The State v Charles Chauluka

### Preamble
1
HB 237/22
HC (CRB) 104/22
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THE STATE

Versus

CHARLES CHAULUKA

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J with Assessors Mr P Damba and Mr O Dewa

BULAWAYO 13 AND 15 SEPTEMBER 2022

Criminal Trial

K. Ndlovu, for the state

I. Ncube, for the accused

MAKONESE J: 	On the 14th of January 2019 there were public demonstrations in the city of Bulawayo.  The deceased and other police officers from Entumbane Police Station were deployed at the intersection of Masiyephambili and Luveve Road to maintain law and order.  The deceased and his colleagues were deployed at the said location around 0700 hours.

At around 0900 hours a crowd began to gather along Masiyephambili road with some members of the public blocking the road and burning tyres.  The number of demonstrators increased as more and more people joined in.  The deceased and his unit called the Support Unit an arm of the Zimbabwe Republic Police to help in dealing with the riotous crowd.  When the Support Unit arrived the crowd dispersed with police officers using teargas.  After Support Unit members had left the mob quickly regrouped and began to block the road by burning tyres.  The deceased and other officers attempted to disperse the crowd by firing warning shots into the air and firing teargas.  The officers ran out of teargas.  The deceased and the other officers were outnumbered and defenceless.  They retreated and sought refuge in Njube suburb.

The deceased ran for his life and sought refuge at house number J 84 Njube Township.  He was spotted whilst inside the yard by the demonstrators who pounced on him and assaulted him with clenched fists, booted feet and other objects.  The deceased who lay on the ground was struck with a stone on the head and died.

The accused appears in this court on a charge of murder.  The state alleges that on the day in question, the accused, whilst acting in common purpose with other demonstrators attacked and struck the deceased Ekson Maune, a police officer with a stone on the head intending to cause his death or realizing that there was a real risk or possibility that his conduct may cause the death of the deceased.

The accused denies the charge and states that he has been wrongly implicated.

The state tendered a State Outline which is now part of the record.  It shall not be necessary to repeat the contents of the State Outline.

The accused tendered a defence outline which is in the following terms:

“The accused denies that he committed the crime of murder as alleged.  He shall state that on the alleged day he was at home when he heard of demonstrations.  He did not go anywhere near where the now deceased was being assaulted.  Furthermore he denies taking part in the assault of the now deceased.

Since 2019, the accused has been operating his vending stall at the market along Fifth Avenue in Bulawayo.  He was surprised to see police officers approaching him at his stall in April 2021 alleging that he committed the offence.  He is of the view that this is one typical case of mistaken identity.”

The state produced a Post Mortem Report compiled by Dr Roberto Lara Diaz at United Bulawayo Hospitals on 15th January 2019.  The pathologist opined that the cause of death was:

1.	Right Epidural Haemorrhage and Subdural Haemorrhage.

2.	Skull fracture.

3.	Head Trauma.

THE STATE CASE

The state led viva voce evidence from a number of witnesses.

The first witness to give evidence was Cecilia Magumeni.  She is a duly attested member of the Zimbabwe Republic Police holding the rank of Constable.  She has been in the police service for 13 years.  She is based at Entumbane Police Station.  The deceased was her workmate.  On the fateful day, she and the deceased together with other police officers were deployed at the intersection of Masiyephambili and Luveve road.  Their mission was to deal with protestors.  She observed demonstrators burning tyres and blocking roads.  A motor vehicle was burnt by the demonstrators.  As the situation got tense the officers called for back up from the Support Unit.  The Support Unit arrived and managed to disperse the crowd.  Members of the Support Unit left.  A little while later the protestors regrouped and started throwing stones at the police officers.  The police officers were outnumbered and had to retreat.  The officers ran in different directions to save their lives.  The witness ran into a certain yard in Njube.  The deceased went to hide behind a certain house in the same suburb.  The witness was seen by one of the demonstrators.  She was pulled and dragged.  She was insulted and assaulted all over her body.   She was struck on the forehead with her handcuffs. Her handcuffs were taken and she was cuffed on one hand. She started bleeding.  A certain young man came to her rescue and shielded her from the attack.  At that stage the witness identified the accused, a tall dark man who approached her as she was being attacked.  Accused posed a series of questions to her.  In particular the accused taunted the witness and asked her where her boss who was armed with a firearm had gone.  The witness indicated that she was not aware of his whereabouts.  The accused went on to ask the witness how much she earned and why she was firing teargas at them when they were trying to help them.  The accused spoke in isiNdebele.  The witness was able to clearly see the accused as she spoke to him.  The witness stated that she was not mistaken about the accused’s identity.  As the assaults continued, one of the protestors suggested that they should throw the witness into the burning car near the robots so that they would be taken seriously.  At that stage, a certain young man, short in stature but well- built took her away and rescued her from the marauding crowd.  The good Samaritan turned out to be the next state witness Blessing Timburwa.  The witness managed to escape from the scene with the assistance of Blessing.  This witness could easily have died at the hands of the demonstrators.  The witness was subjected to extensive cross-examination.  She maintained that she identified the accused at the scene.  She was very close to the accused as she spoke to him.  She managed to notice that accused was a tall dark man, and he stood out amongst the mob because of his height and complexion.  The witness was not contradicted in cross-examination.  We found her to be a credible witness.  She had no motivation to lie against the accused.  She was not known to him prior to this offence.  The witness conceded that she did not witness the assault on the deceased as she fled the scene after her terrifying experience.

BLESSING TIMBURWA

The second state witness Blessing Timburwa gave evidence and confirmed that he is a resident of Njube Township.  He is not employed.  On the day in question he was advised by a neighbor that there was a group of people chasing police officers.  The witness left his house to observe what was happening.   The witness testified that he saw a lady police officer being assaulted by the mob.  He got in between the group of people who were assaulting the officer and wrestled her from the assailants.  He used his hands to shield her from the attack.  He pleaded with the mob to stop assaulting a woman.  One of the assailants enquired whether the officer was his wife.  As the commotion persisted, the witness observed that there was another group of men assaulting another police officer.  At that point someone shouted saying there was looting going on at Entumbane Shopping Complex.  The attention of the attackers was divided as some dashed towards the shopping centre.  The witness took advantage of this confusion and escaped from the scene with the police officer who is the first state witness.  The witness confirmed that he saw the accused amongst the group of assailants that had targeted Cecilia Magumeni.  This witness indicated that he knew the accused prior to this incident.  He went to the same school with accused and he used to meet him at social soccer events.  The witness indicated that he knew the accused well and knew him by his nickname as “Bibi”.  He was however not on talking terms with the accused.  The witness indicated that he had no reason to lie against the accused.  He confirmed that he did not witness the attack on the deceased that led to his death.  The witness later identified the accused person at an identification parade.

This witness was cross-examined at length by defence counsel.  The witness maintained his version of events.  The witness conceded that he did not witness the attack on the deceased as he was concerned with rescuing the first witness.  The evidence of this witness places the accused at the scene of the crime.  The witness could not have been mistaken about the identity of the accused as he knew him prior to the incident.  We have no reason to doubt the version of events as narrated by this witness.  We found him to be a credible witness.  His evidence was not controverted under cross examination in any material respects.

SITHABILE MHLANGA

This witness resides at J 84 Njube Township.  She is a vendor.  She recalled that on the day in question there were demonstrations in her area.  Her late husband advised her to stay indoors.  At around 1100 hours she heard commotion outside.  Two young men entered her house with empty containers looking for water.  They claimed that they had been teargassed by the police.  The witness later learnt that someone had been apprehended at the back of her yard.  The witness went outside to inquire.  She observed that a man who later turned out to be the deceased was being assaulted by a mob of protestors.  The men was being assaulted all over the body with fists, booted feet and all manner of objects.  A tall dark man arrived at the scene.  He picked up a stone with both hands and struck the deceased who was lying on the ground.  Some people poured water over the deceased to try and bring him back to life.  The accused person who had struck the deceased with a stone left the scene and melted into the crowd.  The witness managed to identify the accused because he stood out of the crowd because of his height.  The witness was certain that accused was the person who delivered the fatal blow.  The peculiar features about the accused were his height and dark complexion.

This witness was taken to task under cross-examination.  She was adamant that she saw the accused striking the deceased with a stone on the head.  The witness was able to demonstrate how the accused had lifted the stone and crushed the head of the deceased who lay on the ground.  The witness was invited to an identification parade where she was able to identify the accused.  There were twelve people on parade and she was able to pick out the accused.  This witness had no reason to lie against the accused.  She says that she had the accused under observation for about ten minutes when the commotion broke out.  We found the evidence of this witness to be consistent, credible and reliable in all material respects.

DOUGLAS MAGANIWA

The state then led evidence from Detective Assistant Inspector Muganiwa.  He is a duly attested member of the Zimbabwe Republic Police attached to the Minerals, Flora and Fauna Unit.  He has been in service for 18 ½ years.  On the 25th of April 2021 he was requested to conduct an Identification Parade in connection with this matter.  The witness narrated how he conducted the parade.  He informed the suspects that they had a right not to participate in the parade if they they did not wish to do so. He advised them of the right to legal representation.  Muganiwa confirmed that the accused was identified by Blessing Timburwa and Sithabile Mhlanga.  After the parade the witness enquired whether the accused had any complaints regarding the parade.  The accused indicated that he was not happy that Blessing had been called to identify him and yet he was known to the witness prior to the murder investigations.

Under cross-examination the witness remained steadfast that he had conducted the identification parade in a proper manner.  The witness pointed out that if the accused had any other complaints about the manner the parade was conducted, he would have said so.

The evidence of this witness was clear and credible.  The witness was not contradicted under cross-examination.  His evidence is credible and reliable.

ROY MUSHAYI

The last witness to give evidence for the state was Detective Sergeant Mushayi.  He is a duly attested member of the police service who has served the force for 16 years.  The witness was the Investigating Officer in this case.  He took over investigations from Detective Constable Mukwiti who had been deployed to another Police Station.  On the 24th of July 2021 the witness proceeded to the corner of 5th Avenue and Jason Moyo Street in Bulawayo, to effect an arrest upon the accused.  The witness was in the company of Sergeant Madzivire, Sergeant Chaparira and Detective Constable Zhou.  Upon his arrest the accused was taken to the Police Station where he was interviewed.  This witness testified that upon his arrest the accused never raised the defence of alibi.  The witness stated that his first time to learn about accused’s alibi defence was in court.  The witness indicated that he had no reason to fabricate evidence against the accused.

The witness remained unshaken under cross-examination.  His testimony was of a formal nature and is consistent and credible.

The state applied to have the evidence of Nomagugu Moyo, Detective Constable Mukwiti, Sergeant Mapako and Mildred Mawera expunged from the record.  The state indicated that for various reasons it was not possible to lead evidence from these witnesses.  The evidence of the pathologist, Roberto Lara Diaz as it appears in the outline of the state case was admitted into the record in terms of section 314 of the Criminal Procedure and Evidence Act (Chapter 9:07) with the consent of counsel for the defence.  The state closed its case.

DEFENCE CASE

The accused elected to give evidence under oath.  The accused denied any involvement in the murder of the deceased.  He stated that on the day in question he was alerted that they were demonstrations at Masiyephambili road.  The accused went out to see what was going on.  He watched the demonstrators briefly and at around 9 am he went back to his house where he spent the day.  Accused stated that he is familiar with “J” square area of Njube, where the murder occurred.  Accused was never at or near that location on the day in question.  Accused maintained that he was wrongly implicated in this murder and that this was a case of mistaken identity.  The accused confirmed that he was known to Blessing Timburwa.  He knew him since 2010.  He denied attending the same school with Blessing.  He admitted that he used to see Blessing around the Njube area.  The accused maintained that Blessing was lying against him as he was never at the scene of the offence.  The accused admitted that his alias was “Bibi” but suggested that there was someone else with the same nickname in the area.  Accused took issue with Blessing taking part in the identification parade as he was known to him before the investigation of the murder.  The accused denied coming into contact with the first state witness Cecilia Magumeni.  Accused stated that Magumeni was mistaken about the identity of the person who confronted her at the scene.  The accused denied that Sithabile Mhlanga had seen her at her house on the fateful day.  Accused indicated that he was being implicated simply because of his height.  Accused stated that at the identification parade he was the only tall person at the parade.

Under cross examination the accused failed to proffer any explanation why the witnesses, Magumeni, Sithabile Mhlanga and Blessing would all concoct a story against him.  None of the state witnesses had an axe to grind with the accused.  The accused failed to explain why he had not indicated to the police his alibi defence at the earliest opportunity.  Accused’s defence outline amounted to a bare denial.  His oral evidence sounds hollow as he failed to explain why witnesses who did not know him prior to this offence would seek to fabricate false allegations against him.  One striking feature of the evidence is that at the end of Sithabile Mhlanga’s evidence she indicated that the accused had visited her home after his release on bail and made threats against her.  The witness asked the court to assure her that the accused and his associates would not harm her.  In his defence case the accused had the opportunity to deny or explain these allegations.  He remained silent about such serious allegations.  Sithabile Mhlanga gave a graphic description of the manner in which the accused had struck the deceased with a stone.  In giving evidence, the accused was content to stick to his alibi defence without explaining why Sithabile would make such detailed allegations on his involvement.  We reject the evidence of the accused as being false.  The accused was not a credible witness and his version of events cannot be believed.

ANALYSIS OF THE EVIDENCE

Whether the accused was at the scene of the offence

The first issue for determination is whether there is adequate evidence to show that the accused was at the scene of the alleged offence.  The evidence of Blessing Timburwa is vital.  The witness could not have been mistaken about the identity of the accused.  He knew him well prior to this offence.  The accused admits that the two were known to each other.  The accused must have been at the scene where Magumeni was assaulted and attacked by members of the public.  Magumeni spoke to the accused.  The accused asked the first witness a series of questions.  The accused and Magumeni were a few metres apart as they spoke.  The witness had sufficient time to observe the accused.  The evidence of Sithabile Mhlanga places the accused at the scene of the crime.  The witness spoke of this tall, dark man who came to the scene almost at the tail end of the assault of the deceased.  Sithabile Mhlanga described clearly the role played by the accused.  The witness could not have been mistaken about his identity because she says he stood out of the rest of the mob because of his height.  She observed the accused for at least 10 minutes.  She was able to identify the accused by his facial features. She stood a metre or two from the accused.

Whether the evidence of identification was adequate

The defence suggested that there was reasonable doubt as to whether the accused was properly identified.  The law on identification is now well settled in this jurisdiction.  In Sate v Vhera 2003 ZLR 668, it was held that a witness’s recollections of a person’s appearance must be supported by other evidence.  The accuracy of the evidence depends on a number of factors such as lighting, visibility, eyesight, proximity of the witness, the opportunity for observation, both in relation to time and situation, the mobility of the scene, corroboration, suggestibility, the accused’s face, voice, build, gait and dress.  The results of identification parades are also taken into consideration.  In this matter the court makes a specific finding that the identification by Magumeni is reliable.  She was in close proximity to the accused.  She spoke to the accused.  She had the accused under observation during the time she spoke to him.  She recognized him by his facial features, height and complexion.  The court also makes the finding that Blessing who knew the accused prior to this offence and saw him at the scene could not have been mistaken. Not much should be made of Blessing’s evidence regarding the identification parade. He was known to the witness before the incident. His evidence is therefore colorless on this aspect. There is sufficient corroboration in the evidence of Sithabile Mhlanga who saw the accused at close range.  What drew the witness’s attention was the fact that accused took the stone and crushed it onto the deceased’s head.  The events as described by Sithabile Mhlanga could only have been perceived by someone who was at the scene.  The identification by Sithabile is reliable.

In Tinashe Munyayi v The State HMT 87-20, the court held that the defence of alibi must be properly probed by the state once mentioned by the accused upon his arrest or when he provides his statement to the police under warn and caution.  The court is entitled to reject the defence of alibi where this has been disproved by the state.  In this matter the alibi defence is raised by the accused several years later and at his trial.  No mention of this defence was raised during the investigations, depriving the state the opportunity to probe this defence.  Where an accused person does not raise the alibi defence during investigations he cannot expect the court to probe and examine such defence during the trial.  As mentioned earlier in this judgment the accused’s defence outline amounts to a bare denial.  The court finds that the defence of alibi is merely an afterthought and not a serious defence to the allegations.

The applicable principles of law

The state is required to prove the case against the accused beyond reasonable doubt.  An accused bears no onus to disprove his guilt or otherwise.  In order to be acquitted, the version of the accused need only to be reasonably possibly true.  See State v Makanyanga 1996 (2) ZLR 231; and R v Difford 1937 AD 370.  The court is not entitled to convict unless it is satisfied that the accused’s explanation is not only improbable but that beyond reasonable doubt, it is false.

In this matter it is our view that the state succeeded in proving the guilt of the accused beyond reasonable doubt.  The accused was observed delivering what was possibly the fatal blow by Sithabile Mhlanga.  The injuries observed by the pathologist are consistent with the attack to the head with a stone.  The Post Mortem revealed that the cause of death was:

Epidural haemorrhage and Subdural haemorrhage

Skull fracture

Head Trauma

The accused acted in common purpose with the mob of attackers.  His role in the attack is clearly defined.  After he threw the stone at the deceased the attackers dispersed.  Some few persons poured water on the deceased in a bid to revive him.  The accused must have realized that his conduct could cause the death of the deceased.  From the narration by Sithabile Mhlanga, the accused’s role and proven intention was to bring about the death of his victim.

In the result, we conclude that the accused is guilty of murder as defined in section 47(1) (b) of the Criminal Law Codification and Reform Act.

Sentence

The accused has been convicted of a very serious offence.  In assessing an appropriate sentence the court shall take into consideration all the mitigating features of the case as narrated by Mr Dhliwayo, appearing for the accused.  The accused is a first offender aged 29 years.  At the time the offence was 26 years old.  The accused is a family man with two young children.  He is the sole breadwinner for his family.  Any custodial sentence this court shall impose will have far reaching consequences on the accused’s family.  As regards the circumstances surrounding the commission of the offence, accused’s defence counsel was at pains to articulate any mitigating factors.  The murder of the police officer was a culmination of violent demonstrations that engulfed the City of Bulawayo on the 14th of January 2019.  The demonstrators went on a rampage burning buildings, motor vehicles, looting shops and attacking police officers.  Mr Dhliwayo reluctantly conceded that the murder was committed in aggravating circumstances.  In terms of section 47 (3) (b) of the Criminal Law Codification and Reform Act, the killing of a police officer constitutes murder committed in aggravating circumstances.

Mr K Ndlovu appearing for the state argued that the murder of a police officer who is sworn to protect members of the public is a serious offence.  I am in agreement with the observations by counsel for the state.  The events leading to the brutal death of the police officer can only be described as unfortunate.  The accused and his accomplices acted as a law unto themselves.  They chased down and hunted police officers like trophy hunters.  Once they caught up with the deceased they dragged him, kicked him with booted feet, attacked him with clenched fists and used all manner of objects to assault him.  As the officer lay on the ground helplessly, the accused appeared at the scene, took a stone which he lifted with both hands and crushed it onto the head of the deceased.  The accused left the scene as if nothing had happened.  The Post Mortem Report reflects that the deceased died as a result of injuries to the head.

The accused delivered what was possibly the fatal blow.  The deceased had no chance of survival with a skull fracture described in the Post Mortem report.  The most disturbing feature of this case is that the accused showed no flicker of remorse throughout the proceedings.  He maintained a false defence and denied the allegations to the end.  His conduct shows a high degree of moral blameworthiness.  The only mitigatory feature of the case is that accused spent 3 months in remand custody before his release on bail and that this case has been hanging over the accused since 2019.

The murder of a police officer who is on duty is viewed very seriously by our courts.  The public will lose respect and confidence in the administration of justice where those sworn to protect and defend the citizens are killed in such brutal fashion.

The sentence this court shall impose should reflect that these courts view seriously the loss of human life in circumstances such as these.  Any life that is lost at the hands of another person cannot and must never be condoned by the courts.

In the result the following sentence is deemed appropriate:

“The accused is sentenced to 25 years imprisonment.”

National Prosecuting Authority, state’s legal practitioners

Messrs T Hara and Partners, accused’s legal practitioners