S v Pedzisai (60 of 2022) [2022] ZWMSVHC 60 (28 July 2022)

CRB 28-21 HMA 60-22 THE STATE versus TENDAI PEDZISAI HIGH COURT OF ZIMBABWE MAWADZE J MASVINGO,2, 16 June, 5 & 28 July 2022 Assessors: 1. 2. Mr Chikukwa Mrs Chademana E. Mbavarira, for the respondent P. C Ganyani, for the accused Criminal Trial MAWADZE J: The main issue to be determined in this matter is how the now deceased sustained the fatal head injury on 2 August 2021. The first point of call is a factual rather than a legal one. It entails simply a proper juxtaposition of the version by the state on one hand and that by the defence on the other. The accused is facing a charge of murder as defined in section 47 (1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The charge is that on 2 August 2021 and inside Muchacha bottle store and shop at Chiredzana business centre, Zaka, Masvingo the accused intentionally and unlawfully caused the death of MUNZWA MUCHENI by pinning him on to the shop counter and then striking him with a steel bar stool on the head. HMA 60-22 CRB 28-21 The then 41-year-old accused is from Tapera village and the then 72-year-old now deceased was from Matara village both in chief Nhema’s area of Zaka Masvingo. They both shared the same dip tank which is the place where the dispute between them allegedly started on that day. It is not in dispute that on 2 August 2021 whilst both were at dip tank the now deceased’s ox was trapped and the accused assisted in rescuing it. The state alleges that the accused soon thereafter at the dip tank demanded a token of appreciation from the now deceased and that the now deceased declined to offer any. They both went their separate ways. That same day in the afternoon both the accused and the now deceased were to meet again in Muchacha bottle store at their local Chiredzana business centre. At about 1500hrs that day the accused went into Muchacha bottle store to charge his cellphone. There were other beer patrons watching soccer on television. The accused then sat on a bar stool also watching soccer. Some thirty minutes later the now deceased also entered into the same bottle store. The state alleges that the accused resumed his previous demand to the now deceased that he be paid for his efforts in rescuing the now deceased’s ox that morning at the dip tank. It is said the accused demanded that the now deceased buy him a drink but the now deceased declined. The state case is that this incensed the accused. It is said the accused stood up from the bar stool he was seated on and lifted up the same bar stool which he then used to pin the now deceased against the counter in the bottle store. It is alleged that one patron Obert Kunodziya tried to reprimand the accused for his conduct to no avail. The state alleges that the accused then proceeded to use the same bar stool to strike the now deceased once on the head causing him to fall down bleeding profusely. The now deceased fell unconscious and was pronounced dead on arrival at Mashoko hospital moments later. His death is said to be head injury. The accused whilst admitting rescuing the now deceased’s ox at the dip tank earlier that day in the morning denied asking for any token of appreciation from the now deceased at the dip tank or later that day in Muchacha bottle store. In fact, the accused said it is the now deceased who was abusive and aggressive when the two met in Muchacha bottle store. The version by the accused is that when the now deceased found accused inside Muchacha bottle the now deceased as he entered just started shouting at the accused threatening to deal with HMA 60-22 CRB 28-21 the accused. The accused said the now deceased looked drunk hence he tried to ignore him. The accused said the now deceased was unperturbed and proceeded to pick a bar stool charging towards the accused. The accused said as the now deceased was about to hit the accused with the said bar stool the accused reacted by strongly pushing the now deceased away causing the now deceased to hit on to the floor heavily. The accused said the floor of the bottle store had pot holes or was damaged hence the now deceased was fatally injured on the head. The accused blames his prosecution on the alleged shoddy job by the police officers who investigated the matter. The accused’s view is that the police should have recorded statements from all people present and not a selected biased few. The accused further alleges that one of the so called state witnesses the bar lady did not even witness how the now deceased was fatally injured as she had left the counter to go into a store room to collect beer for a local school headmaster called Masingwini. In fact, the accused said this bottle store was operating in violation of the then Covid 19 Regulations hence the bar lady was first charged and fined by the police before being turned into a false eye state witness in order to falsely incriminate the accused. The accused said indications done by the police at the scene of crime were improperly done and that when accused made his own indications the accused’s legal practitioner known to the police was not advised. The state led evidence on how the now deceased was fatally injured from Regina Kufa the bar lady and two patrons who are said to have been inside Muchacha bottle store Luis Muchacha and Matthew Mahike. Further evidence was led from Constable Meki Shandurwa to whom the initial report at the local police base was made and Assistant Inspector James Chidhakwa the investigating officer. Lastly Dr Godfrey Zimbwa who examined the now deceased’s remains and compiled the post mortem report gave evidence for the state. The accused testified and called one Charles Mukondo who is said to also have been inside the bottle store as a defence witness. A total of four exhibits were produced during the trial. These are; Exhibit 1 the post mortem report, Exhibit 2 the steel bar chair, Exhibit 3 the certificate of weight of the steel chair and Exhibit 4 an affidavit by Dr Godfrey Zimbwa which more or less regurgitates the findings in the post mortem report. HMA 60-22 CRB 28-21 The cause of the now deceased’s death is not an issue perse. It is severe head injury. The point of departure between the state and the defence is this; The state is alleging that the accused inflicted the severe head injury with a bar stool made of metal Exhibit 2 whose weight as per Exhibit 3 is 6.5kg. The defence on the other hand alleges that the accused simply pushed away the now deceased in a bid to ward off an impending attack causing the now deceased to hit his head hard onto the damaged floor which had pot holes. The defence alleges that it is the sharp edges of the said holes or pot holes on the floor which caused the severe head injury. Dr Zimbwa as per Exhibit 1 the post mortem report done on 4 August 2021 observed the following injuries; “1. 2. 3. Laceration on right frontal parietal area ±4 cm long scalp deep underlying bone fracture severe bleeding. Bilateral peri orbital haematoma with severe nose bleeding. Bruising on occipital area.” Dr Zimbwa in Exhibit 1 then concluded that death was due to severe head injury caused by blunt trauma. In the affidavit Exhibit 4 Dr Zimbwa further elaborated that the injuries were caused by a sharp edged instrument and blunt object. In his viva voce evidence Dr Zimbwa said the laceration he observed on the now deceased’s head was on the right side of the head towards the front part between the ear and the forehead. This is where there was also the underlying bone fracture. Dr Zimbwa explained that the swelling on both eyes was caused by the bleeding under the skin of the head. He said the mild trauma at the back of the head where there was some bruising could have been because the now deceased fell on his back. He said to inflict the fatal injury severe force was used as skull bones by their nature a very hard and do not fracture easily. In cross examination Dr Zimbwa said the metal part of the bar stool Exhibit 2 could cause the injury he ob