After altering the degree of an offence committed by a 39-year-old speech and hearing impaired man to a petty misdemeanour from fourth-degree felony, Haa dzongkhag court sentenced the man to nine months in prison.
The Office of Attorney General’s (OAG) charged Phurba Thinley from Dorokha for violating section 203 of the Penal Code of Bhutan for making a seven-year-old girl watch porn and sexually molesting her on August 9 this year.
Section 203 of the Penal Code states, “A defendant shall be guilty of the offence of child molestation if the defendant molests a child.” The offence of child molestation is graded a fourth-degree felony according to section 204 of the Penal Code.
The court, however, changed the degree of the offence to petty misdemeanour in accordance to section 5 and 22 of the Penal Code. Phurba Thinley was convicted for violating section 13 of the Code.
Section 5 states, “An offence defined under other laws of Bhutan and that are not graded under those laws shall be graded accordingly by the Court with the gravity of the crime.” Section 22 states, “The Court may award reasonable sentence within the sentencing parameter enumerated in this Penal Code, if the offence committed by the defendant is not stated in the Code. The Court shall specify its reason in awarding such sentences.”
The court, in its reasoning, stated that it prefers to give effect the letter and intent of sections 5 and 22 of the Penal Code, thereby altering the degree of offence to petty misdemeanour, taking deafness as a mitigating circumstance until our parliaments enacts a special disability law or amends particular law to that effect.
It also stated that it is the duty of the court to measure the meaning of justice through fair application of laws. “Wrongful application of law would lead to a miscarriage of justice and disrespect the constitutional values.”
The court also issued an observation, which stated that the suspect, although deaf and dumb, have the constitutional right to understand the proceedings at all stages of the criminal process like any other suspects.
It stated that sign language interpretation is a sine quo non, an indispensable condition, to protect the suspects’ right to understand police questioning, interrogation, charges, and criminal proceedings at court.
The court stated that the deaf suspect’s constitutional right to understand the criminal process can be protected only when the state machinery like the legislature, prosecutor, judges and police officers have the knowledge of sign language. “In lieu of the cited reason, it would be unjust and unreasonable on the part of the state to prosecute deaf suspects with the same penal provision.”
It also states that OAG, as the chief prosecuting agency of the state and as chief advisor to the government has the primacy to recommend to the Parliament for the enactment of laws to protect the rights of a deaf suspect as guaranteed under the Constitution.
The court also directed the leader of the local government to create awareness to the community on the behaviour of the deaf accused to protect children from such untoward incidence.
The verdict stated that the man is a threat to the children in the community.
Phurba Thinley can pay thrimthue of Nu 24,740 in lieu of his prison term, as he already served two months and 12 nights in prison. He was also ordered to pay Nu 15,000 as compensation to the victim.
Tashi Dema and Yeshey Dema