S v Mushurwa (CRB 41 of 2020; HH 266 of 2021) [2020] ZWHHC 266 (23 September 2020)

1 HH 266-21 CRB 41/20 THE STATE versus SHEPHERD MUSHURWA HIGH COURT OF ZIMBABWE CHITAPI J HARARE, 23 September, 2020 Criminal Trial - Murder T. Kasema, for the State J. T Fusire for the accused Assessors: Mr Chitsiga Mr Gweme CHITAPI J: The accused pleaded not guilty to a charge of murder wherein it was alleged that:- “On the 31st day of August, 2018 at number 14604, Unit ‘O’ Seke, Chitungwiza, Shepherd Mushurwa strangled Prosper Mushurwa and punched him thrice with fists on the stomach realizing that there was a real risk or possibility that his conduct may cause death, and continued to engage in that conduct despite the risk or possibility thereby causing his death.” The deceased was a 12 year old son of the accused. The accused filed a defence outline. The long and short of the defence outline was to the effect that the deceased had stolen and squandered $20.00 which the accused kept under the pillow in his bedroom. The accused then confronted the deceased about the missing money. The deceased confessed to have taken the money. The accused did not take immediate retaliatory action but instead, he proceeded into the kitchen to prepare supper. The deceased remained standing in the passage. Upon seeing the accused moving towards the kitchen, to check on the cooking pots, the deceased then suspected that the accused was coming for him to assault him. The deceased tried to run away but must have slipped and hit his head against the door because the accused heard a loud bang after which he then rushed to check the source of the sound only to find the deceased sprawled on the floor. In short therefore the accused’s defence was that the deceased died as a HH 266-21 CRB 41/20 result of an accidental fall for which the accused was not responsible or had nothing to do with. The issue for determination in this trial was whether or not it is the accused who caused the death of the deceased and if so, how? The post mortem report prepared by the forensic pathologist Dr Iglesias Capetitto was produced as exhibit 1. The cause of death was recorded as “mechanical asphyxia, chest compression and suffocation.” The report was compiled at Chitungwiza Hospital following the examination of the deceased remains carried out on 5 September, 2018. An issue arose on the production of the post mortem report with the accused’s counsel opposing the production thereof as the accused person wanted the forensic pathologist to be called to testify. Counsel however resolved the issue and the report was produced through another doctor who relied on hospital records to reach his opinion. The first state witness was 16 years old Prince Mushurwa, who is the surviving son of the accused. The deceased was his younger brother and they stayed the two of them into the accused. He indicated that he was comfortable to testify in court and in front of the accused. He was admonished to tell the truth. He confirmed that he understood truth from lies and the need to tell the truth. The witness testified that he was in form 3 and that the accused was his father. In relation to the events of 31 August, 2018, he testified that the accused confronted him to enquire whether the witness knew about the accused’s $20.00 which had gone missing. The witness denied knowledge of the missing money. The accused ordered him to call the deceased who was at a prayer meeting some houses away from their house. The deceased came home with the witness. The witness then asked the deceased about the money. The deceased confessed to taking the money but exhorted the witness not to disclose the confession to the accused. On arrival at the house the accused asked the deceased about the missing money and twice the deceased denied any knowledge of the money. On the third occasion, the accused asked the deceased about the money in a harsh voice and the deceased admitted to taking the money. When asked whether there was any change left, the deceased led the accused to the back of the house where 60c was recovered from a hole which the deceased had dug as a secret hiding place where he kept the money. The witness testified that the accused ordered the deceased to get into the house but the deceased was hesitant and remained outside. The witness got into the house with the accused and HH 266-21 CRB 41/20 the witness sat on the sofa. The witness then persuaded the deceased to get into the house. The deceased entered the house and stood by the door. The accused then asked the deceased as to why he took the money but the deceased did not respond. The accused then harshly asked the deceased the same question. The deceased on being harshly confronted by the accused then tried to leave. The accused however slammed the door into the deceased resulting in half of the deceased body being inside the house and the other side outside of the entrance. The witness continued in his testimony that the accused then got hold of the deceased’s hand and pulled him to the bedroom. The door to the bedroom was closed. When the accused reached for the door of the bedroom to open it whilst at the same time dragging the deceased, the deceased fell to the floor as the door was pushed open. The witness did not see how exactly the deceased fell to the floor although he noticed that the accused was pulling the deceased holding on to the deceased’s shirt by the chest area. The accused then pushed the deceased on to the bed and started strangling the deceased using both hands as he sat atop the deceased. The deceased continued the assault by hitting the deceased twice on the chest with one hand whilst the other hand was throttling the deceased on the neck. The witness testified further that the deceased convulsed and this forced the accused to let go of the deceased who fell off the bed onto the floor. The accused then called out to the deceased but the latter responded in a faint voice. The accused lifted the deceased and poured some water on him ‘as’ well as rubbing salt under the deceased’s feet. The deceased was no longer talking. The witness was asked by the accused to cover the deceased’s nostrils and blow into his mouth. The witness said that he placed his mouth by the deceased’s chest to check for breathing and he did not feel any breathing. He suggested to the accused that the now deceased had died and the accused was upset with the comment by the witness. When the accused suggested that the deceased should be taken outside the witness suggested that the deceased should be taken to the hospital instead. It was then that the accused arranged for transport from a neighbor and the accused, the deceased and neighbor referred to as Enock’s father proceeded to the hospital. When asked whether there were issues between the accused and the deceased and whether their relationship was cordial, the witness responded that the deceased had sticky fingers. The deceased would steal money from the house or from the accused to buy food for himself if there was no food in the house. The deceased used to tell the witness that it was better to be beaten with HH 266-21 CRB 41/20 a full stomach than when hungry. When asked whether he was influenced to tailor his testimony by his aunt, he denied the suggestion and stated that following the departure of the accused and deceased to hospital, the accused’s older brother and wife came. They suggested that the witness’ mother’s relatives be advised since her mother was in South Africa. The witness’ maternal aunt was then told of the occurrence and she threatened to report to the police on the following morning as the events had occurred at night. Under cross examination the witness agreed that he was now staying with his aunt. He denied visiting the accused occasionally but agreed that he would when sent on errands just pass by to great him. He denied that he confessed to the accused that he was under influence to give a different version of events of the fateful night. The witness maintained his testimony that he did not see