The
accused person faces a charge of murder, it being alleged that on 7
October 2014 he chopped his wife, Fortunate Mutale, decapitating her
head with an axe.
Documentary
evidence was tendered in the following nature, State summary, Defence
Outline, the post-mortem report, the accused's confirmed warned and
cautioned statement, and the psychiatrist's report. They were duly
marked. The axe that was allegedly used in the commission of the
offence was also tendered and duly marked.
The
State called two witnesses who gave viva voce evidence. They
witnessed the aftermath of the deceased's death. The first witness
was called by the deceased who was screaming alleging that the
accused was killing her. She went there to find the
deceased's decapitated body aside a pool of blood with no head. The
second State witness also found the deceased's body aside a pool of
blood with no head. The deceased's head was in a box in the bedroom
hut underneath the bed. It was recovered by the police.
The
evidence of Cuthbert Shonhiwa, Shadreck Tanikai, and Dr S. Pesanai
was admitted into the court
record in terms of section 314 of the Criminal Procedure and Evidence
Act [Chapter 9:07].
The
accused person murdered the deceased in the absence of any other
witness. It is his version that the court has to assess in a bid to
establish what transpired.
In
his confirmed warned and cautioned statement, he admits to killing
the deceased. He says;
“I
admit to the allegations of killing Fortunate Mutale on the 7th
of October 2014 around 2100 hours. By striking her with an axe on the
head, and once on the thumb of the right hand, then several times on
the neck, until I chopped off the neck, she then died. I took the
head and put it in the hut and closed the door.”
In
his evidence in court he sought to disown the confirmed warned and
cautioned statement. Its important to note that in his confirmed
warned and cautioned statement he does not mention any infidelity on
the part of his wife. The court is entitled to draw an adverse
inference on the failure to mention this crucial point at the time
when his memory was still fresh.
His
grandmother, and the other witness, who is a neighbour, knew the
accused and the deceased to have a peaceful marriage and they never
heard of her extra marital affairs as alleged. The accused himself
failed to explain to the court how many boyfriends the deceased had
as he alleged infidelity in his Defence Outline.
The
accused also failed to explain precisely what happened on the night
in question.
In
his Defence Outline, paragraph 6, he says as he approached the
kitchen, he saw a man leaving and upon querying the deceased, he was
provoked. However, in court he says he entered the kitchen and found
the deceased with a man. He could not explain precisely to the court
what happened as he entered. He says this man attacked him with
fists, and he, in turn, turned on the deceased as he did not care
much about this man. He could not clearly explain at what stage he
introduced the axe. The accused had so much difficulty in presenting
the scenario that obtained on the night in question because he is
trying to create an event that never happened hence the difficulty.
A
concoted story will not stand the test of cross examination in this
court as usual. That's the predicament the accused finds himself
in.
He
tries to portray his marriage as a troubled one in his Defence
Outline. But, in court, he failed to sustain that point and even
admitted that there were no other problems save in the fateful day.
He also gives various reasons for going to the kitchen, firstly, in
his evidence-in-chief he said he was going to check on his wife and
children, and, later on, when asked by the court, he said that he had
gone there to get his food. If his food was in the kitchen, and the
deceased knew he would come for his food, obviously, would she then
entertain a man in there before the accused would have taken his
food?
The
accused is a liar, he is the only person who knows why he committed
this callous murder on the deceased. He is deliberately hiding the
true reason to the court and trying to throw in various defences,
first, that of provocation, which when he realized he could not
sustain any longer, he changed to self defence.
Even
if one were to follow the fabricated defence of self; what was he
defending himself from the deceased, yet he told the court that it is
the stranger who fought him with clenched fists and he then turned on
the deceased instead of hitting back the person that was attacking
him?
The
accused is lying, and he is clearly a very bad liar who tries to
build his case as it goes.
The
accused killed the deceased in cold blood, in a very callous way,
chopping a person's head with an axe several times until when the
head is decapitated can only mean one thing - that he desired death.
Death was his aim and object. The accused is accordingly convicted of
murder with actual intent.
