The
two accused persons in this matter face a charge of murder. It being
alleged that on 13 February 2013, the two accused persons assaulted
the deceased resulting in his death on 14 February 2013.
The
evidence of the following State witnesses was admitted into the court
record, as contained in the State summary, in terms of section 314 of
the Criminal Procedure and Evidence Act [Chapter 9:07];
(i)
Danha Cecilia.
(ii)
Freddy Tapfuma.
(iii)
Sergeant Chinyerere.
(iv)
Constable Mutekwa.
(v)
Inspector Maukazuva.
Of
these five witnesses, the evidence of the following witnesses has
some significance in the case.
Danha
Cecilia is the teacher who taught the deceased at Shabanie Primary
School. She states, in the Summary, that on 13 February 2013 the
deceased reported to school at 0730 hours. He was in good health and
condition. She spent the day with the deceased and there was nothing
wrong she noticed about the deceased's condition. The deceased
dismissed from school at about 1530 hours and he left for home whilst
in good health.
Freddy
Tapfuma resides at BB118 Maglas Township, Zvishavane. The deceased
was his classmate. He last saw the deceased in good health; the
deceased was even playing with his friends; the deceased left for
home on the day in question without having complained of any ailment.
The following day, the deceased did not report for school and the
witness later learnt the deceased had died on that day.
Seargent
Chinyerere's evidence is to the effect that he was on duty when
Accused Two reported to him the deceased had died after complaining
of a severe headache and vomiting. He compiled the necessary
documents to enable a doctor to conduct a postmortem examination.
Accused Two later came in the company of Accused One stating that the
doctor had refused to conduct a post-mortem examination of the body
of the deceased as the doctor had observed some bruises on the
deceased's head and that the arm was swollen. He asked the accused
persons how the deceased sustained those injuries and they failed to
give a satisfactory answer resulting in their arrest.
The
State called Rudo Hove to give viva
voce
evidence.
She
told the court that she had just started living with Accused Two and
the deceased; the Accused Two being her landlady. She started staying
with them on 3 February 2013. On 13 February 2013, when she came back
from work, she found Accused One and Wizzy seated by the veranda. She
greeted them and proceeded to her room. Later, the deceased came with
Accused Two; Accused Two then warned the witness not to leave her
door unlocked as the deceased would steal. She said she had tried to
discipline the deceased to no avail and the witness then proposed
spiritual healing. She then told the witness that an uncle would come
to chastise the child that evening. Later that evening she heard the
deceased crying being assaulted with a sound 'bhuu' “bhuu”
emanating from the assault; she heard a male voice say keep quiet,
sit down. The assault took about an hour but was at intervals; there
would be moments of silence and people talking. She then fell asleep.
Later
that evening she woke up to hear Accused Two tell Accused One that
the deceased is refusing to take a bath; she then heard Accused One
say take a bath and the deceased saying he was unable to. She then
fell asleep. She told the court that although she had been living
there for about ten days she knew Accused One's voice and she could
tell that he is the one who was talking telling the deceased to bath.
She said whilst she never conversed at length with Accused One, he
frequented that place and she would hear him talk while in Accused
Two's house, talking to Accused Two.
She
said the following morning Accused Two told her she was going for
prayers. Accused One then came looking for Accused Two but not did
find her. This was after about fifteen minutes of Accused Two
leaving. Accused Two later came and told the witness that the uncle
had assaulted the deceased in a bad way and that he assaulted the
deceased until he vomited a watery substance. She then asked what the
deceased had eaten and was told that the deceased had eaten rice. She
then commented that there were ways of chastising a child that would
not assist anyone.
Doctor
S. Pesanayi, in the post mortem report, made a finding that the
deceased died from -
(i)
Subarchnoid Haemorrhages.
(ii)
Blunt Force Trauma to the head.
(iii)
Assault.
(iv)
Homicide.
We
then pause to assess Rudo Hove's credibility as a witness.
To
start with, Rudo Hove has not been shown anywhere in the court record
to be an interested witness in this matter. We take her to be an
independent witness as save for being a tenant she has not been shown
to have related with these people in any other way so as to make her
an interested party in the matter.
There
was no bad blood amongst the three i.e. Accused One, Accused Two and
herself.
Rudo
Hove could not have fabricated an assault in her mind only for the
Doctor at Zvishavane District Hospital to find injuries on the
deceased's body as well as Doctor S Pesanai who confirmed that the
deceased was indeed assaulted.
Rudo
Hove could thus not have fabricated an assault that never was; which
assault the doctors, who are independent State employees, would also
confirm.
Rudo
Hove did hear the deceased being assaulted in the manner she
describes because her evidence is indeed consistent with the doctor's
findings.
Again,
Accused Two told the court that the deceased went to play outside
before supper, un-injured, came for supper, and after supper he
watched TV, still uninjured, in the dining room; meaning the deceased
was at home that night. If the deceased died from injuries as a
result of an assault then indeed an assault was perpetrated on him
that particular night.
Again,
Rudo Hove says she was told by Accused Two that the uncle, whom she
perceived to be Accused One, would chastise the deceased that night,
and, indeed, the deceased must have been chastised that night for he
could not have suffered injuries miraculously on that day.
Again,
Rudo Hove told the court that Accused Two left for prayers in the
morning of 14 February 2013, and, indeed, Accused Two did go for
prayers that morning according to the defence case.
Again,
Rudo Hove told the court that Accused Two told her that “uncle”
had chastised the deceased badly until when he vomited, and, indeed,
the deceased had been assaulted, as per the doctor's findings.
Also, the deceased, according to Accused Two, did vomit on that day.
Even
during cross examination, Rudo Hove was never shown to have told lies
in her evidence-in-chief. In fact, if Rudo Hove was anything she was
a fair witness, in the court's view, for she did not seek to tell
the court that she saw the assault being perpetrated or that she was
definite 100% on whose male voice it was which spoke while the
deceased was being assaulted. She told the court she believed it was
Accused One but could not be 100% certain on that point. She told the
court that she heard Accused One tell the deceased to take a bath
later that night.
It
is for these aforestated reasons that we find Rudo Hove to be a
credible witness as there is no other reasonable finding that the
court can make with regard to her evidence….,.
We
now move to assess the defence case.
Accused
One told the court that he had been tasked by Accused Two's husband
to take a caretaker's role over Accused Two as she suffered from
fits. He lived about 130m from Accused Two's place. On 12 February
2013, Accused Two told him that the deceased suffered from a headache
but that he had gone to school.
He
went there the following day and found Wizzy seated on the veranda.
He had gone there to seek for and buy chicken cuts. He sat in the
veranda with Wizzy. Rudo Hove entered and greeted them. Accused Two
and the deceased also came; he asked the deceased how he felt and he
said that he was fine. He then bought relish, that is chicken cuts,
and went back home. This was around 6:20pm. He left Wizzy seated on
the veranda. Accused One never entered Accused Two's house.
In
the following morning, while in the garden, he heard his phone ring
from within the house; he took it and realized it was Accused Two; he
then kept it in his pocket. She then called around 6:45am; she
invited him to get to her place. Her voice was hoarse. He saw Accused
Two and Wizzy getting into their gate; he also got in.
It
was then that he noticed Accused Two looking down shedding tears. She
then told him the deceased had died. He was also told that the
deceased had vomited. He asked where the corpse was and he was told
it was in the bedroom; he uncovered the face and saw a scratch on the
right cheek.
He
went to the police to report and was told to take the corpse to
hospital. He was nowhere near Accused Two's house between 8-11pm on
13 February 2013. He never saw Accused Two assault the deceased.
Now,
in the Defence Outline, Accused One's version differs from the one
given in court in the following respects:
In
paragraph 8 of the Defence Outline, Accused One would state that on
13 February 2013 he visited Accused Two's place to check up on the
deceased whom he had been told was suffering from a headache.
However, in his evidence in chief he told the court that he had gone
there for chicken cuts. Accused One's mission on 13 February 2013
is therefore not clear as per his own case.
Again,
in the Defence Outline, paragraph 13-15, Accused One would tell the
court the following:
“That
in the morning of 14 February 2013, the first accused person was
called by the second accused who hysterically told him that the
deceased appeared dead. That the first accused was further told that
when Accused Two had gone to wake the deceased, she realized that the
deceased had died and that there were some vomits on the deceased.
That
first accused rushed to accused's residential place and was further
told of the fate of the deceased. He then helped Accused Two ferry
deceased to the hospital whereupon they were told to take the
deceased to the police station first.”
Now,
in his evidence-in-chief, Accused Two called him and invited him to
her house, whereupon he met Wizzy and Accused Two by the gate. It was
then that he noticed Accused Two looking down shedding tears. That's
when he learnt of the deceased's death.
Now,
from Accused One's own case, it is not clear what transpired on the
morning of 14 February 2013; was he found by Accused Two who told him
hysterically that the deceased appeared dead and that he had vomited?
Or was he only invited to go to Accused Two's residence and later
saw Accused Two look down and shed tears, and thereafter tell him
about the death?
Now,
Rudo Hove places Accused One at the scene of crime on the night in
question; that is when the deceased was being told to take a bath.
Accused One having been placed by Rudo Hove at the scene of crime. We
have already found Rudo Hove to be a credible witness.
Accused
One then tells us, in his defence, that he was never at the scene of
crime on the night in question. Of cause, the court notes that his
residence was just about 130m from Accused Two's residence; that
distance being a walking distance. In his defence case, he tells two
diverse versions on the reason he went to Accused Two's residence
on that night. On one hand he tells the court he had gone to buy
relish, on the other hand he tells the court he had gone to check on
the deceased. Rudo Hove tells the court that according to Accused
Two, Accused One was to chastise the deceased on that night; now that
Accused One cannot tell us a clear reason for having gone there that
day, the court has no option but to reject his diverse reasons on his
mission to Accused Two's residence on that day. He must have gone
there to chastise the deceased as per Rudo Hove's testimony.
Again,
the following morning he says he was phoned by Accused Two who
hysterically told him that the deceased appeared dead and had
vomited. But, again, he tells us, in his evidence-in-chief, that
Accused Two simply invited him to her residence then looked down and
shed tears telling him the deceased had died - which is which? What
is Accused One's version of events with regard to that fact? Again,
it is not known for his own case gives two diverse versions.
Accused
One is lying; he is at the scene of the crime on the night in
question as per Rudo Hove's evidence and is telling different
stories because he has fabricated a defence to save his skin from the
offence.
We
say so for there is credible evidence placing Accused One at the
scene of the crime on the night in question.
The
State case, as it relates to Accused One, hinges partly on real
evidence, that is Rudo Hove hearing Accused One telling the deceased
to take a bath at about 11pm on the night in question soon after the
assault, and, partly on circumstantial evidence in that she heard
Accused One would be chastising the deceased that night and she saw
Accused One at Accused Two's residential on that day; she also
heard a male voice which she believed to be that of the first accused
while the deceased was being assaulted. It is also common cause that
Accused One played a caretaker's role at Accused Two's residence.
Now,
the rules relating to circumstantial evidence are as follows:
In
the case of S
v Blom
1939
AD 188 (A)…, the cardinal rules of logic in drawing inferences in
criminal trials were given as follows:
(1)
The inference to be drawn must be consistent with the proven facts.
(2)
The proved facts must exclude all other inferences except the one
sought to be drawn.
Now,
the proved facts, as they relate to Accused One in this matter, are
that Accused One was indeed at Accused Two's residence on the night
of 13 February 2013, although he says he left after 6pm, he was
indeed there. Rudo Hove heard Accused One's voice, which she was
familiar with, at about 11pm ordering the deceased to take a bath.
While the deceased was being assaulted, a male voice was present
telling the deceased to keep quiet and to sit down. Accused One had a
caretaker's role on Accused Two and he frequented the place.
Accused One gives two different reasons for his visit to Accused
Two's residence on 13 February 2013. Accused One narrates two
different stories with regard to how he learnt of the deceased's
death. Rudo Hove was aware of the fact that Accused One would come to
chastise the deceased that night.
Accused
Two told the court that she decided to notify Accused One first of
the deceased's demise - before neighbours who were closer to her;
before family; and before the deceased's parents.
These
proved facts point towards only one inference, that Accused One was
indeed present at Accused Two's residence when the deceased was
being assaulted and that in fact he is the one that assaulted the
deceased together with Accused Two.
Accused
One was at the scene and this court draws the inference that he
partook in the assault because he himself, whilst denying having been
there at all, he firstly gives different reasons for his mission on
13 February 2013; he also explains the events of 14 February in two
different versions; if indeed he was not culpable he would have no
reason to tell two different stories on the event.
It
is our finding that the cumulative effect of the facts, as they
relate to Accused One herein, do point towards his guilt.
With
regard to proof beyond reasonable doubt, it was stated in the case of
Isolano 1985 (1) ZLR 62…, that:
“The
State is required to prove the guilt of the accused beyond reasonable
doubt; proof beyond reasonable doubt requires more than proof on a
balance of probabilities. It is not, however, proof to an absolute
degree of certainty or beyond a shadow of doubt. When there is proof
beyond reasonable doubt no reasonable doubt will remain as to the
guilty of the accused. If a reasonable person will still entertain a
reasonable doubt as to whether accused is guilty, the accused is
entitled to be acquitted. Fanciful or remote possibilities do not
introduce a reasonable doubt.”
Professor
G. FELTOE, in the Judges Handbook, 2009 Edition…, states as follows
on proof beyond reasonable doubt. He quoted the case of Isolano 1985
(1) ZLR 62 that I have referred to herein and then expands on that
point as follows:
“To
be reasonable doubt, the doubt must not be based on pure speculation
but be based upon a reasonable and solid foundation created either
from the positive evidence or gathered from reasonable inferences not
in conflict with or outweighed by the proved facts.”
He
goes on to say -
“It
is not necessary for the State to prove every single individual fact
in a criminal case beyond reasonable doubt although the State must
prove beyond reasonable doubt a fact which is particularly vital and
upon which the whole case hinges. The question which needs to be
asked is:
Do
all the facts, taken together, prove guilt beyond reasonable doubt?
Even
a number of lines of inferences, none of which would be decisive,
may, in their total effect, lead to there being proof beyond
reasonable doubt.”
In
this case, the deceased was certainly assaulted as per the post
mortem report. Rudo Hove knew of a plan to chastise the deceased by
Accused Two and the uncle. Rudo Hove heard the deceased being
assaulted that night. A male voice was there when the assault was
perpetrated. Accused One was present at Accused Two's residence at
about 11pm - the same night as per Rudo Hove's testimony. The
following morning, Accused Two liaised with Accused One, to the
exclusion of neighbours, on the deceased's death. Accused One has
given two reasons on his mission at Accused Two's house on 13
February 2013. Accused One gives two diverse versions on what
transpired on the morning of 14 February 2013.
The
cumulative effect of the events of 13 and 14 February 2013 do point,
without any reasonable doubt, to the guilt of Accused One. It is for
these reasons that this court finds that Accused One was present at
Accused Two's residence on the night the child was assaulted. His
denial thereof and his diverse reasons on his mission there as well
as the diverse versions on what transpired on the morning of 14
February 2013 can only be taken by this court to buttress Rudo Hove's
evidence that indeed she heard Accused One's voice at about 11pm on
the night in question ordering the deceased to take a bath.
We
then move to deal with Accused Two.
Accused
Two told the court that the deceased suffered from a headache but he
went to school on 13 February 2013. The deceased appeared healthy
although he complained of a headache. On the night in question, she
locked her doors shortly after 7pm and retired to bed leaving the
deceased who was watching TV in the dining room. The deceased was
never assaulted in her presence; she shared the same bedroom with the
deceased. She also confirmed that Accused One played a caretaker's
role on her. She woke up in the morning, prepared porridge, and went
for prayers. She later came to wake the deceased up and discovered he
had died; the deceased had vomited. The previous night when she
retired to bed leaving the
deceased in the dining room she did not notice any injuries on the
deceased.
Now,
Accused Two is the custodian of the deceased. On that night, the
deceased was in her custody with no injuries whatsoever; Rudo Hove
heard the deceased crying being assaulted. The postmortem report
points towards an assault. Accused Two never heard anything; these
people live in a four-roomed house. It would be absurd and fanciful,
as given in Isolano 1985 (1) ZLR 62, for us to accept that Accused
Two does not know what happened to the deceased.
The
State has, again, in relation to Accused Two, discharged the onus on
it to prove her culpability. The totality of the evidence, as given
before us, shows that Accused Two cannot be absolved from the
knowledge of what happened to the deceased as her custodian.
Again,
Accused Two, in paragraph 29 of her Defence Outline, she states that
upon discovering the deceased's lifeless body she then phoned
Accused One who came and assisted her to ferry the deceased to
hospital.
In
court, while being asked by defence counsel in relation to matters
arising after questions by the court, she said that she never spoke
to Accused One on the phone; that she called him, he did not answer
but later came.
She
also said, in her Defence Outline, Accused One assisted her to ferry
the deceased to the hospital and later to the police; that they
ferried the deceased to the hospital and later went to report the
matter to the Zimbabwe Republic Police (ZRP) whereupon they were
arrested for murder.
The
admitted evidence of Sergeant Chinyerere is also to the effect that
Accused Two reported the deceased's death to him and then went to
the hospital to come back later in Accused One's company.
She,
however, denies ever being part of the team that went to the hospital
and to the police station in her evidence in chief.
Accused
Two clearly is giving a bold defence in that it is common cause that
the deceased, who was in her custody, was assaulted between 13 and 14
February 2013. She is the one who says no other person came to the
house on the night in question. She locked the doors when she went to
sleep. The only logical conclusion is that what transpired on the
night in question, as stated by Rudo Hove, is indeed what transpired.
Accused Two is merely trying to evade culpability when she acts like
the assault on the deceased was a miracle.
This
court is enjoined, therefore, to draw the following conclusion with
regard to this matter;
The
deceased was assaulted by both accused persons in the manner
described by Rudo Hove. The post-mortem report confirms this, and
Doctor S Pesanai, who gave viva
voce
evidence, eliminated a headache as a cause of the deceased's death
but insisted that he concluded that the deceased died as a result of
an assault. We have already found how Accused One was placed at the
scene by Rudo Hove and how we find that he is equally culpable. We
accordingly find that both accused persons did act wrongfully and
unlawfully on that day.
We
then move to assess what they are guilty of.
Rudo
Hove told the court of the accused persons plan to chastise the
deceased. She did not see what was being used to assault the
deceased. Dr S. Pesanai says the abrasions were consistent with a
switch or other similar object. He concluded that the injuries on the
head were as a result of blunt force trauma. It is however unknown
what object was used to inflict them. The length of the assault was
about an hour but there were intervals when it would stop. We can
thus not infer intention from these facts. The only logical
conclusion the court can arrive at is that in their bid to chastise
the deceased, Accused One and Two were negligent in their persistent
assault resulting in the deceased sustaining fatal injuries.
It
is for these reasons that both accused persons will be found guilty
of culpable homicide.
