THE STATE v JUMIRA (218 of 2025) [2025] ZWHHC 218 (13 February 2025)

8 HH 218 - 25 HCHCR 5862/25 THE STATE versus WALTER JUMIRA HIGH COURT OF ZIMBABWE MUCHAWA J HARARE; 3 & 13 February 2025 Assessors: Mr Mhandu Mr Gwatiringa Criminal Trial T Makiya, for the State T.J Mafongoya & C Mutseneki, for the Accused MUCHAWA J: The accused is charged of murder as defined in s 47(1) of the Criminal Law Codification and Reform Act [Chapter 9:23]. It is alleged that on 6 April 2024 around 3.00 am and at Mabanana Market Place in Mbare, the accused who had stolen bananas from a place under the guard of the deceased and one Clifford Chenhamo had been seen by one Metso. Metso woke up the deceased and Clifford Chenhamo and they proceeded to Epworth Rank with the intention of Metso showing them where the stolen boxes of bananas were hidden. The accused was allegedly confronted at the Epworth Rank whereupon when he recognized the deceased, he slapped him once on the face and on the chest with a fist. The deceased is said to have retreated backwards and whilst doing so, the accused picked a half brick and struck the deceased once on the left side of the head and he fell down. At this point Clifford Chenhamo rushed to the Mabanana Market and called Simon Sithole to come where the deceased was found lying in a pool of blood. The accused was apprehended with the help of members of the public and taken to the police where the deceased was referred to hospital. An assault docket was opened. Deceased was not treated due to lack of funds. He returned to Mabanana Market but was found struggling to sleep by one Vitalis Mudukuti later that day. Well-wishers mobilized funds and he was taken to a private doctor and then referred to Sally Mugabe Hospital where he passed on, on 7 April 2024. A postmortem examination was conducted by Doctor Ariana Pedro Gourguet who concluded that the cause of death was; 3000 ml hemoperitoreumStomach ruptureSevere abdominal trauma The accused pleaded not guilty to murder. In denying the charge, the accused stated that he was indeed at Mabanana Market Mbare on 6 April 2024 around 3 am. He claims to have been attacked by the deceased, Clifford Chenhamo and Metso as they accused him of having stolen bananas. The attack on him is said to have been serious and vicious, preplanned and unlawful. It is the accused’s assertion that three assailants were later joined by other people and came to ten and they all continued attacking him using fists. They also allegedly used wooden planks, and hippopotamus skin (chitorobho). He claims to have acted in self defence in an attempt to ward off the attack on him by picking the half brick which was in his vicinity, and throwing it into the air. Thereafter the crowd is said to have dispersed and he attempted to flee but was apprehended by the crowd. The accused denies any intention of harming anyone and learnt later that the brick had hit and injured the deceased. He claims not to have thrown anything further nor fought anyone. He denies too having beaten the deceased many times using his fists. He was taken to the police in the presence of the deceased. He was arrested and held in custody till today. He learnt later of the deceased’s demise. THE EVIDENCE LED BY THE STATE At the outset the State produced the post mortem report with the consent of the defence as exhibit A. It states that the remains of the deceased were examined by a forensic pathologist, Dr Ariana Pedro Gourguet on 15 April 2024. The conclusion is that the cause of death was: 3000 ml hemoperitoreum stomach rupturesevere abdominal trauma The accused’s confirmed warned and cautioned statement was produced by consent and marked as exhibit 2. The weight certificate of the half brick was produced by consent and marked exhibit 3. It shows the weight of the half brick as 1,63kg. The State led viva voce evidence from Clifford Chenhamo and Simon Sithole. Clifford Chenhamo’s testimony was that at the relevant time he was employed to guard at the Mabanana Market on behalf of some vendors together with the deceased. He had been so employed for a month. He did not know the accused prior to this incident. The deceased had been employed for longer. On the fateful day, he was sleeping when a man named Metso woke up the deceased and him at around 3 am on 6 April 2024. He advised them that someone had been stealing bananas and pointed to someone carrying a container of bananas. Metso suggested that they should go and recover the bananas and apprehend the person. There was enough lighting from the tower lights. The trio followed the accused and found him at the Epworth Rank where he was already selling the bananas. The deceased opened the basket of bananas the accused was holding. The accused is said to have questioned the deceased on what he wanted and he was questioned on the theft of bananas. It was at that point that the accused is alleged to have become violent and slapped the deceased with open hands once on the cheek. When the deceased tried to run away, the accused is alleged to have picked the brick and thrown it. Deceased was allegedly struck when he tried to hide behind a commuter omnibus and they were about 10 metres away from each other. Upon being struck the deceased fell to the ground and the witness ran to call others. As he was running away, the accused is alleged to have thrown another brick at the witness which missed him. The witness testified that the brick thrown at the deceased struck him at the back of his head. When the witness Clifford came back he was in the company of Simon Sithole and others. They found that Metso had apprehended the accused. Simon Sithole then woke up the deceased whom he saw was bleeding. They then took the accused to the Mabanana shed and deceased’s wound was cleaned of blood. Thereafter they took the accused to the police. The accused’s assertion that he was assaulted by a group of people was said to be a blatant lie as it was only the three of them who confronted the accused and no one assaulted him. Metso is alleged to have held him by the belt to ensure that he would not escape. A crowd is alleged to have gathered only after the deceased had been assaulted as people were curious to see the injured person. It was said to be untrue that the accused threw the brick to disperse the crowd which was assaulting him as there was no crowd except a commuter omnibus which was loading people and had a few passengers and the driver and conductor only. This witness denied seeing the accused using fists to assault the deceased. He had no reasons to fabricate evidence against the accused as they were unknown to each other and there was no history of bad blood. When it was put to the witness that as a guard he would use force to recover whatever was stolen including vicious beating, he insisted that their aim was to first apprehend the thief and then recover what was stolen. On his own role, the witness said when they got to the accused, he was trying to apprehend him and accused then picked brick and threw it at him and missed. Both the deceased and the witness had gone in different directions behind the commuter omnibus in an attempt to catch and apprehend the accused. The people in the commuter omnibus did not disembark. Regarding how the brick was thrown at the deceased, the witness demonstrated and explained that the accused used his hand aiming at the deceased who was struck at the back of his head. The witness says he then ran away after seeing the deceased fall. Even under cross examination the witness vehemently denied that the accused was hit by other people. He did not see this. The witness explained that they did not call out “Thief” as the deceased and accused knew each other and would even spend time together. The State’s second witness was Simon Sithole who knew the deceased for 3 years as they worked at the same place and deceased would help in offloading bananas and was paid by this witness. His evidence was that he was awoken by Clifford Chenhamo around 3am to the news that the accused had struck the deceased with a brick and he fell down. He got to the scene and found the deceased lying on the ground and he lifted him up. Upon examination he saw that the deceased had been struck at the top of the ear. The accused is alleged to have been vigorously resisting to be apprehended and a lot of people intervened until he was tied. This was after Metso had held him by the belt. At that time the deceased is alleged not to have said anything to this witness but was in pain and wanted to fight but was restrained by this witness. People are alleged to have wanted to beat the accused and to take him to Chipanga and many suggestions were being thrown in. It was this witness and other men who suggested going to the police. He has no knowledge however about where Chipanga is and what is done there. The accused was then assaulted by some members of the mob including passers by. He has no idea who in particular assaulted accused but he was very powerful and trying to escape. The witness could not estimate the size of the crowd as it was night time. When he saw the deceased, he was lying on his stomach. After these two witnesses’ oral evidence, the evidence of the following witnesses was admitted without objections in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07]. That is Wellington Sithole, Edwin Chitsanga, Vitalis Mudukuti, Maina Zifosho, Lucky Mbopela and Kudakwashe Marume. The evidence of Wellington Sithole was to the effect that on 6 April 2024 at around 3 am he heard some noise at Epworth Rank at Mbare and went to investigate. He saw the accused holding the deceased by his shirt from behind, hitting him with a half brick several times and instructing the deceased to run away. When the deceased set off towards Mabanana Market, the accused then struck him on the head with a half brick. The deceased fell down. The accused threw another stone which missed Clifford Chenhamo who was running towards Mabanana Market. Clifford Chenhamo came back with deceased’s relatives. Some other man restrained the accused by grabbing him by his belt. There was light from OK Store Mbare and Block 12 Tererini Flats Mbare. The deceased’s relatives and members of the public apprehended the accused and walked to Mabanana Market. Deceased who had collapsed had woken up and they went to the Zimbabwe Republic Police Matapi. He learnt of the deceased’s death, three days later. Edwin Chitsanga is a male adult and a brother to the deceased. He got a call on 6 April 2024 from Martha Chitsanga informing him that the deceased had been assaulted and had sustained serious injuries. On 7 April 2024 at around 0700 hours he visited the deceased who was admitted at Sally Mugabe Hospital and observed that the deceased had a deep cut on the left side of the head behind his ear. The deceased succumbed to the injuries later on and he identified the body to the police. Vitalis Mudukuti knew the deceased as a workmate and only knows the accused in connection with this case. On 6 April 2024 he saw the deceased at Mabanana Market struggling to sleep. He was bleeding from the left side of the head and was complaining of pain and wanted to be taken to hospital. This witness mobilized for some funds and took the deceased to a private doctor who then referred them to Sally Mugabe Hospital. On the 7th of April 2024, he learnt about the deceased’s death. Maina Zifosho is a duly attested member in the Zimbabwe Republic Police stationed at Matapi. She knew the parties only in connection with this case. She witnessed the recording of the warned and cautioned statement from the accused which he did in his sound and sober senses and freely and voluntarily. Mbopela Lucky is a duly attested member in the Zimbabwe Republic Police stationed ta ZRP Matapi. On 6 April 2024, he received a report of assault from the deceased who was bleeding excessively and he referred the deceased to Sally Mugabe Hospital. Kudakwashe Marume is a duly attested member in the Zimbabwe Republic Police. He is the Member – In – Charge Crime. On 13 April 2024 he took the accused for indications at the crime scene and he drew a sketch plan. With the above evidence, the State closed its case. THE APPLICATION FOR DISCHARGE AT THE CLOSE OF THE STATE CASE Mr Mafongoya made an application for discharge at the close of the State case in terms of s198(3) of the Criminal Procedure and Evidence Act. Reference was made to the cases of S v Tavarwisa HMA 05/17, S v Kachipare 1998 (2) ZLR 271 (SC) and AG v Tarwirei 1997 (1) ZLR 575. The basis for the application was that there is no evidence before the court to prove the essential elements of the offence; that there is no evidence upon which a reasonable court acting carefully might convict and that the evidence led by the State is so manifestly unreliable and is discredited severely under cross examination that no reasonable court could act such evidence. The alleged inconsistencies in the evidence were that the first witness was not honest and sure of his age which he gave in evidence in chief as 23 or 26 as in his statement. The first witness was said to have given two versions of the same event including identification moment of the accused. He is also said to have disregarded what he alleged in his statement in para 6 as what the accused said to the deceased. It was pointed out too that he had initially said no other people were involved yet under cross examination he referred to a commuter omnibus whose passengers did not disembark. This it was argued, was the same group of people the accused said were part of the crowd which attacked him. The second witness is said to have confirmed that there were many people who attacked the accused and that the deceased was eager to fight. The first witness is said to have omitted to mention that the altercation between the accused and deceased took place in a busy place as confirmed by the second witness and some people even wanted to take the accused to Chipanga. Furthermore the first witness is said not to have mentioned, in his statement, that he accompanied the accused and deceased to the police, which fact was allegedly accepted under cross examination. The second witness is alleged to have highlighted that even after apprehension, the accused was under risk of harm. It was argued that the key witness evidence was inconsistent and that it was unreasonable to conclude that a brick having been thrown by the right hand would hit the left side. Mr Mafongoya contended that the evidence of the first and second witness was manifestly inconsistent and non-coherent and that there was no prima facie evidence on which to convict. It was prayed that the accused be found not guilty and acquitted. Ms Makiya was opposed to the application sought. She indicated that though the accused denies that the offence and says he had no intention to kill, he agrees to having stolen bananas, having been apprehended and striking deceased. The only contention was whether the brick was thrown into the air with the intention or realization that such conduct might cause death. The evidence of the key witness was said not to be manifestly unreliable. Noteworthy was said to be that the accused places himself at the scene. The accused was unknown to the witness hence there is no malice. In response Mr Mafongoya argued on the strength of the case of AG v Bennet SC 7/11 that once it is found that there is no evidence, the court has no discretion but to discharge at the close of the State case. Since the offence is murder, it was argued that the essential elements should come from the witness. We dismissed this application. We relied on the case of AG v Tarwirei 1997 (1) ZLR 575 (5) wherein it was held that while it is true that a court may acquit at the end of the State case where the evidence of the prosecution witnesses has been so discredited as a result of cross examination or is so manifestly unreliable that no reasonable tribunal could safely convict, such cases will be rare. It would be quite exceptional for the credibility of a witness to be so utterly destroyed that no part of his material evidence could possibly be believed. In cause the two witnesses gave evidence on a continuum of events. The first witness saw the attack/assault on the deceased and the point at which he invited the second witness after the deceased had been hit and was on the ground. The material facts crying for resolution are the involvement of the mob at the point when the accused threw the half brick at the deceased and how it was thrown. The second witness cannot speak to this. The serious assertions by the accused counsel in cross examination cannot be treated as accused’s evidence. Counsel was not under oath. The court is not in a position to decide the veracity of the two versions until it had heard the accused in evidence in chief. See AG v Tarwirei supra. In any event some of the alleged inconsistencies are not really material to the charge such as the witness’ age, for example. It is not appropriate for the court to pass judgement at this stage on the relative credibility of the two versions. There is nothing inherently incredible about the State version. For instance, depending on the position of the accused relative to the deceased it is indeed possible to throw a brick using a right hand and hit the left side. It is our finding that the State has established a prima facie case and the accused needs to be put to his defence. We consequently dismissed the application for discharge at the close of the State case. THE EVIDENCE OF THE DEFENCE The accused person was the sole witness for his case. He testified as follows; He was asleep on top of a table at Mbare Musika close to some tuckshops which he is employed to guard, on 6 April 2024 around 3.00 am. He woke up to some people assaulting him. There were about 10 people and when they assaulted him he fell to the ground. They picked him up and were saying he had stolen their business. He set himself free, grabbed something beside him and threw it. In describing the beating he said that they were beating him with a plank and a hippopotamus tail. He recognized Metso and the deceased amongst the assailants but does not know the names of rest. As he was being assaulted, some passers by came to his aid as they pleaded that the assault be stopped. This did not deter the assailants who continued assaulting him, with some proposing that he be taken to Chipango, a place he does not know. The accused refuted that he wanted to kill and harm the deceased because he was accosted whilst he was asleep and was seeking a way to escape from the ongoing assault when he grabbed the brick. He threw the brick without aiming at the deceased but trying to ward off the attackers. He never hit the deceased with fists. After the beating he was taken to the Mabanana Market which is where he recognized Metso and others. He was tied with a rope and the assault on him continued. He did not see how Simba fell when he hit him with a brick as he was surrounded by the mob. The accused denied ever trying to stone Clifford Chenhamo as he was running away. He classified the assault on him as severe and that he had to go to the prison hospital for treatment. Thereafter he was taken to the police and put in custody. The deceased also walked to the police station and wanted to assault the accused, even at the police station. The accused surmised that the deceased had passed away due to lack of medical funds. He said he could not help as he was already in custody. The accused regretted the events of 6 April 2024. He however blamed the deceased for how things turned out because they approached him whilst he was sleeping and assaulted him. He had begged his assailants to stop assaulting him but they had continued so he picked up the brick and threw it. The testimony by Clifford Chenhamo that there were no other people involved in the assault other than Metso, the deceased and Clifford was said to be untrue. The relevance of the involvement of other people was that they saved him from the continued beating from the mob. He had no intention to kill the deceased nor to throw the brick. He only so acted in order to protect himself. Under cross examination, the acused was quizzed on what he was admitting to in his warned and cautioned statement. He said he was admitting to self defence by picking the stone and throwing it. He admitted Clifford Chenhamo’s evidence that he stole bananas. The accused was questioned on the lack of the detail on having been sleeping on the table when he was confronted, in his statement. He insisted he was sleeping on the table and the bananas were on the same table. He denied that he was found walking and holding a basket of bananas. He wanted to sell the stolen bananas. The inconsistency in the defence outline where accused said he threw the brick in the air as against the statement where he said he struck the deceased in self defence was acknowledged but the accused said the court should stick to the version which says he was trying to defend himself when he threw the brick. When asked to demonstrate how he threw the brick he said he was lying on the ground and threw the brick. When asked whether that was throwing in the air he insisted that his aim was to be released. When it was put to the accused that there was no crowd when he struck the deceased and the crowd only gathered after deceased had fallen, he insisted that there was a crowd all the time. The accused who confirmed that the deceased was alive when they got to the police station was questioned on why he did not make a counter report of assault. He said he done so but the police did not accept his report. The accused admitted that his conduct caused injuries resulting in deceased’s death. Upon the court seeking clarifications on the deceased’s position when he threw the brick, he said he was on the ground on his knees. Further clarification was sought on the number of people who initially approached the accused and started the attack. He confirmed that it was 3 people who were shouting that it was him who stole the bananas as they were assaulting him and later some other people joined in. Both the crowd which joined in the assault and the one which saved him are said to have been there when he threw the brick. With the above evidence, the defence closed its case. DOCTOR’S EVIDENCE On 13 February 2025, we reopened the case to receive evidence form a Doctor on the post mortem report. The examining forensic pathologist was said to be unavailable. With consent of the parties, a replacement doctor was invited to come and assist in the interpretation of the post mortem report. Doctor Tsungai Jabangwe, who is also a forensic pathologist gave evidence. He confirmed the cause of death as appearing in the report to be blood in the abdomen due to stomach rupture and severe abdominal trauma. Amongst other things he pointed to the fracture of the 10th, 11th and 12th ribs, that both lungs had edema and congestion and liver laceration. According to him, blunt abdominal trauma is what caused injury to the abdominal organs. Celebral edema was said to be the after effect of the brick hitting the head. Severe brain odema was said to be a high risk factor in this case but is not visible from outside. Blunt force trauma in the stomach area was explained to have been likely caused by a kick or falling and hitting on something blunt leading to fractured ribs and blood in the abdomen. It was also explained that people respond to trauma differently and it was not surprising that the deceased had been walking around earlier, only to be taken to hospital later when his condition deteriorated. ANALYSIS OF EVIDENCE ISSUES THAT ARE NOT DISPUTED It is common cause that the accused had stolen some bananas on the date in question. The accused admitted to this. The accused and the deceased were known to each other as testified by the accused and Clifford Chenhamo. It is common cause too that the deceased, Clifford Chenhamo and one Metso confronted the deceased about the stolen bananas. The accused admitted to throwing the half brick which struck the deceased on the head. It is not disputed that after the assault on him, the deceased was able to walk to the police station where he reported a case of assault against the accused, whom they had apprehended. This was agreed to by both the two State witnesses and the accused. It was also agreed that the deceased had not received immediate medical attention due to lack of funds. ISSUES THAT ARE DISPUTED The first disputed issue is whether the accused was confronted about the stolen bananas as he was walking and carrying them on whether he was asleep at 3:00 am and was awoken to some assaults whilst he slept on a table. The accused’s version in his defence outline is miles apart from that in his warned and cautioned statement. Therein he says he admits to the charge. He stole some bananas and was followed by the owners who caught up with him, assaulted him and surrounded him. He managed to extricate himself picked up a stone and struck the deceased in a bid to defend himself. This is the essence of the evidence of Clifford Chenhamo that it was him, the deceased and one Metso who had alerted them to the theft of bananas and pointed to someone carrying a container of bananas whom they followed and caught up with at the Epworth Rank. We accept the State’s version as the correct version of events and discard that belatedly offered by the accused as an afterthought. He was therefore not sleeping when he was confronted about the stolen bananas. The next disputed issue is whether the accused was assaulted by Metso, Clifford and the deceased when they confronted him. The testimony by Clifford states that the accused was not assaulted, instead he became violent on being questioned and he slapped the deceased once on the cheek and thereafter threw the brick at him. This was because the accused was known to the deceased. On the other hand the accused said he was being assaulted by up to ten people who were using planks and a hippo skin and only picked the brick to ward off the attack. His warned and cautioned statement does not describe the items used to assault him. Just that he was apprehended by the owners of the bananas who went on to assault him as they surrounded him. When he managed to extricate himself he picked up a stone and stuck the deceased. The accused in his evidence in chief starts off by saying that as he was sleeping on top of the table he woke up to an assault and that it was about 10 people who visited him and assaulted him. Of those he recognized the deceased and saw Metso. He did not recognize the rest. When the court sought clarification on who initially approached him and started the attack, he revised his position and said it was in fact 3 people; Metso; Clifford and the deceased. When speaking about the mob which gathered and the reliance the accused classified these into two groups, those who saved him and those who joined in the beating. The witness Clifford Chenhamo remained unshaken in his stance that it was in fact only the three of them who pursued and confronted the accused on the theft of bananas. There was no crowd until the accused struck the deceased and he fell. It was then that the people gathered to see the injured person. Others joined in to help in apprehending the accused, as per Simon Sithole’s testimony. When Clifford Chenhamo came back with Simon Sithole, there was a mob which was then attacking the accused. It is curious that the accused did not lodge a counter report of assault against the deceased as he was alive then. His warned and cautioned statement does not say that he was assaulted when the trio caught up with him and they surrounded him. Whilst we accept that the accused may have been surrounded and assaulted in order to subdue him, we do not accept that it was in the manner and to the extent he described, at the point of initial contact. The evidence of Simon Sithole is accepted that he was assaulted by passers by after the deceased had already been struck with the half brick. The next contentious issue relates to whether the accused threw the half brick into the air in order to disperse the crowd or he aimed it at the deceased. Witness Clifford Chenhamo testified that both the deceased and himself in an attempt to apprehend the accused, went in different directions behind a commuter omnibus and he saw the accused throwing a half brick aimed at the deceased which struck him on the head. When he saw the deceased fall, he ran away. The evidence of Wellington Sithole which was admitted in terms of section 314 of the Criminal Procedure and Evidence Act confirms that the accused had been hitting the deceased with a half brick several times and then instructed the deceased to run. When he attempted to run towards Mabanana Market, the deceased was then struck by the accused on the head with a half brick. He fell down. Both witnesses do not speak of a crowd. The brick was aimed at the deceased. Since the accused was known to the deceased, they had not shouted “thief”. The accused’s own warned and cautioned statement does not speak of any crowd. He explicitly says that when he had been surrounded by the owners of the bananas he had stolen, he managed to extricate himself, picked up a stone and struck the deceased in a bid to defend himself. In his evidence in chief he says that there were about 10 people assaulting him and he fell to the ground. They then picked him up and were accusing him of stealing their business. When he was up, he set himself free, grabbed something beside him and threw it. Surprisingly, under cross- examination, when the accused was asked to demonstrate how he threw the brick, he changed and said he was lying on the ground when he threw the brick. When the court sought clarifications on his position when he threw the brick, he changed yet again and said he was on his knees on the ground when he threw the brick. Such inconsistency can only point to one conclusion. The accused was making up his story as the hearing unfolded, The only conceivable factual position is that the accused who had been cornered as the banana thief and was surrounded, by the trio “picked up a stone and struck the deceased”. He did not throw the half brick into the air. There was no crowd to disperse. It was only the trio which had surrounded him. The next issues to be decided is whether the accused acted in self defence when he struck the deceased with the half brick. We already found that there was no crowd of 10 people. In his confirmed warned and cautioned statement the accused states that he was apprehended by the owners of the bananas who went on to assault him as they surrounded him. He then makes the startling revelation that “I then managed to extricate myself, I picked up a stone and struck Simbarashe in a bid to defend myself.” The accused has raised the defence of person as a complete defence. Given the facts which the court has established as correct, would that defence stand. According to s253 of the Criminal Law Codification and Reform Act, there must be an unlawful attack which has commenced or is imminent and his conduct must be necessary to avert the unlawful attack or he or she could not otherwise escape from or avert the unlawful attack or believed so. The means used to avert the unlawful attack must be reasonable in the circumstances and not grossly disproportionate. In this case, the accused himself says he managed to extricate himself. Even Clifford Chenhamo’s evidence says so. If he had escaped and Clifford Chenhamo and the deceased were chasing him around a commuter omnibus, why did he not make good his escape? This defence of self if not sustainable in the circumstances. One other issue cries out for resolution. Clifford Chenhamo’s testimony is that of one who was present when deceased was struck. He testified that he did not see the accused kicking or punching the accused in the stomach area. He only saw him clap the deceased once on the cheek and the next and last thing was the throwing of the fatal half brick. The post mortem report concludes that the cause of death was: 3000 ml hemoperitoreumstomach rupturesevere abdominal trauma Elsewhere in the report it shows that the deceased fractured the 10th, 11th and 12th ribs. Most of the State evidence focused on the injury directly caused by the half brick thrown at the deceased which hit him on the head. He suffered severe brain odema as a result of that. Doctor Jabangwe testified that this is a high risk factor but death was caused by the reasons listed above. According to Doctor Jabangwe, blunt abdominal trauma is what caused injury to the abdominal organs. Such blunt force trauma in the stomach area was explained to have been likely caused by a kick or falling and hitting on something blunt leading to the fractured ribs and blood in the abdomen. Clifford Chenhamo testified that the deceased was struck in the area around the back of the head and he fell down. Witness Simon Sithole said that when he saw the deceased he was lying on his stomach. The only reasonable conclusion is that the half brick throw by the accused caused the deceased to fall on his stomach and he suffered blunt force trauma. This court has to decide the question of causation. In “A Guide to the Criminal Law of Zimbabwe 2006” By G Feltoe, p10, it was held that: “With crimes such as murder, culpable homicide and assault, X can only be found guilty if it is proved that he caused the end result that forms the basis of the charge. Thus with murder and culpable homicide it must be proved that he caused the death of D and with assault it must be proved that he caused physical harm to C. In our law it must be proved that X was both the factual cause of the result and the legal cause of the result.” The test to determine whether X was the factual cause of the consequence is to ask: but for X’s actions would the consequence have occurred? If it would not have occurred but for X’s conduct, then X is the factual cause of the consequence. If it would still have occurred anyway, the X is not the factual cause of the end result. In this case it is clear that had it not been for accused’s action of throwing the half brick at the deceased, he would not have fallen on his stomach and suffered broken ribs, blunt force trauma, leading to 3000 ml hemoperitoreum, stomach rupture and severe abdominal trauma. The accused is the factual cause of the end result. The test of legal cause is to ask whether the consequence was reasonably foreseeable or was within the range of human experience. It was indeed reasonably foreseeable that in throwing a 1.63kg half brick at the deceased’s head at the back, he was likely to fall on his stomach and get injured. This is clearly within the range of human experience. We find that the accused was the legal cause of the deceased’s injuries and resulting death. It is our finding that the State has managed to prove, beyond reasonable doubt that on the 6th day of April 2024 and at Mabanana Market Place, Mbare, the accused Walter Jumira, unlawfully and with intent to kill, or realizing that there was a real risk of possibility that his conduct might cause death and continuing to engage in that conduct despite the risk or possibility, assaulted Simba Chitsanga with open hands and struck him with a half brick on the left side of the head thereby causing injuries from which the said Simba Chistinga died. The accused, Walter Jumira is therefore found guilty of murder as defined in s47(1) of the Criminal Law Codification and Reform Act. Muchawa J: ………………………………………………….. National Prosecuting Authority, State’s legal practitioners Mafongoya and Matapura, accused’s legal practitioners 8 HH 218 - 25 HCHCR 5862/25 8 HH 218 - 25 HCHCR 5862/25 THE STATE versus WALTER JUMIRA HIGH COURT OF ZIMBABWE MUCHAWA J HARARE; 3 & 13 February 2025 Assessors: Mr Mhandu Mr Gwatiringa Criminal Trial T Makiya, for the State T.J Mafongoya & C Mutseneki, for the Accused MUCHAWA J: The accused is charged of murder as defined in s 47(1) of the Criminal Law Codification and Reform Act [Chapter 9:23]. It is alleged that on 6 April 2024 around 3.00 am and at Mabanana Market Place in Mbare, the accused who had stolen bananas from a place under the guard of the deceased and one Clifford Chenhamo had been seen by one Metso. Metso woke up the deceased and Clifford Chenhamo and they proceeded to Epworth Rank with the intention of Metso showing them where the stolen boxes of bananas were hidden. The accused was allegedly confronted at the Epworth Rank whereupon when he recognized the deceased, he slapped him once on the face and on the chest with a fist. The deceased is said to have retreated backwards and whilst doing so, the accused picked a half brick and struck the deceased once on the left side of the head and he fell down. At this point Clifford Chenhamo rushed to the Mabanana Market and called Simon Sithole to come where the deceased was found lying in a pool of blood. The accused was apprehended with the help of members of the public and taken to the police where the deceased was referred to hospital. An assault docket was opened. Deceased was not treated due to lack of funds. He returned to Mabanana Market but was found struggling to sleep by one Vitalis Mudukuti later that day. Well-wishers mobilized funds and he was taken to a private doctor and then referred to Sally Mugabe Hospital where he passed on, on 7 April 2024. A postmortem examination was conducted by Doctor Ariana Pedro Gourguet who concluded that the cause of death was; 3000 ml hemoperitoreum Stomach rupture Severe abdominal trauma The accused pleaded not guilty to murder. In denying the charge, the accused stated that he was indeed at Mabanana Market Mbare on 6 April 2024 around 3 am. He claims to have been attacked by the deceased, Clifford Chenhamo and Metso as they accused him of having stolen bananas. The attack on him is said to have been serious and vicious, preplanned and unlawful. It is the accused’s assertion that three assailants were later joined by other people and came to ten and they all continued attacking him using fists. They also allegedly used wooden planks, and hippopotamus skin (chitorobho). He claims to have acted in self defence in an attempt to ward off the attack on him by picking the half brick which was in his vicinity, and throwing it into the air. Thereafter the crowd is said to have dispersed and he attempted to flee but was apprehended by the crowd. The accused denies any intention of harming anyone and learnt later that the brick had hit and injured the deceased. He claims not to have thrown anything further nor fought anyone. He denies too having beaten the deceased many times using his fists. He was taken to the police in the presence of the deceased. He was arrested and held in custody till today. He learnt later of the deceased’s demise. THE EVIDENCE LED BY THE STATE At the outset the State produced the post mortem report with the consent of the defence as exhibit A. It states that the remains of the deceased were examined by a forensic pathologist, Dr Ariana Pedro Gourguet on 15 April 2024. The conclusion is that the cause of death was: 3000 ml hemoperitoreum stomach rupture severe abdominal trauma The accused’s confirmed warned and cautioned statement was produced by consent and marked as exhibit 2. The weight certificate of the half brick was produced by consent and marked exhibit 3. It shows the weight of the half brick as 1,63kg. The State led viva voce evidence from Clifford Chenhamo and Simon Sithole. Clifford Chenhamo’s testimony was that at the relevant time he was employed to guard at the Mabanana Market on behalf of some vendors together with the deceased. He had been so employed for a month. He did not know the accused prior to this incident. The deceased had been employed for longer. On the fateful day, he was sleeping when a man named Metso woke up the deceased and him at around 3 am on 6 April 2024. He advised them that someone had been stealing bananas and pointed to someone carrying a container of bananas. Metso suggested that they should go and recover the bananas and apprehend the person. There was enough lighting from the tower lights. The trio followed the accused and found him at the Epworth Rank where he was already selling the bananas. The deceased opened the basket of bananas the accused was holding. The accused is said to have questioned the deceased on what he wanted and he was questioned on the theft of bananas. It was at that point that the accused is alleged to have become violent and slapped the deceased with open hands once on the cheek. When the deceased tried to run away, the accused is alleged to have picked the brick and thrown it. Deceased was allegedly struck when he tried to hide behind a commuter omnibus and they were about 10 metres away from each other. Upon being struck the deceased fell to the ground and the witness ran to call others. As he was running away, the accused is alleged to have thrown another brick at the witness which missed him. The witness testified that the brick thrown at the deceased struck him at the back of his head. When the witness Clifford came back he was in the company of Simon Sithole and others. They found that Metso had apprehended the accused. Simon Sithole then woke up the deceased whom he saw was bleeding. They then took the accused to the Mabanana shed and deceased’s wound was cleaned of blood. Thereafter they took the accused to the police. The accused’s assertion that he was assaulted by a group of people was said to be a blatant lie as it was only the three of them who confronted the accused and no one assaulted him. Metso is alleged to have held him by the belt to ensure that he would not escape. A crowd is alleged to have gathered only after the deceased had been assaulted as people were curious to see the injured person. It was said to be untrue that the accused threw the brick to disperse the crowd which was assaulting him as there was no crowd except a commuter omnibus which was loading people and had a few passengers and the driver and conductor only. This witness denied seeing the accused using fists to assault the deceased. He had no reasons to fabricate evidence against the accused as they were unknown to each other and there was no history of bad blood. When it was put to the witness that as a guard he would use force to recover whatever was stolen including vicious beating, he insisted that their aim was to first apprehend the thief and then recover what was stolen. On his own role, the witness said when they got to the accused, he was trying to apprehend him and accused then picked brick and threw it at him and missed. Both the deceased and the witness had gone in different directions behind the commuter omnibus in an attempt to catch and apprehend the accused. The people in the commuter omnibus did not disembark. Regarding how the brick was thrown at the deceased, the witness demonstrated and explained that the accused used his hand aiming at the deceased who was struck at the back of his head. The witness says he then ran away after seeing the deceased fall. Even under cross examination the witness vehemently denied that the accused was hit by other people. He did not see this. The witness explained that they did not call out “Thief” as the deceased and accused knew each other and would even spend time together. The State’s second witness was Simon Sithole who knew the deceased for 3 years as they worked at the same place and deceased would help in offloading bananas and was paid by this witness. His evidence was that he was awoken by Clifford Chenhamo around 3am to the news that the accused had struck the deceased with a brick and he fell down. He got to the scene and found the deceased lying on the ground and he lifted him up. Upon examination he saw that the deceased had been struck at the top of the ear. The accused is alleged to have been vigorously resisting to be apprehended and a lot of people intervened until he was tied. This was after Metso had held him by the belt. At that time the deceased is alleged not to have said anything to this witness but was in pain and wanted to fight but was restrained by this witness. People are alleged to have wanted to beat the accused and to take him to Chipanga and many suggestions were being thrown in. It was this witness and other men who suggested going to the police. He has no knowledge however about where Chipanga is and what is done there. The accused was then assaulted by some members of the mob including passers by. He has no idea who in particular assaulted accused but he was very powerful and trying to escape. The witness could not estimate the size of the crowd as it was night time. When he saw the deceased, he was lying on his stomach. After these two witnesses’ oral evidence, the evidence of the following witnesses was admitted without objections in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07]. That is Wellington Sithole, Edwin Chitsanga, Vitalis Mudukuti, Maina Zifosho, Lucky Mbopela and Kudakwashe Marume. The evidence of Wellington Sithole was to the effect that on 6 April 2024 at around 3 am he heard some noise at Epworth Rank at Mbare and went to investigate. He saw the accused holding the deceased by his shirt from behind, hitting him with a half brick several times and instructing the deceased to run away. When the deceased set off towards Mabanana Market, the accused then struck him on the head with a half brick. The deceased fell down. The accused threw another stone which missed Clifford Chenhamo who was running towards Mabanana Market. Clifford Chenhamo came back with deceased’s relatives. Some other man restrained the accused by grabbing him by his belt. There was light from OK Store Mbare and Block 12 Tererini Flats Mbare. The deceased’s relatives and members of the public apprehended the accused and walked to Mabanana Market. Deceased who had collapsed had woken up and they went to the Zimbabwe Republic Police Matapi. He learnt of the deceased’s death, three days later. Edwin Chitsanga is a male adult and a brother to the deceased. He got a call on 6 April 2024 from Martha Chitsanga informing him that the deceased had been assaulted and had sustained serious injuries. On 7 April 2024 at around 0700 hours he visited the deceased who was admitted at Sally Mugabe Hospital and observed that the deceased had a deep cut on the left side of the head behind his ear. The deceased succumbed to the injuries later on and he identified the body to the police. Vitalis Mudukuti knew the deceased as a workmate and only knows the accused in connection with this case. On 6 April 2024 he saw the deceased at Mabanana Market struggling to sleep. He was bleeding from the left side of the head and was complaining of pain and wanted to be taken to hospital. This witness mobilized for some funds and took the deceased to a private doctor who then referred them to Sally Mugabe Hospital. On the 7th of April 2024, he learnt about the deceased’s death. Maina Zifosho is a duly attested member in the Zimbabwe Republic Police stationed at Matapi. She knew the parties only in connection with this case. She witnessed the recording of the warned and cautioned statement from the accused which he did in his sound and sober senses and freely and voluntarily. Mbopela Lucky is a duly attested member in the Zimbabwe Republic Police stationed ta ZRP Matapi. On 6 April 2024, he received a report of assault from the deceased who was bleeding excessively and he referred the deceased to Sally Mugabe Hospital. Kudakwashe Marume is a duly attested member in the Zimbabwe Republic Police. He is the Member – In – Charge Crime. On 13 April 2024 he took the accused for indications at the crime scene and he drew a sketch plan. With the above evidence, the State closed its case. THE APPLICATION FOR DISCHARGE AT THE CLOSE OF THE STATE CASE Mr Mafongoya made an application for discharge at the close of the State case in terms of s198(3) of the Criminal Procedure and Evidence Act. Reference was made to the cases of S v Tavarwisa HMA 05/17, S v Kachipare 1998 (2) ZLR 271 (SC) and AG v Tarwirei 1997 (1) ZLR 575. The basis for the application was that there is no evidence before the court to prove the essential elements of the offence; that there is no evidence upon which a reasonable court acting carefully might convict and that the evidence led by the State is so manifestly unreliable and is discredited severely under cross examination that no reasonable court could act such evidence. The alleged inconsistencies in the evidence were that the first witness was not honest and sure of his age which he gave in evidence in chief as 23 or 26 as in his statement. The first witness was said to have given two versions of the same event including identification moment of the accused. He is also said to have disregarded what he alleged in his statement in para 6 as what the accused said to the deceased. It was pointed out too that he had initially said no other people were involved yet under cross examination he referred to a commuter omnibus whose passengers did not disembark. This it was argued, was the same group of people the accused said were part of the crowd which attacked him. The second witness is said to have confirmed that there were many people who attacked the accused and that the deceased was eager to fight. The first witness is said to have omitted to mention that the altercation between the accused and deceased took place in a busy place as confirmed by the second witness and some people even wanted to take the accused to Chipanga. Furthermore the first witness is said not to have mentioned, in his statement, that he accompanied the accused and deceased to the police, which fact was allegedly accepted under cross examination. The second witness is alleged to have highlighted that even after apprehension, the accused was under risk of harm. It was argued that the key witness evidence was inconsistent and that it was unreasonable to conclude that a brick having been thrown by the right hand would hit the left side. Mr Mafongoya contended that the evidence of the first and second witness was manifestly inconsistent and non-coherent and that there was no prima facie evidence on which to convict. It was prayed that the accused be found not guilty and acquitted. Ms Makiya was opposed to the application sought. She indicated that though the accused denies that the offence and says he had no intention to kill, he agrees to having stolen bananas, having been apprehended and striking deceased. The only contention was whether the brick was thrown into the air with the intention or realization that such conduct might cause death. The evidence of the key witness was said not to be manifestly unreliable. Noteworthy was said to be that the accused places himself at the scene. The accused was unknown to the witness hence there is no malice. In response Mr Mafongoya argued on the strength of the case of AG v Bennet SC 7/11 that once it is found that there is no evidence, the court has no discretion but to discharge at the close of the State case. Since the offence is murder, it was argued that the essential elements should come from the witness. We dismissed this application. We relied on the case of AG v Tarwirei 1997 (1) ZLR 575 (5) wherein it was held that while it is true that a court may acquit at the end of the State case where the evidence of the prosecution witnesses has been so discredited as a result of cross examination or is so manifestly unreliable that no reasonable tribunal could safely convict, such cases will be rare. It would be quite exceptional for the credibility of a witness to be so utterly destroyed that no part of his material evidence could possibly be believed. In cause the two witnesses gave evidence on a continuum of events. The first witness saw the attack/assault on the deceased and the point at which he invited the second witness after the deceased had been hit and was on the ground. The material facts crying for resolution are the involvement of the mob at the point when the accused threw the half brick at the deceased and how it was thrown. The second witness cannot speak to this. The serious assertions by the accused counsel in cross examination cannot be treated as accused’s evidence. Counsel was not under oath. The court is not in a position to decide the veracity of the two versions until it had heard the accused in evidence in chief. See AG v Tarwirei supra. In any event some of the alleged inconsistencies are not really material to the charge such as the witness’ age, for example. It is not appropriate for the court to pass judgement at this stage on the relative credibility of the two versions. There is nothing inherently incredible about the State version. For instance, depending on the position of the accused relative to the deceased it is indeed possible to throw a brick using a right hand and hit the left side. It is our finding that the State has established a prima facie case and the accused needs to be put to his defence. We consequently dismissed the application for discharge at the close of the State case. THE EVIDENCE OF THE DEFENCE The accused person was the sole witness for his case. He testified as follows; He was asleep on top of a table at Mbare Musika close to some tuckshops which he is employed to guard, on 6 April 2024 around 3.00 am. He woke up to some people assaulting him. There were about 10 people and when they assaulted him he fell to the ground. They picked him up and were saying he had stolen their business. He set himself free, grabbed something beside him and threw it. In describing the beating he said that they were beating him with a plank and a hippopotamus tail. He recognized Metso and the deceased amongst the assailants but does not know the names of rest. As he was being assaulted, some passers by came to his aid as they pleaded that the assault be stopped. This did not deter the assailants who continued assaulting him, with some proposing that he be taken to Chipango, a place he does not know. The accused refuted that he wanted to kill and harm the deceased because he was accosted whilst he was asleep and was seeking a way to escape from the ongoing assault when he grabbed the brick. He threw the brick without aiming at the deceased but trying to ward off the attackers. He never hit the deceased with fists. After the beating he was taken to the Mabanana Market which is where he recognized Metso and others. He was tied with a rope and the assault on him continued. He did not see how Simba fell when he hit him with a brick as he was surrounded by the mob. The accused denied ever trying to stone Clifford Chenhamo as he was running away. He classified the assault on him as severe and that he had to go to the prison hospital for treatment. Thereafter he was taken to the police and put in custody. The deceased also walked to the police station and wanted to assault the accused, even at the police station. The accused surmised that the deceased had passed away due to lack of medical funds. He said he could not help as he was already in custody. The accused regretted the events of 6 April 2024. He however blamed the deceased for how things turned out because they approached him whilst he was sleeping and assaulted him. He had begged his assailants to stop assaulting him but they had continued so he picked up the brick and threw it. The testimony by Clifford Chenhamo that there were no other people involved in the assault other than Metso, the deceased and Clifford was said to be untrue. The relevance of the involvement of other people was that they saved him from the continued beating from the mob. He had no intention to kill the deceased nor to throw the brick. He only so acted in order to protect himself. Under cross examination, the acused was quizzed on what he was admitting to in his warned and cautioned statement. He said he was admitting to self defence by picking the stone and throwing it. He admitted Clifford Chenhamo’s evidence that he stole bananas. The accused was questioned on the lack of the detail on having been sleeping on the table when he was confronted, in his statement. He insisted he was sleeping on the table and the bananas were on the same table. He denied that he was found walking and holding a basket of bananas. He wanted to sell the stolen bananas. The inconsistency in the defence outline where accused said he threw the brick in the air as against the statement where he said he struck the deceased in self defence was acknowledged but the accused said the court should stick to the version which says he was trying to defend himself when he threw the brick. When asked to demonstrate how he threw the brick he said he was lying on the ground and threw the brick. When asked whether that was throwing in the air he insisted that his aim was to be released. When it was put to the accused that there was no crowd when he struck the deceased and the crowd only gathered after deceased had fallen, he insisted that there was a crowd all the time. The accused who confirmed that the deceased was alive when they got to the police station was questioned on why he did not make a counter report of assault. He said he done so but the police did not accept his report. The accused admitted that his conduct caused injuries resulting in deceased’s death. Upon the court seeking clarifications on the deceased’s position when he threw the brick, he said he was on the ground on his knees. Further clarification was sought on the number of people who initially approached the accused and started the attack. He confirmed that it was 3 people who were shouting that it was him who stole the bananas as they were assaulting him and later some other people joined in. Both the crowd which joined in the assault and the one which saved him are said to have been there when he threw the brick. With the above evidence, the defence closed its case. DOCTOR’S EVIDENCE On 13 February 2025, we reopened the case to receive evidence form a Doctor on the post mortem report. The examining forensic pathologist was said to be unavailable. With consent of the parties, a replacement doctor was invited to come and assist in the interpretation of the post mortem report. Doctor Tsungai Jabangwe, who is also a forensic pathologist gave evidence. He confirmed the cause of death as appearing in the report to be blood in the abdomen due to stomach rupture and severe abdominal trauma. Amongst other things he pointed to the fracture of the 10th, 11th and 12th ribs, that both lungs had edema and congestion and liver laceration. According to him, blunt abdominal trauma is what caused injury to the abdominal organs. Celebral edema was said to be the after effect of the brick hitting the head. Severe brain odema was said to be a high risk factor in this case but is not visible from outside. Blunt force trauma in the stomach area was explained to have been likely caused by a kick or falling and hitting on something blunt leading to fractured ribs and blood in the abdomen. It was also explained that people respond to trauma differently and it was not surprising that the deceased had been walking around earlier, only to be taken to hospital later when his condition deteriorated. ANALYSIS OF EVIDENCE ISSUES THAT ARE NOT DISPUTED It is common cause that the accused had stolen some bananas on the date in question. The accused admitted to this. The accused and the deceased were known to each other as testified by the accused and Clifford Chenhamo. It is common cause too that the deceased, Clifford Chenhamo and one Metso confronted the deceased about the stolen bananas. The accused admitted to throwing the half brick which struck the deceased on the head. It is not disputed that after the assault on him, the deceased was able to walk to the police station where he reported a case of assault against the accused, whom they had apprehended. This was agreed to by both the two State witnesses and the accused. It was also agreed that the deceased had not received immediate medical attention due to lack of funds. ISSUES THAT ARE DISPUTED The first disputed issue is whether the accused was confronted about the stolen bananas as he was walking and carrying them on whether he was asleep at 3:00 am and was awoken to some assaults whilst he slept on a table. The accused’s version in his defence outline is miles apart from that in his warned and cautioned statement. Therein he says he admits to the charge. He stole some bananas and was followed by the owners who caught up with him, assaulted him and surrounded him. He managed to extricate himself picked up a stone and struck the deceased in a bid to defend himself. This is the essence of the evidence of Clifford Chenhamo that it was him, the deceased and one Metso who had alerted them to the theft of bananas and pointed to someone carrying a container of bananas whom they followed and caught up with at the Epworth Rank. We accept the State’s version as the correct version of events and discard that belatedly offered by the accused as an afterthought. He was therefore not sleeping when he was confronted about the stolen bananas. The next disputed issue is whether the accused was assaulted by Metso, Clifford and the deceased when they confronted him. The testimony by Clifford states that the accused was not assaulted, instead he became violent on being questioned and he slapped the deceased once on the cheek and thereafter threw the brick at him. This was because the accused was known to the deceased. On the other hand the accused said he was being assaulted by up to ten people who were using planks and a hippo skin and only picked the brick to ward off the attack. His warned and cautioned statement does not describe the items used to assault him. Just that he was apprehended by the owners of the bananas who went on to assault him as they surrounded him. When he managed to extricate himself he picked up a stone and stuck the deceased. The accused in his evidence in chief starts off by saying that as he was sleeping on top of the table he woke up to an assault and that it was about 10 people who visited him and assaulted him. Of those he recognized the deceased and saw Metso. He did not recognize the rest. When the court sought clarification on who initially approached him and started the attack, he revised his position and said it was in fact 3 people; Metso; Clifford and the deceased. When speaking about the mob which gathered and the reliance the accused classified these into two groups, those who saved him and those who joined in the beating. The witness Clifford Chenhamo remained unshaken in his stance that it was in fact only the three of them who pursued and confronted the accused on the theft of bananas. There was no crowd until the accused struck the deceased and he fell. It was then that the people gathered to see the injured person. Others joined in to help in apprehending the accused, as per Simon Sithole’s testimony. When Clifford Chenhamo came back with Simon Sithole, there was a mob which was then attacking the accused. It is curious that the accused did not lodge a counter report of assault against the deceased as he was alive then. His warned and cautioned statement does not say that he was assaulted when the trio caught up with him and they surrounded him. Whilst we accept that the accused may have been surrounded and assaulted in order to subdue him, we do not accept that it was in the manner and to the extent he described, at the point of initial contact. The evidence of Simon Sithole is accepted that he was assaulted by passers by after the deceased had already been struck with the half brick. The next contentious issue relates to whether the accused threw the half brick into the air in order to disperse the crowd or he aimed it at the deceased. Witness Clifford Chenhamo testified that both the deceased and himself in an attempt to apprehend the accused, went in different directions behind a commuter omnibus and he saw the accused throwing a half brick aimed at the deceased which struck him on the head. When he saw the deceased fall, he ran away. The evidence of Wellington Sithole which was admitted in terms of section 314 of the Criminal Procedure and Evidence Act confirms that the accused had been hitting the deceased with a half brick several times and then instructed the deceased to run. When he attempted to run towards Mabanana Market, the deceased was then struck by the accused on the head with a half brick. He fell down. Both witnesses do not speak of a crowd. The brick was aimed at the deceased. Since the accused was known to the deceased, they had not shouted “thief”. The accused’s own warned and cautioned statement does not speak of any crowd. He explicitly says that when he had been surrounded by the owners of the bananas he had stolen, he managed to extricate himself, picked up a stone and struck the deceased in a bid to defend himself. In his evidence in chief he says that there were about 10 people assaulting him and he fell to the ground. They then picked him up and were accusing him of stealing their business. When he was up, he set himself free, grabbed something beside him and threw it. Surprisingly, under cross- examination, when the accused was asked to demonstrate how he threw the brick, he changed and said he was lying on the ground when he threw the brick. When the court sought clarifications on his position when he threw the brick, he changed yet again and said he was on his knees on the ground when he threw the brick. Such inconsistency can only point to one conclusion. The accused was making up his story as the hearing unfolded, The only conceivable factual position is that the accused who had been cornered as the banana thief and was surrounded, by the trio “picked up a stone and struck the deceased”. He did not throw the half brick into the air. There was no crowd to disperse. It was only the trio which had surrounded him. The next issues to be decided is whether the accused acted in self defence when he struck the deceased with the half brick. We already found that there was no crowd of 10 people. In his confirmed warned and cautioned statement the accused states that he was apprehended by the owners of the bananas who went on to assault him as they surrounded him. He then makes the startling revelation that “I then managed to extricate myself, I picked up a stone and struck Simbarashe in a bid to defend myself.” The accused has raised the defence of person as a complete defence. Given the facts which the court has established as correct, would that defence stand. According to s253 of the Criminal Law Codification and Reform Act, there must be an unlawful attack which has commenced or is imminent and his conduct must be necessary to avert the unlawful attack or he or she could not otherwise escape from or avert the unlawful attack or believed so. The means used to avert the unlawful attack must be reasonable in the circumstances and not grossly disproportionate. In this case, the accused himself says he managed to extricate himself. Even Clifford Chenhamo’s evidence says so. If he had escaped and Clifford Chenhamo and the deceased were chasing him around a commuter omnibus, why did he not make good his escape? This defence of self if not sustainable in the circumstances. One other issue cries out for resolution. Clifford Chenhamo’s testimony is that of one who was present when deceased was struck. He testified that he did not see the accused kicking or punching the accused in the stomach area. He only saw him clap the deceased once on the cheek and the next and last thing was the throwing of the fatal half brick. The post mortem report concludes that the cause of death was: 3000 ml hemoperitoreum stomach rupture severe abdominal trauma Elsewhere in the report it shows that the deceased fractured the 10th, 11th and 12th ribs. Most of the State evidence focused on the injury directly caused by the half brick thrown at the deceased which hit him on the head. He suffered severe brain odema as a result of that. Doctor Jabangwe testified that this is a high risk factor but death was caused by the reasons listed above. According to Doctor Jabangwe, blunt abdominal trauma is what caused injury to the abdominal organs. Such blunt force trauma in the stomach area was explained to have been likely caused by a kick or falling and hitting on something blunt leading to the fractured ribs and blood in the abdomen. Clifford Chenhamo testified that the deceased was struck in the area around the back of the head and he fell down. Witness Simon Sithole said that when he saw the deceased he was lying on his stomach. The only reasonable conclusion is that the half brick throw by the accused caused the deceased to fall on his stomach and he suffered blunt force trauma. This court has to decide the question of causation. In “A Guide to the Criminal Law of Zimbabwe 2006” By G Feltoe, p10, it was held that: “With crimes such as murder, culpable homicide and assault, X can only be found guilty if it is proved that he caused the end result that forms the basis of the charge. Thus with murder and culpable homicide it must be proved that he caused the death of D and with assault it must be proved that he caused physical harm to C. In our law it must be proved that X was both the factual cause of the result and the legal cause of the result.” The test to determine whether X was the factual cause of the consequence is to ask: but for X’s actions would the consequence have occurred? If it would not have occurred but for X’s conduct, then X is the factual cause of the consequence. If it would still have occurred anyway, the X is not the factual cause of the end result. In this case it is clear that had it not been for accused’s action of throwing the half brick at the deceased, he would not have fallen on his stomach and suffered broken ribs, blunt force trauma, leading to 3000 ml hemoperitoreum, stomach rupture and severe abdominal trauma. The accused is the factual cause of the end result. The test of legal cause is to ask whether the consequence was reasonably foreseeable or was within the range of human experience. It was indeed reasonably foreseeable that in throwing a 1.63kg half brick at the deceased’s head at the back, he was likely to fall on his stomach and get injured. This is clearly within the range of human experience. We find that the accused was the legal cause of the deceased’s injuries and resulting death. It is our finding that the State has managed to prove, beyond reasonable doubt that on the 6th day of April 2024 and at Mabanana Market Place, Mbare, the accused Walter Jumira, unlawfully and with intent to kill, or realizing that there was a real risk of possibility that his conduct might cause death and continuing to engage in that conduct despite the risk or possibility, assaulted Simba Chitsanga with open hands and struck him with a half brick on the left side of the head thereby causing injuries from which the said Simba Chistinga died. The accused, Walter Jumira is therefore found guilty of murder as defined in s47(1) of the Criminal Law Codification and Reform Act. Muchawa J: ………………………………………………….. National Prosecuting Authority, State’s legal practitioners Mafongoya and Matapura, accused’s legal practitioners