HMG v Abdul Fatte Musalman (NKP, 2044, p. 840)

DEFENSE ON CONSENT

DATE : 2044 BS

COURT : SUPREME COURT OF NEPAL

CATEGORY: CRIMINAL LAW

BACKGROUND

HMG v Abdul Fatte Musalman (NKP, 2044, p. 840)  Case of suicide pact.

DETAIL

In this case Indra found dead by cutting throat and Abdul in unconscious conditions in the same room having several wound.

Abdul survives after treatment and according to him they were under love and they wanted to get married but family of Indra did not allow and one day they decided to commit suicide together.

Indra handed over a knife to Abdul and he stabbed knife to Indra’s throat firstly and he stabbed himself until got unconscious. Abdul pleaded defense of consent but the court rejected Abdul’s  plea.

VERDICT

In this case  the Supreme court convicted Abdul  in murder but using 188 he was sentenced for 6 years imprisonment.

June 7, 2017 Attorney, Criminal Law 0

Government of Nepal V. Bikash Mahat

DEFENSE FOR INFANCY 

DATE : 2067 BS

COURT : SUPREME COURT OF NEPAL

CATEGORY : CRIMINAL CASE

BACKGROUND

In the case of Government of Nepal V. Bikash Mahat and Others, there was an issue related with the age of the accused. Government of Nepal V. Bikash Mahat and Others, NKP (2067), p.1159, SC (DB), DN 8415.

VERDICT

If the age of the accuse is less than the age as prescribed in Children Act, 2048, then what will be duration of the imprisonment?

The Supreme Court firstly decided the case and apply the No. 188 of the Chapter on “Court Management.”

Then it stated that the adult has been imprisoned for ten years by using the above provisions of the Muluki Ain, then the child should get the benefit of the Children Act, 2048 and he should be imprisoned for five years according to Section 11(3) of the Children Act, 2048. [Government of Nepal V. Bikash Mahat and Others, NKP (2067), p.1159, SC (DB), DN 8415]

 

June 6, 2017 Attorney, Criminal Law 0

Government of Nepal V. Keshab Bahadur Budhathoki

MISTAKE OF FACT

DATE-2067 BS

COURT – SUPREME COURT OF NEPAL

CATEGORY – CRIMINAL LAW

TITLE

Supreme Court of Nepal, in the case of Government of Nepal V. Keshab Bahadur Budhathoki, has decided the issue related with the Mistake of Fact.

DETAILS

In this case the victim was killed by the defendant due to the Mistake of the Fact. The victim and the defendant and other three people had gone in forest for hunting.

The victim went to put the food for animal (chari). The defendant was ready with gun. The defendant heard the sound of leafs and thought that the hunt (animal) came and pulled trigger of the gun and victim was killed.

VERDICT

The Supreme Court held that Mistake of Fact is excused. But Mistake of Fact is not excused in all types of law. It is applicable only in criminal law. [Government of Nepal V. Keshab Bahadur Budhathoki, NKP (2067), p. 1337, SC (DB), DN 8435]

June 4, 2017 Attorney, Criminal Law 0

Dal Bahadur Gurung V. HMG

DEFENSE IN CASE OF INTOXICATION

DATE – 2042 BS

COURT – SUPREME COURT OF NEPAL

CATEGORY – CRIMINAL LAW

BACKGROUND

The Supreme Court of Nepal has also recognized intoxication as a ground of mitigation of punishment in case of homicide. In Dal Bahadur Gurung V. HMG,

 DETAILS

The accused father killed his deceased daughter while intoxicated consuming excessive portion of wine by stabbing with Khukuri repeatedly and resulting in consequent death of his daughter.

 VERDICT

In this case, the Supreme Court held that in the case, where there is no any intention to kill and without having any murderous enmity, the accused had killed the victim while he was intoxicated due to consuming excessive dosage of wine, maximum punishment as per No. 13(3) of the Chapter on “Homicide” would be grave for the accused so the punishment is reduced to 10 years imprisonment as per No. 188 of the Chapter on “Court Management.” (Dal Bahadur Gurung V HMG, NKP 2042, p. 863, DN 2496)

June 2, 2017 Attorney, Criminal Law 0

HMG Vs Balram Lawoti

DEFENSE FOR INSANE 

Date:- 2045 BS

Court:-Supreme Court of Nepal

Category:- Criminal law

BACKGROUND

The Supreme Court of Nepal has for the first time recognized the notion of diminished responsibility or mental incapacity in the case of HMG V. Balram Lawoti as a ground of mitigation for reducing a charge of murder to mitigated homicide.(Absence of mens rea, mental incapacity, no evidence for pre-plan,  defense provided to insane)

DETAILS

The defendant and the victim were brothers. They were separated but living in the same house sharing half portion by each of them. The accused was mentally disorder because of beating received sometime back.

On the day of the incident the deceased person came back to house after collecting fire woods from forest and going back to keep them in store room. The accused believing that the deceased was coming to attack him with Khukuri which the deceased had and gave a single blow on the head of the victim with iron rod resulting in serious injury from which he died next day.

VERDICT

The Supreme Court as the final jurisdiction of reference cases confirming the decisions of the lower courts held that in the case where there was no evidence of pre-planned killing, accused was suffering from mental disorder and death of the victim was caused due to the mental disordered condition of the accused in such a situation the punishment fixed by No. 3(3) of the Chapter  on “Homicide” would be grave injustice to the accused. So, it is reduced to 10 years imprisonment as per N0. 188 of the Chapter on “ Court Management.” [NKP (2045), p. 764, DN 3540]

 

June 1, 2017 Criminal Law 0