S v Mutsure (Criminal Appeal SC 731 of 2018; SC 62 of 2021) [2021] ZWSC 62 (20 May 2021)

Judgment No. SC 62/2021 Criminal Appeal No. SC 731/18 REPORTABLE (59) KIZITO MUTSURE v THE STATE SUPREME COURT OF ZIMBABWE MAVANGIRA JA, UCHENA JA AND MAKONI JA HARARE: 28 JANUARY 2020 & 20 MAY 2021 T. Mpofu with T. L. Mapuranga and A. Rubaya, for the appellant T. Mapfuwa, for the respondent MAVANGIRA JA: 1. This is an appeal against the conviction and sentence of the appellant by the High Court on a charge of murder. 2. The appellant was charged with murder as defined in s 47(1) of the Criminal Law (Codification and Reform) Act, [Chapter 9:23]. The allegation was that on 23 October 2011 at house number 221 Ephraim Blank Street, Chivhu, he unlawfully caused the death of Modester Chikaka by pouring paraffin over her body and setting her on fire causing severe burns all over her body, from which injuries she died on 26 October 2011. Judgment No. SC 62/2021 Criminal Appeal No. SC 731/18 3. The appellant pleaded not guilty to the charge alleging that the deceased had poured paraffin over her body and set herself alight. He was convicted after a full trial and sentenced to 13 years’ imprisonment. 4. The State’s case was based largely on circumstantial evidence. The State led evidence from three witnesses; Tawanda Miti (Miti), a police officer, his wife Nyasha Tsopotsa (Tsopotsa) and Sekai Guramatunhu (Guramatunhu), also a police officer. The evidence of Miti was to the effect that his wife and he shared the same residence with the deceased. They lived in adjoining rooms that shared the same veranda. Each room had its own entrance door from the common veranda. The deceased occupied one room at the furthest end. The witness, together with his wife and brother, occupied the next two rooms after the deceased’s. The fourth door led into a common washroom and toilet. Behind the toilet was a water tap. 5. During the night in question, after having retired to bed, he was awoken by the screaming of a person calling out his name. He went out of his room and saw flames of fire inside the deceased’s room. He next saw the appellant arriving on the veranda. He instructed the appellant to put out the fire that was burning in the deceased’s room. He next saw the deceased coming from behind the residence in the direction of where the water tap was. He observed burn injuries on the deceased’s body. The deceased said to the appellant words to the effect “Why did you not pour paraffin on yourself as well since you said that you wanted both of us to die?” 6. The deceased kept on saying this and went on to tell the witness that the appellant was in possession of the matches which he had used to set her ablaze after he had poured paraffin on her from a paraffin stove. The witness inquired from the appellant who told him that Judgment No. SC 62/2021 Criminal Appeal No. SC 731/18 the deceased had set herself ablaze. The witness gave instructions for the deceased to be wrapped in a cloth. He, in the company of his brother, drove the appellant and the deceased to Chivhu Police Station where the appellant was searched and the matches was found in his pocket. He thereafter drove the deceased to hospital. 7. The witness was found to be a honest, impressive and reliable witness in the assessment of the court a quo. 8. The second witness, Tsopotsa’s evidence was to the effect that as they were asleep during the night of 23 October she heard the deceased screaming “mai wee ndofa” which was translated to mean “mother I am dying.” Soon thereafter she heard the sound of a door being opened. She heard footsteps going to the backyard at the same time as the deceased yelled “Brandon’s father!”, a reference to the witness’ husband. In response, her husband went out with her in tow. She saw the deceased standing by the doorway to the toilet. The half petticoat that the deceased was wearing had been burnt and was stuck to her body. She had burn injuries on her body. The appellant was standing by the deceased’s doorway. The deceased accused the appellant of setting her alight and demanded that he finishes her off as he had been ill treating her for too long. The appellant, on the other hand, was saying that the deceased had burnt herself. The witness also saw smoke coming out of the deceased’s room. 9. The witness was instructed by her husband to find something to wrap the deceased with as she was virtually naked. She took a sheet from the deceased’s bed and wrapped her with it before her husband instructed the deceased to get into the vehicle so that they could proceed to the hospital. The appellant also boarded the same vehicle and they left. Judgment No. SC 62/2021 Criminal Appeal No. SC 731/18 10. As with Miti, the court a quo was impressed by the witness’ demeanour. It found that her evidence was largely corroborative of that of Miti. The court a quo also noted that the witness’ evidence that the deceased accused the appellant of persistent harassment and further said that the appellant ought to have finished her off was not disputed or challenged in cross examination. The court thus accepted that the deceased uttered the words testified to by the witness. 11. Sekai Guramatunhu was the State’s third and last witness. On the night in question at around 2:00 or 3:00 am she was at the police station when Miti entered the charge office with the appellant. After Miti made a report to her she went outside to where Miti’s vehicle was. Inside the vehicle was the deceased who was in pain. She observed the injuries that the deceased had sustained and suggested that she be ferried to the hospital. The appellant followed her to the vehicle and told her not to talk to the deceased as she had been burnt. She assumed that the appellant’s utterance was because the deceased was in pain. 12. The defence applied for discharge at the end of the State case in terms of s 198 (3) of the Criminal Procedure and Evidence Act, [Chapter 9:07]. The State consented to the application. The court a quo had a different view and it dismissed the application on the basis that the evidence that the State had adduced raised a prima facie case that the appellant had to answer. 13. In its ruling the court a quo stated inter alia: “In short the accused does not deny being in the company of the complainant (sic) at the time that this incident took place. The deceased ended up dead in circumstances where there were certain utterances which intended (sic) to lead to an inference that the accused may well have had something to do with this matter. It is only fair that the court Judgment No. SC 62/2021 Criminal Appeal No. SC 731/18 is placed in a position to get the whole story of what took place. The accused is the only person who was there who can give such story. That application is dismissed.” 14. The appellant’s evidence was to the following affect. The deceased was his second wife and had been so for five years. He had no children with her but had four children with his first wife. On 23 October 2011 he arrived at the place where the deceased was staying at about 1:00am. The deceased opened the door for him and they exchanged greetings. She went back to bed and he “sat on a chair which was next to the table and this table is located next to the bed.” He advised her that there were some issues that he wanted to talk to her about. She got out of bed and got dressed in a skirt and a blouse. She went and sat across the table opposite to where the appellant was seated. 15. When asked what sort of conversation he had with her he said: “I then advised her that she was in the habit of going to the bars in my absence. I even went to tell her (sic) the names of the persons who had told me this information. These people were my relatives and were actually known to her. … They are two of my brother’s sons. … I then advised her that by going to the bars like what she was doing these young men were actually seeing them (sic) and as such was causing a lot of embarrassment. … She was silent during the time that I was telling her that. But she