S v Marima & Anor (CRB 187 of 2016; HH 820 of 2016) [2016] ZWHHC 820 (13 December 2016)

1 HH 820-16 CRB NO. 187/16 THE STATE versus PETROS MARIMA and KUDAKWASHE SIMBARASHE CHAKANETSA HIGH COURT OF ZIMBABWE PHIRI J HARARE,21-23, November 2016, 1 & 13 December 2016 Criminal trial B Murevanhema, for the State T Maguvudze, for the 1st accused M Dunatuna, for the 2nd accused PHIRI J: The accused were facing a charge of murder in terms of s 47 (1) a of the Criminal law Codification and Reform Act [Chapter 9:23] it being alleged that on the 10th day of December, 2015 at Beatrice Farm, Chegutu, one or both of them unlawfully and with intent to kill caused the death of Machaya Sangombe by strangling. The accused persons pleaded not guilty to the charge. The State and the defence counsels all conceded that the evidence of the following State witnesses be admitted in terms of s 314 of the Criminal Procedure and Evidence Act [Chapter 9:07]. 1. Doctor Mauricio Gonzalez 2. Mushuri Wheremu 3. Albert Sangombe 4. Maxwell Kutsara 5. Forget Mudangandi 6. Doesmatter Kahorwa The following State witnesses gave evidence of under oath; 1. Rashid Marekeni 2. Henderson Banda HH 820-16 CRB NO. 187/16 3. Abel Chinengamambo 4. Albert Sangombe The evidence of Doctor Mauricio Gonzalez was to the effect that he is a duly registered medical practitioner employed as a forensic pathologist. On 12 December, 2015 at Harare Hospital and at the request of the Zimbabwe Republic Police he examined the remains of the deceased, Machaya Sangombe and concluded that the cause of death was asphyxia due to hanging. The post mortem report was produced in evidence as exh number 7. Clever Sangombe led evidence. He stated that deceased was his father. On 9 December 2014 deceased came to his place at 1453 Pfupajena Chegutu for the purposes of collecting rentals. Deceased came with a black mountain bicycle marked Exh 1. He left Clever Sangombe’s residence around 7:00 a.m. on 10 December, 2015. He received a report from his wife that police detectives had visited him on 11 December, 2015 he proceeded to Chegutu Hospital mortuary where he identified the body of the deceased before it was conveyed to Harare Hospital for a post mortem examination. He positively identified the recovered bicycle on the 17 December, 2015. Rashal Marekerepi led evidence. He is a duly attested member of the ZRP. That on the 10th December 2015 he received a report from one Mushumi Vheremu. He proceeded to the scene of the crime in the company of fellow detectives. At the scene he observed some struggle marks on the foot path about 20 meters from where the deceased’s body was. He observed some drag marks on the foot path about 20 metres from where the deceased’s body was. He also observed some drag marks from where he had observed the struggle marks to where the body lay. There was a rope on deceased’s neck with the other hand tied to a tree. Abel Chinengemambo Is a duly attested member of the CID stationed at Chegutu. On 10 December around 9:30 hours he was on duty when he was tasked to attend a murder scene at Beatrice Farm, Chegutu. He took some photographs at the scene of the crime which were produced as exh 4 (a, b and c). Photograph (a) depicted struggle marks at the footpath at the scene of the crime. Exhibit 4 (b) was a photograph depicting the body of the deceased lying down with face down and a rope on the neck. Exh 4 (c) showed photographs showing deceased lying down tied to a tree with, drag marks spoor, and a photograph depicting the height at which the other end of the rope was tied to a tree. HH 820-16 CRB NO. 187/16 He also made observations that the rope on the deceased’s neck was lightly fastened and that the deceased most probably met his death on the part of the footpath where there were no struggle marks. Albert Sangombe Stated that he resided at Plot 39 Maridadi Farm, Chegutu. Deceased was his paternal grandfather. Deceased visited him on 9 December, 2015 and he had his mountain bike. He learnt of the deceased’s death on the afternoon of the following day. He was invited to CID Chegutu to identify the recovered bicycle. Wonder Tanhamo Led evidence to the effect that he resided at Plot No. 140, Maridadi Farm. Deceased was a resident of the same farm. He learnt of the deceased’s death on 10 December 2015. On 16 December, 2015 he received a phone call notifying him that deceased’s bicycle had been seen along King Street, in Chegutu. He proceeded to the place and positively identified the deceased’s bicycle whereupon he alerted the police. Maxwell Kutsara Led evidence that he worked with Doesmatter Katurura at number 56 King Street, Chegutu. He stated that the accused brought in the bicycle exh 1 for repairs. He carried out the repairs and placed the bicycle in the shop for collection by accused persons on 16 December, 2015. He was present when enquiries were made over the bicycle and when the accused were arrested. Doesmatter Katurura His evidence was admitted in terms of s 314 of the Criminal Procedure & Evidence Act (supra) and the court requested him to be called and lead further evidence. He stated that the two accused persons came to his workplace on 15 December, 2015 at around 1600hrs. They brought a black mountain bicycle to his workplace at number 56 King Street, Chegutu. The witness is self employed as a cobbler and bicycle mechanic. The accused requested the witness to replace the saddle with a new one which they had in their possession. They also instructed him to repair the bicycle chain and he charged them $2.50 for his services. 1st accused paid him $1.50 and it was agreed that they were going to settle the outstanding balance the following day when they would collect the bicycle. Later he was approached by detectives from CID Chegutu who later arrested the accused at around 1700hrs when the accused came to collect the bicycle. HH 820-16 CRB NO. 187/16 Hendersen Banda Led evidence. He was duly attested member of the republic police with 12years experience of which 7 years was investigations in homicide cases. On 10 December, 2015 he and other officers and, Rashid Marekeni visited the scene of the crime. At the scene he searched the deceased’s pockets and found two matchboxes, a bottle of glue, and offer letter and several receipts which bore the address “p1453 Pfupajena Chegutu.” He also observed that the body of the deceased was lying down facing downwards with blood oozing from the ears and froth on the mouth. A rope was tied to the neck of the deceased. The other end of the rope was tied on the trunk of a tree approximately thirty centimetres from the ground. There were no struggle marks where the deceased’s body lay. He also observed that within about twenty metres from where the deceased’s body was were some struggle marks suggesting that some people had fought. There was also a straight spoor extending from the footpath to the spot where the deceased’s body was and this was evidence that the deceased had been dragged to the tree. His conclusion was that the deceased had been tied to the tree when he already had lost his life. The witness was also on duty on 16 December, 2015 when information was received that deceased’s bicycle had been seen along King Street, Chegutu. He teamed up with other officers to arrest the accused and recover the bicycle at Number 56 King Street, Chegutu . On 17 December, 2015 accused person led the witness and constable Forget Mudangandi for indications. Both accused indicated the position where they picked the rope used to tie the deceased. The accused further indicated the spot where they tied or inserted the rope around the deceased, and, the spot where there were struggle marks created during the scuffle with the deceased. The accused person separately made the indications and both their indications matched. Under cross examination, the witness revealed that his investigations established that deceased had died between approximately 8.30hours and 9.00hrs. he also denied the suggestion that accused persons had left deceased when deceased was still