The appellant gave oral evidence in his defence.
He told the court that he approached the deceased who was
playing under a tree and asked for her mother. The deceased told him that her
mother had gone to fetch water but would be back shortly. He decided to await
the return of the deceased's mother and, as he was tired, he leaned against a
ladder which was propped up against the tree. The ladder accidentally fell and
hit the deceased who became unconscious. His attempts to administer first aid
to the deceased failed, and, fearing the reaction of the people of the
neighbourhood, he lifted the deceased and took her into a nearby bush in order
to resuscitate her far from the public eye.
The deceased did not recover and he abandoned the body in
the bush and ran away.
Evidence was led by the State from Francisca Chirozva. She
resides at Village Chikwakure.
She knew the deceased as a niece of her sister in law. On
the night of 17 July 2011, she was away from home. She returned on 18 July at
about 9am. Shortly thereafter, her sister in-law, Tendai Sibanda, arrived at
her home asking whether she knew of the whereabouts of the deceased. The
witness did not and enquired as to why she was looking for the deceased. It was
then that she was told that the deceased had not come with the other children
when they were called for tea nor was she to be found at her grandmother's
homestead. She began to search for the deceased and traced the footprints of
the deceased from the place where she had been playing with the other children.
In so doing, they observed a big boot print belonging to a man with a child's
footprint alongside the boot print. As they followed the trail, the child's
footprint suddenly disappeared but the boot print could still be seen and it
was followed and led them to a stream and a bushy area. They continued to track
the shoe print and came upon two deposits of human faeces and a pair of shorts
soiled with human waste across the stream. The police were called and a report
made to them. After they had left, the witness, together with others, continued
the search. They were about to give up when, on 27 July, as she was going in
search of cattle the witness detected a putrid smell. As she looked around to
ascertain the source of the smell she observed some dogs fighting over
something which turned out, on further investigation, to be a human skull – a
child's skull. With the help of the dogs they located the body some three
kilometers away from the homestead where the deceased had last been seen
playing in a bushy area which was not easily accessible. What was left of the
body was the lower part thereof from the waist downwards. They identified it as
being that of the deceased by the pink dress which was still in a hole which
contained water. The body appeared to have been dragged out of the hole by the
dogs into the open where it was now visible.
This witness was adamant that there was no ladder at the
homestead. Also she said that the tree where the deceased had been playing was
so small that one could not lean a ladder on it.
Evidence was also heard from Tonderai Sandawu who is a son
of the appellant's sister, Miriam Sandawu.
His evidence was to the effect that the appellant, who had
been visiting his family since May 2011, when he came to pay condolences, had
packed all his belongings and left their homestead on 17 July without
bidding them farewell. He identified the black shorts found near the place of
discovery of the deceased's body as belonging to the appellant.
A warned and cautioned statement made by the appellant and
confirmed by a magistrate on 5 October 2011 was produced as an exhibit. In that
statement he said:
“I admit that I killed a three year old child. I left
Masiya area for Bande. I then came to a homestead where there was this child
playing under a tree. On that tree there was a ladder that was leaning against
it. I leaned against that ladder which then fell on top of the child who was
playing under the tree and the child died. I lifted the child who had died and
hid her a distance from her homestead. I did not rape her but I just lifted her
and went with her thinking that she would come back to life but she did not.
That is when I fled away.”
The oral evidence given by the appellant differs from what
he said in his warned and cautioned statement.
In that statement, he stated, among other things, that the
deceased was already dead when he carried her away from her homestead. That
claim is in direct conflict with the evidence of Francisca Chirozva who said
that two sets of footprints, that of a child and a man left the homestead. The
court unreservedly accepted Francisca Chirozva's evidence.
The conclusion must therefore be that the deceased and the
appellant walked some distance from the homestead before he carried her.
The appellant also told the court that he gave the police a
false name when arrested for another offence in order to avoid being linked by
the police with this offence.
The court found the appellant to be untruthful, in its
words 'a hopeless liar'. It found that the State witnesses were truthful and
that their evidence was clear and credible. It was alive to the fact that it
was dealing with circumstantial evidence and it found that all the proved facts
established that the appellant brought about the death of the deceased
deliberately and not accidentally.
It therefore returned a verdict of murder with actual
intent to kill.
The proved facts were that the appellant found the deceased
playing at her home alone; that he took the deceased away from the homestead
and brought about her death; that he then concealed the body in such a way that
the first team of local villagers were unable to locate the body over a number
of days; that the police attended the scene but failed to locate the body of the
deceased; that the appellant deliberately concealed his involvement in the
death of the deceased person, he tried to obviate any linking of himself to the
offence by changing his name when he was arrested for a different offence; and
that he was found by the court to have lied on material facts.
Counsel for the appellant was unable to fault the findings
and reasoning of the trial court. He was unable to find any misdirection on the
part of the court a quo.
This Court is also of the view that the trial court did not
misdirect itself. It properly took into account all the relevant factors. The
inference which it drew, namely, that the appellant deliberately brought about
the death of the deceased, was consistent with all the proved or common cause
facts and its conclusion that the appellant is guilty of the murder of the
deceased with actual intent to kill is unassailable….,.
Accordingly, the appeal is dismissed.
