Court name
Supreme Court of Zimbabwe
Case number
SC 25 of 2003
Crim. Appeal 269 of 2001

S v Magodo (69/01) (SC 25 of 2003, Crim. Appeal 269 of 2001) [2004] ZWSC 25 (26 July 2004);

Law report citations
Media neutral citation
[2004] ZWSC 25



6


SC
25/03


















Judgment
No. SC 25/03


Crim.
Appeal No. 269/01








HERBERT
MAGODO v THE STATE








SUPREME
COURT OF ZIMBABWE


CHEDA
JA, MALABA JA & CHIWESHE AJA


BULAWAYO,
JULY 28, 2003 & JULY 27, 2004








P
Dube
,
for the appellant





M
Cheda
,
for the respondent





CHEDA JA:
The appellant was convicted of murder with actual intent. The trial
court found that there were no extenuating circumstances
and imposed
the death sentence. The appellant has now appealed against both
conviction and sentence.





The
case against the appellant was that he lived as husband and wife with
the deceased for about two months. The deceased had
come to him
because she was pregnant.





The
appellant returned from work one evening and the deceased complained
that she had not eaten anything as there was no money in
the house.
When she did not accept his explanation that he would be paid at the
end of the month, the appellant says he then brought
into the
argument the issue of one Mwale whom, he said, had told him that he,
Mwale, had made the deceased pregnant and that the
appellant had
taken Mwale’s wife. The appellant then told the deceased that he
no longer loved her and she should go and stay
with Mwale. This is
the appellant’s version of the events.





However,
this argument ended and the parties retired to bed, with the
appellant sleeping on a reed mat on the floor and the deceased
sleeping on the bed.





In
the early hours of the morning one Munkuli, a close neighbour, heard
the deceased screaming and saying: “Herbert, my husband,
what is
this you are doing to me? But I am not dead yet, I will survive”.
Munkuli went outside and noticed that there was some
fire in the
room. He went to assist and saw the appellant with a bowl of water
and a cup which he was using to put out the fire.
He called out to
neighbours. The deceased’s underclothes or underwear was burning
and after putting out the fire he noticed
that she was completely
naked and her hair had been burnt.






Munkuli left to call an ambulance
and alert the police, leaving the appellant at the scene. On
returning he found the deceased lying
on the mattress but the
appellant was no longer there. The deceased was taken to hospital
where she later died.






Ms Dube,
for the appellant, argued that the appellant was convicted on what
was essentially hearsay evidence regarding the commission of
the
physical act, and the evidence led did not exclude beyond a
reasonable doubt the possibility of reconstruction of the events
by
the deceased. She said it was an error for the court to convict the
appellant mainly on the basis of his failure to immediately
rebut the
deceased’s claims that he had burnt her. She submitted on
sentence that the fact that there had been an argument with
the
deceased about the absence of money in the house and the fact that
the appellant was not responsible for the deceased’s pregnancy
ought to have been found to be extenuating factors.






The
appellant made a warned and cautioned statement which was confirmed.
In that statement, which I quote in full, he said:






“I,
HERBERT MAGODO, do not admit the charge of killing
Patience Muhohanana. It was on the 23
rd April
1999 when I arrived in the evening at 9.00 pm. I saw my wife
Patience seated and was knitting well. I greeted
her well and she
began to talk to me, saying she was hungry, she did not eat anything.
She asked if I had brought some money and
I said I did not have
money.






I
removed my shoes and I slept. I then saw my wife in flames. I
opened the door to take some water to extinguish the fire. I
did
not set Patience Muhohanana on fire with some paraffin.”





As can be seen
from the statement, he made no mention of an argument concerning the
pregnancy and Mwale.





In
his defence outline the appellant said that he got home in the
evening and he quarreled with the deceased over money and he told
her
he did not want her to live with him anymore. He then went to sleep
on the floor. When he fell asleep the deceased was seated
on the
bed crying.





The
appellant was woken up later that night by the screams of the
deceased and saw that she was on fire. He got some water to
put out
the fire while calling for help. He then decided to go and tell his
brother. When he found the gate locked, he climbed
over the fence
and hit his head hard on the ground. He felt dizzy and confused and
does not recall what he did until he arrived
at his brother’s house
at 6 o’clock in the morning. He denied pouring paraffin on
the deceased and setting her on fire.
He said she lied when she
said he did that.





The
main evidence of the State came from Million Munkuli. The most
important part of his evidence is that he heard the deceased
screaming and accusing the appellant of pouring paraffin on her and
setting her on fire. This specific accusation against the appellant
is confirmed by the appellant himself. However, the appellant
merely absorbed this accusation without disputing or reacting to
indicate that he disputed what the deceased was saying. Munkuli’s
evidence is that the deceased repeated the accusation several
times.
The appellant admits that fact but could not give any proper
explanation for his failure to dispute what she said.





Munkuli
left the deceased with the appellant. On returning he found that
the appellant had left her and disappeared from the scene.





The
deceased made the same accusation to the doctor that it was her
husband who doused her with paraffin and set her alight.






Since the
accusation was made against the appellant in his presence and he too
confirms that the deceased made that accusation against
him, that
evidence is no longer hearsay as Ms 
Dube,
for the appellant, submitted. The appellant heard the deceased
accusing him in the presence of the witness. He did not deny
it.
He did not even attempt to tell the witness or any of the other
persons whom came there that she was not being truthful when
he had
an opportunity to do so in her presence. He only sought to allege
that she was lying when she was no longer there.






It is common cause that some
paraffin was poured over the deceased and she was then set alight.
The big question is – who set
her alight? She gave an explanation
which was neither challenged nor denied. She was consistent in her
accusation. It would
have been different if she had told her story
to Munkuli or to the doctor only and in the absence of the appellant.
However, when
she was first heard screaming and accusing the
appellant, the two of them were alone in their house. She repeated
the accusation
when the witness had arrived. She repeated the same
accusation at the hospital.






Ms Dube
submitted that the State had no evidence to prove that the appellant
doused the deceased with paraffin and set her alight and that
the
State did not have any eye-witness to the act. The appellant
accepted that they were the only two people in the house. The
deceased later told people who had set her alight. The appellant
suggests that the deceased set herself alight. There is no reason
why should would set herself alight and then accuse the appellant of
doing so.






The
story by the appellant about Mwale is not referred to in his
statement or defence outline. If it was the main issue that led
to
all this, the appellant would have mentioned it in both instances or
at least in one of them.






Ms Dube
submitted that the evidence of Munkuli on what the deceased was heard
to say should not have been admitted because it is hearsay.
I do
not agree. That evidence is no different from the evidence given in
R
v Taylor

1961 (3) SA 616 (N) where, on a charge of culpable homicide, evidence
that occupants of nearby rooms heard sounds of a scuffle and
thuds in
the room occupied by the owner and the deceased, during which the
deceased cried out: “John, please don’t hit me anymore.
You
will kill me”, was admitted as part of the
res
gestae
.






Looking
at the totality of the evidence, the fact that the deceased was heard
screaming and at the same time accusing the appellant
of dousing her
with paraffin then setting her alight while they were the only ones
in the room, and that the appellant never disputed
the accusation,
that he made no comment or denial even when this was repeated in the
presence of Munkuli, and his subsequent disappearance
from the scene
for a long time, his conduct is clearly consistent with guilt.






Accordingly,
the court
a quo
was correct in convicting him of the crime charged.






On
sentence, the court found that there were no extenuating
circumstances. The court did not accept that the appellant had
changed
his mind after committing the offence because if he had, he
would have rendered assistance to the deceased and called for help.

The fire was only put out when Munkuli came in. The court found
that instead the appellant chose to disappear and leave her in
that
helpless state.





On
the issue of quarreling over some money, the court found that it was
an ordinary quarrel that ended and that the appellant himself
says
they went to sleep. He did not act on the spur of the moment. It
seems the appellant waited until the deceased slept, then
set her on
fire at about 3 am.





The
court also rejected the issue of Mwale as an afterthought because it
was never mentioned in the warned and cautioned statement
or the
defence outline.





I
see no fault in the conclusion reached by the trial court as it is
based on the facts of the case and the evidence led.





There
is no merit in the appeal and it is dismissed.














MALABA
JA: I agree.














CHIWESHE
AJA: I agree.














Pro
deo