Hearsay Evidence, Res Gestae, the Dying Declaration & Informants Not Presenting Oral or Corroborative Evidence on Oath

The two accused persons are brothers. They were jointly charged with the murder of Jokonia Choga Muunganirwa at Chemhanza Hill in Chevakadzi Resettlement Area in Bindura on 31 January 2010. They were alleged to have caused his death by assaulting him indiscriminately all over his body and stoning him on the ribs and head.

The State called the evidence of eight witnesses, one of which was impeached, and produced a total of 17 exhibits consisting of 5 physical and 12 documentary exhibits.

Each accused person testified on his own behalf and both called the evidence of the nurse in charge of Bindura Prison camp and produced one documentary exhibit.

The Missing Man and Common Cause Evidence

The events leading to the alleged murder started at Billabonge Farm, situated some 14km from Chevakadzi Resettlement area in Bindura.

On some undisclosed date in 2009, two aluminium pipes went missing from the farm, and, in January 2010, a further four were stolen from the same farm. The farm owner set up a team of undercover investigators consisting of employees of various grades drawn from his security guards and general workers. They were tasked to investigate blacksmiths and welders in the surrounding villages and resettlement areas who were perceived, by virtue of their craft, to be the consumers of aluminium pipes.

The first accused was a welder who used aluminium solder to repair metal utensils.

The deceased and his wife, Faith Shonhiwa, were co-opted into the team, and, in consequence, sometime in January 2010, the wife took a black pot with a finger sized hole at the bottom for repair to the second accused's homestead.

Prior to her visit, her employer and the police, in a bid to apprehend Accused 1, unsuccessfully raided his homestead. In order to allay any suspicion from the occupants of Accused 2's homestead she deliberately misled Accused 2's pregnant wife that she hailed from Kerry and not Billabonge Farm. She left the pot in her custody.

On Friday, 29 January 2010, the deceased left Billabonge Farm. He was wearing a white shirt, black pair of trousers, scotch-checked cap, black pair of gumboots, and blue work suit jacket and grey suit jacket.

He took his 12 year old nephew Edmore, destined for Kerry Farm, with him to his communal home. He was expected back on Sunday 31 January 2010. He was tasked to collect the pot from Accused 1's homestead.

That Sunday, at around 2pm, he parted company with his nephew at Kerry Farm and proceeded to Chevakadzi Resettlement area to collect the pot.

The Defence Outline of Accused 1 and the evidence of a ritual friend to the accused persons, Pias Muchambo, established that he arrived at Accused 1's tuck-shop in Chevakadzi Resettlement area. He was directed to the first accused's homestead from where he collected the black pot.

Pias Muchambo stated, that, the man who arrived at the tuck shop was wearing a yellow shirt, khaki pair of trousers, and carried a sack.

He asked for directions to Accused 1's homestead.

Accused 1, who together with Accused 2, the witness, and other patrons were drinking beer at the tuckshop, attended to the man some 4m away from Pias Muchambo.

Pias Muchambo heard the two men discussing about a pot.

Thereafter, the man took the direction to Accused 1's homestead and was soon followed by both accused persons.

The man was never seen again. He did not return to his wife at Billabonge Farm.

The missing man's family and workmates conducted a search for him but failed to find him.

On 5 February 2010, the man's wife and four security guards visited Accused 2's homestead where they found Accused 2, his wife, and mother and members of the apostolic faith celebrating the birth of a baby.

The mother berated her daughter-in-law for accepting the black pot and failing to refer the man's wife to Bhobho, the local blacksmith. She turned her ire on the man's wife for allowing herself to be used by the farm owner of Billabonge in his bid to get her sons arrested and pretending to be from Kerry Farm.

She intimated that Accused 2 had observed her movements on the day she left the pot and threatened her with harm if she ever visited her son's homestead again. She however indicated that her pot had been collected by an elderly man on the preceding Sunday but declined to describe him further.

In the result, she made a missing person report at Bindura police station on 8 February 2010.

Two detectives accompanied her to Accused 2's homestead and questioned the mother about her outburst on her last visit. The police managed to collect some aluminium pots and pieces of pipe which they took to the police station but failed to get any information on her missing husband.

It was common cause that the missing man's relatives mounted a big search for him.

On 14 and 15 February 2010, they co-opted the village head of the two accused's village, Mhedziso Jenje. They conducted the search in his village and concentrated their focus in the vicinity of Accused 1's homestead. The second accused and a group of local youths participated in the search on the second day.

The missing man was not found.

On 13 March 2010, members of the Bindura CID team consisting of Detective Sergeants Trymore Mutambi, Leonard Karemba, and Niverd Charuma descended on Accused 1's homestead. The two accused persons were not present. They took their mother and young brother, Simbarashe Ackim, to the police station for questioning and left word with the village head for the two to report at the police station.

On the next day, the two went to the village head's home before proceeding to the police station. They were detained and their mother and young brother were released.

The two accused persons were subjected to intensive interrogation by the investigating team.

On 15 March 2010, the two accused and seven detectives in plain clothes and one uniformed police officer drove in a Mitsubishi truck to Accused 1's residence and then a further 4kms to Chemhanza Hill. The truck was driven by Detective Sergeant Mutambi and the two accused were in the back pan with other detectives.

At Chemhanza Hill

The events that took place at Chemhanza Hill were hotly disputed by the two accused persons.

The investigating officer, Detective Sergeant Mutambi and Detective Sergeant Karemba's version of events was confirmed by the Village Head, Mhedziso Jenje and his aide, Black Chihumo.

The two villagers stated, that, the two accused persons did not exhibit any signs of physical discomfort and mental strain during the drive and at the scene. They did not observe any visible injuries on either of them. They appeared to be in good health.

They formed the opinion that the two acted out of their own free volition.

They were present throughout the indications and heard the words uttered by each accused person as he pointed out the different spots that were captured by the police photographer on celluloid.

The testimony of the village head and his aide was that the two accused persons led the police to Chemhanza Hill.

Accused 2 remained in the police truck while Accused 1 led the police some 20m uphill to a burnt patch of ground on which were some ashes. He pointed at the spot where a man died. He showed the stones, exhibit 7, and stick, exhibit 9 used to assault the man. He pointed out the spot where the man lay after the assaults and where his remains were burnt. He walked to the top of the hill and pointed to a cave. He then entered the cave and retrieved some bones. He emerged with a plastic bag containing bones about 7 to 8cm long which he showed to those on top of the hill and when they descended to those at the bottom of the hill where the car was parked.

The second accused also followed the same route pointing at various features along the hill slopes and rocks.

The Village Head and his aide said the second accused retrieved a flattened tin, exhibit 8, from the cleft between two rocks, a crashed black pot, exhibit 3 from on top of the hill, and pointed and picked up the stone he used, exhibit 7.

A piece of burnt rubber, which looked like the remnant of a gumboot, exhibit 4, and a piece of cloth from a worksuit were retrieved from the ashes as were somemore bones.

Each accused person picked the stone he used to hit the man and volunteered information on the part of the body where each directed his stone.

It was common cause that the photographs, exhibit 10 to 17, were all taken by Detective Sergeant Sharara.

The two detective sergeants stated how the first accused picked a 1,25m long stick he used from the ground. He was photographed, in exhibit 10, holding the 1.25m long stick, exhibit 9.

In photograph 11, he pointed to the place of killing, a burned out area with a 3 kilogramme stone and 8 pieces of bones on the ground.

In exhibit 12, he pointed to fire burnished stone weapons at the site.

He was outside the cave in exhibit 13, and, in exhibit 14, he held one of the charred bones while pointing at the remains in the cave.

In exhibit 15, he pointed to the back of the cave where the smashed pot and flattened tin were while exhibit 16 were tree stumps from which firewood was cut.

They both indicated that Accused 2 in turn pointed to the same features that were pointed out by Accused 1.

Exhibit 17 showed Accused 2 holding the stone he used and pointing to the stumps of cut firewood that was used to burn the remains.

The photographs did not reveal any visible signs of assault on each of the accused persons.

Detective Sergeant Karemba indicated, under cross examination, that, the missing man's family called the aid of a spirit medium in their search of the missing man.

He was adamant that the accused, and not the spirit medium, led them to the Chemhanza Hill where the recoveries were made....,.

The second accused categorically denied any knowledge of the deceased.

He participated in the search of the missing man together with other youths. The missing man's family was led by a spirit medium, which focused the search around the first accused's garden and homestead.

He believed that the spirit medium led the police to Chemhanza Hill....,.

Accused 2 suggested that a spirit medium had located the scene of crime before the date on which they went for indications and suspected that the police were coming from the Chemhanza Hill on the day they arrested his mother and brother.

His suspicions were not backed by any concrete evidence.

His counsel did not suggest this as a probability to the two detectives and wife of the missing husband when they were on the witness stand. He did not call his mother or brother, or any other witness, to verify his suspicions.

We found it ludicrous that the spirit medium that had led the searchers on a wild goose chase on 14 and 15 February 2010 around Accused 1's homestead and village would have developed such prescient powers of discovery a month later.

We would have expected a spirit medium endowed with such powers to have led the search party to Chemhanza Hill from the very beginning.

Rather, the testimony of the wife, Pias Muchambo, the Village Head, and his aide, was that the missing husband's family visited the scene after the indications to collect the ashes for burial.

We did not believe them when they averred that the police detectives led them to Chemhanza Hill.

We find that they pointed out Chemhanza Hill to the detectives.

Approach re: Language of Record

The two accused persons are brothers. They were jointly charged with the murder of Jokonia Choga Muunganirwa at Chemhanza Hill in Chevakadzi Resettlement Area in Bindura on 31 January 2010. They were alleged to have caused his death by assaulting him indiscriminately all over his body and stoning him on the ribs and head.

The State called the evidence of eight witnesses, one of which was impeached, and produced a total of 17 exhibits consisting of 5 physical and 12 documentary exhibits.

Each accused person testified on his own behalf and both called the evidence of the nurse in charge of Bindura Prison camp and produced one documentary exhibit.

The Missing Man and Common Cause Evidence

The events leading to the alleged murder started at Billabonge Farm, situated some 14km from Chevakadzi Resettlement area in Bindura.

On some undisclosed date in 2009, two aluminium pipes went missing from the farm, and, in January 2010, a further four were stolen from the same farm. The farm owner set up a team of undercover investigators consisting of employees of various grades drawn from his security guards and general workers. They were tasked to investigate blacksmiths and welders in the surrounding villages and resettlement areas who were perceived, by virtue of their craft, to be the consumers of aluminium pipes.

The first accused was a welder who used aluminium solder to repair metal utensils.

The deceased and his wife, Faith Shonhiwa, were co-opted into the team, and, in consequence, sometime in January 2010, the wife took a black pot with a finger sized hole at the bottom for repair to the second accused's homestead.

Prior to her visit, her employer and the police, in a bid to apprehend Accused 1, unsuccessfully raided his homestead. In order to allay any suspicion from the occupants of Accused 2's homestead she deliberately misled Accused 2's pregnant wife that she hailed from Kerry and not Billabonge Farm. She left the pot in her custody.

On Friday, 29 January 2010, the deceased left Billabonge Farm. He was wearing a white shirt, black pair of trousers, scotch-checked cap, black pair of gumboots, and blue work suit jacket and grey suit jacket.

He took his 12 year old nephew Edmore, destined for Kerry Farm, with him to his communal home. He was expected back on Sunday 31 January 2010. He was tasked to collect the pot from Accused 1's homestead.

That Sunday, at around 2pm, he parted company with his nephew at Kerry Farm and proceeded to Chevakadzi Resettlement area to collect the pot.

The Defence Outline of Accused 1 and the evidence of a ritual friend to the accused persons, Pias Muchambo, established that he arrived at Accused 1's tuck-shop in Chevakadzi Resettlement area. He was directed to the first accused's homestead from where he collected the black pot.

Pias Muchambo stated, that, the man who arrived at the tuck shop was wearing a yellow shirt, khaki pair of trousers, and carried a sack.

He asked for directions to Accused 1's homestead.

Accused 1, who together with Accused 2, the witness, and other patrons were drinking beer at the tuckshop, attended to the man some 4m away from Pias Muchambo.

Pias Muchambo heard the two men discussing about a pot.

Thereafter, the man took the direction to Accused 1's homestead and was soon followed by both accused persons.

The man was never seen again. He did not return to his wife at Billabonge Farm.

The missing man's family and workmates conducted a search for him but failed to find him.

On 5 February 2010, the man's wife and four security guards visited Accused 2's homestead where they found Accused 2, his wife, and mother and members of the apostolic faith celebrating the birth of a baby.

The mother berated her daughter-in-law for accepting the black pot and failing to refer the man's wife to Bhobho, the local blacksmith. She turned her ire on the man's wife for allowing herself to be used by the farm owner of Billabonge in his bid to get her sons arrested and pretending to be from Kerry Farm.

She intimated that Accused 2 had observed her movements on the day she left the pot and threatened her with harm if she ever visited her son's homestead again. She however indicated that her pot had been collected by an elderly man on the preceding Sunday but declined to describe him further.

In the result, she made a missing person report at Bindura police station on 8 February 2010.

Two detectives accompanied her to Accused 2's homestead and questioned the mother about her outburst on her last visit. The police managed to collect some aluminium pots and pieces of pipe which they took to the police station but failed to get any information on her missing husband.

It was common cause that the missing man's relatives mounted a big search for him.

On 14 and 15 February 2010, they co-opted the village head of the two accused's village, Mhedziso Jenje. They conducted the search in his village and concentrated their focus in the vicinity of Accused 1's homestead. The second accused and a group of local youths participated in the search on the second day.

The missing man was not found.

On 13 March 2010, members of the Bindura CID team consisting of Detective Sergeants Trymore Mutambi, Leonard Karemba, and Niverd Charuma descended on Accused 1's homestead. The two accused persons were not present. They took their mother and young brother, Simbarashe Ackim, to the police station for questioning and left word with the village head for the two to report at the police station.

On the next day, the two went to the village head's home before proceeding to the police station. They were detained and their mother and young brother were released.

The two accused persons were subjected to intensive interrogation by the investigating team.

On 15 March 2010, the two accused and seven detectives in plain clothes and one uniformed police officer drove in a Mitsubishi truck to Accused 1's residence and then a further 4kms to Chemhanza Hill. The truck was driven by Detective Sergeant Mutambi and the two accused were in the back pan with other detectives.

At Chemhanza Hill

The events that took place at Chemhanza Hill were hotly disputed by the two accused persons.

The investigating officer, Detective Sergeant Mutambi and Detective Sergeant Karemba's version of events was confirmed by the Village Head, Mhedziso Jenje and his aide, Black Chihumo.

The two villagers stated, that, the two accused persons did not exhibit any signs of physical discomfort and mental strain during the drive and at the scene. They did not observe any visible injuries on either of them. They appeared to be in good health.

They formed the opinion that the two acted out of their own free volition.

They were present throughout the indications and heard the words uttered by each accused person as he pointed out the different spots that were captured by the police photographer on celluloid.

The testimony of the village head and his aide was that the two accused persons led the police to Chemhanza Hill.

Accused 2 remained in the police truck while Accused 1 led the police some 20m uphill to a burnt patch of ground on which were some ashes. He pointed at the spot where a man died. He showed the stones, exhibit 7, and stick, exhibit 9 used to assault the man. He pointed out the spot where the man lay after the assaults and where his remains were burnt. He walked to the top of the hill and pointed to a cave. He then entered the cave and retrieved some bones. He emerged with a plastic bag containing bones about 7 to 8cm long which he showed to those on top of the hill and when they descended to those at the bottom of the hill where the car was parked.

The second accused also followed the same route pointing at various features along the hill slopes and rocks.

The Village Head and his aide said the second accused retrieved a flattened tin, exhibit 8, from the cleft between two rocks, a crashed black pot, exhibit 3 from on top of the hill, and pointed and picked up the stone he used, exhibit 7.

A piece of burnt rubber, which looked like the remnant of a gumboot, exhibit 4, and a piece of cloth from a worksuit were retrieved from the ashes as were somemore bones.

Each accused person picked the stone he used to hit the man and volunteered information on the part of the body where each directed his stone.

It was common cause that the photographs, exhibit 10 to 17, were all taken by Detective Sergeant Sharara.

The two detective sergeants stated how the first accused picked a 1,25m long stick he used from the ground. He was photographed, in exhibit 10, holding the 1.25m long stick, exhibit 9.

In photograph 11, he pointed to the place of killing, a burned out area with a 3 kilogramme stone and 8 pieces of bones on the ground.

In exhibit 12, he pointed to fire burnished stone weapons at the site.

He was outside the cave in exhibit 13, and, in exhibit 14, he held one of the charred bones while pointing at the remains in the cave.

In exhibit 15, he pointed to the back of the cave where the smashed pot and flattened tin were while exhibit 16 were tree stumps from which firewood was cut.

They both indicated that Accused 2 in turn pointed to the same features that were pointed out by Accused 1.

Exhibit 17 showed Accused 2 holding the stone he used and pointing to the stumps of cut firewood that was used to burn the remains.

The photographs did not reveal any visible signs of assault on each of the accused persons.

Detective Sergeant Karemba indicated, under cross examination, that, the missing man's family called the aid of a spirit medium in their search of the missing man.

He was adamant that the accused, and not the spirit medium, led them to the Chemhanza Hill where the recoveries were made.

The evidence of Dr Lawrence Hlatwayo of Bindura Hospital established that the charred bones were human bones and not animal bones.

He indicated, that, they were thicker than bones of such animals as monkeys and baboons that are regarded as second cousins to humans, designed as they were to withstand gravity in the upright posture.

He identified the phalange, tibia, and fibula and scapula bones that constitute the human hand and arm from the remains that were submitted to him for post-mortem.

In the absence of DNA testing and forensic equipment, he was unable to establish the cause of death from the charred remains he saw and whose remains they were notwithstanding the suggestive history that he extrapolated from the police documents attached to the request for the postmortem.

Confirmed Warned and Cautioned Statements

The first accused's confirmed warned and cautioned statement together with the record of the proceedings was produced as exhibit 1 while that of Accused 2 and its record was produced as exhibit 2.

They were recorded by Detective Sergeant Karemba and witnessed by Detective Sergeant Charuma on 16 March 2010, the day following the indications.

On 17 March 2010, an interpreter based at Bindura Magistrates Court confirmed the accuracy of the interpretations.

They were both confirmed by a magistrate at Bindura Magistrates Court on 18 March 2010.

Subpoena, Witness Summons or Compellable Witness, Subpoena Duces Tecum and the Claim of Privilege

The two accused persons are brothers. They were jointly charged with the murder of Jokonia Choga Muunganirwa at Chemhanza Hill in Chevakadzi Resettlement Area in Bindura on 31 January 2010. They were alleged to have caused his death by assaulting him indiscriminately all over his body and stoning him on the ribs and head.

The State called the evidence of eight witnesses, one of which was impeached, and produced a total of 17 exhibits consisting of 5 physical and 12 documentary exhibits.

Each accused person testified on his own behalf and both called the evidence of the nurse in charge of Bindura Prison camp and produced one documentary exhibit.

The Missing Man and Common Cause Evidence

The events leading to the alleged murder started at Billabonge Farm, situated some 14km from Chevakadzi Resettlement area in Bindura.

On some undisclosed date in 2009, two aluminium pipes went missing from the farm, and, in January 2010, a further four were stolen from the same farm. The farm owner set up a team of undercover investigators consisting of employees of various grades drawn from his security guards and general workers. They were tasked to investigate blacksmiths and welders in the surrounding villages and resettlement areas who were perceived, by virtue of their craft, to be the consumers of aluminium pipes.

The first accused was a welder who used aluminium solder to repair metal utensils.

The deceased and his wife, Faith Shonhiwa, were co-opted into the team, and, in consequence, sometime in January 2010, the wife took a black pot with a finger sized hole at the bottom for repair to the second accused's homestead.

Prior to her visit, her employer and the police, in a bid to apprehend Accused 1, unsuccessfully raided his homestead. In order to allay any suspicion from the occupants of Accused 2's homestead she deliberately misled Accused 2's pregnant wife that she hailed from Kerry and not Billabonge Farm. She left the pot in her custody.

On Friday, 29 January 2010, the deceased left Billabonge Farm. He was wearing a white shirt, black pair of trousers, scotch-checked cap, black pair of gumboots, and blue work suit jacket and grey suit jacket.

He took his 12 year old nephew Edmore, destined for Kerry Farm, with him to his communal home. He was expected back on Sunday 31 January 2010. He was tasked to collect the pot from Accused 1's homestead.

That Sunday, at around 2pm, he parted company with his nephew at Kerry Farm and proceeded to Chevakadzi Resettlement area to collect the pot.

The Defence Outline of Accused 1 and the evidence of a ritual friend to the accused persons, Pias Muchambo, established that he arrived at Accused 1's tuck-shop in Chevakadzi Resettlement area. He was directed to the first accused's homestead from where he collected the black pot.

Pias Muchambo stated, that, the man who arrived at the tuck shop was wearing a yellow shirt, khaki pair of trousers, and carried a sack.

He asked for directions to Accused 1's homestead.

Accused 1, who together with Accused 2, the witness, and other patrons were drinking beer at the tuckshop, attended to the man some 4m away from Pias Muchambo.

Pias Muchambo heard the two men discussing about a pot.

Thereafter, the man took the direction to Accused 1's homestead and was soon followed by both accused persons.

The man was never seen again. He did not return to his wife at Billabonge Farm.

The missing man's family and workmates conducted a search for him but failed to find him.

On 5 February 2010, the man's wife and four security guards visited Accused 2's homestead where they found Accused 2, his wife, and mother and members of the apostolic faith celebrating the birth of a baby.

The mother berated her daughter-in-law for accepting the black pot and failing to refer the man's wife to Bhobho, the local blacksmith. She turned her ire on the man's wife for allowing herself to be used by the farm owner of Billabonge in his bid to get her sons arrested and pretending to be from Kerry Farm.

She intimated that Accused 2 had observed her movements on the day she left the pot and threatened her with harm if she ever visited her son's homestead again. She however indicated that her pot had been collected by an elderly man on the preceding Sunday but declined to describe him further.

In the result, she made a missing person report at Bindura police station on 8 February 2010.

Two detectives accompanied her to Accused 2's homestead and questioned the mother about her outburst on her last visit. The police managed to collect some aluminium pots and pieces of pipe which they took to the police station but failed to get any information on her missing husband.

It was common cause that the missing man's relatives mounted a big search for him.

On 14 and 15 February 2010, they co-opted the village head of the two accused's village, Mhedziso Jenje. They conducted the search in his village and concentrated their focus in the vicinity of Accused 1's homestead. The second accused and a group of local youths participated in the search on the second day.

The missing man was not found.

On 13 March 2010, members of the Bindura CID team consisting of Detective Sergeants Trymore Mutambi, Leonard Karemba, and Niverd Charuma descended on Accused 1's homestead. The two accused persons were not present. They took their mother and young brother, Simbarashe Ackim, to the police station for questioning and left word with the village head for the two to report at the police station.

On the next day, the two went to the village head's home before proceeding to the police station. They were detained and their mother and young brother were released.

The two accused persons were subjected to intensive interrogation by the investigating team.

On 15 March 2010, the two accused and seven detectives in plain clothes and one uniformed police officer drove in a Mitsubishi truck to Accused 1's residence and then a further 4kms to Chemhanza Hill. The truck was driven by Detective Sergeant Mutambi and the two accused were in the back pan with other detectives.

At Chemhanza Hill

The events that took place at Chemhanza Hill were hotly disputed by the two accused persons.

The investigating officer, Detective Sergeant Mutambi and Detective Sergeant Karemba's version of events was confirmed by the Village Head, Mhedziso Jenje and his aide, Black Chihumo.

The two villagers stated, that, the two accused persons did not exhibit any signs of physical discomfort and mental strain during the drive and at the scene. They did not observe any visible injuries on either of them. They appeared to be in good health.

They formed the opinion that the two acted out of their own free volition.

They were present throughout the indications and heard the words uttered by each accused person as he pointed out the different spots that were captured by the police photographer on celluloid.

The testimony of the village head and his aide was that the two accused persons led the police to Chemhanza Hill.

Accused 2 remained in the police truck while Accused 1 led the police some 20m uphill to a burnt patch of ground on which were some ashes. He pointed at the spot where a man died. He showed the stones, exhibit 7, and stick, exhibit 9 used to assault the man. He pointed out the spot where the man lay after the assaults and where his remains were burnt. He walked to the top of the hill and pointed to a cave. He then entered the cave and retrieved some bones. He emerged with a plastic bag containing bones about 7 to 8cm long which he showed to those on top of the hill and when they descended to those at the bottom of the hill where the car was parked.

The second accused also followed the same route pointing at various features along the hill slopes and rocks.

The Village Head and his aide said the second accused retrieved a flattened tin, exhibit 8, from the cleft between two rocks, a crashed black pot, exhibit 3 from on top of the hill, and pointed and picked up the stone he used, exhibit 7.

A piece of burnt rubber, which looked like the remnant of a gumboot, exhibit 4, and a piece of cloth from a worksuit were retrieved from the ashes as were somemore bones.

Each accused person picked the stone he used to hit the man and volunteered information on the part of the body where each directed his stone.

It was common cause that the photographs, exhibit 10 to 17, were all taken by Detective Sergeant Sharara.

The two detective sergeants stated how the first accused picked a 1,25m long stick he used from the ground. He was photographed, in exhibit 10, holding the 1.25m long stick, exhibit 9.

In photograph 11, he pointed to the place of killing, a burned out area with a 3 kilogramme stone and 8 pieces of bones on the ground.

In exhibit 12, he pointed to fire burnished stone weapons at the site.

He was outside the cave in exhibit 13, and, in exhibit 14, he held one of the charred bones while pointing at the remains in the cave.

In exhibit 15, he pointed to the back of the cave where the smashed pot and flattened tin were while exhibit 16 were tree stumps from which firewood was cut.

They both indicated that Accused 2 in turn pointed to the same features that were pointed out by Accused 1.

Exhibit 17 showed Accused 2 holding the stone he used and pointing to the stumps of cut firewood that was used to burn the remains.

The photographs did not reveal any visible signs of assault on each of the accused persons.

Detective Sergeant Karemba indicated, under cross examination, that, the missing man's family called the aid of a spirit medium in their search of the missing man.

He was adamant that the accused, and not the spirit medium, led them to the Chemhanza Hill where the recoveries were made.

The evidence of Dr Lawrence Hlatwayo of Bindura Hospital established that the charred bones were human bones and not animal bones.

He indicated, that, they were thicker than bones of such animals as monkeys and baboons that are regarded as second cousins to humans, designed as they were to withstand gravity in the upright posture.

He identified the phalange, tibia, and fibula and scapula bones that constitute the human hand and arm from the remains that were submitted to him for post-mortem.

In the absence of DNA testing and forensic equipment, he was unable to establish the cause of death from the charred remains he saw and whose remains they were notwithstanding the suggestive history that he extrapolated from the police documents attached to the request for the postmortem.

Confirmed Warned and Cautioned Statements

The first accused's confirmed warned and cautioned statement together with the record of the proceedings was produced as exhibit 1 while that of Accused 2 and its record was produced as exhibit 2.

They were recorded by Detective Sergeant Karemba and witnessed by Detective Sergeant Charuma on 16 March 2010, the day following the indications.

On 17 March 2010, an interpreter based at Bindura Magistrates Court confirmed the accuracy of the interpretations.

They were both confirmed by a magistrate at Bindura Magistrates Court on 18 March 2010.

In exhibit 1, the first accused admitted to murdering the missing man.

He was wearing a white shirt, blue work-suit tied to his waist and a black pair of trousers and black gumboots, a khaki cap and had a sack with loose tobacco and half bar of soap.

He regarded him as the spy from Billabonge Farm on a mission to entrap him for the theft of aluminium pipes.

The man pretended to be returning to Nyamaropa but took the Billabonge road after Accused 1 went out of sight.

He related the weapons he used on the missing man and the injuries he sustained.

He stated how the missing man reached Chemhanza Hill and how and when he died.

He described how the missing man came to be a pile of bones and ashes on the hill slopes and in the cave.

He stated what became of his pot.

The first accused indicated, during confirmation proceedings, that, he sustained injuries on his ankles from leg irons and on his back from assaults perpetrated by members of the CID.

The magistrate, nonetheless, confirmed the statement after the accused maintained that these assaults had not influenced him to make the statement.

The second accused gave a more detailed statement.

He admitted the charge. His confession followed the general outline of his co-accused. He described where and with whom he found the missing man and his attire of a white shirt, grey pair of trousers, and black gumboots. He related his weapons of choice and the injuries sustained by the missing man. He stated how he died and the fate that befell his remains and pot.

The two detective sergeants were subjected to searching cross-examination.

They disputed ever subjecting the accused to torture and assault but admitted conducting intensive interrogation which elicited contradictory versions from the two.

They averred, that, the invitation extended to the Village Head and his aide for indications was in accordance with the tenets of community policing which encouraged the police to involve local leaders in policing areas under their jurisdiction.

They disputed being present in court when the warned and cautioned statements were confirmed.

The Versions of the Accused Persons

In his Defence Outline, the first accused stated, that, the man who came to collect the pot went to his homestead while he went to protect his crops from marauding baboons.

He averred that both the indications and confirmed warned and cautioned statement were induced by physical assaults and torture. He described how the detectives assaulted him and his co-accused on the back and under his feet with baton sticks, planks, and open hands and on his testicles with rubber bands causing them to swell and pass blood stained urine for a period of three (3) weeks for which he was treated at Parirenyatwa Hospital.

In his evidence in chief, he intimated that he spent the whole of that Sunday in his field and was not at the tuck shop.

He voluntarily surrendered himself to the police, was detained, and intimidated by Detective Sergeants Mutambi, Karemba and Charuma in a room with blood-stained walls.

He was then placed in leg irons and ordered to squat. A metal rod was placed under his knees. He was lifted and placed on a table and hanged upside down. He was swung on this bridge and hit under his feet and back. He was shot on his testicles with rubber bands.

The ordeal lasted for about 45 minutes.

He was dumped in the holding cells. His co-accused was taken to the same room and underwent the same ordeal.

He was treated for leg and back injuries at Bindura Prison.

Thereafter, he signed the document that was placed before him without any further ado.

The court record from Bindura Magistrate Court shows, that, they were both placed on initial remand and advised to apply for bail at the High Court on 17 March 2010 and did not register any complaints against the police. They were remanded in prison custody from where they returned to court on the following day for the confirmation of their statements. He did not advise the magistrate of his ordeal in fear of the threats that had been issued against him but admitted making the statements of his own free will.

In regards to the indications, he intimated that he was forced to pose for the pictures in exhibits 10 to 16 by the photographer and that exhibit 3, the smashed pot photographed in exhibit 15 was run over at and collected from his homestead and planted on the hill by the police on the day they went for indications.

He said he was assaulted during the indications.

He averred the deceased's wife, had, on an earlier occasion, rejected exhibit 3 as her pot.

He conceded that he was at the tuckshop when the man described by Pias Muchambo came but identified him as a Mr Foya of Chemhanza Village. He had a dispute with him over the length of a hose pipe he had purchased from him, which was resolved by his co-accused who took them to his garden to measure it....,.

We found Accused 1's version, that he talked to Mr Foya about a hosepipe, an afterthought. He mentioned it for the first time in his evidence-in-chief and even then with much hesitation and stuttering. It did not form part of his instructions to his legal practitioner and was thus not canvassed with Pias Muchambo in cross examination.

Findings of Fact re: Witness Testimony, Candidness with the Court and Deceptive or Misleading Evidence

We found the testimony of the missing man's wife concerning her interactions with Accused 2, which was not controverted, credible....,.

The evidence of Pias Muchambo confirmed that the man who came to the tuck-shop looking for the first accused was her husband.

We were satisfied, that, notwithstanding that Pias Muchambo was drinking alcohol on that day; he established that the discussion between the first accused and the man revolved around a pot and not a hosepipe.

The two words do not rhyme.

We found Accused 1's version, that he talked to Mr Foya about a hosepipe, an afterthought. He mentioned it for the first time in his evidence-in-chief and even then with much hesitation and stuttering. It did not form part of his instructions to his legal practitioner and was thus not canvassed with Pias Muchambo in cross examination....,.

The Village Head and his aide gave their evidence well. They were not shaken in cross-examination....,.

In our view, there were aspects of the evidence of both Detective Sergeant Mutambi and Karemba which were credible and others which were disquieting.

Police Investigations, Arrest, Search and Seizure With or Without a Warrant re: Approach

The two accused persons are brothers. They were jointly charged with the murder of Jokonia Choga Muunganirwa at Chemhanza Hill in Chevakadzi Resettlement Area in Bindura on 31 January 2010. They were alleged to have caused his death by assaulting him indiscriminately all over his body and stoning him on the ribs and head.

The State called the evidence of eight witnesses, one of which was impeached, and produced a total of 17 exhibits consisting of 5 physical and 12 documentary exhibits.

Each accused person testified on his own behalf and both called the evidence of the nurse in charge of Bindura Prison camp and produced one documentary exhibit.

The Missing Man and Common Cause Evidence

The events leading to the alleged murder started at Billabonge Farm, situated some 14km from Chevakadzi Resettlement area in Bindura.

On some undisclosed date in 2009, two aluminium pipes went missing from the farm, and, in January 2010, a further four were stolen from the same farm. The farm owner set up a team of undercover investigators consisting of employees of various grades drawn from his security guards and general workers. They were tasked to investigate blacksmiths and welders in the surrounding villages and resettlement areas who were perceived, by virtue of their craft, to be the consumers of aluminium pipes.

The first accused was a welder who used aluminium solder to repair metal utensils.

The deceased and his wife, Faith Shonhiwa, were co-opted into the team, and, in consequence, sometime in January 2010, the wife took a black pot with a finger sized hole at the bottom for repair to the second accused's homestead.

Prior to her visit, her employer and the police, in a bid to apprehend Accused 1, unsuccessfully raided his homestead. In order to allay any suspicion from the occupants of Accused 2's homestead she deliberately misled Accused 2's pregnant wife that she hailed from Kerry and not Billabonge Farm. She left the pot in her custody.

On Friday, 29 January 2010, the deceased left Billabonge Farm. He was wearing a white shirt, black pair of trousers, scotch-checked cap, black pair of gumboots, and blue work suit jacket and grey suit jacket.

He took his 12 year old nephew Edmore, destined for Kerry Farm, with him to his communal home. He was expected back on Sunday 31 January 2010. He was tasked to collect the pot from Accused 1's homestead.

That Sunday, at around 2pm, he parted company with his nephew at Kerry Farm and proceeded to Chevakadzi Resettlement area to collect the pot.

The Defence Outline of Accused 1 and the evidence of a ritual friend to the accused persons, Pias Muchambo, established that he arrived at Accused 1's tuck-shop in Chevakadzi Resettlement area. He was directed to the first accused's homestead from where he collected the black pot.

Pias Muchambo stated, that, the man who arrived at the tuck shop was wearing a yellow shirt, khaki pair of trousers, and carried a sack.

He asked for directions to Accused 1's homestead.

Accused 1, who together with Accused 2, the witness, and other patrons were drinking beer at the tuckshop, attended to the man some 4m away from Pias Muchambo.

Pias Muchambo heard the two men discussing about a pot.

Thereafter, the man took the direction to Accused 1's homestead and was soon followed by both accused persons.

The man was never seen again. He did not return to his wife at Billabonge Farm.

The missing man's family and workmates conducted a search for him but failed to find him.

On 5 February 2010, the man's wife and four security guards visited Accused 2's homestead where they found Accused 2, his wife, and mother and members of the apostolic faith celebrating the birth of a baby.

The mother berated her daughter-in-law for accepting the black pot and failing to refer the man's wife to Bhobho, the local blacksmith. She turned her ire on the man's wife for allowing herself to be used by the farm owner of Billabonge in his bid to get her sons arrested and pretending to be from Kerry Farm.

She intimated that Accused 2 had observed her movements on the day she left the pot and threatened her with harm if she ever visited her son's homestead again. She however indicated that her pot had been collected by an elderly man on the preceding Sunday but declined to describe him further.

In the result, she made a missing person report at Bindura police station on 8 February 2010.

Two detectives accompanied her to Accused 2's homestead and questioned the mother about her outburst on her last visit. The police managed to collect some aluminium pots and pieces of pipe which they took to the police station but failed to get any information on her missing husband.

It was common cause that the missing man's relatives mounted a big search for him.

On 14 and 15 February 2010, they co-opted the village head of the two accused's village, Mhedziso Jenje. They conducted the search in his village and concentrated their focus in the vicinity of Accused 1's homestead. The second accused and a group of local youths participated in the search on the second day.

The missing man was not found.

On 13 March 2010, members of the Bindura CID team consisting of Detective Sergeants Trymore Mutambi, Leonard Karemba, and Niverd Charuma descended on Accused 1's homestead. The two accused persons were not present. They took their mother and young brother, Simbarashe Ackim, to the police station for questioning and left word with the village head for the two to report at the police station.

On the next day, the two went to the village head's home before proceeding to the police station. They were detained and their mother and young brother were released....,.

In our view, there were aspects of the evidence of both Detective Sergeant Mutambi and Karemba which were credible and others which were disquieting....,.

We were satisfied by the reasons they proffered for arresting the two accused persons parents, but not the young brother, when their target all along were the two accused persons.

The father was purportedly arrested on suspicion that he knew something because he was violent towards the detectives while the mother may have been arrested for the comments she made to the missing man's wife on 5 February 2010.

The young brother was ostensibly arrested to ascertain what he knew about the missing man.

We believed that their release, soon after the two accused person surrendered themselves, suggested that they were used as human bait.

It was therefore improper for the detectives to employ such illegal and underhand investigative techniques.

Warned and Cautioned Statements, Indications, Evidence Aliunde & Presumption of Clarity of Events Nearer Date of Event

The two accused persons are brothers. They were jointly charged with the murder of Jokonia Choga Muunganirwa at Chemhanza Hill in Chevakadzi Resettlement Area in Bindura on 31 January 2010. They were alleged to have caused his death by assaulting him indiscriminately all over his body and stoning him on the ribs and head.

The State called the evidence of eight witnesses, one of which was impeached, and produced a total of 17 exhibits consisting of 5 physical and 12 documentary exhibits.

Each accused person testified on his own behalf and both called the evidence of the nurse in charge of Bindura Prison camp and produced one documentary exhibit.

The Missing Man and Common Cause Evidence

The events leading to the alleged murder started at Billabonge Farm, situated some 14km from Chevakadzi Resettlement area in Bindura.

On some undisclosed date in 2009, two aluminium pipes went missing from the farm, and, in January 2010, a further four were stolen from the same farm. The farm owner set up a team of undercover investigators consisting of employees of various grades drawn from his security guards and general workers. They were tasked to investigate blacksmiths and welders in the surrounding villages and resettlement areas who were perceived, by virtue of their craft, to be the consumers of aluminium pipes.

The first accused was a welder who used aluminium solder to repair metal utensils.

The deceased and his wife, Faith Shonhiwa, were co-opted into the team, and, in consequence, sometime in January 2010, the wife took a black pot with a finger sized hole at the bottom for repair to the second accused's homestead.

Prior to her visit, her employer and the police, in a bid to apprehend Accused 1, unsuccessfully raided his homestead. In order to allay any suspicion from the occupants of Accused 2's homestead she deliberately misled Accused 2's pregnant wife that she hailed from Kerry and not Billabonge Farm. She left the pot in her custody.

On Friday, 29 January 2010, the deceased left Billabonge Farm. He was wearing a white shirt, black pair of trousers, scotch-checked cap, black pair of gumboots, and blue work suit jacket and grey suit jacket.

He took his 12 year old nephew Edmore, destined for Kerry Farm, with him to his communal home. He was expected back on Sunday 31 January 2010. He was tasked to collect the pot from Accused 1's homestead.

That Sunday, at around 2pm, he parted company with his nephew at Kerry Farm and proceeded to Chevakadzi Resettlement area to collect the pot.

The Defence Outline of Accused 1 and the evidence of a ritual friend to the accused persons, Pias Muchambo, established that he arrived at Accused 1's tuck-shop in Chevakadzi Resettlement area. He was directed to the first accused's homestead from where he collected the black pot.

Pias Muchambo stated, that, the man who arrived at the tuck shop was wearing a yellow shirt, khaki pair of trousers, and carried a sack.

He asked for directions to Accused 1's homestead.

Accused 1, who together with Accused 2, the witness, and other patrons were drinking beer at the tuckshop, attended to the man some 4m away from Pias Muchambo.

Pias Muchambo heard the two men discussing about a pot.

Thereafter, the man took the direction to Accused 1's homestead and was soon followed by both accused persons.

The man was never seen again. He did not return to his wife at Billabonge Farm.

The missing man's family and workmates conducted a search for him but failed to find him.

On 5 February 2010, the man's wife and four security guards visited Accused 2's homestead where they found Accused 2, his wife, and mother and members of the apostolic faith celebrating the birth of a baby.

The mother berated her daughter-in-law for accepting the black pot and failing to refer the man's wife to Bhobho, the local blacksmith. She turned her ire on the man's wife for allowing herself to be used by the farm owner of Billabonge in his bid to get her sons arrested and pretending to be from Kerry Farm.

She intimated that Accused 2 had observed her movements on the day she left the pot and threatened her with harm if she ever visited her son's homestead again. She however indicated that her pot had been collected by an elderly man on the preceding Sunday but declined to describe him further.

In the result, she made a missing person report at Bindura police station on 8 February 2010.

Two detectives accompanied her to Accused 2's homestead and questioned the mother about her outburst on her last visit. The police managed to collect some aluminium pots and pieces of pipe which they took to the police station but failed to get any information on her missing husband.

It was common cause that the missing man's relatives mounted a big search for him.

On 14 and 15 February 2010, they co-opted the village head of the two accused's village, Mhedziso Jenje. They conducted the search in his village and concentrated their focus in the vicinity of Accused 1's homestead. The second accused and a group of local youths participated in the search on the second day.

The missing man was not found.

On 13 March 2010, members of the Bindura CID team consisting of Detective Sergeants Trymore Mutambi, Leonard Karemba, and Niverd Charuma descended on Accused 1's homestead. The two accused persons were not present. They took their mother and young brother, Simbarashe Ackim, to the police station for questioning and left word with the village head for the two to report at the police station.

On the next day, the two went to the village head's home before proceeding to the police station. They were detained and their mother and young brother were released.

The two accused persons were subjected to intensive interrogation by the investigating team.

On 15 March 2010, the two accused and seven detectives in plain clothes and one uniformed police officer drove in a Mitsubishi truck to Accused 1's residence and then a further 4kms to Chemhanza Hill. The truck was driven by Detective Sergeant Mutambi and the two accused were in the back pan with other detectives.

At Chemhanza Hill

The events that took place at Chemhanza Hill were hotly disputed by the two accused persons.

The investigating officer, Detective Sergeant Mutambi and Detective Sergeant Karemba's version of events was confirmed by the Village Head, Mhedziso Jenje and his aide, Black Chihumo.

The two villagers stated, that, the two accused persons did not exhibit any signs of physical discomfort and mental strain during the drive and at the scene. They did not observe any visible injuries on either of them. They appeared to be in good health.

They formed the opinion that the two acted out of their own free volition.

They were present throughout the indications and heard the words uttered by each accused person as he pointed out the different spots that were captured by the police photographer on celluloid.

The testimony of the village head and his aide was that the two accused persons led the police to Chemhanza Hill.

Accused 2 remained in the police truck while Accused 1 led the police some 20m uphill to a burnt patch of ground on which were some ashes. He pointed at the spot where a man died. He showed the stones, exhibit 7, and stick, exhibit 9 used to assault the man. He pointed out the spot where the man lay after the assaults and where his remains were burnt. He walked to the top of the hill and pointed to a cave. He then entered the cave and retrieved some bones. He emerged with a plastic bag containing bones about 7 to 8cm long which he showed to those on top of the hill and when they descended to those at the bottom of the hill where the car was parked.

The second accused also followed the same route pointing at various features along the hill slopes and rocks.

The Village Head and his aide said the second accused retrieved a flattened tin, exhibit 8, from the cleft between two rocks, a crashed black pot, exhibit 3 from on top of the hill, and pointed and picked up the stone he used, exhibit 7.

A piece of burnt rubber, which looked like the remnant of a gumboot, exhibit 4, and a piece of cloth from a worksuit were retrieved from the ashes as were somemore bones.

Each accused person picked the stone he used to hit the man and volunteered information on the part of the body where each directed his stone.

It was common cause that the photographs, exhibit 10 to 17, were all taken by Detective Sergeant Sharara.

The two detective sergeants stated how the first accused picked a 1,25m long stick he used from the ground. He was photographed, in exhibit 10, holding the 1.25m long stick, exhibit 9.

In photograph 11, he pointed to the place of killing, a burned out area with a 3 kilogramme stone and 8 pieces of bones on the ground.

In exhibit 12, he pointed to fire burnished stone weapons at the site.

He was outside the cave in exhibit 13, and, in exhibit 14, he held one of the charred bones while pointing at the remains in the cave.

In exhibit 15, he pointed to the back of the cave where the smashed pot and flattened tin were while exhibit 16 were tree stumps from which firewood was cut.

They both indicated that Accused 2 in turn pointed to the same features that were pointed out by Accused 1.

Exhibit 17 showed Accused 2 holding the stone he used and pointing to the stumps of cut firewood that was used to burn the remains.

The photographs did not reveal any visible signs of assault on each of the accused persons.

Detective Sergeant Karemba indicated, under cross examination, that, the missing man's family called the aid of a spirit medium in their search of the missing man. He was adamant that the accused, and not the spirit medium, led them to the Chemhanza Hill where the recoveries were made.

The evidence of Dr Lawrence Hlatwayo of Bindura Hospital established that the charred bones were human bones and not animal bones.

He indicated, that, they were thicker than bones of such animals as monkeys and baboons that are regarded as second cousins to humans, designed as they were to withstand gravity in the upright posture.

He identified the phalange, tibia, and fibula and scapula bones that constitute the human hand and arm from the remains that were submitted to him for post-mortem.

In the absence of DNA testing and forensic equipment, he was unable to establish the cause of death from the charred remains he saw and whose remains they were notwithstanding the suggestive history that he extrapolated from the police documents attached to the request for the postmortem.

Confirmed Warned and Cautioned Statements

The first accused's confirmed warned and cautioned statement together with the record of the proceedings was produced as exhibit 1 while that of Accused 2 and its record was produced as exhibit 2.

They were recorded by Detective Sergeant Karemba and witnessed by Detective Sergeant Charuma on 16 March 2010, the day following the indications.

On 17 March 2010, an interpreter based at Bindura Magistrates Court confirmed the accuracy of the interpretations.

They were both confirmed by a magistrate at Bindura Magistrates Court on 18 March 2010.

In exhibit 1, the first accused admitted to murdering the missing man.

He was wearing a white shirt, blue work-suit tied to his waist and a black pair of trousers and black gumboots, a khaki cap and had a sack with loose tobacco and half bar of soap.

He regarded him as the spy from Billabonge Farm on a mission to entrap him for the theft of aluminium pipes.

The man pretended to be returning to Nyamaropa but took the Billabonge road after Accused 1 went out of sight.

He related the weapons he used on the missing man and the injuries he sustained.

He stated how the missing man reached Chemhanza Hill and how and when he died.

He described how the missing man came to be a pile of bones and ashes on the hill slopes and in the cave.

He stated what became of his pot.

The first accused indicated, during confirmation proceedings, that, he sustained injuries on his ankles from leg irons and on his back from assaults perpetrated by members of the CID.

The magistrate, nonetheless, confirmed the statement after the accused maintained that these assaults had not influenced him to make the statement.

The second accused gave a more detailed statement.

He admitted the charge. His confession followed the general outline of his co-accused. He described where and with whom he found the missing man and his attire of a white shirt, grey pair of trousers, and black gumboots. He related his weapons of choice and the injuries sustained by the missing man. He stated how he died and the fate that befell his remains and pot.

The two detective sergeants were subjected to searching cross-examination.

They disputed ever subjecting the accused to torture and assault but admitted conducting intensive interrogation which elicited contradictory versions from the two.

They averred, that, the invitation extended to the Village Head and his aide for indications was in accordance with the tenets of community policing which encouraged the police to involve local leaders in policing areas under their jurisdiction.

They disputed being present in court when the warned and cautioned statements were confirmed.

The Versions of the Accused Persons

In his Defence Outline, the first accused stated, that, the man who came to collect the pot went to his homestead while he went to protect his crops from marauding baboons.

He averred that both the indications and confirmed warned and cautioned statement were induced by physical assaults and torture. He described how the detectives assaulted him and his co-accused on the back and under his feet with baton sticks, planks, and open hands and on his testicles with rubber bands causing them to swell and pass blood stained urine for a period of three (3) weeks for which he was treated at Parirenyatwa Hospital.

In his evidence in chief, he intimated that he spent the whole of that Sunday in his field and was not at the tuck shop.

He voluntarily surrendered himself to the police, was detained, and intimidated by Detective Sergeants Mutambi, Karemba and Charuma in a room with blood-stained walls.

He was then placed in leg irons and ordered to squat. A metal rod was placed under his knees. He was lifted and placed on a table and hanged upside down. He was swung on this bridge and hit under his feet and back. He was shot on his testicles with rubber bands.

The ordeal lasted for about 45 minutes.

He was dumped in the holding cells. His co-accused was taken to the same room and underwent the same ordeal.

He was treated for leg and back injuries at Bindura Prison.

Thereafter, he signed the document that was placed before him without any further ado.

The court record from Bindura Magistrate Court shows, that, they were both placed on initial remand and advised to apply for bail at the High Court on 17 March 2010 and did not register any complaints against the police. They were remanded in prison custody from where they returned to court on the following day for the confirmation of their statements. He did not advise the magistrate of his ordeal in fear of the threats that had been issued against him but admitted making the statements of his own free will.

In regards to the indications, he intimated that he was forced to pose for the pictures in exhibits 10 to 16 by the photographer and that exhibit 3, the smashed pot photographed in exhibit 15 was run over at and collected from his homestead and planted on the hill by the police on the day they went for indications.

He said he was assaulted during the indications.

He averred the deceased's wife, had, on an earlier occasion, rejected exhibit 3 as her pot.

He conceded that he was at the tuckshop when the man described by Pias Muchambo came but identified him as a Mr Foya of Chemhanza Village. He had a dispute with him over the length of a hose pipe he had purchased from him, which was resolved by his co-accused who took them to his garden to measure it.

He admitted, in cross examination, that the pot was collected from his homestead but denied any knowledge of the deceased.

Contrary to his insistence that he was treated at Bindura Prison, the Assistant Principal Correction Officer in charge of clinic records at that prison did not find any record of the treatment. He however produced exhibit 18, an extract of the treatment received by Accused 2 at that prison.

The second accused categorically denied any knowledge of the deceased.

He participated in the search of the missing man together with other youths. The missing man's family was led by a spirit medium, which focused the search around the first accused's garden and homestead. He believed that the spirit medium led the police to Chemhanza Hill.

He described the bridge technique torture he underwent at the hands of the investigating team after he voluntarily surrendered himself to the police. He was hit by baton sticks under his feet and by a soft drink bottle on the knees and ankles and by a plank on his back. He was also shot on his testicles with rubber bands.

He admitted to the offence to stop the torture.

His version, in regards to how they went for indications, was similar to that of his co-accused.

The pot, exhibit 3, and flattened tin, exhibit 8, both photographed in exhibit 15 were collected from the first accused's home and planted at the scene.

He was forced to hold a stone while his picture was taken at Chemhanza Hill in a bid to dramatize the situation.

He suspected the police made a prior visit to the scene on the day they arrested his mother and young brother.

He stated that the indications were choreographed and the photo sessions stage-managed by the investigation team.

He further stated that he admitted the contents of the confirmed statement before the magistrate in order to forestall any possible torture that would have followed his denials.

He was treated in prison for assault injuries recorded in exhibit 18, the outpatients register held at Bindura Prison that was produced by the nurse in charge of the prison clinic, Assistant Principal Correctional Officer Norman Kusosa.

The accused was examined on 17 March 2010 by Chigumete, a nurse based at the prison at that time. He complained of a painful right leg arising from an assault by CID and had a wound on the right limb arising from assault. The nurse noted “one wound on limb due to assault.” He administered some aspirin and cloxa tablets and applied betadine dressing on the wound.

The diagnosis and medication showed that the second accused was treated for what he alleged were assault injuries....,.

The conduct of the investigation team was the subject of strident criticism by both counsel for Accused 1 and counsel for Accused 2.

They submitted, that, the accused persons were subjected to intense torture and assault between the period they handed themselves to the police and the time they were taken for indications.

Counsel for the State submitted, that, the indications were conducted and the warned and cautioned statements recorded freely and voluntarily without any undue influence having been brought to bear upon each of the accused persons.

It was common ground that the warned and cautioned statements, exhibits 1 and 2, were confirmed. They were accordingly admitted in evidence in terms of section 256(1) and (2) of the Criminal Procedure and Evidence Act [Chapter 9:07], which read:

“256 Admissibility of confessions and statements by accused

(1) Any confession of the commission of an offence and any statement which is proved to have been freely and voluntarily made by an accused person without his having been unduly influenced thereto shall be admissible in evidence against such accused person if tendered by the prosecutor, whether such confession or statement was made before or after his arrest, or after committal and whether reduced into writing or not: Provided that —

(i) A certified copy of the record produced in terms of subsection (1) of section 115B shall be admissible in evidence against the accused;

(ii) Any information given under any enactment which provides a penalty for a failure or refusal to give such information shall not, on that account alone, be inadmissible.
[Subsection amended by section 19 of Act 9 of 2006.]

(2) A confession or statement confirmed in terms of subsection (3) of section one hundred and thirteen shall be received in evidence before any court upon its mere production by the prosecutor without further proof:
Provided that the confession or statement shall not be used as evidence against the accused if he proves that the statement was not made by him or was not made freely and voluntarily without his having been unduly influenced thereto, and, if, after the accused has presented his defence to the indictment, summons or charge, the prosecutor considers it necessary to adduce further evidence in relation to the making of such confession or statement, he may re-open his case for that purpose.”

The confirmation tended to portray the two detectives as credible witnesses in regard to how the statements were recorded. The onus of establishing, on a balance of probabilities, that the statements were not made freely and voluntarily, even though they were confirmed, lay on each of the accused persons.

The accused alleged that they were stripped of their clothing and taken to a room that had splurges of what they were informed was human and not animal or fowl blood on the walls. They were each in turn subjected to the bridge torture technique.

This method involves first tying the victim's legs together, preferably with handcuffs. The victim is forced to squat and an iron rod, which is able to hold his weight, is inserted underneath his knees. He is then lifted upside down by the rod and hanged between two tables. The two tables and the rod mimic a bridge, hence the name. The hanging causes an abnormal flow of blood to the head and face and disorientation to the victim.

The accused persons averred, that, in that helpless state they were each subjected to painful and indiscriminate assaults under their feet and on their backs, and, for Accused 2, on the ankles and knees by all manner of weapons that included baton sticks, planks, and soft drink bottles and shot on their testicles by rubber bands.

Thereafter, they were driven to Accused 1's homestead where police ran over the black pot, exhibit 3 and the flattened tin exhibit 8 and collected them before driving them to Chemhanza Hill.

On the following day, they readily signed the documents that were place before them.

They were taken to Court on 17 March 2010. They did not disclose to the remanding magistrate that they had been assaulted by the police. They were remanded to prison and asked to apply for bail at the High Court.

On 18 March 2010, they returned to Court for the confirmation of their statements. They had been warned of the terrible consequences that a rejection of the statements in court would evoke, so they readily went along with the ministrations of the confirming magistrate.

In their respective evidence, and under cross-examination, the two detectives who testified disputed the allegations of torture and assault and maintained that they questioned the two intensely and separately until they confessed the crime.

Their breakthrough came when the two gave conflicting versions on whether they had dealt with the missing husband on the fateful Sunday or not. All resistance broke down when each was confronted with their respective inconsistencies.

We were satisfied, that, the two accused persons established, on a balance of probabilities, that they were assaulted by the investigation team before they went for indications. They, however, failed to establish that they were tortured using the bridge method.

The injuries they described to the confirming magistrate, and Bindura Prison nurse, were disproportional to the brutal assaults they ascribed to the bridge method. Their legal practitioners did not articulate both the bridge torture technique and the detailed brutal assaults attributed to this torture method to the two police detectives during cross examination. The accused persons also failed to properly describe the torture method in question.

We were however satisfied that they were still smarting under the effects of the assaults they described to the magistrate and prison nurse when they made their warned and cautioned statements and appeared for confirmation. Our satisfaction was derived from three factors:

(i) The first was that they informed the confirming magistrate that they had injuries sustained in police custody.

In respect of the first accused, the confirming magistrate cryptically wrote that he sustained injuries “from the handcuffs and on the back assault from CID but this did not affect my statement.”

In respect of Accused 2, he wrote that the injury “was because of the leg irons.”

In our view, the confirming magistrate abdicated his responsibilities towards the accused persons and the criminal justice system.

These responses should have served to alert the confirming magistrate of the dangers of confirming these particular statements without investigating the circumstances in which the handcuffs and leg irons caused these injuries.

It is a notorious fact that leg irons and handcuffs do not normally cause injury unless they are deliberately tightened by the handcuffing officer.

Our view is that the deliberate tightening of handcuffs or leg irons is inconsistent with the exercise of volition.

Our view is that the injuries were, in the main, caused by the tightening of the leg irons on each accused person.

Assaulting a suspect is not only a crime but does negate and undermine the voluntariness of any resultant confession. After all, it is illogical to assault a suspect who is admitting the charge.

The suspicion of the magistrate should have been further aroused by the caveat advanced by the first accused, that, despite the assault, he freely made the statement.

The evidence of the Assistant Principal Correction Officer in charge of Bindura Prison Hospital, and exhibit 18, clearly demonstrated that the second accused was treated for assault injuries at Bindura Prison.

However, the injuries, in our view, were consistent with tightened leg irons.

Thus, even though he did not find any reference to the treatment administered on Accused 1, we were satisfied that both of them were assaulted in the same way.

It is for these reasons, that, we were satisfied that the confessions that led to Chemhanza Hill and the recording of the warned and cautioned statements, and the confirmation proceedings, were extracted through these assaults.

We did not believe the investigations team's platitudes of innocence. They were incredible and untruthful witnesses in this regard.

We will therefore disregard the contents of the confirmed warned and cautioned statements in our determination of whether or not the accused persons committed the offence they stand charged with....,.

In our law, confessions that are extracted and extra curial statements that are made through unlawful means are inadmissible in evidence.

The police must obey the law, and, all statements made, whether confirmed or not, outside the strictures of the law are illegal and should not be considered by a court as evidence against the maker.

The law prohibits us to consider exhibits 1 and 2 as evidence against the accused persons, however self-incriminating they may be against them.

However, section 258(2) of the Criminal Procedure and Evidence Act [Chapter 9:07] admits into evidence anything that was pointed out by any person under trial even though the pointing out was in consequence of an inadmissible confession or statement. The section provides that:

“258 Admissibility of facts discovered by means of inadmissible confession

(2) It shall be lawful to admit evidence that anything was pointed out by the person under trial or that any fact or thing was discovered in consequence of information given by such person notwithstanding that such pointing out or information forms part of a confession or statement which, by law, is not admissible against him on such trial.”

We were mindful of the construction rendered to this section by McNALLY JA in S v Nkomo 1989 (3) ZLR 117 (S)…,.

We did not find that the assaults that they were subjected to amounted to torture.

The evidence established that they were not forced to point at any spot on the hill. They voluntarily took the police to each spot on the hill and uttered the accompanying words connected to each spot freely and voluntarily.

We find that they pointed out the scene of the crime and the various positions and items that were connected to the commission of the crime freely and voluntarily.

The detectives did not have foreknowledge of the scene of crime or its state.

A pot similar to the one the wife left at Accused 2's residence for repairs was recovered. The other dress apparel like the buckle, the piece of rubber and piece of worksuit similar to those worn by the deceased on the day he went missing were also recovered as a result of the pointing out of the accused persons.

Police Investigations, Arrest, Search and Seizure With or Without a Warrant re: Approach

The two accused persons are brothers. They were jointly charged with the murder of Jokonia Choga Muunganirwa at Chemhanza Hill in Chevakadzi Resettlement Area in Bindura on 31 January 2010. They were alleged to have caused his death by assaulting him indiscriminately all over his body and stoning him on the ribs and head.

The State called the evidence of eight witnesses, one of which was impeached, and produced a total of 17 exhibits consisting of 5 physical and 12 documentary exhibits.

Each accused person testified on his own behalf and both called the evidence of the nurse in charge of Bindura Prison camp and produced one documentary exhibit.

The Missing Man and Common Cause Evidence

The events leading to the alleged murder started at Billabonge Farm, situated some 14km from Chevakadzi Resettlement area in Bindura.

On some undisclosed date in 2009, two aluminium pipes went missing from the farm, and, in January 2010, a further four were stolen from the same farm. The farm owner set up a team of undercover investigators consisting of employees of various grades drawn from his security guards and general workers. They were tasked to investigate blacksmiths and welders in the surrounding villages and resettlement areas who were perceived, by virtue of their craft, to be the consumers of aluminium pipes.

The first accused was a welder who used aluminium solder to repair metal utensils.

The deceased and his wife, Faith Shonhiwa, were co-opted into the team, and, in consequence, sometime in January 2010, the wife took a black pot with a finger sized hole at the bottom for repair to the second accused's homestead.

Prior to her visit, her employer and the police, in a bid to apprehend Accused 1, unsuccessfully raided his homestead. In order to allay any suspicion from the occupants of Accused 2's homestead she deliberately misled Accused 2's pregnant wife that she hailed from Kerry and not Billabonge Farm. She left the pot in her custody.

On Friday, 29 January 2010, the deceased left Billabonge Farm. He was wearing a white shirt, black pair of trousers, scotch-checked cap, black pair of gumboots, and blue work suit jacket and grey suit jacket.

He took his 12 year old nephew Edmore, destined for Kerry Farm, with him to his communal home. He was expected back on Sunday 31 January 2010. He was tasked to collect the pot from Accused 1's homestead.

That Sunday, at around 2pm, he parted company with his nephew at Kerry Farm and proceeded to Chevakadzi Resettlement area to collect the pot.

The Defence Outline of Accused 1 and the evidence of a ritual friend to the accused persons, Pias Muchambo, established that he arrived at Accused 1's tuck-shop in Chevakadzi Resettlement area. He was directed to the first accused's homestead from where he collected the black pot.

Pias Muchambo stated, that, the man who arrived at the tuck shop was wearing a yellow shirt, khaki pair of trousers, and carried a sack.

He asked for directions to Accused 1's homestead.

Accused 1, who together with Accused 2, the witness, and other patrons were drinking beer at the tuckshop, attended to the man some 4m away from Pias Muchambo.

Pias Muchambo heard the two men discussing about a pot.

Thereafter, the man took the direction to Accused 1's homestead and was soon followed by both accused persons.

The man was never seen again. He did not return to his wife at Billabonge Farm.

The missing man's family and workmates conducted a search for him but failed to find him.

On 5 February 2010, the man's wife and four security guards visited Accused 2's homestead where they found Accused 2, his wife, and mother and members of the apostolic faith celebrating the birth of a baby.

The mother berated her daughter-in-law for accepting the black pot and failing to refer the man's wife to Bhobho, the local blacksmith. She turned her ire on the man's wife for allowing herself to be used by the farm owner of Billabonge in his bid to get her sons arrested and pretending to be from Kerry Farm.

She intimated that Accused 2 had observed her movements on the day she left the pot and threatened her with harm if she ever visited her son's homestead again. She however indicated that her pot had been collected by an elderly man on the preceding Sunday but declined to describe him further.

In the result, she made a missing person report at Bindura police station on 8 February 2010.

Two detectives accompanied her to Accused 2's homestead and questioned the mother about her outburst on her last visit. The police managed to collect some aluminium pots and pieces of pipe which they took to the police station but failed to get any information on her missing husband.

It was common cause that the missing man's relatives mounted a big search for him.

On 14 and 15 February 2010, they co-opted the village head of the two accused's village, Mhedziso Jenje. They conducted the search in his village and concentrated their focus in the vicinity of Accused 1's homestead. The second accused and a group of local youths participated in the search on the second day.

The missing man was not found.

On 13 March 2010, members of the Bindura CID team consisting of Detective Sergeants Trymore Mutambi, Leonard Karemba, and Niverd Charuma descended on Accused 1's homestead. The two accused persons were not present. They took their mother and young brother, Simbarashe Ackim, to the police station for questioning and left word with the village head for the two to report at the police station.

On the next day, the two went to the village head's home before proceeding to the police station. They were detained and their mother and young brother were released.

The two accused persons were subjected to intensive interrogation by the investigating team.

On 15 March 2010, the two accused and seven detectives in plain clothes and one uniformed police officer drove in a Mitsubishi truck to Accused 1's residence and then a further 4kms to Chemhanza Hill. The truck was driven by Detective Sergeant Mutambi and the two accused were in the back pan with other detectives.

At Chemhanza Hill

The events that took place at Chemhanza Hill were hotly disputed by the two accused persons.

The investigating officer, Detective Sergeant Mutambi and Detective Sergeant Karemba's version of events was confirmed by the Village Head, Mhedziso Jenje and his aide, Black Chihumo.

The two villagers stated, that, the two accused persons did not exhibit any signs of physical discomfort and mental strain during the drive and at the scene. They did not observe any visible injuries on either of them. They appeared to be in good health.

They formed the opinion that the two acted out of their own free volition.

They were present throughout the indications and heard the words uttered by each accused person as he pointed out the different spots that were captured by the police photographer on celluloid.

The testimony of the village head and his aide was that the two accused persons led the police to Chemhanza Hill.

Accused 2 remained in the police truck while Accused 1 led the police some 20m uphill to a burnt patch of ground on which were some ashes. He pointed at the spot where a man died. He showed the stones, exhibit 7, and stick, exhibit 9 used to assault the man. He pointed out the spot where the man lay after the assaults and where his remains were burnt. He walked to the top of the hill and pointed to a cave. He then entered the cave and retrieved some bones. He emerged with a plastic bag containing bones about 7 to 8cm long which he showed to those on top of the hill and when they descended to those at the bottom of the hill where the car was parked.

The second accused also followed the same route pointing at various features along the hill slopes and rocks.

The Village Head and his aide said the second accused retrieved a flattened tin, exhibit 8, from the cleft between two rocks, a crashed black pot, exhibit 3 from on top of the hill, and pointed and picked up the stone he used, exhibit 7.

A piece of burnt rubber, which looked like the remnant of a gumboot, exhibit 4, and a piece of cloth from a worksuit were retrieved from the ashes as were somemore bones.

Each accused person picked the stone he used to hit the man and volunteered information on the part of the body where each directed his stone.

It was common cause that the photographs, exhibit 10 to 17, were all taken by Detective Sergeant Sharara.

The two detective sergeants stated how the first accused picked a 1,25m long stick he used from the ground. He was photographed, in exhibit 10, holding the 1.25m long stick, exhibit 9.

In photograph 11, he pointed to the place of killing, a burned out area with a 3 kilogramme stone and 8 pieces of bones on the ground.

In exhibit 12, he pointed to fire burnished stone weapons at the site.

He was outside the cave in exhibit 13, and, in exhibit 14, he held one of the charred bones while pointing at the remains in the cave.

In exhibit 15, he pointed to the back of the cave where the smashed pot and flattened tin were while exhibit 16 were tree stumps from which firewood was cut.

They both indicated that Accused 2 in turn pointed to the same features that were pointed out by Accused 1.

Exhibit 17 showed Accused 2 holding the stone he used and pointing to the stumps of cut firewood that was used to burn the remains.

The photographs did not reveal any visible signs of assault on each of the accused persons.

Detective Sergeant Karemba indicated, under cross examination, that, the missing man's family called the aid of a spirit medium in their search of the missing man. He was adamant that the accused, and not the spirit medium, led them to the Chemhanza Hill where the recoveries were made.

The evidence of Dr Lawrence Hlatwayo of Bindura Hospital established that the charred bones were human bones and not animal bones.

He indicated, that, they were thicker than bones of such animals as monkeys and baboons that are regarded as second cousins to humans, designed as they were to withstand gravity in the upright posture.

He identified the phalange, tibia, and fibula and scapula bones that constitute the human hand and arm from the remains that were submitted to him for post-mortem.

In the absence of DNA testing and forensic equipment, he was unable to establish the cause of death from the charred remains he saw and whose remains they were notwithstanding the suggestive history that he extrapolated from the police documents attached to the request for the postmortem.

Confirmed Warned and Cautioned Statements

The first accused's confirmed warned and cautioned statement together with the record of the proceedings was produced as exhibit 1 while that of Accused 2 and its record was produced as exhibit 2.

They were recorded by Detective Sergeant Karemba and witnessed by Detective Sergeant Charuma on 16 March 2010, the day following the indications.

On 17 March 2010, an interpreter based at Bindura Magistrates Court confirmed the accuracy of the interpretations.

They were both confirmed by a magistrate at Bindura Magistrates Court on 18 March 2010.

In exhibit 1, the first accused admitted to murdering the missing man.

He was wearing a white shirt, blue work-suit tied to his waist and a black pair of trousers and black gumboots, a khaki cap and had a sack with loose tobacco and half bar of soap.

He regarded him as the spy from Billabonge Farm on a mission to entrap him for the theft of aluminium pipes.

The man pretended to be returning to Nyamaropa but took the Billabonge road after Accused 1 went out of sight.

He related the weapons he used on the missing man and the injuries he sustained.

He stated how the missing man reached Chemhanza Hill and how and when he died.

He described how the missing man came to be a pile of bones and ashes on the hill slopes and in the cave.

He stated what became of his pot.

The first accused indicated, during confirmation proceedings, that, he sustained injuries on his ankles from leg irons and on his back from assaults perpetrated by members of the CID.

The magistrate, nonetheless, confirmed the statement after the accused maintained that these assaults had not influenced him to make the statement.

The second accused gave a more detailed statement.

He admitted the charge. His confession followed the general outline of his co-accused. He described where and with whom he found the missing man and his attire of a white shirt, grey pair of trousers, and black gumboots. He related his weapons of choice and the injuries sustained by the missing man. He stated how he died and the fate that befell his remains and pot.

The two detective sergeants were subjected to searching cross-examination.

They disputed ever subjecting the accused to torture and assault but admitted conducting intensive interrogation which elicited contradictory versions from the two.

They averred, that, the invitation extended to the Village Head and his aide for indications was in accordance with the tenets of community policing which encouraged the police to involve local leaders in policing areas under their jurisdiction.

They disputed being present in court when the warned and cautioned statements were confirmed.

The Versions of the Accused Persons

In his Defence Outline, the first accused stated, that, the man who came to collect the pot went to his homestead while he went to protect his crops from marauding baboons.

He averred that both the indications and confirmed warned and cautioned statement were induced by physical assaults and torture. He described how the detectives assaulted him and his co-accused on the back and under his feet with baton sticks, planks, and open hands and on his testicles with rubber bands causing them to swell and pass blood stained urine for a period of three (3) weeks for which he was treated at Parirenyatwa Hospital.

In his evidence in chief, he intimated that he spent the whole of that Sunday in his field and was not at the tuck shop.

He voluntarily surrendered himself to the police, was detained, and intimidated by Detective Sergeants Mutambi, Karemba and Charuma in a room with blood-stained walls.

He was then placed in leg irons and ordered to squat. A metal rod was placed under his knees. He was lifted and placed on a table and hanged upside down. He was swung on this bridge and hit under his feet and back. He was shot on his testicles with rubber bands.

The ordeal lasted for about 45 minutes.

He was dumped in the holding cells. His co-accused was taken to the same room and underwent the same ordeal.

He was treated for leg and back injuries at Bindura Prison.

Thereafter, he signed the document that was placed before him without any further ado.

The court record from Bindura Magistrate Court shows, that, they were both placed on initial remand and advised to apply for bail at the High Court on 17 March 2010 and did not register any complaints against the police. They were remanded in prison custody from where they returned to court on the following day for the confirmation of their statements. He did not advise the magistrate of his ordeal in fear of the threats that had been issued against him but admitted making the statements of his own free will.

In regards to the indications, he intimated that he was forced to pose for the pictures in exhibits 10 to 16 by the photographer and that exhibit 3, the smashed pot photographed in exhibit 15 was run over at and collected from his homestead and planted on the hill by the police on the day they went for indications.

He said he was assaulted during the indications.

He averred the deceased's wife, had, on an earlier occasion, rejected exhibit 3 as her pot.

He conceded that he was at the tuckshop when the man described by Pias Muchambo came but identified him as a Mr Foya of Chemhanza Village. He had a dispute with him over the length of a hose pipe he had purchased from him, which was resolved by his co-accused who took them to his garden to measure it.

He admitted, in cross examination, that the pot was collected from his homestead but denied any knowledge of the deceased.

Contrary to his insistence that he was treated at Bindura Prison, the Assistant Principal Correction Officer in charge of clinic records at that prison did not find any record of the treatment. He however produced exhibit 18, an extract of the treatment received by Accused 2 at that prison.

The second accused categorically denied any knowledge of the deceased.

He participated in the search of the missing man together with other youths. The missing man's family was led by a spirit medium, which focused the search around the first accused's garden and homestead. He believed that the spirit medium led the police to Chemhanza Hill.

He described the bridge technique torture he underwent at the hands of the investigating team after he voluntarily surrendered himself to the police. He was hit by baton sticks under his feet and by a soft drink bottle on the knees and ankles and by a plank on his back. He was also shot on his testicles with rubber bands.

He admitted to the offence to stop the torture.

His version, in regards to how they went for indications, was similar to that of his co-accused.

The pot, exhibit 3, and flattened tin, exhibit 8, both photographed in exhibit 15 were collected from the first accused's home and planted at the scene.

He was forced to hold a stone while his picture was taken at Chemhanza Hill in a bid to dramatize the situation.

He suspected the police made a prior visit to the scene on the day they arrested his mother and young brother.

He stated that the indications were choreographed and the photo sessions stage-managed by the investigation team.

He further stated that he admitted the contents of the confirmed statement before the magistrate in order to forestall any possible torture that would have followed his denials.

He was treated in prison for assault injuries recorded in exhibit 18, the outpatients register held at Bindura Prison that was produced by the nurse in charge of the prison clinic, Assistant Principal Correctional Officer Norman Kusosa.

The accused was examined on 17 March 2010 by Chigumete, a nurse based at the prison at that time. He complained of a painful right leg arising from an assault by CID and had a wound on the right limb arising from assault. The nurse noted “one wound on limb due to assault.” He administered some aspirin and cloxa tablets and applied betadine dressing on the wound.

The diagnosis and medication showed that the second accused was treated for what he alleged were assault injuries....,.

The conduct of the investigation team was the subject of strident criticism by both counsel for Accused 1 and counsel for Accused 2.

They submitted, that, the accused persons were subjected to intense torture and assault between the period they handed themselves to the police and the time they were taken for indications.

Counsel for the State submitted, that, the indications were conducted and the warned and cautioned statements recorded freely and voluntarily without any undue influence having been brought to bear upon each of the accused persons.

It was common ground that the warned and cautioned statements, exhibits 1 and 2, were confirmed. They were accordingly admitted in evidence in terms of section 256(1) and (2) of the Criminal Procedure and Evidence Act [Chapter 9:07], which read:

“256 Admissibility of confessions and statements by accused

(1) Any confession of the commission of an offence and any statement which is proved to have been freely and voluntarily made by an accused person without his having been unduly influenced thereto shall be admissible in evidence against such accused person if tendered by the prosecutor, whether such confession or statement was made before or after his arrest, or after committal and whether reduced into writing or not: Provided that —

(i) A certified copy of the record produced in terms of subsection (1) of section 115B shall be admissible in evidence against the accused;

(ii) Any information given under any enactment which provides a penalty for a failure or refusal to give such information shall not, on that account alone, be inadmissible.
[Subsection amended by section 19 of Act 9 of 2006.]

(2) A confession or statement confirmed in terms of subsection (3) of section one hundred and thirteen shall be received in evidence before any court upon its mere production by the prosecutor without further proof:
Provided that the confession or statement shall not be used as evidence against the accused if he proves that the statement was not made by him or was not made freely and voluntarily without his having been unduly influenced thereto, and, if, after the accused has presented his defence to the indictment, summons or charge, the prosecutor considers it necessary to adduce further evidence in relation to the making of such confession or statement, he may re-open his case for that purpose.”

The confirmation tended to portray the two detectives as credible witnesses in regard to how the statements were recorded. The onus of establishing, on a balance of probabilities, that the statements were not made freely and voluntarily, even though they were confirmed, lay on each of the accused persons.

The accused alleged that they were stripped of their clothing and taken to a room that had splurges of what they were informed was human and not animal or fowl blood on the walls. They were each in turn subjected to the bridge torture technique.

This method involves first tying the victim's legs together, preferably with handcuffs. The victim is forced to squat and an iron rod, which is able to hold his weight, is inserted underneath his knees. He is then lifted upside down by the rod and hanged between two tables. The two tables and the rod mimic a bridge, hence the name. The hanging causes an abnormal flow of blood to the head and face and disorientation to the victim.

The accused persons averred, that, in that helpless state they were each subjected to painful and indiscriminate assaults under their feet and on their backs, and, for Accused 2, on the ankles and knees by all manner of weapons that included baton sticks, planks, and soft drink bottles and shot on their testicles by rubber bands.

Thereafter, they were driven to Accused 1's homestead where police ran over the black pot, exhibit 3 and the flattened tin exhibit 8 and collected them before driving them to Chemhanza Hill.

On the following day, they readily signed the documents that were place before them.

They were taken to Court on 17 March 2010. They did not disclose to the remanding magistrate that they had been assaulted by the police. They were remanded to prison and asked to apply for bail at the High Court.

On 18 March 2010, they returned to Court for the confirmation of their statements. They had been warned of the terrible consequences that a rejection of the statements in court would evoke, so they readily went along with the ministrations of the confirming magistrate.

In their respective evidence, and under cross-examination, the two detectives who testified disputed the allegations of torture and assault and maintained that they questioned the two intensely and separately until they confessed the crime.

Their breakthrough came when the two gave conflicting versions on whether they had dealt with the missing husband on the fateful Sunday or not. All resistance broke down when each was confronted with their respective inconsistencies.

We were satisfied, that, the two accused persons established, on a balance of probabilities, that they were assaulted by the investigation team before they went for indications. They, however, failed to establish that they were tortured using the bridge method.

The injuries they described to the confirming magistrate, and Bindura Prison nurse, were disproportional to the brutal assaults they ascribed to the bridge method. Their legal practitioners did not articulate both the bridge torture technique and the detailed brutal assaults attributed to this torture method to the two police detectives during cross examination. The accused persons also failed to properly describe the torture method in question.

We were however satisfied that they were still smarting under the effects of the assaults they described to the magistrate and prison nurse when they made their warned and cautioned statements and appeared for confirmation. Our satisfaction was derived from three factors:

(i) The first was that they informed the confirming magistrate that they had injuries sustained in police custody.

In respect of the first accused, the confirming magistrate cryptically wrote that he sustained injuries “from the handcuffs and on the back assault from CID but this did not affect my statement.”

In respect of Accused 2, he wrote that the injury “was because of the leg irons.”

In our view, the confirming magistrate abdicated his responsibilities towards the accused persons and the criminal justice system.

These responses should have served to alert the confirming magistrate of the dangers of confirming these particular statements without investigating the circumstances in which the handcuffs and leg irons caused these injuries.

It is a notorious fact that leg irons and handcuffs do not normally cause injury unless they are deliberately tightened by the handcuffing officer.

Our view is that the deliberate tightening of handcuffs or leg irons is inconsistent with the exercise of volition.

Our view is that the injuries were, in the main, caused by the tightening of the leg irons on each accused person.

Assaulting a suspect is not only a crime but does negate and undermine the voluntariness of any resultant confession. After all, it is illogical to assault a suspect who is admitting the charge.

The suspicion of the magistrate should have been further aroused by the caveat advanced by the first accused, that, despite the assault, he freely made the statement.

The evidence of the Assistant Principal Correction Officer in charge of Bindura Prison Hospital, and exhibit 18, clearly demonstrated that the second accused was treated for assault injuries at Bindura Prison.

However, the injuries, in our view, were consistent with tightened leg irons.

Thus, even though he did not find any reference to the treatment administered on Accused 1, we were satisfied that both of them were assaulted in the same way.

It is for these reasons, that, we were satisfied that the confessions that led to Chemhanza Hill and the recording of the warned and cautioned statements, and the confirmation proceedings, were extracted through these assaults.

We did not believe the investigations team's platitudes of innocence. They were incredible and untruthful witnesses in this regard.

We will therefore disregard the contents of the confirmed warned and cautioned statements in our determination of whether or not the accused persons committed the offence they stand charged with....,.

In our law, confessions that are extracted and extra curial statements that are made through unlawful means are inadmissible in evidence.

The police must obey the law, and, all statements made, whether confirmed or not, outside the strictures of the law are illegal and should not be considered by a court as evidence against the maker.

The law prohibits us to consider exhibits 1 and 2 as evidence against the accused persons, however self-incriminating they may be against them.

However, section 258(2) of the Criminal Procedure and Evidence Act [Chapter 9:07] admits into evidence anything that was pointed out by any person under trial even though the pointing out was in consequence of an inadmissible confession or statement. The section provides that:

“258 Admissibility of facts discovered by means of inadmissible confession

(2) It shall be lawful to admit evidence that anything was pointed out by the person under trial or that any fact or thing was discovered in consequence of information given by such person notwithstanding that such pointing out or information forms part of a confession or statement which, by law, is not admissible against him on such trial.”

We were mindful of the construction rendered to this section by McNALLY JA in S v Nkomo 1989 (3) ZLR 117 (S)…,.

We did not find that the assaults that they were subjected to amounted to torture.

The evidence established that they were not forced to point at any spot on the hill. They voluntarily took the police to each spot on the hill and uttered the accompanying words connected to each spot freely and voluntarily.

We find that they pointed out the scene of the crime and the various positions and items that were connected to the commission of the crime freely and voluntarily.

The detectives did not have foreknowledge of the scene of crime or its state.

A pot similar to the one the wife left at Accused 2's residence for repairs was recovered. The other dress apparel like the buckle, the piece of rubber and piece of worksuit similar to those worn by the deceased on the day he went missing were also recovered as a result of the pointing out of the accused persons.

Illegally or Unlawfully Obtained or Tainted Evidence, Inadmissible Evidence and the Exclusionary Rule