The
accused person was 43 years old at the time of the alleged offence,
on 27 January 2000, and was residing at his homestead in the Wabayi
area of rural Gwanda under Village Head, Matshina Ndlovu. 16 years
and 4 months down the line he is appearing before us, at the age of
59, charged with the murder of his daughter Sisasenkosi Moyo who was
aged 5 years when she died.
The
accused has pleaded not guilty to the charge.
The
allegations are that on 27 January 2000 the accused's wife had left
the deceased under the care of the accused when she went looking for
her missing sister. In the early hours of the following morning, that
is at about 0500 hours, the accused had reported to a neighbour that
the deceased was dead. Indeed, her body was found lying in the
kitchen with a big gash on the forehead, a missing forearm and was
partially burnt leading to the eventual arrest of the accused person.
In
his Defence Outline, the accused has stated that he was indeed left
in charge of his daughter by his wife, Gladys Mpofu, on 27 January
2000. He and the deceased had worked in the fields in the morning
before he later did domestic chores at the homestead. He started
drinking what he calls “some brewed spirit.” It was after he had
started drinking that he realized that the deceased's clothes,
which she had been putting on, were dirty and he washed those
clothes. He continued drinking alcohol and proceeded to Phineas
Ndlovu's homestead where there was a beer drink but returned to his
homestead and slaughtered a chicken. After dinner he and the deceased
retired to the bedroom where he continued drinking but he later slept
leaving the deceased reading.
The
accused went on to say that it was at midnight when he woke up and
discovered that the deceased was not in bed. He went to look for her
in the kitchen where, upon arrival, he beheld the body of the
deceased lying on the floor with her face smashed by the ridge of a
tripod - dead. He says he removed the body from the tripod and
covered it with a blanket before proceeding to notify his neighbour,
Gift Sibanda, of the death.
The
State lined up ten witnesses to prove its case but owing to the
unexplained delay in the commencement of the trial three key
witnesses, namely, Matshina Ndlovu, Ndazu Ndlovu and Philimon Moyo
who had played central roles in bringing the accused person to book,
have since died. In addition, the arresting police detail, Elvis
Mwakajila, then attached to CID Gwanda, who had gathered the
evidence, is said to have since left the police service and could not
be found….,.
The
evidence of Milton Mkize, Ronald Mhene and Doctor Mukwendi Kashalala
Kayembe was admitted in terms of section 314 of the Criminal
Procedure and Evidence Act [Chapter 9:07] as it appears on the State
Outline.
According
to Milton Mkize, an attested member of the Zimbabwe Republic Police,
based at CID Gwanda, on 1 February 2000 he attended the scene of
crime in the company of the Investigating Officer and interviewed the
accused person. He told them that on the day in question he had
consumed copious amounts of the illicit brew known as tototo.
Of course, when the accused gave evidence in court he changed the
brand of liquor to what he called “hot stuff” mixed with a soft
drink.
According
to Milton
Mkize,
the accused narrated to the police officers that the deceased had
disappeared from bed leaving him fast asleep heavy with alcohol. The
witness recorded a warned and cautioned statement from the accused
which was later confirmed by a magistrate at Gwanda on 16 February
2000. The statement itself was produced in court.
It
is a lengthy and detailed statement in which the accused set out, in
chronological order, the events of 27 and 28 January 2000 from the
time he was left in charge of the deceased by his wife right up to
the time of his arrest. It reads in part:
“After
driving the cattle, I then passed by Phineas George Ndlovu's
homestead, since their home is near the River Tuli. I then asked
Phineas Ndlovu whether Nomagugu's mother had not passed by his
place. Phineas replied that she had not passed by his place.
At
that juncture, I was still wearing the clothes which I was wearing in
the morning, consisting of a cream long sleeved shirt and a cream
pair of long trousers. I went back to my home and cooked some chicken
of which I left slaughtered after it had fallen into (a) pail of
water.
We
ate food, I then went to bedroom together with Sisasenkosi. When I
got there, I drank some more of my 'tototo.' I then retired to
bed at seven in the evening leaving Sisasenkosi browsing through some
books whilst seated at the table. Before going to bed I first closed
the door. I fell into a deep sleep for sometime before I woke up.
I
woke up in the middle of the night then searched around the bed with
my hand for the child and could not find her. I woke up and found the
door open, I went outside looking for the child until I got to the
kitchen hut. When I got to the kitchen hut I found Sisasenkosi Moyo
having fallen onto a metal tripod stand and her face was smashed onto
the ridge of the tripod stand…,.
I
then retrieved her from the top of the tripod stand, but by then she
was dead. I then placed her on the floor. Thinking it was around 0300
hours in the morning. I stood for a long time thinking, I then took a
blanket and covered the body and left to inform Gift Sibanda who is
my neighbour about the tragedy. I took him to my home to see for
himself the tragedy after which we notified other villagers on Friday
morning…,.”
The
admitted evidence of Dr Kayembe is to the effect that he examined the
body of the deceased at United Bulawayo Hospital mortuary on 3
February 2000 and compiled his findings in the post mortem report
number 75-69-2000 which concluded that the cause of death was
multiple injuries and assault.
The
post mortem report itself was produced in terms of section 278(2) of
the Criminal Procedure and Evidence Act [Chapter 9:07]. The section
provides that an affidavit by the doctor who has carried out an
examination stating that he or she carried out such an examination
and ascertained facts and arrived at an opinion, shall be prima
facie
proof of those facts and that opinion “on its mere production.”
The
doctor who conducted the post-mortem observed that the time of death
was 1900 hours; that the deceased was 90cm in height; and he noted
the following marks of violence:
“(a)
Laceration right forehead (7 x 3cm) left arm (8 x 4cm).
(b)
Below elbow amputation left arm with dislocated elbow joint and
missing radius.
(c)
Burns involving the head, limbs, abdomen, back and buttock 32%.”
He
also noted a skull fracture of frontal and left parietal bones,
fractures in the anterior and medial left cranial fassae. In
addition, there was extensive brain damage. The doctor concluded;
“The
injuries observed, besides the burns due to hot water, were caused by
a sharp and heavy object like an axe.”
He
made a finding that the cause of death was multiple injuries due to
assault. The admitted evidence and that which cannot be disputed
prove the following, that;
1.
The accused was left in charge of the 5 year old deceased by her
mother on 27 January 2000.
2.
During the day, he was putting on a cream long-sleeved shirt and a
cream pair of long trousers. These are the same clothes which he was
putting on when he met Phineas George Ndlovu.
3.
It is the accused who first found the body of the deceased. When he
did that, in the middle of the night, he retrieved the body from the
tripod while still alone and lay it on the floor and covered it with
a blanket.
4.
After that, he proceeded to notify Gift Sibanda, his neighbour, of
the death.
5.
The accused told the police that he had been drinking tototo
and not hot stuff that he mentioned in court.
6.
The deceased died as a result of multiple injuries due to assault.
The injuries, which included skull fracture and brain damage, were
caused by a heavy object like an axe. She also had 32% hot water
burns.
7.
The body of the deceased was found with the left forearm missing and
it was never recovered after it was crudely amputated at the elbow
joint position.
Over
and above the admitted evidence and that which was produced in terms
of the law, the State led evidence from three more witnesses, namely,
Gift Sibanda, Albert Ndlovu and Phineas George Ndlovu.
Gift
Sibanda is a neghbour of the accused who was awakened by the accused
in the morning of 28 January 2000. He woke up to the sad news that
the deceased had died. As he and the accused found their way to the
scene, he says he inquired from the accused as to what had transpired
only to be told that the child had fallen on top of a metal tripod
stand at the fireplace. Upon arrival, he found the body still on what
he described as a small tripod stand but covered with a blanket. The
stand did not have protruding edges but only raised ridges. He
removed the blanket and observed an injury on the right frontal part
of the forehead and signs of burns towards the buttocks. It had a
missing left forearm. The clothes she was wearing did not have any
blood.
Gift
Sibanda also observed a small pot which was by the fireplace. It was
empty. He did not observe any blood. Although the accused said he had
discovered the body during the night, between 2100 and 2200 hours, he
had only alerted the witness in the morning.
Albert
Ndlovu is another neighbour of the accused who had passed by the
accused's homestead on the evening of 27 January 2000, at about
5pm, going to a funeral wake. He saw the accused chopping firewood in
the company of the deceased. The following morning he was on his way
to the funeral when he received the news that the deceased had died.
When
he attended the scene, he was told by the accused that the child had
been cooking when she fell onto the fire. He observed some pots on
the floor which had chicken offals. When he enquired from the accused
what had happened to the missing arm, he was told that it had been
eaten by dogs. A search around yielded no bones. He observed blood on
the floor of the kitchen. He observed that the clothes the deceased
had been wearing had been washed although they still had signs of
blood on them.
Phineas
George Ndlovu is yet another neighbour who had been visited by the
accused at sunset on 27 January 2000. He observed that his clothing,
a white shirt and a yellowish pair of trousers were blood- stained.
When he inquired from the accused as to why this was so, the accused
had not given a satisfactory answer; content to say may be he had
fallen or maybe he would be visited by the police. The accused had
been in a drunken state. The following morning he was advised by Gift
Sibanda about the deceased's death and attended the scene. He noted
that the accused had changed the blood stained clothing he had been
putting on the previous day and that the deceased's clothing had
been immersed in water.
The
presentation of the evidence of the State witnesses was generally
satisfactory. Although a long time has lapsed since the events of the
death of the deceased, the three witnesses still testified fairly
well in what they observed. Only Gift Sibanda seemed to stray but
only when asked to speculate about what could have caused the
injuries and what happened to the missing left forearm, things for
which he had no direct knowledge. He only said it was possible that
the gash on the forehead could have been inflicted by a fall onto the
tripod and that it was possible that the forearm could have been
chewed off by dogs. Speculation not helpful at all.
The
accused person also gave evidence.
He
quickly recanted the narrative contained in his confirmed warned and
cautioned statement, which was given when events were expected to
have been fresh in his mind. He even departed from the contents of
his Defence Outline. For instance, while in the caution he said he
had been putting on a cream long sleeved shirt and a cream pair of
long trousers, as observed by Phineas Ndlovu, he testified, in court,
that he had been putting on a brown trousers and a white T-shirt
under a yellowish shirt.
While
in the caution he said he retrieved the body of the deceased from the
tripod stand and placed it on the floor while still alone at about
0300 hours, he changed that during his testimony. He said he did that
together with Gift Sibanda. In both the caution and the Defence
Outline, he said nothing about the deceased's forehead being stuck
in a protruding metal on the tripod - something he insisted on in his
evidence. Indeed, during the trial, he invented this story of
carrying a plate of offals backwards and forth from the kitchen to
the bedroom and the deceased also waking up in the dead of the night
to transport the plate of offals back to the kitchen - which does not
appear anywhere else.
A
closer look at the accused's three versions shows that the Defence
Outline is closer to the warned and cautioned statement and that his
evidence in court became stranger and stranger as he continued to
conjure a new defence as he went along. In the end, his testimony
assumed not only chameleon colour changes in response to whatever was
thrown at him at any one time but also the complexion of a fictious
novel.
Hence,
he found nothing wrong with the very improbable story he fed the
court that a 5 year old girl would be allowed to cook by the fire on
her own and would wake up in the middle of the night and find her way
to the kitchen for no other reason but to roast or cook chicken
offals not afraid of the darkness. Therein also lies the desperation
to invent the story of carrying a plate of offals to the bedroom
while leaving behind, in the kitchen, the rest of the cooked chicken.
Its all un-mitigated falsehood which is as improbable as it is a
figment of an idle mind.
But
then there is method on all this. There has to be a reason why the
accused was at pains to invent theories about how his daughter met
her death when he did not have to really. It is because he was intent
on hiding the correct version of how the little girl met her death.
In
our law no onus rests on the accused to convince the court of the
truth of any explanation he gives. If he gives an explanation, even
if that explanation is improbable, the court is not at liberty to
convict unless satisfied, not only that the explanation is improbable
but that beyond any reasonable doubt it is false. See R
v Difford
1937 AD 370…,.; R
v M
1946 AD 1023…,.; S
v Pisirayi
HB121-16.
The
explanation given by the accused about how the deceased died,
including his belated claim that her head was stuck on a protruding
metal of a tripod stand, which he only remembered in court, fits the
description given by McNALLY JA in Matambo
v Mutsago
1996 (1) ZLR 101 (S)…, that:
“However
charmingly, smoothly or impressively Mr Mutsago made these
statements, the fact is that they are mechanically impossible. If a
witness says he saw water flowing uphill unaided by a pump, you do
not judge his veracity by reference to his demeanor. You apply the
law of physics.”
Which
then brings us to the issue of circumstantial evidence.
There
is no direct evidence of the killing of the deceased. The prosecution
is anchored on circumstantial evidence. In our law, the guiding
principle is that circumstantial evidence depends upon facts which
are proved by direct evidence from which the court is required to
draw inferences. Means, motive and opportunity are all examples of
circumstantial evidence.
To
show that the accused person had the means, a motive, and the
opportunity assists in persuading the court of his guilt and raises a
prima
facie
case against him for him to answer. However, where the conviction of
the accused is dependent upon circumstantial evidence, the inference
sought to be drawn must be consistent with the proved facts and the
facts should be such that they exclude every reasonable inference
from them except that which is sought to be drawn. See S
v Gwebu
HB124-16; S
v Edwards
1949
SR 30; R
v Blom
1939 AD 188…,.; S
v Vhera
2003 (1) ZLR 668 (H)…,.;
S v Phiri
HB19-16.
The
proved facts are that the accused had custody of the deceased on the
day in question in the absence of the child's mother. He had in his
possession an axe he had used earlier while chopping wood as admitted
by himself and as observed by Albert Ndlovu. He was observed by
Phineas George Ndlovu putting on bloodstained clothes which he later
took off and says he washed together with those of the deceased - a
very unusual activity for a rural man who was expecting the return of
his wife from her trip that very same day.
He
is the one who solely “discovered” the body of the deceased and
tampered with a crime scene under cover of the night hours before
alerting neighbours and calling the police. The deceased was found
with fatal wounds which, according to the medical evidence, were
inflicted by an instrument like an axe. The conduct of the accused,
of washing his clothes and those of the deceased, when viewed
together with that of interfering with the crime scene, removing the
body of the deceased and covering it with a blanket before people
arrived, is consistent with a guilty person setting about to destroy
evidence.
It
also explains why no blood was found at the scene, if one may assume
that the deceased met her death at that kitchen hut. She may have
been planted there, for all we know, after being killed elsewhere. We
also cannot ignore the missing forearm which may constitute the final
missing link of the jig-saw puzzle - the motive to kill the girl. We
take judicial notice that quite often in contemporary history strange
killings for ritual purposes have been occurring in this country and
the killing of the 5 year old girl may have been one of them.
We
conclude, therefore, that the accused person had the means and the
opportunity to kill the deceased the way she was killed. As pointed
out, the missing forearm also provides the motive. Accordingly, on
the proved facts, we have no hesitation in finding that the only
inference to be drawn is that the accused did kill the deceased and
probably used the liquor that he says he continued consuming slowly,
even from his bedroom, as the source of dutch courage for the
commission of the heinous crime.
According
to the manner in which the deceased was attacked, the severance of
the forearm and the crushing of her head, there was actual intention
to kill her.
Accordingly,
the accused is found guilty of murder with actual intent.
