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Fidelis Munyoro Chief Court Reporter
In a landmark judgment, an HIV positive armed robber has been spared life imprisonment after the High Court condemned the man to 25 years in jail for killing a Kuwadzana resident during a robbery.

Justice Joseph Musakwa found Cosmas Jumo guilty of murdering Remember Mupasi on May 27, 2014 along 270th Street, Kuwadzana 3 in Harare.

Mupasi was walking home from work at night when he met his fate.

Jumo’s co-accomplice, Chimika Bauti, committed suicide while in police cells.

Addressing the court in aggravation, prosecutor Ms Purity Chikangaise did not go for the death penalty because there is no law in terms of which a court can pass the capital punishment.

She urged the court to impose a life sentence.

Pleading leniency, lawyer Advocate Tawanda Zhuwarara submitted that in spite of conviction for murder, Jumo should be spared life sentence.

Generally, when one is found guilty of murder he/she is sentenced to death or a life sentence.

But the advocate argued that Jumo was HIV positive and lengthy incarceration would hasten the deterioration of his health and lead to his early demise.

While the advocate accepted that Jumo was receiving ARVs in prison such was not augmented with the appropriate diet.

Justice Musakwa was convinced by the novel argument and also observed that while ARVs could prolong the life of an HIV positive person, the conditions and the diet in prisons were not conducive for healthy positive living.

Adv Zhuwarara highlighted the fact that Jumo and his wife had been assaulted and tortured during their arrest. Such torture was in itself punishment which the court was enjoined to consider in assessing appropriate sentence, he argued.

Justice Musakwa then ruled that had it been not for the HIV status and the fact that Jumo had been subjected to torture, the court would not have hesitated in condemning him to life imprisonment.

He then imposed a 25-year term of imprisonment. The judgment is significant as it marks the courts acceptance of someone’s HIV status as a relevant consideration in determining the length of a sentence.

The judgment is also very significant as it accepts that prisons conditions are not the best for persons who are HIV positive. The HIV status of an accused can be in appropriate circumstances a valid basis to reduce sentence.

Justice Musakwa also agreed that the torture experienced by Jumo in police hands was a relevant factor in giving him a sentence less than life imprisonment.

The prosecution cracked the case entirely on circumstantial evidence.

The lynchpins of its case — Tafadzwa Mashina and Bothwell Simenti — proved crucial.

Their evidence on Mupasi’s cell- phone that was found in Simenti’s possession led to Jumo’ arrest.

Further, the evidence of the duo showed that a day after Mupasi was attacked by unknown assailants; Jumo was in possession of Mupasi’s cellphone.

A criminal trial, which is based on circumstantial evidence puts an extra burden on the courts while appreciating the evidence.

The court has to be swayed by the nature and gravity of the evidence and it has to judge the evidence with much more care and caution.