State v Witness Paradzai Garikai and 5 Ors

### Preamble
1
HMT 42-20
CRB 21/20
---------


STATE

versus

WITNESS PARADZAI GARIKAI

and

TATENDA GARIKAI

and

ZACHARIA MAWOKO

and

LENOS NYADONGO

and

NORMAN RAPOZO

and

TAPIWA KANGARA

HIGH COURT OF ZIMBABWE

MUZENDA J

MUTARE, 2, 3, 4, 5 and 12 June 2020

ASSESSORS:	1. Mrs Mawoneke

2. Mr Mudzinge

Criminal Trial

M Musarurwa, for the State

T. Musara, for the first accused Pro deo

A. Mutungura, for the second accused Pro deo

C. Ndlovu, for the third accused Pro deo

T. G Nenzou, for the fourth accused Pro deo

A Nyamukondwa, for the fifth accused Pro deo

K. Kabaya, for the sixth accused Pro deo

MUZENDA J: On 2 June 2020, all six accused were arraigned for murder. The state alleges that on 25 December 2018 and at Constance, Chitungwiza, Nyahukwe Road, Rusape the accused and each or one of them unlawfully, caused the death of Carlington Rateiwa by assaulting him with fists and stabbing him with a water glass on the neck, intending to kill him or realising that there was a real risk or possibility that  their conduct might cause death and continued to engage in that conduct despite the risk or possibility resulting in injuries from which the  said Carlington Rateiwa died.

All the six accused pleaded not guilty.

According to the summary of the state, the first and second accused reside at Plot 13 Chinungu, Diana’s Vow, Chitungwiza, Rusape, they are cousin brothers. The third accused person resides wat Village 38, Chitungwizza, Rusape. The fourth accused resides at Plot 1, Earlymore Village, Chitungwiza, the fifth accused resides at Village 39 Chirombe, Chitungwiza, Rusape and sixth accused resides at Plot 5 Earlymore Village, Chitungwiza, Rusape. The deceased Carlington Rateiwa used to reside at Plot 21, Chitungwiza.

On 25 December 2018 and at Constance, Chitungwiza, Nyahukwe Road, the accused persons assaulted the deceased using fists and water glass on his neck. The deceased sustained serious injuries, he was taken to Chitungwiza Clinic where he was referred to Rusape General Hospital where he was pronounced dead on admission. Dr Tendai Lincoln Nyafesa conducted a post-mortem examination and concluded that the cause of death was due to severe haemorrhage secondary to deep cut on the neck. He compiled a post-mortem report. The broken pieces of water glass were recovered at the scene of crime.

STATE CASE

The prosecutor made an application  in terms of s 314 of the Criminal Procedure and Evidence Act [Chapter 9:07] to have  the evidence of Joyce Tsopo, Lolit Muchazondida, Moreblessing Mlilo, Bothwell Mukombiwa, Tendai Lincoln Nyafesa, Gift Chokodza, Brighton Mujekenyeki, Tambudzai Parirehwa and Talkmore Chinhengo admitted in court as uncontroverted. The defence counsel for all the accused did not object.

The undisputed evidence of Lolit Muchazondida a nurse stationed at Chitungwiza Clinic is to the effect that she attended to the deceased, she observed a deep laceration on the left side of the neck, the jugular vein had been sliced and deceased had lost a lot of blood and was not responding.

Gift Chikodza is a police sleuth stationed at CID Rusape. On 26 December 2018 he attended the scene and recovered a two keys whiskey empty bottle, splinters of broken glass and the base of a water glass with blood stains and sharp edges. He arrested the first accused who admitted assaulting the deceased but denied stabbing him with a beer bottle or any sharp object. The first accused implicated the rest of the accused persons. He also noticed blood on the deceased’s clothes. Brighton Mujekanyeki’s piece of uncontested evidence is that the fifth accused Norman Rapozo surrendered himself to the police on 27 December 2018. Talkmore Chinhengo is the investigating officer in this case. Critical to his undisputed evidence is that he took part in the arrest of the first accused. First accused admitted assaulting the deceased but denied stabbing him. First accused is the one who implicated the rest of the accused persons. The witness indicated that he took part in the search of the first accused’s bedroom where a catapult was recovered and first accused admitted possessing a catapult at the time he assaulted the deceased. Accused one also admitted to the witness that he is the one who  threatened Evaristo Rateiwa with a catapult at the time Evaristo was about to drive the motor vehicle from the scene. He also participated in the recording of the warned and cautioned statements and their subsequent confirmation by the magistrate. All the warned and cautioned statements were freely and voluntarily recorded. At the scene he also observed blood on the dust road. Dr Tendai Lincoln Nyafesa carried out the post-mortem examination on the deceased’s body. He concluded that the cause of death was due to severe haemorrhage secondary to deep cut on the neck.

The state also produced the post mortem report exh 1, accused 3’s confirmed statement, exh 2, accused 4’s confirmed statement, exh 3, accused 5’s confirmed statement, exh 4, accused 6’s confirmed statement exh 5, three photographs of the deceased, exh 5a-c, confirmed indications of accused 2, exh 7, confirmed indications of accused 4, exh 8, confirmed indications of accused 5, exh 9, sketch plan exh 10, broken water glass exh 11. Catapult and two stones exh 12, the empty bottle of two keys Whisky, exh 13.

The produced exhibits by the state should be used by the state to prove its case against the accused. In this case none of the produced exhibits were alluded to by the state either in evidence in chief nor during cross-examination of the accused. It is not for the court to draw inferences from the state’s evidence without being drawn to do so by the prosecution otherwise the probative value of the exhibits becomes wasted. If the exhibits are well utilised by the prosecutor in the course of hearing  questions  and answers of all witnesses referred to each exhibit will be  of great value to the court when it analises the evidence of each side with a view of reaching a just decision. It is not enough for the state prosecutor to load the court with documentary exhibits which are not alluded to during trial. However the court will scrutinise some of the exhibits in this judgment.

After producing the above exhibits by the due consent of the various defence counsel for all the 6 accused, the state proceeded to call its first witness Evaristo Rateiwa. On 25 December 2018 he was with his step-younger brother, the deceased. They share the same father but born out of different mothers. Among all six accused he only knows accused 6 only in connection with this case. He was also seated with Obey Rateiwa and Tichaona Shoriwa at the back of the car driven by the deceased on the fateful day. When the motor vehicle was approaching the scene the witness felt the car breaking suddenly. The passengers at the back were all pushed forward towards the cabin of the car, the witness saw some dust, at the same time he detected that there were people in front of the vehicle. He could not remember the time it was but around 9 pm. Deceased was the driver and two ladies were seated together with deceased  in the front when the deceased applied emergency brakes, he stopped the  car, disembarked from the driver’s  seat and went out to and walked towards the front of the car. That was the fatal mistake he made. He wanted to enquire the behaviour of the people outside as to why they were blocking moving vehicles by standing on the road. He proposed to them that if their intention was to ask for transport they should have done it safely and he was always ready to assist. Incidentally those in front of the vehicle were chanting his forename. “Carlington”, his child’s name “baba aTindo” and others called him by his surname, “Rateiwa”. The witness could not discern the identities of those people in the group. What he remembers was that he noticed that deceased was at that time at an estimated distance of two metres from where the car had stopped. Within a period of less than two minutes from the time the car had stopped, he heard deceased warning Obey not to go where deceased was because the latter had been stabbed. At that time the witness was by the door of the rear. Obey however did not heed, he proceeded to the front of the car and assisted the deceased to the passenger seat in front and caused him to sit in the car. The witness then drove the car to Chitungwiza Clinic from the scene of the tragic stabbing.

Under cross examination by accused one’s counsel, the witness mentioned that Chitungwiza Clinic was 2km from the scene. He could not dispute the fact that first accused did not block the road, however, he stated that the car stopped because all the six accused were in front of the car. He also could not dispute first accused was travelling towards the opposite direction to the motor vehicle. He admitted to the suggestion that Tichaona Shoriwa dropped his hat but indicated that Tichaona dropped off the car to go and retrieve the hat. The hat was not brought by the first accused, although he only learnt about the falling hat at a later stage. The witness reiterated that he only disembarked from the car after he had heard that deceased had been stabbed. He denies that the occupants of the car at the back were aggressive towards any of the six accused. He is not aware if any of the accused went to seek refuge in the nearby bush. The witness added that when the six accused crossed the road they were in a single file, when the deceased yelled to Obey that he had been stabbed, the voice emanated from where the six accused were standing after the car had stopped. After accused one’s questions accused 2 – 6’s counsel did not have questions to the first witness. During questions on matters arising the witnesses repeated what he had told the court that the 6-8 people were walking in a single file and talking amongst themselves.

The second state witness was Obey Rateiwa the younger brother of the deceased. He told the court that he was sitting at the back of the Toyota Hilux driven by the deceased when he arrived at the scene. All of a sudden the car’s driver applied emergency brakes which resulted in a sudden push ending in passengers in the loading pan being pushed towards the cabin. However, through the rear wind screen he saw some people standing in front of the vehicle driven by the deceased. Deceased stopped the car and alighted to confront those in front as to their conduct. He repeated what the deceased said to the accused persons. The group of six moved towards the driver and the witness unsuspectingly did not expect any danger nor a problem. All remained calm and seated in the car. All of a sudden he saw deceased reeling to the ground, at the same time he heard a sound of breaking bottle. He became inquisitive and got down out of the vehicle, at that time, deceased warned the witness not to go where deceased was because he had been stabbed. He observed blood oozing from the deceased with a lot of force. The witness proceeded to where deceased was and enquired as to what was wrong, he tried to raise the deceased from the ground. Deceased had fallen on his side, and was attempting to get up but failed. He assisted him to get up by holding him up whilst holding him up he felt some warm blood flowing along the witness’ body. He tried to stop the bleeding by putting a stopper on the wound but could not stop it. The accused were standing by watching. He told them all that they had injured his brother. No one responded nor reacted. He walked him up to the passenger seat and placed him in the cabin, he then told Evaristo to start the car and drive deceased to the clinic. Before he could board the car he heard utterances to the effect that “we wanted the one in a striped shirt” meaning himself. He also saw one of the accused holding a catapult which was loaded with a stone ready to shoot at the driver of the car. There were people who were shouting from the rear of the car stating that “Carlington, Tindo’s father, you are trying to show off with your motor vehicle.” The witness and those at the back took cover from the luggage and boxes of grocery stacked in the loading tray. Though it was at night the car’s lights could light up to a distance of hundred metres. The witness estimated the people in front of the car to be six. The six people stood in a file stretching out their hands. Obey told the court that what caused him to disembark was because deceased had collapsed. The accused also threatened to burn the car and made three attempts to light the matches. The threats to burn the car were coming from behind the motor vehicle. Among the 6 accused the witness managed to identify the fourth accused, Lenos Nyadongo whom the witness had known for a period of 3 to 4 years. At the scene the witness had noted the fourth accused at the back of the car resting on the car’s body. Obey told the court further that when the car applied emergency brakes pushing people at the back forward, Tichaona dropped his hat when  the car stopped, Tichaona jumped down to recover it, the witness disputed the first accused’s version that it was first accused who picked  the hat and ran towards the car to surrender it. The witness was one and a half metres from where he was seated in the car to where the person holding a catapult was. At the scene, the witness did not discern the nature of injuries sustained by the deceased. He only knew about these injuries at a later stage when he noted a deep cut on the left side of deceased’s neck.

Under cross-examination by first accused’s counsel the witness denied assaulting the first accused. He also denied that fist accused approached the deceased’s car to hand over to Tichaona, a hat which had fallen. He further disputed the suggestion proffered by first accused that after Tichaona picked the hat he proceeded to assist the deceased. He also refuted that deceased himself and Tichaona learned up to assault accused one. The witness also disputed that deceased was injured during a fight. None of the people in the car assaulted deceased with an empty bottle. He further refuted the suggestion that the occupants of the car stopped assaulting first accused because of the arrival of first accused’s colleagues.

Under cross-examination by third accused’s counsel as to how many people he saw in front of the car, he maintained that he saw six people and that those who went to the other side were three.

The last state witness to be called by the state was Tichaona Shoriwa. Deceased was his uncle, on the day in question he repeated the evidence of the first and second witnesses pertaining to what caused the car to stop. He jumped out of the car to pick his hat which had fallen. Upon his return to the car, he heard that deceased had been stabbed, he learnt this from the second state witness. He also added that the reason why the car stopped was that there were people who were holding one hand to another right across the road thereby blocking the road. Deceased braked suddenly resulting in the wind wiping off his hat which then fell off from his head. He could not identify the people who were blocking the broad. He did not witness deceased being injured. However after the deceased’s injury the witness saw those who had been blocking the road by the scene including the one holding a catapult threatening to shoot Evaristo who was poised to drive the car from the scene. He recalls seeing one of the accused coming to the back of the car threatening to burn deceased’s car, kicking the body of the car as the others went to the driver’s side. The witness also heard utterances from the accused to the effect that they had finished with him, that due to the wound, deceased would need to be sutured, they were also looking for Obey who had taken cover in the card board boxes. Unfortunately the witness was unable to identify the person who was making those utterances what he could tell the court was that the one holding the catapult was talking of the sutures. He also told the court out of the six accused. Some were on the edge of the road and others were by the car, the rest of the six were on the driver’s side behaving menacingly.

Under cross-examination by first accused’ counsel the witness pointed out that because of the presence of the one holding a catapult standing in front of the car, the driver Evaristo could not drive the car away to ferry deceased to the clinic. He was also adamant that he was the one who picked his own hat which had fallen and not first accused. He denied assaulting first accused in collusion with deceased and those seated with him in the car. Accused 2 to 6 did not have questions to this witness. According to the witness the behaviour of all the accused from his own observation was in unison and collaborative of each other, they were laughing at the same time looking for Obey Rateiwa who was spotted wearing a striped shirt.

After the testimony of this witness the state closed its case.

The defence case opened through the testimony of the first accused. Accused 1 abided by the precis of his defence outline which stated that he did not commit the offence at all. First accused wanted to go to Nyadongo homestead to see his girlfriend. They were walking in two groups, the group which was ahead comprised of Lenos Nyadongo, Norman Rapozo and Tapiwa Kangara (4th, 5th and sixth accused) and first accused was in the other group behind with second and third accused (his cousin Tatenda Garikai and Zacharia Mawoko). On their way after passing Chitungwiza Primary school turn off they were flashed by an oncoming motor vehicle. Fifth accused made a kick gesture towards the motor vehicle. The motor vehicle passed them going in the opposite direction to the way they were going and one of the occupants of the motor vehicle who was seated in the loading box shouted that he had dropped his hat. He was also banging the body of the motor vehicle asking the driver to stop. The first accused says he checked on the ground and discovered the hat, picked it up and ran towards the motor vehicle which had stopped some 70 to 80 metres from where he was. When he got to the motor vehicle he handed over the hat to the passenger standing in the car. The man asked him as to where “rasta” was and he immediately jumped out of the car and started assaulting him with fists and the first accused fell to the ground. The man and the first accused fell to the ground. The man then proceeded to try and strike the first accused with a whiskey bottle but he managed to block it with his hand and he was injured in the process. According to the first accused the other occupants of the car disembarked and started assaulting him with booted feet indiscriminately all over the body. First accused fought back. He was outnumbered. In defending himself first accused admits that he used a water glass but does not know how the deceased was stabbed as everything happened so fast. He had no opportunity to think at the time. All he wanted was to free himself from the deceased and his compatriots. He later heard Lenos Nyadongo fourth accused asking the assailants why they were attacking him and the assault stopped and first accused managed to escape and took refuge at a Mutamba tree. While he was running a lady who was seated on the front passenger seat came towards him holding what appeared to be a beer bottle or a car jack. He then dropped the weapon in the loading box of the car and they drove away.

The first accused’s evidence in chief basically repeated the contents of his defence outline which he adopted. He however added that when the deceased’s car approached the group, the lights of the car dazzled him. The deceased’s car was going in the opposite direction as compared to where they were going. First accused added information to the effect that when the recipient of the hat jumped from the car he punched first accused on his right eye. First accused asked why he was being assaulted, the other occupant immediately jumped from the loading box and joined in the assault. After the assault first accused staggered and then fell. He then heard a voice calling out if the Rateiwa’s were aware that first accused was a soldier from Svosve gunners, he recalled the source of the voice as that of fourth accused. First accused went on to add that after he had been attacked by a person armed with an empty bottle he punched one of the assailants with a fist in an attempt to free himself. After the assault he could not see properly because one of his eyes was bleeding. He do not recall how deceased sustained the cut. According to the accused the duration of the scuffle took about a minute and a half. He knew the Rateiwa before 25 December 2018.

Under cross examination by Mr Ndlovu representing accused 3, first accused confirmed that he was with accused 3, but at the time first accused had a misunderstanding with the occupants of the car third accused was behind him.  He told the court that accused was not involved in the melee. He denied striking the deceased and could not identify the person he punched. He does not recall seeing deceased coming out of the motor vehicle, the person in the front remained seated in the car. When first accused was asked by Mr Nzou about the arrival of accused 4 at the scene of the scuffle, he confirmed, but when fourth accused dawned on the scene first accused felt relieved but fourth accused arrived at the scene when first accused was delivering the punch. When fourth accused arrived at the scene he was asking the Rateiwa why they were assaulting first accused.

When first accused was being cross examined by Mr Nyamukondiwa about the distance between the two groups, first accused gave an approximation of 5 metres. First accused repeated that when the motor vehicle was at a distance of 20-30 metres, fifth accused raised his leg into the road in front of the oncoming rear. However the first accused later saw fifth accused at the scene but without a shirt, he was looking for his shirt in the bush.

Under cross examination by the state first accused indicated that, he had been partaking beer since midday of the Christmas day. He admitted that had it not been fifth accused’s gesture, the car could not have stopped. He also indicated at the time he was being assaulted accused 4 and 5 arrived at the scene. He also told the court that when the car left he saw 4th and fifth accused who had been at the back of the car. Accused 1 denied holding the catapult to shoot the driver. He had heard accused 4 uttering that uncle Rateiwa was boasting with his car and if that was the case he was prepared to deal decisively with the Rateiwas, this statement was said after the incident. He denied the third accused’s defence statement which revealed that first accused had a bone to chew with the family of Rateiwas. First accused told the court that he did not hear deceased shouting that he had been stabbed.

The second accused also opted to give evidence under Oath. He first chose to adopt and incorporate his defence outline, annexure “C’. His defence outline shows that he was with first and third accused in the group which was following behind the first group. When the deceased car drove past second accused‘s group he heard people in the car shouting that one of them had dropped a hat. First accused picked the hat and walked towards the motor vehicle. According to second accused fourth, fifth and sixth accused followed first accused to where the car had stopped. The second accused later heard the fourth accused shouting out “they were assaulting a soldier” third accused then warned second accused that his brother was being assaulted but second accused indicated that he was not interested in violence. Second accused and third accused remained standing about 20 to 30 metres away from the scene. After a while the first, fourth, fifth and sixth accused proceeded to join second and third accused. Second accused also mentioned that first accused produced a catapult threatening to shoot the screen of the motor vehicle. He learnt of the death of the deceased on the following day.

Under cross examination by Mr Musara for first accused, he told the court that he observed first accused’s swollen hand and also saw a cut on the right eye. He told the court that the distance between his group and the one in front was 30 metres. Under cross examination by Mr Kabaya, second accused told the court that when the hat was picked by first accused, sixth accused did not follow first accused. When the latter went to the stationary car second accused indicated that the contents of his defence outline on the aspect was not accurately captured. When second accused was cross examined by the state he told the court that the car did not stop because of fourth accused’s leg gesture. He admitted the six of the accused moved in a single file towards the car. He also admitted that he was arrested because the first accused had implicated him. He denied that the motor vehicle stopped at a distance of 70-80 m. He indicated that he did not want to be involved in the scuffle.

The third accused adopted his defence outline which in short stated that on their way to Nyadongo Homestead the two groups were separated by a distance of about 100 metres. First accused later left third accused in the company of second accused, first accused had ran to join the group in the front. The car stopped at where the group in the lead was. Though from a distance he could pick that there was an altercation he does not know as to what triggered the commotion. When third accused subsequently drew to the car he observed first accused menacingly pointing an already stretched catapult at the car. He also observed blood on the ground, he did not see the injured person as the injured was already inside the car cabin. The car left the scene and they continued with their journey. He denies the charge totally.

In his trial testimony he told the court that he knew deceased as a local. He stuck to the defence outline. After the car had stopped, he heard a scuffle and heard the fourth accused asking Rateiwas whether they knew that they were fighting a soldier. Upon arrival at the car later third accused saw first accused holding a catapult pointing it at the car demanding to know the whereabouts of the occupant of the car who was wearing a striped shirt. He heard people standing by the car saying that first accused had injured a man. When the car sped off first accused maintained the position where third accused had spotted him when he got to the scene. He later observed fifth accused emerging from the bush without wearing a shirt.

When the car stopped first accused was 80 metres from where they were. He acknowledged that when the car stopped someone had blocked the car’s road. At the car, third accused observed the presence of fourth accused, first accused and sixth accused who was behind third accused. Accused 3 heard first accused stating that the man he had assaulted was in great danger if he delayed in getting medical attention at the hospital, he would wake up dead if that injured person by chance survived he would receive several stitches. Under cross examination by Mr Mutungura for the second accused, third accused admitted that there were a lot of variances between his evidence and that of 1st, 2nd and third accused but it was him who was telling the truth, third accused added that first accused ran ahead of them after seeing the beaming of the lights well before the car had come to a halt. Third accused did not know anything about the falling hat. He agreed with the first accused’s testimony that the two groups were 5 metres apart when they were going to Nyadongo Homestead. Third accused acknowledged the presence of fourth and sixth accused at the rear of the car. Accused 3 told the court that he was with second accused at the place where the car had stopped.

Under cross examination by the state, third accused agreed with the state when he was asked whether all 6 accused were walking in a single file and all the six blocked the motor vehicle. He also confirmed that when he made indications he told the police that all the six were gathered at the position where the car had stopped. He heard someone uttering about lighting the car, to third accused it was first accused who uttered those words.

The fourth accused gave evidence under oath. He adopted his defence outline which is Annexure “E” filed of record. Or Christmas day he went to Harahwa Shopping Centre in the company of second and third accused intending to celebrate the event whilst partaking beer. At Harahwa he met first, fifth and sixth accused. The six left Harahwa around 2100 hrs going to Mabvuto shops. At around 2200 hours they left Mabvuto shops going to Nyadongo Homestead for a traditional brew. On their way they split into two groups walking about 50 metres apart. A few metres from fourth accused’s homestead a car appeared in front of the group in the lead, fifth accused jumped off the road into a nearby bush whilst fourth accused and fifth accused walked away from the road to enable the car to pass through. The car stopped near 1st and third accused persons. The deceased disembarked from the vehicle and the fourth accused from a distance could hear a misunderstanding unfolding near the motor vehicle. Fourth accused went to the car to quell the misunderstanding. When he arrived at the motor vehicle deceased was already stabbed, he was told that it was first accused who had injured the driver. A few minutes after the arrival of fourth accused at the scene, deceased was taken away from the scene. Fourth accused distanced himself from the assailants.

In his evidence in chief fourth accused told the court that first, second and third accused stood in front of the motor vehicle when the car stopped, that was at a distance of 30 to 40 metres. When fourth accused heard the commotion out of the car he walked back to where the car was and was in the company of the sixth accused. The fourth accused told the court that what he said at the scene was that, “are you not aware that he is a soldier or gunner”. He saw first accused standing by the driver’s door holding a catapult. He also noticed where second and third accused were, they were

1 ½ metres from the car, they were on the side where first accused was but at a distance from him. Fourth accused admitted that he was standing at the tail of the car with sixth accused. At the scene of the assault fourth accused did not hear any threats about the burning of the car, he only later heard first accused saying he could not find a stick of matches otherwise he would have set the car ablaze. He also heard first accused saying that he has finished with the deceased. Fourth accused stated further he realised the arrival of fifth accused after the car had left the scene. He denied the fact that he promised first accused cooperation to deal with deceased family.

Under cross examination by first accused’s counsel fourth accused said the car stopped behind them. He said third accused was lying if he told the court that the car stopped behind them. He said third accused was lying if he told the court that the car stopped at where the fourth accused’s group was. fourth accused added that when the car had left the scene first accused told the group that the petrol tank did not have a fuel cap so he (first accused) wanted to ignite the fuel tank.

During cross examination by Mr Ndlovu fourth accused said when he noted second and third accused at the scene they were 1,5 metres from the car. He also added that what caused the car to stop was the fifth accused’s gesture. The car passed fourth accused’s group and stopped where first, second and third accused were, fourth accused told the court that himself, fifth and sixth accused were ahead of the other two. Later fourth accused admitted during cross examination that the car stopped where his group was and fifth accused’s conduct caused the car to stop. When the car stopped someone from fourth accused’s called out deceased’s forename, his child’s and his surname, though fourth accused could not tell the court as to who did. Fourth accused denied that first accused picked up the hat. At the time fourth accused warned the occupants of the car that they should know that they were fighting a soldier, he did not know that it was the first accused who was involved in the melee, he only became realised first accused when he drew near to the scene from where fourth accused was. For fourth accused to walk to the scene from a distance of 30 to 40 metres he took 2 minutes to get to the car. When the car stopped first, second and third accused were behind but he later found them by the car. Fourth accused found first accused by the driver’s side but in front of the car armed with a stretched catapult. At that point deceased was being helped into the car. Further fourth accused when he was asked by Mr Kabaya he mentioned that when he was walking towards the car he walked side by side with sixth accused, but he did not know why sixth accused walked with him in that manner.

Under cross examination by the state fourth accused conceded he removed his hair after the event but before police arrested him, he removed the locks to maintain short hair. He explained that he was sure he was going to be arrested. He also conceded that he well knew that he had participated in the crime. He together with fifth accused were barbed on the same day at Rusape. Fourth accused also admitted under cross examination that he was once employed by Everisto Rateiwa, the first witness for the state. Under re-examination by Mr Nenzou, fourth accused further stated that he could not visit the police station after the event because he was part of the group that has caused deceased’s injury, and that the offence had been committed during his presence and police wanted him as well. However fourth accused was apprehensive because he knew police wanted to clarify issues with him. At the time fourth accused arrived at the scene, none of the occupants threatened him nor any of the accused persons.

The fifth accused gave evidence and also amplified his defence outline. Fifth accused stated that he was in the group comprising the fourth and sixth accused. He denied forming a human barrier to block the road but said that as they were walking along the road, a car emerged speeding,  leaning on the left side of the road, which side he was walking whilst fourth and sixth accused were on the right side of the road. Fifth accused jumped out of the road as the car seemed to almost hit him. The car passed by and stopped at an approximate distance of 30 metres from where he had jumped. The car stopped where first, second and third accused were. When the car stopped fifth accused heard the voices of the occupants of the car asking about him. He feared that he was going to be assaulted so he immediately fled into the bush and took cover. He later heard fourth accused’s voice asking why people were fighting when they were neighbours. He heard the car being driven away, that is when he re-joined the group. Upon arrival at the scene he saw a pool of blood. He totally denied participating in the crime.

During his evidence in chief, he added that whilst they were walking apart from first, second and third accused there was a distance of 40metres between them. When the car emerged from the opposite direction, the head lamps of the car dazzled his eyes, he thought that the lights would injure his eyes, so he tried to evade the car, but the car followed him, he moved to one side but the car followed him till he finally jumped off the road, he had to cross the road. The car stopped some 30 metres away from where he had jumped. When the car stopped, he heard people asking about “dread” man, so he decided to remove the shirt which was white in colour with stipes. He then hid behind a gum tree near the road located approximately 15metres away. Whilst in the bush he could not see what was happening at the car but would hear fourth accused’s voice. He did not see the first accused nor did he see how the deceased was injured.

Under cross examination by Mr Ndlovu, fifth accused admitted that it was his conduct that caused the problem on the day in question, he admitted that he did not honour the rights of motorists by gesturing towards deceased’s car. When the car stopped, fifth accused did not go to the driver to apologise.

Under cross examination by the state, fifth accused conceded that he removed his locks to avoid identification after his father instructed him to. He also revealed that he burnt the shirt he was wearing on the day in question because it reminded him of the gruesome death of deceased. He denied that he burnt the shirt to conceal evidence linking him to the crime. He also disowned some of the contents of his confirmed warned and cautioned statement.

The sixth accused adopted his defence outline to form part of his evidence in Chief. Sixth accused stated that he did not assault the deceased. He was in the group comprising of fourth and fifth accused ahead of first, second and third accused’s group just a few metres in front. Deceased’s car approached and stopped a few metres after them. One of the occupants in the car shouted at them to pick a hat that had dropped. First accused picked up the hat and took the hat to the occupants. Upon the arrival of the first accused at the car, a scuffle erupted between first accused and the deceased, the driver. The scuffle lasted a few seconds, after when the vehicle drove off. He was 50m metres away from where the scuffle occurred.

In his evidence in Chief sixth accused pointed out that when the car was near fifth accused placed his leg into the road, by then the other group was 20 meters away. After the leg gesture the car stopped behind sixth accused’s group. When first accused got to the car, sixth accused could not see clearly what was happening but could hear people fighting, first accused was fighting with the occupants.

Under cross examination by Mr Musara, the sixth accused admitted that some of the occupants in the car disembarked from the car.

During questioning by Mr Ndlovu, sixth accused pointed out that he saw the third accused by the car, accused 3 was with second accused. 2nd and third accused were between sixth accused and the car. Sixth accused denied that first accused ever joined their group. He also denied that first accused picked up a hat. Sixth accused also denied that the fourth accused walked with him to the car, sixth accused denied ever going to the rear of the car. Even after the scuffle ended the sixth accused stated that he never went where the deceased was injured. Sixth accused conceded that he saw people fighting. Though he could not describe it. Under cross examination by Mr Nyamukondiwa sixth accused stated that he saw fifth accused placing his leg on to the road. Under cross examination by the state sixth accused agreed with the suggestion that after the deceased got injured all 6 accused assembled at the scene, he the retracted the answer and distanced himself from the rest of the accused. He however told the court that he had heard fourth accused and the state witnesses placing him at the rear of the vehicle where threats of burning the motor vehicle were heard being uttered by some of the accused. Sixth accused also admitted that the road was blocked by 6 to 8 people but he stated that he was not one of these people.

After testimony of the sixth accused the defence case was closed for all the six accused persons.

EXHIBITS PRODUCED BY CONSENT

The post mortem report No. 104918 exh 1 prepared by Doctor Tendai Lincoln Nyafesa is important in the assessment of this case. It shows that deceased was a male aged 33 years old with a height of 167 centimetres and weight of 70kg. The Doctor observed a deep cut on the left of the neck approximately 7cm x 7cm exposing deep structures, the internal jugular and carotids had been damaged, there were also bruises on the face and elbow. The Doctor concluded that the cause of death was severe haemorrhage secondary to a deep cut on the neck. The examination of the pictures produced by the state shows visible cuts on the deceased’s neck and the extent of the cut shows that severe force was applied that resulted in the exposure of deep structures.

Exhibit 3 is the confirmed warned and cautioned statement by the fourth accused, Lenos Nyadongo. The following is part of what his statement reads.

“when we were close to our home we saw a motor vehicle which was coming in front of us, we were walking in 2 groups of 3 people. I was amongst the group which was in front with Tapiwa and Norman. When that motor vehicle had just passed us, it was stopped by our colleagues who were behind Tapiwa and I walked back in order to watch. Upon arriving at the motor vehicle we saw the deceased being lifted and placed in the motor vehicle the people who were in the motor vehicle were saying that Paradzai has injured their relative. The deceased was placed in the motor vehicle and taken away”.

From this statement we concluded that according to the fourth accused 1st and third accused are the ones who stopped the motor vehicle. Fourth accused witnessed the deceased being lifted from where he had collapsed and when fourth accused got to the scene the majority of the occupants were seated put in the car.

Exhibit 4 is the confirmed warned and cautioned statement of the fifth accused, the salient extract of that statement reads:

“What happened is that when the now deceased stopped the motor vehicle Paradzai is the one who went to the motor vehicle. These two began to have a misunderstanding when the deceased asked why people were remaining on the road while seeing a motor vehicle”

From the above there is no mention by the fifth accused about the dazzling of the lights, the evasion of the car by him nor the gesture of the leg and or jumping out of the road.

Exhibit 8 contains indications made by the fourth accused to the police where the fourth accused indicated the position where deceased fell down after having been assaulted by first accused. Exhibit 10 is the sketch plan. More importantly the third accused pointed out to detective Assistant Inspector Chinhengo point D as the position where deceased fell down after having been assaulted by first accused. The fourth accused indicated the same position to the police as where deceased fell down after having been assaulted by first accused. Hence from the sketch plan, exh 10 we come to a conclusion that accused 3 and 4 saw first accused assaulting the deceased and saw the deceased falling and consequently both 3rd and fourth accused were at the car and witnessed deceased assault by first accused.

Having summarised the evidence of both the state and the defence, the court will now analyse the liability of each of the six accused. Most facts in this matter are now accepted by all six accused as common course. On the fateful day the sextet was on a road proceeding to Nyadongo homestead for a traditional brew. According to all the six accused they were in two separate groups. The problem in the narration of the events starts when deceased’s car lights were observed by the six accused. The situation deteriorates when six accused tried to explain what happened leading to the injury of the deceased. There are incidentally six distinct, contradictory and self- liberation of each and every one of the 6 accused more importantly on what each of them did on the night in question.

Evidence of the state on the other hand is unimpeachable, when the car approached the place of the scene, according to Obey Rateiwa’s evidence, all the six had formed a human shield across the breadth of the dust road endangering themselves and blocking motorists from passing. The deceased applied emergent brakes and stopped the car, after stopping the car he disembarked and approached the sextet to enquire about their conduct. This is confirmed by the fourth and fifth accused in their confirmed warned and cautioned statements alluded to already. The deceased was exchanging words with the first accused during the presence of all the five accused. Obey Rateiwa then later on heard deceased warning him not to go where deceased was because the latter had been injured. When Obey jumped from the car to go and help the deceased he passed by 3 by standers who were part of the six accused. We failed to find any fault or criticism at the manner the three state witnesses gave their evidence. Contrary to what the defence counsels of the accused are saying about the state witnesses, they gave their evidence very well in a composed and unexaggerated demeanour. We accept their evidence as authentic and plausible.

First accused counsel conceded to the production of the investigation officer’s evidence more importantly to the effect that it was the first accused’s arrest that led to the arrest of the five accused, including first accused’s cousin brother, accused 2. If first accused had stabbed the deceased in defence of self why would he implicate the other co-accused? It would have been logical right from the outset that he should have chosen to absolve all other accused and stand on his chosen line of defence of self. Fist accused’s own evidence is admittedly continuously conflicting. It is not clear from the defence whether first accused ran to join the group which was in the lead or he picked the hat and upon presenting it was attacked. The question is if it was fifth accused who had provoked the situation by placing his leg in the road why would the occupants in the car assault the first accused.

Secondly from the evidence led before us the first accused is adamant that he was assailed by the people at the back of the loading tray and according to first accused that is the group of people where the injured person ought to have originated from. None of the 5 accused support the first accused on this aspect. Accused 4 and 5 are adamant in the extra-curial statements which evidence we unhesistangly accept, when the car stopped the exchange of words occurred between first accused and the driver and not anyone else. It was the misunderstanding between first accused and the deceased that lead to the demise of the deceased.

First accused raises the defence of self, stating that he only acted defensively when he came across a barrage of attack from the occupants of the car. We are unable to accept the version of the first accused. It is not supported by any tangible evidence and is unfeasible in the circumstances. If the first accused had been attacked by the occupants he would not have chosen to remain at the scene uttering threats of burning the car, boasting that he had finished with the deceased and try to shoot Everisto presumably to stop him from taking deceased to the hospital. First accused is unable to explain the inherent contradictions between him and his co-accused. He deliberately misled the court by stealing that he went and hid behind a mutamba tree yet his co-accused told the court that he remained at the scene until the car left the scene. We are satisfied that when the car stopped the deceased disembarked from his motor vehicle and confronted the first accused and his compatriots. The first accused was affronted by the deceased and given the duration the scuffle took, the deceased, in our view was not the aggressor, he wanted the first accused and his colleagues to explain; unfortunately deceased fell into a trap. He was assaulted. If there was a fight the occupants of the car could have discerned it. First accused relentlessly attacked the deceased not in self-defence but jealously so, to the group deceased was being showy with his motor vehicle. The version of the first accused is not supported by any other witness except on the aspect of the injuries on his face and elbow. That evidence is not independent it comes from his co-accused whom the defence counsel themselves have labelled one another liars. In the absence of medical evidence to authenticate the first accused’s version, we are unable to accept that first accused was assaulted at the scene and sustained injuries. The discrepancies among the accused evidence depict an intended desire to mislead the court through concealment of the truth. How would the witnesses to what happened at the scene all come out with diverse versions of what happened leading to the injury of the deceased. First accused deliberately broke a water glass and ruthlessly attacked the deceased and using his knowledge of a trained soldier chose part of the body to deliver a fatal stab. We reject the first accused’s averments that he was under pressure to the extent that he blindly punched the target aimlessly. It is fanciful given the sequence of events explained by the state witnesses, we accordingly reject that tailored version. We are fortified in reaching this conclusion when we look at the utterances of the first accused after the event that he was boasting to his colleagues the seriousness of the injury and danger to life to and of the deceased. Unfortunately none of accused opted to assist the deceased in any way but went on to proceed to the beer drink as if nothing had happened. Having rejected first accused’s defence, we do not hesitate to come to a conclusion that the first accused intended to kill deceased or could have realised that his conduct could have lead to the death of the deceased. First accused is found guilty of murder with actual intent.

The second accused’s defence outline is one where he wanted to distance himself from scene. Unfortunately his co-accused repeatedly pulled him to the scene of the crime. He was spotted at the scene by the fourth accused and in any case the occupants of the car saw all six accused forming a shield in front of the car which caused the car to apply emergent brakes. From the outset the defence outline of second accused directly places him at the scene of the scuffle. It is not feasible for second accused to be told that his cousin brother was being assaulted and second accused would simply dismiss it. Accused 2 was with first accused and assisted the remainder of the other accused to block deceased’s motor vehicle. We conclude that he is equally to blame for the death of the deceased.

Third accused admitted that he was part of six on the eventful day. He confirmed the utterances of co-accused about the fate of the deceased, he heard fourth accused utterances relating to the fight at the car. Ironically he seems to plead ignorance about fifth accused placing his leg in the road; which is allegedly what triggered the car to stop. It is a mystery that he confirms that fourth and sixth accused were behind the vehicle and he pleads ignorance of the injury of the deceased. It appears third accused wants to remove himself from the critical moment at the scene in order to exculpate himself. The event of the deceased’s injury is so central to all the 6 accused and it would have been strange for anyone of the accused to ignore its unfolding. We are satisfied that third accused equally participated to the events that led to the deceased’s car stopping at the scene.

The fourth accused is portrayed as a peacemaker, however there is one disturbing feature about what exactly was said by the fourth accused. The versions of the words said by the fourth accused equals the number of the accused persons before us. These words were not uttered or alluded to by any of the state witnesses, they strangely come from the accused. We have already accepted the credibility of the state witnesses, our conclusion about the alleged uttered words by the fourth accused is that they were created by the accused well after the event. We reject the submission by the fourth accused’s counsel that forth accused is innocent and agree with the state that fourth accused was in the thick of things. He participated in the stopping of the car, he was at the back of the car threatening to burn the car together with the sixth accused. He assured to support first accused about whatever actions to be taken against the Rateiwa’s.

The fifth accused was labelled by accused three as the culprit who placed his leg into the road leading to the stopping of the car at the scene. He seems to play the legendary tale of a raven which avoids danger by taking pro-active action by running or flying away. According to fifth accused, he saw deceased disembarking from the car and confronting the first accused but after that fifth accused fled and hid. He says he only resurfaced after the event without wearing a shirt. None of the state witnesses saw anyone of the six accused leaving the scene in a hurry. Fifth accused’s version of the running away is fanciful. We are satisfied that fifth accused removed his locks to avoid identification by the police and also burnt his shirt to conceal evidence linking him to the commission of the offence. He also lid to the court that he was hiding in the bush. None of the accused persons left the scene during and after the deceased had been injured.

The sixth accused’s story that he remained at a secluded distance from the events at the vehicle is equally discarded. He was with fourth accused at the rear of the car, threatening to burn deceased’s motor vehicle. He was part of the six who formed a human barrier to block deceased’s motor vehicle. He cannot escape liability of his co-accused.

In the matter of S. v Bernard Makuchete the court held that:

“The doctrine of common purpose says that where two or more agree to commit a crime, or actively associate in a joint unlawful enterprise, each will be responsible for specific criminal conduct committed by one or the other of them which falls within their common design. Liability arises from their common purpose to commit the crime

In the murder cases, the act of one in causing he death of the deceased is imputed, as a matter of law, to the other or others. Prior planning is not significant. A common purpose needs not to be derived from an antecedent agreement. It can arise on the spar of the moment and can be inferred from the facts surrounding the active association with the furtherance of the common design. The requirements for a common purpose are

Presence at the scene of crime.

Knowledge of criminal act

Intention to make common cause with the actual perpetrator of the crime

Manifestation of a sharing of a common purpose with the actual perpetrator of crime by the  performance of some own act of association with the conduct of the perpetrator.

Mens rea either in the form of dolus directus or dolus eventualis in respect of the perpetration of the crime”

All the 6 accused were by their own admission at the scene of the crime. First accused on his own admission used the water glass to stab the deceased at a very lethal position of the body. All the 6 accused placed themselves at the scene after the injury of the deceased, others actually witnessed the deceased collapsing which shows that they were by the scene. We have also concluded that all the 6 accused in common purpose resolved to block the deceased’s motor vehicle so as to confront him. They did exactly that when deceased approached them he was attacked by first accused who was acting in collusion with the rest of the accused. All the 5 co-accused associated with the first accused before the offence and after the stabbing and fifth accused even promised to render to first accused future help against the deceased and his family. None of the accused on the night in question decided to alert the police or assist the deceased in any way, all retained togetherness as if celebrating the success of what they had planned to do. Deceased was showy with his car and needed to be punished through assault or death and destroy his motor vehicle. The accused’s lies assisted in proving the fact that each accused’s defence was deliberately premised on fallacies that never occurred and all the lies helped to prove the state case.

All the 5 accused, second, third, fourth, fifth and sixth accused are found guilty of murder as co-perpetrators to the first accused.

In assessing the appropriate sentence the court will factor in what was submitted by counsel of the accused in mitigation as well as the aggravating features submitted by the state. I will take into account the fact that accused had partaken alcohol for the better part of the day and that it was late in the night. However wisdom dictates that when one consumes alcohol, he or she should be able to enjoy without exposing innocent people to his or her drunken fray. Alcohol must be taken to relax and increase wisdom than to go on a rampage and in this case to the extent of behaving in a manner that led to death of an innocent productive person like the deceased. First accused is a trained soldier and was trained for the security of the nation at large and deceased in particular. He cannot be trained to choose part of the body that can quickly cause death to a target. By this conviction first accused had put the national army into disrepute.

I also take into account the behaviour of the co-perpetrators in this case. They should not have acted out of sheer misguided peer pressure. They ought to have controlled themselves and keep out of trouble. They did not assist the deceased after he had been injured. With the exception of the sixth accused none of them went to console the deceased family. Some of them threatened to burn deceased’s car as if his injury was not enough. They were all not remorseful for the deeds they had caused. The totality of the conduct of all the accused is abominable and unfit for civilised society. People acquire property like cars to enhance development and not for a show off, that car could have assisted the accused also. The nature of lies shown by the accused in their testimony shows that they do not even regret what they did on the day in question, all they intended was to escape liability.

The deceased was productively employed and has left a wife and five children with no one to fend for. The future of the children and their mother is very hopeless. Young life has been unnecessarily terminated and the moral blameworthiness of the accused is very high and reprehensible.

In terms of s 208 of the criminal code, the sentence of co-perpetrators should be that of the principal offender in this case that of the first accused. First accused is sentenced as follows:

18 years imprisonment.

Given the degree of participation of second and sixth accused and their ages would receive sentence to commensurate with their ages.

The same applies to the third, fourth and fifth accused they would also receive a different form of sentence peculiar to their personal circumstances and circumstances of this matter.

Accused 3, 4, and 5:	12 years imprisonment

Accused 2 and 6: 6 years imprisonment

National Proscecuting Authority, legal practitioners for the state.

Messrs Gonese & Ndlovu, legal practitioners for 1st and third accused.

Messrs Mutungura and Associates, legal practitioner for second accused.

Messrs Chibaya and Associates, Legal practitioners for the fourth accused

Messrs Roystone law Chambers, legal practitioners for the fifth accused

Messrs Maunga Maanda & Associates, legal practitioners for the sixth accused.