Evidence of Identification, Identification Parade, Tool Mark Evidence, Alias, Evidence Aliunde & the Defence of Alibi

The accused were charged with murder in that on the 24th of May 2013 and along Runde River, Shurugwi, in the Midlands Province, the accused persons, or one or more of them, unlawfully caused the death of Wellington Mashava by stabbing him with a knife twice on the chest, once on the left shoulder and once on the left back and by striking him with logs on the neck and face intending to kill him or realizing that there was a real risk or possibility that their conduct may cause death and continued to engage in that conduct despite the risk or possibility.

All accused persons pleaded not guilty to the charge.

The State Outline was produced as exhibit 1. In it, the State alleged that on the 24th of May 2013, the deceased and the accused persons were panning for gold. Later, in the evening of that day, they were at a make-shift bottle store where an argument ensued between Accused 1 and the deceased over allegations that the latter had earlier on stolen the former's cell phone.

The deceased struck Accused 1 with an iron bar on the neck prompting Accused 2, 3 and 4 to join in the fight on Accused 1's side. The three used fire brands to strike the deceased on the neck and face. Accused 1 then pulled a knife and stabbed the deceased with it on the chest and back. The deceased cried out for help and fell to the ground. He died shortly thereafter and a report was subsequently made to the police. The deceased's remains were ferried to United Bulawayo Hospitals for a post mortem examination.

Accused 1's Defence Outline was produced as exhibit 2. The accused denied the charge raising self defence and provocation as his defences.

He admitted stabbing the deceased twice on the chest in self-defence. In paragraph 6 of his Defence Outline he stated that after stabbing the deceased twice, as indicated above, he “left the scene whilst Accused 4 was assaulting the deceased with logs.” In paragraph 5 of the Defence Outline, he said the deceased hit him with an iron bar on the “neck” and continued assaulting him with “open hands.” He also said the issue of the stolen cell phone had caused a long time misunderstanding between the deceased and himself.

Exhibit 3 was Accused 2's Defence Outline wherein he denied the charge of murder. He indicated that he took no part in the stabbing of the deceased on the day in question.

According to him, when he got to the scene, he found Accused 1 and the deceased fighting while Simbarashe Madhubeko and others were watching. He then saw “Accused 1 lifting the deceased from the ground. The 4th accused then struck the deceased with a log at the back of the neck on the left side. When deceased was struck with the log, he dropped a knife that he was holding in his hand. The 1st Accused then picked up the knife and stabbed the deceased twice on the chest. The 4th accused again hit the deceased with the log at the back of the neck and under the right shoulder. The deceased then fell down. The 1st and 4th accused then ran away from the scene.” As he picked a bucket to fetch water he was apprehended by Simbarashe Madhubeko who tied him, together with the 3rd Accused, with shoe laces.

Finally, he denied assaulting the deceased at any material point arguing that he did not act in common purpose with the 1st and 4th accused persons in assaulting the deceased. He prayed for a verdict of not guilty.

Exhibit 4 was Accused 3's Defence Outline wherein he denied the State's allegations. In paragraph 8 of this Outline, he stated that whilst he was at a point where sadza was being sold, he “realised that a fight had broken up (sic) between Accused 1 and the deceased. He then went to the scene where he noticed that Accused 2 arrived running inquiring what was happening. He heard Accused 2 warning Accused 1 against using a knife in the fight.” In paragraph 11 he said he believed the deceased died as a result of stab wounds inflicted on his person by the first accused. Further, he said the deceased was assaulted by the 4th accused using a log and he denied “any participation as alleged or at all in bringing about the death of the deceased.” He also prayed for his acquittal on the murder charge.

Exhibit 5 was the 4th accused's Defence Outline. He too pleaded not guilty outlining that on the fateful evening he was drinking beer with fellow gold panners when a misunderstanding ensued between Accused 1 and the deceased culminating in the deceased striking Accused 1 with a “crow bar and he fell down. In paragraph 6 of this Outline he stated that the “2nd accused and the 3rd accused started hitting the now deceased with a log they had taken from the fire.” In paragraph 7 he said “he witnessed Accused 1 standing up and going on to stab the deceased on the chest. Deceased then fell down and Accused 2 and 3 were apprehended at the scene.” He denied ever causing the deceased's death.

Exhibit 6 was Accused 1's confirmed warned and cautioned statement in which he said the misunderstanding was over his cell phone that the deceased had stolen. The material parts read as follows:

“At about 2100 hours, the now deceased started inquiring whether I was serious about what I had initially asked him. He then hit me once with an iron bar on my neck. I then grabbed and pushed him to the ground and I started assaulting him several times with fists on his face. At that moment, Adventure Ruzive, Habson Chamatungwa and Jonasi Musengi joined in and the trio started assaulting him several times all over his body using logs which they had taken from the fire. Some people who were nearby, whom I do not know by names, came to stop the fight since Wellington Mushava was about to die. Adventure Ruzive and Habson Chamatugwa were apprehended but I and Jonasi Musengi managed to flea…,.”

Exhibit 7 was Accused 2's confirmed warned and cautioned statement. In that statement, Accused 2 stated that when he got to the scene, he saw Accused 1 grabbing the deceased by the jacket while holding an okapi knife. He asked Accused 1 why they were fighting and he said the deceased had struck him with an iron bar. He then warned Accused 1 against using a knife but Accused 1 ignored him. In an instant, Accused 1 then stabbed the deceased twice on the chest with the knife. Accused 4 then struck the deceased on the back of his head and he fell down. He said he then picked a bucket in order to fetch some water to pour on the deceased but was apprehended before he could achieve this purpose. He denied assaulting the deceased.

Exhibit 8 was Accused 3's confirmed warned and cautioned statement. He said he saw the deceased strike Accused 1 with an iron bar and the two immediately engaged in a fight. Accused 2 asked him why the two were fighting and he informed him the reason. According to him, he saw Accused 4 strike the deceased twice on the back of his head and on the neck using a log. He heard Accused 2 warning Accused 1 not to use a knife. Although he claimed not to have assaulted the deceased, he was apprehended by Simbarashe Madhubeko at the scene.

Exhibit 9 was Accused 4's confirmed warned and cautioned statement wherein he stated that Accused 1 was hit by the deceased and he fell down screaming. Accused 2 and 3 then arrived and Accused 2 stabbed the deceased once on the chest with a knife. Accused 3 hit the deceased several times with a fire brand. Accused 1 then stood up and stabbed the deceased once on his back....,.

The State then opened its case by calling Simbarashe Madhubeko (Simbarashe) who lives at Village 4, Stand 18 Zhangwe in Shurugwi. He is a gold panner who knows all the four (4) accused persons as neighbours and fellow gold panners. He knew the deceased as his neighbour and gold panner. He said all the accused persons, and the deceased, used to move together. He had known the deceased for a period of seven (7) years before his death.

The witness said on the 24th day of May 2013 he was standing about 10 metres away when he saw Accused 3 striking the deceased on the neck with a fire brand. He also saw Accused 2 striking the deceased with a fire brand. Later, he saw Accused 4 hitting the deceased on the face with a fire brand he had withdrawn from the fire. The deceased cried out, and, as he cried out, he said he had been stabbed with a knife. At that time, Accused 1 was holding a knife and he apprehended Accused 3 while Accused 2 was apprehended by one Chikozho. Accused 1 and 4 fled the scene....,.

According to the witness, the spot was illuminated by fire and he clearly saw Accused 2, 3 and 4 assaulting the deceased....,.

The State's second witness was Edmore Marima the Investigating Officer in this case....,. Accused 4 told him that he was also known as Jonasi Musengi....,.

In casu, it cannot be said that the evidence of Simbarashe Madhubeko was thoroughly discredited....,.

In our view, Simbarashe Madhubeko was an honest witness who did not exaggerate his story. He told a simple and straight forward story and was never shaken under cross-examination. In other words, he remained firm, steadfast and consistent notwithstanding intense and searching questions from the four defence counsels. Put differently, his story remained intact without any embellishments....,.

We therefore find Simbarashe Madhubeko a credible witness whose evidence we accept in toto.

Defence Outline, State Outline re: Approach, Testimonial Discrepancies and Prevaricative or Inconsistent Evidence

The accused were charged with murder in that on the 24th of May 2013 and along Runde River, Shurugwi, in the Midlands Province, the accused persons, or one or more of them, unlawfully caused the death of Wellington Mashava by stabbing him with a knife twice on the chest, once on the left shoulder and once on the left back and by striking him with logs on the neck and face intending to kill him or realizing that there was a real risk or possibility that their conduct may cause death and continued to engage in that conduct despite the risk or possibility.

All accused persons pleaded not guilty to the charge.

The State Outline was produced as exhibit 1. In it, the State alleged that on the 24th of May 2013, the deceased and the accused persons were panning for gold. Later, in the evening of that day, they were at a make-shift bottle store where an argument ensued between Accused 1 and the deceased over allegations that the latter had earlier on stolen the former's cell phone.

The deceased struck Accused 1 with an iron bar on the neck prompting Accused 2, 3 and 4 to join in the fight on Accused 1's side. The three used fire brands to strike the deceased on the neck and face. Accused 1 then pulled a knife and stabbed the deceased with it on the chest and back. The deceased cried out for help and fell to the ground. He died shortly thereafter and a report was subsequently made to the police. The deceased's remains were ferried to United Bulawayo Hospitals for a post mortem examination.

Accused 1's Defence Outline was produced as exhibit 2. The accused denied the charge raising self defence and provocation as his defences.

He admitted stabbing the deceased twice on the chest in self-defence. In paragraph 6 of his Defence Outline he stated that after stabbing the deceased twice, as indicated above, he “left the scene whilst Accused 4 was assaulting the deceased with logs.” In paragraph 5 of the Defence Outline, he said the deceased hit him with an iron bar on the “neck” and continued assaulting him with “open hands.” He also said the issue of the stolen cell phone had caused a long time misunderstanding between the deceased and himself.

Exhibit 3 was Accused 2's Defence Outline wherein he denied the charge of murder. He indicated that he took no part in the stabbing of the deceased on the day in question.

According to him, when he got to the scene, he found Accused 1 and the deceased fighting while Simbarashe Madhubeko and others were watching. He then saw “Accused 1 lifting the deceased from the ground. The 4th accused then struck the deceased with a log at the back of the neck on the left side. When deceased was struck with the log, he dropped a knife that he was holding in his hand. The 1st Accused then picked up the knife and stabbed the deceased twice on the chest. The 4th accused again hit the deceased with the log at the back of the neck and under the right shoulder. The deceased then fell down. The 1st and 4th accused then ran away from the scene.” As he picked a bucket to fetch water he was apprehended by Simbarashe Madhubeko who tied him, together with the 3rd Accused, with shoe laces.

Finally, he denied assaulting the deceased at any material point arguing that he did not act in common purpose with the 1st and 4th accused persons in assaulting the deceased. He prayed for a verdict of not guilty.

Exhibit 4 was Accused 3's Defence Outline wherein he denied the State's allegations. In paragraph 8 of this Outline, he stated that whilst he was at a point where sadza was being sold, he “realised that a fight had broken up (sic) between Accused 1 and the deceased. He then went to the scene where he noticed that Accused 2 arrived running inquiring what was happening. He heard Accused 2 warning Accused 1 against using a knife in the fight.” In paragraph 11 he said he believed the deceased died as a result of stab wounds inflicted on his person by the first accused. Further, he said the deceased was assaulted by the 4th accused using a log and he denied “any participation as alleged or at all in bringing about the death of the deceased.” He also prayed for his acquittal on the murder charge.

Exhibit 5 was the 4th accused's Defence Outline. He too pleaded not guilty outlining that on the fateful evening he was drinking beer with fellow gold panners when a misunderstanding ensued between Accused 1 and the deceased culminating in the deceased striking Accused 1 with a “crow bar and he fell down. In paragraph 6 of this Outline he stated that the “2nd accused and the 3rd accused started hitting the now deceased with a log they had taken from the fire.” In paragraph 7 he said “he witnessed Accused 1 standing up and going on to stab the deceased on the chest. Deceased then fell down and Accused 2 and 3 were apprehended at the scene.” He denied ever causing the deceased's death.

Exhibit 6 was Accused 1's confirmed warned and cautioned statement in which he said the misunderstanding was over his cell phone that the deceased had stolen. The material parts read as follows:

“At about 2100 hours, the now deceased started inquiring whether I was serious about what I had initially asked him. He then hit me once with an iron bar on my neck. I then grabbed and pushed him to the ground and I started assaulting him several times with fists on his face. At that moment, Adventure Ruzive, Habson Chamatungwa and Jonasi Musengi joined in and the trio started assaulting him several times all over his body using logs which they had taken from the fire. Some people who were nearby, whom I do not know by names, came to stop the fight since Wellington Mushava was about to die. Adventure Ruzive and Habson Chamatugwa were apprehended but I and Jonasi Musengi managed to flea…,.”

Exhibit 7 was Accused 2's confirmed warned and cautioned statement. In that statement, Accused 2 stated that when he got to the scene, he saw Accused 1 grabbing the deceased by the jacket while holding an okapi knife. He asked Accused 1 why they were fighting and he said the deceased had struck him with an iron bar. He then warned Accused 1 against using a knife but Accused 1 ignored him. In an instant, Accused 1 then stabbed the deceased twice on the chest with the knife. Accused 4 then struck the deceased on the back of his head and he fell down. He said he then picked a bucket in order to fetch some water to pour on the deceased but was apprehended before he could achieve this purpose. He denied assaulting the deceased.

Exhibit 8 was Accused 3's confirmed warned and cautioned statement. He said he saw the deceased strike Accused 1 with an iron bar and the two immediately engaged in a fight. Accused 2 asked him why the two were fighting and he informed him the reason. According to him, he saw Accused 4 strike the deceased twice on the back of his head and on the neck using a log. He heard Accused 2 warning Accused 1 not to use a knife. Although he claimed not to have assaulted the deceased, he was apprehended by Simbarashe Madhubeko at the scene.

Exhibit 9 was Accused 4's confirmed warned and cautioned statement wherein he stated that Accused 1 was hit by the deceased and he fell down screaming. Accused 2 and 3 then arrived and Accused 2 stabbed the deceased once on the chest with a knife. Accused 3 hit the deceased several times with a fire brand. Accused 1 then stood up and stabbed the deceased once on his back....,.

The State then opened its case by calling Simbarashe Madhubeko (Simbarashe) who lives at Village 4, Stand 18 Zhangwe in Shurugwi. He is a gold panner who knows all the four (4) accused persons as neighbours and fellow gold panners. He knew the deceased as his neighbour and gold panner. He said all the accused persons, and the deceased, used to move together. He had known the deceased for a period of seven (7) years before his death.

The witness said on the 24th day of May 2013 he was standing about 10 metres away when he saw Accused 3 striking the deceased on the neck with a fire brand. He also saw Accused 2 striking the deceased with a fire brand. Later, he saw Accused 4 hitting the deceased on the face with a fire brand he had withdrawn from the fire. The deceased cried out, and, as he cried out, he said he had been stabbed with a knife. At that time, Accused 1 was holding a knife and he apprehended Accused 3 while Accused 2 was apprehended by one Chikozho. Accused 1 and 4 fled the scene.

A Mr Mangisi phoned Shurugwi Police. According to the witness, the spot was illuminated by fire and he clearly saw Accused 2, 3 and 4 assaulting the deceased.

When it was put to him that Accused 1 will say he took the knife from the deceased in order to defend himself, his answer was;

“Accused 1 was holding a knife, I do not know where he had obtained it from.”

Also, when it was suggested to him that the deceased was hit by Accused 4 and he dropped the knife his response was;

“They are better positioned but all I know is that they were assaulting him.”

He further said Accused 2 assaulted the deceased and he was restrained by one Brighton while he restrained Accused 3 after he had assaulted the deceased. As regards Accused 4, he said he saw him assaulting the deceased as well.

Under cross-examination by counsel for Accused 1, he conceded that he did not see Accused 1 stab the deceased. Also, he stated that he had not witnessed the earlier confrontation between the deceased and Accused 1.

Asked by counsel for Accused 2 why he had omitted to mention the role played by Accused 2 in his statement to the police, his response was;

“I do not know why its missing but I mentioned it.”

The statement was later admitted as exhibit 11....,.

In casu, it cannot be said that the evidence of Simbarashe Madhubeko was thoroughly discredited....,.

In our view, Simbarashe Madhubeko was an honest witness who did not exaggerate his story. He told a simple and straight forward story and was never shaken under cross-examination. In other words, he remained firm, steadfast and consistent notwithstanding intense and searching questions from the four defence counsels. Put differently, his story remained intact without any embelishments....,.

We therefore find Simbarashe Madhubeko a credible witness whose evidence we accept in toto....,.

We find Accused 1 to be an incredible witness for the following reasons:

(1) Accused 1's confirmed warned and cautioned statement is contradictory to his Defence Outline in many material respects.

As examples, he admitted, in the Defence Outline, that he stabbed the deceased twice on the chest with a knife; yet, in the warned and cautioned statement he never mentioned the knife, never mind the more important issue of stabbing the deceased. He, instead, piled the blame on his co-accused persons for the death of the deceased.

Also, in the warned and cautioned statement, he never mentioned the fact that he acted in self-defence after the deceased produced a knife or that he was intoxicated at the relevant time.

In the warned and cautioned statement he said he was assaulted once on the neck by the deceased yet in Defence Outline he said the deceased continued to assault him using open hands.

There is yet another version he gave in his evidence in chief, namely, that the deceased hit him with an iron bar on the neck and when he fell down the deceased continued to strike him on the back with the iron bar.

As if this is not enough, Accused 1 gave another totally different version under cross-examination when he said he was assaulted three times by the deceased i.e. once on the head and twice on the back....,.

Accused 2...,. gave evidence in his defence.

He said on the evening in question, he was informed by Accused 3 that his young brother (Accused 1) was involved in a fight with the deceased. At a distance he saw Accused 1 grabbing the deceased by the neck and the two fell down. He then saw Accused 4 striking the deceased with a fire brand. Shortly thereafter, he saw Accused 1 holding a knife while he was on the ground and he immediately warned Accused 1 against using a knife. Accused 1 ignored him and proceeded to stab the deceased twice on the chest. He later said Accused 1 was on top of the deceased and both rose and Accused 4 then struck the deceased twice, once on the back and neck. After the deceased had fallen down Accused 1 and 4 fled while he and Accused 3 were apprehended at the scene.

Under cross-examination he changed his version and said the deceased was on top of the first accused. He denied his version of events in the confirmed warned and cautioned statement.

According to him he had been tortured at the scene to the extent that he was confused when he gave his statement. At confirmation proceedings he said he informed the magistrate who ordered that the police were to investigate the matter....,.

Moving on to Accused 2, we find that he too was an untruthful witness. There are numerous differences between the accused's Defence Outline and his warned and cautioned statement.

In the warned and cautioned statement, he said when he arrived he saw Accused 1 grabbing the deceased by the jacket while holding a knife; yet, in the Defence Outline, he said Accused 1 lifted the deceased from the ground and the fourth accused then hit the deceased.

Also, in the Defence Outline, he said the deceased dropped a knife after he was hit by Accused 4; yet, in the warned and cautioned statement he did not mention this at all.

In the Defence Outline, he said he did not speak to the first accused at the scene; yet, in the warned and cautioned statement he said he warned Accused 1 against using the knife but he took no heed.

He also said, in his warned and cautioned statement, that he asked Accused 1, at the scene, why he was fighting with the deceased, and he said the deceased had assaulted him using a crow bar.

Further, Accused 2, in his warned and cautioned statement, said Accused 4 hit the deceased once on the back of the head and he fell down; yet, in the Defence Outline, he said Accused 4 hit the deceased twice (i.e. once on the back of the neck and once under the right shoulder)....,.

The sequence of events in the Defence Outline is also different from that in the warned and cautioned statement....,.

It is also highly improbable that the magistrate would have confirmed the warned and cautioned statement if the accused had reservations....,.

As regards the third accused, our view is that while he gave a consistent version of events in the warned and cautioned statement and his Defence Outline, he minimized his role during the scuffle....,.

The fourth accused gave evidence in his defence.

His version is also short with some variations between the warned and cautioned statement and the Defence Outline. He said he saw Accused 1 stabbing the deceased on the chest in his Defence Outline; yet, in the warned and cautioned statement he had said it was Accused 2 who stabbed the deceased in the chest.

In the warned and cautioned statement, he said Accused 1 stabbed the deceased on the back. In his Defence Outline, he said Accused 2 and 3 hit the deceased with logs; yet, in the warned and cautioned statement, he said it was only Accused 3 who hit the deceased several times while Accused 2 stabbed the deceased with a knife on the chest.

Corroborative Evidence re: Pervasive or Undue Influence, Partisan Evidence, Prejudicial Evidence and Witness Coaching

The accused were charged with murder in that on the 24th of May 2013 and along Runde River, Shurugwi, in the Midlands Province, the accused persons, or one or more of them, unlawfully caused the death of Wellington Mashava by stabbing him with a knife twice on the chest, once on the left shoulder and once on the left back and by striking him with logs on the neck and face intending to kill him or realizing that there was a real risk or possibility that their conduct may cause death and continued to engage in that conduct despite the risk or possibility.

All accused persons pleaded not guilty to the charge.

The State Outline was produced as exhibit 1. In it, the State alleged that on the 24th of May 2013, the deceased and the accused persons were panning for gold. Later, in the evening of that day, they were at a make-shift bottle store where an argument ensued between Accused 1 and the deceased over allegations that the latter had earlier on stolen the former's cell phone.

The deceased struck Accused 1 with an iron bar on the neck prompting Accused 2, 3 and 4 to join in the fight on Accused 1's side. The three used fire brands to strike the deceased on the neck and face. Accused 1 then pulled a knife and stabbed the deceased with it on the chest and back. The deceased cried out for help and fell to the ground. He died shortly thereafter and a report was subsequently made to the police. The deceased's remains were ferried to United Bulawayo Hospitals for a post mortem examination.

Accused 1's Defence Outline was produced as exhibit 2. The accused denied the charge raising self defence and provocation as his defences.

He admitted stabbing the deceased twice on the chest in self-defence. In paragraph 6 of his Defence Outline he stated that after stabbing the deceased twice, as indicated above, he “left the scene whilst Accused 4 was assaulting the deceased with logs.” In paragraph 5 of the Defence Outline, he said the deceased hit him with an iron bar on the “neck” and continued assaulting him with “open hands.” He also said the issue of the stolen cell phone had caused a long time misunderstanding between the deceased and himself.

Exhibit 3 was Accused 2's Defence Outline wherein he denied the charge of murder. He indicated that he took no part in the stabbing of the deceased on the day in question.

According to him, when he got to the scene, he found Accused 1 and the deceased fighting while Simbarashe Madhubeko and others were watching. He then saw “Accused 1 lifting the deceased from the ground. The 4th accused then struck the deceased with a log at the back of the neck on the left side. When deceased was struck with the log, he dropped a knife that he was holding in his hand. The 1st Accused then picked up the knife and stabbed the deceased twice on the chest. The 4th accused again hit the deceased with the log at the back of the neck and under the right shoulder. The deceased then fell down. The 1st and 4th accused then ran away from the scene.” As he picked a bucket to fetch water he was apprehended by Simbarashe Madhubeko who tied him, together with the 3rd Accused, with shoe laces.

Finally, he denied assaulting the deceased at any material point arguing that he did not act in common purpose with the 1st and 4th accused persons in assaulting the deceased. He prayed for a verdict of not guilty.

Exhibit 4 was Accused 3's Defence Outline wherein he denied the State's allegations. In paragraph 8 of this Outline, he stated that whilst he was at a point where sadza was being sold, he “realised that a fight had broken up (sic) between Accused 1 and the deceased. He then went to the scene where he noticed that Accused 2 arrived running inquiring what was happening. He heard Accused 2 warning Accused 1 against using a knife in the fight.” In paragraph 11 he said he believed the deceased died as a result of stab wounds inflicted on his person by the first accused. Further, he said the deceased was assaulted by the 4th accused using a log and he denied “any participation as alleged or at all in bringing about the death of the deceased.” He also prayed for his acquittal on the murder charge.

Exhibit 5 was the 4th accused's Defence Outline. He too pleaded not guilty outlining that on the fateful evening he was drinking beer with fellow gold panners when a misunderstanding ensued between Accused 1 and the deceased culminating in the deceased striking Accused 1 with a “crow bar and he fell down. In paragraph 6 of this Outline he stated that the “2nd accused and the 3rd accused started hitting the now deceased with a log they had taken from the fire.” In paragraph 7 he said “he witnessed Accused 1 standing up and going on to stab the deceased on the chest. Deceased then fell down and Accused 2 and 3 were apprehended at the scene.” He denied ever causing the deceased's death.

Exhibit 6 was Accused 1's confirmed warned and cautioned statement in which he said the misunderstanding was over his cell phone that the deceased had stolen. The material parts read as follows:

“At about 2100 hours, the now deceased started inquiring whether I was serious about what I had initially asked him. He then hit me once with an iron bar on my neck. I then grabbed and pushed him to the ground and I started assaulting him several times with fists on his face. At that moment, Adventure Ruzive, Habson Chamatungwa and Jonasi Musengi joined in and the trio started assaulting him several times all over his body using logs which they had taken from the fire. Some people who were nearby, whom I do not know by names, came to stop the fight since Wellington Mushava was about to die. Adventure Ruzive and Habson Chamatugwa were apprehended but I and Jonasi Musengi managed to flea…,.”

Exhibit 7 was Accused 2's confirmed warned and cautioned statement. In that statement, Accused 2 stated that when he got to the scene, he saw Accused 1 grabbing the deceased by the jacket while holding an okapi knife. He asked Accused 1 why they were fighting and he said the deceased had struck him with an iron bar. He then warned Accused 1 against using a knife but Accused 1 ignored him. In an instant, Accused 1 then stabbed the deceased twice on the chest with the knife. Accused 4 then struck the deceased on the back of his head and he fell down. He said he then picked a bucket in order to fetch some water to pour on the deceased but was apprehended before he could achieve this purpose. He denied assaulting the deceased.

Exhibit 8 was Accused 3's confirmed warned and cautioned statement. He said he saw the deceased strike Accused 1 with an iron bar and the two immediately engaged in a fight. Accused 2 asked him why the two were fighting and he informed him the reason. According to him, he saw Accused 4 strike the deceased twice on the back of his head and on the neck using a log. He heard Accused 2 warning Accused 1 not to use a knife. Although he claimed not to have assaulted the deceased, he was apprehended by Simbarashe Madhubeko at the scene.

Exhibit 9 was Accused 4's confirmed warned and cautioned statement wherein he stated that Accused 1 was hit by the deceased and he fell down screaming. Accused 2 and 3 then arrived and Accused 2 stabbed the deceased once on the chest with a knife. Accused 3 hit the deceased several times with a fire brand. Accused 1 then stood up and stabbed the deceased once on his back....,.

The State then opened its case by calling Simbarashe Madhubeko (Simbarashe) who lives at Village 4, Stand 18 Zhangwe in Shurugwi. He is a gold panner who knows all the four (4) accused persons as neighbours and fellow gold panners. He knew the deceased as his neighbour and gold panner. He said all the accused persons, and the deceased, used to move together. He had known the deceased for a period of seven (7) years before his death.

The witness said on the 24th day of May 2013 he was standing about 10 metres away when he saw Accused 3 striking the deceased on the neck with a fire brand. He also saw Accused 2 striking the deceased with a fire brand. Later, he saw Accused 4 hitting the deceased on the face with a fire brand he had withdrawn from the fire. The deceased cried out, and, as he cried out, he said he had been stabbed with a knife. At that time, Accused 1 was holding a knife and he apprehended Accused 3 while Accused 2 was apprehended by one Chikozho. Accused 1 and 4 fled the scene.

A Mr Mangisi phoned Shurugwi Police. According to the witness, the spot was illuminated by fire and he clearly saw Accused 2, 3 and 4 assaulting the deceased.

When it was put to him that Accused 1 will say he took the knife from the deceased in order to defend himself, his answer was;

“Accused 1 was holding a knife, I do not know where he had obtained it from.”

Also, when it was suggested to him that the deceased was hit by Accused 4 and he dropped the knife his response was;

“They are better positioned but all I know is that they were assaulting him.”

He further said Accused 2 assaulted the deceased and he was restrained by one Brighton while he restrained Accused 3 after he had assaulted the deceased. As regards Accused 4, he said he saw him assaulting the deceased as well.

Under cross-examination by counsel for Accused 1, he conceded that he did not see Accused 1 stab the deceased. Also, he stated that he had not witnessed the earlier confrontation between the deceased and Accused 1.

Asked by counsel for Accused 2 why he had omitted to mention the role played by Accused 2 in his statement to the police, his response was;

“I do not know why its missing but I mentioned it.”

The statement was later admitted as exhibit 11.

Under cross-examination by counsel for Accused 3, the witness said the deceased and all the accused persons were “panning gold together and staying together in the bush”. He insisted that it was the 3rd accused who first attacked the deceased and that he did not see the deceased striking the accused with an iron bar.

He denied that he was falsely implicating Accused 3 because the deceased was his friend. He said the deceased was the accused persons' friend as well....,.

According to Accused 4, Simbarashe Madhubeko teamed up with Accused 1, 2 and 3 to incriminate him because they are neighbours.

In casu, it cannot be said that the evidence of Simbarashe Madhubeko was thoroughly discredited....,.

In our view, Simbarashe Madhubeko was an honest witness who did not exaggerate his story. He told a simple and straight forward story and was never shaken under cross-examination. In other words, he remained firm, steadfast and consistent notwithstanding intense and searching questions from the four defence counsels. Put differently, his story remained intact without any embellishments.

For example, he told the court that he did not see where Accused 1 obtained the knife from. On the evidence on record, if this witness wanted to exaggerate he could have easily said Accused 1 took the knife from his pocket thereby contradicting the accused's version that the deceased dropped the knife.

Another example is that he conceded that he did not see the deceased attacking Accused 1 with an iron bar. An untruthful witness would have said the deceased never assaulted the first accused - especially where the witness was a friend of the deceased. His version of events, as regards the sequence of events before, during, and after the stabbing remained in one shape....,.

We therefore find Simbarashe Madhubeko a credible witness whose evidence we accept in toto....,.

It should be noted that Accused 1, 2, 3 and Simbarashe Madhubeko say they saw Accused 4 striking the deceased with a fire brand.

We do not find any reason why Simbarashe Madhubeko, and the others, would falsely incriminate Accused 4.

Direct and Circumstantial Evidence, Causation and Inferential Reasoning re: Key Witness, Eyewitness & Res Gestae

The accused were charged with murder in that on the 24th of May 2013 and along Runde River, Shurugwi, in the Midlands Province, the accused persons, or one or more of them, unlawfully caused the death of Wellington Mashava by stabbing him with a knife twice on the chest, once on the left shoulder and once on the left back and by striking him with logs on the neck and face intending to kill him or realizing that there was a real risk or possibility that their conduct may cause death and continued to engage in that conduct despite the risk or possibility.

All accused persons pleaded not guilty to the charge.

The State Outline was produced as exhibit 1. In it, the State alleged that on the 24th of May 2013, the deceased and the accused persons were panning for gold. Later, in the evening of that day, they were at a make-shift bottle store where an argument ensued between Accused 1 and the deceased over allegations that the latter had earlier on stolen the former's cell phone.

The deceased struck Accused 1 with an iron bar on the neck prompting Accused 2, 3 and 4 to join in the fight on Accused 1's side. The three used fire brands to strike the deceased on the neck and face. Accused 1 then pulled a knife and stabbed the deceased with it on the chest and back. The deceased cried out for help and fell to the ground. He died shortly thereafter and a report was subsequently made to the police. The deceased's remains were ferried to United Bulawayo Hospitals for a post mortem examination.

Accused 1's Defence Outline was produced as exhibit 2. The accused denied the charge raising self defence and provocation as his defences.

He admitted stabbing the deceased twice on the chest in self-defence. In paragraph 6 of his Defence Outline he stated that after stabbing the deceased twice, as indicated above, he “left the scene whilst Accused 4 was assaulting the deceased with logs.” In paragraph 5 of the Defence Outline, he said the deceased hit him with an iron bar on the “neck” and continued assaulting him with “open hands.” He also said the issue of the stolen cell phone had caused a long time misunderstanding between the deceased and himself.

Exhibit 3 was Accused 2's Defence Outline wherein he denied the charge of murder. He indicated that he took no part in the stabbing of the deceased on the day in question.

According to him, when he got to the scene, he found Accused 1 and the deceased fighting while Simbarashe Madhubeko and others were watching. He then saw “Accused 1 lifting the deceased from the ground. The 4th accused then struck the deceased with a log at the back of the neck on the left side. When deceased was struck with the log, he dropped a knife that he was holding in his hand. The 1st Accused then picked up the knife and stabbed the deceased twice on the chest. The 4th accused again hit the deceased with the log at the back of the neck and under the right shoulder. The deceased then fell down. The 1st and 4th accused then ran away from the scene.” As he picked a bucket to fetch water he was apprehended by Simbarashe Madhubeko who tied him, together with the 3rd Accused, with shoe laces.

Finally, he denied assaulting the deceased at any material point arguing that he did not act in common purpose with the 1st and 4th accused persons in assaulting the deceased. He prayed for a verdict of not guilty.

Exhibit 4 was Accused 3's Defence Outline wherein he denied the State's allegations. In paragraph 8 of this Outline, he stated that whilst he was at a point where sadza was being sold, he “realised that a fight had broken up (sic) between Accused 1 and the deceased. He then went to the scene where he noticed that Accused 2 arrived running inquiring what was happening. He heard Accused 2 warning Accused 1 against using a knife in the fight.” In paragraph 11 he said he believed the deceased died as a result of stab wounds inflicted on his person by the first accused. Further, he said the deceased was assaulted by the 4th accused using a log and he denied “any participation as alleged or at all in bringing about the death of the deceased.” He also prayed for his acquittal on the murder charge.

Exhibit 5 was the 4th accused's Defence Outline. He too pleaded not guilty outlining that on the fateful evening he was drinking beer with fellow gold panners when a misunderstanding ensued between Accused 1 and the deceased culminating in the deceased striking Accused 1 with a “crow bar and he fell down. In paragraph 6 of this Outline he stated that the “2nd accused and the 3rd accused started hitting the now deceased with a log they had taken from the fire.” In paragraph 7 he said “he witnessed Accused 1 standing up and going on to stab the deceased on the chest. Deceased then fell down and Accused 2 and 3 were apprehended at the scene.” He denied ever causing the deceased's death.

Exhibit 6 was Accused 1's confirmed warned and cautioned statement in which he said the misunderstanding was over his cell phone that the deceased had stolen. The material parts read as follows:

“At about 2100 hours, the now deceased started inquiring whether I was serious about what I had initially asked him. He then hit me once with an iron bar on my neck. I then grabbed and pushed him to the ground and I started assaulting him several times with fists on his face. At that moment, Adventure Ruzive, Habson Chamatungwa and Jonasi Musengi joined in and the trio started assaulting him several times all over his body using logs which they had taken from the fire. Some people who were nearby, whom I do not know by names, came to stop the fight since Wellington Mushava was about to die. Adventure Ruzive and Habson Chamatugwa were apprehended but I and Jonasi Musengi managed to flea…,.”

Exhibit 7 was Accused 2's confirmed warned and cautioned statement. In that statement, Accused 2 stated that when he got to the scene, he saw Accused 1 grabbing the deceased by the jacket while holding an okapi knife. He asked Accused 1 why they were fighting and he said the deceased had struck him with an iron bar. He then warned Accused 1 against using a knife but Accused 1 ignored him. In an instant, Accused 1 then stabbed the deceased twice on the chest with the knife. Accused 4 then struck the deceased on the back of his head and he fell down. He said he then picked a bucket in order to fetch some water to pour on the deceased but was apprehended before he could achieve this purpose. He denied assaulting the deceased.

Exhibit 8 was Accused 3's confirmed warned and cautioned statement. He said he saw the deceased strike Accused 1 with an iron bar and the two immediately engaged in a fight. Accused 2 asked him why the two were fighting and he informed him the reason. According to him, he saw Accused 4 strike the deceased twice on the back of his head and on the neck using a log. He heard Accused 2 warning Accused 1 not to use a knife. Although he claimed not to have assaulted the deceased, he was apprehended by Simbarashe Madhubeko at the scene.

Exhibit 9 was Accused 4's confirmed warned and cautioned statement wherein he stated that Accused 1 was hit by the deceased and he fell down screaming. Accused 2 and 3 then arrived and Accused 2 stabbed the deceased once on the chest with a knife. Accused 3 hit the deceased several times with a fire brand. Accused 1 then stood up and stabbed the deceased once on his back....,.

The State then opened its case by calling Simbarashe Madhubeko (Simbarashe) who lives at Village 4, Stand 18 Zhangwe in Shurugwi. He is a gold panner who knows all the four (4) accused persons as neighbours and fellow gold panners. He knew the deceased as his neighbour and gold panner. He said all the accused persons, and the deceased, used to move together. He had known the deceased for a period of seven (7) years before his death.

The witness said on the 24th day of May 2013 he was standing about 10 metres away when he saw Accused 3 striking the deceased on the neck with a fire brand. He also saw Accused 2 striking the deceased with a fire brand. Later, he saw Accused 4 hitting the deceased on the face with a fire brand he had withdrawn from the fire. The deceased cried out, and, as he cried out, he said he had been stabbed with a knife. At that time, Accused 1 was holding a knife and he apprehended Accused 3 while Accused 2 was apprehended by one Chikozho. Accused 1 and 4 fled the scene.

A Mr Mangisi phoned Shurugwi Police. According to the witness, the spot was illuminated by fire and he clearly saw Accused 2, 3 and 4 assaulting the deceased.

When it was put to him that Accused 1 will say he took the knife from the deceased in order to defend himself, his answer was;

“Accused 1 was holding a knife, I do not know where he had obtained it from.”

Also, when it was suggested to him that the deceased was hit by Accused 4 and he dropped the knife his response was;

“They are better positioned but all I know is that they were assaulting him.”

He further said Accused 2 assaulted the deceased and he was restrained by one Brighton while he restrained Accused 3 after he had assaulted the deceased. As regards Accused 4, he said he saw him assaulting the deceased as well.

Under cross-examination by counsel for Accused 1, he conceded that he did not see Accused 1 stab the deceased. Also, he stated that he had not witnessed the earlier confrontation between the deceased and Accused 1.

Asked by counsel for Accused 2 why he had omitted to mention the role played by Accused 2 in his statement to the police, his response was;

“I do not know why its missing but I mentioned it.”

The statement was later admitted as exhibit 11.

Under cross-examination by counsel for Accused 3, the witness said the deceased and all the accused persons were “panning gold together and staying together in the bush”. He insisted that it was the 3rd accused who first attacked the deceased and that he did not see the deceased striking the accused with an iron bar.

He denied that he was falsely implicating Accused 3 because the deceased was his friend. He said the deceased was the accused persons' friend as well. Further, he said all the accused persons were his friends. According to him, the whole episode lasted a short time and the reason for tying Accused 2 and 3 was to prevent them from escaping.

When asked by counsel for the 4th accused when the 4th accused joined in, his response was; “at that time, all of them surrounded him joining in the fight.”

He said the 4th accused hit the deceased in the face; Accused 2 assaulted the deceased at the back; Accused 3 assaulted the deceased on the neck; while Accused 1 was wielding a knife.

He noticed, later, that the deceased's face was swollen.

Under re-examination by the State counsel, the witness said he is illiterate as he never saw the inside of a classroom. Asked about the sequence of events, he said he first saw Accused 2, 3 and 4 assaulting the deceased and later saw Accused 1 holding a knife. He said although people searched the place for the knife, it was never recovered....,.

In casu, it cannot be said that the evidence of Simbarashe Madhubeko was thoroughly discredited....,.

In our view, Simbarashe Madhubeko was an honest witness who did not exaggerate his story. He told a simple and straight forward story and was never shaken under cross-examination. In other words, he remained firm, steadfast and consistent notwithstanding intense and searching questions from the four defence counsels. Put differently, his story remained intact without any embellishments.

For example, he told the court that he did not see where Accused 1 obtained the knife from. On the evidence on record, if this witness wanted to exaggerate he could have easily said Accused 1 took the knife from his pocket thereby contradicting the accused's version that the deceased dropped the knife.

Another example is that he conceded that he did not see the deceased attacking Accused 1 with an iron bar. An untruthful witness would have said the deceased never assaulted the first accused - especially where the witness was a friend of the deceased. His version of events, as regards the sequence of events before, during, and after the stabbing remained in one shape....,.

We therefore find Simbarashe Madhubeko a credible witness whose evidence we accept in toto.

Application for Discharge, Evidential Deficit, Evidence Indicative of a Permissible Verdict & Prima Facie Concept

The accused were charged with murder in that on the 24th of May 2013 and along Runde River, Shurugwi, in the Midlands Province, the accused persons, or one or more of them, unlawfully caused the death of Wellington Mashava by stabbing him with a knife twice on the chest, once on the left shoulder and once on the left back and by striking him with logs on the neck and face intending to kill him or realizing that there was a real risk or possibility that their conduct may cause death and continued to engage in that conduct despite the risk or possibility.

All accused persons pleaded not guilty to the charge.

The State Outline was produced as exhibit 1. In it, the State alleged that on the 24th of May 2013, the deceased and the accused persons were panning for gold. Later, in the evening of that day, they were at a make-shift bottle store where an argument ensued between Accused 1 and the deceased over allegations that the latter had earlier on stolen the former's cell phone.

The deceased struck Accused 1 with an iron bar on the neck prompting Accused 2, 3 and 4 to join in the fight on Accused 1's side. The three used fire brands to strike the deceased on the neck and face. Accused 1 then pulled a knife and stabbed the deceased with it on the chest and back. The deceased cried out for help and fell to the ground. He died shortly thereafter and a report was subsequently made to the police. The deceased's remains were ferried to United Bulawayo Hospitals for a post mortem examination.

Accused 1's Defence Outline was produced as exhibit 2. The accused denied the charge raising self defence and provocation as his defences.

He admitted stabbing the deceased twice on the chest in self-defence. In paragraph 6 of his Defence Outline he stated that after stabbing the deceased twice, as indicated above, he “left the scene whilst Accused 4 was assaulting the deceased with logs.” In paragraph 5 of the Defence Outline, he said the deceased hit him with an iron bar on the “neck” and continued assaulting him with “open hands.” He also said the issue of the stolen cell phone had caused a long time misunderstanding between the deceased and himself.

Exhibit 3 was Accused 2's Defence Outline wherein he denied the charge of murder. He indicated that he took no part in the stabbing of the deceased on the day in question.

According to him, when he got to the scene, he found Accused 1 and the deceased fighting while Simbarashe Madhubeko and others were watching. He then saw “Accused 1 lifting the deceased from the ground. The 4th accused then struck the deceased with a log at the back of the neck on the left side. When deceased was struck with the log, he dropped a knife that he was holding in his hand. The 1st Accused then picked up the knife and stabbed the deceased twice on the chest. The 4th accused again hit the deceased with the log at the back of the neck and under the right shoulder. The deceased then fell down. The 1st and 4th accused then ran away from the scene.” As he picked a bucket to fetch water he was apprehended by Simbarashe Madhubeko who tied him, together with the 3rd Accused, with shoe laces.

Finally, he denied assaulting the deceased at any material point arguing that he did not act in common purpose with the 1st and 4th accused persons in assaulting the deceased. He prayed for a verdict of not guilty.

Exhibit 4 was Accused 3's Defence Outline wherein he denied the State's allegations. In paragraph 8 of this Outline, he stated that whilst he was at a point where sadza was being sold, he “realised that a fight had broken up (sic) between Accused 1 and the deceased. He then went to the scene where he noticed that Accused 2 arrived running inquiring what was happening. He heard Accused 2 warning Accused 1 against using a knife in the fight.” In paragraph 11 he said he believed the deceased died as a result of stab wounds inflicted on his person by the first accused. Further, he said the deceased was assaulted by the 4th accused using a log and he denied “any participation as alleged or at all in bringing about the death of the deceased.” He also prayed for his acquittal on the murder charge.

Exhibit 5 was the 4th accused's Defence Outline. He too pleaded not guilty outlining that on the fateful evening he was drinking beer with fellow gold panners when a misunderstanding ensued between Accused 1 and the deceased culminating in the deceased striking Accused 1 with a “crow bar and he fell down. In paragraph 6 of this Outline he stated that the “2nd accused and the 3rd accused started hitting the now deceased with a log they had taken from the fire.” In paragraph 7 he said “he witnessed Accused 1 standing up and going on to stab the deceased on the chest. Deceased then fell down and Accused 2 and 3 were apprehended at the scene.” He denied ever causing the deceased's death.

Exhibit 6 was Accused 1's confirmed warned and cautioned statement in which he said the misunderstanding was over his cell phone that the deceased had stolen. The material parts read as follows:

“At about 2100 hours, the now deceased started inquiring whether I was serious about what I had initially asked him. He then hit me once with an iron bar on my neck. I then grabbed and pushed him to the ground and I started assaulting him several times with fists on his face. At that moment, Adventure Ruzive, Habson Chamatungwa and Jonasi Musengi joined in and the trio started assaulting him several times all over his body using logs which they had taken from the fire. Some people who were nearby, whom I do not know by names, came to stop the fight since Wellington Mushava was about to die. Adventure Ruzive and Habson Chamatugwa were apprehended but I and Jonasi Musengi managed to flea…,.”

Exhibit 7 was Accused 2's confirmed warned and cautioned statement. In that statement, Accused 2 stated that when he got to the scene, he saw Accused 1 grabbing the deceased by the jacket while holding an okapi knife. He asked Accused 1 why they were fighting and he said the deceased had struck him with an iron bar. He then warned Accused 1 against using a knife but Accused 1 ignored him. In an instant, Accused 1 then stabbed the deceased twice on the chest with the knife. Accused 4 then struck the deceased on the back of his head and he fell down. He said he then picked a bucket in order to fetch some water to pour on the deceased but was apprehended before he could achieve this purpose. He denied assaulting the deceased.

Exhibit 8 was Accused 3's confirmed warned and cautioned statement. He said he saw the deceased strike Accused 1 with an iron bar and the two immediately engaged in a fight. Accused 2 asked him why the two were fighting and he informed him the reason. According to him, he saw Accused 4 strike the deceased twice on the back of his head and on the neck using a log. He heard Accused 2 warning Accused 1 not to use a knife. Although he claimed not to have assaulted the deceased, he was apprehended by Simbarashe Madhubeko at the scene.

Exhibit 9 was Accused 4's confirmed warned and cautioned statement wherein he stated that Accused 1 was hit by the deceased and he fell down screaming. Accused 2 and 3 then arrived and Accused 2 stabbed the deceased once on the chest with a knife. Accused 3 hit the deceased several times with a fire brand. Accused 1 then stood up and stabbed the deceased once on his back....,.

The State then opened its case by calling Simbarashe Madhubeko (Simbarashe) who lives at Village 4, Stand 18 Zhangwe in Shurugwi. He is a gold panner who knows all the four (4) accused persons as neighbours and fellow gold panners. He knew the deceased as his neighbour and gold panner. He said all the accused persons, and the deceased, used to move together. He had known the deceased for a period of seven (7) years before his death.

The witness said on the 24th day of May 2013 he was standing about 10 metres away when he saw Accused 3 striking the deceased on the neck with a fire brand. He also saw Accused 2 striking the deceased with a fire brand. Later, he saw Accused 4 hitting the deceased on the face with a fire brand he had withdrawn from the fire. The deceased cried out, and, as he cried out, he said he had been stabbed with a knife. At that time, Accused 1 was holding a knife and he apprehended Accused 3 while Accused 2 was apprehended by one Chikozho. Accused 1 and 4 fled the scene.

A Mr Mangisi phoned Shurugwi Police. According to the witness, the spot was illuminated by fire and he clearly saw Accused 2, 3 and 4 assaulting the deceased.

When it was put to him that Accused 1 will say he took the knife from the deceased in order to defend himself, his answer was;

“Accused 1 was holding a knife, I do not know where he had obtained it from.”

Also, when it was suggested to him that the deceased was hit by Accused 4 and he dropped the knife his response was;

“They are better positioned but all I know is that they were assaulting him.”

He further said Accused 2 assaulted the deceased and he was restrained by one Brighton while he restrained Accused 3 after he had assaulted the deceased. As regards Accused 4, he said he saw him assaulting the deceased as well.

Under cross-examination by counsel for Accused 1, he conceded that he did not see Accused 1 stab the deceased. Also, he stated that he had not witnessed the earlier confrontation between the deceased and Accused 1.

Asked by counsel for Accused 2 why he had omitted to mention the role played by Accused 2 in his statement to the police, his response was;

“I do not know why its missing but I mentioned it.”

The statement was later admitted as exhibit 11.

Under cross-examination by counsel for Accused 3, the witness said the deceased and all the accused persons were “panning gold together and staying together in the bush”. He insisted that it was the 3rd accused who first attacked the deceased and that he did not see the deceased striking the accused with an iron bar.

He denied that he was falsely implicating Accused 3 because the deceased was his friend. He said the deceased was the accused persons' friend as well. Further, he said all the accused persons were his friends. According to him, the whole episode lasted a short time and the reason for tying Accused 2 and 3 was to prevent them from escaping.

When asked by counsel for the 4th accused when the 4th accused joined in, his response was; “at that time, all of them surrounded him joining in the fight.”

He said the 4th accused hit the deceased in the face; Accused 2 assaulted the deceased at the back; Accused 3 assaulted the deceased on the neck; while Accused 1 was wielding a knife.

He noticed, later, that the deceased's face was swollen.

Under re-examination by the State counsel, the witness said he is illiterate as he never saw the inside of a classroom. Asked about the sequence of events, he said he first saw Accused 2, 3 and 4 assaulting the deceased and later saw Accused 1 holding a knife. He said although people searched the place for the knife, it was never recovered.

The State's second witness was Edmore Marima the Investigating Officer in this case.

After the case was allocated to him, in June 2013, he uplifted Accused 2 and 3 from Hwahwa Prison and recorded warned and cautioned statements from them. These statements were subsequently confirmed by a magistrate at Shurugwi.

He then looked for Accused 1 and 4. The former was arrested in Dorset by Constable Dovatova while Accused 4 was arrested in August 2013 near Zvishavane (by Constable Chiteshe). He again recorded warned and cautioned statements from these two. The statements were later confirmed by a magistrate at Shurugwi.

Accused 4 told him that he was also known as Jonasi Musengi. He said he was informed by Sergeant Masara that no exhibits were recovered at the scene.

The State then closed its case and Accused 2 and 3 applied for discharge at the close of the State case in terms of section 198(3) of the Criminal Procedure and Evidence Act and relying on the case of S v Tsvangirai and Ors HH119-03.

The application was dismissed and I indicated that the reasons would be incorporated in this judgment. These are they:

(1) There is no merit in the submission by Accused 2's counsel that there is no evidence that Accused 2 played a role in the stabbing of the deceased.

According to Simbarashe Madhubeko, the second accused assaulted the deceased using a fire brand. This amounts to evidence upon which a reasonable court might convict.

In S v Tsvangirai and Ors HH119-03 it was held that the court must discharge the accused at the close of the case for the prosecution where:

(a) There is no evidence to prove an essential element.

(b) There is no evidence on which a reasonable court, acting carefully, might properly convict.

(c) The evidence adduced on behalf of the State is so manifestly unreliable that no reasonable court could safely act on it.

In casu, it cannot be said that the evidence of Simbarashe Madhubeko was thoroughly discredited.

As regards Accused 3, it was argued, quite forcefully, that the State had not established a prima facie case against him in that Simbarashe Madhubeko's evidence is to the effect that after Accused 3 struck the deceased with a log, he restrained him while the deceased was stabbed shortly thereafter.

It was contended that Accused 3 could not have associated with the consequences that occurred after he was apprehended.

While this is a clever argument, it however does not stand the scrutiny of legal principles.

The third accused did not dissociate from the common project. He was merely prevented from further assaulting the deceased. Also, a proper interpretation of Simbarashe Madhubeko's evidence shows that Accused 3 was eventually apprehended to prevent him from leaving after the deceased had died.

Can it be said, at the time Accused 3 was restrained, he no longer had the intent to injure the deceased? The answer is in the negative.

The deceased was still alive when Accused 3 joined in the assault. Surely, an accomplice in a murderous assault should not escape conviction for murder simply because, quite fortuitously, the injury which caused death was delivered at a time when he was prevented from continuing with the assault. This is so because he did not consciously decide to dissociate from the common enterprise.

What is critical is that Accused 3, by striking the deceased with a log, made common purpose with the others - one of whom eventually delivered the mortal wounds.

For these reasons, the application was dismissed.

Warned and Cautioned Statements, Indications, Evidence Aliunde & Presumption of Clarity of Events Nearer Date of Event

The accused were charged with murder in that on the 24th of May 2013 and along Runde River, Shurugwi, in the Midlands Province, the accused persons, or one or more of them, unlawfully caused the death of Wellington Mashava by stabbing him with a knife twice on the chest, once on the left shoulder and once on the left back and by striking him with logs on the neck and face intending to kill him or realizing that there was a real risk or possibility that their conduct may cause death and continued to engage in that conduct despite the risk or possibility.

All accused persons pleaded not guilty to the charge.

The State Outline was produced as exhibit 1. In it, the State alleged that on the 24th of May 2013, the deceased and the accused persons were panning for gold. Later, in the evening of that day, they were at a make-shift bottle store where an argument ensued between Accused 1 and the deceased over allegations that the latter had earlier on stolen the former's cell phone.

The deceased struck Accused 1 with an iron bar on the neck prompting Accused 2, 3 and 4 to join in the fight on Accused 1's side. The three used fire brands to strike the deceased on the neck and face. Accused 1 then pulled a knife and stabbed the deceased with it on the chest and back. The deceased cried out for help and fell to the ground. He died shortly thereafter and a report was subsequently made to the police. The deceased's remains were ferried to United Bulawayo Hospitals for a post mortem examination.

Accused 1's Defence Outline was produced as exhibit 2. The accused denied the charge raising self defence and provocation as his defences.

He admitted stabbing the deceased twice on the chest in self-defence. In paragraph 6 of his Defence Outline he stated that after stabbing the deceased twice, as indicated above, he “left the scene whilst Accused 4 was assaulting the deceased with logs.” In paragraph 5 of the Defence Outline, he said the deceased hit him with an iron bar on the “neck” and continued assaulting him with “open hands.” He also said the issue of the stolen cell phone had caused a long time misunderstanding between the deceased and himself.

Exhibit 3 was Accused 2's Defence Outline wherein he denied the charge of murder. He indicated that he took no part in the stabbing of the deceased on the day in question.

According to him, when he got to the scene, he found Accused 1 and the deceased fighting while Simbarashe Madhubeko and others were watching. He then saw “Accused 1 lifting the deceased from the ground. The 4th accused then struck the deceased with a log at the back of the neck on the left side. When deceased was struck with the log, he dropped a knife that he was holding in his hand. The 1st Accused then picked up the knife and stabbed the deceased twice on the chest. The 4th accused again hit the deceased with the log at the back of the neck and under the right shoulder. The deceased then fell down. The 1st and 4th accused then ran away from the scene.” As he picked a bucket to fetch water he was apprehended by Simbarashe Madhubeko who tied him, together with the 3rd Accused, with shoe laces.

Finally, he denied assaulting the deceased at any material point arguing that he did not act in common purpose with the 1st and 4th accused persons in assaulting the deceased. He prayed for a verdict of not guilty.

Exhibit 4 was Accused 3's Defence Outline wherein he denied the State's allegations. In paragraph 8 of this Outline, he stated that whilst he was at a point where sadza was being sold, he “realised that a fight had broken up (sic) between Accused 1 and the deceased. He then went to the scene where he noticed that Accused 2 arrived running inquiring what was happening. He heard Accused 2 warning Accused 1 against using a knife in the fight.” In paragraph 11 he said he believed the deceased died as a result of stab wounds inflicted on his person by the first accused. Further, he said the deceased was assaulted by the 4th accused using a log and he denied “any participation as alleged or at all in bringing about the death of the deceased.” He also prayed for his acquittal on the murder charge.

Exhibit 5 was the 4th accused's Defence Outline. He too pleaded not guilty outlining that on the fateful evening he was drinking beer with fellow gold panners when a misunderstanding ensued between Accused 1 and the deceased culminating in the deceased striking Accused 1 with a “crow bar and he fell down. In paragraph 6 of this Outline he stated that the “2nd accused and the 3rd accused started hitting the now deceased with a log they had taken from the fire.” In paragraph 7 he said “he witnessed Accused 1 standing up and going on to stab the deceased on the chest. Deceased then fell down and Accused 2 and 3 were apprehended at the scene.” He denied ever causing the deceased's death.

Exhibit 6 was Accused 1's confirmed warned and cautioned statement in which he said the misunderstanding was over his cell phone that the deceased had stolen. The material parts read as follows:

“At about 2100 hours, the now deceased started inquiring whether I was serious about what I had initially asked him. He then hit me once with an iron bar on my neck. I then grabbed and pushed him to the ground and I started assaulting him several times with fists on his face. At that moment, Adventure Ruzive, Habson Chamatungwa and Jonasi Musengi joined in and the trio started assaulting him several times all over his body using logs which they had taken from the fire. Some people who were nearby, whom I do not know by names, came to stop the fight since Wellington Mushava was about to die. Adventure Ruzive and Habson Chamatugwa were apprehended but I and Jonasi Musengi managed to flea…,.”

Exhibit 7 was Accused 2's confirmed warned and cautioned statement. In that statement, Accused 2 stated that when he got to the scene, he saw Accused 1 grabbing the deceased by the jacket while holding an okapi knife. He asked Accused 1 why they were fighting and he said the deceased had struck him with an iron bar. He then warned Accused 1 against using a knife but Accused 1 ignored him. In an instant, Accused 1 then stabbed the deceased twice on the chest with the knife. Accused 4 then struck the deceased on the back of his head and he fell down. He said he then picked a bucket in order to fetch some water to pour on the deceased but was apprehended before he could achieve this purpose. He denied assaulting the deceased.

Exhibit 8 was Accused 3's confirmed warned and cautioned statement. He said he saw the deceased strike Accused 1 with an iron bar and the two immediately engaged in a fight. Accused 2 asked him why the two were fighting and he informed him the reason. According to him, he saw Accused 4 strike the deceased twice on the back of his head and on the neck using a log. He heard Accused 2 warning Accused 1 not to use a knife. Although he claimed not to have assaulted the deceased, he was apprehended by Simbarashe Madhubeko at the scene.

Exhibit 9 was Accused 4's confirmed warned and cautioned statement wherein he stated that Accused 1 was hit by the deceased and he fell down screaming. Accused 2 and 3 then arrived and Accused 2 stabbed the deceased once on the chest with a knife. Accused 3 hit the deceased several times with a fire brand. Accused 1 then stood up and stabbed the deceased once on his back....,.

The State then opened its case by calling Simbarashe Madhubeko (Simbarashe) who lives at Village 4, Stand 18 Zhangwe in Shurugwi. He is a gold panner who knows all the four (4) accused persons as neighbours and fellow gold panners. He knew the deceased as his neighbour and gold panner. He said all the accused persons, and the deceased, used to move together. He had known the deceased for a period of seven (7) years before his death.

The witness said on the 24th day of May 2013 he was standing about 10 metres away when he saw Accused 3 striking the deceased on the neck with a fire brand. He also saw Accused 2 striking the deceased with a fire brand. Later, he saw Accused 4 hitting the deceased on the face with a fire brand he had withdrawn from the fire. The deceased cried out, and, as he cried out, he said he had been stabbed with a knife. At that time, Accused 1 was holding a knife and he apprehended Accused 3 while Accused 2 was apprehended by one Chikozho. Accused 1 and 4 fled the scene.

A Mr Mangisi phoned Shurugwi Police. According to the witness, the spot was illuminated by fire and he clearly saw Accused 2, 3 and 4 assaulting the deceased.

When it was put to him that Accused 1 will say he took the knife from the deceased in order to defend himself, his answer was;

“Accused 1 was holding a knife, I do not know where he had obtained it from.”

Also, when it was suggested to him that the deceased was hit by Accused 4 and he dropped the knife his response was;

“They are better positioned but all I know is that they were assaulting him.”

He further said Accused 2 assaulted the deceased and he was restrained by one Brighton while he restrained Accused 3 after he had assaulted the deceased. As regards Accused 4, he said he saw him assaulting the deceased as well.

Under cross-examination by counsel for Accused 1, he conceded that he did not see Accused 1 stab the deceased. Also, he stated that he had not witnessed the earlier confrontation between the deceased and Accused 1.

Asked by counsel for Accused 2 why he had omitted to mention the role played by Accused 2 in his statement to the police, his response was;

“I do not know why its missing but I mentioned it.”

The statement was later admitted as exhibit 11....,.

In casu, it cannot be said that the evidence of Simbarashe Madhubeko was thoroughly discredited....,.

Accused 2...,. gave evidence in his defence.

He said on the evening in question, he was informed by Accused 3 that his young brother (Accused 1) was involved in a fight with the deceased. At a distance he saw Accused 1 grabbing the deceased by the neck and the two fell down. He then saw Accused 4 striking the deceased with a fire brand. Shortly thereafter, he saw Accused 1 holding a knife while he was on the ground and he immediately warned Accused 1 against using a knife. Accused 1 ignored him and proceeded to stab the deceased twice on the chest. He later said Accused 1 was on top of the deceased and both rose and Accused 4 then struck the deceased twice, once on the back and neck. After the deceased had fallen down Accused 1 and 4 fled while he and Accused 3 were apprehended at the scene.

Under cross-examination he changed his version and said the deceased was on top of the first accused. He denied his version of events in the confirmed warned and cautioned statement.

According to him he had been tortured at the scene to the extent that he was confused when he gave his statement. At confirmation proceedings he said he informed the magistrate who ordered that the police were to investigate the matter....,.

It is also highly improbable that the magistrate would have confirmed the warned and cautioned statement if the accused had reservations.

Accused 1's story is illogical in that when disowning his warned and cautioned statement he said the police assaulted him in order to compel him to admit the offence; but, when it was pointed out to him that he actually denied the offence, he changed and alleged that the police wanted him to tell them the role played by his co-accused persons.

We find this reasoning illogical and weird in that it is strange and most improbable that the police would force him to incriminate his co-perpetrators while at the same time allowing him to exculpate himself.

To the contrary, the tenor of Accused1's warned and cautioned statement is that of a person who freely and voluntarily denied the offence and incriminated his accomplices.

Irrelevant Evidence, Speculative Evidence, Character Evidence, Implausible or Improbable Evidence and Rule of Relevance

Accused 1's story is illogical in that when disowning his warned and cautioned statement he said the police assaulted him in order to compel him to admit the offence; but, when it was pointed out to him that he actually denied the offence, he changed and alleged that the police wanted him to tell them the role played by his co-accused persons.

We find this reasoning illogical and weird in that it is strange and most improbable that the police would force him to incriminate his co-perpetrators while at the same time allowing him to exculpate himself.

To the contrary, the tenor of Accused1's warned and cautioned statement is that of a person who freely and voluntarily denied the offence and incriminated his accomplices.

Inadmissible Evidence re: Approach, Illegally or Unlawfully Obtained or Tainted Evidence and the Exclusionary Rule

The accused were charged with murder in that on the 24th of May 2013 and along Runde River, Shurugwi, in the Midlands Province, the accused persons, or one or more of them, unlawfully caused the death of Wellington Mashava by stabbing him with a knife twice on the chest, once on the left shoulder and once on the left back and by striking him with logs on the neck and face intending to kill him or realizing that there was a real risk or possibility that their conduct may cause death and continued to engage in that conduct despite the risk or possibility.

All accused persons pleaded not guilty to the charge.

The State Outline was produced as exhibit 1. In it, the State alleged that on the 24th of May 2013, the deceased and the accused persons were panning for gold. Later, in the evening of that day, they were at a make-shift bottle store where an argument ensued between Accused 1 and the deceased over allegations that the latter had earlier on stolen the former's cell phone.

The deceased struck Accused 1 with an iron bar on the neck prompting Accused 2, 3 and 4 to join in the fight on Accused 1's side. The three used fire brands to strike the deceased on the neck and face. Accused 1 then pulled a knife and stabbed the deceased with it on the chest and back. The deceased cried out for help and fell to the ground. He died shortly thereafter and a report was subsequently made to the police. The deceased's remains were ferried to United Bulawayo Hospitals for a post mortem examination.

Accused 1's Defence Outline was produced as exhibit 2. The accused denied the charge raising self defence and provocation as his defences.

He admitted stabbing the deceased twice on the chest in self-defence. In paragraph 6 of his Defence Outline he stated that after stabbing the deceased twice, as indicated above, he “left the scene whilst Accused 4 was assaulting the deceased with logs.” In paragraph 5 of the Defence Outline, he said the deceased hit him with an iron bar on the “neck” and continued assaulting him with “open hands.” He also said the issue of the stolen cell phone had caused a long time misunderstanding between the deceased and himself.

Exhibit 3 was Accused 2's Defence Outline wherein he denied the charge of murder. He indicated that he took no part in the stabbing of the deceased on the day in question.

According to him, when he got to the scene, he found Accused 1 and the deceased fighting while Simbarashe Madhubeko and others were watching. He then saw “Accused 1 lifting the deceased from the ground. The 4th accused then struck the deceased with a log at the back of the neck on the left side. When deceased was struck with the log, he dropped a knife that he was holding in his hand. The 1st Accused then picked up the knife and stabbed the deceased twice on the chest. The 4th accused again hit the deceased with the log at the back of the neck and under the right shoulder. The deceased then fell down. The 1st and 4th accused then ran away from the scene.” As he picked a bucket to fetch water he was apprehended by Simbarashe Madhubeko who tied him, together with the 3rd Accused, with shoe laces.

Finally, he denied assaulting the deceased at any material point arguing that he did not act in common purpose with the 1st and 4th accused persons in assaulting the deceased. He prayed for a verdict of not guilty.

Exhibit 4 was Accused 3's Defence Outline wherein he denied the State's allegations. In paragraph 8 of this Outline, he stated that whilst he was at a point where sadza was being sold, he “realised that a fight had broken up (sic) between Accused 1 and the deceased. He then went to the scene where he noticed that Accused 2 arrived running inquiring what was happening. He heard Accused 2 warning Accused 1 against using a knife in the fight.” In paragraph 11 he said he believed the deceased died as a result of stab wounds inflicted on his person by the first accused. Further, he said the deceased was assaulted by the 4th accused using a log and he denied “any participation as alleged or at all in bringing about the death of the deceased.” He also prayed for his acquittal on the murder charge.

Exhibit 5 was the 4th accused's Defence Outline. He too pleaded not guilty outlining that on the fateful evening he was drinking beer with fellow gold panners when a misunderstanding ensued between Accused 1 and the deceased culminating in the deceased striking Accused 1 with a “crow bar and he fell down. In paragraph 6 of this Outline he stated that the “2nd accused and the 3rd accused started hitting the now deceased with a log they had taken from the fire.” In paragraph 7 he said “he witnessed Accused 1 standing up and going on to stab the deceased on the chest. Deceased then fell down and Accused 2 and 3 were apprehended at the scene.” He denied ever causing the deceased's death.

Exhibit 6 was Accused 1's confirmed warned and cautioned statement in which he said the misunderstanding was over his cell phone that the deceased had stolen. The material parts read as follows:

“At about 2100 hours, the now deceased started inquiring whether I was serious about what I had initially asked him. He then hit me once with an iron bar on my neck. I then grabbed and pushed him to the ground and I started assaulting him several times with fists on his face. At that moment, Adventure Ruzive, Habson Chamatungwa and Jonasi Musengi joined in and the trio started assaulting him several times all over his body using logs which they had taken from the fire. Some people who were nearby, whom I do not know by names, came to stop the fight since Wellington Mushava was about to die. Adventure Ruzive and Habson Chamatugwa were apprehended but I and Jonasi Musengi managed to flea…,.”

Exhibit 7 was Accused 2's confirmed warned and cautioned statement. In that statement, Accused 2 stated that when he got to the scene, he saw Accused 1 grabbing the deceased by the jacket while holding an okapi knife. He asked Accused 1 why they were fighting and he said the deceased had struck him with an iron bar. He then warned Accused 1 against using a knife but Accused 1 ignored him. In an instant, Accused 1 then stabbed the deceased twice on the chest with the knife. Accused 4 then struck the deceased on the back of his head and he fell down. He said he then picked a bucket in order to fetch some water to pour on the deceased but was apprehended before he could achieve this purpose. He denied assaulting the deceased.

Exhibit 8 was Accused 3's confirmed warned and cautioned statement. He said he saw the deceased strike Accused 1 with an iron bar and the two immediately engaged in a fight. Accused 2 asked him why the two were fighting and he informed him the reason. According to him, he saw Accused 4 strike the deceased twice on the back of his head and on the neck using a log. He heard Accused 2 warning Accused 1 not to use a knife. Although he claimed not to have assaulted the deceased, he was apprehended by Simbarashe Madhubeko at the scene.

Exhibit 9 was Accused 4's confirmed warned and cautioned statement wherein he stated that Accused 1 was hit by the deceased and he fell down screaming. Accused 2 and 3 then arrived and Accused 2 stabbed the deceased once on the chest with a knife. Accused 3 hit the deceased several times with a fire brand. Accused 1 then stood up and stabbed the deceased once on his back....,.

The State then opened its case by calling Simbarashe Madhubeko (Simbarashe) who lives at Village 4, Stand 18 Zhangwe in Shurugwi. He is a gold panner who knows all the four (4) accused persons as neighbours and fellow gold panners. He knew the deceased as his neighbour and gold panner. He said all the accused persons, and the deceased, used to move together. He had known the deceased for a period of seven (7) years before his death.

The witness said on the 24th day of May 2013 he was standing about 10 metres away when he saw Accused 3 striking the deceased on the neck with a fire brand. He also saw Accused 2 striking the deceased with a fire brand. Later, he saw Accused 4 hitting the deceased on the face with a fire brand he had withdrawn from the fire. The deceased cried out, and, as he cried out, he said he had been stabbed with a knife. At that time, Accused 1 was holding a knife and he apprehended Accused 3 while Accused 2 was apprehended by one Chikozho. Accused 1 and 4 fled the scene.

A Mr Mangisi phoned Shurugwi Police. According to the witness, the spot was illuminated by fire and he clearly saw Accused 2, 3 and 4 assaulting the deceased.

When it was put to him that Accused 1 will say he took the knife from the deceased in order to defend himself, his answer was;

“Accused 1 was holding a knife, I do not know where he had obtained it from.”

Also, when it was suggested to him that the deceased was hit by Accused 4 and he dropped the knife his response was;

“They are better positioned but all I know is that they were assaulting him.”

He further said Accused 2 assaulted the deceased and he was restrained by one Brighton while he restrained Accused 3 after he had assaulted the deceased. As regards Accused 4, he said he saw him assaulting the deceased as well.

Under cross-examination by counsel for Accused 1, he conceded that he did not see Accused 1 stab the deceased. Also, he stated that he had not witnessed the earlier confrontation between the deceased and Accused 1.

Asked by counsel for Accused 2 why he had omitted to mention the role played by Accused 2 in his statement to the police, his response was;

“I do not know why its missing but I mentioned it.”

The statement was later admitted as exhibit 11....,.

In casu, it cannot be said that the evidence of Simbarashe Madhubeko was thoroughly discredited....,.

Accused 2...,. gave evidence in his defence.

He said on the evening in question, he was informed by Accused 3 that his young brother (Accused 1) was involved in a fight with the deceased. At a distance he saw Accused 1 grabbing the deceased by the neck and the two fell down. He then saw Accused 4 striking the deceased with a fire brand. Shortly thereafter, he saw Accused 1 holding a knife while he was on the ground and he immediately warned Accused 1 against using a knife. Accused 1 ignored him and proceeded to stab the deceased twice on the chest. He later said Accused 1 was on top of the deceased and both rose and Accused 4 then struck the deceased twice, once on the back and neck. After the deceased had fallen down Accused 1 and 4 fled while he and Accused 3 were apprehended at the scene.

Under cross-examination he changed his version and said the deceased was on top of the first accused. He denied his version of events in the confirmed warned and cautioned statement.

According to him he had been tortured at the scene to the extent that he was confused when he gave his statement. At confirmation proceedings he said he informed the magistrate who ordered that the police were to investigate the matter....,.

Accused 1's story is illogical in that when disowning his warned and cautioned statement he said the police assaulted him in order to compel him to admit the offence; but, when it was pointed out to him that he actually denied the offence, he changed and alleged that the police wanted him to tell them the role played by his co-accused persons.

We find this reasoning illogical and weird in that it is strange and most improbable that the police would force him to incriminate his co-perpetrators while at the same time allowing him to exculpate himself.

To the contrary, the tenor of Accused1's warned and cautioned statement is that of a person who freely and voluntarily denied the offence and incriminated his accomplices.

Defence of Person, Self Defence, Private Defence & Defence of Necessity re: Retaliation or The Eye For An Eye Doctrine

The accused were charged with murder in that on the 24th of May 2013 and along Runde River, Shurugwi, in the Midlands Province, the accused persons, or one or more of them, unlawfully caused the death of Wellington Mashava by stabbing him with a knife twice on the chest, once on the left shoulder and once on the left back and by striking him with logs on the neck and face intending to kill him or realizing that there was a real risk or possibility that their conduct may cause death and continued to engage in that conduct despite the risk or possibility.

All accused persons pleaded not guilty to the charge.

The State Outline was produced as exhibit 1. In it, the State alleged that on the 24th of May 2013, the deceased and the accused persons were panning for gold. Later, in the evening of that day, they were at a make-shift bottle store where an argument ensued between Accused 1 and the deceased over allegations that the latter had earlier on stolen the former's cell phone.

The deceased struck Accused 1 with an iron bar on the neck prompting Accused 2, 3 and 4 to join in the fight on Accused 1's side. The three used fire brands to strike the deceased on the neck and face. Accused 1 then pulled a knife and stabbed the deceased with it on the chest and back. The deceased cried out for help and fell to the ground. He died shortly thereafter and a report was subsequently made to the police. The deceased's remains were ferried to United Bulawayo Hospitals for a post mortem examination.

Accused 1's Defence Outline was produced as exhibit 2. The accused denied the charge raising self defence and provocation as his defences.

He admitted stabbing the deceased twice on the chest in self-defence. In paragraph 6 of his Defence Outline he stated that after stabbing the deceased twice, as indicated above, he “left the scene whilst Accused 4 was assaulting the deceased with logs.” In paragraph 5 of the Defence Outline, he said the deceased hit him with an iron bar on the “neck” and continued assaulting him with “open hands.” He also said the issue of the stolen cell phone had caused a long time misunderstanding between the deceased and himself.

Exhibit 3 was Accused 2's Defence Outline wherein he denied the charge of murder. He indicated that he took no part in the stabbing of the deceased on the day in question.

According to him, when he got to the scene, he found Accused 1 and the deceased fighting while Simbarashe Madhubeko and others were watching. He then saw “Accused 1 lifting the deceased from the ground. The 4th accused then struck the deceased with a log at the back of the neck on the left side. When deceased was struck with the log, he dropped a knife that he was holding in his hand. The 1st Accused then picked up the knife and stabbed the deceased twice on the chest. The 4th accused again hit the deceased with the log at the back of the neck and under the right shoulder. The deceased then fell down. The 1st and 4th accused then ran away from the scene.” As he picked a bucket to fetch water he was apprehended by Simbarashe Madhubeko who tied him, together with the 3rd Accused, with shoe laces.

Finally, he denied assaulting the deceased at any material point arguing that he did not act in common purpose with the 1st and 4th accused persons in assaulting the deceased. He prayed for a verdict of not guilty.

Exhibit 4 was Accused 3's Defence Outline wherein he denied the State's allegations. In paragraph 8 of this Outline, he stated that whilst he was at a point where sadza was being sold, he “realised that a fight had broken up (sic) between Accused 1 and the deceased. He then went to the scene where he noticed that Accused 2 arrived running inquiring what was happening. He heard Accused 2 warning Accused 1 against using a knife in the fight.” In paragraph 11 he said he believed the deceased died as a result of stab wounds inflicted on his person by the first accused. Further, he said the deceased was assaulted by the 4th accused using a log and he denied “any participation as alleged or at all in bringing about the death of the deceased.” He also prayed for his acquittal on the murder charge.

Exhibit 5 was the 4th accused's Defence Outline. He too pleaded not guilty outlining that on the fateful evening he was drinking beer with fellow gold panners when a misunderstanding ensued between Accused 1 and the deceased culminating in the deceased striking Accused 1 with a “crow bar and he fell down. In paragraph 6 of this Outline he stated that the “2nd accused and the 3rd accused started hitting the now deceased with a log they had taken from the fire.” In paragraph 7 he said “he witnessed Accused 1 standing up and going on to stab the deceased on the chest. Deceased then fell down and Accused 2 and 3 were apprehended at the scene.” He denied ever causing the deceased's death.

Exhibit 6 was Accused 1's confirmed warned and cautioned statement in which he said the misunderstanding was over his cell phone that the deceased had stolen. The material parts read as follows:

“At about 2100 hours, the now deceased started inquiring whether I was serious about what I had initially asked him. He then hit me once with an iron bar on my neck. I then grabbed and pushed him to the ground and I started assaulting him several times with fists on his face. At that moment, Adventure Ruzive, Habson Chamatungwa and Jonasi Musengi joined in and the trio started assaulting him several times all over his body using logs which they had taken from the fire. Some people who were nearby, whom I do not know by names, came to stop the fight since Wellington Mushava was about to die. Adventure Ruzive and Habson Chamatugwa were apprehended but I and Jonasi Musengi managed to flea…,.”

Exhibit 7 was Accused 2's confirmed warned and cautioned statement. In that statement, Accused 2 stated that when he got to the scene, he saw Accused 1 grabbing the deceased by the jacket while holding an okapi knife. He asked Accused 1 why they were fighting and he said the deceased had struck him with an iron bar. He then warned Accused 1 against using a knife but Accused 1 ignored him. In an instant, Accused 1 then stabbed the deceased twice on the chest with the knife. Accused 4 then struck the deceased on the back of his head and he fell down. He said he then picked a bucket in order to fetch some water to pour on the deceased but was apprehended before he could achieve this purpose. He denied assaulting the deceased.

Exhibit 8 was Accused 3's confirmed warned and cautioned statement. He said he saw the deceased strike Accused 1 with an iron bar and the two immediately engaged in a fight. Accused 2 asked him why the two were fighting and he informed him the reason. According to him, he saw Accused 4 strike the deceased twice on the back of his head and on the neck using a log. He heard Accused 2 warning Accused 1 not to use a knife. Although he claimed not to have assaulted the deceased, he was apprehended by Simbarashe Madhubeko at the scene.

Exhibit 9 was Accused 4's confirmed warned and cautioned statement wherein he stated that Accused 1 was hit by the deceased and he fell down screaming. Accused 2 and 3 then arrived and Accused 2 stabbed the deceased once on the chest with a knife. Accused 3 hit the deceased several times with a fire brand. Accused 1 then stood up and stabbed the deceased once on his back....,.

The State then opened its case by calling Simbarashe Madhubeko (Simbarashe) who lives at Village 4, Stand 18 Zhangwe in Shurugwi. He is a gold panner who knows all the four (4) accused persons as neighbours and fellow gold panners. He knew the deceased as his neighbour and gold panner. He said all the accused persons, and the deceased, used to move together. He had known the deceased for a period of seven (7) years before his death.

The witness said on the 24th day of May 2013 he was standing about 10 metres away when he saw Accused 3 striking the deceased on the neck with a fire brand. He also saw Accused 2 striking the deceased with a fire brand. Later, he saw Accused 4 hitting the deceased on the face with a fire brand he had withdrawn from the fire. The deceased cried out, and, as he cried out, he said he had been stabbed with a knife. At that time, Accused 1 was holding a knife and he apprehended Accused 3 while Accused 2 was apprehended by one Chikozho. Accused 1 and 4 fled the scene.

A Mr Mangisi phoned Shurugwi Police. According to the witness, the spot was illuminated by fire and he clearly saw Accused 2, 3 and 4 assaulting the deceased.

When it was put to him that Accused 1 will say he took the knife from the deceased in order to defend himself, his answer was;

“Accused 1 was holding a knife, I do not know where he had obtained it from.”

Also, when it was suggested to him that the deceased was hit by Accused 4 and he dropped the knife his response was;

“They are better positioned but all I know is that they were assaulting him.”

He further said Accused 2 assaulted the deceased and he was restrained by one Brighton while he restrained Accused 3 after he had assaulted the deceased. As regards Accused 4, he said he saw him assaulting the deceased as well.

Under cross-examination by counsel for Accused 1, he conceded that he did not see Accused 1 stab the deceased. Also, he stated that he had not witnessed the earlier confrontation between the deceased and Accused 1.

Asked by counsel for Accused 2 why he had omitted to mention the role played by Accused 2 in his statement to the police, his response was;

“I do not know why its missing but I mentioned it.”

The statement was later admitted as exhibit 11.

Under cross-examination by counsel for Accused 3, the witness said the deceased and all the accused persons were “panning gold together and staying together in the bush”. He insisted that it was the 3rd accused who first attacked the deceased and that he did not see the deceased striking the accused with an iron bar.

He denied that he was falsely implicating Accused 3 because the deceased was his friend. He said the deceased was the accused persons' friend as well. Further, he said all the accused persons were his friends. According to him, the whole episode lasted a short time and the reason for tying Accused 2 and 3 was to prevent them from escaping.

When asked by counsel for the 4th accused when the 4th accused joined in, his response was; “at that time, all of them surrounded him joining in the fight.”

He said the 4th accused hit the deceased in the face; Accused 2 assaulted the deceased at the back; Accused 3 assaulted the deceased on the neck; while Accused 1 was wielding a knife.

He noticed, later, that the deceased's face was swollen.

Under re-examination by the State counsel, the witness said he is illiterate as he never saw the inside of a classroom. Asked about the sequence of events, he said he first saw Accused 2, 3 and 4 assaulting the deceased and later saw Accused 1 holding a knife. He said although people searched the place for the knife, it was never recovered.

The State's second witness was Edmore Marima the Investigating Officer in this case.

After the case was allocated to him, in June 2013, he uplifted Accused 2 and 3 from Hwahwa Prison and recorded warned and cautioned statements from them. These statements were subsequently confirmed by a magistrate at Shurugwi.

He then looked for Accused 1 and 4. The former was arrested in Dorset by Constable Dovatova while Accused 4 was arrested in August 2013 near Zvishavane (by Constable Chiteshe). He again recorded warned and cautioned statements from these two. The statements were later confirmed by a magistrate at Shurugwi.

Accused 4 told him that he was also known as Jonasi Musengi. He said he was informed by Sergeant Masara that no exhibits were recovered at the scene.

The State then closed its case…,.

Accused 1 then opened his defence by giving viva voce evidence.

He stated that on the day in question he was drinking beer with the deceased, Simbarashe Madhubeko and others when Accused 3 called him to another fire place. As he stood up, he was hit with an iron bar on the neck by the deceased. He fell down and the deceased again struck him on the back uttering the words; “Today I am going to kill you.”

The deceased then sat on top of him while holding him by the neck. He saw the deceased inserting his hand into his pocket and produced a knife. Accused 4 then hit the deceased on the hand holding the knife. The knife fell down next to his right hand and he picked it up. He then stabbed the deceased twice on the chest forcing the deceased to rise and he got up when Simbarashe Madhubeko was saying he should be beaten. He then fled from the scene.

Asked what part of the deceased's body he aimed the knife; he said he did not aim since the deceased was pinning him down holding his neck, he just stabbed him. After stabbing the deceased, he said he threw the knife down before fleeing from the scene. He was then arrested at Gwamanyanga in Fort Rixon.

The accused closed his case as he did not have any defence witnesses to call....,.

In our view, Simbarashe Madhubeko was an honest witness who did not exaggerate his story. He told a simple and straight forward story and was never shaken under cross-examination. In other words, he remained firm, steadfast and consistent notwithstanding intense and searching questions from the four defence counsels. Put differently, his story remained intact without any embellishments.

For example, he told the court that he did not see where Accused 1 obtained the knife from. On the evidence on record, if this witness wanted to exaggerate he could have easily said Accused 1 took the knife from his pocket thereby contradicting the accused's version that the deceased dropped the knife.

Another example is that he conceded that he did not see the deceased attacking Accused 1 with an iron bar. An untruthful witness would have said the deceased never assaulted the first accused - especially where the witness was a friend of the deceased. His version of events, as regards the sequence of events before, during, and after the stabbing remained in one shape.

That version does not establish self defence in respect of Accused 1 in that there was no time when the deceased sat on top of Accused 1. According to him, the deceased did not get that chance because Accused 2, 3 and 4 swiftly intervened by assaulting the deceased as a group until Accused 1 stabbed the deceased.

We therefore find Simbarashe Madhubeko a credible witness whose evidence we accept in toto.

On the other hand, we find Accused 1 to be an incredible witness for the following reasons:

(1) Accused 1's confirmed warned and cautioned statement is contradictory to his Defence Outline in many material respects.

As examples, he admitted, in the Defence Outline, that he stabbed the deceased twice on the chest with a knife; yet, in the warned and cautioned statement he never mentioned the knife, never mind the more important issue of stabbing the deceased. He, instead, piled the blame on his co-accused persons for the death of the deceased.

Also, in the warned and cautioned statement, he never mentioned the fact that he acted in self-defence after the deceased produced a knife or that he was intoxicated at the relevant time.

In the warned and cautioned statement he said he was assaulted once on the neck by the deceased yet in Defence Outline he said the deceased continued to assault him using open hands.

There is yet another version he gave in his evidence in chief, namely, that the deceased hit him with an iron bar on the neck and when he fell down the deceased continued to strike him on the back with the iron bar.

As if this is not enough, Accused 1 gave another totally different version under cross-examination when he said he was assaulted three times by the deceased i.e. once on the head and twice on the back.

(2) Accused 1's story is illogical in that when disowning his warned and cautioned statement he said the police assaulted him in order to compel him to admit the offence; but, when it was pointed out to him that he actually denied the offence, he changed and alleged that the police wanted him to tell them the role played by his co-accused persons.

We find this reasoning illogical and weird in that it is strange and most improbable that the police would force him to incriminate his co-perpetrators while at the same time allowing him to exculpate himself.

To the contrary, the tenor of Accused1's warned and cautioned statement is that of a person who freely and voluntarily denied the offence and incriminated his accomplices.

(3) Accused 1's story is incredible in that while he told the court that he dropped the knife at the scene it was never recovered despite an extensive search. Also, when asked why he did not report the crime to the police he gave a rather bizarre response, namely, that “his neck was swollen.”

(4) Accused 1 gave a contradictory and conflicting explanation of why he felt his life was in danger. When it was put to him that at the time he stabbed the deceased he (deceased) was no longer posing a threat to his life, his response was, he was, since the knife had not yet fallen down. Now, it is his case that he used the knife that had been dropped by the deceased.

(5) Accused 1 gave an improbable story by denying ever owning a knife in his entire life when it would be expected to own one due to the environment and circumstances he lived under i.e. in the bush.

(6) Accused 1 gave a false reason for fleeing from the scene. He said he was afraid of being assaulted. However, instead of reporting the murder to the nearest police station, Accused 1 fled to a place in Matabeleland South called Gwamanyanga in Fort Rixon.

For these reasons we make the following findings in respect of the first accused;

(1) He was not acting in self-defence when he stabbed the deceased with the knife. Rather, the accused was simply retaliating. The evidence in its totality does not prove the requirements of self defence.

Defence of Diminished Mental Responsibility or Diminished Capacity re: Provocation iro Approach and Self-Control

The accused were charged with murder in that on the 24th of May 2013 and along Runde River, Shurugwi, in the Midlands Province, the accused persons, or one or more of them, unlawfully caused the death of Wellington Mashava by stabbing him with a knife twice on the chest, once on the left shoulder and once on the left back and by striking him with logs on the neck and face intending to kill him or realizing that there was a real risk or possibility that their conduct may cause death and continued to engage in that conduct despite the risk or possibility.

All accused persons pleaded not guilty to the charge.

The State Outline was produced as exhibit 1. In it, the State alleged that on the 24th of May 2013, the deceased and the accused persons were panning for gold. Later, in the evening of that day, they were at a make-shift bottle store where an argument ensued between Accused 1 and the deceased over allegations that the latter had earlier on stolen the former's cell phone.

The deceased struck Accused 1 with an iron bar on the neck prompting Accused 2, 3 and 4 to join in the fight on Accused 1's side. The three used fire brands to strike the deceased on the neck and face. Accused 1 then pulled a knife and stabbed the deceased with it on the chest and back. The deceased cried out for help and fell to the ground. He died shortly thereafter and a report was subsequently made to the police. The deceased's remains were ferried to United Bulawayo Hospitals for a post mortem examination.

Accused 1's Defence Outline was produced as exhibit 2. The accused denied the charge raising self defence and provocation as his defences.

He admitted stabbing the deceased twice on the chest in self-defence. In paragraph 6 of his Defence Outline he stated that after stabbing the deceased twice, as indicated above, he “left the scene whilst Accused 4 was assaulting the deceased with logs.” In paragraph 5 of the Defence Outline, he said the deceased hit him with an iron bar on the “neck” and continued assaulting him with “open hands.” He also said the issue of the stolen cell phone had caused a long time misunderstanding between the deceased and himself.

Exhibit 3 was Accused 2's Defence Outline wherein he denied the charge of murder. He indicated that he took no part in the stabbing of the deceased on the day in question.

According to him, when he got to the scene, he found Accused 1 and the deceased fighting while Simbarashe Madhubeko and others were watching. He then saw “Accused 1 lifting the deceased from the ground. The 4th accused then struck the deceased with a log at the back of the neck on the left side. When deceased was struck with the log, he dropped a knife that he was holding in his hand. The 1st Accused then picked up the knife and stabbed the deceased twice on the chest. The 4th accused again hit the deceased with the log at the back of the neck and under the right shoulder. The deceased then fell down. The 1st and 4th accused then ran away from the scene.” As he picked a bucket to fetch water he was apprehended by Simbarashe Madhubeko who tied him, together with the 3rd Accused, with shoe laces.

Finally, he denied assaulting the deceased at any material point arguing that he did not act in common purpose with the 1st and 4th accused persons in assaulting the deceased. He prayed for a verdict of not guilty.

Exhibit 4 was Accused 3's Defence Outline wherein he denied the State's allegations. In paragraph 8 of this Outline, he stated that whilst he was at a point where sadza was being sold, he “realised that a fight had broken up (sic) between Accused 1 and the deceased. He then went to the scene where he noticed that Accused 2 arrived running inquiring what was happening. He heard Accused 2 warning Accused 1 against using a knife in the fight.” In paragraph 11 he said he believed the deceased died as a result of stab wounds inflicted on his person by the first accused. Further, he said the deceased was assaulted by the 4th accused using a log and he denied “any participation as alleged or at all in bringing about the death of the deceased.” He also prayed for his acquittal on the murder charge.

Exhibit 5 was the 4th accused's Defence Outline. He too pleaded not guilty outlining that on the fateful evening he was drinking beer with fellow gold panners when a misunderstanding ensued between Accused 1 and the deceased culminating in the deceased striking Accused 1 with a “crow bar and he fell down. In paragraph 6 of this Outline he stated that the “2nd accused and the 3rd accused started hitting the now deceased with a log they had taken from the fire.” In paragraph 7 he said “he witnessed Accused 1 standing up and going on to stab the deceased on the chest. Deceased then fell down and Accused 2 and 3 were apprehended at the scene.” He denied ever causing the deceased's death.

Exhibit 6 was Accused 1's confirmed warned and cautioned statement in which he said the misunderstanding was over his cell phone that the deceased had stolen. The material parts read as follows:

“At about 2100 hours, the now deceased started inquiring whether I was serious about what I had initially asked him. He then hit me once with an iron bar on my neck. I then grabbed and pushed him to the ground and I started assaulting him several times with fists on his face. At that moment, Adventure Ruzive, Habson Chamatungwa and Jonasi Musengi joined in and the trio started assaulting him several times all over his body using logs which they had taken from the fire. Some people who were nearby, whom I do not know by names, came to stop the fight since Wellington Mushava was about to die. Adventure Ruzive and Habson Chamatugwa were apprehended but I and Jonasi Musengi managed to flea…,.”

Exhibit 7 was Accused 2's confirmed warned and cautioned statement. In that statement, Accused 2 stated that when he got to the scene, he saw Accused 1 grabbing the deceased by the jacket while holding an okapi knife. He asked Accused 1 why they were fighting and he said the deceased had struck him with an iron bar. He then warned Accused 1 against using a knife but Accused 1 ignored him. In an instant, Accused 1 then stabbed the deceased twice on the chest with the knife. Accused 4 then struck the deceased on the back of his head and he fell down. He said he then picked a bucket in order to fetch some water to pour on the deceased but was apprehended before he could achieve this purpose. He denied assaulting the deceased.

Exhibit 8 was Accused 3's confirmed warned and cautioned statement. He said he saw the deceased strike Accused 1 with an iron bar and the two immediately engaged in a fight. Accused 2 asked him why the two were fighting and he informed him the reason. According to him, he saw Accused 4 strike the deceased twice on the back of his head and on the neck using a log. He heard Accused 2 warning Accused 1 not to use a knife. Although he claimed not to have assaulted the deceased, he was apprehended by Simbarashe Madhubeko at the scene.

Exhibit 9 was Accused 4's confirmed warned and cautioned statement wherein he stated that Accused 1 was hit by the deceased and he fell down screaming. Accused 2 and 3 then arrived and Accused 2 stabbed the deceased once on the chest with a knife. Accused 3 hit the deceased several times with a fire brand. Accused 1 then stood up and stabbed the deceased once on his back....,.

The State then opened its case by calling Simbarashe Madhubeko (Simbarashe) who lives at Village 4, Stand 18 Zhangwe in Shurugwi. He is a gold panner who knows all the four (4) accused persons as neighbours and fellow gold panners. He knew the deceased as his neighbour and gold panner. He said all the accused persons, and the deceased, used to move together. He had known the deceased for a period of seven (7) years before his death.

The witness said on the 24th day of May 2013 he was standing about 10 metres away when he saw Accused 3 striking the deceased on the neck with a fire brand. He also saw Accused 2 striking the deceased with a fire brand. Later, he saw Accused 4 hitting the deceased on the face with a fire brand he had withdrawn from the fire. The deceased cried out, and, as he cried out, he said he had been stabbed with a knife. At that time, Accused 1 was holding a knife and he apprehended Accused 3 while Accused 2 was apprehended by one Chikozho. Accused 1 and 4 fled the scene.

A Mr Mangisi phoned Shurugwi Police. According to the witness, the spot was illuminated by fire and he clearly saw Accused 2, 3 and 4 assaulting the deceased.

When it was put to him that Accused 1 will say he took the knife from the deceased in order to defend himself, his answer was;

“Accused 1 was holding a knife, I do not know where he had obtained it from.”

Also, when it was suggested to him that the deceased was hit by Accused 4 and he dropped the knife his response was;

“They are better positioned but all I know is that they were assaulting him.”

He further said Accused 2 assaulted the deceased and he was restrained by one Brighton while he restrained Accused 3 after he had assaulted the deceased. As regards Accused 4, he said he saw him assaulting the deceased as well.

Under cross-examination by counsel for Accused 1, he conceded that he did not see Accused 1 stab the deceased. Also, he stated that he had not witnessed the earlier confrontation between the deceased and Accused 1.

Asked by counsel for Accused 2 why he had omitted to mention the role played by Accused 2 in his statement to the police, his response was;

“I do not know why its missing but I mentioned it.”

The statement was later admitted as exhibit 11.

Under cross-examination by counsel for Accused 3, the witness said the deceased and all the accused persons were “panning gold together and staying together in the bush”. He insisted that it was the 3rd accused who first attacked the deceased and that he did not see the deceased striking the accused with an iron bar.

He denied that he was falsely implicating Accused 3 because the deceased was his friend. He said the deceased was the accused persons' friend as well. Further, he said all the accused persons were his friends. According to him, the whole episode lasted a short time and the reason for tying Accused 2 and 3 was to prevent them from escaping.

When asked by counsel for the 4th accused when the 4th accused joined in, his response was; “at that time, all of them surrounded him joining in the fight.”

He said the 4th accused hit the deceased in the face; Accused 2 assaulted the deceased at the back; Accused 3 assaulted the deceased on the neck; while Accused 1 was wielding a knife.

He noticed, later, that the deceased's face was swollen.

Under re-examination by the State counsel, the witness said he is illiterate as he never saw the inside of a classroom. Asked about the sequence of events, he said he first saw Accused 2, 3 and 4 assaulting the deceased and later saw Accused 1 holding a knife. He said although people searched the place for the knife, it was never recovered.

The State's second witness was Edmore Marima the Investigating Officer in this case.

After the case was allocated to him, in June 2013, he uplifted Accused 2 and 3 from Hwahwa Prison and recorded warned and cautioned statements from them. These statements were subsequently confirmed by a magistrate at Shurugwi.

He then looked for Accused 1 and 4. The former was arrested in Dorset by Constable Dovatova while Accused 4 was arrested in August 2013 near Zvishavane (by Constable Chiteshe). He again recorded warned and cautioned statements from these two. The statements were later confirmed by a magistrate at Shurugwi.

Accused 4 told him that he was also known as Jonasi Musengi. He said he was informed by Sergeant Masara that no exhibits were recovered at the scene.

The State then closed its case…,.

Accused 1 then opened his defence by giving viva voce evidence.

He stated that on the day in question he was drinking beer with the deceased, Simbarashe Madhubeko and others when Accused 3 called him to another fire place. As he stood up, he was hit with an iron bar on the neck by the deceased. He fell down and the deceased again struck him on the back uttering the words; “Today I am going to kill you.”

The deceased then sat on top of him while holding him by the neck. He saw the deceased inserting his hand into his pocket and produced a knife. Accused 4 then hit the deceased on the hand holding the knife. The knife fell down next to his right hand and he picked it up. He then stabbed the deceased twice on the chest forcing the deceased to rise and he got up when Simbarashe Madhubeko was saying he should be beaten. He then fled from the scene.

Asked what part of the deceased's body he aimed the knife; he said he did not aim since the deceased was pinning him down holding his neck, he just stabbed him. After stabbing the deceased, he said he threw the knife down before fleeing from the scene. He was then arrested at Gwamanyanga in Fort Rixon.

The accused closed his case as he did not have any defence witnesses to call....,.

In our view, Simbarashe Madhubeko was an honest witness who did not exaggerate his story. He told a simple and straight forward story and was never shaken under cross-examination. In other words, he remained firm, steadfast and consistent notwithstanding intense and searching questions from the four defence counsels. Put differently, his story remained intact without any embellishments.

For example, he told the court that he did not see where Accused 1 obtained the knife from. On the evidence on record, if this witness wanted to exaggerate he could have easily said Accused 1 took the knife from his pocket thereby contradicting the accused's version that the deceased dropped the knife.

Another example is that he conceded that he did not see the deceased attacking Accused 1 with an iron bar. An untruthful witness would have said the deceased never assaulted the first accused - especially where the witness was a friend of the deceased. His version of events, as regards the sequence of events before, during, and after the stabbing remained in one shape.

That version does not establish self defence in respect of Accused 1 in that there was no time when the deceased sat on top of Accused 1. According to him, the deceased did not get that chance because Accused 2, 3 and 4 swiftly intervened by assaulting the deceased as a group until Accused 1 stabbed the deceased.

We therefore find Simbarashe Madhubeko a credible witness whose evidence we accept in toto.

On the other hand, we find Accused 1 to be an incredible witness for the following reasons:

(1) Accused 1's confirmed warned and cautioned statement is contradictory to his Defence Outline in many material respects.

As examples, he admitted, in the Defence Outline, that he stabbed the deceased twice on the chest with a knife; yet, in the warned and cautioned statement he never mentioned the knife, never mind the more important issue of stabbing the deceased. He, instead, piled the blame on his co-accused persons for the death of the deceased.

Also, in the warned and cautioned statement, he never mentioned the fact that he acted in self-defence after the deceased produced a knife or that he was intoxicated at the relevant time.

In the warned and cautioned statement he said he was assaulted once on the neck by the deceased yet in Defence Outline he said the deceased continued to assault him using open hands.

There is yet another version he gave in his evidence in chief, namely, that the deceased hit him with an iron bar on the neck and when he fell down the deceased continued to strike him on the back with the iron bar.

As if this is not enough, Accused 1 gave another totally different version under cross-examination when he said he was assaulted three times by the deceased i.e. once on the head and twice on the back.

(2) Accused 1's story is illogical in that when disowning his warned and cautioned statement he said the police assaulted him in order to compel him to admit the offence; but, when it was pointed out to him that he actually denied the offence, he changed and alleged that the police wanted him to tell them the role played by his co-accused persons.

We find this reasoning illogical and weird in that it is strange and most improbable that the police would force him to incriminate his co-perpetrators while at the same time allowing him to exculpate himself.

To the contrary, the tenor of Accused1's warned and cautioned statement is that of a person who freely and voluntarily denied the offence and incriminated his accomplices.

(3) Accused 1's story is incredible in that while he told the court that he dropped the knife at the scene it was never recovered despite an extensive search. Also, when asked why he did not report the crime to the police he gave a rather bizarre response, namely, that “his neck was swollen.”

(4) Accused 1 gave a contradictory and conflicting explanation of why he felt his life was in danger. When it was put to him that at the time he stabbed the deceased he (deceased) was no longer posing a threat to his life, his response was, he was, since the knife had not yet fallen down. Now, it is his case that he used the knife that had been dropped by the deceased.

(5) Accused 1 gave an improbable story by denying ever owning a knife in his entire life when it would be expected to own one due to the environment and circumstances he lived under i.e. in the bush.

(6) Accused 1 gave a false reason for fleeing from the scene. He said he was afraid of being assaulted. However, instead of reporting the murder to the nearest police station, Accused 1 fled to a place in Matabeleland South called Gwamanyanga in Fort Rixon.

For these reasons we make the following findings in respect of the first accused;

(1)...,.

(2)...,.

(3)...,.

(4)...,.

(5)...,.

(6) The deceased had earlier assaulted the accused with an iron bar.

Defence of Diminished Mental Responsibility or Diminished Capacity re: Substance Use, Intoxication and Insanity

The accused were charged with murder in that on the 24th of May 2013 and along Runde River, Shurugwi, in the Midlands Province, the accused persons, or one or more of them, unlawfully caused the death of Wellington Mashava by stabbing him with a knife twice on the chest, once on the left shoulder and once on the left back and by striking him with logs on the neck and face intending to kill him or realizing that there was a real risk or possibility that their conduct may cause death and continued to engage in that conduct despite the risk or possibility.

All accused persons pleaded not guilty to the charge.

The State Outline was produced as exhibit 1. In it, the State alleged that on the 24th of May 2013, the deceased and the accused persons were panning for gold. Later, in the evening of that day, they were at a make-shift bottle store where an argument ensued between Accused 1 and the deceased over allegations that the latter had earlier on stolen the former's cell phone.

The deceased struck Accused 1 with an iron bar on the neck prompting Accused 2, 3 and 4 to join in the fight on Accused 1's side. The three used fire brands to strike the deceased on the neck and face. Accused 1 then pulled a knife and stabbed the deceased with it on the chest and back. The deceased cried out for help and fell to the ground. He died shortly thereafter and a report was subsequently made to the police. The deceased's remains were ferried to United Bulawayo Hospitals for a post mortem examination.

Accused 1's Defence Outline was produced as exhibit 2. The accused denied the charge raising self defence and provocation as his defences.

He admitted stabbing the deceased twice on the chest in self-defence. In paragraph 6 of his Defence Outline he stated that after stabbing the deceased twice, as indicated above, he “left the scene whilst Accused 4 was assaulting the deceased with logs.” In paragraph 5 of the Defence Outline, he said the deceased hit him with an iron bar on the “neck” and continued assaulting him with “open hands.” He also said the issue of the stolen cell phone had caused a long time misunderstanding between the deceased and himself.

Exhibit 3 was Accused 2's Defence Outline wherein he denied the charge of murder. He indicated that he took no part in the stabbing of the deceased on the day in question.

According to him, when he got to the scene, he found Accused 1 and the deceased fighting while Simbarashe Madhubeko and others were watching. He then saw “Accused 1 lifting the deceased from the ground. The 4th accused then struck the deceased with a log at the back of the neck on the left side. When deceased was struck with the log, he dropped a knife that he was holding in his hand. The 1st Accused then picked up the knife and stabbed the deceased twice on the chest. The 4th accused again hit the deceased with the log at the back of the neck and under the right shoulder. The deceased then fell down. The 1st and 4th accused then ran away from the scene.” As he picked a bucket to fetch water he was apprehended by Simbarashe Madhubeko who tied him, together with the 3rd Accused, with shoe laces.

Finally, he denied assaulting the deceased at any material point arguing that he did not act in common purpose with the 1st and 4th accused persons in assaulting the deceased. He prayed for a verdict of not guilty.

Exhibit 4 was Accused 3's Defence Outline wherein he denied the State's allegations. In paragraph 8 of this Outline, he stated that whilst he was at a point where sadza was being sold, he “realised that a fight had broken up (sic) between Accused 1 and the deceased. He then went to the scene where he noticed that Accused 2 arrived running inquiring what was happening. He heard Accused 2 warning Accused 1 against using a knife in the fight.” In paragraph 11 he said he believed the deceased died as a result of stab wounds inflicted on his person by the first accused. Further, he said the deceased was assaulted by the 4th accused using a log and he denied “any participation as alleged or at all in bringing about the death of the deceased.” He also prayed for his acquittal on the murder charge.

Exhibit 5 was the 4th accused's Defence Outline. He too pleaded not guilty outlining that on the fateful evening he was drinking beer with fellow gold panners when a misunderstanding ensued between Accused 1 and the deceased culminating in the deceased striking Accused 1 with a “crow bar and he fell down. In paragraph 6 of this Outline he stated that the “2nd accused and the 3rd accused started hitting the now deceased with a log they had taken from the fire.” In paragraph 7 he said “he witnessed Accused 1 standing up and going on to stab the deceased on the chest. Deceased then fell down and Accused 2 and 3 were apprehended at the scene.” He denied ever causing the deceased's death.

Exhibit 6 was Accused 1's confirmed warned and cautioned statement in which he said the misunderstanding was over his cell phone that the deceased had stolen. The material parts read as follows:

“At about 2100 hours, the now deceased started inquiring whether I was serious about what I had initially asked him. He then hit me once with an iron bar on my neck. I then grabbed and pushed him to the ground and I started assaulting him several times with fists on his face. At that moment, Adventure Ruzive, Habson Chamatungwa and Jonasi Musengi joined in and the trio started assaulting him several times all over his body using logs which they had taken from the fire. Some people who were nearby, whom I do not know by names, came to stop the fight since Wellington Mushava was about to die. Adventure Ruzive and Habson Chamatugwa were apprehended but I and Jonasi Musengi managed to flea…,.”

Exhibit 7 was Accused 2's confirmed warned and cautioned statement. In that statement, Accused 2 stated that when he got to the scene, he saw Accused 1 grabbing the deceased by the jacket while holding an okapi knife. He asked Accused 1 why they were fighting and he said the deceased had struck him with an iron bar. He then warned Accused 1 against using a knife but Accused 1 ignored him. In an instant, Accused 1 then stabbed the deceased twice on the chest with the knife. Accused 4 then struck the deceased on the back of his head and he fell down. He said he then picked a bucket in order to fetch some water to pour on the deceased but was apprehended before he could achieve this purpose. He denied assaulting the deceased.

Exhibit 8 was Accused 3's confirmed warned and cautioned statement. He said he saw the deceased strike Accused 1 with an iron bar and the two immediately engaged in a fight. Accused 2 asked him why the two were fighting and he informed him the reason. According to him, he saw Accused 4 strike the deceased twice on the back of his head and on the neck using a log. He heard Accused 2 warning Accused 1 not to use a knife. Although he claimed not to have assaulted the deceased, he was apprehended by Simbarashe Madhubeko at the scene.

Exhibit 9 was Accused 4's confirmed warned and cautioned statement wherein he stated that Accused 1 was hit by the deceased and he fell down screaming. Accused 2 and 3 then arrived and Accused 2 stabbed the deceased once on the chest with a knife. Accused 3 hit the deceased several times with a fire brand. Accused 1 then stood up and stabbed the deceased once on his back....,.

The State then opened its case by calling Simbarashe Madhubeko (Simbarashe) who lives at Village 4, Stand 18 Zhangwe in Shurugwi. He is a gold panner who knows all the four (4) accused persons as neighbours and fellow gold panners. He knew the deceased as his neighbour and gold panner. He said all the accused persons, and the deceased, used to move together. He had known the deceased for a period of seven (7) years before his death.

The witness said on the 24th day of May 2013 he was standing about 10 metres away when he saw Accused 3 striking the deceased on the neck with a fire brand. He also saw Accused 2 striking the deceased with a fire brand. Later, he saw Accused 4 hitting the deceased on the face with a fire brand he had withdrawn from the fire. The deceased cried out, and, as he cried out, he said he had been stabbed with a knife. At that time, Accused 1 was holding a knife and he apprehended Accused 3 while Accused 2 was apprehended by one Chikozho. Accused 1 and 4 fled the scene.

A Mr Mangisi phoned Shurugwi Police. According to the witness, the spot was illuminated by fire and he clearly saw Accused 2, 3 and 4 assaulting the deceased.

When it was put to him that Accused 1 will say he took the knife from the deceased in order to defend himself, his answer was;

“Accused 1 was holding a knife, I do not know where he had obtained it from.”

Also, when it was suggested to him that the deceased was hit by Accused 4 and he dropped the knife his response was;

“They are better positioned but all I know is that they were assaulting him.”

He further said Accused 2 assaulted the deceased and he was restrained by one Brighton while he restrained Accused 3 after he had assaulted the deceased. As regards Accused 4, he said he saw him assaulting the deceased as well.

Under cross-examination by counsel for Accused 1, he conceded that he did not see Accused 1 stab the deceased. Also, he stated that he had not witnessed the earlier confrontation between the deceased and Accused 1.

Asked by counsel for Accused 2 why he had omitted to mention the role played by Accused 2 in his statement to the police, his response was;

“I do not know why its missing but I mentioned it.”

The statement was later admitted as exhibit 11.

Under cross-examination by counsel for Accused 3, the witness said the deceased and all the accused persons were “panning gold together and staying together in the bush”. He insisted that it was the 3rd accused who first attacked the deceased and that he did not see the deceased striking the accused with an iron bar.

He denied that he was falsely implicating Accused 3 because the deceased was his friend. He said the deceased was the accused persons' friend as well. Further, he said all the accused persons were his friends. According to him, the whole episode lasted a short time and the reason for tying Accused 2 and 3 was to prevent them from escaping.

When asked by counsel for the 4th accused when the 4th accused joined in, his response was; “at that time, all of them surrounded him joining in the fight.”

He said the 4th accused hit the deceased in the face; Accused 2 assaulted the deceased at the back; Accused 3 assaulted the deceased on the neck; while Accused 1 was wielding a knife.

He noticed, later, that the deceased's face was swollen.

Under re-examination by the State counsel, the witness said he is illiterate as he never saw the inside of a classroom. Asked about the sequence of events, he said he first saw Accused 2, 3 and 4 assaulting the deceased and later saw Accused 1 holding a knife. He said although people searched the place for the knife, it was never recovered.

The State's second witness was Edmore Marima the Investigating Officer in this case.

After the case was allocated to him, in June 2013, he uplifted Accused 2 and 3 from Hwahwa Prison and recorded warned and cautioned statements from them. These statements were subsequently confirmed by a magistrate at Shurugwi.

He then looked for Accused 1 and 4. The former was arrested in Dorset by Constable Dovatova while Accused 4 was arrested in August 2013 near Zvishavane (by Constable Chiteshe). He again recorded warned and cautioned statements from these two. The statements were later confirmed by a magistrate at Shurugwi.

Accused 4 told him that he was also known as Jonasi Musengi. He said he was informed by Sergeant Masara that no exhibits were recovered at the scene.

The State then closed its case…,.

Accused 1 then opened his defence by giving viva voce evidence.

He stated that on the day in question he was drinking beer with the deceased, Simbarashe Madhubeko and others when Accused 3 called him to another fire place. As he stood up, he was hit with an iron bar on the neck by the deceased. He fell down and the deceased again struck him on the back uttering the words; “Today I am going to kill you.”

The deceased then sat on top of him while holding him by the neck. He saw the deceased inserting his hand into his pocket and produced a knife. Accused 4 then hit the deceased on the hand holding the knife. The knife fell down next to his right hand and he picked it up. He then stabbed the deceased twice on the chest forcing the deceased to rise and he got up when Simbarashe Madhubeko was saying he should be beaten. He then fled from the scene.

Asked what part of the deceased's body he aimed the knife; he said he did not aim since the deceased was pinning him down holding his neck, he just stabbed him. After stabbing the deceased, he said he threw the knife down before fleeing from the scene. He was then arrested at Gwamanyanga in Fort Rixon.

The accused closed his case as he did not have any defence witnesses to call....,.

In our view, Simbarashe Madhubeko was an honest witness who did not exaggerate his story. He told a simple and straight forward story and was never shaken under cross-examination. In other words, he remained firm, steadfast and consistent notwithstanding intense and searching questions from the four defence counsels. Put differently, his story remained intact without any embellishments.

For example, he told the court that he did not see where Accused 1 obtained the knife from. On the evidence on record, if this witness wanted to exaggerate he could have easily said Accused 1 took the knife from his pocket thereby contradicting the accused's version that the deceased dropped the knife.

Another example is that he conceded that he did not see the deceased attacking Accused 1 with an iron bar. An untruthful witness would have said the deceased never assaulted the first accused - especially where the witness was a friend of the deceased. His version of events, as regards the sequence of events before, during, and after the stabbing remained in one shape.

That version does not establish self defence in respect of Accused 1 in that there was no time when the deceased sat on top of Accused 1. According to him, the deceased did not get that chance because Accused 2, 3 and 4 swiftly intervened by assaulting the deceased as a group until Accused 1 stabbed the deceased.

We therefore find Simbarashe Madhubeko a credible witness whose evidence we accept in toto.

On the other hand, we find Accused 1 to be an incredible witness for the following reasons:

(1) Accused 1's confirmed warned and cautioned statement is contradictory to his Defence Outline in many material respects.

As examples, he admitted, in the Defence Outline, that he stabbed the deceased twice on the chest with a knife; yet, in the warned and cautioned statement he never mentioned the knife, never mind the more important issue of stabbing the deceased. He, instead, piled the blame on his co-accused persons for the death of the deceased.

Also, in the warned and cautioned statement, he never mentioned the fact that he acted in self-defence after the deceased produced a knife or that he was intoxicated at the relevant time.

In the warned and cautioned statement he said he was assaulted once on the neck by the deceased yet in Defence Outline he said the deceased continued to assault him using open hands.

There is yet another version he gave in his evidence in chief, namely, that the deceased hit him with an iron bar on the neck and when he fell down the deceased continued to strike him on the back with the iron bar.

As if this is not enough, Accused 1 gave another totally different version under cross-examination when he said he was assaulted three times by the deceased i.e. once on the head and twice on the back.

(2) Accused 1's story is illogical in that when disowning his warned and cautioned statement he said the police assaulted him in order to compel him to admit the offence; but, when it was pointed out to him that he actually denied the offence, he changed and alleged that the police wanted him to tell them the role played by his co-accused persons.

We find this reasoning illogical and weird in that it is strange and most improbable that the police would force him to incriminate his co-perpetrators while at the same time allowing him to exculpate himself.

To the contrary, the tenor of Accused1's warned and cautioned statement is that of a person who freely and voluntarily denied the offence and incriminated his accomplices.

(3) Accused 1's story is incredible in that while he told the court that he dropped the knife at the scene it was never recovered despite an extensive search. Also, when asked why he did not report the crime to the police he gave a rather bizarre response, namely, that “his neck was swollen.”

(4) Accused 1 gave a contradictory and conflicting explanation of why he felt his life was in danger. When it was put to him that at the time he stabbed the deceased he (deceased) was no longer posing a threat to his life, his response was, he was, since the knife had not yet fallen down. Now, it is his case that he used the knife that had been dropped by the deceased.

(5) Accused 1 gave an improbable story by denying ever owning a knife in his entire life when it would be expected to own one due to the environment and circumstances he lived under i.e. in the bush.

(6) Accused 1 gave a false reason for fleeing from the scene. He said he was afraid of being assaulted. However, instead of reporting the murder to the nearest police station, Accused 1 fled to a place in Matabeleland South called Gwamanyanga in Fort Rixon.

For these reasons we make the following findings in respect of the first accused;

(1)...,.

(2)...,.

(3)...,.

(4)...,.

(5)...,.

(6)...,.

(7)...,.

(8) The accused was not so drunk as not to know what he was doing.

Murder re: Mob Assault, Multiple Assailants or Murder By a Group

The accused were charged with murder in that on the 24th of May 2013 and along Runde River, Shurugwi, in the Midlands Province, the accused persons, or one or more of them, unlawfully caused the death of Wellington Mashava by stabbing him with a knife twice on the chest, once on the left shoulder and once on the left back and by striking him with logs on the neck and face intending to kill him or realizing that there was a real risk or possibility that their conduct may cause death and continued to engage in that conduct despite the risk or possibility.

All accused persons pleaded not guilty to the charge.

The State Outline was produced as exhibit 1. In it, the State alleged that on the 24th of May 2013, the deceased and the accused persons were panning for gold. Later, in the evening of that day, they were at a make-shift bottle store where an argument ensued between Accused 1 and the deceased over allegations that the latter had earlier on stolen the former's cell phone.

The deceased struck Accused 1 with an iron bar on the neck prompting Accused 2, 3 and 4 to join in the fight on Accused 1's side. The three used fire brands to strike the deceased on the neck and face. Accused 1 then pulled a knife and stabbed the deceased with it on the chest and back. The deceased cried out for help and fell to the ground. He died shortly thereafter and a report was subsequently made to the police. The deceased's remains were ferried to United Bulawayo Hospitals for a post mortem examination.

Accused 1's Defence Outline was produced as exhibit 2. The accused denied the charge raising self defence and provocation as his defences.

He admitted stabbing the deceased twice on the chest in self-defence. In paragraph 6 of his Defence Outline he stated that after stabbing the deceased twice, as indicated above, he “left the scene whilst Accused 4 was assaulting the deceased with logs.” In paragraph 5 of the Defence Outline, he said the deceased hit him with an iron bar on the “neck” and continued assaulting him with “open hands.” He also said the issue of the stolen cell phone had caused a long time misunderstanding between the deceased and himself.

Exhibit 3 was Accused 2's Defence Outline wherein he denied the charge of murder. He indicated that he took no part in the stabbing of the deceased on the day in question.

According to him, when he got to the scene, he found Accused 1 and the deceased fighting while Simbarashe Madhubeko and others were watching. He then saw “Accused 1 lifting the deceased from the ground. The 4th accused then struck the deceased with a log at the back of the neck on the left side. When deceased was struck with the log, he dropped a knife that he was holding in his hand. The 1st Accused then picked up the knife and stabbed the deceased twice on the chest. The 4th accused again hit the deceased with the log at the back of the neck and under the right shoulder. The deceased then fell down. The 1st and 4th accused then ran away from the scene.” As he picked a bucket to fetch water he was apprehended by Simbarashe Madhubeko who tied him, together with the 3rd Accused, with shoe laces.

Finally, he denied assaulting the deceased at any material point arguing that he did not act in common purpose with the 1st and 4th accused persons in assaulting the deceased. He prayed for a verdict of not guilty.

Exhibit 4 was Accused 3's Defence Outline wherein he denied the State's allegations. In paragraph 8 of this Outline, he stated that whilst he was at a point where sadza was being sold, he “realised that a fight had broken up (sic) between Accused 1 and the deceased. He then went to the scene where he noticed that Accused 2 arrived running inquiring what was happening. He heard Accused 2 warning Accused 1 against using a knife in the fight.” In paragraph 11 he said he believed the deceased died as a result of stab wounds inflicted on his person by the first accused. Further, he said the deceased was assaulted by the 4th accused using a log and he denied “any participation as alleged or at all in bringing about the death of the deceased.” He also prayed for his acquittal on the murder charge.

Exhibit 5 was the 4th accused's Defence Outline. He too pleaded not guilty outlining that on the fateful evening he was drinking beer with fellow gold panners when a misunderstanding ensued between Accused 1 and the deceased culminating in the deceased striking Accused 1 with a “crow bar and he fell down. In paragraph 6 of this Outline he stated that the “2nd accused and the 3rd accused started hitting the now deceased with a log they had taken from the fire.” In paragraph 7 he said “he witnessed Accused 1 standing up and going on to stab the deceased on the chest. Deceased then fell down and Accused 2 and 3 were apprehended at the scene.” He denied ever causing the deceased's death.

Exhibit 6 was Accused 1's confirmed warned and cautioned statement in which he said the misunderstanding was over his cell phone that the deceased had stolen. The material parts read as follows:

“At about 2100 hours, the now deceased started inquiring whether I was serious about what I had initially asked him. He then hit me once with an iron bar on my neck. I then grabbed and pushed him to the ground and I started assaulting him several times with fists on his face. At that moment, Adventure Ruzive, Habson Chamatungwa and Jonasi Musengi joined in and the trio started assaulting him several times all over his body using logs which they had taken from the fire. Some people who were nearby, whom I do not know by names, came to stop the fight since Wellington Mushava was about to die. Adventure Ruzive and Habson Chamatugwa were apprehended but I and Jonasi Musengi managed to flea…,.”

Exhibit 7 was Accused 2's confirmed warned and cautioned statement. In that statement, Accused 2 stated that when he got to the scene, he saw Accused 1 grabbing the deceased by the jacket while holding an okapi knife. He asked Accused 1 why they were fighting and he said the deceased had struck him with an iron bar. He then warned Accused 1 against using a knife but Accused 1 ignored him. In an instant, Accused 1 then stabbed the deceased twice on the chest with the knife. Accused 4 then struck the deceased on the back of his head and he fell down. He said he then picked a bucket in order to fetch some water to pour on the deceased but was apprehended before he could achieve this purpose. He denied assaulting the deceased.

Exhibit 8 was Accused 3's confirmed warned and cautioned statement. He said he saw the deceased strike Accused 1 with an iron bar and the two immediately engaged in a fight. Accused 2 asked him why the two were fighting and he informed him the reason. According to him, he saw Accused 4 strike the deceased twice on the back of his head and on the neck using a log. He heard Accused 2 warning Accused 1 not to use a knife. Although he claimed not to have assaulted the deceased, he was apprehended by Simbarashe Madhubeko at the scene.

Exhibit 9 was Accused 4's confirmed warned and cautioned statement wherein he stated that Accused 1 was hit by the deceased and he fell down screaming. Accused 2 and 3 then arrived and Accused 2 stabbed the deceased once on the chest with a knife. Accused 3 hit the deceased several times with a fire brand. Accused 1 then stood up and stabbed the deceased once on his back.

Exhibit 10 was a post mortem report number 414-413-2013. The pathologist observed the following marks of violence;

1. Stab wound right chest (1cm) located 7cm from the right nipple, 7cm from midline, 7cm from clavicle.

2. Stab wound left chest (1cm) located 7cm from the left nipple, 7cm from mid-line, 7cm from clavicle.

3. Stab wound 1cm left shoulder.

4. Stab wound 1cm left back.

The heart itself suffered a stab wound in the left ventricle. Also, there was 2.7 litres of blood in the lungs. He further remarked that the post-mortem is consistent with wounds caused by a sharp object.

As regards the cause of death he concluded that death was caused by:

1. Haemorrhagic shock.

2. Haemothorax.

3. Stab wound (heart).

4. Homicide.

The State sought admissions in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07] in respect of the following witnesses;

1. Edson Mahwite.

2. Edison Masara.

3. C. Nyikadzino.

4. N. Mushangari.

5. P. Pandukai.

6. W. Muguti.

7. Dr S. Pesanayi.

There were no objections by all defence counsels and the evidence was admitted as summarised.

The State then opened its case by calling Simbarashe Madhubeko (Simbarashe) who lives at Village 4, Stand 18 Zhangwe in Shurugwi. He is a gold panner who knows all the four (4) accused persons as neighbours and fellow gold panners. He knew the deceased as his neighbour and gold panner. He said all the accused persons, and the deceased, used to move together. He had known the deceased for a period of seven (7) years before his death.

The witness said on the 24th day of May 2013 he was standing about 10 metres away when he saw Accused 3 striking the deceased on the neck with a fire brand. He also saw Accused 2 striking the deceased with a fire brand. Later, he saw Accused 4 hitting the deceased on the face with a fire brand he had withdrawn from the fire. The deceased cried out, and, as he cried out, he said he had been stabbed with a knife. At that time, Accused 1 was holding a knife and he apprehended Accused 3 while Accused 2 was apprehended by one Chikozho. Accused 1 and 4 fled the scene.

A Mr Mangisi phoned Shurugwi Police. According to the witness, the spot was illuminated by fire and he clearly saw Accused 2, 3 and 4 assaulting the deceased.

When it was put to him that Accused 1 will say he took the knife from the deceased in order to defend himself, his answer was;

“Accused 1 was holding a knife, I do not know where he had obtained it from.”

Also, when it was suggested to him that the deceased was hit by Accused 4 and he dropped the knife his response was;

“They are better positioned but all I know is that they were assaulting him.”

He further said Accused 2 assaulted the deceased and he was restrained by one Brighton while he restrained Accused 3 after he had assaulted the deceased. As regards Accused 4, he said he saw him assaulting the deceased as well.

Under cross-examination by counsel for Accused 1, he conceded that he did not see Accused 1 stab the deceased. Also, he stated that he had not witnessed the earlier confrontation between the deceased and Accused 1.

Asked by counsel for Accused 2 why he had omitted to mention the role played by Accused 2 in his statement to the police, his response was;

“I do not know why its missing but I mentioned it.”

The statement was later admitted as exhibit 11.

Under cross-examination by counsel for Accused 3, the witness said the deceased and all the accused persons were “panning gold together and staying together in the bush”. He insisted that it was the 3rd accused who first attacked the deceased and that he did not see the deceased striking the accused with an iron bar.

He denied that he was falsely implicating Accused 3 because the deceased was his friend. He said the deceased was the accused persons' friend as well. Further, he said all the accused persons were his friends. According to him, the whole episode lasted a short time and the reason for tying Accused 2 and 3 was to prevent them from escaping.

When asked by counsel for the 4th accused when the 4th accused joined in, his response was; “at that time, all of them surrounded him joining in the fight.”

He said the 4th accused hit the deceased in the face; Accused 2 assaulted the deceased at the back; Accused 3 assaulted the deceased on the neck; while Accused 1 was wielding a knife.

He noticed, later, that the deceased's face was swollen.

Under re-examination by the State counsel, the witness said he is illiterate as he never saw the inside of a classroom. Asked about the sequence of events, he said he first saw Accused 2, 3 and 4 assaulting the deceased and later saw Accused 1 holding a knife. He said although people searched the place for the knife, it was never recovered.

The State's second witness was Edmore Marima the Investigating Officer in this case.

After the case was allocated to him, in June 2013, he uplifted Accused 2 and 3 from Hwahwa Prison and recorded warned and cautioned statements from them. These statements were subsequently confirmed by a magistrate at Shurugwi.

He then looked for Accused 1 and 4. The former was arrested in Dorset by Constable Dovatova while Accused 4 was arrested in August 2013 near Zvishavane (by Constable Chiteshe). He again recorded warned and cautioned statements from these two. The statements were later confirmed by a magistrate at Shurugwi.

Accused 4 told him that he was also known as Jonasi Musengi. He said he was informed by Sergeant Masara that no exhibits were recovered at the scene.

The State then closed its case…,.

Accused 1 then opened his defence by giving viva voce evidence.

He stated that on the day in question he was drinking beer with the deceased, Simbarashe Madhubeko and others when Accused 3 called him to another fire place. As he stood up, he was hit with an iron bar on the neck by the deceased. He fell down and the deceased again struck him on the back uttering the words; “Today I am going to kill you.”

The deceased then sat on top of him while holding him by the neck. He saw the deceased inserting his hand into his pocket and produced a knife. Accused 4 then hit the deceased on the hand holding the knife. The knife fell down next to his right hand and he picked it up. He then stabbed the deceased twice on the chest forcing the deceased to rise and he got up when Simbarashe Madhubeko was saying he should be beaten. He then fled from the scene.

Asked what part of the deceased's body he aimed the knife; he said he did not aim since the deceased was pinning him down holding his neck, he just stabbed him. After stabbing the deceased, he said he threw the knife down before fleeing from the scene. He was then arrested at Gwamanyanga in Fort Rixon.

The accused closed his case as he did not have any defence witnesses to call.

Accused 2 then gave evidence in his defence.

He said on the evening in question, he was informed by Accused 3 that his young brother (Accused 1) was involved in a fight with the deceased. At a distance he saw Accused 1 grabbing the deceased by the neck and the two fell down. He then saw Accused 4 striking the deceased with a fire brand. Shortly thereafter, he saw Accused 1 holding a knife while he was on the ground and he immediately warned Accused 1 against using a knife. Accused 1 ignored him and proceeded to stab the deceased twice on the chest. He later said Accused 1 was on top of the deceased and both rose and Accused 4 then struck the deceased twice, once on the back and neck. After the deceased had fallen down Accused 1 and 4 fled while he and Accused 3 were apprehended at the scene.

Under cross-examination he changed his version and said the deceased was on top of the first accused. He denied his version of events in the confirmed warned and cautioned statement.

According to him he had been tortured at the scene to the extent that he was confused when he gave his statement. At confirmation proceedings he said he informed the magistrate who ordered that the police were to investigate the matter.

As regards Accused 3's role he said he did not see him participating in any way. He failed to intervene due to fear of being stabbed with the knife. Finally, he said when the deceased pulled out the knife from his pocket it was open. He said he befriended the deceased when they were in Grade 5.

Accused 2 then closed his case.

The third accused gave evidence in his defence.

He knew the deceased and Simbarashe Madhubeko very well. Accused 1 and the deceased quarreled in the morning and he prevented them from fighting. On the evening in question Accused 1, 2, 4, the deceased, Simbarashe Madhubeko, and himself were at a fire when Accused 1 was hit by the deceased and he fell down. Accused 2 got up and ran towards the scene shouting; “Evidence do not use a knife.” He said he saw Accused 4 hitting the deceased twice on the neck and back. At the scene he did not see anyone with a knife. Later, he saw Accused 1 running away. Accused 4 also fled the scene while Accused 2 was apprehended by Simbarashe Madhubeko.

Accused 3 then closed his case.

The fourth accused gave evidence.

He stated that he knows all the accused persons as workmates. He also knows Simbarashe Madhubeko as a workmate. The deceased was also known to him as a gold panner. Accused 1 and the deceased had an altercation earlier in the day which was resolved by Accused 3. On the day in question he was with Accused 1, Simbarashe Madhubeko and the deceased when Accused 1 was hit by the deceased. He said he jumped to the other side of the fire. Accused 2 stabbed the deceased and Accused 1 got up and stabbed the deceased on the back while the deceased was in a bending position holding his knees. He said he saw Accused 3 assaulting the deceased with a fire-brand.

As regards his sobriety, he said he was “in a drunken state” but was able to see Accused 1, 2 and 3 attacking the deceased.

According to him, the deceased did not have a knife and Accused 1, 2 and 3 are telling lies in order to absolve themselves. He then left for his rural home some 13–20km away. He walked during the night.

Under cross-examination, he said Accused 1 stabbed the deceased once on the back and Accused 2 stabbed the deceased once on the chest. He did not know how the other injuries were caused. He did not report the matter to the police. According to him, Simbarashe Madhubeko teamed up with Accused 1, 2 and 3 to incriminate him because they are neighbours.

The fourth accused then closed his case.

The issues are as follows:

(1) Whether or not the accused persons acted in common purpose by actively associating themselves in the unlawful assault that eventually caused the deceased's death?

(2) Whether or not the accused persons had the requisite mens rea?

(3) Whether or not Accused 1 acted in self defence when he stabbed the deceased?

The following facts are common cause;

(a) That Simbarashe Madhubeko and the four accused persons were gold panners working along the Runde River together.

(b) That all of them were present when the crime was committed.

(c) That the deceased struck Accused 1 with a crow bar and he fell down.

(d) That Accused 1 stabbed the deceased with a knife.

(e) That the deceased died instantly from stab wounds inflicted during the assault.

The Law

Before analyzing the evidence led by the State and the accused persons, it is necessary to state the law relating to the doctrine of common purpose.

At common law, the doctrine was defined by BURCHELL in South African Criminal Law and Procedure, Vol 1, 3rd Ed…, as follows:

“Where two or more people agree to commit a crime or actively associate in a joint unlawful enterprise, each will be responsible for specific conduct committed by one of their number which falls within their common design.”

In S v Mubaiwa & Another 1992 (2) ZLR 362 (S) it was held that;

“In the absence of proof of a prior agreement, accused number 6; who was not shown to have contributed casually to the killing or wounding of the occupants of Room 12, can be held liable for those events, on the basis of the decision in Safatsa & Ors 1988 (1) SA 868 (A) only if certain pre-requisites are satisfied;

(i) In the first place, he must have been present at the scene where the violence was being committed.

(ii) Secondly, he must have been aware of the assaults on the inmates of Room 12.

(iii) Thirdly, he must have intended to make common cause with those who were actually perpetrating the assault.

(iv) Fourthly, he must have manifested his sharing of a common purpose with the perpetrators of the assault by himself performing some act of association with the conduct of others.

(v) Fifthly, he must have had the requisite mens rea; so, in respect of the killing of the deceased, he must have intended them to be killed or he must have foreseen the possibility of their being killed and performed his own act of association with recklessness as to whether or not death was to ensue.”

See also S v Mgedezi & Ors 1989 (1) SA 67 (A)…, per BOTHA JA.

The statutory provision that deals with the doctrine of common purpose is section 196 of the Criminal Law Codification and Reform Act [Chapter 9:23]. It states:

“A co-perpetrator is a person, other than the actual perpetrator, who;

(i) Was present with the actual perpetrator during the commission of the crime; and

(ii) Who knowingly associated with the actual perpetrator (and any other co-perpetrator) with the intention that each, or any of them, will commit, or be prepared to commit, the crime actually committed.”

Basically, what the law states is that where these requirements have been met, the conduct of the actual perpetrator will be deemed also to be the conduct of every co-perpetrator.

Applying these principles to the facts of this case we note that the main ground of dispute in the case is whether the four accused persons, or any of them, are responsible for the deceased's death?

The evidence against and for each accused varies, and, consequently, the case against each must be considered, to a large extent, separately.

In our view, Simbarashe Madhubeko was an honest witness who did not exaggerate his story. He told a simple and straight forward story and was never shaken under cross-examination. In other words, he remained firm, steadfast and consistent notwithstanding intense and searching questions from the four defence counsels. Put differently, his story remained intact without any embellishments.

For example, he told the court that he did not see where Accused 1 obtained the knife from. On the evidence on record, if this witness wanted to exaggerate he could have easily said Accused 1 took the knife from his pocket thereby contradicting the accused's version that the deceased dropped the knife.

Another example is that he conceded that he did not see the deceased attacking Accused 1 with an iron bar. An untruthful witness would have said the deceased never assaulted the first accused - especially where the witness was a friend of the deceased. His version of events, as regards the sequence of events before, during, and after the stabbing remained in one shape.

That version does not establish self defence in respect of Accused 1 in that there was no time when the deceased sat on top of Accused 1. According to him, the deceased did not get that chance because Accused 2, 3 and 4 swiftly intervened by assaulting the deceased as a group until Accused 1 stabbed the deceased.

We therefore find Simbarashe Madhubeko a credible witness whose evidence we accept in toto.

On the other hand, we find Accused 1 to be an incredible witness for the following reasons:

(1) Accused 1's confirmed warned and cautioned statement is contradictory to his Defence Outline in many material respects.

As examples, he admitted, in the Defence Outline, that he stabbed the deceased twice on the chest with a knife; yet, in the warned and cautioned statement he never mentioned the knife, never mind the more important issue of stabbing the deceased. He, instead, piled the blame on his co-accused persons for the death of the deceased.

Also, in the warned and cautioned statement, he never mentioned the fact that he acted in self-defence after the deceased produced a knife or that he was intoxicated at the relevant time.

In the warned and cautioned statement he said he was assaulted once on the neck by the deceased yet in Defence Outline he said the deceased continued to assault him using open hands.

There is yet another version he gave in his evidence in chief, namely, that the deceased hit him with an iron bar on the neck and when he fell down the deceased continued to strike him on the back with the iron bar.

As if this is not enough, Accused 1 gave another totally different version under cross-examination when he said he was assaulted three times by the deceased i.e. once on the head and twice on the back.

(2) Accused 1's story is illogical in that when disowning his warned and cautioned statement he said the police assaulted him in order to compel him to admit the offence; but, when it was pointed out to him that he actually denied the offence, he changed and alleged that the police wanted him to tell them the role played by his co-accused persons.

We find this reasoning illogical and weird in that it is strange and most improbable that the police would force him to incriminate his co-perpetrators while at the same time allowing him to exculpate himself.

To the contrary, the tenor of Accused1's warned and cautioned statement is that of a person who freely and voluntarily denied the offence and incriminated his accomplices.

(3) Accused 1's story is incredible in that while he told the court that he dropped the knife at the scene it was never recovered despite an extensive search. Also, when asked why he did not report the crime to the police he gave a rather bizarre response, namely, that “his neck was swollen.”

(4) Accused 1 gave a contradictory and conflicting explanation of why he felt his life was in danger. When it was put to him that at the time he stabbed the deceased he (deceased) was no longer posing a threat to his life, his response was, he was, since the knife had not yet fallen down. Now, it is his case that he used the knife that had been dropped by the deceased.

(5) Accused 1 gave an improbable story by denying ever owning a knife in his entire life when it would be expected to own one due to the environment and circumstances he lived under i.e. in the bush.

(6) Accused 1 gave a false reason for fleeing from the scene. He said he was afraid of being assaulted. However, instead of reporting the murder to the nearest police station, Accused 1 fled to a place in Matabeleland South called Gwamanyanga in Fort Rixon.

For these reasons we make the following findings in respect of the first accused;

(1) He was not acting in self-defence when he stabbed the deceased with the knife. Rather, the accused was simply retaliating. The evidence in its totality does not prove the requirements of self defence.

(2) The deceased did not possess a knife at the time he was stabbed. The knife belonged to the accused and he took it away.

(3) The accused acted recklessly in the manner he stabbed the deceased.

(4) The accused used severe force to stab the deceased more than once.

(5) The deceased died from injuries inflicted by the accused.

(6) The deceased had earlier assaulted the accused with an iron bar.

(7) After the accused killed the deceased, he fled from the scene.

(8) The accused was not so drunk as not to know what he was doing.

Moving on to Accused 2, we find that he too was an untruthful witness. There are numerous differences between the accused's Defence Outline and his warned and cautioned statement.

In the warned and cautioned statement, he said when he arrived he saw Accused 1 grabbing the deceased by the jacket while holding a knife; yet, in the Defence Outline, he said Accused 1 lifted the deceased from the ground and the fourth accused then hit the deceased.

Also, in the Defence Outline, he said the deceased dropped a knife after he was hit by Accused 4; yet, in the warned and cautioned statement he did not mention this at all.

In the Defence Outline, he said he did not speak to the first accused at the scene; yet, in the warned and cautioned statement he said he warned Accused 1 against using the knife but he took no heed.

He also said, in his warned and cautioned statement, that he asked Accused 1, at the scene, why he was fighting with the deceased, and he said the deceased had assaulted him using a crow bar.

Further, Accused 2, in his warned and cautioned statement, said Accused 4 hit the deceased once on the back of the head and he fell down; yet, in the Defence Outline, he said Accused 4 hit the deceased twice (i.e. once on the back of the neck and once under the right shoulder).

It should also be noted that this version is different from Accused 1's version in that Accused 1 said the deceased was hit on the wrist by Accused 4.

The sequence of events in the Defence Outline is also different from that in the warned and cautioned statement.

It is highly improbable that the deceased would have engaged in a fight with an open knife in his pocket. It is also highly improbable that the magistrate would have confirmed the warned and cautioned statement if the accused had reservations. Further, it is highly unlikely that the accused would simply watch his young brother being assaulted without either stopping the fight or join in to save Accused 1.

Findings in respect of Accused 2:

(1) That he assaulted the deceased with a firebrand when he arrived at the scene.

(2) That at the time he joined in the fight, the first accused's life was not in danger as the assault by the deceased had stopped.

(3) Accused 2 acted recklessly.

(4) Accused 2 foresaw the real possibility that the deceased might be stabbed to death by the first accused.

(5) Accused 2 saw that Accused 1 was armed with a knife, but, instead of disarming him he proceeded to assault the deceased.

(6) Accused 2 was present during the commission of the crime and he knowingly associated with Accused 1 with the intention that each will commit the murder.

(7) Accused 2 intended to make common purpose with Accused 1, and others, by assaulting the deceased.

(8) The assault is a manifestation of the accused's sharing of common purpose with the other perpetrators.

As regards the third accused, our view is that while he gave a consistent version of events in the warned and cautioned statement and his Defence Outline, he minimized his role during the scuffle.

We say so because Simbarashe Madhubeko was quite categoric about what Accused 3 did to the deceased. Accused 3 accepted that he was indeed apprehended by Simbarashe Madhubeko.

According to Simbarashe Madhubeko, the third accused was apprehended because he had assaulted the deceased with a fire brand. Simbarashe Madhubeko knew all the parties well. He had ample opportunity to see what was happening. We do not believe Accused 3's evidence that he was arrested so that he would explain what had happened to the police.

For these reasons, we make the following findings in respect of the third accused person;

(1) He was present at the scene where the deceased was stabbed to death.

(2) He joined in the fight by assaulting the deceased with a fire brand.

(3) That assault is a manifestation of Accused 3's sharing of a common purpose with his accomplices.

(4) That he intended to make common purpose with his co-perpetrators.

(5) He foresaw the real possibility that the assault might kill the deceased but proceeded reckless as to the consequences.

(6) That he is an incredible witness whose evidence we reject where it conflicts with that of Simbarashe Madhubeko.

The fourth accused gave evidence in his defence.

His version is also short with some variations between the warned and cautioned statement and the Defence Outline. He said he saw Accused 1 stabbing the deceased on the chest in his Defence Outline; yet, in the warned and cautioned statement he had said it was Accused 2 who stabbed the deceased in the chest.

In the warned and cautioned statement, he said Accused 1 stabbed the deceased on the back. In his Defence Outline, he said Accused 2 and 3 hit the deceased with logs; yet, in the warned and cautioned statement, he said it was only Accused 3 who hit the deceased several times while Accused 2 stabbed the deceased with a knife on the chest.

Under cross-examination, he said he never saw the deceased wielding a knife.

He admitted that he left the scene that night and walked a distance close to 20km. What is surprising is that this is the only witness who said the deceased was stabbed by two people, namely, Accused 1 and 2. He said he was drunk when the incident occurred. It should be noted that Accused 1, 2, 3 and Simbarashe Madhubeko say they saw Accused 4 striking the deceased with a fire brand. We do not find any reason why Simbarashe Madhubeko, and the others, would falsely incriminate Accused 4.

We therefore find as follows:

(1) That he was present at the scene where the deceased was murdered.

(2) That he actively participated in the murder of the deceased by joining in the assault perpetrated upon the deceased.

(3) That assault is a manifestation of his sharing of a common purpose with the rest of the accused persons.

(4) That he intended to make common purpose with his accomplices.

(5) That he foresaw the real possibility that the deceased might be killed but proceeded nevertheless reckless as to the consequences.

(6) That he is an incredible witness whose testimony we reject wherever it conflicts with that of Simbarashe Madhubeko.

Intention to kill

The issue here is; with what intention did the accused persons commit the offence?

Actual intention occurs where an accused deliberately causes the criminal consequences. Put differently, the consequences will be his aim and object. On the other hand, legal intention, or constructive intent, or dolus eventualis occurs where an accused does not mean to bring about the criminal consequence but he engages in some activity which he subjectively foresees there is a real possibility that a criminal consequence may occur and he nonetheless proceeds with his activity, reckless as to whether or not the consequence ensues.

In casu, the first accused stabbed the deceased several times with a knife. He inflicted these injuries on the upper part of the deceased's body. From the injuries observed and recorded in the post-mortem report, the accused must have used excessive force. We say so because there was a stab wound on the heart. The weapon used is dangerous and caused lethal wounds. The deceased died from these injuries.

We note, however, that there was also an element of provocation coupled with intoxication. We find, however, that from the evidence, the first accused acted in order to revenge. As regards intoxication, we have already found that he was not so drunk as not to know what he was doing.

We therefore find all accused persons guilty of murder with constructive intent.

Accessory, Accomplice, Common Purpose, Conspiracy to Commit, Co-perpetrators and Complicity re: Approach

The accused were charged with murder in that on the 24th of May 2013 and along Runde River, Shurugwi, in the Midlands Province, the accused persons, or one or more of them, unlawfully caused the death of Wellington Mashava by stabbing him with a knife twice on the chest, once on the left shoulder and once on the left back and by striking him with logs on the neck and face intending to kill him or realizing that there was a real risk or possibility that their conduct may cause death and continued to engage in that conduct despite the risk or possibility.

All accused persons pleaded not guilty to the charge.

The State Outline was produced as exhibit 1. In it, the State alleged that on the 24th of May 2013, the deceased and the accused persons were panning for gold. Later, in the evening of that day, they were at a make-shift bottle store where an argument ensued between Accused 1 and the deceased over allegations that the latter had earlier on stolen the former's cell phone.

The deceased struck Accused 1 with an iron bar on the neck prompting Accused 2, 3 and 4 to join in the fight on Accused 1's side. The three used fire brands to strike the deceased on the neck and face. Accused 1 then pulled a knife and stabbed the deceased with it on the chest and back. The deceased cried out for help and fell to the ground. He died shortly thereafter and a report was subsequently made to the police. The deceased's remains were ferried to United Bulawayo Hospitals for a post mortem examination.

Accused 1's Defence Outline was produced as exhibit 2. The accused denied the charge raising self defence and provocation as his defences.

He admitted stabbing the deceased twice on the chest in self-defence. In paragraph 6 of his Defence Outline he stated that after stabbing the deceased twice, as indicated above, he “left the scene whilst Accused 4 was assaulting the deceased with logs.” In paragraph 5 of the Defence Outline, he said the deceased hit him with an iron bar on the “neck” and continued assaulting him with “open hands.” He also said the issue of the stolen cell phone had caused a long time misunderstanding between the deceased and himself.

Exhibit 3 was Accused 2's Defence Outline wherein he denied the charge of murder. He indicated that he took no part in the stabbing of the deceased on the day in question.

According to him, when he got to the scene, he found Accused 1 and the deceased fighting while Simbarashe Madhubeko and others were watching. He then saw “Accused 1 lifting the deceased from the ground. The 4th accused then struck the deceased with a log at the back of the neck on the left side. When deceased was struck with the log, he dropped a knife that he was holding in his hand. The 1st Accused then picked up the knife and stabbed the deceased twice on the chest. The 4th accused again hit the deceased with the log at the back of the neck and under the right shoulder. The deceased then fell down. The 1st and 4th accused then ran away from the scene.” As he picked a bucket to fetch water he was apprehended by Simbarashe Madhubeko who tied him, together with the 3rd Accused, with shoe laces.

Finally, he denied assaulting the deceased at any material point arguing that he did not act in common purpose with the 1st and 4th accused persons in assaulting the deceased. He prayed for a verdict of not guilty.

Exhibit 4 was Accused 3's Defence Outline wherein he denied the State's allegations. In paragraph 8 of this Outline, he stated that whilst he was at a point where sadza was being sold, he “realised that a fight had broken up (sic) between Accused 1 and the deceased. He then went to the scene where he noticed that Accused 2 arrived running inquiring what was happening. He heard Accused 2 warning Accused 1 against using a knife in the fight.” In paragraph 11 he said he believed the deceased died as a result of stab wounds inflicted on his person by the first accused. Further, he said the deceased was assaulted by the 4th accused using a log and he denied “any participation as alleged or at all in bringing about the death of the deceased.” He also prayed for his acquittal on the murder charge.

Exhibit 5 was the 4th accused's Defence Outline. He too pleaded not guilty outlining that on the fateful evening he was drinking beer with fellow gold panners when a misunderstanding ensued between Accused 1 and the deceased culminating in the deceased striking Accused 1 with a “crow bar and he fell down. In paragraph 6 of this Outline he stated that the “2nd accused and the 3rd accused started hitting the now deceased with a log they had taken from the fire.” In paragraph 7 he said “he witnessed Accused 1 standing up and going on to stab the deceased on the chest. Deceased then fell down and Accused 2 and 3 were apprehended at the scene.” He denied ever causing the deceased's death.

Exhibit 6 was Accused 1's confirmed warned and cautioned statement in which he said the misunderstanding was over his cell phone that the deceased had stolen. The material parts read as follows:

“At about 2100 hours, the now deceased started inquiring whether I was serious about what I had initially asked him. He then hit me once with an iron bar on my neck. I then grabbed and pushed him to the ground and I started assaulting him several times with fists on his face. At that moment, Adventure Ruzive, Habson Chamatungwa and Jonasi Musengi joined in and the trio started assaulting him several times all over his body using logs which they had taken from the fire. Some people who were nearby, whom I do not know by names, came to stop the fight since Wellington Mushava was about to die. Adventure Ruzive and Habson Chamatugwa were apprehended but I and Jonasi Musengi managed to flea…,.”

Exhibit 7 was Accused 2's confirmed warned and cautioned statement. In that statement, Accused 2 stated that when he got to the scene, he saw Accused 1 grabbing the deceased by the jacket while holding an okapi knife. He asked Accused 1 why they were fighting and he said the deceased had struck him with an iron bar. He then warned Accused 1 against using a knife but Accused 1 ignored him. In an instant, Accused 1 then stabbed the deceased twice on the chest with the knife. Accused 4 then struck the deceased on the back of his head and he fell down. He said he then picked a bucket in order to fetch some water to pour on the deceased but was apprehended before he could achieve this purpose. He denied assaulting the deceased.

Exhibit 8 was Accused 3's confirmed warned and cautioned statement. He said he saw the deceased strike Accused 1 with an iron bar and the two immediately engaged in a fight. Accused 2 asked him why the two were fighting and he informed him the reason. According to him, he saw Accused 4 strike the deceased twice on the back of his head and on the neck using a log. He heard Accused 2 warning Accused 1 not to use a knife. Although he claimed not to have assaulted the deceased, he was apprehended by Simbarashe Madhubeko at the scene.

Exhibit 9 was Accused 4's confirmed warned and cautioned statement wherein he stated that Accused 1 was hit by the deceased and he fell down screaming. Accused 2 and 3 then arrived and Accused 2 stabbed the deceased once on the chest with a knife. Accused 3 hit the deceased several times with a fire brand. Accused 1 then stood up and stabbed the deceased once on his back.

Exhibit 10 was a post mortem report number 414-413-2013. The pathologist observed the following marks of violence;

1. Stab wound right chest (1cm) located 7cm from the right nipple, 7cm from midline, 7cm from clavicle.

2. Stab wound left chest (1cm) located 7cm from the left nipple, 7cm from mid-line, 7cm from clavicle.

3. Stab wound 1cm left shoulder.

4. Stab wound 1cm left back.

The heart itself suffered a stab wound in the left ventricle. Also, there was 2.7 litres of blood in the lungs. He further remarked that the post-mortem is consistent with wounds caused by a sharp object.

As regards the cause of death he concluded that death was caused by:

1. Haemorrhagic shock.

2. Haemothorax.

3. Stab wound (heart).

4. Homicide.

The State sought admissions in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07] in respect of the following witnesses;

1. Edson Mahwite.

2. Edison Masara.

3. C. Nyikadzino.

4. N. Mushangari.

5. P. Pandukai.

6. W. Muguti.

7. Dr S. Pesanayi.

There were no objections by all defence counsels and the evidence was admitted as summarised.

The State then opened its case by calling Simbarashe Madhubeko (Simbarashe) who lives at Village 4, Stand 18 Zhangwe in Shurugwi. He is a gold panner who knows all the four (4) accused persons as neighbours and fellow gold panners. He knew the deceased as his neighbour and gold panner. He said all the accused persons, and the deceased, used to move together. He had known the deceased for a period of seven (7) years before his death.

The witness said on the 24th day of May 2013 he was standing about 10 metres away when he saw Accused 3 striking the deceased on the neck with a fire brand. He also saw Accused 2 striking the deceased with a fire brand. Later, he saw Accused 4 hitting the deceased on the face with a fire brand he had withdrawn from the fire. The deceased cried out, and, as he cried out, he said he had been stabbed with a knife. At that time, Accused 1 was holding a knife and he apprehended Accused 3 while Accused 2 was apprehended by one Chikozho. Accused 1 and 4 fled the scene.

A Mr Mangisi phoned Shurugwi Police. According to the witness, the spot was illuminated by fire and he clearly saw Accused 2, 3 and 4 assaulting the deceased.

When it was put to him that Accused 1 will say he took the knife from the deceased in order to defend himself, his answer was;

“Accused 1 was holding a knife, I do not know where he had obtained it from.”

Also, when it was suggested to him that the deceased was hit by Accused 4 and he dropped the knife his response was;

“They are better positioned but all I know is that they were assaulting him.”

He further said Accused 2 assaulted the deceased and he was restrained by one Brighton while he restrained Accused 3 after he had assaulted the deceased. As regards Accused 4, he said he saw him assaulting the deceased as well.

Under cross-examination by counsel for Accused 1, he conceded that he did not see Accused 1 stab the deceased. Also, he stated that he had not witnessed the earlier confrontation between the deceased and Accused 1.

Asked by counsel for Accused 2 why he had omitted to mention the role played by Accused 2 in his statement to the police, his response was;

“I do not know why its missing but I mentioned it.”

The statement was later admitted as exhibit 11.

Under cross-examination by counsel for Accused 3, the witness said the deceased and all the accused persons were “panning gold together and staying together in the bush”. He insisted that it was the 3rd accused who first attacked the deceased and that he did not see the deceased striking the accused with an iron bar.

He denied that he was falsely implicating Accused 3 because the deceased was his friend. He said the deceased was the accused persons' friend as well. Further, he said all the accused persons were his friends. According to him, the whole episode lasted a short time and the reason for tying Accused 2 and 3 was to prevent them from escaping.

When asked by counsel for the 4th accused when the 4th accused joined in, his response was; “at that time, all of them surrounded him joining in the fight.”

He said the 4th accused hit the deceased in the face; Accused 2 assaulted the deceased at the back; Accused 3 assaulted the deceased on the neck; while Accused 1 was wielding a knife.

He noticed, later, that the deceased's face was swollen.

Under re-examination by the State counsel, the witness said he is illiterate as he never saw the inside of a classroom. Asked about the sequence of events, he said he first saw Accused 2, 3 and 4 assaulting the deceased and later saw Accused 1 holding a knife. He said although people searched the place for the knife, it was never recovered.

The State's second witness was Edmore Marima the Investigating Officer in this case.

After the case was allocated to him, in June 2013, he uplifted Accused 2 and 3 from Hwahwa Prison and recorded warned and cautioned statements from them. These statements were subsequently confirmed by a magistrate at Shurugwi.

He then looked for Accused 1 and 4. The former was arrested in Dorset by Constable Dovatova while Accused 4 was arrested in August 2013 near Zvishavane (by Constable Chiteshe). He again recorded warned and cautioned statements from these two. The statements were later confirmed by a magistrate at Shurugwi.

Accused 4 told him that he was also known as Jonasi Musengi. He said he was informed by Sergeant Masara that no exhibits were recovered at the scene.

The State then closed its case…,.

Accused 1 then opened his defence by giving viva voce evidence.

He stated that on the day in question he was drinking beer with the deceased, Simbarashe Madhubeko and others when Accused 3 called him to another fire place. As he stood up, he was hit with an iron bar on the neck by the deceased. He fell down and the deceased again struck him on the back uttering the words; “Today I am going to kill you.”

The deceased then sat on top of him while holding him by the neck. He saw the deceased inserting his hand into his pocket and produced a knife. Accused 4 then hit the deceased on the hand holding the knife. The knife fell down next to his right hand and he picked it up. He then stabbed the deceased twice on the chest forcing the deceased to rise and he got up when Simbarashe Madhubeko was saying he should be beaten. He then fled from the scene.

Asked what part of the deceased's body he aimed the knife; he said he did not aim since the deceased was pinning him down holding his neck, he just stabbed him. After stabbing the deceased, he said he threw the knife down before fleeing from the scene. He was then arrested at Gwamanyanga in Fort Rixon.

The accused closed his case as he did not have any defence witnesses to call.

Accused 2 then gave evidence in his defence.

He said on the evening in question, he was informed by Accused 3 that his young brother (Accused 1) was involved in a fight with the deceased. At a distance he saw Accused 1 grabbing the deceased by the neck and the two fell down. He then saw Accused 4 striking the deceased with a fire brand. Shortly thereafter, he saw Accused 1 holding a knife while he was on the ground and he immediately warned Accused 1 against using a knife. Accused 1 ignored him and proceeded to stab the deceased twice on the chest. He later said Accused 1 was on top of the deceased and both rose and Accused 4 then struck the deceased twice, once on the back and neck. After the deceased had fallen down Accused 1 and 4 fled while he and Accused 3 were apprehended at the scene.

Under cross-examination he changed his version and said the deceased was on top of the first accused. He denied his version of events in the confirmed warned and cautioned statement.

According to him he had been tortured at the scene to the extent that he was confused when he gave his statement. At confirmation proceedings he said he informed the magistrate who ordered that the police were to investigate the matter.

As regards Accused 3's role he said he did not see him participating in any way. He failed to intervene due to fear of being stabbed with the knife. Finally, he said when the deceased pulled out the knife from his pocket it was open. He said he befriended the deceased when they were in Grade 5.

Accused 2 then closed his case.

The third accused gave evidence in his defence.

He knew the deceased and Simbarashe Madhubeko very well. Accused 1 and the deceased quarreled in the morning and he prevented them from fighting. On the evening in question Accused 1, 2, 4, the deceased, Simbarashe Madhubeko, and himself were at a fire when Accused 1 was hit by the deceased and he fell down. Accused 2 got up and ran towards the scene shouting; “Evidence do not use a knife.” He said he saw Accused 4 hitting the deceased twice on the neck and back. At the scene he did not see anyone with a knife. Later, he saw Accused 1 running away. Accused 4 also fled the scene while Accused 2 was apprehended by Simbarashe Madhubeko.

Accused 3 then closed his case.

The fourth accused gave evidence.

He stated that he knows all the accused persons as workmates. He also knows Simbarashe Madhubeko as a workmate. The deceased was also known to him as a gold panner. Accused 1 and the deceased had an altercation earlier in the day which was resolved by Accused 3. On the day in question he was with Accused 1, Simbarashe Madhubeko and the deceased when Accused 1 was hit by the deceased. He said he jumped to the other side of the fire. Accused 2 stabbed the deceased and Accused 1 got up and stabbed the deceased on the back while the deceased was in a bending position holding his knees. He said he saw Accused 3 assaulting the deceased with a fire-brand.

As regards his sobriety, he said he was “in a drunken state” but was able to see Accused 1, 2 and 3 attacking the deceased.

According to him, the deceased did not have a knife and Accused 1, 2 and 3 are telling lies in order to absolve themselves. He then left for his rural home some 13–20km away. He walked during the night.

Under cross-examination, he said Accused 1 stabbed the deceased once on the back and Accused 2 stabbed the deceased once on the chest. He did not know how the other injuries were caused. He did not report the matter to the police. According to him, Simbarashe Madhubeko teamed up with Accused 1, 2 and 3 to incriminate him because they are neighbours.

The fourth accused then closed his case.

The issues are as follows:

(1) Whether or not the accused persons acted in common purpose by actively associating themselves in the unlawful assault that eventually caused the deceased's death?

(2) Whether or not the accused persons had the requisite mens rea?

(3) Whether or not Accused 1 acted in self defence when he stabbed the deceased?

The following facts are common cause;

(a) That Simbarashe Madhubeko and the four accused persons were gold panners working along the Runde River together.

(b) That all of them were present when the crime was committed.

(c) That the deceased struck Accused 1 with a crow bar and he fell down.

(d) That Accused 1 stabbed the deceased with a knife.

(e) That the deceased died instantly from stab wounds inflicted during the assault.

The Law

Before analyzing the evidence led by the State and the accused persons, it is necessary to state the law relating to the doctrine of common purpose.

At common law, the doctrine was defined by BURCHELL in South African Criminal Law and Procedure, Vol 1, 3rd Ed…, as follows:

“Where two or more people agree to commit a crime or actively associate in a joint unlawful enterprise, each will be responsible for specific conduct committed by one of their number which falls within their common design.”

In S v Mubaiwa & Another 1992 (2) ZLR 362 (S) it was held that;

“In the absence of proof of a prior agreement, accused number 6; who was not shown to have contributed casually to the killing or wounding of the occupants of Room 12, can be held liable for those events, on the basis of the decision in Safatsa & Ors 1988 (1) SA 868 (A) only if certain pre-requisites are satisfied;

(i) In the first place, he must have been present at the scene where the violence was being committed.

(ii) Secondly, he must have been aware of the assaults on the inmates of Room 12.

(iii) Thirdly, he must have intended to make common cause with those who were actually perpetrating the assault.

(iv) Fourthly, he must have manifested his sharing of a common purpose with the perpetrators of the assault by himself performing some act of association with the conduct of others.

(v) Fifthly, he must have had the requisite mens rea; so, in respect of the killing of the deceased, he must have intended them to be killed or he must have foreseen the possibility of their being killed and performed his own act of association with recklessness as to whether or not death was to ensue.”

See also S v Mgedezi & Ors 1989 (1) SA 67 (A)…, per BOTHA JA.

The statutory provision that deals with the doctrine of common purpose is section 196 of the Criminal Law Codification and Reform Act [Chapter 9:23]. It states:

“A co-perpetrator is a person, other than the actual perpetrator, who;

(i) Was present with the actual perpetrator during the commission of the crime; and

(ii) Who knowingly associated with the actual perpetrator (and any other co-perpetrator) with the intention that each, or any of them, will commit, or be prepared to commit, the crime actually committed.”

Basically, what the law states is that where these requirements have been met, the conduct of the actual perpetrator will be deemed also to be the conduct of every co-perpetrator.

Applying these principles to the facts of this case we note that the main ground of dispute in the case is whether the four accused persons, or any of them, are responsible for the deceased's death?

The evidence against and for each accused varies, and, consequently, the case against each must be considered, to a large extent, separately.

In our view, Simbarashe Madhubeko was an honest witness who did not exaggerate his story. He told a simple and straight forward story and was never shaken under cross-examination. In other words, he remained firm, steadfast and consistent notwithstanding intense and searching questions from the four defence counsels. Put differently, his story remained intact without any embellishments.

For example, he told the court that he did not see where Accused 1 obtained the knife from. On the evidence on record, if this witness wanted to exaggerate he could have easily said Accused 1 took the knife from his pocket thereby contradicting the accused's version that the deceased dropped the knife.

Another example is that he conceded that he did not see the deceased attacking Accused 1 with an iron bar. An untruthful witness would have said the deceased never assaulted the first accused - especially where the witness was a friend of the deceased. His version of events, as regards the sequence of events before, during, and after the stabbing remained in one shape.

That version does not establish self defence in respect of Accused 1 in that there was no time when the deceased sat on top of Accused 1. According to him, the deceased did not get that chance because Accused 2, 3 and 4 swiftly intervened by assaulting the deceased as a group until Accused 1 stabbed the deceased.

We therefore find Simbarashe Madhubeko a credible witness whose evidence we accept in toto.

On the other hand, we find Accused 1 to be an incredible witness for the following reasons:

(1) Accused 1's confirmed warned and cautioned statement is contradictory to his Defence Outline in many material respects.

As examples, he admitted, in the Defence Outline, that he stabbed the deceased twice on the chest with a knife; yet, in the warned and cautioned statement he never mentioned the knife, never mind the more important issue of stabbing the deceased. He, instead, piled the blame on his co-accused persons for the death of the deceased.

Also, in the warned and cautioned statement, he never mentioned the fact that he acted in self-defence after the deceased produced a knife or that he was intoxicated at the relevant time.

In the warned and cautioned statement he said he was assaulted once on the neck by the deceased yet in Defence Outline he said the deceased continued to assault him using open hands.

There is yet another version he gave in his evidence in chief, namely, that the deceased hit him with an iron bar on the neck and when he fell down the deceased continued to strike him on the back with the iron bar.

As if this is not enough, Accused 1 gave another totally different version under cross-examination when he said he was assaulted three times by the deceased i.e. once on the head and twice on the back.

(2) Accused 1's story is illogical in that when disowning his warned and cautioned statement he said the police assaulted him in order to compel him to admit the offence; but, when it was pointed out to him that he actually denied the offence, he changed and alleged that the police wanted him to tell them the role played by his co-accused persons.

We find this reasoning illogical and weird in that it is strange and most improbable that the police would force him to incriminate his co-perpetrators while at the same time allowing him to exculpate himself.

To the contrary, the tenor of Accused1's warned and cautioned statement is that of a person who freely and voluntarily denied the offence and incriminated his accomplices.

(3) Accused 1's story is incredible in that while he told the court that he dropped the knife at the scene it was never recovered despite an extensive search. Also, when asked why he did not report the crime to the police he gave a rather bizarre response, namely, that “his neck was swollen.”

(4) Accused 1 gave a contradictory and conflicting explanation of why he felt his life was in danger. When it was put to him that at the time he stabbed the deceased he (deceased) was no longer posing a threat to his life, his response was, he was, since the knife had not yet fallen down. Now, it is his case that he used the knife that had been dropped by the deceased.

(5) Accused 1 gave an improbable story by denying ever owning a knife in his entire life when it would be expected to own one due to the environment and circumstances he lived under i.e. in the bush.

(6) Accused 1 gave a false reason for fleeing from the scene. He said he was afraid of being assaulted. However, instead of reporting the murder to the nearest police station, Accused 1 fled to a place in Matabeleland South called Gwamanyanga in Fort Rixon.

For these reasons we make the following findings in respect of the first accused;

(1) He was not acting in self-defence when he stabbed the deceased with the knife. Rather, the accused was simply retaliating. The evidence in its totality does not prove the requirements of self defence.

(2) The deceased did not possess a knife at the time he was stabbed. The knife belonged to the accused and he took it away.

(3) The accused acted recklessly in the manner he stabbed the deceased.

(4) The accused used severe force to stab the deceased more than once.

(5) The deceased died from injuries inflicted by the accused.

(6) The deceased had earlier assaulted the accused with an iron bar.

(7) After the accused killed the deceased, he fled from the scene.

(8) The accused was not so drunk as not to know what he was doing.

Moving on to Accused 2, we find that he too was an untruthful witness. There are numerous differences between the accused's Defence Outline and his warned and cautioned statement.

In the warned and cautioned statement, he said when he arrived he saw Accused 1 grabbing the deceased by the jacket while holding a knife; yet, in the Defence Outline, he said Accused 1 lifted the deceased from the ground and the fourth accused then hit the deceased.

Also, in the Defence Outline, he said the deceased dropped a knife after he was hit by Accused 4; yet, in the warned and cautioned statement he did not mention this at all.

In the Defence Outline, he said he did not speak to the first accused at the scene; yet, in the warned and cautioned statement he said he warned Accused 1 against using the knife but he took no heed.

He also said, in his warned and cautioned statement, that he asked Accused 1, at the scene, why he was fighting with the deceased, and he said the deceased had assaulted him using a crow bar.

Further, Accused 2, in his warned and cautioned statement, said Accused 4 hit the deceased once on the back of the head and he fell down; yet, in the Defence Outline, he said Accused 4 hit the deceased twice (i.e. once on the back of the neck and once under the right shoulder).

It should also be noted that this version is different from Accused 1's version in that Accused 1 said the deceased was hit on the wrist by Accused 4.

The sequence of events in the Defence Outline is also different from that in the warned and cautioned statement.

It is highly improbable that the deceased would have engaged in a fight with an open knife in his pocket. It is also highly improbable that the magistrate would have confirmed the warned and cautioned statement if the accused had reservations. Further, it is highly unlikely that the accused would simply watch his young brother being assaulted without either stopping the fight or join in to save Accused 1.

Findings in respect of Accused 2:

(1) That he assaulted the deceased with a firebrand when he arrived at the scene.

(2) That at the time he joined in the fight, the first accused's life was not in danger as the assault by the deceased had stopped.

(3) Accused 2 acted recklessly.

(4) Accused 2 foresaw the real possibility that the deceased might be stabbed to death by the first accused.

(5) Accused 2 saw that Accused 1 was armed with a knife, but, instead of disarming him he proceeded to assault the deceased.

(6) Accused 2 was present during the commission of the crime and he knowingly associated with Accused 1 with the intention that each will commit the murder.

(7) Accused 2 intended to make common purpose with Accused 1, and others, by assaulting the deceased.

(8) The assault is a manifestation of the accused's sharing of common purpose with the other perpetrators.

As regards the third accused, our view is that while he gave a consistent version of events in the warned and cautioned statement and his Defence Outline, he minimized his role during the scuffle.

We say so because Simbarashe Madhubeko was quite categoric about what Accused 3 did to the deceased. Accused 3 accepted that he was indeed apprehended by Simbarashe Madhubeko.

According to Simbarashe Madhubeko, the third accused was apprehended because he had assaulted the deceased with a fire brand. Simbarashe Madhubeko knew all the parties well. He had ample opportunity to see what was happening. We do not believe Accused 3's evidence that he was arrested so that he would explain what had happened to the police.

For these reasons, we make the following findings in respect of the third accused person;

(1) He was present at the scene where the deceased was stabbed to death.

(2) He joined in the fight by assaulting the deceased with a fire brand.

(3) That assault is a manifestation of Accused 3's sharing of a common purpose with his accomplices.

(4) That he intended to make common purpose with his co-perpetrators.

(5) He foresaw the real possibility that the assault might kill the deceased but proceeded reckless as to the consequences.

(6) That he is an incredible witness whose evidence we reject where it conflicts with that of Simbarashe Madhubeko.

The fourth accused gave evidence in his defence.

His version is also short with some variations between the warned and cautioned statement and the Defence Outline. He said he saw Accused 1 stabbing the deceased on the chest in his Defence Outline; yet, in the warned and cautioned statement he had said it was Accused 2 who stabbed the deceased in the chest.

In the warned and cautioned statement, he said Accused 1 stabbed the deceased on the back. In his Defence Outline, he said Accused 2 and 3 hit the deceased with logs; yet, in the warned and cautioned statement, he said it was only Accused 3 who hit the deceased several times while Accused 2 stabbed the deceased with a knife on the chest.

Under cross-examination, he said he never saw the deceased wielding a knife.

He admitted that he left the scene that night and walked a distance close to 20km. What is surprising is that this is the only witness who said the deceased was stabbed by two people, namely, Accused 1 and 2. He said he was drunk when the incident occurred. It should be noted that Accused 1, 2, 3 and Simbarashe Madhubeko say they saw Accused 4 striking the deceased with a fire brand. We do not find any reason why Simbarashe Madhubeko, and the others, would falsely incriminate Accused 4.

We therefore find as follows:

(1) That he was present at the scene where the deceased was murdered.

(2) That he actively participated in the murder of the deceased by joining in the assault perpetrated upon the deceased.

(3) That assault is a manifestation of his sharing of a common purpose with the rest of the accused persons.

(4) That he intended to make common purpose with his accomplices.

(5) That he foresaw the real possibility that the deceased might be killed but proceeded nevertheless reckless as to the consequences.

(6) That he is an incredible witness whose testimony we reject wherever it conflicts with that of Simbarashe Madhubeko.

Intention to kill

The issue here is; with what intention did the accused persons commit the offence?

Actual intention occurs where an accused deliberately causes the criminal consequences. Put differently, the consequences will be his aim and object. On the other hand, legal intention, or constructive intent, or dolus eventualis occurs where an accused does not mean to bring about the criminal consequence but he engages in some activity which he subjectively foresees there is a real possibility that a criminal consequence may occur and he nonetheless proceeds with his activity, reckless as to whether or not the consequence ensues.

In casu, the first accused stabbed the deceased several times with a knife. He inflicted these injuries on the upper part of the deceased's body. From the injuries observed and recorded in the post-mortem report, the accused must have used excessive force. We say so because there was a stab wound on the heart. The weapon used is dangerous and caused lethal wounds. The deceased died from these injuries.

We note, however, that there was also an element of provocation coupled with intoxication. We find, however, that from the evidence, the first accused acted in order to revenge. As regards intoxication, we have already found that he was not so drunk as not to know what he was doing.

We therefore find all accused persons guilty of murder with constructive intent.

Murder re: Murder with Constructive Intent, Foreseeability Intention, Reckless Conduct or Dolus Eventualis

The accused were charged with murder in that on the 24th of May 2013 and along Runde River, Shurugwi, in the Midlands Province, the accused persons, or one or more of them, unlawfully caused the death of Wellington Mashava by stabbing him with a knife twice on the chest, once on the left shoulder and once on the left back and by striking him with logs on the neck and face intending to kill him or realizing that there was a real risk or possibility that their conduct may cause death and continued to engage in that conduct despite the risk or possibility.

All accused persons pleaded not guilty to the charge.

The State Outline was produced as exhibit 1. In it, the State alleged that on the 24th of May 2013, the deceased and the accused persons were panning for gold. Later, in the evening of that day, they were at a make-shift bottle store where an argument ensued between Accused 1 and the deceased over allegations that the latter had earlier on stolen the former's cell phone.

The deceased struck Accused 1 with an iron bar on the neck prompting Accused 2, 3 and 4 to join in the fight on Accused 1's side. The three used fire brands to strike the deceased on the neck and face. Accused 1 then pulled a knife and stabbed the deceased with it on the chest and back. The deceased cried out for help and fell to the ground. He died shortly thereafter and a report was subsequently made to the police. The deceased's remains were ferried to United Bulawayo Hospitals for a post mortem examination.

Accused 1's Defence Outline was produced as exhibit 2. The accused denied the charge raising self defence and provocation as his defences.

He admitted stabbing the deceased twice on the chest in self-defence. In paragraph 6 of his Defence Outline he stated that after stabbing the deceased twice, as indicated above, he “left the scene whilst Accused 4 was assaulting the deceased with logs.” In paragraph 5 of the Defence Outline, he said the deceased hit him with an iron bar on the “neck” and continued assaulting him with “open hands.” He also said the issue of the stolen cell phone had caused a long time misunderstanding between the deceased and himself.

Exhibit 3 was Accused 2's Defence Outline wherein he denied the charge of murder. He indicated that he took no part in the stabbing of the deceased on the day in question.

According to him, when he got to the scene, he found Accused 1 and the deceased fighting while Simbarashe Madhubeko and others were watching. He then saw “Accused 1 lifting the deceased from the ground. The 4th accused then struck the deceased with a log at the back of the neck on the left side. When deceased was struck with the log, he dropped a knife that he was holding in his hand. The 1st Accused then picked up the knife and stabbed the deceased twice on the chest. The 4th accused again hit the deceased with the log at the back of the neck and under the right shoulder. The deceased then fell down. The 1st and 4th accused then ran away from the scene.” As he picked a bucket to fetch water he was apprehended by Simbarashe Madhubeko who tied him, together with the 3rd Accused, with shoe laces.

Finally, he denied assaulting the deceased at any material point arguing that he did not act in common purpose with the 1st and 4th accused persons in assaulting the deceased. He prayed for a verdict of not guilty.

Exhibit 4 was Accused 3's Defence Outline wherein he denied the State's allegations. In paragraph 8 of this Outline, he stated that whilst he was at a point where sadza was being sold, he “realised that a fight had broken up (sic) between Accused 1 and the deceased. He then went to the scene where he noticed that Accused 2 arrived running inquiring what was happening. He heard Accused 2 warning Accused 1 against using a knife in the fight.” In paragraph 11 he said he believed the deceased died as a result of stab wounds inflicted on his person by the first accused. Further, he said the deceased was assaulted by the 4th accused using a log and he denied “any participation as alleged or at all in bringing about the death of the deceased.” He also prayed for his acquittal on the murder charge.

Exhibit 5 was the 4th accused's Defence Outline. He too pleaded not guilty outlining that on the fateful evening he was drinking beer with fellow gold panners when a misunderstanding ensued between Accused 1 and the deceased culminating in the deceased striking Accused 1 with a “crow bar and he fell down. In paragraph 6 of this Outline he stated that the “2nd accused and the 3rd accused started hitting the now deceased with a log they had taken from the fire.” In paragraph 7 he said “he witnessed Accused 1 standing up and going on to stab the deceased on the chest. Deceased then fell down and Accused 2 and 3 were apprehended at the scene.” He denied ever causing the deceased's death.

Exhibit 6 was Accused 1's confirmed warned and cautioned statement in which he said the misunderstanding was over his cell phone that the deceased had stolen. The material parts read as follows:

“At about 2100 hours, the now deceased started inquiring whether I was serious about what I had initially asked him. He then hit me once with an iron bar on my neck. I then grabbed and pushed him to the ground and I started assaulting him several times with fists on his face. At that moment, Adventure Ruzive, Habson Chamatungwa and Jonasi Musengi joined in and the trio started assaulting him several times all over his body using logs which they had taken from the fire. Some people who were nearby, whom I do not know by names, came to stop the fight since Wellington Mushava was about to die. Adventure Ruzive and Habson Chamatugwa were apprehended but I and Jonasi Musengi managed to flea…,.”

Exhibit 7 was Accused 2's confirmed warned and cautioned statement. In that statement, Accused 2 stated that when he got to the scene, he saw Accused 1 grabbing the deceased by the jacket while holding an okapi knife. He asked Accused 1 why they were fighting and he said the deceased had struck him with an iron bar. He then warned Accused 1 against using a knife but Accused 1 ignored him. In an instant, Accused 1 then stabbed the deceased twice on the chest with the knife. Accused 4 then struck the deceased on the back of his head and he fell down. He said he then picked a bucket in order to fetch some water to pour on the deceased but was apprehended before he could achieve this purpose. He denied assaulting the deceased.

Exhibit 8 was Accused 3's confirmed warned and cautioned statement. He said he saw the deceased strike Accused 1 with an iron bar and the two immediately engaged in a fight. Accused 2 asked him why the two were fighting and he informed him the reason. According to him, he saw Accused 4 strike the deceased twice on the back of his head and on the neck using a log. He heard Accused 2 warning Accused 1 not to use a knife. Although he claimed not to have assaulted the deceased, he was apprehended by Simbarashe Madhubeko at the scene.

Exhibit 9 was Accused 4's confirmed warned and cautioned statement wherein he stated that Accused 1 was hit by the deceased and he fell down screaming. Accused 2 and 3 then arrived and Accused 2 stabbed the deceased once on the chest with a knife. Accused 3 hit the deceased several times with a fire brand. Accused 1 then stood up and stabbed the deceased once on his back.

Exhibit 10 was a post mortem report number 414-413-2013. The pathologist observed the following marks of violence;

1. Stab wound right chest (1cm) located 7cm from the right nipple, 7cm from midline, 7cm from clavicle.

2. Stab wound left chest (1cm) located 7cm from the left nipple, 7cm from mid-line, 7cm from clavicle.

3. Stab wound 1cm left shoulder.

4. Stab wound 1cm left back.

The heart itself suffered a stab wound in the left ventricle. Also, there was 2.7 litres of blood in the lungs. He further remarked that the post-mortem is consistent with wounds caused by a sharp object.

As regards the cause of death he concluded that death was caused by:

1. Haemorrhagic shock.

2. Haemothorax.

3. Stab wound (heart).

4. Homicide.

The State sought admissions in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07] in respect of the following witnesses;

1. Edson Mahwite.

2. Edison Masara.

3. C. Nyikadzino.

4. N. Mushangari.

5. P. Pandukai.

6. W. Muguti.

7. Dr S. Pesanayi.

There were no objections by all defence counsels and the evidence was admitted as summarised.

The State then opened its case by calling Simbarashe Madhubeko (Simbarashe) who lives at Village 4, Stand 18 Zhangwe in Shurugwi. He is a gold panner who knows all the four (4) accused persons as neighbours and fellow gold panners. He knew the deceased as his neighbour and gold panner. He said all the accused persons, and the deceased, used to move together. He had known the deceased for a period of seven (7) years before his death.

The witness said on the 24th day of May 2013 he was standing about 10 metres away when he saw Accused 3 striking the deceased on the neck with a fire brand. He also saw Accused 2 striking the deceased with a fire brand. Later, he saw Accused 4 hitting the deceased on the face with a fire brand he had withdrawn from the fire. The deceased cried out, and, as he cried out, he said he had been stabbed with a knife. At that time, Accused 1 was holding a knife and he apprehended Accused 3 while Accused 2 was apprehended by one Chikozho. Accused 1 and 4 fled the scene.

A Mr Mangisi phoned Shurugwi Police. According to the witness, the spot was illuminated by fire and he clearly saw Accused 2, 3 and 4 assaulting the deceased.

When it was put to him that Accused 1 will say he took the knife from the deceased in order to defend himself, his answer was;

“Accused 1 was holding a knife, I do not know where he had obtained it from.”

Also, when it was suggested to him that the deceased was hit by Accused 4 and he dropped the knife his response was;

“They are better positioned but all I know is that they were assaulting him.”

He further said Accused 2 assaulted the deceased and he was restrained by one Brighton while he restrained Accused 3 after he had assaulted the deceased. As regards Accused 4, he said he saw him assaulting the deceased as well.

Under cross-examination by counsel for Accused 1, he conceded that he did not see Accused 1 stab the deceased. Also, he stated that he had not witnessed the earlier confrontation between the deceased and Accused 1.

Asked by counsel for Accused 2 why he had omitted to mention the role played by Accused 2 in his statement to the police, his response was;

“I do not know why its missing but I mentioned it.”

The statement was later admitted as exhibit 11.

Under cross-examination by counsel for Accused 3, the witness said the deceased and all the accused persons were “panning gold together and staying together in the bush”. He insisted that it was the 3rd accused who first attacked the deceased and that he did not see the deceased striking the accused with an iron bar.

He denied that he was falsely implicating Accused 3 because the deceased was his friend. He said the deceased was the accused persons' friend as well. Further, he said all the accused persons were his friends. According to him, the whole episode lasted a short time and the reason for tying Accused 2 and 3 was to prevent them from escaping.

When asked by counsel for the 4th accused when the 4th accused joined in, his response was; “at that time, all of them surrounded him joining in the fight.”

He said the 4th accused hit the deceased in the face; Accused 2 assaulted the deceased at the back; Accused 3 assaulted the deceased on the neck; while Accused 1 was wielding a knife.

He noticed, later, that the deceased's face was swollen.

Under re-examination by the State counsel, the witness said he is illiterate as he never saw the inside of a classroom. Asked about the sequence of events, he said he first saw Accused 2, 3 and 4 assaulting the deceased and later saw Accused 1 holding a knife. He said although people searched the place for the knife, it was never recovered.

The State's second witness was Edmore Marima the Investigating Officer in this case.

After the case was allocated to him, in June 2013, he uplifted Accused 2 and 3 from Hwahwa Prison and recorded warned and cautioned statements from them. These statements were subsequently confirmed by a magistrate at Shurugwi.

He then looked for Accused 1 and 4. The former was arrested in Dorset by Constable Dovatova while Accused 4 was arrested in August 2013 near Zvishavane (by Constable Chiteshe). He again recorded warned and cautioned statements from these two. The statements were later confirmed by a magistrate at Shurugwi.

Accused 4 told him that he was also known as Jonasi Musengi. He said he was informed by Sergeant Masara that no exhibits were recovered at the scene.

The State then closed its case…,.

Accused 1 then opened his defence by giving viva voce evidence.

He stated that on the day in question he was drinking beer with the deceased, Simbarashe Madhubeko and others when Accused 3 called him to another fire place. As he stood up, he was hit with an iron bar on the neck by the deceased. He fell down and the deceased again struck him on the back uttering the words; “Today I am going to kill you.”

The deceased then sat on top of him while holding him by the neck. He saw the deceased inserting his hand into his pocket and produced a knife. Accused 4 then hit the deceased on the hand holding the knife. The knife fell down next to his right hand and he picked it up. He then stabbed the deceased twice on the chest forcing the deceased to rise and he got up when Simbarashe Madhubeko was saying he should be beaten. He then fled from the scene.

Asked what part of the deceased's body he aimed the knife; he said he did not aim since the deceased was pinning him down holding his neck, he just stabbed him. After stabbing the deceased, he said he threw the knife down before fleeing from the scene. He was then arrested at Gwamanyanga in Fort Rixon.

The accused closed his case as he did not have any defence witnesses to call.

Accused 2 then gave evidence in his defence.

He said on the evening in question, he was informed by Accused 3 that his young brother (Accused 1) was involved in a fight with the deceased. At a distance he saw Accused 1 grabbing the deceased by the neck and the two fell down. He then saw Accused 4 striking the deceased with a fire brand. Shortly thereafter, he saw Accused 1 holding a knife while he was on the ground and he immediately warned Accused 1 against using a knife. Accused 1 ignored him and proceeded to stab the deceased twice on the chest. He later said Accused 1 was on top of the deceased and both rose and Accused 4 then struck the deceased twice, once on the back and neck. After the deceased had fallen down Accused 1 and 4 fled while he and Accused 3 were apprehended at the scene.

Under cross-examination he changed his version and said the deceased was on top of the first accused. He denied his version of events in the confirmed warned and cautioned statement.

According to him he had been tortured at the scene to the extent that he was confused when he gave his statement. At confirmation proceedings he said he informed the magistrate who ordered that the police were to investigate the matter.

As regards Accused 3's role he said he did not see him participating in any way. He failed to intervene due to fear of being stabbed with the knife. Finally, he said when the deceased pulled out the knife from his pocket it was open. He said he befriended the deceased when they were in Grade 5.

Accused 2 then closed his case.

The third accused gave evidence in his defence.

He knew the deceased and Simbarashe Madhubeko very well. Accused 1 and the deceased quarreled in the morning and he prevented them from fighting. On the evening in question Accused 1, 2, 4, the deceased, Simbarashe Madhubeko, and himself were at a fire when Accused 1 was hit by the deceased and he fell down. Accused 2 got up and ran towards the scene shouting; “Evidence do not use a knife.” He said he saw Accused 4 hitting the deceased twice on the neck and back. At the scene he did not see anyone with a knife. Later, he saw Accused 1 running away. Accused 4 also fled the scene while Accused 2 was apprehended by Simbarashe Madhubeko.

Accused 3 then closed his case.

The fourth accused gave evidence.

He stated that he knows all the accused persons as workmates. He also knows Simbarashe Madhubeko as a workmate. The deceased was also known to him as a gold panner. Accused 1 and the deceased had an altercation earlier in the day which was resolved by Accused 3. On the day in question he was with Accused 1, Simbarashe Madhubeko and the deceased when Accused 1 was hit by the deceased. He said he jumped to the other side of the fire. Accused 2 stabbed the deceased and Accused 1 got up and stabbed the deceased on the back while the deceased was in a bending position holding his knees. He said he saw Accused 3 assaulting the deceased with a fire-brand.

As regards his sobriety, he said he was “in a drunken state” but was able to see Accused 1, 2 and 3 attacking the deceased.

According to him, the deceased did not have a knife and Accused 1, 2 and 3 are telling lies in order to absolve themselves. He then left for his rural home some 13–20km away. He walked during the night.

Under cross-examination, he said Accused 1 stabbed the deceased once on the back and Accused 2 stabbed the deceased once on the chest. He did not know how the other injuries were caused. He did not report the matter to the police. According to him, Simbarashe Madhubeko teamed up with Accused 1, 2 and 3 to incriminate him because they are neighbours.

The fourth accused then closed his case.

The issues are as follows:

(1) Whether or not the accused persons acted in common purpose by actively associating themselves in the unlawful assault that eventually caused the deceased's death?

(2) Whether or not the accused persons had the requisite mens rea?

(3) Whether or not Accused 1 acted in self defence when he stabbed the deceased?

The following facts are common cause;

(a) That Simbarashe Madhubeko and the four accused persons were gold panners working along the Runde River together.

(b) That all of them were present when the crime was committed.

(c) That the deceased struck Accused 1 with a crow bar and he fell down.

(d) That Accused 1 stabbed the deceased with a knife.

(e) That the deceased died instantly from stab wounds inflicted during the assault.

The Law

Before analyzing the evidence led by the State and the accused persons, it is necessary to state the law relating to the doctrine of common purpose.

At common law, the doctrine was defined by BURCHELL in South African Criminal Law and Procedure, Vol 1, 3rd Ed…, as follows:

“Where two or more people agree to commit a crime or actively associate in a joint unlawful enterprise, each will be responsible for specific conduct committed by one of their number which falls within their common design.”

In S v Mubaiwa & Another 1992 (2) ZLR 362 (S) it was held that;

“In the absence of proof of a prior agreement, accused number 6; who was not shown to have contributed casually to the killing or wounding of the occupants of Room 12, can be held liable for those events, on the basis of the decision in Safatsa & Ors 1988 (1) SA 868 (A) only if certain pre-requisites are satisfied;

(i) In the first place, he must have been present at the scene where the violence was being committed.

(ii) Secondly, he must have been aware of the assaults on the inmates of Room 12.

(iii) Thirdly, he must have intended to make common cause with those who were actually perpetrating the assault.

(iv) Fourthly, he must have manifested his sharing of a common purpose with the perpetrators of the assault by himself performing some act of association with the conduct of others.

(v) Fifthly, he must have had the requisite mens rea; so, in respect of the killing of the deceased, he must have intended them to be killed or he must have foreseen the possibility of their being killed and performed his own act of association with recklessness as to whether or not death was to ensue.”

See also S v Mgedezi & Ors 1989 (1) SA 67 (A)…, per BOTHA JA.

The statutory provision that deals with the doctrine of common purpose is section 196 of the Criminal Law Codification and Reform Act [Chapter 9:23]. It states:

“A co-perpetrator is a person, other than the actual perpetrator, who;

(i) Was present with the actual perpetrator during the commission of the crime; and

(ii) Who knowingly associated with the actual perpetrator (and any other co-perpetrator) with the intention that each, or any of them, will commit, or be prepared to commit, the crime actually committed.”

Basically, what the law states is that where these requirements have been met, the conduct of the actual perpetrator will be deemed also to be the conduct of every co-perpetrator.

Applying these principles to the facts of this case we note that the main ground of dispute in the case is whether the four accused persons, or any of them, are responsible for the deceased's death?

The evidence against and for each accused varies, and, consequently, the case against each must be considered, to a large extent, separately.

In our view, Simbarashe Madhubeko was an honest witness who did not exaggerate his story. He told a simple and straight forward story and was never shaken under cross-examination. In other words, he remained firm, steadfast and consistent notwithstanding intense and searching questions from the four defence counsels. Put differently, his story remained intact without any embellishments.

For example, he told the court that he did not see where Accused 1 obtained the knife from. On the evidence on record, if this witness wanted to exaggerate he could have easily said Accused 1 took the knife from his pocket thereby contradicting the accused's version that the deceased dropped the knife.

Another example is that he conceded that he did not see the deceased attacking Accused 1 with an iron bar. An untruthful witness would have said the deceased never assaulted the first accused - especially where the witness was a friend of the deceased. His version of events, as regards the sequence of events before, during, and after the stabbing remained in one shape.

That version does not establish self defence in respect of Accused 1 in that there was no time when the deceased sat on top of Accused 1. According to him, the deceased did not get that chance because Accused 2, 3 and 4 swiftly intervened by assaulting the deceased as a group until Accused 1 stabbed the deceased.

We therefore find Simbarashe Madhubeko a credible witness whose evidence we accept in toto.

On the other hand, we find Accused 1 to be an incredible witness for the following reasons:

(1) Accused 1's confirmed warned and cautioned statement is contradictory to his Defence Outline in many material respects.

As examples, he admitted, in the Defence Outline, that he stabbed the deceased twice on the chest with a knife; yet, in the warned and cautioned statement he never mentioned the knife, never mind the more important issue of stabbing the deceased. He, instead, piled the blame on his co-accused persons for the death of the deceased.

Also, in the warned and cautioned statement, he never mentioned the fact that he acted in self-defence after the deceased produced a knife or that he was intoxicated at the relevant time.

In the warned and cautioned statement he said he was assaulted once on the neck by the deceased yet in Defence Outline he said the deceased continued to assault him using open hands.

There is yet another version he gave in his evidence in chief, namely, that the deceased hit him with an iron bar on the neck and when he fell down the deceased continued to strike him on the back with the iron bar.

As if this is not enough, Accused 1 gave another totally different version under cross-examination when he said he was assaulted three times by the deceased i.e. once on the head and twice on the back.

(2) Accused 1's story is illogical in that when disowning his warned and cautioned statement he said the police assaulted him in order to compel him to admit the offence; but, when it was pointed out to him that he actually denied the offence, he changed and alleged that the police wanted him to tell them the role played by his co-accused persons.

We find this reasoning illogical and weird in that it is strange and most improbable that the police would force him to incriminate his co-perpetrators while at the same time allowing him to exculpate himself.

To the contrary, the tenor of Accused1's warned and cautioned statement is that of a person who freely and voluntarily denied the offence and incriminated his accomplices.

(3) Accused 1's story is incredible in that while he told the court that he dropped the knife at the scene it was never recovered despite an extensive search. Also, when asked why he did not report the crime to the police he gave a rather bizarre response, namely, that “his neck was swollen.”

(4) Accused 1 gave a contradictory and conflicting explanation of why he felt his life was in danger. When it was put to him that at the time he stabbed the deceased he (deceased) was no longer posing a threat to his life, his response was, he was, since the knife had not yet fallen down. Now, it is his case that he used the knife that had been dropped by the deceased.

(5) Accused 1 gave an improbable story by denying ever owning a knife in his entire life when it would be expected to own one due to the environment and circumstances he lived under i.e. in the bush.

(6) Accused 1 gave a false reason for fleeing from the scene. He said he was afraid of being assaulted. However, instead of reporting the murder to the nearest police station, Accused 1 fled to a place in Matabeleland South called Gwamanyanga in Fort Rixon.

For these reasons we make the following findings in respect of the first accused;

(1) He was not acting in self-defence when he stabbed the deceased with the knife. Rather, the accused was simply retaliating. The evidence in its totality does not prove the requirements of self defence.

(2) The deceased did not possess a knife at the time he was stabbed. The knife belonged to the accused and he took it away.

(3) The accused acted recklessly in the manner he stabbed the deceased.

(4) The accused used severe force to stab the deceased more than once.

(5) The deceased died from injuries inflicted by the accused.

(6) The deceased had earlier assaulted the accused with an iron bar.

(7) After the accused killed the deceased, he fled from the scene.

(8) The accused was not so drunk as not to know what he was doing.

Moving on to Accused 2, we find that he too was an untruthful witness. There are numerous differences between the accused's Defence Outline and his warned and cautioned statement.

In the warned and cautioned statement, he said when he arrived he saw Accused 1 grabbing the deceased by the jacket while holding a knife; yet, in the Defence Outline, he said Accused 1 lifted the deceased from the ground and the fourth accused then hit the deceased.

Also, in the Defence Outline, he said the deceased dropped a knife after he was hit by Accused 4; yet, in the warned and cautioned statement he did not mention this at all.

In the Defence Outline, he said he did not speak to the first accused at the scene; yet, in the warned and cautioned statement he said he warned Accused 1 against using the knife but he took no heed.

He also said, in his warned and cautioned statement, that he asked Accused 1, at the scene, why he was fighting with the deceased, and he said the deceased had assaulted him using a crow bar.

Further, Accused 2, in his warned and cautioned statement, said Accused 4 hit the deceased once on the back of the head and he fell down; yet, in the Defence Outline, he said Accused 4 hit the deceased twice (i.e. once on the back of the neck and once under the right shoulder).

It should also be noted that this version is different from Accused 1's version in that Accused 1 said the deceased was hit on the wrist by Accused 4.

The sequence of events in the Defence Outline is also different from that in the warned and cautioned statement.

It is highly improbable that the deceased would have engaged in a fight with an open knife in his pocket. It is also highly improbable that the magistrate would have confirmed the warned and cautioned statement if the accused had reservations. Further, it is highly unlikely that the accused would simply watch his young brother being assaulted without either stopping the fight or join in to save Accused 1.

Findings in respect of Accused 2:

(1) That he assaulted the deceased with a firebrand when he arrived at the scene.

(2) That at the time he joined in the fight, the first accused's life was not in danger as the assault by the deceased had stopped.

(3) Accused 2 acted recklessly.

(4) Accused 2 foresaw the real possibility that the deceased might be stabbed to death by the first accused.

(5) Accused 2 saw that Accused 1 was armed with a knife, but, instead of disarming him he proceeded to assault the deceased.

(6) Accused 2 was present during the commission of the crime and he knowingly associated with Accused 1 with the intention that each will commit the murder.

(7) Accused 2 intended to make common purpose with Accused 1, and others, by assaulting the deceased.

(8) The assault is a manifestation of the accused's sharing of common purpose with the other perpetrators.

As regards the third accused, our view is that while he gave a consistent version of events in the warned and cautioned statement and his Defence Outline, he minimized his role during the scuffle.

We say so because Simbarashe Madhubeko was quite categoric about what Accused 3 did to the deceased. Accused 3 accepted that he was indeed apprehended by Simbarashe Madhubeko.

According to Simbarashe Madhubeko, the third accused was apprehended because he had assaulted the deceased with a fire brand. Simbarashe Madhubeko knew all the parties well. He had ample opportunity to see what was happening. We do not believe Accused 3's evidence that he was arrested so that he would explain what had happened to the police.

For these reasons, we make the following findings in respect of the third accused person;

(1) He was present at the scene where the deceased was stabbed to death.

(2) He joined in the fight by assaulting the deceased with a fire brand.

(3) That assault is a manifestation of Accused 3's sharing of a common purpose with his accomplices.

(4) That he intended to make common purpose with his co-perpetrators.

(5) He foresaw the real possibility that the assault might kill the deceased but proceeded reckless as to the consequences.

(6) That he is an incredible witness whose evidence we reject where it conflicts with that of Simbarashe Madhubeko.

The fourth accused gave evidence in his defence.

His version is also short with some variations between the warned and cautioned statement and the Defence Outline. He said he saw Accused 1 stabbing the deceased on the chest in his Defence Outline; yet, in the warned and cautioned statement he had said it was Accused 2 who stabbed the deceased in the chest.

In the warned and cautioned statement, he said Accused 1 stabbed the deceased on the back. In his Defence Outline, he said Accused 2 and 3 hit the deceased with logs; yet, in the warned and cautioned statement, he said it was only Accused 3 who hit the deceased several times while Accused 2 stabbed the deceased with a knife on the chest.

Under cross-examination, he said he never saw the deceased wielding a knife.

He admitted that he left the scene that night and walked a distance close to 20km. What is surprising is that this is the only witness who said the deceased was stabbed by two people, namely, Accused 1 and 2. He said he was drunk when the incident occurred. It should be noted that Accused 1, 2, 3 and Simbarashe Madhubeko say they saw Accused 4 striking the deceased with a fire brand. We do not find any reason why Simbarashe Madhubeko, and the others, would falsely incriminate Accused 4.

We therefore find as follows:

(1) That he was present at the scene where the deceased was murdered.

(2) That he actively participated in the murder of the deceased by joining in the assault perpetrated upon the deceased.

(3) That assault is a manifestation of his sharing of a common purpose with the rest of the accused persons.

(4) That he intended to make common purpose with his accomplices.

(5) That he foresaw the real possibility that the deceased might be killed but proceeded nevertheless reckless as to the consequences.

(6) That he is an incredible witness whose testimony we reject wherever it conflicts with that of Simbarashe Madhubeko.

Intention to kill

The issue here is; with what intention did the accused persons commit the offence?

Actual intention occurs where an accused deliberately causes the criminal consequences. Put differently, the consequences will be his aim and object. On the other hand, legal intention, or constructive intent, or dolus eventualis occurs where an accused does not mean to bring about the criminal consequence but he engages in some activity which he subjectively foresees there is a real possibility that a criminal consequence may occur and he nonetheless proceeds with his activity, reckless as to whether or not the consequence ensues.

In casu, the first accused stabbed the deceased several times with a knife. He inflicted these injuries on the upper part of the deceased's body. From the injuries observed and recorded in the post-mortem report, the accused must have used excessive force. We say so because there was a stab wound on the heart. The weapon used is dangerous and caused lethal wounds. The deceased died from these injuries.

We note, however, that there was also an element of provocation coupled with intoxication. We find, however, that from the evidence, the first accused acted in order to revenge. As regards intoxication, we have already found that he was not so drunk as not to know what he was doing.

We therefore find all accused persons guilty of murder with constructive intent.

Sentencing re: Approach iro First Offenders

In assessing an appropriate sentence, the court will take into account the mitigating factors advanced by the accused persons' defence counsels...,. In particular, the court will consider the following factors as weighty mitigating factors;

(1) The accused persons are first offenders.

Sentencing re: Approach iro Juvenile and Youthful Offenders, Juvenile Justice & Administration of Corporal Punishment

In assessing an appropriate sentence, the court will take into account the mitigating factors advanced by the accused persons' defence counsels..., In particular, the court will consider the following factors as weighty mitigating factors;

(1) The accused persons are first offenders.

(2) They are youthful offenders....,.

As regards circumstances surrounding, the commission of the crime, it is a mitigating factor that the deceased was the initial aggressor. All the accused persons joined in to rescue Accused 1. If the deceased had not conducted himself in that manner he would not have died.

There is also the element of provocation and a strong possibility that all had taken alcohol.

Further, there was no premeditation.

However, on the aggravating circumstances, the courts have to uphold the sanctity of human life. Here, life was needlessly lost under circumstances when that could have been avoided.

The use of the knife was totally uncalled for as the accused could have stopped the fight without resorting to its use.

There is need to pass deterrent sentences in order to uproot the culture of lawlessness that has set in at gold panning sites.

Sentencing has various objects, rehabilitative and punishment. It is trite that factors can be combined to arrive at an appropriate sentence.

In casu, the court will combine these two objects of sentencing.

It is hoped that the accused will seriously consider reforming. The sentence we are going to pass is much lower than this case could have attracted had it not been for the mitigating features mentioned above. We will deduct a large portion of the normal sentence to encourage the accused persons to change their ways.

For these reasons, each accused is sentenced to 18 years imprisonment.

Court Management re: Conduct of Trials, Obligations Toward Unrepresented Accused and the Adherence to Fair Trial Rights

In assessing an appropriate sentence, the court will take into account the mitigating factors advanced by the accused persons' defence counsels...,. In particular, the court will consider the following factors as weighty mitigating factors;

(1)...,.

(2)...,.

(3) They endured pre-trial incarceration of close to 2 and a half years in circumstances where they are not to blame.

Sentencing re: Approach iro Extenuating Circumstances, Assessment of Blameworthiness & Effect on Mandatory Sentences

As regards circumstances surrounding, the commission of the crime, it is a mitigating factor that the deceased was the initial aggressor. All the accused persons joined in to rescue Accused 1.

If the deceased had not conducted himself in that manner he would not have died.

There is also the element of provocation and a strong possibility that all had taken alcohol.

Sentencing re: Approach iro Approach to Sentencing, the Penalty Provision of a Statute and the Pre-Sentence Inquiry

Sentencing has various objects, rehabilitative and punishment. It is trite that factors can be combined to arrive at an appropriate sentence.

In casu, the court will combine these two objects of sentencing.

Sentencing re: Murder iro Murder with Constructive Intent

Sentence

In assessing an appropriate sentence, the court will take into account the mitigating factors advanced by the accused persons' defence counsels and what the State counsel submitted in aggravation. In particular, the court will consider the following factors as weighty mitigating factors;

(1) The accused persons are first offenders.

(2) They are youthful offenders.

(3) They endured pre-trial incarceration of close to 2 and a half years in circumstances where they are not to blame.

(4) They are of lower interlect and unsophisticated.

As regards circumstances surrounding, the commission of the crime, it is a mitigating factor that the deceased was the initial aggressor. All the accused persons joined in to rescue Accused 1. If the deceased had not conducted himself in that manner he would not have died.

There is also the element of provocation and a strong possibility that all had taken alcohol.

Further, there was no premeditation.

However, on the aggravating circumstances, the courts have to uphold the sanctity of human life. Here, life was needlessly lost under circumstances when that could have been avoided.

The use of the knife was totally uncalled for as the accused could have stopped the fight without resorting to its use.

There is need to pass deterrent sentences in order to uproot the culture of lawlessness that has set in at gold panning sites.

Sentencing has various objects, rehabilitative and punishment. It is trite that factors can be combined to arrive at an appropriate sentence.

In casu, the court will combine these two objects of sentencing.

It is hoped that the accused will seriously consider reforming. The sentence we are going to pass is much lower than this case could have attracted had it not been for the mitigating features mentioned above. We will deduct a large portion of the normal sentence to encourage the accused persons to change their ways.

For these reasons, each accused is sentenced to 18 years imprisonment.

Expert Evidence, Opinion Evidence and Toolmark Evidence re: Approach and the Limited Expert Knowledge of the Court

Exhibit 10 was a post mortem report number 414-413-2013. The pathologist observed the following marks of violence;

1. Stab wound right chest (1cm) located 7cm from the right nipple, 7cm from mid-line, 7cm from clavicle.

2. Stab wound left chest (1cm) located 7cm from the left nipple, 7cm from midline, 7cm from clavicle.

3. Stab wound 1cm left shoulder.

4. Stab wound 1cm left back.

The heart itself suffered a stab wound in the left ventricle. Also, there was 2.7 litres of blood in the lungs. He further remarked that the postmortem is consistent with wounds caused by a sharp object.

As regards the cause of death he concluded that death was caused by:

1. Haemorrhagic shock.

2. Haemothorax.

3. Stab wound (heart).

4. Homicide.

Corroborative Evidence re: Admissions, Unchallenged Evidence, Right to Examine Witnesses & Audi Alteram Partem Rule

The State sought admissions in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07] in respect of the following witnesses;

1. Edson Mahwite.

2. Edison Masara.

3. C. Nyikadzino.

4. N. Mushangari.

5. P. Pandukai.

6. W. Muguti.

7. Dr S. Pesanayi.

There were no objections by all defence counsels and the evidence was admitted as summarized.

Findings of Fact re: Witness Testimony, Candidness with the Court and Deceptive or Misleading Evidence

In our view, Simbarashe Madhubeko was an honest witness who did not exaggerate his story. He told a simple and straight forward story and was never shaken under cross-examination. In other words, he remained firm, steadfast and consistent notwithstanding intense and searching questions from the four defence counsels. Put differently, his story remained intact without any embellishments….,.

We therefore find Simbarashe Madhubeko a credible witness whose evidence we accept in toto….,.

On the other hand, we find Accused 1 to be an incredible witness….,.

Moving on to Accused 2, we find that he too was an untruthful witness.

Murder and Permissible or Competent Verdicts re: Approach, Intent, Motive, Corpse, Cause of Death & Inquest Proceedings

Actual intention occurs where an accused deliberately causes the criminal consequences. Put differently, the consequences will be his aim and object.

On the other hand, legal intention, or constructive intent, or dolus eventualis occurs where an accused does not mean to bring about the criminal consequence but he engages in some activity which he subjectively foresees there is a real possibility that a criminal consequence may occur and he nonetheless proceeds with his activity, reckless as to whether or not the consequence ensues.

Law Portal
Zimbabwe

HB215-15 - THE STATE vs EVIDENCE RUZIVE and ADVENTURE RUZIVE and HABSON CHAMATUNGWA and SURPRISE MASHAVIRA

Evidence of Identification, Identification Parade, Tool Mark Evidence, Alias, Evidence Aliunde & the Defence of Alibi

Defence Outline, State Outline re: Approach, Testimonial Discrepancies and Prevaricative or Inconsistent Evidence

Corroborative Evidence re: Pervasive or Undue Influence, Partisan Evidence, Prejudicial Evidence and Witness Coaching

Direct and Circumstantial Evidence, Causation and Inferential Reasoning re: Key Witness, Eyewitness & Res Gestae

Application for Discharge, Evidential Deficit, Evidence Indicative of a Permissible Verdict & Prima Facie Concept

Warned and Cautioned Statements, Indications, Evidence Aliunde & Presumption of Clarity of Events Nearer Date of Event

Irrelevant Evidence, Speculative Evidence, Character Evidence, Implausible or Improbable Evidence and Rule of Relevance

Inadmissible Evidence re: Approach, Illegally or Unlawfully Obtained or Tainted Evidence and the Exclusionary Rule

Defence of Person, Self Defence, Private Defence & Defence of Necessity re: Retaliation or The Eye For An Eye Doctrine

Defence of Diminished Mental Responsibility or Diminished Capacity re: Provocation iro Approach and Self-Control

Defence of Diminished Mental Responsibility or Diminished Capacity re: Substance Use, Intoxication and Insanity

Murder re: Mob Assault, Multiple Assailants or Murder By a Group

Accessory, Accomplice, Common Purpose, Conspiracy to Commit, Co-perpetrators and Complicity re: Approach

Murder re: Murder with Constructive Intent, Foreseeability Intention, Reckless Conduct or Dolus Eventualis

Sentencing re: Approach iro First Offenders

Sentencing re: Approach iro Juvenile and Youthful Offenders, Juvenile Justice & Administration of Corporal Punishment

Court Management re: Conduct of Trials, Obligations Toward Unrepresented Accused and the Adherence to Fair Trial Rights

Sentencing re: Approach iro Extenuating Circumstances, Assessment of Blameworthiness & Effect on Mandatory Sentences

Sentencing re: Approach iro Approach to Sentencing, the Penalty Provision of a Statute and the Pre-Sentence Inquiry

Sentencing re: Murder iro Murder with Constructive Intent

Expert Evidence, Opinion Evidence and Toolmark Evidence re: Approach and the Limited Expert Knowledge of the Court

Corroborative Evidence re: Admissions, Unchallenged Evidence, Right to Examine Witnesses & Audi Alteram Partem Rule

Findings of Fact re: Witness Testimony, Candidness with the Court and Deceptive or Misleading Evidence

Murder and Permissible or Competent Verdicts re: Approach, Intent, Motive, Corpse, Cause of Death & Inquest Proceedings

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HB215-15 - THE STATE vs EVIDENCE RUZIVE and ADVENTURE RUZIVE and HABSON CHAMATUNGWA and SURPRISE MASHAVIRA

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