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
charge is that on 25 October 2016 in Chali Village, Headman Gezani,
Chief Sengwe, Chiredzi, Masvingo the accused struck the now deceased,
Lawrence Mutileni, twice on the head with an axe handle causing his
death.
Both
the accused and the now deceased were fellow villagers in Chali
Village.
On
25 October 2016, the now deceased proceeded to the accused's
homestead where he found the accused and his wife present. The
purpose of the visit was to deal with the issue of the alleged
infidelity between the now deceased and the accused's wife, one
Mavis Maringa.
The
State alleges that the now deceased approached the accused to inquire
into the rumour allegedly spread by the accused that the now deceased
was having a love affair with the accused's wife. It alleged that a
misunderstanding arose between the accused and the now deceased.
During the ensuing altercation the accused is said to have taken an
axe or hoe handle. The accused is said to have first struck the now
deceased with the hoe handle on the head causing him to fall down and
delivered a second blow as the now deceased was lying down. It is the
State case that the accused picked a stone to further attack the now
deceased but was restrained by his wife, Mavis Maringa. According to
the State, the now deceased sustained two deep cuts on the head. The
now deceased managed to proceed to Alice Chauke's nearby homestead
from where he was taken to Davata Clinic
and later transferred to Chikombedzi Hospital where he passed on the
following day on 26 October 2016 as a result of a skull fracture.
The
accused, in denying this charge, raises two defences;
(i)
One
of self-defence which is a complete defence; and
(ii)
The
partial defence of provocation.
The
accused alleged that when the now deceased came to the accused's
homestead he alleged that the accused was a rumour-monger who was
propagating the allegation that the now deceased was having an affair
with the accused's wife, Mavis Maringa. The accused said, realising
the sensitivity of the matter, he suggested that they proceeded to
the village head to discuss the matter but the now deceased, who had
no shirt and armed with a
hoe handle, refused insisting that they should discuss the matter.
The accused said he obliged and called his wife, Mavis Maringa, who
was the centre of the discussion. The accused said he then asked his
wife if she was in an adulterous relationship with the now deceased.
The accused said the response by his wife was to the effect that the
now deceased had raped her whilst the two of them were herding cattle
in the grazing area. The accused said the now deceased then retorted
that the sexual act had hardly lasted five minutes.
This
sparked an altercation between the accused and the now deceased.
The
accused said the now deceased then took a hoe handle in a bid to
assault the accused. The accused said he disarmed the now deceased
and proceeded to hit the now deceased with the hoe handle on the
head. The accused said due to the blow the now deceased fell and hit
his head against a 3-legged pot which was nearby and sustained head
injuries. The accused said the now deceased got up and proceeded to
his home. It is the accused's contention that he was provoked by
what the now deceased said admitting to having been intimate with the
accused's wife, Mavis Maringa. The accused said he acted in
self-defence when he assaulted the now deceased.
A
total of three exhibits were produced, by consent, being;
(i)
Exhibit 1 - the post mortem report;
(ii)
Exhibit 2 – the
accused's
confirmed warned and cautioned statement; and
(iii)
Exhibit 3 - an affidavit on the details of the hoe handle.
The
post-mortem report was compiled by Dr Lavaia Keith who examined the
now deceased's remains on 31 October 2016 at Chiredzi General
Hospital. The doctor noted the following;
(i)
That the now deceased had blood clots in both the ears and nostrils.
(ii)
The now deceased had a laceration on occiput.
(iii)
There were no long bone fractures noted.
(iv)
The cause of death was base skull fracture.
Dr
Lavaia Keith gave viva voce evidence further explaining the contents
of the postmortem report. He explained the cause of death was the
fracture of the lower most part of the skull described in medical
terms as base skull fracture. In brief, he explained that the skull
bones protect the brain and that the base skull is where vessels and
nerves from which the functions of the human body are passed in and
out. According to the doctor, the bloods clots in the nostrils and
ears were indicative of base skull fracture. The doctor's view was
that in order to inflict such an injury a blunt object would be used
with a lot of force. The doctor said a hoe handle could inflict such
an injury or even where the deceased hit against a hard object like a
3-legged pot.
The
testimony of the doctor was not contested. The cause of the now
deceased's death is therefore not in issue. It was the base skull
fracture.
What
is in issue is how the now deceased sustained that base skull
fracture.
As
per Exhibit 3, the hoe handle in issue is 80cm long, the weight is
837g and the diameter is 7cm. We accept the doctor's evidence that
such a hoe handle, which is a blunt object, could cause base skull
fracture. The accused admits using the hoe handle but seems to allege
that it was not the source or cause of the now deceased's fatal
injuries. Instead, the accused said it was the 3 legged pot.
The
accused's confirmed warned and cautioned statement…, is somewhat
different from the accused's Defence Outline and evidence. In that
statement the accused said;
“I
admit the charge of murder of the deceased. I assaulted him which
resulted in his death. The reason being that the deceased was in a
love affair with my wife. I did not intend to ask him about the issue
concerning my wife, but, instead, it is him who came to my homestead
to ask me about his love relationship with my wife.”
What
is pertinent to note is that in that statement the accused seems to
admit to have inflicted the fatal injuries on the now deceased and
that those injuries were the proximate cause of the now deceased's
death.
The
other notable aspect in that statement is that the accused did not
state that he acted in self-defence at all.
A
proper reading of that statement would suggest that what provoked the
accused was the alleged love affair between the now deceased and the
accused's wife as the accused did not, in that statement, refer to
any provocative utterances by the now deceased like that the sexual
act hardly lasted five minutes or even mere admission of the alleged
intimacy. In fact, nowhere in that statement does the accused refer
to the alleged rape of his wife by the now deceased. The impression,
as per that statement, suggests that the accused's wife and the now
deceased were in love. Lastly, in that statement the accused did not
mention at all that the now deceased was fatally injured when he hit
his head against a 3-legged pot. No such pot is mentioned. These
disparities between the accused's evidence and confirmed warned and
cautioned statement indeed create problems for the accused's case.
It puts into issue the truthfulness of the accused's version.
The
evidence of Brenda Ndavani, Foster Mutileni, Elizabeth Matsimbi and
Cst Ralph Chivenge was admitted in terms of section 314 of the
Criminal Procedure and Evidence Act [Chapter
9:07]….,.
The
now deceased's wife, Portia Chauke, and the Investigating Officer,
Cst. Russel Chigudu, gave viva voce evidence. This is in addition to
the viva voce evidence of Dr. Keith Lavaia which we have already
alluded to. We now deal with the evidence of Portia Chauke and Cst.
Russel Chigudu.
Portia
Chauke (Portia)
Portia
is the now deceased's wife. She was employed at 18 Cornershop as a
shop attendant and had been married to the now deceased for 5 years.
They had one child. She did not witness how the now deceased was
fatally injured but was well known to the accused.
Portia
Chauke testified that a week before the death of the now deceased the
accused visited her consecutively at her workplace on two days whose
date she could not specifically recall. She said on the first
occasion the accused told her that her husband, the now deceased, was
in love with his wife. As she was not aware of this she simply told
the accused to discuss that issue with the now deceased instead of
her. She, nonetheless, was hurt but did not disclose it to her
husband the now deceased. Portia said the following day the accused
again approached her and made similar allegations. She realized the
accused was angry as he made threats to kill her husband, the now
deceased, saying he would thereafter dispose of his body.
Realizing
the seriousness of the matter she decided to confront her husband,
the now deceased, about the accused's allegations. According to
her, the now deceased was taken aback as he denied being in love with
the accused's wife. Instead, her husband, the now deceased,
indicated that he was proceeding to confront the accused and inquire
about the allegations.
Portia
testified that moments later, after the departure of her husband, she
received word that her husband, the now deceased, had been injured
and was admitted at Davata Clinic.
Since she was still angry about the alleged love affair between her
husband and the accused's wife she could not bother to visit her
husband at Davata Clinic.
She was advised of her husband, the now deceased's, death the next
day. Portia has since gone back to her maiden home.
Counsel
for the accused did not meaningfully challenge Portia Chauke's
evidence in cross examination. It was only in his written closing
submissions that he urged us to disregard Portia's evidence who he
labelled as a liar. We are however at pains to find any plausible
reason as to why Portia would lie in her evidence. Her testimony
clearly explains why the now deceased confronted the accused about
the allegation that the now deceased was in love with the accused's
wife, a confrontation confirmed by the accused himself. How else
would the now deceased have known that the accused was making such an
allegation or harboured such a suspicion. It is clear from Portia's
evidence why the now deceased ended up at the accused's residence.
We are therefore inclined to accept Portia's testimony moreso as we
find no motive for her to fabricate the visits by the accused. The
accused himself does not dispute that he harboured the suspicion that
something untoward was going on between the deceased and his wife.
Cst
Russel Chigudu (Cst Chigudu)
Cst
Chigudu was based at ZRP Chikombedzi and is the investigating
officer.
Cst
Chigudu said a case of assault was first reported against the accused
at Davata police base. As a result, he proceeded to Davata Clinic
where the now deceased was admitted but was unable to get the now
deceased's version of events as the now deceased was seriously
injured and could no longer talk. All he observed was the two
injuries on the now deceased's head, one on left side of the head
which was more of a laceration and the other a deep cut at the back
of the head. Due to the serious nature of the injuries the now
deceased was transferred from Davata Clinic
to Chikombedzi Hospital the same day on 25 October 2016. By then,
other police details had arrested the accused on assault allegations
that same day.
Cst
Chigudu said thereafter he proceeded to the accused's homestead
where he inquired from the accused's wife what had happened. The
accused's wife indicated to him where the accused and the now
deceased were seated discussing the issue; the place the accused took
the hoe handle; the places the now deceased fell after being struck
with the hoe handle on both occasions; and the three (3) broken
pieces of the hoe handle. He later learnt of the now deceased's
death the following day. The accused, by then, was in remand in
prison.
Cst
Chigudu said he then collected the accused from prison for purposes
of further investigations and indications as the accused was now
facing a more serious charge of murder. He said the accused explained
to him that he had suspected that his wife was in love with the now
deceased after he had seen the now deceased and his wife herding
cattle together in a bushy area. Cst Chigudu asked the accused's
wife about the accused's allegations and she denied being in love
with the now deceased.
As
per his investigations, Cst Chigudu said the accused did not allege
that he, the accused, had fought the now deceased but had simply
struck the now deceased with a hoe handle. The same version was
confirmed by the accused's wife. He said neither the accused nor
his wife mentioned that the now deceased had hit his head on a
3-legged pot and that no one mentioned or showed him that 3 legged
pot. In fact, he said both the accused and his wife agreed that the
accused had delivered two blows with the hoe handle which got broken.
The accused's wife added that the accused had thereafter picked a
stone to further attack the now deceased but she restrained the
accused. The accused also made indications at the scene.
The
only issue counsel for the accused took issue with when he
cross-examined Cst Chigudu relates to the language the accused used
during the investigations and indications. Cst Chigudu said although
the accused was conversant with Venda language he also fully
understands and speaks Shona. No other questions were put to Cst
Chigudu.
We
were urged by counsel for the accused, in his closing written
submissions, to disregard Cst Chigudu's evidence as irrelevant to
what is in issue.
We
do not share that view.
Cst
Chigudu's testimony corroborates what the accused said in his
confirmed warned and cautioned statement on the material aspect of
how the now deceased was injured. His testimony contradicts the
accused's version. Further, it is incorrect that all what Cst
Chigudu said is hearsay evidence. His evidence explains how the
broken pieces of the hoe handle were recovered and the nature of the
injuries sustained by the now deceased. This is not disputed by the
accused. His testimony further discounts the accused's version that
the now deceased hit his head against a 3 legged pot. Again, we are
inclined to accept Cst Chigudu's evidence.
The
accused's evidence
We
have already alluded to
the accused's Defence Outline - which version he adopted in his
evidence. The accused's version is simply that it is the now
deceased who came to the accused's homestead on 25 October 2016
asking the accused about the gossip that the now deceased was in love
with the accused's wife. He said the now deceased seemed poised for
a fight as he had a hoe handle and was without a shirt.
What
is missing from the accused's version is how this gossip had
started in the first place.
The
State case is clear that it is the accused who first made such
allegations to Portia Chauke, the now deceased's wife, which
prompted the now deceased to proceed to the accused's residence to
ask him about such allegations.
The
accused's evidence is that he felt disrespected by the now deceased
to be approached at his residence and asked about such an issue.
We
are pains to appreciate why the accused would feel disrespected if
all what the now deceased wanted to know was the basis of the
accused's suspicions.
What
we find intriguing is the accused's version that during this
discussion the accused's wife said the now deceased had raped her.
The accused said his wife said while she was herding cattle in the
bush with the now deceased, the now deceased had dragged her into
some bush where he caused her to bend and forcefully had sexual
intercourse with her. The accused said the now deceased did not
dispute this but simply retorted that the sexual act hardly lasted
five (5) minutes thus further provoking the accused, resulting in an
argument.
What
we find baffling is that how would the accused had known about this
alleged rape if his wife had not hitherto disclosed to him the sexual
act? Further, if this is what had happened and was a secret between
the now deceased and the accused's wife; why then would the now
deceased approach the accused.?
The
accused's version of events is not only illogical but cannot
possibly be true. This explains why it is different from the version
the accused gave in his confirmed warned and cautioned statement.
In
relation to the assault, the accused's version is that it is the
now deceased who took the hoe handle during the argument intending to
strike the accused. The accused said he then dis-armed the now
deceased. The accused said he then struck the now deceased on the
left side of the head with the hoe handle causing the now deceased to
fall on his back. The now deceased bled from the head as he hit his
head against a 3 legged pot. The accused denied that the hoe handle
he used got broken.
We
are inclined not to accept the accused's version for a number of
reasons.
Firstly,
if this is what had transpired the accused would have told Cst
Chigudu such a version and include it in his confirmed warned and
cautioned statement on how the now deceased was injured. The accused
would not have failed to make such material disclosures which were
central to the police investigations. The conclusion we make is that
this latter version by the accused is a sanitised one and an
afterthought.
Even
if we were to accept the accused's version we wonder why the
accused alleges he acted in self-defence as defined in section 253(1)
of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
If
the accused had disarmed the now deceased of the hoe handle it meant
he had he had thwarted the alleged attack? Was it then reasonable, in
the circumstances, to proceed to strike the unarmed now deceased with
a hoe handle in the head?
What
makes the accused's version clearly improbable is that he hit the
now deceased on the left side of the head; how had the now deceased
fell on his back? The laws of motion dictate that the now deceased
would, in all probabilities, have fallen on his side.
It
is also crucial to note that the issue of the 3-legged pot only
arises now in the accused's evidence in court. The bottom line is
that the accused's version factually falls far short of meeting the
requirements of self defence in our law. Such a defence can therefore
not succeed in the circumstances.
Our
view is that although no eye witness testified on how the now
deceased was fatally injured the accused himself concedes that he
struck the now deceased on the head with the hoe handle.
We
have already discounted the possibility that the now deceased fell
onto a 3 legged pot. The accused's motive was clear from Portia
Chauke's evidence. He harboured unfounded suspicion that something
improper was going on between his wife and the now deceased. Indeed,
the suspicion was baseless hence the accused's various explanations
that he suspected a love affair but later on said his wife was raped.
The
accused has not discharged the evidential onus thrust upon him in
terms of section 256(1) of the Criminal Procedure and Evidence Act
[Chapter
9:07]
for him to successfully distance himself from his confirmed warned
and cautioned statement….,.
Our
conclusion is that the accused has dismally failed to lay the factual
basis that he acted in self-defence. In fact, that assertion is
clearly false. The same goes for the accused's allegation that he
was provoked as is provided in section 239(1) of the Criminal Law
(Codification and Reform)
Act [Chapter
9:23]
which
is a partial defence to a charge of murder. The accused has dismally
failed to show how he was provoked by the now deceased but has sought
to mislead the court as regards the basis of the alleged provocation.
No wonder why the accused blows hot and cold by alleging a love
affair between his wife and the now deceased but in the same breath
alleges forced sexual act.
We
are satisfied that the accused struck the now deceased with the hoe
handle twice on the head. The accused delivered two blows, one on the
side of the head and the other at the back of the head. Severe force
was used as the hoe handle broke into three (3) pieces. This resulted
in basal skull fracture which is the proximate cause of the now
deceased's death. Whatever the accused's motivation was he did
realize
that there was a risk or possibility that such a brutal assault may
cause death but nonetheless proceeded to assault the now deceased in
that manner oblivious of such a risk or possibility. We are inclined
to find the accused guilty of murder with constructive intent.
VERDICT:
Guilty of contravening section 47(1)(b) of the Criminal Law
(Codification and Reform) Act [Chapter 9:23]:- Murder with
constructive intent.
