1

HH 254-15

CRB 64/14

 

THE STATE

versus

SHANANGURAI TOTAMA

and

ANDREW TOTAMA

 

 

HIGH COURT OF ZIMBABWE

MAWADZE J

HARARE, 7, 8 & 9 July, 1 August, 15 & 23 September 2014

                   and 17 March 2015

 

 

Assessors 1.     Mr E.N. Barwa

                 2.    Mr Chogugudza

 

 

Criminal Trial

 

 

D.H. Chesa, for the State

M. Mandikumba, for Accused 1

Ms W. Chirongoma, for Accused 2

 

 

            MAWADZE J: Both accused persons were arraigned before this court facing one count of murder as defined in s 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. They both pleaded not guilty to the charge.

            The charge is that on 14 September 2011 at Matedza Village in Mutoko accused 1 Shanangurai Totama (accused 1) and accused 2 Andrew Totama (accused 2) or one or both of them unlawfully and with intent to kill caused the death of PROGRESS NYAKABAU by striking her with stones on the head causing injuries from which she died.

            The allegations made by the State are for a ritual murder.

            Accused 1 is the son of accused 2 and at the material time accused 1 was 15 years old. The now deceased who was 9 years old and in Grade 3 at Matedza Primary School was a neighbour of both accused 1 and 2. The now deceased was staying with her grandparents Slyvia Mapeka and Zephania Mapeka.

            It is alleged that on 14 September 2011 accused 2 the father asked accused 1 the son to acquire for accused 2’s ritual purposes human blood and human brains in order to boost accused 2’s grinding mill business. It is alleged that accused 1 was promised to be rewarded with one of accused 2’s grinding mills.

            Pursuant to the plan, it is alleged that on 14 September 2011 at about 1500 hours accused 1 met the now deceased who was alone on her way home from school. It is alleged that accused 1 chased after the now deceased and caught up with her. Accused 1 is alleged to have assaulted the now deceased with stones on the forehead until she was unconscious and left her near the banks of Nyamutoraheti river. The now deceased was later discovered unconscious some 30m from the river with deep cuts on her forehead. Her pants and property were missing. It is alleged that accused 1’s footprints were later found at the scene and accused 1 fled to Nyanga before he could be arrested and was only arrested in Nyanga on 2 October 2011. It is further alleged that after his arrest accused 1 implicated accused 2 his father who was in turn arrested on 3 October 2011.

            Meanwhile the now deceased on 14 September 2011 was rushed to Matedza clinic from which she was referred to Mutoko District Hospital. However the now deceased died on her way to the hospital the same day due to head injury inflicted upon her.

            It is alleged that after his arrest accused 1 made indications which led to the recovery of the now deceased’s missing property being a school satchel bag, navy blue pants, jersey and a lunch box. Accused 1 is also said to have made indications at the scene.

            Accused 1 in his defence outline said on the day in question he had been sent by his father accused 2 to fetch diesel at Magarirevhu Business Centre when he met the now deceased on the way. Accused 1 said he lured the now deceased to the river bank with the intention of raping her not killing her. Accused 1 said while at the river bank he attempted to rape the now deceased and successfully removed her pants but the now deceased somehow wrestled free and started to run away threatening to report accused 1. In a bid to cover up what he had done accused 1 said he decided to instil fear into the now deceased in order to prevent her from reporting the attempted rape. Accused 1 said he picked a stone and commanded now deceased to stop or risk being hit by the stone. Accused 1 said he proceeded to throw the stone in the general direction of the now deceased in a bid to frighten her but as fate would have it the now deceased looked back and was fortuitously struck on her forehead. As a result she fell headlong hitting on to another stone on the forehead. Accused 1 said he left the scene proceeding to the Business Centre to fetch diesel. Accused 1 said it was only on his way back that he met the now deceased’s grandfather Zephania Mapeka at the scene of crime who was now with the now deceased and that the now deceased was still alive. Accused 1 said he called for help from the Chihota family whose homestead was close by. Accused 1 said at the time of the offence and the time of his arrest he was only 15 years old hence he gave an untruthful account to the Police upon his arrest implicating accused 2 his father. Accused 1 said he had been coached to lie and implicate accused 2 by one Couche Mauye.

            Accused 2 on the other hand in his defence outline challenged the admissibility of accused 1’s warned and cautioned statement to the extent it implicates accused 2. Accused 2 denied that he was involved in any way to the events leading to the now deceased’s death. Accused 2 said he indeed sent accused 1 on 14 September 2014 being his son to collect diesel at the local business centre. Accused 2 said he remained at home and accused 1 only returned at about 1830 hours and handed over the diesel to him after which accused 1 left for a church service and he retired to bed.  Later accused 2 said he was only advised the next morning on 15 September 2011 by a member of the Police Special Constabulary that accused 1 his son was implicated to the death of the now deceased. Accused 2 said he in fact helped the Police to identify accused 1’s foot prints at the scene of crime. Accused 2 said accused 1 who had fled on 15 September 2011 was later arrested and that he was only arrested after accused 1’s arrest. Accused 2 flatly denied the charge.

            The evidence of 5 State witnesses Sylvia Mapeka, Mary Chiedza Nhau, Mareweni Elina Kanoyangwa, Spencer Gopito and Dr Kudakwashe Matsenga was admitted by consent in terms of s 314 of the Criminal Procedure and Evidence Act [Chapter 9:07]. In a summary, the evidence is as follows:

Sylvia Mapeka

            She is now deceased’s grandmother and the wife of Zephania Mapeka. She was staying with the now deceased and is a neighbour to accused persons.   

            Her evidence is that the now deceased on 14 September 2014 at 0700 hours left for school as usual in good health but by 1700 hours she was not yet back which was unusual. This caused her husband Zephania Mapeka to go and search for the now deceased. She was advised 15 minutes later by her husband that the now deceased had been found alive but unable to speak.

            The now deceased was then ferried to local Matedza clinic after which she was transferred to Mutoko District Hospital but died on the way.

Mary Chiedza Nhau

She is a nurse at Matedza clinic and on 14 September 2011 about 1900 hours she attended to the now deceased when now deceased was brought to the clinic. She noted the following:

1. that the now deceased had no pant.
2. that the now deceased’s genitalia was not interfered with because there were no genital injuries, no signs of penetration or traces of semen on the now deceased’s vagina and anus.
3. bruises on the cheeks were indicative of the fact that she had been dragged with her face downwards.
4. that the now deceased was unconscious and could not respond to her name or stimuli.
5. In terms of treatment she said she tried to administer intravenous infusion (drip) for rehydration purposes but the drip did not run as the now deceased’s veins had collapsed.
6. She referred the now deceased to the Mutoko District Hospital as she felt that the now deceased was gasping for breath and her lower exteremeties were now cold.

The value of Mary Chiedza Nhau’s evidence is that the now deceased who had left for

school in good health as per Sylvia Mapeka’s evidence had been badly injured and battling for life. Strangely she had no pants.

Mareweni Elina Kanonyangwa

            Her testimony is of little probative value. She is the one who provided a motor vehicle to ferry the now deceased from Matedza clinic to Mutoko hospital. She said after about 7 km at about 2100 hours her motor vehicle broke down and that within 15 minutes the now deceased stopped breathing. This confirms that the now deceased died on her way to Mutoko District Hospital.

Spencer Gopito

            He is a Police detail based at ZRP Mutoko and attended to now deceased’s body upon its arrival at the Police station on 14 September 2011. He made the following observations:

1. the now deceased had two deep cuts on the forehead
2. the now deceased’s head was swollen especially at the back.

Dr Kudakwashe Matsenga

            He examined accused 1 at Mutoko District Hospital in terms of the Mental Health Act [Chapter 15:12] and compiled exh 7. The doctor made the findings that accused 1 was oriented in time, place and person. Accused 1 had no delusions or hallucinations. It was the doctor’s finding that accused 1’s memory and intelligence were appropriate for his level of education. Accused 1 did not suffer from any form of mental disorder.

            The mental state of accused 1 at the material time and as at now is not in issue. We can only speculate that this mental examination was probably necessitated by the bizarre manner the now deceased had met her death at the hands of a very young boy accused 1 then aged 15 years.

            The following 8 exhibits were produced by consent and the value of each exhibit is also explained in following manner:

Exhibit 1                     – is the now deceased’s pair of blue pants. It is not in issue that when

                                       now deceased died her pants had been removed and were later

                                       recovered during investigations. The accused in his evidence

                                       admitted that it is him who had removed the now deceased’s pants.  

Exhibit 2 – (a) to (c)  -    consists of now deceased’s school satchel bag, lunch box and blue  

                                       jersey respectively. This property was not found at time now

                                       deceased was located unconscious by Zephania Mapeka. It is not in

                                        issue that this property was later recovered after now deceased’s

                                        death. The State allege that the property was recovered on accused  

                                        1’s  indications after his arrest. Accused 1 proffers no explanation.

Exhibit 4 (a) to (f)       -  these are photographs taken on indications made by accused which

     are recorded as follows:

 

Exhibit 4(a)                 - is the place where accused 1 indicated that he assaulted the now 

                                      deceased using two stones.

Exhibit 4 (b)                - is the place where accused 1 said he picked the two stones used to

   assault the now deceased.

Exhibit 4 (c)                - is the place where accused 1 indicated where he laid down the now

                                      deceased who was bleeding profusely in the grass.

Exhibit 4 (d)                - is the place where accused 1 indicated that he left the now deceased’s

                                       property i.e the satchel bag, drinking bottle, blue pair of pants, blue

                                       jersey, lunch box and a ball point pen. As already said it is alleged

                                       that it was as a result of accused 1’s indications that this property

                                       was recovered.

Exhibit 4 (e)                - is a photograph of now deceased body lying on the table just before a

                                       post mortem was done.

Exhibit 4 (f)                - are two photographs showing two deep cuts on the forehead of the

                                      now deceased taken just before the post mortem report.

            It is clear from exh 4 (a) – (f) that accused 1 indeed made indications as outlined. Further, accused 1 later gave a somewhat different account on what happened when he testified which is at variance with these indications. While accused admitted removing the now deceased’s pants he insisted they remained by the now deceased’s side which is at variance with exh 4 (d) the place the pants and other property were found. In his evidence accused sought to put into issue that he used two stones exh 3(a) and (b) as per indications on exh 4 (a) and 4 (d). Instead accused’s version was that he only threw one small stone at now deceased. While exh 4 (a) and exh 4 (c) clearly show that the place accused 1 first assaulted the now deceased is different from the place where he later laid down the injured now deceased, in his evidence accused 1 gives a different scenario. This leads me to exh 3 (a) – (c).

Exh 3 (a)                     - is a big stone weighing 9 kg.

Exh 3 (b)                     - is a smaller stone weighing 4.4 kg 

Exh 3 (c)                     - is proof of weight of the stones exh (a) and (b).

It is the state case that accused 1 used the two stones exh 3(a) and (b) to assault the now deceased. The accused disputes this and insisted that the stone he used is not part of the exhibits and was very small like his clenched fist.

            Exhibit 5 is the sketch plan drawn on the indications made by Emmanuel Rinemhota a teacher at Matedza Primary School who is also a member of the police special constabulary and accused 1. We have noted the following valuable aspects of indications made by the two.

            In respect of Emmanuel;

1. He indicated point C which is a place in the river bed where he observed blood  
2.  

            ii)         He indicated point D also a place in the river bed where the two stones                               used to assault the now deceased were removed.

            Accused’s indications

1. Pont A – is the place accused 1 indicated he met the now deceased on the day

in question which point is along a footpath just before the Nyamutoraheti river.

            ii)         Point B – depicts as per accused’s indication the route accused 1 and the now                    deceased took from the path to the river bed.

1. Point C – is the place where accused indicated he assaulted the now deceased using the two stones which place is in the river bed. It is important to note that this is the same place Point C where Emmanuel Rinomhota observed blood stains.
2. Point E – is the place accused 1 said he concealed of one of the stones he used to assault the now deceased. It is about 6m from point C the place the assault

took place.

1. Pont F – is the place accused laid down the now deceased whom he said by

then was bleeding profusely. This point is way out of the river bed.

            We noted that accused 1 was again unable to reconcile the indications he made in exh 5 and as per exh 4 with his evidence in court.

            Exhibit 6 is the post mortem report compiled by Dr Simbarashe Kautare, on 16 September 2011, two days after the now deceased’s death and the following were noted;

            i)          2 deep lacerations or the forehead whose depth or length is not given.

            ii)         bulgy, boggy right side of the head – the parietal region.

            iii)        swollen head with hematomas around the head.

            iv)        no signs of genital penetration or bruises on the genital region.

            v)         that there were no other injuries on the body

            vi)        that the cause of death was due to head injury

           

            Dr Simbarashe Kautare gave viva view evidence pertaining to this post mortem report. In his evidence he confirmed the injuries outlined above and explained that the now deceased was fatally injured on the right side of the head where the skull had been shattered to the extent that he could fell and hear the “crr-rr-rr” sound made by the shattered skull bones as he felt it. He further explained that the swelling and hematoma around the head was indicative of the collection of blood in an area it was not supposed to be. In his evidence he said a lot of force was used to hit the now deceased’s head shattering the skull which he said is made of very hard bone and that in view of the nature of the head injuries several blows were inflicted not one blow as accused said. In his assessment of the injuries the Dr Simbarashe Kautare said the now deceased could have been hit while lying down on her left side and that further blows should have been inflicted while the now deceased was unconscious because there was apparently no resistance which if present would have caused injuries on the now deceased’s body other than the head. Dr Simbarashe Kautare confirmed that in view of the nature of injuries inflicted accused 1 may have used the two stones exh 3 (a) and (b) either by using the stone to hit the head or by hitting the head against the bigger stone – bashing the head. He totally discounted the possibility that accused 1 had sexual intercourse with the now deceased as he found no evidence of penetration or bruises on now deceased’s genitalia.

            Dr Simbarashe Kautare also examined accused in relation to his mental state and compiled exh 7 on 3 October 2011 at Mutoko District Hospital. He found no facts indicative of any mental disorder on the part of accused and concluded that accused 1 was of sound mind. The findings were not point in issue by accused 1.

            Under cross examination Dr Simbarashe Kautare denied that the injuries inflicted on the now deceased could have been inflicted in the manner explained by accused 1, that is, by throwing a small stone hitting now deceased on the forehead and the now deceased then falling hitting her head against a stone.

            The Doctor reasoned that if one falls one is injured all over the body not at one place. Further the Doctor said the force used to shatter the now accused’s skull could not have been a result of either a small stone hitting the now deceased or falling on the same stone. Commenting on the allegations of ritual murder through extraction of both the blood and the brains Doctor Simbarashe Kautare said only blood could have been extracted as the now deceased bled profusely but that no  brain was extracted  as the skull though shattered was intact. He stated that the injuries exhibited on exh 4 only relate to bruises on the forehead and that the photograph does not show the two deep lacerations on the same forehead. The Doctor explained that the cause of death was due to head injuries which caused internal bleeding of the brain which is fatal. He said the fatal blows were delivered on the right side of the now deceased’s head which fractured the skull. He maintained under cross examination that the most accused 1 may have achieved is attempted rape not rape.

            The evidence of Dr Simbarashe Kautare was not put into issue and it corroborates the evidence of Mary Chiedza Nhau this nurse of Matedza Clinic who first attended to the now deceased. Both did find that although the now deceased’s pants had been removed she had not been sexually abused. The cause of the now deceased’s death is very clear that it was as a result of head injury inflicted by accused 1 which shattered her skull. We are therefore inclined to accept this clear medical evidence.

            Exhibit 8 is a copy of accused’s birth certificate which shows he was born on 18 November 1995 which would mean that on the day in question 14 September 2011 accused 1 was 15years 10 months old.

            In addition to the evidence of the five witnesses which we have already alluded to the state called the following witnesses, Zephania Mapeka, Nyasha Chihota, Emmanuel Rinomhota, Washington Chinyunyu, Detective Sergeant Edmore Chimera and Dr Simbarashe Kautare whose evidence we have already dealt with.

            In view of the fact was most of the facts are not an issue and that the evidence of the witnesses is not seriously disputed there is no need to deal with the evidence of each witness in detail. We turn to the viva voce evidence led;

            Nyasha Chihota

            Nyasha Chihota (Nyasha) who is now 12 years old gave evidence, by consent using the Victim Friendly Court system, that is close circuit television as a vulnerable witness on account of her age. The now deceased was her classmate and they came from school together on 14 September 2014. She arrived at her home first as now deceased’s home was further and now deceased would proceed on her own. She said as they parted ways accused 1 arrived and asked the now deceased to go with him but the now deceased refused by shrugging her shoulders. She said accused then left taking the direction of the local business centre and the now deceased proceeded home. Nyasha said later that day as it was getting dark she again met accused 1 near her homestead and accused was  carrying a plastic container and a bottle saying he had been sent to buy diesel. This was long after she had initially met accused 1. She denied that she saw accused 1, chasing after the now deceased.

            Nyasha’s evidence is unchallenged. It is a common cause that accused met Nyasha and the now deceased on the day in question as explained by Nyasha.

            Zephania Mapeka

            Zephania Mapeka (Zephania) is the now deceased’s grandfather who on 14 September 2014 went to look for the now deceased after she delayed to arrive home as it was sunset. He give the following narration;

            Zephania said he used the same route the now deceased used to and from school and as he got out of his farm near Nyamutoraheti river he heard a groaning sound consistent with a person in pain, “Eheeee-e-e-e-e-“ about three times. He went off the road and in the bush he saw the movements of grass and when he got closer he realised it was the now deceased. The now deceased could not talk, was badly injured on the head and had difficulties in breathing. In panic he called out for help shouting at people at nearby Chihota’s homestead but he was answered by accused 1 who was nearby in the bush. Although accused’s presence surprised him he still wanted help so he told accused 1 to call people at Chihota’s homestead as now deceased was badly injured.

            Zephania said the now deceased was about 300m from the road and accused 1 was just 20m from the now deceased when he answered to Zephania’s calls. He ferried the now deceased on his back to the local clinic but could not find the now deceased’s satchel bag with her lunch box and blue jersey. He said these items were only recovered by the police. He confirmed that the now deceased died on the way to Mutoko Hospital that same day.

            Zephania said the next day he visited the scene with members of the Neighbourhood Watch Committee (NWC) and observed that there were blood stains in the river bank and one of the stones had blood stains. No useful questions were put to Zephania in cross examination and his evidence is unchallenged.

            Emmanuel Rinomhota

            He was the now deceased’s teacher and had been a member of the Police Special Constabulary since 2004. He knew accused as a former pupil at the school. Emmanuel Rinomhota (Emmanuel) said he received the report at night that the now deceased had been injured and ferried to a local clinic. He rushed to the clinic and found the now deceased unable to talk. He attended the scene the next morning on 15 September 2011 with colleagues Obvious  Chihota and Telford Chihota.

            Emmanuel testified that he first identified the place where deceased had been found lying injured as the grass was disturbed and there were blood stains on the ground. He had been advised the previous night that the now deceased’s school bag, lunch box and jersey were missing so they searched the area for the items to no avail. They proceeded to the nearby river bank were they saw blood stains on the riverbank and recovered two blood stained stones exh 3(a) and (b).

            At this spot there were also some footprints so they went to a nearby homestead to look for dish to cover the footprints so that they would not be disturbed. They got the dish and met accused 2 who then accompanied them. To their surprise they found that the footprints had been erased using a tree branch but the culprit in the process still left similar footprints. These footprints were identified by accused 2 and those of accused 1 his son. They trekked the foot prints which led them to accused 1 and 2’s homestead but when accused 1 saw them he fled only to be arrested later in Nyanga.

            Under cross examination Emmanuel denied that the now deceased’s missing items were recovered at the place now deceased was located by Zephania. He said accused 1 was being untruthful in that regard as they searched the area for the items to no avail. Emmanuel said it was clear accused 1, who should have been close by when they visited the scene, is the one who erased his foot prints in the river bed and covered blood stains with soil as his foot prints were identified by accused 2 his own father and they led to accused’s residence. He said accused 1 betrayed himself as he fled on seeing them. Emmanuel said accused 2 looked genuinely concerned of what had happened and was eager to help. Again the evidence of Emmanuel reads well and is largely unchallenged.

            Washington Chinyunyu

            Sergeant Washington Chinyungu was the initial investigating officer in this case after which he handed over to the matter to Detective Sergeant Chimera of CID.

            In his evidence he explained that he received the report of the now deceased’s death on 14 September 2014 and he ferried the now deceased’s body for a post mortem. He said the next day15 September 2011 he attended to the scene of the crime. At the scene he recovered the two stones exh 3 (a) and (b) in the river bed about 30m from the place where there were visible struggle marks. He said the two stones exh 3 (a) and (b) were taken as an exhibit because they were blood stained. No useful questions were put to him in cross examination.

Detective Sergeant Edmore Chimera

            Detective Sergeant Edmore Chimera (D/Sgt Chimera) told the court that he took over the matter from D/Sgt Washington Chinyunyu about 2 weeks after the incident and no one had been arrested although accused 1 who was the suspect was on the run. He had assisted in taking the now deceased’s body to hospital for a post mortem and had been present when exh 3 (a) and (b) the two stones were recovered.

            D/Sgt Chimera said police details in Nyanga arrested accused 1 on 2 October 2011 and accused 1 was handed over to him. He proceeded to interrogate accused 1 who then implicated his father accused 2 in the murder of the now deceased. The version accused 1 told him which he reduced to a confirmed warned and cautioned statement (his counsel referred to it in cross examination and undertook to tender it as exhibit) was that accused 1 said his father had sent him to go and kill the now deceased after which he, accused 1 was to extract blood and brain from the now deceased which accused 2 would use for ritual purposes to enhance accused 2’s grinding mill business. This prompted D/Sgt Chimera to arrest accused’s father who is accused 2. He said accused 2 however vehemently denied the charge.

            D/Sgt Chimera said accused 1 in buttressing his story that he had been sent by accused 2 to commit the murder said he had extracted the blood and the brain from the now deceased which he handed over to accused 2 and that accused 2 had taken them to a traditional healer/n’anga called Bomani in Fombe area for the ritual to be done. D/Sgt Chimera said he visited the n’anga Bomani and Bomani denied this and showed   D/Sgt Chimera the records of all patients who visited him and accused 2 was not one of them.

            On 6 October 2011  D/Sgt Chimera said accused 1 agreed to make indications at the scene which he did voluntarily and besides photographs taken exh 4 (a) – (d) he also reduced the indications to a sketch plan exh 5. We have already eluded to both exh 4 and 5 in detail. However D/Sgt Chimera said accused 1 inter alia made the following indications;

1. The place where accused 1 had picked the two stones exh 3 (a) and (b) used to assault the now deceased and the place where he later left the two stones. Both places are in the river bed.
2. The place where accused 1 hid the now deceased’s satchel bag with her items including lunch box and blue jersey which was in the bush close to the place the now deceased was found by Zephaniah Mapeka. He is the one who recovered these items exh 1 and exh 2 (a) – (g).
3. He took all the photographs in exh 4 and drew sketch plan exh 5.

D/Sgt Chimera said accused 1 also explained to him how he had committed the offence. Accused 1’s explanation was that he had also raped the now deceased after which the now deceased tried to flee from the scene of rape which made accused 1 scared that the now deceased would immediately report him to her guardians Sylvia Mapeka and Zephaniah Mapeka. Accused 1 explained to him that he, accused 1, held the now deceased from the back, forced her down and proceeded to strike her with two stones, inflicting the injuries.

Under cross examination by accused1’s counsel D/Sgt Chimera said while accused 1 in his warned and cautioned statement (shown to the witness by the defence counsel for accused 1) said he had successfully extracted blood and brain from the now deceased, the injuries he noted on the now deceased were just deep cuts on the forehead and the brains could not have been possibly extracted. This was confirmed by Dr Simbarashe Kautare in his evidence.

D/Sgt Chimera explained under cross examination by accused 1’s defence counsel that accused 1’s explanation was that he had hit the now deceased with the stones while the now deceased was lying down facing upwards. Again Dr Simbarashe Kautare said this could be the likely position the now deceased was in when she got injured.

D/Sgt Chimera confirmed under cross examination by accused 1’s defence counsel that the medical evidence he gathered was inconsistent with and not supportive of accused 1’s so called confessions. D/Sgt Chimera confirmed that the post mortem report was inconsistent with brain extraction and also inconsistent with the rape confession despite accused 1’s insistence that he had raped the now deceased first in the river bed before attacking her with stones. D/Sgt Chimera said accused 1 explained to him that he, accused 1, had lured the now deceased to the river bed forcefully grabbing her school satchel bag and that when the now deceased followed accused 1 he held her and raped her.

Under cross examination by accused 2’s defence counsel D/Sgt Chimera confirmed that accused 2 denied the allegations and that the only evidence he gathered  implicating accused 2 was accused 1’s word.

Our assessment is that D/Sgt Chimera’s evidence is clear and straight forward. He was able to answer meaningfully all questions put to him by counsel for accused 1 and 2. We find him to be a very objective and truthful witness who was willing to reveal even the contradictions in accused 1’s so called confessions. We accept his evidence.

 

Dr Simbarashe Kautare

            We have already summarised in detail and analysed Dr Simbarashe Kautare’s evidence when we discussed both exh 6 the post mortem report he compiled and Exh 7 the medical report he also compiled after examining accused’s mental state. We gave reasons why we accept Dr Simbarashe Kautare’s evidence.

            Our analysis of the evidence led by the state reveal that the following issues are not in dispute;

1. that on 14 September 2014 towards sunset accused 1 met the now deceased who was alone coming from school along a foot path near Nyamutoraheti river.
2. that accused 1 took the now deceased off the road to the river bed of Nyamutoraheti river.
3. that accused 1 inflicted the injuries explained in the post mortem report of the now deceased.
4. that the injuries inflicted on the now deceased were severe and fatal as the now deceased died shortly thereafter the same day on the way to hospital due to head injuries.
5. that accused 1 fled from his home the next day of the incident on 15 September 2011 and was arrested in Nyanga on 2 October 2011.
6. that after his arrest accused 1 implicated accused 2.
7. that accused 1 made indications at the scene after his arrest as per exh 4 (a) –(g) and exh 5
8. that at the time  the now deceased was found injured her parts had been removed and her satchel bag, lunch box, bottle drink and jersey were missing and were only recovered on accused 1’s indications after arrest
9. that the medical evidence does not show that brain was extracted from the now deceased nor that she was sexually abused.

What we find to be in contention which the court has to resolve is;

            i)  the manner in which accused 1 attacked the now deceased.

ii)  what motivated that attack and whether it supports the charge of murder

iii) accused 2’s role in the murder

            We now turn to the evidence of both accused 1 and 2 to resolve these issues.

 

Accused 1 Shanangurai Totama

            Accused 1 adopted his defence outline as his evidence. In his evidence accused 1 maintained that the now deceased was injured in the manner he explained in his defence outline. The explanation accused 1 insisted upon is that he hit the now deceased by throwing a fist size stone at her when she looked back while running away from accused 1’s sexual advances. Accused 1 stated that further injuries were sustained by the now deceased when she fell down after being hit with the stone and hit her head against a bigger rock. Accused 1 denied that he used the two stones exh (a) and (b) to assault the now deceased. He also denied that he intended to kill the now deceased.

            Under cross examination accused 1 was unable to explain why State witnesses were able to identify struggle marks at the scene in the river bed as accused 1 insisted he did not struggle with the now deceased. Accused 1 had serious difficulties in explaining how he said he attempted to rape the now deceased. Under persistent probing by Mr Chesa for the State accused 1 said he forced the now deceased to the ground, removed her pants and that before he could have sexual intercourse with her, the now deceased somehow wrestled free and fled causing accused 1 to hit her with a stone.

            Under cross examination accused 1 insisted that the pants and all other items exh 2 (a) – (c) remained at the place the now deceased fell down. Accused 1 was unable to explain why the items were not found at the time now deceased was located by Zephania Mapeka or at the time Emmanuel Rinomhota searched the area the next morning.

            Accused one denied that he is the one who wiped the foot prints identified at the scene by Emmanuel Rinomhota, Accused two and others.  He insisted he was nowhere near the scene at that time.  Accused one however admitted fleeing from his home that very same day soon after the discovery of the foot prints on 15 September 2011 and that he was hiding in Nyanga until his arrest after three weeks.

            Under cross examination accused one said he initially implicated accused two in some ritual murder of the now deceased because he had been influenced by one Couch Mawuyu to implicate accused two.  Accused one was unable to explain why Couch Mawuyu would want accused two implicated in the matter.  Accused one admitted that he later changed his story as per his defence outline and is now exonerating accused two.  Accused one said he is motivated by the desire to be truthful and realised the impropriety of falsely implicating an innocent man accused two, his father.

            Our assessment of accused one’s evidence is that he is a young boy or man who seems unwilling to tell the truth of what happened on the day in question.

            In terms of s 8 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (The Criminal Code) there is no presumption of criminal incapacity for accused one who was 15 years at the material time.  The relevant provision states:-

 

            “8 No presumption of criminal incapacity for person over the age of fourteen years.

For the avoidance of doubt it is declared that no person who is of or over the age of fourteen years shall be presumed to lack the capacity to form the necessary intention to commit any crime or, where negligence is an element of crime concerned, to behave in the way that a reasonable person would have behaved in the circumstances of the crime.”  

 

            It is clear therefore that accused one’s age at the material time while relevant in assessing his evidence it is not evidence supporting accused one’s lack of criminal capacity in terms of the law to commit the offence of murder or culpable homicide.

            We are unable to find accused one as a credible witness as his evidence is riddled with falsehoods, contradictions, and material omissions which make it highly improbable if not untruthful.  Few examples would clearly bring this point home.

            Upon arrest accused one implicated accused two in some ritual murder of the now deceased causing accused two’s arrest.  Accused one maintained this position in his warned and cautioned statement which was confirmed.  Accused one even gave details of how he had been instructed to kill the now deceased and extract both blood and brain to be used as some juju to enhance his father, accused two’s grinding mill business.  This is a lie  Accused 1 said he told the police and the magistrate who confirmed his statement.  If indeed this is a lie then it is clear that accused one is capable of misleading anyone, moreso as he had the gall to falsely implicate his father, accused two.

            Upon his arrest accused one also said that he had raped the now deceased, not that he had attempted to rape her.  Again this is in all probabilities is a lie as the medical evidence as per exh 6 and the evidence of the nurse Mary Chiedza Nhau and Dr Simbarashe Kautare does not support accused one’s lie.  This probably explains why accused one during the trial had changed his story to say he only attempted to rape the now deceased.

            As already said during the trial accused one exonerated accused two as per his defence outline.  Accused one was unable to explain at what point he experienced this Damascene moment.  Accused one also retracted his story that that he had extracted some blood and brains from the now deceased.  Again as is shown from medical evidence it is not possible from the injuries inflicted that accused one could have extracted the now deceased’s brain.

            In our view accused one has been unwilling to tell the whole truth of what exactly happened during his encounter with the now deceased and how he assaulted her.  Accused one’s version of events in court is at variance with the indications he made as per exh 4 and exh 5.  Our view is that the truth lies in the indications accused one made as per exh 4 and exh 5 which clearly show the place he met the now deceased, the route he took with the now deceased river bank, the place he assaulted the now deceased and where he picked the stones exh 3 (a) and (b), the place he carried and laid down the now deceased in the bush from the river bank and the place he hid the now deceased’s items exh 2.  We therefore dismiss accused one’s story that he just held the now deceased who wrestled free force and hit her with a small stone after which he left her lying down.

            It is our finding that it is accused one who the next day after the incident on 15 September 2011 erased his foot prints at the scene after they had been discovered by Emmanuel Rinomhota and identified by accused one’s father.  No other person would have had any interest to erase these foot prints.  In fact accused one betrayed his conduct by immediately fleeing from home.  Again this suggests a very devious mind on the part of accused one who seemingly kept an eye on the scene of crime to ensure that no incriminating evidence is found.

            In view of the medical evidence placed before us we are inclined to reject accused one’s version of how he assaulted the now deceased.  It is clear from the evidence of Dr Simbarashe Kautare and from the injuries the now deceased sustained that the now deceased was attacked with very huge stones exh 3(a) and (b) not a small fist like stone as accused one said.  This explains why exh 3(a) and (b) were found at the scene in the river bed and were also blood stained.  It also explains why the now deceased’s skull was crushed on the right side.  We therefore dismiss as false accused’s version that he threw a stone and hit the now deceased inadvertently on the forehead and that the now deceased in turn fell and hit against a rock.  Dr Simbarashe Kautare’s credible version is that accused one in all probabilities struck the now deceased as she lay down either by bashing her head against the big stone or lifting the stones with two hands crushing them on deceased’s head.  It is clear from the medical evidence that these serious injuries were inflicted on the 9 year old deceased when she was unable to resist.  Further a lot of brutal force was used as the skull was crushed on the right side which was boggy.

            In our view this bizarre attack was motivated by accused one’s desire to have sexual intercourse with the now deceased which should have horribly gone wrong.  It is highly improbable that accused one at that age would be entrusted by his father accused two to commit a ritual murder involving a complicated process of extracting the brain in the area close to homesteads and with no assistance from either accused two or any other person and in broad day light.  It is therefore our finding that accused one who had lured the now deceased to the river bank by snatching her satchel attacked her in a bid to overcome her resistance.  While the exact details may never be established it is clear that accused one managed to remove the now deceased pant and at most attempted to rape her.

            In view of accused one’s age at the material time and what motivated the attack which is the desire to subdue and rape the now deceased we are unable to find that accused one intended to kill the now deceased as is defined in s 47 (1) (a) of the Criminal Code.  What we find to have been proved beyond reasonable doubt is that accused one caused the death of the now deceased realising that there was a real risk or possibility that his conduct may cause death by attacking her in the manner he did with exh 3(a) and (b) and continued to attack her as is evidenced by the injuries on the forehead and the right side of the head despite the risk or possibility that death would result in contravening s 47 (1) (b) of the Criminal Code.  We are fortified in this finding by the fact that despite having inflicted severe injuries causing excessive bleeding accused one did not call for help but instead detained the injured now deceased in the bush until the fortuitous arrival of her grandfather Zephania Mapeka.  Only God knows what accused one still wanted to do.  It is clear that the injuries inflicted were fatal as the now deceased died within hours of the attack.

Accused two Andrew Totama

It is clear from the evidence led that there is no evidence which implicate accused two other than accused one’s initial statement which accused one has retracted from at the commencement of the trial.  We are therefore unable to agree with the state that there is evidence to support the allegations that accused two instructed accused one to commit a ritual murder.  There is no evidence to support the assertion that accused two incited accused one to commit the offence in contravention of s 195 of the Criminal Code.

            It is common cause that accused two was arrested solely on the basis that accused one implicated him.  No other evidence was found to implicate accused two.  In terms of s 259 of the Criminal Procedure and Evidence Act [Chapter 9:07] accused 1’s confession is inadmissible against accused two.  The relevant section provides as follows:-   

            “259. Confession not admissible against other persons

 

  No confession made by any person shall be admissible as evidence against any other person.”

 

            See also S v Sibanda 1992 (2) ZLR 438 (S) at 441F – 442A where it was held that the general rule is that an extra curial statement of a person is only admissible against its maker and that this general rule is subject to two exceptions which are:-

1. where the co accused by the words or conduct accepts the truth of his statement so as to make all or part of it a statement of his own – in the present case accused two has not behaved in that manner either by word or conduct or
2. in cases of conspiracy where statements made by one or two conspirators made in execution or furtherance of a common design are admissible in evidence against any other party to the conspiracy – in casu we have already pointed out that there is no evidence at all to suggests that accused two conspired with accused one to commit the alleged ritual murder.  

It is therefore our view that in the circumstances of this case neither of the exceptions to the general rule are applicable.  In any case accused one has even disowned his extra crucial statement implicating accused two.

            We are satisfied that accused two, on the evidence before us, cannot be convicted of the charge of murder in contravening s 47 of the Criminal Code or any other permissible verdict.

            Accordingly we have entered the following verdicts:-

Accused 1 – guilty of murder as defined in s 47 (1) (b) of the Criminal Code [Chapter 9:23].

Accused 2 – Andrew Totama – Not guilty and acquitted

 

 

National Prosecuting Authority, Counsel for the State

Chigwanda Legal Practitioners, Counsel for accused 1

C Kahuni Attorney, Counsel for accused 2