S v Jere (65 of 2021) [2021] ZWMSVHC 65 (12 November 2021)

1 HMA 65-21 CRB 24-21 THE STATE Versus EDSON JERE HIGH COURT OF ZIMBABWE MAWADZE J MASVINGO, 24 June,16 September, 21 October & 12 November, 2021 Assessors 1. 2. Mr Nish Mr Gweru Mr E. Mbavarira, for the state Mr J. Chipangura, for the accused Criminal Trial MAWADZE J: This matter relates to the death of a male toddler Anesu Mudombi aged just one year and 2 months. The charge is that on 10 September 2019 at Macheke village, Chief Nhema Zaka the accused unlawfully and intentionally caused the death of the said child Anesu Mudombi by assaulting him on the head and strangling him. At the material time the accused was 24 years old and married to the deceased’s mother also aged 24 years Martha Mudombi. They were staying in Macheke Village, Chief Nhema, Zaka HMA 65-21 CRB 24-21 where the accused was employed as a caretaker at a certain homestead. They were staying with the now deceased and another younger child. On 10 September 2019 the accused’s wife who is also the deceased’s mother Martha Mudombi left for the borehole to fetch water in the morning. The accused was at home. What is not in dispute is that the youngest child was left in the custody of the accused. The contentious issue is where the deceased was left. The state alleges the deceased was left in the accused’s custody but the accused said he was only with the youngest child. It is the state case that the accused was a step father to the deceased child as he married deceased’s mother when she was already impregnated by another man. Thus although she gave birth to the deceased child after marrying the accused, the accused is said not to have been the author of that pregnancy. According to the state this was the genesis of the problems leading to the deceased’s death. It is the state case that while the deceased’s mother was away the accused assaulted the now deceased on the head with a blunt object and strangled the deceased to death. It is alleged that the deceased’s mother upon her return found the deceased child already dead. The accused and the now deceased’s mother took the now deceased’s body to Chanhanga village; chief Nhema in Zaka at Shamiso Mudombi’s homestead who happens to be an aunt to the decease child’s mother. It is alleged that the accused fled from Shamiso Mudombi’s homestead at night only to be arrested some 4 months later in January 2020. The cause of the deceased’s death is said to be head injury and strangulation. The accused vehemently protested his innocence. While the accused confirms the sudden death of the deceased child the accused disputes that he had a hand in the death. According to the accused the now deceased child could have been killed by goblins. The accused denied that he ever disputed the paternity of the deceased child. He said for all intents and purposes he had regarded at the now deceased as his own flesh and blood. In fact he said he was shocked upon his arrest to be advised that he had killed the now deceased because the child was not his own. In that vein therefore the accused contends that he had no cause to assault, strangle or kill his own child the now deceased. The accused’s evidence is that on the fateful day he was resting inside the hut when his wife Martha Mudombi left him in the custody of their last born child going to the borehole to fetch HMA 65-21 CRB 24-21 water. He said he did not know if the now deceased child remained playing outside or followed Martha Mudombi. The accused said as he was sleeping he was woken up by a loud screaming of the deceased child and he rushed only to find the now deceased child outside the gate. He said the now deceased was lying on his back bleeding from the nose and the mouth. He did not know what had caused this. The accused said he proceeded to take the child into the house to clean the blood. As he was doing so his wife then arrived and he explained to her all which had happened. The accused said he frantically tried to telephone his employer and his relatives as the now deceased had already died but failed due to network problems. He said he only managed to get through to his wife’s aunt Shamiso Mudombi at around 2000hrs. The accused said to his surprise Shamiso Mudombi was very hostile and ordered them to bring the now deceased body to Shamiso Mudombi’s homestead. The accused said he capitulated. That very night he carried the youngest child and his wife carried the deceased’s body strapped on her back to Shamiso Mudombi homestead. It is the deceased’s evidence that the reception he got at Shamiso Mudombi’s homestead was very hostile. He was questioned as to how the child died. Despite his explanation he said he was threatened with death. This caused him to flee that very night from Shamiso Mudombi’s residence and even failed to attend the burial of the now deceased his child. The accused did not call any witnesses. The state relied on the evidence of the accused’s wife who is the now deceased’s mother Martha Mudombi’s, Martha Mudombi’s aunt one Shamiso Mudombi, the investigating officer Sgt Priscilla Silape and Dr Godfrey Zimbwa who examined the now deceased’s remains. The evidence of Isaac Shoko, a retired Sgt in the ZRP and Clemence Gomana a member of the local neighbourhood watch committee was admitted in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07. Isaac Shoko simply drove the police vehicle which ferried the now deceased to Masvingo General hospital for a post mortem. Clemence Gomana was advised by the police on 16 September 2019 that the accused was wanted for murder investigations. In January 2020 he got information that accused was now employed at Nheyi Village Chief Nhema , Zaka. On 9 January 2020 he arrested the accused and handed him over to ZRP Zaka. The state only produced two exhibits by consent. Exhibit one is the post mortem report compiled by Dr Zimbwa on 12 September 2019 after examining the remains of the now deceased HMA 65-21 CRB 24-21 child. The doctor noted that the now deceased was bleeding from the mouth and nostrils. There were facial bruises and the now deceased’s neck was loose and hypermobile. Dr Zimbwa also observed strangulation marks on the anterior of the now deceased’s neck and that the now deceased had sustained partially crushed cricoid cartilage or neck bones. The doctor concluded that the cause of death was head injury and strangulation. We shall revert to this later. Sergeant Priscilla Silape who attended the scene also confirmed observing the following injuries on the now deceased; (i) (ii) swollen neck bleeding from the nose and mouth (iii) hyper mobile or loose neck Sergeant Priscilla Silape said that due to such injuries she suspected foul play in the now deceased’s death and caused a post mortem examination to be done. She confirmed that accused fled in September 2019 only to be arrested in January 2020. The evidence of Dr Zimbwa is largely uncontroverted. This evidence is critical as regards the cause of the now deceased’s death. Besides the bleeding from the nose and mouth Dr Zimbwa said he also observed generalised bruising of the face. He said the now deceased’s neck could be moved in all four directions which was indicative of the fractured neck bones. What is critical is that the doctor observed strangulation marks in front of the neck and that the wind pipe had been partially crushed. He explained that severe force was applied to the neck. Dr Zimbwa explained the cause of the now deceased’s death. He said evidence of the head injury could be ascertained from the bleeding from the nostrils and facial bruising which was most likely to be a result of direct blows to the head. Dr Zimbwa said visible marks on the crushed cricoid cartilage (bones which keep wind pipe open) was indicative of strangulation hence foul play (homicide). Dr Zimbwa discounted that the wind pipe bones could be broken or crushed if the deceased child just fell down. He explained that the cricoid bone is behind the chin therefore to break such bon