S v Nyarusanga (CRB 179 of 2016; HH 7 of 2017) [2016] ZWHHC 7 (6 November 2016)

1 HH 7/17 CRB 179/16 TINASHE NYARUSANGA versus THE STATE HIGH COURT OF ZIMBABWE CHITAPI J HARARE, 31 October 2016, 2 November 2016, 3 & 6 November 2016 Assessors: 1. Mr Shenje 2. Mr Gweme Criminal Trial M. Munhamo, for the State I Goto, for the respondent CHITAPI J: The accused is charged of murder as described or defined in s 47 of the Criminal Law (Codification & Reform) Act [Chapter 9:23]. The allegations against him are that on 4 December, 2015 at Chikwira Business Centre, Mount Darwin, the accused acting with intent to kill or realising a real risk or possibility that his conduct might cause death, unlawfully killed Edmore Mwedziwendira, a male adult thereat, by striking him on the head with an iron bar and stone and further used a knife to cut off the deceased’s left ear and left eye as well as cutting off the skin covering the deceased’s head. The accused pleaded not guilty. The court enquired on his age and he said that he was 18 years old. The State summary of witness evidence was produced as Annexure A and read into the record. The accused’s defence outline was similarly read into the record and produced as Annexure B. The evidence of the following state witnesses as set out in the summary of the state case was admitted by the accused through his defence counsel in terms of s 314 of the Criminal Procedure & Evidence Act, [Chapter 9:07]; Lisa Manuwere, Taurayi Mahachi and Shepherd Moffat. The court excused the witnesses. The gist of their evidence was to the following fact: HH 7/17 CRB 179/16 Lisa Manuwere: Was an employee of the deceased. She worked in the deceased’s shop as a shopkeeper. On 4 December, 2015, she closed the shop and retired to sleep in the shop whilst the deceased put up in the nearby kitchen hut. This was at Chikwira business centre. On the following day in the morning she proceeded to her rural home as she had a day off. Around 1:00pm she was telephoned by the deceased’s wife Gladys Chabvunduka to return to the shop. Upon her return the witness opened the shop and the kitchen door. She observed blood stains on the kitchen floor and on the pillow on the bed used by the deceased. She then made a report to one Tatenda Mwedziwendira and also showed the deceased’s wife the blood stains when the latter arrived at the shop later. They then decided to make a police report about their observations and of the fact of the deceased missing. Taurayi Mahachi Is a police and on 4 December, 2015 at 0400 hours he received a report concerning the deceased who was reportedly missing. He attended the scene at the deceased’s shops and was part of the search team which discovered the deceased’s body in the graveyard some 40 metres away from the deceased’s kitchen hut in which he had retired to bed. On inspecting the deceased’s body the witness observed that the skin covering the deceased’s head had been removed as well as the left ear and left eye. Shepherd Moffat Is a police officer attached to the Criminal Investigations Department, Mount Darwin. He witnessed the recording of the accused’s warned and cautioned statement and his recorded testimony was that the accused gave his statement freely and voluntarily without any undue influence and also signed the statement. Gladys Chabvundura Is the deceased’s wife and knows the accused as a neighbour. She has known the accused since 2002. She resided at the material time with the deceased at Chikwira Business Centre with HH 7/17 CRB 179/16 their family. She left the homestead on 4 December, 2015. On 5 December 2015, she received a call from her 16 year old son Tatenda reporting that the deceased was missing from home. She phoned around to no avail. She advised the family relatives after which she returned to the business centre arriving there around 2200hours. On arrival a search of the homestead was carried out. The search party was shown blood stains in the bedroom and on the pillow. The bedside drawers were open and contents strewn on the bed. She proceeded to Dotito Police Station and arrived there at dawn. She made a report thereat of the missing deceased and also of what she had observed at the scene. When she returned to the business centre, a search was carried out and the deceased’s body was found some 45 metres away from the homestead. She was not allowed to examine the body but when the body was placed in the coffin she observed a fracture on the deceased’s head. The body was taken to Mount Darwin hospital. Funeral arrangements were initiated. On the way from collecting the body from Mount Darwin for burial she received information that the perpetrator of the murder had been arrested. She then met up with the accused who was in a vehicle driven by another local person, Atikenzi Mugoneka. The accused was under arrest. She was shown a nokia 1200 cellphone which she identified as that of the deceased. The deceased had had the phone for 2 years. Under cross examination nothing eventful came out. She however knew of no bad blood between the accused and the deceased. The accused was someone whom the witness and the deceased assisted together with his young brother. The father of the deceased was an oldman and the deceased used to assist that family with food and clothing. The witness showed impartiality and commendable maturity and self-restraint when giving evidence despite the fact that it was her husband who had died. The court believed her evidence. Kasirayi Gakanje Stays in Chikwira village. His homestead is 100 metres away from the accused family’s homestead. He knew both the accused and the deceased as a local resident and local businessman respectively. He stayed about 50 metres away from the deceased’s homestead. On 4 December 2015, he did his laundry at his homestead. He left his trousers and T-Shirt on the washing line to dry up overnight as he had done his laundry around 7:00pm. The following morning, he discovered that the trouser was not on the washing line. He reported the HH 7/17 CRB 179/16 theft of his trousers to his mother and to Atkenzi Mugoneka who was his uncle. On 6 December, 2015 he got information that the accused had been arrested whilst putting on the witness trousers. He identified his trousers to the police. He denied that he was friends with the accused nor that they used to exchange clothes. In particular he denied that he gave or authorized the accused to use of his trousers. The witness was also shown by the police an iron bar which was 1.9 m – 2m long. The iron bar had been removed from one of the huts under construction at the witness’ homestead. He said that the accused led the police to the recovery of the iron bar. Under cross examination, the witness said that the accused and him grew up as friends. However, the friendship ended in 2014 because the witness did not approve of the accused’s errant behaviour. The defence counsel asked the witness to indicate or give examples of the errant behaviour of the accused. The witness indicated that the accused had stolen fertilizer from a house. It is noted that the defence counsel solicited character evidence and he got the answers to his question. The court will not however be guided or influenced by evidence of the character of the accused in determining this matter. The witness said that he believed that the accused had used the iron bar to assault the deceased because the iron bar was blood stained. This witness gave simple straight forward evidence. He said that he went to school up to grade 5. He did not exhibit any ill feelings or animosity towards the accused save to say that he did not approve of the accused’s behaviour. Atkenzi Mugoneki He resides in Chikwari village and owns a shop at the local business centre where the deceased owned a shop and was also murdered. He knows the accused since he was a young boy growing up in the neighborhood. His wife and the deceased’s wife are aunt and niece. On 5 December, 2015, in the morning he received a report from the last witness that his trousers had been stole