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 Judgment No. SC 62/20211 Criminal Appeal No. SC 731/18 This is an appeal against the conviction and sentence of the appellant by the High Court MAVANGIRA JA: 1. 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. 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. Judgment No. SC 62/20212 Criminal Appeal No. SC 731/18 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 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 No. SC by 62/2021 response, her husband went out with her in tow. She saw the Judgment deceased standing the 3 Criminal Appeal No. SC 731/18 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 th