This
matter has been outstanding for a long time. The accused is alleged
to have caused the death of his father, Sikhala Zhou, who is his
namesake, by striking him with an axe several times on the head and
neck on 6 November 2016 in contravention of section 47(1) of the
Criminal Law (Codification and Reform) Act [Chapter
9:23].
The
24-year-old accused and his 65-year-old father, the now deceased,
stayed at the same homestead in Sikhala Village, Chief Mazhetese,
Mwenezi, Masvingo. On 6 November 2016, at about 1900hrs, the accused,
the now deceased, and a relative, Trymore Speni (Trymore), arrived at
the now deceased's homestead from a beer drink. They were all
drunk. A quarrel ensued between the accused and the now deceased, his
father. The now deceased was alleging that the accused was not
willing to help the now deceased with chores to be done at home and
went on to disown the accused as his son. The State alleges this
incensed the accused who proceeded to set on fire the now deceased's
three huts. It is alleged the accused then took an axe to attack his
father, the now deceased, but Trymore Speni (Trymore) intervened in
order to restrain the accused. The State alleges the accused struck
Trymore with the axe. Thereafter, it is said the accused advanced
towards his father, the now deceased, and struck him with an axe
several times killing him instantly.
The
defence raised by the accused throws any possible explanation at the
court as it were. It is like a dog's breakfast. The accused alleges
provocation, voluntary intoxication, self-defence and defence of a
third party. To cap it all, the accused denies that he fatally
attacked his father, the now deceased. Instead, the accused tendered
a plea of guilty to the lesser charge of culpable homicide. The basis
for such a limited plea remained blurred.
In
his Defence Outline, the accused said he had drunk copious amounts of
the traditional brew together with his father, the now deceased, and
a close relative, Trymore
Speni, on
the day in question. As a result, he said they were all excessively
drunk when they all staggered home from a Mr Ndlovu's homestead
where there was a beer drink. It is the accused's case that upon
arrival home his father, the now deceased, attacked the accused's
mother ( the
now
deceased's wife)
who is crippled. The accused said he then intervened to try and
rescue his mother but Trymore, in his drunken state, believed the
accused was attacking the now deceased. Trymore
Speni took
an axe in order to attack the accused but the accused disarmed him.
The accused said Trymore then picked a stone in order to hit the
accused and the accused used the axe to frighten Trymore causing
Trymore to flee. The accused said in the midst of this commotion his
father, the now deceased, took a machete intending to attack his wife
who is the accused's mother. The accused said his mother called out
for help and that in response the accused, in a bid to rescue his
mother who is the now deceased's wife, struck the now deceased with
the blunt part of the axe he had taken from Trymore
Speni.
The accused said he directed the blow at the now deceased's back.
The accused said the now deceased fell onto some sharp part of a
plough or harrow and that this metal object pierced the now
deceased's head. At that stage, Trymore picked a glowing piece of
firewood and threw it at the accused. The accused said he managed to
duck and Trymore missed the accused. The piece of glowing firewood
fell onto the roof of one of the huts and all three huts caught fire.
At that stage he said Trymore fled. The accused said realising the
mayhem at the homestead he also fled and only came back the next day
after which he was surprisingly arrested. The accused said this
explains why he refused to sign the extra curial statement the police
forced him to give.
In
conclusion, the accused said he only struck his father, the now
deceased, once on the back with the blunt and not the sharp part of
the axe. He said he did so while in a drunken stupor and acting in a
fit of rage. Further, he said he acted in defence of his mother who
was about to be struck with a machete by the accused's father, the
now deceased.
The
axe the accused used was produced as Exhibit 2(a). The certificate of
weight Exhibit 2(b) shows its weight as 1,03kg, its length is 73.5cm,
being the handle, and the blade is 14cm. All we noted about the axe
is that is a lethal weapon which if used can inflict fatal injuries.
Dr
Sasa, whose evidence was admitted in terms of section 314 of the
Criminal Procedure and Evidence Act [Chapter 9:07],
examined the now deceased's body on 8 November 2016 at Neshuro
Hospital. He compiled Exhibit 1, the post mortem report. As per the
post-mortem report, the following injuries were noted;
(i)
3 deep lacerations on the head.
(ii)
One deep laceration at the back.
(iii)
1st
and 2nd
degree burns on the body and torso.
Dr
Sasa concluded that the cause of death was the penetrative head
wounds or injuries. The cause of the now deceased's death is not
being disputed. What the accused seems to dispute is how the now
deceased sustained those fatal injuries.
The
State led evidence from Trymore Speni, Priviledge Zhou and the
investigating officer, Tinos Munengwa. The accused gave evidence and
was unable to call his wife to testify as he said he did not know the
current whereabouts of his wife since his incarceration on this
charge.
The
issue we have to resolve is how the now deceased was fatally injured.
In doing so, we shall revert to the evidence placed before us.
Further, we shall examine whether the numerous defences raised by the
accused are available to him.
We
now turn to the evidence.
Tinos
Munengwa
Tinos
Munengwa (Tinos) is the Investigating Officer and we did not find his
evidence to be material. He attended the scene of the incident after
the now deceased's death. This was now on 7 November 2016. The
accused had already been apprehended by members of the public and the
alleged murder weapon, the axe…, recovered. He noted the injuries
on the now deceased's body especially the three wounds at the back
of the head and one at the back. The accused made indications to him.
He also saw the three torched huts. Trymore
Speni was
present and had injuries allegedly inflicted by the accused but
Trymore declined to press criminal charges against the accused.
Lastly, he noted that the now deceased was lying on a flat rock
surface where there were no other items like a plough or harrow.
Tinos
Munengwa's evidence was not challenged by the accused.
Both
Trymore Speni and Privilege Zhou are eye witnesses to how the now
deceased was fatally injured. It is their critical evidence which we
shall now deal with.
Trymore
Speni (Trymore)
Trymore
regarded the now deceased as a cousin on account of their mothers
being sisters. He has his own homestead in the same village with the
accused and the now deceased.
Trymore
said on the day in question, 6 November 2016, he went with the now
deceased to do some piece job at a nearby co-operative. Thereafter,
they proceeded to a beer drink at Ndlovu's homestead where they
found the accused present drinking beer, and, after a short period of
time, they decided to leave being three of them. They were carrying
some beer which they intended to consume at the homestead of the now
deceased and accused.
Trymore
said on arrival at that homestead, before even drinking the beer they
had brought, the now deceased asked why the accused had not finished
thatching one of the now deceased's huts. The accused, in a rude
manner, retorted that he was not the now deceased's employee. A
quarrel then ensued between the accused and the now deceased.
According
to Trymore, the now deceased was saying the accused should obey him
if he was indeed his son lest he would disown the accused. The
accused, in turn, was incensed by this and demanded to be shown his
real father. He said the two started to shout at each other and
Trymore decided to leave but the now deceased's wife, who is the
accused's mother, pleaded with him to remain lest the accused and
the now deceased would be violent as the accused held his father, the
now deceased, by the collar. Trymore said he then restrained the
accused by standing between the accused and the now deceased. The
accused was threatening to set on fire the three (3) huts at the
homestead belonging to the now deceased and Trymore pleaded with the
accused not to act in that manner as the accused had picked a burning
piece of firewood.
It
is Trymore's evidence that the accused then took an axe…, and
Trymore tried to disarm him. As the two struggled over that axe the
accused struck Trymore with the axe on the upper lip and above the
right eye. Trymore has visible healed scars on his upper limp and
above the right eye.
After
having been struck with the axe, Trymore said he fell down
unconscious. When he regained consciousness he realized that the
three huts were on fire.
Trymore
said as he struggled to leave this homestead he saw the accused who
was still armed with the axe. The accused threatened to further harm
him, but, for some reason, the accused left Trymore and went behind
one of the huts. At that stage, Trymore realized
the accused was chasing after the now deceased wielding the axe. He
said the now deceased fell down. By then, Trymore was still bleeding
profusely and losing strength. He fell down. As he lay down Trymore
said he heard a thudding sound which he described as “kaa, kaa,
kaa” like someone cutting a dry tree. This was accompanied by the
accused's utterances that he was finishing off the now deceased and
would burn the body.
Trymore
testified that a fellow villager, one Jealous Bako, then arrived
inquiring what was happening. The accused lied that the now deceased
and Trymore had attacked the accused. Trymore realized the now
deceased had died.
Under
cross examination, Trymore Speni said the accused was moderately
drunk, just like himself and the now deceased. He said the accused
was able to carry beer in a container without a lid and did not spill
the beer. He disagreed, therefore, that the accused was excessively
drunk. Trymore refuted that any person tried to attack the accused or
the accused's mother but that the accused was the aggressor. He
dismissed as false the accused's version of events, as per the
accused's Defence Outline, insisting that the now deceased never
took a machete. Instead, he said, it is the accused who took an axe
and injured Trymore. Trymore said while he did not see the accused
striking the now deceased with an axe he nonetheless saw the accused
chasing the now deceased wielding an axe. He refuted that the
accused's mother was under any attack. Trymore denied torching the
huts and only gained consciousness when the huts were burning.
Lastly, he said the accused was known to be a person of violent
disposition.
In
our assessment Trymore gave his evidence well. Although he had taken
alcohol he had a fair recollection of events of that day. In our
view, he did not seek to exaggerate his evidence. Instead, he limited
himself to what he saw.
As
an example he was truthful that he did not see how the accused
allegedly struck the now deceased with the axe or how the accused
torched the huts. Indeed, he was fair as he blamed both the now
deceased and the accused for starting the quarrel or
misunderstanding. Clearly, he has no motive to falsely incriminate
the accused. In fact, to show his sincerity he declined to press
charges against the accused despite being harmed with the axe.
Trymore Speni answered all questions put to him in cross examination
in an impressive manner. We therefore find no cause not to accept his
evidence.
Privilege
Zhou (Priviledge)
Privilege
is now 16 years old and is born to the now deceased's daughter. The
accused is her maternal uncle. At the material time she was staying
with the now deceased and the accused at the same homestead. She
testified that on 6 November 2016 she was at home with the accused's
wife, the now deceased's wife (the
accused's
mother) who is crippled, a neighbour, Joyce, and some other young
children.
Privilege
said the accused, the now deceased and Trymore Speni arrived in the
evening from a beer drink and the accused and the now deceased were
shouting at each other. She did not know what had sparked the
misunderstanding. All she heard was the now deceased saying the
accused was not his son and the accused threatening to torch the
huts. Her evidence is that the accused took a piece of glowing
firewood and some grass which he lit and threw on the roof of one of
the
huts. Within a short period, all the three (3) huts caught fire.
Privilege
then explained how the now deceased was fatally injured. She said the
accused took an axe trying to attack the now deceased which forced
Trymore to try and disarm the accused. She said the accused struck
Trymore with the axe above the right eye and fled leaving Trymore
injured.
After
about 10 minutes she said the accused returned as Trymore was
struggling to get up in order to flee. She said the accused
threatened to further harm Trymore but turned to the now deceased
still wielding the axe. The deceased tried to flee but the accused
chased after him. She graphically described how the accused fatally
attacked the now deceased as follows;
(i)
She said the accused first struck the now deceased with the axe on
the back as the now deceased tried to run around one of the huts.
(ii)
She said the accused pursued the now deceased, tripped him by the
doorway causing the now deceased to fall.
(iii)
She said as the now deceased was on the ground the accused delivered
two or three blows with the axe which were all directed to the back
of the now deceased's head. The deceased died instantly.
Privilege
Zhou said after this frightening act they all fled and alerted a
member of the neighbourhood watch committee about the now deceased's
death who is called Bako. Since the huts were still burning they had
to lift the accused's mother, who is crippled, from the burning
huts. The accused was only apprehended the next day.
Counsel
for
the accused could not meaningfullly cross-examine Privilege.
We
appreciate his predicament. Privilege was a brilliant witness. Her
evidence was free flowing and damning to the accused's case. In
fact, she virtually sounded a death knell to the accused's defence
as she did not only corroborate Trymore Speni but exposed the
accused's defence as a pack of lies.
Privilege
was clear that it is the accused who fatally attacked the now
deceased not that some plough or harrow injured the now deceased. She
was clear that the accused also injured Trymore with the axe. She
exonerated Trymore from torching the huts or attacking the accused in
any manner. We find no reason not to accept this young girl's
evidence. She is an eye witness to all what happened.
It
is our view that no useful purpose would be served by dealing with
the various defences raised by the accused. This matter can be
resolved solely on factual rather than legal issues. The fact of the
matter is that the accused's defence is anchored on falsehoods. As
a fact, the accused was not meaningfully provoked by his father, the
now deceased, who merely asked him why he had not finished thatching
the hut. From the evidence presented before us while the accused had
consumed alcohol he sought to exaggerate his degree of intoxication.
Judging by his own detailed and coherent evidence the accused fully
appreciated what he was doing that night. It is abundantly clear that
the accused did not act in self-defence. He was never under attack
from anyone. In fact, the accused was the aggressor throughout. The
accused's mother was never under attack hence it is a lie that the
accused acted in her defence. As a fact, it is the accused who
inflicted the fatal injuries on the now deceased which are clearly
spelt out in Exhibit 1, the post-mortem report. The accused's
intention is as clear as a blue sky. He intended to cause the now
deceased's death and indeed he achieved that.
The
accused armed himself with a lethal weapon - the axe. He aimed blows
at the now deceased's head with the axe. Consequently, he cannot
escape liability for causing the now deceased's death with actual
intent.
VERDICT:
Guilty of contravening section 47(1)(a) of the Criminal Law
(Codification and Reform Act) [Chapter
9:23]
- Murder with actual intent.
