The accused is facing a charge of murder as defined in section
47(1) of the Criminal Law (Codification and Reform Act) [Chapter 9:23].
The charge is that on 4 December 2015, at Maluzo Village,
Chief Mazetese, Mwenezi in Masvingo, the accused unlawfully caused the death of
Nyashadzashe Moyo by stabbing him with an okapi knife once on the left side of
the abdomen and once at the back.
The accused and the 21-year-old deceased lived in
neighbouring villages and were well known to each other. Apparently they also
once worked together at Mkwashi Ranch in Gwanda. The now deceased was once
employed at Mkwashi Ranch as a grinding mill attendant and when he left
employment the accused took over that job. The now deceased stayed with his
grandmother, Violet Moyo, and his siblings.
The allegations against the accused are that on 4 December
2015, the accused and the now deceased met along a foot path from Kabhora Shops
and that they had an unspecified misunderstanding. The accused is alleged to
have produced an okapi knife and stabbed the now deceased on the left side of
the abdomen thereby eviscerating the small bowel. As the now deceased tried to flee
he was allegedly chased after and stabbed for the second time on the left side
of the back near the midline. The now deceased is said to have trudged home and
managed to make a report to his grandmother, Violet Moyo. The accused is said
to have proceeded to his workplace at Mkwashi Ranch. The now deceased was
ferried to Masase Mission Hospital but died on admission.
The post mortem conducted by Doctor Pesanai revealed the
cause of death as haemorrhage shock and perforated left illiac vessel due to stabbing.
The accused denies attacking the now deceased in the manner
alleged or in any manner.
In his Defence Outline, the accused said the now deceased
harboured a grudge against the accused as the now deceased alleged that the
accused had caused the now deceased to be dismissed from employment as a
grinding mill attendant and went further to take that job. The accused said, as
a result, whenever he met the now deceased, the accused would be threatened
with assault. The accused went further to state that on 2 November 2015 he met
the now deceased and was assaulted resulting in the accused losing his tooth.
Turning to the events of the day in question, on 4 December
2015, the accused said he left his workplace going to Kabhora Business Centre
where he found the now deceased present. The accused said the now deceased
threatened to kill the accused forcing the accused to flee back to his
workplace. At his workplace, the accused said he advised his supervisor, one
Mpilo Ndlovu, about the now deceased's threats. The accused said he was
surprised the next day, on 5 December 2015, when police arrested him on the
allegations that he had killed the now deceased. The accused said he protested
his innocence to the police despite being severely assaulted by the police. The
accused said he never assaulted or stabbed the now deceased.
In support of its case, the State led evidence from Violet
Moyo, Lovemore Zhou, Mpilo Ndlovu, Cornelius Moyo and Sgt. Hilda Grace
Chitemere….,.
The accused gave evidence and did not call any witnesses….,.
The following material observations and findings were made
by Dr. Pesanai;
(a) The now deceased had a stab wound on the left abdomen
measuring 4x2cm situated 5cm from the midline and 8cm from the pubic bone with
evisceration of the small bowel.
(b) A stab wound on the left side of the back measuring
5x2cm situated 5cm from illiac crest and 5cm from the midline at the back.
(c) Perforated illiac vessel.
(d) Retroperitoneal haematoma (the membrane covering the
bowel) with about 500ml of blood and blood clots in the abdomen containing
about 250ml of blood.
(e) The doctor concluded that the cause of death was
haemorrhagic shock and perforated left illiac vessel arising from the stab
wounds.
The contents of the post mortem are not in issue.
Our view is that the nature of the injuries on the now
deceased are consistent with the use of a knife or a sharp object, which is
inherently a dangerous weapon. The injuries clearly reflect that the attack was
grisly, brutal, and savage. The blows were clearly directed at the vulnerable
parts of the human anatomy. Even the dimensions of the wounds inflicted reflect
the severity of the attack. The small intestines were disembowelled. This is
consistent with the use of or application of severe force. It may well be that
the injury or stab wound at the back was inflicted as the now deceased tried to
flee. The intention of the person who inflicted these injuries on the now
deceased, in our view, is clear. It was to kill or cause death. This can be
inferred from the nature of the weapon used, the part of the body the stab
wounds were inflicted, the number of blows delivered, and the sheer intensity
and viciousness of the attack.
We are therefore inclined to conclude and make a finding
that whoever inflicted those injuries on the now deceased desired death to
result or did forsee the death of the now deceased as substantially certain in
the circumstances but nonetheless inflicted those injuries.
The question this court has to resolve is; who inflicted
those injuries on the now deceased? This is a factual rather than a legal
issue.
In order to resolve this question, we turn to the evidence
placed before us by both the State and the defence.
THE STATE
CASE
1. Dr Pesanai
The evidence of Dr Pesanai is simply to the effect that he
examined the now deceased's body and compiled the post-mortem report. This
evidence is not contested.
We turn to viva voce evidence….,.
4. Mpilo Ndlovu
Mpilo Ndlovu (Mpilo) is employed at Mkwashi Ranch as a
supervisor. The accused is a grinding mill attendant at his workplace and the
now deceased used to work under him as a grinding mill attendant before the now
deceased left employment in October 2015 and that job was taken up by the
accused.
Mpilo said on the day in question, 4 December 2015, the
accused asked for permission from him to go to the shops across the river in
the area where the now deceased stayed which shops are about 3–4km away. He
granted the accused permission and the accused left around at 14:00 hrs. Mpilo
Ndlovu said upon his return, at about 15:00 hrs, the accused, who appeared not
to be himself, reported to Mpilo that, he, the accused, had injured one Nyasha,
the now deceased, by stabbing him with a knife. The accused went further to say
he had stabbed the now deceased as the two fought and the now deceased had
chased after him. He said the accused did not, however, disclose the exact
nature of the injuries he had inflicted on the now deceased. Mpilo Ndlovu said
he excused the accused from work and told the accused to proceed to his home to
advise his parents what he had done. The accused left the workplace the next
day, 5 December 2015, but did not return as he had been arrested in connection
with the deceased's death.
Under cross examination, Mpilo said he was not aware of any
animosity between the accused and the now deceased. He insisted that it is him
who advised the accused to go to his home and advise his parents about the
injuries the accused had reported he had inflicted on the now deceased. Mpilo
Ndlovu identified Exhibit 1, the okapi knife, as similar to a knife the accused
possessed.
Mpilo Ndlovu's evidence was largely unchallenged and we
accept his testimony.
5. Cornelius Moyo
Cornelius Moyo (Cornelius) is the accused's mother. She
confirmed that on 5 December 2015 the accused came home from his workplace but
she said the accused did not disclose the purpose of his visit. She assumed the
accused had just visited his wife. She however said the accused was arrested by
the police the same day on murder allegations and taken away.
Later, she said the accused returned with the police
looking for an okapi knife, Exhibit 1. The accused had disclosed to the police
that he had put the knife in a playing drum (ngoma in Shona). Cornelius Moyo
said she had discovered the knife in the playing drum and was unaware as to who
had put it there. She said she suspected her enemies had done so hence she had
removed the knife and buried it in her yard. She then retrieved it and gave it
to the police who were with the accused. Cornelius denied that the accused had
reported to her, on arrival home that he had injured or fought with the now
deceased but that she only learnt that from the police at the time of the
accused's arrest.
No material questions were put to her in cross-examination….,.
6. Sgt. Hilda Grace
Chitemere
Sgt. Hilda Grace Chitemere (Sgt Chitemere) is based at ZRP
Mberengwa police station and is the officer who initially investigated this
case. She later handed it over to ZRP Mwenezi as the scene of crime fell
outside Mberengwa District but in Mwenezi, Masvingo.
She explained the initial investigations she carried out.
Sgt Chitemere said after being assigned to the case, on 4
December 2015, she and other details proceeded to the scene of the crime on 5
December 2015 at Kabhora Business Centre. As a result of investigations, she
gathered that the accused was the now the deceased's assailant and the accused
was arrested at his home the same day. Upon the accused's arrest, she warned
and cautioned the accused of the charge explaining his rights. Sgt Chitemere
said the accused offered to explain to her what had happened. Sgt Chitemere
said the accused offered to take the police to the scene of the crime where she
observed signs of a struggle and trail of blood. On inquiring from the accused
what had happened at this place, the accused disclosed that he had stabbed the
now deceased with a knife twice on the abdomen and the back. The trail of blood
indeed was from the scene of crime to the now deceased's homestead and it was
clear to her the now deceased had lost a lot of blood. She said she inquired
from the accused where the knife he had used to stab the now deceased was and
the accused said he had thrown it into a dam. As a result, she did not recover
Exhibit 1.
Sgt. Chitemere said the accused further explained to her
that he, the accused, had met the now deceased along a path as they were going
in different directions and that the now deceased had, without cause, assaulted
the accused and that the now deceased is the one who was in possession of the
knife which he, the now deceased, tried to use to stab the accused but the
accused apparently dispossessed him and stabbed the now deceased in the stomach
and the back as they struggled after which the accused left the scene with the
now deceased struggling to walk. The accused also revealed to her that the
accused had made a report to the accused's supervisor, one Mpilo Ndlovu. Sgt
Chitemere said she believes details from ZRP Mwenezi later recovered the knife,
Exhibit 1. According to Sgt Chitemere, the injuries she observed on the now
deceased's body were consistent with the accused's explanation to her. She
observed that the stab wound on the now deceased's back was more deep.
Under cross examination, Sgt. Hilda Grace Chitemere denied
that she assaulted the accused. She said that the accused's disclosure of
allegedly throwing the murder weapon, the knife, into the dam was made to her
by the accused voluntarily and that she had believed the accused.
We do not share the view that Sgt Chitemere was an
untruthful witness. The version she said the accused told her sought to blame
the now deceased for the cause of the altercation between the accused and the
now deceased. She accepted the accused's version that he had thrown away the
knife into a dam. This is hardly the evidence of a witness who sought to
falsely incriminate the accused.
The
accused's evidence
The accused maintained that he enjoyed bad relations with
the now deceased because the now deceased, who had been dismissed from work,
blamed the accused, moreso as the accused later took over the same job.
Turning to the events of the day in issue, the accused, in
his evidence, said as he was coming out of the shop at Kabhora Business Centre,
the now deceased waylaid him by the doorway and slapped him once saying the
accused should leave his employment. The accused said he fled from the shops
without fighting back in any manner.
The accused denied stabbing the now deceased.
The accused admitted that the knife, Exhibit 1, belongs to
him and that he had put it in a drum on account of a dream he had had well
before this incident. The accused said Mpilo Ndlovu, his supervisor, lied in
evidence because they once dated the same woman. The accused said the police
assaulted him forcing him to admit to the offence.
Under cross-examination, the accused said despite being
attacked by the now deceased on the first occasion, in October 2015, and losing
two (2) teeth, he did not report to the police as he was not aware such an attack
was unlawful. Instead, he said he reported to Mpilo Ndlovu about the first
attack and was advised to leave the now deceased.
Unfortunately, this was never put to Mpilo Ndlovu in cross
examination.
The accused said he did not, again, report to the police
the attack on 4 December 2015 when the now deceased slapped him at the shops
but simply fled and made a report to Mpilo Ndlovu. The accused disputed the
nature of the report he made to Mpilo Ndlovu. The accused alleged Mpilo Ndlovu
falsified his evidence on account of the fact that they dated the same woman.
However, this was not put to Mpilo Ndlovu in cross-examination and the accused
said he unfortunately forgot to advise his counsel of this material evidence.
The accused insisted that he did not know who fatally
injured the now deceased.
ANALYSIS OF
EVIDENCE
There are indeed differences between the accused's Defence Outline
and his evidence-in-chief (or under cross-examination).
While in the Defence Outline the accused said the now
deceased assaulted him on the first occasion and caused the accused to lose one
tooth, in his evidence he said he lost two teeth. It is difficult to appreciate
how the accused can be mistaken as to the number of teeth he lost when the now
deceased allegedly first attacked him, either in October or November 2015. We
find it to be incredible that the accused would simply decide not to report
such a serious attack to the police after he had lost either one tooth or two
teeth. If such an attack was reported to Mpilo Ndlovu surely this should have
been put to Mpilo Ndlovu who told the court that he was not aware of any bad
blood between the accused and the now deceased.
The version the accused gave on what happened when he met
the now deceased on 4 December 2015 is different in his Defence Outline and in
his evidence.
In his defence, the accused said when he met the now
deceased at Kabhora Business Centre, on 4 December 2015, the now deceased
threatened to kill the accused and that the accused fled from the Business Centre
going to his workplace where he advised Mpilo Ndlovu of the threats. In his
evidence, the accused was now heard to say when he met the now deceased at
Kabhora Business Centre, on 4 December 2015, the now deceased waylaid him by
the door of the shop and slapped him once.
The accused cannot be confused as to whether the now
deceased merely threatened to kill him or slapped him.
We are also not convinced by the accused's belated
explanation, which only emerged in the accused's evidence, that the accused and
Mpilo Ndlovu dated the same woman. Mpilo Ndlovu was clear in his evidence that
he enjoyed good relations with the accused and no motive was put to him as to
why he would falsely incriminate the accused. Indeed, the accused could not
have failed to advise his counsel of such a crucial and material aspect of
Mpilo Ndlovu's evidence.
The only inference we can draw is that this issue of dating
the same woman with Mpilo Ndlovu is an afterthought.
The explanation by the accused on why he put the knife,
Exhibit 1, in a drum is, at most, bizarre if not incredible. It is a muddled up
explanation steeped in the superstitious spiritual world and does not make
sense. This is further made worse by the fact that the accused's mother, after
the accused's arrest, decided to bury the same knife in the yard. The simple
clear explanation is that the accused decided, rationally, to hide the knife he
had used to stab the now deceased and upon his arrest his mother also decided
to dispose of it.
There is, indeed, no eye witness to the attack of the now
deceased but our view is that the circumstantial evidence placed before us
point to the accused as the assailant. There a number of factors which point to
this finding and they are as follows;
(a) The now deceased made a dying declaration to Violet
Moyo and Lovemore Zhou that he had been fatally stabbed by the accused. When
the now deceased identified the accused as his assailant he was on his
deathbed. A dying declaration is admissible in our law. See Criminal Procedure
in Zimbabwe by JOHN REID ROWLAND…,.
(b) The accused admits that he indeed met the now deceased
on the fateful day, on 4 December 2015, and that he had an altercation with the
now deceased. It cannot be just coincidental that the now deceased thereafter
is seen with severe and fatal injuries.
(c) The accused made a report to Mpilo Ndlovu that he had
seriously injured the now deceased. Mpilo Ndlovu cannot be mistaken as to the
nature of the report the accused made to him to the extent of excusing the
accused from work to go to his rural home.
(d) The murder weapon, the okapi knife, Exhibit 1, belong
to the accused. Worse still, the accused initially lied to the police where it
was and had concealed it in a drum at his rural home.
(e) The accused's own evidence is riddled with
inconsistencies and falsehoods.
All these factors, taken together, lead to the only one
inference which point to the accused as the assailant. The accused's guilt is
beyond reasonable doubt.
We cannot take seriously counsel for the accused's
submissions, in his closing written submissions that the accused acted in
self-defence.
This is new evidence which was never led in court at any
stage by the accused. It is unfortunate that counsel for the accused believes
the accused can plead in the alternative as if these were civil proceedings.
The sum total of the accused's defence, taken to its logical conclusion, would
imply that the accused is saying;
“I did not stab the now deceased at all, but, in the
alternative, if I indeed stabbed him I did so in self-defence!”
This is not only untenable but shockingly unprofessional
for the defence counsel to do - moreso in closing written submissions.
We are satisfied, beyond reasonable doubt, that it is the
accused who fatally stabbed the now deceased. From the evidence before us his
intention was to kill the now deceased.
VERDICT:
Guilty of murder as defined in section 47(i)(a)
of the Criminal Law (Codification and Reform) Act [Chapter 9:23]: Murder with
actual intent.
