MATHONSI J: The accused is charged with
murder, the allegations being that on 24 June 2009 at Village Musainwa, Chief
Bunina, Lower Gweru, he unlawfully and with intent to kill, assaulted Tsitsi
Kwembeya, aged 26 at the time. She was a
married woman but was the accused's girlfriend in an adulterous affair.
The state case is that on the fateful day the accused had gone to the deceased's
homestead at about 2330 hours and informed her that he had bought her some
maize in Gondongwe village which they had to collect. That way he lured the deceased from her home
and walked with her towards Mazichisa Hill.
As they approached the hill the accused then interrogated the deceased
on why she was being unfaithfuly to him.
Whatever response the deceased gave infuriated the accused who then
attacked the deceased resulting in a fight.
The deceased is said to have taken to her heels but the accused gave
chase dropping his axe in the process.
When he caught up with the deceased, the accused is said to have struck
the deceased several times on the head inflicting injuries from which she
died. Having fatally struck the
deceased, the accused left her body by Mazichisa Hill and returned home.
The body of the deceased was only discovered by one Norah Gondongwe who
was searching for her stray cattle on 4 July 2009 which was some 10 days later,
leading to the arrest of the accused.
When the police investigated the matter they interviewed accused's wife
who revealed that at 0300 hours on the morning of the 25th June 2009
the accused had arrived home shirtless and without a jacket which clothing he
was putting on when he had left home the previous day. He was observed removing his trousers and
throwing it into the fire. He also
warmed some water and washed his hands.
He had a swollen eye but claimed that he had been beaten up at the
shops.
The accused's wife was not called to testify but according to the
investigating officer Detective Sergeant Navaya, they used information gathered
from her to direct their attention at locating the accused, who had by then
absconded from home. He had done so
after being interrogated by the headman about the whereabouts of the
deceased. Incidentally, the accused
himself admitted that the headman had once called him in for a dressing down
over his illicit affair with the deceased, but he did not take heed.
Farai Mhere, who was a neighbour of the accused, testified that when her
suspicion had been roused by the conversation she had with the accused's wife
concerning the accused, she had the occasion to meet the accused after the
deceased's disappearance. She observed
that the accused had a swollen eye which injury he had not had the last time
she had seen him.
The accused told the witness he had been assaulted by Khulisani at
Makepesi Shopping Centre which turned out to be a lie as Khulisani later denied
having done so. The witness was also
aware of the assault perpetrated on accused by Khulisani's brother but that had
happened some months earlier and it had nothing to do with accused's latest
injuries.
The evidence of accused's panning partner Davison Chizema was partially
admitted by the accused. The part which
he admitted relates to the recovery of accused's clothes- Jacket and t/shirt- from
a disused mine shaft on indications made by the accused. It also relates to the identification of the
small axe -exhibit 7- by Chizema. The
said axe belonged to the accused and was recovered at the scene of crime.
According to the investigating officer the clothes had been thrown into
a shaft full of water, tied to a stone in an effort to conceal them.
The evidence of the state was presented very well and other than the
contradiction around the two jackets, we have no reason not to accept it.
The small axe places the accused at the scene of crime and even though
he tried desperately to disown it, the recovery of his blood stained clothes in
a mine shaft means that he has a lot of explaining to do.
There is also the accused's confirmed warned and cautioned statement
given on the 4th August 2009.
In that statement, he confessed to the crime giving an account of how he
committed the offence. His attempt to
disown it is as feable as it is unbelievable.
Hence his weired story that he was temporarily deaf at its confirmation. The accused's defence is in the form of a
bare denial. In his defence outline he
stated that he had spent the whole day on 24 June 2009 at his homestead with
his wife and son. This alibi is not
sustainable because the same wife told the police and Farai that the accused
had left home that day only returning home in the early hours of the morning
shirtless, to burn his trousers. In any
event there was no alibi evidence other than accused's mere say so.
We have no hesitation in rejecting the accused's defence as a lamentable
falsehood.
According to the doctor who conducted the autopsy, the deceased's body
was moderately decomposed. The marks of
violence were:
“Bruises on right
shoulder, bruises on left side of thorax, bruises and cut on right head, cut
and fracture on the frontal area, multiple bruises on face. Bruises on limbs and arms, laceration on the
frontal area brain exposed.”
There was also a cut and skull fracture, laceration on the brain and
both lungs were haemorrhagic. The cause
of death was skull fracture, head and face injuries.
The stones that were produced as exhibits speak for themselves. Clearly the accused had directed his rage at
the deceased's head and upper part of the body with sufficient force to cause
death.
This was a premeditated killing.
The accused lured the deceased with a false promise of maize meal in the
middle of the night. He picked his spot
in the remote area where he knew the deceased' body would not be easy to find.
After the killing, he went about concealing all the evidence as could
lead to his arrest. Even as people were
searching for the deceased he did not reveal the truth.
We conclude therefore that the accused desired the death of the deceased
and compassed that result.
Accordingly, the accused is found guilty of murder with actual intent.
Reasons for sentence
First and foremost we need to rule on extenuation considering that you
have been found guilty of murder with actual intent.
It is accepted in our law that intoxication is a factor in extenuation
which tends to reduce an accused person's moral blameworthiness.
Part of the evidence this court has accepted is contained in your warned
and cautioned statement where you allude to the fact that you were intoxicated
on the day in question.
The state has conceded that fact and in our view the concession is
proper. We also consider the fact that
you were provoked by the response given by the deceased to the questions you
were putting to her that evening, resulting in a fight in which you also
sustained injuries.
We therefore find the existence of extenuating circumstances in this
matter.
In assessing sentence we have weighed the mitigating factors set out by
your lawyer and find that they do not come anywhere near outweighing the
aggravation.
You come out as having been a sex athlete who had no respect even for
married women. You seem to have prided
yourself with having many girlfriends and you told the court yourself that you
were famous for your bed hopping.
In the process you preyed on a lonely woman whose husband was away in
South Africa. Not content with invading
his home, you went further to appropriate to yourself his wife to the extent of
arrogating to yourself the power to decide when to terminate her life.
You went about executing the murder with chilling accuracy including
covering your tracks very well.
Society looks up to these courts for protection against people like
you. There is a pressing need to clear
the neighbourhood of people like you and to remind society that women
have
rights as well and should not be treated as punch bags by man.
Sentence
You are accordingly sentenced to life imprisonment.
Criminal
Division, Attorney General's Office, the state's legal
practitioners
Gundu
& Dube,
accused's legal practitioners
