This
is an appeal against the judgment of the High Court sitting at Hwange
dated 9 November 2017.
It
is common cause that the appellant was arraigned before the court a
quo and charged with murder. It was alledged that on 7 October 2014,
and at Zenka Village, Binga the appellant wrongfully, unlawfully and
intentionally killed Fortunate Mutale.
The
appellant tendered a plea of not guilty to the charge. After a full
trial he was convicted of murder with actual intent. The court found
that the murder was committed in aggravating circumstances and the
appellant was sentenced to death.
Whilst
the appellant noted an appeal against sentence only, in view of the
penalty of death imposed upon the appellant, it is imperative that
the appeal should lie against both conviction and sentence.
In
this regard we therefore requested for supplementary submissions from
counsel to address us on the question of conviction. We are indebted
to both counsel for their prompt submissions.
The
facts giving rise to this matter may be summarized as follows:
The
appellant and the deceased were husband and wife. At the time of the
commission of the offence they had been married for a period of 6
years and had 2 minor children. On 7 October 2014 the appellant and
the deceased had an altercation. The appellant armed himself with an
axe and struck the deceased several times. The deceased died as a
result of the injuries sustained.
A
postmortem report was compiled and it gave the cause of death as;
1.
Spinal cord injury.
2.
Decapitation.
3.
Chop wound.
After
decapitating the deceased's head, the appellant placed it in a
cardboard box under the bed in his bedroom. The body of the deceased
was left lying in a pool of blood in the yard outside the kitchen
hut.
In
his Defence Outline, the appellant stated that he saw a man leaving
the kitchen hut where his wife was sleeping. Upon questioning her
about who the man was, he was provoked by her response. He picked up
an axe and struck the deceased.
He
also alleged that the deceased was having an adulterous affair with
the man in question.
The
court a quo did not believe the appellant's version. In coming to
this conclusion the court took into account the evidence of the State
witnesses who stated that as far as they were aware the appellant and
the deceased were happily married. The appellant's grandmother, and
a neighbour, denied that the deceased was involved in any extra
marital affairs.
The
court also considered the fact that the appellant gave conflicting
stories. He abandoned his Defence Outline and stated in his evidence
in chief that he found the deceased with an unknown man in the
kitchen hut. He further stated that they both attacked him and he
armed himself with an axe and struck the deceased in an effort to
defend himself.
This
story was different from his confirmed warned and cautioned statement
where he made no mention of the deceased's infidelity or alleged
attack by the deceased and the unknown
man.
When
questioned further he failed to give a coherent account of what had
transpired on the night in question.
The
court a quo concluded that the appellant was not being truthful and
that he had killed the deceased in cold blood.
Counsel
for the appellant conceded, in his supplementary heads of arguments,
that the court was correct in finding the appellant guilty of murder
with actual intent. He submitted that repeatedly striking the
deceased with an axe and decapitating the deceased was proof that he
intended to kill the deceased.
We
are satisfied that the court a quo cannot be faulted for convicting
the appellant with murder with actual intent to kill. The assault
upon the deceased was vicious and protracted. The injuries were
inflicted by an axe and directed at the deceased's head. The
appellant struck the deceased no less than 11 times.
The
appellant's version of events was contradictory indicating that he
was changing his story as the trial progressed.
The
conviction of murder with actual intent is accordingly confirmed….,.
In
respect to sentence, it has been submitted, on the appellant's
behalf, that the sentence of death is so excessive that it induces a
sense of shock.
Counsel
for the State submitted that the sentence was appropriate in the
circumstances. She stated that the appellant had not challenged the
finding by the court a quo that the murder was committed in
aggravating circumstances in terms of section 47(2)(c) of the
Criminal Law (Codification and Reform) Act [Chapter 9:23].
Section
337 of the Criminal Procedure and Evidence Act [Chapter 9:07]
provides that the court may pass a sentence of death upon an offender
convicted of murder if it finds that the murder was committed in
aggravating circumstances.
The
exercise of discretion by the court a quo, to impose the death
penalty in the circumstances of this case, cannot be impugned.
Accordingly,
we are of the unanimous decision that the appeal against both
conviction and sentence lacks merit.
For
these reasons the appeal is hereby dismissed.
