S v Chikanya (251 of 2022) [2022] ZWHHC 251 (1 April 2022)

HH 251-22 CRB 90/18 THE STATE versus BRIAN CHIKANYA HIGH COURT OF ZIMBABWE FOROMA J HARARE, 1, 2 &3 October 2018, 10, 18, & 29 March & 1 April 2022 Criminal Trial F Zakaria , for the state E Chimombe, for the accused FOROMA J: the accused was charged with the murder of Sarah Munhu on the 10 th of August 2017 at Ushongani Village Chief Musana Bindura by assaulting her all over her body using a chisel aluminum pot and a wooden stool. The State alleges that the accused intended to kill the deceased or realized that there was a real risk or possibility that his assault of the deceased might cause death but continued with the assault thereby causing the deceased’s death. Accused pleaded not guilty to the charge and claimed that he fought the deceased his girlfriend who reacted violently disputed the allegations of improper association with another man which accused had made against her resulting in the two getting involved in a fight during which he used a wooden stool aluminum pot and a chisel. The alleged fight ended with the deceased confessing to the improper association and an apology to accused. Accused claims that after the apology the deceased left for her friend’s homestead one Mai Simon (Simon’s Mother) and he went to sleep and only discovered the following morning that deceased had been found dead along the road that passed through the area. That deceased and accused and accused were in some love relationship is common cause. However it is significant to note that the accused who frequented the deceased’s residence was regarded as a family friend in particular by deceased’s children who did not know of the intricate love relationship between accused and their mother. For this reason when the deceased’s son Martin Nyashanu and daughter Anesu Nyashanu learnt about their mother’s death through the

HH 251-22 CRB 90/18 accused who tactfully brought both of them to the road side where deceased’s body had been found without breaking the news of their mother’s demise they never suspected the deceased to be the culprit, Martin and Anesu only were informed by the police at Manhenga Police Base where the accused was accused of the murder of the deceased. The State led evidence from Constable Mangidza. As will be observed from a summary of her evidence she was the State’s star key witness. She was a member of the ZRP attached to Manhenga Police Base and the attending detail. Constable Mangidza was assigned to attend the report of a scene of a deceased female adult found lying on the road side which report had been made to the Manhenga Police Base. She attended the scene with one Constable Ndlovu. On arrival at the scene she found a Police Constable Madyira who narrated the circumstances of the matter as far as he had gathered and she was told that deceased’s son Martin Nyashanu was in attendance. Martin Nyashanu identified the deceased as his mother by the name Sarah Munhu. She observed that the deceased was lying on her back with her head and face covered with a purple cloth. Deceased was wearing a pair of black plastic sandark sandals and a pair of black and white socks. She also observed that the deceased’s dress was neatly tucked underneath her thighs. The area immediately around the deceased’s body did not exhibit any signs of struggle. She established from Martin Nyashanu that his sister was last with the deceased at the deceased’s homestead the previous day. The witness observed on the deceased’s body and noted the following injury- a deep cut on the lower libra of the left leg. There was no blood next to deceased’s clothes were not blood stained. Once Constable Mangidza heard that the deceased was last seen alive at her residence the previous day. She decided to visit deceased’s homestead to establish any leads she could get. At deceased’s home Anesu Nyashanu informed her that deceased had left home wearing a pair of black sandark shoes and a pair of stockings. Anesu indicated to Constable Mangidza the direct ion her mother took as she left the homestead and showed the witness the deceased’s foot prints in the direction deceased had taken which foot prints matched the deceased’s shoe prints that deceased had been observed wearing where her body was found. In her testimony Constable Mangidza traced the footprints which led her to the accused’s bedroom. The witness noted that there were no shoes leaving the said room. From this information gathered she started suspecting the accused of the murder of deceased. On her return to the road side where deceased’s body had been located she found the accused present and

HH 251-22 CRB 90/18 noted that he left the place returning a while later with a change of clothes. She narrated her suspicious to Constable Ndlovu. The witness observed the accused trying to board a commuter vehicle (kombi) and stopped him. As Martin Nyashanu had related to Constable Mangidza how the accused had get them to the place where his mother’s body had been found she decided on some clear reason for preventing the accused leaving the scene. She decided to tell him that since he had broken the news to deceased’s children he had to accompany the children to the police at Manhenga where they were required to give a statement and accused obliged. Without so much as suspecting anything amiss. Constable Mangidza then consulted Constable Shoko at Manhenga Police base and arranged that he arrange to arrest accused whom she was sending with the deceased’s children as she considered him to be the prime suspect and her reasons for so saying. The witness’s plan to get the accused arrested worked perfecting and accused and the deceased’s children (who until then were on the dark as to their mother’s assailant) boarded a kombi that passed through the scene to go to Manhenga Police base accompanied by two police details who had since arrived at the scene. On arrival at Manhenga accused was arrested and charged with the murder of the deceased. Accused was taken back to the scene where Constable Mangidza and other police details interrogated him before taking the accused to his homestead. On being interrogated accused admitted that he had assaulted the deceased after some misunderstanding. On being or asked why he had assaulted the deceased accused replied that he had learnt that she was developing an interest in other men and that had not gone down well with him. The witness asked accused to take them where the incident had taken place which the accused voluntarily offered to do. At the accused’s homestead Constable Mangidza asked the accused to open his bedroom and on entering the room she noticed all the walls blood stained. She also noticed blooded stained blue jean trousers and petticoat batch towel white T-shirt black and white small blanket. On further interrogation accused revealed that as he was fighting the deceased he had used a stool which broke and that he also used a chisel and an aluminum pot which items accused handed up to the police. When asked how the walls got blood stained the accused told the police that in the early stages of the fight he had smashing deceased’s head on the wall although he could not remember how many times he did so. Constable Mangidza further testified that she observed that the floor

HH 251-22 CRB 90/18 had been cleaned as there was stagnant water in the room which had not dried up. From the bedroom the witness informed the accused that she wanted to search the environment. Before going far the accused called the witness and offered to make a clean breast by revealing some of the material used. Accused then took the witness to the kitchen where he showed the witness the following: 1) one by two in one big blanket 2) a bed cover 3) a pink female panty and; 4) a red wallet Both blankets were wet and blood stained. These were recovered as exhibits. The witness asked accused as to ownership of items of clothing and accused as to ownership of items of clothing and accused indicated that the female panty belonged to the deceased and so did the wallet. When the witness asked why the accused had hidden these items accused replied that he had thought he would succeed. It is important to note that when Mangidza inspected the deceased’s body she found a lot of wounds some of which the accused could not explain how they were inflicted. Constable Mangidza testified that she collected all exhibits which she handed to the police details going to the main station as she, was posted at Manhenga Police Base. Worth nothing too is that some of the wounds she had observed on inspecting the deceased’s body were confirmed by the pathologist who conducted an autopsy on the remains of the deceased and thee include the broken right hand, the broken tibia of the left leg. When asked to comment on the accused’s assertion that after the fight the deceased visited her friend (Simon’s mother). The witness pointed out that the foot/shoe prints she observed showed that the deceased entered the accused’s bedroom but did not come out. The area around accused’s homestead was described as not covered with grass or loan and so the shoe prints were readily visible. It is also worth noting that the witness remarked that the deceased had a broken leg and arm and could not have washed from accused’s residence to the road where her body was found. It is also significant to note that the witness did not find any of the wounds on the deceased to be bleeding and she considered that either the wounds had been washed or wiped as she would have expected the type of wound inflicted on deceased’s body to

HH 251-22 CRB 90/18 bleed. It was the witness’ understanding that when accused indicated that the reason he had hidden the items he had used was that he had hoped he could successfully conceal evidence of his involvement in the death of the deceased. Although the witness observed that the deceased was wearing a male under pant she had not asked the accused as to whose panty the deceased was wearing. This witness largely stuck to her evidence and was not shaken under cross examination. Through this witness the following exhibits were produced: 1) home-made chisel 2) broken wooden chair pieces 3) deformed aluminum pot 4) a brown floral blanket 5) a small grey and white stripped blanket 6) peach towel with blood stains 7) a peach female panty 8) cream petticoat with blood stains 9) red female purse 10) white T shirt Items (4), (5), (6), (7) and 8 belonged to the deceased and the rest belonged to accused. The said exhibits which were recovered from the accused by the witness are corroborative of the witness’ testimony and were admitted as evidence with the constant of the accused. The only other exhibits not produced through Constable Mangidza were the post mortem report and the accused’s confirmed warned and cautioned statement. The court has deliberately not followed the order the witness were called. This is in consideration of the weight of evidence adduced from the other witness in view of such evidence not having been challenged by the accused. For the value of completeness the testimony of the other witness is summarized below. Killen Musesani chronicled how early in the morning on 11 August (about 7:00 a.m.) he saw the deceased lying on her back with her face covered with a printed cloth wearing sandak shoes with a white sole and a black top. She was also wearing a brownish orange dress. He could not identify the deceased at that stage and all he was clear about is that the body was

HH 251-22 CRB 90/18 motionless suggesting the person was dead. He is the one who reported the matter to Constable Shoko at Manhanga Police Base. When the deceased was identified he realized he knew her as the person he used to see selling pots made by tin smiths. When he saw the deceased’s body lying on the road side he did not get close to it. This evidence was largely not challenged. Martin Nyashanu was deceased’s son who used to assist accused with some odd construction jobs. He considered accused as his friend. He described events of 10 August when he and the accused went together to Manhenga shops to purchase some roofing sheets for a rabbit cage they intended to construct. Accused and himself returned home about 8:00 p.m. and dropped the sheets before going to sleep. He also testified that the following morning about 6:00 a.m. the accused arrived at their homestead crying and suggesting that he prepare to go to Domboshava where the witness’s father was but the accused did not disclose why he had to go to Domboshava. He invited him and Anesu his sister to come with him to the road without disclosing that their mother had been found dead there. When they got to the road side he discovered that his mother no more. The whole incident was very difficult for him to comprehend. He fell asleep and at one point that morning Constable Mangidza woke him up and told him he had to go to the police base to give a statement. He was accompanied to Manhenga Police Base by a police detail called Madyiwa. Accused and Martin’s sister Anesu went with him to Manhenga Police Base using a commuter vehicle and it was at Manhenga Police Base where they gathered from police that accused had killed his mother as they arrested him. Martin also testified that as the police attested accused they removed his shirt exposing some fresh and old wounds on accused’s body. When police asked accused about the fresh wounds on his body he referred them to the witness who denied any knowledge about them. The witness did not describe any other wounds he observed on accused’s body except marks of teeth bite on his shoulder and bruised hands. Anesu Nyashanu testified under oath after Martin Nyashanu. Her evidence was that accused was friends with her brother Martin with whom he used to do some construction work and the accused was affectionately addressed as Matemayi. She testified that on 10 August 2017 her mother (deceased) left home at about 6:00 p.m. purportedly going to attend an All Night Church Prayer Meeting and indicated she would pass through Simon’s mother’s evidence so that they would go together. She also testified that the deceased was a regular church goer. The

HH 251-22 CRB 90/18 evening Martha arrived and asked after their mother before they went to sleep. She further testified that the following morning accused arrived at their residence at about 6:00 a.m. and asked after their and she told him that she had gone to church the previous evening where upon he invited them to come with him to the road and when they asked as to why they had to come up with him he started crying crocodile tears. Accused went ahead of her with Martin and when she followed she found people gathered. She was counselled by the elderly women who suggested she go back home. Around 9:00 a.m. a woman police detail arrived at the witness homestead and made enquiries concerning her mother. She was asked when her mother left home an what clothes she was putting on and the type of shoes she was wearing and what direction she had taken. The woman police detail felt the homestead trailing the direction her mother had taken. When she went back to the road side police asked her and Martin to go to Manhenga Police Base and at Manhenga Base the accused was arrested. At Manhenga Police base Constable Shoko told them Martin and her that the accused was the one who killed their mother that was the first time she got to know about his involvement in the death of her mother. She further testified that whole at Manhenga Police Base accused was asked to remove his shirt. When accused removed his shirt she saw fresh teeth bite marks on accused’s shoulder. Whilst still at the Manhenga she was asked if there was a man who used to frequent their home and that she had replied that she had replied that she did not know any. During cross examination the witness was asked if the accused had any fresh wound on his body and she replied that apart from the teeth bite marks accused had fresh bruises on his back. She did not know that her mother was in a relationship with the accused when she and her sibling regarded as a family friend. She was also able to identify some of the exhibits produced as belonging to her mother. The other witness who gave oral testimony was Assistant Inspector Fungai Masoja. His evidence was largely formal. However, he also testified that he interviewed a woman called Sarudzai Chisvo (Mai Simon) to verify whether the deceased had been to her residence the evening of 10 August 2017 and she indicated that the deceased had not arrived at her homestead the previous night that is the night of the 10 th of August 2017 and when accused was confronted with this I response by Sarudzai Chisvo the accused did not respond. It is important to note all this stage that police had been inclined to record a statement from Sarudzai Chisvo but she