S v Nyarongwe (CRB 66 of 2011) [2015] ZWHHC 321 (5 March 2015)

1 HH 321-15 CRB 66/11 THE STATE versus MASIMBA NYARONGWE HIGH COURT OF ZIMBABWE MWAYERA J HARARE, 12, March 2012, 13 March 2012, 13 April 2012, 16 December 2014, 17 December 2014 and 6 March 2015 Assessors: 1. Mr Tutani 2. Mr Chivanda Criminal Trial Ms E Manhamo, for the State I, Ndudzo, for the accused MWAYERA J: The accused pleaded not guilty to a charge of murder in which it is alleged by the State that on the 2 January 2009 the accused caused the death of his daughter Chipo Nyarongwe by striking her with a wooden stick twice in the head, the accused caused injuries resulting in intracranial haemorrhage from which the deceased died. A brief summary of the State case is to the effect that on I January 2009 the deceased Chipo Nyarongwe stole a cock from Joyce Gandawa’s homestead; later the deceased was located in the bush by Joyce Gandawa and taken to her homestead. The accused after being notified proceeded to Joyce Gandawa’s homestead and he picked a log which he used to strike the deceased thrice on the head and once on the back. The accused then took the deceased home following which she died. In his defence accused denied having caused his child’s death. He indicated that the nature of assaults he perpetrated on the deceased would not have caused her to die. He recounted that he assaulted the child in a bid to discipline her since the child had developed a habit of stealing foodstuffs from the local villagers and he was receiving complaints from them. HH 321-15 CRB 66/11 At the time from the alleged thefts at Joyce Gandawa’s place the child had gone missing for a day and it is Joyce Gandawa who said she had located the child and called the father to her homestead. The accused suspected that Joyce Gandawa might have assaulted the deceased before she called him to her homestead where the child was detained. Evidence was adduced from the state witness as follows; Joyce Gandawa recounted how she had apprehended the deceased who had stolen her cock from the kitchen and how she cooked the chicken. The witness narrated that in the morning she observed the deceased steal from her kitchen and when she tried to apprehend the deceased the latter fled and hid in the bush. The witness then notified the parents and later in the day she apprehended the deceased whom she bound and tied to a pole on the maize rack or granary while awaiting the accused to come to the homestead to take his child. According to the witness when the accused came he picked a small log from the field and assaulted the deceased twice on the head and once on the back. The description of the log as small given the 1½ meter log which was produced in court did not tally and probably makes sense when one goes down in assessing the evidence which was adduced before the court. According to the witness the accused had to carry the deceased from her house as the deceased was having difficulties in walking following the assault by the father the accused. The witness advised the village head Mr Pikitai Ruzvidzo about the assault after the report of the deceased’s death. She identified the stick which was produced as an exhibit in court as the one which was used by the accused. The witness also told the court she together with one Obert Mutasu restrained the accused from further perpetrating assaults on the deceased. A lot of questions more than answers were provided by the witness’s testimony. It was not explained why she deemed it necessary to tie down the complaint a ten year old after apprehension as opposed to taking the child to her parents’ home. She appeared too eager to point out that she restrained the accused who was inflicting a beating on the child. The question is what was the aim when she immobilised the child by tying her to a pole at her house. We will constantly revisit Joyce’s evidence as the judgement progresses. Obert Mutasu was called in as a second State witness. Contrary to Joyce Gandawa’s version that he observed the accused assault the deceased, the witness told the court that upon his arrival at Joyce Gandawa’s residence he was advised by Joyce that accused had assaulted his daughter the now deceased. The witness did not see how the assault was perpetrated. The witness was only shown a stick allegedly used by the accused to assault his child by Joyce. He did not witness what happened and only relied on Joyce’s account as well as the accused’s HH 321-15 CRB 66/11 account that when he assaulted the deceased it was to discipline her and that the deceased told him not to further perpetrate assaults, for she had already been assaulted. The witness did not seek to exaggerate his testimony on recounting what transpired during his absence. He was candid. His version was contrary to that of Joyce Gandawa that the witness assisted in restraining, he did not get to the scene when there was need for him to be restraining as the assaults had already been perpetrated. This again made Joyce’s evidence highly suspect. One could not help but raise eyebrows on reactions by Joyce. The village head was the third witness to testify Pikitai Ruzvidzo he got news that the accused had assaulted his daughter and he got this news from Joyce Gandawa. He also was shown a stick which was allegedly used by the accused to assault the deceased and this he was shown by Joyce Gandawa. Upon report of death of the deceased, he notified the police as the village head. According to the witness the accused had reported to him that the child died as a result of headache. The witness version was fairly straightforward as he only recounted what he got from Joyce and the accused. His involvement was basically after the death of the deceased. The fourth State witness, Samson Nyarongwe a brother to the accused also came into the picture after the death. He learnt from the accused that the deceased had stolen from Joyce Gandawa and that the accused assaulted the deceased for that misdemeanor. He also accompanied the accused to report the matter to the village head. The witness observed the deceased’s body which he identified to the police. He observed the body had a wound on the neck, a swollen head and swollen belly. This observation of the witness was contrary as will unfold to the doctor’s observation, for the doctors observations were not reduced to writing. We found nothing to criticize about the witness evidence, it was fairly straightforward. He was removed from the violence and there is nothing that could have stopped him from observing injuries and wounds on the body of his brother’s daughter. The last State witness, Doctor Kudzai Zimudzi was candid with the court in so far as he made it clear he only carried out an external examination but came out with a conclusion the cause of death was internal injuries, intracranial bleeding. There is no question about the doctor being qualified to carry out a postmortem examination. He is qualified as a general practitioner. He observed the deceased had a wound on the frontal area of the head and made no other observations or at least recorded no other observations. This is contrary to the State witness Samson Nyarongwe as earlier mentioned. Given that the doctor did not endorse the HH 321-15 CRB 66/11 observations the witness Nyarongwe’s evidence cannot be disputed neither can it be said to be an exaggeration of what he observed on the body of the deceased. The doctor narrated to the court that he did not carry out internal examination because of lack of resources to use. He formulated an opinion that the external injury on its own could not have caused the death but that the impact which was caused would have potential of causing blood clotting under the skull and that such a scenario would then result in death. He made it clear to the court that the examination he carried out was incomplete. The court noted that there were omissions on the postmortem report like for example the none endorsement of observation of the body parts. The doctor explained the omissions o