High Court alters lower court judgment on minor rape

Legal: The High Court’s bench two overturned Thimphu dzongkhag court’s verdict on the rape of a minor above 12 years and imprisoned two men to nine years each in prison.

The district court’s bench five, in August this year, sentenced the two men, Kinley Dorji, 24, and Phub Dorji, 21, to one year in prison for sexual harassment.

While police and the Office of the Attorney General (OAG) charged Kinley Dorji and Phub Dorji for rape of a minor above 12 years of age, the court sentenced them for sexual harassment, citing the Penal Code’s sections 75 and 76, which states that ignorance or mistake as to a matter of fact shall be defence if the mistake or ignorance negates the purpose.

The verdict stated that the two men presumed the victim was above 18 years since she was working in a drayang and also her physical appearance implied that she was not a minor. The two men also reasoned that they assumed she was an adult as she was involved in gambling.

The court also reasoned that it was consensual and also because the girl gave in writing to police that the two men should not be punished, as she had relations with them.

It was also learnt that besides the confession of the two men that they had physical relations with the girl, there was no other proof or evidence.

OAG appealed to the High Court stating that she was a minor when she had relations with the two men. Besides many reasons for appeal, OAG also stated that the lower court’s reasoning of physical appearance and mistake of facts were unjust and unfair and also it cannot be graded as consensual, as the minor’s consent should not be taken into consideration.

The High Court, in the verdict, stated that the lower court made a mistake for altering the charges to sexual harassment from rape of minor above 12 years. “So in accordance to Civil and Criminal Procedure Code of Bhutan’s section 111 (b) reverse the judgment awarded by the lower court after due process of law,” the verdict stated.

The High Court, therefore, graded the offence to felony of third degree and sentenced them to nine years each in prison.

The two men were arrested in May 8, 2015.

It was learnt that the girl lodged the rape complaint against one man and the other man was arrested after he complained to police that she had an affair with the other one.

Tashi Dema and Yeshey Dema

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