1

HH 356/15

CRB 165/13

 

THE STATE

versus

BENARD REDZO

 

 

 

HIGH COURT OF ZIMBABWE

MAWADZE J

HARARE, 3 & 4 July 2014, 3, 5, 19, 24 September 2014 & 1 April 2015

 

 

 

Assessors: 1.    Mr Gonzo

                   2.   Mr Chakuvinga

 

 

 

Criminal Trial

 

 

 

A. Masamha, for the State

Ms M. Chigwaza, for the accused

 

 

           MAWADZE J:  The accused is facing the charge of murder as defined in s 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

           The charge is that on 23 April 2010 at Bingu Village, Headman Mudavanhu Chivhu, the accused Benard Redzo unlawfully and with intent to kill, murdered Aaron Magomo by assaulting him with an iron bar several times on the head, chest and ribs thereby causing injuries from which the said Aaron Magomo died.

           The background facts of the matter are as follows:

           The now deceased Aaron Magomo resided in Buhera and apparently was a married man. The accused was the leader of Johanne Masowe Chishanu at Nharira Chivhu and was married to one Rumbidzai Gandiwa. The accused who had founded the Nharira branch of the church was also a spiritual leader and prophet. Accused was assisted by a 16 year old boy David Muganhu whom accused had appointed as his spiritual aide.

           The tragic events of this matter are centered on a love triangle involving the accused, Aaron Magomo the now deceased and the lady called KERESENCIA EVER MUCHARWA. The now deceased Aaron Magumo was madly in love with Keresencia Ever Mucharwa (Keresencia) a single mother of a 3 year old child. At the material time Keresencia was employed at one Justice Bheru’s homestead in Bungu village where she stayed alone with her 3 year old daughter. She attended accused’s church at Nharira. Keresencia had  fallen in love with the now deceased in 2007 but at the material time in April 2010 it would appear her heart had been stolen by the prophet the accused hence the problems which emerged with the now deceased. On the other hand the accused abusing the platform of his church and his status as a prophet had publicly announced to his congregants that the Holy Spirit has advised him to terminate his marriage to Rumbidzai Gandiwa whom he married in 2009 and was pregnant. This was to pave the way for his newly found love with Keresencia who seemed reluctant to be a polygamous relationship. The stage was therefore set for the tragic events which unfolded from Wednesday 21 April 2010 to Friday 23 April 2010 when the now deceased died. His body was then discovered at Justice Bheru’s homestead on Saturday 24 April 2010.

           The state alleges that the now deceased who had visited Keresencia on Wednesday 21 April 2010 to salvage their love relationship visited the shrine on Thursday 22 April 2010 to have the love relationship with Keresencia blessed by the Prophet the accused. The now deceased was unaware that the accused had a vested interest in the matter. Accused refused to bless the relationship. The next day Friday 23 April 2010 the accused visited Keresencia in the evening at her work place at Justice Bheru’s homestead and found the now deceased present. The state alleges that an altercation ensued resulting in the accused teaming up with Keresencia to assault the now deceased several times with an iron bar on the head, chest and ribs causing his death. The accused and Keresencia connived to construct the scene to give the false impression that the now deceased had committed suicide. The state alleges that accused and Keresencia left the Justice Bheru’s homestead that night as Keresencia packed her belongings. They were now husband and wife. Keresencia only returned the next morning Saturday 24 April to surrender the keys of Justice Bheru’s homestead to the mother of her employer one Zvinoonzeni Martha Bheru who lived at a nearby homestead. The now deceased’s body was only discovered that morning after Keresencia had left and police were alerted.

           It is the state case that accused connived with Keresencia to influence accused’s aide David Muganhu to allege that he, David Muganhu and not the accused, was the one in love with Keresencia and that it is David Muganhu who had fought the now deceased on 23 April 2010 at Justice Bheru’s homestead. The state alleges that accused further persuaded Keresencia and David Muganhu to lie to the police that it is the now deceased, Keresencia and David Muganhu who were involved in a love triangle culminating in the fatal confrontation on 23 April 2010. The state alleges that the accused convinced Keresencia and David Muganhu that he would indulge in a vigil and intense prayer to ensure that through his spiritual powers the charge of murder against Keresencia and David Muganhu would be dropped. It is apparent that David Muganhu swallowed the bait and was thrown into remand prison without being rescued by accused’s spiritual powers. As a result David Muganhu divulged the truth but he was still jointly tried for murder with Keresencia under CRB 57/12 and the accused was on the run.

           It is common cause that during the trial before my sister Chatukuta J on CRB 57/12 Keresencia insisted that she was in love with David Muganhu and that it is David Muganhu  and herself who had fought the now deceased on 23 April 2010 resulting in now deceased’s death. On the other hand David Muganhu revealed as he had already done to the Police that it is the accused and not him involved.

           David Muganhu was discharged at the close of the State case. Thereafter Keresencia offered a plea of guilty to culpable homicide and she was duly convicted without having to testify in her defence case. She was sentenced to 6 years imprisonment with 2 years’ imprisonment suspended on the usual conditions of good behavior hence the effective term of 4 years imprisonment. She however only served 1½years as she was released through the Presidential Amnesty in 2013. Meanwhile Chatukuta J had recommended that accused be prosecuted and a massive manhunt for the accused ensured culminating in accused’s arrest in the bush in Garanga area on 3 February 2012.

            The accused in his defence outline annexure B told the court that he is currently married to Keresencia and that a child has now been born out of this relationship after now deceased’s death. While the accused admitted that the now deceased was in love with Keresencia he said at the material time Keresencia had ended the affair and was now in love with the accused. Accused said Keresencia was a member of his church of which accused was the spiritual leader. Accused said on Friday 23 April 2010 he left the shrine towards sunset going to  Keresencia’s work place in order to assist her to pack her belongings as she had decided to terminate her employment immediately and stay with the accused as his wife. The accused said he arrived at Keresencia’s work place at 1600 hours but briefly left for the vlei only to return at 1700hrs. Accused said he found the now deceased present with Keresenica and that the two were fighting. Accused said Keresencia was holding an iron bar assaulting the now deceased and the now deceased was trying to forcefully take away the iron bar from her at the same time retaliating by hitting Keresencia with clenched fists and open hands. Accused said he told the two to stop fighting and inquired why they were fighting. Accused said the two obliged but now deceased kept on shouting at Keresencia. Accused said he assisted Keresencia to carry her luggage and the two left now deceased at Keresencia’s work place going to the shrine where they spent the night. Accused said Keresencia was now his wife. The next morning on Saturday 24 April 2010 accused said Keresencia left the shrine for her work place to surrender the keys as she had now left employment to marry the accused.  On her return Keresencia advised accused that she had found now deceased dead at her workplace.

            The accused denied that he interfered with the course of justice by coaxing David Muganhu and Keresencia to lie the Police in the manner alleged by the state or in any manner.  Accused said after he was advised by Keresencia about now deceased’s death he was scared to go to the Police.  The accused denied assaulting the now deceased with an iron bar or in any manner.  He stated that it is Keresencia who assaulted the now deceased with an iron bar.  Accused said his only involvement was to stop the fight between the now deceased and Keresencia which he did.

            In order to prove its case the state called the following witnesses; Dr Nhamo Changata, Petronella Tongesai, Keresencia Ever Mucharwa, David Muganhu and the Investigating Officer Supt Godwin Mvurume.  The accused gave evidence and did not call any witnesses.

            The evidence of Zvinoonzeni Martha Bheru was admitted by consent in terms of s 314 of the Criminal Procedure and evidence Act [Chapter 9:07].  In brief her evidence is as follows;

            Zvinoonzeni Martha Bheru was one of the parents of Keresencia’s employers and she was a neighbour at Keresencia’s work place.  She said on Saturday 24 April at about 0800 hrs Keresencia came to her homestead and surrendered the keys of her employer’s homestead pronouncing that she was resigning with immediate effect.  Later that morning she sent one of the children she stayed with Petronella Tongesai to go and open the cattle pen as Keresencia had left employment at Justice Bheru’s homestead. She said Petronella Tongesai raised alarm after discovering that now deceased’s body in the yard of Justice Bheru’s homestead. She attended the scene and the now deceased was stranger to her. She observed that the now deceased’s shoes, wallet, cell phone and charger were well arranged close to now deceased’s feet and there was a small note or letter well anchored by a brick. She alerted other villagers.

            The evidence of Petronella Tongesai is largely common cause. She is now 18 years old and in Form 4. At the material time she was residing with Zvinoonzeni Martha Bheru and was a member of accused’s Johanne Chishanu Apostolic sect of Nharira. She knew Keresencia who was also a member of the same church and employed at a neighbouring home. She confirmed that on Saturday 24 April 2010 in the morning Keresencia came to announce her resignation from work and surrendered the keys to her employer’s homestead to her grandmother Zvinoonzeni Martha Bheru who later tasked Petronella Tongesai to go and open the cattle and goats’ pens at Justice Bheru’s homestead since Keresencia who normally did that had left employment.  She discovered the body of the now deceased lying at Justice Bheru’s yard. She did not know the now deceased. She raised alarm and villagers gathered.

            Petronella Tongesai’s evidence is not challenged.

            Gracia Maminimini (Gracia) was neighbour to Keresencia’s employers and also a member of acussed’s Johanne Chishanu Apostolic sect at Nharira. She knew accused as the leader and prophet of the church. The importance of her evidence is that she is the one who managed to identify the now deceased to the villagers and explained how her revelations linked Keresencia to the death of the now deceased. She only saw the now deceased once before his death and later identified his body at Keresencia’s work place.

            Gracia said on Thursday 22 April 2010 up to Sunday 25 April 2010 they had a church gathering at the Nharira shrine led by the accused.  She said on Thursday 22 April 2010 before she left from church Keresencia’s who was her neighbour came and asked her to remain with Keresencia’s 3 year old child as she wanted to go to Nharira Business Centre. She said Keresencia was in the company of the now deceased whom Gracia did not know. She said Keresencia introduced the now deceased as her brother but the now deceased was not within hearing distance. She obliged. Later that day at 1500hrs Keresencia came to collect her child.  Gracia then proceeded to the shrine where she returned to again the next day on Friday 23 April 2010 and returned home at 1500hrs. Gracia said on Saturday 24 April 2010 alarm was raised after the discovery of now deceased’s body at the homestead Keresencia worked. Gracia stated upon her arrival at where deceased’s body was she recognised it as the body of a man who was with Keresencia on Thursday 22 April 2010 introduced by Keresencia to her as Keresencia’s brother.  Gracia also observed that the now deceased was wearing the same clothes he had been wearing since Thursday 21 April 2010. She identified the now deceased and caused word to be sent to Keresencia whom she learnt was at the shrine with accused for her to return to her workplace and account for deceased’s body. Keresencia did not come and Police later attended the scene.

            Keresencia in her evidence confirmed that she indeed introduced the now deceased to Gracia as her brother on Thursday 21 April 2010 when she left her child with Gracia. It was a lie by Keresencia because now deceased was not her brother but lover. Gracia’s evidence confirms that the now deceased who had visited Keresencia at her workplace on Wednesday 20 April 2010 was with Keresencia until his death on Friday 23 April 2010 and he seemed not to have changed his attire.

The other aspect of Gracia’s evidence is that David Muganhu was accused’s spiritual aide and also deputised the accused. She said David Muganhu’s role was to interpret accused’s prophecy to the congregants. Lastly Gracia testified that while she was at the shrine on Friday morning the accused pronounced that the holy spirit had demanded that he divorces his wife Rumbidzai Gandiwa.  This was announced to all the congregants gathered and Rumbidzai cried.  This confirms the allegation by the state that on the day now deceased died accused had divorced his wife Rumbidzai Gandiwa publicly in order to assure Keresencia that he was ready to marry her.

Gracia’s evidence is unchallenged.

The following exhibits were produced by consent.

Exh 1 – is the post mortem report by Dr Changato dated 27 April 2010.

Exh 2 –is accused’s confirmed warned and cautioned statement dated 3 February  

             2013.  It is written in accused’s own handwriting and is very long                                       covering 3 pages.

Exh 3 – are indications made by the accused at the scene of crime on 3 February 2013. 

              It is important to highlight that as per exh 3 accused made the following critical                 indications;

Point D – as the place Keresencia picked the iron bar used to assault the now deceased.   This would suggest that accused was present when Keresencia first picked the iron bar to assault the now deceased. This is at variance with accused’s evidence that he found Keresencia already armed with the iron bar and assaulting the now deceased.

            Point B –this is the point accused indicated that he fought with the now                                            deceased’s with clenched fists. Again this is at variance with accused’s                                 evidence as accused denied fighting the now deceased.

            Point E –is the point accused indicated that he held the now deceased’s hands from                                     behind while Keresencia assaulted the now deceased with the iron bar                                            twice. This corroborates the state’s allegation that accused acted                                                        in concert and with a common purpose with Keresencia in assaulting the                                    now deceased.

           Point F – is the place where accused indicated that the now deceased remained after

                           the assault when accused and Keresencia left.

The indications by the accused as per Exh 3 are also accompanied by a statement accused again wrote in his own handwriting in Shona explaining what happened and these notes or statement were admitted as Exh 5.

Exh 4 – is accused’s unconfirmed warned and cautioned statement which accused wrote   

             in his own handwriting in the investigating officer’s notes book upon his arrest     

             on 2 February 2013 in Gamanya area. It is also written by accused in Shona and   

             is very detailed.

Exh 6 – are photographs taken by the Investigating Officer at the scene of crime as   

             accused made indications as per Exh 3 and Exh 5.

Exh 7 – are proceedings in CRB 57/12

The cause of now decease’s death is not only clear but not in issue. As per Exh 1 the doctor found the following injuries on the now deceased;

1. scar on the right side of the face.
2. several lacerations on the chest and upper limb
3. bleeding from the nose and urethra

The doctor made the finding that cause of death was due to head and chest injuries.

Dr Nhamo Changata (Dr Changata) who carried out the external post mortem and compiled Exh 1 testified.  The Doctor explained that the injuries on the head and chest were fatal especially the head injury as the now deceased was bleeding from the nose. The doctor explained that the now deceased was bleeding from the urethra because his bladder had been injured.  Keresencia in her evidence said she is the one who pulled the now deceased’s penis and testicles.  It is very possible during that process she injured the now deceased’s bladder.  While the doctor said he did not measure the length and depth of the head injury it was clear to him that the head injury was life threatening. He dismissed as false suggestions by the accused that the now deceased sustained injuries when police ferried his body for the post mortem examination. We find this suggestion by the accused weird!!

            It is our finding that the now deceased died from the injuries inflicted as a result of an assault. It is common cause that an iron bar was used on the assault.  The iron bar in issue was not produced as an exhibit or its details given.  We however, note that as per Exh 7 which are the proceedings in CRB 57/12 by Chatukuta J the iron bar was produced. In short therefore deceased died as a result of assault.

            The only issue which falls for determination is this case is whether it is Keresencia only who assaulted the now deceased or whether accused also assaulted the now deceased. In the absence of any other eye witnesses we have to rely on the evidence of the accused and Keresencia to resolve the issue. These were the only persons at the scene at the material time.

            Before we deal with the factual dispute we intend to dispose of David Muganhu’s evidence first and analyse its relevance. As already said David Muganhu (Muganhu) was tried and acquitted of the same charges as per Exh 7 CRB 57/12.  In his evidence he explained how he got entangled in this matter.

            At the material time Muganhu was a 16 year old school dropout. He joined the Johanne Chishanu Apostolic Sect in Nharira in 2007 when it was founded by the accused who was the spiritual leader and prophet. He said the accused immediately appointed him as his spiritual aide (mubati wembiya as he put it).  Muganhu said accused emphasised that in that role Muganhu was to obey the Holy Spirit at all times and that the Holy Spirit would speak through the accused. He was further told that if he disobeyed the Holy Spirit he would die.  Muganhu said accused would tell him what to report to the church members as pronouncements by the Holy Spirit and he would oblige without question. As an example he said in 2009 accused told him that the Holy Spirit wanted accused to marry a member of the church Rumbidzai Gandiwa. He obliged and informed the congregants and accused married Rumbidzai. Another example was in April 2010 when accused told him that the Holy Spirit wanted him to divorce Rumbidzai Gandiwa. He again announced this to the congregants.  According to Muganhu he had absolute faith in accused and believed he was a man of God.

            Turning to the events of this case Muganhu had this to say:-

            Muganhu said on Thursday 22 April 2010 he saw the now deceased at the shrine whom he did not know and the now deceased was brought to accused at the shrine by a church member Keresencia.  Accused had before that told Muganhu that the Holy Spirit wanted accused to marry Keresencia.

            Muganhu said as accused’s spiritual aide he was present when Keresencia explained to the accused that she had brought the now deceased to the shrine for the accused to bless their love relationship. Muganhu said accused refused to do so saying the now deceased was not a member of his church and that the Holy Spirit could foretell that the relationship had no future. Muganhu said the now deceased was very surprised and clearly looked unhappy.  The now deceased then left this shrine with Keresencia that Thursday 22 April 2010.  He never saw the now deceased again.

            The next day Friday 23 April 2010 after the service at the shrine accused who had divorced Rumbidzai Gandiwa that day tasked Muganhu to take Rumbidzai Gandiwa to her aunt and relate the sad news.  Meanwhile accused said he wanted to accompany Keresencia to her work place. He obliged and took Rumbidzai Gandiwa to her aunt and returned at the shrine at 1700 hours. Accused was not present. Muganhu said accused only arrived at the shrine at 1900 hours in the company of Keresencia and Keresencia’s three year old child.  They were carrying Keresencia’s luggage. Muganhu said accused told him that the now deceased wanted to commit suicide without elaborating save to say it was through poison. Thereafter early Saturday accused, Keresencia and the child left for accused’s home and he remained at the shrine. He said on Saturday later in the day he received word at the shrine that the now deceased had been found dead at Keresencia’s work place. He followed accused and Keresencia and advised them. He said accused then discussed with Keresencia and advised her to go to the police.

            Muganhu then explained how he ended up in police custody over the death of the now deceased.

            Muganhu said they received word that accused was also wanted by the police and accused took Muganhu to a mountain where they both prayed after which accused told Muganhu what the holy spirit wanted which was as follows:-

1. that Muganhu was to go to the police and lie that he, Muganhu, and not accused was Keresencia’s boyfriend and that if Muganhu failed to do so he would die.      
2. that Keresencia whom accused had already told to go to the police was under instruction from the accused to also lie that Muganhu was her boyfriend and to corroborate Muganhu’s lies on their relationship and circumstances of the now deceased’s death.
3. That the version Muganhu was to give the police about the now deceased’s death was that Muganhu had arrived and found Keresencia and the now deceased fighting and that as Muganhu was restraining them Keresencia hit the now deceased with an iron bar.  This is the same version Keresencia would give the police.
4. That the holy spirit wold ensure that both Muganhu and Keresencia would be released from custody after few days and the criminal matter relating to the now deceased’s death would die a natural death.
5. That it was important and strategic for accused to remain out of custody so that he would incessantly pray for the release of Muganhu and Keresencia, a task he would not be able to execute if he was incarcerated. 

Muganhu testified that as a loyal disciple he complied with accused’s “spiritual advice” and handed himself to the police. Muganhu was then jointly charged for now deceased’s murder with Keresencia and remanded in custody from where he was only released after three months on bail.

Upon his release Muganhu said he realised accused had duped him as the holy spirit had not performed the miracles accused had promised. He decided to approach both the Public Prosecutor and the CID Officers at Chivhu where he revealed the truth.  He remained on remand with Keresencia but accused was now on the run as police failed to locate him despite looking for him and sending word for accused to report to police. Keresencia went to live with accused after her release on bail.

Muganhu said he was indicted with Keresencia and was only acquitted by Chatukuta J at the close of the State case as he maintained his story of how accused had duped him in the manner explained. Muganhu said Keresencia who by then was accused’s wife and had now a child with accused maintained the lie throughout the trial that Muganhu and not accused was her boyfriend and how the now deceased had died.

Muganhu was clear in his evidence that accused and Keresencia had fallen in love well before the fateful day on Friday 23 April 2010 and that Keresencia was well aware of accused’s marital status as she was not only a church member but a friend of accused’s wife Rumbidzai Gandiwa with whom she joined the church together in 2009. Muganhu said Keresencia also attended the ceremony when accused and Rumbidzai Gandiwa married.

In relation to his Christian faith Muganhu said at the material time he believed accused who was holy and guided by the Holy Spirit had holy powers to rescue him from custody within few days as accused had said. It was later when this failed that he realised he had been taken along the garden path.

Under cross examination Muganhu was taken to task as to why he would have such blind faith in accused to the extent of lying to the police in a serious murder case. In response he explained that he was just a 16 year old at the material time who had dropped out of school in Form two to be accused’s aide. He said he had faith in accused and believed he was a man of God who meant well. Muganhu was taken to task on why he then changed his mind and what became of his faith.  In response he said accused’s promises for his early release failed and he realised he had been duped.  No other useful questions were put to him.

Our analysis of Muganhu’s evidence should be taken in the context of his age at the material time and his faith. It is clear to us that Maganhu was an unimpressionable boy who reposed his faith in all what accused told him. He believed accused meant well as a man of God and reposed his faith in him without fully appreciating that he was being led into a dark and dangerous alley. In fact Muganhu epitomises how blind faith can be exploited by those who purport to possess holy powers.

Muganhu gave a clear coherent and straight forward account of what happened. Most of the issues he raised are not in issue. His position in the church was not disputed. He was accused’s aide.

He was not Keresencia’s boyfriend. Accused was the boyfriend. He was nowhere near the scene crime but accused was. Indeed he lied to the Police and was incarcerated for a matter he knew nothing about. It is true he had a change of heart which led to accused’s arrest. We find no reason not to accept his evidence just like what Chatukuta J did in CRB 57/12. We find no danger of false incrimination nor the motive for Muganhu to falsely incriminate accused.

Keresencia is a convicted accomplice as already said and she was properly warned when she testified.

Keresencia said at the material time she was employed at Justice Bheru’s homestead where  she stayed alone with her 3 year old daughter and was a member of accused’s church. She said the now deceased was her boyfriend since 2007 but that she ended the affair at the end of 2009 when she discovered he was married and she was not interested in polygamy. She said she fell in love with accused the leader of the church in April 2010 and only married him after her release from custody on bail. They had a child before her trial and conviction. She has since been released from prison through the Presidential Amnesty after serving 1 year of 4 year term. She came from the same area with the now deceased in Buhera.

Keresencia said despite her decision to end the affair with now deceased continued to visit her at her workplace at Justice Bheru’s homestead in Nharira, Chivhu where he would assault her demanding that she reverses her decision.

In relation to the events of this case she said the now deceased visited her on Wednesday 21 April 2010 at her workplace where he spent the night threatening to commit suicide if she did not reverse her decision. On Thursday 22 April 2010 she said she took now deceased to the shrine at her church but did not find anyone present and they returned home.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    The next day Friday 23 April 2010 she said she went to church and returned home towards sunset only to find the now deceased present.

Keresencia said the now deceased started to shout at her and proceeded to assault her. She said she tried to escape to no avail as the now deceased chased after and caught up with her. In self-defence Keresencia said she picked an iron bar in the yard and hit the now deceased. She said accused who arrived at that stage restrained her. Keresencia said she immediately resigned and left with the accused that same night leaving the now deceased at this homestead. She said he next morning Saturday 24 April 2010 she returned to her workplace to surrender the keys and then she saw now deceased lying in the yard but never bothered to check if he was alive or not.

In relation to the assault she said the now deceased was assaulting her with his hands when she picked an iron bar which they both tussled over. She said accused then arrived and pushed them apart and she took the opportunity to hit the now deceased with the iron bar on the head and all over the body. She then left the scene with accused and was arrested in April 2010 on a date she cannot recall. She said Muganhu was only arrested in May 2010. Keresencia said she assaulted the now deceased several times on the head and all over the body with a maximum force. She estimated the number of blows to be over 15. 

It was clear to us that the only truth Keresencia told this court relates to how the now deceased was assaulted. All the other issues she testified on cannot possibly be true. To her credit she admitted that on Thursday 22 April 2010 she lied to Gracia Maminimini that the now deceased was her brother. She probably told this truth that when this incident happened she had been in love with accused for a month. It is obviously not true that when she took now deceased to the shrine she did not find anyone. Muganhu was clear on what happened and what accused told the now deceased. It is not true that she did not know accused’s marital status when she fell in love with him in April 2010 let alone that Rumbidzai Gandiwa was accused’s wife. She could not fail to know this as a member of church and even accused was unable to support her on this lie. It is again not true that when accused divorced Rumbadzai Gandiwa purportedly through the Holy Spirit she was not there on Friday 24 April 2010. Muganhu and Gracia Maminimini were clear on that. It is not true that upon her arrest she did not implicate Muganhu and that at her trial she exonerated him. The proceedings in CRB 57/12 exposed her as a shameless liar. In those proceedings in her warned and cautioned statement she said Muganhu was her boyfriend and that he was present when she fought now deceased and that it is Muganhu who restrained her. She maintained this story throughout the trial and Muganhu was not acquitted because she had owned up but the court realised she was lying. The truth of the matter is that Keresencia in her story to the Police and throughout her trial had simply decided to replace accused’s role with Muganhu. Up to now she is unwilling to accept this irrefutable fact.

We have also realised that even the version of how she assaulted the now deceased is now different from what she said in CRB 57/12. Besides using the iron bar she had said she also pulled now deceased private parts. In CRB 57/12 she was clear that upon her return the next morning on Saturday 24 April 2010 she found now deceased dead hence she got scared and decided to leave employment. In her evidence she was now saying a different story. She even tried to give the impression in this court that accused had not witnessed her assaulting the now deceased. We were therefore not surprised when she even distanced herself from the affidavit she gave to the Police after her conviction when accused was arrested. She was not denying that on Friday 23 April 2010 she had left the shrine with the accused and that it is the now deceased who arrived at her workplace and found her with accused. Most importantly she sought to deny that she had said that accused held the now deceased’s hands as she assaulted him with an iron bar. She was only prepared to accept from that affidavit that she pulled now deceased’s penis and testicles.

In our view Keresencia just like the time of her arrest is still unwilling to tell the truth of what happened. She loves accused. They have a child together. She had rejected the now deceased in preference of accused. Her motivation to mislead the court is clear. It is to protect the accused. If accused had played no incriminating role in the assault of the now deceased one wonders why Keresencia will tell all these lies. Our conclusion is that her evidence is manifestly unreliable she is simply a liar.

The investigating officer Supt Godwin Mvurume (Supt. Mvurume) said he was assigned to re-investigate the matter on 28 June 2012 after the trial of Muganhu and Keresencia. At that time he said accused was at large as he had abandoned both his rural home and shrine, hence he had to put posters of accused in the area to alert the public that accused was on the wanted list by the police. Superintendent Mvurume said he arrested accused with the assistance of members of the public in Gamanya area after which accused opted to give him a warned and cautioned statement exh 4 on 3 February 2013 at the scene of arrest which accused wrote in Shona in Superintendent Mvurume’s note book. At the police station the same day accused gave another warned and cautioned statement exh 2 which accused again wrote in Shona and the statement was confirmed. Superintendent Mvurume said he took accused to scene of crime where accused made indications as per sketch plan exh 3 on 3 February 2013 and photographs taken exh 6. Superintendent Mvurume said accused again wrote self-explanatory notes for the indications he made as per exh 5.

             Superintendent Mvurume said in his investigations accused gave contradictory evidence in which he initially said he fought the now deceased but in the same breath saying he only held now deceased’s hands from behind as Keresencia assaulted him with iron bar on the head. Superintendent Mvurume said accused’s version also differed from that of Keresencia and he concluded that both accused and Keresencia had assaulted the now deceased. No useful questions were put to him in cross examination.

            In our view the narrow issue which the court has to decide is accused’s role if any, in the fatal assault of the now deceased. This is simply a factual rather than a legal issue.

            Our assessment of accused’s evidence is that it is fraught with inconsistencies, improbabilities and out right falsehoods. Why do we say so? While accused’s unconfirmed statement exh 4 and the confirmed warned and cautioned statement exh 2 were admitted by consent the accused in his evidence sought to distant himself from parts of these statements. The reason for that is that accused realised the inconsistencies in exh 2 and exh 4.

            In exh 4 which he wrote in his own handwriting at the time of arrest accused said he had teamed up with Keresencia to fight the now deceased on the fateful day and had fled the scene the same night with Keresncia before now deceased had died. He said he was afraid to go to the police and that Muganhu is the one who opted to be implicated in this matter. He said after Keresencia’s release on bail they stayed together and had a child but after the conviction he fled to Mutare, Harare only to be arrested by villagers. In exh 4 accused said he fought now deceased with clenched fists and that they were rival suitors fighting over Keresencia. He further said it was during this fight that he held the now deceased’s hands as Keresencia assaulted the now deceased several times all over the body with the iron bar. He insisted that Muganhu volunteered to be arrested in place of the accused.

            In the confirmed warned and cautioned statement exh 2 covering 3 pages, and in accused’s own handwriting, accused confirmed that the now deceased and Keresencia had visited the shrine where accused refused to bless their relationship. This dove-tails with Muganhu’s evidence. Accused in exh 2 confirmed that he fell in love with Keresencia while he was married to Rumbidzai Gandiwa both of whom were members of his church. In exh 2 accused confirmed Muganhu’s evidence that on the fateful day he had divorced Rumbidzai Gandawa and had later followed Keresencia at her work place where he found now deceased present. The version accused gave in exh 2 is that the now deceased upon accused’s arrival quarreled with Keresencia and the accused which culminated in a fist fight between him and the now deceased. He said Keresencia also joined the fight on his side. Accused said the now deceased throttled Keresencia which caused accused to hold now deceased’s hands from his back and Keresencia took the chance to hit the now deceased with an iron bar all over the body until the now deceased fell down after which accused and Keresencia picked Keresencia’s luggage and left. Again in exh 2 accused said he connived with Keresencia and Muganhu to exonerate himself and falsely implicated Muganhu who was innocent. Accused confirmed that he was aware that he was on the police wanted list as per posters displayed in his home area but he evaded them for 2 years by hiding in Mutare, Harare and his rural home.

            The version accused now gave in court on how the assault took place is different from that in exh 2 and exh 4. Accused was now saying upon his arrival he found the now deceased and Keresencia already fighting and that all he did was to restrain them. In fact accused said he, at that point did not know the now deceased, had not met him before and was unaware of his relationship with Keresencia. This is a lie because accused had the previous day met the now deceased at the shrine when Keresencia brought him to accused and accused had refused to bless their love relationship. In court accused vehemently denied that he fought the now deceased and solely blamed Keresencia for the fatal assault. The accused’s lies were further exposed by himself when accused inadvertently said in his evidence;

 

            “When we fought with the now deceased David Muganhu was not there”

 

This slip of the tongue, as accused tried to call it, unwittingly confirms accused’s version in exh 2 and exh 4 that he fought the now deceased despite accused’s valiant attempts to construct a different version.

In our view, just like Keresencia the accused was unwilling to tell a consistent story of what happened. It is therefore surprising that in court accused was now denying that he was aware police were looking for him. He was denying that he fled his rural home to Mutare and Harare. Accused even denied that he influenced Muganhu to confess to an offence Muganhu was not involved.

Our findings are that the accused who was the spiritual leader of the church who had Muganhu as his aide fell in love with Keresencia who was in love with the now deceased. It is clear that accused’s refusal to bless the love relationship between now deceased and Keresencia and his public divorce of his wife Rumbidzai Gandiwa had not yielded the desired results as the now deceased remained a stumbling block in accused’s plans to be with Keresencia. It is our finding that the fateful day the accused teamed up with Keresencia to fight the now deceased who was clearly overpowered by the two who had set their minds to be together at his expense. It is our finding that besides using clenched fists accused also held the now deceased’s hands as Keresencia assaulted him several times all over the body with iron bar. It is therefore clear that accused acted in concert with Keresencia and with a common purpose. The assault was clearly fatal. This explains the massive cover-up by both accused and Keresencia to the point of even implicating David Muganhu. We find no logic in that the police would force accused to write warned and cautioned statements exh 2 and exh 4 which in essence were not directly implicating the accused in the fatal assault of the now deceased and were exculpatory.

It has not been proved, in our view that when accused teamed up with Keresencia to assault the now deceased he intended to kill him nor can it be said that he foresaw that death would result. This was a fight in which accused and Keresencia ganged up against the now deceased. It is clear that accused was negligent and reckless when he held the now deceased’s hands to facilitate the assault by Keresencia with an iron bar. The blows were fatal resulting in deceased’s death. We agree with both counsel that accused cannot be found guilty of contravening s 47 (1) of the Criminal Code [Chapter 9:23] but instead you should be convicted of contravening s 49 of the Criminal Code which relates to culpable homicide.

Verdict

            Guilty of contravening s 49 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] – Culpable Homicide.

 

 

 

 

National Prosecuting Authority, the State’s legal practitioners

C Matsahuni Chikore & Partners, accused’s legal practitioners