Juvenile Delinquency Case: Mahesh Kumar Chaudhary v. Government of Nepal, NKP 2064, P. 145, DN: 7833
Case: Incest Rape
Plaintiff: Government of Nepal on the complaint of Minaki Kumari Khaa Chaudhary
Respondent: Mahesh Kumar Chaudhary
Decision Number: 7833
This case is related to incest rape & juvenile delinquency.
Facts of the Case:
On 2055/01/24, the applicant, Minaki Kumari Khaa Chaudhari was raped by Mahendra, who was her elder brother (cousin) within three generation. Based on school records and a medical evaluation report, the defendant was between 12 to 14 years old at the time of the commission of offense. She was lured to go to the field on the pretext of the seeds on the field being eaten by goats. He raped her in the field after she was made unconscious after the beatings. The victim was slapped on cheek, towel stuffed in her mouth & threatened to not shout, or else she would be killed. Ishwarwati Tharuni (villager) saw the incident taking place & she spread the information in Shalikram Chaudhari’s shop which was near the scene of incident. The offender fled after he saw Tharuni. The victim was rescued by the help of villagers.
The medical examination which was conducted after 7 days of the incident stated “congestion and redness over vulva vaginal post and slightly oozing”.
Legal Issues:
- Whether the general provisions of the Muluki Ain (No. 10 of the Chapter on Rape) or the specific provisions of the Section 11(2) of Act Relating to Children, 2048 apply to a minor defendant who has committed an offense?
- Whether the confiscation and transfer of half of the defendant’s property (Ansha Sarbaswa) to the victim constitutes an economic penalty and whether such a financial liability can legally be imposed on a minor under 14 years of age?
Decision of the Court:
District Court:
Sunsari District Court sentenced him to 6 months in prison under the Act Relating to Children, 2048. In accordance with No. 11(a)(2) of “Danda Sajaya’, if the defendant agrees to pay Rs. 45,000 at the rate of Rs. 750 per month, then the sentence is to be decreased. Since the defendant was under 14, his property cannot be confiscated.
Appellate Court:
The Appellate Court altered this & included the mandatory confiscation of half of his property to award it as compensation to the victim.
Supreme Court:
Supreme Court denied the prosecution’s demand to award half of the defendant’s ancestral property to the victim stating that further punishments under general law do not apply to minors under 14.
The Supreme Court upheld the conviction and the 6-month prison sentence but quashed the order to confiscate and transfer half of the minor defendant’s property to the victim as it was a violation of Section 11(2) of the Act Relating to Children, 2048.
Principles Established:
- The two roles of the state are noteworthy in controlling crime. First, to effectively administer the law to control crime and second, to punish the person who is found to be breaking the law.
- The Act Relating to Children, 2048 was enacted as a law to adopt a reformative punishment system because it is inappropriate to punish children who act without knowing the consequences of their actions as severely as adults.
- Since the defendant was 12-14 years old at the time of the crime, the law itself exempts him from being punished financially, and they cannot be punished financially on the pretext of giving compensation contrary to the law by using a model of financial punishment like a fine. Paying compensation is also a type of financial punishment. Generally, compensation does not have a prominent place in the criminal justice system.
- The judgment of giving half of the defendant’s property to the victim as a compensation according to No.10 of the Chapter on Rape is contrary to the intention of the legal provision in Section 11(2) of the Act Relating to Children, 2048.
Relevance of Case:
The case involves a minor defendant aged 12–14 convicted of incest. It established that property forfeiture is an economic penalty from which minors are legally exempt.
