THE State V Tinashe Mohammed & Simbarashe Muyambo

1
                                                                       HH 101/2012
                                                                        HC98-9/11


THE STATE
versus
1. TINASHE MOHAMMED
2. SIMBARASHE MUYAMBO


HIGH COURT OF ZIMBABWE
BERE J
MUTARE: 26 AND 29 AUGUST 2011

CRIMINAL TRIAL

Assessors

Mr Magorokosho
Mr Chidavanyika


J. Matsikidze for the State
R. M. Mubata for 1st accused
P. Nyakureba for 2nd accused


       BERE J: Laye Fode Kaba (the deceased) was a Guinea National who was residing
in Mozambique but would frequent Zimbabwe to illegally deal in diamonds from
Chiadzwa area. He was known to both accused and it is clear from the evidence led and
accepted by the court that the deceased was very close to the accused persons whom he
relied upon as his agents in the lucrative illegal diamond business.
        The deceased died in mysterious circumstances and his remains were severely
mutilated when it was run over by a locomotive train along the Mutare – Machipanda
railway line. The post mortem report exhibit 10 clearly shows that the deceased’s remains
had been severely damaged at the time Doctor Simbarashe Andrew Pfumojena a medical
practitioner then based at Mutare Provincial Hospital attempted to ascertain the possible
cause of death.
       From the papers filed there was no unanimity as to when exactly the deceased lost
his life. The indictment itself suggested the date of the deceased’s death as 27 November
2010 whilst the defence gave the 30 November as the likely date of death.
                                                                                           2
                                                                         HH 101/2012
                                                                          HC98-9/11

More confusion followed when the evidence tendered by the State by way of admissions
suggested that the deceased’s remains were run over by a train on the 29 November 2010
and by implication suggesting that as the possible date of death.
       From the evidence at its disposal the State alleged the two accused persons had
conspired to murder and indeed murdered the deceased on their way from Mozambique
to Zimbabwe using an undesignated port of entry. It was the State’s position that along
the way the two accused throttled the deceased to death and conveniently placed the
deceased’s remains on the Railway line in a bid to cover up their evil and criminal act.
       The two accused persons, whilst admitting to have been the last persons to have
been with the deceased denied the charge. They both alleged that as they were coming to
Zimbabwe in the company of the deceased they were waylaid by unknown assailants and
had to turn away in different directions. They alleged it was this unfortunate incident
which cost the deceased his life. They stated the unknown people who waylaid them were
responsible for the deceased’s demise.
        To advance its position the State sought to rely on the evidence tendered by way
of admissions in terms of section 314 of the code as well as the viva voce evidence of
Detective Assistant Inspector BRUCE BHUNU and PAUL JAMES.
         The evidence of Paul James started off well and was well given in evidence in
chief but showed visible and quite noticeable cracks under cross-examination. It was in
his evidence in chief and cross examination that the witness disclosed that he was
involved in illegal dealings in diamonds in this country. The second accused disclosed
that he knew the witness very well as a Mozambican National who stays in Zimbabwe
illegally. It was accused 2’s unchallenged evidence that ever since he came to Zimbabwe
this witness has always been staying with the accused 2’s close relative. The accused 2
said he regarded Paul as a brother. The second accused was asked more than once in
cross-examination why Paul James would falsely incriminate the accused person in the
alleged murder of the deceased and he stated as follows;-
      “ Paul feared he might be implicated in the commission of this offence and that he
       was involved in illegal diamond dealings. Police had been informed about Paul by
       Kerfala Mara, the deceased’s brother.”
                                                                                              3
                                                               HH 101/2012
                                                                 HC98-9/11
 When the same question was repeated to the second accused though in a slightly
changed manner the second accused’s response was as follows;-
          “ Paul is a foreigner here and he was safeguarding his stay with the police. I do
            not know how the police had treated him during his arrest.”

          It was certainly not possible to whitewash Paul’s evidence in the light of the
accused two’s characterization of Paul as an illegal resident in this country.
     The handcuffing of Paul by the police in the presence of Assistant. Inspector Bhunu
cannot and must not be a subject of speculation because Paul himself said he was initially
handcuffed and it was only later that the handcuffs were removed from him. It is not
usual during the police investigations to handcuff potential State witnesses. We can only
speculate and say perhaps this conduct by the police details was calculated to inspire fear
in the mind of the witness whose position was further compromised by his illegal
dealings in diamonds as well as staying illegally in this country.
      We are satisfied that because of this Paul was vulnerable and he could easily have
been manipulated into giving evidence tending to show the accused persons had
something to do with the death of the deceased. Indeed, the suggestion in the State
summary that he had heard the accused persons confessing to the police that they killed
the deceased further heightened our caution in dealing with his evidence. It was even
more curious that the witness could not confirm this indication when he gave his
evidence. In our view that might tend to show interference with Paul’s testimony by the
police.
          Assistant Inspector Bruce Bhunu’s evidence in chief in general terms was fairly
given but again the cross-examination exposed some of the unmistakable short-comings
in his testimony.
      The witness’s emphatic denial of having handcuffed Paul James did not portray the
witness in good light. The officer tried to correct the anomally by suggesting that the
handcuffing might have been done by the other officers as he had remained in the motor
vehicle when Paul James was initially confronted by the police at his home in Chikanga
Suburb. This position which the State counsel urged us to accept is extremely difficult to
comprehend and we are unable to accept it. This is so because doing so would be
inconsistent with the apparent leading role played by the officer concerned in dealing
                                                                                            4
                                                                     HH 101/2012
                                                                       HC98-9/11
with all those people who were rounded up as suspects in connection with this case. By
his own testimony, Assistant Inspector Bhunu was the most visible officer when accused
2’s brother was picked up, the leadership hand of the same officer is unmistakable when
the accused 2 himself was picked up in Zimunya. The same also goes with the manner in
which the first accused and his wife Grace were picked up. The question then arises, why
would the officer have played a leading hole in rounding up all the suspects and the
accused persons in this matter and suddenly play an insignificant role in the initial
questioning of Paul James.?
       The arrest of the first accused was done in dramatic fashion in the early hours of
the 1 December 2010 and in public. It attracted the attention of quite a number of
residents from Dangamvura Suburb who could have been called to add value to the State
case as independent witnesses. No such witnesses were called and the Court must be
wary of such approach in investigations particularly so where only the evidence of the
police officers is relied upon and challenged. There is value in embracing independent
evidence because such evidence is generally unbiased. This is so because every police
officer has an interest in the outcome of any criminal investigations carried out. Their
justified assumption is that generally, every case that is taken to court has the potential of
securing a conviction.
      The submissions by counsel for accused number 1 were quite revealing in our view
when he argued that the police could have done more in expanding their investigation
base. We agree with the observation made that having recorded, some of the deceased’s
personal belongings, an attempt should have been made to involve the forensic
department of the ZRP to try and come up with more positive indicators towards the guilt
of the accused persons in this case.
         The guilt of an accused person is not a matter of one’s personal conviction that
the accused did what he is alleged to have done. That conviction must have a firm base
and that base must be the tangible evidence available. A strong believe grounded in air
will not help.
                                                                                               5
                                                                   HH 101/2012
                                                                     HC98-9/11
     With forensic evidence available, it would have been extremely difficult for the
accused persons to explain away the existence of their finger prints or blood on the
deceased’s personal items.
             It is not the court’s intention to embark on a deeper analysis of the evidence
given by the two accused persons. This is so because their role in criminal proceedings of
this nature is not to prove their innocence but merely to cast doubt on the State case as no
onus rest on them. In this regard I can do no better than repeat the instructive words of
Davis A J A in the case of Rex V M 1946 AD 1023 at 1027 where the Learned Judge
remarked:-
       “ And I repeat, the court does not have to believe the defence story, still less has it
       to believe it in all its details, it is sufficient if it thinks that there is a reasonable
       possibility that it may be substantially true”

     We are satisfied that all those who have been involved in this case ( the prosecution
inclusive) share that view that the story told by the accused was flawless. It was told with
convincing corroborative tongues. It sounded sincere and genuine. It was difficult to get
the accused to depart from their story even under well calculated and pointed cross
examination. We are satisfied that the accused must be believed when they suggested the
deceased must have died on 30 November 2010.
       The State case suggested the deceased was throttled to death. An expert witness Dr
Simbarashe Andrew Pfumojena, a medical practitioner then based at Mutare Provincial
Hospital who had the misfortune of having to examine the badly mutilated remains of the
deceased was unable to come to the conclusion advocated by the State.
       The witness also discounted the possibility of the deceased having been killed by
the moving locomotive because of the absence of blood from the possible point of impact
to the point where the deceased’s remains were eventually gathered together. The best
evidence available that could have linked the two accused persons to the deceased’s death
was the two cellphone handsets found in their possession belonging to the deceased. Both
accused persons gave an explanation as to how they came to be in possession of those
handsets. That explanation could not be controverted by any sane minded person.
       Add to this, evidence abounds both from the State and the defence that it was the
accused persons who volunteered these exhibits to the investigating officer.
                                                                                          6
                                                                        HH 101/2012
                                                                          HC98-9/11
       The requirements of conviction via the avenue of circumstantial evidence has been
adequately explored by all the three counsels and I need not behabour the point. Suffice it
to say that from all the bits and pieces of evidence put together by both the State and the
defence, the only reasonable interference to be drawn must be that the accused killed the
deceased.
  The evidence we have does not allow us to come to this conclusion.
        As suggested by the counsel for and 2, anything could have happened to the
deceased. The possibility of him having been murdered by unknown persons cannot be
ruled out. Though a remote possibility death by being run over by a train cannot be
completely ruled out although one would be more inclined to accept the theory that the
deceased was murdered and had his remains placed on the railway line to conceal the evil
act.
        Finally, we are satisfied as a court that it would be a travesity to the very basic
tenets of justice if in the light of all the evidence tabled in this court the two accused
persons were to be convicted of the offence charged. We are accordingly inclined to grant
them the benefit of doubt.


Verdict – Not guilty and acquitted.




Attorney General’s Office (Crimial division, ) for the state
Takaidza & Mubata Legal Practitioners, for 1st accused
Maunga , Maanda & Associates for the 2nd Accused