HUNGWE J: The accused was charged with the crime of
contravening s 47(1)(B) of the Criminal Law (Codification and Reform) Act [Cap 9:23] in that on 25 April 2007 at
19h00 she unlawfully picked up a knife and stabbed Stewart Pilate Mhlanga twice
with the knife once on the left side of the chest and once on the neck
resulting in the death of the deceased. She pleaded not guilty. The summary of
the State's case indicated that the State would rely on evidence of at least
ten witnesses. However at the commencement of proceedings counsel of the State
the defence agreed that certain witnesses' evidence be admitted on to the
record in terms of s 314 of the Criminal Procedure and Evidence Act [Cap 9:07]. Thus the evidence of the
following witnesses was placed on record as undisputed fact:
(1)
Anymore
Nosenga
(2)
Mercury
Takaidzwa Mhlanga
(3)
Zephania
Takaidza
(4)
Margaret
Nyanhoo
(5)
Mudonhi
Gogoda
(6)
Edward
Museve and
(7)
Dr
George Mapiye
Thereafter the Post-Mortem report by
Dr Mapiye was admitted as exh. 3 and the
accompanying affidavit to the
post-mortem was exh 4. The State then called the evidence of accused's sister-in-law
Mary Mudyanebanga. She shared the same house with accused and her late husband.
Their respective husbands were brothers.
Her evidence was to the following
effect. The accused had come and knocked
at her door indicating that somebody
had come in search of containers from her husband. Soon after accused returned
to her room in the same house, she had her calling for help. She rushed into
the accused's room and found her and the deceased, her husband fighting. She
restrained the deceased asked them why they fighting. Upon being assured that
they will not fight she went back to her room. A while later, she heard someone
cry from their room and the sound of footsteps running down the passage. When
she got out of her room she saw the deceased who was bleeding going down the
passage. He was in pain. She ran out to call for help. When she came back she
found the deceased lying dead outside the house.
She
did not witness the struggle. She did not see from where the deceased was
bleeding. Under cross-examination she confirmed that the deceased and the
accused had fought frequently. On each occasion of such fights the accused
would retreat to the safety of her maiden home. According to her the deceased
was a man of violent disposition although he was smaller in stature to the
accused. She also stated that their room was lit by an electric bulb.
Harusekwi
Hedegwe is the neighbour to whom the accused took refuge upon running out of
the house. She told the court that it was around 19h00 when accused came running
to her house. She wielded a kitchen knife exh 5. She appeared frightened. She
kept looking back to the house as if afraid of someone pursuing her. She, under
heavy breath of the flight, told her that she had stabbed him. She went to
accused's residence and found the deceased lying dead in a pool of blood and
bleeding from the neck. The couple had had a misunderstanding the previous day.
Each time they fought accused would retreat to her parents' home.
The
Investigating Officer also gave evidence. He went to the scene upon receiving a
report from a member of the special constabulary who had arrested the accused
and brought her together with the knife to station. He observed that eh
furniture inside their room was in disorder, a sign that there had been a
struggle. He noted that there was a broken cooking stick and some artificial
braided hair strewn around the room. Accused claimed the deceased had pulled
these from her head. He found the deceased covered with a blanket. Upon further
examination he observed that the deceased bore one deep stab wound to the neck
from where he was bleeding and another superficial would below it.
The
accused gave evidence for herself. She described how she had endured physical
abuse at the hands of her husband. She had had to go back to her parents on on
less than five occasions in order to escape this abuse. Relatives had tried to
intervene, including her sister-in-law, and others but to no avail. This day
was just another example of what she had to endure. What triggered this tragedy
was a knock to the door which her debt-ridden husband refused to answer
preferring to sent her so as to off his creditors. But this was an innocent
person seeking to secure his empty containers from deceased's elder brother. He
had asked her to get this message to her sister-in-law. When she did so and
went back to her quarters all hell broke loose. Deceased assaulted her. She
cried out for help. The first State witness came and restrained him. No sooner
had she left did the assault resume. In the attack which followed, he struck
her using his hands and fell her. He then got her head between his legs and
began to puff off her braided artificial hair. She felt excruciating pain all
over. She reached a for a cooking stick from the push-tray nearby and hit him
with it without effect. He continued with his murderous attack. She then
reached for what she thought was another smaller cooking stick which remained
on the push-try. She struck him as he partially covered in a bending position
as she lay in agony.
He
released her indicating that she had injured him and if he caught her he would
kill her. She ran for dear life clutching the knife as she ran. She only
realized she still had the knife after she had spoken to her neighbour
Harusekwi. She regretted the death of her husband but insisted that she acted
in self-defence and defence of her child over who she had fallen during the
attack. She used only the force necessary to repel the attack.
Under
Cross-examination she introduced new evidence to the effect that the door to
their room had been locked during the struggle. She had picked up the keys to
the door after deceased dropped them upon releasing her. She had then unlocked
the door and fled.
It
seems to us that the witnesses were all generally truthful in their evidence.
It is the evidence put forward by the accused which on some aspects was clearly
meant to mislead the court.
Only
the accused testified that the house was light by an oil lamp. Her
sister-in-law, the neighbour and the Investigating officer all say there was
electricity lighting inside the house. Clearly she did not tell the truth in
this respect.
As
for the mistake of fact relating to the nature of the object which she picked
from her push-tray, she gave us the impression that she believed it was her
smaller cooking stick which she had picked and struck him with it. This is
however inconsistent with her first reaction to the whole incident when she ran
up to Harusekwi and exclaimed that she had stabbed him. Had she not realized what
she had one it is unlikely that she would have said this to the witness. In any
event the wound from which the deceased died is consistent with a stabbing
rather than a strike blow which she would have delivered using that type of
weapon. Stabbing in common parlance is associated with sharp instruments rather
that blunt ones.
In
that regard it is our finding that the accused was less than truthful in her
claim of mistake of fact of the weapon she picked from her push tray.
Our
view of the evidence is that the following is established by the evidence. The
deceased was in the habit of physically abusing his wife. Over time they had
physically exchanged fist cuffs. Accused would leave the matrimonial home as a
result. On this occasion she did not manage to escape his clutches. She fought
back. In this fight she resorted to whatever means available to her. She picked
a kitchen knife which she used to stab him with. She directed the blow to the
neck. It may well be that in effort to ward off a murderous attack on her
person she did not have the luxury of choice. But she sealed her fate by her
decision to use a knife in circumstances where a reasonable woman in her
position would have realized that to do so may result in fatal injuries to the
deceased. This decision to pick a knife constitutes a negligent step in that
she then used more force than was necessary to repel the attack on her person.
She did not warn him that she had a knife and that he should stop his attack
upon her person. She decided to stab her as an act of self-defence.
We
are satisfied that she did not realize the risk inherent in the use of the
knife but we also hold that that failure was negligent on her part. As such she
is found not guilty of contravening s
47(1)(b) of the Code but is guilty of contravening s 49(a) of the Criminal Law
(Codification and Reform) Act [Cap 9:23].
Jessie Majome &
Company, accused's
legal practitioners
Attorney-General's
Office, for the State
