Criminal
Trial
KAMOCHA
J: The
31 year old accused was charged with murdering his 19 year old
girlfriend on 16 November 2013.
It
being alleged that on that day he had a misunderstanding with her and
struck her with a stone on the head close to the right ear intending
to kill her or realizing that there was a real risk or possibility
that his conduct may cause death and continued to engage in that
conduct despite the risk or possibility.
It
was alleged that, that took place around 0930 hours along a foot path
near Torwood Cemetery, Redcliff, in the Midlands Province.
When
the charge was read to the accused he told the court that he admitted
it. But when the court asked him if he intended to kill the deceased
his reply was that he admitted causing the death of the deceased
without the intention of killing her.
A
plea of not guilty was accordingly entered on behalf of the accused
and his defence counsel advised the court that the plea was in
accordance with the instructions the accused had given him.
The
matter proceeded to trial.
The
state read and produced its outline as exhibit one which I do not
intend to reproduce here. I, however, do reproduce infra
the defence outline which was also read and produced as exhibit 2. It
reads thus:
“The
accused will plead not guilty to a charge of murder, but will tender
a limited plea. He pleads guilty to culpable homicide.
The
accused and the deceased were lovers.
On
16 November 2013, the accused visited the deceased. The deceased
asked the accused to accompany her to the bush where she intended to
relieve herself. When they were in the bush, it was then that the
deceased advised the accused that she was pregnant and that the
accused was responsible. The accused questioned the deceased how she
was sure that it was his pregnancy when the deceased had another
boyfriend who was known to the accused. The deceased insisted that
she was going to go with the accused to his residence and stay with
him as husband and wife.
The
accused then walked away, leaving the deceased behind. The deceased
followed him.
This
angered the accused who slapped the deceased across her face once
with the back of his hand and once again across the face with the
inside of his hand. The deceased staggered and started walking away.
The
accused at that point was consumed with anger, lost his composure,
restraint and proper thinking, involuntarily picked up a stone with
two hands and struck the deceased once on the head, and she fell down
and it is probably during the fall that she broke her leg.
After
falling down, she started to bleed from the nose and the ears,
breathing heavily and having difficulties in breathing. The accused
panicked and fled from the scene, and went to seek refuge in
Chitungwiza, Harare, from where he was subsequently arrested by
police.
The
accused will say that he never had had any premeditated intention to
strike or attack or harm the deceased. He acted on the spur of the
moment. He acted out of anger and loss of self control.
Accused
accepts the evidence of all state witnesses.
Emphasis added
Wherefore
the accused prays that he be acquitted of the charge of murder and
that his limited plea be accepted.”
The
next exhibit was exhibit 3 - the accused's confirmed extra curial
statement which was a confession read as follows:
“I
have understood the caution. I admit to the charge being levelled
against me that I assaulted Thandiwe Ndlovu with a stone once on the
right side of her head which caused her death. When she fell down
that is when I ran away.”
The
4th
exhibit was a post mortem report compiled by the doctor who examined
the remains of the deceased. The doctor concluded that the cause of
death was;
(1)
subarchnoid haemorrhage;
(2)
blunt force trauma to the head;
(3)
homicide.
Exhibit
5 was the stone which the accused used to strike the deceased on the
head.
It
is a very heavy stone weighing 12,67kg. Cannot be picked up with one
hand due to its shape and weight. It is still blood stained.
The
state then led viva
voce
evidence from Kelvin Mutangi.
His
evidence was common cause and was not contested. He is the one who
first saw the deceased shortly after she had been attacked and went
to report to the police. When he returned with the police to where
she lay groaning she had died.
The
evidence of all the other witnesses listed in the state outline was
admitted as it appears in the state outline in terms of section 314
of the Code.
The
accused in his defence outline had already indicated that he accepted
the evidence of all state witnesses.
It
must be noted that the accused's defence outline amounted to a
confession with minute details of what occurred.
It
reveals that he was the aggressor right from the onset. He hit the
deceased with the back of his hand and with an open hand. As the
deceased started to stagger and walked away he picked up the stone
exhibit 5 with both hands and aimed a blow at her head. The deceased
was unarmed and defenceless. She paused no danger to accused.
The
accused sought to suggest that he did not know what he was doing as
he had been possessed by a certain evil spirit.
That
does not need any serious consideration and is hereby rejected as it
does not make sense.
Similarly
his suggestion that he was provoked by the fact that deceased
informed him that he had impregnated her is also devoid of any merit
and must be rejected.
He
admitted that as lovers he and deceased used to make love. A natural
consequence of lovers indulging in making love is pregnancy.
His
legal representative correctly, in my view, advised the court that he
did not support the accused's suggestions. He further conceded that
he did not persist with the limited plea of culpable homicide and
abandoned it.
He
then agreed with the state counsel that the accused was in the
circumstances guilty of murder dolus
eventualis.
In
the result, I am in agreement with the legal practitioners and find
accused guilty of murder with constructive intent.
Sentence
The
accused's legal representative has said all that needed to be said
on his behalf. That will be taken into account. In particular that
accused has been in custody for 1 year 3 months through no fault of
his.
A
look at the other side of the coin shows that a young life was
unnecessarily lost. Her crime was the fact that she told the accused
that she was pregnant and he was responsible. Her pregnance was 8
weeks. The accused was the aggressor right through. He killed her
because he did not want to shoulder the responsibility of bringing up
the child. The accused is very irresponsible and must be adequately
punished.
The
court would have sentenced him 21 years but due to the fact that he
has been in custody for 1 year 3 months through no fault of his. This
court's sentence is 20 years imprisonment.
Prosecutor
General's Office,
State's representative
Dzimba,
Jaravaza & Associates,
defence's representative
