MAWADZE J: The accused is charged with murder as defined in
s 47 of the Criminal Law (Codification and Reform) Act
[ Cap 9:23], it being alleged that on 27
March 2012 at Chiunda Village Chief Negomo in Chiweshe, the accused unlawfully
assaulted LUCAS ZARIRO with a home-made standard brick on the head knowing or
realizing that there was a risk or possibility that LUCAS ZARIRA might be
killed and continued to engage in the conduct resulting in LUCAS ZARIRA's death.
The accused is married to the now deceased LUCAS ZARIRA's elder brother one
ZIVANAI ZARIRA and she resided at the same homestead with the now deceased. At
the material time the accused's husband was unwell.
It is alleged that on 27 March 2014 at about 20.00 hours the accused and the
now deceased had a misunderstanding over a debt the now deceased owed the
accused resulting in the two exchanging harsh words. It is alleged this
degenerated into a physical fist fight culminating in one PATIENCE MUZENJE
restraining them. It is alleged that thereafter as the now deceased was walking
away from the scene the accused picked a home-made standard brick and used it
to strike the now deceased on the left side of the head inflicting a serious
injury which caused the now deceased to fall down and to bled profusely. The
now deceased was rushed to local Dambo clinic and thereafter referred to the
Howard Mission Hospital where he died while admitted the following day on 28
March 2012. The post mortem report shows the cause of death as head injury
secondary to trauma.
In her defence which accused also later incorporated as part of her evidence,
the accused stated that on the day in question the now deceased was drunk after
having drunk the illicit brew called Kachasu (some traditional alcohol).
According to the accused the cause of the altercation was not a debt but that
the now deceased was alleging that the accused was not giving proper care to
her sick husband who is also the now deceased's elder brother. The accused said
it the now deceased who started to assault her all over the body with clenched
fists and booted feet. The accused said no one at the homestead came to her
rescue. Accused said the now deceased armed himself with a big piece of
firewood and was now bent on intensifying his ferrous attack upon the accused
who had her baby with her. The accused said she then decided to act in
self-defence as explained in her confirmed warned and cautioned statement by
striking the now deceased with a brick. The accused in her defence outline
denied causing the now deceased's death and incorporated her confirmed warned
and cautioned statement.
In support of its case the State called the following witnesses:-
1.
Irene Kasingarigwi a nurse at Dambo Clinic
2.
Dr Paul James Thistle who was then based at Howard Mission Hospital
3.
Margreth Mpadzula a nurse at Howard Mission Hospital
4.
Alois Chitanda a nurse at Howard Hospital
5.
Patience Muzenje who stayed with the accused and the now deceased
6.
Levious Kondowe a neighbour of both the now deceased and accused and was the
now deceased's friend
7.
Dr Blessing Tachiona then based at Concession Hospital who carried a post
mortem and compiled the report.
The statements of the following
State witnesses were admitted in evidence in terms of
s 314 of the Criminal Procedure and Evidence Act [Cap
9:07];
8.
Charity Mufema's statement, a nurse at Howard Mission Hospital.
9.
Zivanai Zarira's statement – accused's husband and elder brother of the now
deceased.
10. Ptronella Hore's
statement who assisted in ferrying deceased's body to the mortuary at
Concession
11. Cst Rachel Mapawu who
witnessed the recording of accused's warned and cautioned statement.
12. Sgt Joseph Muzenda's
statement who is the Investigating Officer.
13. Cst Peter Karenga at
Gweshe Police base who received an anonymous report on how now deceased had
been injured.
The following relevant exhibits
were produced:-
Exh 1 – the
post mortem report by Dr Tachiona dated 1 April 2012 which shows he carried out
an external post mortem and concluded that the now deceased who was 32 years
old died as a result of head injury secondary to trauma.
Exh 2–
Accused's confirmed warned and cautioned statement in which the accused said:
“I have understood the caution
of the offence I admit the allegation of striking the now deceased with a brick
that caused deceased his death. I struck him after he assaulted me while
strapping my baby, therefore I was afraid he could injure my baby. That is
all”.
Most of the facts of this
matter are common cause and we believe there is no useful purpose to be served
by summarising and analysing the evidence of the witnesses which is not contested.
It is not disputed that the accused and the now deceased had a misunderstanding
which led to a fight on 27 March 2012. The dispute leading to the quarrel is
not clear. The State alleges that it was a debt owed to accused by now deceased
but the accused said it was because the now deceased alleged she was neglecting
her sick husband. In our view the reason for the altercation is immaterial to
the issues to be resolved.
It is common cause that it is the now deceased who approached the accused at
her fire place outside her hut and started to assault her. There is a dispute
as to whether accused was strapping her baby or not. The manner of the alleged
fight is in issue. However it is not disputed that accused picked a standard
home-made brick from the fire place and struck the now deceased on the left
side of the head. The nature and extent of the injury has been put into issue.
The evidence of the witnesses which is uncontroverted is that after the now
deceased had been injured he was ferried to the local clinic that night on a
bicycle by his friend Levious Kondowe and his brother Zivanai Zarira. As
confirmed by Zivanai Zarira he together with the now deceased lied that the now
deceased had been injured after he fell and hurt his head on the door step.
This is confirmed by Levious Kondowe and Irene Kasingarigwi a nurse at Dambo
clinic. According to Zivanai Zarira the reason for this lie was twofold;
firstly it was to ensure that the now deceased would be treated urgently without
first having to report to the police and secondly to protect his wife the
accused as he did not anticipate that death would result. This false medical
history was recorded at the local clinic and relayed to Howard Mission Hospital
where now deceased was referred and admitted.
It is not in dispute that the now deceased on the same night on 27 March 2012
was attended at the local clinic and referred to Howard Mission Hospital where
he was admitted on 28 March 2012 at about 0.500 hours. The accused through her
legal practitioner made an issue about the delay between the time the now
deceased left the local clinic on night of 27 March 2012 and the time he was
admitted at the Howard Mission Hospital. We again did not find this to material
to the issues to be determined by the court. The fact remains that the now
deceased was admitted at Howard Mission Hospital in the early hours of 28 March
2012. Sight should not be lost of the fact that witnesses said they had to walk
some long distance in order to find transport to hire to ferry now deceased to
Howard Mission Hospital.
The evidence led shows that he now deceased was admitted at Howard Mission
Hospital at about 0500 hours after which he was attended and taken to the
theatre where he was released back into the male ward at about 1100 hours. It
is not in issue that the now deceased passed on two hours later that day at
about 1300 hours at the hospital.
As per Zivanai Zarirai evidence he collected deceased's body for burial at
their village without advising the police and still living the lie that the now
deceased had injured himself on 29 March 2012.
The uncontroverted evidence is that on 30 March 2012 the police through Cst
Karenga stopped the burial of the now deceased. According to Cst Karenga
this was after a local villager left an anonymous letter at Gweshe Police base
indicating that the now deceased had been assaulted and died from injuries
inflicted and that the relatives were covering up the matter and proceeding
with the burial without the police's involvement. It is not in dispute that
through Sgt Muzenda Police stopped the now deceased's burial and through
investigations established the truth that it is the accused who had hit the now
deceased with a brick inflicting the injury linked to the now deceased's death.
The accused was then arrested and deceased's body taken for a post mortem
examination which was done on 1 April 2012.
What is in issue in this matter is the circumstances under which the now
deceased was hit with the brick, the nature of the injury inflicted, the cause
of death and accused's criminal liability. We now proceed to deal with these
issues.
The nature of the injuries and the cause of death
Exh 1– the
post mortem report is not very useful as regard the extent of the injury the
now deceased suffered as it simply refers to the cause of death being head
injury secondary to trauma.
Dr Tachiona who carried out the
post mortem told the court that he did an external
post mortem which entails just the physical examination of
the body without opening it. All he observed was what the now deceased had a
severe head injury. He did not open the skull although he was adamant that the
possibility of intra cranial haemorrhage was very high and that it was the
possible cause of death. He explained under cross examination that internal
bleeding in the brain is fatal because if blood accumulates in the head it
squashes the brain.
Dr Tachiona's evidence is not challenged. However he did not open the skull to
establish as a fact that there was internal bleeding in the brain. His expert
opinion is however not doubted, despite the lack of clarity on the description
and extent of the injury.
In terms of the description and extent of the injury we have to refer to the
evidence of the witnesses who were with the now deceased on 27 March 2012 and
the medical staff who attended to him.
Patience Muzenje who witnessed how the now deceased was injured described the
injury inflicted as very serious as severe force was used causing the now
deceased to fall down bleeding profusely to the extent that the accused was
still shocked and remained standing a distance away from the fallen deceased.
Zivanai Zarira accused's husband described the injury as a deep long cut
on the left side of the head and that blood was oozing out of the wound.
Levious Kondowe a neighbour and friend of the now deceased simply described the
injury on the head as serious and that he poured water on the head and bandaged
the now deceased in a bid to stop the bleeding before taking him to the local
clinic.
Irene Kasingarigwi a nurse of Dambo clinic who first attended to the now
deceased told the court that the now deceased's clothes were soaked in blood
and that he had a fresh deep wound on the left side of the head. Her evidence
is that she bandaged the wound to stop bleeding and administered amoxicillin an
antibiotic and paracetamol a pain killer. There was no ringer lactate used to
mitigate dehydration as it was clear now deceased had lost a lot of blood. She
was also unable to administer TT medicine to prevent tetanus as it was
unavailable at the clinic. However she said after attending to now deceased for
about 30 minutes she immediately referred him to a bigger hospital Howard
Mission Hospital due to the severity and nature of the injury.
Margret Mpadzula the first nurse to attend at the now deceased at Howard
Mission Hospital told the court that deceased on arrival was unable to talk.
His clothes were soaked in blood and had a bandage on the head which was also
blood soaked. She observed that the now deceased had a deep cut on the left
side of the head and due to the serious nature of the injury she immediately
called Dr Thistle who immediately told her to apply the pressure bandage, put
the now deceased on the drip and immediately took him to the theatre for
immediate attention.
Dr Thistle is the one who took the now deceased to the theatre. His evidence is
that the now deceased had a deep sharp laceration on the scalp which was about
5 cm long and about 1½ cm in depth. He observed that the wound penetrated an
external tissue and the scalp bones which had caused the head to be swollen. Dr
Thistle explained how he treated the now deceased on an emergency basis. He
said he administered intravenous fluids as now deceased had apparently lost a
lot of blood due to excessive external bleeding which he estimated to be about
first 10% of the blood in the body. The Doctor explained that he applied
pressure bandage to stop the bleeding and took now deceased to the theatre
where he sutured the wound after which external bleeding stopped. The now
deceased who was now stable was referred back to the ward from the theatre.
This was confirmed by Alois Chitanda the nurse who attended to the now deceased
when he came back from the theatre that the now deceased was stable as his
temperature and blood pressure were normal. The sutured wound was no longer
bleeding. He however said within 1½ hours the now deceased's condition
deteriorated and he passed on within that period while in the ward.
In our view the nature of the injury sustained by the now deceased is clear. It
was inflicted by the accused with a home-made standard brick which was on the
fire from a close distance of about 3m. The now deceased was hit by the sharp
edge of the brick in view of the nature of the injury which was a sharp deep
cut on the left parietal region. The wound was 5 cm long and 1½ cm deep
penetrating the scalp bones. It is the extent of the depth of the wound which
was never established or whether the skull was fractured or cracked. The injury
caused the now deceased to loose a lot of blood.
This leads us to the next issue which is the cause of death. It cannot be
disputed that there is clearly a causal link between the assault of the now
deceased and his death. According to Dr Thistle the likely cause of death was
internal bleeding due to the head injury. Dr Thistle discounted that death
could have resulted from external bleeding as the loss of blood was just about
10%, which is not fatal more so as the now deceased was admitted while alive
and conscious despite the initial loss of blood due to external bleeding. Dr
Thistle was certain that it is the internal bleeding which affected the brain
which was fatal. The same view was shared by Dr Tachiona who did the post
mortem. We therefore have no reason not
to accept this clear medical evidence of the two
doctors. The now deceased therefore died from the head injury inflicted
by the accused with the brick.
The accused's criminal liability
In deciding the accused's criminal liability we had to rely on the evidence of the
two witnesses who were present at the scene, that is the accused herself and
Patience Muzenje. While the accused admitted assaulting the now deceased
with the brick and inflicting the fatal blow she raised the defence of self-
defence as defined in s 253(1) (a) to (d) of the code [Cap 9:23].
The question to be answered is whether on the evidence on record such a defence
is available to the accused.
I have already alluded to the accused's version as per her defence outline and
warned and cautioned statement. The accused's evidence is that she was
first assaulted with booted feet and clenched fists while seated by the
fire with her baby strapped on her back. Her pleas for help did not yield
any help. The accused said instead the now deceased went to pick a piece
of firewood and advanced towards the accused who still had a child on her
back. It is at that stage that the accused said that she picked the brick
and hit the now deceased in a bid to protect her child.
The accused's version was dismissed as completely false by the state witness
Patience Muzenje who in our view is the key State witness. I now deal
with her testimony.
Patience Muzenje (Patience) told the court that accused and now deceased
firstly quarrelled at about 1800 hours and she intervened and they stopped.
Later that evening as she was in her kitchen hut Patience said she heard
accused and now deceased shouting at each other again and realised that the two
were fighting. She observed that as she came out of her kitchen hut that
the now deceased was assaulting the accused who was seated with clenched
fists. This evidence is not disputed by the accused.
Patience said the accused stood up. Accused's baby was not on her back
but seated by the fire. Patience said when accused stood up a fist fight
ensued and after a brief exchange of blows the two held each other.
Patience said she had her baby on her back and unable to intervene to restrain
the two besides verbally telling them to stop fighting. She said the two
disengaged on their own. Patience then explained how at that stage the
now deceased was injured with a brick.
Patience said as the two disengaged accused remained by her fire place and the
now deceased turned walking away towards his nearby hut. It is at that
stage that Patience said accused picked a brick from her fire place used as
“mapfiwa” and threw at now deceased hitting him on the left side of the head
causing him to fall down groaning in pain. Patience was clear that the
accused at this point was not under attack as the now deceased was walking away
and about three meters away from the accused and about to enter his hut.
She dismissed as false that the now deceased had picked a piece of firewood or
that he was advancing towards the accused. Patience said the now deceased
did not use any weapon besides clenched fists.
Patience was extensively cross examined and the colour of her evidence did not
change. She denies that accused had a baby on her back at the material
time but that the baby was seated at the fire place crawling as the two were
fighting. She denied that the now deceased at any stage picked a piece of
firewood readying to attack the accused.
We were very impressed by Patience as a witness. She gave a very clear
account of how the events unfolded. She was an eye witness. Her
evidence is not tainted with contradictions and the vigorous cross examination
she was subjected to did not have an adverse effect on her evidence. Our
view is that she is a credible witness. Patience impressed us as a fair
witness who was not keen to exaggerate the roles by the accused and the now
deceased. She did not seek to minimise the now deceased's role and
clearly stated that initially he was the aggressor. She dismissed as an
untrue that the now deceased was drunk and that was corroborated by Levious
Kondowe. In our view, Patience had no motive to lie. She is closely
related to both accused and the now deceased. Accused admitted that she
enjoyed good relations with Patience.
It is our finding that the accused's version of events is not true. The
story that the now deceased picked a piece of firewood or that he was drunk is
not part of accused's warned and cautioned statement. If that was the
case accused would not have omitted such a crucial aspects when events were
still fresh in her mind. The accused has therefore misled the court about
the now deceased's sombriety. Accused also lied that she was carrying her baby
at the material time. All these fabrications were not only designed to
mask the truth but to create the impression that accused acted in her defence
and that of the baby against the drunk aggressor when she picked the
brick. The accused did not impress us as a truthful witness. Her
demeanour was poor. The truth of the matter is that accused retaliated in
anger not that she acted in self- defence. The facts proved and the
evidence we accept do not at all make the defence of self-defence available to the
accused.
The last issue to consider is whether on the evidence on record accused is
guilty of contravening s 47 (1) (b) of the code [Cap 9:23] or any
other permissible verdict.
Our view is that we were not satisfied that it had been proved beyond
reasonable doubt that when accused picked the brick and threw it at the now
deceased she realised that her conduct may possibly result in the death of the
now deceased. It would appear that accused acted in the heat of the
moment. The now deceased was the aggressor and had plummeted her while
seated. The urge to revenge clouded her judgment and as the now deceased
walked away she picked the brick. In our view the accused acted
negligently by failing to realise that death may result if she threw a brick to
the now deceased aiming at the head carelessly with severe force.
We are of the view that accused cannot be properly convicted of contravening s
47 (1) of the code [Cap 9:23]. The evidence prove beyond
reasonable doubt that accused is guilty of contravening s 49 of the code – the
permissible verdict of culpable homicide.
Verdict
Guilty of contravening s 49 of the code [Cap 9:23] – culpable
homicide.
Prosecutor General's Office, State's Legal Practitioners
Sengwe
Law Chambers, Accused's Legal Practitioners
