Africa-Press – Tanzania. TRADITIONAL Healer Masanja Makunga has escaped the 20-year custodian sentence imposed on him for allegedly sexual gratification by deep kissing the mouth and ear of a Standard Seven pupil.
This followed the decision of the Court of Appeal to allow the appeal in which Makunga, the appellant, had lodged to challenge his conviction of the offence and the sentence imposed on him by district court of Kilosa, a decision which was later confirmed by the High Court.
“We allow the appeal, quash the conviction and set aside the sentence. The appellant be released from prison forthwith unless held therein for another justifiable cause,” the Justices Shaban Lila, Mwanaisha Kwariko and Ignas Kitusi declared.
They ruled that the evidence of the victim who was a child of tender age was taken by the trial court without promising to tell the truth and not lie before reception of her evidence, as there was no indication on record that there was any compliance as the victim did not so commit herself.
According to the justices, there was nothing, in the present circumstances, from which it could be inferred or deduced that the victim was a competent witness let alone being bound from not telling lies.
“We, therefore hold that (victim’s) evidence was taken in violation of section 127(2) and (3) of the Evidence Act for want of promise to tell the trial court only the truth and not lies. That evidence is invalid hence had no evidential value,” they said.
The justices, therefore, discounted the evidence of the victim from the record and pointed out that there was no other evidence incriminating the appellant.
They concluded that the accusation against the appellant, therefore, remained not established to the hilt by the prosecution.
The victim, who was a pupil at one Primary School in Kilosa District, Morogoro Region, was 14 years old at the time the offence was committed. She was living with her step mother.
On the fateful day around 6:30pm, the appellant, a known traditional healer, passed by their house and asked the victim to follow him at his residence so that he would protect her from devils which were disturbing her to which request she heeded.
The appellant had rented a room at a nearby house. At the time, the landlord was outside the house.
He and the victim entered into the room leaving outside the victim’s brother who had followed them. They spent half an hour inside the room.
As to what transpired in the room, the victim told the trial court that the appellant directed her to undress herself and be on a frog seat style.
Then the appellant took a razor blade and incised her on various parts of her body, shaved her pubic hair and smeared her with medicines. The appellant then released the victim and escorted her back home.
At home and upon being inquired by her mother, the victim narrated the whole incident. The mother reported the matter to the Chairman. Consequently, the appellant was arrested and taken to the police station.
