Tellmore Mutsuge v the State [2025] ZWCHHC 16 (19 February 2025)

5 HCC 06/25 HCCR 843/24 XREF: KAR 41/74 TELLMORE MUTSUNGE Versus THE STATE HIGH COURT OF ZIMBABWE MUZOFA & BACHI-MZAWAZI JJ CHINHOYI,20 January & 19 February 2025 Criminal Appeal T. H. Maromo, for the appellant R. Nikisi, for the respondent MUZOFA J: The appellant appeals against conviction and sentence. He was convicted after a trial on three (3) counts of stock theft and failure to comply with conditions of his firearm certificate in contravention of s114 (2) (a) of the Criminal Law [Codification and Reform] Act (Chapter 9:23) and the Firearms Act (Chapter 10:09) respectively. After conviction on the stock theft charges the court a quo found no special circumstances. It imposed a sentence of 9 years on each count. It ordered counts 2 and 3 to run concurrently. The effective sentence is 18 years. On the charge under the Firearms Act he was ordered to pay a fine of US$100.00 in default of payment 1 month imprisonment. Dissatisfied by both the conviction and sentence, this appeal was noted in respect of the stock theft charges. On the date of hearing Mr Maromo for the appellant abandoned the appeal against sentence. After some exchange with the court on the appropriateness of the grounds of appeal, he abandoned grounds of appeal 1, 4 and 5 opting to proceed in respect of the 2nd and 3rd grounds only. I deal with the 4th count first since both counsel were in agreement. Both counsel conceded that the facts before the court a quo did not prove that the appellant failed to comply with the conditions of his firearm certificate. The firearm certificate was not produced before the Court a quo which means the conditions on the certificate were not established. Naturally the State then failed to prove which condition was contravened. In other words, the State shot in the dark, there was no target. Mr Nikisi for the State urged this court to use its review powers and substitute the charge with contravening s28 of the Firearms Act which provides; ‘28 (1)….. (2) Any person having in his possession any firearm or ammunition shall take all such precautions as may be reasonable necessary to prevent such firearm or ammunition falling into the possession of any unauthorised person and shall comply with such security measures, both with regard to the safekeeping thereof and the condition in which it may be kept, as may be prescribed. (5) If any person fails to comply with this section, he shall be guilty of an offence and liable to a fine not exceeding level six or to imprisonment for period not exceeding one year or to both such fine and such imprisonment. The State accepted that the appellant had a valid firearm certificate although it was not produced. It was common cause that the firearm whose magazine had 3 rounds was recovered from Enock Manyanga’s homestead hidden under a heap of dry grass. The accused did not deny hiding the gun at that place. His conduct was negligent and irresponsible. The mischief sought to be addressed by the section is that those who own firearms must diligently safeguard them to avoid them falling into wrong hands. Once a firearm falls into wrong hands it can led to regrettable consequences. In Chinhotsa v The State HH 98/11 the appellant left his gun in a car when he went into a shop. It was stolen. He was convicted under the said section for failure to safe guard the firearm. The Court held that such conduct was negligent. It is competent for this Court sitting as an appeal Court to amend the charge provided there is no prejudice to the accused and the facts disclose the offence in terms of s29 (2) (viii) of the Criminal Procedure and Evidence Act. The charge shall be varied to read contravening s28 (3) a.r.w ss(5) of the Firearms Act. The sentence shall remain as pronounced since the penalty section under s4(c) of the Firearms Act is similar to s28 (3) a.r.w ss(5). The imposed fine is appropriate in the circumstances. I revert to the stock theft charges. The appellant and his accomplices allegedly stole from the same complainant one Easten Matemera. It was alleged that on the 14th of February 2023, 31st of December 2023 and 6 January 2024 the appellant armed with his rifle a Brno 2.2 long rifle proceeded to Vhuka Farm Karoi with his accomplices. At the farm in February, they shot a white Brahman heifer, in December they shot a brown Tuli bull and in January they shot a brown Brahman steer. On all occasions they slaughtered the beasts, packed the meat in 50 kg sacks and ferried them away. The appellant denied the offence. He indicated that all times he was at his homestead. On the 6th of January he was called by someone who advised him that they had recovered some meat. He had nothing to do with the meat. Crucially he indicated that when he was arrested, he was assaulted and coerced to sign a warned and cautioned statement. He was further assaulted to make indications. He was also forced to sign the Notices of Seizure. After considering the evidence before it, the court aquo convicted the accused. It found that there was no direct evidence linking the appellant to the offence. The court relied on the much-disputed indications which it allowed as evidence after a trial within a trial. It made a finding that there was no evidence that the appellant was duly influenced to make indications. After conviction an effective sentence of 18 years imprisonment was imposed. The two grounds of appeal that remain before the court raise the following issues. Whether the court a quo misdirected itself in making a finding that the indications were made freely and voluntarily after a trial within a trial.Whether the State disproved the appellant’s alibi. The trial within a trial Section 50 (4) (c) of the Constitution gives every person who has been arrested or detained has a right not to be compelled to make any confession or admission. It is also a fundamental right that the arrested person must be treated humanely and with respect for their inherent dignity. The Constitution recognises that an arrested person does not become less human, he or she still retains the dignity endowed on him or her as a human being. There is no excuse to derogate and interfere with that inherent dignity. It is one of the fundamental rights. Where an accused person appears before a trial Court and challenges the statement he made, that it was given under undue influence a trial with a trial must be held before the statements are admitted. This is procedural issue which vitiates the proceedings if not properly complied with. A statement includes a written, oral or mute statement whether tape or video recorded see S v Nkomo & Anor 1989 (3) ZLR 124. A trial within a trial is a mini trial separate and distinct from the main trial on the guilt of the accused. It is only after the admission of the statements that the accused can be questioned on it. See S v Shezi 1994 (1) SACR 575 (A). The procedure is that, the State must outline its case on how the statement was recorded. The accused will outline his case outlining the details of what he believes influenced his freewill in making the statement. The State will lead its witnesses and they are cross examined. The State closes its case. The defence opens its case and sets out its evidence. The accused is cross examined. At the close of the defence case both the State and the defence can address the court. The procedure must take place before the statement or indications are placed before the court. In other words, the court is unaware of the contents of the statement. The proceedings before the Court a quo show a somewhat strange approach. The investigating officer Constable Mupfumira gave evidence of how the indications were conducted and how the appellant pointed at different places. The defence objected but the court was oblivious of the procedural irregularities it ordered the State to proceed. The following exchange is quite revealing, ‘Q. What else did the accused say he wanted to do? A. Accused said he wanted to take us to Vhuka Farm for some indications. Q Upon accused recovering this firearm what evidence were you shown gun belonged to him. A Accused showed us firearm certificate. He showed us. He had same in his pocket. What else happened with certificate. A He handed over the rifle together with licence to CID. Q What else did accused say wanted to do. A Accused said he wanted to take us to Vhuka farm for some indications. Q Why were you sure he was doing this freely and voluntarily. A No one was forcing him. Q Did you tell accused of his rights? Did you tell accused of his rights? A YesWhat rights. A Legal Representation, offence, type of offence, accused his rights to remain silent, that he has right to medical attention. Defence Counsel - We want to object to the testimony of this witness with regards to indications and confession. State is not clear they are tendering indications. Evidence of confirmation statements cannot be said if same is not shown it was made freely and voluntarily. State Counsel - What the witness is testifying what he was directly involved in. We are going to tender the warned and cautioned statement. 48 Defence Counsel - We make an application for all statements on indications to be expenged. They did so without tendering them. State Counsel - Defence Counsel is reminded of the voluntaries of the statements. He can always cross examine. Defence Counsel - Section 256(2) is clear. The problem accused is facing is that a confession is being tendered orally. State is now taking a confirmation through a police officer. State has obligation to prove that it was made freely and voluntarily made. By Court — Lets proceed. Q After informing accused of his rights when did you leave Manyanga's homestead. A After recovering the firearm. Q Where then did you go. A Vhuka farm. Accused showed us where he would enter Vhuka farm. Q What did he show you. A A small depression. Accused would lie down and get inside after showing us how he got into the farm, we then went inside through the main gate accused took us to the place he had slaughtered a brown heifer. The one in the lust count. He also showed us where he slaughtered the beast. He showed us he had the beast and tag number. He also showed that he was the one who slaughtered the bull in the other count. Q How was the state of the carcass.’ Technically the evidence of the indications was placed before the Court. This was wrong. The appellant had challenged the admissibility of the indications in the defence outline. I can do no better than agree with the sentiments in S v Chinembiri HH 272/24 where the court faced with similar circumstances had this to say, “before the police officers could testify about the confession and statement, the accused should have been given an opportunity to confirm whether he made them freely and voluntarily, without undue influence. If the accused had contested this, and the confession and statement not having been confirmed, a trial within a trial would have been necessary. The confession and statement are not admitted into evidence until the State proves beyond reasonable doubt that they were made freely and voluntarily, without undue influence”. See also S v Mazano & Anor 2000 (1) ZLR 347 (H). It was the court’s duty to control its processes and not allow such evidence to be placed before it. It having been before the Court irregularly it must not be considered in deciding on the merits of the case. After constable Mupfumira had given evidence on indications and exhibits produced, the Prosecutor then applied for a trial within a trial. This was now cosmetic, the court had all the evidence before it. This case demonstrates the prejudice that arises from such an approach. The court was now aware of prejudicial evidence against the accused before it made a ruling on its admissibility. During the trial within a trial, the two officers who gave evidence, did not confine themselves to the making of the indications. They literally spoke to what the appellant did and what was recovered. This procedure is alien in our jurisdiction. The purpose of a trial within a trial is to establish whether the maker’s will was swayed by any external forces meant to improperly bear on his freedom of volition. Procedurally the process must strictly confine itself to the circumstances surrounding the making of the statement. It must not disclose the content of the statement /indications. Contrary to the court a quo’s findings there was evidence that the appellant was assaulted by the officers. Timothy Ganga who was initially arrested on the same charges gave evidence as a State witness. He said the police assaulted them on the way to make indications. Timothy Ganga was hired by the appellant to Nyama Shops then to Manyanga’s place. His evidence was that the appellant was assaulted and he showed them where the meat was. Before this court Mr Nikisi conceded that the appellant was assaulted. He submitted that the evidence showed that when the appellant was taken to the police, he had no injuries. On admission at Prisons, he had a swollen eye. The only inference is that he was assaulted by the police. In our view all the evidence placed before the court a quo established that the appellant was prevailed upon to make indications. The court must have held them inadmissible. Mr Nikisi would not let go, he urged this court to rely on s258 of the CPEA and find that although the indications were inadmissible, what was recovered is admissible. Mr Maromo resisted this approach arguing that the court a quo did not rely on the section in its judgment. Despite the non-reliance by the Court a quo on the section, this court is permitted by law to consider if there was evidence to convict despite the lower court’s judgment. The appellant’s indications resulted in the recovery of the following, The gun and a knife was recovered from Manyanga’s house. Fresh meat from Manyanga’s homestead .Decomposed carcasses at the complainant’s farm. The recovered items on their own did not link the appellant to the commission of the offence. This is different from an accused in a murder trial who makes indications and the body of the deceased is recovered. The meat recovered from Manyanga’s homestead did not prove anything, it was not shown that it was the complainant’s beast. Some tags were also recovered which were said to belong to the complainant. They were produced through the investigating officer. However they were not shown to the complainant to confirm that the tags were from his beasts. Thus the evidence was that for the beast stolen on 14 February 2023 only a carcass was recovered no tags recovered. For the 31 December beast only the bones were recovered. These recoveries would not prove much in the absence of some other evidence to confirm that the carcass was from the complainant’s beast and were slaughtered by the appellant. In respect of the beast stolen on the 6th of January 2024 fresh meat was recovered. Mupfumira said no ear tags were recovered. The meat was recovered from Manyanga’s house, how was it linked to the complainant’s beast? There was no evidence that it was the appellant who slaughtered the beast. In the absence of evidence from the indications, there was nothing to prove a case beyond a reasonable doubt against the accused. The first ground of appeal succeeds. The second ground of appeal raises alibi. The law is trite on this defence. The accused has no onus to prove his defence all he has to do is to give foundational information to enable the State to investigate his alibi. The accused must raise his defence of an alibi early in the investigations for the State to investigate it. An alibi raised in court is as good as no alibi since it cannot be investigated. In this case although the appellant raised alibi in his defence outline. There was no evidence that he raised it when the investigations were still going on. The warned and cautioned statement was not produced. What is decisive though is that the officers contradicted themselves on the alibi. Mupfumira said they did not investigate the alibi yet Mutandiro said they investigated the alibi. The State case was therefore mutually destructive. It failed to discharge the onus placed on it. The evidence before the Court a quo less the indications raised a strong suspicion that the appellant could have committed the offence but the evidence was not proof beyond a reasonable doubt. Accordingly, the following order is made. The appeal be and is hereby upheld.The decision of the Court a quo in Counts 1-3 be and is hereby set aside and it is substituted with the following, ‘Not guilty and acquitted’ The charge on the 4th Count is amended to read, ‘Contravening s28 (2) arw ss(5) of the Firearms Act (Chapter 10:09 )’ BACHI- MZAWAZI J Agrees. National Prosecuting Authority, the respondent’s legal practitioners Choga & Associates, the appellant’s legal practitioners 5 HCC 06/25 HCCR 843/24 XREF: KAR 41/74 5 HCC 06/25 HCCR 843/24 XREF: KAR 41/74 TELLMORE MUTSUNGE Versus THE STATE HIGH COURT OF ZIMBABWE MUZOFA & BACHI-MZAWAZI JJ CHINHOYI,20 January & 19 February 2025 Criminal Appeal T. H. Maromo, for the appellant R. Nikisi, for the respondent MUZOFA J: The appellant appeals against conviction and sentence. He was convicted after a trial on three (3) counts of stock theft and failure to comply with conditions of his firearm certificate in contravention of s114 (2) (a) of the Criminal Law [Codification and Reform] Act (Chapter 9:23) and the Firearms Act (Chapter 10:09) respectively. After conviction on the stock theft charges the court a quo found no special circumstances. It imposed a sentence of 9 years on each count. It ordered counts 2 and 3 to run concurrently. The effective sentence is 18 years. On the charge under the Firearms Act he was ordered to pay a fine of US$100.00 in default of payment 1 month imprisonment. Dissatisfied by both the conviction and sentence, this appeal was noted in respect of the stock theft charges. On the date of hearing Mr Maromo for the appellant abandoned the appeal against sentence. After some exchange with the court on the appropriateness of the grounds of appeal, he abandoned grounds of appeal 1, 4 and 5 opting to proceed in respect of the 2nd and 3rd grounds only. I deal with the 4th count first since both counsel were in agreement. Both counsel conceded that the facts before the court a quo did not prove that the appellant failed to comply with the conditions of his firearm certificate. The firearm certificate was not produced before the Court a quo which means the conditions on the certificate were not established. Naturally the State then failed to prove which condition was contravened. In other words, the State shot in the dark, there was no target. Mr Nikisi for the State urged this court to use its review powers and substitute the charge with contravening s28 of the Firearms Act which provides; ‘28 (1)….. (2) Any person having in his possession any firearm or ammunition shall take all such precautions as may be reasonable necessary to prevent such firearm or ammunition falling into the possession of any unauthorised person and shall comply with such security measures, both with regard to the safekeeping thereof and the condition in which it may be kept, as may be prescribed. (5) If any person fails to comply with this section, he shall be guilty of an offence and liable to a fine not exceeding level six or to imprisonment for period not exceeding one year or to both such fine and such imprisonment. The State accepted that the appellant had a valid firearm certificate although it was not produced. It was common cause that the firearm whose magazine had 3 rounds was recovered from Enock Manyanga’s homestead hidden under a heap of dry grass. The accused did not deny hiding the gun at that place. His conduct was negligent and irresponsible. The mischief sought to be addressed by the section is that those who own firearms must diligently safeguard them to avoid them falling into wrong hands. Once a firearm falls into wrong hands it can led to regrettable consequences. In Chinhotsa v The State HH 98/11 the appellant left his gun in a car when he went into a shop. It was stolen. He was convicted under the said section for failure to safe guard the firearm. The Court held that such conduct was negligent. It is competent for this Court sitting as an appeal Court to amend the charge provided there is no prejudice to the accused and the facts disclose the offence in terms of s29 (2) (viii) of the Criminal Procedure and Evidence Act. The charge shall be varied to read contravening s28 (3) a.r.w ss(5) of the Firearms Act. The sentence shall remain as pronounced since the penalty section under s4(c) of the Firearms Act is similar to s28 (3) a.r.w ss(5). The imposed fine is appropriate in the circumstances. I revert to the stock theft charges. The appellant and his accomplices allegedly stole from the same complainant one Easten Matemera. It was alleged that on the 14th of February 2023, 31st of December 2023 and 6 January 2024 the appellant armed with his rifle a Brno 2.2 long rifle proceeded to Vhuka Farm Karoi with his accomplices. At the farm in February, they shot a white Brahman heifer, in December they shot a brown Tuli bull and in January they shot a brown Brahman steer. On all occasions they slaughtered the beasts, packed the meat in 50 kg sacks and ferried them away. The appellant denied the offence. He indicated that all times he was at his homestead. On the 6th of January he was called by someone who advised him that they had recovered some meat. He had nothing to do with the meat. Crucially he indicated that when he was arrested, he was assaulted and coerced to sign a warned and cautioned statement. He was further assaulted to make indications. He was also forced to sign the Notices of Seizure. After considering the evidence before it, the court aquo convicted the accused. It found that there was no direct evidence linking the appellant to the offence. The court relied on the much-disputed indications which it allowed as evidence after a trial within a trial. It made a finding that there was no evidence that the appellant was duly influenced to make indications. After conviction an effective sentence of 18 years imprisonment was imposed. The two grounds of appeal that remain before the court raise the following issues. Whether the court a quo misdirected itself in making a finding that the indications were made freely and voluntarily after a trial within a trial. Whether the State disproved the appellant’s alibi. The trial within a trial Section 50 (4) (c) of the Constitution gives every person who has been arrested or detained has a right not to be compelled to make any confession or admission. It is also a fundamental right that the arrested person must be treated humanely and with respect for their inherent dignity. The Constitution recognises that an arrested person does not become less human, he or she still retains the dignity endowed on him or her as a human being. There is no excuse to derogate and interfere with that inherent dignity. It is one of the fundamental rights. Where an accused person appears before a trial Court and challenges the statement he made, that it was given under undue influence a trial with a trial must be held before the statements are admitted. This is procedural issue which vitiates the proceedings if not properly complied with. A statement includes a written, oral or mute statement whether tape or video recorded see S v Nkomo & Anor 1989 (3) ZLR 124. A trial within a trial is a mini trial separate and distinct from the main trial on the guilt of the accused. It is only after the admission of the statements that the accused can be questioned on it. See S v Shezi 1994 (1) SACR 575 (A). The procedure is that, the State must outline its case on how the statement was recorded. The accused will outline his case outlining the details of what he believes influenced his freewill in making the statement. The State will lead its witnesses and they are cross examined. The State closes its case. The defence opens its case and sets out its evidence. The accused is cross examined. At the close of the defence case both the State and the defence can address the court. The procedure must take place before the statement or indications are placed before the court. In other words, the court is unaware of the contents of the statement. The proceedings before the Court a quo show a somewhat strange approach. The investigating officer Constable Mupfumira gave evidence of how the indications were conducted and how the appellant pointed at different places. The defence objected but the court was oblivious of the procedural irregularities it ordered the State to proceed. The following exchange is quite revealing, ‘Q. What else did the accused say he wanted to do? A. Accused said he wanted to take us to Vhuka Farm for some indications. Q Upon accused recovering this firearm what evidence were you shown gun belonged to him. A Accused showed us firearm certificate. He showed us. He had same in his pocket. What else happened with certificate. A He handed over the rifle together with licence to CID. Q What else did accused say wanted to do. A Accused said he wanted to take us to Vhuka farm for some indications. Q Why were you sure he was doing this freely and voluntarily. A No one was forcing him. Q Did you tell accused of his rights? Did you tell accused of his rights? A Yes What rights. A Legal Representation, offence, type of offence, accused his rights to remain silent, that he has right to medical attention. Defence Counsel - We want to object to the testimony of this witness with regards to indications and confession. State is not clear they are tendering indications. Evidence of confirmation statements cannot be said if same is not shown it was made freely and voluntarily. State Counsel - What the witness is testifying what he was directly involved in. We are going to tender the warned and cautioned statement. 48 Defence Counsel - We make an application for all statements on indications to be expenged. They did so without tendering them. 48 State Counsel - Defence Counsel is reminded of the voluntaries of the statements. He can always cross examine. Defence Counsel - Section 256(2) is clear. The problem accused is facing is that a confession is being tendered orally. State is now taking a confirmation through a police officer. State has obligation to prove that it was made freely and voluntarily made. By Court — Lets proceed. Q After informing accused of his rights when did you leave Manyanga's homestead. A After recovering the firearm. Q Where then did you go. A Vhuka farm. Accused showed us where he would enter Vhuka farm. Q What did he show you. A A small depression. Accused would lie down and get inside after showing us how he got into the farm, we then went inside through the main gate accused took us to the place he had slaughtered a brown heifer. The one in the lust count. He also showed us where he slaughtered the beast. He showed us he had the beast and tag number. He also showed that he was the one who slaughtered the bull in the other count. Q How was the state of the carcass.’ Technically the evidence of the indications was placed before the Court. This was wrong. The appellant had challenged the admissibility of the indications in the defence outline. I can do no better than agree with the sentiments in S v Chinembiri HH 272/24 where the court faced with similar circumstances had this to say, “before the police officers could testify about the confession and statement, the accused should have been given an opportunity to confirm whether he made them freely and voluntarily, without undue influence. If the accused had contested this, and the confession and statement not having been confirmed, a trial within a trial would have been necessary. The confession and statement are not admitted into evidence until the State proves beyond reasonable doubt that they were made freely and voluntarily, without undue influence”. See also S v Mazano & Anor 2000 (1) ZLR 347 (H). It was the court’s duty to control its processes and not allow such evidence to be placed before it. It having been before the Court irregularly it must not be considered in deciding on the merits of the case. After constable Mupfumira had given evidence on indications and exhibits produced, the Prosecutor then applied for a trial within a trial. This was now cosmetic, the court had all the evidence before it. This case demonstrates the prejudice that arises from such an approach. The court was now aware of prejudicial evidence against the accused before it made a ruling on its admissibility. During the trial within a trial, the two officers who gave evidence, did not confine themselves to the making of the indications. They literally spoke to what the appellant did and what was recovered. This procedure is alien in our jurisdiction. The purpose of a trial within a trial is to establish whether the maker’s will was swayed by any external forces meant to improperly bear on his freedom of volition. Procedurally the process must strictly confine itself to the circumstances surrounding the making of the statement. It must not disclose the content of the statement /indications. Contrary to the court a quo’s findings there was evidence that the appellant was assaulted by the officers. Timothy Ganga who was initially arrested on the same charges gave evidence as a State witness. He said the police assaulted them on the way to make indications. Timothy Ganga was hired by the appellant to Nyama Shops then to Manyanga’s place. His evidence was that the appellant was assaulted and he showed them where the meat was. Before this court Mr Nikisi conceded that the appellant was assaulted. He submitted that the evidence showed that when the appellant was taken to the police, he had no injuries. On admission at Prisons, he had a swollen eye. The only inference is that he was assaulted by the police. In our view all the evidence placed before the court a quo established that the appellant was prevailed upon to make indications. The court must have held them inadmissible. Mr Nikisi would not let go, he urged this court to rely on s258 of the CPEA and find that although the indications were inadmissible, what was recovered is admissible. Mr Maromo resisted this approach arguing that the court a quo did not rely on the section in its judgment. Despite the non-reliance by the Court a quo on the section, this court is permitted by law to consider if there was evidence to convict despite the lower court’s judgment. The appellant’s indications resulted in the recovery of the following, The gun and a knife was recovered from Manyanga’s house. Fresh meat from Manyanga’s homestead . Decomposed carcasses at the complainant’s farm. The recovered items on their own did not link the appellant to the commission of the offence. This is different from an accused in a murder trial who makes indications and the body of the deceased is recovered. The meat recovered from Manyanga’s homestead did not prove anything, it was not shown that it was the complainant’s beast. Some tags were also recovered which were said to belong to the complainant. They were produced through the investigating officer. However they were not shown to the complainant to confirm that the tags were from his beasts. Thus the evidence was that for the beast stolen on 14 February 2023 only a carcass was recovered no tags recovered. For the 31 December beast only the bones were recovered. These recoveries would not prove much in the absence of some other evidence to confirm that the carcass was from the complainant’s beast and were slaughtered by the appellant. In respect of the beast stolen on the 6th of January 2024 fresh meat was recovered. Mupfumira said no ear tags were recovered. The meat was recovered from Manyanga’s house, how was it linked to the complainant’s beast? There was no evidence that it was the appellant who slaughtered the beast. In the absence of evidence from the indications, there was nothing to prove a case beyond a reasonable doubt against the accused. The first ground of appeal succeeds. The second ground of appeal raises alibi. The law is trite on this defence. The accused has no onus to prove his defence all he has to do is to give foundational information to enable the State to investigate his alibi. The accused must raise his defence of an alibi early in the investigations for the State to investigate it. An alibi raised in court is as good as no alibi since it cannot be investigated. In this case although the appellant raised alibi in his defence outline. There was no evidence that he raised it when the investigations were still going on. The warned and cautioned statement was not produced. What is decisive though is that the officers contradicted themselves on the alibi. Mupfumira said they did not investigate the alibi yet Mutandiro said they investigated the alibi. The State case was therefore mutually destructive. It failed to discharge the onus placed on it. The evidence before the Court a quo less the indications raised a strong suspicion that the appellant could have committed the offence but the evidence was not proof beyond a reasonable doubt. Accordingly, the following order is made. The appeal be and is hereby upheld. The decision of the Court a quo in Counts 1-3 be and is hereby set aside and it is substituted with the following, ‘Not guilty and acquitted’ The charge on the 4th Count is amended to read, ‘Contravening s28 (2) arw ss(5) of the Firearms Act (Chapter 10:09 )’ BACHI- MZAWAZI J Agrees. National Prosecuting Authority, the respondent’s legal practitioners Choga & Associates, the appellant’s legal practitioners