MAWADZE
J: The
delay in finalising this trial was occasioned by the absence of the
doctor who performed the post mortem on the remains of the now
deceased. The said doctor had relocated to Namibia and it took time
to put logistical arrangements to enable him to travel to Zimbabwe to
testify. As will fully more appear in this judgment the doctor's
evidence is very critical in this case.
The
accused is facing a charge of murder as defined in section 47(1) of
the of the Criminal Law (Codification and Reform Act) [Cap
9:23].
The
charge is that on 10 November 2015, in Chinyerere Village, Chief
Nyakunhuwa, Zaka, Masvingo the accused caused the death of Tinago
Chitapa by knocking his head onto some bare rock and assaulting him
on both cheeks with open hands.
The
accused who was 26 years old at the material time regarded the
78-year-old now deceased as a nephew. They both resided in the same
village.
The
accused believed that the now deceased was practising witchcraft and
causing bad luck on the accused. He alleged that he had seen the now
deceased the previous night on 9 November 2015 sprinkling some water
calling out the names of the accused's family while at the
homestead of the accused's grandmother. This prompted the accused
on 10 November 2015 to approach the now deceased at about 1900hrs to
discuss the accused's suspicions. The accused misled the now
deceased that he was wanted by their grandmother and took him away.
Their grandmother was not at her homestead. Instead the accused took
the now deceased to a bare rock near one Philemon Tamurepi's
homestead. The accused demanded that the now deceased confesses to
practising witchcraft but the now deceased professed ignorance. This
apparently incensed the accused.
The
State alleges that the accused proceeded to bash the now deceased's
head against a bare rock and slapping him twice on the cheeks. The
State case is that the now deceased was, as a result of this assault,
seriously injured.
Philemon
Tamirepi heard the commotion near his homestead and rushed to the
scene. It is alleged the now deceased informed him about the assault
and that the accused warned Philemon Tamirepi not to involve himself
in the dispute. The accused and the now deceased then left the scene
going to their respective homes.
The
State alleges that the now deceased advised his wife, Sophia Shiri,
about the alleged assault that night as he complained of a headache.
The now deceased advised the Village Head about the alleged assault
the next day. It is the State case that three days later, on 13
November 2015, the now deceased's condition deteriorated and he was
ferried to Musiso Mission Hospital in Zaka after which he was
transferred to Masvingo Provincial Hospital and then to Parirenyatwa
Hospital in Harare where he passed on on 17 November 2015. A post
mortem was performed at Ndanga Hospital in Zaka where the cause of
death was said to be a result of head injury.
The
accused, in his Defence Outline, while not disputing the sequence of
events of the night of 10 November 2015 denied assaulting the now
deceased in the manner alleged and causing his death. The accused
said as he confronted the now deceased about the witchcraft
allegations as they were near Philemon's Tamirepi's homestead the
now deceased became aggressive and assaulted the accused with the now
deceased's walking stick. The accused said he in turn acted in
self-defence and hit back at the now deceased by slapping him on the
cheeks with both hands. He denied bashing the now deceased's head
against any rock. The accused said the assault he perpetrated on the
now deceased with open hands could not have possibly caused the now
deceased's demise. In fact, the accused said the now deceased was
not injured as a result of the assault hence was able to perform his
daily chores the next day fetching firewood and attending funeral in
the village. He said the now deceased was also able to walk to make a
report to the Village Head. The accused contends that the post mortem
report is misleading as the findings therein were made at the behest
of the now deceased's relatives who were hell bent on fixing the
accused for the altercation he had had with the now deceased.
The
evidence of Sgt. Paul Chimbaka and Sgt Anyway Mutamba was admitted in
terms of section 314 of the Criminal Procedure and Evidence Act [Cap
9:07].
Sgt Anyway Mutamba is the one who recorded accused's confirmed
warned and cautioned statement. Sgt Paul Chimbaka investigated the
matter. The gist of his evidence is that he took the accused for
indications together with Philemon Tamirepi and drew a sketch plan.
Three
State witnesses, Philemon Tamirepi, Sophia Shiri and Dr Chaibva gave
viva
voce
evidence. The accused testified and did not call witnesses. A total
of 3 Exhibits being Exhibit 1 the post mortem report; Exhibit 2
accused's confirmed warned and cautioned statement and Exhibit 3
Form 221 (Request for the post mortem report) were produced by
consent.
In
our view nothing turns on Form 231 tendered as Exhibit 3.
The
accused's confirmed warned and cautioned statement Exhibit 2 is
almost the same as accused's Defence Outline save for the
concession that a day after this incident now on 11 November 2015
accused said the now deceased was not feeling well contrary to the
averments in his Defence Outline.
The
post mortem report Exhibit 'I' compiled by Dr Chaibva on 22
November 2015 indicates that no external injuries were observed. The
cause of death is indicated as head injury.
The
issue which this court is seized with relates to the manner the
accused allegedly assaulted the now deceased and whether that assault
was the proximate cause of the now deceased. What compounds the
problem in this matter is that there is no eye witness to the alleged
assault.
We
turn to the viva
voce
evidence led;
Philemon
Tamirepi (Philemon)
Philemon
went to where the accused and the now deceased were on the night in
question on 10 November 2015 after the assault. He said what
attracted him to the scene was the noise being made by both the
accused and the now deceased near his homestead. He recognised the
voices as those of the accused and the now deceased who were speaking
at the top of their voices. The accused was demanding a confession
from the now deceased who in turn was saying he knew nothing about
the allegations levelled against him. He then approached the scene
inquiring what the problem was. The accused told him it was none of
his business.
Philemon
said the now deceased was lying down on his back on some rock surface
with his walking stick by his side and his cell phone handset on the
ground. The accused was standing close by. He said he implored the
two to go home and discuss their differences the next day during
daylight. Philemon said the now deceased got up picking his mobile
cell phone and walking stick remarking that he, Philemon had arrived
late as the accused had already assaulted the now deceased. Philemon
did not inquire into the manner of the alleged assault perpetrated on
the now deceased and the accused did not respond save to say it was
none of Philemon's business. The accused and the now deceased then
went their separate ways.
Philemon
said thereafter he only saw the now deceased three days later and by
then the now deceased was seriously sick and unable to talk or eat.
The now deceased's son who was away advised them to take him to
hospital. He said the accused's father paid for the transport cost
to Musiso Mission Hospital in Zaka. Philemon said he accompanied the
now deceased to Musiso Mission Hospital where the now deceased was
treated of high blood pressure and diabetes after which he was
referred to Masvingo Provincial Hospital for a scan to be done in
relation to the alleged assault. Philemon played no further part. He
said accused's father again paid for the transport of the now
deceased to Masvingo.
Philemon
said he later learnt the now deceased had passed on and the accused's
father again paid for the burial costs including transporting the
body for burial at their rural home. Philemon said the body could not
be immediately buried as a port mortem had not been done and the now
deceased's body was ferried to Masvingo Provincial Hospital for
that purpose. He however said the post mortem was not done at
Masvingo Provincial Hospital but at Ndanga District Hospital in Zaka.
By then the accused had been arrested in connection with the now
deceased's death.
Philemon
said the now deceased did not disclose to him the manner the accused
had allegedly assaulted the now deceased. He did not see any visible
injuries on the now deceased who by then was able to talk and walk on
his own without any problem.
The
accused did not materially challenge Philemon's evidence save to
say Philemon was drunk and did not see properly in darkness as
accused insisted that the now deceased was not lying on his back but
seated at the scene.
In
our view Philemon's testimony does not answer the material question
of how the accused allegedly assaulted the now deceased. In our
assessment it matters not in what position Philemon found the now
deceased at the scene. He could have been seated or lying on his back
but that would not change the price of rice in China as it were. It
was also not clear from Philemon's evidence why the accused's
father took it upon himself to pay for the expenses related to the
now deceased. Was it because accused's father accepted accused's
responsibility in relation to the now deceased's illness? Did he do
so at accused's behest? Did he do so as a good Samaritan and/or
relative? The accused's father did not testify as he was not called
hence these questions remained unanswered. It is also not clear from
Philemon's evidence as at what point the accused was arrested. At
the end of the day Philemon's testimony does not answer the
material question.
Sophia
Shiri (Sophia)
Sophia
is the now deceased's wife. She said when she protested that the
now deceased could not go with the accused to their grandmother's
homestead on the day in question as it was late at night the accused
who did not appear angry at all promised to accompany the now
deceased back home later that night. She however said the now
deceased returned home alone at about 2100 hours.
According
to Sophia the now deceased suffered from painful legs hence he used a
walking stick.
Upon
his return home Sophia said the now deceased reported to her that the
accused had assaulted him by hitting the now deceased's head
against some rock. This ordinarily would be hearsay evidence and the
State did not allege that it fits within the category of a dying
declaration. This puts the court in quandary in that it cannot accept
this as a fact proved on how the accused allegedly assaulted the now
deceased.
Sophia
said they retired to bed and she realised the now deceased was in
pain crying saying accused had bashed his head against some rock for
allegedly sprinkling some holy water to cast some evil spell on the
accused's family at their grandmother's homestead.
Sophia
testified that the next day the now deceased's head was swollen at
the back and forehead. His eyes were blood shot hence he went to
report the alleged assault to the village head.
Sophia
was unclear as to when the now deceased's condition deteriorated to
the point where he collapsed and could no longer eat or talk. She
confirmed that accused's father paid for the now deceased's
transport to Musiso Mission Hospital. She further confirmed that at
Musiso Mission Hospital the now deceased was treated for diabetes and
that he was referred to Masvingo Provincial Hospital for a scan to be
done on his head. From Masvingo, Sophia said the now deceased was
transferred to Parirenyatwa Hospital in Harare where he later passed
on. Again Sophia said the accused's relatives paid for all the
required transport and burial costs inclusive of three buckets of
maize consumed at the now deceased's funeral. She too did not
explain what informed this gesture from accused's relatives and at
what point the accused was arrested.
When
Sophia was probed in cross examination she said the now deceased's
diabetic condition was only diagonised at Musiso Mission Hospital in
Zaka. This would seem to suggest that the now deceased may well not
have been aware of the fact that he was diabetic. Sophia further said
the now deceased was allegedly assaulted on Tuesday night and that he
was only ferried to Musiso Mission Hospital on Friday.
In
our view Sophia's evidence does not answer the question on how the
now deceased was assaulted by the accused.
Dr
Tafara Chaibva (Dr Chaibva)
In
our assessment Dr Chaibva is the most critical witness in this
matter.
At
the material time Dr Chaibva was based at Ndanga District Hospital in
Zaka. Currently he is based in Namibia.
Dr
Chaibva testified that he examined the remains of the now deceased's
body at Ndanga District Hospital in Zaka as per Exhibit 3 at the
behest of the police on 22 November 2015. He said upon examining the
now deceased's body he did not find any external injuries. He
concluded that the cause of the now deceased's death was head
injury.
The
evidence of Dr Chaibva is not only puzzling but further complicates
this matter. His professional conduct leaves much to be desired on
how he compiled the post mortem report. We say so because he admitted
that what he endorsed as the cause of the now deceased's death is
solely based on what the police told him about the history of the now
deceased's illness. It was not his own professional independent
finding. Further he had not observed any injury on the now deceased's
head or any fracture on the head. The mind boggles as to why he did
not simply say the cause of death was indeterminate from his
examination and probably recommended a full post mortem by a
pathologist as he had only done an external post mortem. In fact, he
conceded that his so called finding was based on the police report to
him that the now deceased's head had been bashed against a rock!!
From
the evidence of Dr Chaibva this matter is further complicated by the
fact that the police were not even candid with him in disclosing the
medical history of the now deceased and the sequence of events. It
turns out that the police in a bid to have a post mortem done by him
at Ndanga Hospital lied to him that the now deceased had died at home
when in fact he had died at Parirenyatwa Hospital in Harare. It is
unclear why the post mortem was not done at Parirenyatwa Hospital
where the now deceased died and how his body was released without
such a post mortem having been done. In fact, Dr Chaibva was unaware
that the now deceased had been first taken to Musiso Mission
Hospital, then to Masvingo Provincial Hospital. It was not even
disclosed to him that he was requested to perform a post mortem four
days after the now deceased's death. He was never advised that the
now deceased also suffered from high blood pressure and diabetes. He
was not aware that doctors at Masvingo General Hospital had refused
to carry out a post mortem report insisting that it should be done at
the hospital where the now deceased died at Parirenyatwa. In fact,
the now deceased had never been admitted at Ndanga District Hospital
in Zaka where the post mortem was subsequently done but had been
attended to at Musiso Mission Hospital in Zaka, Masvingo Provincial
Hospital and Parirenyatwa Hospital in Harare.
While
Dr Chaibva's conduct cannot be said to be beyond reproach, the
police conduct in this matter deserve censure. Why did the police lie
to Dr Chaibva that the now deceased had died at home and failed to
disclose to him, the sequence of events? Clearly the investigations
in this matter were not only poorly done but done in an
unprofessional and dishonesty manner. The motive is difficult to
understand. This is a case which called out for a proper full post
mortem to ascertain the proximate cause of the now deceased's death
or at least to have a post mortem done at Parirenyatwa Hospital where
the now deceased died. The conduct of Dr Chaibva further adds to this
jigsaw puzzle.
The
cause of the now deceased's death is not an issue this court can
speculate on. It is an objective fact which should be proved from the
facts before the court. The fact that the accused lied to the now
deceased in a bid to lure the now deceased from his home at night
would not prove the now deceased's death. The same goes for the
accused's belief that the now deceased practised witchcraft and
that this angered the accused.
The
accused admitted that he assaulted the now deceased. It is the manner
of the assault which is in issue and whether it led to the now
deceased's death. There was no eye witness to the assault. The
manner of the assault cannot be derived from circumstantial evidence
available.
What
exercised the mind of this court is whether there is a causal link
between the admitted assault perpetrated on the now deceased by the
accused.
The
question of causation is discussed by the learned author Jonathan
Burchell in his book Principles
of Criminal Law 5th
Edition
2016 at page 52 and 95.
The learned author deals with the need for a causal link between the
act alleged or omission and the ultimate unlawful consequence. These
are both factual and legal issues. Put differently the act or
omission complained of against an accused person should create a
causal link or connection to the now deceased's death. There must
not be an intervening act or event which serves to break the chain of
causation.
In
this matter we are unable to say with certainty what caused the now
deceased's death. In fact, it has not been proved that the now
deceased had his head bashed against a rock on 10 November 2015 and
that he sustained injuries leading to his death seven days later on
17 November 2015 at Parirenyatwa Hospital. Was there any intervening
act or event from 10 November 2015 to 17 November 2017, a
novus actus
(or nova
causa)
interveniens?
Further it has been shown that the now deceased suffered from other
ailments like diabetes and high blood pressure.
At
the end of the day this court is left in doubt on how the accused
assaulted the now deceased. He might as well have bashed his head
against the rock but has this been proved beyond reasonable doubt?
Clearly not. The injuries inflicted on the now deceased remain
unknown if not unclear. It is therefore trite that in any criminal
trial the doubt which exists should be resolved in favour of the
accused person. It is unsafe in the circumstances to find the accused
in this case guilty of the offence of murder as defined in section
47(1) of the Criminal Law (Codification and Reform) Act [Cap
9:23]
or even the permissible of contravening section 49 of the same Act
relating to culpable homicide if all what is proved is that the
accused slapped the now deceased twice on his cheeks with open hands
and the cause of the now deceased's death is unclear.
In
the circumstances the accused can only be found guilty of
contravening section 89(1) of the Criminal Law (Codification and
Reform) Act [Cap
9:23]
which relates to the permissible verdict of assault.
VERDICT
– Guilty of assault as defined in section 89 of the Criminal Law
(Codification and Reform) Act [Cap
9:23].
SENTENCE
– The accused is sentenced to $300.00 fine or in default 30 days
imprisonment.
National
Prosecuting Authority,
counsel for the state
Hove
& Partners,
counsel for the accused
