S v Muzeya and Another (45 of 2024) [2024] ZWCHHC 45 (3 June 2024)

1 HCC 45/24 HCC 450/24 THE STATE Versus MISHECK MUZEYA AND BEATON MUZEYA HIGH COURT OF ZIMBABWE BACHI MZAWAZI J CHINHOYI, 28 May - 3 June 2024 Assessors: Mr. Mutombwa Mrs. Mateva Criminal Trial Mrs. K. Teveraishe, for the State Mr. S. Muyemeki, for the 1st accused Mr. T. N. Marinda, for the 2nd accused BACHI MZAWAZI J: On the 6th of October, 2023 at Angwa Unit 6, Mombeshora Village, Makonde, the deceased, James Mudyarima, died of several head injuries inclusive of multiple skull fractures, as revealed by the autopsy report filed of record by consent. Accused one and two are blood brothers and next-door neighbours to the deceased, were arrested in connection with the killing. They were charged with murder in terms of section 47(1) of the Criminal Law Codification and Reform Act, [Chapter 9:23]. Brief Facts The summarised facts are that, on the day in question, both accused person where at some stage in time at a common drinking place with the deceased and their elder biological brother Wellington Muzeya. The first accused had a physical confrontation with his brother, Wellington Muzeya and the deceased over an illicit brew known as Challenger. The first accused was then overpowered and left the scene. The role or presence of the second accused during the course of the fight is still to be determined. The State summary places him at the scene before and during the course of the HCC 45/24 HCC 450/24 fight. The second accused denied, saying he only arrived at the peak of the brawl and restrained the opposing factions from fighting. This is said to have taken place at around 4pm in the afternoon. There was however, a second fight which then took place at the deceased‟s homestead at around 2100hours the same evening resulting in the fatal injuries. The State allegations are that both accused persons took part in the second battle, on one hand. On the other, the accused persons both object to the involvement of the first accused but the second to a limited degree. State Case and Evidence In support of their case, the State tendered real and documentary evidence in the form of the autopsy report, accused persons‟ confirmed warned and cautioned statements, sketch plan and indications amongst other documents by consent. Direct evidence was led from the deceased‟s wife, Sandra Thabani who is the only single eye witness. The investigating officer Alice Mahadzva testified as to her investigations, collation of evidence and the recording of both the confirmed warned and cautioned statements and indications. The alleged murder weapons in the form of two stones weighing the average 10kgs each were produced. Each had visible dry blood stains. The big one had blood on both sides. The rest of the summarised state witness evidence was produced unopposed. Only two witnesses were called to testify in court. First State Witness Sandra Thabani, the deceased‟s wife was called as the first witness to give oral evidence. She related that the deceased returned to his homestead around 2100 in the evening with torn apparel. Upon being questioned on the state of his clothes he told his wife that he had a wrangle with the first accused over their longstanding farmland dispute. She also attested that after the explanation on the rent clothes, she dissuaded her husband from going to confront the accused persons who had later on arrived on their motor cycle. The deceased had left their bedroom into their yard when a verbal altercation ensued between him and both accused persons. This witness who claimed she never lost sight of her husband saw the second accused striking the deceased once with a log which felled him to the ground. Thereafter, the second accused joined in by attacking the deceased with stones HCC 45/24 HCC 450/24 whilst he lay on the ground. They all simultaneously continued with the onslaught on an already floored deceased who never arose from that fall. In turn she was begging and pleading with the accused persons to stop assaulting her now defenceless husband. Sandra Thabani, stated that she then ran to inform a neighbour who accompanied her back to the scene but her husband, the deceased had already passed. She confirmed of the existence of a farm boundary dispute between her husband and the second accused. On cross examination she maintained that the fight commenced and ended in her homestead and at no given point did the deceased encroach the accused‟s homestead which was metres away. The defence submitted that this witness lacked credibility as she missed the actual distance calculation between the two plots. Further, that she prevaricated in her testimony on whether or not she actually witnessed accused persons arriving on their motor bike or she was in her bedroom when the two arrived making her an unreliable witness. Analysis of the first Witness’s Evidence On analysis, the first witness‟s evidence may have had slight variations but it was not in the most important aspects of the commission of the offence. It is understandable that having been exposed to such a horrendous act, of seeing her beloved one being attacked and dying right before her eyes whilst watching helplessly will impede her from chronicling some minute details in sequence. The discrepancies were insignificant and did not undermine the crux of the matter or taint her evidence. In our considered view, though point „A‟ on the sketch plan points to the field. This was the field whose boundary was at the heart of the party‟s hostility. It was not clear whether point “A” which was in the farm in dispute was on the deceased‟s side or not. From the sketch map produced, this was closer to the deceased‟s homestead and far from the accused. What is evident is that in the deceased‟s yard or compound there was no farmland. Logically point “A” must have been the disputed spot. That in itself does not point to the deceased as the encroacher or aggressor as suggested by Mr Muyemeki, counsel for the second accused, in an attempt to discredit the first witness‟s evidence. She had told the court that the assault took place on their side of the property. The court was satisfied that she was HCC 45/24 HCC 450/24 truthful, honest and did not exaggerate. It is our finding that she was a credible witness who was not shaken under cross examination. The Second State witness. Alice Mahadzva testified as the second State witness. Nothing much of dispute came from this witness. She was a reliable witness. She, as a police officer and the investigating detail could have done more with her investigations. There was a lacuna in the evidence in respect to whether or not the place demarcating the field was a single file stone boundary or not. This meant she did not examine the ground were the deceased‟s remains lay. However, the court found that the rest of her evidence was unexaggerated and credible. The Defence Case First Accused Accused one pleaded not guilty to murder. He admitted fighting with the deceased and his brother Wellington Muzeya at the beer drinking place. He gave three different versions as to what transpired after the initial brawl. In his State outline, he claimed that after the fight he was unable to walk because of the intensity of the beatings he received from the duo. In his defence outline, he stated that he proceeded straight to his homestead and was with the second accused‟s wife. He then retired into the pig sty during the second altercation. In court he gave two different statements. He stated that he arrived home after the fight at the homestead had already taken place. Upon arrival he went straight into the pig sty where he was awakened by his brother, the second accused. He then changed his version and said the fight took place when he was already in the pig sty as was drunk. He professed ignorance of the second fight during the course of his testimony, he had also stated that after the first fight he had gone into a nearby bush. When these averments were put to him in cross examination by Mrs