FIVE Bulawayo police officers who were being accused of allegedly killing a suspected armed robber for resisting arrest have been acquitted by the High Court.
Herbert Kanyinji, Bornwell Mahachi, Amiga Shumba, Norge Rapayi and Mbekezeli Bhebhe had pleaded not guilty before High Court judge Justice Evangelista Kabasa cleared them of the accusations.
According to the court papers, on March 30, 2021, the five were part of a seven-member team of police officers tasked with tracking down and arresting the now-deceased, Nkululeko Banda, who was a suspect in a spate of robberies in the Bulawayo and Esigodini areas.
Armed with AK-47 assault rifles, they went to Banda’s home, where they barged into his bedroom, apprehended him and assaulted him indiscriminately.
The court heard that they then drove away with him at around midnight, after which they took him to United Bulawayo Hospitals where he was declared dead on arrival.
The cops submitted that they arrived at Banda’s home and on entering the room where he was sleeping, they sought to confirm his identity.
He then sprung up and tried to disarm Shumba, resulting in a scuffle.
Banda resisted arrest and a struggle ensued until he was eventually subdued and had his hands tied.
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The court heard that he broke free and managed to escape, but was apprehended and he was driven to Claremont on a recovery mission as it was believed a firearm was hidden there.
The court heard that along the way, Banda suffered a seizure and as his condition deteriorated, they drove him to hospital, where he was pronounced dead.
The State led evidence from six witnesses and the first witness was Banda’s wife, Rejoice Nyathi, who was with the armed robber when the police details barged in.
She said she dashed out of the room as she could not watch her husband being assaulted, only to return later.
Nyathi said she saw drag marks within the yard.
She later learnt of his death.
Nyathi, however, admitted that she was not able to identify the people who barged into their bedroom and could not dispute the discharge of the gun under whatever circumstances.
Also testifying was Banda’s stepfather, as well as nurses who attended to him at UBH, who said Banda was already dead when he was brought to hospital.
A post-mortem conducted by Juana Rodriguez Gregori gave the cause of death as asphyxia, occlusion of airway due to neck constriction.
Justice Kabasa said the visible marks on Banda’s body might have been a result of the skin rubbing against a rough surface, pointed or sharp objects.
“Could this not have occurred inside the bedroom at the time the gun was discharged under the circumstances described by the accused? Unfortunately, the only witness who could have assisted was deceased’s wife, but she had left the room. The deceased did not live to tell his side of the story.
“We have already stated that the nature of the assault is not linked to the cause of death. There is no nexus linking the accused’s actions to the cause of death,” the judge ruled.
“We were left with more questions than answers as to when and where and who strangled the now-deceased. The charge that the accused is facing of murder requires the State to prove that the accused unlawfully and intentionally caused the death of the deceased.
“It is for these reasons that we came to the conclusion that the State failed to prove its case beyond reasonable doubt, entitling the accused to an acquittal.”
Concluded Justice Kabasa: “Consequently, the five accused are found not guilty and acquitted.”
