THE State V PAUL Chiwumba

### Preamble
1
HMA 25/19
CRB 23/16
---------


THE STATE

vs

PAUL CHIWUMBA

HIGH COURT OF ZIMBABWE

MAWADZE J

MASVINGO, 9, 10, 11 November 2016, 30 January 2017, 27th June and 3rd July, 2019

Assessors	1.	Mr Dauramanzi

2.	Mr Mushuku

Criminal Trial – Discharge at close of State case

T. Chikwati for the state

C. Ndlovu for the accused

MAWADZE J:  The trial of the accused commenced on 9 November, 2016 and the state case was only closed on 27 June 2019. The reason for this long delay has been the unavailability of a key state witness Dr. Sanganai Pesenai. The state indicated that Dr Sanganai Pesenai was unwell and could not travel to Masvingo from Bulawayo. He only availed himself on 27 June, 2019 after which the state case was closed.  An application for the discharge of the accused was then made on the same day. Due to this prolonged delay we proceeded to give an ex tempore ruling on the application on the same day. On 1 July 2019 the state requested for a written reasons for the ruling in order to possibly lodge an appeal or engage the now deceased’s relatives whom the State says have been dissatisfied with the decision of the Court. I proceed to give the reasons hereunder;

This is an application made in terms of s 198(3) of the Criminal Procedure and evidence Act [Cap 9:07] in which the accused seeks to be discharged at the close of the prosecution case.

The then 40 years old accused was married to the 35 years old now deceased. They were residing in Chikombedzi Village, Chief Zimuto, Masvingo. The accused was employed at Chisumbanje and the now deceased was a house wife.

On 7 September 2014 the accused arrived at his rural home from his workplace at Chisumbanje at around 2200 hrs. The now deceased had retired to bed. Later that night around 0400 hrs the accused woke up his relatives indicating that his wife, the now deceased was seriously ill as she had difficulties in breathing and could no longer talk. The now deceased, was ferried to Masvingo General Hospital where she was pronounced dead on arrival. A post mortem report was compiled by Dr Zimbwa which stated the now deceased’s cause of death as a stroke. Apparently the now deceased’s relatives suspected foul play and this culminated in another post mortem examination by Dr Sanganayi Pesanai who stated that the cause of death was asphyxia due to strangulation in circumstances amounting to homicide. The state alleges that it is the accused who strangled his wife, breaking the tranchea bones thus causing her death. This is the basis of the criminal charge of murder against the accused which is that he strangled his wife Sukai Chiutsi on 8 September 2014 in their bedroom causing her death.

The accused strenuously denied these allegations. In his defence outline the accused pointed out that the now deceased suffered from chronic tonsillitis. He said after his arrival home on the night in question he retired to bed with his wife the now deceased. He said around 0400 hrs he woke up only to find that the now deceased was barely conscious and having breathing problems. He woke up his relatives and ferried the now deceased to Masvingo General Hospital where the now deceased was pronounced dead on arrival 0600 hrs.

From the evidence led it seems there was a dispute surrounding the need for a post mortem examination. Ultimately Dr Zimbwa carried out an external post mortem and concluded that the cause of death was a stroke.

Irked by this finding the now deceased’s relatives who suspected foul play demanded a full post mortem examination. The now deceased’s relatives alleged physical abuse of the now deceased and that she had been killed by the accused. As a result, the now deceased’s body was said to have been retrieved from the funeral parlour in Masvingo and taken to Masvingo General Hospital mortuary enroute to United Bulawayo Hospital in Bulawayo for a full post mortem which was done on 11 September 2014, 3 days after the now deceased’s death. The accused denied causing the broken bones in the deceased’s neck and suggested that this could have been caused by the manner the now deceased’s body was handled. All in all, the accused denied having a hand in the now deceased’s death.

The state called a total of 10 witnesses in this matter who are as follows;

Anatoria Chiwumba, accused’s mother who stayed at the rural home with the now deceased.

George Chiwumba, the accused’s younger brother who also stayed at the rural home with the now deceased.

Constable Chipochashe Mafuma, Constable Nevious Gatsi, Sgt Huggins Chimwamafuku, Cst Thomas Nyamuronda and Sgt Mark Nyamande who all played some role in handling the matter.

Fungai Chiutsi the now deceased’s young sister.

Dr. Zimbwa and Dr Sanganayi Pesanai who carried out post mortem examinations.

At this point it is important to summarise the evidence of these state witnesses before dealing with the application made by the accused. I would hasten to point out that the bulk of the evidence of these witnesses is irrelevant and immaterial to the issue at hand. We turn to that evidence;

Anatoria Chiwumba (Anatoria)

Anatoria is accused’s mother and deceased’s mother in law. She stayed with the now deceased at the rural home. Her testimony was to the effect that the accused and the now deceased had a normal blissful marriage. She said the now deceased however was of ill health although she performed all household chores. On the night in issue she was woken up by the accused and advised of the now deceased’s critical health state. She said the now deceased could no longer talk and died before being attended to at the hospital. Anatoria confirmed that the now deceased’s relatives were bitter and suspected foul play. She is not aware of what caused the now deceased’s death.

George Chiwumba (George)

George is accused’s younger brother who stayed at the rural home with the now deceased and other relatives. According to George there was no marital problems between the accused and the now deceased. He said on the night in question when accused woke him up the now deceased had breathing problems. According to George after deceased’s death her relatives suspected foul play. George could not say what caused the now deceased’s death.

Cst Chipochashe Mafuma (Cst Mafuma)

Cst Mafuma attended to the accused and his relatives soon after the now deceased’s death around 0700 hrs on 8 September 2014. He said the accused told him that accused had arrived from work that night at his rural home and joined his wife in bed after which they became intimate. Thereafter he said the accused said the now deceased complained of headache and later fell sick and died, the accused did not suspect foul play except his possible belief in witchcraft as the cause of the sudden death of his wife. Cst Mafuma completed the relevant documents and referred the accused to the police post at the hospital.

Cst Mafuma seemed not to have recorded all these details on Form 231 especially that accused alleged that the now deceased had complained of headache. It was difficult to follow Cst Mafuma’s evidence in that he said accused suspected foul play in the form of witchcraft but still did not want a post mortem examination to be done.

Cst Nevious Gatsi (Cst Gatsi)

Cst Gatsi attended to the accused who had been issued with Forms 231 by Cst Mafuma now in the afternoon of 8 September 2014. He said the Forms 231 were contradictory in that foul play was suspected but post mortem not required. Again the evidence of Cst Gatsi was rather confusing as she said it is accused who alleged that Cst Mafuma had made an error as no post mortem was required. Cst Gatsi seemed to have disposed of Cst Mafuma’s completed Forms 231 and completed her own set of Forms 231. At the end of the day the evidence of Cst Gatsi is immaterial in that a post mortem was subsequently done. In any case this was a sudden death for which the cause of death was not known. It therefore did not matter what the accused said or wanted. The police were duty bound to ensure that a post mortem examination was done to ascertain the deceased’s cause of death.

Dr Zimbwa

Dr Zimbwa a medical doctor at Masvingo General Hospital with 22 years’ experience is the one who examined the now deceased’s body externally on 8 September 2014 at about 1640 hrs. Dr Zimbwa said he indeed inspected the now deceased’s body to check for any external injuries, bruises, cuts on the whole body including limbs, neck and head. He did not find any signs of external trauma, save some deviation of the upper lip associated with stroke or cerebral vascular incident. He did not notice any swelling of the neck or bleeding from the nose. Dr Zimbwa said he concluded that the cause of death as stroke. The now deceased’s relatives were however not satisfied as they suspected foul play and he referred them to a pathologist who could do a full post mortem. Dr Zimbwa said that as he did an external post mortem the results of a full post mortem would be accurate. He insisted that his external examination was thorough and did not see any signs of swollen neck or struggle marks on the neck.

Dr Zimbwa indeed carried out an external post mortem examination. What is critical about his evidence is that he did not see any signs of trauma on the deceased’s neck. In his opinion death was as a result of a stroke.

Fungai Chiutsi (Fungai)

Fungai is deceased’s younger sister. The bulk of Fungai’s evidence is centred on her perception of the marriage relationship between accused and the now deceased who married in 2001. According to Fungai, initially the marriage relationship between the accused and the now deceased was a happy one. Fungai said she was very close to the now deceased who appraised her of whatever problems she faced in her marriage. Fungai said it was only in 2012 when the now deceased told her that she wanted to divorce the accused who was physically abusing her and that accused wanted to marry another wife. She said in 2013 the now deceased also complained of physical abuse by accused’s relatives and went to Fungai in Harare. Fungai said accused had given her a divorce token but she still returned after accused called her. Fungai said deceased was employed at Driefontein Mission but accused caused her to leave employment. She was not aware of the now deceased’s ill health and was shocked to learn of her death. Upon attending the funeral, she learnt that the now deceased on the very day she died was well as she did all her household chores.

It was apparent from Fungai’s evidence that what aroused her and other deceased’s relatives’ suspicion were a number of factors. Firstly, the history of physical abuse the now deceased reported to her. Secondly, the sudden nature of the now deceased’s death without any evidence of prior hospitalisation. Thirdly, accused’s conduct by failing to timeously advise them of the now deceased’s death, his uncandid allegation that the now deceased had hospital cards and accused’s lack of desire for a post mortem examination. This caused deceased’s family members to demand a full post mortem examination which according to Fungai confirmed her fears that there was foul play in deceased’s death.

It is clear from Fungai’s evidence that contrary to Anatoria and George the now deceased’s marriage was not a blissful one. Further Fungai seems to suggest, contrary to Dr Zimbwa’s evidence, that the now deceased’s neck was swollen. She confirmed that it took 3 weeks for the deceased to be buried as her parents demanded outstanding lobola. In fact, Fungai said she was unaware of Dr Zimbwa’s post mortem report contrary to Dr Zimbwa’s evidence.

Be that as it may Fungai is unable to tell the cause of the now deceased’s death other than her suspicions.

Cst Huggins Chimwamafuku (Cst Huggins)

The bulk of Cst Huggins relates to the role of the police after a stand-off between accused and the now deceased’s relatives. He confirmed that the now deceased’s relatives on 9 September 2014 approached him alleging the now deceased had been murdered and a full post mortem be done as they had seen that the now deceased was bleeding from the nose and that the neck was swollen. This caused him and other details to go to the mortuary to see the body which was not in the cold room as the mortuary was full.

Cst Thomas Nyamuronda (Cst Nyamuronda)

The evidence of Cst Nyamuronda is similar to Cst Huggins as he too attended to this matter on 9 September 2014 after the now deceased’s relatives suspected foul play. He attended to deceased’s relatives on 9th and 10th September 2014 before the body was taken to United Bulawayo Hospital in Bulawayo. On 10 September 2014 the now deceased’s body had now been put in a cold room. Photographs were also taken after removing the now deceased’s clothes.

Sgt Mark Nyamande (Sgt Nyamande)

Sgt Nyamande is the detail who accompanied the now deceased’s body to United Bulawayo Hospital in Bulawayo with accused and deceased’s relatives.

Dr Sanganai Pesanai (Dr Pesanai)

Dr Pesanai carried out a full post mortem examination on 11 September 2014 at United Bulawayo Hospital in Bulawayo and compiled a report.

According to Dr Pesanai the now deceased’s body was in a state of decomposition. The material observations he made upon opening the body was that the now deceased fractured the left hyoid and crycoid bones. He said for histology purposes he took specimen of the crycoid and hyoid bone, liver, lung, brain, kidney and heart. Unfortunately, the histology results were never made available to him as they got lost. He explained that there are serious challenges the government is facing in availing such results as there are no chemicals to examine such specimen which end up piling and getting lost.

Dr Pesanai said clinically he assessed the cause of death as asphyxia due to strangulation in a case of homicide. This was based on the broken crycoid and hyoid bones. Dr Pesanai said his preliminary findings had to be confirmed through the histology results which however are unavailable. He made it clear that without the histology results he is unable to say what exactly caused the now deceased’s death. This is so because he could not tell if the crycoid and hyoid bones were fractured before or after the now deceased’s death. Further, Dr Pesanai said besides strangulation the crycoid and hyoid bones can be broken as a result of how a deceased’s body is handled or if it falls. This happens in 10% to 20% of cases. It is for this reason that the histology results were critical in this case for a conclusive cause of death to be established.

In conclusion, Dr Pesanai said his initial findings were compromised or impeded by two factors which are; that the deceased’s body was in a state of decomposition hence he could not see or examine all relevant parts of the body and secondly the missing specimen or histology results which could have been conclusive in a material way. At the end of the day Dr Pesanai said as things stood he was unable to tell the cause of the now deceased’s death and that it cannot be said without doubt that the crycoid and hyoid bones were fractured as a result of strangulation as per his preliminary observation.

The Law

In terms of s 198(3) of the Criminal Procedure and Evidence Act [Cap 9:07] if at the close of the case of the prosecution the court considers that there is no evidence that the accused committed the offence charged or any other permissible verdict it shall return a verdict of not guilty.

The import of s 198(3) of the Criminal Procedure and Evidence Act [Cap 9:07] has been enunciated in a number of decided cases and in broad terms a trial court is enjoined to discharge an accused person at the close of the prosecution case under the following circumstances;

where there is no evidence to prove the essential element(s) of the offence. See Attorney General v Bvuma |& Another 1998 (2) ZLR 96 (S)

where there is no evidence on which a reasonable court acting carefully might properly convict. See Attorney General v Mzizi 1991 (2) ZLR 321 (S)

where the evidence led by the state is manifestly unreliable that no reasonable court could safely act on it. See Attorney General v Tarwirei 1997 (1) ZLR 575 (S)

In this case the charge of murder is based on the allegation that the accused strangled his wife the now deceased to death. This allegation is primarily informed by the findings by Dr Pesanai as there was no eye witness to the alleged act of strangulation.

The state case is solely based on circumstantial evidence. The locus classicus is the case of R v Blom 1939 AD 188 which outlines two principles which are;

the inference sought to be drawn must be consistent with all proved facts. If not such an inference cannot be drawn

the proved facts should be such that they exclude every reasonable inference from them save for the one sought to be drawn. If they do not exclude other reasonable inferences, then there must be a doubt whether the inference sought to be drawn is correct. See Cephas Govere & Merenzia Govere v The State SC 30/03 at page 3 of the cyclostyled judgment.

In casu the state has to prove both the actus reus (physical strangulation) and the mens rea (the intent to kill). Now the question is have these requirements at this stage been proved?

There is no person who saw the accused strangling his wife the now deceased. The proved facts are that on the day in question the now deceased was in fairly good health performing her household chores. The accused came and found her in that state. The now deceased’s health deteriorated to the fatal stage after accused’s arrival. It was only the accused who was with the now deceased in their bedroom. All other persons were called when the now deceased could no longer talk and was having serious breathing problems. The now deceased died moments later. These are the proved facts. Now what inference is being sought to be drawn from these facts? It is that the accused is the one who caused the now deceased’s health problems by strangling her to death. Is this consistent with all proved facts? The answer is clearly in the negative.

There is no evidence to show that the accused indeed strangled the now deceased. The problem with the state case is the cause of the now deceased’s death. Put simply what caused her death? Was it strangulation or some other cause?

Dr Pesanai was clear that without specimen results or histology results he is unable to state the cause of the now deceased’s death. In other words, it cannot be said that the state has shown that the cryloid and hyoid bones were fractured as a result of the accused’s conduct. Medically it has not been proved at this stage that these bones were fractured before or after the now deceased’s death. The inference sought to be drawn is not consistent with the proven facts, which is medical evidence. An essential element of the offence, which is the physical act of strangulation (actus reus) has not been proved.

In the absence of an unequivocal or clear cause of the now deceased’s death one cannot say the state has placed evidence upon which this court acting carefully might properly convict the accused of murder. Even if this court was to disregard the clearly conflicting findings by Dr Zimbwa and Dr Pesanai on the cause of death and place reliance on Dr Pesanai’s evidence can one say the crycoid and hyoid bones were fractured as a result of strangulation? Dr Pesanai could not exclude other possibilities (10 – 20%). This means that the fact that the now deceased’s crycoid and hyoid bones were fractured does not exclude every other reasonable inference like that this could have happened well after the now deceased’s death and/or in the manner the now deceased’s body was handled. The inference that these bones were fractured as a result of strangulation is not the only one to be drawn. In my view whether the accused and the now deceased’s marriage was a happy or troubled one becomes irrelevant if the cause of the now deceased’s death is unclear or unknown. It would be foolhardy on the evidence before the court to find that it is the accused who fractured the now deceased’s crycoid and hyoid bones. An expert witness called by the state, Dr Pesanai, was unable to say so.

The state in our view has not proved a prima facie case. The evidence led by the state on the now deceased’s cause of death is manifestly unreliable that no reasonable court can comfortably act on it. Without the cause of death one cannot seriously argue that the state has made a prima facie case. In the circumstances what purpose would it save to ask the accused to give his evidence other than to hope that he may nail himself in the process. Even to have such a hope is totally fallacious in the absence of a clearly proved cause of death.

This matter clearly hinges on Dr Pesanai’s evidence. The evidence of the other state witnesses is largely irrelevant.

It is therefore our finding that at this stage there is no evidence that the accused committed the offence of murder or any other permissible verdict thereof. As a result, we are enjoined to discharge the accused.

In the result, the accused is found not guilty and acquitted.

Verdict

The accused is discharge at the close of the prosecution case in terms of s 198(3) of the Criminal Procedure and Evidence Act [Cap 9:07] – not guilty and acquitted.

National Prosecuting Authority, counsel for the state

Ndlovu & Hwacha, counsel for the accused.