DISTRIBUTABLE
(20)
Judgment
No. SC 30/03
Crim.
Appeal No. 126/03
(1)
CEPHAS GOVERE (2) MERENZIA GOVERE
v
THE STATE
SUPREME
COURT OF ZIMBABWE
SANDURA JA,
CHEDA JA & GWAUNZA JA
HARARE,
OCTOBER 16 & 22, 2003
G
Musariri,
for the first appellant
L
Mkuhlani,
for the second appellant
N
J Mushangwe,
for the respondent
SANDURA JA:
The appellants, who are husband and wife, were charged with murder,
the allegation being that on 2 September
1998 and at Govere
Village in Chivhu District they unlawfully and intentionally killed
their six week old baby girl called N by cutting
off her body
parts. They pleaded not guilty but were found guilty and
sentenced to death. They appealed against conviction
and sentence.
Most
of the facts in this case were common cause. At about 9 pm on
1 September 1998 the appellants, N (the deceased)
and two
other children of the appellants went to bed in a hut which was used
as a kitchen and as a bedroom.
They
all slept on the floor. The deceased was about thirty centimetres
away from the wall; the second appellant lay next to her;
and the
first appellant lay next to the second appellant. The other two
children were some distance away. The door was secured
from the
inside by means of an iron bar placed beneath it.
At
about 3 am on the following morning the appellants discovered
that the deceased had died. A subsequent examination of
the
deceaseds body by the appellants relatives, who came to the
appellants homestead after hearing of the deceaseds death,
revealed that some flesh had been removed from the deceaseds
little finger, ring finger, index finger and private parts.
However,
no blood was detected on these injuries, although there was
a bit of blood on the deceaseds lower lip, on the shawl wrapped
round
the deceased, and on the deceaseds napkin.
The
deceased was buried in the afternoon of 2 September 1998. No
report of the deceaseds sudden death had been made to
the police.
Subsequently,
the police received information about the deceaseds death.
Suspecting that the deceased might have been murdered,
they proceeded
to Govere Village, exhumed the deceaseds body and took it to
Chivhu Hospital for a post mortem examination.
However,
because of the advanced state of the bodys decomposition the cause
of the deceaseds death could not be established.
Nevertheless,
the appellants were later arrested in November 1998. They
subsequently made warned and cautioned statements in which
they
denied having murdered the deceased.
In the court
a quo
the appellants persisted in their denials. In addition, they denied
having caused the injuries observed on the deceaseds body.
They
maintained that they did not know how the deceased had died and how
the injuries had been inflicted on her.
In
convicting the appellants of murder the trial judge relied upon
circumstantial evidence and concluded that the only reasonable
inference to draw was that the deceased had been murdered by the
appellants acting with a common purpose to murder her. That
conclusion
has been challenged in this appeal on the ground that the
proved facts do not exclude other reasonable inferences. That, in
my
view, is the sole issue for determination in this appeal.
As
WATERMEYER JA said in R
v Blom
1939 AD 188, there are two cardinal rules of logic which govern the
use of circumstantial evidence in a criminal trial. At 202-203,
the
learned JUDGE OF APPEAL said:
In
reasoning by inference there are two cardinal rules of logic which
cannot be ignored:
(1) The
inference sought to be drawn must be consistent with all the proved
facts. If it is not, the inference cannot be drawn.
(2) The
proved facts should be such that they exclude every reasonable
inference from them save the one sought to be drawn. If they
do not
exclude other reasonable inferences, then there must be a doubt
whether the inference sought to be drawn is correct.
I
now wish to consider whether the only reasonable inference from the
proved facts is the one which was drawn by the trial judge.
I do
not think that it is. I say so for two main reasons.
In
the first place, the allegation against the appellants, as set out in
the indictment, was that the appellants had murdered the
deceased by
cutting off her body parts. In other words, it was alleged
that the injuries sustained by the deceased had been
inflicted by the
appellants and had caused the deceaseds death. That allegation
was not supported by the witnesses called for
the prosecution, whose
evidence was that the injuries could have been caused by a rat or by
a cat.
Renia Govere,
the first appellants sister-in-law, who examined the deceaseds
body and was called as a State witness,
said that some flesh had been
eaten away from or bitten off the deceaseds little
finger, ring finger, index finger
and private parts. She added that
a rat might have caused the injuries because the wounds were rough
and did not give the impression
that they had been inflicted by an
object with a sharp edge.
Pindurai Govere,
the first appellants uncle, also examined the deceaseds body
after the deceased had died, and was called
as a State witness.
Regrettably, most of the evidence given by this witness was not
recorded because the interpreter was not speaking
into the
microphone. However, it is clear from the questions put to him in
cross-examination and re-examination that, in his opinion,
the
deceaseds injuries had been caused by an animal. For example, in
cross-examination the following question was put to him
by counsel
for the second appellant:
Q. So,
it is your evidence to the honourable court that the wounds could
only have been caused by or you perceive them as having been
caused
by an animal
and not as a result of a cut by a sharp instrument?
A.
(Interpreter not on microphone).
In
re-examination, the following questions were put to him by State
counsel:
Q. In answer to a question put
by the defence counsel
you said a knife could not have caused
that. Why do you say that?
A.
(Interpreter not on
microphone).
Q. Did I understand you to say
probably you thought it was an animal which had caused these
injuries?
A.
(Interpreter not on microphone).
In addition
two questions put to him by the learned judge in the court a quo
clearly indicate that he had told the court that, in his opinion, the
injuries had been caused by a cat. The questions are as follows:
Q. Now, you mentioned
something about the possibility that the bites might have been caused
by a cat. Is that correct?
A.
(Interpreter not on microphone).
Q. So,
can you specifically say that those injuries were caused by a cat
bite?
A.
(Interpreter not on microphone).
In
my view, the evidence given by these prosecution witnesses is
inconsistent with the allegation set out in the indictment, and
does
not support the conclusion that the only reasonable inference to draw
from the proved facts is that the appellants inflicted
the injuries
and murdered the deceased. There is, I think, a real possibility
that the injuries were inflicted by a rat or by a
cat. However, the
injuries would have been inflicted after the deceaseds death
because if they had been inflicted before the
deceased had died, the
deceased would have screamed so much that the appellants would have
woken up. The absence of any evidence
indicating that the deceased
screamed before she died is, therefore, significant.
The
second reason why I say that the inference drawn from the proved
facts by the trial judge is not the only reasonable inference
that
can be drawn from those facts is that the cause of death was not
established, and the possibility that the deceased died of
natural
causes cannot, therefore, be ruled out. For example, the
possibility that this was a cot-death, i.e. the sudden death
of a
sleeping baby who had not been ill, cannot be ruled out.
It,
therefore, follows that the second rule in Bloms
case supra
was not satisfied and the trial judge ought to have acquitted the
appellants.
In
the circumstances, the convictions are quashed and the sentences are
set aside.
CHEDA
JA: I agree.
GWAUNZA
JA: I agree.
Pro
deo
