Judgment No. HB 21/15
Case No. HC (CRB) 134/14
IN THE HIGH COURT OF ZIMBABWE
GWERU HIGH COURT CIRCUIT 3 & 4 FEBRUARY 2015
M. Shumba state counsel
W. Mehlo defence counsel
KAMOCHA J: The accused is a young woman aged 23 years who pleaded not guilty to the murder of her 1 year 8 months old child. It being alleged that on 24 August, 2013 and at Village Rushwaya, Chief Njelele, Gokwe South in the Midlands Province, she unlawfully caused the death of her child Tanaka Sambaza by throwing her into a well intending to kill her or realizing that there was a real risk or possibility that her conduct may cause death and continued to engage in that conduct despite the risk or possibility.
The state outline and defence outline were read and produced as exhibits one and two respectively and shall not be reproduced here again. I, however, reproduce her confirmed extra curial statement exhibit 3 which reads thus:-
“I do admit the charged levelled against me of killing my minor. I went to the garden carrying my baby on my back. When I arrived at the garden I removed my baby from my back and threw her into the well while still alive. I then left the garden and went home living the baby drown in the well. I threw her into the well for I was failing to support the child because of poverty and that my second husband who married me was not comfortable to take care of the child.”
I make note that the accused’s statement is detailed and she gives the reason why she ended up killing her child.
The last exhibit was exhibit 4 the post mortem report. The doctor who examined the remains of the deceased concluded that death was due to (a) asphyxia; (b) bronchoaspiration; and (c) due to drowning.
The evidence of 4 of the five witnesses listed on the state outline was admitted as it appears in the state outline by consent of the accused’s legal representative in terms of the provisions of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07]. The witnesses are: Edmore Mazungunye, Moses Muzvidzwa, Reggie Pikayi and doctor S. Pesanai.
What that means is that evidence of the police officers who recorded the above statement from the accused is not in dispute and is therefore common cause. So the accused made the statement freely and voluntarily without any pressure being brought to bear upon her. What is contained in the statement is what happened.
Viva voce evidence was led from Shylet John. Her evidence was that she was 21 years old and lived at Rushwaya village under Chief Njelele in Gokwe. She knew the accused as a neighbour in the village. The deceased was accused’s daughter. Sometime in August 2013 accused visited her maternal uncle. The witness went to see the accused at her maternal uncle’s homestead and the accused introduced her two children to her namely Tanaka Sambaza the deceased and Ivylet Mike. The accused went on to tell her that she was married in the village.
The accused approached her on a subsequent occasion and requested her to accompany her to Gokwe hospital to have Tanaka Sambaza medically attended to as the accused alleged that she was not feeling well. They proceeded to hospital but the deceased was said to have been well on examination so they returned home and arrived back around 4pm and parted ways.
The next day when she visited the accused at her maternal uncle’s homestead the uncle was sick. The witness observed that Tanaka Sambaza the deceased was not present with the accused. Only Ivylet Mike was present. She enquired from the accused where the deceased was but the accused told her that the deceased had been taken by a relative to Kadoma. I observe that the accused was deliberately being untruthful. At that stage she had already thrown the toddler into the well. Because she had deliberately thrown the toddler she could not reveal that to Shylet. The witness went away to her home.
Two days later she was approached by CID details who were making inquiries. They first asked her about her own child she told them that her child was there and was sleeping. She was then informed about the body of a child who was found dead in the well. They took her to their offices where they showed her the body and she identified the body as that of the deceased.
When the CID details proceeded to accused’s uncle’s homestead they were told that accused had left the area and had gone to Horomba village.
The evidence of this witness was not seriously challenged in cross-examination and remains intact. This court makes a finding that the accused lied to Shylet when she asked about the deceased. It was not true that deceased had been taken to Kadoma by a relative. The truth was that she had left the deceased drowning at the well after she had thrown her therein.
The accused gave viva voce evidence. She wanted the court to believe that the deceased accidentally fell into the well and that on discovering that she became shocked due to her pregnancy and did not even go to check in the well to confirm if the child was indeed in there. She did not even report the matter to her maternal uncle. She alleged that she had made a report to one Michael Marembo who told her that he was not prepared to do anything about the matter. That is highly unlikely and is untrue. When asked why she did not tell her maternal uncle she was staying with she said she could not do so because he was sick. She only told the uncle after she had been arrested by the police in connection with this matter which was three days after the event.
The accused was a bad witness who was not worth to be believed. Her story in court was a deliberate falsehood which is hereby rejected.
The truth is contained in her confirmed extra curial statement. Her confession is supported by ample evidence aliunde. The evidence of Edmore Mazungunye was that he found the body of the deceased floating in the well on 28 August 2013. The body of the deceased was naked. So the accused undressed the infant in preparation to throw it in the well.
What is clear is that she planned the murder of her child. She explained that she did so due to poverty and the man who had married her was not prepared to support her children from other men.
Her aim and object was to kill her child and she proceeded to do so. She is guilty of murder with actual intent.
The accused’s legal representative put forward all that needed to be said on her behalf. She has been in custody ever since she was arrested on 28 August 2013. That should be taken into account. The accused found herself in a difficult situation.
It is clear that she went astray by trying to save her new marriage by murdering her daughter the deceased. A clear and loud message must be sent out there that such offenders will be dealt with adequately. A young life was unnecessarily lost. The accused did that only to save her selfish interest.
This court is the upper guardian of all minors and must ensure that their lives are not used to save the selfish interests of their mothers.
Justice must be tempered with mercy. She is a young woman offender who has already served 1 year 5 months pre-trial incarceration through no fault of hers. In the result I think a sentence of twenty-one years imprisonment will meet the justice of this case.
Prosecutor General’s Office state’s representative
Hore & Partners defence’s representative