THE STATE                                                                                    

versus

CHENGETAI SANHEHWE

HIGH COURT OF ZIMBABWE

UCHENA J

HARARE3, 6 June, 8 and 28 July 2011

Criminal Trial

B Taruvinga, for the State

B .K Mupawaenda, for the Accused

UCHENA J:  The accused was charged with the murder of the deceased in contravention of s 47 (1) (a) of the Criminal Law (Codification and Reform) Act [Cap 9; 23]. The state alleged that she set the deceased on fire intending to cause his death. She pleaded not guilty to the charge.

The brief facts on which the charge was based are that the accused and the deceased lived together for four years, as husband and wife though they were not married to each other. They separated leading, to the accused, leaving the deceased’s house to go and rent a cabin at the premises where the deceased was set on fire. The deceased still loved the accused so he frequented the accused’s rented accommodation. Simon Dudzai Denga the owner of the premises told the court that the deceased was introduced to him by the accused as her husband. He confirmed that the deceased used to frequent his premises to see the accused. He told the court that the two used to quarrel and did so, on the visit of the day in question.

The accused in her defence outline, and her evidence at her trial, told the court that the deceased set himself alight as he wanted her to come back to him without meeting the conditions she had set for their reunion.

The state called the evidence of Simon Dudzai Dzenga, Simon Revesai and Constable Happymore Musona. Simon Denga told the court that the deceased had been introduced to him by the accused who was his tenant as her husband. The deceased used to frequent his premises as he came to see the accused. On the day in question the deceased came in the afternoon and he heard them quarrelling. He heard the accused telling the deceased to leave her house, but the deceased did not leave. After midnight he heard the accused calling out to him that the deceased had set himself on fire. She came and knocked on his door repeating the call for help to be rendered to the deceased who was on fire. When he came out he did not see where the deceased was. He however saw that there was something burning at the corner of his premises. He went there and found the deceased burning in silence. He called out to his wife to bring a bucket of water. She did and he poured it on the deceased and put out the fire. He then inquired from the deceased as to what had happened. The deceased then said to him the accused his wife had dowsed him with paraffin and set him on fire. He took the deceased to his verandah, and asked the accused if anything else was burning in the cabin as he walked to it. The accused told him there was nothing burning in the cabin. He entered it and saw that there was a cardboard box spread on the floor of the cabin which was wet with paraffin. There was also a child sleeping in the cabin. Satisfied that his cabin was not on fire he went to call Simon Revesai his neighbour. Revesai came and inquired from the deceased as to what had happened. Miss Mupawaenda for the accused objected to that evidence, pointing out that it was hearsay evidence and could not be accepted under the res gestae exception as it lacked contemporaenity to the event which the deceased was explaining to Revesai.

Revesai’s evidence was therefore confined to what he observed. What the deceased told him was held to be inadmissible. Mr Taruvinga had strongly argued that it was admissible, while, Miss Mupawaenda had also strongly argued that it was not admissible. I held it to be inadmissible because a considerable time had lapsed between the time the fire which had been burning the deceased had been put out and the time Revesai came to the scene. The deceased could by then have come out of the stress of nervous excitement, and his reflective faculties may have been reactivated and were no longer stilled by the burning. The deceased’s utterance to Revesai, could be a product of his having reflected on the events before Revesai came to the scene. See the cases of R v Taylor 1961 (3) SA 616 (N) at 618-619, and S v Tuge 1966 (4) SA 565 (A) at 573G.

The deceased’s statement to Dzenga was admitted because it was made just after Denga had put out the fire which was burning the deceased. The deceased, had not had time to reflect on what had happened.

Constable Happymore Musona was the next state witness. He told the court of how the accused Dzenga, and another came to report what had happened to the deceased. He went to the scene where he saw the deceased lying on a blanket in the cabin. There was a bottle of paraffin near him. He recorded a brief statement from the deceased which the deceased failed to sign. He called an ambulance which took the deceased to hospital. The accused, accompanied the deceased to hospital, to look after him. He under cross examination said he asked the accused who looked confused and had tears running down her cheeks as to what had happened and she told him that the deceased had burnt himself.

Musona’s evidence support’s the accused’s evidence, on her having told him that the deceased burnt himself. It also raises questions as to how the police could have used the accused to look after her alleged murder victim if they believed that she had set the deceased on fire.

The accused, gave evidence for, the defence. She told the court that the deceased came and they discussed their reunion. She asked him to first go and see her parent’s. He did not agree to that and threatened to commit suicide if she did not agree to go back to his house without conditions. She told the court that he after mid night got up from where they were sitting, and poured paraffin on himself and set himself on fire. She immediately called out to Dzenga for help, and went to knock on his door telling him that the deceased had set himself on fire.

Mr Taruvinga for the state in his written submissions urged the court to convict the accused of murder as charged. Mrs Mupawaenda urged the court to acquit the accused because her calling out for help and going to wake up Dzenga is not consistent with her having set the deceased on fire. She also pointed out that if the police had believed that she had set the deceased on fire they would not have, taken her to hospital to look after the deceased. During the clarification of the written submissions by the court Mr Taruvinga conceded that the fact that the accused called out that the deceased had set himself on fire and followed it up by her going to knock on Dzenga’s door to pass on the same message is not consistent with her having set him on fire. He also conceded that the fact that the cardboard box which was wet with paraffin did not catch fire is not consistent with the state’s allegation that the accused set the deceased on fire as he slept on it. If that was true the cardboard box would also have caught fire. The fact that it did not is consistent with the accused’s version that the accused stood up from where they were seated on the card board box, doused himself with paraffin, and set himself on fire.  Mr Taruvinga also conceded that the fact that the deceased did not call out for help as he was burning right up to the time Denga put out the fire is consistent with his having set himself on fire to commit suicide as he had told the accused he would do if she did not agree to go back with him.

Mr Taruvinga’s concessions are consistent with common cause evidence. We are satisfied that they were properly made. If the deceased was set on fire while he was asleep as alleged he would have been burning for a while before he woke up, and the card board box he was sleeping on and was wet with paraffin would also have caught fire. The fact that he would have been on fire for a long time would have resulted in the fire having been well established and spread when he woke up so that the card board box and the cabin would have caught fire. It is also inconceivable that the accused would have set the deceased on fire as alleged when her child was sleeping in the cabin. If the deceased was not committing suicide why would he suffer in silence, only to allege the accused had set him on fire when Dzenga had put out the fire and had asked him what happened. I appreciate that his statement was made when he had not had time to reflect on the effects of the burning. It however cannot borrow credibility from its being admissible under the res gestae exception to the inadmissibility of hearsay evidence, because it was part of the plan leading to his setting himself on fire. Statements made contemporaneously to an event which should have stilled the speaker’s faculties can only be reliable if they are not part of the speakers plan for placing himself in such circumstances.

In the result we are satisfied that it is not safe to convict the accused as the circumstances of this case suggests that the deceased could have committed suicide.

The accused is therefore found not guilty and is acquitted.

The Attorney- General’s office,legal practitioners for the State

Mupawaenda & Musara,Accused’s Counsel (Prodeo)