Criminal
Trial
KAMOCHA
J:
The
42 years old accused pleaded not guilty to the murder of his wife
which was alleged to have occurred on 29 December 2013 at House
Number 400B/6 Mbizo, in Kwekwe in the Midlands Province.
He
was alleged to have caused her death by striking her on the head and
all over the body several times with a shock absorber, 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.
The
State Outline was read and produced as exhibit one.
Exhibit
2 was the defence outline which was also read for the record and was
produced.
I
do not propose to read exhibits 1 and 2 all over again.
The
accused's confirmed extra curial statement was produced as exhibit
3 which was brief and reads thus:
“I
admit to the charges levelled against me that I assaulted and killed
Nyarai Moyo. I struck her once with the metal shock absorber on her
head which is what I think caused her death.”
It
should be noted that his two defences which appear in his defence
outline were not included in his confirmed statement.
The
defences were:
(a)
provocation; and
(b)
self defence.
I
shall deal with them later infra
in this judgment.
Exhibit
4 was a post mortem report by Doctor Maurice Gonzales who examined
the remains of the deceased.
He
observed a 17cm injury on the left parietal area, a periorbital
haematoma, and bruises on the upper and lower limbs.
The
doctor opined that death was due to brain damage; a depressed skull
fracture following an assault.
The
fifth and last exhibit was a shock absorber used by accused to
assault the deceased which is 65cm long and weighs 5.490kg. The
court noted that the shock absorber was from a heavy vehicle.
The
evidence of 5 of the 7 witnesses listed on the state outline was
admitted by consent of the defence counsel as it appears in the state
outline in terms of the provision of section 314 of the Criminal
Procedure and Evidence Act [Chapter 9:07].
Viva
voce
evidence from two witnesses was that the accused was their neighbour
who has been in the area for about 1 and a half years. They said
deceased was his wife. Sadly, the couple used to have frequent
fights.
On
the fateful day they had one of those fights.
They
heard a sound of a loud bang. On going to investigate it was
discovered that the accused was smashing his car. Deceased had gone
into the car and appeared to have locked herself there.
The
accused was seen assaulting the deceased hitting her indiscriminately
with some object which they later learnt was a shock absorber.
They
called the police who when they arrived knocked at the accused's
door. The accused would not allow them in. The police had to tell him
that they were armed with a firearm and would break the door and
enter.
Accused
then opened the door. When asked why he was beating up his wife
accused did not say anything until the police took him and his wife
away.
Accused
never told the police that he was provoked by the fact that the
deceased had confessed that she had been talking to one Lloyd, who
was her boyfriend, on the phone.
Neither
did he mention to the police that the deceased had got hold of his
private parts and he was defending himself.
These
defences were never even mentioned to the officer who recorded his
extra curial statement and the magistrate who confirmed the
statement.
There
is uncontroverted evidence that he was properly warned and cautioned
and he made the statement freely and voluntarily.
The
accused's explanation was that when asked to explain why he was
beating up his wife he did not find it necessary to mention these
defences as he had decided to raise them at the police station when
making his statement.
When
that stage came he decided to mention those defences in court.
When
he was before a magistrate for confirmation of the statement he made
up his mind to raise the defences at this trial in the High Court.
The
accused's explanation does not need any serious consideration as it
is patently false.
The
defences are hopeless after thoughts and are hereby rejected.
The
deceased never made any confession about having an affair with one
Lloyd. Neither did she catch hold of his manhood.
The
accused perpetrated a prolonged assault on the deceased using a wet
stick which he called a switch all over the body. He struck her with
exhibit 5 the shock absorber on the head a very vulnerable part of a
human body.
The
accused was a deliberate liar who is not worth to be believed.
The
defence counsel fairly conceded in my view, that in the light of the
evidence that is before this court the accused was guilty of murder
with constructive intent and did not persist with the limited plea of
culpable homicide.
In
the result this court finds the accused guilty of murder with
constructive intent.
Sentence
All
that needed to be said on the accused's behalf was well presented
by the accused's legal representative. In particular, accused had
spent 1 year pre-trial incarceration.
On
the other hand the turning of family homes into war zones cannot be
countenanced moreso where human life is lost in the process. A clear
and loud message must be sent out there that perpetrators of such
crimes will be adequately punished.
The
accused perpetrated a vicious and prolonged assault on the deceased
who was defenceless. Such gratuitous violence will never be
tolerated.
This
court always guards jealously the sanctity of human life. Accused
would have been sentenced to no less than 19 years had it not been
for the fact that he has spent 1 year pre-trial imprisonment through
no fault of his.
It
had been submitted that his in-laws had demanded cattle and he paid
compensation of 6 head of cattle. His uncle said that a longa
manu
delivery
of 8 cattle was made – 2 were sold by the in-laws and 6 were still
at the home of the accused's uncle.
The
compensation in fact amounted to extortion. It was not a willing one.
I treat it as no compensation.
In
the result the justice of this case will be met by a sentence of 18
years imprisonment.
Prosecutor
General's Office,
State's representative
Chitere,
Chidawanyika & Partners,
defence's representative
