A STUDY ON SENTENCING POLICY OF RAPE

OFFENCE: NEPALESE CONTEXT

A Dissertation Submitted to the Purbanchal University, Faculty of Law for the Partial
Fulfillment of the LL.M 2nd Year

2019

Submitted to

Purbanchal University
Through Bright Vision College,
Biratnagar,Nepal

Submitted by

Hari Narayan Chaudary

PU Registration No.130-5-3-04467-2010

Bright Vision College

Purbanchal University
 LETTER OF RECOMMENDATION

To,
The Head of Department
Central Department of Law
Purbanchal University, Biratnagar

This is to certify that Hari Narayan Chaudhary, a student of L.L.M.

Second Year, Criminal Law and Justice Program of Bright Vision College,
Biratnagar, Purbanchal University Biratnagar, has prepared and Submitted
this Dissertation entitled " A Study on sentencing policy of rape offence:
Nepalese context” under my supervision. To the best of my knowledge, He has
covered all the related areas in this research work. He has sincerely worked
carefully to complete this work. I therefore, recommend this Dissertation for
final evaluation.

I wish his success in his academic endeavor.

Thank you.

July, 2019

……………………

( Punya Prasad Pathak)

Supervisor

2
 APPROVAL LETTER

This is to certify that this dissertation paper entitled “A Study on

Sentencing Policy of Rape Offence: Nepalese context” prepared and
submitted by Mr. Hari Narayan Chaudhary, for the partial fulfilment of the
requirement of the degree of LL.M in Criminal Law and Justice in conformity to the
rules and criteria of Dissertation Paper laid down by Purbanchal University. Therefore,
this Dissertation Paper has been accepted after the presentation of the paper and the
Viva Voce Examination by a team of three-member evaluation committee as a part of
the said degree.

Dissertation Paper Evaluation Committee

1. Name: -

Signature

Designation:-

2. Name:

Signature

Designation:

3. Name:-

Signature:-

Designation:-

3
 ACKNOWLEDGEMENTS

This Dissertation Paper is prepared on the topic“A Study on Sentencing

Policy of Rape Offence: Nepalese context” has been prepared for the
partial fulfilment of the requirement of the LL.M Degree and submitted to
Purbanchal University through Bright Vision Law College, Biratnagar. I
express my sense of thankfulness to my dissertation supervisor, Mr. Punya Prasad Pathak for
his guidance, comments and supervision of my dissertation writing. Despite of his busy
schedule he allocated some precious time for the review of draft of dissertation.I would like
to express my sincere thankfulness.

My sincere thanks and special gratitude go to Mr. Badri Prasad Sharma for his Guidance to
carry on the dissertation work. This study would never have seen the light of the day without
his guidance.I would like to thank my family, friends all those who have helped me in one
way or the other for the completion this work.

I would like to thank Ms. Mona Singh, Advocate BikashThapa and all the staff of
Bright Vision Law College for providing their valuable time and response to this dissertation
paper as well as the authors and publishers of those books whose valuable information and
ideas are used in this dissertation paper to meet the objective of this study.

Hari Narayan Chaudhary

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 Table of Abbreviations
AIR All India Report
Art. Article
D.N. Decision Number
Dr. Doctor
Edn. Edition
Edr. Editor
FIR First Information Report
FWLD Forum for Women Law and Development
H.M.G His Majesty’s Government
HIV/AIDS Human Immunodeficiency Virus/ Acquired ImmunoDeficiency Syndrome
ICC International Criminal Court
ICRC International Committee of Red Cross
ICTR International Criminal Tribunal for Rwanda
ICTY International Criminal Tribunal for former Yugoslavia
INGO International Non Governmental Organization
N.G. Nepal Government
NGO Non Governmental Organization
N.K.P. Nepal KanoonPatrika
NA Not Available
NJA National Judicial Academy
No. Number
P. Page
PIL Public Interest Litigation
SC Supreme Court
Sec. Section
UN United Nations
USA United States of America
Vol. Volume

6
 Table of Statutes
National
Amending Some Nepal Actsto Maintain on Gender Equality, 2006
(LaingikSamantaKayamGarnaKehi Nepal AinSansodhanGarnaeAin, 2063)
Appellate Court Regulations, 1991 (PunarabedanAdalatNiyamawali, 2048)
District Court Regulations, 1995 (JillaAdalatNiyamawali, 2052)
National Code 1854, ( MulukiAin, 1910)
National Code 1963, ( MulukiAin, 2020)
Supreme Court Regulations, 1992 (SarwachaAdalatNiyamawali, 2049)
MulukiAparadhSamhita 2074.

7
 List of Cases

S.N. Name of Case

1. SukabahadurKumal vs. HMG

2. GokarnaKhanal vs. HMG

3. BabuPoudelKshetri vs. HMG

4. HMG vs. TekbahadurKshetri

5. TriratnaChitrakar vs. HMG

6. HMG vs. Narayan BahadurRaut

7. HMG vs. Moila alias Muwarak Mir Musalman

8. HMG vs. SarojHingmang and others

9. HMG vs. PawankumarYadav and others

10. HMG vs. Narayan PaudelKshetri et al.

11. HMG vs. RajendrasinghShikh

12. RamhariLamichhane vs. HMG

13. Nepal Government Vs. Shankar Bishwakarmaand others

14. MolhuysenHendric Otto vs. Nepal Government

15. Nepal Government vs. Chandra Prasad Tiwari alias Chandra Bd. Tiwari

16. Nepal Government vs. ChakranathKawar

17. Ramesh Lama Syangtan vs. Nepal Government

18. DharmarajPoudel vs. Nepal Government

19. Bishnu alias Nagendre Thakur vs. Nepal Government

20. LalbahadurShahi vs. Nepal Government

21. Nepal Government vs Ramesh alias BirBdrSharki

22. Nepal Government v Bikash alias LokBdrBishwa

23. BadriKhatiwada Vs. Nepal Government

24. Ram BahadurKarki Vs. Nepal Government

25. Sabuddhin Miya Vs.Nepal Government
26. GovindaRaut Vs. Nepal Government

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27. Ram BahadurB.k Vs. Nepal Government
28. Amar BahadurBogati Vs. Nepal Government
29. Dipeshlimbu as Jire Vs. Nepal Government
30. Man Kumar Rai Vs. Nepal Government

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 TABLE OF CONTENTS

Letter of recommendation................................................................................................Ii

Approval letter.................................................................................................................Iii

Acknowledgements..........................................................................................................Iii

Table of Abbreviations.....................................................................................................iii

Table of Statutes...............................................................................................................iii

List of Cases.....................................................................................................................iii

INTRODUCTION............................................................................................................3
1.1. Background....................................................................................................................3
1.2. Research problem...........................................................................................................3
1.3. Objectives.......................................................................................................................3
1.4. Justification of the study................................................................................................3
1.5. Limitation of the study...................................................................................................3
1.6. Organization of the study...............................................................................................3

1.7 LITERATURE REVIEW............................................................................................3

1.8 RESEARCH METHODOLOGY................................................................................3

1.8.1 Research Design.................................................................................................................3
1.8.2 Sources and Nature of Data................................................................................................3
1.8.3 Universe/Population...........................................................................................................3
1.8.4 Sampling.............................................................................................................................3
1.8.6 Presentation and Analysis of Data......................................................................................3

CHAPTER II....................................................................................................................3

INTRODUCTION TO RAPE...........................................................................................3
2.1 Meaning and Definition of Rape....................................................................................3
2.2 Types of Rape.................................................................................................................3
1. Acquaintance or Date Rape:.................................................................................................3
2. Custodial rape......................................................................................................................3
3. Incestuous rape.....................................................................................................................3
4. Gang rape.............................................................................................................................3

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 5. Male to male, women to women, women to male rape........................................................3
6. Marital rape..........................................................................................................................3
7. Statutory rape.......................................................................................................................3

Chapter III........................................................................................................................3

THEORIES OF PENAL LIABILITY...............................................................................3

The theory of penal liability..........................................................................................................3
The theory of remedial liability.....................................................................................................3
3.1 The theories of Punishment...................................................................................................3

Chapter IV........................................................................................................................3

SENTENCINGPROVISIONS IN NEPAL........................................................................3
4.1 Definition of Sentencing:................................................................................................3
Court's role in sentencing..............................................................................................................3
Justifying Punishment...................................................................................................................3
4.2 Models of Sentencing Process.........................................................................................3
4.3 The Provision of Sentencing Policy in Nepal...................................................................3
4.4 Approaches of Punishment in Nepalese Context...........................................................3
4.5 Procedure for Implementation of sentencing.................................................................3

CHAPTER V....................................................................................................................3

LEGAL PROVISIONS ON RAPE IN NEPAL.................................................................3

5.1 Historical Development of Rape laws in Nepal..............................................................3
1. Before the codification of National Code (MulukiAin) 1910 B.S........................................3
2. National Code (MulukiAin) 1910 B.S..................................................................................3
3. National Code 1963 (MulukiAin) 2020................................................................................3
5.2 Features of Present Laws on Rape.................................................................................3
1. Broader Definition of rape:..................................................................................................3
2. Concept of Marital rape:.......................................................................................................3
3. Concept of Custodial Rape:..................................................................................................3
4. Punishment by categorizing the Age of victim:....................................................................3
5. Additional punishment on gang rape and rape of incapacitate victim..................................3
6. Additional Punishment on Rape Done by HIV infected person............................................3
7. Criminalized Unnatural Sexual Activity with Minor:...........................................................3
8. Respect and Protection of Privacy of Rape victims..............................................................3

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 9. Victim friendly Approach During Investigation...................................................................3
10. Compensation to Victim...................................................................................................3
11. Right to Defense of Chastity............................................................................................3
12. Right to Abort..................................................................................................................3
5.4 Supreme Court Cases:....................................................................................................3

CHAPTER VI...................................................................................................................3

ANALYSIS , CONCLUSION AND SUGGESTIONS.......................................................3

Bibliography.....................................................................................................................3

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 CHAPTER I
INTRODUCTION

1.1. Background

Rape is an act of enforced intercourse by a man of a woman without her consent, however
consent shall not be the matter of defense in case of the undue influence, fraud and under age.
The offense of rape is one of the heinous crimes which is directly connected with women’s
pride, prestige and social living. This offense victimizes the woman with psychic trauma, her
education and social integration.

Susan Brownmiller forcefully argues that rape really started as a property crime. Men as
archetypal aggressors (the penis as a weapon) subjugated women by the persistent threat of
rape, that threat forced each woman to submit to a man for protection and thus to become a
wife, the property of the man. Rape then was made a crime to protect one man’s property, his
wife from the sexual aggression of other men.1 Rape is regarded as a violent crime against the
person, one that destroys the freedom of a woman to decide whether, when and with whom to
enter a sexually oriented relationship.

Rape befalls within the category of mala in se. In it both law and morality is violated in such
activity. The rape offense directly challenges, violates and encroaches the physical existence
of woman. It also threats the security of the personality of the woman. Moreover, it infringes
against the freedom and liberty to live as per her desire and wishes. It creates the obstacles
and hindrances earn economic, social participation in cultural life of in the society.2

The rape is viewed from different factors such as psychological factors states that the rapists
are suffering from mental illness or personality disorder. Some are psychotic, sociopathic or
sadistic or feel deficient in masculinity.3 Some rapists views the woman as a sex objects
whose role is to satisfy them. The Criminologist claims that all forcible rapes incident are
committed because of anger, a drive for power or the enjoyment of maltreating a victim such

1 Susan Brownmiller, Against Our Will; Men, Woman and Rape, Simon & Schuster, New York, 1975, pp. 1-9
2 YubarajSangroula, FoujdariNyayaPranali Nepali KanoonShastra; Nepali FoujdariNyayaPranali:
NayaBidheyakharukoSandharvraPaddhtigatBislesanbatNisritNiskarsaharu, Published by Office of Attorney
General of Nepal, Kathmandu, 2069 BS, p.38
3 Richard Rada, Clinical Aspects of the Report, Grune& Stratton, New York, 1978, pp.123- 130,
as sadism.4 Social-cultural factors states that rape is culturally related to societal norms that
approve of aggression as a demonstration of the masculinity or that rape is the mechanism by
which men maintain their power over women.5 As per the Marxist perspective, the
impoverishment of the working class and the widening gap between rich and poor create
conditions for the prevalence of the sexual violence.6 However, economic inequality is not the
sole determinant of violent crime in the society. Forcible rape is found to be an added cost of
many factors including social disorganization.7

Rape being inhuman offence not only inflicts serious wound against victim’s personal liberty
but also affects the entire society. The physical, social and economic consequences8 of rape
are of long term. Rape is the most heinous and inhumane offence. It is the barbarism of the
worst order. It shatters the life of the victim and compels to bear the agony throughout her
life. Rape being a combination of illegal sex and violence is a traumatic experience for the
victim.9 It not only is associated with the physical trauma itself, but it also involves the
infliction of immense psychological trauma.10

In Nepal, the law had made punishment provision based on caste system and also the age of
the woman whether she was under 11 or above 11. If the lower caste culprit commits rape
against the woman of higher caste he was entitled to death penalty. 11 New MulukiAin 2020 BS
made rape with woman under 16 as strict liability. From punishment point of view the age of
the woman was divided into three categories- woman under 14, woman between 14-16 and
woman above 16.MulukiAin11th Amendment 2058 BS made the division of offenses based on
the age of victim woman in three categories- woman under 10, woman between 14-16 and
woman above 16. The lower the age of woman, the higher the imprisonment term was for the
culprit which was ranged from five to fifteen years’ imprisonment. Her right to get half

4 Nicholas A. Growth, Men who Rape: The Psychology of the Offender, Plenum, New York, 1979, pp.14-58

5 Christine Alder, An Exploration of Self Reported Sexually Aggressive Behavior, Crime and Delinquency,
Plenum, New York, 1985,p.331
6 Julia R. Schwendinger and Herman Schwendinger, Rape and Inequality, Sage Publication, Beverly Hills
Calif, 1983, p.220
7 Ruth D. Peterson and William C. Bailey, Forcible Rape, Property and Economic Inequality in U.S.
Metropolitan Communities, A Journal of Quantitative Criminology, 4, 1988, p.119
8 E. Hilbermen, ‘Rape, The Ultimate Violation of Self’,American Journal of Psychiatry,1976,p.436.
9 S.M.A. Qadri, Crimimology and Penology, 6thedn., Eastern Book Company, Lucknow, 2009, p.486.
10 A. Jay Chapman, Death and Deduction- A Reasoned Approach to Forensic Pathology, Kathmandu, 2001, p.
287.
11 MulukiAin 2020
property from the culprit was made intact.MulukiAin12th Amendment classified the age of
woman into five categories from punishment perspective such as under 10, between 10-14,
between 14-16, between 16-20 and above 20 in JabarjastikaranikoMahal . The amount of
punishment ranges from five to fifteen years’ imprisonment and this law has conferred the
court with discretionary power in order to fix the compensation and right to get half property
of the criminal is annulled.
Rape has always been a part of human culture. The myths of antiquity included accounts of
rape; ancient societies counted rape among the crimes listed in their law codes; and even the
Bible contains stories of rape. Throughout the centuries, rape has had an impact on individual
women (as well as men and children of both sexes), but it has also affected the evolution and
development of cultures all over the world, as women have been abducted as brides, claimed
as prizes of war, and enslaved. Unfortunately, rape remains a concern of modern life. Recent
headlines make this all too clear, as stories on date rape drugs, attacks by serial rapists, the
molestation of children by Catholic priests, and genocidal crimes in Bosnia, Rwanda, and
elsewhere pervade the media.1
The physical reality of rape has not changed over time: the penetration of a vagina, or other
orifice, by a penis (or other object) without the consent of the woman or man being
penetrated. What have changed over time and place are definitions about rape, ideas,
perceptions, and laws concerning it. Modern laws on sexual assault in the United States and
elsewhere recognize that both women and men can be raped, that wives can be raped by their
husbands, and that victims often know their attackers. Although rape survivors are still
sometimes blamed for provoking their attacks, they may also find support and counseling
available to them. For much of history, however, rape has been considered a crime against the
woman’s father or husband, rather than a crime against the victim. In some areas of the
world, that still holds true. In 2002, the Human Rights Commission of Pakistan reported that
over 150 women had been sexually assaulted and about 40 women had been killed in “honor
killings” in southern Punjab. Within the United States, rape is all too common, but it remains
an underreported crime, since many victims cannot or do not press charges against their
attackers. However, in the last few decades, reforms in rape laws have made the process
somewhat easier for victims.
Thus, this paper attempts to deal with the legal framework of Rape offence in Nepal and also
analyze the sentencing policy or grounds of sentencing of the Supreme court of Nepal with
regard to rape offence.
 1.2. Research problem

The paper seeks to study the following question as research problem:

i. What is the legal framework in relation to rape offense in Nepal?

ii. What grounds are taken by the Supreme Court in sentencing the offender in rape
cases in Nepal?

1.3. Objectives

The study focuses around the specific theme of studying rape from the victim perspective in
Nepal with following specific objectives:

i. To analyze the legal provisions of Nepal on Rape.

ii. To explore out the decisions of Supreme Court of Nepal in relation to sentencing of
rape offence in Nepal.

1.4. Significance of the study

Every society is plagued from heinous crimes like rape and Nepalese society is no exception.
Moreover, the scenario is indeed very depressing as the sources indicate that the crime of
rape is in increasing trend. According to the Informal Service SECtor Nepal (INSEC)
Yearbook of 2010, 2011 and 2012 total of 103 rape cases were reported in 2010, while on
2011 total of 111 rape cases were reported. Moreover, in the year 2012 the reported rape
cases increased to 140. Recently the cases has been more on rise.

It is an agreed fact that issues of victims has been overshadowed in our criminal justice
system. Similarly, as mentioned earlier rape victims suffers not just physical pain but has to
go through psychological, social, economic impact and bear the stigma through the life. The
rape brings humiliation not only to the woman concerned but to the entire family. Therefore,
every attempt is made to avoid further exposure by not reporting to the law- enforcement
agency.12

Crime is matter of social definition. What society says is crime. Crime can be classified as
violation social norms and values and violation of existing criminal law of country. The major
feature of criminal law is to protect the victim, society from the crime and to punish the

12 R. Dayal ,Commentary on Sexual Offences with Special Reference to Law on Rape, Premier Publishing Co. ,
Allahabadh, 1999, p. 1.
offender. While doing so the offender is isolated from the society. So legality, specifity,
uniformity, regularity and punish ability are major features of criminal law. Rape is heinous
crime against woman and girl. In Nepal, to have sexual intercourse with woman below 16
with or without consent and woman above 16 without consent are regarded as rape offense.
To have sexual intercourse below 16 is strict liability case. Proof of actusreus is sufficient to
hold the offender liable in strict liability, mensrea is taken into consideration while only
punishing the offender. The Nepalese law has provision of punishment in rape offense as per
the age of the victim. In general, the lower the age of the victim, the higher is the punishment.
The law has empowered the judges to use the discretionary power in order to mitigate the
punishment. This study attempts to explore out the reasoning given by the court while
sentencing punishment to the perpetrator.

1.5. Limitation of the study

i. The paper only focuses on present Nepalese legal provisions on Rape. However,
international practices and legal provisions will be dealt just as reference but were
not compared.

ii. The paper specifically focuses on the crime of rape from the perspective of
sentencing of perpetrator.

iii. The paper only focuses on the judgments delivered by Nepalese Supreme Court
on Rape. Only some cases published in Nepal Kanoon Patrika (Ne.Ka.Pa.) from
2065 to 2075 are studied.

1.6. Organization of the study

The study is organized in six chapters. The first chapter creates the background on the theme
of the study. This chapter basically introduces the premise of the research and marks the
objectives, rationale, limitation, literature review and research problem. Second chapter deals
with rape and types of rape. In the third chapter, theories of penal liability is dealt. Fourth
chapter studies the sentencing provisions in Nepal. Chapter Fife deals with Legal provisions
of rape in Nepal and features of present laws on rape. Chapter Six deals with Analysis,
Conclusion and Suggestions.
1.7 LITERATURE REVIEW

1.7.1 Analysis and Reform of the Criminal Justice System in Nepal. CeLRRD, Analysis
and Reform of the Criminal Justice System in Nepal, Institute for Legal Research and
Resource, 1999, Kathmandu.

This is the first and comprehensive research report in criminal justice system. It has clearly
recommended bifurcation of trial hearing and asked for separate hearing for conviction and
sentencing. Furthermore, it has indicated the enforceable legislations categorically with
following variations.

- Crime punishable with terms of life imprisonment and forfeiture of property

- Crime punishable with terms of imprisonment over 10 years

- Crime punishable with terms of imprisonment between 5 to 10 years

This report has not covered the judicial interpretation and factors affecting the sentencing
policy of the court. However, the present study is based on the cases (21 years) adjudicated
by the Supreme Court of Nepal.

1.7.2 Baseline Survey on Criminal Justice System CeLRRD,Baseline Survey on Criminal

Justice System, Center for Legal Research and Resource Development, 2000,
Bhaktapur.

This research report deals with the issue of sentencing under post trial concern in line of fair
trial issues. As per this report there is wide range of sentencing disparities among courts.
Different sentences are given for similar crimes committed under similar circumstances
(p.54). It has mentioned that problem associated with sentencing are due to legislation. It has
recommended that there is need of having comprehensive and uniform codes of law relating
to criminal procedures and punishment.

However, the present study attempts to explore the dominating factor taken by the court in
sentencing the offender after conviction in 6 types of offenses.

1.7.3 Rape and Need of Proper Care to its Victims13

13 N.V.Paranjae, Criminology and Penology, 12th edn, Central Law Publications , Allahabad, 2006, p. 275.
In his book, the writer highlights about the crime of rape and need of proper care to its
victims. He writes that, more recently it is being realized that rape should not be treated as a
sex- crime but it should be viewed as an aggressive crime against person. Researchers have
shown that very often the intention of the offender is aggression rather than sex enjoyment.
Groth and Brirnbaun observed that the rapist derives an eroticized pleasure not through sex
but through an horrendous assault on the victim’s body. In case of a rape, besides the
psychological trauma, the woman is expected to prove physical injuries or some sort of non-
genuine consent on her part. It is noted that majority of rape cases are not sudden occurrences
but they are generally well planned.

1.7.4 Adalat ko Dandaniti Madhav Prasad Acharya, AdalatkoDandaniti, Nyadoot

(bimonthly) vol. 5, Nepal Bar Association, Kathmandu, 2056

The article deals with the sentencing issues related to the court practices. The author says that
Nepalese sentencing policy is guided by MulukiAin, 2020. The author says that this law is
unable to give new direction of sentencing by overruling the traditional approach i.e
retributive notion, in discussing the section 118 of AdalatiBandobasta and Dandasajayeko.
As a result several contradictions and ambiguous provisions continued to be existed in
legislative framework of sentence and its administration. The author has explained the major
forms of punishment such as imprisonment with or without forfeiture of property and fines as
main sentencing options.

He has indicated the failure of seeking alternatives to imprisonment through law and
sentencing practices of the court. He also stresses that there is lacking of proper provisions
for making victim compensated by the offenders. Furthermore, he states that there is lacking
of legal and other appropriate arrangement relating to correction and reintegration of the
offender in society.

The author has criticized on system's dependence on traditional approach of sentencing

practice and continuous following the same even after shift of political system. He stresses
that an erroneous legislative framework of sentence lead to erroneous sentencing practice by
court. The administration of sentence would also mislead and go beyond the goal of
sentencing.
In this article, unclear sentencing policy is another issue of discussion. This has led to
discrimination in penalties in similar cases of similar circumstances. He suggests introducing
the separate hearing for sentencing after the conviction in order to avoid such anomaly.

Suitable sentencing guidelines are essential to be incorporated in law. It would be helpful to

the court in sentencing the offender as per the need of the society. Discretion power would be
risky without clear guidance. It is the high time to review the penal system of Nepal and
introduction of reformatory approach.In this article the author has discussed on theoretical
aspects of sentencing policy.

1.7.5 Moujudha Dandanitima Punaralokanra Sudhar Kalyan Shrestha, Moujudha

Dandanitima Punaralokanra Sudhar (unpublished), a working paper presented in a
workshop organized by Nepal Law Reform Commission, Kathmandu, 5 july 1998.

This paper focuses on penal system and categorizes the penalties in 12 types existing in
Nepal. The author views the reformatory approach that criminality is caused by social factor
and crime is social problem. He discusses regarding the punishment of life imprisonment and
forfeiture of property in Nepalese law. He explains the system of having lower and upper
limits of imprisonment prescribed by some legislation.

The paper further states the problems between imprisonment and fine. The issue of
prescribing upper and lower limits of fine has posed the problem. The legislative framework
has given complicated structures of punishments, in some case there are limits (upper &
lower), in some instance fine and imprisonment are compounded and accumulated and in
some cases there are given as alternatives. As per the author it is legislative confusion. The
author specifies the main problem in sentencing policy as follows:

- No guideline in application of discretion

- No equal treatment in punishment

- No compensatory provision for victim

- No parole and probation system

- No judicial supervision on the administration of imprisonment and correction of

offender
- Disparities in legislative and judicial view in considering criminality and
punishment

- Minimal application of paying money instead of imprisonment

The author suggests that it is very necessary to review the existing penal system. The author
has theoretically discussed the sentencing policy based on his experience.

1.7.6 Penal Reform in Nepal CVICT, Penal Reform in Nepal, Plan of Action and Report,
Centre for Victims of Torture (CVICT) Kathmandu, 2000

This is a round table meeting report. It was held in Kathmandu on 18-19 March 2000 jointly
organized by Penal Reform International (PRI) and Centre for victims of Torture (CVICT)
Nepal. It has covered the recommendation of the first South Asian Penal Reform Regional
Conference held in Kathmandu. It had recognized heavy use of imprisonment even for small
offences and stated prison is all too readily used even for small offences, as a punishment of
first instance rather than of last resort (p 68). It had recommended imposing fine wherever
possible community service order could be also a good sentencing option and revitalization
of parole and probation as alternative to imprisonment (p71)

The round table meeting came into conclusion with following suggestion for reforming penal
law and penal policy.

- Regarding trans-boarder criminal activities, formulate national policies that are

compatible with the evolving regional and international trend and principles. Regarding
other crime that occur in the country, revise and update the old penal policy

- While reforming and formulating the penal policies, ensure that the aim is not to
take revenge on the offenders and prisoners but to reform them so that they than
eventually reintegrate in to society as law abiding citizens.

- While determining punishments, it should be ensured that the same type of

punishment is applied for crimes which have the same nature, results and effects,

- Orientation program should be organized regularly for prison officials to increase

their knowledge on penal policy, legal system and rights of convicted offenders.
- Formulate clear laws to ensure that the state provides compensation to victims of
crimes in cases in which the criminal could not be identified

1.7.7 Nepal's Penal System: An Agenda for Change Keeling et.al, Nepal's Penal System: An
Agenda for change,Centre for vicims of Torture, Kathmandu, 2001
This is an exploratory type of research regarding the study of penal system of Nepal. It was
conducted by Centre for victims of Torture (CVICT). It has stated the weakness of criminal
justice of Nepal in detail. It explains that there are mainly three types of punishments namely
imprisonment, fine and confiscation of property (p63) It has pointed out following issues as
weakness of sentencing in Nepal.

- Undue importance is given to confessions

- Legitimate grounds for reducing sentences is often ignored

- Lack of reformatory provisions in penal system

- Some penalties are too little and some are too harsh

- The law still sanctions corporal punishment (provision of jail Act 2019)

- The statutes defining types of murder offences and sentencing dispositions are
basically flawed

This report has critically examined the application of discretion by court provided by
Abamsection 188. It has indicated that the offender of provocation murder are getting more
terms of imprisonment than the offenders of intentional murder. The section 188 is applied
only for serious offender and not for the provocation case.(p70)

This report also states about the inconsistent provisions relating to fines and imprisonment. It
also focuses that the law inconsistently and arbitrarily imposes fines in following manner:

'' While calculating the amount to be paid in lieu of a prison term, 25 rupees is fixed as
equivalent to one day's imprisonment, but in cases relating to victim compensation for false
implication 50 rupees is fixed for a day's imprisonment(MulukiAinDandasajaya 19), whilst in
cases of theft the failure to pay a fine of 500 rupees brings one year of imprisonment with
longer periods of failing to pay higher amount awarded as damages by court, one year's
imprisonment is fixed for failure to pay amounts up to 1000 rupees with longer periods for
higher amounts(MulukiAinDandasajayeko 38(4) and not default in dues section 10)'' P. 69

The report indicates that there are inconsistencies in accumulating prison term and fine.
Inconsistency is indicated as offenders in cases of multiple offences separate prison terms
usually passes concurrently when longer term is served, but for multiple fines they are
imposed cumulatively. The report has also dealt with the issue of compulsory conversion of
fine into imprisonment. It has indicated that there are provisions where the converted fine
would exceed to the prison term fixed for the same offence. (p69)

This report is limited only on the legislative analysis on penal law, but has not covered the
judicial interpretation thereof.

1.7.8 Punishment and Sentencing policy Madhav Prasad Acharya, The Legal system of
Nepal, Legal Analysis Wing of Scholars(LAWS), Nepalese Research Scholar's
Community, Delhi ,1985, p 127

This is an article on punishment and sentencing policy. The author states that the law itself
provides the minimum and maximum limits of sentence to be awarded in each crime. The
judge has to apply conscience while exercising his discretion before he awards punishments
and fixes a sentence as provided by the law. In some cases the law has not left alternative
choices as regards the nature and limits of sentences.

In addition to prescribed legal limits the judges is also bound to obey the precedent
propounded by the Supreme Courts. However, in practice it seems that the earlier precedent
has rarely influenced the sentencing policy of the court, as there are numerous inconsistent
decisions in existence on similar cases.

The author further states that penal policy is based on deterrent and retributive principles. No
reformative approach of the punishment has yet been introduced in our criminal law.
However, the jail regulation provides that a prisoner may get remission of his/her sentence
should s/he behave well during the imprisonment period. This may said to contain an element
of reformative ideal; however the provision of law leaves it as discretion at the hand of
authority not as prisoner's right.

Similarly on the completion of his/her prison term, s/he may get from the prison authority the
necessary expenditure required to go home, if s/he does not have money. While fixing the
sentence too, the judge has to be primarily concerned with the act of crime rather than the
prospects of reformation of the criminals. The author suggests that the rigid approach of
punishment needs a change.
The further states that probation, parole and after care programs are not known to our laws.
The author shows the way for comprehensive study of ex-prisoners to know the effect of
imprisonment on their lives. Only such research would reveal facts which may become a
basis for us to learn about required reforms in the penal law. It is in the interest of the society
that prisoners should not be kept idle within the prisons wall, new ways and methods must be
devised to engage them in activities which should provide them knowledge and skills.

1.7.9 Scope of sexual assault Jonathan Herring, Criminal Law, 4th edition, Palgrave
Macmillan, 2005,p. 171.

This book written by Jonathan has chapter which deals with sexual offence. The author has
explained that ‘The scope of Sexual Offence’ also includes ‘Rape’ Assault by Penetration,
Sexual Assault, Causing Sexual Activity without Consent, Sexual Offence Protecting
Children.

1.7.10 The Roots of Rape NeetiAryalKhanal, ‘The Roots of Rape’, The Kathmandu Post,
Kathmandu, 25 April, 2014.

The writer in the article highlights that the present combat against rape is unable to take into
considerations the structural causes of rape.The writer opines that as more and more funding
is directed to INGOs and NGOs for combating sexual violence against women, the
involvement of the common people is decreasing. The issue is thus mistakenly understood as
an agenda of the INGOs and NGOs alone. Even though, other organizations are also engaged
in this issue, they have a very narrow spectrum of work. Their major focus is on things to do
after a woman has been violated instead of preventive measures to stop violence. Project
reports of INGOs and NGOs all focus on amending the law, making police reporting
mechanisms swifter, establishing fast-track courts and providing shelter to survivors of
violence. These issues are undoubtedly important but they are all concerned with the
necessary actions that need to be undertaken after a woman or girl is raped by a perpetrator.

1.7.11 A Step Towards Victim Justice System Dr. Shanker Kumar Shrestha, A Step Towards
Victim Justice System Nepalese Perspective, 1stedn.,PairaviPrakshan, , Kathmandu,
2001, p.11.
In the book, Dr. Shrestha has tried to bring forward the issues of victim in the justice system
of Nepal. According to the writer, Nepal has set a certain degree of criminal justice system
and is proud of having been long experienced of it; but in planning and developing

administration of criminal justice, proper and needful attention and care are never been
supplied to the crime- victims in achieving the goals of criminal justice system, as a part of
social justice. We have never tried to understand that the crime- victim is an integral part of
criminal justice system. Actually, in fact, criminal justice system never starts until one
becomes a victim to the commitment of a crime. Crime as acts against law is just a beginning,
but definite result of it is a birth of a victim. By and large, criminal justice system is the
outcome of the pains of the victims. Thus, there is nothing agreeable logic or reason to deny
victim- oriented approach in the application and administration of criminal justice.

1.7.12 Compensation to Victims of Crime and Abuse of Power SammaiahMundrathi, Law on

Compensation to Victims of Crimes and Abuse of Power, Deep &Deep Publications
Pvt.Ltd, 2002,p. 1.
In this book the writer has given in detail about the provision of compensation to the victims
of crime. The writer has explained the Meaning and Definition of Compensation, Basic
Principles Concerning Award of Compensating for Damages, Compensation and Restitution,
Damages and Compensation in Tort, Compensation to victims of Crime under the System of
International Law are some of the important provisions of this book.

1.7.13 ' criminal law' J.W Ceil, Kenny’s outline of criminal law, nineteenth edition, Universal
law publishing,2002,p. 199.

In this book the writer has explained that sexual intercourse without consent or using force
against women is not only rape. It has explained that Oral rape, anal rape, date rape, marital
rape, male rape is new concept about rape.

1.7.14 Crime and criminology' Sue Titus Reid, Crime and Criminology,8th edition,
1997, p. 245.
In this book the writer has explained about the classification of rape. He writes the forcible
rape as Sexual intercourse in vaginal, oral, anal against person using force, threaten are
known as forcible rape.
1.7.15 Criminology and Penology Madhav pd. Acharya & Ganesh Bdr. Bhattarai,
Criminology Penology,BhrikutiPrakashan,1st edition, Kathmandu, 2068 ,p.118.
In this book writers have defined the meaning of victim. They have explained the types of
victim, Nepalese laws dealing with the right of victim and international movement as to
victim's right and restorative justice.

1.7.16 'Rape Victim and Compensation Jogindra Pot joshi, Rape Victim and Compensation
Law , Victimological Conference held at National Law School of India University,
Bangalore, 1996,p. 5.

In this book the writer has explained about the subject of compensation. Writer says that any
victim who suffers injuries is eligible for compensation. The compensation should be
satisfactory for the victim.

1.8 RESEARCH METHODOLOGY

1.8.1 Research Design

This research paper will be based on doctrinal and analytical method with objective to
analyze the legal framework of rape offence in Nepal and also analyze the sentencing policy
in rape offence.

1.8.2 Sources and Nature of Data

The study will employ primary and secondary sources of data.

Primary sources

In the form of various legal provisions and judicial decision.

Secondary sources

Secondary data required for the research has been collected from various Research Reports,
Books and Journals, news reports and other relevant sources.

1.8.3 Universe/Population

The universe of the research is decisions of the Supreme Court of Nepal and other literatures
relevant with issue of rape offence in Nepal.
1.8.4 Sampling

The cases decided by the Supreme Court has been selected by purposive sampling method, as
only relevant rape cases from the sentencing perspective is dealt.

1.8.5 Techniques of Data Collection

As this paper is doctrinal, the books, journals, articles, documentary, dissertation, the
newspapers and websites has been consulted as secondary sources. Primary sources is
legislation and court decisions.

1.8.6 Presentation and Analysis of Data

The qualitative, descriptive and analytical method is used.

 CHAPTER II
INTRODUCTION TO RAPE

2.1 Crime and Definition of Rape

A crime occurs when an individual breaks one of our criminal laws. Every crime has two
essential parts: the action or "actus reus" and the intent or "mens rea" (guilty mind). For
example, the crime of arson has two parts: actually setting fire to a building and doing it
wilfully and deliberately. Setting a fire by accident may not be a crime. For most criminal
cases both the actus reus and the mens rea must be proven. If either element is missing, then
no crime has been committed.

Principles of Criminal Law

"Presumption of innocence" is a principle of the Canadian criminal justice system. The
accused is presumed to be innocent until proven guilty.

"Burden of proof" means that it is Crown counsel’s responsibility to prove that the accused is
guilty. The defence lawyer does not have to prove that the accused is innocent.

"Beyond a reasonable doubt" is the expression used when determining the likelihood that the
accused committed a crime. The Crown must prove that the accused is guilty and there
cannot be any reasonable doubt about it in the minds of the judge or jury. If there is a
reasonable doubt then the accused must be found not guilty.

The Elements of a Crime

It is a general principle of criminal law that both the physical act (actus reus) and the guilty
mind (mens rea) must be present at the same time for a crime to have occurred. Its
importance is illustrated by this example. Joe picks up his shoes from the locker room at his
golf club and takes them home. When he returns home he realizes that they are not his shoes
but those of another club member but decides to keep them because they fit and are much
better than his own. The criminal law relies on the concept that the act of depriving the owner
of the shoes continues until the point at which Joe formed the guilty mind (mens rea) to take
the shoes. That is the point at which the offence occurs – when there is both a guilty act and a
guilty mind.
Actus reus
The physical act of committing an offence (actus reus) is more than an act, it can be an
omission to act or a "state of being." For example if one is in possession of an illegal narcotic,
one is not acting or failing to act but merely in possession. This is a state of being. Omissions
to act can also be crimes (a failure to act when required to do so by law).

If a parent fails to provide the basic necessities for children’s survival the failure to provide is
an omission and a crime. The majority of crimes are acts or kinds of misconduct. Proof of the
physical element requires more than simply determining an act, omission or state of being
exists. It is necessary to consider the four C’s-conduct, consequences, circumstances and
causation. The conduct must be as described earlier an act, omission to act or a state of being
as outlined in a specific section of the criminal charge. Of particular importance to the
concept of conduct is that it be voluntary. The law will not hold someone criminally
responsible for an involuntary act. Consequences refer to the outcome of a specific act. For a
homicide the consequence would be the death of a human being.

The circumstances aspect of the actus reus refers to the relevant circumstances under which
an act must occur to be criminal. In the case of the crime of trespassing at night the relevant
circumstances would be that the act occurred at night, on someone’s property other than your
own and that you entered the property without consent or lawful excuse.

The final element is causation, meaning that the conduct of the accused person must be
shown to have caused the consequence (the criminal act) to occur. If Sally is charged with
murdering Bill then it must be proven that Sally’s conduct caused the death of Bill.

Mens rea
The physical act represents one element in the commission of a criminal act while the guilty
mind represents the second key element. The guilty mind refers to the intention, knowledge
or recklessness of the accused. Essentially the law states that we must mean to cause a
wrongful consequence.

Intention is commonly used in the Criminal Code to establish a type of guilty mind. Words
like "willfully," "means to" or "intentionally" are used to describe a state of mind. There are
two basic types of intention-specific and general. Specific intent offences frequently use the
phrase ‘with intent’ or ‘for the purpose of’ to demonstrate a specific purpose behind the
crime. General intent crimes are those that do not require a further purpose or intention and
are often crimes committed in moments of uncontrolled passion or aggression.
The knowledge form of a guilty mind means that the accused must have knowledge of the
specific circumstances of the crime. The phrases "knowingly" or "knowing" are commonly
used here to indicate a specific type of knowledge. For example, to knowingly lie to a judge
or jury is called perjury and is a criminal offence but to give false evidence unknowingly is
not a criminal offence.

The third kind of intent is recklessness. This is type of intent is found in crimes like
dangerous driving causing death. It means that the accused has been unduly careless in their
actions by not exercising good judgment and foresight.

Sexual Violence and Rape

The term "sexual violence" refers to a specific constellation of crimes including sexual
harassment, sexual assault, and rape. The perpetrator may be a stranger, acquaintance, friend,
family member, or intimate partner. Researchers, practitioners, and policymakers agree that
all forms of sexual violence harm the individual, the family unit, and society and that much
work remains to be done to enhance the criminal justice response to these crimes.Sexual
Violence forms are as follows,

 Sexual harassment ranges from degrading remarks, gestures, and jokes to indecent
exposure, being touched, grabbed, pinched, or brushed against in a sexual way .In
employment settings, it has been defined as "unwelcome sexual advances, requests for
sexual favors, and other verbal or physical conduct that enters into employment
decisions or conduct that unreasonably interferes with an individual's work
performance or creates an intimidating, hostile, or offensive working environment"

Sexual assault covers a wide range of unwanted behaviors—up to but not including
penetration—that are attempted or completed against a victim's will or when a victim cannot
consent because of age, disability, or the influence of alcohol or drugs. Sexual assault may
involve actual or threatened physical force, use of weapons, coercion, intimidation, or
pressure and may include—

 Intentional touching of the victim's genitals, anus, groin, or breasts.

  Voyeurism.

 Exposure to exhibitionism.

 Undesired exposure to pornography.

 Public display of images that were taken in a private context or when the victim was
unaware.

Rape definitions vary by state and in response to legislative advocacy. Most statutes currently
define rape as nonconsensual oral, anal, or vaginal penetration of the victim by body parts or
objects using force, threats of bodily harm, or by taking advantage of a victim who is
incapacitated or otherwise incapable of giving consent. Incapacitation may include mental or
cognitive disability, self-induced or forced intoxication, status as minor, or any other
condition defined by law that voids an individual's ability to give consent.

The term “rape’ has been derived from the Latin word “rapere” which means to take by
force, so the literal meaning of rape is a forcible seizure. It was not until the 12th-
century Codex of Gratian that a clear distinction was made between abduction and rape, with
the latter defined as "forced sexual intercourse". In the 15th century, the father or husband of
a raped woman pressed criminal charges because the legal definition of rape in England had
narrowed to apply to the theft of a woman's virtue, either a daughter's virginity or a married
woman's honour.14Today, rape is usually defined as an act of forcing sexual intercourse upon
unwilling victim. It is a crime wherein the victim is forced into sexual activity against her
will, in particular sexual penetration. It is considered by most societies to be among the most
heinous crime.

As per Kenny, “the crime of rape consists in having carnal knowledge of woman without her
consent although the offence is usually affected without the use of any violence. The essential
point being the woman’s free and conscious permission has not been obtained.15

14Julie Bindel, Rape: A Burning Injustice, available at

http://www.theguardian.com/lifeandstyle/2013/aug/13/rape-defined-sexual-crime-history, accessed on
March 3, 2017.
15 J.W.C. Tuner, Kenny’s Outline of Criminal Law, Cambridge University Press, London, 1996, p.380.
Rape is defined as the having of unlawful carnal knowledge by a man of a woman, forcibly or
against her will.16 Rape includes unlawful sexual intercourse without consent after the
perpetrator has substantially impaired his victim by administering, without the victim’s
knowledge or consent, or drugs or intoxication for the purpose of preventing résistance. It
may include sexual intercourse with a person who is unconscious. Marital status is now
usually irrelevant and sometimes so is the gender.17

The legal definition of rape has changed substantially since the late 20th century. The
traditional definition was narrow with respect to both gender and age; rape was an act of
sexual intercourse by a man with a woman against her will. As rape is now understood, a
rapist or a victim may be an adult of either gender or a child. Although rape can occur in
same-sex intercourse, it is most often committed by a male against a female.18

Modi defines rape as, ‘in order to constitute the offence of rape, it is not necessary that there
should be complete penetration of penis with the emission of semen and rupture of hymen.
Partial penetration of the penis within the labia majora or vulva pudenda with or without the
emission of semen or even attempt at penetration is quite sufficient for the purpose of law. 19
Rape is considered when woman denies to give consent. Generally, consent is considered
invalid if it is obtained by someone who is

- Under any kind of duress ( force, violence, blackmail)

- Judgmentally impaired or incapacitated by alcohol, drugs

- Mentally impaired whether by illness or developmental disability

- Below the age of consent defined by law

In Nepal, The National Code (MulukiAin), 2020 has defined and criminalized the offence of
rape. As per no. 3 of the Chapter on Rape, A person is liable for the offence of rape if he
procures sexual intercourse with or without the consent of women under 16 and without the
consent of women above 16.

Explanation:

16 William S. Anderson (edr.), Ballentine’s Law Dictionary, 3rd edn., Lawyers Cooperative Publishing
Company, Sanfransisco, 1969, p. 1054.
17 Bryan A., Garner(edn.), Black's Law Dictionary, 9th edn, West Publishing Company, U.S.A., p. 1374.
18 Rape, available at http://www.britannica.com/EBchecked/topic/491380/rape, accessed on December 12,
2018.
19 B V Subrahmanyam, Modi’s Medical Jurisprudence & Toxicology, 22nd edn, New Delhi, Butterworths,
1999. p. 495.
a. Consent obtained by threat, fear, undue influence, fraud, abducting may not be termed
as consent.

b. Consent obtained when one is not in consciousness may not be termed as consent.

c. Even if there is slight penetration, then also it may be termed as rape.

As per Indian Penal Code, A man is said to commit" rape" who, except in the case hereinafter
excepted, has sexual intercourse with a woman under circumstances falling under any of the
six following descriptions:- First.- Against her will. Secondly.- Without her consent. Thirdly.-
With her consent, when her consent has been obtained by putting her or any person in whom
she is interested in fear of death or of hurt. Fourthly.- With her consent, when the man knows
that he is not her husband, and that her consent is given because she believes that he is
another man to whom she is or believes herself to be lawfully married. Fifthly.- With her
consent, when, at the time of giving such consent, by reason of unsoundness of mind or
intoxication or the administration by him personally or through another of any stupefying or
unwholesome substance, she is unable to understand the nature and consequences of that to
which she gives consent. Sixthly.- With or without her consent, when she is under sixteen
years of age. Explanation.- Penetration is sufficient to constitute the sexual intercourse
necessary to the offence of rape. Exception.- Sexual intercourse by a man with his own wife,
the wife not being under fifteen years of age, is not rape.20

As per the law of Massachusetts, rape means any Sexual intercourse or unnatural sexual
intercourse by a person with another person who is compelled to submit by force and against
his will or by threat of bodily injury, or sexual intercourse or unnatural sexual intercourse
with a child under sixteen years of age.21

Under International law in the case of Prosecutor v Kunarac and others22, the Trial Chamber
of ICTY defined rape as

“the sexual penetration, however, slight, (a) of the vagina or anus of the victim
by the penis of the perpetrator or any other object used by the perpetrator or
(b) of the mouth of the victim by the penis of the perpetrator where such
sexual penetration occurs without consent of the victim. The consent for this

20 Indian Penal Code, 1860, Sec. 375.

21 https://malegislature.gov/Laws/GeneralLaws/PartIV/TitleII/Chapter277/Section39 , accessed on
March 6, 2018.
22 Prosecutor v Kunarac and others, ICTY, February 22, 2001.
 purpose must be given voluntarily as a result of the victim’s free will, assessed
in the context of the surrounding circumstances. The mensrea is the intention
to effect this penetration and the knowledge that it occurs without the consent
of victim.23

Rape today is also considered as a matter of torture and crime against humanity. In 1998, the
International Criminal Tribunal for Rwanda (ICTR) handed down a judgment in the case
of Prosecutor v. Akayesu24 that broke ground by finding that rape could constitute genocide
under international law. The Akayesu case was also important because it held Jean-Paul
Akayesu responsible under the article of the ICTR Statute that prohibited rape as part of a
widespread or systematic attack against a civilian population on national, political, ethnic,
racial or religious grounds. In effect, this meant that rape was also punishable as a crime
against humanity.25

Similarly, in the particular case, the ICTR for the first time considered rape as torture. The
tribunal observed

“Like torture, rape is used for the purposes as intimidation, degradation,

humiliation, discrimination, punishment, control or destruction of a person.
Like torture, rape is a violation of personal dignity, and rape in fact
constitutes torture when inflicted by or at the investigation of or with the
consent or acquiescence of public official or other person acting in an
official capacity”26

Rape was also codified as part of the definition of crimes against humanity in the Rome
Statute of the International Criminal Court (ICC) in 1998. Article 7(g) of the Statue identifies
Rape as one of the element of crime against humanity when committed as part of a
widespread or systematic attack directed against any civilian population, with knowledge of
the attack.

Prosecutor v. Kunarac and others, was the first case where the allegations focused
exclusively on sex crimes. Each of the men in the case were charged with various forms of

23 C.de Than and E. Shorts, International Criminal Law and Human Rights, Sweet & Maxwell, 2003, p. 104.
24 Prosecutor v. Jean Paul Akayesu, ICTR,September 2, 1998.
25 Mark Ellis, ‘Breaking the Silence: Rape as an International Crime’ 2007, Case W. Res. J. Int'l L. 38:225-
247, available at https://clg.portalxm.com/library/keytext.cfm?keytext_id=202 , accessed on March 6, 2017.
26 Akayesucase ,para 597.
sexual violence. The ICTY handed down its verdict in February 2001. The court ruled that the
acts of rape were recognized as crimes against humanity because:

 They were part of a systematic and widespread campaign,

 The acts included elements of enslavement.

So, even though the wording of the Statue of Rome had included rape in its definition of
crimes against humanity, the case of Prosecutor v. Kunarac and others, made that language a
reality thus broadening the scope of definition of rape.27

2.2 Types of Rape

Rape may be classified in the following types:

1. Acquaintance or Date Rape:

It is rape committed by someone known to victim, especially by the victim’s social

companion.28 It refers to rape by person who are already acquainted, or who knows each other
socially- friends, neighbors, people on date or even people in an existing romantic
relationship, where it is alleged that consent for sexual activity was not given. Like most of
the jurisdictions there is no legal distinction between rape committed by a stranger, or by an
acquaintance, friend or lover, acquaintance or date rape is a very new concept in criminal
jurisprudence. 29

2. Custodial rape

Custodial rape is a form of rape which takes place while the victim is "in custody" and
constrained from leaving, and the rapist or rapists are an agent of the power that is keeping
the victim in custody.30 Custodial rape is a rape in the custody or care and control of a person
either in the custody of police, jailer, or in the custody of hostel superintendent, remand
officers etc.31 While some definitions of custodial rape define it as taking place in a state-

27 John Hagan, ‘Justice in the Balkans. Chicago: University of Chicago Press’, 2003. Ch. 6, pp. 176-203,
available at https://clg.portalxm.com/library/keytext.cfm?keytext_id=74, accessed on March 6, 2017.
28 Garner (n 21), p. 1288.
29 L. Russo, ‘Date Rape: A Hidden Crime, Trends & Issues in Crime and Criminal Justice’, Australian
Institute of Criminology, 2000, p.157.
30 Custodial Rape, available at http://www.angelfire.com/space2/light11/women/custodial1.html , accessed on
March 7 2017.
31 Custodial Rape, available at http://indiankanoon.org/doc/1452736/ , accessed on March 7, 2017.
owned institution, and perpetrated by a state agent, the term more generally refers to any
situation where the power of a state agent is used to enable rape.

3. Incestuous rape

Incest refers to the blood relation between the persons viz. victim and accused. Incestuous
rape is thus the rape committed by an accused who has a blood relation with the victim. The
offender may be a family member or a close relative. Such rape is considered as the most
anti- social of any other type of rape.

4. Gang rape

Gang rape occurs when a group of people participate in the rape of a single victim. Gang
rapes involved more alcohol and drug use, night attacks and severe sexual assault
outcomes.32Gang rapes generally involve more alcohol and drug use, night attacks and severe
sexual assault outcomes.33

5. Male to male, women to women, women to male rape

Generally it is observed that only woman are victims of rape. However, many literatures also
indicate that even man can also be a rape victim but men and boys who are raped fear
bringing complaints of rape to the attention of the authorities, due to the victim’s fear of
stigma.34Male rape remains deeply taboo, protecting traditional gender norms by fostering a
culture of silence. They are afraid to come forward, restricted by the stigma of homosexuality
that emasculates and estranges them from the state. SandeshSivakumaran notes that sexual
violence against men take place is almost every armed conflict in which sexual violence is
committed. 35

According to psychologist Dr. Sarah Crome, fewer than 1 in 10 male-male rapes are
reported.36 As a group, male rape victims reported a lack of services and support, and legal

32 Sarah E. Ullman ,A comparison of gang and individual rape incidents, available at

http://www.safetylit.org/citations/index.php?fuseaction=citations.viewdetails&citationIds%5B
%5D=citjournalarticle_38711_20accessed on March 7, 2017.
33 Ibid.
34 Rape and Sexual Violence Human Rights Law and Standards in the International Criminal Court ,
Amnesty International , available at http://www.amnesty.org/en/library/asset/IOR53/001/2011/en/7f5eae8f-
c008-4caf-ab59-0f84605b61e0/ior530012011en.pdf accessed on accessed on May 7, 2017.
35 Don Couturier, The rape of Men: Eschewing Myths of Sexual Violence in War, available at
http://web.uvic.ca/~onpol/1_Don.pdf accessed on accessed on March 7, 2017.
36 Nicole Johnston, Male rape victims left to suffer in silenceavailable at
http://www.abc.net.au/worldtoday/stories/s244535.htm accessed on accessed onMarch 7, 2017.
systems are often ill-equipped to deal with this type of crime. Several studies argue that male-
male prisoner rape, as well as female-female prisoner rape, are common types of rape which
37
go unreported even more frequently than rape in the general population. A study done
found that 1 in 21 men (4.8%) reported that they had been forced to penetrate someone else,
usually a woman; had been the victim of an attempt to force penetration; or had been made to
receive oral sex.38 However, there is still a debate on whether a man can be victim of rape or
whether a female can be an offender.

6. Marital rape

Rape of a person’s spouse is known as marital rape. It is a husband’s sexual intercourse with
his wife by force or without her consent. 39It is a form of partner rape, of domestic violence,
and of sexual abuse. It can be equally, or even more, emotionally and physically damaging
than rape by a stranger.40 Furthermore, marital rape is rarely a one-time event, but a repeated
if not frequent occurrence.41 Whether it takes place once or is part of an established pattern of
domestic violence, trauma from rape has serious long term consequences for victims
regardless of whether the assault is prosecuted or not.Marital rape is so destructive because
it betrays the fundamental basis of the marital relationship. Traditionally a husband
cannot commit rape with his lawful wife, but the concept has changed in today’s context.

7. Statutory rape

It is unlawful sexual intercourse with a person under the age of consent (as defined by the
statute), regardless of whether it is against that person’s will. 42 Sexual intercourse with a
person who hasn’t reached the age of consent is called as statutory rape. The age of consent
for sexual intercourse varies depending upon laws of the state. The age of consent under

37 Human Rights WatchNo Escape: Male Rape In U.S. Prisons. Part VII. Anomaly or Epidemic: The
Incidence of Prisoner-on-Prisoner Rape.available at
http://www.hrw.org/legacy/reports/2001/prison/report7.html#_1_48accessed on accessed on March 7, 2017.
38 Roni Caryn Rabin, Men Struggle for Rape Awareness, available at
http://www.nytimes.com/2012/01/24/health/as-victims-men-struggle-for-rape awareness.html?
pagewanted=all&_r=0 accessed on March 5, 2018.
39 Bryan Garner,Blacks Law Dictionary, p.1267.
40 Marital Rape, available at http://www.rainn.org/public-policy/sexual-assault-issues/marital-rape accessed on
March 5, 2018.

41Marital Rape, available at http://www.hiddenhurt.co.uk/marital_rape.html accessed on March 6, 2018.

42 Garner ( n 54), p. 1288 .
Nepalese law is 1643which is similar to English and Indian law. The rationale behind the
provision of statutory rape is protection of minors as they are considered unable to give
consent in such matters.

Rape victims and the Impacts of Rape

The word “victim” is derived from the Latin “victim” and originally contained the concept of
sacrifice. In a legal sense it is understood as a person harmed by a crime, tort or other
wrong.44 Similarly, a victim of a crime may be operationally defined as an individual who has
been confronted, attacked, assaulted, or violated by a perceived predator, and the result is
serious short – term as well as long -term physical and/or mental injuries to the crime
victim.45 They usually suffer from a number of medical, psychological and financial problems
caused by the crime. There is no characteristic profile of victim. Persons of all ages, races,
ethnicities and socioeconomic ranges are subject to criminal assault of one form or another.46

Walter Reckless(1961) has classified victims as47

i) Reporting victims: those who do not bother for the consequences of reporting their
victimization but are rather interested in getting the offender punished or getting
some relief for their suffering.

ii) Non- reporting victims: those who are unwilling to report because they fear
reprisals or social consequences of doing so.

Many women who are raped do not identify themselves as rape victims. One reason that
women do not report rape and do not acknowledge being raped might be based in societal
stereotypes surrounding sexual violence. Stereotypes about rape victims include the notions
that she "asked" to be raped, secretly enjoyed the experience, or lied about it. Rape victims
who feel that these stereotypes will be applied to them may be unwilling to report the rape. 48

43 National Code, 1963 (MulukiAin,2020) Chapter ‘On Rape’ Sec. 1.

44 Garner ( n 21), p.1703.
45Ann Wolbert Burgess and Albert R. Roberts, Crime and Victimology, available at
http://samples.jbpub.com/9780763772109/72109_Ch01_Roberts.pdf , accessed on May 08, 2012.
46 Ibid.
47 Ram Ahuja, Criminology, Rawat Publications, Jaipur, 2000,p. 392.

48 Amy M. Buddie, Beyond rape myths: A more complex view of perceptions of rape victims, available
at http://business.highbeam.com/435388/article-1G1-82782443/beyond-rape-myths-more-complex-
view-perceptions-rape , accessed on February 20, 2014.
The Supreme court of Nepal in Meera Dhungana for FWLD v H.M.G.49stated that

“Rape is one of the major offences amongst criminal offences of the serious
nature. Rape is an inhuman act to be committed violating woman’s human
rights and the act directly causing serious impact on individual liberty and
right to self determination of victim woman. Not only it causes adverse impact
on physical, mental, family and spiritual life of victim women, it also
adversely affects on self- respect and existence of women. This offence is not
only against victim women but also against society as a whole. Murder
destroys physical being of a person but the offence of rape destroys physical,
mental and spiritual position of victim woman”.

Similarly, as stated by Indian Supreme Court, “a rapist not only violates the victim’s privacy
and personal integrity, but inevitably causes serious psychological as well as physical harm in
the process. Rape is not merely a physical assault- it is often destructive of the whole
personality of the victim.”50

Thus, a rape victim has to go through number of impacts. Some of the impacts on rape
victims can be noted as follows:

1. Physical Impacts

Rape is a traumatic experience where the victim is subjected to immense physical impacts. In
regards to the external genitalia, the most frequent reported sites for injuries in victim of the
non consensual sexual assault are the posterior fourchette, labia minora, fossa navicularis and
hymen. The most frequent reported injuries are lacerations of the posterior fourchette and
fossa navicularis, abrasions on the labia minora and contusions of the hymen. Most reported
injuries involve the external genitalia.51

In alleged sexual assault victims, injuries of the hymen detected by colposcope include, in
decreasing order of frequency, contusions, lacerations, abrasions, swelling, and erythema.
Most appear to be located at the 6’0 clock position.52 The most common injuries of the vagina

49 Writ no. 55 of the year 2058.

50 State of Punjab v Gurmit Singh, (1996) 2 SCC 384.
51 Chapman (n 4), p. 293.
52 Ibid.
detected by colposcopy in individuals alleging nonconsensual sexual intercourse, in
decreasing order of frequency, are lacerations, contusions and abrasions.53

53 Ibid.
In case of incomplete penetration, the only signs which may be seen are reddening and
inflammation of the vestibule within the labia or a small tear of the posterior fourchette.
There may also be contisuions of the hymen.54 If a young child does have the vagina or anus
penetrated by fingers or a penis, bruising, tearing and bleeding are likely. It seems probable
that the child would also suffer considerable discomfort for the next couple of days,
especially when urinating or having a bowel movement. Anal penetration, by the penis,
normally results in severe pain when the child next attempts to have a bowel movement, but
keep in mind that the perineal region has a good blood supply, and usually heals rapidly.55

Teeth marks or suction petechiae, from the accused ‘s mouth may be found on the neck or
breast or abdomen and there may be laceration of the nipples from the teeth. Bruising of the
lips and even tearing of the inner aspects of the lips may be found, due to rough kissing or
even blows.56

The body especially the forearms, wrist, face, breasts, chest, lower part of abdomen, inner
aspects of thighs and back should be examined for the marks of violonce , such as scratches,
abrasions and bruises caused as a result of struggle.57 In addition to these marks , the female
may find difficulty in walking and pain in micrturition or defecation.58

2. Psychological Impacts

As agonizing as the physical injuries may be, the psychological trauma of sexual violence can
take much longer to heal.59 Rape victims may display feelings of fear, anger, shock, and
anxiety in an overt, hysterical fashion immediately following the attack, or may appear stable,
calm, or subdued.60 As they begin to deal with the aftereffects of rape, victims may feel
afraid, humiliated, and embarrassed, as well as angry, vengeful, and blameworthy. 61

54 H.W.V. Cox, Medical Jurisprudence and Toxicology, 6th edn., The Law Book Company, Allahabad, 1998,
p. 433.
55 Allen N. Cowling, Medical Reports and Examinations In False Allegation Cases, available at
http://www.allencowling.com/medical.htm , accessed on May 02, 2018.
56 Cox (n 58), p. 428.
57 K Mathiharan and Amrit K Patnaik. Modi’s Medical Jurisprudence and Toxicology, 23rd edn., Lexis Nexis
Butterworths, New Delhi, 2005, p. 925.
58 Ibid.
59 International Review on Red Cross: Women, Vol. 92 no 877 ( ICRC 2010) p. 120.
60 Ann Burgess and Linda Holmstrom, ‘Rape Trauma Syndrome’, 131 AM. J. Psychiatry ,1974, p.982.
61 Ibid.
Rape is a stressful situation that may have an immediate and disruptive impact on a victim's
emotional and psychological state. Rape trauma syndrome is the label attached to the acute
stress reaction experienced by rape victims. During the first few weeks following the rape,
victims also experience a variety of somatic reactions including physical trauma, skeletal
muscle tension, gastrointestinal irritability, and genitourinary disturbance.62

The early studies also described the long-term process of recovery that follows a rape during
the period of recovery; a victim typically resolves her feelings about the rape by accepting the
event, appraising realistically her complicity in the rape, and expressing her anger toward the
rapist. Disruptive events, such as residence changes, upsetting dreams, and nightmares
frequently accompany this period. As a defensive reaction to the traumatic circumstances of
the rape, victims also develop phobias including fear of sexual relations, fear of crowds, fear
of being alone, fear of people, fear of the indoors or fear of the outdoors. 63

3. Familial Impact

Rape is also resulted with familial disturbances to the victim. If the victim is unmarried, there
may be difficulties to get married. Even if she got an opportunity for marriage she might have
to marry with a man who is not competent or qualified to her. She always has to live in fear
that if her rape experience comes into the knowledge between her and the husband, which
may disorganize the family.64 Treatment towards her by her in- laws may result her more
traumatic experience. Victims may suffer isolation, be disowned by friends and family, be
prohibited from marrying, be divorced if already married, or even killed.

For many men, the rape of their wives is a form of humiliation not only for themselves but
also for their ethnic, tribal or religious group, leading many husbands and communities to
reject the victims and even their children. The women, having endured the brutality of rape
and its physical and psychological consequences, then find themselves denied their most
basic human rights. Even when pregnancy does not occur, men in patriarchal societies still
may reject their wives, mothers or daughters after they have been raped.65

62 Landerdale (n13).
63 Ibid.
64 Rajit Bhakta Pradhananga and Dilli Ram Shrestha, ‘Rape Victims in the Criminal Justice System of Nepal:
A Critical Observation’ Nepal Bar Council Law Journal, p.1 2007, p. 9

65 César Chelala, Rape as a weapon of war / It persists in Africa where HIV/AIDS takes a heavy toll,
available at http://www.sfgate.com/opinion/article/Rape-as-a-weapon-of-war-It-persists-in-Africa
2659943.php, accessed on March 1, 2018.
 4. Societal Impacts

Society always believe that there is a mistake of rape victim and always condemns her.
Societal belief is that a rape victim is not a victim of crime but a victim of her own fault. 66 In
many Muslim societies, women are often held responsible and stigmatized for the violence
against them. Rape continues to remain a taboo subject and in some cases women will face
discrimination instead of the recognition and vital assistance they need after being abused.
Some rape victims are murdered by relatives because the violation of a woman’s chastity is
viewed as an attack to their family’s honor. Almost 50 percent of women in a study of female
deaths in Alexandria, Egypt were killed by a relative after being raped. The United Nations
estimates that the annual worldwide number of honor killing victims may be as high as 5,000
women. Even female relatives frequently support honor attacks as they too believe women
are responsible for embodying a family’s honor. As a result, rape victims remain silent and
refrain from seeking help because they are afraid of repercussions and lack of justice. At the
same time, there are other women who take their own lives, in what is known as “honor
suicides,” due to mounting family pressure and fear. 67

5. Professional Impacts

The victim may often be mistreated in her professional life and may lose her job looking at
the reputation of the office. Psychologically, she cannot work as efficiently as before, hence
her chances of promotion gets affected.68 Hence, it is always very difficult for a rape victim to
get back to her profession in an efficient manner after the incident.

6. Unwanted Pregnancy

Pregnancy is a potential result of rape. A woman who becomes pregnant after a rape may face
a decision about whether to have an abortion, give the child up for adoption, or raise it.
Although in Nepal, a woman is permitted to have lawful abortion until 12 weeks 69 but

66 Pradhananga and Shrestha (n 79), p. 5.

67 Stigmatization of Rape & Honor Killings, available at
http://www.wisemuslimwomen.org/currentissues/stigmitizationofrape/ accessed on February 28,
2018.
68 Pradhananga and Shrestha (n 79), p.9.
69 National Code, 1963 (Muluki Ain,2020) Chapter ‘On Homicide’ no. 28B(1).
realizing the fact that a rape victim may suffer through unwanted pregnancy, she may abort
till 18 weeks.70

7. Sexually Transmitted Diseases

It is generally seen a rampant commission of rape during the period of war or civil unrest. It
is estimated that half a million of Rwanda's population of 8 million are living with
HIV/AIDS. A high proportion of those are women raped and infected during that country's
bloodshed in 1994.71 Similarly, violent or forced sex can increase the risk of
transmitting HIV. In a research done among 204 girls and women initially examined within
72 hours of the rape, 88 (43 %) were found to have at least one sexually transmitted disease.
These diseases included infections caused by Neisseria gonorrhoeae (6 % of those tested),
cytomegalovirus (8 %) Chlamydia trachomatis (10%), Trichomonas vaginalis(15 %), herpes
simplex virus (2 %), Treponema pallidum (1 %), and the human immunodeficiency virus type
1 (HIV-1; 1 %) and bacterial vaginosis (34 %).72

Role of Rape Victims and Criminal Justice System

There is immense role of victims in the criminal justice system as whole criminal justice
keeps the victim in the center.

1. Reporting of crime to the police

Greater number of crimes are committed under the shadow in our society and a number if
criminals are freely moving who are supposed to be imprisoned. These all is happening due
to not reporting the crime to law enforcement agencies. A sexual crime has such nature that
mainly a victim herself is evident and information of crime scene. Only the rarest cases come
to public. The victims should inform he police in order to bring culprit within the ambit of
criminal justice system. However, due to many factors, they do not report it. When the victim
deices to report it she must explain everything so that the police can understand and

70 Ibid, no. 28B(2).

71 César Chelala, Rape as a Weapon of War: It Persists in Africa where HIV/AIDS Takes a Heavy Toll,
available at http://www.sfgate.com/opinion/article/Rape-as-a-weapon-of-war-It-persists-in-Africa-
2659943.php , accessed on February 26, 2018.

72 Sexually Transmitted Diseases in Victims of Rape, available at

http://www.nejm.org/doi/full/10.1056/NEJM199003153221101#t=article , accessed on February 29,
2018.
document the statement about what actually happened. Thus, to have her experiences
expressed thoroughly, the female police is supposed to be available in the police system.73

2. Proceed for medical examination

After the victim’s report of sexual assault, the police generally proceed for medical and
physical examination. In order to prosecute the offender effectively from the evidential point
of view she is supposed not to take bath or wash or change her clothes before going to police.
At the time of examination, the victim’s consent is must or if the victim is minor the parents
or guardians must agree to conduct medical examination. 74 Medical report of victim is
deemed so important that even if the victim may turn hostile before court but if the medical
report indicates signs of rape which is corroborated by other evidences then in such instances
court has held guilty.75

3. Identification of culprit

Generally, in case of an acquaintance rape, since the reporting of the case the culprit can be
identified. But, in case of a stranger rape she may recognize his/ their face through
photographs or she may be able to describe the police so that they can record it. If some
suspects are arrested she is supposed to identify her perpetrator in an identification parade.
This process helps the police to identify the culprits and apprehend them. This is an important
part and needs an active participation of the victim.76

4. In court hearing

In cases of rape the most important element is the victim and should be considered as real and
direct evidence.77 Since there are hardly any witness in rape cases, the victim themselves are
the most important and mostly sole witness in the case. The victims should be present at the
court to provide statement, however in many instances the victim can be hostile and does not
testify.78 Although providing testimony in court in indeed a traumatic event for victim as she

73 Pradhananga and Shrestha (n 79), p. 5.

74 Ibid, p. 6.
75 N.G. v Narayan Bahadur Raut, N.K.P. 2066, D.N.8179, P. 1038.
76 Pradhananga and Shrestha (n 79), p.6
77 N.G v Chandra Prasad Tiwari alias Chandra Bahadur Tiwari , N.K.P. 2069, D.N. 8878, P. 1280.
78 In the case of NG v Rabin alias Narayan Paudel Khatri, N.G. v Mibarak Mir Musalman and some others
before the court victim denied that she was raped, although later on the accused was held guilty on the basis
of other evidences.
has to go through her horrible experience but is particularly a very important part as the court
has high regards about the testimony of victim.79

4.1. International Protection on Rape Victims

Since the early studies in the 1940s by Benjamin Mendelsohn and Hans von Hentig,
increasing attention has been turned to the problems faced by victims, both in society in
general and in their interaction with the criminal justice system in particular. Researchers also
began to identify proposed changes in the criminal justice system which they felt would be
more responsive to victim needs and desires. The changes included the restoration of
restitution remedies and greater participation and input in the criminal justice process.80

There is no specific convention or protection framework that relates to rape victim in the
international arena. However, some of the international framework can be seen in relation to
protection of victims as general.

1. Basic Principles of Justice for Victims of Crime and Abuse of Power, 1985:81

The formulation of the status of victim under international framework is outstandingly

included in Basic Principles of Justice for Victims of Crime and Abuse of Power, 1985 as it
reflects the collective will of international community to establish a balance between the
fundamental rights of suspects and offenders.82 based on the conviction that victims should
be treated with compassion and respect for their dignity and that they are entitled to prompt
redress for the harm that they have suffered, through access to the criminal justice system,
reparation and services to assist their recovery. Following rights are mentioned in the
Declaration

a. Access to justice and fair treatment.

Victims should be treated with compassion and respect for their dignity. They are entitled to
access to the mechanisms of justice and to prompt redress, as provided for by national
legislation, for the harm that they have suffered. 83 Judicial and administrative mechanisms

79 Pradhananga and Shrestha (n 79), p.6.

80 Geeta Pathak Sangroula,’In Camera Proceedings: Conceptualizing the Rights of Victims of
Crime’,Kathmandu Law Review,Vol. 1, 2008, Kathmandu School of Law, Bhaktapur, p. 139.
81 UN Declaration on Basic Principles of Justice for Victims of Crime and Abuse of Power, 1985 adopted by
the General Assembly on November 1985.
82 Sangroula (n 95), p. 140.
83 UN Declaration on Basic Principles of Justice for Victims of Crime and Abuse of Power, 1985, Art. 4.
should be established and strengthened where necessary to enable victims to obtain redress
through formal or informal procedures that are expeditious, fair, inexpensive and accessible.
Victims should be informed of their rights in seeking redress through such mechanisms.84

The responsiveness of judicial and administrative processes to the needs of victims should be
facilitated by:85

(a) Informing victims of their role and the scope, timing and progress of the
proceedings and of the disposition of their cases, especially where serious
crimes are involved and where they have requested such information;

(b) Allowing the views and concerns of victims to be presented and considered at
appropriate stages of the proceedings where their personal interests are
affected, without prejudice to the accused and consistent with the relevant
national criminal justice system;

(c) Providing proper assistance to victims throughout the legal process;

(d) Taking measures to minimize inconvenience to victims, protect their privacy,

when necessary, and ensure their safety, as well as that of their families and
witnesses on their behalf, from intimidation and retaliation;

(e) Avoiding unnecessary delay in the disposition of cases and the execution of
orders or decrees granting awards to victims.

Informal mechanisms for the resolution of disputes, including mediation, arbitration and
customary justice or indigenous practices, should be utilized where appropriate to facilitate
conciliation and redress for victims.86

b. Restitution:

Offenders or third parties responsible for their behaviour should, where appropriate, make
fair restitution to victims, their families or dependants. Such restitution should include the
return of property or payment for the harm or loss suffered, reimbursement of expenses
incurred as a result of the victimization, the provision of services and the restoration of
rights.87

84 Ibid, Art. 5.
85 Ibid, Art. 6.
86 Ibid Art. 7.
87 Ibid Art. 8.
Governments should review their practices, regulations and laws to consider restitution as an
available sentencing option in criminal cases, in addition to other criminal sanctions.88

In cases of substantial harm to the environment, restitution, if ordered, should include, as far
as possible, restoration of the environment, reconstruction of the infrastructure, replacement
of community facilities and reimbursement of the expenses of relocation, whenever such
harm results in the dislocation of a community.89

Where public officials or other agents acting in an official or quasi-official capacity have
violated national criminal laws, the victims should receive restitution from the State whose
officials or agents were responsible for the harm inflicted. In cases where the Government
under whose authority the victimizing act or omission occurred is no longer in existence, the
State or Government successor in title should provide restitution to the victims. 90

c. Compensation:

When compensation is not fully available from the offender or other sources, States should
endeavor to provide financial compensation to: 91

(a) Victims who have sustained significant bodily injury or impairment of

physical or mental health as a result of serious crimes;

(b) The family, in particular dependants of persons who have died or become
physically or mentally incapacitated as a result of such victimization.

The establishment, strengthening and expansion of national funds for compensation to

victims should be encouraged. Where appropriate, other funds may also be established for
this purpose, including those cases where the State of which the victim is a national is not in a
position to compensate the victim for the harm.92

d. Assistance:

Victims should receive the necessary material, medical, psychological and social assistance
through governmental, voluntary, community-based and indigenous means.93

88 Ibid Art. 9.
89 Ibid Art. 10.
90 Ibid Art. 11.
91 Ibid Art. 12.
92 Ibid Art. 13.
93 Ibid Art. 14.
Victims should be informed of the availability of health and social services and other relevant
assistance and be readily afforded access to them.94

Police, justice, health, social service and other personnel concerned should receive training to
sensitize them to the needs of victims, and guidelines to ensure proper and prompt aid.95

In providing services and assistance to victims, attention should be given to those who have
special needs because of the nature of the harm inflicted or because of factors such as those
mentioned in paragraph 3 above.96

2. Rome statute of International Criminal Court, 1998

a. Protection of the victims and witnesses and their participation in the proceedings:97

1. The Court shall take appropriate measures to protect the safety, physical and
psychological well-being, dignity and privacy of victims and witnesses. In so
doing, the Court shall have regard to all relevant factors, including age, gender
as defined in article 7, paragraph 3, and health, and the nature of the crime, in
particular, but not limited to, where the crime involves sexual or gender
violence or violence against children. The Prosecutor shall take such measures
particularly during the investigation and prosecution of such crimes. These
measures shall not be prejudicial to or inconsistent with the rights of the
accused and a fair and impartial trial.

2. As an exception to the principle of public hearings provided for in article 67,

the Chambers of the Court may, to protect victims and witnesses or an
accused, conduct any part of the proceedings in camera or allow the
presentation of evidence by electronic or other special means. In particular,
such measures shall be implemented in the case of a victim of sexual violence
or a child who is a victim or a witness, unless otherwise ordered by the Court,
having regard to all the circumstances, particularly the views of the victim or
witness.

94 Ibid Art. 15.

95 Ibid Art. 16.
96 Ibid Art. 17.
97 Rome statute of International Criminal Court, 1998 Art. 68.
 3. Where the personal interests of the victims are affected, the Court shall permit
their views and concerns to be presented and considered at stages of the
proceedings determined to be appropriate by the Court and in a manner which
is not prejudicial to or inconsistent with the rights of the accused and a fair and
impartial trial. Such views and concerns may be presented by the legal
representatives of the victims where the Court considers it appropriate, in
accordance with the Rules of Procedure and Evidence.

4. The Victims and Witnesses Unit may advise the Prosecutor and the Court on
appropriate protective measures, security arrangements, counselling and
assistance as referred to in article 43, paragraph 6.

5. Where the disclosure of evidence or information pursuant to this Statute may

lead to the grave endangerment of the security of a witness or his or her
family, the Prosecutor may, for the purposes of any proceedings conducted
prior to the commencement of the trial, withhold such evidence or information
and instead submit a summary thereof. Such measures shall be exercised in a
manner which is not prejudicial to or inconsistent with the rights of the
accused and a fair and impartial trial.

3. United Nation Handbook on Justice for Victims, 199998

This Handbook has been drafted recognizing that differences arise when its principles are
applied in the context of different legal systems, social support structures and life situations.
The Handbook is not meant to be prescriptive but to serve as a set of examples for
jurisdictions to examine and test. These programmes and their underlying principles have
been tested in many countries and found to be successful. They can contribute to meeting
fundamental victim needs, speeding recovery, restoring community vitality and securing
justice. This investment can provide significant short-term and long-term returns. The
Handbook outlines the basic steps in developing comprehensive assistance services for
victims of crime. The handbook not just deals about the impact of victimization but also deals
with Victim assistance programmes like Starting a victim assistance programme, types of
services to be provided, Crisis response, counseling and advocacy , Victim participation in

98 United Nation Handbook on Justice for Victims, 1999 on the use and application of UN Declaration on
Basic Principles of Justice for Victims of Crime and Abuse of Power, 1999.
the justice process, Victim compensation and restitution , Public education and sensitization
techniques and so on.

Similarly it also mentions about the role and responsibility of police, prosecutors, judiciary,
health care professionals, media persons employers, spiritual leaders etc. Moreover, it also
mentions about the role of civil society and Working together at the international level.
 CHAPTER III
THEORIES OF PENAL LIABILITY

This chapter deals with the theory of liability and theory of punishment. For this purpose the
nature and kinds of liability, the theory of remedial liability and the theory of penal liability
are discussed. At the final part of this chapter the theory of punishment are taken in to
consideration by reason of justification of liability to be inflicted upon the offender. Penal
policy reflects with societal perception towards crime.

Liability is in the first place either civil or criminal and in the second place either remedial or
penal. In the case of penal liability the purpose of the law, direct or ulterior, is or includes the
punishment of a wrongdoer. In the case of remedial liability, the law has not such purpose at
all, its sole intent being the enforcement of the plaintiff’s right, and the idea of punishment
being wholly irrelevant. He who commits a wrong is said to be liable or responsible for it.
Liability or responsibility is the bond of necessity that exists between the wrongdoer and the
remedy of the wrong. Where the remedy is civil one, the party wronged has a right to demand
the redress allowed by law, and the wrongdoer has a duty to comply with this demand. In the
case of criminal liability the wrongdoer is under a duty to pay such penalty as the law through
the agency of the courts prescribes.99

The theory of penal liability

One of the strongest and most persistent themes philosophically dealing with responsibility is
that it requires culpability or blameworthiness. It is generally agreed that a minimum level of
mental and physical capacity is a precondition of culpability. A person should not blame if
they lacked basic understanding of the nature and significance of their conduct, or basic
control over it, unless their lack of capacity was itself the result of culpable conduct on their
part. Beyond that, there is less agreement about what makes conduct and its consequences
culpable. For some, conduct is culpable only if it is deliberate or intentional. Deliberation and
intentional are typically explained in terms of plans- intentional conduct and intended
consequences are planned. Other theorists include conscious risk taking (recklessness) in
their account of culpability. On this view, it may be blameworthy to take a known risk of an

99 P. J. Fitzgerald, Salmond on Jurisprudence, 12th ed. ,Sweet & Maxwell, London, 1966,p. 349
adverse outcome, even if producing the outcome was not part of agent’s plan. Yet other
accounts of accountability embrace al least some cases of negligence or carelessness.100

The general conditions of penal liability are indicated with sufficient accuracy in the legal
maximum. Actus non facitreum, nisi mens sit rea. It means that the act alone does not amount
to guilt; it must be accompanied by a guilty mind. There are two conditions to be fulfilled
before penal responsibility can rightly be imposed. The one is the doing of some act by the
person to be held liable. A man is to be accounted responsible only for what he himself does,
not for what other persons do, or for events independent of human activity altogether. The
other is the mensrea or guilty mind with which the act is done. It is not enough that a man has
done some act which on account of its mischievous results the law prohibits; before the law
can justly punish the act, an inquiry must be made in to the mental attitude of the doer. A man
is penally responsible only for those wrongful acts which he does either willfully or
recklessly. Then actusreusisaccompanied by the mensrea.101

The theory of remedial liability

The theory of remedial liability is related with duty. Whenever the law creates a duty it
should enforce the specific fulfillment of it. There are many duties which from their nature
cannot be specifically enforced after having once been broken. For instance, when a libel has
already been published, or an assault has already been committed, it is too late to compel the
wrongdoer to perform his duty of refraining from such acts. Wrongs of this description may
be termed transitory; once committed they belong to the irrevocable past. Others, however,
are continuing; for example, the non-payment of a dept, the commission of a nuisance, or the
detention of another’s property. In such cases the duty violated is in its nature capable of
specific enforcement, notwithstanding the violation of it. Even when the specific enforcement
of a duty is possible, it may be, or be deemed to be, more expedient to deal with it solely
through the criminal law or through the creation and enforcement of substantive sanctioning
duty of pecuniary compensation.102

100 Peter Cane, Responsibility in Law and Morality, Hart Publishing North America, 2002,p. 65
101 P. J. Fitzgerald, Salmond on Jurisprudence, 12th ed., Sweet & Maxwell, London, 1966, p.349
102 ibid
3.1 The theories of Punishment

Retributive Theory of Punishment103

The Retributive theory of punishment connotes punishment to be tit for tat. An eye for an eye
and a tooth for a tooth is the extreme example of it. This type of punishment is primitive in
nature and barbaric in style. It does not answer to the question what is the aim of punishment.
It regards punishment for punishment sake; there is no purpose other than this. The offender
has put the victim into trouble, so he also deserves the same type of pain and suffering to
balance the sense of justice. Such perception is old perception and has little space in modern
penal policy.

The Deterrent Theory of Punishment104

According to this theory the purpose of punishment is to deter the offender for future. Such
deterrence may be two types: a. specific deterrence b. general deterrence. Specific deterrence
means that the offender once he/she gets punishment he/she would be deterred to commit like
offence by remembering the pains and sufferings entailed with it. General deterrence refers to
common people who get deter after seeing or hearing the actual offender being punished to
commit crime of like nature. Research has been done to measure the deterrent effect of
punishment upon the offender and common people. The research has revealed that
professional criminals are not found to have been deterred by any amount of punishment.
Offenders having psychic problem are also not deterred by punishment of any kind because
the root cause of crime in respect of them is quite different. Habitual criminal commit crime
by way of habit are again least affected by deterrence of punishment. Criminals committing
crime on provocation begin to repent of their act after the incident and the deterrence effect of
punishment on them is of no value upon them. If this is the situation, can we say that the
deterrent theory of punishment has no meaning in punishment system? The researchers have
answered this question with great reservation. According to them deterrence has meaning if
we are able to warn the possible offender as to effect of law on certain activity in question.
Occasional offenders get deterred if we are to make them aware of the punishment on the
offence in question. The suspended sentencing system and parole system are grounded on

103 Ian Marsh, Criminal Justice, An Introduction to Philosophies, Theories and Practice, 1st ed., Routledge,
London, 2004,p.12
104 Ibid,p.8
such perception. This perception is meaningful in many respects. We have not yet introduced
the suspended sentencing sentence and parole system but time has come to think over them.

Preventive theory of punishment105

To punish the offender by putting in jail and thus, prevent them to commit crimes is the
theme of preventive theory of punishment. So long as the offender is in jail, there is no crime
possibility from him. So, jail system represents this theory. But we cannot detain the offender
in jail for ever, except in few cases. When he comes out of jail, our expectation is that he
should be a law abiding citizen. The drawbacks of jail may be listed as follows.

a. Building of jail is very expensive

b. Jail cannot be expanded easily with increasing need of society.

c. Offenders assemble in one place in the name of punishment. This

exposes them to exchange their experiences among themselves and
runs the possibility of committing organize crime after their release.

d. Jail without work has no meaning: jail with working facilities ha great
limitation.

e. Family life of offenders in jail is hindered considerably. They are

stigmatized forever. Their rehabilitation in society is always a
challenge to the government.

Jailing is useful only if it is made productive. Keeping offenders in jail without work is
detrimental in all respects and our jailing system is virtually in this position. Offenders need
help in jail so do the victim of crime outside the jail. Helping the offender neglecting the
victim is reverse method of solving the crime problem. Victim justice must go hand in hand
with criminal justice if we are to solve the crime problem in real sense. Jail should be the
place where hard core criminals with no chances of reformation should stay for long term or
forever. For the rest, we should evolve alternative means of punishment as per our need. For
this purpose, detail record of prisoners should be maintained in jail, constant study of them in

105 Madhav Prasad Acharya, Aparadhasastra, ed. RatnaPustakBhandar, Kathmandu,

jail from reformative point of view is needed. Nepal government must face this challenge to
solve crime problem of Nepal.

The reformative theory of punishment 106

The reformative theory of punishment emphasizes on reformation of the offender. According

to this theory the purpose of punishment is to reform the offender from all possible means.
Human being as an intellectual person, he/she can be reformed by means of training,
opportunity, counseling or by threat of punishment. So, whether you punish him by putting in
jail or by fine it is to be guided by reformation. Jail, therefore, should be reformative house
not torture center. The inmates must be encouraged to reform themselves along with the aid
of the state. The administrative staff and the security personals working there must be trained
from such perspective. For this purpose the jail record must get detail description of the
prisoners as to their past life along with the circumstances in which he/she committed the
crime. Parole, suspended sentence, work release scheme, open prison, or community service
have been managed as an alternative to prison system with keen concern to reform the
prisoner. These provisions do not concer with pain and suffering of the offender as a part of
punishment rather they concern with opportunity, help and encouragement to be a diligent
and law abiding citizen. Fine as a sanction of punishment may be taken as an alternative to
prison punishment but it should be within paying capacity of the offender. For this purpose,
the fined amount must be made payable on installment basis. Such provision has not come
into our practice because of our traditional style of perception and shortcomings of law.

In sum, philosophical approach to punishment is concerned with the "ought'' of punishment,

whereas the sociological approach raises the question about the use and severity of particular
punishments and the relationship among punishment, society and social change.
Criminological approach focuses on the fact of imprisonment and on penal policy making
and crime control. So no single approach adequately provides justification and rationale for
punishment and that a full explanation can be guided only by combining these various
perspectives.

There is conflict between the theories.For many years most of the literature on the subject of
punishment was devoted to advocacy of a particular theory to the exclusion of others. Those

106 Ian Marsh, Criminal Justice, An Introduction to Philosophies, Theories and Practice, 1st ed., Routledge,
London, 2004, p.17
who espoused the rehabilitation theory condemned the rest; those who favored the deterrence
theory denied the validity of all others, and so on. But in recent years the '' inclusive theory of
punishment'' has gained considerable support. There is now general agreement that all of the
theories described above deserve some consideration.

Punishment is not only pains and suffering imposed on the offender, it is a help from the state
to change himself from bad to good condition and this should be balanced by helping the
victim of crime as well. So, all the theories have relevance in punishment but the goal should
be reformation. There is need to search out our punishment system and evaluate it to see to
what extent it is reformative, otherwise we may lag behind in competitive world of today.
 CHAPTER IV
SENTENCINGPROVISIONS IN NEPAL

This chapter deals with the sentencing policy of the court. This chapter focuses on definition
of sentencing policy. It includes court's role in sentencing, justifying the punishment, models
of sentencing and the provision of sentencing policy in DandasajayekoMahal in MulukiAin
2020.

Sentencing is defined as the formal pronouncement of the judgment and the punishment of
the defendant following his/ her conviction of crime. The judges enjoy the wide discretion
while in determining the sentence to be imposed, while delivering a judgment against an
accused. The objective of criminal law is to determine whether the accused person is guilty
of the offence s/he is charged with and to prescribe suitable action if s/he is proved guilty on
the basis of an elaborate system of substantive and procedural criminal law. 107The next
objective is the selection of measure and fixation of quantum of that measure. This is called
the sentencing process.

4.1 Definition of Sentencing:

The definition of sentencing is stated briefly in the following.

a. The judgment that a court formally pronounces after finding a defendant guilty,
the punishment is imposed on a criminal wrongdoer.108

b. A judgment in criminal case denoting the action of the court in formally

declaring to the accused the legal consequence of the guilt which s/he has
confessed or of which s/he has been convicted.109

c. The term sentence means an order passed on an offender for an offence, which
that offender has committed.110

107 Ahamad Siddique, Criminology, Problem and Perspective, (4th ed. Eastern book company, 1997),p. 318
108 Bryan A Garner, Black's Law Dictionary (7th ed.),p.1367
109 James A. Ballentine, Ballentine's Dictionary ( 3rd ed.), p.1160
110 R v Hayden (1975) , Sentence must be legal one, ( Unwin v wolseley 1 T.R 674) cf. John S. James,
Stroud's Judicial Dictionary of words and phrases,5th ed., Vol. 5 (s-z) 2371
Court's role in sentencing

In sentencing the judge's task is to determine the type and quantum of sentence
appropriate to the facts of the case and this judgment must be made in accordance with
the relevant statutory provision and appellate principles. Sentencing law speaks in only
general terms so that it is left to the sentencing judge to develop and apply the working
rules required to give detailed effect to the provisions and principles in actual cases.
The quality of the court determines the quality of justice. It is the judge who tries
disputed cases and who supervises and reviews negotiated disposition. Through
sentencing the judges determine the treatment given to an offender. Through the
exercise of his administrative power his/ her court, s/he determines its efficiency,
fairness and effectiveness.111

Justifying Punishment

Punishing people certainly needs a justification, since it is almost always something

that is harmful, painful or unpleasant to the recipient. Imprisonment, for example
causes physical comfort, psychological pain, indignity and general unhappiness along
with a variety of other disadvantages ( such as impaired prospects for employment and
social life) Deliberately inflicting suffering on people is at least prima facie immoral
and needs some special justification.112

4.2 Models of Sentencing Process113

There are four sentencing models in sentencing process, namely, legislative, judicial,
administrative and presumptive model.

a. Legislative model: The legislative establishes by statutes the length of the

sentence for each crime. In this model the judge has not given discretionary
power for mitigating or aggravating the sentences. For example, the offender of
Provocational homicide gets 10 years of imprisonment in Nepal. The
punishment is fixed. This model ignores the reality of human behavior. This type
of model is prevailing in our penal policy. It is very rigid.

111 Siddique , Criminology and Penology,p.4

112 Michael Caradino& James Dignam, The Penal System,2nded.,Sage Publications, London, 1997,p.32
113 Sue Titus Reid, Crime and Criminology, 8th ed.,p.516
 b. Judicial model: The judges have discretion power to decide the span of time of
the sentence within a range as prescribed by the legislature. For instance, the
legislature determines that, for example, attempt to commit homicide the
sentence is from 5 to 12 years of imprisonment. The judges may impose a
sentence within that range. This model is prevailing in our penal system. The
basic assumption of this model is that there should be separate hearing on
sentencing. Similarly the judge may pursue the diverse situations to frame the
opinion to come to the decision.

c. Administrative model: The legislature establishes a wide range of

imprisonment for a particular crime. The judge must impose that sentence.
However, the decision to release the inmate is determined later by an
administrative agency such as parole board. This type of model is also known as
indeterminate sentence. This type of policy is not in Nepal but the jailer may
recommend for releasing the inmates having well discipline and reformation
oriented.If the judges feel that the offender is prone to reform and no longer
danger to the society; the judge may recommend alternative measure of
sentencing such as work release, reform home and parole. As per this model the
judge is regarded as an expert of law not punishment. The punishment is viewed
and adjudicated by the penologist.

d. Presumptive sentencing model: It has been introduced as a new trend in

sentencing process. A method for determining punishment in which the
legislature sets a standard sentence in the statute, but the judge may vary that
sentence if the case has mitigating or aggravating circumstances. It provides a
certain amount of punishment in each specific case but the court is empowered
to go up and down by bearing in the mind of the specific situation of the case.
So the judge has to bear responsibility through elaborate reasoning why that
offender needs that amount of punishment. This process is not in practice in
114
Nepal. . However, section 188 of court management chapter of MulukiAin
near about to it.

114 ibid
 It is not that the four models discussed above are perfect individually. There may
be mixture of more than one model in any legal system to make the criminal
justice system perfect.

4.3 The Provision of Sentencing Policy in Nepal

The grading of the various offences is based on the gravity as understood by

legislature. The gravity of offence is generally assessed in terms of social danger,
alarm, social disapproval, harm and wickedness involved in it.115

a. Social danger: The legislatures frame the law as per the social danger. For
instance the punishment is lesser in simple theft than the burglary in MulukiAin
2020, Theft chapter.

b. Alarm: The gravity of an offence is also determined with reference to the alarm
it causes in society. Dacoit is treated more seriously than simple theft or
extortion. This is necessary in view of what has been called vindictive
satisfaction by Bentham as well as on the ground of general deterrence. One of
the reasons for punishing unsuccessful attempts to commit crime is that though
the intended harm is not caused, some alarm is caused to the potential victim
and others.

c. Social disapproval: The element is the basis of certain sexual offences and also
of the differential punishments for different types of sexual offences. To have
sexual intercourse with woman above 16 without consent is punishable. A
person is liable for the offence of rape if he procures sexual intercourse with or
without consent of woman under 16. It shows gravity of offence to have sexual
intercourse with minor. The lesser is the age, the higher is the amount of
punishment.116

d. Harm: This is one of the factors to be considered in the sentencing policy by the
legislatures and the judges. For instances, offence against a person such as
murder, grievous hurt and simple hurt are punished differently under the law

115 Rupert, The English Sentencing system (1971) 139 cf. Ahmad Siddique , Criminology Problems
&Perspectives (4th ed, Eastern Book Company India2001), 319
116 MulukiAin, 2020, Rape Chapter
 stated in MulukiAin 2020. In Murder the persons is liable to life imprisonment
with forfeiture of property whereas in attempt to murder from 5 up to 12 years
of imprisonment.117

e. Wickedness: Though the harm produced by two different offences may be the
same, yet the offence involving greater wickedness should carry greater
punishment. Section 41 of Dandasajayeko in MulukiAin is example of it. The
trend is that the person is liable concurrently or consecutively as per the
discretion of presiding judge. But we have no practice of consecutive or
cumulative except in terms of fine.118

4.4 Approaches of Punishment in Nepalese Context

Generally, there are three approaches of punishment existing in context to

Nepal. They are as follows.

a. Determinate punishment specified by law, for instance, 10 years of

imprisonment on homicide by provocation.

b. Minimum and Maximum limit of punishment specified by law, for

instance, 5 - 12 years of imprisonment on attempt to murder

c. Only maximum limit of punishment specified by law, for instance, life

imprisonment or life imprisonment with forfeiture of property.

Most of the provisions of punishment and its procedure are in

MulukiAinDandaSajayeko Chapter. The law has provided, in general, seven
types of punishment to deal with all types of criminal cases. They are discussed
briefly as follows:

a. Imprisonment for life with forfeiture of property

b. Imprisonment for life

c. Imprisonment

117 Homicide chapter sec. 13&15

118 Dandasajayeko, sec. 41 ka
 d. Fine

e. Admonishment

f. Suspended sentence

g. Confiscation of property

a. Imprisonment for life along with forfeiture of property: Most serious

case like murder119, is made punishable with imprisonment for life along
with forfeiture of property. We have no specific imprisonment system like
rigorous imprisonment120 as in India

b. Imprisonment for Life: Imprisonment for life connotes 20 years of

imprisonment.121 If it is to be fragmented on smaller charge like attempt,
the method of calculation is 18 months for forfeiture of property.

c. Fine: Generally law has provided the scale of fine by mentioning

minimum and maximum limit of it. Fine paid by offender is provided to
the victim as compensation in some cases only, for instance, in child
marriage122 hurt, grievous hurt123 and false imprisonment124etc.

d. Admonishment: It is also taken as a part of punishment if a petty case like

possession of narcotic drug125 in small quantity and commission of crime
by child under 14 is punishable with fine only.126

e. Suspendend sentence: Children's Act 2048 section 50(1)(2) deals with the
suspended sentence.

119 MulukiAin ,2020, Homicide Chapter. sec. 13

120 Prof. M.P. Acharya. Sentencing policy of the court, Kathmandu School of Law,2061
121 MulukiAin 2020, Chap. DandaSajayeko, sec. 6
122 Marriage Chapter sec. 2(8)
123 Hurt Chapter
124 False Imprisonment Chapter.
125 Narcotic Drug Prevention and Control Act 2043
126 Children's Act 2048
 f. Confiscation of property: Narcotic drug (Control) Act 2033 deals with
the confiscation of property.

4.5 Procedure for Implementation of sentencing

a. Forfeiture and procedure of forfeiture

It is also method of punishment to aggravate the degree of it. MulukiAin

2020, chapter of DandaSajayeko sections 4 and 27 deals with it. It has
stipulated that only those properties, which are share of partition of the
offender, is confiscated. Similarly it further states that any obligation
attached to it such as payment of debt, marriage expenses of subordinate
must be set-aside before effecting it.127

b. Liability on greater offence only

The provision that any person who has committed several offences and if
he is prosecuted simultaneously through the same charge sheet s/he is held,
on conviction, liable to punishment only that offence which commands
greatest amount of punishment. If the offence is punishable only fine s/he
is made liable to pay all the fines attached to each of the offences. If the
offender has absconded from prison or who is on bail, if s/he commits
further offence s/he can be made liable to pay only up to four years of
imprisonment in addition to other punishment attached to him/ her.128

c. Imprisonment in default of payment of fine

A person is liable up to four years of imprisonment in default of payment

in addition to other punishment if s/he has committed offence punishable
with both imprisonment and fine. If the offender has committed such
offence that is punishable either by fine or by imprisonment in default of
fine s/he cannot be imprisoned more than half than prescribed by the law
alternatively. Similarly, if s/he has committed an offence punishable only

127 . DandaSajayeko sec. 4 & 27

128 Sec. 8, 10 & 41
 with fine, in default of it, s/he cannot be imprisoned for more than two
years.129

d. Conversion of Imprisonment in to fine: The law has made offences

punishable within three years of imprisonment as bailable 130if the offender
is first time offender. And if he has committed an offence up to three years
of imprisonment, the court may, on its discretion, convert his
imprisonment term in to fine and release him on payment of such
fine.131But this provision is not applicable to cases relating to polygamy. 132
Polygamy is made punishable with three years of imprisonment.133

e. Remission

There are also provisions of remission in law. According to it, any person
who is absent during trial if he is found guilty by the court he is entitled to
get 20% of remission of punishment if he appears before the court
voluntarily within 60 days of adjudication.134Similarly, any prisoner who
behaves with discipline in the prison is entitled to get 50% remission of the
prison term imposed upon him.135

f. Immunity from punishment

There are also provisions regarding to immunity from punishment in law.

A child below 10 years is held immune from all sorts of criminal liability.
If he is in between 10 and 14 and if he has committed crime punishable
only fine, he is admonished and released. Insane person is immune from
criminal liability if he has committed the offence during the period of
insanity. If he is made to work by some body, the order giver is liable for

129 Sec. 38
130 Court Management sec. 118
131 Sec. 11
132 24 sec. 10
133 ibid
134 Sec. 41''ka''
135 Jail Act 2020
 the offence.136Likewise, any offender who dies before or pending the trial
or before expiry of the punishment he is held immune from criminal
liability. The case is dropped at the very stage.137

g. Residue provision of punishment

There is also residue provision in law. The law stipulates that if any act is
made punishable by law but it has not provided any punishment, the court
may impose up to 5000 Rs fine on such offences.138

h. Section 188 of Abamas mitigating the punishment

Section 188 has empowered the judges to use discretion power widely. The
law stipulates that in a case attracting life imprisonment or life
imprisonment with forfeiture of property, even though the evidences lead
to the conviction of the accused, if the presiding judge feels that the
circumstances of case leading to the commission of the crime were such
that awarding the normal punishment prescribed by the law would seem to
be more stringent, he was empowered to recommend for a lesser
punishment giving reasons for his opinions. If the superior court also
agreed with his reasoning the lesser punishment would become effective
instead of normal punishment as prescribed by law.

i. Malicious prosecution

If anybody prosecutes other on criminal charge without having any base of

evidenced or on fabrication of evidence, he is liable up to five years of
imprisonment. The half of such imprisonment term is converted in to
money and given to the victim as compensation.139

j. Compensation to the victim

136 Dandasajayeko sec. 1

137 Dandasajayeko sec. 3, Court Management chap. sec. 176
138 Dandasajayekosec. 12
139 Sec. 18, 19
Nepal has not separate branch of law dealing with the tort. Crime has been divided in to two
categories such as cases in which state is plaintiff and cases in which the individual is
plaintiff. Cases in which individuals are plaintiffs are subject matter of tort. However, we
have to rely on the existing provision of law in matters of compensating the victim, whatever
the law may have been defective or inadequate. The existing provision of compensating the
victim may be categorized as follows.

i. In assault and battery the victim is entitled to treatment expenses

(ghakharchha) from the offender which is not only inadequate but
also unreasonable in many instances.

ii. In almost all offenses related to property the victim is entitled to

compensation (bigo) from the offender. In such cases he has to show
the property of the offender to be auctioned by the government in his
favor. If he fails to do it he has no chances of compensation. The
method of disposing of such property is known as ''jayejat'' which is
different from forfeiture. In jayejat property necessary for prime
need of life and grains sustainable for 6 months of livelihood, are left
out in favor of offender and the rest is disposed of to compensate the
victim. The procedure is elaborate and lengthy.140If the victim is not
compensated by such process he may apply to imprison the offender
for a period not exceeding two years by providing expenses of
fooding provision by himself. This provision is not only odd but also
contradictory with ICCPR, which prohibits imprisonment of civil
liability. There are very few instances which has invoked this
provision.141

iii. In rape offences the victim is entitled to get compensation as stated

by the court.

iv. In child marriage the persons involved are liable to imprisonment

and fine and the fine amount is given to the child girl as

140 Sec. 26
141 Sec. 10, Theft and Arson
 compensation. What is noteworthy is that child marriage is only
voidable in our system.

v. Any person who is first offender who has committed theft without
use of force or who has cheated the owner, may be captured by the
owner and made execute a bond to realize his property. If it is done
to the offender is immune from criminal liability. He may be
subjected to civil proceedings at the option of the victim of the
crime.142 This provision is worthy of criticism and is not in the
interest of law justice.

vi. In false imprisonment the victim is entitled to 1/3 or 1/2 fine amount
paid by the offender. The amount is so trifle that no victim of crime
is attracted with it. Similar is the situation in forgery offences as well.

vii. Negligent: Almost all of the negligence cases are punishable by

imprisonment and fine (homicide143, assault and battery144, medical
treatment145 and motoring law146). Even advertent act is made
punishable by fine in offences related to person which is contrary to
justice. This sort of over emphasis on punishment by imprisonment
has led the community to retaliatory type of remedy which is in
essence wrongful not acceptable to civilized society.

k. New introduction of community service and open prison:

The jail Act 2019 has newly introduced two more provisions as an
alternative to prison sentence in 2061 BS.

Open prison: A prison system nominal control mechanism is termed as

open prison system. Here the offender work within the establishment or
visit outside for work and stay in the prison by night. They earn their

142 Theft Chap. sec.11

143 Homicide Chap. sec. 5 & 6
144 Hurt &Battery Chap.
145 BeritSangaThundakoMahal
146 SawariTathaByabasthaAin2o49 sec. 161(3)
 livelihood by their own earning. Believe worthy prisoners can be kept in
such prison. It can be expanded as per the need. It is less expensive and
productive in character. Recently Nepal has introduced open prison
concept by amending jail Act 2019. Under it those prisoners who have
crossed one third (1/3) of prison sentence and who have been sentenced for
more the 3 years of imprisonment may apply to be transferred to open
prison. They should earn their own livelihood.147

Community service: Nepalese law has introduced community service

scheme by amending Jail Act 2019. As per the law the court may send the
offender, sentenced up to 3 years of imprisonment, in to community
service. The authority may also send to community service with the
permission of the court.148 But the law has stated that the prisoners
working under it are supposed to work free of cost. This is a conducible
part of our law. It could better in providing remuneration of their work and
allowing them to meet food expenses on their own in lieu of maintaining
them in government subsidy

The law states that the two provisions are not applicable who have
committed following offenses.

i. Trafficking of human being

ii Rape
iii. Absconding or assisting to abscond to a prison
iv. Smuggling
v. Narcotic drug offense
vi Bribery and corruption
vii. Espionage
viii. Wild life conservation related offense
ix. Offense relating to Antique and Archaeological protection

147 Jail Act 2019 sec. 2(kha) 10(kha)

148 sec 10(ka)
 CHAPTER V
LEGAL PROVISIONS ON RAPE IN NEPAL

5.1 Historical Development of Rape laws in Nepal

1. Before the codification of National Code (MulukiAin) 1910 B.S.

i. Kirat Period

Mundhum, the religious text of Kirat was the basic text for the guidance of social matters in
Kirat era. Offence of adultery was totally restricted and rape was considered against the
husband of victim, compensation, penalty for the offence of rape often payable to husband or
father of victim and there was a provision to get divorce by SinkoPangro.149

ii. Lichhavi Period

This period was basically guided by Hindu philosophy and ideology including
Yagyabalkuasmriti and Naradsmriti.150 Sexual offences was taken as one of the sinful crime
along with thiefing, dacoity, homicide and treason and was also classified among the 5 Most
Heinous crime or PanchaAparadh or PanchaKhat.151 Ratio and degree of punishment was
based on caste as well like if a woman did sexual intercourse with a man of lower caste than
her, then she would be punished by cutting her ear. Provision of death penalty was also given
if a man had sexual intercourse with an unmarried woman without her consent as well with a
woman if upper caste than him.

iii. Malla Period

Basically religious texts and writings of Manu, Narad, Yagyabalkya played a vital role in
legal system before the codification of Manabnyanasastra. Manabnyayasastra, which is the
first codified law of Nepal enumerated some provisions on rape. If Brahnmin had raped
lower caste then he had to pay 120 Tuis for fine and if Chhetri had raped Brahmin’s wife his
penis would be cut and had to pay 30 of golden money. If he had raped widowed Brahmin

149 Rewati Raman Khanal ,Nepal koKanooniIthihaskoRooprekhera, Kathmandu, 2059, p. 26.

150 Sudhanath Pant, Nepal koKanuniByawastharaPrajatantrakoBikashkoDarpan, Jurist & Company Pvt.
Ltd., Kathmandu, 2063, p. 5.
151 Ibid, p. 4.
then only the penis was cut. If a Vaisha had raped Brahmin’s wife, his penis was cut down
and had to pay 120 of golden money.152

iv. Shah Period

The judicial system of Shah regime was also guided by writings of Yagyabalkya, Narad,
Manu, Gautama and Brihaspati.153 The laws were derived from such scattered texts. Ram
Shah, king of Gorkha promulgated ‘26 Thitis’ which had immense value in justice system 154
and made the legal system more systematic but no specific provisions were mentioned in the
thitis about the crime of rape.

2. National Code (MulukiAin) 1910 B.S.

Promulgated by the then Rana Prime Minister Jung Bahadur, MulukiAin, 1910 B.S. was an
attempt for a systematic codified law that was to be applied throughout the nation. The
codification of the consolidated and unified legal code may be said to be the biggest
contribution in the development of Nepalese legal history, because in addition to unifying the
scattered prevailing laws in a single code, it introduced the concept of rule of law and
recognized through document. It had 163 chapters among them 87 were related to criminal
offences. It had 2 chapters on rape. It was amended time to time and the amendment of 1992
B.S. had played a significant role in the development of rape laws.

It included 79 chapters and among them 35 were related to criminal law. Among 35 chapters,
12 were related to sexual offences which included rape, incest, sexual assault, adultery,
bestiality and sexual relationship between lower and higher caste. Consensual and non
consensual sexual intercourse with a woman who is married, unmarried and widowed under
11 years and the non consensual sexual intercourse with above 11 years was defined as rape.
Consensual woman who is more than 11 was not considered rape. 155 The punishment was
based on caste system and degrading of caste was the punishment when the perpetrator was
higher caste with confiscation of property.156 It had imposed liability upon the secondary
party and on attempt to rape. The consensual sexual relationship between a boy and girl less

152 Rajit Bhakta Pradhanaga and Megha Raj Pokhrel, A General Introduction to Criminal Law, 1st edn,
RatnaPustakBhandar, Kathmandu, 2053, p. 92.
153 Ibid, p. 19.
154 Ibid.
155 National Code,1854 ( MulukiAin, 1910, 1992 Ammendment) no. 1.
156 Ibid, no. 3.
than 11 years of age was punishment with reprimand and they were regarded as virgin. 157
Similarly, if the perpetrator was of higher caste and he raped untouchable caste women, he
was degraded as untouchable.158 For the first time , it granted women to defend her chastity.
While defending, she could kill her perpetrator within two hour of committing rape. If she
killed by crossing the time limit, she was punished either by 12 years of imprisonment or fine
of Rs. 1000159. It was also stated that the perpetrator had no right over the victim. 160 It also
stated that if the perpetrator touched the vagina of victim less than 11 years by his penis with
the intention of having sex he will be punished half of the punishment of rape as it considered
attempt to rape.161 There was no limitation regarding rape and the maximum punishment of
rape was 12 years.162

3. National Code 1963 (MulukiAin) 2020

Promulgated by King Mahendra, it is the corner stone to the Nepalese legal system till today.
It abolished the punishment system on the basis of caste, sex, religion , creed and has given
the emphasis on the principles of equality before law. It has 5 parts with 45 chapters. Among
them 19 chapters deal with criminal law and among them 4 chapters deal with sexual
offences. There is a specific chapter on rape and a provision in the chapter On
Decency/Etiquette (Adal) in relation to rape. Particularly the 11 th Amendment of the Code
and Amending Some Nepal Acts to Maintain on Gender Equality, 2063(2006) has proved to
be the most significant step in making rape laws more victim oriented.

5.2 Features of Present Laws on Rape

1. Broader Definition of rape:

Nepalese law163 defines rape by prescribing when a person may be guilty on rape. As per the
law, a person is liable for the offence of rape if he procures sexual intercourse with or without
the consent of women under 16 and without the consent of women above 16.

Explanation:

157 Ibid, no. 9.

158 Ibid, no. 10.
159 Ibid, no. 11.
160 Ibid, no .12.
161 Ibid, no. 16.
162 Ibid, no. 19.
163 National Code, 1963 (MulukiAin, 2020) Chapter ‘On Rape’ no. 1.
 a. Consent obtained by threat, fear, undue influence, fraud, abducting may not be termed
as consent.

b. Consent obtained when one is not in consciousness may not be termed as consent.

c. Even if there is slight penetration, then also it may be termed as rape.

d. Inserting penis into Anus or mouth , or even inserting any object except penis into
vagina, amounts to rape.

The provision has highlighted the importance of consent and has also prescribed the
minimum age to give such consent. Moreover it has also mentioned circumstances under
which a consent so obtained may be void. Similarly, by terming slight penetration as rape, it
has excluded the concept of presence of spermatozoa as the main factor in commission of
rape.

MulukiAin Rape chapter deals with the offense of rape. According to section 1, sex
connection with a woman with or without consent if she is under 16, or without consent if she
is above 16 amounts to the offense of rape.
Actusreus: Having sex connection with the woman is actusreus part of this offense. Slight
penetration of penis into vagina is sufficient to hold the person liable to the offense. If the age
of woman is under 16 her consent to the sex does not differentiate the liability. The defendant
is liable because it is strict liability. Non consent of the woman is necessary when the woman
is above 16. Semen ejaculation is not necessary where the woman is of tender age, complete
penetration in to vagina is not possible. In TriratnaChitrakar v NG164, the victim child was 11
year old working as a servant at defendant’s house. According to her report, she was
frequently abused with sex ocular and indecent assault. Medical examination of her body
confirmed these facts. The court held the defendant liable to rape pedophile and indecent
assault. He was given maximum limit of imprisonment, that is, 10 years’ imprisonment and
half property to be apportioned in favor of the victim. In TekBdr v NG165, the victim girl was
eight years of old. Semen discharge was outside vagina. The court held him guilty of rape
reversing the decision of Appellate court which had adjudicated the case as attempted rape.
The accused was given 15 years’ imprisonment along with half portion of his property to go
in favor of the victim as compensation.

164NE.KA.PA 2066, p. 784

165NE.KA.PA 2066, p. 743, see also NG v Rajendra Singh NE.KA.PA 2068 p.658
Mensrea: Knowledge that the woman is not consenting is the mensrea part of this offense.
The perpetrator is liable even if he is reckless as to the consent of the woman. So sex with
woman who is asleep or giving her such impression that he is her husband amounts to the
offense of rape. Sex connection with a woman who is under one’s influence also amounts to
offense of rape. So, undue influence is also one of the elements considerable under it. A
prisoner cannot make active resistant against a jailor, likewise, a patient against the doctor, a
shelter seeker against shelter giver, a servant against the master and employee against
employer. So active physical resistant cannot be the point of consideration in all cases as to
whether the woman is consenting or not. Everything should be viewed on the merit of the
case.

2. Concept of Marital rape:

Previously, marital rape was an alien concept in Nepal. However, after the 11 th amendment,
the Nepalese legal provision has enumerated the concept and prescribes 3 to 6 months of
imprisonment.166 Hence, now wife’s body is no longer the prerogative of husband and she has
exclusive right to deny sex with him.

3. Concept of Custodial Rape:

A person may misuse his official capacity and may commit rape to someone who might be
incapable to defend oneself at that situation. Hence, the Nepalese legal provision has
considered the situation and have criminalized the offence. As per the law, any government
employee who commits sexual intercourse or arranges for sexual intercourse by other person
with a woman who is imprisoned or detained, or any medical practitioner or health worker
who commits sexual intercourse with a woman who has come to avail medical service at time
of rendering medical service or in the place of rendering such service, or any guardian or
caretaker who commits sexual intercourse with a women who is under his guardianship or
care, or any official or employee, in any organization where a woman suffering from mental
or physical illness is staying for the purpose of treatment or rehabilitation, who commits
sexual intercourse with such a woman shall be liable to the punishment of imprisonment for a
term ranging from One year to Three years. If such an act is an offence under this Act or any
other prevailing law, the punishment imposed there under shall be added to such
punishment.167

166 Ibid, no. 3.

167 Ibid, Chapter on ‘On Decency/Etiquette (Adal) no. 5.
4. Punishment by categorizing the Age of victim:

The age of victim is the prime factor while determining the punishment in Nepal as the
punishment is prescribed as per the age of victim. The lower the age, the higher is the
punishment.

a. If the victim is below 10, the perpetrator is liable for 10 to 15 years of imprisonment.

b. If the victim is between 10 to14, the perpetrator is liable for 8 to 12 years of

imprisonment.

c. If the victim is between 14 to 16, the perpetrator is liable for 6 to 10 years of

imprisonment.

d. If the victim is between 16 to 20, the perpetrator is liable for 5 to 8 years of

imprisonment.

e. If the victim is 20 or above the perpetrator is liable for 5 to 7 years of

imprisonment.168

5. Additional punishment on gang rape and rape of incapacitate victim

The hapless or pregnant woman are supposed to be cared and nurtured more hence, rape
committed on hapless and pregnant women is supplemented by additional punishment in
Nepal. Similarly, gang rape also amounts to additional punishment.

If a person is involved in gang rape or if a person rapes pregnant, helpless woman then he is
liable to the same extent as the age factor of victim prescribes, additionally with 5 years of
imprisonment.169

6. Additional Punishment on Rape Done by HIV infected person

An HIV infected person holds threat to transmit AIDS to the victim, hence if the infected
person upon having the knowledge of infection commits rape, he is liable for additional
punishment.

If a person [ HIV(+) ve] commits rape, then he is liable to the same extent as age factor of
victim prescribes, additionally with 1 year of imprisonment.170

168 National Code, 1963 (MulukiAin, 2020) Chapter ‘On Rape’ no. 3.
169 Ibid, no. 3(a).
170 Ibid, no. 3(b).
7. Criminalized Unnatural Sexual Activity with Minor:

Nepalese law has criminalized unnatural sexual activity with minor as rape, making both
minor boy and girl within the scope of rape victim. Moreover, additional punishment has
been prescribed in such matter.

If a person commits unnatural sexual activity with minor, he is liable to the same extent as the
age factor of victim prescribes, additionally with 1 year of imprisonment. And also the minor
is to be compensated evaluating the age and impact of the act.171

8. Respect and Protection of Privacy of Rape victims

Realizing the fact that rape victim has to bear a social stigma, Nepalese law has tried to
respect and protect the privacy of such rape victims The hearing must take place in the
camera court and only concerned parties i.e. defense lawyer, public prosecutors, accused,
victim, guardian of victim, police officials and court officials permitted by court are only
allowed to be present in hearing. 172 Also the Regulations of all three tiers of court also
mention camera court for the protection to rape victims and other sensitive cases. 173 It has
further clarified that during the trial in a courtroom only defense lawyer, public prosecutors,
experts, accused, victim, guardian of victim, police officials and court officials are permitted
to enter174 and also the documents relating to the case shall not be provided to any other
persons other than the parties of the case. 175 Further it has also put obligations to the press as
well in publicizing fact of such cases heard in camera court without permission of the
court.176

9. Victim friendly Approach During Investigation

Since victim is the most important pillar in rape cases, her participation is a must to bring the
perpetrator within the purview of law. Lack of any witness leaves her the sole person who has
factual knowledge of the incident. Thus, providing her a friendly and comfortable
environment during investigation is an obligation of the state. Thus, the statement of victim

171 Ibid, no. 9(1).

172 Ibid, no 10b.
173 District court Regulations, 2052 Rule 46(b)(1), Appellate Court Regulations, 2048 Rule 60 (a)(1), Supreme
Court Regulations, 2049 Rule 67(a)(1).
174 Ibid, Rule 46(b)(2), ibid, 2048 Rule 60 (2)(1), ibid, Rule 67(a)(2).
175 Ibid, Rule 46(b)(3), Ibid, 2048 Rule 60 (a)(3), Ibid, 2049 Rule 67(a)(3).
176 Ibid, 2052 Rule 46(b)(4), Ibid, 2048 Rule 60 (a)(4), Ibid, 2049 Rule 67(a)(4).
must be conducted where possible by a policewoman, if not than by policeman in presence of
woman social worker.177

10. Compensation to Victim

Although a compensation would never bring the victim back what she had to go through but
it is an effort through which she can help herself re-establish in the society. The victim is
entitled to receive compensation from the perpetrator as per the physical and mental loss she
had to bear. The court should look into the gravity of the offence while determining such
compensation. Even if she is dead, her minor children, if any, are entitled to get
compensation.178

If the court, in making judgment, convicts the accused of rape on a case filed pursuant to this
Chapter, the court shall mention in its decision about the compensation to be awarded to the
victim from the offender and shall also cause the same to be provided to the concerned
woman. For the purpose of realizing of the compensation, the court shall attach the property,
including the share on joint property, of the accused immediately after the filing of the case.179

11. Right to Defense of Chastity

Chastity of a woman is the most treasure asset and it should be respected by all.
Acknowledging the fact that the rape victim inorder to be free from the perpetrator may take
necessary defensive steps or after the incident due to psychological trauma or anger may take
revenge, Nepalese legal provision mentions that if the victim strikes a weapon, stick (latho)
or stone at the place of commission of rape immediately or within one hour upon pursing the
offender from such place and the offender dies over there, such an act shall not be deemed to
be an offence. However, such act of revenge should be committed within an hour, else she
shall be liable to a fine of up to Five Thousand Rupees or imprisonment for a term not
exceeding Ten years.180

177 National Code, 1963 (MulukiAin, 2020), Chapter ‘On Rape’ no 10a.
178 Ibid, no. 10.
179 Ibid, no. 10(c).
180 Ibid , no. 8.
12. Right to Abort

There is chances that a victim may be pregnant because of the incident hence, a rape victim
has right to abort till 18 weeks if she conceives during the incidence. 181In normal
circumstances a woman has right to abort till 12 weeks.182

13. Limitation :

The limitation shall be 6 months from the date of cause of action.

5.3 New provisions on Rape :

5.3.1 Muluki Aparadh Samhita, 2074 B.S. [Muluki Penal (Code) Act 2074]

The following are the new legal provisions that are going to applied.

A. According to Chapter 18, Sec. 219 (2) of Muluki Aparadh Samhita 2074, if a person
enters into sexual intercourse with a women without her consent or enters into sexual
intercourse with a girl below the age of 18 years with or without her consent will be
deemed to be an offence of rape.
B.According to Chapter 18, Sec. 219 of sub sec. 3(a) of Muluki Aparadh Samhita
2074,Imprisonment for a term ranging from 16 years to 20 years if the victim is the minor
who is below the the 10 years of age.
C. According to Sec. 219 of sub sec. 3(b) of Muluki Aparadh Samhita 2074, Imprisonment
for a term ranging from 14 years to 16 years if the victim is the minor who is 10 to 14
years of age.
D. According to Sec. 219 of sub sec. 3(c) of Muluki Aparadh Samhita 2074, Imprisonment
for a term ranging from 12 years to 14 years, if the victim is the minor who is 14 to 16
years of age.
E.According to Sec. 219 of sub sec. 3(d) of Muluki Aparadh Samhita 2074, Imprisonment
for a term ranging from 10 years to 12 years, if the victim is 16 to 18 years of age.
F. According to Sec. 219 of sub sec. 3(e) of Muluki Aparadh Samhita 2074, Imprisonment
for a term ranging from 7 years to 10 years,if the victim is of 18 years or above. Sec. 219

181 MulukiAin, 2020, Chapter ‘On Homicide’, Sec. 28(b)(2).

182 Ibid, Sec 28(b)(1).
 of sub sec. 3(e) of Muluki Aparadh Samhita 2074 mentions that the person who is
involved in marital rape shall be punished up to 5 years.
G. Sec. 229 of Muluki Aparadh Samhita 2074 says if a suit on the matter of rape is not
filed within 1 years from time of date of cause of action, the suit shall not be
entertainedand in other cause of action the suit shall not be entertained within 3 months on
the time of date of cause.
H. Section 228 of Muluki Aparadh Samhita 2074 mentions about the compensation of
victim , where reasonable compensation shall be paid by the defendant.

5.3.2 Criminal offence ( Sentencing decision and Execution) Act 2074

The follwing are the provisions in this Act;
a. Section 8 mentions that Sentencing i.e. punishment to be determined only after
accused being convicted.

b. Section 9 mentions that the sentencing hearing should be done separately.

However, if the punishment to be borne by the accused is below 3 years or
Rs.30,000 fine, the separate hearing is not required.

c. Section 10 mentions that Except the closed hearing cases like rape, other cases
should be heard in open hearing.

d. Section 11 mentions that only the higher punishment should be executed if

there is more than one offence being committed in same event or incident.
However, while doing the sentencing, separate sentencing should be done in
separate offence.

e. Section 12 mentions Before the sentencing hearing , court can order to prepare
the report regarding the accused.Firstly , probation officer or parole officer are
supposed to prepare that report mentioning the follwing details;

- personal, social , cultural background of accused,

- circumstances while doing the offece,

-activities, behavior of accused before the act,

-age of the accused,

 -other details if necessary.

However, lawyer can prepare the report if the officers are not being appointed.

f. Section 24 mentions that punishment of the offence can be suspended.If the

accused has commited for the first time where the punishment of the offence is
below one year, following things as the accused's age, behavior, circumstances
while doing the offence, process applied while doing the offence has to be
analyzed and if the court feels that it is not appropriate to keep in custody , the
punishment can be suspended for one year. However, in the offence of rape
(except the juvenile) other accused's punishment will not be suspended.

5.4 Supreme Court Cases:

The following are the decisions of Supreme Court of Nepal.

1. Sukabahadur Kumal vs. HMG183

On the day in question at day time, victim (aged 4) comes to the school where the accused is
cleaning the class room. He seduces the victim by giving white chalk. He keeps the victim on
the chair and commits rape. He is prosecuted on the charge of rape. The district court
convicts and sentences 12 years imprisonment. The Supreme Court confirms the same
decision of lower courts and further says that touching vagina of the victim and making
friction around the vaginal part by the penis to fulfill sexual desire is enough to constitute
crime of rape. Sexual assault inflicted upon an innocent minor girl with intention to do falls
within the definition of sexual offence.

2. Gokarna Khanal vs. HMG184

On the day in question, the accused induces the victim (aged 12 and disable) for sexual
intercourse by giving Rs 200. The takes the victim into the bus and commits rape. He is
prosecuted on the charge of rape. He confesses the guilt before the police and denies before
the court. Kathmandu District Court convicts and sentences 7 years of imprisonment along
with half of the property of offender as compensation. Appellate Court upholds the decision
but decides to provide additional 5 years imprisonment according to 3Ka. of rape chapter.
183SukabahadurKumal vs. HMG,NE.KA.PA 2065, 621.
184Gokarna Khanal vs. HMG, NE.KA.PA 2065, 1396.
Supreme Court upholds the district court’s decision and sentenced only 7 years imprisonment
on the ground that the abnormal condition of the victim has not proved.

3. Babu Poudel Kshetri vs. HMG185

On the day in question, when the victim (aged 5 years) comes out for toilet with Mina
Rasaili, the accused approaches there and grabs the victim but Mina runs away. He commits
the rape and runs away. The victim is found in desperate condition with bleeding from
vagina. He is prosecuted on the charge of rape. He confesses the guilt before the police and
denies that he had only penetrated his finger into vagina of victim. The district court convicts
and sentences 11 years imprisonment along with half property of the offender as
compensation. The Supreme Court confirms the same decision.

4. HMG vs. Tek bahadur Kshetri186

On the day in question, victim (aged 8 years) and her fried are collecting the fodders in lonely
place. The accused approaches there and seduces the victim by giving Rs 20. Her friend runs
away from there and relates the incident to the guardian. The accused takes the victim to the
Thati(temporary cowshed) and commits rape. He is prosecuted on the charge of rape. He
confesses the guilt before the police and court and further says that he did not penetrate into
the vagina. The district court and Appellate court convicts him of the charge of attempted
rape. But the Supreme Court convicts on rape and sentences 15 years. The court further says
that not penetration penis into vagina only may not be ground to establish rape crime. Others
evidence has proved the rape crime. Supreme Court further decided to provide half partition
of property to the victim as compensation from the offender.

5. Triratna Chitrakar vs. HMG187

In this case, TriratnaChitrakar is prosecuted on the charge of rape against 11 years old 'K
Maya'. On the day in question, an unknown minor girl of 11 years old is found in weeping
condition on the road. As per victim, she told that she had been suffering from unwanted and
forceful sexual intercourse by the defendant named TriratnaChitrakar for 3 years. The victim
Kamaya (changed name) described that she was working in defendant's house as house

185Babu Poudel Kshetri vs. HMG, NE.KA.PA 2066, 429.

186HMG vs. Tekbahadur Kshetri, NE.KA.PA 2066, 743.
187Triratna Chitrakar vs. HMG, NE.KA.PA 2066, 784.
servant, the defendant time and again had had forceful sexual intercourse with her, and he
used to bite her breast and also ejaculated semen and put it with her hand.
The district Court convicts and sentences 10 years imprisonment with half partition of
defendant's property as compensation. The Appeal Court reduced the quantum of punishment
to 7 years. The Supreme Court upheld the decision of the Appeal Court. The Supreme Court
further ruled that the District Court has not been able to make distinction between Section 10
of the Chapter of Rape and provisions covered by the Chapter of Partition. The Section 10 of
the Chapter of Rape has been enacted to provide property as a form of compensation to the
victim considering familial, humanitarian, psychological, physical, characteristic,
professional, intellectual, social, economical including other long term impact it had upon the
victim's life. Therefore, the provision of Section 46 of the Chapter of 'Of Punishment' is not
applicable in this case. Victim's application to receive compensation is not required
compulsorily. The Court itself should provide half partition of property of the defendant to
the victim by giving information of the decision to the victim in execution process.
The Supreme Court further stated that in-camera hearing procedures have not been
implemented up to now in such sensitive case. Therefore, on ward, the whole judicial
proceedings should be conducted in camera. While conducting in-camera hearing process,
parties of the case, defense lawyer, witness, victim's friend and her relatives, prosecutor, and
court officials should only be permitted to attain in the proceedings. The Register of the
Supreme Court is made accountable to disseminate this directive to all District Court.
6. HMG vs. Narayan Bahadur Raut188

On the day in question, according to victim, the victim (aged 14 years) and her sister are
cutting grass at maize field. The accused approaches to the victim in intoxicated condition.
The accused grabs the victim’s body and commits rape and threats that he would kill if she
told to the guardians about the incident. He is prosecuted on the charge of rape. He confesses
the guilt before the police but denies before the court. The district court convicts and
sentences 7 years imprisonment with half partition of the property of the offender. The same
decision is confirmed by the Appellate court and the Supreme Court.

7. HMG vs. Moila alias Muwarak Mir Musalman189

188HMG vs. NarayanbahadurRaut, NE.KA.PA 2066, 1038.

189HMG vs. Moila alias Muwarak Mir Musalman, NE.KA.PA 2067, 1588.
On the day in question, as said by the victim (aged 7 years), when the victim is alone in the
house, the accused approaches there. He gives sweets and takes her into Rambrikshya’s house
and commits rape. He is prosecuted on the charge of rape. He confesses the guilt before the
court and denies before the court. The district court convicts on the charge of attempted rape
and sentences 5 years imprisonment. The Supreme Court reverses the decision of district
court and appellate court and convicts on rape and sentences 10 years imprisonment on the
strength that penis penetration into the vagina and semen ejaculation is not necessary to
establish rape crime. This crime is not attempt, he has committed the crime. And Supreme
Court also ordered to the district court to provide compensation to rape victim according to
the 10 number of rape chapter.

8. HMG vs. Saroj Hingmang and others190

On the day in question as related by the victim, at night time, victim (aged 17 years) and her
parents were sleeping in the house. SarojHingmang and other persons come there and they
says they are police. They enter the room and tie the victim’s parents with rope and take the
victim outside of the house and commit rape. They are prosecuted on the charge of rape. They
confess the guilt before the police but deny before the court. The district court convicts only
two people and other get acquittal. The Supreme Court convicts the all offender and
sentences 10 years consecutively by adding the punishment of gang rape.

9. HMG vs. Pawankumar Yadav and others 191

HarichandraYadav (aged 14) is prosecuted on the charge of rape and Pawankumar (aged 16)
as an abettor. On the of day in question , Victim ‘Kha’ kumari (aged 12) is sitting in her
house. Pawan Kumar comes at her house and takes her in Harishchandra’s house.
Harishchandra commits rape by giving money. Harishchandra confesses his guilt before
police but denies in the court. Pawan Kumar denies the charge. Morang District Court
convicts Harishchandra on rape crime and sentences 6 months imprisonment according to the
Children Act. Pawan Kumar is convicted on the charge of abettor of rape crime and gets 6
months imprisonment according to the Children Act. But Court does not provide
compensation to the victim on the ground that the offender is child. Appellate Court

190HMG vs. SarojHingmang and others, NE.KA.PA 2067, 1610.

191HMG vs. PawankumarYadav and others, NE.KA.PA 2067, 1802.
Biratnagar upholds this decision. But Supreme Court Full Bench decides to confiscate half
property of the Harichandra and provide to rape victim Khakumari. Full Bench of Supreme
Court decided that the accused that is under age of 16 could not get concession from the
compensation liability.

10. HMG vs. Narayan Paudel Kshetri et al.192

Rabin alias Narayan PaudelKshetri is charged with rape against 18 years SamayaKumari.
Prakash Basnet as abettor. On the day in question at 9 o’clock night time, as said by the
victim, victim Samayakumari, KrishnakumariGhimire, Prakash Basnet and Narayan Paudel
go to Prakash’s house to bring cassettes for a function. When Prakash enters into his house to
bring cassette, Narayan Paudel catches Samayakumari’s arm and takes her in the field
forcefully. Krishmakumari tries to help her but Narayan threats them. She cries to help with
Prakash but he does not any help and Narayan commits rape with Samayakumari. Accused
deny before the police and also in the court. Sindhuli District Court acquits them on the
ground that there is no any evidence to prove rape crime and after the incidence the accused
and victim got marriage and living together. Appellate Court upholds this decision. Supreme
Court convicts the offender Narayan in rape charge and sentences 5 years imprisonment with
half partition of property to the victim as compensation. Court acquits another offender
Prakash from the charge of abettor.

11. HMG vs. Rajendra Singh Shikh193

Rajendrasingh is prosecuted on charge of rape against 14 years mental disorder girl

KhaKumari(fake name). The relationship between victim and accused is uncle and daughter.
On the day in question guardian of the victim were outside from home. The accused calls her
on his room and commit rape her. He denies before the police and as well as before the court.
Banke District Court convicts on the charge of attempt to rape and sentences 4 years
imprisonment. Appellate Court upholds this decision. Supreme Court convicts the accused on
rape and sentences him 8 years imprisonment with half partition of property to the victim
from the offender.
12. Ramhari Lamichhane vs. HMG194

192HMG vs. Narayan PaudelKshetri et al.NE.KA.PA 2068, 316.

193HMG vs. RajendrasinghShikh, NE.KA.PA 2068, 658.
194RamhariLamichhane vs. HMG, NE.KA.PA 2068, 1657.
On the day in question in the evening time, Ramhari takes the victim (aged 8 years to the
jungle. As per the victim, he commits rape by threatening her in the jungle. He is prosecuted
on the charge of rape. He confesses the guilt before the police and denies before the court.
The district court convicts and sentences 12 years imprisonment along with Rs 1,50, 000 as
compensation. The Appeallate court and the Supreme Court confirm the same decision of
district court.

13. Nepal Government Vs. Shankar Bishwakarma195

On the day in question, victim (aged 14 years) goes to watch television in neighbor’s house.
She returns home at the time of 9 o’clock night. Shankar catcher on the way to home and
commits rape by showing the knife. He is prosecuted on the charge of rape. The accused
confesses the guilt before the police and denies before the court that he had established sexual
relationship with that girl with consent. The district court convicts him and sentences 7 years
imprisonment with compensation to the victim of half partition of property from the offender.
Appellate Court Dhankuta convicts him only on the crime of attempt to rape and sentences 3
years imprisonment. Supreme Court quashed this decision and convicted him on rape crime
and upheld the district court’s decision i.e. 7 years imprisonment.
14. Molhuysen Hendric Otto vs. Nepal Government196

MolhuysenHendric Otto is charged with committing of unnatural sex with children of

‘Hamro Child Care House Galkopakha Kathmandu’. Molhuysen is director of this Child
Care House. Children reports in police station stating that they have been living in this care
centre. According to the children the accused used to call them in his room and making naked
them he penetrated his penis in their mouth and anus time and again. He committed this type
of unnatural sex with children till the date of 2063/10/23 B.S. ReshamrajShimkhada is
charged with abettor of the crime. Mulhuysen and Reshamraj deny the guilt before the police
and court. Kathmandu District Court convicts to Mulhuysen and sentenced 8 years
imprisonment according to the number 3(2) and 1 year additional imprisonment according to
the 9 ‘Ka’ of the rape chapter. Further District Court decided to provide Rs. 25,000/-
compensation each victim. Appellate Court and Supreme Court uphold this decision of
district court.

195Nepal Government Vs. Shankar Bishwakarma, NE.KA.PA 2069, 940.

196MolhuysenHendric Otto vs. Nepal Government, NE.KA.PA 2069, 1096.
 15. Nepal Government vs. Chandra Prasad Tiwari alias Chandra Bd. Tiwari197

On the day in question as told by the victim (aged 13 years), accused’s daughter and victim
were studying together in accused’s house at night time. The victim goes to out to pass urine.
While she was passing urine in the roadside the accused approaches there slowly and catches
her and put clothe on her mouth. He takes her into the kitchen room forcefully and commits
rape. He prosecuted on the charge of rape. The accused absconds from the incidence during
investigation period but appears at the district court and denies the guilt before the court. In
this crime the police informer and victim give hostile statement in the court. The district court
acquits the offender from the charge. Appellate Court upholds this decision. Supreme Court
convicts and sentences 8 years imprisonment on the ground that the accused has not proved
his innocent and the examination report and other evidence has proved the rape crime.
Further Supreme Court decided to provide Rs. 1,00,000/- as compensation to the victim from
offender.
16. Nepal Government vs. ChakranathKawar198

Chakranath is charged with committing rape crime against 14 years girl RadhikaSejuwalB.K.
On the day in question at night time as told by the victim, victim was sleeping in her house.
Offender came in her bed and opened her trouser and panty and started to rape with her. She
woke up and tried to escape from him but she could not manage to escape. The offender
admitted that he had gone on her bed that night but he did not commit rape crime with her. He
says in the court that he had gone that night on her home for alcohol drink but denied the
crime of rape he had returned his house at the time of 10 o’clock. Surkhet District Court
acquitted the offender on the ground of lack of evidence to prove his guilt. Appellate Court
Surkhet upholds the decision. Supreme Court convicted the offender and sentenced 6 years
imprisonment on the grounds that the statement of the offender before the police,
examination report of the victim, and statement of the victim and others. Supreme Court
further decided to provide Rs. 30,000/- to the victim as compensation from the offender.
17. Ramesh Lama Syangtan vs. Nepal Government199

Ramesh Lama Syangtan is charged with committing rape against three years child. On the
day in question at 3 o’clock of the day time, the offender was watching television in his
room. The three years child enters into his room. He calls her to come on his bed and
commits rape. When the victim cries, her mother comes there and the offender goes outside
197Nepal Government vs. Chandra Prasad Tiwari alias Chandra Bd. Tiwari, NE.KA.PA 2069, 1280.
198Nepal Government vs. ChakranathKawar, Supreme Court Bulletin, 2069 Mangsir - 2 , 6.
199Ramesh Lama Syangtan vs. Nepal Government, Supreme court Bulletin, 2069 poush -2, 19.
the room. The offender confesses his guilt before the police but denies in the court. The
district court convicts the offender and sentences 10 years imprisonment along with Rs.
30,000/- to the victim as compensation from the offender. Appellate Court Hetauda and
Supreme Court uphold the same decision of the district court.
18. DharmarajPoudel vs. Nepal Government200

DharmarajPoudel is charged with committing of rape against his own 14 years daughter
‘KhaKumariPoudel’(changed name). On the day in question the victim ‘KhaKumari’ was
sleeping in her house. Her father Dharmaraj and brother were sleeping in another bed of the
same room. At the time of 8.30 o’clock of the night her father came with her and opened her
trouser. The victim woke up and asked her father. The offender threats her and rapes. She tells
this event to her mother 3 days after. The accused confesses his guilt before the police but
denies in the court. The district court convicts the offender and sentences 12 years
imprisonment according to the 3(2) of the rape chapter on the ground of examination report
of the victim, statement of the victim and statement of the offender given before the police.
Similarly District Court sentenced him 10 years additional punishment according to the
number 1 of the incest chapter. Court further decided to provide Rs. 40,000/- as the
compensation to the victim from offender. Appellate Court Butawal and Supreme Court
uphold this decision.

19. Bishnu alias Nagendre Thakur vs. Nepal Government201

Bishnu alias Nagendre Thakur is charged with committing rape against 8 years child
‘KaKumari’. The victim’s family and the offender were living in separate room of the same
house. On the day in question at the 6 o’clock morning time, the victim was sweeping rooms.
When she goes to the offender’s room, he was sleeping. The offender calls her on the bed and
closes the doors. He openes her trouser and commits rapes her. When her mother returns from
the outside she tells this event. The offender confesses his guilt before the police but denies in
the court. The district court convicts the offender and sentences 12 years imprisonment along
with Rs. 10,000/- to the victim as compensation from offender. The Appellate Court and the
Supreme Court upheld confirm the same decision of the district court.
20. LalbahadurShahi vs. Nepal Government202

200DharmarajPoudel vs. Nepal Government, Supreme court Bulletin, 2069 Magh -1, 17.
201Bishnu alias Nagendre Thakur vs. Nepal Government, Supreme court Bulletin, 2069 Falgun -2, 23.
202LalbahadurShahi vs. Nepal Government, Supreme court Bulletin, 2069 Chaitra -2, 16.
LalBdrShahi is charged with committing of rape against 5 years girl. On the in question, the
victim and her small brother were playing in front of their house. The accused approaches
there and takes the victim into his own room and commits rape her. During the sexual
intercourse she cries and her mother comes there by listening her crying. The mother sees
desperate condition of her daughter. The offender says before the police that he took the
victim in his room with intent of rape but he did not commit the rape crime. Only he
attempted to rape with the girl. He gives his statement in the court that he partially penetrates
his penis into the victim’s vagina and did not ejaculate the semen. The district court convicts
him and sentences 12 years imprisonment along with Rs. 25,000/- to the victim as
compensation from offender. The same decision of district court is upheld by the Appellate
Court and the Supreme Court.
21. Nepal Government vs Ramesh alias BirBdrSharki203

On the day in question at the day time, when the victim (aged 11 years) was grazing the cattle
in nearby jungle, the accused approaches there in intoxicated condition. The accused at first
hits the victim on the head and commits rape. He is prosecuted on the charge of rape. He
confesses the guilt before the police and denies before the court. The district court convicts
and sentences 12 years imprisonment along with Rs 50, 000 as compensation. The Appellate
court and the Supreme Court confirm the same decision of the district court.
22. Nepal Government v Bikash alias LokBdrBishwa204

In this case the accused is charged with committing rape. He admits before the police that the
sexual intercourse takes with mutual consent. In the court he says that we had love before
one year and time and we used to do that sort of activity. In this case there is dispute in
relation to age of victim. The district court regarded victim as minor and convicted and
sentenced 6 years imprisonment along with Rs 25 000 as compensation. The Appellate court
reversed the decision of district court and acquitted of the charge of offense. The Supreme
Court upheld the same decision of Appellate court.

23. BadriKhatiwada Vs. Nepal Government ,205

Here the victim: SrijanaKarki, who is 11 years old. She is raped and hence the perpetrator
was prosecuted under chapter of rape .

203NE.KA.PA 2070 p. 1259

204NE.KA.PA 2070 p. 1345
205NE.KA.PA 2071 Vol. 6 p.879D.N. 9786
Supreme Court gave the Decision: 8 years imprisonment and 1 lakh compensation to the
victim.
24. Ram BahadurKarki Vs. Nepal Government206

In this case the victim is raped with indue influence and was under influence of alcohol intake
.The Decision was that the perpetrator was sentenced with 6 years imprisonment and half
property of offender to the victim as compensation.

25. Sabuddhin Miya Vs.Nepal Government.207

In this case the victims: 11 yrs, 12yrs, 15yrs, 13 yrs and 14 yrs, was raped and the
Supreme Court gave the Decision that the perpetrator was punished with 8 yrs
imprisonment and 10,000 compensation to each victim.

26. GovindaRaut Vs. Nepal Government,208

In this case the Victim was raped and the sperm seen on the victim’s clothes.
The Supreme Court gave the Decision that perpetrator be punished with 11 years imprisionment and
Rs.15,000 compensation.

27. Ram BahadurB.k Vs. Nepal Government , 209

In this case the Victim who is within the family member , is raped under incest and
prosecuted under chapter of incest rape.
The Supreme Court gave the decision: that perpetrator be punished with 8 years
imprisionment according to the no. 3 and 2 of rape chapter and 14 years according to the no.
3 chapter on incest rape.

28. Amar BahadurBogati Vs. Nepal Government , 210

Victim: 14 years old kailali (nha)

206NE.KA.PA 2071 Vol.7 page 1116 D.N. 9209

207NE.KA.PA 2072 Vol. 5 page 827 D.N. 9399
208 Supreme court Bulletine 2073 year 25 vol. 4,page 12
209Supreme court Bulletine2073,vol. 8,page 24
210 Supreme court Bulletine 2073 vol.12,page 34
Here the victim is raped and prosecuted under no. 1 and 3 of chapter On rape.

Decision: 6 years imprisionment and 25,000 compensation.

29. Dipeshlimbu as Jire Vs. Nepal Government, 211

In this case the victim, 13 years old ,is raped when she was going to bring the water from the
tap. Here it was seen wound in the vagina of victim by the medical test .
Decision of Supreme Court: 14 years imprisionment and 25,000 compensation.

30. Man Kumar Rai Vs. Nepal Government, 212

Here the Victim born on date 1993/09/17 A.D, where the wound was seen on the lower part of vagina.
Victim is raped and prosecuted under chapter of rape.

Decision: 5 years imprisonment and 10,000 compensation to each .

31. Basudev Shakya vs NG213

Here the supreme court held that, If the victim comes in front of the court and describes the incident
that happened to her ehich corroborates with FiR, medical report, than only the hostile statement in
the court cannot be taken as the ground for impunity.

32. Dipak Rawal vs NG214

Here the victim of 7 years has been raped on date 2068.11.13 in the grazing field where she had gone
to cut the grass. The defendant was punished with 10 years of imprisonment and Rs.50,000.
compensation was given to the victim.

33. Jaswat Singh vs NG215

Here the victim child has been raped. SC held that the compensation aims to rehabilitate the
victim . It cannot be said that , non national perpetrator shall not be liable for compensation.

211 Supreme court Bulletine 2073 vol. 14,page 42

212 Supreme court Bulletine 2073 vol. 16,page 12
213 NKP 2074 DN 9879
214 NKP 2075 DN 10007,p.874
215 NKP 2075 DN 10013,p.941
 CHAPTER VI

ANALYSIS , CONCLUSION AND SUGGESTIONS

Crime is inevitable in any human society since some violation or other of any code of
conduct prescribed for the members of society is bound to occur. It is settled in the
criminological discourse that the society without crime could not be imagined. And almost
every crime has two parties namely the criminal and the victim. Although the ultimate goal of
a criminal justice system is the punishment of the criminal and justice to the victim, however
all the attention seems to be upon the criminals while victims are often overshadowed and
neglected. It is the victim who usually suffers from a number of medical, psychological and
financial problems caused by the crime. They have no characteristic profile as persons of all
ages, races, ethnicities and socioeconomic ranges are subject to criminal assault of one form
or another.

Rape being inhuman offence not only inflicts serious wound against victim’s personal liberty
but also affects the entire society. The physical, social and economic consequences of rape are
of long term. Rape is the most heinous and inhumane offence. It is the barbarism of the worst
order. It shatters the life of the victim and compels to bear the agony throughout her life.
Rape being a combination of illegal sex and violence is a traumatic experience for the victim.
It not only is associated with the physical trauma itself, but it also involves the infliction of
immense psychological trauma.

Thus, in crimes like rape, where the victim has to bear much more than a physical pain
requires special provisions and practices so that s/he might not be victimized again and again
during their process to access justice and should also have easy access to justice.

Although Nepalese law has criminalized the offence of rape, yet it seems to be one of the
repeatedly occurring crimes in Nepal. Hence, it is high time to critically study and analyze
the Nepalese legal provisions and judgments and see whether such legal provisions and
judgments are adequate enough to address the harm sustained by such rape victims or not.

The concept of rape is ever changing but what remains constant is that it is considered as one
of the most inhumane crimes. The offence which was once considered as an act against the
husband or father of the girl has now been as an exclusive matter of victim. Similarly,
concept of marital rape and recent developments in the literature on male as victims of rape
has made the scope of rape victim even more comprehensive.

Victims who are an integral part of criminal justice system still lack basic powers and rights
and interests which are legally protected within the system. Without their cooperation it is
very difficult to provide them justice and bring the perpetrator within the ambit of law.
Moreover, especially in cases like rape where victim is the sole witness and the centre of
evidentiary value, victim’s involvement in justice system is must. But, it is offences like rape
which are least reported and even when they are reported a victim has to go through traumatic
experiences of sharing the information of the incidence in an uncomfortable scenario which
often leads to their re-victimization.

Nepalese legal provisions have addressed some of the fundamental concerns of such rape
victims although is not free from lacunas. Timely amendment of those lacunas can prove
helpful to address the needs of victims. The cases decided by the Supreme court on the other
hand has been very progressive in the recent years in relation to victims and the sentencing is
done looking upon the direct and circumstantial evidences in the case. The court has made
approaches for addressing needs of such victims and has also pro-actively issued directives in
the name of government to address their issues.

Sexual offences like rape is a grim reality of our Nepalese society. Rape victims, who suffer
lifelong physical, psychological, social torture, are totally different from any other victim
need to be given more priority in their access to justice. Considerable legal framework should
be made so that they may involve in the proceedings without any fear and receive speedy
justice without compromising their respect and dignity. Thus, the sentencing is done as per
looking at the staggering figure of sexual offences like rape , the impacts on such victims,
their importance in legal proceedings and also the challenges they have to face in such
proceedings makes it very pertinent for the legal sector to act upon the issues of rape victims.

After a person is convicted of a crime, whether through a guilty plea, plea bargain, or jury
verdict, the appropriate legal punishment is determined at the sentencing phase of a trial.
During this phase, a judge usually has some level of discretion in fashioning the appropriate
punishment for a particular crime. A number of different kinds of punishment may be
imposed on a convicted criminal defendant, including:

 Fines;
  Incarceration in jail (shorter-term);
 Incarceration in prison (longer-term);
 Death (in some states);
 Probation;
 A suspended sentence, which takes effect if conditions such as probation are violated;
 Payment of restitution to the crime victim;
 Community service; and
 Drug and alcohol rehabilitation.

Sentencing usually takes place almost immediately after convictions for infractions and
minor misdemeanors, or when a defendant has pled guilty. In more complex criminal cases,
such as those involving serious felonies, the sentencing judge usually receives input from the
prosecutor, the defense, and the probation department (which prepares recommendations in a
"pre-sentence report"). Also, some countries have established special drug courts which are
controlled by judges and which focus on rehabilitating, rather than incarcerating drug
offenders.

The sentencing judge will typically have a range of sentences already set forth in a criminal
statute; and in some jurisdictions (including sentencing guidelines), mandatory minimum
sentences may apply. However, the judge can also consider a number of other case-specific
factors, including:

 The defendant's criminal history, or lack thereof;

 The nature of the crime, the manner in which it was committed, and the impact on
victims, i.e. whether injuries resulted;
 The defendant's personal, economic, and social circumstances; and
 Regret or remorse expressed by the defendant.

The sentencing phase will focus on these types of aggravating and mitigating
circumstances surrounding the crime when determining the appropriate sentence. Evidence of
these factors at the sentencing phase could come in the form of testimony from the defendant
or from family members of the defendant or victim.
In addition to appealing a conviction, a criminal defendant can also appeal a sentence, and
seek a reduction from a higher court. An appeal of a criminal sentence could be based on such
arguments as:

 Incorrect application of the law by the court;

 Insufficient evidence to justify the sentence;
 Abuse of discretion by the court; or
 Ineffective assistance of counsel.

Analysis of the case:

Chapter of Rape has been incorporated as provide compensation to the victim considering
familial, humanitarian, psychological, physical, characteristic, professional, intellectual,
social, economical including other long term impact it had upon the victim's life. Seeing the
trend of the Supreme Court of Nepal, the court seems to be positive towards victims
testimony. And while giving the sentencing the Court has also considered the medical report
of the victim . As the medical report is the scientific evidence , sometimes the defence
counsel raises the issue that hymen tear is not only the ground to sentence under rape,
however court seems positive in taking victims testimony and medical report as the main
ground even if spermatozoa is not seen in the report.

The Court has also taken in consideration the age of the victim while sentencing, and in the
cases of minor the court has actively forwarded the idea that even non-penetration by the
penis in the vagina is sufficient to prove the rape. The friction of the penis in the vagina is
enough to prove the case of rape.

The rape of a victim who is especially vulnerable because of age, physical frailty, mental
impairment or learning disability has been taken in consideration while sentencing. The
policy of the law is that a female under 16 cannot consent to sexual activity, and if the victim
did not consent, the offence is particularly serious Offences which are committed by groups
of persons, even if not the product of syndicated or planned action, are more serious. The
purpose of sentencing sexual offences to be public protection, punishment, acknowledgement
of the harm and seriousness of the offence, and in some cases to provide a locus for treatment
and rehabilitation whilst ensuring repeat offending cannot occur.
Factors that may determine the sentence include:
 the seriousness of the offence;
 whether the offender has a previous conviction and of what kind;

aggravating and mitigating factors;

personal mitigation relating to the offender and his/her family;
whether the offender pleaded guilty (which normally results in a reduced sentence);
totality, that is to say, whether an offender is being sentenced for more than one
offence (although offences can be served concurrently); relevant law including
maximum, and in some cases minimum, sentences.
The key purposes of sentencing are: the punishment of offenders; the reduction of crime; the
reform and rehabilitation of offenders; the protection of the public; and, the making of
reparation by offenders to persons affected by their offences.

SUGGESTIONS:

The following are the suggestions;

A.The court doesnot seem to be uniform in regard to the sentencing policy. The punishment
given to the perpetrators doesnot seem to analyze the factors of the crime or to say uniform
statndards are not been applied.

B. The compensation doesnot seem to be in congnizance with the sentencing. Sometimes the
crime with high gravity will be punished with high amount of punishment but the victim gets
less compensation.

C. The present definition on rape requires an amendment. It only covers female or minor
child (both boy and girl) as rape victims but excludes male as potential victim. The provision
should be amended and male should also be regarded as a potential victim.

D. The present punishment has tried to deter potential offenders especially against
committing rape on minor. However, the reality shows otherwise. Punishment should always
address the quantum of impact on victims and should also address the present crime scenario.
Thus, an amendment in the present punishment should be considered and the punishment
should be increased.
E. Compensation is provided to victims due to the suffering they have to go through.
Although an attempted rape may not constitute a very intense suffering, but still they have to
go through some amount of distress and pain. Hence, looking at the impact some amount of
compensation should be provided to victim.

F.Proper provision regarding rape committed by minor should be mentioned. The law is silent
in that regard. Some of the cases show that the right of victim to get compensation is
excluded because the perpetrator was minor. Thus, proper amendment is necessary.
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