Criminal
Trial
KAMOCHA
J: The
accused is a young woman aged 23 years who pleaded not guilty to the
murder of her 1 year 8 months old child. It being alleged that on 24
August, 2013 and at Village Rushwaya, Chief Njelele, Gokwe South in
the Midlands Province, she unlawfully caused the death of her child
Tanaka Sambaza by throwing her into a well intending to kill her or
realizing that there was a real risk or possibility that her conduct
may cause death and continued to engage in that conduct despite the
risk or possibility.
The
state outline and defence outline were read and produced as exhibits
one and two respectively and shall not be reproduced here again.
I,
however, reproduce her confirmed extra curial statement exhibit 3
which reads thus:
“I
do admit the charged levelled against me of killing my minor. I went
to the garden carrying my baby on my back. When I arrived at the
garden I removed my baby from my back and threw her into the well
while still alive. I then left the garden and went home living the
baby drown in the well. I threw her into the well for I was failing
to support the child because of poverty and that my second husband
who married me was not comfortable to take care of the child.”
I
make note that the accused's statement is detailed and she gives
the reason why she ended up killing her child.
The
last exhibit was exhibit 4 the post mortem report. The doctor who
examined the remains of the deceased concluded that death was due to;
(a)
asphyxia;
(b)
bronchoaspiration; and
(c)
due to drowning.
The
evidence of 4 of the five witnesses listed on the state outline was
admitted as it appears in the state outline by consent of the
accused's legal representative in terms of the provisions of
section 314 of the Criminal Procedure and Evidence Act [Chapter
9:07]. The witnesses are: Edmore Mazungunye, Moses Muzvidzwa, Reggie
Pikayi and doctor S. Pesanai.
What
that means is that evidence of the police officers who recorded the
above statement from the accused is not in dispute and is therefore
common cause. So the accused made the statement freely and
voluntarily without any pressure being brought to bear upon her.
What
is contained in the statement is what happened.
Viva
voce
evidence was led from Shylet John.
Her
evidence was that she was 21 years old and lived at Rushwaya village
under Chief Njelele in Gokwe. She knew the accused as a neighbour in
the village. The deceased was accused's daughter. Sometime in
August 2013 accused visited her maternal uncle. The witness went to
see the accused at her maternal uncle's homestead and the accused
introduced her two children to her namely Tanaka Sambaza the deceased
and Ivylet Mike. The accused went on to tell her that she was married
in the village.
The
accused approached her on a subsequent occasion and requested her to
accompany her to Gokwe hospital to have Tanaka Sambaza medically
attended to as the accused alleged that she was not feeling well.
They proceeded to hospital but the deceased was said to have been
well on examination so they returned home and arrived back around 4pm
and parted ways.
The
next day when she visited the accused at her maternal uncle's
homestead the uncle was sick. The witness observed that Tanaka
Sambaza the deceased was not present with the accused. Only Ivylet
Mike was present. She enquired from the accused where the deceased
was but the accused told her that the deceased had been taken by a
relative to Kadoma.
I
observe that the accused was deliberately being untruthful.
At
that stage she had already thrown the toddler into the well. Because
she had deliberately thrown the toddler she could not reveal that to
Shylet.
The
witness went away to her home.
Two
days later she was approached by CID details who were making
inquiries. They first asked her about her own child she told them
that her child was there and was sleeping. She was then informed
about the body of a child who was found dead in the well. They took
her to their offices where they showed her the body and she
identified the body as that of the deceased.
When
the CID details proceeded to accused's uncle's homestead they
were told that accused had left the area and had gone to Horomba
village.
The
evidence of this witness was not seriously challenged in
cross-examination and remains intact.
This
court makes a finding that the accused lied to Shylet when she asked
about the deceased. It was not true that deceased had been taken to
Kadoma by a relative. The truth was that she had left the deceased
drowning at the well after she had thrown her therein.
The
accused gave viva
voce
evidence.
She
wanted the court to believe that the deceased accidentally fell into
the well and that on discovering that she became shocked due to her
pregnancy and did not even go to check in the well to confirm if the
child was indeed in there. She did not even report the matter to her
maternal uncle. She alleged that she had made a report to one Michael
Marembo who told her that he was not prepared to do anything about
the matter.
That
is highly unlikely and is untrue.
When
asked why she did not tell her maternal uncle she was staying with
she said she could not do so because he was sick. She only told the
uncle after she had been arrested by the police in connection with
this matter which was three days after the event.
The
accused was a bad witness who was not worth to be believed. Her
story in court was a deliberate falsehood which is hereby rejected.
The
truth is contained in her confirmed extra curial statement. Her
confession is supported by ample evidence
aliunde.
The
evidence of Edmore Mazungunye was that he found the body of the
deceased floating in the well on 28 August 2013. The body of the
deceased was naked.
So
the accused undressed the infant in preparation to throw it in the
well.
What
is clear is that she planned the murder of her child. She explained
that she did so due to poverty and the man who had married her was
not prepared to support her children from other men.
Her
aim and object was to kill her child and she proceeded to do so. She
is guilty of murder with actual intent.
Sentence
The
accused's legal representative put forward all that needed to be
said on her behalf. She has been in custody ever since she was
arrested on 28 August 2013. That should be taken into account.
The
accused found herself in a difficult situation.
It
is clear that she went astray by trying to save her new marriage by
murdering her daughter the deceased.
A
clear and loud message must be sent out there that such offenders
will be dealt with adequately. A young life was unnecessarily lost.
The accused did that only to save her selfish interest.
This
court is the upper guardian of all minors and must ensure that their
lives are not used to save the selfish interests of their mothers.
Justice
must be tempered with mercy.
She
is a young woman offender who has already served 1 year 5 months
pre-trial incarceration through no fault of hers.
In
the result I think a sentence of twenty-one years imprisonment will
meet the justice of this case.
Prosecutor
General's Office,
State's
representative
Hore
& Partners,
defence's representative
