Sunday, September 27, 2020

Judge acquits, discharges two in murder case

Who murdered Irene Nthoi on February 16, 2007 near Mukubilo Village?
This question arose after two of the four Zimbabwean citizens who were arrested for her murder were found not guilty of the crime by Francistown High Court judge Zibani Makhwade.

Assure and Butholizwe Ndlovu were acquitted and discharged at the close of the prosecution case as the state and defence lawyers agreed that there was no evidence against them.

This left the Mpofu brothers, Fanuel and Romeo, in the dock with the State alleging that the two were the perpetrators of the crime.

In his judgment, Francistown High Court judge Makhwade said that he was not able to draw a conclusion that the axe found at the murder scene was the same one that was given to one of the two accused persons, Romeo Mpofu, by the man who claims to have employed him, Mooketsi Medupe.

Further, Fanuel Mpofu denied involvement in killing Nthoi or that he had gone to the murder scene before he was arrested. He also denies that he had pointed out the keys of the motor vehicle to the police and denied any knowledge of the axe that was produced as an exhibit.

He denied that his brother, Romeo, had come with the cassettes and the cell phone.

Romeo Mpofu’s explanation, on the other hand, is that he had on the 16 of February 2007 accompanied a certain Jabulani Ndlovu to Nkojane cattle post where he had been promised some milk and that on the way back they had found a motor vehicle with open doors with no one inside and that they had then decided to steal property in it.
He said that he personally went into the car and took 10 cassettes and a Nokia phone but failed to remove its radio.

Romeo said that they then left the scene of the crime and, on the way, shared the loot and that he got the cell phone and six cassettes and then parted ways.

Later on, he said, he had decided to go and sell the cellphone to a certain Sibanda in Mukubilo and that it was then that they were arrested.

Romeo Mpofu also denied that the axe that he was shown was the one that he was given by his employer.

On his palm prints that were found on various parts of the vehicle, the judge said that Romeo admitted they were his because he had touched the vehicle as he moved around looking for items to steal.

Makhwade said that he was not able to say that Romeo’s evidence was a lie but that he could safely say that Medupe’s evidence claiming that it was his axe that he had given to Mpofu was unbelievable.

On the issue of the car keys that the state alleges were pointed out to them by Fanuel Mpofu, the judge said that one state witness said that Fanuel had pointed out the keys and that another state witness, who was supposed to confirm that Fanuel had pointed out the keys, failed dismally to do so as he could not distinguish any of the accused persons from each other, specifically that he could not point out who Fanuel was.

The judge said that in the light of Romeo Mpofu’s evidence that his brother Fanuel was not present when he stole items from the car and the failure of state witness to identify Fanuel, the benefit of doubt must be given to him. This, he said, means that he is of the view that the state had failed to prove that Fanuel had pointed out the car keys to the police and, as a result, failed to prove his guilt.

He acquitted and discharged them.
On the evidence against Romeo, he said that from the prosecution evidence and prosecution witnesses the evidence against Romeo is that he was found in possession of cassettes and cellphone belonging to the deceased, adding that he admitted he took the items from the deceased’s motor vehicle.

This, he says, places Romeo at the scene of the murder on the day of the crime.

Secondly, his palm prints were found on the bonnet and on each side of the vehicle. This, he said, leaves no doubt that he had contact with the vehicle. That there is no doubt about this. His explanation, the judge said, is that he came into contact with the vehicle whilst searching for items to steal.

To the prosecution’s statement that he had stated that he had been all over the car because he was pushing it, the judge said a state witness had told the Court that he had seen two people dressed in black pushing the vehicle and that it was pushed to the other side of the road. But that the logical conclusion on the way the vehicle was reported to have been pushed was that Romeo’s finger prints should have been found at the back of the vehicle but that none was found there and that the witness did not say he could identify the people who were pushing the car.
The evidence that connects the accused with the crime, the judge said, is as follows:

That he was found with items that belonged to the deceased and that his finger prints were found on her car. The question that the arises, the judge said, is whether the two points above juxtaposed against the explanation given by Romeo point to the only reasonable inference that Romeo killed the deceased. – That evidence on record, the judge said, suggests that the deceased must have been struck while on the road then dragged out of the road.

That Romeo’s home was never visited and that this raises two issues. The question of whether or not the axe that was entrusted to Romeo was at Medupe’s field (Medupe was his employer) would have been placed beyond doubt.

That ordinarily, if the accused persons were involved in commission of murder it is likely that items of clothing would have been found with blood stains and a scientific analyst could have matched the same with the accused persons if they were perpetrators of the crime.

That the law does not require proof beyond all doubt but that it requires proof beyond reasonable doubt that, in order to convict, proved facts must point to the guilt of the accused.
And that a conviction should not be based on probabilities. In this case, judge Makhwade said that there are strong suspicions that Romeo Mpofu was involved in the murder. That it is his considered view that with the explanation given by Mpofu, which he is not able to reject as false, it would be unsafe to return a verdict of guilt.
That submissions have been made that the deceased might have met her demise at the hands of either her in-laws or her boyfriend but that, in his considered view, there is no evidence that remotely suggests these possibilities.

The judge also said that the Court does not have to point out as to who might have killed Nthoi in order to acquit the accused person. What the Court is faced with, he said, is whether or not the persons brought before the Court are guilty or not guilty of the offence and that the accused is discharged from the offence and that the cell phone and car keys be handed to the deceased’s estate.


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Sunday Standard September 27 – 3 October

Digital copy of Sunday Standard issue of September 27 - 3 October, 2020.