S v Tarashira (24 of 2024) [2024] ZWCHHC 24 (6 March 2024)

1 HCC24/24 HCCR1609/23 THE STATE versus LAMECK TARASHIRA HIGH COURT OF ZIMBABWE MUZOFA J CHINHOYI, 13, 14, 27 February & 6 March 2024 Assessors, 1. Mr. Chivanda 2. Mrs Mawoneke K. Teveraishe, for the State M. Magama & F. Murisi, for the accused Criminal Trial MUZOFA J Background [1] On the 18th April 2023 the accused and his wife the deceased left home and proceeded to Gomango shopping centre, Landfall, Mutorashanga to celebrate the Independence Day. Unfortunately a day that started with merry making ended in tragedy. On their way back they had an intense altercation. The accused pushed the deceased off the road, sat on her strangled her and stabbed her with a broken mirror. He left her lying helplessly by the road. [2] The accused was charged with murder in terms of s47 (1) of the Criminal Code in that he assaulted the deceased with actual intention to cause her death or that he foresaw that death was imminent but persisted in his conduct . [3] The accused denied the offence and raised self-defence. He said when they had an altercation, the deceased suddenly attacked her with a broken mirror which she took from her hand bag. He wrestled the mirror from her and stabbed her with it. He denied strangling her. The State Case HCC24/24 HCCR1609/23 [4] At the onset the State produced the following exhibits with the consent of the defence; i. The accused’s confirmed warned and cautioned statement together with the script of the confirmation proceedings which was marked exhibit 1. The accused’s response to the charge was as follows; “My name is Lameck Tarashira and I have understood the nature of the inquiry and caution. The now deceased and myself were staying together as husband and wife and I had one child with her. On 18 April 2023 the now deceased and I were at Gomango Business Centre celebrating Independence Day when I saw Dennis Chihata who is the now deceased’s ex-boyfriend touching her buttocks. This did not go well with me until we left the place going to our home. Whilst on our way going home, we started quarrelling again until I strangled her, overpowered her, took a mirror which was in her purse and struck her several times with it on the face and nose until she died. I got the mind to rape her after she died. I then left and informed her sister, Mai Evernice of what had happened. I then ran away into the bush and I was arrested the following day. That is what happened.” ii. The record of indications made by the accused which was reduced to a sketch plan. The record and the sketch plan were marked exhibit 2 and 3 respectively. iii. The post mortem report which was marked exhibit 4. The cause of death was recorded as asphyxia. [5] The evidence of nine witnesses was formally admitted in terms of s314 of the Criminal Procedure and Evidence Act [Chapter 9:07]. This dispensed the need to prove any of the averments stated in the witnesses’ statements. [6] Their evidence can be summarised as follows: Taizivei Donati She was the deceased’s sister. On the fateful day she received a report from Sharon and Juliet that the accused was assaulting the deceased. She invited the deceased’s son one Moses Nyatsande and together they proceeded to the scene. They found the deceased lying lifelessly besides a road. The deceased was bleeding from the left side of her face. They returned home where they informed their brother one Afuwero Kurupira. [7] Moses Nyatsande HCC24/24 HCCR1609/23 He was the deceased’s son. The accused was his step father. He was advised by Taizivei about the assault on the deceased. He proceeded with Taizivei to the scene where they found the deceased already dead by the road side. [8] Afuwero Kurupira He was the deceased’s brother. On the 18th of April he was also at the Business Centre celebrating Independence Day with others. He saw the accused and the deceased quarrelling. It seemed they then resolved their issues. Around 2050 hours he returned to his home. At the compound he met the accused carrying his satchel. They chatted a bit and each went home, so he assumed. He was shocked when he later received a message on the deceased’s death from Moses that night. [9] He proceeded to the scene of crime and indeed found the deceased lying lifeless beside a road. He went and advised the deceased’s friend Tsitsi Agrippa who then filed a police report. [10] Tsitsi Agrippa She was the deceased’s friend. She received the message of deceased’s demise. She went to the scene and subsequently reported the matter. [11] Taxas Manditsvara and Julius Mutepeya. The two were police officers who were involved in the investigations. They attended the scene of crime and caused the deceased’s body to be taken to Banket Hospital. Before the deceased’s body was taken to the Hospital they examined it and observed that it had scratches on the neck. The deceased’s undergarments had been removed and torn. They observed two spots on the ground soaked in blood. They recovered a blood-stained broken mirror near the deceased. [12] Brian Kamunga A mortuary attendant who received the deceased’s body at Banket Hospital. He identified the body to the medical officer who examined the deceased and compiled the post mortem report. [13] Maxwell Madanwa HCC24/24 HCCR1609/23 He was a government clinical officer employed by the Ministry of Health and Child Care. On the 19th of April 2023, he examined the remains of the deceased Fungai Shereni and concluded that death was due to asphyxia. [14] Two witnesses gave oral evidence. The two juveniles aged 13 and 14 years and in grade 7 shall be identified as X and Y. Their evidence is similar in material respects. [15] X and Y also went to Landfall Farm to celebrate Independence Day on 18 April 2023. They danced to music, socialised and made merry with food and drinks at Gomango where the celebrations were held. They knew the accused and deceased as husband and wife. They lived in the same community at Mapulanka, Mutorashanga. [16] They left the place in the evening around 7 pm when it was a bit dark. [17] When they walked along the road back home, they heard voices ahead of them. They ran to catch up with the people for company. Obviously as children they needed some form of security. They caught up with the accused and the deceased. [18] They were about a metre or so as they walked with the two. Suddenly the accused pushed the deceased off the dust road to the grass. The deceased fell down. The accused sat on her while strangling her. He told them to rush to the compound and advise people that he will kill the deceased. They rushed to Mapulanka compound where they advised Taizivei, the deceased’s sister. X proceeded to her home while Y accompanied Taizivei to the scene of crime. Factual Analysis [19] The court must first decide whether X and Y were credible witnesses. They were the only ones who gave oral evidence. [20] Their cross examination could not discredit the material part of their evidence. They were cross examined on the source of light. It is common cause that it was dark or getting dark. X said she could see since there was moonlight yet Y said the deceased had a small phone whose torch was switched on. [21] The differences in the source of light in our view does not discredit their evidence. The bottom line is each one of them saw what transpired which was not controverted. They saw the accused strangling the deceased. HCC24/24 HCCR1609/23 [22] Their evidence was not exaggerated. They did not see anything about the stabbing. That the deceased was strangled is confirmed by the post mortem report. Death was due to asphyxia. [23] The clinical officer who examined the deceased noted multiple bruised marks on deceased’s neck. The bruises were on the frontal part of the neck where the wind pipe is located. He explained asphyxia in layman’s language as failure to breathe. His narration was that there was some tempering with the neck which inhibited air going down into the lungs leading to death. According to him, the puncture woun