Judgment No. HB 23/15
Case No. HC (CRB) 132/14
IN THE HIGH COURT OF ZIMBABWE
GWERU HIGH COURT CIRCUIT 28, 29 & 30 JANUARY 2015
T. Mpariwa state counsel
A. Mhaka defence counsel
KAMOCHA J: The 40 years old accused stands accused of the crime of murder which was alleged to have been committed on 20 September 2013 at Gore Village, under Chief Nyamhondo, in Mberengwa in the Midlands Province. He is alleged to have caused the death of Chipochashe Ndlovu, a female infant aged 3 years by forcibly having sexual intercourse with her per vaginam and per anum, and assaulting her all over her body with an unknown object, intending to kill her or realizing that there was a real risk or possibility that his conduct may cause death and continued to engage in that conduct despite the risk or possibility.
He denied the charge when it was put to him and went on to state that he never did all that was being alleged.
The state outline was read for the record and produced as exhibit one. I do not intend to read it all over again. I shall, however read the defence outline which was produced as exhibit 2 and it reads thus:
“The accused having been served with the charge sheet informing him that he is facing a charge of murder as defined in section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] provides his defence outline as follows:-
(1)The accused denies that he caused the death of Chipochashe Ndlovu in any way whatsoever.
(2)The accused denies that he had sexual intercourse with Chipochashe Ndlovu either through the vagina or through the anus.
(3)The accused person denies that he assaulted Chipochashe Ndlovu in any way whatsoever.
(4)The accused will state that on 20th September, 2013 he was accompanied by Chipochashe Ndlovu to a goats pen within the family homestead where Chipochashe Ndlovu sat in the road or path while he fetched firewood from the homestead perimeter screen. The next time he looked at Chipochashe Ndlovu, he observed that she was in fits, frothing from the mouth and had fallen to the ground. He will state that he carried her to the homestead and laid her in one of the huts. She later died that same day.
The accused will give evidence but will not call any other witness.”
Exhibit 3 was the accused’s confirmed extra curial statement where he maintained the story in his defence outline as follows:-
“I have understood the caution, I do not admit to the allegations levelled against me that I killed Chipochashe Ndlovu an infant of 3 years by forcing sexual intercourse with her through the vagina or through the anus and used an identified object to cause bruises on her body and she died because I did not kill her. I took Chipochashe Ndlovu to look for firewood in the nearby bush and later sat the deceased at a foot path whilst I searched for firewood. I later realised that the deceased had fallen to the ground as if attacked by fits. I carried deceased by the arm pit but she was unconscious until I reached home where she later died with froth coming out of the mouth. That is all.”
There is a material discrepancy between the accused’s confirmed statement and his defence outline which he sought to rely on his evidence.
When he made his statement to the police two days after the death of the deceased matters were still very fresh on his mind. He stated thus:
“I took Chipochashe Ndlovu to look for firewood in the nearby bush and later sat the deceased at a foot path whilst I searched for firewood. …”
In his defence outline which was compiled two days before the trial on 26 January 2015 which was after a period of one year four months he stated as follows:
“The accused will state that on 20th September 2013, he was accompanied by Chipochashe Ndlovu to a goats pen within the family homestead where Chipochashe Ndlovu sat in the road or path while he fetched firewood from the homestead perimeter screen. …:”
The 4th exhibit was a report form for the alleged sexual abuse and rape cases which was compiled by a nursing sister at Musume Hospital who examined the remains of the deceased a day after her death. The nurse recorded the following in the report: (a) fresh bruise above the right eye (b) 2 fresh bruises on each side of the abdomen just above the groins; and (c) a fresh bruise on the back.
On the genital examination she recorded thus: bruises seen on the labia majora. She marked both sides of the labia majora and also shaded both sides of the libia minora but made no narration about the shading on the labia minora. She noted that the hymen was intact and there was no bleeding. She finally opined that penetration was very likely. The nurse gave viva voce evidence which I shall deal with at a later stage in this judgment.
Exhibit 5 was a post mortem report compiled by Doctor S. Pesanai. He examined the remains of the deceased five days after her death. He observed that the body was decomposed and had severe blotting; there was a small laceration 0.5cm at 6 o’clock; the anus was dilated with rectal laceration on the posterior. The skull had separated sutures frontal and both parieto.
He further remarked that the separated sutures that join the cranial bone could have been caused by pressure of decomposing brain or due to head injury. The doctor could not see any obvious cause of death due to decomposition but went on to state that the child was sexually abused and that there was penetration though the anus causing a laceration in the rectum.
He concluded that the cause of death was uncertainable due to decomposition. There was, however, a lacerated rectum giving rise to the conclusion that the child was sexually abused. The doctor gave viva voce evidence which shall be dealt with later in this judgment.
The evidence of two police officers was admitted in evidence by consent as it appears in the state outline in terms of section 314 of the Criminal procedure and Evidence Act [Chapter 9:07]. Both officers were stationed at Mataga Police Station. The officers were Simbarashe Makope and Freedom Nyamutsamba. Their evidence which was substantially materially similar was that they did not know both accused and deceased prior to this case. On 21 September they received a report of a suspected case of rape and murder at the station. They both proceeded to Nkomonye village accompanied by one Shumeka Shumba the informant.
On arrival they found the deceased placed in a hut. On examining the body they observed bruises on the right side of the head, on the back, on the forehead and on the abdomen; and froth coming out of the mouth. They then caused the body to be ferried to Musume Hospital for a medical examination. Later the body was conveyed to United Bulawayo Hospitals for a post mortem examination.
They learnt that the accused had disappeared during a funeral wake. He was, however, arrested on 22 September 2013. An extra curial statement exhibit 3 was recorded from the accused. He made his statement freely and voluntarily without any undue influence brought to bear on him. The accused signed the statement.
By signing the statement two days after the death of the deceased accused was signifying that what he had told the police was the correct sequence of events that took place on the fateful day. He took Chipochashe Ndlovu to look for firewood in the nearby bush. The assertion in his defence outline that he was accompanied by Chipochashe Ndlovu to a goats pen within the family homestead where she sat in the road or path while he fetched firewood from the homestead perimeter screen is clearly a hopeless after thought and must be rejected from the onset.
This court therefore makes a specific finding that the accused took the toddler with him to the bush on the pretext that he was going to look for firewood.
What also emerges from the admitted evidence of the police officers is that the body had bruises I alluded to above on the forehead, on the right side of the head, on the back and on the abdomen which could not have been self inflicted.
The grandmother of the deceased Netsai Dube agrees with the police officers that she observed the bruises on the back of the deceased. She further had examined the deceased earlier than the police officers and had in addition noticed that the body had swellings on both sides of the neck. The deceased’s vagina was wide open.
The grandmother’s testimony was that she had lived with the toddler since her birth. Her daughter Kudzai Dube the mother of the deceased had gone to live with accused. She said Kudzai Dube approached her and requested to collect the deceased as she wanted to live with her. She allowed the mother to collect the toddler. To her surprise and horror 4 days later, her granddaughter was brought back dead.
She said her granddaughter had no health problems apart from teething problems as the teeth were coming up her jaws. She did not suffer from any epilepsy. She never had any epileptic seizures.
She gave her evidence with admirable clarity and deserved to be believed.
The mother Kudzai Dube – “Kudzai” corroborates her mother that deceased never suffered from epilepsy and that deceased had no health problems. She was in good health even on the fateful day.
Her evidence confirms what is in the accused’s confirmed extra curial statement that accused took the deceased to a mountain in the bush on the pretext that he was going to look for firewood. He took her against her advice that he should not take her away with him. He insisted and took her away and was away with her for a period of plus or minus 2 hours and returned carrying her on his shoulder lifeless bleeding from the nose and frothing from the mouth.
She enquired from the accused what had happened to deceased accused’s explanation was that she had had an epileptic seizure.
She was emphatic that the accused’s suggestion that he went to collect the firewood with deceased from the perimeter fences of the homestead was false.
This court makes a specific finding that the accused took the deceased with him to the mountain in the bush for about 2 hours and only brought her back when she was lifeless. It is also the court’s finding that she remained in his care and custody during the duration of about 2 hours. No one else had access to her. He is the only one who could have caused all the bruises observed on the body of the deceased by the grandmother and police officers.
The bruises were also observed by Winnie Gumbo a nursing sister for 25 years, a day after the deceased died. I repeat that she marked her bruises on her report exhibit 4 as follows - (a) fresh bruise above the right eye; (b) 2 fresh bruises on each side of the abdomen just above the groins and; (c) a fresh bruise on the back. All these bruises could not have been self inflicted.
On examination she observed further bruises on both sides of labia majora and labia minora. She told the court she had by mistake omitted to narrate on her report the bruises that are reflected on the labia minora on the diagram.
It was further her testimony that the hymen was intact but still concluded that penetration was very likely. Consequently, she held that the deceased was sexually abused.
She was a fair witness and had no reason to lie or exaggerate. If she had wanted to she would have said hymen was raptured.
Under cross examination she said the bruises on the abdomen and back and right eye led her to the conclusion that force or pressure was applied to the areas using fingers.
Dr Sanganai Pesanai corroborates the nursing sister on the conclusion that deceased had been sexually abused. His finding was that the abuse he noted was per anum. His finding was based on the fact that he observed a laceration in the rectum of the deceased’s body. He was adamant and emphatic that the laceration was ante mortem and not post mortem and explained that the laceration could not have been due to decomposition of the body.
The doctor has been in the pathological field for the last 15 years. He further stated that the rectum was part of the large intestines and was inside the body and the laceration could only have been caused from outside ante mortem and not post mortem.
All the state witnesses testified well and truthfully. This court accepts their evidence.
The same cannot be said about the accused whose story was full of untruths. He sought to change his story and in the process gave contradicting stories. He was untruthful about where he went to fetch firewood with the deceased wanting the court to think he was within his perimeter fence as he fetched firewood. In his evidence he wanted the court also to believe that the deceased followed him when in his confirmed extra curial statement he said he took her while in his defence outline he says he was accompanied by deceased. It is difficult to understand why he wanted to be accompanied by a 3 year old toddler to go for firewood in the bush.
The accused was untruthful about the epileptic attack on the deceased. It is highly unlikely and improbable that a single attack of epilepsy would cause the bruises observed on the body of the deceased. His story of an epileptic seizure is false and must be rejected and is hereby rejected.
The accused was a bad witness, and his story must be rejected. The court prefers the well given evidence of the state witnesses. Where ever the accused’s evidence conflicts with that of the state witnesses I prefer that of the state witnesses.
The accused planned the death of the deceased that is why he took her away against her mother’s wish.
I propose to find him guilty of murder with actual intent.
This is a gruesome murder committed against a 3 year old toddler who was defenceless and looked up to the accused for protection. The accused never attempted to even justify the heinous murder.
I have exercised my discretion in terms of section 48 (2) (a) of the new Constitution but was unable to find anything in the accused’s favour which could influence me to consider any sentence other than capital punishment.
The accused planned the murder which was motiveless. Accused appeared unconcerned about the deceased after bringing her back home he continued to cook his sadza.
The murder was committed under aggravated circumstances. He first sexually abused the deceased and thereafter murdered her in order to cover up the crime. This is one of those bad types of murder where no other form of punishment other than capital punishment is suitable.
Accused shall be returned to prison for the sentence of death to be executed according to law.
Prosecutor General’s Office, state’s representative
Mhaka Attorneys, defence’s representative