Murder re: Concealing Birth of a Child and Infanticide

HB101-09 : THE STATE vs FORGET NCUBE
Ruled By: CHEDA J and KAMOCHA J

This is a review judgment. The accused is twenty-six years of age. She was charged with contravening section 48(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (Infanticide). She pleaded guilty to the charge and was convicted. The brief facts are that on the 5th day of January 2009, while she was nine months pregnant, she gave ...

HH317-14 : THE STATE vs JANE CHENZIRA
Ruled By: BERE J and ASSESSORS: MUTOMBA and GWERU

On the night of 29 April 2013, Shingairai Shoko, the mother of the deceased, went into labour from her pregnancy which she had concealed from her mother, the accused. Shingairai Shoko awoke the accused whom she advised she was experiencing serious abdominal pains. The accused accompanied her to some field within the yard, where, much ...

HB21-15 : THE STATE vs TALENT BANGO
Ruled By: KAMOCHA J

The accused is a young woman aged 23 years who pleaded not guilty to the murder of her 1 year 8 months old child: it being alleged that on 24 August 2013 and at Village Rushwaya, Chief Njelele, Gokwe South in the Midlands Province, she unlawfully caused the death of her child, Tanaka Sambaza, by throwing her into a well intending to kill her or realizing that there was a real risk or possibility that her conduct may cause death and continued to engage in that conduct despite the risk or possibility.

The State Outline and Defence Outline were read and produced as exhibits one and two respectively and shall not be reproduced here again.

I, however, reproduce her confirmed extra curial statement, exhibit 3, which reads thus:

“I do admit the charged levelled against me of killing my minor. I went to the garden carrying my baby on my back. When I arrived at the garden, I removed my baby from my back and threw her into the well while still alive. I then left the garden and went home living the baby drown in the well. I threw her into the well for I was failing to support the child because of poverty and that my second husband who married me was not comfortable to take care of the child.”

I make note that the accused's statement is detailed and she gives the reason why she ended up killing her child.

The last exhibit was exhibit 4, the postmortem report. The doctor who examined the remains of the deceased concluded that death was due to;

(a) Asphyxia;

(b) Bronchoaspiration; and

(c) Due to drowning.

The evidence of four of the five witnesses listed on the State Outline was admitted as it appears in the State Outline by consent of the accused's legal representative in terms of the provisions of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07]. The witnesses are: Edmore Mazungunye, Moses Muzvidzwa, Reggie Pikayi, and doctor S. Pesanai.

What that means is that evidence of the police officers who recorded the above statement from the accused is not in dispute and is therefore common cause. So the accused made the statement freely and voluntarily without any pressure being brought to bear upon her.

What is contained in the statement is what happened.

Viva voce evidence was led from Shylet John.

Her evidence was that she was 21 years old and lived at Rushwaya Village under Chief Njelele in Gokwe. She knew the accused as a neighbour in the village. The deceased was the accused's daughter.

Sometime in August 2013, the accused visited her maternal uncle. The witness went to see the accused at her maternal uncle's homestead and the accused introduced her two children to her, namely, Tanaka Sambaza, the deceased, and Ivylet Mike. The accused went on to tell her that she was married in the village.

The accused approached her on a subsequent occasion and requested her to accompany her to Gokwe Hospital to have Tanaka Sambaza medically attended to as the accused alleged that she was not feeling well. They proceeded to hospital but the deceased was said to have been well on examination so they returned home and arrived back around 4pm and parted ways.

The next day, when she visited the accused at her maternal uncle's homestead, the uncle was sick. The witness observed that Tanaka Sambaza, the deceased, was not present with the accused. Only Ivylet Mike was present. She enquired from the accused where the deceased was but the accused told her that the deceased had been taken by a relative to Kadoma.

I observe that the accused was deliberately being untruthful.

At that stage, she had already thrown the toddler into the well: because she had deliberately thrown the toddler, she could not reveal that to Shylet John.

The witness went away to her home.

Two days later she was approached by CID details who were making inquiries. They first asked her about her own child, she told them that her child was there and was sleeping. She was then informed about the body of a child who was found dead in the well. They took her to their offices where they showed her the body and she identified the body as that of the deceased.

When the CID details proceeded to the accused's uncle's homestead, they were told that the accused had left the area and had gone to Horomba village.

The evidence of this witness was not seriously challenged in cross-examination and remains intact.

This court makes a finding that the accused lied to Shylet John when she asked about the deceased. It was not true that the deceased had been taken to Kadoma by a relative. The truth was that she had left the deceased drowning at the well after she had thrown her therein.

The accused gave viva voce evidence.

She wanted the court to believe that the deceased accidentally fell into the well and that on discovering that she became shocked due to her pregnancy and did not even go to check in the well to confirm if the child was indeed in there. She did not even report the matter to her maternal uncle. She alleged that she had made a report to one Michael Marembo who told her that he was not prepared to do anything about the matter.

That is highly unlikely and is untrue.

When asked why she did not tell her maternal uncle she was staying with, she said she could not do so because he was sick. She only told the uncle after she had been arrested by the police in connection with this matter - which was three days after the event.

The accused was a bad witness who was not worth to be believed. Her story in court was a deliberate falsehood which is hereby rejected.

The truth is contained in her confirmed extra curial statement. Her confession is supported by ample evidence aliunde.

The evidence of Edmore Mazungunye was that he found the body of the deceased floating in the well on 28 August 2013. The body of the deceased was naked.

So, the accused undressed the infant in preparation to throw it in the well.

What is clear is that she planned the murder of her child.

She explained that she did so due to poverty and the man who had married her was not prepared to support her children from other men.

Her aim and object was to kill her child and she proceeded to do so. She is guilty of murder with actual intent.

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Law Portal
Zimbabwe

Murder re: Concealing Birth of a Child and Infanticide

HB101-09 : THE STATE vs FORGET NCUBE
Ruled By: CHEDA J and KAMOCHA J

HH317-14 : THE STATE vs JANE CHENZIRA
Ruled By: BERE J and ASSESSORS: MUTOMBA and GWERU

HB21-15 : THE STATE vs TALENT BANGO
Ruled By: KAMOCHA J

Categories

Law Portal Zimbabwe

Murder re: Concealing Birth of a Child and Infanticide

HB101-09 : THE STATE vs FORGET NCUBE Ruled By: CHEDA J and KAMOCHA J

HH317-14 : THE STATE vs JANE CHENZIRA Ruled By: BERE J and ASSESSORS: MUTOMBA and GWERU

HB21-15 : THE STATE vs TALENT BANGO Ruled By: KAMOCHA J

Categories

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Law Portal
Zimbabwe

HB101-09 : THE STATE vs FORGET NCUBE
Ruled By: CHEDA J and KAMOCHA J

HH317-14 : THE STATE vs JANE CHENZIRA
Ruled By: BERE J and ASSESSORS: MUTOMBA and GWERU

HB21-15 : THE STATE vs TALENT BANGO
Ruled By: KAMOCHA J