S v Sithole (CRB 79 of 2016; HH 333 of 2016) [2016] ZWHHC 333 (1 June 2016)

1 HH 333-16 CRB 79/16 THE STATE versus PROMISE SITHOLE HIGH COURT OF ZIMBABWE MAWADZE J HARARE, 19 May and 1 June 2016 Assessors: 1. Mr Chivanda 2. Mr Shenje Criminal Trial D H Chesa, for the state J Chikura, for the accused MAWADZE J: The accused is being charged of murder as defined in s 47 (1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] in that on 3 March 2015 at Stanbarn bar Chegutu the accused caused the death of Tichaona Zinondo by striking him with an axe once on the right side of the head realising that there was a real risk or possibility that his conduct may result in Tichaona Zinondo’s death. The facts alleged are that on 3 March 2015 the accused and deceased were playing a game of snooker in Stanbarn bar Chegutu when they had a misunderstanding. It is alleged that the accused then left the bar and armed himself with an axe. The accused is said to have met the deceased at the verandah of the bar where the altercation between them resumed. Accused is alleged to have pulled out an axe and struck the deceased in the right side of his head causing deceased to collapse and bleeding profusely. The deceased died before he was taken to hospital. The cause of the deceased’s death is said to be skull fracture which resulted in brain damage arising from the assault. In his defence outline the accused does nor deny that he struck the deceased with an axe on the head. The accused said what happened that day was that he was heavily intoxicated as he HH 333-16 CRB 79/16 had been drinking beer from 10 00hrs until about 21 00hrs when this incident happened. The accused said he had an altercation with the deceased at about 21 00hrs over the game of snooker after he had defeated the deceased but the deceased refused to concede defeat insisting that they play another game despite that there were other players who had placed their challenge against accused and wanted to play. The accused said he grudgingly gave in and played another game with the deceased. The deceased was infuriated when other patrons started to cheer the accused and deceased sunk al the balls thus prematurely ending the game. The accused said the next person in line to play the game then pressed his token but deceased again sunk all balls. As a result accused said he confronted the deceased but the deceased reacted by assaulting accused with open hands, clenched fists and booted feet all over the body. The accused said he managed to escape and went home but he realised that he had left his cell phone in the bar which was being charged by the bar lady. The accused said he decided to return to the bar to collect his cell phone. The accused said he feared to be attacked by the deceased again or by other muggers as it was dark hence he armed himself with a small axe and returned to the bar where he collected his cellphone. The accused said as he left the bar the deceased blocked his way by the door but he managed to force his way out of the bar. At that point he said the deceased charged towards him threatening to assault him again. The accused said in trying to prevent the assault he produced his axe and waived it towards the deceased in a bid to scare the deceased. The accused said the deceased nonetheless advanced towards the accused and in so doing he moved into the line of motion of the axe which was being waived and was struck in the process. The accused said he did not intend to strike the deceased at all and had no intention to cause deceased’s death. The accused said when he waived the axe his judgment was impaired by the alcohol he had taken. The post mortem report which was produced as exh 1 was compiled by Dr Mauricio Gonzalez shows that the deceased was injured on the parietal area and had a 6cm wound. The deceased’s skull was fractured, that is the parietal bone. The cause of deceased’s death is stated as skull fracture resulting in brain damage due to head trauma. The contents of the post mortem report and the findings by the Doctor are not in issue. Exhibit 2 is accused’s confirmed warned and cautioned statement whose contents are basically similar to accused’s defence outline on the cause of altercation resulting in the alleged first assault. The only difference is on how the accused said he allegedly struck the now deceased with the axe. In the statement the accused said as he left the bar after collecting the cellphone the HH 333-16 CRB 79/16 deceased followed him as deceased was ready to assault the accused with clenched fists. As a result accused said he proceeded to strike the now deceased with the axe once in the head causing deceased to stagger and that accused fled the scene. There is no mention that the accused first swerved or waived the axe. The accused said he first fled to Selous where his mother stays and that on the way he threw away the said axe into Mupfure River. Accused said he later went to Venice Mine and subsequently surrendered himself to police at Battlefields after 12 days on 15 March 2015. The evidence of the following witnesses was admitted in terms of s 314 of the Criminal Procedure and Evidence Act [Chapter 9:07]. 1. Munyaradzi Mugarira 2. Nyasha Muza 3. Stanford Makomo 4. Simbarashe Dhobha 5. Dr Mauricio Gonzalez For purposes of clarity and completeness we shall summarise the evidence of the above state witnesses. We have already dealt with the testimony of Dr Mauricio Gonzalez when we dealt with exh 1 the post mortem report. Suffice to say he is a forensic pathologist who examined deceased’s body at Harare Central Hospital on 6 March 2015 and compiled Exhibit the post mortem report. Munyaradzi Mugarira He was one of the patrons in the bar and witnessed the argument between the accused and the deceased over the game of snooker. He was later alerted when the now deceased had been injured outside the bar after which he went out of the bar and found the now deceased lying down bleeding profusely. He is the one who called an ambulance to ferry the now deceased to hospital. He therefore did not witness how the now deceased was injured. Nyasha Muza He was residing with the accused in Chegutu and he said on the night in question the accused arrived home at about 2000hrs as he was doing his school homework and that he opened the door for the accused. He said the accused simply collected a small axe which was in the HH 333-16 CRB 79/16 house and immediately left the house. It is common cause that this is the axe accused later used to fatally strike the now deceased. Sgt Stanford Makomo He is the investigating officer in this case. His evidence is that he ferried the now deceased’s body to Harare Central Hospital for an autopsy by Dr. Mauricio Gonzalez. He said after accused had been arrested and on 20 March 2015 he recorded accused’s warned and cautioned statement which he caused to be confirmed at the magistrates court. Thereafter he said he took accused for indications at the scene of crime where accused made indications from which he drew a sketch plan which was however not produced by the state. He said accused then led him to Mupfure River in a bid to recover the axe used in the attack of the now deceased and that the police sub aqua unit failed to find the axe in the river. Simbarashe Dhobha He is a fellow police detail who assisted Sgt Stanford Makomo during investigations and his testimony is similar to that of Sgt Stanford Makomo. We now turn to viva voce evidence led by the state. James Bangamuseve (James) James resides at No P47 Pfumojena Township in Chegutu and on 3 March 2015 he was one of the patrons in Stanbarn bar when accused and the now deceased had an altercation over the snooker game. He said he had just arrived in the bar towards 2100hrs and was sober when he witnessed the accused and the now deceased being restrained as they were about to fight after which the accused left the bar. James said after about 25 minutes he then heard Clement Mutazu calling out for help from outside the bar and he rushed out where he sa