State v Amos Gwinyai

### Preamble
1
CRB 13/21
HMT 45/21
---------


STATE

versus

AMOS GWINYAI

HIGH COURT OF ZIMBABWE

MUZENDA J

MUTARE, 9 and 22 June 2021

Criminal Trial

ASSESORS:	1. Mrs Mawoneke

2. Mr Magorokosho

M Musarurwa, for the State

L Mhungu, for the accused

MUZENDA J: Accused, Amos Gwinyai assaulted Nyasha Mudzimu, his wife using booted feet and fists several times on the head and body and on 6 April 2020 she died and the pathologist Dr Dominic Nkulu concluded that the cause of death was due to head injury. Accused was charged of Murder as defined in s 47(1)(a) or (b) of the Criminal Law (Codification and Reform) Act, [Chapter 9:23].

Accused pleaded not guilty to the charge of murder but guilty to a lesser charge of Culpable Homicide in terms of s 49 of the Code. In his defence outline accused stated that on the day in question he had partaken opaque beer and had a misunderstanding with the now deceased over some cellphone text messages he detected on deceased’s cellphone. Deceased tried to explain to the accused but the latter could not accept the explanation and out of rage slapped deceased on the face. Deceased stood up and shoved accused away from her shouting that accused was hurting her. Neighbours discerned the noise and screams coming from the couple’s bedroom. The neighbours went to the bedroom and restrained the accused. Later deceased bolted out of the bedroom and ran away. She fell on her back, accused followed her and kicked her 4 times around the ribcage, slapped her across the cheeks 3 times and was again restrained by the neighbours. He denies formulating an intention to kill deceased nor did he realise that his actions might lead to the wife’s death. He said he had visited deceased out of love and to him the fatal injury was caused by the fall on the ground. What he admits is that he was negligent in the manner he conducted himself after she had fallen.

In order to prove its case the state produced the following exhibits:

Exhibit 1 is the post-mortem report which showed the following.

Deceased was  being managed for severe, head injury from 7 March 2020 to 6 April 2020

CT scan on the brain showed intra-cerebral haemorrhage due to oedema.

Head swelling and body bruises.

Cause of death was due to head injury.

Exhibit 2  was the confirmed warned and cautioned statement and accused stated the following:

“We fought and I overpowered her. We started when we were inside the bedroom and she tried to run away. That is when I followed her outside. Then she fell down and I hit her with open hands and kicked her with booted feet. The neighbours then came and restrained us. I never used any weapon against her. I never intended to kill her. It was just a mistake and did not intend to reach that extend”

By consent of the defence the following witnesses’ evidence was admitted as not being in dispute in terms of s 314 of the Criminal Procedure and Evidence Act:

Elijah Kudakwashe Munengerwa. Both accused and deceased are known to him, he shared the same house with the couple. On 6 March 2020 accused arrived at the shared apartment around 1900 hours. An hour later he heard sounds of falling utensils emanating from the couple’s bedroom. He and Jealous Chiriya approached the couple, took accused outside the house for counselling and accused appeared to have cooled down. Later the witness heard sounds of a breaking window pane. The witness reacted by going outside the house where he saw accused kicking and stamping on deceased’s body. 	He again restrained the accused.

Jealous Chiriya’s evidence is similar to that of Munengerwa. Deceased was his workmate and knows the accused. Whilst in the company of Elijah Munengerwa, he found the couple locked in their bedroom whilst other neighbours were knocking at their door. He left the scene but immediately thereafter heard people shouting urging accused to stop what he was doing. He later saw deceased lying down whilst accused was hitting her with hands and kicking her with booted feet. He too restrained the accused. Deceased was assisted by fellow women to stand up.  Deceased became dizzy and fell unconscious froth came from her mouth and nose and she had convulsions.

Courage Chauke’s evidence is to the following effect. On 6 March 2020 she heard a misunderstanding coming from the couple’s bedroom. Deceased was crying that accused was hurting her. Accused opened the door and whilst in the passage accused struck deceased with a fist on the face. Accused broke a window after finding the door locked. Deceased unlocked the door and tried to escape whilst accused was in hot pursuit. Deceased fell down and accused kicked her with booted feet all over the body as she lay down. Accused was then restrained. The witness lifted deceased and hid her at the back garden. She realised that deceased had become unconscious and has froth coming from the mouth and nose.

Dr Innocent Zano works at Mutambara Mission Hospital. He attended to deceased on 6 March 2020 and upon examining deceased, she was unconscious and had bruises on the head.

Stephen Mwarira works at Mutambara Mission Hospital in the Intensive Care Unit. He is based at Mutare Provincial Hospital. On 7 March 2020 he was on duty when deceased was brought to the Intensive Care Unit. Deceased was not feeding, and had reduced level of consciousness.

The state went to call Nyasha Kashiri. She was employed by Courage Chauke as a maid. She knows both accused and deceased. On 6 Mach 2020 she alerted Courage Chauke about the misunderstanding taking place in the couple’s bedroom. She saw accused attacking deceased with fists in the passage way. She restrained accused by embracing him. She saw accused damaging the window and throwing stones into the bedroom where deceased was. Deceased fled from the bedroom trying to escape. Accused caught up with her, kicked her with booted feet all over the body as she was lying down. She lifted the deceased with the assistance of other women and hid her at the back of the garden. Deceased became unconscious and was frothing from the mouth and nose. The witness told the court that she heard accused talking to the deceased that deceased would go back to her parents in Bulawayo dead and that he was going to kill her. Accused used maximum force of an angry man and disputed that accused used moderate force.

The state then closed its case and accused gave evidence. He adhered to his defence outline. In addition he told the court that the nature of the text messages convinced him that deceased was cheating on him and that factor enraged him. He repeated that he assaulted her several times but denied hitting deceased on the head. He believes that deceased’s head was injured when she fell. He added that where deceased fell were bricks and stones. He denied breaking the window pane but used a fist which caused the pane to crack. When the deceased unlocked the door accused thought that she was running away so he chased her. He was disturbed by the death of his wife and reiterated that he did not intend to cause her death, and he shed tears during his evidence in chief.

As apparent from both sides’, evidence, most facts are common cause. According to the state, accused had a misunderstanding with deceased. Accused on his admissions is the one who started to assault deceased whilst the two were in the bedroom. Neighbours heard the noise and contemporaneously heard deceased telling accused that he was hurting her. However accused disputes state witness’ evidence to the effect that deceased would return to her parents dead. It is also not in dispute that accused broke a window pane though accused denies throwing stones into the bedroom where deceased had locked herself. Deceased fled from the bedroom to escape from the wrath of deceased. Accused pursed her. Deceased fell ad accused went on to assault her and stamping her upper part of the body, kicking her and stapped on the face. It is further not in dispute that accused was restrained by bystanders on more than one occasion and advised not to further assault deceased. It is also common cause that deceased fell unconscious, frothed from mouth and nose and experienced problems in breathing immediately after the assault. She never recovered till her death a month later on 6 April 2020. Once admitted in the intensive care unit she did not leave the intensive care unit.

The question for decision by this court as agreed by the parties is whether accused should be found guilty of murder or culpable homicide? This question is best answered by looking at the circumstances of what transpired on 6 March 2020. There are some aspects of defence that need to be examined and analysed by this court. In accused’s confirmed warned statement, Exh.2 accused spoke of a fight between him and deceased in which he emerged a victor after having overpowered deceased. He indicated that deceased tried to run away from him. He does not mention the issue of offensive text messages he chanced upon in deceased’s cellphone. He does not mention that the possible cause of death was her falling on a ground where there were bricks and stones. During his evidence in chief and cross-examination by the state he could not explain why he omitted all these very fundamental and crucial aspects in his cautioned statement if they cannot be qualified as an afterthought in his defence outline he omits to mention the presence of bricks and stones on the place where deceased fell. Had these aspects been included in his extra curial statement and defence outline possibly the court would have had a different purview of accused’s defence. In any case whichever way one could look at the facts accused’s action and conduct led deceased to run away from the house and ploughed into darkness with accused in hot pursued. Whether deceased fell on her own or was tripped by the accused is to us of no moment. Accused did not impress us as an honest witness. He did not confide with court. He deliberately concealed some of the material aspects that could have assisted him to advance his defence. He did not produce the offensive text messages, he did not give a clue of the identity of the alleged paramour whom he suspected to be having an affair with his wife. All remains speculation. Such information would have assisted the court to access its depth to justify and shed light on the outrage of accused towards deceased. We are not convinced by the accused’s version that he discovered text messages on deceased’s cellphone. If he did he should have kept the phone as evidence, he did not. The provocation, to be sustained as a defence should be such as could reasonably be regarded as sufficient ground for the loss of self-control that would lead the accused to act against the victim and the provocation actually caused the accused to lose his or her self-control. It is important that before a court can weigh provocation as a defence it must be informed of the exact nature thereof and in this case the actual words used. Such words would have been the extract or print out of the text messages. In the absence of such text messages the court is left to conjecture.

On the aspect of falling of deceased, it is probable that deceased could have fallen and injured herself, but it is inherently improbable that a young healthy woman will cause herself such a fatal injury simply from falling to the ground. In any case accused purposely pursued deceased with the intention of perpetrating further assaults. Had deceased sustained serious injury by falling, accused could not have embarked on assaulting her on the upper part of her body. To us it is far more probable that the injury on the head which caused deceased’s death was caused by the stamping and kicking of accused. Accused also punched deceased on the head using a fist. Its not clear from accused how he assaulted deceased before the neighbours came. Deceased became unconscious, experienced palpitations, frothed from both mouth and nose and could not walk on her own, to us the assault was so severe that it had an instant effect and impact on deceased’s health. Accused was restrained on more than one occasion by neighbours but went on to assault deceased, the assault was protracted and aimed at fairly delicate parts of the body, the head and chest. Accused ought to have realised that there was a real risk or possibility that his conduct might cause death but nonetheless continued to engage in that conduct despite the risk or possibility resulting in injuries from which the wife died. Deceased succumbed to the injuries on the very spot and could not be revived by medication. We are satisfied that the state has managed to prove its case beyond reasonable doubt on the aspect of constructive intent.

Accordingly accused is found guilty of Murder with constructive intent in terms of section 47 (i)(b) of the Criminal Law (Codification and Reform) Act.[Chapter 9:23].

Verdict: Guilty.

Sentence

In arriving at an appropriate sentence the court will take into account what has been submitted on your behalf in mitigation as well as the aggravatory factors.

Deceased was your wife and there is a child. You are a first offender, and had consumed alcohol on the day in question. You were angry with your wife and that combined with drunkenness. These factors will be considered on sentence. The fact that you pleaded guilty to culpable homicide, shows remorse and contrition, you seem to regret your action on the day in question which led to the death of your wife and the psychological effects of the death of your wife will hang over you for the rest of your life.

On the other hand, right to life is constitutionally protected, you prematurely caused the death of your wife at a young age. The offence was committed in a domestic violence scenario which is very serious. Legislation realising the rampant increase of domestic violence went on to pass law in a bid to control and eradicate incidences of domestic violence. Couples more often, women are subjected to abuse, rape, financial and psychological mistreatment leading some to commit suicide or murder, and as in this case resulting in them being fatally and brutally assaulted. These courts should pass sentences that send a correct message to would be offenders that its high time women should be protected from archaic practices of so called disciplining a wife. If you suspect infidelity prove it and divorce the wife than butchering her. A wife is not a punch box, she married to get love, comfort and companionship from the spouse. In this case deceased was assaulted in front of her workmates and maids at a mission school and was totally humiliated by the conduct of the accused. Accused could not heed to restraint from neighbours. A custodial sentence is befitting in this matter.

Accordingly you are sentenced as follows:

10 years imprisonment.

National Prosecuting Authority, for the state

Mhungu and Associates, for the accused.