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.
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.
