S v Karadzangare (CRB 142 of 2016; HH 794 of 2016) [2016] ZWHHC 794 (20 July 2016)

1 HH 794/16 CRB 142/16 STATE versus EDMORE KARADZANGARE HIGH COURT OF ZIMBABWE CHITAPI J HARARE, 18, 19 & 20 July 2016 Assessors: 1. Mr Chidyausiku 2. Mr Barwa Criminal Trial – Murder Ms F Zacharia, for the State Ms S Evans, for the accused – pro deo CHITAPI J: The accused was charged with murder as defined in s 47 of the Criminal Law [Codification & Reform] Act, [Chapter 9:23]. It was alleged against the accused that on 24 December 2015 at Muringamombe Primary School, Shamva, he unlawfully assaulted Meggie Mariko with open hands, pushed her against the wall and strangled her resulting in her death. When the charge was put to the accused and the court thereafter asked him whether he understood it, he responded as follows; “Yes, but it was not my intention to kill her”. The court entered a plea of not guilty. Ms Evans for the accused tendered on behalf of the accused a guilty plea to the lesser offence of culpable homicide which is also a competent verdict on a charge of murder. Ms Zacharia accepted the tendered plea of guilty to culpable homicide. Both counsel advised the court that they had crafted a statement of agreed facts which they tendered to the court. The statement of agreed facts was read into the record and accepted as Annexure A. The court sought and received confirmation from Ms Evans that she had explained the elements of the charge and the agreed facts to the accused and his agreement with the same. The court formally convicted the accused of culpable homicide as defined in s 49 (a) of the HH 794/16 CRB 142/16 Criminal Law (Codification and Reform) Act. In addition to the statement of Agreed facts, the State also produced with the consent of the accused person given through his counsel the autopsy or post-mortem report compiled by the doctor after examining the remains of the deceased. The post-mortem report was produced in terms of s 278 (1) of the Criminal Procedure & Evidence Act [Chapter 9:07]. The report which the court accepted in evidence as exh 1 was prepared by Doctor T Jabangwe following his examination of the remains of the deceased on 20 February 2016 at Parirenyatwa Hospital. The request for examination was made by Zimbabwe Republic Police Officers from Shamva Police Station and deceased’s family members who identified the remains of the deceased. The doctor is employed as Registrar, Pathology. The highlights of the doctor’s report are that: - - - - - the deceased’s body was wrapped in 3 layers of sheets tied with a rope 3 X 1cm in thickness the body parts were in various degrees of decomposition with maggots coming out of the body and also moving round the sheets the elbow bone was exposed with the skin eaten up by maggots the skull bones were exposed and there was no bleeding from the skull the cause of death was indeterminate because of the advanced state of decomposition of the remains The material facts of the case which arise from the statement of agreed facts can be summarized as follows: 1. The accused and the deceased were of about the same age (32 years). The accused was unemployed whilst the deceased was a student teacher at Maringamombe Primary School Shamva. The two stayed together at the school and were husband and wife with the latter being heavy with child and in her eighth month of pregnancy. 2. On 24 December 2015 the couple had a domestic altercation which started around 5:00pm and continued during the night extending into the morning of the following day. What triggered the dispute was not quite disclosed to the court even when it put questions to the accused during mitigation and aggravation. 3. Albeit the trigger of the domestic quarrel not having quite been established it was accepted in the agreed facts that in the course of arguments between the couple, the HH 794/16 CRB 142/16 deceased accused the accused of being infertile. The accusation infuriated the accused who all along held the belief that he was responsible for the deceased’s pregnancy and was looking forward to fatherhood of his first child. 4. Following the verbal exchanges, the accused decided to take leave of the house and the deceased and started to pack his clothes. The deceased then ordered him not to remove any clothing from the house since the clothes had been bought by her as the accused was unemployed. 5. In a fit of anger, the accused then turned physical on the deceased. He assaulted the deceased with open hands and threw her against the wall. When she hit against the wall, the deceased fell down. When she had fallen down the accused throttled her on the neck until she was still. He then left her lying on the mattress. 6. The accused proceeded to the local business centre and spent the day drinking alcohol. He returned to the couple’s house at night and discovered that the deceased had died. The accused wrapped the deceased’s body in sheets and secured the wrapping using a rope. He carried the deceased’s body out of the house and buried it in shallow grave which he dug some 80 – 100 metres away from the house. 7. The body of the deceased was discovered by another person on 18 January 2016. Investigations were then carried out and they culminated in the arrest of the accused on 19 January 2016. It was on the basis of the summarized facts above that the plea bargaining between the State and defence counsels and the grounding of a plea of guilty of culpable homicide was based and the court recorded and accepted the facts as such. In mitigation the accused’s defence counsel submitted that the accused was a first offender and last born in a poor family of six siblings, the accused’s parents being both alive but above 70 years of age. The parents are invalids in that the accused’s father suffered a stroke and the accused’s mother suffers from swollen legs. It was however not submitted nor suggested that the accused was responsible for the upkeep and welfare of his parents. In such circumstances it is the view of the court that the accused’s incarceration would not affect the livelihoods and HH 794/16 CRB 142/16 welfare of the parents. The accused himself does not have any children of his own nor other dependants. It was further submitted that he accused loved his wife dearly. He was not a person of violent disposition and was not previously involved in domestic violence. It was submitted that his relationship with the deceased was admirable and that the accused was sorry for the incident. He blamed his out of character reaction on provocation and that in assaulting his wife, death was a consequence that the accused did not contemplate. When the deceased lay still after the accused had assaulted her, he thought that she was feigning her condition. He only panicked when upon his return, from the beer drink,he found the deceased in the same position that he had left her. He then in that state of panic wrapped up the deceased, carried her out of the house and buried her in a shallow grave. It was also submitted on the accused’s behalf that the accused was sorry and remorseful. He was suffering psychological trauma. He had hoped to be a father to his first child but his dreams had been shattered. He has been in custody since his arrest in January 2016. He however had requested his family members to approach his in laws and try and make peace between the families. His family and himself were persons of poor backgrounding and efforts to compensate the deceased’s family were hampered by poverty. The accused however wished for forgiveness from his in-laws. The accused’s counsel whilst acknowledging the sanctity of human life submitted that a proper sentence would be one which should rehabilitate the accused. It was also submitted that the accused was HIV positive. It was also argued that a rehabilitative sentence would afford the accused a timely release from prison so that he makes peace with his in-laws. The accused’s counsel referred the court to the following decided cases in this jurisdiction: S v Mbano HB 114/2015; S v Makombe HB 110