STATE v GWATIDZO (320 of 2025) [2025] ZWHHC 320 (30 May 2025)

5 HH 320 - 25 HCH CR 5934/24 STATE versus TAKUNDWA GWATIDZO HIGH COURT OF ZIMBABWE MUCHAWA J HARARE; 10, 11 March and 30 May 2025 Assessors: Mr Chimonyo Prof Mpofu Criminal Trial Mr T Mukuze, for the state Mr Manyonga with Mr Chiromo, for the accused MUCHAWA J: The accused is being charged with murder as defined under section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He is a male adult residing at house number 14 Cedar, Manresa Park, Harare. It is alleged that he murdered one Alluance Muronda (hereafter referred to as “the deceased”, by assaulting him all over the body with a slasher and plank thereby causing injuries from which the deceased died. State Summary In the opening statement, the state alleged that on the 8th day of March 2024, the deceased who was a psychiatric patient disappeared from Chikurubi Support Unit Camp where he had visited his cousin brother and proceeded to number 14 Cedar Road, Manresa, Harare, being the accused’s place of residence. The state alleged that the deceased was found in the dining room, having removed a cardboard box that had been used to replace a broken window. The accused woke up after hearing some sounds and caught the deceased. It was the State’s case that the accused assaulted the deceased with a wooden plank on his body and a slasher and he sustained some injuries and that he intended to kill the deceased and that he had realized that there was a real risk or possibility that his conduct might cause the death of the deceased, but he continued to engage in that conduct. A docket of assault was also opened against the accused and that’s when Inspector Musosonori noticed injuries on the accused person. The now deceased was taken to Parirenyatwa Hospital where he was treated and discharged on the same day. On the 9th day of March 2024, the now deceased was taken to Mabvuku Police Station and handed over to his brother Nathan Madza. He was under his brother’s custody since he was a mental patient so he would be brought the following day to court. On the 11th day of March 2024 during the night, the condition of the deceased got worse. He was taken to Parirenyatwa Hospital where he was pronounced dead upon arrival. A post-mortem examination was carried out on the body of the now deceased and the cause of death was cerebral oedema and head trauma. A slasher and a wooden plank which were used to assault the deceased were recovered. The Defence Outline The accused denies the charges in toto. He denies intentionally or negligently causing the death of the deceased. He states that on the night in question around 0100 hours. He was woken up by his mother after she heard noises outside the house and he was instructed to check was happening. On his way, he met with the deceased who was hiding in the dining room. The deceased charged at him and a scuffle ensued. Whilst they were fighting, the deceased grabbed his testicles and he let go of the deceased who then ran outside, and he pursued him. Whilst outside he eventually managed to restrain the deceased, bound him and sought the help of his uncle Shyleen Khumalo and neighbour Tawanda Nhekede to ferry the deceased to Highlands Police Station. They used an Isuzu open truck and Tawanda Nhekede was driving. O n their way to Highlands Police Station, it is alleged that the deceased kept pounding his head against the truck’s walls to escape and was shouting that, “It is better to die than to be taken to the police” A t the police station they filed a report of unlawful entry into premises and returned home that very evening and the deceased did not mention anything about the accused having assaulted him. The accused denies ever having used a slasher or plank in his scuffle with the deceased. He avers that at all material times he acted in self-defence, defence of property and defence of other persons in the house. The State Case The State opened its case by tendering the postmortem report which shows that the cause of death was cerebral oedema and head trauma. This was entered as exhibit 1 without any objections. Exhibit 2 is the accused’s confirmed warned and cautioned statement, in which he denies the allegations against him and states that he acted in self defence after the deceased had intruded into his house and pulled his private parts. Exhibit 3, entered without objections, is the weighing certificate for the plank allegedly used to assault the deceased and it show a weight of 200g. The evidence of Mlambo Nyoni, Clapperton Muronda, Justice Zinyenge and Elizabeth Munyukwi was formally admitted in terms of s 314 of the Criminal Law Codification and Reform Act [Chapter 9:07]. T he State first called Shyleen Khumalo, who is the uncle of the accused and was present at the house where this incident occurred. He alleged that he was drunk on the day in question. He testified that on 8 March 2024, whilst he was sleeping, he heard some noise outside and heard the accused calling “thief, thief” and he heard some footsteps outside. He initially ignored but it appeared as if there were people fighting outside. He testified that he went outside. He also stated that he went to the accused who was by the side of the house holding the now deceased who had intruded into their premises. He did not use any force; he was just holding him so he could not escape. He averred that he saw the accused holding a plank, but did not see him using it on the now deceased. He further testified that he saw four people in the maize field who then disappeared into darkness. He averred that the now deceased was trying to escape. His hands and legs were bound using a rope for them to take him to Highlands police station, but he was showing resistance. He testified that he went inside the house to inform the accused’s mother about what was happening outside. The mother, Mlambo Nyoni called a neighbour Mr Tawonga Nhekede who came to assist in taking the deceased to Highlands Police Station. Both the accused and the deceased had bruises on their hands. He said that along the way the now deceased was hitting his head on the car as a sign that he did not want to go to the police and wanted to jump off the vehicle. The now deceased was smashing his head on the bull bar at the back of the Isuzu truck. He also said the accused did this several times but cannot remember the number of times. He had noticed that the now deceased had sustained injuries because of hitting his head on the car. He had not seen accused and deceased fighting, had not seen accused using the wooden plank on the deceased but just saw him holding it. He had also heard the deceased saying that he did not want to go to the police. This witness was initially confused about his role as a witness and seemed to think he was before the court to pass a verdict on the accused. He said he was drunk on the day in question and after he had been reassured on the need to tell the court what he witnessed on the day in question, he settled well into giving his evidence. He impressed as a credible witness and did not hide that he had seen the accused holding a plank but had not seen him use it. We accepted his evidence as a true version of events, particularly as it was confirmed by the accused and Tawonga Nhekede. Mlambo Nyoni’s evidence was admitted without objections, in terms of section 314 of the Criminal Procedure and Evidence Act. She testified that the accused is her son. She averred that on 8 March 2024, she heard a noise outside her house, she went and awakened the accused who was asleep in his room. She testified that heard a sound coming from the dining room from the window covered by a cardboard box. The accused told Mlambo Nyoni to lock herself in her room as he was afraid there were criminals. She averred that she heard noise from outside, and the accused told her to call the neighbour Tawonga Nhekede for assistance in taking the deceased to Highlands Police Station. She testified that she did not see the people who were outside. She averred that she saw that the accused’s right hand had been injured. T awonga Nhekede was also called to testify as the third witness. He testified that he knows the accused as his neighbour and the deceased Alluance Muronda only in connection with this case. He testified that on the 8th day of March 2024, at around 11:00hrs to 12.30hrs at number 17 Cedar Road, Manresa Park, Harare whilst he was asleep, he received a call from Mlambo Nyoni who is the accused’s mother, asking for assistance to ferry a thief they had apprehended to Highlands Police Station. Upon arrival he noticed that the accused was holding his left arm, stating that he had been injured whilst trying to subdue the thief. He said he had suffered a sprain or fracture whilst trying to subdue the thief. He averred that he went and found the deceased lying on the ground, with both legs and hands tied with a rope. The now deceased was trying to remove the rope. He did not notice any injuries on the now deceased. There was no light and there were many trees hence there was darkness. He testified that he did not see the deceased’s condition as it was dark. He averred that he saw the accused and Shyleen Khumalo standing next to the deceased. Tawonga Nhekede asserted that the accused indicated that he caught up with the deceased in the maize field while on the run and he fought with him after he had held his genitals. The accused had told him that he had been hurt by the now deceased on his genitals. Together with Shyleen Khumalo they took the now deceased to Chikurubi Support Unit where they were referred to Highlands Police Station. He heard sounds from the back of the truck for at least 2km, he slowed down and asked the accused what was going on and he was told the now deceased was trying to jump and flee so he slowed down the vehicle as he was attempting to jump off the vehicle. He testified that the now deceased was violent and was hitting his head on the bull bar at the back of the Isuzu truck. When they arrived at Highlands Police station, they handed over the deceased to the police. He could not see any injuries on the deceased as he had been taken at the back of the counter in the police station. Tawonga Nhekede also testified that the accused filed a report and handed over the deceased to the police. We concluded that this witness was a credible witness as he related what was within his knowledge in a clear and uncompromised manner. T he fourth witness to testify is Trueboy Justice Musosonora who is a duly attested member of the Zimbabwe Republic Police stationed at Highlands Police Station. He knows the accused only in connection with this case. He testified that on 8 March 2024; he encountered the accused and two men making a report of unlawful entry. He asserted that he arrested the deceased whom they alleged to have committed the offence. He averred that the deceased was tied with a small rope on both hands and legs. The ropes were small but tied him hard. The deceased had bruises on the ankles and elbows which showed signs of struggle. The bruises were not very serious. The deceased had a chance to narrate his side of the story. He said he was just passing by, got lost and crossed into the complainant’s yard that’s when the accused got hold of him. They had a scuffle according to the deceased he said he was a soldier so cannot be arrested in that manner. The said information concurred with accused’s statement that deceased was resisting so he teamed with other people to arrest him. He asserted that the accused had bruises on the right hand and a wound on the ring finger and was indicating that he had a struggle with the deceased who was resisting arrest. He noticed that the deceased had soiled himself and his condition was showing deterioration and had bruises all over his body and suggested that he be taken to hospital. Upon being asked he stated that a slasher had been used to assault him. He testified that the bruises he saw on the now deceased were not consistent with a slasher having been used. He stated that he did not notice any head injuries on the now deceased and his face seemed okay. The now deceased was not critical according to the evidence of this witness. After realising that the deceased had soiled himself, he realised that his condition was bad. He was forceful and appeared to be mentally challenged so he decided to arrange for transport to Parirenyatwa Hospital for proper assessment. The deceased had also spoken of having come to collect his mental condition tablets from Chikurubi. After untying him the now deceased could not walk properly, he appeared to be mentally challenged too. He testified that he opened an assault case against the accused, and that the deceased was admitted to the hospital and was discharged after a day or so. He heard after some days, that the deceased had passed away. We accepted this witness’ evidence as credible. The fifth witness to give his evidence was Edward Muterere who is a duly attested member of the Zimbabwe Republic Police stationed at Highlands Police Station. He did not know the parties prior to this offence. He testified that he was handed over the deceased on 9 March around 7.00 hours who was being accused of unlawful entry into the premises. He observed that the deceased had soiled himself and his head was swollen. He advised his seniors, and he escorted the deceased to Parirenyatwa Hospital for treatment. The deceased was handed over to the hospital and he was attended to. They administered 2 drips and gave him painkillers. He was supposed to go for a scan, but he had no money. At around 12 the now deceased was better, but he would fall whenever he attempted to stand. He testified that he thought he was hungry and bought him food and he slept. After the food and sleeping he was then talking and better though he was inconsistent in his statements. The now deceased was very swollen on the right side of his forehead and he noticed clots above the eye. When asked how he sustained those injuries he was not consistent. He said he was assaulted by an object he did not see. When he asked the accused, he said the now deceased was hitting his head on the bull bar at the back of the car. He said the now deceased was complaining of pain on his head. He said that the accused had stated he lost his way from Chikurubi wanted to go to Support Unit. He went through accused’s house. He said he was a mental patient and when he defaulted, he got lost. This witness had handed over the deceased to Constable Makasi and he learnt that he had been discharged. He was advised on Monday by the deceased’s brother of his demise. This witness, who had escorted the deceased to hospital had closely interacted with him. His evidence, which we accepted as credible gave us insight into the deceased’s health condition over the time he was in police custody. T he sixth witness to testify is Nathan Madaza a duly attested member in the Zimbabwe Republic Police (now retired) living at Chikurubi Support Unit Camp. He testified that he knew the deceased as his cousin brother. He averred that on 7 March 2024 around 20.00 hours; the deceased came to his place of residence. He spent the night and on 8 March 2024 he went to collect his medication from the Chikurubi Maximum Prison where he had been attended to since 1996 when he got ill in the DRC where he was serving as a soldier. He returned around 1500 hours, and they retired to bed at 22.30 hours, but he requested to go to the toilet which was outside the house. He stated that, around 23:30 hours he noticed that the deceased had taken a lot of time before coming back. He went to check for him and could not find him. He even went to the gates at Chikurubi to ask if the officers had seen him and they said they had not seen him. He went to Maximum Prison the following day and he was not there. On the 9th of March 2024, he received a call from Mabvuku Police Station to the effect that the deceased was at the Police Station and had been charged with unlawful entry. He proceeded to Mabvuku Police Station and upon arrival, the deceased was lying down in the charge office. He averred that what happened indicated that he was assaulted by an unknown person. He observed that the deceased’s head was swollen he had bruises and a deep cut on the limb and the bone was visible. When he asked him why he was swollen he said he had been assaulted. He did not know the place where the incident occurred, but he said it was in Manresa. When he asked the deceased, what had been used to assault him he said it was a slasher and a plank. He stated that the deceased was a mental patient. He left the now deceased at the police station and returned home. When they came back the following day the deceased was on the same position, they had left him the previous day. He requested for water from the police so that he would bath him. When he took him to the bathroom, he observed abrasions on his buttocks and his back. On his leg there was a wound and the bone was visible showing that something sharp had been used to assault him. He called the officer handling the matter and showed him the injuries. He could walk with difficulty. The deceased kept on saying he was assaulted in Manresa. He took the deceased and Chipo Muronda his wife and Claperton Muronda to his place of residence. The deceased’s condition deteriorated. He was in pain and could not sit in one position, he even slept on the floor. He also observed that his buttocks had some bruises. He testified that they could not engage in normal conversation with the deceased, he seemed to have defaulted on his medication. When they got home at 16.00 hours, the deceased slept for one hour. During supper it was clear he was in pain. He could no longer sit in one place. He would sleep on the bed, move to the floor and sleep on his stomach. He was complaining of pain in his waist. Around 23.00 hours, the witness went to the clinic to get paracetamol tablets for him which stabilised him for a short moment. Around 01.00 hours the deceased’s wife called the witness and told him that the deceased was no longer breathing properly. He was taken to Parirenyatwa Hospital where he was confirmed dead upon arrival at around 04.00 hours. Given the deceased’s mental condition, the witness had been unable to have coherent conversation with him, and this was because of his defaulting on his medication. He thought the accused’s defence outline was a lie because the deceased had not taken a weapon to attack him. The deceased had said that he only wanted to ask for water. He dismissed the testimony that the deceased had been hitting his head on the bulbar of the motor vehicle as a lie. He also said that the accused had apologised on seeing the deceased’s cards and said he had not known that he was a mental patient. He also confirmed that the deceased had apologised to the accused about what had transpired. The witness insisted that the deceased had a deep cut on the leg. When it was pointed out that the postmortem report does not speak to this, he said it was therefore a lie as he saw the wound. He was also questioned as to why his statement to the police did not speak about the plank and slasher yet as a retired police officer he knew about the importance of such details and said it was an omission on his part. He was also quizzed about why the hospital would discharge his brother if he had the severe injuries he claimed and he did not know but the doctor would. He was further questioned as to why he had not taken the deceased to hospital upon collecting him from the police if he had such severe injuries and he conceded that his condition was not so bad as to warrant immediately going to hospital and the deceased had medication given at Parirenyatwa Hospital which he thought would help. W hen it was put to the accused that the deceased had been violent and forceful as testified by Inspector Musosonori and had fought the accused, he denied this and said the deceased was not violent and had never assaulted anyone in Chikurubi. He conceded that due to his mental condition the deceased could mix up issues hence the different explanations about how he ended up at the accused’s place. It was posited in cross examination that the accused had handed over the accused to the police on Friday and it was possible that he was interrogated by the police and possibly assaulted whilst in police custody as they only collected him on Sunday. To this, the witness said that then the police should accept what they did. S ome of the things the deceased would do when he relapsed after defaulting on his medication was said to be walking around and not sitting down, incoherent speech, leaving without bidding farewell, forgetting where he stays and claiming that he wanted to go back to KG VI as he had not finished his service. The credibility of this witness was compromised by the inconsistencies in his police statement and oral evidence, particularly as he is a retired police officer himself. He could not explain why he took the deceased home if his condition was as bad as he painted it. He also gave a glossed over account of what had happened at his home leading up to the deceased’s demise. He had opinions about what had happened in his absence. Overall, we considered this witness as incredible. The deceased’s wife Chipo Muronda also gave evidence as witness number seven. She is a female adult residing at Chinhenga Farm, Matepatepa. She testified that she received a call from the deceased’s young brother Nathan Madaza that the deceased was missing. Later a call came saying deceased was at Mabvuku Police Station on allegations of unlawful entry. Upon receiving the call she travelled to Harare to see the now deceased as she knew that he had mental illness. Nathan and Clapperton told her to stay behind whilst they went to the police station. When she went there the following day with her son Claperton Muronda she saw the deceased was in agony and had soiled himself. She asserted that she cleaned him and had a deep cut on the limb. She averred that the deceased told her that he had gone to the toilet and ended up at an unknown residential place seeking water to drink and was assaulted with a plank and a slasher on allegations of being a thief. She testified that deceased had told her that he spat blood from his mouth when he was assaulted at accused’s home. She said the deceased had said he was at fault as he had entered accused’s house unlawfully. He had asked for forgiveness from the accused for entering his house unlawfully and wanted to go back home. She highlighted that the deceased was in pain particularly in the chest before they took him home and he was swollen from the head and one eye and the whole body. They took the deceased to Nathan Madaza’s house, and the deceased went to sleep. He kept on complaining that he was in pain, he complained that his whole body was in pain. She went on to state that he would hit himself on the floor and go back on the bed and jump back to the floor. When asked why he was doing that he said he was in pain in the whole body. He would throw himself anyhow and land on the ground. He started throwing himself and hitting his head on the floor from 6pm up to 3am or 4 am. This was done continuously. She said the deceased’s brother was in the next room and would come into their room to see what was happening. They tried to give him medication to calm him but that did not help. The deceased then went silent, and they thought he was unconscious. They looked for a car to ferry him to the hospital where he was declared dead upon arrival. When the witness was quizzed about the absence of the leg injury in the postmortem report, she insisted it was there. The swollen eyes are also missing, and she said they had been swollen at the police station but were no longer swollen when they went with the deceased home. She was also asked why her statement to the police omitted to say that the slasher and plank were reported to have been used by the accused to assault the deceased. She said this was because this was said in the presence of the police This witness had also observed a cut on the deceased’s right lower leg and the deceased had said that he was struck with a metal slasher and he had difficulties in walking. The witness consistently refused to comment on things that happened in her absence such as the alleged scuffle between the deceased and the accused. Chipo Muronda is the one who filled in the missing pieces truthfully about the deceased’s last hours after he had been taken home. She is the wife and was with the deceased in the bedroom. Instead of simply saying that he was unstable, she clarified that for a good 10 hours, he was hitting himself on the floor. She skirted away from things that were outside her knowledge as they happened in her absence. She was a credible witness. The evidence of Claperton Muronda is like that of Chipo Muronda. Justice Zimupunge is a duly attested member in the Zimbabwe Republic Police stationed at Mabvuku Police station. He recorded the accused’s warned and cautioned statements which were done freely and voluntarily. F ilcanos Chipadza also gave evidence to the effect that he is a duly attested member of the Zimbabwe Republic Police stationed at Mabvuku Police Station. He asserted that he is an Investigating Officer in this case. He had seen the deceased being brought to Mabvuku Police Station by Constable Makasi from Parirenyatwa Hospital and deceased spent the night in the charge office. The following day, he met the deceased, the accused and Nathan Madaza. The Highlands docket had been referred to Mabvuku. They released the deceased to go home due to his condition and ill health. He had injuries on his face and back and a laceration above his eye. There was also a cut on his leg. The deceased was incoherent upon being interviewed. He testified that the respondent indicated that he was acting in self-defence. On the 11th day of March 2024, he then learnt of the deceased’s demise. When the accused came as had been planned, a docket for murder was opened. The witness visited the scene in the company of Elizabeth Munyuki, Caroline Makasi, and the accused person with Sgt Major Njovo driving. He testified that he recovered a slasher and a plank which the accused stated that he used to assault the deceased. The plank had been taken from a garage and handed over by the accused. and he could not stand here was no blood on the plank. The slasher was picked from the alleged scene by this witness as the deceased had said that he had been assaulted using a metal object though he was sometimes incoherent. The slasher was not tendered into evidence. He took the exhibits for weighing. He witnessed the recording of the warned and cautioned statements. U nder cross examination it emerged that Filcanos Chipadza had only investigated the matter after the deceased’s death. He insisted that he had gone to the scene for indications and there was a garage at the house, which is attached to the house, though the house was not fully constructed then. The evidence given about the time before the deceased’s death was taken with a pinch of salt. E lizabeth Munyukwi is also a duly attested member of the Zimbabwe Republic Police stationed at Mabvuku Police Station. Her evidence is like that of Filcanos Chipadza and was admitted without any objections. T he state also produced the evidence of Doctor Robert Guillen who is a duly registered medical practitioner practicing as a Pathologist. At the request of the Zimbabwe Republic Police, Mabvuku he conducted a post-mortem examination on the remains of the deceased and compiled a report. He concluded that the deceased had died from cerebral oedema and head trauma. With the above evidence, the State closed its case. The Defence Case T he accused gave his evidence and stated that on the 8th of March 2024, at around 0100hrs, he was awakened by his mother who heard strange sounds from outside the house which sounded like footsteps and people talking. His mother then instructed him to check what was happening outside. On his way outside, he passed through the dining room where the now deceased who was h iding charged at him and a scuffle ensued. The deceased was punching him, and he was blocking. The now deceased grabbed his testicles and pulled and he let go of the deceased who ran outside, and he pursued. When they were outside the house, he tackled the deceased and managed to subdue the now deceased though he was violent and wanted to escape. The accused picked up a plank and threatened to use it on the deceased if he got up. At was at this point that his uncle Shyleen came out and assisted him to tie up the deceased. In the scuffle leading to subduing him, the accused claims that the deceased broke his hand though he initially thought it was just a sprain. W hen he questioned the deceased about who he was and what he wanted and who he was with, he is alleged to have said that the other 4 had fled and he gave his name and the contact details of Nathan Madaza whose number they dialled but it could not get through. The other 4 were said to be from Chikurubi and one was said to be Tawanda. He sought assistance of his neighbour Mr Tawanda Nhekede who then drove the truck to Highlands Police Station. and whilst they were on their way the now deceased was now pounding his head against the truck’s walls to escape the accused’s custody. He averred that the now deceased was shouting that “it is better to die than to be taken to the police and be arrested by a civilian”. He was hitting his head on the bull bar at the back of the Isuzu truck, and he was trying to untie himself and jump off the vehicle. This banging never stopped. Tawanda Nhekede heard the banging noise and slowed down. He alleged that the now deceased was very forceful and violent that, it was difficult to subdue him. T hey arrived at Highlands Police Station between 02.00 hours and 03.00 hours, they filed a report of unlawful entry into premises against the now deceased, left him in police custody and returned home that evening. The deceased was acting crazy but physically okay and was put behind the desk in the charge office. T he accused was asked if he had injuries and indicated the bruises on his forearm, elbows and knees. He was given a referral letter for medical attention which was tendered as exhibit 5 without any objections. He was medically examined, and Doctor Motto Hope’s report was tendered into evidence as exhibit 6. It shows that the accused suffered a boxer’s fracture and bilateral orchitis classified as severe injuries and that permanent injury was likely. Exhibit 7 is an ultrasound scan report which shows that the accused’s testicles’ appearances are consistent with bilateral orchitis. This means the accused had inflammation or infection of both testicles simultaneously. On Sunday he was invited to Mabvuku Police Station. There he met the deceased, his wife, son and brother Nathan Madaza. In that meeting before Constable Chipadza, Nathan Madaza was said to have kept on threatening the accused and promising him that he would fix him as he had assaulted his brother. The deceased, however apologised and indicated that he wanted to go back home and would do so if the accused forgave him and withdrew charges against him. Nathan Madaza was against this. The accused asked the deceased how he was feeling as he had seen him with a bandage on the head. He had assumed that this was as a result of his banging of his head on the car. He said he was okay, and the accused should not worry as all he had was a headache. T he accused denied seeing Constable Chipadza at the indications but remembered a woman officer who kept harassing him saying that he should agree that he had killed the deceased. He denied that he had picked a plank from the garage at his house and handed it over to the police officers investigating. He produced pictures of his house to show that there was/is no garage there. These were admitted as exhibits 8A to 8D which show all the angles of the house. The slasher picked by Chipadza was said to have been picked from the next property and not accused’s property and they had no such tool at their house. The accused stated that during the scuffle with the now deceased, he never used any plank or slasher to assault him. He had acted in self-defence as he had been attacked in his own house and was not sure if there were more people waiting to pounce or he would have picked car keys and would drive off in the car. He had been shocked to hear of the deceased’s demise as he had told him he was okay and had seen that he was breathing when he left him. He persisted in saying that he had not caused the deceased’s death and all he had done was subdue him by holding him down when they had both fallen to the ground and had not inflicted any deep wounds or life-threatening injuries. His uncle is crippled and would not be much help, so he was trying to protect him and his mother. He felt pity for the wife and wondered how the deceased had died and professed that his hands were clean. Agreed Facts I t is common cause that the deceased was a mental patient who at the material time had relapsed due to defaulting on his medication. He was therefore unstable. He had strayed into the accused’s home in the early hours of 9 March 2024, and he was mistaken for a thief leading to a scuffle between him and the accused. During the scuffle, the accused suffered a broken finger and inflamed testicles. The deceased person was also injured, but the extent of his injuries is put in issue. He was subdued, tied up and taken to Highlands Police station where a report of unlawful entry was lodged by the accused who left him in the hands of the police. D uring the trip to the police the deceased was continuously hitting his head on the bulbar and sides of the car protesting that he could not be arrested by a civilian and that it was better to die than to be handed over to the police. The deceased was in police custody from around 3 or 4am on 9 March 2024 to 10 March when he was released into the custody of Nathan Madaza, his brother with instructions to return on 11 March 2024. He had however been referred to Parirenyatwa Hospital on 9 March 2024 with a police escort from 8am to 2pm when he was discharged after getting 2 drips administered and receiving some pain killers. Nathan Madaza took him home and from around 6pm to around 4am on 11 March the deceased was jumping from the bed and throwing himself to the floor continuously and explained that he was doing so because of the pain he was feeling. Painkillers were administered but were unhelpful. He was taken to Parirenyatwa hospital and was pronounced dead upon arrival. The postmortem report by Doctor Robert Guillen found the following surface wounds on the deceased: Ecchymosis on the left frontal region Excoriation on the right posterior chest Excoriation on the right side of the face Excoriation on the elbows Cut wound in number of two of left elbow Blunt wound 2cm long on the upper and anterior third of right leg Multiple abrasions on thigh and left leg There were no other injuries discovered by external examination. The internal examination of the head showed haemorrhagic infiltrate in the bilateral frontal and right parietal region. There was no fracture to the skull, but the brain suffered cerebral oedema. The neck suffered haemorrhagic infiltrate in the left lateral muscle. The conclusion was that the deceased’s death was caused by head trauma and cerebral oedema. The Disputed Facts The issues crying out for resolution are as follows: Whether the accused assaulted the deceased using a plank and a slasher. If so, whether the deceased’s death was caused by such assault. W hether the deceased ‘s fatal injuries were self-inflicted by hitting his head on the car sides and bulbar and then by throwing himself to the floor for 10 hours. A nalysis of Evidence and Resolution of Disputed Facts The accused denied that they owned any slasher at all and averred that the slasher had been picked from the next yard. He had not used any. The deceased is alleged not to have mentioned a slasher but a metal object but was still said to have been incoherent and mixing up issues. Even the injuries in the postmortem report do not point to use of a slasher. This is contrary to the evidence of Nathan Madaza and Chipo Muronda who claimed that the deceased had a deep cut on the leg and the bone was showing. This may have been driven by the desire to pin the accused down as responsible for the deceased’s death. This was not attended to at Parirenyatwa hospital when the deceased was admitted on 9 March 2024. Trueboy Justice Musosonori had checked him and noticed the bruises on the deceased’s knees and elbows and all over the body. He did not consider these to be serious wounds. The deceased had not told Edward Muterere whom he spent about 4 hours with what object was used to assault him and he said he had not seen what it was. It is our finding therefore that there is not enough evidence to conclude that the accused used a slasher to assault the deceased. The accused denies using a plank to assault the deceased and claims he only used it to threaten the deceased. His uncle said he had not seen him using it to assault the deceased but only saw him holding it. The plank, whose weighing certificate is exhibit 3, weighed 200g. The injuries on the accused’s hand and bruises on the knees and elbows for both the deceased and accused p oints to some wrestling whilst they were on the ground as testified by the accused. If the accused used the plank at any stage in his effort to subdue the deceased, it could only have resulted in some of the surface wounds. There is however no evidence that he used it. In the circumstances, we conclude that the deceased’s death was not caused by the assault on him by the accused using a slasher and plank. The postmortem report shows the deceased’s death was caused by head trauma which resulted in cerebral edema. The deceased had been continuously throwing himself to the floor anyhow for a good 10 hours as stated by his wife. He would sometimes hit the floor on his head. Though Nathan Madaza omitted these details, the wife was a more credible witness. Her version confirms the evidence of the accused, his uncle and neighbour, that for a good 2 km, the deceased had been hitting his head on the bulbar and car sides continuously. This would explain the swollen face allegedly observed by Edward Mutetere. Sadly, we conclude that the injuries which took the deceased’s life were self-inflicted. He was clearly not in full control of his mental faculties and had become a danger to himself because of relapsing due to defaulting on his medication. When he was throwing himself to the floor that was a cry for help which should have alerted the family to the need for his immediate medical attention. That did not happen. L egal Conclusion G iven our analysis above, it is our finding that the accused did not unlawfully and with intent to kill or realizing that there was a real possibility that his conduct might cause death and continued to engage in that conduct despite the real risk or possibility assault, Alluance Muronda all over the body with a slasher and plank thereby causing injuries from which Alluance Muronda died. It would be unsafe to convict him. Accordingly, the accused is found not guilty of murder and is acquitted. Muchawa J: ………………………………………………………….. National Prosecuting Authority, state’s legal practitioners M abundu and Ndlovu Law Chambers, accused’s legal practitioners 5 HH 320 - 25 HCH CR 5934/24 5 HH 320 - 25 HCH CR 5934/24 STATE versus TAKUNDWA GWATIDZO HIGH COURT OF ZIMBABWE MUCHAWA J HARARE; 10, 11 March and 30 May 2025 Assessors: Mr Chimonyo Prof Mpofu Criminal Trial Mr T Mukuze, for the state Mr Manyonga with Mr Chiromo, for the accused MUCHAWA J: The accused is being charged with murder as defined under section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He is a male adult residing at house number 14 Cedar, Manresa Park, Harare. It is alleged that he murdered one Alluance Muronda (hereafter referred to as “the deceased”, by assaulting him all over the body with a slasher and plank thereby causing injuries from which the deceased died. State Summary In the opening statement, the state alleged that on the 8th day of March 2024, the deceased who was a psychiatric patient disappeared from Chikurubi Support Unit Camp where he had visited his cousin brother and proceeded to number 14 Cedar Road, Manresa, Harare, being the accused’s place of residence. The state alleged that the deceased was found in the dining room, having removed a cardboard box that had been used to replace a broken window. The accused woke up after hearing some sounds and caught the deceased. It was the State’s case that the accused assaulted the deceased with a wooden plank on his body and a slasher and he sustained some injuries and that he intended to kill the deceased and that he had realized that there was a real risk or possibility that his conduct might cause the death of the deceased, but he continued to engage in that conduct. A docket of assault was also opened against the accused and that’s when Inspector Musosonori noticed injuries on the accused person. The now deceased was taken to Parirenyatwa Hospital where he was treated and discharged on the same day. On the 9th day of March 2024, the now deceased was taken to Mabvuku Police Station and handed over to his brother Nathan Madza. He was under his brother’s custody since he was a mental patient so he would be brought the following day to court. On the 11th day of March 2024 during the night, the condition of the deceased got worse. He was taken to Parirenyatwa Hospital where he was pronounced dead upon arrival. A post-mortem examination was carried out on the body of the now deceased and the cause of death was cerebral oedema and head trauma. A slasher and a wooden plank which were used to assault the deceased were recovered. The Defence Outline The accused denies the charges in toto. He denies intentionally or negligently causing the death of the deceased. He states that on the night in question around 0100 hours. He was woken up by his mother after she heard noises outside the house and he was instructed to check was happening. On his way, he met with the deceased who was hiding in the dining room. The deceased charged at him and a scuffle ensued. Whilst they were fighting, the deceased grabbed his testicles and he let go of the deceased who then ran outside, and he pursued him. Whilst outside he eventually managed to restrain the deceased, bound him and sought the help of his uncle Shyleen Khumalo and neighbour Tawanda Nhekede to ferry the deceased to Highlands Police Station. They used an Isuzu open truck and Tawanda Nhekede was driving. O n their way to Highlands Police Station, it is alleged that the deceased kept pounding his head against the truck’s walls to escape and was shouting that, “It is better to die than to be taken to the police” A t the police station they filed a report of unlawful entry into premises and returned home that very evening and the deceased did not mention anything about the accused having assaulted him. The accused denies ever having used a slasher or plank in his scuffle with the deceased. He avers that at all material times he acted in self-defence, defence of property and defence of other persons in the house. The State Case The State opened its case by tendering the postmortem report which shows that the cause of death was cerebral oedema and head trauma. This was entered as exhibit 1 without any objections. Exhibit 2 is the accused’s confirmed warned and cautioned statement, in which he denies the allegations against him and states that he acted in self defence after the deceased had intruded into his house and pulled his private parts. Exhibit 3, entered without objections, is the weighing certificate for the plank allegedly used to assault the deceased and it show a weight of 200g. The evidence of Mlambo Nyoni, Clapperton Muronda, Justice Zinyenge and Elizabeth Munyukwi was formally admitted in terms of s 314 of the Criminal Law Codification and Reform Act [Chapter 9:07]. T he State first called Shyleen Khumalo, who is the uncle of the accused and was present at the house where this incident occurred. He alleged that he was drunk on the day in question. He testified that on 8 March 2024, whilst he was sleeping, he heard some noise outside and heard the accused calling “thief, thief” and he heard some footsteps outside. He initially ignored but it appeared as if there were people fighting outside. He testified that he went outside. He also stated that he went to the accused who was by the side of the house holding the now deceased who had intruded into their premises. He did not use any force; he was just holding him so he could not escape. He averred that he saw the accused holding a plank, but did not see him using it on the now deceased. He further testified that he saw four people in the maize field who then disappeared into darkness. He averred that the now deceased was trying to escape. His hands and legs were bound using a rope for them to take him to Highlands police station, but he was showing resistance. He testified that he went inside the house to inform the accused’s mother about what was happening outside. The mother, Mlambo Nyoni called a neighbour Mr Tawonga Nhekede who came to assist in taking the deceased to Highlands Police Station. Both the accused and the deceased had bruises on their hands. He said that along the way the now deceased was hitting his head on the car as a sign that he did not want to go to the police and wanted to jump off the vehicle. The now deceased was smashing his head on the bull bar at the back of the Isuzu truck. He also said the accused did this several times but cannot remember the number of times. He had noticed that the now deceased had sustained injuries because of hitting his head on the car. He had not seen accused and deceased fighting, had not seen accused using the wooden plank on the deceased but just saw him holding it. He had also heard the deceased saying that he did not want to go to the police. This witness was initially confused about his role as a witness and seemed to think he was before the court to pass a verdict on the accused. He said he was drunk on the day in question and after he had been reassured on the need to tell the court what he witnessed on the day in question, he settled well into giving his evidence. He impressed as a credible witness and did not hide that he had seen the accused holding a plank but had not seen him use it. We accepted his evidence as a true version of events, particularly as it was confirmed by the accused and Tawonga Nhekede. Mlambo Nyoni’s evidence was admitted without objections, in terms of section 314 of the Criminal Procedure and Evidence Act. She testified that the accused is her son. She averred that on 8 March 2024, she heard a noise outside her house, she went and awakened the accused who was asleep in his room. She testified that heard a sound coming from the dining room from the window covered by a cardboard box. The accused told Mlambo Nyoni to lock herself in her room as he was afraid there were criminals. She averred that she heard noise from outside, and the accused told her to call the neighbour Tawonga Nhekede for assistance in taking the deceased to Highlands Police Station. She testified that she did not see the people who were outside. She averred that she saw that the accused’s right hand had been injured. T awonga Nhekede was also called to testify as the third witness. He testified that he knows the accused as his neighbour and the deceased Alluance Muronda only in connection with this case. He testified that on the 8th day of March 2024, at around 11:00hrs to 12.30hrs at number 17 Cedar Road, Manresa Park, Harare whilst he was asleep, he received a call from Mlambo Nyoni who is the accused’s mother, asking for assistance to ferry a thief they had apprehended to Highlands Police Station. Upon arrival he noticed that the accused was holding his left arm, stating that he had been injured whilst trying to subdue the thief. He said he had suffered a sprain or fracture whilst trying to subdue the thief. He averred that he went and found the deceased lying on the ground, with both legs and hands tied with a rope. The now deceased was trying to remove the rope. He did not notice any injuries on the now deceased. There was no light and there were many trees hence there was darkness. He testified that he did not see the deceased’s condition as it was dark. He averred that he saw the accused and Shyleen Khumalo standing next to the deceased. Tawonga Nhekede asserted that the accused indicated that he caught up with the deceased in the maize field while on the run and he fought with him after he had held his genitals. The accused had told him that he had been hurt by the now deceased on his genitals. Together with Shyleen Khumalo they took the now deceased to Chikurubi Support Unit where they were referred to Highlands Police Station. He heard sounds from the back of the truck for at least 2km, he slowed down and asked the accused what was going on and he was told the now deceased was trying to jump and flee so he slowed down the vehicle as he was attempting to jump off the vehicle. He testified that the now deceased was violent and was hitting his head on the bull bar at the back of the Isuzu truck. When they arrived at Highlands Police station, they handed over the deceased to the police. He could not see any injuries on the deceased as he had been taken at the back of the counter in the police station. Tawonga Nhekede also testified that the accused filed a report and handed over the deceased to the police. We concluded that this witness was a credible witness as he related what was within his knowledge in a clear and uncompromised manner. T he fourth witness to testify is Trueboy Justice Musosonora who is a duly attested member of the Zimbabwe Republic Police stationed at Highlands Police Station. He knows the accused only in connection with this case. He testified that on 8 March 2024; he encountered the accused and two men making a report of unlawful entry. He asserted that he arrested the deceased whom they alleged to have committed the offence. He averred that the deceased was tied with a small rope on both hands and legs. The ropes were small but tied him hard. The deceased had bruises on the ankles and elbows which showed signs of struggle. The bruises were not very serious. The deceased had a chance to narrate his side of the story. He said he was just passing by, got lost and crossed into the complainant’s yard that’s when the accused got hold of him. They had a scuffle according to the deceased he said he was a soldier so cannot be arrested in that manner. The said information concurred with accused’s statement that deceased was resisting so he teamed with other people to arrest him. He asserted that the accused had bruises on the right hand and a wound on the ring finger and was indicating that he had a struggle with the deceased who was resisting arrest. He noticed that the deceased had soiled himself and his condition was showing deterioration and had bruises all over his body and suggested that he be taken to hospital. Upon being asked he stated that a slasher had been used to assault him. He testified that the bruises he saw on the now deceased were not consistent with a slasher having been used. He stated that he did not notice any head injuries on the now deceased and his face seemed okay. The now deceased was not critical according to the evidence of this witness. After realising that the deceased had soiled himself, he realised that his condition was bad. He was forceful and appeared to be mentally challenged so he decided to arrange for transport to Parirenyatwa Hospital for proper assessment. The deceased had also spoken of having come to collect his mental condition tablets from Chikurubi. After untying him the now deceased could not walk properly, he appeared to be mentally challenged too. He testified that he opened an assault case against the accused, and that the deceased was admitted to the hospital and was discharged after a day or so. He heard after some days, that the deceased had passed away. We accepted this witness’ evidence as credible. The fifth witness to give his evidence was Edward Muterere who is a duly attested member of the Zimbabwe Republic Police stationed at Highlands Police Station. He did not know the parties prior to this offence. He testified that he was handed over the deceased on 9 March around 7.00 hours who was being accused of unlawful entry into the premises. He observed that the deceased had soiled himself and his head was swollen. He advised his seniors, and he escorted the deceased to Parirenyatwa Hospital for treatment. The deceased was handed over to the hospital and he was attended to. They administered 2 drips and gave him painkillers. He was supposed to go for a scan, but he had no money. At around 12 the now deceased was better, but he would fall whenever he attempted to stand. He testified that he thought he was hungry and bought him food and he slept. After the food and sleeping he was then talking and better though he was inconsistent in his statements. The now deceased was very swollen on the right side of his forehead and he noticed clots above the eye. When asked how he sustained those injuries he was not consistent. He said he was assaulted by an object he did not see. When he asked the accused, he said the now deceased was hitting his head on the bull bar at the back of the car. He said the now deceased was complaining of pain on his head. He said that the accused had stated he lost his way from Chikurubi wanted to go to Support Unit. He went through accused’s house. He said he was a mental patient and when he defaulted, he got lost. This witness had handed over the deceased to Constable Makasi and he learnt that he had been discharged. He was advised on Monday by the deceased’s brother of his demise. This witness, who had escorted the deceased to hospital had closely interacted with him. His evidence, which we accepted as credible gave us insight into the deceased’s health condition over the time he was in police custody. T he sixth witness to testify is Nathan Madaza a duly attested member in the Zimbabwe Republic Police (now retired) living at Chikurubi Support Unit Camp. He testified that he knew the deceased as his cousin brother. He averred that on 7 March 2024 around 20.00 hours; the deceased came to his place of residence. He spent the night and on 8 March 2024 he went to collect his medication from the Chikurubi Maximum Prison where he had been attended to since 1996 when he got ill in the DRC where he was serving as a soldier. He returned around 1500 hours, and they retired to bed at 22.30 hours, but he requested to go to the toilet which was outside the house. He stated that, around 23:30 hours he noticed that the deceased had taken a lot of time before coming back. He went to check for him and could not find him. He even went to the gates at Chikurubi to ask if the officers had seen him and they said they had not seen him. He went to Maximum Prison the following day and he was not there. On the 9th of March 2024, he received a call from Mabvuku Police Station to the effect that the deceased was at the Police Station and had been charged with unlawful entry. He proceeded to Mabvuku Police Station and upon arrival, the deceased was lying down in the charge office. He averred that what happened indicated that he was assaulted by an unknown person. He observed that the deceased’s head was swollen he had bruises and a deep cut on the limb and the bone was visible. When he asked him why he was swollen he said he had been assaulted. He did not know the place where the incident occurred, but he said it was in Manresa. When he asked the deceased, what had been used to assault him he said it was a slasher and a plank. He stated that the deceased was a mental patient. He left the now deceased at the police station and returned home. When they came back the following day the deceased was on the same position, they had left him the previous day. He requested for water from the police so that he would bath him. When he took him to the bathroom, he observed abrasions on his buttocks and his back. On his leg there was a wound and the bone was visible showing that something sharp had been used to assault him. He called the officer handling the matter and showed him the injuries. He could walk with difficulty. The deceased kept on saying he was assaulted in Manresa. He took the deceased and Chipo Muronda his wife and Claperton Muronda to his place of residence. The deceased’s condition deteriorated. He was in pain and could not sit in one position, he even slept on the floor. He also observed that his buttocks had some bruises. He testified that they could not engage in normal conversation with the deceased, he seemed to have defaulted on his medication. When they got home at 16.00 hours, the deceased slept for one hour. During supper it was clear he was in pain. He could no longer sit in one place. He would sleep on the bed, move to the floor and sleep on his stomach. He was complaining of pain in his waist. Around 23.00 hours, the witness went to the clinic to get paracetamol tablets for him which stabilised him for a short moment. Around 01.00 hours the deceased’s wife called the witness and told him that the deceased was no longer breathing properly. He was taken to Parirenyatwa Hospital where he was confirmed dead upon arrival at around 04.00 hours. Given the deceased’s mental condition, the witness had been unable to have coherent conversation with him, and this was because of his defaulting on his medication. He thought the accused’s defence outline was a lie because the deceased had not taken a weapon to attack him. The deceased had said that he only wanted to ask for water. He dismissed the testimony that the deceased had been hitting his head on the bulbar of the motor vehicle as a lie. He also said that the accused had apologised on seeing the deceased’s cards and said he had not known that he was a mental patient. He also confirmed that the deceased had apologised to the accused about what had transpired. The witness insisted that the deceased had a deep cut on the leg. When it was pointed out that the postmortem report does not speak to this, he said it was therefore a lie as he saw the wound. He was also questioned as to why his statement to the police did not speak about the plank and slasher yet as a retired police officer he knew about the importance of such details and said it was an omission on his part. He was also quizzed about why the hospital would discharge his brother if he had the severe injuries he claimed and he did not know but the doctor would. He was further questioned as to why he had not taken the deceased to hospital upon collecting him from the police if he had such severe injuries and he conceded that his condition was not so bad as to warrant immediately going to hospital and the deceased had medication given at Parirenyatwa Hospital which he thought would help. W hen it was put to the accused that the deceased had been violent and forceful as testified by Inspector Musosonori and had fought the accused, he denied this and said the deceased was not violent and had never assaulted anyone in Chikurubi. He conceded that due to his mental condition the deceased could mix up issues hence the different explanations about how he ended up at the accused’s place. It was posited in cross examination that the accused had handed over the accused to the police on Friday and it was possible that he was interrogated by the police and possibly assaulted whilst in police custody as they only collected him on Sunday. To this, the witness said that then the police should accept what they did. S ome of the things the deceased would do when he relapsed after defaulting on his medication was said to be walking around and not sitting down, incoherent speech, leaving without bidding farewell, forgetting where he stays and claiming that he wanted to go back to KG VI as he had not finished his service. The credibility of this witness was compromised by the inconsistencies in his police statement and oral evidence, particularly as he is a retired police officer himself. He could not explain why he took the deceased home if his condition was as bad as he painted it. He also gave a glossed over account of what had happened at his home leading up to the deceased’s demise. He had opinions about what had happened in his absence. Overall, we considered this witness as incredible. The deceased’s wife Chipo Muronda also gave evidence as witness number seven. She is a female adult residing at Chinhenga Farm, Matepatepa. She testified that she received a call from the deceased’s young brother Nathan Madaza that the deceased was missing. Later a call came saying deceased was at Mabvuku Police Station on allegations of unlawful entry. Upon receiving the call she travelled to Harare to see the now deceased as she knew that he had mental illness. Nathan and Clapperton told her to stay behind whilst they went to the police station. When she went there the following day with her son Claperton Muronda she saw the deceased was in agony and had soiled himself. She asserted that she cleaned him and had a deep cut on the limb. She averred that the deceased told her that he had gone to the toilet and ended up at an unknown residential place seeking water to drink and was assaulted with a plank and a slasher on allegations of being a thief. She testified that deceased had told her that he spat blood from his mouth when he was assaulted at accused’s home. She said the deceased had said he was at fault as he had entered accused’s house unlawfully. He had asked for forgiveness from the accused for entering his house unlawfully and wanted to go back home. She highlighted that the deceased was in pain particularly in the chest before they took him home and he was swollen from the head and one eye and the whole body. They took the deceased to Nathan Madaza’s house, and the deceased went to sleep. He kept on complaining that he was in pain, he complained that his whole body was in pain. She went on to state that he would hit himself on the floor and go back on the bed and jump back to the floor. When asked why he was doing that he said he was in pain in the whole body. He would throw himself anyhow and land on the ground. He started throwing himself and hitting his head on the floor from 6pm up to 3am or 4 am. This was done continuously. She said the deceased’s brother was in the next room and would come into their room to see what was happening. They tried to give him medication to calm him but that did not help. The deceased then went silent, and they thought he was unconscious. They looked for a car to ferry him to the hospital where he was declared dead upon arrival. When the witness was quizzed about the absence of the leg injury in the postmortem report, she insisted it was there. The swollen eyes are also missing, and she said they had been swollen at the police station but were no longer swollen when they went with the deceased home. She was also asked why her statement to the police omitted to say that the slasher and plank were reported to have been used by the accused to assault the deceased. She said this was because this was said in the presence of the police This witness had also observed a cut on the deceased’s right lower leg and the deceased had said that he was struck with a metal slasher and he had difficulties in walking. The witness consistently refused to comment on things that happened in her absence such as the alleged scuffle between the deceased and the accused. Chipo Muronda is the one who filled in the missing pieces truthfully about the deceased’s last hours after he had been taken home. She is the wife and was with the deceased in the bedroom. Instead of simply saying that he was unstable, she clarified that for a good 10 hours, he was hitting himself on the floor. She skirted away from things that were outside her knowledge as they happened in her absence. She was a credible witness. The evidence of Claperton Muronda is like that of Chipo Muronda. Justice Zimupunge is a duly attested member in the Zimbabwe Republic Police stationed at Mabvuku Police station. He recorded the accused’s warned and cautioned statements which were done freely and voluntarily. F ilcanos Chipadza also gave evidence to the effect that he is a duly attested member of the Zimbabwe Republic Police stationed at Mabvuku Police Station. He asserted that he is an Investigating Officer in this case. He had seen the deceased being brought to Mabvuku Police Station by Constable Makasi from Parirenyatwa Hospital and deceased spent the night in the charge office. The following day, he met the deceased, the accused and Nathan Madaza. The Highlands docket had been referred to Mabvuku. They released the deceased to go home due to his condition and ill health. He had injuries on his face and back and a laceration above his eye. There was also a cut on his leg. The deceased was incoherent upon being interviewed. He testified that the respondent indicated that he was acting in self-defence. On the 11th day of March 2024, he then learnt of the deceased’s demise. When the accused came as had been planned, a docket for murder was opened. The witness visited the scene in the company of Elizabeth Munyuki, Caroline Makasi, and the accused person with Sgt Major Njovo driving. He testified that he recovered a slasher and a plank which the accused stated that he used to assault the deceased. The plank had been taken from a garage and handed over by the accused. and he could not stand here was no blood on the plank. The slasher was picked from the alleged scene by this witness as the deceased had said that he had been assaulted using a metal object though he was sometimes incoherent. The slasher was not tendered into evidence. He took the exhibits for weighing. He witnessed the recording of the warned and cautioned statements. U nder cross examination it emerged that Filcanos Chipadza had only investigated the matter after the deceased’s death. He insisted that he had gone to the scene for indications and there was a garage at the house, which is attached to the house, though the house was not fully constructed then. The evidence given about the time before the deceased’s death was taken with a pinch of salt. E lizabeth Munyukwi is also a duly attested member of the Zimbabwe Republic Police stationed at Mabvuku Police Station. Her evidence is like that of Filcanos Chipadza and was admitted without any objections. T he state also produced the evidence of Doctor Robert Guillen who is a duly registered medical practitioner practicing as a Pathologist. At the request of the Zimbabwe Republic Police, Mabvuku he conducted a post-mortem examination on the remains of the deceased and compiled a report. He concluded that the deceased had died from cerebral oedema and head trauma. With the above evidence, the State closed its case. The Defence Case T he accused gave his evidence and stated that on the 8th of March 2024, at around 0100hrs, he was awakened by his mother who heard strange sounds from outside the house which sounded like footsteps and people talking. His mother then instructed him to check what was happening outside. On his way outside, he passed through the dining room where the now deceased who was h iding charged at him and a scuffle ensued. The deceased was punching him, and he was blocking. The now deceased grabbed his testicles and pulled and he let go of the deceased who ran outside, and he pursued. When they were outside the house, he tackled the deceased and managed to subdue the now deceased though he was violent and wanted to escape. The accused picked up a plank and threatened to use it on the deceased if he got up. At was at this point that his uncle Shyleen came out and assisted him to tie up the deceased. In the scuffle leading to subduing him, the accused claims that the deceased broke his hand though he initially thought it was just a sprain. W hen he questioned the deceased about who he was and what he wanted and who he was with, he is alleged to have said that the other 4 had fled and he gave his name and the contact details of Nathan Madaza whose number they dialled but it could not get through. The other 4 were said to be from Chikurubi and one was said to be Tawanda. He sought assistance of his neighbour Mr Tawanda Nhekede who then drove the truck to Highlands Police Station. and whilst they were on their way the now deceased was now pounding his head against the truck’s walls to escape the accused’s custody. He averred that the now deceased was shouting that “it is better to die than to be taken to the police and be arrested by a civilian”. He was hitting his head on the bull bar at the back of the Isuzu truck, and he was trying to untie himself and jump off the vehicle. This banging never stopped. Tawanda Nhekede heard the banging noise and slowed down. He alleged that the now deceased was very forceful and violent that, it was difficult to subdue him. T hey arrived at Highlands Police Station between 02.00 hours and 03.00 hours, they filed a report of unlawful entry into premises against the now deceased, left him in police custody and returned home that evening. The deceased was acting crazy but physically okay and was put behind the desk in the charge office. T he accused was asked if he had injuries and indicated the bruises on his forearm, elbows and knees. He was given a referral letter for medical attention which was tendered as exhibit 5 without any objections. He was medically examined, and Doctor Motto Hope’s report was tendered into evidence as exhibit 6. It shows that the accused suffered a boxer’s fracture and bilateral orchitis classified as severe injuries and that permanent injury was likely. Exhibit 7 is an ultrasound scan report which shows that the accused’s testicles’ appearances are consistent with bilateral orchitis. This means the accused had inflammation or infection of both testicles simultaneously. On Sunday he was invited to Mabvuku Police Station. There he met the deceased, his wife, son and brother Nathan Madaza. In that meeting before Constable Chipadza, Nathan Madaza was said to have kept on threatening the accused and promising him that he would fix him as he had assaulted his brother. The deceased, however apologised and indicated that he wanted to go back home and would do so if the accused forgave him and withdrew charges against him. Nathan Madaza was against this. The accused asked the deceased how he was feeling as he had seen him with a bandage on the head. He had assumed that this was as a result of his banging of his head on the car. He said he was okay, and the accused should not worry as all he had was a headache. T he accused denied seeing Constable Chipadza at the indications but remembered a woman officer who kept harassing him saying that he should agree that he had killed the deceased. He denied that he had picked a plank from the garage at his house and handed it over to the police officers investigating. He produced pictures of his house to show that there was/is no garage there. These were admitted as exhibits 8A to 8D which show all the angles of the house. The slasher picked by Chipadza was said to have been picked from the next property and not accused’s property and they had no such tool at their house. The accused stated that during the scuffle with the now deceased, he never used any plank or slasher to assault him. He had acted in self-defence as he had been attacked in his own house and was not sure if there were more people waiting to pounce or he would have picked car keys and would drive off in the car. He had been shocked to hear of the deceased’s demise as he had told him he was okay and had seen that he was breathing when he left him. He persisted in saying that he had not caused the deceased’s death and all he had done was subdue him by holding him down when they had both fallen to the ground and had not inflicted any deep wounds or life-threatening injuries. His uncle is crippled and would not be much help, so he was trying to protect him and his mother. He felt pity for the wife and wondered how the deceased had died and professed that his hands were clean. Agreed Facts I t is common cause that the deceased was a mental patient who at the material time had relapsed due to defaulting on his medication. He was therefore unstable. He had strayed into the accused’s home in the early hours of 9 March 2024, and he was mistaken for a thief leading to a scuffle between him and the accused. During the scuffle, the accused suffered a broken finger and inflamed testicles. The deceased person was also injured, but the extent of his injuries is put in issue. He was subdued, tied up and taken to Highlands Police station where a report of unlawful entry was lodged by the accused who left him in the hands of the police. D uring the trip to the police the deceased was continuously hitting his head on the bulbar and sides of the car protesting that he could not be arrested by a civilian and that it was better to die than to be handed over to the police. The deceased was in police custody from around 3 or 4am on 9 March 2024 to 10 March when he was released into the custody of Nathan Madaza, his brother with instructions to return on 11 March 2024. He had however been referred to Parirenyatwa Hospital on 9 March 2024 with a police escort from 8am to 2pm when he was discharged after getting 2 drips administered and receiving some pain killers. Nathan Madaza took him home and from around 6pm to around 4am on 11 March the deceased was jumping from the bed and throwing himself to the floor continuously and explained that he was doing so because of the pain he was feeling. Painkillers were administered but were unhelpful. He was taken to Parirenyatwa hospital and was pronounced dead upon arrival. The postmortem report by Doctor Robert Guillen found the following surface wounds on the deceased: Ecchymosis on the left frontal region Excoriation on the right posterior chest Excoriation on the right side of the face Excoriation on the elbows Cut wound in number of two of left elbow Blunt wound 2cm long on the upper and anterior third of right leg Multiple abrasions on thigh and left leg There were no other injuries discovered by external examination. The internal examination of the head showed haemorrhagic infiltrate in the bilateral frontal and right parietal region. There was no fracture to the skull, but the brain suffered cerebral oedema. The neck suffered haemorrhagic infiltrate in the left lateral muscle. The conclusion was that the deceased’s death was caused by head trauma and cerebral oedema. The Disputed Facts The issues crying out for resolution are as follows: Whether the accused assaulted the deceased using a plank and a slasher. If so, whether the deceased’s death was caused by such assault. W hether the deceased ‘s fatal injuries were self-inflicted by hitting his head on the car sides and bulbar and then by throwing himself to the floor for 10 hours. A nalysis of Evidence and Resolution of Disputed Facts The accused denied that they owned any slasher at all and averred that the slasher had been picked from the next yard. He had not used any. The deceased is alleged not to have mentioned a slasher but a metal object but was still said to have been incoherent and mixing up issues. Even the injuries in the postmortem report do not point to use of a slasher. This is contrary to the evidence of Nathan Madaza and Chipo Muronda who claimed that the deceased had a deep cut on the leg and the bone was showing. This may have been driven by the desire to pin the accused down as responsible for the deceased’s death. This was not attended to at Parirenyatwa hospital when the deceased was admitted on 9 March 2024. Trueboy Justice Musosonori had checked him and noticed the bruises on the deceased’s knees and elbows and all over the body. He did not consider these to be serious wounds. The deceased had not told Edward Muterere whom he spent about 4 hours with what object was used to assault him and he said he had not seen what it was. It is our finding therefore that there is not enough evidence to conclude that the accused used a slasher to assault the deceased. The accused denies using a plank to assault the deceased and claims he only used it to threaten the deceased. His uncle said he had not seen him using it to assault the deceased but only saw him holding it. The plank, whose weighing certificate is exhibit 3, weighed 200g. The injuries on the accused’s hand and bruises on the knees and elbows for both the deceased and accused p oints to some wrestling whilst they were on the ground as testified by the accused. If the accused used the plank at any stage in his effort to subdue the deceased, it could only have resulted in some of the surface wounds. There is however no evidence that he used it. In the circumstances, we conclude that the deceased’s death was not caused by the assault on him by the accused using a slasher and plank. The postmortem report shows the deceased’s death was caused by head trauma which resulted in cerebral edema. The deceased had been continuously throwing himself to the floor anyhow for a good 10 hours as stated by his wife. He would sometimes hit the floor on his head. Though Nathan Madaza omitted these details, the wife was a more credible witness. Her version confirms the evidence of the accused, his uncle and neighbour, that for a good 2 km, the deceased had been hitting his head on the bulbar and car sides continuously. This would explain the swollen face allegedly observed by Edward Mutetere. Sadly, we conclude that the injuries which took the deceased’s life were self-inflicted. He was clearly not in full control of his mental faculties and had become a danger to himself because of relapsing due to defaulting on his medication. When he was throwing himself to the floor that was a cry for help which should have alerted the family to the need for his immediate medical attention. That did not happen. L egal Conclusion G iven our analysis above, it is our finding that the accused did not unlawfully and with intent to kill or realizing that there was a real possibility that his conduct might cause death and continued to engage in that conduct despite the real risk or possibility assault, Alluance Muronda all over the body with a slasher and plank thereby causing injuries from which Alluance Muronda died. It would be unsafe to convict him. Accordingly, the accused is found not guilty of murder and is acquitted. Muchawa J: ………………………………………………………….. National Prosecuting Authority, state’s legal practitioners M abundu and Ndlovu Law Chambers, accused’s legal practitioners