S v Sibanda (FILABUSI CR 25 of 2017; HB 234 of 2020; HC CRB 94 of 2020) [2020] ZWBHC 234 (7 October 2020)

1 HB 234/20 HC (CRB) 94/20 FILABUSI CR 25/05/17 THE STATE Versus THOKOZANI SIBANDA HIGH COURT OF ZIMBABWE MOYO J with Assessors Mr P Dmba and Mr M Ndlovu BULAWAYO 7 OCTOBER 2020 Criminal Trial K Jaravaza, for the state Ms V Chikomo, for the accused MOYO J: The accused in this matter faces a charge of murder, it being alleged that on the 9th of May 2017 the accused struck the deceased Primrose Ndlovu with an axe on the neck. The accused pleaded not guilty. The following were admitted into the court record as exhibits;- - The state summary. - The accused’s defence outline. - The 3 photos taken at the scene. - The post mortem report. - The axe that was allegedly used They were all duly marked. The evidence of Sonyboy Sibanda, Thandiwe Siziba, David Dube and Zororai Marevesa was admitted into the court record as it appears in the state summary in accordance with section 314 of the Criminal Procedure and Evidence Act Chapter 9:07. Beauty Sibanda, Doubt Mapfumo and Doctor S Pesanai gave viva voce evidence for the state. The accused person gave evidence for the defence. The facts of the matter are as follows:- The deceased was aged 5 years at the time she met her death. Accused and deceased were related in that deceased was accused’s niece. On the fateful day, Beauty Sibanda left 2 children, deceased and one Paul Moyo in accused’s custody when she went to the fields. She HB 234/20 HC (CRB) 94/20 FILABUSI CR 25/05/17 does not know what transpired but when she came back, she was informed by her neighbours that deceased had died and she must have been struck with an axe. Her body lay inside the bedroom hut with a blood stained axe next to it as shown in the photos. This witness did not see accused, who was nowhere to be found until he was arrested months later. When she went to the fields, she left accused working in the yard cutting poles constructing a granary. She said the granary that accused was supposedly left constructing had not been constructed. She said accused appeared to dislike the children but she would chide him and that he would sometimes harass the children but she would chide him still. She said Paul was a very small child and was not useful in being questioned about the deceased’s whereabouts. Next to testify was Doubt Mapfumo, who is employed by the ZRP and was the Investigating Officer in this case. He proceeded to the scene of crime after receiving a report. He went in the company of other police officers. He observed the deceased’s body in a grass thatched bedroom hut. The deceased lay on a dusty floor with blood oozing from her neck. He inspected deceased’s body and observed a deep cut on the deceased’s neck. Besides the body there was an axe and it had some blood stains. He noticed some watery substance near her private parts. He took deceased’s body to the hospital and also collected the axe as an exhibit since he suspected that it could have been the one used in the commission of the offence. He said that he examined the whole homestead, the entire yard and at the granary there were 2 poles that were still fresh. He said that the distance between the granary and the hut wherein deceased lay was about 15 m. He said that he did not see any blood stains between the granary and the bedroom hut. The witness confirmed that exhibit 4 was indeed the axe he had recovered at the scene. This witness then tendered the axe which was duly marked. Under cross- examination he said he knew where the accused was working as he was shown by the 1st state witness. Next to testify was Doctor S Pesanai. He told the court that he is a qualified medical practitioner since 1995. He confirmed that he prepared the post mortem report in relation to this case. He told the court that the deceased’s body was very pale as indicated in the post mortem report by a “pale + +” and that this meant that deceased had lost a lot of blood. He said the histology where they took vaginal smears to see if there was any semen or DNA they have not received any results due to lack of government resources in that area. During cross- examination he told the court that the generative organs showed no sign of sexual violation. HB 234/20 HC (CRB) 94/20 FILABUSI CR 25/05/17 He also said that there were no bruises on the vagina, hymen was still intact showing that there was no penetration. Asked by the assessor to comment on the degree of force he said that the injuries were very deep and that the degree of force used was great and the person being cut must have been on a hard surface for the axe to chop deeply in that manner. Asked how deep the wound was he said it was 6cm x 4cm x 3cm deep. Asked by the court what the depth of the injuries was and what anatomy the axe had cut through, he said that the axe cut both major vessels in the neck, the trachea, the oesophagus, the spinal bone and the spinal code was also cut. Asked what the degree of force was visa vis the injuries he said the force was severe. That was the state case. The defence led evidence from the accused person. He was 22 years at the material time and that the deceased was his niece. He also told the court that on the fateful day he was at home fixing a granary. He told the court that there was a big V-shaped log which he had put on the one which he was chopping. He demonstrated that the V-shaped log was upright firm on the ground and that he would put the one he was cutting on the V in an angular fashion, its one end would be on the ground and the other end on the V. He would then cut near the V, with the other piece falling away. He said there were some offcuts that the deceased and the other child would pick and pretend that they were also building some granary while playing. He said that the children ended up playing next to where he was, about 3 feet away to be precise. The axe then started slipping and to get a firmer grip on the axe he spit into his palms and then held the axe firmly. He then applied force in a bid to cut the log but the axe slid from his hands, the niece (the deceased) then suddenly stood facing him and the axe then hit her on the neck. He then took her to the room, he first put a jersey on her neck and then took her into the house. He then placed her on the bed. The deceased then sprung up and later fell down. He said he then thought of how one day his grandfather had chided him for delaying to fix the goat pen and he said the accused must do chores in time or else if he delayed something big will happen as he did his chores. He further told the court that some day prior to the fateful day he requested the deceased to give him water to drink and his mother then said accused liked sending the children and that amongst the children he was going to kill one of them. He said he fled after killing the deceased as he thought that people would harm him. He further said that he had no motive to kill the deceased. Under cross-examination he demonstrated how he was cutting the firewood with the HB 234/20 HC (CRB) 94/20 FILABUSI CR 25/05/17 axe. Under cross-examination he said that if deceased had not stood up when she saw the other child moving away she would not have been struck. He was asked why there was no blood at the scene and he said that it was because he had taken deceased to the bedroom. He said after he struck the deceased with an axe, deceased fell down facing upwards. He was asked where he had collected the jersey from he said it was on the granary. He was further asked if deceased did not bleed from the time she was struck, fell, and he went to collect the jersey until when he came back. He then said that blood had started to ooze out. He said deceased was about 5 paces away when she was struck. He said he fled from May 2017 until his arrest in December 2017 as he wanted to go and find a person who would apologise on his behalf. He said that he would not have killed his sister’s daughter. He was questioned about the photograph tendered as an Exhibit and marked B, that is, whether he left t