THE State V Vengesai Pepukai

### Preamble
1
HMA 12-19
CRB 10/19
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THE STATE

vs

VENGESAI PEPUKAI

HIGH COURT OF ZIMBABWE

MAWADZE  J

MASVINGO, 8 February and 15 March 2019

ASSESSORS.

1.	Mrs Chademana

2.	Mr Mushuku

Criminal Trial

Ms M. Mutumhe for the State

F.R.T. Chakabuda for the Accused

MAWADZE J:  This case is an epitome of a poorly investigated case. As a result the trial became tedious as it was characterised by irrelevant State witnesses. The incident in this case occurred in bar in which there were about 25 local people but the Investigating Officer could not record any statement from all these witnesses save from the barman who had not actually seen what happened.  To make matters worse this Investigating Officer one Sgt. Ngonidzashe Nhukarume seemed clueless of what was expected of him in such a serious case and ended up conceding in court that he was giving misleading or false evidence.

The 38-year-old accused was arraigned before us facing the charge of murder as defined in s 47(1) of the Criminal Law (Codification and Reform) Act [Cap 9:23] (The Criminal Code). The charge being that on 6 October 2018 inside Musarira bottle store at Fusira business centre, Nyajena, Masvingo the accused fatally stabbed the then 27-year-old deceased Peter Musariri on the neck with a sharpened iron bar.

The accused and the now deceased were well known to each other as their villages were about 10 km apart. The accused resides in Pepukai Village, Chief Nyajena, Masvingo whilst the now deceased was a resident of Muretsa Village, Chief Nyajena, Masvingo.

Sometimes in 2014 the now deceased fell in love with the accused’s wife whom he married. Further the now deceased refused to pay any compensation for wrecking the accused’s customary law union in which a female child was sired. To add salt to injury the now deceased refused to apologise.

The State alleges that on 6 October 2018 the now deceased passed through the accused’s homestead and threw stones at the homestead at about 0700 hrs.

Later in the evening around 17.00 hrs accused went to Musariri bottle store at Fusira business centre where he saw the deceased. The accused is said to have went back to his residence where he obtained a flat sharpened iron bar and went back to Musariri bottle store. It is alleged that the accused proceeded to stab the now deceased with the sharpened iron bar in the neck after which the accused fled. The now deceased is alleged to have staggered out of the bottle store with the sharpened iron bar stuck on the right side of his neck. It is alleged that when the now deceased removed the sharpened iron bar he fell down, bled profusely and died as a result of the excessive bleeding.

The accused gave a long and winding Defence Outline which is difficult to follow. The accused said the now deceased in 2014 impregnated the accused’s wife and sired a girl child Ivy when accused was employed at Gokomere Mission. The accused said the now deceased refused to pay any compensation or to apologise for his conduct. As a result, the accused divorced his wife. He said the now deceased and his family members are of a violent disposition.

Relating to the events of that day the accused said the now deceased went past accused’s homestead and verbally insulted the accused after which he threw stones with one hitting the accused on the thigh and the other landing on the roof of his hut. The accused said the now deceased threatened to stab the accused with a sharpened iron bar.

Later that day the accused said he proceeded to Musariri bottle store where he played snooker. The accused said the now deceased again confronted him inside the bottle store and a fight ensued. The accused said he used fists but the now deceased was armed with a sharpened iron bar. The accused said he held the iron bar to prevent being stabbed resulting in the accused and the now deceased wrestling over the iron bar. The accused said during that process the now deceased was mistakenly stabbed on the right side of his neck after which he fell down. The accused said due to fear he fled from the scene and advised his relatives what had happened including the local village head and a member of the local police constabulary. The accused said he was arrested the following day before he had reported the matter to the police.

All in all, the accused denies the charge of murder but admits to one of culpable homicide saying he negligently caused the now deceased’s death.

The cause of the now deceased’s death is common cause as per Exhibit 1 the post mortem report compiled by Doctor Zimbwa whose evidence was accepted in terms of s 314 of the Criminal Procedure and Evidence, Act [Cap 9:07].

The now deceased had a 10 cm deep stab wound which was about 2 cm wide on the right side of the neck, the carotial area. As a result, the now deceased lost massive amount of blood. The death of the now deceased was therefore as a result of haemorrhagic shock arising from the stab wound.

The fatal stab wound was inflicted with a sharpened iron bar Exhibit 3 whose details as per weighing certificate Exhibit 2 shows that the sharpened iron bar is 50 cm long ad if weighed 300 g.

The narrow issue this court has to resolve is how the now deceased was fatally injured and the availability of any defence to the accused.

In resolving this dispute, we shall consider the evidence of the State witnesses and that of the accused in order to make a finding of fact.

As already said the evidence of Clemence Makore, Elizabeth Samangura and Doctor Zimbwa is common cause and was admitted in terms of s 314 of the Criminal Procedure and Evidence, Act [Cap 9:07].

Pedzisai Madzokere, Maggie Munetsi, Cst Nyikahadzoi Zorwai, Perekai Makove, Sgt Ngonidzashe Nhukarume all gave viva voce evidence. Although largely immaterial we shall summarise this evidence solely for purposes of completeness of the matter. It is as follows;

Clemence Makove (Clemence)

The accused is a son to Clemence’s brother. Clemence’s evidence is that on 6 October 2018 at around 1700 hrs the accused came to his homestead to report that he had stabbed and injured the now deceased in the neck with an iron bar. As a result, the accused said he was going to report to the local member of the Police Constabulary and police at ZRP Renco Mine. Clemence advised the accused to do likewise.

Elizabeth Samangura (Elizabeth)

Elizabeth regards the accused as a nephew. Her evidence is that on 6 October, 2018 at about 2030 hrs the accused came to her homestead looking for her husband a member of the local Police Constabulary. She said the accused then revealed to her that he had injured the now deceased at Fusire business centre by stabbing him. The accused further told her that he, the accused, was doubtful if the now deceased would survive. Elizabeth said the accused promised to proceed to ZRP Renco the following day after which he left.

Dr. Zimbwa

As already said Doctor Zimbwa examined the remains of the now deceased and authored Exhibit 1 the post mortem report whose findings are not in issue.

We now turn to viva voce evidence.

Pedzisai Madzokere (Pedzisai)

Pedzisai had recently been employed as a barman in Musariri bottle store at Fusira Business centre when this tragic incident happened on 6 October 2018 at around 1700 hrs. He was few days old in that area and was not known to both accused and the now deceased.

Pedzisai said as he was serving customers in the bottle store his attention was drawn by the now deceased’s hat which fell on to the counter. This caused Pedzisai to lift his head. At that stage he observed that the now deceased who was near the counter had been stabbed with a sharpened iron bar Exhibit 3 on the right side of the neck. The iron bar was still stuck in the now deceased’s neck. All the patrons in the bar fled in fear as the now deceased also staggered out of the bottle store. Pedzisai said the deceased removed the iron bar and was bleeding profusely as he fell just outside the bottle store. Pedzisai closed the bottle store and alerted the owner of the bottle store but by then the now deceased had died.

Pedzisai was clear that he did not see how the now deceased was actually stabbed. However, the value of Pedzisai’s evidence is that there was no altercation, struggle or wrestling which occurred inside the bottle store between the accused and the now deceased before the now deceased was fatally stabbed. This is clearly contrary to the accused’s evidence. We find no reason why Pedzisai would mislead the Court in that regard. As a result, we therefore accept his evidence.

Maggie Munetsi (Maggie)

Maggie regards the now deceased as a brother to her son in law and knew accused as a local person.

On 6 October 2018 Maggie said she was walking past Musarira bottle store when her attention was drawn to the oozing sound of blood coming from the injured now deceased who was just outside the bottle store. She rushed to where the now deceased was and observed blood gushing out from his neck. The now deceased reported to her that the accused had fatally injured him. Maggie said the now deceased tried to sit up but he collapsed. A police detail arrived but failed to stop the bleeding. The now deceased died immediately. Maggie’s evidence is unchallenged.

Cst Nyikahadzo Zorwai (Cst Zorwai)

Cst Zorwai is the police detail who arrived where the now deceased and Maggie were outside Musarira bottle store. He observed the now deceased removing Exhibit 3 the sharpened iron bar stuck on the now deceased’s neck. The now deceased was bleeding profusely and he failed to stop the bleeding. The now deceased passed on. His evidence is not in issue.

Perekai Makove (Perekai)

Perekai regards the accused as her brother’s son and her husband is the village head of the village in which the accused resides. She said on 6 October 2018 at about 1900 hours the accused arrived at her homestead looking for her husband the village head. She told accused that the village head had already retired to bed. The accused then told her that, he, the accused, had killed the now deceased and wanted to advice the village head. She was visibly shocked by the report. The accused then left saying he was going to advise the local Police Constabulary. Again the evidence of Perekai is unchallenged and we find no reason as to why she would falsify the report she received from the accused. It is the accused who actually came to her homestead and she did not know what had happened at the local business centre or befallen the now deceased. That news was brought to her by the accused on his own accord.

5. Sgt. Ngonidzashe Nhukarume (Sgt Nhukarume)

Sgt Nhukarume is the Investigating Officer in this matter. As already stated at the commencement of this judgment his investigations were very shoddy to say the least. To make matters worse he admitted that he was giving false evidence in court by alleging that Pedzisai had told him that he, Pedzisai, had witnessed how the now deceased was stabbed.  We found no plausible explanation as to why he failed to record statements from about 25 local people who were inside the bottle store when the now deceased was fatally stabbed and chose to rely on the evidence of the barman Pedzisai who was busy serving customers and had not seen how the now deceased was stabbed! Worse still it turned out that all the evidence he gave in this case from the allegation that the now deceased had impregnated the accused’s wife siring a child, that the now deceased refused to apologise or pay any compensation and the alleged events of that day that the now deceased had passed through the accused’s homestead throwing stones, is what he was told by the accused. Sgt Nhukarume never sought to cross check or verify accused’s story with anyone or to seek its corroboration. Instead he admitted that he simply took the accused’s version of events as the gospel truth without lifting an eyelid. It is simply shocking that a police officer, a Sergeant of his experience would have such a poor appreciation of what basic police investigations entail more so in such a serious case like murder. To cap it all he decided to lie under oath. We found nothing of value from his evidence.

The accused’s evidence

In our assessment the accused was not a truthful witness in explaining how the now deceased was fatally injured. Why do we say so?

In his confirmed warned and cautioned statement Exhibit 4 the accused was clear that it is him who stabbed the now deceased. In that statement the accused said his conduct was motivated by the fact that the now deceased had impregnated the accused’s wife who had given birth to a girl child called Ivy when the accused was working at Gokomere. The accused in that statement also said the now deceased had thrown some stones at the accused’s house that day. What is critical to note is that in that statement the accused did not refer to any fight or altercation inside the bottle store before the now deceased was fatally stabbed. In fact, the accused does not even allege that the sharpened iron bar belonged to the now deceased let alone that they wrestled over this iron bar.

In his defence outline the accused had a different version. His version is that the now deceased was fatally stabbed by mistake as they wrestled over the iron bar. This is a complete departure from his confirmed warned and cautioned statement.

In his evidence in chief and under cross examination the accused had yet another version. He seemed to say the now deceased fell on to his (now deceased’s) own sharpened iron bar and was fatally injured which implies that the accused played absolutely no role in how the now deceased was actually fatally stabbed.

Another surprising feature of the accused’s evidence is that when he proceeded to tell other people who are his relatives what had transpired his version was that he had “stabbed” the now deceased or that he had “fatally injured the now deceased” or that he “had killed” the now deceased and intended to hand himself to the police. If indeed the now deceased had been stabbed by mistake or had simply fallen on his own sword why would the accused fail to simply say so? There is no reason as to why the accused’s own relatives would falsify what he told them. They have no motive to lie.

It is even amazing that the accused tenders a limited plea to the charge by accepting the offence of culpable homicide. If the now deceased fell on his own weapon or was stabbed by mistake why then would the accused accept that he had a hand in that by negligently causing his death? Such a stance taken by the accused is clearly illogical.

Another thread which seems to run throughout the accused’s evidence is the defence of provocation. This can be gleaned from the allegation accused makes that the now deceased impregnated his wife and sired a child, that the accused on the fateful day went to accused’s residence where the now deceased verbally insulted the accused and threw stones and him hitting him and his house and how the now deceased who had neither paid compensation nor apologised for his transgressions had attacked the accused inside the bottle store.

Later on in his evidence the accused seemed to have shifted gear alleging that he acted in self-defence when he stabbed the now deceased not that he was provoked or that it was an error.

At the end of the day the question we have asked ourselves therefore is what is the accused’s defence to this charge? Is it the defence is provocation as provided for in s 239 of the Criminal Code [Cap 9:23]? Is it the defence of self-defence as provide for in s 253 and s 254 of the Criminal Code [Cap 9:23]? Could it be that the now deceased fell on his own sword and is the author of his own demise? Was the now deceased fatally injured as a result of a mistake for which no criminal liability attaches to the accused? What would be the basis upon which the accused tenders a plea of guilty to the permissible verdict of culpable homicide given accused’s evidence on how the now deceased was fatally injured?

Our view is that the accused simply wants to put this Court on a wild goose chase by throwing whatever defence he can conjure up. We cannot chase the wind. The simple reason why the accused cannot outline a consistent defence is that he is being untruthful. Surely he cannot fail to explain why and how the now deceased was fatally injured in his presence. On that basis we are inclined to dismiss his evidence without much ado. It would be foolhardy for us to even start to consider the requirements of each of these defences at law.

After carefully weighing the evidence it is our finding that it is the accused who fatally stabbed the now deceased. It is clear that the accused proceeded to the bottle store armed with a sharpened iron bar. His motive was to attack the now deceased presumably for some grudge he harboured in relation to his alleged wife’s infidelity. Our finding is that the accused stealthily approached the now deceased and stabbed him in the neck leaving the sharpened bar stuck in the neck. Thereafter the accused fled. The degree of force used was very high as the sharpened iron bar caused a wound about 10 cm deep and 2 cm wide. The accused targeted a vulnerable part of the body being the neck. Consequently, the now deceased bled profusely and lost a lot of blood. He died immediately. Our finding is that the accused through his conduct desired to bring the now deceased’s death. He clearly intended to kill him. In the result we find that the accused contravened section 47(1)(a) of the Criminal Code [Cap 9:23] relating to murder with actual intent.

VERDICT: Guilty of contravening section 47(1)(a) of the Criminal Law (Codification and Reform) Act [Cap 9:23] – murder with actual intent.

SENTENCE:   The offence of murder with actual intent invariably attracts a lengthy custodial sentence.  The reason for this is that an accused person’s moral blameworthiness in such circumstances would generally be very high.

In your case whatever motivated your conduct is diluted by the lies which you peddled before this court and in the process proffering unreasonable and false defences.  This confirms your lack of contrition.

From the facts of this matter and the findings of facts which made the now deceased die a very painful death.  You literally slaughtered him like an animal in broad day light in the presence of other patrons in a bottle store.  The level of cruelty you exhibited is beyond measure.  After committing such a heinous act you simply turned away and left without offering any form of help.  Such callousness makes this court wonder how a fellow human being can treat another in such an un feeling manner.

If the now deceased had indeed committed adultery with your wife in 2014 would a rational person wait for 4 years before seeking to punish the paramour?  There is no doubt that you were brutal and used severe force to attack the now deceased.

The sharpened iron bar was indeed sharpened in order to inflict maximum damage.  The sharpened iron bar was left embedded in the now deceased’s neck.  Such callousness is unacceptable in a civilised society.

Whatever wrong you perceived to have been perpetrated against you, you can not take the law into your own hands and resort to violence.  If indeed the now deceased had committed adultery with your wife you should have sued him for adultery damages and or divorce your wife.

The fact that you decided to stealthily attack the now deceased would suggest that your suspicion was not baked by any tangible evidence.

This court would not tire to emphasise and demonstrate that human life is precious and that human blood is sacred.  Those who do not value the sanctity of life like what you did deserve to be visited with the full wrath of the law.

We are nonetheless mindful of the mitigatory factors in this case.

It has been corrected that you are 28 years old and not 38 years old.  You are a single parent with a 5 year old child currently under the care of your grandmother.  As an unemployed peasant farmer you solely rely on manual labour for survival.  Further you have no other savings nor any assets.

To your credit after committing this offence your conscience was pricked and you decided to tell fellow villagers and relatives about what you had done.  You did not flee from the jurisdiction of the court and wanted to hand yourself to the police.  Indeed you shall forever live with the stigma that you have the now deceased’s blood in your hands.

We appreciate that provocation is a mitigatory factor.  Matters of the heart at times cause reasonable people to act irrationally.  You may have felt that the now deceased had greatly wronged you by impregnating your wife and disrespected your marriage which eventually collapsed.

The only question is how much weight we should place on this as a mitigatory factor.  In our view despite this apparent or perceived provocation your moral blameworthiness remains very high.

A very lengthy custodial sentence remains appropriate.  We do not believe that a sentence of 10 years imprisonment suggested by your counsel would strike a proper balance between the mitigatory and aggravating factors.

In the result you are sentenced as follows;

“22 years imprisonment.”

National Prosecuting Authority, counsel for the state.

Chakabuda Foroma Law Chambers, pro deo counsel for the accused.