S v Tshuma (181 of 2022) [2022] ZWBHC 181 (14 June 2022)

1 HB 181/22 HC (CRB) 85/22 THE STATE Versus CALVIN TSHUMA IN THE HIGH COURT OF ZIMBABWE MAKONESE J with Assessors Mr J. Ndubiwa & Mr J. L. M. Zulu HWANGE 13 & 14 JUNE 2022 Criminal Trial Ms M. Munsaka for the state Ms L. Mthombeni for the accused MAKONESE J: Late in the afternoon on the 21st of May 2021 the 16 year old accused followed the 9 year old deceased who was on her way home from Kwesengulube Primary School in Nkayi. The deceased was in grade 3. Accused lured the deceased into a bushy area after offering her jiggies corn snacks. Accused had sexual intercourse with the deceased without her consent before chocking her and strangling her to death. At around 20:00 hours that same evening the deceased’s body was discovered in a bush. Deceased’s lifeless body was found with her face facing upwards. Her dress was pulled up to waist level. Her black skin tights were torn in the middle. Her legs were spread apart. There were signs that she had been raped before she was killed. Accused pleads guilty to one count of rape. He denies the charge of murder as defined in terms of s 47 (1) (a) of the Criminal Law Codification and Reform Act. (Chapter 9:23). Accused tendered a plea of guilty to the lessor offence of culpable homicide. The state rejected the limited plea. The matter proceeded to trial. The state produced a summary of the state case. It now forms part of the record. The accused tendered a defence outline wherein he pleaded guilty to one count of rape. He denied raping the deceased twice. Accused admitted causing the death of the accused unintentionally. He admitted to the negligent killing of the deceased. Accused avers that he met the deceased on the day in question on her way from school. He was coming from the shops. Accused says he offered the deceased jiggies corn snacks and thereafter asked her to go with him into the bushes so that they could have sexual intercourse. Accused confirms that deceased did not consent to the sexual act. HB 181/22 HC (CRB) 85/22 Accused states that he had had sexual intercourse before with his maternal aunt. Accused had seen his aunt have sexual intercourse with boyfriends several times before this unfortunate encounter with the deceased. Accused denies the charge of murder. He avers that the deceased refused to go with him into the bush. He pulled and dragged her into the bushes. He raped her once. Accused avers that he only remembers beginning to climax and thereafter realizing that he had been gripping the deceased by the neck and had strangled her. Accused states that he was shocked at his actions, fled the scene and went home to inform Sikhulile Maphosa on what had transpired. Dr S. Pesanayi is a pathologist based at United Bulawayo Hospitals. On the 24th of May 2021 he examined the remains of the deceased and compiled his findings in a post mortem report filed under report number 494/431/21. The cause of death is listed as: 1. Asphyxia 2. Manual strangulation On internal examination the report revealed multiple abrasions on the right side and left of the neck. There were bruises on the cheeks, nose and mouth. There were signs of subconjuctival haemorrhage. On generative organs there was blood on the vagina. The hymen was not present indicating that penetration had been effected. The vagina was bruised with lacerations. THE STATE CASE The state opened its case by leading evidence from Mcinisi Nkiwane. He resides in Huba Village, Chief Madliwa, in Nkayi. Deceased was his neighbour. The deceased was a daughter to Ready Ncube. On the day in question the witness with other villagers traced the shoe prints of the deceased and the accused. The deceased had earlier in the day been reported missing. Two positions where there were signs of a struggle were observed. The witness was present when the deceased’s body was discovered lying dead facing upwards. The witness with other members of the search party tracked the accused’s shoe prints to Sikhulile Maphosa’s homestead where the accused was residing. The accused was found sleeping under a mango tree. Accused admitted killing the deceased. When he was confronted he uttered the following words: “Do not assault me. I am the one who killed the child.” HB 181/22 HC (CRB) 85/22 The witness was subjected to extensive cross-examination by defence counsel. The witness was forthright in his responses. He was repeatedly asked to describe what he observed when the body of the deceased was discovered. The witness insisted that accused had told him and other villagers that he had raped the young girl twice before strangling her. The witness did not however, provide clear and credible evidence that the deceased had been raped more than once. On the whole, the evidence of this witness was credible and consistent in all material respects. We have no hesitation in accepting the evidence of this witness as an accurate reflection of what transpired on the fateful day. Before the close of the state case, counsel for the state Ms Munsaka, applied to have the evidence of the under listed state witnesses as it appears in the summary of the state case admitted by way of formal admissions in terms of s314 of the Criminal Procedure and Evidence Act (Chapter 9:07), namely: (a) Ready Ncube (b) Wellington Ndlovu (c) Constable Muchinga (d) Dr S. Pesanayi The evidence of these witnesses was admitted into the record by consent. The evidence was largely common cause and therefore not contested. The state closed its case without adducing further evidence. DEFENCE CASE The accused, Calvin Tshuma, gave evidence under oath. He testified that at the time of the commission of the offence he was 16 years old. He has just turned 17 years. Accused stuck to his defence outline. He asserted that he had followed the deceased as she was on her way home from school. He led her into a bushy area after offering her some jiggies snacks. He pulled her into the bushes where he raped her once. As he raped the deceased, he firmly held her around the neck with both hands. Accused testified that he had killed the deceased because he did not want her to report the rape. From accused’s own words, his motivation for strangling the deceased was clear. The intention to kill is established by accused’s own sworn testimony. The attempt to raise the defence of diminished responsibility was only a red-herring introduced by the defence to obfuscate the issues. Accused says that he panicked HB 181/22 HC (CRB) 85/22 after realizing that he had killed the deceased. He demonstrated how he strangled the deceased. Accused was clearly aware of his objectives. His initial objective was to have sexual intercourse with the deceased. Having achieved his mission he proceeded to choke and kill the deceased. Under cross-examination accused was asked why he killed the deceased. His response was as follows: “I was afraid that she was going to report me.” Accused’s response was repeated when the court put the same question to him. Accused was not a credible witness. He evaded questions and in some instances blamed “evil spirits” for his conduct. WETHER THE STATE PROVED ITS CASE BEYOND REASONABLE DOUBT Count one (rape) No issues arose out of the first count. Accused admitted that he had sexual intercourse without the minor’s consent once. He denied that he raped her twice. The guilt of the accused on the first count is therefore established by accused’s own admission. Count 2 (rape) The accused denies that he raped the deceased twice. He indicated that he made no confession to the state witnesses about the second count of rape. The state has conceded that there is no direct evidence that deceased was raped twice. The state concedes that apart from what the state witnesses allege was a confession by the accused, there is no other independent evidence aliunde to prove all the essential elements in count two. Accused is therefore entitled to an acquittal in respect of the second count. Count 3 (murder) The evidence on this count is common cause. A