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The Supreme Court of Nepal (SC) established a precedent that if the physical evidence has not been tampered with, it provides a reliable basis for proving or rejecting the fact.
In the case of Nepal Government vs. “E” (Nepal Kanoon Patrika (NKP), Vol. 2, DN 10431) SC emphasized that physical evidence is more reliable than a human witness. Therefore, hearsay evidence is no evidence. In the present case, the physical evidence collected during the investigation cannot be ignored if there is no evidence of tampering with the missile.
SC observed that in the case of rape, it is more likely that physical evidence will be collected by examining the victim’s health as soon as possible. No such evidence was found during the medical examination of the victim the day after the incident. Similarly, according to the victim, the girl who is often torn in the first sexual intercourse has not been torn even after repeated rapes for the past one year.
The accusation is that the defendant ‘E’ (changed name) raped his daughter ‘T-1’. He alleged for commission crime under Rape no. 1 and 3(3) of Country code, 2020. He is liable for rape and incesting offenses. And victim should be compensated by the defendant by giving additional punishment for the crime.
The defendant has denied the allegations and testified in court and during the investigation.
In this case, Jhapa District Court convicted him and sentenced him to 18 years imprisonment, and the victim compensated Rs. 1,00,000 (One Lakh Rupees) by the defendant. But, Biratnagar High Court has refused the district court’s verdict; the defendant has been released from the allegation. Then, the plaintiff government of Nepal has appealed to the Supreme Court.
The Supreme Court observed that the victim’s uncle (Mama) has filed a complaint alleging that he had been forcibly rape to “T-1” (changed name) for one year.
The “T-1” appears in the course of the investigation as well as in court in support of the complaint. Complaints also have appeared in the court in support of the complaint. Defendants have denied the allegations and made statements during the investigation and in court.
The witnesses Susila Tamang, Bishnu Prasad Sitaula and Sarita Pandey, and Lekhnath Gauli have testified in court that the accused had not raped the victim.
The victim appears during the investigation and in court and she has given testimony in line with the complaint 2072.1.1.
The next day, she underwent a physical examination. According to a letter from the Central Police, Forensic Science Laboratory dated 2072.5.24, found no scars on her body or genitals organs. Her Hyman also is not torn. No blood or semen was found on the victim’s body. Sperm was not found in the victim’s vaginal swab.
The doctor who performed the physical examination of the victim has written in support of his test report even when he appeared in the court and said that no evidence was found that the victim had committed any crime.
Defendant and the victim himself admitted that his father did not have a good relationship with the mother. Hence, the defendant is not found guilty, it seems to look like a false allegation. Thus, the defendant is acquitted.