The Bhutanese Leading the way.
The Supreme Court upheld the judgment of the High Court
In a landmark judgment the Supreme Court on 15 September 2023 upheld the 9-year prison sentence given by the High Court in the Punakha rape case where a school girl was raped by her step father after the death of her mother.
The girl who was 16 years old at the time first lost her mother and just when she was dealing with the shock of that loss in 2019 including the the funeral rites of her late mother, the step father started raping her multiple times all the way to 2020.
The matter came to light when the girl ran away from home to her school where she begged the school to take her into the hostel which the school did, not knowing the reason at the time.
The girl was in a highly traumatized state and it took time for her to talk to the school counselor informing the counselor of the multiple rapes she had to endure from her step father. The school management immediately informed the police in September 2021 and the police in turn registered a case but the police dragged its feat citing lack of evidence like eye witnesses or biological evidence.
The case was especially difficult as time lad lapsed between the rapes and the complaint and so biological evidence was out of the question and eyewitnesses was out of the question as the rapes took place at home.
The only evidences were the girls’ consistent statements and an apology letter he wrote to her that he was ‘sorry for many reasons’ though he explicitly did not allude to the rapes.
This paper then pursued this story to highlight the case and how it was stuck and pressure built up on the police to complete its investigation and submit it to the OAG for prosecution.
However, given the paucity of direct evidence it looked very difficult for the girls’ case and this is what happened when the Punakha District Court acquitted the defendant for lack of direct or credible evidence like a medical report or lack of eyewitness. This only underscored how difficult it is to secure rape convictions.
The school girl then tried commit suicide unable to believe that she would not get justice.
The case was then appealed to the High Court where in a landmark judgment the High Court convicted the step father for rape of a child above 12 years and sentenced him to 9 years’ imprisonment.
This was a landmark judgment because in the absence of direct evidence it used circumstantial evidence, the environment and related factors to convict him.
The High Court cited several reasons for its decision, including a letter sent by the defendant to the victim, in which he partly admitted to having committed the wrongdoing.
The court also noted that verbal evidence, including the victim’s statement to her friend, matron, and the police, which were all consistent was also sufficient to convict and sentence the defendant.
The court stated that in cases of rape, the victim is often the only witness. In this particular case the victim had also been living under the same roof as the step father as a dependent.
The defendant appealed to the Supreme Court and so the next big question was if the Supreme Court would uphold the landmark judgment.
The Supreme Court judgment upholding the High Court Judgment says that the letter is a strong and incriminating evidence as a father in a normal relationship with a daughter would not write such a letter.
The stepfather had written the letter when the girl ran away to the school hostel.
The letter says, “sorry for many reason…I am sorry…I obviously made mistake not understanding your thoughts because I am also not a perfect man.”
It says, “whatever you done is based on my fault…study hard be strong, if I hurt you in your life please please forgive me…”
It goes on to say, “When you left the house it feels brutal emptiness rooms are filled with sadness.”
The Supreme Court says that after the death of the mother the daughter was absolutely dependent on her step father. It says that after the death of her mother she was also emotionally unstable and in a depressed state.
She could not speak up earlier as she did not have emotional support in the family in the absence of her mother and what her step father was doing to her was a matter of great social stigma.
One defence used by the defendant was that when sleeping at night the people sleeping the same room where the 6-year-old step brother of the girl and the grandmother who was the mother of the step father.
The court said that a 6-year-old boy is too young and will be scared to speak up and the grandmother will also not speak up as she would be convicting her own son.
The court said that in such a case the alleged victim and the perpetrators are the only sources of information about the incidents concerned and it is impossible to get external evidence.
The judgment said that the victim could only build her confidence to speak about the case a year later when she was in the school hostel away from her step father and this is when she informed her school councilor. Due to such a time lapse medical evidence is impossible.
The court said that the circumstantial evidence test has been satisfied.
It also said that the circumstances from which an inference of guilt is sought to be drawn has been cogently and firmly established.
He was convicted as per Section 184 of the Penal Code (Amendment) Act of Bhutan 2011. The section states that the offence of rape of a child above the age of twelve years shall be a felony of the second degree.
In the past, sexual abuse and rape of children have been notoriously difficult to convict as firstly the children in fear only report the crime a while after it has occurred which means no medical evidence. Then the testimony of children is also not taken seriously.
This now changes with the Supreme Court verdict which shows that if one has strong circumstantial evidence and other factors then it is possible convict rapists and molesters.
