State v Chaira (96 of 2024) [2024] ZWHHC 96 (29 February 2024)

1 HH 96-24 CRB NO. 6228/23 THE STATE versus TAISON CHAIRA HIGH COURT OF ZIMBABWE MUREMBA J HARARE, 11, 12 & 15 January & 29 February 2024 Assessors: Mr. Shenje Mr. Gwatiringa Criminal trial Ms. C Mutimusakwa, for the State Ms. L Garanowako, for the accused MUREMBA J: The accused is facing a charge of murder as defined in s 47(1) of the Criminal Law Codification and Reform Act [Chapter 9:23] (The Criminal Law Code). It is alleged that on 17 May 2022 and at Chaira Village, Chief Musarurwa, Masasa in Chivhu, he murdered one Gibson Mawire by assaulting him several times all over his body and throwing him into a well. The accused pleaded not guilty to the charge. In his defence outline the accused said that on the night of 16 May 2022, he was alone at home in Chaira Village in Chivhu. He said that on 17 May 2022, in the morning he left for Harare as planned. On 20 or 22 May 2022, his wife phoned him telling him that the deceased who was his nephew had died. When he was on his way to the funeral, he received news that he was a suspect for the murder of the deceased and that the police were going to arrest him upon his arrival. He learnt that his friend Bothwell Gurende had already been arrested as an accomplice to the murder. The accused said that out of fear he returned to Harare. He did not explain how he was arrested, but he said that he did not make his warned and cautioned statement freely and voluntarily. He further said that its confirmation in court was not made freely and voluntarily. He also said that he did not make the indications freely and voluntarily. He further said that he is not the one who made the indications that led to the recovery of the lockset. The accused said that he is being framed for the murder offence by a HH 96-24 CRB NO. 6228/23 State witness with whom there is bad blood. However, the accused did not mention the name of the particular witness. The State’s evidence The State produced the post-mortem report with the consent of the defence. The report states that the deceased was 82 years old. Doctor Zimbwa who examined the remains of the deceased noted the following injuries. A depressed skull fracture on the right frontal bone; a neck fracture; multiple facial bruises; dislocated right shoulder and multiple lower limb bruises. The doctor noted that the deceased’s hands were tied behind the body. He concluded that what caused the death of the deceased was a severe head injury and a neck fracture. The doctor did not give viva voce evidence. His evidence was formally admitted in terms of s 314 of the Criminal Procedure and Evidence Act (the CPEA) with the consent of the defence. The State went on to produce the accused’s confirmed warned and cautioned statement with the consent of the defence. The statement was recorded by the Investigating Officer Detective Sergent Zhou on 31 May 2022 at 0900 hours at CID Chivhu. Viva voce evidence was led from Tsitsi Homerai, Precious Mhenyu, Lancelot Nduna, Panashe Chaira and Norman Chaira. All of them except Precious Mhenyu reside in Chaira Village under Chief Musarurwa in Chivhu. This is where both the accused and the deceased were residing. The two were related as uncle and nephew respectively. Their homesteads are about 1 kilometre apart and there are two homesteads in between. Although the State alleged that the accused murdered the deceased on the 17 th of May 2022, none of its witnesses remembered the date when this happened. It was Tsitsi Homerai’s evidence that the deceased was her maternal uncle in that he was a brother to her maternal grandmother. She said that the accused is her uncle because he is a nephew to her maternal grandmother. Tsitsi Homerai said that on a date she could not remember but on a Monday around 5 or 6pm, she went to the deceased’s homestead to collect her vegetables which she had left there to dry in the sun. She found the deceased at home. He was with the accused. The accused was holding a pump which he had borrowed from the deceased. She exchanged greetings with the accused. The deceased said he had been trying to call her in the afternoon because he wanted her to assist him in ferrying unshelled maize from the field on the next day. The two then agreed to do the job on the next day. Tsitsi Homerai then left for her home. Tsitsi Homerai said that on the next morning around 6am she went to the deceased’s home. She started by going to the backyard of the house and fetched water from the well HH 96-24 CRB NO. 6228/23 with a bucket. She went to her home with the water. She went back to the deceased’s home in about 10 minutes. This time she went to the front of the house and saw the door slightly open. She called out to the deceased but there was no response. She assumed that he had gone to the toilet. She fetched another bucket of water from the well and rushed back to her home with the water. Upon her return for the third time, she met Precious Mhenyu who had also come to assist the deceased in ferrying maize from the field. Precious Mhenyu asked her where the deceased was and she told her that she did not know. The two of them decided to ferry the maize and commenced work. They finished the work between 7 and 8am. To their surprise the deceased had not joined them. They checked for him in the house but he was not there. Tsitsi Homerai found the deceased’s phone on the floor in the bedroom. She used it to phone the deceased’s brother and other people asking them if they had seen the deceased. She did not get a positive answer. Tsitsi Homerai and Precious Mhenyu made further checks in the rooms and noticed that the door to the wardrobe in the bedroom was open. The small bag that the deceased used to keep his money in the wardrobe was missing. The deceased’s brother then arrived with his wife. Other villagers also came to the deceased’s homestead as word spread that the deceased was missing. People had come to assist with the search. Whilst that was happening, the deceased’s brother’s wife then fetched water from the well. She commented that the water was dirty. It was murky and brownish. Tsitsi Homerai said that she had also made the same observation when she fetched water around 6am. She said that she had assumed that this was probably because the deceased had watered the garden. Tsitsi Homerai said that during the search people then noticed that one of the deceased’s slopes was near the well. A suggestion was made to check for the deceased in the well. People used a long stick from a gumtree and a rope which they put inside the water and pulled. The device hooked the deceased’s body. The police were phoned and they gave a go ahead to the villagers to retrieve the body. One Lancelot Nduna got inside the well and retrieved the body. Tsitsi Homerai observed that the deceased was wearing the other slope in one foot. The deceased’s hands were tied together at the back and his mouth was gagged with some clothes. The police then came and took the deceased’s body away. The body was later returned for burial. Tsitsi Homerai said that the police later brought the accused who was now under arrest. He made some indications and in doing so he indicated to the police where he had thrown the latch that he had removed from the deceased’s door. The latch was recovered within the homestead of the deceased in some grass. HH 96-24 CRB NO. 6228/23 Precious Mhenyu testified that she was in a love relationship with the deceased. She had last seen him on Monday in the afternoon. They had spent the day working in his maize field. She returned to her place of residence in a different village around 4pm. She last spoke to him on the phone around 6pm as she was updating him about the work, they were going to do the next morning. The work was about ferrying unshelled maize from the deceased’s field. On the next morning the witness went to the deceased’s home and found the deceased not at home, but the door was open. Whilst she was checking for the deceased, Tsitsi Homerai arrived fro