The
deceased, Rice Phiri, was employed at New Base Construction Company, Zvishavane. He
resided at Makwasha Village, Chief Masunda, Zvishavane. His place of
residence was within walking distance of Zvishavane town. He would use a
bush path from his homestead to Zvishavane and back to his homestead.
The
deceased and the appellant were known to each other as they stayed in the same
area.
On
24 November 2004, the deceased finished work at about 5:00pm and proceeded to
his home along the footpath. He had in his possession a satchel containing
his pair of overalls inscribed with the words “New Base” at the back, a sack
containing ten (10) kilogrammes of wheat meal and an unknown amount of
cash. He was waylaid by an assailant and stabbed on the back with a sharp
object. His property was then taken. When the police eventually
recovered his body, they found two wounds – one on the back and another on the
chest. The wounds appeared to have been caused by a knife or
bullet. The police also recovered the satchel together with the overalls
from the scene and the ten (10) kilogrammes of wheat meal from the appellant's
residence….,.
The
allegation in the court a quo was that it was
the appellant who killed the deceased and thereafter took his property.
In
his defence in the court a quo, the appellant
admitted finding the pair of overalls and sack of wheat meal at a spot on the
side of the road and taking them. He further admitted that he gave the
meal to his workmate, Forward Machingauta, to take to his house. He
admitted that he took the overalls and an empty sack and inserted these in a
hole in an anthill. He however denied seeing the deceased or in any way
injuring him. The appellant told the court a quo
he believed that the wheat meal and overalls had been dropped or abandoned by
thieves who were known to frequent this area.
The
court a quo found that the appellant had
possession of the property of the deceased soon after he had been
murdered. Further, that the appellant took the property, which included
the deceased's wallet and identity card, and hid these in a hole in an anthill
not very far from where the deceased's body was found. It was also the
finding of the court a quo that at no stage did the
appellant attempt to surrender the deceased's items to the police and that when
he was confronted by the police he and his wife denied all knowledge of the
deceased's property. It was only after the police had searched the
appellant's house and recovered the bag containing the wheat meal that the
appellant then came up with the story that he had found the property in the
bush. The court further found that when invited by the police to show them
the spot where he had found the items, the appellant had declined to do
so.
In
general, the court found that the appellant's version was improbable and that
the evidence, though circumstantial, pointed towards the appellant as the
person who had committed the gruesome murder in order to commit a
robbery. The court a quo accordingly
found the appellant guilty of murder with actual intent, and, finding no
extenuating circumstances, sentenced him to death.
In
his submissions before this Court, counsel for the appellant had no meaningful
submissions to make against both conviction and sentence. In the light of
the fact that the appellant had possession of the deceased's property soon
after he had been killed, that he hid some of the property in a hole in an anthill,
that when approached by the police he initially denied all knowledge of such
property, and, lastly, that his explanation as to how he came to be in
possession thereof was rejected as false.
Counsel
for the appellant conceded that there was no proper basis upon which the
findings of the court a quo could be impugned.
On
a careful perusal of the facts and the evidence, I am satisfied that the
explanation given by the appellant was by no means credible or
probable. He was unable to explain why, having found the items, he did not
report to the police. He could not explain why he then hid some of the
property in a hole in an anthill. According to the investigating officer,
in addition to the pair of overalls, there was also a wallet and an identity
card belonging to the deceased in the hole.
It
is common cause that the deceased did not return home after work on Wednesday
24 November 2004. It is also not in dispute that the following day,
Forward Machingauta, accompanied by Gift Chingwe and Arnold Mudzuri, were taken
by the appellant to the anthill where the appellant retrieved the bag of wheat
meal which he gave to Forward Machingauta to take to his homestead. It is
common cause there was a blue pair of overalls, a wallet and an identity card
belonging to the deceased in the same hole.
What
emerges clearly from the evidence is that the appellant had possession of the
deceased's property shortly after the murder. When confronted by the
police, he denied all knowledge and only admitted having found the items when
the police searched his hut and recovered the bag of wheat meal belonging to
the deceased. He declined to show the police where he had found the items
in the bush. Moreover, the appellant knew the deceased as they stayed in
the same area. The deceased's identity card was recovered from the hole where
the overalls were found. At the time he placed the various items in the
hole, the appellant must have known the identity of the deceased as his
identity card was amongst the items. These facts, taken together with the
fact that his explanation on how he came into possession was highly improbable,
suggest that indeed it was the appellant, and nobody else, who must have
murdered the deceased and taken his property.
In
the circumstances, I agree that the finding by the court a quo that the appellant committed murder with actual
intent cannot be impugned. Nor can the finding by the court a quo, that this was a murder committed to facilitate a
robbery, be said to be wrong….,.
Further,
as this was an exercise of discretion, this Court has no basis for interfering
with the findings of the court a quo in the absence
of a misdirection or other irregularity.
In
the circumstances, the appeal against both conviction and sentence must fail.
The
appeal is accordingly dismissed.
