THE STATE v NGWERUME and Another (356 of 2025) [2025] ZWHHC 356 (18 June 2025)

10 HH 356-25 HCHCR 1767/24 THE STATE versus TINASHE NGWERUME and NKULUMO DUBE HIGH COURT OF ZIMBABWE **MUCHAWA J** HARARE, 15 November, 18 November, 28 November 2024, 5 February, 20 February, 25 February 2025 & 18 June 2025. **Criminal Trial** **ASSESSORS:** 1\. Mr. Chakuvinga 2\. Mr. Jemwa _T Mukuze_ _,_ for the State _P Bambire_ , for the First Accused _T Mupamhadzi_ for the Second Accused MUCHAWA J: _**Background**_ The two accused persons and 2 others were charged with murder as defined in s 47(1) of the Criminal Law (Codification and Reform Act [_Chapter 9:23_]. The two others are Nelson Mugada and Calvin Furusa and they absconded trial after being granted bail by the High Court. An application was made for separation of the trials of the two available accused persons in terms of s 190 of the Criminal Procedure and Evidence Act [_Chapter 9:07_]. The application was duly granted leading to the trial commencing against accused 1 and 2 before me. The first accused person is a juvenile aged 15 years whilst the second accused person is a male adult. It is alleged that on 23 October 2023 at around 10:30 hours and at More-Better-Days compound in Christon-Bank, Nelson Mugada, Calvin Furusa, Tinashe Ngwerume and Nkulumo Dube, one or all of them, with intent to kill, or realizing that there was a real risk or possibility that their conduct might cause death and continued to engage in that conduct of assaulting Charles Sanudi by stabbing him on the neck and on the right thigh with a knife. This caused injuries which led to the death of Charles Sanudi. _**Summary of State Case**_ The deceased and accused persons were not known to each other. On the fateful day, the deceased was at his homestead at More-better-days compound in Christon-Bank when the accused persons who are artisanal minors in the area were in hot pursuit of one Tatenda Mapulani. In fleeing he passed through the deceased’s homestead who wanted to help him. Tatenda Mapulani escaped to the nearby mountain. The accused persons were angered by the conduct of the now deceased and attacked him by stabbing him with a knife once in the neck and twice on the right thigh. The deceased called out for help from Josphine Tofirapo who came to the scene and found the now deceased bleeding. He then fell to the ground and was motionless while facing upwards. A post mortem was conducted on the deceased’s body at Parirenyatwa Hospital on 26 October 2023 by Dr Robert Guillen. He concluded that death was caused by hemorrhagic shock, left femoral vein section and stab wound. _**First Accused’s Defence Outline**_ The first accused pleaded not guilty to the charge of murder. He admits that on 23 October 2023 he was at a tuckshop situated at More-Better-Days Compound in Christon Bank. He was in the company of his colleagues namely Calvin Furusa, Nkulumo Dube, Nelson Mugada, Obrey Dhliwayo and another fifth person whose identity he does not know. The second accused then pointed out that he had spotted Tatenda Mapulani who had previously assaulted him using a catapult. They then agreed to effect a citizen arrest on Tatenda Mapulani so as to then hand him over to the Zimbabwe Republic Police. Tatenda Mapulani bolted off when he saw the second accused person. First accused person and his colleagues then pursued Tatenda Mapulani with the aim of effecting a citizen arrest. The first accused person denies ever attacking or assaulting the deceased person. He further denies acting in common purpose with his co-accused or anyone else in the attack that resulted in the death of the deceased. His version is that he was focused on effecting a citizen arrest on Tatenda Mapulani and never stopped at the deceased’s residence. Further, he says he was only arrested by Petros Chifodya whilst he was in hot pursuit of Tatenda Mapulani in the mountain. He states that when Petros Chifodya asked why he was running, he told him he was pursuing Tatenda Mapulani in order to effect a citizen arrest on him and then hand him to the police. He denies ever telling Petros Chifodya that he was running from the Police Support Unit. The first accused person prays that he be found not guilty and acquitted. _**Second Accused’s Defence Outline**_ The second accused pleaded not guilty to the charge of murder. In his defence, he gives a history between him and Tatenda Mapulani. He says on or about the 20th of October 2023 at around 02.00 hours, he was assaulted by an unknown assailant while at his house using a catapult and this left him with a disfigured face. He was also fearful for his life. Later he established that the assailant was one Tatenda Mapulani. He made a report to the police neighbourhood watch member, Mr Dorera who was stationed in the area. On 23 October 2023 he was visited by first accused person, Nelson Mugada, Calvin Furusa and Obril Dhliwayo. They advised him that they must go for revenge against his assailant. Despite this advice, he says he refused to go and exact revenge as he is a prayerful and religious person who believes in forgiveness. He also did not want to put his family in harm’s way. His named colleagues, upon realizing he was averse to seeking revenge, are said to have suggested that they should go and engage Tatenda Mapulani to cover second accused person’s medical expenses. He yielded to this proposal, and they proceeded to Masamba Bottle Store at More-Better-Days. Upon arrival they found Tatenda Mapulani, his assailant boasting that he and his gang has assaulted him and his description was derogatory. Upon seeing the accused persons, Tatenda Mapulani ran off towards the mountains. His friends Nelson Mugada, Calvin Furusa and Tinashe Ngwerume and two others who have not yet been charged, pursued Tatenda Mapulani. The second accused denies following Tatenda Mapulani in pursuit and hence denies taking part in whatever ensued thereafter. He claims to have learnt through one of his friends who was not charged, through a phone call, that DJ had stabbed the now deceased to death. He was therefore not at the scene of the crime and took no part in the conception or execution of a crime that resulted in the death of the deceased. He did not know the deceased person, had no encounter with him on the fateful day nor prior so he had no motive to attack or kill him. He denies acting in common purpose with any person to attack or kill the deceased person. He did not attack or witness the attack on the deceased person. The second accused prays that he be found not guilty and acquitted. _**The State Case**_ The State opened its case by applying for the formal admission of the evidence of Anyway Mupindani, Josephine Tofirapo, Kudakwashe Mapengera and Museva Tasisiyo in terms of s 314 of the Criminal Procedure and Evidence Act. The same was formally admitted by consent. The postmortem report was admitted by consent as exhibit 1. It shows that the cause of death for the deceased was stab wound, left femoral vein section and hemorrhagic shock. Exhibit 2 is the confirmed warned and cautioned statement of the first accused in which he denies the charge of murder and says it was his colleagues who killed the deceased and he was only implicated because they were together. Exhibit 3 is the confirmed warned and cautioned statement of the second accused person in which he denies murdering the deceased and says he was not there when the deceased was murdered. The Probation Officer’s report in respect of first accused who is a juvenile was tendered as exhibit 4. The first witness to give evidence is **Tatenda Mapulani**. He related that on a date he could not recall, the second accused arrived at More-Better-Days mine with his colleagues. He is the only one he recognized due to earlier issues they had had. He claimed that he had visited the accused persons’ area and when he was in a bar holding a US$20 note, they snatched his money. An altercation arose and the accused persons attacked him and this marked the bad blood between them. The witness said that on the fateful day the accused persons found him playing snooker and they were six in number. When he felt cornered, he fled. He ran across More-Better-Days compound towards where the deceased resided. This was about 400 – 500m away. He had not talked to the accused persons before fleeing. The deceased who was sitting at his house asked Tatenda Mapulani why he was running and he retorted that the machete boys were coming as he cut across the deceased’s place. Each of the accused persons was armed with a different object. Some had knives, catapults, small axes or machetes. He knew them from that day they tried to snatch his money. The deceased stood up by his fowl run and watched him run towards the mountain. When Tatenda Mapulani was about 15-20 metres from the deceased he heard all the accused persons shouting in unison that they had to stab a delicate part as they had gathered around the deceased. He had looked back at that point as he was tired and going uphill. He did not see what first accused and second accused did. From the six people pursuing him, three continued pursuing him but he could not see clearly who it was as he was trying to save his life. This was after the deceased had been stabbed. When he got to the top of the mountain he was tired and rested after realizing that those who had been in hot pursuit were no longer there. It was around 20.00 hours that this witness learnt about the deceased’s demise. He had remained hidden in the mountain from 10.00 hours to 20.00 hours. He had not heard anything the deceased said when he was stabbed but heard the accused persons because they were shouting. Under cross examination when this witness was reminded that in his statement to the police, he had explained the source of his run in with the second accused was when he assaulted the second accused with a catapult and he lost some teeth and not the alleged snatching of a US$20.00 note, he was evasive saying that by altercation he included the catapult incident and he had forgotten. It was put to the witness that due to the injuries on second accused, when the accused persons and their colleagues went to More-Better-Days on 23 October they asked him to cover second accused’s hospital fees and he refused and ran away when they wanted to effect a citizen’s arrest on him. He denied this and explained that he fled when he realized that the 2 entry/exit points to the bar had been barricaded by armed people. It was when he saw the second accused emerging from the back that he ran. He explained that the deceased was someone he regarded as his uncle as he had grown up with his own father. The witness confirmed seeing the first accused chasing him as he was about 7 metres away. He was about 15-20 metres away from the deceased when he was stabbed but insisted that even though he did not see the first accused stabbing the deceased, he was there when it happened. He also denied that the first accused had continued to pursue him and never stopped. Tatenda Mapulani explained that he is feeling bad because the deceased who he considered an uncle died at the hands of people who were after him. He would be happy to see first accused convicted as he is not living in peace particularly as first accused’s father threatened him. When quizzed about his decision to flee, Tatenda Mapulani explained that the accused persons and their colleagues were armed and second accused shouted that they should stab him though this was said to be missing from his police statement. The witness insisted that all the six chased after him and when asked whether he had eyes in the back, he said he had counted them when they arrived at the bar and would glance back to check on their progress. He however agreed that the number 6 was his assumption. He denied that the second accused had remained at the bar and not chased after him. He could estimate first accused’s distance of 7m from him as he was closest whilst the second accused was in the crowd. The witness said that he had not heard the deceased scream or any other sound from him when he was stabbed. He had no idea why the people who were after him turned on the deceased. Tatenda Mapulani was unclear on who continued to pursue him and whether all six gathered around the deceased at the time of his stabbing. On one had he said he continued to run as he could not wait to be killed yet all had stopped around the deceased. On the other hand he said three people continued to pursue him. It was not explained what had happened to the first accused who had been only 7 metres away from him and therefore far off the deceased who was some 15 to 20 metres away from him. Curiously at a distance of 15 to 20 metres, this witness heard the accused persons and their accomplices shouting that they should stab the deceased on a delicate part but did not hear any screams from the deceased. Surprisingly this was not heard by witness Josephine Tofirapo whose house was said to be 20 metres away from the deceased. Instead, she heard the deceased calling out to her that he was dying. This witness lied about the source of the altercation between him and second accused person. Having seemingly forgotten about his recorded statement to the police he came up with a fresh version of his snatched US$20.00. Overall Tatenda Mapulani who confessed that he felt responsible for the deceased’s death as he was the one being pursued for having injured second accused, made it clear that he wants someone pinned down for the deceased’s murder as he is not living peacefully. The way he then gave his evidence makes his credibility questionable. **Petros Chifodya** was the second State witness. He knows the first accused person as his child’s friend as they used to go to same school. He does not know the second accused person. He was not at the scene of the crime at the relevant time. He was working as a security guard for More-Better-Days under the supervision of one Jessie Sanudi. She is the one who called him on the phone and advised him of the murder and requested that he drive a motor vehicle to Mastamba in search of the perpetrators. He inquired of the route taken by the perpetrators and walked up the mountain around 10am to 11am soon thereafter. It was in the mountain that he met the first accused person who was in the company of another boy who was then introduced by the first accused person as Calvin and was wearing a black T-shirt, shorts and gumboots. First accused was holding his shirt and was topless. He got the impression that Calvin had intentions of fleeing but was reassured by the first accused that he was known to him. The witness walked with them as they were trying to find their way to Lowdale Farm as they said they were lost. Upon inquiring as to why they were running, they are alleged have said that they were fleeing from the Support Unit. He pacified them by appearing as if he wanted to show them the way. They even asked to use the witness phone and he gave them and they made calls. They walked for an hour and about 2km together with first accused walking close to the witness but Calvin was not following the route he was directing them towards. They arrived at where the mob of 100 – 150 was gathered, those who had come from the crime scene. This was at More-Better-Days Mills. The crowd is said to have shouted that it was them, the murderers and went towards them intending to assault them. He then handcuffed them. They were then taken to More-Better-Days where Marlborough Police were called in and the witness handed them over to the police. He had seen only one member of the Support Unit among the waiting crowd. Under cross examination, the witness insisted that even though his statement to the police recorded that he did not know the first accused, the truth was his oral evidence before the court. Further that he had said first accused was with Calvin and not Nelson as appearing in the police statement. He reaffirmed that he was not an eye witness to the murder. He had been armed with a firearm. First accused was not armed but was running and there was no blood on him. He was calm and might have stopped because he recognized the witness as someone he knew. The first accused’s explanation when he asked him was that he was running away from the Police Support Unit. This witness had not met the second accused in the mountain and had no way of confirming his involvement in the commotion and murder crime. This witness stuck to giving evidence on what he personally saw. He gave his evidence well and explained the inconsistencies between the police statement and his oral evidence as arising from errors in recording. He was not shaken in cross-examination. We accept his version of events. The third witness was **Davison Zandu** who resides at More-Better-Days compound and works at Dand Mine. He claims to know both accused persons. He had been asleep around 10:00am when his wife Josephine Tofirapo woke him up saying the deceased was screaming. He rushed to deceased’s place and looked towards the mountain. He saw people running up the mountain and identified second accused and called him to stop but he did not respond or stop. His wife had been called by the deceased. He had called the second accused by his name and he was about 20-30 metres away. He related what he had been told about the incident when Tatenda Mapulani hit the second accused with a catapult whilst he was looking for his girlfriend. This he claimed to have heard from second accused whom he believes, had mobilized his own team in order to revenge or apprehend Tatenda. Despite saying he had been asleep till he was woken up by his wife, Davison Zandu went on to describe what had happened at the shops when the accused and their accomplices approached Tatenda Mapulani up to when the deceased was stabbed. Needless to say, this was all hearsay evidence which is not relevant to the court. Upon arrival at the deceased’s place Davison Zandu noticed that the deceased was bleeding from between his legs. He did not talk to him. Thereafter this witness went to the other side of the mountain and at that point he found that first accused and another person had been apprehended. The trip to the other side took 1½ hours. When he saw the accused persons going up the mountain he could not tell if they were armed or holding anything. Davison Zandu’s homestead is 25 metres from that of the deceased and there is clear visibility. He did not see the deceased being stabbed but saw 6 people running. The witness was able to identify the second accused but not the first accused whom he also knew because he was already at a distance. Though in his statement to the police he had said the accused persons were holding Colombia knives, under cross examination he said he could not tell as they were at a distance but were armed. He particularly did not see whether the first accused was armed as he was at a distance. As a gold panner Davison Zandu would sometimes work with the accused persons at different gold claims. When pressed for comment Davison Zandu clarified that the second accused had not told him about any plans to revenge. The only reason Davison Zandu linked the accused to the crime is that they had passed through the deceased’s homestead. On that ground he could not deny the possibility of Tatenda Mapulani who passed through having possibly murdered the deceased. On how he identified the second accused person the witness said he identified him from the way he walks. When it was put to him that he had said second accused was running, he said you cannot miss someone you know. He had seen second accused’s back as he was running. He had not seen second accused holding any weapon. When pressed to reconcile his statement to the police where the witness had said the accused persons had Colombia knives, he said he had not seen the two accused persons armed but they were many and he does not know who exactly stabbed the deceased. Though the State had earlier applied to have the evidence of **Josephine Tofirapo** , formally admitted that formal admission was withdrawn and she was called as the fourth witness. She is wife to Davison Zandu and lives at More-Better-Days Compound. She does not know the accused persons. On the day in question, she was at her home when she saw Tatenda Mapulani running from the direction of the shopping centre. She asked him twice what he was running away from but he did not respond. She stood at a nearer spot to see what he was fleeing from, and he was about 25 metres from her. She saw a group of about 5 or 6 men pursuing him. One was holding what looked like a small axe, another a machete, others bottles and some had shiny objects she believed were knives. She also heard Tatenda Mapulani shouting to the deceased asking him to give him a slasher or machete. He was about 20 metres away from the deceased. The deceased responded that he did not have these. By then Tatenda Mapulani was about 20 metres from the chasing gang. She saw one of the young men producing a big knife from his pocket which was about 45cm long. She saw the shiny blade and concluded it was a knife. The young men continued running after Tatenda Mapulani. The witness was scared, took her child and hid behind a set of sofas at her residence. She did not see what was done when the accused persons and their accomplices got to the deceased’s house. They must have lasted for only 2 minutes at the deceased’s place. She then saw the group running up a mountain close to their residence when she was still in hiding at the back of the house. She believes that the group had maintained its number. When she saw that they had left, she moved back to the front of the house where she had been eating some food. As she sat to resume eating she heard the deceased calling twice, “Addie’s mother I am dying.” Their houses are about 20 metres apart. She ran to deceased’s place and saw a lot of blood flowing from his thigh. When she got to the scene the deceased was seated and he fell down and could no longer communicate with her. She tried shaking him hoping to wake him up. He was opening his mouth but no voice was coming out. It was as if he wanted to say something. She poured water on him hoping to revive him to consciousness. He then stopped breathing and put his head to the side and his hand fell. She then realized that he had died. She had not seen where Tatenda Mapulani had run to but the chasing pack continued pursuing him. She confirmed under cross examination that she had not seen either the first or second accused persons stabbing the deceased. She could not match any of the accused persons to the weapons as she did not know any of them. She does not know whether it was first or second accused who withdrew a knife from their pocket. The witness insisted that the chasing group had remained intact so she did not see first accused continuing to pursue Tatenda Mapulani on his own. It was posited that the pursuing group should be held responsible for the stabbing of the deceased as they passed through and he was stabbed. She excluded Tatenda Mapulani an account of not having been armed as he was asking for a machete from the deceased. Furthermore the witness was not sure if 5 or 6 people were pursuing Tatenda and she had not clearly seen the faces of the chasers. The fifth witness to give evidence was **Final Chauke** , the Investigating Officer. He was not the arresting detail. When the docket was handed over to him, the first accused had already been arrested by some farm employees in Christonbank. He took him for indications. The apprehending witness indicated that he had arrested first accused and Calvin Mugada in the mountain as they were running away. Upon being asked why they were running they had said they were running away from the police. This was said to be a lie as there were no police officers after them. This lie and the running was deduced to mean that they had something to do with the murder. The second accused person was arrested later in Shurugwi. They collected him from Shurugwi and took him for indications. The first accused person and other accomplices had implicated the second accused person as the ring leader or gang leader. His fleeing from the scene was said to point to that he had a hand in the death of the deceased. The arresting details and the investigating officers had not recovered any weapons. The investigating officer reasoned that since the accused persons and their accomplices had passed through the scene during the relevant time, they should have arrested the murderer or assisted with information to pass to the deceased’s relatives. They should have reported at the nearest police post. Instead they fled and this shows that they were involved in the commission of the murder. Under cross examination, the witness clarified that he had not found a witness who had seen deceased being stabbed but they saw the accused persons and their accomplices surrounding him. When questioned about whether he had investigated the second accused’s claim that he was not at the crime scene, he said that is the information the witnesses would provide and it would be up to the court to decide but he was certain second accused was lying. It was put to the Investigating Officer that the second accused’s going to Shurugwi should not be read to mean that he was guilty as Shurugwi is a mining town too and second accused is an artisanal miner. Upon his arrest, the second accused had said he had left Christonbank as his life was in danger from the deceased’s relatives and so had left for personal safety. He never confessed that he had killed the deceased. The witness believes second accused wanted to exact revenge on Tatenda Mapulani. The evidence of Anyway Mapindani which was formally admitted is said to be similar to that of Tapiwa Nyambuwa. Tapiwa Nyambuwa Komborerai, Oscar Makoni and Kudakwashe Mapangera were not located and they were unavailable to give evidence. **Anyway Mapindani** ’s evidence is to the following effect. On 23 October 2023 at around 1030 hours he was in the company of Norman Baula and Tapiwa Nyambuwa and they were sitting at his house when they saw Calvin Furusa and first accused and others running and chasing Tatenda Mapulani. They heard the deceased cry out for help and ran towards him. Upon arrival he observed the now deceased lying on the ground facing upwards while blood was flowing from a deep cut on the right thigh. He inquired about the people who had stabbed the now deceased and heard that they had run into the nearby mountain. He identified some of the accused persons from the people who had gathered around the body of the now deceased. **Museva Tasisiyo** ’s evidence was also formally admitted. He is a duly attested member of the ZRP who was stationed at Marlborough Police Station during investigations. On 23 October 2023 at around 1100 hours, he attended at Christonbank after receiving the report of murder. He went with Inspector Chirambiwa, Constable Maonya, Sergeant Mazangara, Constable Zuze and Constable Mafoti. Upon arrival he summoned officers from CID Homicide and studios to the scene. He observed that the deceased’s body had deep cut wounds on the neck and thigh. He recorded witness statements which were made freely and voluntarily. The body of the now deceased was ferried to Parirenyatwa Hospital and Dr Robert Guillen conducted a postmortem examination and concluded that the cause of death was hemorrhage shock, left femoral vein and stab wound. With this evidence, the State closed its case. _**First Accused’s Case**_ The first accused person gave evidence as follows; on the date in question he was at More-Better-Days shops in the company of five others being Calvin Furusa, Nelson Mugada, Obrey Dhliwayo, Bradley and second accused person. They knew each other as they stayed in the same location. They saw Tatenda Mapulani at the shops. Four days before, Tatenda Mapulani had struck the second accused with a catapult. They approached him and told him that the person he had injured needed money to go to hospital. He refused and Calvin Furusa suggested they apprehend him and hand him over to the police. Tatenda Mapulani is said to have fled when he heard the mention of police. He went in the direction of the mountain. He pursued him and he passed behind the deceased’s homestead. The first accused was leading the pursuing group and was fast on Tatenda Mapulani’s heels. It was only later that he looked back and was surprised to see that he was alone. When they got to a trench in the middle of the mountain, Tatenda Mapulani jumped over it but first accused failed and that was when he lost Tatenda Mapulani. He had continued looking for him but he failed to find him. That was the time he met Petros Chifodya who inquired why he was running. He told him he was looking for Tatenda Mapulani whom they intended to take to the police as he had struck second accused with a catapult. It was at that time that Calvin Furusa arrived, coming from a different direction. He shouted asking whether first accused had found Tatenda. He said no. After about 5 metres Petros Chifodya announced that he had arrested first accused and Calvin Furusa for the murder of someone. The first accused said that he did not panic as he knew nothing. He however noticed that Calvin Furusa appeared to want to hide as he was walking far apart and would shout but he did not know why. They proceeded in handcuffs to Maserengeti where there was a crowd of people who were shouting different things. They sat by a Support Unit Police Officer who was dressed in civilian clothes. They sat for about 20 minutes. A phone call came through from Sas Mine and was put on loud speaker. The caller said that Obrey Dhliwayo had been seen with a blood stained knife which he had shown to Spencer. He was described as tall, slim and dressed in all black. The crowd shouted that it was him who had stabbed the deceased. They drove to that place and returned with a young man/boy who was dressed in all black but he had not been in accused and accomplices’ company. Though there were 6 people who went together to More-Better-Days, only 5 of them chased Tatenda Mapulani as second accused was not part of the chasers. This was because he was injured and had no strength to pursue Tatenda Mapulani. The first accused did not know the deceased and their plan had been to apprehend Tatenda Mapulani and hand him over to the police. They had not planned to murder the deceased. They had reported Tatenda Mapulani to the police but the police did nothing so they simply wanted him to pay for second accused’s medical treatment. Under cross examination, the first accused clarified that he had no weapon and had continued to pursue Tatenda Mapulani after passing through, what he later learnt was deceased’s backyard. He had not been present when the murder was committed and found out later that a man had been killed. The first accused denied that he was acting in common purpose with anyone to commit the murder as what he had been focused on together with his accomplices, was to apprehend Tatenda Mapulani and hand him over to the police. The first accused considered the second accused as a father as he was staying with his mother’s sister. With this evidence the first accused closed his case. _**Second Accused’s Case**_ The second accused started by giving the background to his squabble with Tatenda Mapulani. He had been asleep on 20 October 2023 around 0200 hours when someone knocked on his door looking for a woman called Bibi and accusing him of being with her. Tatenda Mapulani became a nuisance as he continued knocking and disturbing their peace. He decided to open the door so that he could prove that he was with his wife and not the said Bibi. Upon opening the door he was immediately attacked and later figured out that a catapult had been used. So severe was the pain that he thought a knife or metal rod had been used. He realized that a tooth was missing and he was bleeding. He could not afford to go to the clinic for medical attention as he had no money. He visited Mrs Dorera a community health worker to get betadine in order to dress the wound. Mr Dorera was “a village police man.” He told him of the assault but had no knowledge of whom the perpetrator was. It was only when he returned home that his wife told him that his assailant was one Tatenda who had also attacked some other lady as he was looking for Bibi whom she used to reside with. Further investigations revealed that it was Tatenda Mapulani. On 23 October 2023 he met up with his colleagues around 06.30 hours at a tuckshop. These were Nelson Mugada, Kelvin Furusa, Tinashe Ngwerume and Obrey Dhliwayo. They proposed that they should go on a revenge mission against Tatenda Mapulani. He was not agreeable to this and left to go home and rest. He gave his phone number to Calvin Furusa. When the second accused got home, he told his wife and one Gradi, whom they were staying with at the same place about the proposed revenge mission. Gradi was all for the revenge mission but he was not and he chided Gradi for being impulsive. His wife advised him not to go if he was not interested. Calvin Furusa was calling him persistently. The second accused then shared with them what he was feeling in his blood. Though not a traditional healer nor a prophet, he felt in his blood and heard voices that something bad was going to happen and the day would not pass without a murder occurring. His colleagues then came to his house and proposed that instead of going on the revenge mission, they should approach Tatenda Mapulani and demand money for medical attention. He agreed to this and they went to More-Better-Days. When they arrived where Tatenda Mapulani was, he heard him explaining how he injured him. In a short while Tatenda Mapulani bolted out of the bar and second accused’s colleagues pursued him. As he had not agreed to this course of action, second accused, who was afraid of further injuries walked back to Lowdale farm where he resides which is about 500 – 600m from More-Better-Days. Later he received a call from Gradi in which he said DJ/Obrey Dhliwayo had stabbed someone. He could not understand what the reason for the stabbing was but realized that this was going to disturb his stay in the area which he was considering as home. After walking for 10 metres, his wife called him asking if he had heard what the tall man had done. She too had no explanation for the stabbing. A short while later he heard the sound of singing and a drum from Maserengeto compound. He called his wife to bring him food through his uncle but the uncle was no longer there. He then heard the sound of a motor vehicle approaching from Maserengeto area to where he resided. The people disembarked and conducted a search of the whole compound whilst he remained in the mountain until around 19.00hrs. He then heard gunshots. Around 05.00 hours he heard that his items had been burnt and soon thereafter at 06.00 hours he left Mazowe for Highfield Harare as he feared for his life. He explained to his parents and sisters what had happened and stayed in Highfields for 12 days. Thereafter he went to Shurugwi on 3 November to get blankets through his sister so as to earn a living. She gave him the blankets and US$70.00 and intended to return to Harare on 5 November 2023. He was arrested in Shurugwi and then transferred to Marlborough Police Station. He had consistently professed ignorance of the crime commission as he insisted he was not present when the crime was committed. Under cross examination the second accused clarified that he lived in Lowdale farm which is 2.5km away from More-Better-Days. He knew the first accused as a friend to his elder brother. It was easy for someone to get lost on their way to Lowdale in the mountains as these are big mountains. He clarified that the genesis of the dispute with Tatenda Mapulani was a girlfriend. Tatenda was looking for but he was with his wife. He insisted when he walked for 2.5km to More-Better-Days it was not to mete out revenge but to negotiate for medical expenses with Tatenda Mapulani. He had not had a chance to talk to Tatenda when they got to More-Better-Days as he immediately bolted and he had not advised his colleagues to do anything to him. Between 20 October 2023 and 23 October 2023, the witness said he was unable to go to work because of the injuries inflicted by Tatenda Mapulani. The second accused denied ever confiding in Davison Zandu about the assault by Tatenda Mapulani. He also denied that he was armed with a small axe with a red cloth when he went to More-Better-Days. He denied too having acted in common purpose with his alleged co-perpetrators in commission of the murder. He hid in the mountain after hearing of the murder as he was afraid as he had been seen walking with people who had committed the crime. He did not know the deceased. With this the second accused closed his case. _**Common Cause Facts and Disputed Facts**_ It is common cause the now deceased person was at his home on 23 October 2023 when he was stabbed on the neck and thigh resulting in injuries which claimed his life. It is also common cause that Tatenda Mapulani had assaulted the second accused and injured him using a catapult on his mouth some three days prior and had slipped away. The first and second accused persons together with 4 others, namely Nelson Mugada, Kelvin Furusa, Obey Dhliwayo and Gradi had proceeded from Lowdale farm to More-Better-Days compound which was some 2.5km away to confront Tatenda Mapulani about the assault on the second accused. What is disputed is what their purpose was in visiting More-Better-Days. It is not clear whether the second accused and his gang ever confronted Tatenda Mapulani upon arrival and the nature of such confrontation. Another issue crying for resolution is whether the accused persons and their accomplices were armed when they went to More-Better-Days. It is also common cause that Tatenda Mapulani fled in the direction of the mountain and passed through the deceased’s home. What is unclear is whether both accused persons and their accomplices pursued him. It is an agreed fact that those pursuing Tatenda Mapulani also passed through the deceased’s home. Within minutes of their passing the deceased was heard screaming that he was dying. Those who rushed to the scene found him bleeding profusely and he died shortly thereafter. No one saw the person/s who actually stabbed the deceased. All witnesses saw that the chasers gathered around the deceased and he then cried out for help. It is also to be resolved whether they all gathered around the deceased or some continued chasing after Tatenda. Another issue calling out for resolution is whether the accused persons and their accomplices acted in common purpose in assaulting the deceased by stabbing him and consequently causing his death. The post mortem report clearly lays out that death was caused by “hemorrhage shock, left femoral vein and stab wound.” _**Analysis of Evidence and resolution of disputed facts**_ _._ What was the purpose of the accused persons in travelling for 2.5km from Lowdale Farm to More-Better-Days? The first accused person gave evidence that seemed to imply that they had just gone to More-Better-Days routinely when they saw Tatenda Mapulani and remembered that about 3 or 4 days ago he had struck and injured the second accused person. They then approached him and demanded money for medical attention. When he refused to give this, Calvin Furusa is said to have then suggested that they should apprehend Tatenda Mapulani and hand him over to the police. At the mention of the police, Tatenda Mapulani then fled and they pursued him. Contrary to this version, the second accused says that whilst they were still in Lowdale Farm, the issue of a revenge mission had been discussed. This was allegedly discarded when the second accused refused to play along. He only agreed to go when they settled for demanding medical expenses and he had warned them of his premonition that something bad would happen and someone would be murdered by his gang. There is a clear inconsistency between the two versions. The first accused person was at pains to erase anything to do with a revenge mission hence the tale about a chance meeting with Tatenda Mapulani. It is also incredible that five men and 1 boy would travel for 2.5km to simply claim medical expenses whose amount they were unaware of as the second accused person said that he did not know the amount as he had not yet gone to the clinic. We conclude that the purpose of the visit was to exact revenge on Tatenda Mapulani. There is also dissonance between the first and second accused on what happened upon arrival where Tatenda Mapulani was. The first accused person said that they approached Tatenda Mapulani and demanded medical expenses and it was when he refused that they suggested apprehending him and handing to the police, then he fled. On the other hand the second accused person says Tatenda Mapulani bolted upon seeing them. There appears to have been no confrontation. The State, on its part did not call any witness who was present at the bar where the parties met. How is it that if the first and second accused arrived together, they would tell such different versions of the initial interaction? The second accused person’s version is in line with that of Tatenda Mapulani who says he bolted upon seeing the accused persons and feeling that he was cornered as he knew that he had injured the second accused person few days before. This is the version which we accept and we discard that of the first accused person. The next question is whether the accused persons and the 4 others were armed. Tatenda Mapulani says that all six were armed with knives, catapults, small axes and machetes. Josephine Tofirapo saw the accused persons and their accomplices chasing after Tatenda Mapulani. One was holding what looked like a small axe, another a machete, others bottles and some shiny objects which she believed were knives. She even saw one young man producing a big knife from his pocket. Due to the shiny blade she concluded that it was a knife. Unfortunately, the State was unable to secure the evidence of Komborerai Oscar Mukoki as he did not come to testify. He is the one other witness who had seen that the accused persons were armed. Given the evidence from Josephine Tofirapo and Tatenda Mapulani, we conclude that the accused persons were armed otherwise it would have been foolhardy for them to get into the territory where second accused’s assailant was without any form of self-protection on their part. In any event the postmortem report concludes that the deceased had stab wounds. We now move to consider whether the second accused person was in the group that pursued Tatenda Mapulani. He says he did not as he feared further injuries. First accused says second accused remained behind as he was not yet strong enough. Josephine Tofirepo was not sure whether she saw 5 or 6 pursuers. She was too shocked to count properly. Tatenda Mapulani had counted 6 people upon their arrival and assumed they all chased him. Davison Zandu said he saw the second accused amongst the pursuers as he knew him prior and identified him from his walk, though he was running and he did not see his face. He had called second accused but he did not respond. Can we rely on this identification by Davison Zandu? In the case of _S_ v _Dhliwayo & Anor_ 1985 (2) ZLR 101 (SC) it was held as follows: “Where an identifying witness has been shown to be careful and truthful, it is not always necessary for the witness to give details of every feature by which he identified the accused. Evidence of identification, however, must be treated with some caution and the reliability of the witness’s evidence must be tested against the cumulative weight of such factors as lighting, visibility and eyesight, his proximity to the accused, his opportunity for observation, the extent of his prior knowledge of the accused, the accused’s features and appearance, the result of an identification parade and the accused’s evidence.” Davidson Zandu was not careful and truthful in giving his evidence. He related what had happened at the shops when Tatenda Mapulani saw the accused persons and accomplices as if he had been there. He was quizzed on this and relented that he had been asleep in his house. He also confidently stated that the second accused person had mobilized his own team to revenge or apprehend Tatenda. Under cross-examination, he backtracked and said the second accused person had not told him of any plans to mobilise a gang and revenge. He also said he had not seen second accused chasing Tatenda Mapulani as he had been asleep. All that was hearsay evidence. Davidson Zandu’s evidence of identification should be treated with caution. He claimed that he worked together with second accused person. Under cross examination he clarified that they had worked together at different gold claims in the past. They did not work together at Dand mine where he works. The nature and length of the alleged working together was not clearly laid out so as to establish prior knowledge. The second accused was allegedly running up the mountain with his back to Davison Zandu. He was about 30 metres away. Davison Zandu says he identified him from the way he walks. But he was not walking, he was running. It was a highly mobile scene. He did not see the second accused’s face. He called the alleged second accused by name but there was no response. No turning, no faltering, no calling back. Upon further quizzing as to whether he could see the second accused’s body, Davison Zandu said he could only see half the body. There was clear lighting as this happened in the morning. This means therefore that the witness’s vision was blocked by the trees, and grass which he said were in the mountain. From that same distance he could not see if the accused persons were armed. No outstanding features and appearance of the second accused person have been pointed to in support of his identification. The court is alive to the caution is _S_ v _Mthetwa_ 1972 (3) SA wherein it was held that: “Hence a cautious approach is necessitated, not only because a conviction is sought on the evidence of a single witness, but also because the identification of an accused person is a matter notoriously fraught with error. It is an area wherein the potential for honest mistake looms large.” Given the above caution and the shortcomings already pointed out in Davison Zandu’s identification of the second accused, it would be unsafe to convict the second accused on this sole evidence which places the accused at the scene of the crime. The State should have placed solid evidence before the court placing the second accused at the scene of the crime. We have no choice but to accept the second accused’s version that he did not pursue Tatenda Mapulani but remained at the shops, some 50 metres away from the crime scene. We turn now to consider whether the first accused person was at the crime scene when the murder was committed or whether he had continued to pursue Tatenda Mapulani and not stopped at the deceased’s homestead. The first accused says that he was leading the pursuing pack. Tatenda Mapulani confirms this when he says that the first accused was about 7 metres away from him and was closest whilst the second accused was in the crowd and further away. In his evidence in chief, Tatenda Mapulani was asked whether all the 6 people had continued to pursue him at the point of gathering around the deceased. He answered that from the six, three had continued pursuing him but he had not seen clearly who it was as he was trying to save his life. It was when he got to the top of the mountain that he realized that the 3 were no longer pursuing him and he rested. At the same time Tatenda Mapulani said that the vegetation in the mountain are big trees and grass. The same question was put differently under cross examination. It was whether when they were at the deceased’s place there was continued pursuit of Tatenda Mapulani and he said that some of them followed behind him. As they gathered and shouted at the same time, same continued to pursue him. He continued to run because someone was still in pursuit of him. By the time Davison Zandu had been awoken up all he saw was the second accused and his gang running into the mountain. It was well after the stabbing had occurred. He linked the first accused to the crime because when he went to the other side of the mountain, the first accused had already been apprehended. He does not know, therefore, if the first accused did not stop at the crime scene. He had not seen if the first accused was armed as he was at a distance. Witness Josephine Tofirapo had not seen what the pursuing gang had done at the deceased’s place as she had hidden behind a set of sofas at her house. She only then saw the group running up the mountain. Initially her vision was blocked by the makeshift bath and it was only when she moved to the front door that it was clearer. She however insisted that the group had been maintained intact and she could not tell them apart. No other witness gave evidence on the availability of the first accused person at the crime scene, at the relevant time. Given the questionable credibility of Tatenda Mapulani who lied about the source of the squabble with second accused and his expressed wish to see someone pinned down for the murder of someone he considered an uncle and the apparent inconsistency in his evidence, it would be unsafe to find that the first accused person stopped at the crime scene and participated. We therefore find that he continued to chase after Tatenda Mapulani. _**The doctrine of common purpose applied**_ Having found that both the first and second accused were not at the crime scene at the relevant time, we turn to consider whether the net can still catch them on account of the doctrine of common purpose which has now been codified under s 196 A the Criminal Law Code. This section provides for the liability of co-perpetrators in the following terms; “196A liability of co-perpetrators 1. If two or more persons are accused of committing a crime in association with each other and the State adduces evidence to show that each of them had the requisite _mens rea_ to commit the crime, whether by virtue of having the intention to commit it or the knowledge that it would be committed, or the realization of a real risk or possibility that a crime of the kind in question would be committed, then they may be convicted as co-perpetrators, in which event the conduct of the actual perpetrator (even if none of them is identified as the actual perpetrator) shall be deemed also to be the conduct of every co-perpetrator, whether or not the conduct of the co-perpetrator contributed directly in any way to the commission of the crime by the actual perpetrator. 2. The following shall be indicative (but not, in themselves, necessarily decisive) factors tending to prove that two or more persons accused of committing a crime in association with each other together had the requisite mens rea to commit the crime, namely, if they – 1. Were present at or in the immediate vicinity of the scene of crime in circumstances which implicate them directly or indirectly in the commission of that crime, or 2. Were associated together in any – conduct that is preparatory to the conduct which resulted in the crime for which they are charged; or 3. Engaged in any criminal behaviour as a team or group prior to the conduct which resulted in the crime for which they are charged. 3. A person charged with being a co-perpetrator of crime may be found guilty of assisting the actual perpetrator of the crime as an accomplice or accessory if such are the facts proved.” We have already made factual findings that both accused persons were not in the immediate vicinity of the crime scene as the second accused person had remained some 50 metres away at the shops and the first accused had sped past, hot on the heels of Tatenda Mapulani. It was our finding that the two accused persons together with the already named 4 others, had met whilst in Lowdale Farm and discussed meting out revenge against Tatenda Mapulani. It was our further finding that they armed themselves and upon arrival in More-Better-Days they sought out and located Tatenda Mapulani. When he bolted, 5 of them pursued him. They were bent on exacting revenge on him. Can it be said that they intended to murder the deceased, someone clearly unknown to the two accused before me? We think not. Their target was Tatenda Mapulani whom they pursued relentlessly. Could it be said that they had the knowledge that such a crime would be committed? One cannot conclude so beyond reasonable doubt. Yet still, can one say they realized the real risk or possibility that a crime of this kind would be committed yet continued to associate with the perpetrators. The second accused is the one who gave evidence that he had a premonition that such a crime would be committed. In his words, he said he could feel it in his blood and could hear voices warning him. He had had such prior experiences which had turned out true. So if he was certain that a murder would be perpetrated, why travel 2.5km with an armed gang to seek revenge on someone who had injured him? Is it safe to convict him on the basis of a premonition? In _S_ v _Madzokere_ & _3 Ors_ SC 71/21 Makarau JA (as she then was dealt with the doctrine of common purpose which has since been codified in s196 A of the Criminal Law Code. She said the doctrine is; “a principle that deems the participating of two or more persons in the commission of a crime where the two or more persons associate with a common intent to commit the crime and one of them does commit the crime. It thus provides for co-perpetrators of crime with common intent. In essence, the doctrine provides that if two or more people act together in pursuance of a common intent, every act done by one of them in furtherance of that common intent is deemed at law to be the act of them all.” _In casu_ , the common intent was to exact revenge on Tatenda Mapulani. If it was Tatenda Mapulani who had been murdered, then we could easily have concluded the two accused persons are liable as co-perpetrators. The deceased did not die in pursuance of a common intent. Noone is clear as to why he died. He is not the only one who spoke to Tatenda Mapulani as he fled. It would be stretching too far to find the two accused persons liable as co-perpetrators in the circumstances of this case. _**Legal conclusion**_ It is our finding that the State has failed to prove beyond reasonable doubt that the first and second accused, on 23 October 2023 and at 10.30 hours and More-Better-Days, one or more of them with intent to kill or realizing that there was a real risk or possibility that their conduct might cause death and continued to engage in that conduct and assaulted Charles Sanudi by stabbing him on the neck and right thigh with a knife causing injuries from which the death of Charles Sanudi resulted. Furthermore, the State has failed to prove the application of the doctrine of common purpose as codified in s 196A of the Criminal Law Code, to the circumstances of this case. Resultantly both first and second accused persons are found not guilty and acquitted. **Muchawa J:……………………………………………………** _National Prosecuting Authority,_ State Counsel _Matipano and Matimba,_ first accused’s legal practitioners _Matlaw,_ second accused’s legal practitioners