At
the close of the case for the State we dismissed the accused's
application for discharge made in terms of section 198(3) of the
Criminal Procedure and Evidence Act [Chapter
9:07].
We gave our reasons ex
tempore.
The
accused had raised the defence of self-defence and our view was that
the accused's version of events should be properly ventilated
during his defence case to properly ascertain if indeed he could not
be convicted of the charge of murder or any other permissible
verdict. In short, it was necessary for the accused to lay, in his
evidence, the factual basis of the defence of self defence.
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 Code).
The
charge is that on 14 March 2017, at Yellow Farm Range, Masvingo the
accused stabbed the now deceased with a knife under the left armpit
penetrating the lung resulting in the now deceased's death. During
the night of 13 March 2017 both the accused and the now deceased were
at Musakaruka Shop with other patrons drinking beer. A
misunderstanding then arose between the accused and the now deceased
culminating in a fist fight at about 21:00hrs. The other patron,
Darlington Gift Mabika, restrained them. The now deceased then left
the shop ostensibly going home.
It
is the State case that the accused followed the now deceased shortly
thereafter and stabbed him with a knife below the armpit. It is
alleged no one came to the now deceased's help resulting in his
death. The now deceased body is said to have been discovered the next
morning on 14 March 2017. The accused was linked to the offence by
his woollen hat and knife found at the scene of the
crime. The accused's t-shirt was also blood-stained.
In
his Defence Outline, the accused confirmed that he indeed first
fought the now deceased that night at the shops although he said the
now deceased was the aggressor. He further confirmed that one Given
Mabika restrained them. The accused said it is the now deceased who
later left the shop first and the accused presumed the now deceased
had gone to his residence. The accused denied that he followed the
now deceased and when he left he, the accused, was going to his
residence. The accused said it is the now deceased who waylaid the
accused and attacked him by throttling him. The accused said he fell
down and the now deceased sat on top of him still throttling him. The
accused said the now deceased used a sharp object to stab the accused
in the face. The accused said he had a knife in his pocket and in
order to fend off the attack reached for the knife. The accused said
he randomly stabbed the now deceased to force the now deceased to
release him. The accused said he got up and fled, and, in the
process, dropped the knife and his woollen hat. The accused said he
only learnt of the now deceased's death the next morning. The
accused thus raises the defence of self-defence.
In
support of its case, the State produced the following exhibits;
(a)
Exhibit 1 is the post mortem report compiled by Dr. Zimbwa. It shows
that the cause of death was the stab wound which penetrated the lung
causing excessive loss of blood. The cause of death is not in issue.
(b)
Exhibit 2 is the accused's confirmed warned and cautioned
statement. It is a repetition of the accused's Defence Outline.
(c)
Exhibit 3 is the knife belonging to the accused. The accused admits
that he used it to stab the now deceased.
(d)
Exhibit 4 is the accused's red, green and yellow woollen hat
recovered at the scene of crime which the accused said he dropped
when he fled from the scene of the crime.
(e)
Exhibit 5 is the accused's striped bloodstained and dirty t-shirt;
which t-shirt the accused was wearing on the day in question.
(f)
Exhibit 6(1) – (10) are photographs taken when the accused made
indications. The accused does not deny that he made indications.
(g)
Exhibit 7 are the accompanying notes of the accused's
indications.
(h)
Lastly, Exhibit 8 is a statement by State witness, one Gift Mabika,
which was produced when his viva
voce
differed from what is said in that statement.
The
evidence of Sivhikile Mutetwa and Dr Zimbwa was admitted in terms of
section 314 of the Criminal Procedure and Evidence Act [Chapter
9:07].
Sivhikile Mutetwa is the one who first discovered the now deceased's
body in the morning of 14 March 2017 and noticed that the now
deceased had no shirt and had a stab wound under the armpit. As
already said, Dr Zimbwa is the one who examined the now deceased's
body and compiled the postmortem report.
The
State led viva
voce
evidence from Jerald Chikwangwami, Ebbiot Shoko, Darlington Gift
Mabika, Detective Inspector Zephania Chipanga and Detective Constable
Riva. The accused gave evidence and did not call any witnesses.
The
question which falls for determination in this case relates to the
circumstances under which the now deceased met his demise. The issue
is whether the accused acted in self- defence when he stabbed the now
deceased with the knife. In order to examine that we have to look at
the evidence led by the State to rebut the defence of self defence.
The
evidence of D/Insp Chipanga is peripheral to the issue to be
resolved. He confirmed that the accused made indications as per
Exhibit 6 and 7. It was during those indications that he recovered
the knife, Exhibit 3(a). The only other aspect of his evidence is
that Gift Mabika gave a statement to the police and signed it which
is in affidavit form….,.
The
investigating officer in this case is D/Cst Riva (D/Cst Riva). Again,
his evidence does not speak to the issue to be resolved by the court.
D/Cst
Riva examined the now deceased's body at the scene of crime and
said the now deceased had no shirt. It was never resolved, during the
trial, how the now deceased ended up without his shirt. At the scene
of the crime, he recovered the accused's woollen hat, Exhibit 4.
Upon searching the now deceased's body, he found that the now
deceased had $3=20, personal identity card, and FBC Bank card. At the
accused's house, D/Cst Riva recovered the accused's bloodstained
t-shirt, Exhibit 5. Lastly, he confirmed that indeed the accused had
lacerations on his face. The accused alleges there were inflicted on
him by the now deceased at the scene of the crime. Most importantly,
D/Cst Riva said he was unable to rebut the accused's defence of
self- defence during his investigations.
Jerald
Chikwangwami, Ebbiot Shoko and Darlington Gift Mabika did not witness
how the now deceased was stabbed. Their evidence centred more on the
brawl or fight between the accused and the now deceased at the shop
before both the now deceased and accused left the shop. Again, their
evidence is not material to what is in dispute or to be resolved by
the court. We shall only deal with that evidence for completeness of
the matter and other peripheral issues.
Jerald
Chikwangwami (Jerald)
Jerald
was known to both the accused and the now deceased. His evidence is
that the accused survived as a poacher. He disputed that the accused
makes cooking sticks.
According
to Jerald, the dispute between the accused and the now deceased was
about a song being played in the shop as they all were drinking beer.
According to him, the accused was the aggressor and that initially
the now deceased did not hit back when the accused assaulted him.
Jerald said after the brawl, the accused and the now deceased engaged
in a fight, for the second time, at the shop and that no-one
intervened. The two just stopped on their own. After a while, he
said, the now deceased smashed a beer bottle to attract the attention
of all patrons and proceeded to apologise for what had happened after
which he left the shop going home. Jerald said the accused was the
next person to leave the shop some 5 to 10 minutes later. Later,
Jerald said he heard a person crying out but noone went to check who
it was or what was going on.
Jerald
said when Ebbiot Shoko left the shop Ebbiot returned reporting that
he had seen the now deceased bleeding profusely. Jerald rushed to the
scene and found the now deceased lying on the ground bleeding. He
noticed the now deceased had lost a lot of blood. Jerald said he left
without offering any help to the now deceased and only learnt of the
now deceased's death the next day.
Under
cross examination, Jerald Chikwangwami
disowned
some parts of his statement to the police. These relate to the number
of fights between the accused and the now deceased that night,
whether he saw the body of the now deceased the following day. All
what Jerald confirmed is that both the accused and the now deceased
were drunk and that they fought each other at the shop. Jerald was
also drunk as he did not see the need to help the injured now
deceased that night despite realizing that the now deceased had lost
a lot of blood that night. Be that as it may he did not see how the
now deceased was stabbed.
Ebbiot
Shoko (Ebbiot)
Ebbiot
also witnessed the fight at the shop between the accused and the now
deceased. He however did not know the cause of the fight. He too said
initially the now deceased did not fight back, but that the two
exchanged blows during the second brawl. Ebbiot confirmed that it is
the now deceased who left the shop first. As per Ebbiot's
estimation, the accused later left the shop some 20 minutes after the
now deceased's departure. Contrary to Jerald's evidence, Ebbiot
said when Ebbiot left the shop and discovered the now deceased lying
injured he was in the company of Jerald. He said the now deceased was
bleeding and unable to talk. He too offered no help and his reason
was that he was scared. Ebbiot said he was excessively drunk just
like the accused and the now deceased.
Under
cross examination, Ebbiot Shoko conceded that there were indeed
disparities between his evidence and the statement he allegedly made
to the police. Some of the aspects he disputed is that he saw the now
deceased's body the next morning insisting he did not visit the
scene the next day. Again, Ebbiot did not see how the deceased was
injured.
Darlington
Gift Mabika (Gift)
Gift,
just like the other witnesses, said the now deceased did not
retaliate when the initial brawl occurred. He also corroborated other
witnesses that when the accused and the now deceased fought for the
second time no one intervened. They stopped on their own. He too said
the now deceased was the first to leave the shop and the accused
later followed. Gift only learnt of the now deceased's death the
following morning when he attended the scene of crime and saw the now
deceased's lifeless body.
Darlington
Gift Mabika
also disowned part of the contents of his statement to the police.
These relate to how he allegedly restrained the now deceased and the
accused during the fight. In fact, Gift was categoric that the
statement alluded to him was not his and that his signature was
forged.
The
accused
The
accused, in his evidence, maintained what he said in his Defence
Outline. The accused insisted that he makes cooking sticks and is not
a poacher. The accused said at the shops, when he fought the now
deceased, he did not opt to use the knife as his life was not in
danger at all.
The
accused maintained that the now deceased waylaid him as he was going
home and could not have anticipated this sudden attack. It is the
accused's evidence that he was drunk and could not have outpaced
the now deceased. The accused insisted that he only resorted to the
use of the knife after the now deceased had throttled him and was
sitting on him. He said the now deceased was bigger in stature and
attacked him unexpectedly at night. The accused said when he used the
knife he did not pick any part of the body but was pre-occupied with
the inflicting of pain and to free himself from the now deceased who
was throttling him and stabbing him with a sharp object in the face.
According
to the accused he only left the shop some 20–30 minutes after the
accused had left and disputed that he followed the now deceased. The
accused said he was apprehended the next morning as he went back to
the scene to check for both his knife and hat which he dropped as he
fled from the scene the previous night. The accused was steadfast
that he could not have followed the now deceased who had earlier on
left the shop as he did not know the route the now deceased had used.
Analysis
of evidence
The
State case is clearly plagued with insurmountable problems.
To
start with, all the civil witnesses disowned the statements alluded
to them. They disowned the signatures on those statements -
especially Darlington
Gift Mabika (Gift)
who commented on the signature. This was indeed worrying to the
court. Why would these simple rural people who had no discernible
interest in how this matter would be resolved disown the statements
they allegedly made? No possible motive was given or suggested. We
are inclined to believe that the manner this matter was investigated
leaves a lot to be desired. Beyond this we are unable to comment
further.
The
other issue is that there was no eyewitness to how the now deceased
was injured. All the witnesses who testified are not relevant on this
point. The State case does not even turn on circumstantial evidence.
To be fair to the State all they hinge their case on is mere
speculation. No wonder the investigating officer, D/Cst Riva,
conceded that he could not disprove the accused's version of events
especially that he acted in self-defence.
In
casu, the accused admits fatally stabbing the now deceased with the
knife. He proffers the defence of self-defence as is provided for in
section 253(1) of the Code [Chapter 9:23].
The defence of self defence, in our law, is a complete defence.
In
the case of S
v Collet Baira Manzonza
HMA02-16…, I discussed, at the length, the requirements for the
defence of self-defence.
The
State, in our view, has not been able to meaningfully disprove the
accused's version of events.
To
start with, if the now deceased left the shop earlier why would the
accused, who would have followed later, caught up with him. It is not
clear after how long the accused left the shop after the now
deceased's departure. Is it 5 to 10 minutes as one witness said or
20 minutes as the other said? The other point is that it has not been
ascertained how the accused was able to ascertain the exact route the
now deceased had used.
It
has not been shown why the accused's version, that it is the now
deceased who waylaid the accused, is false. There is therefore no
evidence to support the contention that it is the accused who
followed and attacked the now deceased. That would be mere
speculation. Why is it not possible that it is the now deceased who
waylaid the accused?
The
proper approach, which is objective, is to accept the accused's
version and answer the question whether the accused exceeded the
bounds of legitimate self-defence. The fact that a life was lost is
therefore besides the point as our law accepts that it is permissible
for one to cause death upon an unlawful attacker.
If
the now deceased waylaid the accused, it means he was the aggressor
and more prepared to attack the accused. The accused was indeed drunk
and attacked unexpectedly. Indeed, the accused was injured in the
face and over-powered by the now deceased who had a bigger stature.
The accused was throttled as the now deceased sat on him. He had been
clearly overpowered. The two had previously fought at the shop.
All
this should be assessed in the context of the provisions of section
253(2) of the Criminal Law (Codification and Reform Act) [Chapter
9:23]
(The Code).
The
accused explained that he used the knife as a last resort and it was
one blow which he inflicted to cause the now deceased to release him.
As the accused maintained, he did not aim any particular part of the
body. It is therefore fortuitous that he aimed below the armpit.
After delivering one blow and securing his freedom he fled. The
accused's conduct thereafter is irrelevant. He was drunk.
It
is our view that the State has failed to negate the plea of
self-defence. The doubt should have resolved in favour of the
accused.
Accordingly,
the accused should be found not guilty of the charge.
VERDICT:
Not guilty and acquitted.
