The accused is facing the charge of murder as defined in section
47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
The accused was jointly charged with Personally Ngundu who
is currently at large. The State successfully applied for separation of trial.
The charge is that the accused, or one or both, unlawfully
caused the death of Lessie Temai, a female adult, by striking her with a switch
and kicking her on 21 March 2015 in Madziya Village, Chief Murove, Mwenezi in
Masvingo.
The accused is 45 years old and his alleged accomplice,
Personally Ngundu, is 27 years old. The accused resides in Munongwani Village,
Chief Mawarire, Mwenezi, Masvingo. His alleged accomplice resides in Madziya
Village, Chief Murove, Mwenezi, Masvingo; the same village the now deceased
resided.
The now deceased was a 52 year old widow and is described
as a person who was of ill-health and well known for patronising beer drinks.
On 21 March 2015, there was a beer drink at Ngundu's Homestead,
the parents of the alleged accomplice, Personally Ngundu, in Madziya Village,
Chief Murove, Mwenezi, Masvingo. There were a number of patrons partaking in
the traditional brew which included the now deceased, Mukowa Moyo, Personally
Ngundu and the accused. Esnath Ngundu, the mother of the alleged accomplice,
was selling the beer at her homestead.
It would appear from the evidence that the traditional brew
was very intoxicating as many people who were present seemed to have been very
drunk from the evidence placed before us. A number of brawls also arose which
culminated in the now deceased's demise.
At about 1600 hours, the now deceased and one Mukowa Moyo
(Moyo) were involved in an altercation which degenerated in a fight. The source
of dispute is said to have been a mini skirt the now deceased was wearing which
provoked the ire of Moyo. The now deceased did not take kindly to being rebuked
for her attire.
The State alleges that Personally Ngundu, who is at large,
stopped the fight by in turn assaulting both Mukowa Moyo and the now deceased
with a switch. The now deceased is said to have turned her wrath towards
Personally Ngundu by shouting at him. It is alleged that Personally Ngundu
responded by kicking the now deceased causing her to fall only to be helped to
her feet by Esnath Ngundu who assisted her to sit down. The State alleges that
the accused, for no apparent reason, took a switch and struck the now deceased
on the head, again, causing her to fall down. It is alleged that Esnath Ngundu
assisted the now deceased to get up and took her into one of Esnath Ngundu's
huts.
The now deceased unfortunately passed on at around 1800
hours.
The accused flatly denied assaulting the now deceased in
any manner. Instead, the accused lays the blame squarely on his alleged
accomplice, Personally Ngundu, who is at large, whom he said heavily assaulted
the now deceased on the head with a switch. According to the accused, the old
adage that the guilty are afraid explains why Personally Ngundu is at large.
The accused said Personally Ngundu's mother, one Esnath Ngundu, a State witness,
is simply living by the saying that blood is thicker than water by protecting
her son, Personally Ngundu, and falsely incriminating the accused. The accused,
who denied that he was heavily intoxicated, said, in his evidence, that the now
deceased and one Mukowa Moyo, who was also initially arrested in connection
with this matter, are the persons who first quarrelled and then engaged in a
fight. According to the accused, Mukowa Moyo was heavily drunk and he was
unable to meaningfully fight back as the now deceased overpowered him. The
accused's version is that this fight was not stopped by anybody but the
protagonists stopped on their own.
The accused said Personally Ngundu then took a switch and assaulted
Moyo whom he took out of the yard. Upon his return, the accused said Personally
Ngundu proceeded to assault the now deceased on the head with a switch, and
several times, all over the body. The accused said Personally Ngundu then
proceeded to kick the deceased with safety shoes on the chest causing her to
fall headlong.
The accused said the now deceased exclaimed that Personally
Ngundu has killed her.
The accused's evidence is that at that point Personally
Ngundu threw away the switch and ran away. The accused said he picked the
switch and secured it on top of a garage well-knowing it was an exhibit.
The accused said Personally Ngundu's mother, Esnath Ngundu,
took the now deceased into one of her huts but came out to advise those people
present that the now deceased's condition was deteriorating. The accused said
some water was poured on the now deceased to no avail as she passed on and most
of the patrons vanished from the scene.
The accused said he proceeded to the nearby Sengejira Business
Centre where he unfortunately met Personally Ngundu who attacked the accused.
The accused said his crime was telling people at Sengejira Business Centre what
Personally Ngundu had done; that is killing the now deceased. The accused said
he was severely assaulted by Personally Ngundu with one of the bigger switches
in court produced as Exhibit 2(b) and was also hit on the head with a stone
resulting in him bleeding profusely. The accused said no one came to his rescue
as all the local people know Personally Ngundu as a person of a violent
disposition who does not even hesitate to use weapons like knives.
The accused said Personally Ngundu then fled from the scene
and the accused went to Esnath Ngundu's homestead to wait for the police whom
he heard had been called to attend the deceased's death. The accused said he
also hoped to report to the police the assault perpetrated on him by Personally
Ngundu. However, when the police arrived, the accused said the tables were
turned as he was implicated in the murder of the now deceased. He said his
report of assault was virtually ignored by the police despite the visible
injuries he had. The police did not even bother to have him medically examined
timeously - even after the magistrate had made such an order. Instead, the accused
said the investigating officer frantically tried to prevail upon the accused to
coerce him to admit to having a hand in the now deceased's death.
The accused said he did not flee from the scene as his
hands were clean and that he even tried to render first aid to the now deceased;
not because he had assaulted her but out of his good heart. He denied that any
compensation was demanded from him by the now deceased's relatives.
It is the accused's contention that Esnath Ngundu and
Pesani Singateri, both State witnesses, are simply conniving to falsely
implicate him. The accused alleges Esnath Ngundu is trying to lessen her burden
for compensation to the now deceased's family by also involving the accused,
and that Pesanai Singateri was the now deceased's boyfriend.
The accused thus insisted that he never laid his finger on
the now deceased and has completely no hand in her demise.
The postmortem report, Exhibit 1, compiled by Dr Godfrey
Zimbwa, who examined the now deceased's body on 22nd May 2015,
reveals the following observations and findings;
(i) The now deceased had facial and scalp bruises.
(ii) Bilateral periorbital haematomas.
(iii) Multiple bruises on the upper chest.
(iv) Bleeding from the mouth and nostrils.
The doctor concluded that the cause of death was head
injury arising from blunt trauma.
The observations and findings by the doctor are not being
challenged. It is therefore a fact that the now deceased was assaulted fatally….,.
The State case is premised on the evidence of two eye
witnesses, Esnath Ngundu and Pesanai Singateri….,. We therefore turn to their
evidence.
Esnath
Ngundu (Esnath)
Esnath is the mother of the alleged accomplice, Personally
Ngundu. She is well known to the accused who stays in the neighbouring village.
The now deceased was her fellow villager. This tragic event occurred at her
homestead where there was a beer drink. She is not aware of the current
whereabouts of her son, Personally Ngundu, who has since defaulted court.
Esnath Ngundu said on the day in question she attended a
meeting and only came back home at about 1600 hours. Her daughter was selling
the beer in her absence.
In her evidence, she said the now deceased and one Mukowa
Moyo quarrelled and ended up in a fight. She said Moyo was the first to hit the
now deceased on the chest. The now deceased then stood up and the two were
embroiled in a fist fight. She said Mukowa Moyo was overpowered and felled to
the ground. The now deceased then sat on Moyo's stomach.
It is at that point that Esnath said her son, Personally
Ngundu, intervened.
She said he, Personally Ngundu, plucked a switch from a
Mutobwe tree and proceeded to assault both Moyo and the now deceased ordering
them to stop the fight at his homestead. She was not able to count the blows
delivered by Personally Ngundu on either Moyo or the now deceased. They were
several. The switch got broken. Personally Ngundu got another switch. She did
not see where the blows landed. Esnath said, armed with a second switch,
Personally Ngundu ordered both the now deceased and Mukowa Moyo to leave the
beer drink. Apparently Moyo complied but the now deceased protested shouting at
Personally Ngundu.
Esnath said Personally Ngundu then turned on to the now
deceased and hit her causing her to fall down on her side. She did not see what
Personally Ngundu used, whether it was a clenched fist or booted foot. All she
did was to pull up the now deceased causing her to stand.
According to Esnath Ngundu, the accused then got involved
at that stage.
She said the accused came running wielding a switch and hit
the now deceased twice on the head. This prompted Esnath to pull away the now
deceased into her hut protecting her as she realised the now deceased had been
assaulted by a number of people; that is Mukowa Moyo, Personally Ngundu and the
accused.
Esnath identified Exhibit 2(b), the thicker switch, as the
switch used by the accused to assault the now deceased, and Exhibit 2(a), the
thinner switch, as the one used by her son, Personally Ngundu.
According to Esnath, the now deceased, Mukowa Moyo, and the
accused well all extremely drunk. She said another State witness, Pesanai
Singateri, was also heavily intoxicated as he was just seated dozing oblivious
to all these developments. Her son, Personally Ngundu, was moderately drunk.
After she took the now deceased into her hut, Personally
Ngundu then left the scene.
She said while she was in the hut with the now deceased she
realised the now deceased was having difficulties in breathing. As a result,
she tried to wash her face and pour some water onto her. The accused helped her
to remove the now deceased's blouse. She realised the condition of the now
deceased was worsening and she tried to find a scotch cart to ferry her to a
nearby clinic. The now deceased passed on before she could secure one. She advised
the Village Head, the Chief and proceeded to ZRP Sarahuru where she only got
the next day.
The police attended the scene the next day and arrested the
accused and Mukowa Moyo. Her son, Personally Ngundu, had fled and was only
arrested after some months.
Esnath said the now deceased was generally of ill-health as
she suffered from TB and was given to drinking heavily. Despite the absence of
her son, Personally Ngundu, she paid to the deceased's family a chicken, maize
meal and a goat before the deceased's burial. The deceased's family demanded 10
herd of cattle from each of the three (3); that is, Personally Ngundu, Mukowa
Moyo and the accused. She has since paid seven (7) herd of cattle to the
deceased's family on behalf of her son, Personally Ngundu.
Under cross examination, Esnath Ngundu disputed her
statement to the police that Personally Ngundu kicked the now deceased. She
conceded that her son, Personally Ngundu, is at large as a result of this case.
However, she said she cannot tell who delivered the fatal blow among her son, the
accused and Mukowa Moyo. Esnath conceded that as Moyo and the now deceased
fought they wrestled each other on the ground strangling each other. She told
the Court, in cross-examination, that she paid compensation to the now
deceased's family on behalf of her son in line with the African tradition. She
insisted that the accused had used the bigger switch, Exhibit 2(b), which the
accused had put on top of the garage and that police later failed to find it.
She does not know how and where Exhibit 2(b) was later recovered.
Esnath Ngundu indicated that she was unaware of the alleged
assault perpetrated on the accused by Personally Ngundu at Sengejira Business Centre….,.
Pesanai
Singateri (Pesanai)
Pesanai was known to the now deceased but refuted the
allegation by the State that he was the now deceased's boyfriend. He is 25
years old. He agreed with Esnath Ngundu that the now deceased was of ill-health
and given to heavily drinking. In fact, he said the now deceased had wounds all
over her legs and hands.
Pesanai Singateri was not known to the accused, Mukowa Moyo
and Personally Ngundu prior to this case.
The evidence of Pesanai is that he arrived at this beer
drink at about 1400hrs. His version of events is at cross-purpose with that of
Esnath Ngundu on virtually most of the issues or events. We shall highlight the
following;
(i) Whereas Esnath said she only arrived at her homestead
at about 1600 hours and that her daughter is the one who was selling the beer,
Pesanai said upon his arrival at 1400 hours Esnath was present selling the beer
and that he never saw the daughter selling the beer.
(ii) Esnath said Pesanai was extremely drunk at the
material time to the extent that he was just seated dozing. Pesanai said he was
not drunk at all and had taken little beer when all this happened.
(iii) Esnath and Pesanai differ materially in how Mukowa
Moyo and the now deceased fought.
Esnath said the two wrestled each other on the ground and
that Personally Ngundu stopped the fight by assaulting both of them as the now
deceased sat on Mukowa Moyo's stomach. Pesanai said Moyo and the now deceased
fought by exchanging fist fights and that they stopped on their own. He denied
that Personally Ngundu stopped the fight or that the now deceased sat on Mukowa
Moyo's stomach.
(iv) Pesanai said when Personally Ngundu kicked the now
deceased on the chest the now deceased fell on her back. On the other hand,
Esnath did not see if the now deceased was kicked or hit with a fist by
Personally Ngundu but she said the now deceased fell on her side.
They both, however, agree that Esnath is the one who,
pulled up the now deceased.
(v) Both Esnath and Pesanai agree that the accused
assaulted the now deceased with a switch on the head - but this is the only
aspect of their evidence on which they agree.
They differ on the position the now deceased was when she
was assaulted by the accused. Esnath said the now deceased was seated but
Pesanai said the now deceased was walking being held by Esnath. They differ on
the exact switch used by the accused. Esnath said it is the bigger and thicker
switch, Exhibit 2(b), but Pesanai said it is the seemingly harmless very thin
Exhibit 2(a). Esnath said the accused delivered two blows to the head but
Pesanai said they were three blows.
(vi) Pesanai's evidence is that the thicker and bigger
switch, Exhibit 2(b), was recovered by the police from the top of the garage on
Esnath's indications. Esnath disputes this and said she led to the recovery of
the thinner switch, Exhibit 2(a), and is not aware how Exhibit 2(b) was
recovered.
(vii) Whereas Esnath said she was not sure as to who
inflicted the fatal blow on the now deceased, Pesanai was emphatic and clear
that the accused's assault was not fatal in view of the type of the switch the
accused used.
(viii) Esnath said Personally Ngundu used a switch to first
assault the now deceased before possibly kicking her or using a fist. Pesanai
said Personally Ngundu never used a switch but simply kicked the now deceased
on the chest with safety shoes.
The evidence of the investigating officer, Sgt. Timothy
Manasa, which is material, is that he recovered Exhibit 2(a), the thinner
switch, at the instance of Esnath Ngundu, and Exhibit 2(b), the thicker switch,
some 300m away from the scene at the instance of the accused.
This would seem to corroborate Esnath Ngundu's evidence.
It is clear to us that the State's case is plagued with
material contradictions which remained un-cured by the evidence led by the
State. The two key State witnesses, Esnath Ngundu and Pesanai Singateri,
remained poles apart on the material issues.
The question which arises is which version should the Court
believe in those circumstances?
Was Pesanai Singateri heavily intoxicated to the extent
that he was dozing or not? Most importantly, which switch did the accused use
to assault the now deceased? Was it Exhibit 2(a), the thinner and harmless one,
or the thicker Exhibit 2(b)? When Personally Ngundu assaulted the now deceased
did she fall on her side or on her back?
These material contradictions in the State's case remain
unresolved. Further, given these contradictions, it is even difficult to invoke
the doctrine of common purpose.
What even compounds the State's case is that the doctor was
not called to testify.
This is a case which cried out for the viva voce evidence
of the doctor. The doctor would have shed more light on the now deceased's
alleged ill-health vis-Ã -vis her demise. Besides that, and most importantly,
the doctor would have assisted the Court on the nature of the head injury the
now deceased suffered which is given as the proximate cause of the now
deceased's death. It is the doctor who would possibly explain and clarify if
such an injury could have been caused by a switch or from a fall on the head.
The doctor would assist in shedding light as to whether Exhibit 2(a) or Exhibit
2(b), the switches, could have caused fatal injuries or just one of the
switches.
In our view, the State has dismally failed to prove the
case of murder against the accused, either with actual or constructive intent.
The contradictory evidence led by the State cannot even possibly sustain the
conviction of the accused on a permissible verdict of culpable homicide.
Despite the accused's spirited defence, we are satisfied
that the accused indeed assaulted the now deceased. It is the nature of that
assault, and its consequences, which is unclear. The accused benefits from that
doubt or lack of clarity. We are therefore inclined to return a verdict on a
permissible verdict of assault.
VERDICT
Not guilty of murder as defined in section 47(1)
of the Criminal Law (Codification and Reform) Act [Chapter 9:23] but guilty of
assault as defined in section 89(1)(a) of the Criminal Law (Codification and
Reform) Act [Chapter 9:23].
