BERE J: Laye Fode Kaba (the deceased) was a Guinea
National who was residing in Mozambique but would frequent Zimbabwe to
illegally deal in diamonds from Chiadzwa area.
He was known to both accused and it is clear from the evidence led and
accepted by the court that the deceased was very close to the accused persons
whom he relied upon as his agents in the lucrative illegal diamond business.
The deceased died in mysterious
circumstances and his remains were severely mutilated when it was run over by a
locomotive train along the Mutare - Machipanda railway line. The post mortem
report exhibit 10 clearly shows that the deceased's remains had been severely
damaged at the time Doctor Simbarashe Andrew Pfumojena a medical practitioner
then based at Mutare Provincial Hospital attempted to ascertain the possible
cause of death.
From the papers filed there was no
unanimity as to when exactly the deceased lost his life. The indictment itself
suggested the date of the deceased's death as 27 November 2010
whilst the defence gave the 30 November as the likely date of death.
More confusion
followed when the evidence tendered by the State by way of admissions suggested
that the deceased's remains were run over by a train on the 29 November
2010 and by implication suggesting that as the possible date of death.
From
the evidence at its disposal the State alleged the two accused persons had
conspired to murder and indeed murdered the deceased on their way from
Mozambique to Zimbabwe using an undesignated port of entry. It was the State's
position that along the way the two accused throttled the deceased to death and
conveniently placed the deceased's remains on the Railway line in a bid to
cover up their evil and criminal act.
The two accused persons, whilst
admitting to have been the last persons to have been with the deceased denied
the charge. They both alleged that as they were coming to Zimbabwe in the
company of the deceased they were waylaid by unknown assailants and had to turn
away in different directions. They alleged it was this unfortunate incident
which cost the deceased his life. They stated the unknown people who waylaid
them were responsible for the deceased's demise.
To advance its position the State
sought to rely on the evidence tendered by way of admissions in terms of
section 314 of the code as well as the viva voce evidence of Detective Assistant
Inspector BRUCE BHUNU and PAUL JAMES.
The evidence of Paul James started
off well and was well given in evidence in chief but showed visible and quite
noticeable cracks under cross-examination. It was in his evidence in chief and
cross examination that the witness disclosed that he was involved in illegal
dealings in diamonds in this country. The second accused disclosed that he knew
the witness very well as a Mozambican National who stays in Zimbabwe
illegally. It was accused 2's unchallenged evidence that ever since he came to
Zimbabwe this witness has always been staying with the accused 2's close
relative. The accused 2 said he regarded Paul as a brother. The second accused
was asked more than once in cross-examination why Paul James would falsely
incriminate the accused person in the alleged murder of the deceased and he
stated as follows;-
" Paul feared he might be implicated in
the commission of this offence and that he
was involved in illegal diamond
dealings. Police had been informed about Paul by
Kerfala Mara, the deceased's
brother."
When the same question was repeated to the
second accused though in a slightly changed manner the second accused's
response was as follows;-
" Paul is a foreigner here and he
was safeguarding his stay with the police. I do
not know how the police had
treated him during his arrest."
It
was certainly not possible to whitewash Paul's evidence in the light of the
accused two's characterization of Paul as an illegal resident in this country.
The handcuffing of Paul by the police
in the presence of Assistant. Inspector Bhunu cannot and must not be a subject
of speculation because Paul himself said he was initially handcuffed and it was
only later that the handcuffs were removed from him. It is not usual during the
police investigations to handcuff potential State witnesses. We can only
speculate and say perhaps this conduct by the police details was calculated to
inspire fear in the mind of the witness whose position was further compromised
by his illegal dealings in diamonds as well as staying illegally in this
country.
We are satisfied that because of this Paul
was vulnerable and he could easily have been manipulated into giving evidence
tending to show the accused persons had something to do with the death of the
deceased. Indeed, the suggestion in the State summary that he had heard the
accused persons confessing to the police that they killed the deceased further
heightened our caution in dealing with his evidence. It was even more curious
that the witness could not confirm this indication when he gave his evidence.
In our view that might tend to show interference with Paul's testimony by the
police.
Assistant Inspector Bruce Bhunu's
evidence in chief in general terms was fairly given but again the cross-examination
exposed some of the unmistakable short-comings in his testimony.
The witness's emphatic denial of
having handcuffed Paul James did not portray the witness in good light. The
officer tried to correct the anomally by suggesting that the handcuffing might
have been done by the other officers as he had remained in the motor vehicle
when Paul James was initially confronted by the police at his home in Chikanga
Suburb. This
position which the State counsel urged us to accept is extremely difficult to
comprehend and we are unable to accept it. This is so because doing so would be
inconsistent with the apparent leading role played by the officer concerned in
dealing with all those people who were rounded up as suspects in connection
with this case. By his own testimony, Assistant Inspector Bhunu was the most
visible officer when accused 2's brother was picked up, the leadership hand of
the same officer is unmistakable when the accused 2 himself was picked up in Zimunya. The same
also goes with the manner in
which the first accused
and his wife Grace were picked up. The question then arises, why would the
officer have played a leading hole in rounding up all the suspects and the
accused persons in this matter and suddenly play an insignificant role in the
initial questioning of Paul James.?
The
arrest of the first accused was done in dramatic fashion in the early hours of
the 1 December 2010 and in public. It attracted the attention of quite a number
of residents from Dangamvura Suburb who could have been called to add value to
the State case as independent witnesses. No such witnesses were called and the
Court must be wary of such approach in investigations particularly so where
only the evidence of the police officers is relied upon and challenged. There
is value in embracing independent evidence because such evidence is generally
unbiased. This is so because every police officer has an interest in the
outcome of any criminal investigations carried out. Their justified assumption
is that generally, every case that is taken to court has the potential of
securing a conviction.
The submissions by counsel for
accused number 1 were quite revealing in our view when he argued that the
police could have done more in expanding their investigation base. We agree
with the observation made that having recorded, some of the deceased's personal
belongings, an attempt should have been made to involve the forensic department
of the ZRP to try and come up with more positive indicators towards the guilt
of the accused persons in this case.
The guilt of an accused person is
not a matter of one's personal conviction that the accused did what he is
alleged to have done. That conviction must have a firm base and that base must
be the tangible evidence available. A strong believe grounded in air will not
help.
With forensic evidence available, it would
have been extremely difficult for the accused persons to explain away the
existence of their finger prints or blood on the deceased's personal items.
It is not the court's intention
to embark on a deeper analysis of the evidence given by the two accused
persons. This is so because their role in criminal proceedings of this nature
is not to prove their innocence but merely to cast doubt on the State case as
no onus rest on them. In this regard
I can do no better than repeat the instructive words of
Davis A J A in
the case of Rex V M 1946 AD 1023 at
1027 where the Learned Judge remarked:-
" And I repeat,
the court does not have to believe the defence story, still less has it to
believe it in all its details, it is sufficient if it thinks that there is a
reasonable possibility that it may be substantially true"
We are satisfied that all those who
have been involved in this case ( the prosecution inclusive) share that view
that the story told by the accused was flawless. It was told with convincing
corroborative tongues. It sounded sincere and genuine. It was difficult to get
the accused to depart from their story even under well calculated and pointed
cross examination. We are satisfied that the accused must be believed when they
suggested the deceased must have died on 30 November 2010.
The State case suggested the
deceased was throttled to death. An expert witness Dr Simbarashe Andrew
Pfumojena, a medical practitioner then based at Mutare Provincial
Hospital who had the
misfortune of having to examine the badly mutilated remains of the deceased was
unable to come to the conclusion advocated by the State.
The witness also discounted the
possibility of the deceased having been killed by the moving locomotive because
of the absence of blood from the possible point of impact to the point where
the deceased's remains were eventually gathered together. The best evidence
available that could have linked the two accused persons to the deceased's
death was the two cellphone handsets found in their possession belonging to the
deceased. Both accused persons gave an explanation as to how they came to be in
possession of those handsets. That explanation could not be controverted by any
sane minded person.
Add to this, evidence abounds both
from the State and the defence that it was the accused persons who volunteered
these exhibits to the investigating officer.
The requirements of conviction via
the avenue of circumstantial evidence has been adequately explored by all the
three counsels and I need not behabour the point. Suffice it to say that from
all the bits and pieces of evidence put together by both the State and the
defence, the only reasonable interference to be drawn must be that the accused
killed the deceased.
The evidence we have does not allow us to
come to this conclusion.
As suggested by the counsel for and 2,
anything could have happened to the deceased. The possibility of him having
been murdered by unknown persons cannot be
ruled out.
Though a remote possibility death by being run over by a train cannot be
completely ruled out although one would be more inclined to accept the theory
that the deceased was murdered and had his remains placed on the railway line
to conceal the evil act.
Finally, we are satisfied as a court that it
would be a travesity to the very basic tenets of justice if in the light of all
the evidence tabled in this court the two accused persons were to be convicted
of the offence charged. We are accordingly inclined to grant them the benefit
of doubt.
Verdict - Not
guilty and acquitted.
Attorney General's Office
(Crimial division, ) for the state
Takaidza & Mubata Legal Practitioners, for 1st
accused
Maunga , Maanda &
Associates for the 2nd Accused
