UPDATED: MaPecca’s ‘killer’ acquitted . . . Judge cites lack of evidence in fatal shooting
Mashudu Netsianda, Senior Court Reporter
THE High Court has ruled that the State dismally failed to prove its case beyond reasonable that Bulawayo businessman Oricious Moyo killed Tawanda “MaPecca” Moyo (43), a former member of Siyaya Arts Group.
Moyo (41) of Emganwini suburb was initially charged with attempted murder but the charges were altered to murder after his victim later succumbed to the injuries.
Moyo, who was alleged to have shot MaPecca, his lover’s husband, was acquitted by Bulawayo High Court judge Justice Martin Makonese yesterday following a full trial with three State witnesses giving their testimonies.
The witnesses included the investigating officer, Assistant Inspector Charles Nyamukubva and MaPecca’s two friends Mr Stewart Nyathi and Mr Leeroy Malunga.
The deceased’s wife, Ms Jacqueline Moyo with whom Oricious was allegedly having an extra-marital affair, denied that she was having an affair with the accused person.
She also denied having been in the company of Oricious on the day of the shooting of her husband.
In his judgment, Justice Makonese said there was no evidence led by the State on how MaPecca met his death.
He said the accused person gave an explanation which the State failed to rebut through the evidence adduced from its witnesses.
“The State was evidently seriously handicapped in that the only person who could have shed light on what actually happened between Oricious and Tawanda was the deceased’s wife who, however chose not to cooperate with the police. The accused person’s version therefore, remained uncontroverted at the end of trial,” said the judge.
“The cardinal rule is that no onus rests on an accused to convince the court of the veracity of any explanation which he may give in his defence.
“A court may only convict an accused person if it is satisfied that, not only that his explanation improbable, but that it is beyond reasonable doubt false.”
Justice Makonese said the allegations against Oricious were largely speculative.
“There are gaps in the evidence of the State case and the only version on what led to the fatal shooting is the accused’s version. The allegations against the accused person are largely speculative and when all the evidence has been assessed, we are satisfied that the State failed to prove its case, and consequently we find the accused person not guilty on the charge of murder and acquitted,” ruled the judge.
In his defence, Oricious said he acted in self defence as he believed that he was under attack from his assailants who intended to rob him.
He also denied allegations of engaging in an extra marital affair with Jaqueline, the deceased’s wife, telling the court that the deceased and his accomplices cooked up the charges as a way of trying to cover up for their attempted robbery.
Allegations against Oricious were that on July 25 at around 9PM, he parked his motor vehicle at his residence waiting for the gate to be opened.
He was allegedly in the company of Jacqueline, with whom he was having an extra-marital affair.
Jacqueline was also an employee at Fish and Chicken City owned by Moyo and was the deceased’s estranged wife.
“While still parked at the gate, the now deceased Tawanda Moyo confronted the pair and inquired about their relationship,” alleged Mr Kudakwashe for the state.
It was stated that at that moment Moyo started his car in an attempt to flee but Tawanda clung to the front passenger’s door.
This resulted in Moyo producing a pistol and shooting Tawanda once on the right side of ribcage and he fell down.
Mr Jaravaza said Moyo later reported the incident to the police accusing Tawanda of trying to rob him. Police attended the scene and summoned an ambulance which took Tawanda to hospital.
On August 28, an operation was conducted on Tawanda who still had a bullet lodged in his body near the spinal cord. However, after the operation, Tawanda’s condition deteriorated and he was transferred to the Intensive Care Unit where he died the following day.
Tawanda’s post mortem report shows that he died due to septic shock, septic laceration, gunshot wounds and assault.
Moyo, through his lawyer Mr Robert Ndlovu of R Ndlovu and Company, counter-accused Tawanda and his two friends Steward Nyathi and Leeroy Malunga of attempting to rob him, resulting in the shooting incident.-@mashnets