DEATH PENALTY A LAST RESORT???
On Oct 2020, A boy child [age 5yrs] was raped by his own Relative.
On the date of the incident, Ram Bahadur [(भिनाज्यू )age 22yrs] was going for fishing where he saw his Salo (साला)playing in the streets. He asked his salo to come along. The Child without thinking of anything agreed and made a deal that his Bhinaju will have to give him fish in return. They walked for about 800m and caught 3 to 4 fish. Out of nowhere Ram pushed his Salo on the ground and started forcing on him in an inappropriate place which resulted in the tearing of his Private Organ. The child got unconscious and fainted. After having forced sexual intercourse with the child, Ram Bahadur touched his wrist to check whether he was alive or not. The Child didn't respond. As Ram Bahadur got perturbed, he strangled the child with his kandani and left the deceased. Meanwhile, the parents of the child started searching for him. They even reported to the Police station. Later, the next day Ram went to hide the body where one of the villagers saw him and informed the police station forthwith. Ram at first didn't confess his wrongdoing. However, after scrutiny Ram confessed that he raped the child and strangled him with his kandani. The body was sent to the Pardeshik Aaspatal, Janakpur. The postmortem report matched the statement of Ram Bahadur.
This is an ongoing case and Ram Bahadur is under custody as granted for an extension to keep him in custody by District Court, Janakpur.
(The name of the child is to be held confidential as per the laws)
DEATH PENALTY A LAST RESORT??
Nepal is known for its Culture in Diversity, Greenery, and Hospitality. These three terms are what Nepalese used to be proud of. However, as much as the world is reforming with the help of technology and artificial intelligence, Human minds are pulling it back.
Nepal has a total population of 30,332,457 out of which, 15,044,999 is Current male population (49.6%) and 15,287,458 is Current female population (50.4%). Similarly, the literacy ratio is 64.7%, as of the beginning of 2020 : 34.6% of the population under 15yrs, 61.1% percentage of population between 15 and 64 years old & 4 percentage of population 65yrs+.
The Nepal Police data suggests that as many as 2,144 cases of rape were registered in the last fiscal year(2018/2019). In the first month of the current fiscal year, 260 cases of rape were recorded which is the highest so far for any month. The rape victims are usually under-age poor girls. According to the latest data compiled by Nepal Police, 60 percent of
rape victims are below the age of 15, especially between 11 to 15. The age group of rape victims ranges from six months to 75 years old in Nepal.
Sad but true, the ratio of Rape cases in Nepal started increasing after Nirmala Pant's case. However, the cases before Nirmala Pant's were limited as case laws for Law students and practicing Lawyers. Before getting into the facet of Penalization of Death Penalty in Nepal, we first need to comparative analyse the status of Rape cases with the country that has already legalized Death Penalty.
One of the rare of the rarest cases was registered in India, also known as Nirbhaya Case. Back in 2012, Nirbhaya was gang-raped. The offenders inserted a rod inside her vagina and threw her body from a moving vehicle. This incident shook the Indian Judiciary which resulted in the implementation of Fast Track Tribunal in India. One out of four criminals committed suicide inside the prison, another offender being a juvenile was sent to a rehabilitation center and the remaining were sentenced to death.
Before we discuss whether the Death Penalty should be penalized in Nepal, one should know the laws prevailing, the history of abolishment of the Death Penalty in Nepal, and many more.
HISTORY AND PREVAILING LAWS
As under Constitution of Nepal, 2072, Article. 16 provides for the fundamentals Right where u/a. 16(1) talks about Right to live with Dignity and explicitly bars states from providing Capital Punishment.
Apart from this, under National Penal Code, 2074 clearly states that the tenure for life imprisonment is 25years. Not only that, the National Penal Code, 2074 also provides under s.41 for whole life imprisonment which states that if the offender commits any of the following offences then he would be given imprisonment for the remainder of his life. For following offences:
1. Inhumane or ruthlessly killing of a person.
2. Hijacking of an aircraft, death caused due to aircraft explosion.
3. If death is caused by confining of a person or kidnapping
4. If death is caused due to adding of poison in food for public consumption.
5. Genocide
6. If Rape is followed by Murder.
Thus, if any of the aforesaid offence is committed then the offender is subjected for the imprisonment for the remainder of his life.
LEGAL PROVISION OF RAPE IN NEPAL
UNDER CHAPTER 18 OF NATIONAL PENAL CODE, 2074
u/s.219 Prohibits offences of committing rape ; (1) Where a man has sexual intercourse with a woman without her consent or with a girl child below eighteen years of age even with her consent, the man shall be considered to commit rape on such woman or girl child.
NOTE: The act of sexual intercourse upon a Male/ boy child isn't mentioned in the said act.
* But at times consent is obtained with malafide intentions, so what shouldnot be considered to be a consent?
- Consent obtained by way of coercion, undue influence, intimidation, misrepresentation, threat or kidnapping or taking of hostage.
- Consent obtained at the time of being of unsoundness of mind.
- The penetration of penis into anus or mouth, penetration of penis, to any extent, into anus, mouth or vagina, insertion of any object other than penis into vagina shall also be considered to be Rape.
U/S. 219(3) talks about the Punishment for committing of the offence of RAPE:
If in case, Murder is followed by Rape then the punishment would be covered u/s.41 of National Penal Code, 2074 i.e, the imprisonment tenure would be for the remainder of his life. For instance, If A is 25yrs of age and he commits an offence of Rape upon B, followed by Murder then, A will be held in prison for rest of his life/till his last breathe with no release in Probation or Bail.
u/s.214 (4) If husband commits rape on his wife during the existence of Marital Relationship then he will be held liable for term not exceeding 5years. A basic question might arise as to what shallnot be considered under an existence of Marital Relationship?
- where a case of partition has been instituted upon making separation of board and bread,
-The wife has lived separate upon taking her partition share from the husband,
- a case of divorce from the husband has been instituted.
NOTE: If the Husband and wife have partitioned or is living separately or has filed for a divorce, and if the Husband commits an act of Rape on his wife then, it would fall under s.219(3) and the charges would differ.
U/S. 214 (6) If a man who commits rape in spite of knowing that he has human immune deficiency virus (HIV positive) or a sexually transmitted disease shall be liable to the following additional sentence, in addition to the sentence set forthin sub-section (3).
- The sentence referred to in Section 105 in the event of the commission of rape in spite of knowing that he has human immune deficiency virus (HIV positive)
- A sentence of imprisonment for a term not exceeding three years and a fine not exceeding thirty thousand rupees in the event of the commission of rape in spite of knowing that he has any other sexually transmitted disease.
u/s.214(7) Incase of a Gang Rape, on a pregnant women, disabled or suffering from illness A man who commits rape on a woman in a gang or on a woman having pregnancy of more than six months or on a woman who is infirm or disabled or suffering from physical or mental illness,or commits rape showing arms shall be liable to an additional sentence of imprisonment for a term not exceeding five years, in addition to the sentence set forth in sub-section (3).
- A person who commits rape on a woman within the prohibited degree of relationship by consanguinity or affinity shall be liable to the sentence referred to in this Chapter, in addition to the sentence imposable for incest if he is liable to such sentence for incest.
u/s.220.Prohibition of incest : No person shall have a sexual intercourse with anyone knownigly that they fall in the prohibited the degree of prohibited relationship or affinity or by consangunity for marriage according to the usage, custom or tradition being practiced in his or her caste or lineage. Punishment for committing of the said offence:
- A sentence of imprisonment for life in the case of sexual intercourse between the natural mother and her natural son or between the natural father and his natural daughter.
- A sentence of imprisonment for a term of four years to ten years and a fine of forty thousand rupees to one hundred thousand rupees in the case of sexual intercourse between the step-mother and her step-son, between the step father and his step daughter, between the full blood elder sister and brother, between full blood elder brother and sister, between father-in-law and daughter-in-law within the same branch, between grand-father and grand-daughter or great-grand-daughter within the same branch, between elder brother-in-lawand sister-in-law within the same branch or between younger brother-in-lawand sister-in-law within the same branch,
- A sentence of imprisonment for a term of three to six years and a fine of thirty thousand to sixty thousand rupees in the case of sexual intercourse between grand-mother and her grand-son or great-grand-son within the three generations of the same branch, between father's elder brother or uncle and niece within the same branch, between nephew and great mother (wife of own father's brother) or aunty within the same branch, between father-in-law and brother's daughter-in-law within the same branch, between uterine maternal uncle and niece or nephew and maternal aunty, between mother's elder sister or younger sister andnephew or between mother-in-law (one's wife side) and son-in-law
- A sentence of imprisonment for a term of one year to three years and a fine of ten thousand to thirty thousand rupees, having regard to, inter alia, the branch, relationship and generation, in the case of sexual intercourse between persons in other relationship within seven generations of one’s own clan except that referred to in clause (a), (b) or (c).
s.221 No Government Employee shall have a sexual intercourse with a person held in prison or detainee or faciliate and shall be liable for imprisonment of term not exceeding than 3yrs.
s.222 Prohibition of sexual intercourse with person in one's own protection or security: punishment for a term not exceeding 3yrs.
s.223 Prohibition of sexual intercourse with person in office or receiving professional service ; punishment for term not exceeding than 4yrs and fine not exceeding more than rs.40000
s.224 No person shall commit, or caused to be committed, sexual harassment to another person. If found guilty of the offenc shall be liable to a sentence of imprisonment for a term not exceeding three years and a fine not exceeding thirty thousand rupees.
s.225 Child sexual abuse: A person shall be considered to commit child sexual abuse if the person takes to any lonely place in an unusual manner, or holds or touches any sexual organ of, gets his or her sexual organ to be touched or held by, or makes any form of unusual sexual behavior with, a child, with the motive of having sexual intercourse with the child and shall be liable to a sentence of imprisonment for a term not exceeding three years and a fine not exceeding thirty thousand rupees.
s.226 Prohibition of unnatural sexual intercourse : No person shall have, or cause to be had, unnatural sexual intercourse with another person of same gender without his or her consent. And shall be liable to a sentence of imprisonment for a term not exceeding three years and a fine not exceeding thirty thousand rupees. A person who commitstheoffence referred to insub-section (1) against a child shall be liable tothesentence under Section 219.
s.227.Prohibition of bestiality ; No person shall have, or cause to be had, sexual intercourse with a cow shall be liable of imprisonment for a term not exceeding two years and a fine not exceeding twenty thousand rupees and if it is with any other animal shall be liable of imprisonment for 1yr and 10000rs.
Instances of brutal rape and violence against the women who report it have given India the dismal reputation of being one of the worst places in the world to be female.
Before getting into the crux of it, India is a country that has Death Penalty as a rigorous form of imprisonment. The cities where the incidents of Rape is reported are Delhi, Mumbai, Gurgaon, Rajasthan, Hyderabad, and Noida. These cities come under the most developed and have one of the highest literacy rates with Huge Population. The highest court in India is situated in Delhi, also the capital city of India. The status of Rape cases in a city like Delhi is on an average of over 2000 Rape cases a year (not to forget, India has a total of 29 states and 7 union territories). Only the cases that are reported to the Police station are recorded. Many cases go unnoticed due to the victim's family reputation which leads to the victim being tortured by their thoughts, later leaves them to do nothing but commit suicide. To support my reasoning here are some of the major Rape cases in India that shook the Indian Judiciary System.
Nov. 1973: Aruna Shanbaug, a 26-year-old nurse, was attacked by a ward attendant at a Mumbai hospital during her night shift. Sohanlal Bhartha Walmiki, who was later convicted and jailed, sodomized and strangled her with a dog chain - cutting off the oxygen supply to her brain and leaving her in a coma. Left in a vegetative state for more than 40 years, Shanbaug died in 2015.
1990: Hetal Parekh, a 14-year-old schoolgirl, is raped and murdered by Dhananjoy Chatterjee in Kolkata. Chatterjee is sentenced to death and hung in 2004, the first hanging in India in 13 years.
1995: A Jaipur court acquits five men accused of gang-raping Bhanwari Devi, a lower-caste woman who worked with the Women’s Development Project in Rajasthan, in 1992. Later, a petition is filed in the Supreme Court, which leads to the Vishaka Guidelines being put into place, to protect women against sexual harassment at the workplace.
1996: Law student Priyadarshini Mattoo is found raped and strangled in her Delhi flat. Santosh Kumar Singh, a fellow law student and son of a former senior police officer, is sentenced to death, after being initially acquitted due to a lack of evidence and then retried following a public outcry.
Dec. 2012: A 23-year-old student is beaten and gang-raped on a moving
bus in the capital New Delhi and later dies of her injuries. Five men
and a juvenile are arrested - four of the men have been sentenced to
death and one hanged himself during the trial. The juvenile was freed
after completing three years in a reform home. aka "NIRVAYA CASE"
Jan. 2018: An 8-year-old Muslim girl is drugged, held captive in a temple and sexually assaulted for a week before being strangled and battered to death with a stone in Kathua town in northern India. Six men, including a Hindu priest and three police officers, were convicted of the crime. Three were given life sentences. AKA "Kathua rape case"
Jul. 2018: Eighteen men are charged in Chennai with repeatedly raping a 12-year-old girl over a seven-month period, sedating her with drugs and then taking her to vacant apartments in the block to assault her.
Dec 5, 2019: A 23-year-old rape victim is set ablaze by a gang of men, including the alleged rapist, as she made her way to court to attend a hearing in the case, in Unnao district of Uttar Pradesh, police said
Sept, 2020 : A 19yr old rape victim was raped by a gang of men that broke her broke her spinal cord, gouged her eyes, and cut off her tongue during the brutal rape. She was strangled and raped when she went with her mother to work on a field. This case is ongoing and shook the Indian Judicial system where the limelight was given by the Media online. AKA 'Hathras Rape Case'
EXPLAINATION : There are a few common elements in all the aforesaid mentioned cases.
- Gang Rape - Rape of a minor or an adult female - Brutally Raped followed by Murder
- Place of an offence being committed - Prouncement of Death Penalty as a form of Imprisonment .
In all the aforesaid cases, Indian Judiciary pronounced the judgement of Capital Punishment. However, even if death penalty is imposed upon the criminals, there are brutal rape cases registered in India by each passing year. To connect this with the question I have raised before, another Question arise i.e, Will imposing one of harshest form of punishment is sufficient in controlling the crime ratio?
SHOULD DEATH PENALITY BE LEGALIZED???
As the punishment of Death Penalty isn't given in all forms of crimes. The term used is 'Rare of the Rarest'.
Further more, Nepal has already signed in both the Optional Protocols and is bind by the protocols under the "International Covenant on Civil and Political Rights" which restricts Nepal from introducing laws that support the imposition of Capital Punishment on the wrongdoer.
In addition, as we can see the citizens are demanding for Capital Punishment against the Offenders of Rape Cases. But, the main question is whether the imposition of Capital Punishment will help reduce crimes being committed in Nepal? Whether female or child will feel safe after the imposition of Capital Punishment in society? Should the culprits be hanged or should they be given imprisonment for life and make them regret their act? or Whether the imposition of the Death Penalty is the conclusion for controlling crime rates in society?
The reason why I provided the status and few rape cases of India is to support my writing from here. Though India has been crucial to the criminals but there is no credible evidence that the death penalty deters crime more effectively than a prison term. Even with the Death Penalty punishment, the instances of brutal rape and violence against the women in India is at peak.
Also to support the aforesaid statement, In Canada, after abolishing the death penalty in 1976, Canada's murder rate has steadily declined and as of 2016 was at its lowest since 1966. Also indicates Capital Punishment can be a tool of control, not Justice.
Apart from the fact that imposition of a capital Punishment against the offender contradicts the right to personal life and liberty, but to keep them in prison for life and make them suffer mentally inside the prison will help them realize the wrong they have committed rather than not realizing the wrong and imposing sentence of death. It makes citizens fearful and aware them no to violate others Human Rights.
Not only that, If Death Penalty is penalized then Corrupt Government can use this form of imprisonment for their benefit.
Ultimately, if an accused is hanged till death and new likable evidence is discovered in his favor then the damage can't be undone. To support this statement: Cameron Todd Willingham was pronounced the punishment of the death penalty of killing of his 3 daughters. later, after his execution, it was found that he wasn't responsible for the killing of his daughters.
In my opinion, rather than imposing Capital Punishment against the offenders, there are few things legislators and lawmakers can work on.
If comparative analyse the system of different countries, imposition of such rigorous imprisonment can help control the crime to some extend, not justice. It isn't guaranteed that the imposition of such rigorous imprisonment will help lesser ongoing crime rate in the society.
WHAT SHOULD NEPAL FOCUS ON INSTEAD!!
There are other factors through which alike nature of crimes can be controlled.
1. Before imposing harsh Punishment on the wrongdoer, we must try to control the status of Rape cases in General. The data showed that 86% of rapes had been committed by close family members. Not wholly, but most of the Rape victims are females. To begin with, Parents should teach their children to respect another Gender. They should themselves start normalizing the concept of providing Sex Education and should be friendly with their family members especially their children so that if any mishap happens, the first person who they are wiling to share a news with is their parents.
Similarly, Parents should encourage their children to report such crimes to the Police station without thinking of their reputation in society. The major reason for increasing such crimes within the family is because, when the victim shares such incidents with their parents, the parents don't believe in their child or even if they do, they ask their child to keep their mouth shut. If Parents start to have heterodox thinking and start reporting such crimes then the offender would think before doing such acts and the crimes would be controlled in the society.
2. Followed by, proving free education and awareness about the Laws and imposition one can be imposed if committed such crimes or can be imposed if proved to have Mens Rea of committing such crimes from the Primary level of Education.
Most Citizens are yet unknown that the highest form of imprisonment on an offender is whole life imprisonment i.e, till the remainder of his life (classic case could be of Murder followed by Rape) and for heinous crimes(Rape), the punishment is Life Imprisonment i.e, 25years.
3. Nevertheless, in my opinion the Government should start:
a. The Govt should tighten the Patrolling of Police in the areas where the offense of Rape had been previously observed.
b. Installation of CCTV cameras with 24/7 availability of Police Personnel should be done.
c. All female Police station should be opened in every 7 states within Nepal so that it will be easier for females/victims to go and open up or file for a case infront of a Women Police Personnel.
d. If a female is a victim of a crime, then such a case should to be dealt by a female Judge only.
e. Further, the majority of the Rape victims don't file their case thinking that the case might run for a decade or more. There must be the implementation of Fast Track Court which gives a victim the surety of getting Justice within the prescribed time limit.
f. The Government should keep an eye on the investigating officer of the crime and should check with respect to whether the case is operating properly or not.
As per the survey I've done, I asked people I know about the highest term of Imprisonment in alike cases. Most of them mistake 25yrs of imprisonment to be the highest imposition imposed. The reality differs. An offender can be imposed for the punishment of his whole life i.e, till his last breath. If Nepal had 25yrs of imprisonment as the most grievous form of Imprisonment then, to see citizens demanding for the penalization of the Death Penalty would make sense. However, a Rigorous form of Imprisonment is already available. In my point of view, the imposition of the harshest form of punishment has nothing to do with controlling of the act.(to some extend, yes). If the country and the citizens are trying to minimize the Rape cases that exists with in the society, then imposition of Death Penalty has nothing to do with controlling of the case ratio, as India can be an example. As I have mentioned earlier, the crime rate is at a peak even if the India supports Death Penalty.
Also, the imposition of a strident form of imprisonment that might violate Human Rights, in general, shouldn't come into the picture. Rather, the Citizen and Government should work on controlling such Heinous crimes.
To my way of thinking, the imposition of the Death Penalty only serves distraction but doesn't necessarily provide Justice to the victim where the purpose of Law is to serve Justice. Instead of directing jumping into the penalization of the Death Penalty, there are various other aspects to look after. As already seen in countries like India, even after the penalization of the Death Penalty the crime ratio isn't under control. Such form of punishment will only serve justice to that case, not to the society as the purpose of the law and imposition of any term to the offender is to make them realize the mistake they have done and aware people with alike mindset to think of themselves and their family members before committing of such crimes. Media Trials might also affect the death row convicts and constitutional rights which might lead an innocent person to be the victim of it. Though the constitutional provision bars the imposition of the death penalty as a fundamental right, it can amended but Will the retaining of Capital Punishment control the crime rate is the Question.
To Conclude, instead of focusing on the form of imprisonment that is likely to control the crime rate, one should focus on how to stop the Rape Cases in general. As it isn't the Death Penalty that will affect the mentality of criminals when Nepal already has Whole life imprisonment as a highest form of punishment. The change must come from within the society.
[ As the purpose of this Blog is to educate the citizens and non citizens concerning whether Death Penalty is the only means to control the ratio of Rape cases. Here, I have provided the laws with respect to the Rape cases in Nepal and comparative analyse the laws of different countries. There are various Rape Cases that I haven't mentioned in this blog as the spectrum differs, but will surely provide information in near future]
TOGETHER WE CAN
Yashaswee Thapa
Advocate
Nepal Bar Council
contact - yashasweet9@gmail.com
.png)
.png)
.png)
Comments
Post a Comment