The Supreme Court recently sentenced Yeshi Dorji, 26, to nine years in prison for having sexual intercourse with a minor.

The court reversed the High Court decision and upheld the verdict passed by the Thimphu dzongkhag court that found him guilty of a second degree felony.

A former driver of National Land Commission, Yeshi Dorji, was convicted by the Thimphu dzongkhag court, but the High Court acquitted him for want of concrete evidence.

The dzongkhag court convicted the suspect and sentenced him to nine years in prison. The verdict stated that as the victim did not claim any compensation, the court did not order any compensation.

On the night of May 27, 2015, the convict and a 16-year-old girl exchanged SMSes wherein she said he could come to her house. Her father and stepmother, who operated the canteen at NLC, were away that night. He came to her house at 1am. There are two versions of what happened after that.

The victim’s version of the story, matching with the victim’s sister’s statement and the convict’s confession to police, says that the two had sexual intercourse, following which he left the house. The girl said she did not tell her parents because of fear. However, she had shared it with her younger sister. The sister who was present in the house that night did not know he had visited their home.

The convict retracted his confession to police in court. His defence lawyer said that the confession was made in order to take the matter to court at the earliest as the police were allegedly employing delaying tactics. He said that the convict had visited the house as he knew the family well but left without indulging in sexual intercourse with the girl.

The defence attorney alleged that the girl’s step mother had asked the convict’s family to pay them Nu 0.5 million for spending the night at their house. The convict’s family declined and the amount was reduced to Nu 0.2 million, the defence attorney claimed. Otherwise, he said, why did the stepmother report the case to the police only two days later.

The girl’s medical examination report revealed “old tears”. The defence claimed that medical officials said such tears could also result from physical activity or menstruation, among others. The defendant argued that if the two had sexual intercourse then the tears should be new.

While the dzongkhag court was satisfied with the evidence, the High Court could not be convinced.

The High Court, after the defence appealed to the dzongkhag court’s verdict, issued a verdict acquitting the suspect. It then went by the medical report of the girl in which the doctor said that the examination “medically could not confirm nor rule out sexual intercourse”.

The High Court said that the evidence did not say that the intercourse occurred with the convict.

The Civil and Criminal Procedure Code of Bhutan (CCPC)  2001, states that finding of guilt against one or more of the parties can only be given when the prosecution to the full satisfaction of the court has established proof beyond reasonable doubt.

Section 14 of the Evidence Act states that evidence may be given in any legal proceeding of every fact in issue (i.e. the points of facts for determination in a case) and of every other fact and circumstance which does the following: Proves a fact in issue; or disapprove a fact in issue.

In this case, the evidence did not prove the fact, therefore as per the section 156 of CCPC, the case was defered, the High Court said.

The Evidence Act 2005 section 5 (B) circumstantial evidence were not considered by the High Court.

The Supreme Court found out that the convict’s independent statement to police matches with the victim’s statement to the police in all details acknowledging that sexual intercourse had occurred.

Further, despite the delay in examination, the medical report showed evidence of intercourse. The points together convinced the court that the convict was guilty of having sexual intercourse with a minor.

Section 183 of the Penal Code of Bhutan states: “A defendant shall be guilty of the offence of rape of a child above the age of twelve years, if the defendant has sexual intercourse with a child between the age of twelve to eighteen years.”

Tshering Palden