The appeal is against both conviction and sentence.
The facts are largely common cause.
On 27 August 2011, the appellant proceeded to the
deceased's home where he offered his three buckets of maize in order to settle
a debt. The deceased then left with the appellant in order to collect the
maize.
On arrival at the appellant's home, he invited the deceased
and he requested one Austin Moyo who was also in a hut at the homestead to turn
up the volume of his radio. Thereafter, the appellant entered the house and
demanded to have sexual intercourse with the deceased who refused. Using force
and threats, he caused the deceased to submit and while he was in the process
the deceased requested to stop. When he would not, she grabbed and applied
pressure to his testicles. The appellant then took an okapi knife which was
lying nearby, and which he had earlier used to slit the deceased's panties, and
stabbed the deceased three times on the head and once on the left – after which
he throttled her using both hands. Thereafter, realising the deceased was dead
he placed the body under a bed and fled. On 30 August 2011 he surrendered to
the police and was then arrested.
A post-mortem examination revealed that the deceased had sustained
head lineal bruises on the left side of the neck, bruising on the left face,
and swollen right eye. The internal examination showed scalp haematoma on the
right parietal and frontal region of the skull and sub-arachnoid haemorrhage on
the right side of the brain.
In the doctor's opinion, the cause of death was sub
arachnoid, head injury, and assault.
In the court a quo, the
appellant raised the defences of intoxication and self-defence.
It was the appellant's that he had consumed three (3) pints
of Black Label beer and had shared one litre of what he termed hot stuff with a
friend as from about 10am that morning.
The court, after analysing the evidence that the appellant
was at the time of the offence in complete control of his faculties and knew
what he was doing in particular, he related how he had gone to the deceased's
house and persuaded her to accompany him to collect the maize. He had wheeled
his bicycle through the deceased's neighbour's homestead without difficulty. He
was not seen staggering or falling at anytime. The court also found that he
carefully isolated the deceased and directed Austin Moyo to turn up the volume
of the radio before he pounced on the deceased….,.
The court was satisfied that by stabbing the deceased three
times with the okapi knife and thereafter throttling her, the appellant was
guilty of murder with an actual intent to kill.
The court considered the question of extenuating
circumstances, and, having found none, sentenced the appellant to death.
In the appeal before us, counsel for the appellant
submitted that the court a quo should not have returned a verdict of guilty of
murder with actual intent as the appellant had been only intent to rape and not
to kill the deceased although admittedly he had acted recklessly in the
circumstances.
Having considered submissions by both sides, we are of the
view that the court a quo was correct in coming to the conclusion that it did.
Clearly, the appellant's action exhibited an intention to bring about the death
of the deceased.
Accordingly, the appeal against conviction must
fail.
