The State v Lawrence Chikazhe and Francis Ndume

The two accused persons were security guards at Unit C Shopping Centre car parks in Chitungwiza. On 20 February 2021, during the COVID-19 lockdown curfew period around 11pm, accused one discovered the deceased (Nailord Musetwa, a member of the Zimbabwe National Army) attempting to steal a battery from a lorry. When confronted, the deceased fled across the road towards accused two's area. The deceased tripped and fell on his stomach. Both accused persons found the deceased lying down, appearing drunk. The accused claimed that while they were questioning the deceased, an army truck drove past, stopped, and seven soldiers disembarked. Upon discovering the deceased was a fellow soldier (from his ZNA identity card), the soldiers assaulted him severely with switches and a baton stick for approximately 10 minutes, saying he was bringing their profession into disrepute. The accused persons called the police who attended the scene and found them with the severely injured deceased. The deceased later died at a ZNA hospital. The accused were charged with murder.

• Whether the State proved beyond reasonable doubt that the accused persons murdered the deceased
• Whether circumstantial evidence was sufficient to establish guilt
• Whether the accused persons' defence that soldiers assaulted the deceased was reasonably possibly true
• The application of the presumption of innocence under s 70(1)(a) of the Constitution of Zimbabwe
• The standard of proof required in criminal cases based on circumstantial evidence

Both accused persons were found not guilty of murder and acquitted.

In cases relying on circumstantial evidence, the State must prove that the evidence is complete and incapable of explanation by any hypothesis other than the guilt of the accused. The circumstantial evidence must not only be consistent with guilt but inconsistent with innocence, forming a chain so complete that within all human probability the crime was committed by the accused and no one else. An accused person is entitled to acquittal if there is any reasonable possibility that their explanation might be true, even if improbable. The State must prove beyond reasonable doubt that the accused's defence is not merely improbable but impossible or false. The accused bears no onus to prove the veracity of their defence.

The court made critical observations about the poor quality of the police investigation, noting that the investigating officer failed to conduct any investigation to verify or disprove the accused's defence about soldiers being involved. The court commented unfavorably on the credibility of police witnesses Gift Janhi and Munyaradzi Jese, stating they were "untruthful police officers" who withheld information from the court, possibly wanting "to secure a conviction against the accused persons at all costs." The court also observed that the State's failure to call Image Napwalo as a witness remained an unexplained mystery. The court noted that astute police officers would naturally have searched for the assault weapons (switches) mentioned by the accused, but these officers failed to do so.

This case demonstrates the high standard of proof required in criminal cases based on circumstantial evidence in Zimbabwean law. It reinforces the principle that the State must not only prove facts consistent with guilt but also disprove alternative explanations that are reasonably possibly true. The judgment emphasizes that accused persons bear no onus to prove their defence - the State must prove the defence is false beyond reasonable doubt. The case also highlights judicial willingness to critically assess police witness credibility and reject prosecutions where investigating officers fail to properly investigate an accused's defence. It serves as a reminder that the constitutional presumption of innocence requires acquittal where doubt exists, even in serious cases like murder.