S v Vambe & Anor (CRB 22 of 2013; HH 254 of 2016) [2016] ZWHHC 254 (7 April 2016)

1 HH 254-16 CRB No. 22/13 THE STATE versus AMON VAMBE and TENDAI MUPAKWA HIGH COURT OF ZIMBABWE MWAYERA J HARARE, 9 October 2013, 18 November 2013, 8 September 2015, 15 October 2015, 30 March 2016 and 7 April 2016 ASSESSORS : 1. Mr Chidyausiku 2. Mr Barwa Criminal trial M Manhamo, for the State O Shava, for accused 1 & 2 MWAYERA J: The case concerns the allegations of murder of one Desmond Vambe. On 23 October 2010 at Bako village Headman Mtengwa, Sadza, the two accused are alleged to have unlawfully and with intent to kill or realising that there was a real risk or possibility that their conduct might cause the death, caused the death of Desmond Vambe by assaulting him all over his body with clenched fists, booted feet and a log thereby inflicting injuries from which Desmond Vambe died. Both accused pleaded not guilty to the charge. It is apparent from the evidence that the accused persons are related as uncle and nephew respectively. The deceased was the 1st accused’s son. On the fateful day the accused persons together with one Loverage Matanga went to the 1st accused’s rural home in response to a call by one Chanzini Vambe. The latter had called in the accused to take charge of the deceased who appeared mentally disturbed as he was destroying property and causing problems. Upon arrival at the rural home, on approaching the deceased who was behind the 1st accused’s bedroom the deceased took to his heels. The 2nd accused persued and caught up with the deceased HH 254-16 CRB No. 22/13 whereupon, they wrestled with each other. In the struggle between the 2nd accused and the deceased the 2nd accused slapped the deceased as he fought to release himself. At that time the 1st accused who had remained behind parking the motor vehicle had caught up with the two. The 1st accused freed the 2nd accused from the deceased with whom the latter was wrestling. The 1st accused then assaulted the deceased with a belt, stick and log. There after the deceased was taken back to the homestead and was caused to lie in the veranda. It is clear from the evidence of the state witness Chanzini and the two accused persons that the deceased’s condition deteriorated. He was given some porridge but he threw up and started frothing. Thereafter the deceased was rushed to Sadza Hospital where he was pronounced dead upon arrival. The State adduced evidence from the medical doctor Chatanga, Chanzini Vambe and the Investigating Officer Sergeant Richard Mariga. Chanzini Vambe the 1st accused’s mother and grandmother to the deceased recounted how the two accused and one Loverage Matanga arrived home and went about to apprehend the deceased. The witness initially was over protective of the 1st accused her son and the State successfully sought to have her declared hostile. After impeachment the witness who was economical with detail went over events of the fateful day. What was clear in her evidence was that the accused persons assaulted the deceased even while at the veranda and that Loverage Matanga was restraining. She like the accused persons confirmed that the deceased was later taken away in the vehicle and that she later discovered he had passed on. I must mention at this stage that Loverage Matanga, an uncle to the accused who was present at the material time was not called to testify as he was not located. Even though he was related to the accussed and deceased he was present at the material time and his evidence would have been of assistance to not only the State but the court. The investigating officer Sergeant Richard Mariga also testified. He caused the post mortem examination of the remains of the deceased and recorded a warned and cautioned statements of the 1st accused person. The witness recovered a log and stick allegedly used during the attack but none of these exhibits were produced in court as the witness said he is not the one who recovered the exhibits from the scene, but that they were recovered and handed to him by one officer Mamhonzi who was not called to testify. The State also adduced evidence from one Dr Nhamo Rwadzai Linge Changata. The Medical Practitioner who at the relevant time was based at Sadza District Hospital confirmed examining the remains of the deceased at the request of the Zimbabwe Republic Police on 25 HH 254-16 CRB No. 22/13 September 2010. The Medical Practitioner explained his findings as contained in the post- mortem report which was tendered as Exh 1. The doctor observed a cut on the right frontal region of the head, scars on the right side of the neck, contrusion marks in posterior deltoid region on back, bleeding from the nose and mouth. Unkempt, signs of mental retardation. He then concluded that death was due to cerebral haemorrhage. In explaining his findings the doctor detailed that the injuries could have been occasioned by blunt trauma with a lot of force. Whereas the doctor’s explanation was helpful and honest the defence correctly and rightly took him to task on the external examination he carried out leading to a conclusion of internal injury being the cause of death. The issue is credible and honest as he was the examination conclusive? I propose to discuss this aspect later in the judgment suffices at this stage to take note of the question loaming large. The defence case was punctuated by evidence from the accused persons who testified in person. No other witnesses were called. The first accused maintained his defence outline that he assaulted the deceased his son using a belt and stick on the legs as a way of chastising him since his son was misbehaving and showing signs of mental instability. In his confirmed warned and cautioned statement which was tendered by the State as exh 3 by consent the first accused gave the same version but added that the 2nd accused assaulted the deceased using booted feet and clenched fists. This assault persisted even after they apprehended and took deceased home. The version of the 1st accused was that he had to restrain accused 2. The 2nd accused’s version in defence outline was to the effect that he only slapped the deceased in self-defence and the 1st accused used a stick which broke and then he used a log to assault the deceased. During the defence case it was apparent the 1st accused sought to minimise the participation of accused 2 in the assault of the deceased as he stood his ground that the 2nd accused only slapped the deceased in self-defence since the two were wresting. The 2nd accused in turn resiled from saying the 1st accused used a log to assault the deceased. He even introduced new evidence that the deceased vomited cow peas and pills after the assault and suggested these could have been linked to the death of the deceased. I must hasten to mention that such after -thought given the relationship between the two accused is indicative of desire to protect each other at the expense of the truth. The accused did not impress the court as candid witnesses in so far as detail pertaining to how the deceased was assaulted. What was clear despite the machinations to cover up the nature and extent of assault was that both accused exercised some physical force on the deceased on the fateful day. From the totality of the evidence HH 254-16 CRB No. 22/13 bearing in mind the onus is on the State to prove its case beyond reasonable doubt and that the accused does not have to prove his innocence on the same standard the case of R v Difford 1937, AD 772 is relevant. The court is to seek to strike a balance between the evidence and the law and come up with a disposition. The accused were both arraigned before the court on a charge of murder as defined in s 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The essential elements of murder are defined as unlawful and intentionally causing of death of another person. See the case of The State v Milos Moyo HB 85/2010 an accused can therefore only be guilty of murder if his action causes the consequence which would be the factua