The State v Chenai Togara

### Preamble
1
HH 154-22
CRB 68/21
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THE STATE

versus

CHENAI TOGARA

HIGH COURT OF ZIMBABWE

MUNGWARI J

HARARE, 16 November, 2021, 17 February & 7 March 2022

Criminal Trial

Assessors:  Mr Kunaka

Mr Chokuviga

D H Chesa, for the state

H N Tirivani, for the accused

MUNGWARI J: This case illustrates how gruesome crimes of passion can become. The accused was indicted before the High Court facing a charge of murder as defined in s47 (1) (b) of the C l Law (Codification and Reform) Act [Chapter 9.23]. She was alleged to have brutally attacked rimina her husband and inflicted mortal injuries on him. The specific allegations were that on 12 September 2020 at the couple’s homestead in Chikowore village in the area of Featherstone, the accused had a matrimonial dispute with her husband one Benjamin Sambara (the deceased). The dispute centred around the accused’s recent acquisition of a mobile phone.  In the deceased’s view the mobile phone had been purchased in circumstances which could only be explained by the existence of a paramour. On the fateful night, the couple was in their kitchen hut when the quarrel started. At the height of the misunderstanding the deceased is alleged to have left the kitchen hut and went outside. He is said to have picked an axe from somewhere within the couple’s compound.  Armed with it he went back into the hut where the accused was. Realising that the deceased had an axe, the accused grabbed it from him.  She struck him with it once on the right thigh. She followed that up with another strike on the head. The deceased fell with the axe embedded in his head. The injuries were fatal.  He later died at Chivhu Hospital.

The accused denied the charge of murder. She instead tendered a limited plea of guilty to the lesser charge of culpable homicide. The state however rejected the limited plea and sought to pursue and prove the allegations of murder.

In her defence outline the accused stated that she had no intention of killing the deceased. She alleged that she was defending herself from the deceased who returned into the kitchen hut wielding an axe with a clear intention of striking her with it. She further alleged that when the quarrel started the deceased had just returned from a beer binge visibly inebriated. In the kitchen hut, the couple had a heated exchange as the deceased accused her of being involved in adulterous relationships during his absence. She strenuously denied those accusations. The situation degenerated with the deceased becoming violent. In a fit of rage, he stormed out of the kitchen hut but shortly returned armed with an axe.

The accused further outlined how the two of them tussled for the axe until she eventually wrestled it from him. After being disarmed, the accused did not relent. He continued to charge towards her. She said she swung the axe to intimidate him.  Unfortunately, the axe hit the deceased on the leg. She alleged that thereafter the deceased became even more incensed and aggressive. She had no choice but to swing the axe again intending to strike the deceased on the arm.  The deceased then tried to dodge the axe but was in the process struck on the head and fell.

By stating that she was protecting herself from the deceased’s aggression and that her intention in striking him with the axe was to ward of the attack, the accused pleaded self-defence. The only issues which arise in this case are therefore whether the accused intended to kill the deceased and whether her vindication met the requirements to sustain the defence of self-defence.

THE STATE CASE

Common Cause Evidence

With the consent of the defence, the state opened its case by tendering the autopsy which was sworn to by a pathologist called Dr.  Javangwe on 18 September 2020. The court admitted the report and marked it as Exhibit 1. It was not in dispute that Dr. Javangwe had examined the deceased’s remains with a view to establishing the cause of his death at Masvingo Provincial Hospital on the 15 September 2020 at 0830hours. His observations were that the deceased’s body had injuries on the scalp, right thigh, right forearm and lower lip. He detailed those wounds in the post-mortem report in the following terms:

“1. Scalp -There is a defect noted on the scalp, on the vertex, mainly on the right side of the head and brain material is noted to be coming out from that defect. There is a 10 cm laceration noted to be running through the scalp and appears to be running into the brain matter with sharp to irregular edges with evidence of a vital reaction.

2. Right Thigh-There is a laceration on the postero-lateral aspect of the right thigh measuring (7cm ×0.5cm)

3. Right forearm-There is a graze abrasion on the extensor aspect of the right arm measuring (1.5cm×1.5cm)

4. Lower lip-Also noted is a small area of contusion in the inner side of the lower lip measuring (2cm×0.5cm)”

In his final analysis, he concluded that the death of the deceased was a result of intracranial haemorrhage secondary to blunt force trauma.

The Prosecution also sought to introduce in evidence, the accused’s warned and cautioned statement. That statement was confirmed by a magistrate and was therefore admitted in terms of s256 (1) of the Criminal Procedure and Evidence Act [Chapter 9:07]. The defence did not challenge that the statement had been made freely and voluntarily without any undue influence. Its admission was therefore another common cause issue.  The court admitted it and marked it as exhibit 2. In that confession the accused stated as follows:

“I admit the allegations being levelled against me, however, I

had no intention to kill the now deceased. What happened is,

the now deceased came home from a beer drink appearing to

be drunk. He then started shouting. The now deceased was

accusing me of indulging in some adulterous relationships in

his absence, alleging that I was having an extra-marital affair

with Nelson Geza. I denied these allegations by the now deceased

saying I was not into adulterous relationship which caused the now

deceased to punch me on the mouth with a fist and I fell to the

ground. When I fell, the now deceased started pulling me, going

around in circles around the room.  I started calling out to my child

Tsungai Sambara advising her to go and call the now deceased’s

younger brother Ephraim Sambara so that he would come and rescue

me. When I called out to my child to go and call Ephraim Sambara,

the now deceased then released me and went outside.  The child then

saw the now deceased holding an axe and she alerted me saying, ‘watch

out, he’s wielding an axe.’ I told her to just go but she said she did not

want to go leaving the now deceased attacking me while alone. At that

time the now deceased entered the house holding an axe. He then raised

the axe intending to strike me on the head with it. I took hold of it before

it found its mark on me and struck the now deceased once on the right

thigh and once on the head with the axe and he fell onto the ground on

his back.”

Next in line was the sketch plan depicting the crime scene. It was drawn by Sergeant Chipfurutse and witnessed by Constable Choga. It was produced and tendered as exhibit 3. The sketch plan was drawn from indications made by Tsungai Sambara and Dzingai Sambara who appended their signatures to it. That exhibit was equally produced by consent.

Exhibit number 4 was the murder weapon. The court observed that what is referred to in the allegations as an axe is not the ordinary axe used for domestic purposes. That one’s axe head measured 26cms in length. It had distinctive jagged edges that resemble missing teeth on an otherwise smooth exterior. The jagged edges made it look sinister and more lethal. It had a 79cm long wooden handle with a 26.5cm thick circumference. Clearly a formidable weapon.

The axe weighed 1.8kgs as stated in Exhibit 5 which was the certificate of weight.

Dzingai Sambara and Isaiah Choga

The evidence of the two witnesses Dzingai Sambara (Dzingai) and Isaiah Choga (Isaiah)was formally admitted in terms of s314 of the Criminal Procedure and Evidence Act (Chapter 9:07) as it appears in the state outline.

The crux of Dzingai’s testimony was that after he had been alerted of the attack on the deceased by his sister in law the accused, he attended the scene and found the deceased bleeding and groaning in pain. He had sustained a cut on his head. He ferried the deceased to Chivhu Hospital where he was pronounced dead some minutes after arrival.

Isaiah on the other hand is an attested member of the Zimbabwe Republic Police stationed at Chambara. On 13 September 2020, he recorded a warned and cautioned statement from the accused after cautioning in accordance with the requirements of the law.

Other Common Cause Facts

From the State outline, the accused’s defence outline and her warned and cautioned statement the following facts became common cause as they were uncontested.

The accused and the deceased had a heated quarrel in their kitchen hut on the fateful day with the deceased accusing his wife of having an adulterous relationship with one Nelson Geza. Accused denied the allegations.

At the height of the disturbance, the deceased stormed out of the kitchen hut, picked an axe and went back into the kitchen

The accused disarmed the deceased by grabbing the axe from him before he could do anything with it

Accused struck the deceased with the axe once on the right thigh and once on the head. The deceased fell to the ground

The deceased sustained mortal injuries from the assault. He was pronounced dead some forty five minutes after arrival at Chivhu hospital.

The accused caused the death of the deceased.

Other Evidence

The state also led evidence from Tsungai Sambara the deceased’s daughter, Ephraim Sambara his brother and Tapiwa Chipfurutse a member of the Zimbabwe Republic Police who together with Constable Choga had handled the investigation of the murder. The accused on the other hand was the sole witness for the defence.

Issues to be resolved

As stated earlier in this judgment, the issues which lie for resolution in this case are whether in causing the death of Benjamin Sambara the accused acted in self defence and thus lacked the requisite intention to sustain a charge of murder.

We now turn to analyse the evidence.

Tsungai Sambara (Tsungai)

Tsungai is the only child of the deceased and accused. She was only 14 years of age at the time she testified in court. She personally witnessed the traumatic events leading to her father’s death. In her own words, her parents had had an altercation earlier on in the day after which the deceased had gone for a beer drink. When he returned around 7pm he picked up the dispute from where it had ended. He alleged that the accused was unfaithful and had an amorous relationship with Nelson Geza. The deceased became violent. He dragged the accused into the kitchen hut. Tsungai says she remained outside. After a short while the deceased exited the hut. She observed him take an axe from under the avocado tree. She called out to the accused who was in the kitchen to be aware as deceased was coming for her with an axe. In response accused called out to her and instructed her to go and call her uncle Ephraim. She did not go far before she decided to turn back. She arrived in time to witness the deceased wielding the axe and the accused grabbing it from him before he could use it. In fact, according to her the accused caught the axe as it was thrown towards her by the deceased. She described, in graphic detail, how the fatal blow was delivered on the person of deceased by accused. She told the court how after getting hold of the axe from deceased the accused held the axe with both hands. The axe was vertically inclined as she aimed it at the accused. The deceased on the other hand was standing and he did not move from his position. The accused subsequently struck the deceased on the head. He fell with the axe stuck in his head. The accused then removed the axe from the deceased’s head and threw it outside the hut. After the assault, the accused went and sat outside for a short while. She later asked the witness to accompany her to her brother-in law Ephraim Sambara’s place of residence.

The Court’s analysis of Tsungai’s evidence revealed that when the accused disarmed the deceased, she managed to avert the danger that was impending. That fact is clear from the witness’s testimony that the deceased did not charge towards the accused but remained standing. He did not change his position from the time he was relieved of the axe by the accused to the time that he was struck on the head with the same weapon.

Ephraim Sambara (Ephraim)

The witness who was a brother to the deceased confirmed having been alerted of the assault on deceased’s person by the accused and her daughter Tsungai. According to him it was around 8pm when the accused and her daughter arrived at his homestead. After the report they all went back to accused’s homestead where they found the deceased groaning in pain. Ephraim arranged for a motor vehicle to ferry deceased to Chivhu hospital.

We did not find this witnesses evidence relevant in any way. It did not have any probative value because the issues that the witness spoke to were largely common cause. Save to confirm that the accused had recently complained to him about deceased’s allegations of infidelity towards her he had nothing more to add. The issues of alleged infidelity had already been narrated by the accused herself in her defence outline and her daughter Tsungai. Ephraim’s evidence merely served to corroborate the utterances of infidelity.

Tapiwa Chipfurutse (Tapiwa)

The witness an attested member of the Zimbabwe Republic Police confirmed that he received a report of attempted murder on 12 September. He narrated how after the deceased was taken to Chivhu hospital he subsequently passed away on the 13 September 2020. He confirmed having witnessed the recording of the accused’s warned and cautioned statement which statement he said was given freely and voluntarily. That evidence had earlier been confirmed by the admission of that statement into evidence without challenge. The witness told the court that he had not seen any signs of a struggle at the crime scene. He however confirmed seeing blood on the ground.  From the indications that he made he concluded that the distance from where the accused was in the hut to the door was about 3.2 metres. As such he said the accused could have exited the hut if she had chosen to do so, in order to avert any danger or threats of danger upon her person because there was no obstruction to the door.

The witness further told the court that from his investigations it initially appeared like the deceased had been struck whilst sleeping or in a prone position. Further investigations carried out however revealed that deceased was first struck on the thigh. He knelt down because of the impact. Whilst in that defenceless position he was then struck on the head. From the indications made by witnesses and his own assessment, the witness concluded that the evidence pointed to the fact that after the accused got hold of the axe there was no scuffle as the deceased stood in the same position until he was struck on the right thigh. He then collapsed to his knees before the fatal blow landed on his head. That in the witness’s view explained the absence of struggle marks at the crime scene, that he had observed when he arrived at the deceased’s homestead.

Based on that evidence, the court was of the firm view that there hadn’t been a struggle between the accused and the deceased after the axe was taken from the deceased.

In fact, as will be shown, the accused herself confirmed this in her testimony.

Chenai Togara (Chenai)

The accused’s evidence in chief was what she had told the court in her defence outline. Her point of departure from her defence outline was in conceding that indeed there were no signs of any struggle at the crime scene because in her own words the couple “did not scuffle to any such extent”. By saying so she cast doubt on her own assertion of there having been a scuffle for the axe and that the deceased had allegedly continued to charge towards her until she hit him with the axe. She clearly corroborated Tsungai’s evidence that she caught the axe as it was hurled towards her by the deceased. That concession effectively took away her contention that the deceased had tried to strike her with the axe. Instead, it gave impetus to the assertion that the axe was thrown by the deceased towards her and that she caught it and then attacked the deceased with it.

She also volunteered information of how she had planned to divorce the deceased because the relationship had become acrimonious due to constant disagreements. From her confession we got the impression that the marriage might not have been a happy one as it was characterised by occasional incidents of domestic violence.

These being the only points of departure from her defence outline it is imperative to note that the rest of accused’s testimony is as it is already captured on record and in her defence outline. There is therefore no point in restating it here. All that is left is for the court to make an analysis of the accused’s evidence.

What stood out from accused’s testimony was that she was a dishonest witness. She wove a web in the form of a narrative which narrative finally trapped her.

Under cross examination the accused struggled to explain how she struck deceased on the back of his right thigh if they were facing each other as she alleged. The pathologist observed injuries on the deceased’s “postero-lateral aspect of the right thigh.”  That part is the back part of the thigh and not the front. The accused’s attempt to demonstrate to the court how she alleged to have inflicted such injuries on deceased if he was facing her only aided to show the impossibility of it. The only logical conclusion is that she failed to explain her version of events because she struck the deceased whilst he had his back to her. That explains why the witness Tapiwa Chipfarutse initially thought that the deceased had been struck whilst sleeping or in a prone position. The court concluded that the injury noted on the back part of the deceased’s thigh could only have been inflicted because the deceased had relented in attacking the accused and was either fleeing or walking away with his back to the accused. In her own evidence the accused conceded that the blow that she inflicted upon deceased on the back of the thigh had completely immobilized him. After that initial attack he leaned forward and immediately went down on his knees. She finished him with the blow on the head.

Probed on why she proceeded to strike the deceased on the head when he was on his knees the accused sought to wriggle out of trouble by alleging that she was not aiming at the head. Cornered, she changed track and sought to suggest that the deceased may have sustained the fatal injuries because his head had landed on the axe. Unfortunately, there was no hiding behind that explanation either. There is irrefutable evidence from her own daughter that she aimed at deceased’s head and struck him.

These contradictions, half-truths and blatant untruths in the accused’s evidence can only point to one thing. She attempted to exaggerate the threat posed by the deceased to justify her attack on the deceased. In the court’s assessment, she was not in any danger which would have warranted the use of a lethal weapon such as an axe directed at a vulnerable part of the human body such as the head. It is not unreasonable to conclude that she hated him for the degeneration of their relationship. She accepted that she was planning to divorce him after he continuously accused her of having an extra-marital relationship.

The court therefore had no choice but to reject the accused’s defence as false.  It was apparently informed by a desire to exculpate herself and is self-serving. The only eyewitness in this case, who had no reason whatsoever to incriminate the accused gave a plausible version of what transpired on 12 September 2020. We embrace that version to be truthful.

With this version of events and concessions by herself it was clear to the court that the accused averted any danger that may have come her way at the time that she got hold of the axe. The deceased had subsequently turned away in retreat. The accused however did not stop. She was intent on striking the deceased. She went for the kill. Her defence that she was defending herself is unsustainable for the following reasons:

The law

In this jurisdiction it is trite that a person is entitled to take reasonable steps to defend himself, any third party or his property against an unlawful attack or harm. It is accepted that in circumstances of imminent danger to life, even killing the assailant may be excusable. The requirements of that defence were outlined in the case of S v Banana 1994(2) ZLR 271 (S) at 273. They are that:

There must be an unlawful attack

The attack must be directed at the accused or a third party, where the accused intervenes to protect a third party

The attack must have commenced or be imminent

The action taken must be necessary to avert the attack and

The means used to avert the attack must be reasonable

Even where the accused acts in self-defence she may not have the defence available in instances where she exceeds the bounds of moderation. If she does, she may either have a partial defence or no defence at all depending on the circumstances of the case. As stated by the learned author G. Feltoe in his little book, A Guide to the Criminal Law of Zimbabwe, 3rd edition, LRF, at pp 43-44;

“Where X exceeds the bounds of reasonable self-defence and kills

the assailant, he may nonetheless still be found guilty of culpable

homicide unless the excess was immoderate. The approach here

is that the account should be taken of the fact that X was under

attack, although, in the circumstances, he overreacted. He should

thus be entitled to a partial defence on a charge murder. This partial

defence will not, however, apply where X response was entirely

excessive in the light of the type of threat he was under,”

See S v Ncube & Ors HB-303-16

The Law and the facts

In the court’s view, the defence of self-defence is not available to the accused person because she struck the deceased after she had disarmed him. He had turned his back possibly to flee from the accused. The evidence on record shows that the attack was not imminent. Even if it could be argued that it was, the fact remains that at the time that she attacked the deceased he was helpless and did not pose any danger to her.  The deceased was not carrying any weapon at the time of the attack. The force and the means used to attack the deceased were unreasonable in the circumstances. After striking him and immobilising him, it became completely unnecessary to split the deceased’s skull. The blow to the head cannot by any stretch of imagination be said to have been made to avert any form of danger to her person.

Because the very first requirement was not met, it becomes unnecessary for the court to discuss all the other requirements to sustain the defence of self-defence. A person who uses the kind of weapon that was used by the accused to strike a human being on the head, under whatever circumstances, must be taken to have foreseen the possibility of death resulting from such conduct.

From an analysis of all the evidence the court finds it as a fact that the accused intentionally caused the death of Benjamin Sambara. She had many options available to her which she could have utilized to extricate herself out of the situation. MAKARAU  JA in the case of Tafadzwa Watson Mapfoche v The State SC 84/21 laid to rest the issue of whether or not the trial court in a murder trial should specify that the accused is found guilty or murder with actual or constructive intent. She stated as follows;

“Thus under the section, it is not necessary, as was the position under the

common law, to find the accused guilty of murder with either actual

intent and constructive intent. Put differently, it is not necessary under

The Code to specify that the accused has been convicted under 47 (1)

or (b). Killing or causing the death of another person with either of

the two intentions is murder as defined by the section.”

Disposition

In the instance therefore the accused is hereby found guilty of murder.

Sentence

In passing sentence the court is mindful of the need to strike a balance between the offence and the offender whilst at the same time ensuring that the interests of society are also considered. The court therefore considered all the mitigatory and aggravatory factors as submitted by both counsels.

For the prosecution, counsel urged the court to make a finding that the accused committed the murder in aggravating circumstances. He suggested that the accused premeditated the commission of the murder. It is a requirement that following a conviction of murder the court must decide on whether the murder was committed in aggravating circumstances. Such circumstances are set out in Section 47(2) and (3)) of the Criminal Law Codification and Reform Act [Chapter9:23]. It is not necessary to cite the provisions of S47(2) in extenso. The relevant part in s47(3) provides:

47 Murder

“(3) A court may also in the absence of other circumstances of a mitigating nature or together with other circumstances of an aggravating nature regard as an aggravating circumstance the fact that –

the murder was premeditated;

In casu  it is difficult to conclude that the accused pre-planned the murder. What is not in doubt is that prior to the murder she contemplated divorcing the deceased. She wanted to give up on her marriage but never set in motion plans to escape the marriage in the manner it turned out. Her intolerance of him led the accused to overreact even when the deceased posed the slightest of danger to her. Any suggestion therefore of premeditation by the State is misplaced. In addition, none of the other listed circumstances in s47(2) and (3) were present in this case.  The court did not find that there were other factors present which could be classified as aggravating circumstances for purposes of applying the aforesaid. It accepted therefore that this murder was not committed in aggravating circumstances as envisaged by s (47) (2) and (3) of the Code.

In mitigation the court considered that the accused is a first offender. She is a 41-year-old mother of two children one of whom she sired with the deceased. She therefore has attendant family responsibilities particularly the 14-year-old girl who will now also grow up without a father.

The accused appears to have been overwhelmed by the situation she found herself in. She had fallen out of love with the deceased due to the constant acrimony in their relationship. They had a love hate relationship culminating in her plans to divorce the deceased.  From those intense negative feelings that she harboured towards him she failed to restrain herself and killed him. The court is satisfied that she was driven by her emotions into committing this murder.

It is a fact that she lost her husband at her own hands. That act will remain traumatic to her possibly, for the remainder of her life. She is obviously now a prisoner of her conscience. It means that she started serving her own psychological sentence on the day she committed the offence. Against that background counsel for the accused urged the court to impose a custodial sentence of 8 years. She cited the case of Lillian Gatsi vs The State SC 37/90 as  an example of a matter in which an accused was found guilty of murder with constructive intent and was sentenced to 8 years imprisonment. With due respect the circumstances of the accused in the cited case are totally different from the one at hand..The cited  case is not of much assistance in persuading the court to pass on a similar sentence.

What aggravates the accused’s case and is unsettling is that violent offences committed within domestic settings continue to be on the rise. It is the duty of the courts therefore to uphold the sanctity of human life. The Constitution of Zimbabwe, 2013 in s25 is clear that:

“The state and all institutions and agencies of government at every level must protect and foster the institution of the family and in particular must endeavour within the limits of the resources available to them, to adopt measures for-

(b)the prevention of domestic violence”

In addition to this Mr. Chesa for the state bemoaned the fact that women perpetrators of violence against their husbands are also on the rise. As a result, he urged the court   not to discriminate in sentencing accused. He urged the court to impose a sentence in the region of 20 years in the circumstances.

The court agrees that murder is a crime which it must always take a dim view of. There is no doubt that invariably it must attract a significant term of imprisonment. There is not much justification proffered for the court to resort to a sentence as short as the 8 years suggested by counsel for accused. The accused used an axe to kill her own husband. It is a lethal weapon which was used to brutally murder the deceased. She was determined to finish him of as signified by her unrelenting desire that even after she struck him on the leg and he became immobilised she followed that up with another fatal blow to the head. The human head is a delicate part of the body.  On impact the axe burrowed through the deceased’s skull and it was left embedded therein. In a brazen manner the accused then pulled out the axe from the deceased’s head and threw it away. It was because of such callousness that the court ruled that the accused must have appreciated and did foresee the risk of serious injury or death resulting from the use of that weapon. Needless to say a precious life was lost. The deceased died a painful death given the nature of the injuries sustained as per the post-mortem report It is important that with appropriate sentencing patterns spouses be reminded of the need to  be slow to resort to violence in order to resolve their matrimonial challenges.

The crime was made more brutal given that it was committed in front of the couple’s 14-year-old daughter.  The little girl was subjected to psychological torture by the conduct of the accused person. The remarks of tsanga J in the   case of S v Tevedzayi HH206/18 are relevant in that she outlined the negative effects of violent acts carried out in full view of children by their parents. This girl was certainly not spared and even more so when she was asked to re-live her experience through testifying against her own mother in the cause of her father’s death.

It is equally disconcerting to note that throughout the trial the accused did not show any signs of remorse. She was intent on trying to hoodwink the court into believing that she struck deceased on the back of his right leg as he faced her. She even went as far as trying to demonstrate how she did the impossible and as expected failed dismally. In the process she exposed herself for not being contrite and as someone eager to escape liability by whatever means possible.

A lengthy custodial sentence is in these circumstances called for.

Accordingly accused is sentenced to 14 years imprisonment

Mungwari J...........................................

National Prosecuting Authority, States Legal Practitioners

Chiturumani Zvavanoda Law Chambers, Defense Legal Practitioners