S v Chikanya (251 of 2022) [2022] ZWHHC 251 (1 April 2022)

1 HH 251-22 CRB 90/18 THE STATE versus BRIAN CHIKANYA HIGH COURT OF ZIMBABWE FOROMA J HARARE, 1, 2 &3 October 2018, 10, 18, & 29 March & 1 April 2022 Criminal Trial F Zakaria , for the state E Chimombe, for the accused FOROMA J: the accused was charged with the murder of Sarah Munhu on the 10th of August 2017 at Ushongani Village Chief Musana Bindura by assaulting her all over her body using a chisel aluminum pot and a wooden stool. The State alleges that the accused intended to kill the deceased or realized that there was a real risk or possibility that his assault of the deceased might cause death but continued with the assault thereby causing the deceased’s death. Accused pleaded not guilty to the charge and claimed that he fought the deceased his girlfriend who reacted violently disputed the allegations of improper association with another man which accused had made against her resulting in the two getting involved in a fight during which he used a wooden stool aluminum pot and a chisel. The alleged fight ended with the deceased confessing to the improper association and an apology to accused. Accused claims that after the apology the deceased left for her friend’s homestead one Mai Simon (Simon’s Mother) and he went to sleep and only discovered the following morning that deceased had been found dead along the road that passed through the area. That deceased and accused and accused were in some love relationship is common cause. However it is significant to note that the accused who frequented the deceased’s residence was regarded as a family friend in particular by deceased’s children who did not know of the intricate love relationship between accused and their mother. For this reason when the deceased’s son Martin Nyashanu and daughter Anesu Nyashanu learnt about their mother’s death through the HH 251-22 CRB 90/18 accused who tactfully brought both of them to the road side where deceased’s body had been found without breaking the news of their mother’s demise they never suspected the deceased to be the culprit, Martin and Anesu only were informed by the police at Manhenga Police Base where the accused was accused of the murder of the deceased. The State led evidence from Constable Mangidza. As will be observed from a summary of her evidence she was the State’s star key witness. She was a member of the ZRP attached to Manhenga Police Base and the attending detail. Constable Mangidza was assigned to attend the report of a scene of a deceased female adult found lying on the road side which report had been made to the Manhenga Police Base. She attended the scene with one Constable Ndlovu. On arrival at the scene she found a Police Constable Madyira who narrated the circumstances of the matter as far as he had gathered and she was told that deceased’s son Martin Nyashanu was in attendance. Martin Nyashanu identified the deceased as his mother by the name Sarah Munhu. She observed that the deceased was lying on her back with her head and face covered with a purple cloth. Deceased was wearing a pair of black plastic sandark sandals and a pair of black and white socks. She also observed that the deceased’s dress was neatly tucked underneath her thighs. The area immediately around the deceased’s body did not exhibit any signs of struggle. She established from Martin Nyashanu that his sister was last with the deceased at the deceased’s homestead the previous day. The witness observed on the deceased’s body and noted the following injury- a deep cut on the lower libra of the left leg. There was no blood next to deceased’s clothes were not blood stained. Once Constable Mangidza heard that the deceased was last seen alive at her residence the previous day. She decided to visit deceased’s homestead to establish any leads she could get. At deceased’s home Anesu Nyashanu informed her that deceased had left home wearing a pair of black sandark shoes and a pair of stockings. Anesu indicated to Constable Mangidza the direct ion her mother took as she left the homestead and showed the witness the deceased’s foot prints in the direction deceased had taken which foot prints matched the deceased’s shoe prints that deceased had been observed wearing where her body was found. In her testimony Constable Mangidza traced the footprints which led her to the accused’s bedroom. The witness noted that there were no shoes leaving the said room. From this information gathered she started suspecting the accused of the murder of deceased. On her return to the road side where deceased’s body had been located she found the accused present and noted that he left the place returning a HH 251-22 CRB 90/18 while later with a change of clothes. She narrated her suspicious to Constable Ndlovu. The witness observed the accused trying to board a commuter vehicle (kombi) and stopped him. As Martin Nyashanu had related to Constable Mangidza how the accused had get them to the place where his mother’s body had been found she decided on some clear reason for preventing the accused leaving the scene. She decided to tell him that since he had broken the news to deceased’s children he had to accompany the children to the police at Manhenga where they were required to give a statement and accused obliged. Without so much as suspecting anything amiss. Constable Mangidza then consulted Constable Shoko at Manhenga Police base and arranged that he arrange to arrest accused whom she was sending with the deceased’s children as she considered him to be the prime suspect and her reasons for so saying. The witness’s plan to get the accused arrested worked perfecting and accused and the deceased’s children (who until then were on the dark as to their mother’s assailant) boarded a kombi that passed through the scene to go to Manhenga Police base accompanied by two police details who had since arrived at the scene. On arrival at Manhenga accused was arrested and charged with the murder of the deceased. Accused was taken back to the scene where Constable Mangidza and other police details interrogated him before taking the accused to his homestead. On being interrogated accused admitted that he had assaulted the deceased after some misunderstanding. On being or asked why he had assaulted the deceased accused replied that he had learnt that she was developing an interest in other men and that had not gone down well with him. The witness asked accused to take them where the incident had taken place which the accused voluntarily offered to do. At the accused’s homestead Constable Mangidza asked the accused to open his bedroom and on entering the room she noticed all the walls blood stained. She also noticed blooded stained blue jean trousers and petticoat batch towel white T-shirt black and white small blanket. On further interrogation accused revealed that as he was fighting the deceased he had used a stool which broke and that he also used a chisel and an aluminum pot which items accused handed up to the police. When asked how the walls got blood stained the accused told the police that in the early stages of the fight he had smashing deceased’s head on the wall although he could not remember how many times he did so. Constable Mangidza further testified that she observed that the floor had been cleaned as there was stagnant water in the room which had not dried up. From the bedroom the witness informed the accused that she wanted to search the environment. Before HH 251-22 CRB 90/18 going far the accused called the witness and offered to make a clean breast by revealing some of the material used. Accused then took the witness to the kitchen where he showed the witness the following: 1) one by two in one big blanket 2) a bed cover 3) a pink female panty and; 4) a red wallet Both blankets were wet and blood stained. These were recovered as exhibits. The witness asked accused as to ownership of items of clothing and accused as to ownership of items of clothing and accused indicated that the female panty belonge