave evidence well and his manner of testifying was beyond reproach. HMT 32-20 CRB 11/20 The fifth State witness Calvin Muperekedzwa a neighbour to the accused had his evidence formerly admitted. He was drawn to the accused’s residence just like the other witnesses by screams from accused’s wife. Accused could not accept his efforts to stop him from assaulting his wife so he went back to his homestead. Later accused’s wife and children approached his homestead seeking refuge. He later learnt about the death of deceased whose body he observed in a pool of blood at accused’s homestead. The police details who attended the scene namely Ngonidzashe Mukunguma of the Special Constabulary Unit, Sergeant Admire Mhaka, Detective Assistant Ins