The accused is charged with the crime of murder as defined in section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
The accused pleaded not guilty to the allegations, that, on 23 October, he unlawfully caused the death of Modester Chikaka by pouring paraffin over her body and setting her alight with the result that Modester Chikaka suffered severe burns all over her body which in turn led to her death on 26 October 2011.
The accused elected to give a Defence Outline in support of his plea of denial.
The upshot of his Defence Outline was to the effect that the deceased poured paraffin on herself and set herself alight and that he did not pour paraffin upon the deceased nor setting her alight. He outlined that he confronted the deceased in connection with her “suspected numerous extra marital affairs” since the deceased was his wife. He further outlined that the deceased in fact poured paraffin from a stove upon herself and “somehow” went ahead to and lit herself despite the accused's attempt to stop the deceased from doing so.
He stated that the deceased, after setting herself alight, tried to “embrace the accused person intending to cause harm to him but he managed to slip away going out of the room.”
He outlined that he assisted the deceased to “put off the fire by pouring some water on her at the water tape which was near the house.”
He also further “extinguished the fire which was burning inside the house in question.”
In manner of speaking, the accused's defence was simply, that, the deceased intentionally brought about her death, or committed suicide, by pouring paraffin upon and setting her body alight.
The State opened its case by tendering and producing, by consent of the accused, two affidavits sworn to, respectively, by doctors Ndekwere and Munhumeso.
The affidavit by Dr Ndekwere was produced as exhibit 1.
He examined the now deceased following her transfer from Chivhu Hospital to Harare Hospital on 23 October 2011 around 10:20 hours. He observed and commented that the deceased had suffered 76% open flame burns on her torso, lower, and upper limbs, as well as on the neck. The doctor recommended that the patient should be admitted in the Burns Ward at the hospital.
Exhibit 2 was also a medical affidavit prepared by Dr Munhumeso who examined the now deceased on 23 October 2011 around 0300 hours at Chivhu Hospital. He observed that the now deceased had sustained paraffin burns on the chest, abdomen, and both upper limbs. He stablilized the patient and caused the patient's transfer to Harare Central Hospital for further management after noting the seriousness of the burns which he assessed to be about 35% surface burns.
Another exhibit produced by consent was the accused's confirmed warned and cautioned statement as exhibit 3.
The statement was confirmed by the magistrate on 16 November 2011 following its recording on 2 November 2011.
The accused's statement was to the following effect, quoted verbatim:
“I have understood the caution, but I am denying the charges. On the day in question, I arrived at Modester Chikaka's house at around 0130hrs. She opened the door and I went inside the house and set on a chair. After greetings, I then told her that I wanted to discuss some stories, which were circulating in town, of her affairs with other men. I told her that I was not happy about that because it was embarrassing me.
After I had told my story, that is when Modester Chikaka woke up from the bed where she was sleeping and put on her skirt and blouse, sat on a chair on the other side of the table. She did not respond to any of the questions I put to her.
She got up from where she was seated and picked up a paraffin stove, which was next to the bed, opened it, and poured the paraffin on her clothes. She put the stove on the floor. I then stood up and went to where she was after I had noticed that she was looking for some matches. When I grabbed her, she was already having some matches in her hand. I got hold of her hands so that she could not lit the matches.
We struggled with each other in the house until I managed to take the matches from her.
She went and sat on a chair which she had been sitting on and I also sat on a chair. We spent about ten to fifteen minutes while I was questioning her about the story but she was not responding.
Whilst I was sitting, Modester Chikaka got up from where she was seated and picked another matches and struck a matchstick before I got close to where she was and lit herself and embraced me whilst she was screaming. I opened the door while she was still embracing me and she was crying. When I opened the door, the fire burned heavily. She then ran to the tap where she poured some water on her.
I followed her to the tap, helped her to extinguish the fire.
I then went into the house to extinguish fire which was burning there and that was when Modester Chikaka informed her neighbours that I had burned her. I did not want to dispute with her because it was a waste of time. I then boarded Cst Miti's car and went to the hospital. We further visited the police station where I was arrested and Modester Chikaka was taken to the hospital.”
It is important to note the following significant points and conclusions from the statement:
(i) The deceased had already retired to bed at the time that the accused arrived at the deceased's house around 0130 hours. The deceased opened the door, let the accused inside, and the latter sat on a chair.
(ii) The accused confronted the deceased to discuss rumours circulating in Chivhu town, that the deceased was having affairs with other men; such rumours being an embarrassment to the accused and over which he was unhappy.
(iii) The deceased did not respond to the accusations, but, instead, left the bed where she had gone back to sleep, put on her skirt and blouse and sat on a chair on the other side of the table from which the accused sat.
(iv) The deceased, without saying anything, stood up from the chair, picked up a paraffin stove which was next to the bed, opened it, and poured the paraffin on her clothes.
(v) The accused stood up from his chair after noticing that the deceased was looking for some matches. He managed to grab the deceased's hands which were holding some matches so that she would not light the matches. The accused and the deceased struggled with each other and the accused succeeded in taking away the matches from the deceased.
(vi) After the accused had dispossessed the deceased of the matches, the two returned to their sitting positions on the chairs which they had been sitting on before the struggle for possession of the matches.
(vii) For the next ten to fifteen minutes, the accused continued to interrogate the deceased in regard to the same rumours, that the deceased had boyfriends. The deceased did not respond to the accusations.
(viii) As the accused was still seated, the deceased got up from where she was seated, picked up another “matches” struck a match stick and lit herself before the accused could get close to where the deceased was.
(ix) The deceased, after setting herself ablaze, embraced the accused whilst she was screaming. The accused was able to open the door as the deceased was still in an embrace on him and she was crying.
(x) When the door was opened, the fire burned heavily. The deceased then ran to the tap where she poured water on herself. The accused followed and assisted the deceased to extinguish the fire.
(xi) The accused returned to the house, went inside, and extinguished the fire which was burning there. It was then that the deceased informed her neighbours that the accused had burnt her.
(xii) The accused did not dispute the accusation because to him it was a waste of time.
It was therefore clear, on the accused's account, as given to the police, that, the deceased and the accused were engaged in a disagreeable discussion when the tragedy took place.
The accused's explanation to the police was therefore simply, that, when he confronted the deceased about rumoured affairs which the deceased allegedly had with other men the deceased neither denied the accusation nor admitted them. Her response was to open the paraffin stove, pour paraffin upon herself, and attempting to burn herself before being disabled by the accused where after she sat back on the same chair that she had been seated on before her failed attempt to burn herself.
Another follow up interrogation of 10–15 minutes resulted in the deceased reaching for another box of matches and setting herself alight before embracing the accused whilst screaming.
The accused opened the door to the house/room whilst the deceased still held him in an embrace. The deceased then ran to the water tap and poured water on herself with the accused following and assisting her. The deceased reported that the accused had burnt her, an accusation which the accused did not contest because to do so would have been waste of time.
At this stage, it is necessary to note, that, the accused's confirmed statement, whose contents have been outlined, will, as provided in section 256(1) of the Criminal Procedure and Evidence Act, be taken as evidence against the accused, there being no challenge to its admissibility or authenticity.
Accordingly, the statement will be considered together with all other evidence adduced by the State in assessing the sufficiency of evidence led in support of the charge or allegations against the accused.
The State also led evidence from three witnesses, namely, Tawanda Miti, Nyasha Tsopotsa, and Sekai Guramatunhu. The summary of the evidence of these witnesses was as outlined hereunder:
Tawanda Miti
Is a police officer with C.I.D and is based at Southerton Police Station, Harare. When the incident in this matter took place, he was stationed at Chivhu police station. He knew both the deceased and accused as lovers. The deceased and the witness shared the same residence where they lived in adjoining rooms sharing the same veranda. The residence was in the form of a standard block with partitioned rooms each room with its entrance door which was accessed from the veranda. When one is standing on the veranda, the doors to the rooms lead into the rooms from the veranda. The deceased occupied one room at the furthest end. The witness used the next two rooms after the deceased's room and the fourth room door led into the common washroom and toilet. Behind the toilet was a water tap.
There was no dispute as to the make-up of the residence and the rooms.
He testified that he had retired to bed with his wife when he woke up around 2:00am to screaming by a person calling out his name. He got out of bed, opened the door, and got out of his room. He then saw fire flames inside the deceased's room. He was shocked by the spectacle. He then saw the accused arriving on the veranda and he ordered the accused to put out the fire. He next observed the deceased coming from behind the residence in the direction where there was a water tap. He observed burns on the deceased.
He then heard the deceased to say to the accused: “why did you not pour paraffin on yourself as well since you said that you wanted both of us to die?”
The deceased went on to tell the witness that the accused had poured paraffin on her and lit her up.
The deceased also said that the accused had the matches on him, to which the accused responded that the deceased had poured paraffin on herself.
The witness, at this stage, instructed his wife to cover the deceased with a blanket after where the witness provided his vehicle and ferried the deceased and accused to the police station where the accused was placed under arrest and the deceased ferried to hospital.
The State counsel asked the witness to repeat the exact words which the deceased reportedly uttered to the witness when the witness came out of his room to check on what was happening. The witness said:
“She said accused took paraffin from a paraffin stove and poured on her. He then took a matchstick, lit it, and threw it at me. She then went out of the house to pour water on myself whilst screaming.”
The witness further repeated, that, the deceased, when coming from the tap, said: “why did you not set yourself ablaze too since you wanted both of us to die? Why have you killed me?”
Asked whether the accused responded, the witness responded that the accused answered: “I did not kill you. You poured paraffin on yourself.”
The witness said that the accused proceeded to extinguish the fire in the house after coming on to the veranda from the direction of the tap as per the witness assumption.
Under cross-examination, the witness admitted that he did not know for a fact as to who poured paraffin on the deceased. He also did not witness the accused setting the deceased on fire.
The witness was asked: “You did not hear her calling out that accused had set her ablaze whilst you were in your room?” and he responded; “She was saying that. She said so as she called out for my help.”
The witness agreed that in his witness statement, recorded on 3 November 2011, he did not mention that the deceased had shouted that the accused had set her ablaze.
The witness said that the omission could have been a result of oversight.
The witness agreed that he could not deny that the accused assisted the deceased to douse off the flames at the tap.
The witness agreed that the accused denied that he had set the deceased ablaze when the deceased was making the accusation.
He agreed that the accused had responded that the deceased poured paraffin on herself.
The witness said that prior to hearing the screaming which woke him up, he did not hear any commotion whilst he was asleep.
He said that the accused was searched at the charge office and found to be having a box of matches in his pocket. The witness agreed that in his recorded statement he stated that the accused explained his possession of the matches by saying that he took the box of matches from the deceased.
The court's assessment of the evidence of this witness was that he was an honest and impressive witness who gave a simple narration of the events which he witnessed. The cross examination of the witness was not eventful because he maintained his story.
His evidence was clear, that, the deceased accused the accused person of pouring paraffin upon her and setting her ablaze with matches. His evidence was equally clear that the accused responded to the allegation by denying the accusation and instead accusing the deceased of having poured paraffin on herself and set herself ablaze.
It was not suggested to the witness that the deceased did not name the person who had harmed her. What was put to the witness in cross-examination was that the accused denied the allegation.
It was not denied that the deceased went further to ask the accused as to why he had not equally poured paraffin upon himself so that he dies together with the deceased as he had wished or declared.
It was not denied that the deceased uttered the words: “why have you killed me?”
The court, having been impressed by the demeanour of the witness, his self-confidence, and standing unshaken under cross-examination, accepted the evidence of the witness as reliable.
The next witness was Nyasha Tsopotsa, the wife of the last witness.
She testified to having been asleep with the last witness when she heard screaming sounds and a door being forcibly opened. The first witness woke up as well, but, before either of them had left their room, the witness heard the sound of footsteps outside going in the direction of the water tap. The person screaming was calling out her husband, the first witness name.
The first witness went out of their room first before she followed.
When she exited their room, she saw the deceased behind the toilet door dressed only in her petticoat which was stuck to her body. The deceased had visible burns. She saw the accused by the door of the deceased's room.
She heard the deceased saying to the accused: “Dai wandipedza. Wabvira kundishungurudza, wandipisa” which words translated into English mean: “You should just have finished me. You have been persistent in harassing me. You set me on fire.”
She heard the accused to respond saying: “You set yourself on fire.”
She testified that the last witness ordered her to find something to cover the deceased with. She obliged and took one of the deceased's bed sheets and covered her with it.
The first witness, the deceased, and the accused then drove away in the first witness's vehicle.
When asked to recite the first words which she heard the deceased to say, she responded and said in Shona: “Maiwe ndofa” which was translated as: “Mother, I am dying!”
She said that she heard screaming and the door opening at the same time followed by footsteps which proceeded in the direction of the tap.
When the deceased was screaming, she was shouting: “Father of Brendon” in reference to the first witness.
When the witness came out of her room, she said that she saw the deceased talking to the accused person accusing him of having set her alight.
The witness remained at home when the deceased and the accused drove away from the scene.
Under cross examination, the witness agreed that she did not hear the deceased to say that someone was killing her. She said that she heard the deceased saying: “Mother, I am dying.”
The witness said that she did not know what had happened prior to this.
The witness reiterated that when she got out of the house, she heard the deceased saying to the accused: “You poured paraffin on me and burnt me.”
The witness said that she could not dispute that the accused assisted in dousing the deceased of the fire burning her because by the time she got to the scene, the deceased was behind the toilet door accusing the accused of pouring paraffin on her and setting her blaze.
The witness agreed that the accused disputed or denied the allegation.
The witness was not re-examined nor did the court seek any clarifications on her evidence.
The court, as with the last witness, was impressed by the demeanour of the witness. In fact, nothing eventful or new came out of the cross-examination of the witness. Her evidence was largely corroborative of that of the last witness.
Significantly, the accused's counsel, in cross examination, did not deny that the deceased made accusations pointing to the accused as having poured paraffin on her and set her light.
The witness evidence, that the deceased accused the accused of persistent harassment, and that the deceased said that you should have finished me, were not disputed either.
The court therefore accepted that the deceased uttered the words testified to by the witness.
The court also noted that the accused denied the accusations.
The last witness was Sekai Guvamatunhu, a police constable who was one of the duty officers at Chivhu Police Station when the deceased was brought to the police station by the first witness who made a report concerning the deceased having suffered burns.
The deceased was inside the first witness's car.
The witness proceeded to the vehicle, which was parked outside the charge office, and observed the deceased. She noted that the deceased had severe burns. She suggested that the deceased should be ferried to the hospital urgently.
When the witness tried to speak to the deceased, the accused came over to the witness to stop her from speaking to the witness giving the reason that the deceased had been burnt.
The witness accompanied the deceased to the hospital in the first witness's vehicle.
The witness evidence was not contentious, and, in any event, was relevant in respect of completing the chain of events. Nothing really turned on it. The court took and accepted the evidence as given.
The State closed its case.
Counsel for the accused advised the court of his instructions to make an application for the discharge of the accused person at the close of the State case in terms of section 198(3) of the Criminal Procedure and Evidence Act [Chapter 9:07].
Counsel for the accused undertook to file a written application by 5 June 2018 to which the State counsel would respond to by 8 June 2018.
The case was adjourned to 15 June 2018 for ruling on the application.
The State counsel filed his response on 13 June 2018 despite having himself undertaken to file the same by 8 June 2018. The accused's counsel filed his application on 5 June 2018 as undertaken by him.
The court was unable to give a ruling on 15 June 2018 and postponed the matter to 18 June 2018 on which date the accused's application was dismissed. It was indicated that the reasons for the dismissal of the application would form part of this judgment and they are given below.
An application for discharge of the accused person, made in terms of section 198(3) of the Criminal Procedure and Evidence Act, raises an issue of law, and, as such, in terms of section 10(1)(a) of the High Court Act [Chapter 7:06], a determination of the application lies within the jurisdiction of the judge only. Assessors have no voice or input in the decision.
The decision to dismiss the application was therefore made by the judge alone.
The evidence led from State witnesses, and through admitted exhibits, was that the deceased suffered burn injuries in circumstances where the only other person present at the material time was the accused.
Evidence was led that the deceased shouted out for assistance calling out the first State witness names. The deceased made an accusation, in the presence of the first and second State witnesses, that the accused had poured paraffin on her body and set her ablaze.
The accused did not deny that the deceased made those utterances and thus named him as her assailant.
The thrust of the accused's legal practitioner's cross-examination was aimed at establishing that the accused denied the accusation.
In the accused's warned and cautioned statement, exhibit 3, the accused admitted that the deceased informed her neighbours that the accused had burned her. In the same statement, he stated that he did not dispute the accusation.
This position contradicted his line of defence, as shown by the cross-examination of State witnesses wherein he put it to the witness that he disputed the allegation.
Evidence was also led from State witnesses, that, the deceased accused the accused of having subjected her to harassment. Further, evidence led was that the deceased asked the accused as to why he had burnt her and why he had also not poured paraffin upon himself and burnt himself as well.
The defence counsel contended that the affidavits, exhibits 1 and 2, produced by the State, did not certify the deceased dead nor provide details of the cause of death thereof.
The argument, then, was that there was no evidence of murder led in the absence of a postmortem report.
The evidence led did not, however, place the fact of whether or not the deceased passed on, into issue. The same applied to the cause of death. More importantly, section 207 of the Criminal Procedure and Evidence Act provides that:
“…,. Where a court finds that part, but not all, of the facts of an offence charged have been proved; it shall nevertheless convict the accused of the offence if the facts that are proved disclose the essential elements of the offence.”
Further, section 274 of the Criminal Law (Codification and Reform) Act provides that:
“Where a person is charged with a crime, the essential elements of which include the essential elements of some other crime, he or she may be found guilty of such other crime, if such are the facts proved and if it is not proved that he or she committed the crime charged.”
It is therefore clear that a conviction for the offence charged can be grounded where the State has not proved all facts of an offence charged; provided that the facts which have been proven disclose the essential elements of that charged offence.
Equally, an accused can be found guilty of another offence disclosed by proven facts where the originally charged offense has not been proven but some other offence.
Section 198(3) of the Criminal Procedure and Evidence Act cannot be successfully invoked where the facts, on the evidence led, are such that the accused can be convicted on any other cognizable offence on the evidence led by the State.
It is, in my view, critical to note, that, the effect of section 274 of the Criminal Law (Codification and Reform) Act, is that, where evidence led and proven facts are found that another cognizable offence at law was committed, other than the one charged, the accused may be convicted of committing that cognizable proven offence.
In this regard, such other offence does not have to be a permissible verdict as provided for in section 275 of the Criminal Law (Codification and Reform) Act.
Section 275 of the Criminal Law (Codification and Reform) Act provides for competent verdicts in relation to specified offences.
A list of the specified offences appears in the Fourth Schedule to the Criminal Law (Codification and Reform) Act.
For the avoidance of doubt, where murder is the offence charged, the permissible verdicts are listed as -
(a) Infanticide.
(b) Culpable homicide.
(c) Any crime which a person might be convicted of if he or she were charged with a crime specified in paragraph (a) or (b).”
It is noted that paragraph (c) refers to permissible verdicts on charges of infanticide or culpable homicide. Permissible verdicts on a charge of infanticide or culpable homicide are equally permissible on a charge of murder. The permissible verdicts on a charge of culpable homicide are listed as;
“(a) Inciting suicide.
(b) Rape.
(c) Public Violence.
(d) Unlawful termination of pregnancy.
(e) Assault.
(f) Threatening to commit murder.
(g) Any crime of which a person might be convicted if he or she were charged with a crime specified in paragraphs (a) to (f).”
It follows, therefore, that a person charged with murder, as in the present case, may be found guilty of any of the offences listed as permissible verdicts on a charge of culpable homicide.
Section 274 of the Criminal Law (Codification and Reform) Act, has, however, gone further to extend the powers of the court to convict a person of any other offence proved on the evidence.
In this regard, section 275 of the Criminal Law (Codification and Reform) Act, which provides for permissible verdicts on specified offences, is applicable, subject to the rider that it does not derogate or limit the application of sections 273 and 274 of the Criminal Law (Codification and Reform) Act.
It appears to me, therefore, that, because of the provisions of sections 274 and 275 of the Criminal Law (Codification and Reform) Act aforesaid, the cases which may be discharged in terms of section 198(3) of the Criminal Procedure and Evidence Act will be fewer and far in between.
To begin with, it is expected, that, where there is no evidence that the accused committed the offence charged, the Prosecutor General should, in line with the exercise of professionalism, just concede and withdraw the indictment if there is no probable chance that the accused may have committed any other offence which he might be convicted thereon.
I need to make it clear, that, the reference to “any other offence” should not be limited to a permissible verdict but to any other cognizable offence at law.
To this extent, therefore, whilst I accept the principles which the courts are guided by, as set out in S v Tsvangirayi & 2 Ors 2003 (1) ZLR 188, which judgment considered earlier decided cases on the point, the judgments must now be read taking cognizance of the effect of section 274 of the Criminal Law (Codification and Reform) Act aforesaid.
My understanding was, that, in earlier judgments, the reference to any other offence was interpreted as a reference to a permissible verdict. If I am right in my understanding of the old position, as embraced by the courts, then it is necessary that l pronounce that an application made in terms of section 198(3) of the Criminal Procedure and Evidence Act, at the close of the State case, should not be granted in cases where the State evidence prima facie establishes the commission by the accused not only of a permissible verdict offence - but of any or other offence cognizable at law.
In casu, the State evidence, which l have outlined and will not repeat, did, prima facie establish the possible culpability of the accused on the main charge in that the deceased named the accused as the person who had inflicted the burns upon her.
In reasoning that a prima facie case was established in relation to the main charge, I do so mindful of the defence argument that a post mortem report was not produced.
I have however considered that proof of death may arguably be established from the fact that no issue is taken by the accused to the allegation that the accused died of burn injuries as alleged in the indictment.
Further, from the State evidence, it cannot be said, that, assuming that the State evidence is accepted, the facts would not ground a prima facie case of culpable homicide on the reasoning that if the court were to accept that the accused, as alleged by the deceased, did pour paraffin on the deceased and set her alight with matches, such conduct would not be classified as or qualify to be described as an act of negligence as would found a conviction under section 49 of the Criminal Law (Codification and Reform) Act.
Further still, at the very least, the State evidence prima facie established a case of assault as defined in sections 88 and 89 of the Criminal Law (Codification and Reform) Act which is a competent verdict on a charge of murder by virtue of assault being a competent verdict on a charge of culpable homicide, and culpable homicide being a competent verdict on a charge of murder.
In this regard, I refer to my earlier exposition of the provisions of section 275 of the Criminal Law (Codification and Reform) Act.
By definition, assault as an offence is very wide and includes application of any substance to another person's body without that person's consent. Pouring paraffin on someone, constitutes an assault and setting another person on fire constitutes a very serious form of assault.
In my judgment on this application, I determined that the evidence before the court established a prima facie case against the accused.
It was sufficient to raise a presumption which, unless rebutted, pointed to the accused as having been responsible for the injurious assault or injuries suffered by the deceased.
The word prima facie is a latin word which means 'at first view' or 'on the face of it.'
A prima facie case will be established where facts alleged, if not rebutted, would result in those facts being conclusive to found a case against the accused.
As already alluded to, it was established, on the evidence, that, the deceased suffered severe paraffin burns which she attributed to the conduct of the accused. To hold that the accused has no case to answer would amount to a finding not supportable on the evidence and a travesty of justice.
It was for the above reasons that I dismissed the application....,.
I was left wondering as to whether counsel for the State was now briefed to argue the defence case as evidenced by how he castigated the veracity of State witness evidence. State counsel argued that the court must hold that the deceased must have suffered “some confusion when she caught fire and mixed up the sequence of events.”
What was astonishing, from the submission, was that the deceased could not have been confused and mixed up the sequence of events because she never testified. The dead do not testify, and, as a matter of logic and common sense, the dead cannot mix up the sequence of events without testifying.
