S v Mupuna (CRB 168 of 2015; HH 209 of 2016) [2016] ZWHHC 209 (23 March 2016)

1 HH 209/16 CRB 168/15 THE STATE versus TAVENGWA MUPUNA HIGH COURT OF ZIMBABWE MAWADZE J HARARE, 15, 16 September, 16, 17 November 2015 & 23 March 2016 Assessors: 1. Mrs Shava 2. Mr Chakuvinga Criminal Trial B Taruvinga, for the State Ms D Atukwa, for the accused MAWADZE J: The accused and the now deceased were husband and wife respectively having been married for about 20 years. The accused pleaded not guilty to 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 28 December 2014 at Muzemba Village, Mt Darwin the accused unlawfully and intentionally killed his wife one CONSTANCE MUZEMBA by striking her twice in the head with an axe thereby inflicting injuries from which Constance Muzemba died. The allegations against the accused as per the summary of facts Annexture A are that accused suspected that his wife the now deceased was having an extra marital affair with a fellow villager one FRANCIS MUPARIRA. As a result it is alleged that the accused fought Francis Muparira on 25 December 2014 but lost the fight. Accused is said to have thereafter proceeded home where he destroyed kitchen utensils and ordered the now deceased to leave the matrimonial home. It is alleged that the family members ‘intervened and managed to resolve the dispute. The accused was then summoned to the Village Head on 27 December 2014 a HH 209/16 CRB 168/15 development the state alleges the accused was not happy with. It is alleged that on the night of 28 December 2014 at about 0200 hours the accused who was in bed with the now deceased armed himself with an axe and struck the now deceased twice on the head after which he fled to an unknown place. As a result the now deceased died instantly due to severe bleeding and brain injuries. In his defence outline Annexture B the accused raised the defences of provocation and self defence. The accused said on the night in question when he retired to bed with the now deceased they were not on good terms as they had argued over the fact that the accused had reported to the police that he had been assaulted by one Francis Muparira on 25 December 2014. Accused said the now deceased did not want the involvement of the police. The accused said that night at about 2300hours the now deceased woke him up and told the accused that their cattle had escaped from the cattle pen. The accused said this caused him to wake up and rush to the cattle pen, leaving the now deceased in their bedroom hut. Upon his return the accused said he found one Francis Muparira in his bedroom hut with the now deceased. The accused said this extremely angered him moreso as the now deceased’s explanation of the presence of Francis Muparira in their bedroom hut was very rude and provocative. Accused said as a result he lost self-control and that a struggle ensued inside their bedroom hut. The accused said the now deceased proceeded to hold the accused as Francis Muparira assaulted the accused inside their bedroom hut. The accused said he then overpowered the now deceased who was holding him. The accused said the now deceased then took an axe intending to attack the accused and that since it was dark the accused did not know that it was an axe but he simply tried to retrieve the weapon the now decease had. In the process the accused said he was cut and then realised that it was an axe. The accused said as the now deceased aimed the axe at him he managed to grab and disarmed the now deceased. The accused said he then feared that both Francis Muparira and his wife the now deceased would gang up against him to kill him he decided to strike Francis Muparira with the axe. The accused said his intention was simply to injure Francis Muparira with the axe so that accused would have irrefutable evidence that Francis Muparira had intruded into accused’s bedroom hut. Unfortunately the accused said Francis Muparira evaded that blow and the accused instead struck the now deceased with the axe. After this miss accused said he even got more angry and tried to strike Francis Muparira again but for the second time he missed HH 209/16 CRB 168/15 Francis Muparira and instead struck the now deceased with the same axe. The accused said in shock and in fear of further assault by Francis Muparira he fled from the scene. The accused said he had no intention at all to kill his wife the now deceased but that he simply lost self-control as a result of extreme provocative behavior of the now deceased had her lover Francis Muparira. During the course of the trial a total of 6 exhibits were produced. Exhibits 1 to 3 were produced by consent and exhibits 4 to 6 were produced after a trial within a trial to determine their admissibility. We shall start to deal with the exhibits produced by consent. Exhibit 1 This is a post mortem report compiled by Dr G Mapiye. The evidence of Dr G Mapiye was admitted in terms of s 314 of the Criminal Procedure and Evidencce Act [Chapter 9:07]. As per that evidence Dr G Mapiye examined deceased’s body at Mt Darwin Hospital on 28 December 2014 and certified her dead. He compiled the post mortem report on 30 December 2014 exhibit 1. In terms of the examination Dr G Mapiye did as per exh 1 he made the following observations and findings:- (1) the now deceased had a deep cut on the night hand, a deep cut on the right cheek and a deep cut on the right side of the head in which the axe used to inflict that deep cut was still in situ or still stuck or embedded on the right side of deceased’s head. (ii) the now deceased’s right jaw was fractured and the axe which was in situ damaged the brain. (iii) that he deceased’s cause of death was due to severe bleeding caused by injuries inflicted on the deceased’s head with an axe. It is common cause that the now deceased died as a result of injuries inflicted on her by the accused with an axe as per exh 1. Exhibit 2 This is the accused’s confirmed warned and cautioned statement given by the accused on 13 January 2015 and confirmed on 14 January 2015 in which the accused said; “I admit the charged levelled against me. I killed my wife Constance Muzemba because she had an extra marital affair with Francis Muparira” HH 209/16 CRB 168/15 Exhibit 3 This is the axe accused used to strike the now deceased and its blade was left embedded in deceased’s head. The blade weighs 368 grams. We now turn to the exhibits produced after a trial within a trial. The trial within a trial was held after the accused objected to the production of the sketch plan exh 4, the notes on accused’s indications exh 5 and the photographs exhibit 6(a) to (m) taken during the indications. The accused alleged that the indications were not made freely and voluntarily because of the following reasons; a) b) that the purpose of the indications was not explained to the accused. that the points on the sketch plan are points the police told accused to indicate and that they were based on indications already made to the police by accused’s children Talent Mupuna and Nickson Mupuna in accused’s absence. c) that the photographs in issue were taken when the police simply instructed the accused to pose for the photographs in a particular manner. The investigating officer sergeant Cuthbert Jandura and Cst Kudakwashe Taengwa testified in support of the indications. The accused also gave evidence on the inadmissibility of the indications. After the trial within a trial this court ruled that the indications were admissible in terms of s 258 of the Criminal Procedure and Evidence Act [Chapter 9:07]. The accused’s objections were found to be without merit. The full reasons for the ruling were given and we find no reason to repeat them in this judgment suffice to state that the accused’s assertions were found to be false. The exhibits produced after a trial within a trial are as follows; Exhibit 4: These are the indications made to Sergeant Jandura by the accused on 13 January 2015 and also contain indica