HC (CRB) 80-15
X REF CRB FIL 182-14
IN THE HIGH COURT OF ZIMBABWE
BULAWAYO 30 JUNE & 1 JULY 2015
Ms N. Ngwenya state counsel
Ms C. Mudenda defence counsel
KAMOCHA J: The accused who is going to turn 24 on 20 July 2015 was charged with the crime of murder. It being alleged that on 1 July 2014 at Mphehlane Night Club, Vocola Avoca, Filabusi he did wrongfully, unlawfully and intentionally kill and murder Mmeli Tshili a male adult during his life time therebeing. He denied the charge when it was read to him.
The state outline was read and produced as exhibit one while the defence outline which was also read for the record was exhibit two. The accused’s confirmed extra curial statement was produced as exhibit 3. Exhibit 4 was an affidavit by Constable Edson Chikunguru who identified the body of the deceased to Doctor Sanganai Pesanayi who examined the remains of the deceased and compiled a post mortem report exhibit 5.
The doctor observed and recorded the following marks of violence on the remains of the deceased. The external examination revealed a swelling on the left parietal region of the head. The internal examination of the skull showed a scalp haematoma of the left parietal of +/- 6 x 4cm with a depressed skull fracture on the left parietal with a circular shape of 4 x 4cm.
The examination of the brain revealed the following:- (1) deformed left fronte parietal lobe +/- 1000mls; (2) extradural haemotoma; (3) subarachnoid haemorrhage; and (4) intra cerebral haemorrhage left lobe weighing 1300g.
The doctor remarked that the post mortem was consistent with bleeding in the brain due to blunt force trauma and opined that the cause of death was:
- Intracranial haemorrhage;
- Depressed skull fractures;
- Blunt force trauma as a result of
- the assault
The evidence of the doctor and that of the identifying witness was admitted by consent in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07].
The accused clearly used severe force to inflict the injury on the deceased’s head in order to cause the injuries observed by the doctor. The accused admitted using the knobkerrie exhibit 6 whose dimensions are these:- It has the weight of 500grams – half a kg; it has a big knob which has a circumference of 23cm and a length of 10cm; its handle is 53cm and its total length is 63cm.
This court makes an observation that the knobkerrie is a lethal weapon.
As already mentioned supra it is not in dispute that the accused delivered the blow with the knobkerrie exhibit 6 thereby inflicting the injuries described in the post mortem report. However, the accused maintained from the onset that he was acting in self defence. He said so in his defence outline and evidence in court.
The court has to determine the issue whether or not accused was acting in self defence when he struck the deceased. It must be mentioned at this stage that there was no eye witness to the assault itself.
The state called three witnesses to give viva voce evidence. The first two witnesses, Majaha Masuku and Nicholas Nkomo were at Mphehlane Night Club at Vocola on the fateful day watching a world cup football match. They said the accused and deceased were also there. The accused and deceased were cousins. According to Majaha Masuku the two played a game of snooker and thereafter left the night club and went away. The witness then received a report about the deceased who had been allegedly assaulted by accused at Zenzele Hwalima Store. He went out to investigate and found the deceased lying on the ground bleeding from the head. He made him sit up slightly and gave him some pain killers. Thereafter the deceased was ferried to hospital in Filabusi.
The witness did not hear accused and deceased arguing about any money. Similarly, Nicholas Nkomo also did not hear the altercation about money but he saw the two together. Before the two went out of the night club the witness observed the accused going behind the counter and collected a knobkerrie therefrom then left. The next thing he heard was a report about accused who had assaulted deceased with a knobkerrie exhibit 6. He went to investigate and found the deceased in a semi-conscious state and was unable to talk.
The witness did not know if deceased used to carry a knife. He did not see any knife at the scene where he found the deceased. He did not see deceased with a knife.
The investigating officer was Sergeant Chirivanda. H was the one who arrested accused on 5 July 2014 at West Nicholson business centre. He had left his home area. The officer then took him back to his home area where he led the officer to his homestead where he indicated where he had left the knobkerrie exhibit 6.
Whose knobkerrie was it?
At the night club it was behind the counter. The accused would not have known that there was a knobkerrie behind the counter if he had not put it there himself.
Under cross-examination Nicholas Nkomo said after both accused and deceased had gone out of the night club the accused went back to collect the knobkerrie from behind the counter but deceased remained outside.
After he had inflicted the fatal blow with it on the deceased accused took it with him to his homestead and placed it where it was recovered by the police. Why would he do that if it was not his? This in my view points to a sense of ownership. It is highly unlikely that one would keep a weapon with which he had caused grievous harm if it is not his.
The accused did not have any witness to call but gave viva voce evidence himself. He faired very badly. He sought to alter the story contained in his confirmed extra curial statement and in his defence outline. In his confirmed statement he said while he was at the counter the deceased approached him shouting that he two should go out and finalise their matters. Because he was afraid of what the deceased might have been carrying in his pocket, he armed himself with the knobkerrie which he took from behind the counter. When he ran towards the door the deceased followed him. When he stood by the corner of Halima butchery the deceased went shouting and pushed him with one hand while the other hand was in his pocket, stating that he was not afraid of the accused. He then stated that because he was afraid of what deceased was carrying in his pocket he had to defend himself by hitting him once with exhibit 6 on the head knocking him to the ground. He then went away.
The accused tried to improve his story in his defence outline by adding that he knew that the deceased carried a knife in his pocket since they usually used to spend time together. Another addition was that the deceased had pushed him against the wall before he struck him with exhibit 6. This second version of his story is rejected.
He did not end there. He sought to improve his story further by telling this court in cross-examination that the deceased pushed him with his right hand while his left hand was in his pocket. When deceased was delivering a blow with his left hand it was then that he tried to block the blow with the knobkerrie which then landed on his head knocking him to the ground. This does not make any sense. It is a hopeless afterthought which is false and is hereby rejected.
The accused admitted that he did not see a knife on the deceased at the relevant time although he said he had seen him with a knife at some other time. This court finds that the deceased did not have a knife at that time and was not armed in any way.
The accused is not worth to be believed. His story about the deceased being armed with a knife at the time he struck him was baseless and was an attempt to justify the attack on the deceased. There was no attack on him by deceased at all.
The accused used a half kilogram knobkerrie to strike the deceased on the head with severe force to cause the skull fracture. The weapon used was a dangerous one. The blow was aimed at a vulnerable part of a human body. By using severe force to inflict the fatal injury the accused realised that there was a real risk or possibility that his conduct may cause death, but continued to engage in what he did despite the risk or possibility.
He is accordingly found guilty of murder with constructive intent.
Prosecutor General’s Office, state’s legal practitioners
Messrs Mudenda Attorneys, accused’s legal practitioners