Rajesh Rai  | Phuentsholing

After serving an 18-month jail term, the Sertena Primary School’s (SPS) sweeper, who was convicted for voluntary murder of her own child and rape of a child above the age of 12 and below 18, has been released.

The High Court has cleared the defendant, who is from Sertena, Haa of nine years’ imprisonment for rape and remaining six months of the two years imprisonment for abandoning her child.

A private legal firm based in Phuentsholing, Zhenphen Thrimwang Law Firm (ZTLF) took up the case of the 27-year-old woman, the defendant, free of cost.

The case reached the High Court and the verdict was passed on January 20, 2020. The Office of the General Attorney (OAG) had until February 3 to appeal. No appeal was made giving the case an end in favour of the defendant.


The 2018 incident

On the morning of April 15, 2018, a police patrol team discovered a newborn baby boy weighing 3.6kg lying dead at one of the alleys in Goedoe Lam. It was allegedly learned the mother threw the baby from a hotel balcony. Police also arrested the principal and another male teacher, who had accompanied the sweeper.

While the case was being investigated, a host of issues came up as the forensic report revealed that the baby was born alive and concluded it was a murder. However, the three suspects denied the baby was born alive. Police had also sent blood samples of the teachers to Kolkata to ascertain the father of the child.

Later, a police team was sent to Sertena to further investigate the case. It was discovered that the woman had an affair with a boy, a student of SPS, who was also her neighbour.

Although the boy left for another school, the two met in 2017 summer and had physical relationship. The sweeper got pregnant.

When the woman was arrested on April 15, 2018, she did not admit to delivering the baby until she was taken to the hospital for a check-up. She had told police that the baby was born dead.


Phuentsholing drungkhag court verdict

On March 26, 2019, the Phuentsholing drungkhag court sentenced the woman to 11 years in prison, nine years for rape and two years for abandoning the child.

The court sentenced her as per the Penal Code of Bhutan’s section 183 and 184.

Section 183 says: “A defendant shall be guilty of the offense of rape of a child above the age of twelve years if the defendant commits any act of sexual intercourse against a child between the ages of twelve to eighteen years. However, consensual sex between children of sixteen years and above shall not be deemed to be rape.”

Section 184 states: “The offence of rape of a child above the age of twelve years shall be a felony of the second degree.”

Two years of sentence was given under the three sections of 215, 216, and 218 of the penal code’s “abandonment of an infant or a child.”

Section 215 says: “A defendant shall be guilty of the offence of abandonment of an infant or a child, if a defendant is a parent, guardian, or other person legally charged with the care or custody of an infant or a child and the defendant leaves the infant or child in any place with the intent to abandon the infant or child.”

Section 216 says: “A defendant shall be guilty of the offence of homicide, if the abandonment of an infant or a child by the defendant results in death.”

And section 218 says: “The offence of abandonment of an infant or a child shall be a misdemeanour.”


Pro-bono by ZTLF

Zhenphen Thrimwang had won the case at Chukha dzongkhag court.

ZTLF’s lawyer, Sangay Wangmo said that the defendant had physical relationship with the boy during the summer vacation of 2017.

“By that time he was already 18 years old,” she said, adding he was born on April 16, 1999.

“It had been three months since he turned 18.”

Sangay Wangmo said they calculated the premature baby’s delivery date and the time the two were sexually engaged. It was matching, she added, which means the boy was already 18 when she had physical relationship.

Both the High Court and Chukha court had cleared the nine years sentencing.

However, the two-year sentence for abandoning the child was not cleared by both courts. As the woman had already served 18 months in prison and there were only six months left, the court “mitigated” the remaining term because the defendant did not have any past criminal records, the lawyer said.

OAG had initially charged the defendant for life imprisonment for voluntary murder of her child. It was charged under section 7 (a) that says: “In case of a felony of the first degree comprising of murder, treason or terrorism.”

The lawyer said OAG was not able to prove “beyond reasonable doubt” that the defendant killed her child, and Phuentsholing drungkhag court sentenced her under section 215, 216 and 218.

Sangay Wangmo said she saw the defendant in the court in one of her hearings.

“Some policemen told me that she knew nothing about legal matters and couldn’t defend her case. She was in trauma.”

Sangay Wangmo said she was more interested as she listened to the case. There were many areas to fight the case and she started meeting the defendant.

“She told me she wouldn’t want to do the case if I charged her,” she said.

She said the defendant was the lone bread earner in her family.