1

HH 355-15

                                                                                                                                                                                    CRB 67/14

 

THE STATE

versus

TAPIWA TSIKIRA

 

 

 

HIGH COURT OF ZIMBABWE

MAWADZE J

HARARE, 02, 03, 30 June 2014, 29 July 2014,

17, 18, 19, 30 September 2014, 02, 09 October 2014 and 2 April 2015

 

 

 

 

Assessors:        1. Mr W Chogugudza

                        2. Mr Mhandu

 

 

 

Criminal Trial

 

 

 

A Masamha, for the State

Ms L Munjere, for the accused

 

 

 

            MAWADZE J: the accused was arraigned before this court facing the charge of murder as defined in s 47 (1) of the Criminal Law (Codification and Reform) Act       [Chapter 9:23].

            The charge is that on 1 October 2009 at Devonia Farm Chinhoyi, the accused unlawfully caused the death of Sablina Ranganai by striking her with an axe on the head and lower limbs thereby inflicting injuries from which Sablina Ranganai died.

            The accused and the now deceased Sablina Ranganai were husband and wife respectively. They had been married for 6 years and had only one child aged 6-7 months. The now deceased’s age is estimated as 21 years.

            The allegations as per Annexure A are that on 30 September 2009 the accused and now deceased quarrelled as accused alleged that the now deceased had an extra marital affair with a man at the farm. It is alleged accused ended up assaulting the now deceased only to be restrained by Prisca Baker a neighbour who caused accused and the now deceased to sleep separately that night. The next morning on 1 October 2009 it is alleged accused yoked cattle and asked the now deceased to accompany him to the forest to collect some poles which accused had cut. The accused had an axe and the two left at about 0630 hrs. It is alleged that while in the bush accused attacked the now deceased with an axe and killed her. Prisca Baker who had remained with the accused and the now deceased’s 6-7 months baby followed to the bush as the child was crying at about 1030hrs and discovered the now deceased’s lifeless body covered with a Zambia cloth. She alerted fellow villagers and report was made to police. Meanwhile accused had fled and he later handed himself over to the police after some days. The post mortem was carried out and the cause of death was stated as due to penetrating head injury.

            In denying the charge the accused gave a lengthy defence outline covering 53 paragraphs. The defence outline can be summarised as follows;

            According to the accused the underlying problem between him and the now deceased was infidelity on the part of the now deceased and also the now deceased’s use of some supernatural powers to sexually incapacitate the accused.

            The accused said some one and half years before this incident he had caught the now deceased his wife having sexual intercourse in their kitchen hut with one Enock Manezhi and that they resolved the issue.  He had forgiven the now deceased.

            The accessed said few days before 30 September 2009 the now deceased left home and visited her parents. In her absence the accused said he discovered some male clothes in their bedroom hut. On 30 September 2009 accused said Enock Manezhi came to accused’s home in the absence of the now deceased looking for the now deceased. Accused said this infuriated him as he realised the love affair between the now deceased and Enock Manezhi may not have ended as he had believed. He also linked the male clothes he had discovered to Enock Manezhi.

            The accused said he confronted the now deceased upon her return on 30 September 2009 about her alleged infidelity but the now deceased denied it. The two had to sleep separately that night.  

            The next morning on 1 October 2009 the accused said he apologised to the now deceased and the two made up. Thereafter accused said he yoked cattle and was accompanied by the now deceased to go to the bush to collect poles. Accused said he left the now deceased at the borehole as he proceeded into the bush to collect the poles. The accused said while he was in the bush he was approached by the now deceased who was now in the company of Enock Manezhi. Accused said Enock Manezhi wanted to know why accused was making a fuss of about extra marital affair with the now deceased. As a result accused said he engaged in a fist fight with Enock Manezhi who left or fled from the scene.

The accused said after Enock Manezhi’s departure he confronted the now deceased and asked her to undo the ritual she had done which accused believed was causing him an erection dysfunction. The accused said the now deceased reacted by grabbing his penis and testicles which she squeezed until the accused fainted. When he regained consciousness the accused said he saw the now deceased who had left approaching him armed with an axe. In a pre-emptive attack the accused said he hit the now deceased with a pole on the legs causing her to fall down. Accused said he took the axe but the now deceased for the second time grabbed his sexual organs pulling them causing him severe pain. In order to cause the now deceased to release his sexual organs accused said he struck the now deceased with an axe on the legs but the now deceased would not let go his sexual organs and even pulled harder. In desperation the accused said he struck the now deceased on the head with the back of the axe. The deceased died instantly causing accused to panic. In a state of shock accused said he covered the now deceased’s body with her Zambian cloth and he fled to Kanyanye where his mother and step father reside. He disclosed to them what he had done and he was advised to go to the police. He handed himself over to the police in Chinhoyi.

            The accused stated that he did not intend to kill his wife the now deceased but acted in self defence. In addition it is also accused’s case that he had been extremely provoked by the presence of Enock Manezhi in the bush in the company of his wife which rekindled the memories of the previous relationship between the now deceased and Enock Manezhi.

            In support of his case the state called Jeffrey Dick, his wife Prisca Baker and two police details Sergeant Remember Murombo and Constable Shepherd Masendu. The evidence of Martha Chingande and Constable Edward Chirara was admitted in terms of s 314 of the Criminal Procedure and evidence Act [Chapter 9:07]. The other witness listed in the state summary Zeripa Chazuma did not testify and accordingly that evidence is struck out.  The state intended to call Dr Mukaka who carried out the post mortem but the doctor could not be located as he or she apparently left the country.

            The evidence of Martha Chingande and Cst Edward Chirara can be summarised as follows;

Martha Chingande

She is the wife of the Village Head and on 1 October 2009 she and other villagers attended the scene in the bush where the now deceased’s body was found covered with a cloth.

 

Cst Edward Chirara

            Cst Chirara’s role was to draw the sketch plan Exh 3 which he drew on indication by the accused and Prisca Baker.

            The following exhibits were produced by consent;

            Exh 1 – the post mortem report

            Exh 2 – accused’s confirmed warned and cautioned statement

            Exh 3 – the sketch plan

            The cause of the now deceased’s death is not in issue.  The now deceased’s body was examined by Dr S Mukaka on 5 October 2009 and the doctor made the following observations and findings;

1. That the body was in a decomposing state
2. The now deceased was bleeding from both nostrils
3. Deed (which should be deep), cuts noted on the head i.e. one on the occipital area ± 3cm and the other on the frontal area ± 2cm.
4. Two other deep cuts on both lower limbs
5. That the cause of death was due to a penetrating head injury.  These observations and findings by Dr Mukaka were not put in issue.  The now deceased therefore died from a serious injury inflicted on her head.

The accused admitted that he struck the now deceased with an axe on her head.  The fatal head injury was inflicted by the accused as per his own evidence.  There is therefore a causal link between the assault on the now deceased by the accused and her death.  The only narrow issue to be resolved is whether accused acted in self- defence and or under some provocation as alleges.

Before we could deal with that issue it is prudent to deal in brief with the evidence of the witnesses which evidence seems not to be in contention.

Exh 3 which is the sketch plan drawn by Cst Chirara on indications made by Prisca Baker and the accused is of very little probative value to the issues to be resolved by this court.  Be that as it may, it shows the route accused and the now deceased took from the village into the bush up to the point where accused indicated that he struck the now deceased with an axe on the head which is point B where now deceased was found.  What is important to note on Exh 3 is that accused did not make any indications in reference to issues he now raised in the defence outline and his evidence.  This includes lack of any reference to Enock Manezhi, the place he allegedly fought Enock Manezhi, the place he allegedly saw now deceased arriving now armed with an axe and the place he struggled with the now deceased.  No explanation was tendered by the accused as regards these material omissions.  The probability is that accused could not have made those indications as nothing of that sort happened.

Jefrey Dick

            Jefrey Dick (Dick) is an elder cousin to the accused and is married to Prisca Baker. Accused and now deceased were his neighbours and had known now deceased for 3-4 years.  He confirmed that accused and now deceased had only one child aged about 7 months.

            Dick told the court that on the night of 30 September 2009 after he had retired to bed with his wife the now deceased came running and budged into their bedroom.  The accused also arrived as the two had quarrelled.  Dick said the nature of the dispute that night was that accused was alleging that the now deceased was refusing to have sexual intercourse with him.  The accused was therefore on that basis alleging that the now deceased was denying him his conjugal rights because she had an extra marital affair.  Dick said he was able together with his wife Prisca Baker to resolve this dispute as the accused and the now deceased were made to sleep separately on 30 September 2009.  The now deceased slept with a visiting relative.

            The next morning on 1 October 2009 Dick said accused and now deceased seemed to have made up as they were on talking terms.  Accused then yoked cattle and both left for the bush to collect poles leaving their 7 month old baby in the custody of Prisca Baker at about 0700hrs.  Dick said after about 3 hours at 1000hrs they had both not returned and the child was crying.  This caused Prisca Baker to follow them.  Prisca Baker returned and informed him that she had found the deceased’s lifeless body in the bush apparently struck with an axe and that accused could not be found.  He alerted other villagers and later attended the scene where he did not see any struggle marks.

            Dick said on the night of 30 September 2009 accused never mentioned the name of the person he suspected to have an affair with the now deceased.  Under cross examination Dick said in the past accused had said he suspected the now deceased had an affair without disclosing the basis of his suspicion or the evidence he had.  Dick said at that time he told accused to gather evidence to support his suspicions and then act accordingly but no such evidence was brought to Dick’s attention.  Dick said Enock Manezhi a local villager was never mentioned by accused as the person who was having an affair with accused’s wife the now deceased.  In fact Dick said accused never mentioned the name of the person he said was possibly having an affair with the now deceased. Dick said accused and now deceased generally enjoyed good marital relations and he had no personal knowledge of the now deceased’s infidelity. Dick said accused was not a person of violent disposition.

            Dick’s evidence is not disputed.  We therefore accept his evidence.  All what Dick’s evidence show is that accused was probably very jealous of his 21 year old wife hence the suspicion that she may have been cheating on him.  If indeed accused knew the paramour he would not have failed to disclose the name to Dick. This puts into doubt that accused had found now deceased and Enock Manezhi having sexual intercourse. Further, accused did not mention to Dick that the now deceased had through supernatural powers incapacitated his manhood. Instead Dick said the dispute on that night was that accused wanted to have sexual intercourse with the now deceased who was not willing not that accused was unable to have sexual intercourse.

Prisca Baker

            Prisca Baker (Prisca) is the wife of Dick. She too confirmed that on the night of 30 September 2009 the now deceased came running and entered their bedroom. Prisca said the now deceased reported that the accused was taking issue as to why the now deceased was refusing to have sexual intercourse with him.

            Accused had arrived chasing after the now deceased. Prisca said the now deceased said she could not risk having unprotected sexual intercourse  with the accused as she had run out of her contraceptives (family planning tablets) but that accused would have none of that. Prisca said they resolved the issue with Dick by causing the now deceased to go and sleep with a grandmother who had visited so that the dispute could be resolved the next morning.

            Prisca said the next morning it appeared accused and now deceased had found each other as they talked together well and left for the bush to collect poles leaving their 7 months old baby in Prisca’s custody. However after about 3 hours they had not returned and the baby was crying so she followed them relying on the trail left by the chain of the cattle they had spanned or yoked.

            Prisca said right in the bush she was shocked to find the now deceased’s lifeless body lying on its back covered with a Zambian cloth. She called out for the accused but he was nowhere to be found. She then pulled off the cloth and saw that the now deceased’s body was covered in blood and that deceased had died. Her shoes had been removed and placed near the poles which were tied together with a chain. The cattle had been unyoked and the yoke was in the bush with the strops. She did not see any struggle marks at the scene but noted that the now deceased has an injury on the head. Prisca said she rushed home to inform her husband Dick and other villagers were alerted.

            Under cross examination Prisca just like Dick said accused had in the past made allegations of infidelity  against the now deceased but without stating the basis of the suspicions. Prisca said accused never implicated Enock Manezhi a fellow villager for having affair with the now deceased. In fact Prisca said when accused raised suspicions of infidelity against the now deceased she was surprised.  Prisca said the source of dispute on the night of 30 September 209 was not infidelity but that accused wanted to have sexual intercourse with the now deceased who was unwilling because she had no contraceptives.

            The evidence of Prisca is not contested and it materially corroborates that of her husband on two material issues. Firstly that accused had made unsubstantiated accusations of infidelity against the now deceased is the past without mentioning the paramour. Further that accused had never implicated Enock Manezhi. Secondly that the nature of the dispute on the night in question related to conjugal rights.

Sgt Remember Murombo

            The impression Sgt Remember Murombo (Sgt Murombo) gave is that he played some material role in the investigation of this matter after he took over from Cst Shepherd Masendu. He gave the impression that he visited the scene on 2 October 2009 and collected the body after which he caused the post mortem to be done. He later interrogated accused after accused surrendered to the police. Sgt Murombo said accused was very cooperative and explained how he had fatally assaulted the now deceased as he suspected that the now deceased had used some supernatural powers to sexually incapacitate the accused and was refusing to reverse the process. 

            It later turned out when Constable Shepherd Masendu testified that Sergeant Murombo had probably misled the court as regards his role. This leads us to the evidence of Cst Shepherd Masendu.

            Constable Shepherd Masendu

            Constable Shepherd Masendu (Cst Masendu) attended the scene on 1 October 2009. At the scene he found some poles tied with chain and a yoke close by. The deceased’s body was covered with a Zambian cloth. He examined the body and observed a cut wounds at the back of the head and on the sheen of the right leg. Although people had gathered at the place he did not see any struggle marks. He guarded the body overnight. Contrary to Sgt Murombo’s evidence he said no police motor vehicle collected the body of the deceased but it is Constable Masendu who on 2 October 2009 hired a private motor vehicle which ferried the body to the mortuary. Contrary to Sgt Murombo’s evidence he said when Sgt Murombo visited the scene the body of the now deceased had been removed and that Sgt Murombo only dealt with indications. Constable Masendu said the axe accused used in attacking the now deceased was not at the scene where he only saw the tied poles and a yoke with strops showing that the cattle had been unspanned in the bush.

            The issue to be resolved by this court relates to how the now deceased met her death. While it is clear that she was fatally attacked by the accused with an axe on the head we have to consider whether accused acted under provocation in terms of s 239 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] which if successfully proven would be a partial defence to the charge of murder and or acted in self-defence as is defined in s 253 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] which would be a complete defence to the charge of murder. Before we deal with the legal requirements of the defence of provocation and self-defence we have to deal with accused’s evidence and be satisfied that on the facts of the matter these defences are available to the accused.

            In our view the accused has not been truthful with the court on both the events preceding the day the now deceased died and the fatal assault in the bush. In relation to the clement of provocation accused’s evidence is that it arises from his wife the now deceased’s infidelity and the use of supernatural means to sexually incapacitate him. Accused said he had in 2007, two years before the incident found the now deceased and Enock Manezhi having sexual intercourse at his home. According to the accused he did nothing about it and apparently condoned the adultery.  We find it strange that such an incident would remain a secret known to accused only. Assuming this indeed happened accused said he reconciled with the now deceased and they lived happily thereafter.

            According to the accused the memories of his wife’s infidelity were rekindled when few days before the incident he discovered some male clothes, a shirt, trousers and under wear in his house in the absence of the now deceased and he hid them. He did not show them to the now deceased upon her return or to any other person. In fact accused did nothing about it. He did not know whose male clothes they were. Again accused’s conduct would be very strange if not improbable.

            The accused said during the same period Enock Manezhi visited him during the absence of the now deceased looking for the now deceased. Again accused said despite his suspicions he did not confront the now deceased about Enock Manezhi’s visit.  We find it strange that accused would fail to bring to the now deceased’s attention the visit by Enock Manezhi. Even assuming that all this happened accused said in his evidence that the next day on 1 October 2009 he had no issues with his wife.

            We are more inclined to accept the evidence of Dick and Prisca that the only dispute accused and now deceased had on the night of prior to 1 October 2009 relates to conjugal rights. The accused unwittingly confirmed this that when he said on the night in question the now deceased refused to have sexual intercourse with him on account that she had undergone some rituals at her parent’s home. We are more inclined to accept the clear evidence of Dick and Prisca that the now deceased explained that she could not risk having sexual intercourse with accused without taking contraceptives. She had a 6-7 month old baby. This was said to Dick and Prisca in accused’s presence by the now deceased and accused never raised any other issue. It is therefore difficult to appreciate and accept that these events, assuming they indeed happened could be the basis for accused allege the defence of provocation.

            It is accused’s version of events in the bush leading to the now deceased’s death we find improbable. The question we are to answer is whether the accused’s version is substantially true. In the case of R v Difford 1939 AD 370 at 373 Greenberg JA puts the test to be as follows:

“no onus rests on the accused to convince the court of the truth of any explanation he gives. If he gives an explanation, even if that explanation be improbable, the court is not entitled to convict unless it is satisfied, not only that the explanation is improbable, but that beyond reasonable doubt it is false. If there is any reasonable possibility of his explanation being true, then he is entitled to his acquittal …”.

 

            We now apply this test to accused’s version of events.

            The accused’s version of events as captured in his confirmed warned and cautioned statement exh 2 substantially differ with accused’s evidence in court. In exh 2 the accused said what ignited the fight between him and the now deceased in the bush was that he asked the now deceased to reverse the supernatural process she had performed on accused causing him to suffer from an erection dysfunction. Accused said the now deceased reacted by grabbing his private parts causing him to fall down. Accused said he reacted by hitting the now deceased with a log on the legs and she too fell down. The accused’s version in exh 2 is that they both struggled and he disarmed the now deceased of an axe she had picked. Accused said the now deceased pulled his penis and testicles again which prompted the accused to strike her with the axe on the legs but she would not let go his private parts. Accused then struck her twice on the head and she fell down. Accused said realising the consequences of his attack, he panicked and fled.

            It is therefore clear from exh 2 that accused raises the defence of self-defence in justifying his attack of the now deceased. What is critical is that in exh 2, contrary to his defence outline, there is no mention of Enock Manezhi being at the scene. As per his defence outline accused had alleged that what provoked the fight between him and the now deceased was the unexpected appearance of Enock Manezhi who taunted the accused resulting in a fist fight between accused and Enock Manezhi. If this had happened accused would have mentioned it in exh 2. He did not and he proffers no explanation. The reason is that Enock Manezhi was never at the scene. If he had the accused would have mentioned him to the Police. Conveniently for the accused Enock Manezhi just disappears from the scene of crime.

            The accused’s version even changed when he gave his evidence. While accused had said in his defence outline he fought Enock Manezhi, in his evidence accused said he was assaulted by Enock Manezhi and that he did not fight back.  Accused said he could not fight back because his left arm is weak.  Again accused was unable to reconcile these contradiction.  It is either he fought Enoch Manezhi or he did not.

            The version of the how accused attacked the now deceased in his warned and cautioned statement Exh 2 and defence outline differs with his version in his evidence.  While in Exh 2 and defence outline accused said when he struck the now deceased with an axe she was pulling his private parts, in his evidence accused gave a different version.  Accused said the now deceased approached him with an axe but he held it and hit the now deceased on her legs with a pole causing her to fall down.  As she lay down accused said he picked the axe and struck her twice with an axe blade.  Accused said despite the attack with an axe on the head the now deceased still woke up and held his private parts which caused accused to strike her for the third time on the head with the axe.  At that stage accused said the now deceased then told him of the herbs to use to cure the spell she had cast on him causing the erection dysfunction.   Accused said he tried to resuscitate the now deceased for two hours as he believed her breathing problems were a result of an asthmatic attack as he had not inflicted any serious injuries with the axe.

            It is clear that accused is being untruthful.  It is not possible that the now deceased would have fought the accused after being struck twice on the head with the blade of the axe.  Further the attack by accused with the axe twice cannot by any stretch of imagination be alluded to self- defence.  As accused struck the now deceased who was lying down helplessly as per accused’s own evidence.

            The truth of the matter is that accused struck the now deceased on the head twice with the axe and she died instantly as per Exh 2.  The version accused postulates later in court is clearly false.  After fatally attacking the now deceased he fled and only surrendered himself to the police after 10 days.  The axe accused used was never recovered.  He disposed of it despite him abandoning the yoke, stropes and cattle in the bush.

            We are satisfied that the inconsistencies in accused’s version is a result of the fact that accused’s version of events cannot reasonably possibly be true.  It is false.

            We are clearly satisfied that the accused struck the now deceased twice on the head with an axe and she died instantly.  The accused may have harboured unfounded suspicions that the now deceased was denying him conjugal rights because she was unfaithful.  The accused’s intention was clear.  He desired to bring the death of the now deceased and succeeded in doing so.  See S v Mugwanda 2002 (1) ZLR 574 (S) of 581 D – F.

            Accordingly, we return the verdict of guilty of murder with actual intent in terms of s 47 (1) (a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

            Verdict

            Guilty of murder with actual intent in terms of s 47 (1) (a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

 

 

National Prosecuting Authority, Counsel for the State

Lawman Chimuriwo Attorney, Counsel for the accused