S v Zvikukutu and Another (28 of 2023) [2023] ZWMSVHC 35 (27 July 2023)

CRB 22/3-23 HMA 28-23 THE STATE versus CHIEDZA ZVIKUKUTU And TRUST CHIKUMBA HIGH COURT OF ZIMBABWE MAWADZE J MASVINGO, 4,17,21,24, & 27 July2023 Assessors 1. Mr Mutomba 2. Mrs Chikumba Criminal Trial E Mbavarira, for the state T Nyoka, for the accused 1 J Chipangura, for accused 2 MAWADZE J: Accused 1 Chiedza Zvikukutu (Chiedza) aged 42 years and accused 2 Trust Chikumba (Trust)aged 39 years are jointly charged of the crime of murder as defined in section 47 (1) of Criminal Law [Codification and Reform) Act [Chapter 9:23]. The charge is that on 13 November 2020 both accused unlawfully and intentionally caused the death of the now deceased MEJAS CHAMISA by assaulting him with a stone on the head, kicking him several times all over the body and stabbing him with a knife on the leg and face. The now deceased Mejas Chamisa was aged 46 years and was the husband to accused 1 Chiedza. They stayed together at village 3, Area Pension, Triangle where the offence is said to HMA 28-23 CRB 22/3-23 have happened. Accused 2 Trust was their neighbour. Accused 2 Trust is married but at the material time his wife was not at home. Accused 2 Trust said she had visited relatives though some state witness said they were now estranged. Accused 2 was staying with his children. According to the state the basis for this tragic event giving rise to the motive to cause the demise of the now deceased is that Accused 1Chiedza and Accused 2 Trust were in an illicit love affair which the now deceased allegedly discovered. It is not in issue that the now deceased’s family and Accused 2 Trust’s family enjoyed cordial and close relations. They tilled their fields together. Accused 2 Trust would perform various chores at the now deceased’s homestead. At the material time they were cooking and eating food together at the now deceased’s homestead. What happened is that on 13 November 2020 both accused were together at the garden in the afternoon. It is alleged that the now deceased later arrived at the garden and found both accused in a compromising position. It is not in issue that the now deceased assaulted Accused 1 Chiedza his wife and was only restrained by some other two men passing by. The now deceased then left to look for his stray cow. At around 1800hrs as usual the now deceased, the two accused, their children Mejas Chamisa Junior, Musa Chikumba and Brain Chamisa all gathered at the now deceased’s homestead and had supper. The state alleges that after supper the children went to sleep leaving the two accused and the now deceased chatting in the kitchen. It is alleged that both accused had hatched a plan to kill the now deceased. As a result, it is alleged they both attacked the now deceased in the manner already explained and killed him. Thereafter it is alleged that both accused lifted his lifeless body and laid it on a mattress in the bedroom. Both accused are said to have cooked a story that the now deceased had died while having sexual intercourse with accused 1 Chiedza, his wife. This false story is said to have been sold to fellow villagers and the police. A report of sudden death was made to police. However, when police attended the scene foul play was suspected on account of the injuries on the now deceased at the back of the head, deep cut above left eye, multiple facial injuries and cuts on the legs. This resulted in the arrest of both accused. CRB 22/3-23 HMA 28-23 DEFENCE OUTLINES OF BOTH ACCUSED Accused 1 Chiedza stated in her defence outline that the injuries on the now deceased were inflicted the previous day 12 November 2020 by one Chaka Bvuma at Chaka Bvuma’s homestead. Accused 1 Chiedza confirmed that she was assaulted on 13 November 2020 by the now deceased as the now deceased alleged that he had found her having sexual intercourse at the garden with accused 2 Trust. Thereafter accused 1 Chiedza said she, deceased, their children and accused 2 Trust had supper together at accused 1 Chiedza and deceased’s homestead. Accused 1 Chiedza said accused 2 Trust then left to retire at his homestead. Accused 1 Chiedza said the now deceased complained of chest pains arising from the assault perpetrated on him. Thereafter accused 1 said she retired to bed with the now deceased at 2300hrs after which they proceeded to have sexual intercourse. Accused 1 Chiedza said the now deceased died while on top of her being intimate. As a result, accused 1 Chiedza said she alerted accused 2 Trust and other villagers were informed. Accused 1 Chiedza said she was surprised to be arrested because the now deceased had no visible injuries and the blood seen on the clothes by the police was from a hare killed by her child. Accused 1 Chiedza said the police assaulted her in a bid to cause her to admit to the charge. She insisted that she never assaulted her husband the now deceased. Accused 2 Trust gave brief defence outline. He denied being in love with accused 1 Chiedza let alone being intimate with her. Accused 2 Trust said on November 2020 the now deceased just found accused 2 Trust assisting accused 1 Chiedza in the garden. Accused 2 Trust said he would not have gone for supper at the now deceased’s homestead that same day of he had been found having sexual intercourse with the accused 1 Chiedza. Accused 2 Trust said if he had a hand in the now deceased’s death he would have waited to be arrested but would have fled. THE CAUSE OF THE NOW DECEASED’S DEATH Accused 1 Chiedza seems to put into issue the cause of the now deceased’s death. However, the post mortem report was admitted by consent as Exhibit 1. The following injuries were noted by the doctor on the remains of the now deceased; CRB 22/3-23 HMA 28-23 ‶1. Extensive facial and scalp bruising 2. Bleeding from the nostrils, mouth and ears 3. Neck is broken 4. Abdominal bruising and distension 5. Haemorrhage small bowels 6. Laceration left lateral tibial area″ The cause of the now deceased’s death is stated as; “1. Head injury 2. Neck fracture Blunt abdominal trauma” It is clear that the now deceased did not die from natural causes. There is clear and irrefutable evidence that he was fatally assaulted. The question then is who assaulted him and what time or stage, did that happen? EVIDENCE OF STATE WITNESS AND ITS ANALYSIS The evidence of doctor Godfrey Zimbwa was admitted in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07]. It relates to Exhibit 1 the post mortem report and the cause of the now deceased’s death. The State led viva voce evidence from Mejas Chamisa Junior; Elias Chiukuhwa, Charles Jojo, Constable Peter Shonga and D/Cst Jabulani Moyo. It is important to examine that evidence. Mejas Chamisa Junior (Mejas) Mejas is now 13 years old. He is a son of accused 1 Chiedza and the now deceased. He is in grade 6 and is currently staying in Gokwe with an uncle Obert Ncube. Mejas said on the fateful day in the afternoon he arrived at garden from school and found his father the now deceased assaulting accused 1 Chiedza on allegations of being in an improper association with accused 2 Trust. Thereafter the now deceased was restained by some two men. Mejas then HMA 28-23 CRB 22/3-23 accompanied the now deceased to look for their stray cow. At sunset he went home with the now deceased and that both accused persons arrived home in a scotch cart. He said one of accused 2 Trust’s child collected floor from accused’s homestead. They all had supper together with accused’s children. Mejas said after supper all the children retired to bed leaving both accused in the kitchen (he was using the kitchen as the bedroom). Mejas seemed to say the now deceased retired to bed leaving both accused in the kitchen. After he fell asleep, he was woken up by sound outside which was like people chasing each other. During that same night his mother accused1 Chiedza told him about the death of his father the now deceased. Mejas said would he would not know the time accused 2 left. He said during that evening he did not wit