Criminal Law Case: Mahendra Raj Bam v. His majesty’s Government of Nepal, NKP(2051), No. 4, DN: 4890
Case: Attempt to murder
Plaintiff: His Majesty’s Government on behalf of Ajj Bahadur FIR
Defendant: Mahendra Raj Bam
Decision Number: 4890
This case is related with essential element of an attempt to murder.
Fact of the case:
This case arises out of an incident that took place on 32nd Ashad 2037 in a mill(ghatta) at Jafey. On that day, Darshankala Bam had gone to mill along with her younger brother Surya Bahadur (about 10 years old) to grind wheat.
The root cause of the dispute was related to a postal agent position. Accused, Mahendra Raj Bam, had earlier been removed from his post as a local postal agent, and Darshankala had been appointed in his place. Because of this, he held a personal grudge(anger) against her and her family.
While Darshankala was at the mill, accused arrived and started arguing with her about postal job. During argument, in a sudden outburst of anger, he took out a khukuri from his waist and attacked her, causing injuries to her face, near her eye, and on her hands. When she tried to defend herself, her fingers were also injured. Her brother was also injured near his eye while trying to intervene.
Darshankala fell unconscious due to injuries. Later, local persons named Dabal Shahi and Malla Shahi reached the spot, rescued her, and took her away. When she regained consciousness, she stated that Mahendra Raj Bam had attacked her with khukuri. Although she received treatment, she later died.
During police investigation, several other individuals were also named as being involved. However, their involvement could not be proven with sufficient evidence.
An important factual aspect is that there was no clear evidence that any third person intervened and prevented or stopped accused from killing her. Instead, it appeared that after Darshankala fell unconscious, accused himself stopped attack and left the scene. Even though he had opportunity to kill her or fatal injuries, he did not do so.
Legal Issue:
- Did the accused actually act with the intention(mens rea) to kill?
- Were the three elements of attempted murder [intention to kill(mens rea), action(actus rea), and interference by a third party] present in this incident?
- Or is this incident merely an assault(Kutpit)?
Decision of the Courts:
Kalikot District Court:
District Court found the accused guilty of attempt to murder and sentenced him to 10 years imprisonment.
Mid-Western Regional Court:
This court reversed District Court’s decision. It held that the essential elements of attempt to murder, especially the third element (external force or third party intervention), were not proven. Therefore, accused was not guilty of attempt to murder. So he was acquitted from charge.
Supreme Court (Division Bench):
Division Bench again reversed Regional Court’s decision and upheld District Court’s judgment, concluding that accused had committed attempt to murder.
Supreme Court (Full Bench): Final Decision
Full Bench re-evaluated all the evidence and held that:
- there was no clear proof of intention to kill,
- no third-party intervention prevented the death, and
- the accused himself stopped the attack.
Therefore, the offence of attempt to murder was not established, and accused was acquitted. However, the court indicated that the case could fall under assault (kutpit) instead.
Principle Established:
This case established an important legal principle regarding attempt to murder. For an offence of attempt to murder to be proven, three essential elements must be present:
- Clear intention to kill (mens rea),
- An act done towards committing the killing (actus reus), and
- Intervention of a third factor preventing death.
If the accused voluntarily stops the act and there is no external intervention, offence cannot be considered attempt to murder.
This case also clarified the distinction between attempt to murder and assault, depends precisely on the presence or absence of this third element. It emphasized that presence of a third-party interruption is a key factor in identifying attempt to murder.
