THE State V Jealous Mutukuri AND Chidope Mutukuri

### Preamble
1
HH 225-21
CRB 25/20
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THE STATE

versus

JEALOUS MUTUKURI

and

CHIDOPE MUTUKURI

HIGH COURT OF ZIMBABWE

CHITAPI J

HARARE, 17 June 2020, 19 June 2020, 26 June 2020 and 9 October 2020

Assessors Messrs:   Chivanda

Kunaka

Criminal Trial -Murder

S. Masokonere, for State

T S Mjungwa, for 1st accused

T F Chimbadzwa, for 2nd accused

CHITAPI J: The two accused persons are brothers. They pleaded not guilty to a charge of murder as defined in s 47 of the Criminal Law (Codification and Reform) Act, [Chapter 9:23]. The details of the charge were that, on 29 September, 2013 at Hidden Valley Farm, Mazowe, the two unlawfully and with intent to kill struck the deceased Stanley Tembo with a stone on the head thereby inflicting injuries which resulted in the death of the deceased.

Both accused elected to and filed defence outlines. The defence outline of the 1st accused was lengthy and detailed. Most of the detail however was not directly addressing the accused’s defence to the charge. The defence outline contained details of how the 1st accused had spent the whole of  the day of 29 September, 2013, including the night until his arrest on the morning of 30 September, 2013. After analysing the detailed defence outline, the bottom line and gravamen of the 1st accused defence could be said to  be that he denied having met with or seen the deceased at anytime in the period 29 September, 2013 until his arrest in the morning of 30 September, 2013. Consequently the defence outline when synthesized was to the effect that the 1st accused was about his personal business during the material time that the deceased  was murdered and had no hand in the commission of the murder. The 1st accused in summation of the defence outline outlined that he spent the greater part of the day of 29 September 2013 at home before he joined the company of his brother, the 2nd accused at Blue Ridge Bar in Mazowe where they were drinking alcohol, listening to music and watching television. They arrived around 4.00 pm and were enjoying themselves until the 2nd accused was involved in an altercation with a bar patron, John Katiye. The altercation culminated in the assault of the 2nd accused by John Katiye around 9.00pm. The 1st accused and his brother, the 2nd accused then hitch hiked to Mazowe Police Station to report the assault. They were advised to return to the Police station on the morning of 30 September, 2013 so that further investigations on the assault report could be pursued. On return from the police station, they separated and headed to their different homes. They were arrested on the following morning on 30 September as they were trying to hitch-hike to Mazowe Police. It was then that the 1st accused got to know of the death of the deceased and the 1st accused’s alleged implication in the offence which he denied. In short, the 1st accused pleaded that he had no hand in the murder of the deceased.

The 2nd accused’s defence outline was somewhat shorter than that of the 1st accused. The outline of his defence was largely similar to that of the 1st accused. He outlined as well that he teamed up with the 1st accused, his brother around 4.00pm on 29 September, 2013. They proceeded to Blue Ridge Bar to while up time drinking alcoholic beverages and to revel with other patrons listening to music and watching television. He outlined that he remained in the company of the 1st accused until around 9.00pm. A mishap occurred when he accidentally stepped on a bar patron, John Katiye who had extended his leg as the 2nd accused was making his way out of the bar to relief himself in the outside toilet. John Katiye did not take lightly to the accidental stepping on his foot and despite the 2nd accused offering his apologies. John Katiye nonetheless attacked him by pulling him by his collar, slapping and hitting the 2nd accused with fists. The 2nd accused fell down and suffered a deep cut on the head upon hitting his head on the tarmac.

After the 2nd accused was injured, him and 1st accused then decided to report the assault at Mazowe Police Station. They hitch hiked to the police station in the night and made their report. They were advised to return the following day for continued investigation of the report. They hitch hiked back from Mazowe and went their separate ways at Blue Ridge Bar bus stop. They agreed to meet a the bus stop in the morning from where they would hitch hike back to Mazowe Police Station. He was however arrested by some soldiers who asked him about the “fight and death of John Tembo, the deceased. He denied any knowledge of the death of the deceased nor any involvement with him. He was driven in the vehicle to the Blue Ridge Bar where he found the 1st accused already in the custody of soldiers and police officers. He was made to remove his shirt which was the same one which he had been putting on the previous day. He denied that he ever saw the deceased on 29 September, 2013 throughout the day and the night. The 2nd accused outlined that his shirt had blood stains whose source the police expressed an interest to investigate. He outlined that the buttons on his shirt were intact. He further outlined that the police took away his shirt  together with that of the 1st accused to the crime scene leaving both accused  a distance away. They do not know what police did with the shirts save that police returned with the shirts and buttons which they alleged to have recovered at the murder scene. He lastly outlined that him and the 1st accused denied the murder charge at the scene and averred that a police officer Constable Tembo did not take them to the scene of the murder.   The officer allegedly told them that the scene had nothing to do with them.

The issue for determination in the light of the denials by both accused was “whether or not it is the 2 accused who murdered the deceased”. Certain evidence was produced by consent. Firstly, the post mortem report prepared by a pathologist, Doctor Mapunda on 14 October, 2013 was marked exh 1. It was compiled following the examination of the deceased’s remains on 12 October, 2013 at Parirenyatwa Hospital. Significantly, the doctor in his detailed and extensive examination as evidence by the detail contained in report concluded that the proximate cause of the deceased’s death was cerebro-cronial injuries, brain oedema due to a blunt instrument. It followed that the deceased died of non natural means. In fact the deceased from a reading of the report was murdered. The issue as I have already set it out becomes, “murdered by who.” The State has the onus to prove that it is the two accused who are responsible for the fatal injuries observed on the deceased’s body.

The State counsel also produced as exh 2, one x four hole clear button and three x greenish white four hold buttons. The State counsel produced as exh 3, one light green shirt with torn collar and blood stains. Lastly on exhibits, he prosecutor produced as exh 4, one dark green shirt with blood stains. Apart from the exhibits, the accused persons made admissions in terms of s 314 of the Criminal Procedure & Evidence Act, [Chapter 9:07] of the evidence of State witness Junior Chimupi as set out in the summary of the evidence of State witnesses which was tendered as annexure A with the defence outlines for the accused being marked respectively for 1st and 2nd accused annexures “A” and “B”. The witness received a report from another witness Daniel Ndlovu around 0600 hours on 30 September, 2013 concerning the discovery of the body of the deceased. She attended the scene and found the body of the deceased lying on the ground. She made a report to the deceased parents and joined other people who gathered at the scene where the body lay.

The State then led evidence from a police officer assistant inspector Justice Musonosa who attended the scene of the murder. He was based at Mazowe Police Statin station at the time of the omission of the case involving the two accused. He attended the scene in the company of Inspector Munetse and Constable Tembo following the receipt of a report of a person discovered dead at or around Blue Ridge Shopping Centre Mazowe. On arrival, the police found a sizeable crowd which was being controlled by one Lindsay Mlambo who was holding them back to remain at the shopping centre grounds and not proceed to the scene where the deceased’s bloody lay which was about 1 kilometre yonder the shopping centre in the western direction. The witness proceeded to the scene where the deceased’s body was lying on the ground facing upwards. The deceased was dressed in a yellow party (unnamed) T/shirt and a jean trousers. He checked for pulse and found none. He noted bruises on the left elbow and a wound on the right elbow. He noted a bruise on the right side of the ribs. He noted footprints around the area. They suggested that there had been a struggle. The deceased’s jeans had dirt on the knee area. He checked around the scene and followed footprints therefrom before he recovered 3 buttons around the same spot. The buttons were some 5 metres from where the deceased’s body lay. The buttons were white in colour. He also picked up a button which still had threading round its holes showing that it had been forcibly wrenched from the cloth where it was sworn.

The witness further testified that he matched the single button  which still had threading in its holes with the shirt which the 2nd accused had been wearing and the button matched the buttons on the shirt. Additionally, the witness showed the court the opening on the shirt exh 4 from which the witness indicated that the button had been forcibly wrenched. He also matched the other 3 buttons to the 1st accused’s shirt exhibit 3. It must be recorded that there was no dispute that the accused persons had on the night of the murder been putting on the shirts exh 3 and 4. The witness also testified that apart from the buttons, the presence of blood on exh 3 and 4 raised a strong suspicion that the accused persons were linked to the murder of the deceased. The witness however admitted that the shirts were not examined by forensic experts to match the blood on the shirts to either the deceased or the accused persons. The forensic laboratory machines were reportedly down. The witness testified that he noted that the deceased’s trousers had an axe attached to the buckles. He also recovered a white stone with blood stains on it. He took the stone to station but unfortunately there was a heavy downpour of  rain which fell and cleaned the stone of little evidential value. He lastly stated that the investigations were being carried out at the scene after Inspector Munetsi had warned and cautioned the two accused.

Under cross examination by the 1st accused’s counsel the witness testified that him and his team upon arrival at the scene at Blue Ridge Shopping Centre found the accused persons already under arrest by members of the public who suspected them of involvement in the murder of the deceased. When asked at what point the witness noted blood stains on the accused’s shirts, the witness responded that it was after he had picked up the buttons and visited the scene. He noticed the blood stains on the 2nd accused’s shirt which the 2nd accused was wearing. As for the 1st accused’s shirt, the witness stated that he noted some blood stains on the front of the shirt after the shirt was recovered from the 1st accused’s house. The witness stated that he noted some blood stains on the front of the shirt after the shirt was recovered from the 1st accused’s house. The shirts, exhibits 3 and 4 were physically examined by the court. The court noted the blood stains. This witness stated that the blood stains added another ground to suspect the accused persons as the culprits apart from a report he had heard from a witness concerning an earlier interaction between the deceased and the accused person on the night of the murder. The witness professed ignorance of the alleged assault of both accused by John Katiyo but did not commit to state that there was no such assault. He did not have knowledge of the assault report allegedly made to the police by accused persons. The witness agreed that he did not find any eye witness to the murder of the deceased.

The witness clarified under cross-examination by counsel for the 1st accused that the dark green shirt, exhibit, belonged to the 1st accused and the light green shirt to the 2nd accused. The witness further denied the assertion of the 1st accused put to the witness by 1st accused’s counsel that police retrieved his shirt before attending the place where the deceased’s body was discovered. The witness stated that both shirts were taken as exhibits after the scene attendance. The shirts were not taken to the as suggested by counsel. The witness also clarified that he recovered the shirt buttons exhibit 2 prior to retrieving the two shirts.

Under cross examination by 2nd accused’s counsel, the witness stated that after a report of the discovery of the deceased’s body was received at Mazowe police station, he accompanied other officers to the scene in a police vehicle which they parked ± 1km away from the place where the accused were being held by members of the public. The witness also clarified that the 2nd accused’s shirt was collected from the 2nd accused’s house and thus, police did not order the 2nd accused to remove the shirt since the 2nd accused was not donning the recovered shirt.

The witness refused to commit to the origin of the blood stains on the 2nd accused’s shirt when it was suggested to the witness that it was 2nd accused blood from the bleeding which he experienced consequent on being assaulted by Katiyo. He also denied that the 2nd accused’s shirt had all its buttons intact when the police recovered the shirt as an exhibit. The witness testified that contrary to 2nd accused’s counsel’s suggestion that the 1st and 2nd accused were not taken to the murder scene, they were taken there by police.

The court’s assessment of the witness is that his demeanor was good. He maintained his story under cross examination as he deposed to it an examination in Chief. The cross-examination of the witness by both counsel did not elicit any knew or contradictory evidence. As to the credibility of the evidence of the evidence, the court noted that the witness stick to testifying on what he saw and did it. He conceded that he did not have direct evidence that the accused persons killed the deceased. He also conceded that he could not deny that the 2nd accused was assaulted by Katiyo nor that a report of assault was made at the police station. All in all, the court was satisfied on the credibility and reliability of the evidence of this witness and accepted it without reservation.

The next state witness was constable Tembo. He was part of the team of police details from Mazowe Police Station who attended the murder scene on 30 September, 2013. His evidence was largely similar to that of the last witness assistant inspector Musosonora. He repeated the evidence of the last witness that on arrival at Blue Ridge the police saw a group of members of the public gathered thereat. The 1st and 2nd accused were under arrest by members of the public. They were detained in a civilian motor vehicle. Members of the public made certain reports concerning what others were discussing concerning an interaction between the accused person and the deceased and one Kudakwashe, a bar man at ‘Blue Ridge Bar’. The report made the police want to interview Kudakwashe. The witness then attended the scene where the body of the deceased lay. He observed bruises on the arm and chest of the deceased. The body was also bleeding from the ears and eyes. He did not notice visible head injuries.

The witness together with Inspector Munetsi then warned and cautioned the accused persons in connection with the charge of the murder of the deceased. The rest of the witness evidence done tailed with that of the last witness and a repeat is not necessary. Notably the witness testified that the blood stains on the shirts were not examined to watch them with the deceased’s blood because the machines at the forensic laboratory were down. It also testified that beside the body of the deceased there was a fist size stone with blood stain. However the blood stains were washed away by rain, hence rendering the stone of little evidential value. The stone was not produced in evidence. The blood stains on the shirts also ceased to be evidential value in the absence of a forensic examination to match the blood stains with the deceased’s blood samples.

The 1st accused’s counsel cross examined the witness. The witness stated in regard to the arrest of the accused persons that the accused had been arrested by members of the public and were held in a civilian vehicle belonging to one Mlambo who also controlled the crowd gathered around the vehicle. When asked to comment on the assertion by the 1st accused that he was arrested by police at a bus stop, the witness commented that he did not have personal knowledge of the minute details of how the 1st accused was apprehended save that upon the witness’ arrival, both accused were under the custody of civilians.

When it was put to the witness that the accused persons had been involved in a scuffle with Katiyo and had made an assault report at Mazowe police station, the witness admitted the assertion. He however stated that investigations revealed that the deceased was attacked well after the accused had made their report of assault and left the police station. The witness also denied the accused’s assertion when it was it was put to him that the 1st accused would testify that all his shirt buttons were intact on his shirt when police recovered the shirt. The witness further responded that it was in fact the missing buttons which raised suspicion of the 1st accused’s  possible involvement in the commission of the murder because police had picked shirt buttons at the crime scene. The witness also denied the 1st accused’s assertion that the accused persons were left some 100metres away from the crime scene. He stated that the accused persons attended the scene in the company of the police.

The accused’s counsel also cross examined the witness. The witness did not dispute that John Katiyo could have been involved in an altercation with or that he assaulted the 2nd accused on the previous day. The witness reiterated his evidence that police only arrested the accused when they were already held by the members of the public. He denied that upon the arrest of the 2nd accused, the police recovered his shirt. He instead stated that on arrival at the scene, the shirts were of no immediate interest to the police. The interest only arose upon recovery of shirt buttons by the police when police investigated the crime scene. The witness further stated that the 2nd accused wore the same shirt when he visited the police station to lodge his assault report and that had the shirt been of interest to the police then, the police would have recovered it from the 2nd accused.

When it was put to the witness that the accused person never met with the deceased, the witness responded that the denial was inconsistent with the accused’s replies given at the crime scene and the discovery of matching shirt buttons to the accused’s shirt buttons. The witness denied that the 2nd accused was a victim of fabrication of evidence against him by people who hated him and resided at Blue Ridge compound. The witness stuck by his evidence that the connection between the accused persons and the murder was the evidence of matching buttons to the shirt buttons on the shirts worn by the accused person on the night of the murder. The recovered buttons were as testified to by the first state witness, 5 metres from the body of the deceased.

The assessment of the court of the witness’ demeanor was that the witness stood well to cross-examination after giving clear and easy to follow evidence which was in tandem with the evidence of the first and second state witnesses who formed the party of the police team that attended the scene. The court accepted the witness’ evidence as truthful.

The last state witness to testify was Kudakwashe Chiweza. He is a resident of the Blue Ridge compound in Mazowe. He was at the time of the murder of the deceased employed as a barman at the local Blue Ridge Bar. He testified that the deceased was his friend. In regard to events of 29 September, 2013 which are relevant to this case, he testified that he was attending on his duties when around 10:00 pm he witnessed an altercation inside the bar between the 1st accused and one John Katiyo. The two protagonists upon the witness’ prompting then left the bar and the altercation continued outside the bar and out of sight of the witness.

The witness next saw the accused persons later that night in the bar. The deceased was present in the bar as well. The 1st accused then advised the witness that the accused persons had reported John Katiyo to the police for assault. When the witness asked why the accused persons had reported the incident to the police, the 1st accused then insulted the witness in the following words “your father’s penis.” The witness asked the 1st accused why he was insulting him. At the same the deceased also interceded and asked the 1st accused why he had insulted the witness. The 1st accused then challenged the deceased and the witness to a fight bragging that the witness and the deceased would be no match against him.

The witness stated that the 1st accused and the deceased continued to argue. He then  asked them to go outside the bar. The deceased left the bar leaving the accused persons inside the bar. The witness in turn ordered the two accused to leave the bar as he wanted to close the bar. The witness proceeded to the entrance door and stood by the door whilst beckoning the two accused to leave the bar. As the accused persons were going out of the bar, the witness heard the 1st accused telling the 2nd accused that the deceased was not a problem to deal with because the deceased always visited his girlfriend who stayed at Hidden Valley Farm. The witness observed the two accused to take the direction of Hidden Valley Farm. The witness closed the bar and retired to bed.

The witness further testified that on the following day around 6:00 am he heard from people about the death of the deceased whose body was said to have been discovered off the road. The witness stated that he suspected the two accused of being responsible for the death since he had in the previous night heard them planning to way lay the deceased. He told people about his suspicions that the two accused persons were the likely suspects. It was as a result of the witness’ expressed suspicions that the people who had gathered then apprehended the 1st accused. The 1st accused was by the Harare- Bindura highway when people called to him to return to where they were gathered.

In relation to the arrest of the 2nd accused, the witness stated that he was not present at the place of arrest of the 2nd accused. However the witness stated that there were military officers present who apprehended the 2nd accused at his homestead. Upon the return of the military officers with the 2nd accused having been arrested and under their custody the group found police details having arrived at the scene and the two accused were handed over to the police. When asked whether the witness observed shirts which the accused persons were donning and whether the shirts had blood stains the witness responded that he did not observe any blood stains and that when the deceased and the accused persons left the bar, there had been no physical engagement between the parties. When asked how many patrons were still in the bar upon the return of the accused persons from reporting John Katiyo to the police, the witness responded that there were 6 patrons to include him. Others left and there remained the accused persons, the deceased and the witness before the deceased left first followed by the two accused and the witness remaining.

The 1st accused counsel cross examined the witness. The witness confirmed that the 1st accused and Katiyo were involved in an altercation. He however did not witness its exact nature because he was inside the bar whilst the altercation was in progress outside the bar. When asked to explain how the deceased and the two accused ended up in disagreement, the witness stated that upon the return of the accused persons from the police station around 11:00 pm, they came and stood by the counter waving a piece of paper bragging that it was the police report against John Katiyo. The deceased was nearby. He overheard the conversation. The deceased asked the accused why they had reported. The altercation with the deceased then issued. John Katiyo who the witness described as the witness’ friend had left upon the accused persons’ return from Mazowe Police Station. The witness estimated the police station to be some 5 – 8 kilometres from Blue Ridge Bar area and that to go to the police station, one would need to hitch hike. The witness stated that the documents which the accused persons were referring to as proof of a report made to the police was in the nature of a directive for the person involved, John Katiyo to attend at the police station on the following morning.

The witness was asked to indicate the time that the accused persons returned from Mazowe Police Station. The witness estimated the time to be after 10pm and the time the accused person left the bar to be between 11 pm – 12 midnight. When it was put to him that the 1st accused would lead evidence from witness to prove that he was home by 9.00 pm, the witness indicated that he knew the witness referred to namely Lovemore Muwani because he stayed  in same compound at Blue Ridge with the deceased parents whom the deceased also stayed with. The witness testified that upon leaving the bar, the deceased told him that he was proceeding to the Hidden Valley Farm some 1,5 kilometres away. The witness also testified that although he warned the deceased not to go to Hidden Valley Farm because of what the 1st accused had threatened to do, that is, to way lay the deceased, the deceased insisted that he would nonetheless go to Hidden Valley Farm.

The 2nd accused’s counsel asked the witness to describe the Blue Ridge Bar. The witness testified that it was a small two roomed structure which does not accommodate a lot of patrons. Patrons come into the bar to buy beer and go outside to consume the beer because of space limitation. The witness reiterated that the deceased was his close friend and they teamed up to do odd jobs for money. The witness also gave the same narration of how the altercation between the 1st accused and the deceased had started which was that the 1st accused insulted the deceased who had enquired why the accused persons had made a police report against John Katiyo who was their friend. It was put to the witness that the 2nd accused would testify that he had an altercation with John Katiyo. The witness responded that the 2nd and 1st accused had a subsequent altercation with the deceased. The deceased had during the confrontation with the two accused in the bar  also boasted that he could fight both accused persons and the two would not do anything about it. When asked whether he heard the two accused plotting to assault the deceased, the witness answered that what he heard was the 1st  accused who stayed at Hidden Valley Farm saying that since the deceased would frequent the farm to visit his girlfriend the accused would way lay her. The witness agreed that the accused persons first left the bar, had an altercation with John Katiyo, then went away and returned later that evening. They had a document from the police requesting Katiyo to attend at the police station on the following day.

The court assessed the evidence of this witness and was satisfied that the witness was truthful. Despite the deceased being his friend, the witness did not misled the court or embellish his evidence. He stuck to his story that there was an altercation involving the deceased and the accused persons followed by the 1st accused person making threats to beat up the deceased and the deceased threatening to fight back. The cross exanimation of the witness was not eventful and the witness testimony remained intact. The state closed its case.

Both deceased persons elected to testify and gave evidence on oath. There were two exhibits produced by consent by 1st accused’s defence counsel prior to the 1st accused taking the witness stand. Exhibit 4 was a witness statement by a 12 year old juvenile called Lovemore Mwale, a nephew to the deceased. The gist of the statement was that the deceased had last been seen by the witness at about 9:00 pm when he left home going to Hidden Valley Farm to visit his girlfriend. The next that the witness heard of the deceased was on the following morning when the witness learnt of the deceased’s death.

Exhibit 5 was a letter written by the Member In Charge Mazowe Police. It is dated 22 June, 2020. The letter confirmed that the 2nd accused made a report of assault at Mazowe Police Station against John Katiyo on 29 September, 2013 at 2249 hours.

The 1st accused testified that he did not know the deceased during his lifetime. He resided at Blue Ridge Farm compound. He stated that he went to Blue Ridge Bar on 29 September, 2013 in the company of his brother, the 2nd accused to while up time drinking beer. In the course of their revelling, he testified that the 2nd accused accidentally stepped on or kicked John Katiyo’s extended legs as John sat on a bench which was positioned by the corner of the bar near the entrance of the bar but within the bar. John Katiyo refused to accept an apology extended to him by the 2nd accused. This resulted in an alteration in which the 2nd accused was assaulted by Katiyo. The 2nd accused suffered a cut above the left eye whilst he, the witness, was threatened with assault in turn by John Katiyo. The 1st and 2nd accused then decided to and proceeded to Mazowe Police Station where they made a report as per exhibit 5. The report was made at 2249hours. The accused testified that the police gave them a letter for the 2nd accused to be medically examined. He returned from the police station around 0100 hours and did not go back to the bar where the alleged alteration with the deceased happened. He testified that he went to his home within Blue Ridge compound having agreed with the 2nd accused that they would meet at 7.00am at the Blue Ridge bus stop when it was light. They would then proceed to a hospital for the 2nd accused to be medically examined for purpose of investigations in the assault case. From the bus stop, the 1st accused stated that his homestead is 2 kilometres away and he took 25 minutes to walk home.

When it was light the 1st accused testified that he left his homestead at 6.40am intending to meet with the 2nd accused as agreed. As he proceeded to the bus stop, he saw people gathered about 8.00 – 9.00am from the bus stop. He get to where the mob was. He then heard someone saying that a person had been found dead. He stated that he left the mob and proceeded to the bus stop. At the bus stop, as he awaited arrival of the 2nd accused, he saw a police car carrying a coffin. The police vehicle was driven to Blue Ridge bar. He also saw the police go round the bar building with state witness Kudakwashe. He next saw Constable Tembo approaching him at the bus stop. The police officer then advised him that he should go to where people was gathered as there was certain information that the policeman wanted to verify. He was then placed under arrest and cuffed in leg irons when he enquired on the reason for his arrest, he was advised that it was because he had been involved in a commotion at the bar the previous night. He testified that a vehicle was dispatched to go and pick up the 2nd accused. Upon the return of the vehicle with 2nd accused having been picked up the two of them were then handcuffed together.

The accused testified that Constable Tembo noted that the 1st accused’s shirt had blood stains. He then stated that police wanted to test whether the blood on the 1st accused’s shirt did not match that of the deceased. He stated that him and 2nd accused were made to board the police vehicle which was driven for a distance of 100 metres from the place where the body of the deceased was. Police took the accused’s shirt to where the deceased’s body lay. Police also asked for the shirt that the 2nd accused was wearing. He indicated that the shirt was home. After collecting the deceased’s body, the vehicle was driven to the 2nd accused’s home and he collected his shirt. The accused stated that both him and the 2nd accused were taken to the police station and detained. In regard to the 1st accused having knowledge of buttons, exhibit 2, the 1st accused stated that he was seeing the buttons for the 1st time in court. He testified that at the time that him and 2nd accused were taken to the police, their shirts had all their buttons secured on the shirts.

The cross examination of the 1st accused by 2nd accused’s counsel was not eventful. The 1st accused reiterated that he was arrested at the bus stop and that upon returning from Mazowe Police Station with the 2nd accused neither of them went back to Blue Ridge bar. Under cross examination by State counsel, the 1st accused stated that he did not know the deceased. When it was put to him that the deceased also stayed in Blue Ridge compound like him, the 1st accused then testified that he stayed deep into the compound whilst the deceased’s residence was near the bus stop. He admitted that his shirt had blood stains on the left sleeve and on the front part. He explained the presence of blood as being that of the 2nd accused whom he was holding whilst helping him to walk after having been assaulted by Katiyo. The 1st accused admitted knowing the barman Kudakwashe but denied that him and the 2nd accused had an exchange of words with the deceased. The 1st accused stated that Kudakwashe had lied in relation to that. He however could not suggest any motive for Kudakwashe to lie. He denied that him and the 2nd accused were in the bar at the time that Kudakwashe alleged that he heard the deceased person plotting to way lay the deceased. He stated that him and 2nd accused left the bar around 2220 hours going to the police and that they returned at 0100 hours.

When asked how he was arrested, the 1st accused stated that he was arrested at the bus stop whilst waiting for the 2nd accused. When asked to name who arrested him, he replied that it was a soldier although in evidence in chief he stated that it was Constable Tembo who went to the bus stop and asked him to come to where the crowd was gathered. When asked how many buttons were missing from his shirt he responded that the buttons must have fallen off in court because all the buttons were on the shirt when police took possession of the 1st accused’s shirt. When shown exhibit 2 and asked whether any of the buttons matched the buttons of his shirt, he identified the white buttons. He denied the suggestion that the white button came off during his struggling with the deceased. When asked to explain the coincidence that a matching button to the one missing on his shirt was recovered near the deceased’s body, the 1st accused responded that police must have planted the button. He also queried why police did not call him to the scene for him to witness the button recovery process. He also stated that the button story was new and had not been talked about at scene. The 1st accused did not know Constable Tembo prior to his arrest. When asked how Constable Tembo identified him at the bus stop as the two did not know each, the 1st accused stated that Kudakwashe must have pointed out 1st accused to Constable Tembo. There was some cross-examination and re-examination on the making of the 1st accused’s warned and cautioned statements and whether complaints were made against the police to the magistrate. No substantive value arises from this issue because the evidence of warned and cautioned statements was not adduced.

The court’s assessment of the witness was that he was not being honest with the court and was therefore not impressive as a witness. The 1st accused testified that he did not know the deceased in his life time before changing his testimony to say that the deceased’s homestead was near the bus stop whilst the 1st accused’s homestead was within the same compound, but deeper inside the compound. The 1st accused’s explanation that police planted one button at the scene after plucking the button off the 1st accused’s shirt was improbable as to be false because if the police had intended to plant such evidence they could have planted further evidence to condemn him or even plucked out more buttons from the shirt instead of one. The 1st accused failed to suggest a motive for state witness Kudakwashe to build a case against both accused persons. The court found the conduct of the 1st accused of being uninterested to check on who had been found dead and just continuing to walk by the bus stop to be weird. It is very unusual and unnatural that a compound dweller hears about the death of someone within the precincts of the compound and the person despite the presence of other compound dwellers takes no interest to know more about the occurrence but proceeds about his business as if the occurrence is a non-event. The accused’s conduct instituted a dent of his credibility as a witness. He was indeed a poor witness whose evidence, the court found to be false on material issues of whether he knew the deceased, whether he returned to the bar from Mazowe Police Station and had an altercation with the deceased after insulting the witness Kudakwashe, his improbable explanation for the matching button recovered from the scene how he was arrested and his behaviour in the face of an alarming death which had resulted in people crowding wanting to know what had happened. The court determined that the 1st accused was shunning the truth regarding his encounters with the deceased which he distanced himself away from totally.

As regards the 2nd accused’s evidence, the details of the same were largely the same as given by the 1st accused and accordingly the evidence will not be unnecessarily duplicated. He resides at Pearson Farm which is a neighbouring farm to Blue Ridge Farm. His evidence on being in the company of the 1st accused when they went to Blue Ridge bar in day on 29 September 2013 was the same as testified to by the 1st accused. The same goes for the evidence relating to the altercation between him and John Katiyo as well as the report made to Mazowe Police against John Katiyo. The 2nd accused testified that police gave him a request for medical examination so that he would be examined on the following day on 30 September, 2013. The police indicated that they could not arrest John Katiyo until they had a medical report on his injuries.

The 2nd accused further testified that upon return from the police station he separated with the 1st accused at the Blue Ridge farm bus stop. He then proceeded to his house whilst the 1st accused proceeded to his own home after agreeing to meet at 7.00am at the bus stop the following morning so that they proceed to see the doctor for the medical report. He was however arrested by soldiers at 6.00am at his residence before he had gone to the bus stop to meet up with the 1st accused. He was taken to Blue Ridge Farm in a car and found the 1st accused in handcuffs. The two were then cuffed together using the same pair of handcuffs. They were driven to the scene but left in the car some 100 metres away from the place where the body of the deceased

was.

He testified that police ordered the 1st accused to remove his shirt. The 1st accused testified that he protested why the police wanted with his shirt. Police indicated that they wanted to compare the blood stains on the shirt with the deceased’s blood. From the scene the police drove to the 2nd accused house and collected his own shirt which he had been putting on the previous day.

Under cross examination by the prosecutor, the 1st accused’s counsel having asked an inconsequential question whether police gave the 2nd accused a request for medical examination, the accused stated that the injury above his eye was a result of falling with his face on the ground after Katiyo punched him. He stated that blood then fell on his shirt. When asked to confirm whether he agreed that the 3 green buttons exh 2 were from his shirt, he confirmed so. Asked to suggest an explanation on how the buttons came to be at the scene, he responded that buttons were on his shirt. He denied that his shirt was torn and buttons dislodged during the struggle with the deceased. He attributed the torn shirt to the struggle with Katiyo but in regard to buttons he stated that all buttons were intact or secured on the shirt and that police must have removed them and planted them at the scene to connect him to the commission of the offence. He stated that there was no reference to missing buttons when he was taken for remand hearing. When asked why police would do that since they did not know him prior to the commission of the offence, he responded that it was puzzling. There was nothing further of note which the cross examination established. The 2nd accused closed his defence case.

The 2nd accused as with the 1st accused did not impress the court as a witness. He tried all he could to distance himself from the deceased. In giving evidence, the 2nd accused did not deal with crucial evidence of whether he returned to the Blue Ridge Bar from Mazowe Police Station. He did not deal with the evidence of the alleged threats made against the deceased to way lay him on his way to see his girlfriend. The 2nd accused did not in his evidence deal specifically with the evidence of Kudakwashe the bar hand, which evidence was important in providing a motive for an attack on the deceased. His explanation that police plucked off buttons from his shirt and planted them at the scene has no foundation and no motive has been suggested for police to do that. The court formed the view that the accused was intent on distancing himself from any interactions with the deceased to avoid liability or blame at any cost. The court preferred the evidence of Kudakwashe to that of the 2nd accused.

Counsel made oral submissions to support the State and defence positions. It was common cause that there was no direct evidence of the murder of the deceased. The case therefore falls to be determined on circumstantial evidence. The law on circumstantial is well documented. Circumstantial evidence is invoked in cases where there is no direct evidence of the accused having committed the offence charged or any other competent verdict offence on that charge. The court then considers surrounding proven facts cumulatively. It is these facts which are pieces of circumstantial evidence. If upon their consideration, they lead the court to draw as the only reasonable inference from them that the accused is guilty of committing the offence charged then such guilty verdict is retained. If the court finds that it can draw an equally or more or less reasonable inference other than the guilty verdict the accused must be given the benefit of doubt and acquitted. The following decisions amongst others are instructive on the subject of circumstantial evidence; S v Kizito Mutsure HH 458/18; R v Blom 1939 AD 188 and Abrahan Mbovora v S SC 75/14.

In considering the circumstantial evidence, the court bears in mind that there is no onus on the accused to prove his innocence. The accused explanation or version of events should not be dismissed for merely being improbable. The explanation or version is only rejected if it is so inherently improbable as to be false by reasonable standards or considerations.  The explanation should be shown to be false beyond a reasonable doubt. The proven and accepted evidence by the court was that both the accused persons picked up a quarrel with the deceased after the deceased took offence at the provocative language of the 1st accused who insulted the witness Kudakwashe by referring to the latter’s father’s private parts. The accused persons were asked by the bar man to leave the bar and this was immediately or shortly after the deceased had left.  The accused persons had plotted an attack on the deceased when they discussed waylaying the deceased on his way to Hidden Valley farm where the deceased frequently visited his girlfriend. The accused persons denied having returned to the bar from Mazowe police station. The witness Kudakwashe spoke to the accused persons who were holding a document or piece of paper which they claimed to have been given by the police. There is no other reasonable explanation on how Kudakwashe would have known about the document if the accused persons had not been waving it around in the bar after their return from the police station. Whether or not the document was a request for a medical report or a note to be given to Katiyo to attend at the police station is not the real issue. The issue here was that the existence of a police generated document was not denied by the accused and it became common cause. In the absence of any other explanation for the information on the document having become known to Kudakwashe other than through the accused persons, the only reasonable inference to be drawn is that it was through the accused persons that Kudakwashe got the information implying that he met with the accused persons upon their return from Mazowe Police Station. The court having determined that Kudakwashe was a credible witness and the two accused poor witness, the evidence of Kudakwashe was preferred to the denials of the two accused.

The other evidence of significance was the recovery of the buttons which matched the missing buttons on the shirts of both accused. The accused persons had been wearing the same shirts the previous night when the deceased was murdered. The buttons were recovered some 5 or so metres from the body of the deceased. Constable Tembo testified that there were signs of a struggle having taken place. The evidence of assistant inspector Masosera regarding the recovery of the buttons was not challenged by the accused. The situation on the ground was therefore one where the deceased lay dead, there were struggle marks around the area showing that the deceased did not die a natural death, buttons from the 2 accused’s shirts are recovered at the scene in circumstances where the buttons did not accidentally find themselves at the scene. There had been an earlier altercation and harsh exchange of words made whereby the 1st accused threatened the deceased and the deceased in turn boasted that he could deal with both the accused persons. The accused persons’ denials of involvement with the deceased at any time on the date of the murder were dishonest denials made in an effort to escape liability.

The accused persons tried to make mileage out of the difference in evidence on the times that Kudakwashe testified that they were  in the bar after returning from Mazowe Police Station. The accused persons evidence was that they left the police station after making a report at 2249 hours. They then hiked back to Blue Ridge  Farm and arrived around 12 midnight  whereat they parted ways each going to his homestead. Kudakwashe stated that the accused persons returned to the bar after 10 p.m. and that he closed the bar around 11 p.m. – 12 p.m. In this regard, the court determined that time was not of the essence in the light of the evidence of recovery of the accused’s shirt buttons at the scene. The accused persons were intent of distancing themselves from the offence to the extent that the 1st accused first denied knowing the deceased before changing his evidence and agreeing that their homesteads were situated in the same Blue Ridge Way Farm compound albeit the 1st accused homestead being in the inside area of the component and the deceased’s homestead being on the outskirts of the compound near Blue Ridge bus stop.

The court was properly directed that circumstantial evidence must be construed narrowly because it is easy to fabricate. The court was properly directed by the case of S v Marange 1991 (1) ZLR 244 at 249. In the courts determination, the circumstantial facts alluded to were not fabricated because the chronology of evidence was simple and easy to follow. There was no proof of evidence manufacture or fabrication which was established on the evidence adduced in its totality. The court did not have cause to come to any other inference other than it came to because there was no other such reasonable inference arising from the facts. The accused persons did not suggest any other inference which the court could draw. The court accordingly reached the only reasonable inference to the exclusion of any others that it was the two accused on the circumstantial evidence who murdered the deceased. The post-mortem report shows that the deceased died of a head’s injury inflicted by a blunt instrument. The attackers in the court’s findings were the two accused person. They must have foreseen the real risk or possibility that the use of a blunt weapon on the deceased head could result in death but proceeded to attack the deceased in the manner they did despite their rea the existence of the risk or possibility.

Both accused person are accordingly found guilty of murder as defined in s 47 (1) (b) of the Criminal Law (Codification and Reform) Act, [Chapter 9:23].

SENTENCE

The accused persons are brothers. They teamed up in an ill-advised criminal enterprise and murdered the deceased. The motive for the attack on the deceased was nothing more than displaying an un necessary show of power that nobody can cross their paths and get away with it. The accused persons quarrelled with the deceased over an issue which should not provoke a reasonable member of society to turn violent. It was noted in the judgment that both accused and the deceased had been consuming alcohol. It is accepted that alcohol inhibits the ability of the imbiber to exercise normal composure. The accused persons and the deceased too had their faculties impaired by alcohol to some extent. The reason for holding so is that the persons involved quarrelled over an issue which should not aroused feelings of late between people. The deceased only asked the accused persons why they had insulted the State witness Kudakwashe for merely asking them why they had reported John Katiyo to the police. When people quarrel over a flimsy issue in circumstances where they have been imbibing alcohol, it is reasonable to assume that alcohol has played a part in such irrational reaction. The accused persons had been drinking beer from late afternoon and took a break when the altercation with John Katiyo occurred whereafter they proceeded to Mazowe police station to report before returning to the bar to continue drinking more alcohol.

It has also been indicated that the effect of alcohol excuses the accused’s conduct somewhat. In this case, the accused persons cannot be said to have been so affected by the alcohol as not to appreciate what they were doing and intended to achieve. They planned to way lay the deceased and they did so. They followed up on the deceased who had left the bar ahead of them. It is in the light of their ability to appreciate what they were doing and executed their plan that the effect of alcohol will not be given undue weight in assessing sentence.

It was aggravating that the two accused ganged up against the deceased. The deceased was struck on the head with a blunt object and suffered cerebro-cranial injuries and brain oedema. The injuries were suffered as a result of application of force to the vulnerable part of the body, namely, the head. The accused persons were careless in this respect in that they did not care which part of the deceased’s body to apply force on or direct their blows at.

In relation to aggravating factors listed in s 47 (2) of the Criminal Law (Codification & Reform) Act, which if present would provide a discretion to the court to pass the death sentence or if not considered appropriate, a minimum sentence of 20 years imprisonment, the facts of this case did not reveal such factors. Although it could be argued that there was an element of pre-meditation, one cannot conclusively hold that there was prior planning to commit murder. The prior planning was with regard to attacking the deceased in a show of power over a flimsy matter.

Sentence in this case will be largely informed by the need for deterrence both individual and general. The accused persons must be deterred from engaging in bullish conduct as they did. The general public should similarly be deterred from engaging in violent conduct through the sentence which the court will impose. In other words, the public will appreciate that crime will be punished adequately and refrain from engaging in conduct which may attract similar punishment.

The accused persons find themselves in a difficult position in that because of the nature of their defence of alibi, they are precluded in the absence of a confession to then address the mitigatory factors connected with the actual commission of the offence which however is an important consideration in assessing sentence. The accused’s handicap has the effect that the facts connected with or arising from the commission of the offence are taken as given by the state as the accused will not have challenged them. Accused person should be wary of this danger should they decide upon unmerited alibi and other,   “I have nothing to do with the offence defences”. If the defence fails then the aggravated facts standing unchallenged worsen the accused’s position on sentence.

The accused were convicted of murder with constructive intent. Constructive intent when coupled with the weighty mitigatory circumstances reduce the accused’s moral blameworthiness. In this case, the finding of constructive intent will be considered as mitigatory because death though foreseen as a real risk or possibility was not intended. According to police evidence, one of the accused persons expressed surprise to a police officer that the deceased had died yet they had left him alive.

On personal circumstances, both accused are first offenders. They deserve to be credited for that. It is unfortunate that they started crime at the deep end by committing a capital offence. They are both family persons, married with wives and children. They have extended family responsibilities. It is however inevitable that where a bread winner commits a serious crime and is sentenced to imprisonment, dependants and wives suffer indirectly by having to do without the provisions which the convicted accused was providing. It is for this reason that one must always reflect on his or her situation and circumstances in life before committing an offence. It is however hoped that the accused will re-join their families after serving sentence, as reformed persons who will lead useful lives and be good examples in society.

Both accused persons suffered pre-trial incarceration of 2 years give or take in custody before trial. They once stood trial but unfortunately an assessor died. They chose to have a fresh trial convened instead of continuing with one assessor. Where the accused chooses a fresh trial, he or she has to contend with inevitable delays of having the case take its turn from the queue of cases awaiting set down. It is the law that where the accused chooses a fresh trial, if he is in custody, such status remains unless bail is granted in the interim pending the new trial. The accused remained in custody by operation of law and cannot blame the prosecution.

Mr Mujungwa for the 1st accused suggested that the 1st accused be sentenced to 8 years imprisonment with 5 years suspended on conditions which he did not indicate. Counsel need to be corrected on his misunderstanding of the law. It is not permitted to suspended a portion of a sentence imposed for murder. Counsel is referred to the provisions of s 47 (4) of the Criminal Law (Codification & Reform) Act, [Chapter 9:23] as read with the provisions of s 337 and 338 of the Criminal Procedure & Evidence Act [Chapter 9:07]. The accused following a murder conviction liable to be sentenced to death, or where death is not appropriate but there are aggravating circumstances, to a definite term of imprisonment.

In this case the court is in agreement with the State counsel Mrs Masokovere that the accused persons have neither been apologetic nor shown remorse. They behaved in a manner which showed lack of remorse when they proceeded to go about their business on the morning following the night of the murder, oblivious to the existence of the death of the deceased which they caused. State counsel suggested a sentence ranging from 10 – 15 years. In our view, such a sentence would meet the justice of the case. It is accepted that whatever the circumstances which have led to this 2013 case being completed 7 years later, the fact remains that there has been this 7 years delay in the trial of the accused persons. The accused had become accustomed to leading their lives and this sentence will again interfere with that. However, the sanctity of human life overrides all circumstances of mitigation and must be emphasized at all times through the imposition of an appropriate sentence which takes into account all facts relevant to sentence determination.

In the circumstances, taking into account the nature of the offence, the circumstances of its commission, interests of society, accused’s personal interest and delay in completing the trial, a fair sentence is determined to be the following

“Each accused is sentenced to 13 years imprisonment.”

National Prosecuting Authority, State’s legal practitioners

Tavenhave & Machingauta, 1st accused’s legal practitioners

Tadiwa & Associates, 2nd accused’s legal practitioners