State v Mupinga and Others (7 of 2024) [2024] ZWMSVHC 7 (16 February 2024)

1 HMA 07-24 HCMSCR 1512-14/23 CRB 93-95/23 THE STATE versus SIMBARASHE MUPINGA and TAWANDA MAGURA and LOVEMORE MUPINGA HIGH COURT OF ZIMBABWE MAWADZE J MASVINGO, 1 & 16 February 2024 Criminal Trial B E Mathose, for the State G. Gadaga, for the accused 1 K. Mabvuure, for the accused 2 Ms T. Kapito, for the accused 3 MAWADZE J: The 3 accused were arraigned on the charge of murder the now deceased Elliot Chingava. Accused 1 Simbarashe Mupinga (Simbarashe) is 30 years old and resides in the same village with 20-year-old Lovemore Mupinga (Lovemore). The 20-year-old accused 2 Tawanda Magura resides in Gwarinda village. The 47-year-old now deceased Elliot Chingava was residing in Silas Village. All the accused persons and the now deceased were staying under Chief Shumba, Masvingo. HMA 07-24 HCMSCR 1512-14/23 CRB 93-95/23 On 27 May 2021 the three accused, and the now deceased were all at their local Muchakate business centre drinking beer. The state alleges that around 2000hrs an altercation arose between accused Lovemore and one Nomore Feveke (Nomore). It is alleged that all the 3 accused teamed up to indeserimately assault Nomore with booted feet and hands. The state alleges that the now deceased and one Courage Chaponda (Courage) who were colleagues of Nomore got wind of the altercation and rushed to the scene to rescue their friend Nomore. Courage was armed with a log. It is the state case that all the 3 accused turned on to the now deceased and assaulted him with fists, open hands and booted feet. It is said accused Simbarashe disarmed Courage of the log and used it to repeatedly strike the now deceased all over the body causing him to fall down after which all the 3 accused fled from the scene. The state alleges that one patron Victor Chinono attended to the now deceased and proceeded to his home. However, it is said his condition deteriorated and was referred to Monrgenster hospital where he unfortunately passed on away the following day 28 May 2021 around 1445hrs to the injuries he had sustained. The accused persons gave different accounts of what happened and all denied having played any role in the demise of the now deceased. Accused 1 Simbarashe said he only got into this fracons when accused 2 Tawanda was engaged in a fist fight with one Nomore in a bid to stop this fight. Accused 1 Simbarashe said as he tried to stop this fist fight the now deceased and one Courage came running. He said Courage was armed with a log accused 1 said the now deceased should have been already injured somewhere as his shirt was already blood stained. Accused 1 Simbarashe said Nomore was losing the fist fight against the younger accused 2 Tawanda hence the now deceased tried to intervene by attacking accused Tawanda with the log accused 1 Simbarashe said he disarmed the now deceased of the log and proceeded to hit the now deceased twice on the buttocks with the log causing the now deceased to fall down. Accused 1 Simbarashe said when he tried to deliver a third blow he missed and instead hit accused Lovemore with the log. He said thereafter all the 3 accused left the scene. Accused 1 Simbarashe maintained in his evidence that the two blows he delivered on the now deceased’s buttocks with a log could not have possibly caused his death. He said the head HMA 07-24 HCMSCR 1512-14/23 CRB 93-95/23 injury the now deceased sustained should have been inflicted somewhere well before the now deceased came to the scene where accused 1 Simbarashe only assaulted him on the buttocks. Accused 2 Tawanda said it is him who had a misunderstanding with the now deceased and that the now deceased slapped him. In retaliation accused Tawanda said he tripped the now deceased and left the scene. Accused 2 Tawanda denied assaulting the now deceased in any other manner and said he does not know what befell the now deceased resulting in his death. Accused 2 Tawanda said he was heavily drunk and never acted in common purpose with any of his co accused. Accused 3 Lovemore denied acting cahoris with either accused 1 Simbarashe or accused 2 Tawanda. He said his only role was on attempt to stop the fight between accused 2 Tawanda and Nomore. In the process he said he was hit was a log a person he could him to leave the scene hence is unaware as to how the now deceased was injured or assaulted. In support of its case the state produced 4 exhibits by consent. These are; Exhibit 1: the post mortem report, exhibits 2 to 4 being confirmed warned and cautioned statements of all the 3 accused respectively. The evidence of the investigating officer sergeant Sizani Maphosa and Dr Zimbwa was admitted in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07]. Viva voce evidence was lea from Nomore Mateveke ( Normore), Courage Chaponda [Courage and Victor Chinono (Victor)]. Just before close of the prosecution case the charge against accused 3 Lovemore was therefore not found guilty and acquitted. This judgment as a result is now only in respect of Accused 1 Simbarashe and accused 2 Tawanda. We turn to the evidence of the state witnesses; Sgt Sizani Maphosa (Sgt Maphosa) Sgt Maphosa is the investigating officer. Her testimony is formal and of no probative value. When she arrived at Morgenster hospital the now deceased had died. Upon examining his body, she realised that the now realised that the now deceased’s jacket was blood stained and he had a sutured cut on the left side of the head. She proceeded to arrest all the accused and caused a post mortem to be done, Exhibit1. HMA 07-24 HCMSCR 1512-14/23 CRB 93-95/23 Dr Godfrey Zimbwa Dr Zimbwa examine the remains of the now deceased and authored Exhibit1 the post mortem report. The cause of the now deceased is not in issue. The doctor observed a suture laceration on the left parietal which was ±5cm skull deep. The now deceased was frothing from the mouth. The cause of his death was a severe head injury. The issues which therefore falls for determination is two fold. Firstly, what are the circumstances the now deceased sustained the fatal head injury. Secondly whether it is any of the accused, that is accused 1 Simbarashe or accused 2 Tawanda who caused that fatal injury as both acting in common purpose. Indeed, the court will consider whether the charge of murder has been proved or any other permissible verdict. Nomore Mateveke (Nomore) Nomore regards all the 3 accused as his nephews and resides in Mazingo village, chief Shumba Masvingo. He arrived at the business centre at 1600hrs and at around 2000hrs he was among patrons drinking beer in Victor’s barber shop. The previous given accused 2 Lovemore his gango (in shona) (frying work). At around 2000hrs he asked accused 3 Lovemore about the whereabouts of the gango. He said accused 2 Tawanda who was present just came and kicked him in the chest. Thereafter he said accused 1 Simbarashe came as if he was to restrain accused 2 Tawanda but instead joined in by assaulting Nomore with fists with accused 2 Tawanda as Nomore was lying down. Nomore said accused 2 Tawanda was sitting on him assaulting him with fists as accused 1 Simbarashe was kicking him with booted feet. Nomore said he was helpless, could not fight back as his hand had dislocated. Nomore said as he was been attacked lying down by accused 1 Simbarashe and accused 2 Tawanda he heard the voice of his colleague the now deceased shouting coming to the scene saying Nomore could not be attacked in the deceased’s presence. At that point Nomore said accused 1 Simbarashe ran towards the now deceased. Nomore said he heard a thudding sound followed by a person falling down but could not see what was happening as he was still lying down being assaulted by accused 2 Tawanda stood up, stooped the assault possibly to inquire what was going on. Nomore said he took this opportunity to flee from the scene and proceeded him. HMA 07-24 HCMSCR 1512-14/23 CRB 93-95/23 Upon arrival home Nomore said he realised he had lost the keys to his house but wo