State v Muungani (9 of 2024) [2024] ZWMSVHC 9 (23 February 2024)

1 HMA 09-24 CRB 86-23 THE STATE Versus TASHINGA MUUNGANI HIGH COURT OF ZIMBABWE MAWADZE J MASVINGO, 7 November 2023, 25 January, 8&23 February 2024 Assessors 1. 2. Mr Gweru Mrs Chademana Criminal Trial E. Mbavarira, for the state. Ms I Moyo, for the accused. Criminal Trial MAWADZE J: The 32 year old accused from Muungani Village, Chief Gutu, Masvingo is facing a charge of murder as defined in Section 47 of the Criminal Law [Codification and Reform Act (Chapter 9:23). The accused is said to have unlawfully and intentionally killed his 56 year old paternal grandfather Pianos Muungani whom he was residing at the same homestead between25 to 28 HMA 09-24 CRB 86-23 October 2021. It is said he assaulted him with a sharp object several times on the head causing his death. The state alleges that the motive for the murder was a long standing grudge accused harboured as the accused was always demanding answers from the now deceased as to who was bewitching the accused. It is alleged that because of this dispute and between 25 to 28 October 2021 the accused attacked the now deceased in the manner alleged killing him at their homestead where they stayed as being just the two of them. It is said thereafter the accused dumped the now deceased’s body in a disused well at their homestead. The state alleges that the accused on 28 October 2021 in a bid to hide his role in this heinous crime notified fellow relatives of his alleged discovery of the now deceased’s body in the disused well. The police attended the scene, retrieved the body and later arrested the accused after investigations. Doctor Zimbwa who conducted the post mortem concluded that death was due to head injury. The accused throughout the trial vehemently denied the state’s allegations that he caused the now deceased’s death. The accused refuted the allegations that he assaulted the now deceased in any manner as alleged. The accused denied existence of any long outstanding dispute mired in witchcraft between him and the now deceased. In fact the accused said in 2017, 4 years before the now deceased’s death, the now deceased came home drunk poised for a fight attacking the accused. The accused said he hit back and broke the now deceased’s leg resulting in the accused’s arrest and appearing at Gutu Magistrates Court. The accused said after being granted bail he fled to South Africa only to return after 2 years in 2019. The accused said the now deceased took him to Gutu police where he withdrew the charge against the accused. Thereafter the accused said he lived harmoniously with the now deceased until his death in 2021. The accused said the now deceased, his grandfather was in the habit of leaving home for days drinking beer only to return later. As a result the accused said he did not panic when accused was not at home from 25 to 28 October 2021 when he discovered the body. The accused said on 28 October 2021 he was passing by the disused well. He smelt some foul smell. As a result of curiosity he peeped into the well. He discovered the now deceased’s body and alerted fellow villagers and relatives. Later he was surprised to be arrested. HMA 09-24 CRB 86-23 A total of 3 exhibits were produced by consent. They are Exhibit 1 the post mortem report, Exhibit 2 the medical Affidavit by Doctor Zimbwa and Exhibit 3 accused’s confirmed warned and cautioned statement. Doctor Godfrey Zimbwa gave viva voice evidence, further explaining both Exhibit 1 the post mortem report and Exhibit 2 his medical affidavit. His observation on the injuries the now deceased had was as follows; i) ii) iii) iv) A deep laceration+ 2cm in front of the right ear or pre auricular area. Skull deep laceration 1cm behind the right ear or retri auricular area right side. Skull deep laceration + 3cm above the right ear or right parietal area. Two skull deep lacerations + 3cm at the back of the head or occipital area. One can therefore conclude that the injuries on the now deceased were concentrated mainly around the right ear and the back of the head. The cause of the death which is not in issue is the head injury. The accused’s confirmed warned and cautioned statement merely summarises his evidence in denying this charge of murder. What is important to note in this case is that the issues before the court are not easy to resolve. Firstly there is or was no eye witness to the alleged fatal assault perpetrated by the accused on the now deceased. Secondly there is no eye witness to the dumping of the now deceased in the disused well Thirdly the state case is solely based on a circumstantial rather than direct evidence. Thus this court has to resolve the following material issues. i) Did the accused assault the now deceased fatally and dumped his body in the disused well? ii) Are the injuries on the now deceased causing his death only attributable to an assault? iii) Was it possible that some other person may have fatally assaulted the now deceased other than the accused and dumped his body in the disused well? HMA 09-24 CRB 86-23 iv) It is not possible that the now deceased sustained these fatal head injuries when he accidentally fell into this disused well? This judgment will therefore grapple with these issues. There are both factual and legal issues to be resolved in this matter. The evidence placed before this court was adduced from 5 state witnesses being ROPAFADZO CHIROVE, MARTIN MUUNGANI, SGT EDWARD MUYAMBO, D/CST GARIKAI MAVHURAMA and DR GODFREY ZIMBWA. We turn to that evidence. Ropafadzo Chirove ( Ropafadzo ) Nothing turns on the evidence of Ropafadzo. The 68 year old Ropafadzo ordinarily resides in Mufaratwira Village Headman Makore Chief Gutu. Both the accused and the now deceased were her uncles. She had visited her sick relative in accused and deceased’s village. On 28 October 2021 accused came to her asking for a box of matches in the morning. The accused again returned to her homestead that morning shouting as follows; “niece, niece grandfather fell into the well” Ropafadzo said he advised accused to alert other relatives and villagers which the accused did. It is therefore clear that her evidence does not resolve the questions before us save to confirm that she was the first person to be alerted by the accused about the body of the deceased being in the disused well. Martin Muungani (Martin) The 76 year old Martin is the village head of Muungani Village, Chief Gutu in Gutu. He is related to both accused and the now deceased. He confirmed that accused and the now deceased were the only two people staying at their homestead in his village. Firstly he confirmed the accused’s story that in 2017 the accused assaulted the now deceased and broke his leg. He was not privy to the cause of the dispute then in 2017. He said the matter was reported to the police. The accused was arrested, arraigned before Gutu Magistrates Court and granted bail pending trial. The accused then fled to South Africa only to HMA 09-24 CRB 86-23 return some 2 years later. He too confirmed that accused and the now deceased apparently reconciled as the assault case was not pursued and the two continued to reside amicably together. Secondly he confirmed that on 28 October 2021 accused came to him to report that he, the accused, had discovered the now deceased’s body in the disused well at accused and deceased’s homestead. He said the accused postulated that the now deceased may have fallen in the disused well while looking for goats, thus ruling out foul play. Police were alerted. He went to the disused well and made the following observations; i) The now deceased’s body was inside the disused well leaning against the walls of the well dressed in shorts, T shirt and stockings. ii) When the police retrieved the body the observed cuts on the deceased’s head which he did not closely examine. iii) He went into the now deceased’s bedroom hut with the police and saw the following; a) The cement floor was well mopped or cleaned. b) The mattress had blood stains und