IN THE SUPREME COURT OF ZIMBABWE
GWAUNZA JA, GARWE JA & GUVAVA JA
BULAWAYO, JULY 28, 2014 & JULY 30, 2014
R Dzete, for the Appellant
N Ngwenya, for the Respondent
GARWE JA: This is an appeal against conviction, firstly, on a charge of rape and, secondly, murder and the sentence of fifteen (15) years imprisonment and death respectively, imposed by the High Court at Hwange on 9 November 2011.
The facts that are common cause are as follows. The deceased was thirty five (35) years old at the time of her death and was residing at her sister’s plot at Number 8, Mariposa, Insuza, in Matebeleland North. On 23 January 2008 the deceased was waiting for transport to take her to Bulawayo at a bus stop at the 67km peg along the Bulawayo – Victoria Falls Road. She had in her possession a twenty litre (20) container of milk and a bag containing some money. The appellant came cycling along the road. The appellant thereafter strangled the deceased with a rope in a bush a short distance away from the bus stop. The appellant then took the bag containing approximately twelve (12) million dollars Zimbabwean currency. He was seen emerging from the bush by one Priscilla Mpofu. He thereafter took his cycle which was leaning against a tree and cycled along the Bulawayo Road. Using the description given by Priscilla Mpofu the police made a follow up. The appellant was apprehended by members of the public and turned over to the police.
A post-mortem examination conducted at Mpilo Hospital the following day revealed the following injuries: various scratch marks and bruises on both feet and ankles; multiple abrasions and bruises around the knees and upper front of both thighs. The examination further revealed a 4 x 3cm wound just below the right armpit and small wounds and scratches on the hands, wrists and shoulder. The vaginal opening was found bruised on the right and back of the vaginal orifice. There were also five (5) small abrasive wounds on the vaginal canal on the right side and on the back; a slippery semen-like fluid mixed with blood was also detected. The doctor found that the cause of death was asphyxia and brain haemorrhage due to ligature strangulation. He remarked that this was a callous rape and murder. In the doctor’s opinion, the deceased died a very painful death.
In his defence before the court a quo, the appellant stated that the deceased was his girlfriend and that on the day in question he came across the deceased as she was in the act of having sexual intercourse with another man, whose vehicle had been parked at the bus stop. The man had then run away. Owing to a misunderstanding that arose thereafter, he then took a rope with which he used to strangle the deceased. Whilst admitting that he strangled the deceased he denied that it was his intention to kill her. He also told the court that the statement he made to the police had been induced by assault and torture and that it had not been made freely and voluntarily. Whilst admitting killing the deceased, he denied raping her.
In a confirmed warned and cautioned statement, the appellant admitted that he came across the deceased at a bus stop and demanded money from her. He admitted choking her with a piece of rope before raping her and murdering her. In the statement he also admitted that the deceased, on hearing voices, tried to scream. He had then tightened the rope around her neck so that she would not scream. He realised she was dead after which he removed her bag containing the money. He had then walked back to the bus stop where he met the witness Priscilla Mpofu. He had then cycled away but was apprehended by the crew of a commuter omnibus and handed over to the police.
In view of the fact that the appellant was alleging that the warned and cautioned statement had been induced by assault, the court a quo conducted a trial within a trial. After hearing evidence, the court a quo came to the conclusion that the statement had been given freely and voluntarily and that no undue influences had been brought to bear.