THE State V Michael Musaruro

### Preamble
1
HH 229-12
CRB 126/09
THE STATE
versus
---------


==============================

THE STATE
versus
MICHAEL MUSARURO

HIGH COURT OF ZIMBABWE
BHUNU J
HARARE, 7 September 2009, 28 September 2009, 19 October 2009,
23 October 2009, 27 October 2009, 2 November 2009,
30 August 2010, 7 September 2010, 17 December 2010,
23 September 2011 and 01 June 12

ASSESSORS: 1 Mr. Tutani
2. Mr. Mutambira.

Mr. Mpofu, for the State
Mr. Nyambuya for the respondent

BHUNU J: The accused is a young man of 24 years of age. He was 21 years of age when he allegedly murdered his niece one Alga Lyn Chamisa at Number 7 Cinamon, Close, Ballantine, Chisipite, Harare. The facts and circumstances surrounding the murder of the deceased are to a large extent common cause. What is in dispute is simply the identity of her murderer.

The undisputed facts are that the deceased and the accused were not strangers in that the accused was the deceased’s uncle. They at one time used to work together at the above address as maid and gardener respectively. The accused was however dismissed from employment at the end of January 2009 on allegations of theft of her sister’s cell-phone.


Following his loss of employment the accused went back to his rural home in the Domboshawa area. Sometime in early February there was a misunderstanding between the two concerning the missing cell phone.

On 25 February the accused went to the deceased’s work place. He was seen at the gate to the premises by a gardener at the adjacent neighbouring house one Akron Fero and Itayi Nyahoko a casual gardener employed at the owner’s jewelry shop in town. The State now alleges that the accused entered the premises at number one Cinamon Close and accosted the deceased who was going about her duties. During the encounter the issue of the cell phone is said to have cropped up again resulting in the accused assaulting and strangling the deceased to death with an electrical cable. Thereafter he is alleged to have concealed the deceased’s body behind the tennis court under some ceiling board.

It is the State’s case that once he had killed the deceased the accused proceeded to steal one Philips DVD player, a Nokia 5310 cell phone, two carrier bags, a Mercer computer set comprising the CPU and keyboard, one T-Shirt, one short and a cap. He ferried all the stolen property to Domboshawa where he gave the stolen computer to one Dyson Chirima before hiding the rest of the remaining property in the bush. Acting on information the police pursued and arrested the accused on the same day leading to the recovery of all the stolen property as a result of the indications made by the accused.

He admitted having entered the premises and stolen the property as alleged by the State but vehemently denied having encountered and murdered the deceased as alleged by the State or at all.

That the deceased was murdered at or about the time the accused was seen entering the premises where the murder was committed is a foregone conclusion and a matter of common cause.

Alice Musaruro is a young lady of 26 years of age. She is the accused’s blood sister and an aunt to the deceased. She resided together with the deceased at number 7 Cinamon Close but was employed by the owner at his jewelry shop in town together with Itai Nyahoko.

It was her testimony that on the day in question and at around 8 a. m she left for work in the company of her employer. When they left for work that morning the deceased was alive and well such that she had opened the gate for them. It was her employer’s habit that whenever they got to work he would phone back home to check on the deceased if everything was in order at home. On this day he phoned as usual but there was no response from the deceased. Alice also did the same without success. Both of them got worried such that Itai Nyahoko was sent to go and check if anything was the matter at home.

Itai testified that when he got to Number 7 Cinamon Close he found a gentleman whom he now knows to be the accused talking to Akron Ferro the Gardener at the neighbouring house. Akrom Ferro is a grand old illiterate man who is apparently in his late sixties. He knew both the deceased and the accused as they were employed in the same neighbourhood.

His evidence was to the effect that there was no borehole at his premises so he used to ask for water from number 7 Cinamon Close. A hose pipe had been connected to one of the taps near the gate to enable him to fetch the water. Whenever he needed water he would shout for someone at the premises to open the tap for him.

On the day in question he called out for water and the accused responded from outside the gate at Number 7 Cinamon close. At the same time he saw the deceased who was inside the premises at the gate intending to open the gate for the accused. He observed both the accused and the deceased walking back to the house. He then decided not to disturb them for a while to give them time to discuss. When he later called out for water after about 30 minutes only the accused responded. There was no response from the deceased. He enquired about the whereabouts of the deceased who told him that she was within the premises.

The State also alleged that the accused freely and voluntarily confessed to the police that he had killed the deceased as alleged by the state. The accused challenged its admissibility on the basis of duress. The statement reads:

“I do admit the charge I am being accused of. What happened is that, I left home which is in Mungate village in Domboshawa on 25 February 2009 in the morning at 0600 hours and I was headed to the city of Harare in search of shopkeepers to whom I could sell vegetables.
 I got into the city and found that shops were still closed. I left the city and went to Bon Marche Chisipite and also found it closed too. At that point I decided to visit my niece Lyn Alga Chamisa who resides at number7 Cinamon Close, Ballantyne Park, Harare while I waited for shops to open.

I arrived at the gate and whistled and Alga Lyn Chamisa opened the gate for me and we entered and sat in the kitchen and discussed village matters. I later asked her if she had recovered her handset/cell phone that had been stolen and she said that another one had been bought for her by the builders who were working at that place. She then showed me a Nokia 5310 that had been bought for her.

At that point she asked me why I had not returned to explain the matter about my phone that had been taken away by Alice Musaruro who claimed that I had stolen it. I told her that I still intended to come to explain and she then accused me of having stolen the phone. I denied it.

It is at this point that we started arguing. I stood up from my seat but she remained seated, and I pushed her but she did not fall down. She stood up and looked at me with an angry eye and I took an electric cord from the table and lashed her once on her back. She advanced towards me with the intent to retaliate and I strangled her with the electric cord from the back. She pulled a kitchen drawer where knives and spoons are kept and it fell to the ground. At that point I feared she intended to use the knife to stab me and so I tightened the stranglehold. I then kicked her legs and she fell down and I maintained the strangling. I loosened when I saw bloodied foam coming from her mouth and nose mouth but she remained on the ground. When I noticed she had stopped breathing I feared I would be charged with murder, so I lifted her and threw her into the swimming pool so people would think she had drowned. There and then I thought people would ask how she had drowned in my presence and so I took her out. I thought of leaving her on the roof where no one would see her but then I failed to carry her up the ladder.

I lifted her and threw her in the garden and covered her with ceiling boards. I entered the white man’s/employer’s house where I stole a computer and clothing which I staffed into the bags taken from Lyn Alga Chamisa’s house. I then took the deceased’s phone that was on the table in the kitchen and I took keys and opened the gate and left headed for Sam Levy village, Borrowdale where I boarded a bus and headed for Munangati village in Domboshawa. I got there and called my friend on the phone, Roderick Murape, who I intended to give my computer for safe keeping.

We later met and agreed that we would leave it at Byson Chirima’s home since it was close to the road. We proceeded to Byson’s House and left the computer there after promising that we would collect it the following day. We left Byson’s home and then parted ways with Murape and I headed home. On the way I hid the
 DVD that was in the bag together with clothes and then went home with the phone and cash only.”

The accused’s defense is that on the day in question he travelled from Domboshawa to Harare in search of markets for his horticultural produce. He paid a visit to Bon Marche Supermarket situated close to Number 7 Cinamon Close Chisipite. While there he decided to visit his now deceased niece. When he arrived at the gate he rang the intercom and at the same time whistled for attention but there was no response.

Because there was no response he suspected that there was no one at home so he decided to jump over the gate. Despite his loud shouts for attention there was no response. After realizing that there was no one present at home that is when decided to steal the property recovered from him. He denied having seen or encountered the deceased on the day in question. He professed total ignorance and surprise as to how the deceased had met her death.

He alleged that he confessed to having killed the deceased because the police had subjected him to brutal assaults and torture. He however admitted making a warned and cautioned statement reduced writing but said that he made the statement under duress.

Sergeant George Dzvairo recorded the warned and cautioned statement from the accused on 2 March 2009. It was his testimony that he invited the accused to make a warned and cautioned statement. The accused freely and voluntarily elected to make the warned and cautioned statement without having been unduly influenced thereto. The accused’s statement led to the recovery of the stolen property a fact which is admitted by accused. The accused had difficulties with his English he therefore wrote his statement in Shona. The officer subsequently translated the Shona version to English. The English version was read back to the accused who agreed and appended his signature thereto. Although the original handwritten statement was placed in the docked it was somehow misplace and could not be produced at the trial.

He further testified that the accused freely and voluntarily made indications that were captured on video tape and played in court. Although he witnessed the video recordings he was not participating as detective inspector Chibaya was in charge of the indications. He sat at the back of the truck as the accused made the indications.


Detective sergeant Nhema confirmed that he witnessed the recording of the warned and cautioned statement and he corroborated the evidence of detective sergeant Dzvairo in every material respect.

Detective sergeant Chibaya confirmed that he was in charge of the indications that were captured on video camera. He did O’Levels and he has done a course in crime management. He has 13 years experience. The video tape was then produced and played in court. The Court observed the accused being properly warned and cautioned to the effect that he was free to make the indications and that the indications would be used against him.

The accused who was shackled in leg irons elected to lead the police from the police station to Number 7 Cinamon Close Chisipite the scene of the crime. The Court observed the accused giving directions to the police leading to the scene of crime.

Upon arrival at the gate the Court recorded its observations of the indications as made by the accused as follows:

- At the gate I whistled and Alga Chamisa came and opened the gate.
- After the gate had been opened I went in and proceeded to the kitchen.
- Q. At the kitchen what happened?
- Alga was standing there and she started talking about many things.
- I asked her about the cell phone that she had missed. She said the people concerned had given her money to buy a new one.
- She then asked me about a Nokia 2630 belonging to Alice.
- During the conversation I told her that I was coming back for the phone because they had taken back the phone from me which did not belong to them.
- She then started speaking to me in harsh words saying that I was a liar.
- I then pushed her as she was sitting on that chair. She stood up. I pushed her where she was seated on the chair.
- I took a cable from the chair. I hit her with the electric cable. When she was standing I hit her again with the electric cable.
- When she wanted to beat me I throttled her with the code. When she could not breathe, I loosened.
 • I grabbed her by the throat and dragged her outside.
• I had overpowered her. I grabbed her by the throat with the electric cable and I loosened a bit.
• I tightened again. I hit her and she fell.
• I tightened the cable again. I strangled her again with the intention that I would loosen again.
• When I realized that she was passing out I was astounded and I just left her like that.
• I then heard some dogs barking I then went out and found it was the next door neighbour calling.
• When I came back I discovered that she was now useless. I discovered that she was now dead.
• I thought what to do next. I then lifted the body.
• I took her to the swimming pool and threw her in. I then had a second thought and said people will say how did she fall into the swimming pool?
• I then decided to take her there beside the ladder behind the cottage. I tried to lift the body up the roof and I failed.
• I then decided to take the body to the rubbish dump. I dumped the body in.
• I was scared when I realized that she was dead so I decided to conceal the body here and I then left.
• I went back to the kitchen. I roamed around. When I went to the house I wanted to get away.
• I then went into the boys’ khaya where I saw a DVD and some cash. I decided to take them
• This idea to steal came to me later
• The cash was US$11. and R20. I am sorry there was US$11. and R40.
• I then went to the Main House where I took a computer and TEE shirt.
• I loaded the property into the two bags I took from the boy’s khaya. I then left
• I took the property to Domboshawa for safe keeping.
• There is only the DVD at Domboshawa. The TV was taken by the police.


• Elects to take the police to Domboshawa.

Throughout the indications nowhere did the Court observe the accused being coerced or compelled to make any indications. It was manifestly clear that the statements were made freely and voluntarily without the accused having been unduly influenced thereto. Both the accused’s warned and cautioned statement and indications on video tape dovetail with all the other available credible independent evidence. Both are accordingly admitted in evidence as tendered by the state.

The real crux of the matter is however, whether or not the deceased was alive at the time the accused went to the premises on the day in question. As already indicated Akron Fero is an eye witness who saw what happened when the accused got to the gate on that fateful day. In his own words this is what he had to say:

“On the day in question when I first saw him, Michael was outside the gate. And this lady was intending to open the gate for Michael. When I say this lady, I am referring to the deceased.

I knew the now deceased she was employed at that house as a house maid. I am told the now deceased was his sister’s child.

When I called out for water it was around 8 am. I saw the accused at the very time approaching the gate. I did not check the time when the deceased opened the gate for the accused. I then went into the house to give them time to discuss. They then went into the house but I do not know what happened.

After about 30 minutes I got out since I had given them time to discuss. I called out and Michael came out. I enquired from him if the lady was there since he was the one now giving me water and he answered that the lady was there.

...

When I asked him about the whereabouts of the girl he told me that the lady was there or was inside the house.

...

I can’t recall what the accused was wearing. I do not recognize the shirt. I did not notice the shirt because he was carrying 2 bags.

When the tank was full I called out but there was no response. That is when one of the employees came and I told him what had happened and he jumped over the gate I do not know his name but he is present today.”


Akron Ferro was an honest and credible witness who had no motive to misrepresent the facts. His story tallies with and corroborates the accused’s indications and confessions in every material respect. We thus have no hesitation whatsoever in believing his evidence that was amply corroborated by all the other state witnesses. That evidence undoubtedly links the accused to the commission of the offence and rebuts his defense to the effect that he could not possibly have murdered the deceased because he never saw her on that day. The evidence establishes beyond reasonable doubt that he was the last person who was with the deceased at the time that she met her death. In the absence of any other explanation as to how she met her death the only reasonable conclusion to be drawn from the proven facts, his confession and indications is that he has been correctly identified as the person who killed the deceased.

The manner in which he killed the deceased shows that by hitting and strangling the deceased in the brutal form he describes in his indications to the police shows that he was conscious and must have foreseen that death would ensue from his conduct. He was therefore reckless in bringing about the death of the deceased by not desisting from his dangerous unlawful conduct. He must therefore be adjudged to have intended to bring about the deceased’s death. The accused is accordingly found guilty of murder with constructive intent.

The Attorney General’s Office, State’s Legal Practitioners.
Muskwe and Associates, Accused’s Legal Practitioners
--- END OCR FALLBACK ---