The State v Admire Maovere and Windas Munzweru

### Preamble
1
HMA 47-18
CRB 6 – 7/18
---------


THE STATE

Versus

ADMIRE MAOVERE

And

WINDAS MUNZWERU

HIGH COURT OF ZIMBABWE

MAWADZE J,

MASVINGO, 4,5, 29 June , 3, 20 July & 5 October, 2018

Assessors

Mr S. Mutomba

Mr J. Mushuku

Criminal Trial

T. Chikwati for the state

T. Chipangura for accused 1

Ms D. Masiya for accused 2

MAWADZE J:	Both accused persons are facing a charge of murder as defined in s 47(1) of the Criminal Law (Codification and Reform) Act, [Cap 9:23]. The charge is that on 19 May 2017 at about 7 km peg along the Roy – Gutu road in Masvingo each or both of the accused in the company of one Nyasha Sango who is at large caused the death of Phio Jeketera by stabbing him with an okapi knife in the course of a robbery.

Accused 1 Admire Maovere (Admire) then aged 28 years is from Maovere Village, Chief Ndanga, Zaka, Masvingo and at the material time was residing in Hillside, Masvingo.

Accused 2 Windas Munzweru (Windas) then aged 26 years is from Nematombo Village, Chief Chidyamatamba, Karoi. At the material time he was residing with accused 1 Admire in Hillside, Masvingo as they are friends.

The now deceased Phio Jeketera was a captain in the Zimbabwe National Army based in Harare and his rural home was in Takavada Village, Chief Nhema, Zaka in Masvingo. He was aged 51 years old at the time of his death. On the fateful day he was driving his Nissan Vannette truck from Harare to his rural home in Zaka via Chivhu – Gutu – Roy road.

The state case is that on 19 May 2017 both accused persons together with Nyasha Sango who is at large connived and planned to rob motorists along the Roy – Gutu road by pretending to be hiking passengers. In executing this plan they travelled from Masvingo to the Roy – Gutu turn off after which they travelled to Gutu. Around 2300 hrs they were offered a lift by the unsuspecting now deceased in his motor vehicle as his was travelling to his rural home in Zaka. It is alleged that upon arrival at the 7km peg from Roy – Gutu road towards the Masvingo – Mutare highway the accused persons who had indicated that they were travelling from Gutu to Masvingo asked to be dropped as a way of putting into motion their nefarious plan. The now deceased then stopped his motor vehicle to drop the accused persons.

It is the state case that in executing their plan Nyasha Sango produced a knife demanding money from the now deceased threatening to stab me. The now deceased resisted. A scuffle ensued forcing both accused 1 Admire and accused 2 Windas to join in. The now deceased was overpowered. The state alleges the now deceased was dragged out of his motor vehicle to the side of the road after he had been pepper sprayed by the accused persons as a means to overcome him. The now deceased was then stabbed several times all over his body with knives. Thereafter he was robbed of his cellphone and $540.

The state alleges that after killing the now deceased the accused person loaded his body in the loading box of his Nissan Vannete lorry and one of the accused persons drove the said motor vehicle to Masvingo where they abandoned the motor vehicle with the deceased’s body in the loading box at the 1.4 km peg along Masvingo – Beit Bridge road near Craft Centre. The now deceased’s motor vehicle and body were discovered by police details manning a road block at the Craft Centre at about 0700 hrs on 20 May 2017.  Police recovered among other things in that motor vehicle an empty pepper spray, an okapi knife and one shoe of the now deceased. The other shoe had dropped off at Roy-Gutu road where the now deceased had been killed. A post mortem done showed that the now deceased had died of haemorrhage shock arising from the multiple stab wounds.

It is the state case that the accused persons were arrested after the recovery of the now deceased’s cell phone which accused 1 Admire and Nyasha Sango had sold to Emmanuel Masakadza in Masvingo. Accused 1 Admire was the first to be arrested after allegedly a shoot-out with the police in Masvingo and another okapi knife was allegedly recovered from him. Nyasha Sango managed to escape. Accused 2 Windas was then implicated by accused 1 Admire as accused 2 Windas was already serving in Buffalo Range Prison in Chiredzi for other different robbery offences after he had been apprehended during one of an aborted robbery in Jerera, Zaka where accused 1 Admire together with Nyasha Sango escaped. Further, the state alleges that finger prints uplifted from the now deceased’s motor vehicle matched those of accused 1 Admire.

Both accused persons gave lengthy defence outlines in which they denied any involvement in the death of the now deceased in any manner. They both maintained this stance in their evidence in chief and under cross examination by the state counsel.  A summary of each of the accused’s evidence is as follows;

We shall first deal with accused 1 Admire.

Accused 1 Admire said one Nyasha Sango is his cousin and that they would briefly stay together at accused’s lodgings in Hillside Extension, Masvingo each time Nyasha Sango came from his base in the South Africa before proceeding to his rural home.

Accused 1 Admire said during the material time Nyasha Sango received a message that Nyasha Sango’s brother had been involved in a road traffic accident hence Nyasha Sango travelled to Masvingo from South Africa, and made a stopover at accused 1 Admire lodgings for a few days before proceeding to his rural home. Accused 1 Admire said upon his return from the rural home Nyasha Sango enroute to South Africa passed again through accused 1 Admire’s lodgings but had financial challenges. This prompted Nyasha Sango to sell his cellphone. Accused 1 Admire said he did not know that this cellphone belonged to the now deceased. Accused 1 Admire said he innocently left his personal particulars including his mobile number with the buyer of the cell phone as he assisted Nyasha Sango to sell the cell phone. Consequently, accused 1 Admire said when the police recovered the now deceased’s cell phone from the buyer they got accused 1 Admire’s particulars resulting in his arrest in June 2017.  Accused 1 Admire said he was shocked to be charged of killing the now deceased. Upon his arrest accused 1 Admire said the police harassed, intimidated and forced him to sign a warned and cautioned statement despite his well-founded protestations of innocence. In a bid to force him to confess to the said murder he said the police brutally and callously shot him on his right hand and left leg causing him to accede to their demands.  Further accused person said he had to play ball during the confirmation proceedings at the Magistrates Court as police threatened further harm if he scuttled those proceedings.   Accused 1 Admire said that the truth is that he never robbed and or killed the now deceased but that at one point he had used the now deceased’s cell phone which was in possession of Nyasha Sango before its disposal unaware as to how Nyasha Sango had acquired it.

When accused 1 Admire took the witness stand he gave an amplified version of how he was arrested by the police.  We however noted that this version was never raised in his defence outline or in the cross examination of the arresting police details.  We were left wondering why such crucial and material evidence remained stored in accused 1 Admire’s mind until he said minute when he testified.  The inference is that 	accused 1 Admire was simply creating evidence as this trial progressed.

In his evidence accused 1 Admire said police arrested him after lying and luring him saying his was only a witness in relation to how Nyasha Sango had sold the said now deceased’s cell phone.  At that time accused 1 Admire said he could not help the police as regards the whereabouts of Nyasha Sango.  He said this caused the police to assault him in order to reveal where Nyasha Sango was to together with an alleged third accomplice.  Due to pain accused 1 Admire said he lied that Nyasha Sango was at his girlfriend’s place in Hillside, Masvingo.  He said when police failed to locate Nyasha Sango they took accused 1 Admire to some water tanks up the hill in Hillside where he was ordered to lie down and severely assaulted with a button stick.  Accused 1 Admire said he was then shot in the arm and leg culminating in his capitulation and signing the warned and cautioned statement.

Under cross examination accused 1 Admire admitted that he used his sim card in now deceased’s stolen cell phone.  Accused 1 Admire was taken to task as to where police obtained crucial details contained in his confirmed warned and cautioned statement.  In response he said he would not know.  Accused 1 Admire denied that his finger prints were uplifted in the now deceased’s motor vehicle.  In fact, in his written closing address counsel for accused 1 Admire challenged the findings by the finger print expert.

Accused 1 Admire admitted that he indeed implicated accused 2 Windas in this matter but alleged that he did so as police had severely assaulted him.  Accused 1 	Admire could however not explain why he picked or chose to implicate accused 2 Windas of all people.

Accused 2 Windas’ evidence in denying this charge is an alibi to the effect that he was nowhere near the scene of crime on 19 May 2017.  He said he left Masvingo for Harare en route to his rural home in Karoi on 18 May 2017.  On 18 May 2018 he said he spent the night with his brother Gainmore Manzweru in Harare.  He however did not call this brother to confirm this.

Accused 2 Windas said on the date of the said offence on 19 May 2017 he in fact left Harare for Magunje, Karoi where he arrived at 16.00 hrs. He said he therefore could not have connived with accused 1 Admire or any other person to commit the murder at Roy -  Gutu road in Masvingo that day. Accused 2 Windas said he was shocked to be arrested in connection with the now deceased’s murder. In relation to his confirmed warned and cautioned statement he said he was tortured brutally by the police and forced to confess to the murder as police threatened to kill him. Due to fear accused 2 Windas said he wrote in his own handwriting confessing to the murder he never committed. Further he said he was threatened by police to ensure that this statement would be confirmed at the Magistrate Court and he complied.

In his evidence accused 2 Windas admitted that he was arrested in Zaka and that he pleaded guilty to some robbery cases committed along the Buffalo Range to Roy road. Accused 2 Windas said he was innocent as he was mistaken for some robbers in Zaka simply because he had taken some okapi knives for sale in Zaka from Harare. He said he was slapped with a 3-year jail term and sent to Buffalo Range prison. Thereafter he said he was transferred to Mutimurefu Prison in Masvingo where to his surprise CID details charged him with the offence of murder alleging that accused 1 Admire was his accomplice. Accused 2 Windas said nothing turns on his so called confirmed warned and cautioned statement because although he wrote it himself police had forced him to copy from a laptop after which he was threatened not to depart from it during confirmation proceedings.

During cross examination accused 2 Windas had problems in explaining why the forced confirmed warned and cautioned statement was partially exculpatory if police wanted to nail accused 2 Windas. Accused 2 Windas could also not explain why if police were keen to falsely incriminate him they did not plant finger prints uplifted from the now deceased’s motor vehicle. Accused 2 Windas admitted that accused 1 Admire was his close friend and that they at times stayed together at accused 1 Admire’s lodgings in Hillside Extension, Masvingo. It is also a fact that accused 2 Windas was arrested for robbery cases while in Zaka which is accused 2 Admire’s rural home area.

A total of 12 Exhibits were produced during the trial and we shall in brief deal with these exhibits to assess their probative value.

As per Exhibit 1 the post mortem report the cause of the now deceased’s death is not in issue. It I clear he was murdered. Dr Zimbwa who carried out the post mortem and complied the report on 21 May 2017 observed the following;

“(i)	Multiple scalp stab wounds (occipital) of ± 2 cm in length and reaching the

scalp in depth.

(ii)	2 cm right carotial (neck) artery stab wound

(iii)	2 superficial lacerations on left shoulder, human bite wound tip of left shoulder.

(iv)	2 deep stab wounds on right buttock ± 4cm deep and 2 cm wide.

(v)	Cause of death – haemorrhagic shock and multiple stab wounds.”

The nature of the injuries inflicted on the now deceased with a knife leads us to the intention of the assailants. Lethal weapon(s) like a knife or knives was or were used. It is pertinent to note that one of the possible fatal wounds was inflicted on the neck artery. Clearly the intention was to kill the now deceased. No other inference can be made as regards the intention of the assailants if they directed the blow into the now deceased’s neck with a knife. Further the now deceased lost a lot of blood and no help was offered to him at all but simply left to bleed to death.

Exhibit 2 is accused 1 Admire’s confirmed warned and cautioned statement and Exhibit 3 is accused 2 Windas’ confirmed warned and cautioned statement.

It is unfortunate that on many occasions counsel seems not to appreciate the difference between a confirmed extra curial statement and unconfirmed extra curial statement and the procedure to be adopted in dealing with such statements if for one reason or another an accused person intends to challenge either of such statement. Invariably counsel tend to believe that there is no procedural difference in how these statements are dealt with.

S 256(1) of the Criminal Procedure and Evidence Act [Cap 9:07] is pertinent. In fact, s 256(2) of the same Act provides as follows;

“(2)	A confession or statement confirmed in terms of subsection (3) of section one hundred and thirteen shall be received in evidence before any court upon its mere production by the prosecutor without further proof; ---------”

There is indeed a proviso to s 256(2) which deals with the probative value to be placed on such a statement if the accused alleges some impropriety as regards how it was obtained.  There are a plethora of cases which deal with such procedural issues. See S v Mbaya Raisi SC 23/10.

John Reid Rowland in Criminal Procedure in Zimbabwe 20 -11 explains this as follows;

“If, on the other hand, the accused does not dispute the validity of confirmation proceedings, but alleges statement is inadmissible, the onus is on him to prove that the statement was not made freely and voluntarily and without undue influence”.

Put differently, where an extra curial statement is confirmed and the accused does not put into issue the validity of those confirmation proceedings but still alleges some other impropriety in how such a statement was made albeit confirmed, such a statement can be produced by the prosecutor without holding a trial within a trial and the onus shifts on to the accused to show a balance of probability that it was not made freely and voluntarily and that there was undue influence.  This means that despite the fact that it is a confirmed statement and has been produced, the accused can still challenge the probative value to be placed on such a statement.

We now turn to the confirmed warned and cautioned statements in casu.

As per Exhibit 2 accused 1 Admire gave a lengthy detailed statement in which he said on the day in question he was in Gutu with accused 2 Windas and one Nyasha.  Contrary to allegations by the state that all the 3 of them were in Gutu for purposes of robbing motorists, Accused 1 Admire said they were in Gutu for purposes of seeing their girlfriends. This puts into doubt assertions by accused 1 Admire that it is the police who told him what to say.  If indeed the police were keen to nail accused 1 Admire they would have included what is alleged in the state case that the purpose of accused 1ꞌs visit to Gutu was to further his criminal enterprise rather than to see his girlfriend.

Accused 1 Admire in that statement suggests that when they boarded the now deceased’s motor vehicle in Gutu at about 2300 hours on 19 May 2017 they simply were returning to Masvingo not necessarily that it was for the purposes of committing any offence.  Again it is illogical that the police would force accused 1 to give such an exculpatory statement.

In that statement, accused 1 Admire said all the 3 of them sat in the cabin with the now deceased with Nyasha Sango being closest to the now deceased.  He said they lured the now deceased to stop before Masvingo – Mutare road near Roy on the false pretext that they wanted to drop off to see their aunt after which they pounced on the now deceased.  In that statement accused 1 Admire explained how the now deceased was attacked.

Accused 1 said Nyasha Sango is the one who pointed the knife at the now deceased demanding cash but the now deceased was unperturbed as he held Nyasha Sango’s hand.  Accused 1 Admire said it is accused 2 Windas who pepper sprayed the now deceased and that Nyasha Sango and accused 2 then pulled the now deceased out of the motor vehicle.  It is pertinent to note that up to this stage accused 1 Admire suggests that he played no role but implicates accused 2 Windas and Nyasha Sango.  The question which arises is whether the police would again force accused 1 Admire to give such information minimising his role or exonerating himself?

Accused 1 Admire said it is Nyasha Sango and accused 2 Windas who dragged the now deceased assaulting him.  Accused 1 Admire said his only role was to join in the assault of the now deceased not using any weapon but his clenched fists.  He said the now deceased cried out saying he had no money but Nyasha Sango muffled his cries resulting in the now deceased using his teeth to bite Nyasha. Crucially accused 1 Admire said it is Nyasha Sango who then stabbed the now deceased with a knife and that it is accused 2 Windas who searched the now deceased’s motor vehicle.  Further accused 1 Admire said it is Nyasha Sango who used a knife to cut the pocket of the now deceased and took some cash after which they put the now deceased’s body in the loading box of his vehicle.  Accused 1 Admire said it is Nyasha Sango who then drove the now deceased’s motor vehicle to Masvingo with the now deceased’s body in loading box and dumped it at Craft Centre before proceeding to accused 1’s residence in Hillside Extension, Masvingo.

It is this statement which accused 1 Admire said the police went at lengths to force him to make to the extent of callously and brutally shooting him.  We find this to be highly improbable and false for the simple reasons that;

it is accused 1 Admire who was first arrested hence the police would have gone in a long way to force him to incriminate himself. However, his statement simply minimises his role.

it is clear that from that statement accused 1 Admire played a pereferal role and that accused 2 Nyasha and Windas played the crucial roles.  Would it make sense for the police to force accused 1 Admire to delegate himself such a minimal role more so alluding that it is Nyasha Sango who was at large who inflicted the fatal wound.

the statement by accused 1 Admire clearly minimises his role to that of having simply assaulted the now deceased with fists.  To some extent it is exculpatory. Why would the police force accused 1 Admire to exonerate himself if they were keen to falsely incriminate him in the murder of the now deceased?  It is clear that accused 1 Admire made Nyasha Sango the team leader just like he now alleges that it is Nyasha Sango who had the now deceased’s cell phone.

In our view, accused 1 Admire has failed to show on a balance of probability that he was indeed forced to make the warned and cautioned statement by the police.  He failed to discharge the evidential onus thrust upon him.  In  that vein we have no cause not to accept that the statement was made freely and voluntarily without any undue influence.

We now turn to Exhibit 3 which is accused 2 Windas’ statement.

Contrary to accused 1’s statement, accused 2 Windas said the purpose of going to Gutu – Roy road was to rob unsuspecting motorists.  In furtherance of that plan he said they first boarded a haulage truck to Gutu but failed to execute the robbery as they realised after boarding that the haulage truck that they were outnumbered by the occupants in that haulage truck.  This forced them to travel to Gutu.  We note in passing why the police would fabricate such detail.

Accused 2 Windas said while in Gutu they flagged down motor vehicles unsuccessfully for 2 hours until the now deceased arrived.  He said the now deceased initially was unwilling to carry them as they were 3 of them but they begged him successfully.  In fact he said it is Nyasha Sango who only spoke to the now deceased.  They then boarded the vehicle and he said it is Nyasha Sango who lied to the now deceased that they wanted to disembark at an aunt’s place and were no longer proceeding to Masvingo thus forcing the now deceased to stop before the Masvingo – Mutare highway.

Accused 2 Windas said it is at that stage that they signalled each other to attack the now deceased.  He said Nyasha Sango produced a knife demanding cash and other valuables from the now deceased but the now deceased resisted wrestling with Nyasha Sango until both were out of the motor vehicle.  Contrary to accused 1’s version accused 2 Windas said it is accused 1 Admire who then stabbed the now deceased with a knife to cause the now deceased to release Nyasha.  At that stage accused 2 Windas said he was inside the motor vehicle trying to switch off the engine, to put off the lights and to close the doors as they were by the tarred road.   Accused Windas said thereafter he pepper sprayed the now deceased who was still fighting back and he realised the now deceased was losing strength due to excessive bleeding.  They proceeded to put the now deceased’s body in the loading box and that Nyasha drove the motor vehicle to Masvingo where they decided to dump both the vehicle and the body at Craft Centre before proceeding to their residence in Hillside Extension with their loot of cash $540.00 and now deceased’s cell phone.

It is this statement accused 2 Windas said he wrote in his own handwriting and that he copied it from the police laptop.  In our assessment, the statement is very detailed to such an extent that its impossible for police to have simply fabricated its contents.   Further, accused 2 Windas ascribes the lead role to one, Nyasha Sango who is at large.  What is critical to note is that accused 2 Windas’s statement is different from the one by accused 1 Admire in a number of aspects.  However, what is critical is that they materially corroborate each other especially on how the now deceased lost his life.  For that reason, we are not persuaded that it is the police who simply fabricated such a statement and forced accused 2 Windas to copy it.  Just like accused 1, accused 2 Windas has failed to discharge the evidential onus thrust upon him in such matters

We now turn to other exhibits,

Exhibits 4 is an Okapi knife orange in colour and Exhibit 5 is Okapi knife brown in colour.  The blade of each knife is 10cm long and the handle 13cm long.  The state alleges that one of the okapi knives was found in the motor vehicle in which the now deceased’s body was and the other on accused 1 Admire upon his arrest.

Exhibit 6 is the empty pepper spray. The state alleges the pepper spray was used during the attack of the now deceased.

Exhibit 7 is a Gtel cell phone handset belonging to the now deceased. It was recovered from Emmanuel Masakadza after accused 1 Admire and Nyasha Sango had sold it to him.

Exhibit 8 (a) to (s) are photographs of the now deceased’s lifeless body in the loading box of his motor vehicle showing injuries inflicted upon him, the scene of crime at Roy – Gutu road where the now deceased’s single pair of shoes and cap where recovered and the now deceased’s Nissan Vannette motor vehicle abandoned at Craft Centre, Masvingo.

Exhibit 9 are uplifted finger prints from the now deceased’s motor vehicle – Form 29.

Exhibit 10 are accused 1 Admire’s finger prints taken after his arrest – Form 14.

Exhibit 11 is a comparison chart or analysis of Form 29 (being finger prints taken from the now deceased’s motor vehicle and Form14 (being accused 1 Admire’s finger prints.)

Exhibit 12 is a Notification of Finger Prints Identification Result Form 11 (it arises from findings made in Exhibit 11).

The evidence of the now deceased wife Francisca Muchingweni, Vitalis Chida who resides near Gutu – Roy turn off and Dr Zimbwa who carried out the post mortem of the now deceased was admitted in terms of s 314 of the Criminal Procedure and Evidence Act [Cap 9:07].

Francisca Muchingweni identified the now deceased’s Gtel cellphone Exhibit 7 after the recovery by the police on 10 June 2017 because its type, colour and the inscription “JEK” at the back of the battery. It is this cell phone handset which led to the arrest of accused 1 Admire.

Vitalis’ Chida is one of the villagers at Plot 13 Marova Resettlement, Chief Chikwanda, Masvingo who resides near the scene of crime at Roy – Gutu road. On 20 May 2017 at about 08.00 hrs he went at the scene of crime where the now deceased was robbed. He noticed the blood stains in the tarred road, a black right shoe belonging to the now deceased, a torn piece of green cloth from the now deceased’s jacket and a cap. He also identified struggle marks and a trail of the now deceased’s body being pulled on the ground up to the point it was put in the loading box of the now deceased’s motor vehicle.

Dr Zimbwa compiled the post mortem report after examining the now deceased’s body and pronounced the cause of death.

We now turn to the other evidence.

The fact that the now deceased was robbed and killed near Roy – Gutu road is not in issue. This emerges from the evidence of Jane Muchengeti of Plot 7, Ndahwi, Chikwanda, Masvingo. Her evidence is to the effect that on 19 May 2017 as she was asleep she heard a male voice screaming at about midnight by the tarred road. She went to peep through the window of her house and saw a parked motor vehicle with its lights on. She heard a male voice pleading for mercy saying he had no money and that his attackers should spare his life and take his cellphone handset. The voice of the person crying for mercy was rather muffled. He heard the thudding sound of a person being assaulted as the person cried for help. She was terrified. She said another motor vehicle approached the scene but sped off probably as the driver got scared of what was happening. She heard an object being put in the loading box of the stationery motor vehicle and the motor vehicle sped off at high speed as a haulage truck approached. Her evidence is that she was traumatised to the extent that she could not sleep that night. The next morning she is one of the villagers who went to the scene of crime near the Gutu – Roy road and observed a pool of blood, one shoe belonging to the now deceased, a hat and the spoor of the now deceased’s body as it was pulled from the grass at the edge of the tarred road into the loading box of his motor vehicle as is depicted in one of the photographs in Exhibit 8. Later that day she showed CID details from Masvingo this scene of crime as she hardly resides 300m from the tarred road. She said the now deceased’s motor vehicle was facing towards Masvingo – Mutare road near a bus stop close by when she heard the now deceased crying for help on the night of 19 May 2017.

It is clear from Jane Muchengeti’s evidence that the now deceased died a painful death. His assailants were clearly merciless and ignored his call for mercy or to spare his life. They could not heed his plea for them to just take his property. The callousness is shown by how they dragged his body like a carcass throwing it into the loading box of his motor vehicle. The pool of blood at the scene of crime together with the shoe, cap and pieces of his torn jacket all at that scene confirms that the now deceased was viciously attacked by the assailants. This evidence is uncontroverted.

Anita Chitandabala is the police detail who discovered the now deceased’s body on 20 May 2017 early in the morning at Craft Centre inside the loading box of his Vannette Nissan motor vehicle as she performed traffic enforcement duties with other details. She was shocked to see the lifeless body in a pool of blood and the now deceased had no shoes. See Exhibit 8. As a result other police details were alerted.

Sgt Augustine Mugadza attended the scene after the discovery of the now deceased’s body by Constables Anita Chitandabala and noted the following;

the now deceased’s lifeless body was in the loading box of his Nissan Vannete motor vehicle Registration Number ADJ 9899 lying on its side in a pool of blood without shoes but wearing stockings

there was one black shoe for the left leg besides the body. Another shoe was later recovered at the scene of crime at Gutu – Roy road

the doors of the now deceased’s motor vehicle were unlocked and the keys were on the ignition

upon searching inside the cabin of the motor vehicle he recovered an okapi knife on the mat on the driver’s side, the now deceased’s national identity card, ZNA identification cards, some business cards all inside the motor vehicle

he recovered Exhibit 6 an empty container of pepper spray between the driver’s seat and the passenger seat and an ecocash receipt showing that the now decease had bought some groceries in Chivhu the previous night at about 2205 hours (the groceries were in the loading box of the motor vehicle)

he noted that the trousers belt of the now deceased had been pulled indicating that there was a struggle and in one of the trousers pocket he recovered $33.55

the now deceased’s body had several stab wounds on the head, buttocks, and a very deep stab wound on the neck. He also observed bite marks on his left shoulder. It was clear to him the now deceased’s assailants used a sharp object(s), teeth and were evidently ruthless. He called the homicide details from CID and the body was taken for a post mortem.

This leads us to the investigations carried by the police leading to the arrest of the accused persons and how they are allegedly linked to this murder.

It is the now deceased’s Gtel cellphone handset which gave the police the lead to the accused persons. How did this happen?

Emmanuel Masakadza of R822 Zimuto Street, Masvingo who is a photographer at Food Express Shop in town was approached by accused 1 Admire and Nyasha Sango who offered him the now deceased’s 705 Gtel cell phone handset for sale at $40. Nyasha Sango said he was desperate for cash as he wanted to go to South Arica and said accused 1 Admire was his uncle and friend. He bought the handset for a paltry $10 but wisely recorded Nyasha Sango’s personal details and was given a mobile number. After some days CID details approached him inquiring about the cellphone handset Exhibit 7 and he gave them all the details he had recorded. The CID details had Nyasha Sango’s photograph and he confirmed that indeed he was one of the persons who sold him the Gtel cellphone.

After the discovery of the now deceased’s body at Masvingo Craft Centre on 20 May 2017 D/Sgt Martin Kadzimu (D/Sgt. Kadzimu) attached to Crime Intelligence attended the scene. He is the detail who took photographs in Exhibit 8. Crucially he proceeded to uplift some finger prints which were visible all over the now deceased’s motor vehicle ADJ  9899 and made similar observations made by Sgt. Augustine Mugadza on how the now deceased was viciously attacked. He was shown items recovered in the motor vehicle including okapi knife and empty pepper spray.

D/Sgt Kadzimu is trained in uplifting finger prints and he explained the standard procedure he employed in uplifting the finger prints Exhibit 9 using brown graphite and a small tooth brush. The procedure entails putting graphite on to the toothbrush and then rubbing the toothbrush on the motor vehicle to make the finger prints visible. A tape is then put on to the area where finger prints are visible and they are then uplifted. Thereafter he sent the finger prints to CCB which is a department responsible for matching any uplifted finger prints from crime scenes with those taken from any suspects. D/Sgt. Kadzimu said as they were at Masvingo Craft Centre puzzled by their discovery of the now deceased’s body one motorist arrived en-route to South Africa and advised them that he had passed through a possible scene of crime at Roy –Gutu road where local villagers were gathered. This prompted the CID details to proceed to the said place where indeed he observed struggle marks, blood clots and mostly importantly recovered the now deceased’s other shoe and cap.

Assistant Inspector Owen Chiwara (Ass/Insp Chiwara) is a finger print expert. His evidence in critical in linking accused 1 Admire to this offence.

Assistant Inspector Chiwara is a qualified finger print expert who did advanced finger prints science in India and has 16 years experience. He is a member of Finger Print World Society and is currently the Member in Charge in Zimbabwe. He is widely experienced as he attended various scenes of crime gathering evidence searching for finger prints uplifted at scenes of crime with those of suspects. In addition to that he is a Quality Controller of finger prints uplifted by police details from various scenes of crime and is the custodian of all finger prints in Zimbabwe. Indeed, he is an expert witness with the requisite skills and experience.

As regards this case Assistant Inspector Chiwara said in June 2017 he received in Harare finger prints uplifted at Masvingo Craft Centre on 20 May 2017 being Exhibit 9 as per Form 29. The finger prints were uplifted from a motor vehicle and their quality was good as they could be searched, and labelled. He proceeded to label them as 721/17.

On 20 July 2017 he received finger prints on ZRP Form 14 Exhibit 10 taken by Masvingo Police details from accused 1 Admire.

Assistant Inspector Chiwara said he proceeded to try and match accused 1’s finger prints Exhibit 10 with any outstanding scenes of crime from Masvingo province. During that process he compared finger prints from Exhibit 9 lifted from now deceased’s motor vehicle and those taken from accused 1 Admire, Exhibit 10 and made the following findings and conclusions;

he matched four fingers from Exhibit 9 uplifted from the scene with the 4 fingers from those taken from accused 1 Admire Exhibit 10 establishing coincidence sequence of ridge characteristics of the fingers which are unique

he noted that the flow of the ridges was not continuous but divided into two which he called biefacation or end or ridge end

in the process of this comparison he established 12 points which were in agreement between Exhibit 9 uplifted from the scene and Exhibit 10 uplifted from accused 1 Admire.

In explaining methods used to match finger prints he explained that 3 methods are generally employed being basic method of using basic method of using miniatures or characteristics, use of poroscopy using microscope or edgeroscope which entails looking at the pores. However, in this case he simply used the first method of characteristics which was conclusive.

Assistant Inspector Chiwara explained that for purposes of evidential value for court hearings the international standard is that 6 points of agreement are sufficient but in this case he established 12 points of agreement between Exhibit 9 and Exhibit 10 which is double the minimum number required. All these findings he made are contained on Form 240 Exhibit 11. Assistant Inspector Chiwara explained that scientifically even identical twins carry finger print individually and that it is generally accepted that no person has similar finger prints with the other.

Assistant Inspector Chiwara said after his findings he forwarded the results to ZRP Masvingo as per Exhibit 12. His conclusion was that the finger prints impressions uplifted at the scene of crime as per Form 29 Exhibit 9 were produced by the same person with the finger prints on Form 14 Exhibit 10 who is accused 1 Admire.

We inclined to accept Assistant Inspector Chiwara’s evidence. He qualifies as an expert witness. His experience and knowledge is impeccable. The bulk of the questions put to him by Mr Chipangura for accused 1 simply dealt with general knowledge relating to finger print evidence which we find unhelpful and does not impugn his testimony. The closing written submissions by Mr Chipangura in this regard may be a good research critique of finger prints evidence in academic endeavours but bears no relevance to the specific findings in this case. The finding we make therefore is that accused 1 Admire is firmly placed at the scene of crime. As for accused 2 Windas his finger prints did not conclusively match those uplifted at the scene of crime, hence that doubt is resolved in his favour.

The Investigation Officer (I.O.) in this case is D/Sgt Morris Katiyo (D/Sgt Katiyo) who has 15 years’ experience in the police force. He managed to take this court through the investigations he carried out in this matter in a very impressive way.

He attended the scene at Masvingo Craft Centre when the now deceased’s motor vehicle and body were recovered. He was present when D/Sgt. Kadzimu uplifted finger prints at the motor vehicle. After the tip off by a passer-by he proceeded to the place where the now deceased was attacked along Roy – Gutu and noted a pool of blood parallel to the tarred rod, a piece of cloth matching the now deceased’s green jacket, the now deceased’s black cap and a black shoe matching the other one found with the now deceased’s body in the loading box of the motor vehicle. It became clear to him that the now deceased had been stabbed at this place as struggle marks were visible and that his body was then carried from this place as shown by the trail of blood up to the tarred road. Indeed, Jane Muchengeti confirmed his findings.

D/Sgt. Katiyo explained how he arrested the accused persons and linked them to this offence.

He explained that the now deceased’s body was identified by his relatives inclusive of his clothes, shoes and motor vehicle. This was his wife and daughter. They also advised him that the now deceased had a cellphone which he had used on 19 May, 2017 upto Gutu and that cellphone was not recovered. He decided to try and recover this cellphone in order to locate the culprits. How did he do this?

he applied to Econet to get EMEL number using the now deceased’s mobile number, that is the serial number of the cellphone handset

after obtaining the serial number he applied to all mobile networks, Netone, Telecel and Econet to check if any person used the now deceased’s handset. Through this process they located Emmanuel Masakadza as they were advised by Telecel that he was using the now deceased’s handset Exhibit 7

Emmanuel Masakadza advised him that he had bought the handset from Nyasha Sango whose personnel details he had recorded and that Nyasha Sango was in the company of another person. By then Nyasha Sango was already on a wanted police list for spate of robberies in Zaka and Masvingo area as he had been implicated by accused 2 Windas who had already been arrested in Zaka in a botched up robbery in Zaka and Nyasha Sango and another accomplice had escaped. He had already interviewed accused 2 Windas about the robberies in Zaka and accused 2 Windas had implicated accused 1 Admire and Nyasha Sango as his accomplices. The police were therefore looking for accused 1 Admire and Nyasha Sango in connection with those cases in Zaka and Masvingo.

As they were looking for the person who sold Emmanuel Masakadza deceased’s handset he proceeded to apply to the service providers for the call history of the mobile number left with Emmanuel Masakadza and the results showed that the deceased’s handset Exhibit 7 had been used by accused 1 Admire from a day after deceased’s death on 20 May 2017 until it was sold to Emmanuel Masakadza and that the geographical position of accused 1 Admire’s mobile number on the date of the deceased’s murder was Gutu area. This further placed accused 1 Admire at the scene of crime.

Armed now with all this information he proceeded to apply to Econet for triangulation, which is the movement of the person using accused 1 Admire’s mobile number by locating the geographical area. At the same time, he alerted CID informers in Masvingo who live in accused 1 Admire’s area Hillside Extension to be on the lookout for accused 1 Admire who had left his residence at the same time the now deceased was killed. He said during triangulation accused 1 Admire’s mobile number was switched off and they had to use the call history to locate the people accused 1 Admire had communicated with. He managed to locate accused 1 Admire’s sister in Renco, Nyajena, another sister in Mvurwi and his girlfriend in Birchenough but all said they did not know where accused 1 Admire was.

D/Sgt. Katiyo said the breakthrough came when Econet alerted him on 26 June 2017 that accused 1 Admire’s mobile number was now active and its geographical area was in Beit bridge moving to Masvingo. The CID details decided to waylay accused 1 Admire in Masvingo. On that day their informer told them accused 1 Admire and Nyasha Sango had arrived at accused 1 Admire’s lodgings at Hillside Extension at 0500 hrs but both had not entered the house. Instead they had gone up the mountain opposite Exor garage. D/Sgt Katiyo teamed up with 3 other detectives to search for accused 1 Admire and Nyasha Sango.

D/Sgt. Katiyo explained how accused 1 Admire was arrested. He said he and D/Cst. Mapawaenda climbed the mountain from Wimpy side and D/Insp Chibvakacha and another detail used the Hillside area. They were obviously armed. His other colleagues alerted him accused 1 Admire had been located and he was being chased towards Clipsham/Morningside direction and he had descended the mountain and crossed the Masvingo Beit bridge road. They all rain in that direction. He said unfortunately D/Insp Chibvakacha had dropped his magazine and that accused 1 Admire may have realised that so he had stopped in a bushy area in Morningside and was advancing towards D/Insp Chabvakacha wielding an okapi knife. The other details arrived in the nick of time and D/Cst Mupawaenda had a pistol and D/Cst Ngwenya an AK rifle. They ordered accused 1 Admire to surrender but he took to his heels after which 3 warning shots were fired to no avail. The detectives had no option but to shoot as accused 1 Admire who was hit on the hand and grazed on the leg forcing him to fall down. This is how accused 1 Admire was arrested. As he was now bleeding they bandaged him and took him to hospital where a doctor attended to him after 0830 hrs. At 1100 hrs they were advised accused 1 Admire was in a stable condition and that they could interview him which they did.

D/Sgt Katiyo said accused 1 Admire freely gave his warned and cautioned statement Exhibit 2 which was later confirmed at the Magistrates Court. Further he pleaded guilty to the outstanding robbery cases and was duly convicted, the same case accused 2 Windas had implicated him. He said accused 1 Admire implicated Windas accused 2 in this murder case as accused 2 Windas was already serving at Buffalo Range prison for robbery cases. He also implicated Nyasha Sango who managed to escape from the mountains and is still at large.

D/Sgt Katiyo said he took accused 2 Windas from Buffalo Range prison and interviewed him after which accused 2 Windas opted to write his own warned and cautioned statement Exhibit 3 also implicating accused 1 Admire and Nyasha Sango.

After some time, he received results of finger prints examination Exhibit 12 as he had taken both accused 1 Admire and accused 2 Windas’ finger prints and sent them to CCB. The results confirmed that accused 1 Admire’s finger prints matched the finger prints uplifted from the now deceased’s motor vehicle. As regards accused 2 Windas the results were inconclusive.

D/Sgt. Katiyo said accused 1 Admire and accused 2 Windas were partners in this crime because;

upon accused 2 Windas’s arrest in Zaka in respect of other robbery cases he implicated accused 1 Admire and Nyasha Sango

accused 1 Admire upon his arrest pleaded guilty to the same robbery charges accused 2 Windas had implicated him in

upon his arrest accused 1 Admire implicated accused 2 in the murder of the now deceased

accused 1 was found with an okapi knife upon his arrest which was similar to the okapi knife found in the now deceased’s motor vehicle

D/Cst Sibamisenko Ngwenya materially corroborated Sgt. Katiyo in how accused 1 Admire was arrested and shot. He is the one who challenged accused 1 Admire to stop and when he fled he fired 3 warning shoots from his AK rifle. He confirmed that as accused 1 Admire fled both he and D/CST Mupawaenda fired at him hitting him on right hand and other bullet grazed him on left leg. He disputed that accused 1 Admire was forced to give any statement.

We have no doubt that D/Sgt Katiyo was a very impressive witness. Indeed, he is a brilliant investigating officer whose industry in this matter deserve commendation. Such an excellent job deserves to be acknowledged and this should make our police force proud to have officers of his calibre. We have no cause not to accept his evidence at all.

There is direct evidence in form of confirmed warned and cautioned statements which link both accused 1 Admire and accused 2 Windas to this case. In addition to that accused 1 is linked by expert evidence arising from finger prints and the manner of his arrest. Indeed, there is also circumstantial evidence which link both accused 1 Admire and Accused 2 Windas to this case whose only inference is that they committed this offence together. They further implicated each other in this case.

We are therefore satisfied that this was a pre-planned offence as accused persons went out to rob the now deceased and were prepared to use any means necessary if there was any resistance. This explains why they were armed with okapi knives and a pepper spray. The now deceased was brutally killed with a knife and the intention of the accused persons who acted in common purpose was to cause death and indeed death resulted.

In the result we do not hesitate to find accused persons guilty of murder with actual intent.

VERDICT:

Both accused guilty of contravening s 47 (1) (a) of the Criminal Law Codification and Reform Act [Cap 9:23] - murder with actual intent.

Both accused persons have previous convictions which were read to them and admitted.

SENTENCE:

Both accused persons have been convicted with murder with actual intent.

It is agreed by all counsel that this murder was committed in aggravating circumstances see S. v Chikoshi and Another 2016 (2) ZLR 6.3 (H).

We do not intend to repeat the findings of fact which we made in the reasons for judgement.  Suffice to say this was clearly a premeditated offence of murder.  It matters not that both of you may not have pre planned to murder a specific person but when you travelled from Masvingo armed with dangerous weapons like knives and pepper spray your objective was to rob or kill if necessary as you did in this case.  It is this pre meditation which aggravates your moral blameworthness.

We fully understand why both Mr Chipangura for accused 1 Admire and Ms Masiya for accused 2 found it extremely difficult to say anything in mitigation.  Anyone would have found it an uphill task to find anything in your favour, moreso as none of you has exhibited any remorse.

It has been noted in your favour that accused 1 is now 29 years old and accused 2 is 27 years.  You are virtually of the same age group hence there is no rational basis to treat you differently as regards sentence.  Further, you both have similar previous convictions.  Again it does not matter as to who inflicted the fatal stab wound as the facts show you both acted in common purpose to achieve the same criminal enterprise.  Further you are both married and each one of you has two minor children. We are not persuaded by your pleas for leniency on account of your respective young family as the now deceased whose life you callously took had also a family.  You are both unemployed with neither savings nor assets.  It would appear you had decided to make a career in unlawful activities and to kill other people in order to get whatever you wanted or perceived such victims possessed.  This is indeed a dangerous career for which the full wrath of the law should descend upon you.

In terms of s 48 of the Constitution every person has a right to life and our courts uphold the sanctity of life and the sacred nature of human blood.  This is the very right you took away from the now deceased.  The same Constitution in s 48 (2) provides for a death penalty if murder is committed in aggravating circumstances.  There are exceptions where the convicted person was below 21 years old at the time of commission of the offence or is aged 70 years or above or is a woman.  Both of you do not fall within these exceptions.  You may possibly seek the benovelence of the President and plead that your sentences are commuted to life imprisonment.

In terms of s 47 (2)(a)(iii) of the Criminal Law (Codification and Reform) Act, [Cap 9:23] you killed the now deceased in the course of a robbery. As already said this was a premediated offence as outlined in s 47 (3) (a) of the Criminal Law (Codification and Reform) Act [Cap 9:23].  The death penalty is provided for in s 337 of the Criminal Procedure and Evidence Act [Cap 9:07] and the exceptions outlined in the Constitution are repeated in s 338 of the Criminal Procedure and Evidence Act [Cap 9:07].

I should confess that for the 8 years I have been a Judge of this court I have not imposed a death penalty.  However, in casu I have not managed to find any good cause as to why both of you should escape the hangman’s noose.  It would be an improper exercise of my discretion if I was to impose any other sentence which is not a death penalty in this case.  You have not shown any good cause why a death penalty should not be imposed and we find none.

In the result the following sentence is pronounced;

“Accused 1 Admire shall be returned to custody and the sentence of death should be executed.

Accused 2 Windas shall be returned to custody and the sentence of death shall be executed.

Each accused is advised of his automatic right to appeal to the Supreme Court.”

National Prosecutors Authority, counsel for the state.

Chuma, Guragena and Partners, pro counsel for accused 1.

Legal Aid Directorate, pro deo counsel for accused 2.