KAMOCHA J: The
40 years old accused stands accused of the crime of murder which was
alleged to have been committed on 20 September 2013 at Gore Village,
under Chief Nyamhondo, in Mberengwa in the Midlands Province. He is
alleged to have caused the death of Chipochashe Ndlovu, a female
infant aged 3 years by forcibly having sexual intercourse with her
per vaginam and per anum, and assaulting her all over her body with
an unknown object, intending to kill her or realizing that there was
a real risk or possibility that his conduct may cause death and
continued to engage in that conduct despite the risk or possibility.
He denied the
charge when it was put to him and went on to state that he never did
all that was being alleged.
The State
Outline was read for the record and produced as exhibit one. I do not
intend to read it all over again. I shall, however read the Defence
Outline which was produced as exhibit 2 and it reads thus:
“The accused
having been served with the charge sheet informing him that he is
facing a charge of murder as defined in section 47 of the Criminal
Law (Codification and Reform) Act [Chapter 9:23] provides his defence
outline as follows:-
(1)The accused
denies that he caused the death of Chipochashe Ndlovu in any way
whatsoever.
(2)The accused
denies that he had sexual intercourse with Chipochashe Ndlovu either
through the vagina or through the anus.
(3)The accused
person denies that he assaulted Chipochashe Ndlovu in any way
whatsoever.
(4)The accused
will state that on 20th
September, 2013 he was
accompanied by Chipochashe Ndlovu to a goats pen within the family
homestead where Chipochashe Ndlovu sat in the road or path while he
fetched firewood from the homestead perimeter screen.
The next time he looked at Chipochashe Ndlovu, he observed that she
was in fits, frothing from the mouth and had fallen to the ground. He
will state that he carried her to the homestead and laid her in one
of the huts. She later died that same day.
The accused
will give evidence but will not call any other witness.”
Exhibit 3 was
the accused's confirmed extra curial statement where he maintained
the story in his defence outline as follows:-
“I have
understood the caution, I do not admit to the allegations levelled
against me that I killed Chipochashe Ndlovu an infant of 3 years by
forcing sexual intercourse with her through the vagina or through the
anus and used an identified object to cause bruises on her body and
she died because I did not kill her.
I took
Chipochashe Ndlovu to look for firewood in the nearby bush and later
sat the deceased at a
foot path whilst I searched for firewood. I later realised that the
deceased had fallen to the ground as if attacked by fits. I
carried deceased by the arm pit but she was unconscious until I
reached home where she later died with froth coming out
of the mouth. That is all.”
There is a
material discrepancy between the accused's confirmed statement and
his defence outline which he sought to rely on his evidence.
When he made
his statement to the police two days after the death of the deceased
matters were still very fresh on his mind. He stated thus:
“I took
Chipochashe Ndlovu to look for firewood in the nearby bush and later
sat the deceased at a foot path whilst I searched for firewood.…”
In his defence
outline which was compiled two days before the trial on 26 January
2015 which was after a period of one year four months he stated as
follows:
“The accused
will state that on 20th
September 2013, he was accompanied by Chipochashe Ndlovu to a goats
pen within the family homestead where Chipochashe Ndlovu sat in the
road or path while he fetched firewood from the homestead perimeter
screen.…:”
The 4th
exhibit was a report form for the alleged sexual abuse and rape cases
which was compiled by a nursing sister at Musume Hospital who
examined the remains of the deceased a day after her death. The nurse
recorded the following in the report:
(a) fresh
bruise above the right eye;
(b) 2 fresh
bruises on each side of the abdomen just above the groins; and
(c) a fresh
bruise on the back.
On the genital
examination she recorded thus:
(a) bruises
seen on the labia majora.
She marked
both sides of the labia majora and also shaded both sides of the
libia minora but made no narration about the shading on the labia
minora. She noted that the hymen was intact and there was no
bleeding. She finally opined that penetration was very likely. The
nurse gave viva voce
evidence which I shall deal with at a later stage in this judgment.
Exhibit 5 was
a post mortem report compiled by Doctor S. Pesanai. He examined the
remains of the deceased five days after her death. He observed that
the body was decomposed and had severe blotting; there was a small
laceration 0.5cm at 6 o'clock; the anus was dilated with rectal
laceration on the posterior. The skull had separated sutures frontal
and both parieto.
He further
remarked that the separated sutures that join the cranial bone could
have been caused by pressure of decomposing brain or due to head
injury. The doctor could not see any obvious cause of death due to
decomposition but went on to state that the child was sexually abused
and that there was penetration though the anus causing a laceration
in the rectum.
He concluded
that the cause of death was uncertainable due to decomposition. There
was, however, a lacerated rectum giving rise to the conclusion that
the child was sexually abused. The doctor gave viva voce evidence
which shall be dealt with later in this judgment.
The evidence
of two police officers was admitted in evidence by consent as it
appears in the state outline in terms of section 314 of the Criminal
Procedure and Evidence Act [Chapter 9:07].
Both officers
were stationed at Mataga Police Station. The officers were Simbarashe
Makope and Freedom Nyamutsamba. Their evidence which was
substantially materially similar was that they did not know both
accused and deceased prior to this case. On 21 September they
received a report of a suspected case of rape and murder at the
station. They both proceeded to Nkomonye Village accompanied by one
Shumeka Shumba, the informant.
On arrival
they found the deceased placed in a hut. On examining the body they
observed bruises on the right side of the head, on the back, on the
forehead and on the abdomen; and froth coming out of the mouth. They
then caused the body to be ferried to Musume Hospital for a medical
examination. Later the body was conveyed to United Bulawayo Hospitals
for a post mortem examination.
They learnt
that the accused had disappeared during a funeral wake. He was,
however, arrested on 22 September 2013. An extra curial statement
exhibit 3 was recorded from the accused. He made his statement freely
and voluntarily without any undue influence brought to bear on him.
The accused signed the statement.
By signing the
statement two days after the death of the deceased accused was
signifying that what he had told the police was the correct sequence
of events that took place on the fateful day.
He took
Chipochashe Ndlovu to look for firewood in the nearby bush. The
assertion in his Defence Outline that he was accompanied by
Chipochashe Ndlovu to a goats pen within the family homestead where
she sat in the road or path while he fetched firewood from the
homestead perimeter screen is clearly a hopeless after thought and
must be rejected from the onset.
This court
therefore makes a specific finding that the accused took the toddler
with him to the bush on the pretext that he was going to look for
firewood.
What also
emerges from the admitted evidence of the police officers is that the
body had bruises I alluded to above on the forehead, on the right
side of the head, on the back and on the abdomen which could not have
been self inflicted.
The
grandmother of the deceased Netsai Dube agrees with the police
officers that she observed the bruises on the back of the deceased.
She further had examined the deceased earlier than the police
officers and had in addition noticed that the body had swellings on
both sides of the neck. The deceased's vagina was wide open.
The
grandmother's testimony was that she had lived with the toddler
since her birth. Her daughter Kudzai Dube the mother of the deceased
had gone to live with accused. She said Kudzai Dube approached her
and requested to collect the deceased as she wanted to live with her.
She allowed the mother to collect the toddler. To her surprise and
horror 4 days later, her granddaughter was brought back dead.
She said her
granddaughter had no health problems apart from teething problems as
the teeth were coming up her jaws. She did not suffer from any
epilepsy. She never had any epileptic seizures.
She gave her
evidence with admirable clarity and deserved to be believed.
The mother
Kudzai Dube – “Kudzai” corroborates her mother that deceased
never suffered from epilepsy and that deceased had no health
problems. She was in good health even on the fateful day.
Her evidence
confirms what is in the accused's confirmed extra curial statement
that accused took the deceased to a mountain in the bush on the
pretext that he was going to look for firewood. He took her against
her advice that he should not take her away with him. He insisted and
took her away and was away with her for a period of plus or minus 2
hours and returned carrying her on his shoulder lifeless bleeding
from the nose and frothing from the mouth.
She enquired
from the accused what had happened to the deceased; the accused's
explanation was that she had had an epileptic seizure.
She was
emphatic that the accused's suggestion that he went to collect the
firewood with deceased from the perimeter fences of the homestead was
false.
This court
makes a specific finding that the accused took the deceased with him
to the mountain in the bush for about 2 hours and only brought her
back when she was lifeless. It is also the court's finding that she
remained in his care and custody during the duration of about 2
hours. No one else had access to her. He is the only one who could
have caused all the bruises observed on the body of the deceased by
the grandmother and police officers.
The bruises
were also observed by Winnie Gumbo a nursing sister for 25 years, a
day after the deceased died. I repeat that she marked her bruises on
her report exhibit 4 as follows;
(a) fresh
bruise above the right eye;
(b) 2 fresh
bruises on each side of the abdomen just above the groins; and
(c) a fresh
bruise on the back.
All these
bruises could not have been self inflicted.
On examination
she observed further bruises on both sides of labia majora and labia
minora. She told the court she had by mistake omitted to narrate on
her report the bruises that are reflected on the labia minora on the
diagram.
It was further
her testimony that the hymen was intact but still concluded that
penetration was very likely. Consequently, she held that the deceased
was sexually abused.
She was a fair
witness and had no reason to lie or exaggerate. If she had wanted to
she would have said the hymen was raptured.
Under cross
examination she said the bruises on the abdomen and back and right
eye led her to the conclusion that force or pressure was applied to
the areas using fingers.
Dr Sanganai
Pesanai corroborates the nursing sister on the conclusion that the
deceased had been sexually abused. His finding was that the abuse he
noted was per anum. His finding was based on the fact that he
observed a laceration in the rectum of the deceased's body. He was
adamant and emphatic that the laceration was ante mortem and not post
mortem and explained that the laceration could not have been due to
decomposition of the body.
The doctor has
been in the pathological field for the last 15 years. He further
stated that the rectum was part of the large intestines and was
inside the body and the laceration could only have been caused from
outside ante mortem and not post mortem.
All the State
witnesses testified well and truthfully. This court accepts their
evidence.
The same
cannot be said about the accused whose story was full of untruths. He
sought to change his story and in the process gave contradicting
stories.
He was
untruthful about where he went to fetch firewood with the deceased
wanting the court to think he was within his perimeter fence as he
fetched firewood. In his evidence he wanted the court also to believe
that the deceased followed him when in his confirmed extra curial
statement he said he took her while in his defence outline he says he
was accompanied by the deceased. It is difficult to understand why he
wanted to be accompanied by a 3 year old toddler to go for firewood
in the bush.
The accused
was untruthful about the epileptic attack on the deceased. It is
highly unlikely and improbable that a single attack of epilepsy would
cause the bruises observed on the body of the deceased. His story of
an epileptic seizure is false and must be rejected and is hereby
rejected.
The accused
was a bad witness, and his story must be rejected. The court prefers
the well given evidence of the State witnesses. Where ever the
accused's evidence conflicts with that of the State witnesses I
prefer that of the State witnesses.
The accused
planned the death of the deceased that is why he took her away
against her mother's wish.
I propose to
find him guilty of murder with actual intent.
Sentence
This is a
gruesome murder committed against a 3 year old toddler who was
defenceless and looked up to the accused for protection. The accused
never attempted to even justify the heinous murder.
I have
exercised my discretion in terms of section 48(2)(a) of the new
Constitution but was unable to find anything in the accused's
favour which could influence me to consider any sentence other than
capital punishment.
The accused
planned the murder which was motiveless. The Accused appeared
unconcerned about the deceased after bringing her back home he
continued to cook his sadza.
The murder was
committed under aggravated circumstances. He first sexually abused
the deceased and thereafter murdered her in order to cover up the
crime. This is one of those bad types of murder where no other form
of punishment other than capital punishment is suitable.
Accused shall
be returned to prison for the sentence of death to be executed
according to law.
Prosecutor General's Office, state's
representative
Mhaka Attorneys, defence's
representative
