BERE J: On 7 July 2013 and at House number 347 Ruponeso
Street Macheke, Masvingo, the deceased Linda Akim lost her life as a result of
stab wounds. There are contrasting explanations given by both the State and the
accused as to how the deceased was fatally injured.
The State alleges the accused intentionally stabbed the deceased to death using
a kitchen knife (exhibit III) whose dimensions were given as follows: 32 cm in
length, 0,069 kilograms (weight), with its bled being 19 cm in length and the
width at its widest portion being 3,5 cm.
In denying the allegations of murder levelled against him, the accused sought
to project the deceased as having been the aggressor on the day in question and
raised three – pronged defences, viz, intoxication, provocation and
self-defence. The thrust of his defence was that as he struggled with the
deceased person who was firmly holding his testicles he grabbed a kitchen knife
which he opportunistically picked from a push tray and stabbed the deceased in
an effort to force the deceased to let loose her hold on him.
The accused argued that as the deceased and the accused struggled, the deceased
fell on her back with the accused falling on top of her and in the process
fatally and accidentally injuring the deceased in the abdomen.
The State case was built around the evidence of the deceased's mother Liniva
Dumbura, Juliet Mwenje, Jacob Rutanha, Sergeant Simbarashe Mufiri, Assistant
Inspector Bothwell Jongwe, Assistant Inspector Mhindu and Doctor Godfrey
Zimbwa.
The accused's confirmed warned and cautioned statement (exhibit I), the post
mortem report (exhibit II) and the murder weapon (exhibit III) were produced as
additional evidence in the advancement of the State case.
The accused's case was centred mainly around the evidence of the accused
himself.
The simple issue before the court was to determine and make a specific finding
on how the deceased met her death in the light of the charge of murder
preferred against the accused by the State.
The accused's counsel reminded the court (quite rightly in our view) that the
evidence of Liniva, Juliet and Jacob requires to be approached with heightened
caution because of their being close to the deceased during her life time. We
will endeavour to so approach that evidence.
Nothing much turned on the evidence of Liniva Dumba as she did not witness the
murder of the deceased.
Her evidence was only relevant in showing that all was not well between the
accused and the deceased with whom he had sired two minor children. From this
witness's testimony the court was able to conclude that the deceased and the
accused had a turbulent love relationship which culminated in the deceased
openly telling the accused in the witness' presence that she was no longer in
the relationship.
The ending of the relationship was further confirmed by Juliet Mwenje who was
also privy to some of the discussion between the deceased and the accused.
Jacob Rutanha, the new suitor also confirmed the ending of the accused and the
deceased's relationship as the deceased confided in him that she had closed her
chapter with the accused.
It should be noted that other than cohabiting the relationship between the
deceased and the accused had not been formalised. Its ending did not therefore
require any formalities and from a legal point of view the indication of its
ending by the deceased was sufficient.
The evidence of Liniva Dumba also spoke to the aggressive nature of the accused
towards the deceased during their time as lovers. This, again was confirmed by
Juliet in whom the deceased would confide and appeared to have been fairly
close to.
We also did not miss the fact that Liniva Dumba had little respect for the
accused whom she throughout the proceedings referred to as “Kuda”. It is not
usual that a potential mother in law would address a man with whom her daughter
has children by their first name. Perhaps the witness' position was
understandable if regard is had to the undisputable fact that her daughter the
deceased died at the hands of the accused.
Juliet Mwenje is one of the most crucial witnesses in this matter in that she
had the misfortune of actually witnessing the assault on the deceased by the
accused person. Because of her close relationship with the deceased and the
fact that the deceased died in her room the need to exercise great caution in
dealing with her evidence remained upper most in the mind of the court.
Juliet took us through the conduct of the accused and the deceased on the
fateful day. The witness explained how the accused had been to her house
earlier on and how he ended up playing with his young child until the child retired
to bed.
She explained further the exchange of a telephone message between the deceased
and his newly found boyfriend Jacob and how eventually the accused left the
place with Jacob being the first to leave followed by the accused himself.
We have no doubt in our minds that Juliet, despite her closeness to the
deceased gave us a credible account of what happened. She must be believed when
she gave an account of what eventually happened when both Jacob and the accused
returned to the house as her story partially got support from Jacob as well as
from the accused's aggressive conduct in gaining entry into the house after
breaking the window pane following denial of entry into the room.
Juliet was clear that by the time the accused entered the room Jacob had
already bolted out of the room. If this piece of evidence by Juliet is accepted
as it should be, then it creates a serious problem with the accused's story.
This is because the accused's defence is built around the alleged aggressive
conduct of the deceased in her determination to protect Jacob.
In accordance with the evidence of Juliet and Jacob himself we have no
hesitation in making it as a specific finding of this court that when the
accused violently entered the room Jacob who had correctly read the situation
had bolted out leaving the deceased at the mercy of the accused. It is our
position that Juliet and Jacob had no reason to lie or mislead the court on
this point. Our finding accords well with the violent conduct of he accused
even before he got into the house coupled with his demand before entry into the
house that Jacob should get out of the room.
Indeed, it would have been folly on the part of Jacob to have remained in the
room given the aggressive conduct of the accused. If we accept, as we are
compelled to because of the weight of evidence that Jacob had already bolted
out of the room then we must also accept that the accused did not have a chance
to grab or hold Jacob by his pair of trousers. It consequently follows that the
accused was clearly not telling the truth when he alleged that the deceased
head butted him and held his testicles in an attempt to force him to let go
Jacob. That story was a concoction and our finding in this regard collapses the
defence of self-defence sold to us by the accused.
There is another side of the story that justifies our rejection of the
accused's defence of self-defence as against the deceased.
Juliet, whom we have already found out to have been a credible witness told the
court that upon returning to the room having failed to call back Jacob to deal
with the situation he had created, he found the accused throttling the
deceased. Her evidence was that the accused's immediate reaction on seeing her
was to threaten to stab her with a knife which he wielded towards her. At this
stage the witness remained close by and hopelessly stood by the door to witness
the horrors of the day.
Juliet's evidence was to the effect that at the stage the accused was
throttling the deceased, the deceased was struggling to escape with the accused
uttering the words “I want to bring an end to your prostitution”.
The witness further enlightened the court on how the accused was holding the
deceased. She said that at that stage the accused was holding the deceased by
the neck with his left hand which forced the deceased to tilt her body
backwards facing upwards with her arms raised whilst the accused's right hand
was clutching the murder weapon exhibit III in an attacking or striking
position. At that stage she heard the deceased telling the accused to leave her
alone since they had already separated or “divorced”.
The position of the deceased as described by Juliet at the critical moment of
her life did not in any way project her as a threat to the accused and there is
no room for the defence of self-defence in such a scenario.
As Juliet stood by the door, she saw the accused stabbing the deceased as the
deceased desperately sought to wriggle out of the accused's grip.
But as things stand we all know that this was not the stab wound that took the
deceased's life according to the post mortem report coupled with the evidence
presented to us by Doctor Godfrey Zimbwa.
The credibility of Juliet's evidence is further cemented by her indication to
the court that she did not witness how the accused delivered the fatal
stabbing. If she wanted, she could have easily told the court that she saw the
accused delivering this decisive stab wound because she was the only witness
present.
Juliet said that after having witnessed accused stabbing the accused at the
back she panicked and ran into the dining room and stood hopeless behind a curtain
thus depriving her of the opportunity to witness further assaults on the
deceased.
It was however her undisputed or unchallenged evidence that as she stood behind
that curtain she heard the accused uttering the following words: “That prostitute
has died. I havecut it all over. Today I want six people dead”. Juliet went on
to tell the court that when the accused pulled the curtain he came face to face
with her and uttered the following words: “You are another prostitute that I am
after”.
It was further her unchallenged evidence that when the accused went back to get
the knife she shotherself out through the window and ran away to try and lodge
a report to the police station with the help of his brother.
It is our view that the utterances by the accused concerning the deceased fits
very well into the evidence of Doctor Zimbwa when he noted that the fatal wound
was a stab and a drag of 20 cm across the abdominal wall of the deceased and
that to him it suggested that this was a deliberate action on the part of the
accused.
The utterances by the accused person after the stabbing clearly suggest in our
view that he had successfully achieved his objective. A person who has been
provoked or acting in self-defence does not go about bragging having killed the
victim unless he has sought to kill or murder the victim.
Jacob Rutanha, the third State witness was visibly very unease when he entered
the witness box. This witness was obviously aware that he was the man at the
centre of the deceased's death.
There were aspects of his evidence which did not impress us. The witness's
professed lack of knowledge of the accused person prior to the fateful day did
not impress us particularly in the light of the evidence of Juliet who
explained that she thought the two would have known each other because of the
marriage between Jacob's sister Anna's mother to accused's brother Stanley
Mushandira.
Even the evidence of the accused about their knowledge of each other was to us
credible. Juliet said she was of the view that the two would have known each
other because of that family relationship.
However, Jacob's evidence on the critical aspects of the case fitted well into
the evidence of Juliet and to some extend portions of the accused's testimony.
This is particularly so if one has to zero in on the evidence pertaining to the
accused's aggressive conduct. The three witnesses are agreed that the accused
was aggressive on the day in question given his utterance before his entry
followed by his militant entry into the room where death eventually occurred.
The witness confirmed that the accused knocked at the door and that he was
denied entry into the room. He also confirmed that whilst he was outside the
accused demanded that the witness leaves the room and the fact that the accused
also shouted that he wanted to bring an end to the prostitution that was taking
place at that place.
The witness was clear and categoric that by the time the accused gained entry
into the room he had already bolted out. We believe the witness was candid with
us in this regard and other aspects of his testimony that found support from
Juliet.
The post mortem exhibit complied by Doctor Zimbwa made note of a +-
20 cm horizontal stab wound running through the deceased's umbilicus, and
perforated bowel with faecal matter and omentum protruding through the stab
wound. The report concluded it was this stab wound that took the deceased's
life. He attributed death due to haemorrhagic shock and this abdominal wound.
The doctor was called to give evidence around his post mortem report.
The court noted there were omissions in the post mortem report. The report did
not capture the back wound that was common cause. The doctor's explanation was
that he must have overlooked recording that wound because he tended to
concentrate on the stab wound on the deceased's abdomen as he concluded that
this was the fatal wound.
It is imperative in the court's view that when a post mortem report is carried
out it must be all embracing; all the wounds must be recorded to enhance
consistency. There should be no selective approach.
The court did however take cognisance of the doctor's emphatic position that in
his view it would have been naïve for one to conclude that the +- 20
cm opening on the deceased's abdomen could have been accidentally caused. When
the state counsel sought clarification from the doctor on the accused's
explanation of how the deceased may have sustained this abdominal injury the
exchanges went along the following:-
“Q.
Is it possible that the fatal injury could have been accidentally inflicted by
someone who fell onto the victim holding that knife (sic exhibit III).
A. Firstly
I must say the knife in question is potentially capable of inflicting the
injury observed. It has a
very sharp point indeed and so it can easily cause a
penetrating stab wound. As
earlier own said there was a stab and a drag of 20
cm across the abdominal
wall. That suggests to me that this was a deliberate
action. If it was a
simple stab wound yes, it could be possible to be a stab
wound from someone
falling from above but the 20 cm suggests it was
deliberate” . (my
emphasis)
The doctor's cross-examination by the defence on this point provided no major
shift from his position.
As earlier on said, the doctor's evidence accords well with the utterances which
were attributed to the accused suggesting that he had killed the prostitute.
There can be no doubt this was a purposeful attack.
The rest of the evidence by the prosecution was admitted into the record by way
of admissions and it requires no detailed analysis.
I must now proceed to deal with the three defences raised by the accused in
this case in the light of the evidence by the accused and juxtaposing same with
the rest of the evidence.
I propose to deal first with the accused's defences of provocation and
self-defence coupled with the accused's averment in paragraph 4(vi) of his
defence outline when he avers that the deceased was accidentally stabbed on her
stomach. This is the stab wound which the doctor deemed to have been fatal.
I have already dealt with the defence of self-defence which was built around
the deceased's alleged aggressive conduct against the accused. The court made a
specific finding that the evidence as earlier on analysed gives no room to the
existence of this defence.
In passing, it occurs to me that the raising of the defence of provocation and
alleging accidental stabbing at the same time makes the two explanations by the
accused mutually destructive.
Let me deal with the defence of provocation at this stage. In dealing with this
defence I am more inclined to lean on the remarks by GUBBAY JA[1] when he
commented as follows:- “The general rule of Roman Dutch
Law is that a person may be so provoked or made
mad by another person's behaviour that he loses control
over his faculties and becomes incapable of forming the specific intent in
relation to a particular offence. It is recognised that anger may be so strong
as to destroy a person's “voluntarium” in a similar way as intoxication. If the
accused lacked the intention necessary for the particular crime then.... he is
not guilty of that offence but may be guilty of a lesser crime
….”
In Zimbabwe, the courts use a two stage approach in determining the existence
or otherwise of provocation as a defence. It is a combination of both the
subjective and objective approach. The first question to be asked is: Taking
into account the alleged provocation by the accused in the circumstances
narrated to us including the alleged imbibing of 7 pints of beer, did the
accused intent to kill the deceased?
Given the accused's sound recollection of almost every minute detail of what
occurred on the day, we are left in no doubt in our minds that the accused must
have intended to kill the deceased?
This would then force us to invoke the next rung: Would a reasonable man placed
in the position of the accused have killed the deceased?
Our position is a unanimous 'No'.
If followed to its logical conclusion the accused's testimony suggests that he
suspected that Jacob was now having a love relationship with the deceased. He
saw Jacob heading to the deceased's place and followed him. The accused cannot
possibly give the impression to the court that he was provoked by the conduct
of Jacob because by following Jacob he was inviting anger upon himself and one
cannot provoke a situation in order to benefit out of such self-created
provocation.
The accused, by following Jacob must have been prepared to go and cause trouble
at Juliet's place. He formulated this intention long before he got to Juliet's
place. By the time he got there he was already in a combative mood and the
knocking on the door, the utterances whilst outside coupled with the subsequent
violent entry into the room all add up to a properly planned violent conduct.
I have already said that the raising of the defence of provocation and alleging
death due to accident on one hand as the accused has done in this case is
self-destructive. The two are incompatible.
Where one alleges provocation one does not deny or find another explanation for
the consequences of his conduct. He accepts his conduct but attributes it to
provocation and nothing more.
The raising of these two mutually destructive defences demonstrate to the court
beyond doubt the accused's desperation to clutch at anything to allow him to
remain afflot. It demonstrates lack of candidness on his part.
I will deal briefly with the defence of intoxication. This defence would
succeed as a partial defence if the court makes a specific finding that the
accused had lost control of his senses to the extent that he became incapable
of forming the specific intent to murder the deceased.
The accused did not impress us in raising this defence and the defence made an
informed decision by not pushing this defence too far. The narration of the
events in the manner done by the accused in this court, which narration fitted
to a large extend into the evidence of Jacob and Juliet did not suggest to us
that the accused had reached the stage where he lost control of his faculties.
The amount of detail which were loaded in the accused evidence in chief cannot
possibly be the recollection of a hopelessly drunken man.
In any event all these defences were shot down by the accused person himself
the moment he told the whole world about his desire to bring an end to the
deceased's prostitution and his bragging after he had accomplished his mission.
The accused was overally a hopeless lier when it came to the specifics
surrounding the deceased's death. He conspired to lie against the
deceased even in her grave by alleging the deceased was the aggressive part
when the evidence shows that it is the inverse which is true.
We are satisfied beyond doubt that the accused deliberately attacked the
deceased with the intention to cause fatal injuries. He achieved his objective.
There can only be one finding in such circumstances.
Verdict – Guilty of murder with actual intent.
EXTENUATION
Extenuating circumstances in the context of murder are regarded as facts
surrounding the commission of the crime of murder that work to mitigate or
lessen it and assists the court in considering the non-imposition of death
penalty.
Both the accused's counsel and the State counsel concurred that the triangle
love relationship involving the deceased, Jacob and the accused qualified this
case to be regarded as a crime of passion.
The accused was clearly obsessed by the deceased to the extent that he found it
extremely difficult to imagine that the deceased was now in a new love
relationship with Jacob at a time the accused strongly believed there was still
room for reconciliation with her as evidenced by his indication to the
deceased's mother that he intended to bring his uncles to try and reconcile the
two.
That the accused desperately loved the deceased was demonstrated by his request
to rope in a potential suitor Jacob to assist in the desired reconciliation
between the deceased and the accused.
The prosecution was unable to refute the accused's allegation that he had been
drinking before he committed this heinous murder.
In the court's view, a combination of all these factors amount to extenuation.
SENTENCE:
The factors accepted in extenuation suggest that the
accused felt betrayed by the conduct of both the deceased and Jacob.
There is overwhelming evidence that the accused desperately
sought to save his relationship with the deceased for the sake of the parties
two minor children whom the accused appeared to genuinely love.
We consider it mitigatory that the evidence accepted
suggests that the knife used was opportunistically picked form the kitchen
drawer. For almost a year the accused was kept in custody awaiting finalisation
of this case.
In aggravation we have considered the brutal nature of the
murder.
We are particularly concerned that even after murdering the deceased, the
accused appeared to have been determined to cause more harm to Juliet who was
forced to escape through the window to save her life.
It is equally disturbing that the accused still had the energy to threaten the
police officers who attempted to handcuff him by wielding another okapi knife.
Such belligerent conduct did not project the accused as someone who regretted
his conduct in murdering the deceased.
In all the circumstances of this case we believe a fairly long period of
confinement is appropriate.
Sentence: 30 years imprisonment.
Ndlovu and Hwacha, accused's
legal practitioners
Criminal
Division of the Attorney General's Office,
respondent's legal practitioners
