**Rajan Khatiwoda**

# **Homicide Law in 19th-Century Nepal**

# A Study of the Mulukī Ains and Legal Documents

HEIDELBERG UNIVERSITY PUBLISHING

Homicide Law in 19th-Century Nepal

#### DOCUMENTA NEPALICA

#### Book Series; 7

Chief Editor: Axel Michaels

Editorial Board

Heidelberg Academy of Sciences and Humanities Research Unit "Documents on the History of Religion and Law of Pre-modern Nepal"

Manik Bajracharya Simon Cubelic Rajan Khatiwoda Astrid Zotter Christof Zotter

# Homicide Law in 19th-Century Nepal

# A Study of the Mulukī Ains and Legal Documents

Rajan Khatiwoda

#### **Rajan Khatiwoda** https://orcid.org/0009-0007-4824-8450

is a research associate at the Nepal Heritage Documentation Project (NHDP) at the Heidelberg Academy of Sciences and Humanities. He also holds the position of Honorary Leader of the Kathmandu Office of the Śākta Traditions Project at the Oxford Centre for Hindu Studies (OCHS). His main research areas include Hindu legal traditions, Śakta practices, heritage studies, and South Asian political and legal history, as well as the epigraphical culture of South Asia.

This volume has been promoted by the Joint Science Conference of the Federal Government and the governments of the states of the Federal Republic of Germany in the Academies' Programme from the joint funding of the Federal Government of Germany (Federal Ministry of Education and Research) and the state Baden-Württemberg (Ministry of Science, Research and the Arts).

#### **Bibliographic information published by the Deutsche Nationalbibliothek** The Deutsche Nationalbibliothek lists this publication in the Deutsche Nationalbibliografie; detailed bibliographic data are available in the Internet

at http://dnb.dnb.de.

This book is published under the Creative Commons Attribution Licence CC BY-SA 4.0. The cover is subject to the Creative Commons License CC BY-ND 4.0.

Published by Heidelberg University Publishing (heiUP), 2024

Heidelberg University/Heidelberg University Library Heidelberg University Publishing (heiUP) Grabengasse 1, 69117 Heidelberg, Germany https://heiup.uni-heidelberg.de

The electronic open access version of this work is permanently available on Heidelberg University Publishing's website: http://heiup.uni-heidelberg.de urn: urn:nbn:de:bsz:16-heiup-book-1276-5 doi: https://doi.org/10.17885/heiup.1276

Text © 2024, Rajan Khatiwoda

*Cover illustration:* A folio from a *Mulukī Ain* manuscript. The text on it, containing the opening paragraphs of a section on homicide, belongs to one of the versions of the *Ain* prepared between 1865 and 1870. This, along with several other folios from the manuscript, is currently in the possession of the Research Unit: Documents on the History of Religion and Law of Pre-modern Nepal.

ISSN 2568-7867 eISSN 2569-8141 ISBN 978-3-96822-245-5 (Hardcover) ISBN 978-3-96822-244-8 (PDF)

# Contents


#### **Part I: Formation and Enforcement of the** *Mulukī Ain*


vi — Contents




Document 2 (DNA 14/4) 323


# Tables


# Figures


# Abbreviations


xiv — Abbreviations


# Foreword by Saubhagya Pradhananga

The National Archives of Nepal, established in 1967, functions as the officially designated government entity tasked with the curation and conservation of the nation's archival records. Operating in accordance with the Archives Preservation Act of 1989, it has as its core responsibilities collecting, preserving, and facilitating public access to significant manuscripts and documents. Collaborations with both national and international organizations have culminated in the establishment of a network of partnerships.

A prominent example of such collaboration lies in its association with Germany, which resulted in the successful execution of the Nepal-German Manuscript Preservation Project, followed by the Nepalese-German Manuscript Cataloguing Project. In 2018, the Heidelberg Academy of Sciences and Humanities initiated the publication series Documenta Nepalica, aimed at accentuating the importance of Nepal's document heritage for historical research in South Asia and beyond, thus igniting scholarly interest in the country's abundant archival sources.

This volume constitutes a crucial addition to the comprehension of Nepalese legal history, focusing on the study of the articles on homicide extracted from the 1854 and 1870 *Mulukī Ains*. Accompanied by an analysis of contemporaneous legal documents, the study significantly contributes to the understanding of homicide law during the pre-modern era in Nepal. The National Archives of Nepal safeguards not only the oldest extant manuscript of the *Ain* but also manuscripts or prints of subsequent amended versions. Undoubtedly, this publication will serve as an indispensable resource for those seeking to grasp the intricate role of law in shaping modern Nepal as a nation-state.

#### *Saubhagya Pradhananga*

*Director General National Archives of Nepal*\*

\*Mrs. Pradhananga is now the Director General of the Department of Archaeology.

# Preface

This book, a revised version of the doctoral dissertation I submitted to Heidelberg University's Faculty of Philosophy in March 2017 and defended in May 2017, represents the culmination of a four-year research project (2013–2017) supported by the Cluster of Excellence "Asia and Europe in a Global Context" under the German Universities Excellence Initiative.<sup>1</sup> The main ambition of the work lies in a comprehensive investigation into the formation and implementation of the *(Mulukī*) *Ain* of 1854, a foundational legal code with constitutional attributes. Central to this examination is the detailed editing and translation of the articles pertaining to homicide within both the *Mulukī Ain* of 1854 and its successor, the *Mulukī Ain* of 1870. These analyses are juxtaposed with relevant contemporaneous legal and administrative documents, with the aim of providing a robust and contextual understanding of the legal framework. In essence, this study endeavours to serve as a scholarly resource, shedding light on the intricate role of legal systems in shaping modern Nepal's identity as a nation-state, while concurrently delving into the legal evolution and transformation that characterized the 19**th**-century landscape.

I would like to express my heartfelt gratitude to Prof. Dr. Axel Michaels, my supervisor and mentor, without whom the completion of this work would not have been possible. He has been instrumental to my work in virtue of his vast knowledge of Hindu legal traditions, Nepalese legal history, and deep critical thinking within academia. Furthermore, I am immensely grateful to him for extending an invitation to Germany, allowing me to pursue my doctoral studies here. I am indebted to him not only for his countless suggestions and enlightening comments on all sections of this work but also for his significant contributions to the field of Nepalese studies as a whole.

<sup>1</sup> The dissertation was submitted with the title "Formation and Enforcement of the [Mulukī] Ain: Nepal's First Legal Code, Containing the Edition and Translation of the Articles on Homicide in the [Mulukī] Ains of 1854 and 1870, Including Contemporaneous Legal Documents."

I am also deeply indebted to Prof. Dr. Martin Gaenszle for his evaluation of my dissertation and insightful suggestions for its improvement. The final result has been accepted by Prof. Dr. Barbara Mittler, head of the advisory board of the Research Unit: Documents on the History of Religion and Law of Pre-modern Nepal, for publication in the Documenta Nepalica book series, for which I am truly grateful.2

The completion of this work would not have been possible without the inspiration and unwavering support of my dear friends Dr. Manik Bajracharya and Dr. Simon Cubelic. I express special thanks and deep appreciation to them for their invaluable presence throughout this journey, which made the realization of this book possible. Furthermore, I would like to acknowledge with gratitude Dr. Astrid Zotter and Dr. Christof Zotter (along with their sons), who not only provided valuable and constructive suggestions on my work but also warmly welcomed me as a member of their family during my initial days in Germany.

My sincere thanks also go to Prof. Bhim Kandel and my friend Dr. Nirajan Kafle each for their teaching of Sanskrit over the years. Nirajan, in particular, has been an unwavering source of support throughout my personal, student, and professional life, for which I am deeply appreciative. I am indebted to him for his careful reading of and corrections to the final draft of this publication. I extend my gratitude, too, to the late Dr. Albrecht Hanisch and to Anna Hanisch for their constant inspiration.

I would like to acknowledge the support and helpful suggestions of Dr. Dikshya Karki and Dr. Ramhari Timalsina during my research. Special appreciation goes to Sonam Dechen Gurung, Philip Pierce, and Michael M.B. Zrenner for their valuable contributions in reviewing the English. I am particularly grateful to Philip Pierce for his meticulous proofreading and critical comments, which greatly enhanced the quality of this publication.

I express my gratitude to the National Archives, Kathmandu, and its chief, Saubhagya Pradhananga, for granting me access to the historical documents preserved in NAK. The documents discussed in this work are among those featured in the research project "Documents on the

<sup>2</sup> Note that Prof. Dr. Axel Michaels and Prof. Dr. Martin Gaenszle carefully reviewed the successive drafts of this work during the dissertation evaluation process and its subsequent preparation for publication. Their generously supplied expert knowledge significantly rectified many structural and factual issues present in the earlier draft and helped to give shape to the final version. Whatever errors and shortcomings may persist are solely my responsibility.

History of Religion and Law of Pre-modern Nepal." I am thankful for the support received from this project in advancing the understanding of Nepalese religious and legal history.

I want to express my profound gratitude to the Nepal-German Manuscript Cataloguing Project, where I worked for over a decade. This experience played a crucial role in developing my critical thinking skills and deepening my knowledge in manuscriptology. Therefore, I am extremely grateful to all those who were involved in managing and carrying out the project.

I am thankful to our dear friends Josef Sonnen and Gabriele Sonnen for their unwavering inspiration and motivation throughout the process of completing this book. Their presence on the day of my dissertation defence meant a lot to me, and Josef, though no longer with us, will always hold a special place in our memory.

Finally, I offer my deep and sincere gratitude to my family for their continuous and unparalleled love, assistance, and support. I am grateful to my wife, Tsowang Lama, for her steadfast love, inspiration, and support throughout my academic career and our domestic life together. I also extend my thanks to my daughters, sisters, brothers-in-law, nephews, and nieces for always being there for me as friends. I remain forever indebted to my parents for providing me with the opportunities and experiences that have shaped the person I am today.

Heidelberg, 2024 *Rajan Khatiwoda*

# Part I

# Formation and Enforcement of the *Mulukī Ain*

# 1 Introduction

"[N]ew ways of thinking about society, sovereignty and law"<sup>1</sup> do not appear only by way of intellectual discourse. They also continuously emerge within contemporary political culture, either as part of domestic institutional practices or of global social and political developments.2 Such processes should be scrutinized for typology, and for the actual impact they have exerted upon the historical development of the political culture they emerge from. In recent pre-modern Nepalese history, an epoch-making transformation of context-sensitive normative legal practice into a well-defined and operative code of law occurred with the promulgation of the *Mulukī Ain* (hereafter MA, *Ain* or *Ain* of 1854) in 1854. It was Jaṅga Bahādura Rāṇā (1817–1877) who conceived of and initiated the formulation of a standardized binding national code meant to replace the unregulated and locally diverse legal practices of his period by uniting administrative and social, as well as legal practices, within a single governing framework. Although Nepal directly bordered on British India and on China (through Tibet), it was among the few kingdoms in the region that remained autonomous, and indeed maintained its independence from both British India and China. Thus, free from direct foreign interference, the country could define its own social and legal practices as what they conceived of as the last remaining Hindu kingdom of a supposedly 'degenerate era' (*kaliyuga*). This renders it an especially interesting case for the study of both traditional legal practices and Hindu law, which, as stated by B.H. Hodgson, "might puzzle the *Shastrí*s to explain on *Hindú* principles."3

The legal practices in Nepal prior to the mid-nineteenth century lack clear traceability, although there is evidence suggesting sporadic attempts to document such practices in written form since the fourteenth century.4 The *Nyāyavikāsinī* (hereafter NyāV), commissioned by

<sup>1</sup> J.E. Wilson 2007: 22.

<sup>2</sup> See ibid. 23.

<sup>3</sup> Hodgson 1874: 39.

<sup>4</sup> The legal history of Nepal will be presented below (Part I, 1.3).

#### 4 — 1 Introduction

King Jaya Sthiti Malla (r. 1382–1395) in the late fourteenth century, represents an initial step towards a comprehensive written law.5 Written in Sanskrit and Newari, it laid the foundation for further legal development. During the period between unification in 1768 and the rise of the Rāṇā regime in 1846, the king held supreme authority over all matters, supported by royal priests (*rājaguru*),6 members of the royal assembly (*bhāradārī-sabhā*), and various other state and local officials. With the exception of inscriptions, edicts, and administrative documents, legal texts in Nepal until the mid-nineteenth century were primarily based on customary practices or Hindu legal scriptures, adapted with modifications, under the umbrella of divine kingship. The Śāha rulers' centralized government and executive power provided a solid foundation for the establishment of concrete administrative and judicial institutions and the appointment of officials to fill these roles. For instance, the organization and structure of courts, including the Council, Sadar Courts, and District Courts, aimed to enhance control and governance over the provinces.<sup>7</sup> The transition of executive powers from the king to the Rāṇā aristocracy in 1846 marked a pivotal moment in Nepalese administrative and legal history. This event paved the way for the promulgation of the *Mulukī Ain*, a unified legal code. Initiated by Jaṅga Bahādura Rāṇā and enacted during the reign of King Surendra Śāha (r. 1847–1881), the MA went into effect on January 6, 1854 (the 7th day of the bright fortnight of Pauṣa, VS 1910).<sup>8</sup> Although the sources of this significant text, composed in vernacular Nepali, encompassed pronouncements of customary law and the *dharmaśāstras*, they were also decisively influenced by novel political ideas, including the concept of the 'rule of law'. The territorial divisions and legal institutions depicted in the MA reflected close interactions with the Company State, particularly Calcutta, where Nepal stationed ambassadors and envoys,<sup>9</sup> as well as with the Western world. Jaṅga Bahādura Rāṇā, having been the


8 According to J. Fezas, the mentioned date given in the Vikrama Era is equivalent to 1853 Common Era (Fezas 2000: xx). A. Höfer converted this date to 6 January 1854 (Höfer 2004: 3), and A. Michaels to 5 or 6 January 1854 (Michaels 2005b: 7). The 6th of January seems to be accurate (see http://www. cc.kyoto-su.ac.jp/~yanom/cgi-bin/paw314.cgi, last accessed on 01 May 2016). See Khatiwoda, Cubelic & Michaels 2021: 2.

9 See M. Bajracharya, Cubelic & Khatiwoda 2016 and 2017 for a detailed discussion of the role of envoys stationed in Calcutta based on original sources in Nepali.

first prime minister of Nepal to visit London and Paris, encountered the British and French legal systems. The present study topicalizes major problems and points of interest emerging from this first full-fledged legal codification undertaken in Nepal.

#### **1.1 Core Questions**

Until the first half of the nineteenth century, Nepal lacked a robust and functional state-led judicial system, as well as the trained ruling elites or a bureaucratic apparatus capable of implementing a codification project. Additionally, there was no colonial power pushing for such a codification. In this context, the MA stands out as a comprehensive law code with wide-ranging implications, encompassing civil and penal regulations that addressed not only the emerging concept of the nation-state and norms of international diplomacy but also a broad array of social practices. This raises a fundamental question: What were the primary factors that led to the codification of the MA? Despite K.K. Adhikari's argument,<sup>10</sup> the origins of the idea to draft such a code in the isolated region of Nepal have largely remained unanswered. Therefore, the primary objective of this volume is to shed light on the driving forces behind the promulgation of the MA. By examining historical evidence and engaging with relevant scholarship, this study seeks to provide a better understanding of the motivations and circumstances that contributed to the codification of this significant legal document.

Secondly, broadly speaking, scholars who have contributed studies on Nepalese political and social history have developed two different theories about the nature of the Rāṇā polity. The first one, in line with the Hindu *rājyāṅga* theory of R. Kangle,<sup>11</sup> classifies nineteenth- and twentieth-century Nepal as a Hindu kingdom, which was strongly influenced by concepts of divine kingship, according to which the king was believed to be an embodiment of Viṣṇu who had the ultimate right

<sup>10</sup> See Adhikari 1976, 1979 and 1984. Adhikari (1976: 107), for example, opines: "[…] the *Ain* as a whole was partially customary, yet partially written with the times when it was laid out."

<sup>11</sup> See Kangle 1988 [vol. 1 (6.1.1); vol. 3]: 127 for what he considers the main features of a Hindu state, namely a king with the status of divinity, his kingdom, his subjects and normative practices.

of controlling his officials and meting out punishment at will.12 The second (and contrary) approach focuses on the Rāṇā regime's investiture of the prime minister with all three major state powers: executive, legislative and judicial. Thus, invested with the powers and privileges of a sovereign, he dwarfed the role of the concurrent king, now reduced more to a ritual straw man than an actual leader.<sup>13</sup>

However, the above-mentioned depictions of the Rāṇā regime after the promulgation of the MA need to be reanalysed within a larger frame, with consideration being given to the provisions of the MA. The legislative, administrative and judicial autonomy provided by the MA laid the foundation for a constitutional system of government, thereby making it a law code unrivalled in pre-modern South Asian legal history.14 Therefore, the present volume will attempt to re-interpret the existing theories by focusing on the following observable aspects of the MA: (i) developments within the notion of divine kingship, (ii) the conceptual separation between the king and state, (iii) the establishment of a theory of the rule of law, and (iv) jurisdictive autonomy and cooperation between the Council and judiciary.

Thirdly, the prevailing interpretation among scholars influenced by their social, anthropological, and historical perspectives portrays the MA as part of a Hinduization strategy.15 According to this view, the MA aimed to establish the supremacy of Hindu values by reinforcing the caste hierarchy and promoting other Hindu norms. However, a more nuanced philological approach is necessary to determine whether the MA indeed embodies a Hinduization strategy or, more accurately, represents an attempt to create a confessional type of theocratic state. This attempt sought to integrate the diverse social and religious cultures and customs of pre-modern Nepal within a single legal framework, wherein a modified Hindu caste system and certain explicitly Hindu elements albeit significantly deviating from their classical Brahmanical form held dominance. In summary, this volume will focus on the provisions of the code that most clearly necessitate a re-evaluation of existing social-anthropological theories.

<sup>12</sup> Burghart 1996: 193. A. Michaels (2005b: 5–6) similarly argues that god and king were still treated as identical in nineteenth- and twentieth-century Nepal, meaning that there was no clear separation between state and religion.

<sup>13</sup> See H.N. Agrawal 1976: 10.

<sup>14</sup> See M.C. Regmi 2002: 3.

<sup>15</sup> See, for example, Sharma 1977b: 285 and 293, 1983: 18 and Gellner 2007: 1823.

Fourthly, the theories put forth by social anthropologists who have examined the MA have led to uncertainty regarding its sources. Both Western and native scholars' studies commonly assert that the preamble of the MA draws upon Hindu legal scriptures, customary practices, and ways of life.16 This study aims to provide a more precise understanding of the blend of legal sources, customs, and new political thought influenced by both the 'rule of law' and the *dharmaśāstra* that culminated in the formulation of the MA. To accomplish this, selected Articles from the 1854 and 1870 codes pertaining to 'Homicide', which have not received critical scrutiny thus far, will be translated and analysed.

Finally, the question of whether the MA was effectively implemented as the basis of legal practice or whether it remained primarily a theoretical blueprint akin to *dharmanibandhas* (Hindu legal digests)<sup>17</sup> has long been a subject of speculation. Scholars who have studied the MA have yet to reach a consensus regarding its actual application.<sup>18</sup> Some scholars, focused on elucidating pre-modern Nepalese political history, argue that the MA did not bring about any substantial changes in the courts of law during the nineteenth century.19 They contend that the Rāṇā aristocracy disregarded any court procedures outlined in the MA, and that there was a lack of constitutional safeguards to ensure compliance with the code's restrictive provisions. However, such arguments often overlook the extensive range of documents available in private and public institutions in the Kathmandu Valley and beyond. While only a fraction of these documents have been studied so far, the unexplored corpus provides a foundation for understanding the largely unknown history of MA practice in mid- to late-nineteenth-century Nepalese jurisprudence.

The current volume will therefore approach the problem of the implementation of the MA through a critical examination of nineteenth- and twentieth-century documents concerning criminal cases and civil law. By analysing these materials, it seeks to shed light on whether the MA was merely a legal text referenced but not universally applied or whether it held normative force across the country. To tackle these concerns, specific provisions from the 1854 edition of the

<sup>16</sup> See 'The State of Research' below for further discussion.

<sup>17</sup> *Dharmanibandha*s constitute a genre in the encyclopaedic commentarial tradition of *dharmaśāstra* literature.

<sup>18</sup> See, for example, Höfer 2004, K.K. Adhikari 1984, Fezas 2000 and Michaels 2005b. For more information, see Part I, 3 'The *Mulukī Ain* in its Application' below.

<sup>19</sup> See, for example, H.N. Agrawal 1976: 12 and M.C. Regmi 2002: 4.

MA and other relevant amended editions will be edited, translated, and analysed. Additionally, a translation, examination, and comparison of the Articles on 'Homicide' in the 1854 and 1870 editions of the MA will be conducted, preceded by an examination of the root texts. The study will also delve into the legal practices in mid-nineteenth-century Nepal, drawing on editions and translations of various documents preserved in the National Archives, Kathmandu (NAK).

#### **1.2 The State of Research**

Both native and Western scholars have studied the MA, on account of its historical and legal significance to South Asian legal history. Most of the studies have been carried out by social anthropologists, cultural historians, historians or law practitioners focusing on specific aspects of the MA depending on their personal research interests. The core textual sources which bear the constitutional characteristics of the code, e.g., the Articles 'On the Throne' (*gaddī*), 'On Legislation' (*rājakāja*) and 'On Court Management' (*adālatī bandovasta*) have not been studied by those scholars who did anthropological studies being based either on only certain aspects of the MA upon their individual interest or not taking the textual evidence into account for their main arguments. For example, R. Burghart's theory on the concept of a nation-state in Nepal during the nineteenth century would have been shaped differently,20 had he consulted the Article 'On the Throne' as well as 'On Legislation'.21 Moreover, a large corpus of documents which reflects the realities of the eighteenth/nineteenth century legal and social practices of Nepal as well as the enforcement of the code have not been so far extensively dealt with. Barring a few instances, even the available translations of some of the Articles of the code are rather a *paraphrasis* based on its first amendment.

A reprint edition of the original *Mulukī Ain* as first amended in 1865–1867 (VS 1922–1924) was published in 1965 (VS 2022) by the Ministry of Justice; His Majesty's Government of Nepal.22 After this,


<sup>20</sup> See, Burghart 1984: 101–125 for his discussion on kingship and identity formation in the nineteenth century Nepal.

the MA started receiving more scholarly attention.23 Apart from a few exceptions,24 all major contributions to the MA are based not on the original code but on the first amended version of it. Scholars often consider MA-ED2 to be the original version of MA 185425—and in doing so mostly refer to A. Höfer.26 Nevertheless, MA-ED2—as stated in the 'preface' of the printed edition—is not based on the copy of the *Ain* prepared in 1854. Rather, as stated, the edition was prepared on the basis of the amended version. The edition published by J. Fezas in 2000 is based on several manuscripts: Original manuscripts containing the all Articles of MA 1854 and what probably underlay the first amended copy composed in 1865–1867.27 J. Fezas' edition is therefore a compilation of sources, namely original folios containing the Articles prepared in 1854 and the first amended version prepared between 1865 and 1867.

The major contributions to the study of MA can be categorised under four main pillars, based on the nature of their approaches:

#### a) The social-anthropological approach

A. Höfer, who was assisted by the cultural historian and social scientist P.R. Sharma,28 is one of the major contributors to the anthropological study of the caste system as codified in the first amended version of the MA. He published his study in 1979 and came out with a second edition in 2004. Höfer extensively treats MA Articles relating to caste, untouchability, liquor consumption, purity and pollution, and similar subjects. Sharma is right in saying that

… barring a couple of articles in the 1960s and the 70s, which amounted to no more than scratching its surface, no scholar before him [i.e., A. Höfer] had turned his attention to tap the


<sup>23</sup> See for example, Gaborieau 1966, Macdonald 1968 (English translation in 1976), and Höfer 2004.

#### 10 — 1 Introduction

wealth of social and cultural material contained in the MA in an exhaustive manner.29

Höfer has analysed most of the pronouncements that have any relevancy to caste, e.g., marriage, death, untouchability and so forth. One of the conclusions he draws is that "caste constitutes the primary organizing principle; caste status is indeed, the chief factor determining an individual's juridical status.…" <sup>30</sup> He justly notes that caste is a prime consideration in matters having to do with purity and pollution, such as marriage, adultery, the relationship between servant and master and so forth. However, his study does not deal with many other issues in which caste is of little or no relevance at all. For example, in subjects such as choice of occupation, trade and commerce,<sup>31</sup> confiscation of a criminal's property, disputes between tenants and landlords, revenue management, disagreements over debt and credit, decisions affecting women's property (*strīdhana*) and many other important issues, caste is not a consideration. If Höfer's study had not explicitly targeted caste-related Articles, his conclusions probably would have taken a different shape. Since it did, though, it gives readers the impression that the MA itself created a strong hierarchical caste society. However, the MA merely refashioned a caste hierarchy, which had already been firmly rooted in society evidently from Jaya Sthiti Malla's time. It made the pre-existing system more flexible in regard to many issues, such as occupations, trade and so forth. Significantly, Höfer discusses neither about the rationale behind the codification nor the constitutional features of the code, nor does he turn his attention to its implementation.

#### b) Philological approach

J. Fezas and A. Michaels have been major contributors of linguistic and historical scholarship on the MA.32 Both have discussed to what extent the regulations in the MA are based on *dharmaśāstra*s. Fezas has dealt among other topics with the Articles 'On Sodomy' and 'The Law of Succession'.<sup>33</sup> He has also identified a number of sources used


<sup>29</sup> Sharma 2004: xvi.

<sup>30</sup> See Höfer 2004: 196.

<sup>31</sup> Höfer (2004: 196) himself has observed that caste is irrelevant to trade and commerce.

by the code based on its first amended version.34 In 1990, he completed a major archival research effort to establish the original 1854 version of the code, which had hitherto been unknown to scholars. His findings relating to the different versions of the code revealed that the printed MA (MA-ED2) lacks many important chapters, namely ones which contain most of the important parts of the MA serving to define its constitutional character. The findings resulted, in 2000, in the first published edition of the original code of 1854 (MA-ED1), which not only contains many missing chapters that were not incorporated into the MA-ED2 but also yields a clear outline of the amended version in virtue of having restored many legal provisions that were deleted. This pioneering first edition thus lays the groundwork for the philological study of the MA. However, as pointed out by Michaels, Fezas's editorial methodology is not particularly reader-friendly, and indeed sometimes barely understandable.35 Therefore, further work remains to be done to prepare a critical edition of the code of 1854.

Michaels's major publications on the MA deal with ritual selfimmolation (*satī*),36 the law on the killing of cows (*govadha*)37 and the office of religious judge (*dharmādhikārin*<sup>38</sup>).<sup>39</sup> The first two studies are based on the amended version of the MA (MA-ED2); the last is based on the original version. He has prepared an edition of the Article 'On the Religious Judges' of MA 1854 and MA 1888 based on several manuscripts from the NAK, recording variations, additions, deletions and so forth in footnotes which, in comparison to Fezas's edition, makes studying the text less arduous. His study of this particular Article, followed by translations of it in the two versions of the code (1854's and 1888's), is the result of pioneering research on the practice of religious penance as incorporated into the code. His conclusions regarding the role of the religious judge being mainly based on the normative ideas laid down in the text. More documented evidence on the implementation of the MA is needed to substantiate his argument that the religious judge was a chief judge<sup>40</sup> rather than a minor state agent whose



<sup>34</sup> See Fezas 1986a.

<sup>37</sup> See Michaels 1997.

task was merely to ritually purify somebody if ordered to do so by the authorities or courts.41

# c) Historical approach

M.C. Regmi, K.K. Adhikari, T.R. Vaidya, and T.R. Manandhar have made notable contributions to the historical study of the MA. M.C. Regmi played a crucial role by commissioning translations of numerous Articles from different versions of the code.42 Since his main goal seems to have been the collection of materials for the purpose of his research on the history of modern Nepal and its economy, his translation seems to be rather free and, as indicated by Michaels, is short on a detailed understanding and interpretation of the MA.43 Regmi does briefly discuss the constitutional character of the code, focusing on some of the provisions, which granted considerable autonomy to judicial and administrative institutions.<sup>44</sup> However, he argues that the code was not implemented at all.<sup>45</sup>

K.K. Adhikari's work, "Nepal under Jang Bahadur 1846–1877," is widely regarded as one of the most significant publications in Nepalese historiography, drawing references from conjectured original sources. Adhikari primarily worked with the first amended version (MA-ED2) of the code, delving into its significance, the general rules of judicial proceedings, and the observed reforms and changes from previous practices in the MA. However, his discussion of the code's sources, based solely on its preamble, does not present any new arguments.


Adhikari strongly opposes the notion of any British legal influence on the code but fails to address the sudden incorporation of ideas such as notional judicial autonomy, the emerging concept of the rule of law, investing the Council with executive power, and implementing checks and balances among the Council, court, and king. Regarding the law on homicide, Adhikari simply informs readers that the code addresses both premeditated and unintentional cases of homicide. He does not explore the rationale behind the codification or its implementation.

T.R. Vaidya and T.R. Manandhar for their part have jointly studied penal law in ancient, mediaeval and modern Nepal, offering during their discussion of pre-modern Nepal a short empirical overview of the law on homicide and other crimes addressed in the MA. They attempt to analyse legal history on the basis of case studies, using statistical methods targeting litigants, petitioners and other figures in the legal process. They make an initial attempt, too, to shed light on the implementation of the code, mostly based on contemporaneous accounts of Western historians, such as Captain Orfeur Cavenagh's notes, H. Oldfield's account and D. Wright's history of Nepal.46 Therefore, a substantial study based on further documented evidence is required to validate their arguments.

#### d) Approaches of native law practitioners

Nepalese law practitioners represent the fourth pillar of the study of the MA. For example, the studies carried out by B.B. Karki and R.B. Pradhananga should be briefly discussed. Karki's short study, again based on the first amended version of the code, presents a cursory overview of its characteristic features, relying mainly on the preamble of the code: viz. that it (i) was promulgated by one of three monarchs (i.e., Rājendra Śāha, Surendra Śāha and Trailokya Śāha,<sup>47</sup> (ii) contains

<sup>46</sup> See Cavenagh 1851: 60–63, Oldfield 1974: 245, and Wright 1877.

<sup>47</sup> Although Trailokya Śāha is addressed as a *mahārajādhirāja* 'supreme king of great kings' in the *lālamohara* promulgating the MA, he died in 1878 as the 'crown prince' (*yuvarāja*). The *lālamohara* reads: *svasti śrīgirirājacakracūḍāmaṇinaranārāyaṇetyādivividhavirūdāvalivirājamānamānonnataśrīmanmahārājādhirājaśrīśrīśrīmahārājatrailokyavīravikramasamserajaṅgavahādūrasāhavahādūradevānā*[ṃ] *sadā samaravijayinām*. "Hail! [A decree] of him who is shining with manifold rows of eulogy [such as] 'The venerable crest-jewel of the multitude of mountain kings' and *Naranārāyaṇa* (an epithet of *Kṛṣṇa*) etc., high in honour, the venerable supreme king of great kings, the thrice venerable great king, Trailokya Vīra Vikrama Samsera Jaṅga Bahādura Śāha Bahādura Deva,

the concept of equality before law—but on the basis of caste, (iii) was enacted through the Council, (iv) addressed to the authorities and subjects, and (v) proclaimed equality before the law.<sup>48</sup> Pradhananga's study on homicide law in Nepal provides a concise examination of the pertinent Articles of the MA as expressed in the first amended version of the code (MA-ED2). The study offers an empirical overview of the regulations governing the treatment of homicide in the MA. However, it falls short in considering the original version of the code, resulting in an incomplete depiction of the MA's homicide law. This limitation is understandable, considering that the primary objective of the study was to specifically focus on homicide law in modern Nepal.<sup>49</sup>

There is a veritable plethora of other studies, which simply refer to the MA but do not deal with the text proper; being instead content simply with reiterating pre-existing ideas put forward by the major contributors.<sup>50</sup>

#### **1.3 The Legal History of Nepal**

The MA did not emerge from a vacuum, but was based on practices and on pre-conceptions of the long history of Nepal's legal traditions, so that it is worth considering the earlier development of legal procedures in order to identify factors, which may have directly or indirectly contributed to the development of the later extensive and sophisticated code.

As mentioned before,51 Nepal was among the few kingdoms in the region that were not colonized; thus, the country could institute its own social-legal practices without any direct foreign (British) interference. This is made all the clearer by the fact that the referents of the Nepali vernacular term *kṛstān* (Christian) are explicitly categorized as Water-unacceptable Caste (*pānī nacalnyā*) in the MA, which indicates that the British had little if any say when it came to the legal code of mid-nineteenth century Nepal.52 Had they had, the status of Christians

the brave swordsman, the divine king always triumphant in war." (See MA-ED2/ preamble).

52 See MA-ED2/87 §  2 and 159 §1.

<sup>48</sup> See Karki 1979: 1–6.

<sup>49</sup> R.B. Pradhananga (2001: 29 and 32–39) has included "an unofficial translation" of the Article on 'Homicide' based on the first amended version of the code in the appendix.

<sup>50</sup> See, for example, Riccardi 1977: 29, Levy 1990: 107, Burghart 1996: 252, and Shrestha 1999: 281–288.

<sup>51</sup> See Part I, 1.2.

would have been comparatively greater. Regarding the issue of bodily purity, the MA treats Christians similarly to Muslims (*musalmān*),53 blacksmiths (*kāmī*), leatherworkers (*sārkī*) and tailors (*damāi*).54 Further, the MA explicitly defines the country as the only remaining Hindu kingdom in the Kali era, which meant that Nepal considered itself able to protect its autonomy from the British, not only politically but also culturally. For example, the MA prohibits both charitable donations to and cash investments in foreign countries, and gives the following reasons:

This is a Hindu kingdom whose *Ain* is such that it bans the killing of cows, women, and Brahmins; an independent land of such merit, with a palace, [situated] in the Himalayas (*himavatkhaṇḍa*), the land of the serpent king Vāsukī (*vāsukīkṣetra*),55 a place of pilgrimage for *Āryas*, one that contains Paśupati's Jyotirliṅga and the venerable Guhyeśvarīpīṭha. This is the only Hindu kingdom in the Kali era.<sup>56</sup>

Starting with the Malla era, the legal history of Nepal can be divided into following seven phases: i) the early mediaeval period, from the beginning of the Malla period to before Jaya Sthiti Malla (r. 1382–1395), ii) the high mediaeval period, starting from Jaya Sthiti Malla until the unification under King Pṛthvī Nārāyaṇa Śāha (r. 1743–1775),57 iii) the early Śāha or pre-Rāṇā time, from Pṛthvī Nārāyaṇa Śāha up to the seizure of executive power by Jaṅga Bahādura Rāṇā, iv) the Rāṇā period, from 1846 to 1950, v) the initial post-Rāṇā period, from 1951 to 1990, vi) the constitutional multi-party system (1990–2015), and vii) the constitution of the Federal Republic of Nepal with the abolishment of the monarchy (since 2015). In this section, only a brief outline of the legal history of Nepal before the emergence of the MA will be discussed.

<sup>53</sup> Dastider (2007) discusses the status of Muslims in Nepal's pluralistic society.

<sup>54</sup> For example, *kṛṣtān musalmān kami sārkī damai gaihra pānī nacalnyā jāta ra choi chiṭo smet hālanu parnyā jātale* […] (MA-ED2/87 §  2).

<sup>55</sup> The serpent-king Vāsukī is one of the three main kings of the *nāga*s, the other two being Śeṣa and Takṣaka (see MW, s.v. *vāsukī*).

<sup>56</sup> *hiṃduḥ rāja gohatyā nahunyā strihatyā nahunyā vrahmahatyā nahunyā esto aina bhayāko darvāra himavatṣamḍa vāsukīkṣetra ārjyātirtha jyotirmaya śrīpaśupatiliṃga śrīguheśvarīpiṭha yasto puṇyabhumī āphanu muluka chadā chadai kalimā hiṃduko rāja yehī muluka mātrai cha*. (MA-ED2/1 §1).

<sup>57</sup> He ascended the throne of Gorkha in 1743, conquered Kathmandu and Patan in 1768, and conquered Bhaktapur in 1769 (Slusser 1982 [vol. 1]): 402.

#### 1.3.1 The Pre-mediaeval Period

Even though manifold and rich examples of the theory of Brahmanical jurisprudence in ancient India have been handed down to us, historical material on the actual legal practice has hardly been preserved.58 Nepal is no different in this respect. Many authors who have written on legal aspects of Nepalese history claim that until Jaya Sthiti Malla the legal praxis in Nepal was largely based on Brahmanical scriptures of Hindu law (i.e., *dharmasūtra*s, *-śāstra*s and *nibandha*s).59 However, without solid evidence this claim remains questionable. First, there has already been a long discussion about whether the Brahmanical law scriptures were meant to be enforced for specific geographical regions and social groups or were rather merely scholarly compositions, for all that they may have been applied to a certain extent in some regions.60 Second, despite all the discussion, it is still not clear whether contemporary society was governed according to customary practices (*ācāra*) or according to legal practices grounded completely in the *dharmaśāstra*, -*sūtra* and -*nibandha* texts. There is no doubt that one of the sources of the dharmashastric texts was customary practices,61 but it is hard to argue that the Brahmanical law scriptures could have entirely incorporated the practised customs of all the geographically and culturally diverse territories and societies of the ancient Indian subcontinent so as to have resulted in a universally acceptable law code. Thus, the question of legal praxis in ancient Nepal (before Jaya Sthiti Malla) still cannot be precisely resolved, even if there has been some speculation on the basis of limited sources.

The documented legal history of Nepal starts with around two hundred inscriptions from the Licchavi period.62 Since these are written in Sanskrit, it is plausible that Sanskrit was the main language of the Licchavi elite. These inscriptions indicate that the rulers were interested in their subjects enjoying a high standard of justice. For example, the Licchavis divided their kingdom into several subdivisions including

58 See Michaels 2010: 61.


<sup>59</sup> See, for example, Dh. Vajracharya 1967, Vaidya & Manandhar 1985 and R.R. Khanal 1976.

*grāma*, *tala* <sup>63</sup> and *draṅga* 64 for better governance.65 Similarly, the four state offices known as *kuthera, śullī, ligvala, māpcoka* were introduced for a quick and effective disposal of lawsuits. The *grāmapāñcālī*, a local judicial body, was granted considerable jurisdiction to take decisions regarding theft, robbery, homicide, adultery and other offences. According to Dh. Vajracharya, the effective juridical procedures put in place by the Licchavis was one of the important characteristic features of their governance. According to R.R. Khanal, the chief judicial official used to be appointed from among the members of the royal family; he had responsibility for dispensing justice on the basis of *śruti*s and *smṛti*s.66 Although there is not enough evidence to determine clearly the sources of justice during Licchavi rule, arguments have been made on the basis of some available inscriptions that the classical Brahmanical legal scriptures were the main sources of the Licchavi justice system.67 The inscription of Aṃśuvarman (r. 605–621) in Handigaon is one of the notable examples of the king expressing great joy in preparing rules and regulations.68 Further, the pillar inscription of Anuparama69 at the Satyanārāyaṇa Temple of Handigaon shows that the *Manusmṛti*, *Yamasmṛti* and *Bṛhaspatismṛti* were consulted by the Licchavis.<sup>70</sup>


Although Dh. Vajracharya argues on the basis of the above-mentioned inscriptions that the Licchavis enforced Brahmanical law scriptures as part of their judicial practice,71 the extent to which they were used in law cases remains unknown.

# 1.3.2 Mediaeval Period

Jaya Sthiti Malla was the first ruler to take initial steps on the road to a written law code by having the NyāV (before 1379) produced in both Sanskrit and vernacular Newari.72 According to the *Nepālīkabhūpavaṃśāvalī* (hereafter NBhV), Jaya Sthiti Malla had formed a group of five pundits, Kīrtinātha Upādhyāya, Raghunātha Jhā, Śrīnātha Bhaṭṭa, Mahīnātha Bhaṭṭa and Rāmanātha Jhā, in order to introduce legal reforms.73 Since the Sanskrit version of the NyāV was for the most part a commentary on the fourth canto of the *Nāradasmṛti* (henceforth NārSm),<sup>74</sup> little similarity to positive law can be observed in it.75 Although the extensive NyāV can be considered more a rewriting of a Brahmanical law text than an independent work, it is an important initial foundation for the development of codified law in Nepalese legal history. The Newari version of it, shrouded in the complexity of the mediaeval vernacular Newari language, is still untranslated.76 According to D.R. Panta, it is not a literal translation of the root text. In most verses, it differs from the Sanskrit version.<sup>77</sup>

Bṛhaspati, and Uśanas, the way of performance of duties is 'stated'." Ed. and tr. in D. Acharya 2007: 41 and 47.


After Jaya Sthiti Malla, the regulations attributed to King Mahendra Malla (also written as Mahindra, r. 1560–1574)78 are noteworthy in that they served as a model for subsequent rulers.<sup>79</sup> In one regulation, he addresses the village heads of his kingdom and directs them not to indulge in gambling but to work in the interests of the subjects. He further ordered them to speak the truth and resolve local disputes locally. He also advised his subjects to trade and to work with other provinces of other kings in order to bring new skills to their own kingdom.

Besides the Licchavi kings Mānadeva I (459–505) and Aṃśuvarman, as well as Jaya Sthiti Malla, many authors attribute to Rāma Śāha, the fourth king of Śāha dynasty, a decisive role for the introduction of written law.80 Rāma Śāha promulgated a considerable number of royal edicts and decrees (hereafter RŚEdict) in order to reform the justice system. For example, he made a provision that family members of an adulterer who did not participate in the adultery were no longer to be held responsible.81 The principle of individual liability thus replaced earlier forms of collective liability.82 The RŚEdict introduced a scientific system of areal and weight measurement, fixed the maximum interest on debt, regulated disputes regarding land irrigation and oil pressing, controlled deforestation and addressed other subjects. However, T. Riccardi has questioned the historicity of the RŚEdict. According to him, the language used in it bears characteristic features of the late eighteenth and early nineteenth centuries, and consequently it cannot be a product of the fifteenth century.<sup>83</sup> Moreover, the RŚEdict carries late grammatical features of Nepali language in comparison to the Rānī Pokharī inscription of Pratāpa Malla (r. 1641–1674), whose date corresponds to 1670.<sup>84</sup> Therefore, I assume that the extant text represents an eighteenth or nineteenth century recording of the lost original that was adapted to the language and practice of that period.


<sup>78</sup> See Slusser 1982 (vol. 1): 68, 89.

<sup>79</sup> See B.R. Acharya & N. Yogi 2013, and translated in M.C. Regmi 1971: 123.

<sup>80</sup> T. Riccardi (1977: 32 fn. 8) argues that Rāma Śāha's edicts were not organized written codes in the mould of Jaya Sthiti Malla's attempt at reforming a caste system in Nepal.

#### 1.3.3 Pre-Rāṇā Period

From the late eighteenth century onward, there are more sources available, allowing for a more nuanced understanding of the legal praxis of the pre-Rāṇā period.85 These sources emerged in consequence of the state-building project initiated by Pṛthvī Nārāyaṇa Śāha, who started the quest of unification by conquering the *bāisī-rājya* ('twenty-two principalities'), a group of petty kingdoms centred in the Karṇālī-Bherī river basin, and the *caubisī rājya* ('twenty-four principalities'), a group of sovereign and intermittently allied petty kingdoms in the Gaṇḍakī river basin. To be sure, even though in Nepalese nationalist historiography Pṛthvī Nārāyaṇa Śāha's wars of expansion often have been portrayed in terms of unification,86 they were rather merely an attempt to enlarge the territory of the Gorkhā kingdom. This expansion reached a climax when he conquered the economically and culturally rich Malla kingdom of Kāntīpura (Kathmandu) in 1768,<sup>87</sup> which indeed provided a solid base for a unified Nepalese state. Pṛthvī Nārāyaṇa Śāha's reign represents both in institutional and ideological terms a 'critical juncture' in that it set the course for the formation of a Nepalese state, identity, and ideology. Even though several regulations included in the MA seem to have been laid down by this king,88 there is no direct link leading from his legislative measures to the MA. Pṛthvī Nārāyaṇa Śāha in his political testament, the *Divyopadeśa* (c. 1774, henceforth DivU),<sup>89</sup> expressed a wish to lay down edicts of his own,90 but the document has rather to be interpreted as an attempt to emulate legitimatory practices of preceding rulers than as formulating a systematic and comprehensive legislative statutory law.<sup>91</sup> Therefore, legal initiatives during his and his successors' times before the establishment of the Rāṇā regime largely


consisted in orders given in reaction to particular judicial cases of limited scope and were embodied in such types of documents as *rukkā*s (missive),92 *lālamohara*s (royal deed),<sup>93</sup> *sanada*s94 or royal edicts issued in order to establish the ruler as the supreme authority in legal matters.

After Pṛthvī Nārāyaṇa Śāha, Bahādura Śāha (r. 1785–1794) introduced some regulations relating to land reform. For example, he issued a *rukkā* in 1791 in which he ordered that land located east of Sindhu Naldum, west of the Dudh Koshi, north of the Mahabharat range, and south of Listi and the border with Bhoṭa (i.e., Tibet) be surveyed. He also set tax rates according to the quality of land: Four rupees for twenty *murī*s95 of first-grade land (*abbala*)96, three for twenty *murī*s of second-grade land (*doyam*),97 and two rupees for twenty *murī*s of thirdgrade land (*sima*).<sup>98</sup>

King Raṇa Bahādura Śāha (r. 1777–1799) issued a *savāla* <sup>99</sup> in 1806, which contains forty sections.100 It addresses the *subbā*s101 who have been sent throughout the country, west of the Kanaka-Ṭiṣṭā river system and east of the Mahākālī. The *savāla* regulates such matters as bribery, disputes between landlords and tenants, revenue collection, land cultivation, misuse of ritual objects in temples and bodily impurity.

Another key figure of the pre-Rāṇā period for the introduction of clearly formulated written law was Ujira Siṃha Thāpā (1795–1824). A nephew of Prime Minister Bhīmasena Thāpā and son of Amara Siṃha Thāpā, the commander of the Nepalese army during the Anglo-Nepalese war of 1814–1816, he was appointed by Bhīmasena Thāpā as colonel of the Royal Army and stationed in Pālpā as a frontier governor.102 In 1822, he prepared a short but noteworthy legal statement


#### 22 — 1 Introduction

(called *Ujira Siṃhako Ain*, henceforth UjAin)103 mainly regarding military affairs, but also dealing with civil legal matters and judicial procedure. As indicated by J. Fezas, this *Ain* set forth recommendations for legal reform rather than being a proper piece of legislation in itself.<sup>104</sup> Indeed, many of these rules had a direct influence on the MA. For example, Ujira Siṃha Thāpā proposed strengthening evidential law applied during judicial proceedings and enhancing the independence of court decisions.105 In the MA, we find very similar provisions regarding the interrogation of accused persons and the same procedures when imposing punishment.106 When property is confiscated, for instance, Ujira Siṃha Thāpā recommends that only the property of the offender should be taken; and not that of his son, father or brother, though. In line with this provision, the MA also explicitly states that only the offender's share of property—what he is entitled alone to receive in accordance with the *Ain*—should be confiscated.107 This undertaking by a member of the aristocratic elite of preparing legal recommendations in code-like form went a long way towards promoting the idea of a formal codification among the rulers. The explicit mention of the British court system as a model by Ujira Siṃha Thāpā indicates that his endeavour was influenced, to some extent, by his interaction with the colonial legal system.108

In 1826, some years after Ujira Siṃha Thāpā finished his code, King Rājendra Śāha (r. 1816–1847) issued several regulations regarding the management of the judicial system.109 In one of these regulations, equality under the law is specifically enjoined, while others illustrate it. For example, the first rule instructs Dalabhañjana Pā̃ḍe to hear complaints filed against royal priests, ministers, local, central and high administrations by any subject irrespective of caste status, position or


<sup>103</sup> See NGMPP B 280/23, also transcribed in Dangol 1983 and D.R. Panta 1991: 37–59.

financial status. Later, this concept of legal equality was included with the same phrasing in the preamble of the MA proclaimed by Rājendra Śāha,110 although the MA itself did not follow this principle.

In the Śāha period, we have more sources not only on legislation, but also on the judicial administration. Jurisdictional institutions were already well structured during the end of the Śāha period before the onset of the Rāṇā regime. B.H. Hodgson paints the following picture of legal institutions in mid-nineteenth-century Nepal (before the promulgation of the MA).111 There were four major legal courts in Kathmandu: the Iṭācapalī,112 Koṭīliṅga, Ṭaksāra and Dhanasāra*.* These courts were responsible for adjudicating both civil and criminal cases. In addition, there were two minor courts: The (Sadara) Daphdar Khānā113 was responsible for disputes regarding land assigned to soldiers as *jāgira*, <sup>114</sup> while the Chebhaḍela115 dealt with legal disputes pertaining to disputes between families. Any subject who lived in the kingdom was permitted to file a civil case at any of these four courts, while criminal cases had to be heard in the Iṭācapalī. The other courts were subordinated to the Koṭīliṅga, where a *ḍiṭṭhā* <sup>116</sup> was appointed as the chief judge for appellate cases. This *ḍiṭṭhā* served as chief judge for all the four courts, with two *bicārī*s,117 one *jamdāra/jamadāra*, <sup>118</sup> twenty-five soldiers, twenty-five *mahāniyā*s */mahānes*, <sup>119</sup> and five peons being appointed to each of the courts in the capital. The prime minister stood as a supreme authority, and the first (i.e., penultimate) authority of appeal. Petitions could be addressed to him if a person was not satisfied with the decision of the courts. If the prime minister failed to


#### 24 — 1 Introduction

satisfy him, the appellant could still appeal to the king as a last resort. The king then decided the case after consulting with the Court Council (*bhāradārī sabhā*)120 in a session witnessed by a *dharmādhikārin*. 121 The *dharmādhikārin/dharmādhikāra* was present only on certain occasions, acting among other things as the main judge during impurity trials.122 He was responsible for enforcing traditional Brahmanical regulations and customary laws relating specially to penance and other religious practices, and for granting expiation (Nep. *patiyā*, Skt. *prāyaścitta*)123 and issuing a short note (*patiyāpūrjī*) to reinstate into their caste persons who had been polluted through an impure act as defined in the customary practices. Apart from the mentioned courts in the capital, there were two provincial courts in the west, in Pālpā and Ḍoṭī, where *bicārīs* were sent by when necessary. The provincial courts were not allowed to hand down decisions upon the following five offences: killing a Brahmin (*brahmahatyā*), killing a woman (*strīhatyā*), killing a child (*bālahatyā*) and illicit sexual intercourse (*pātakī*). A lawsuit relating to these five offences had to be forwarded to the higher courts. Besides the central and provincial courts, a local legal body called a *pañcāyata/pañca*<sup>124</sup> exercised certain jurisdictive powers*.* The *pañcāyata* was neither a government body nor a permanent local body. A *ḍiṭṭhā* had the right to form a local legal body for the settling of minor lawsuits. No one could be a member of a *pañcāyata* without the consent of both parties, the complainant and defendant. Further, any decision of a *pañcāyata*—if the decision was satisfactory to the both parties—had to be referred to the upper courts for enforcement. Although the Śāha period witnessed both the establishment of a hierarchical court structure and initial attempts at legal codification, it was only after the ascendancy of the Rāṇā family that the idea of codification gained momentum, as will be explored in the following section.


<sup>120</sup> During that period, four *kājī*s, four *saradāra*s, four eminent men of high character, one *ḍiṭṭhā* and one *bicārī* were the members of the Court Council (Hodgson 1880 [vol. 2]: 213).

<sup>121</sup> A judge in the religious jurisdiction whose primary responsibilities involve granting expiation and rehabilitation to individuals considered polluted. This term is exclusively used for Brahmins.

<sup>122</sup> See Michaels 2005b: 11–12.

#### **1.4 The Emergence of the MA**

#### 1.4.1 Overview

The period from the second half of the eighteenth century to the beginning of the twentieth century has been widely characterized as an 'age of codification' in legal history, as discussed elsewhere.125 This era witnessed the proliferation of legal codification across Europe, with Prussia (1794), France (1804), and the Habsburg monarchy (1812) serving as initial catalysts, followed by subsequent waves of codification throughout the continent.126 According to the prevailing narrative, this phenomenon was primarily driven by an increasing number of legal experts, the rising bourgeoisie's demand for a rational and predictable legal framework, and the integration of liberal principles within the emerging nation-states of Europe.127 Consequently, this process of rationalizing and modernizing legal systems ultimately paved the way for the concept of constitutionalism, which fundamentally transformed the basis of state power legitimation in Europe.<sup>128</sup>

It is noteworthy that legal codification was not limited to the Western world alone; it also exerted significant influence in non-colonial Asia. Among the instances in this region, the *Mulukī Ain* stands out as an exception to the aforementioned narrative of codification leading to constitutionalism. In the early nineteenth century Nepal, the conditions necessary for such a codification project—such as a well-established body of professional jurists, a politically aware bourgeoisie capable of fostering such initiatives, or the pressure from a colonial authority were absent. Moreover, Nepal remained under the framework of divine kingship during the nineteenth and twentieth centuries, wherein the king, perceived as a manifestation of Viṣṇu, held the ultimate authority to mandate penalties through his appointed officials. As R. Burghart highlights, "at the turn of the nineteenth century, the king of Nepal saw himself as a divine actor in his realm, considering himself an embodiment of the universal god Vishnu, and his palace was revered as a temple."129 Additionally, A. Michaels notes that god and king were treated as identical in Nepal, indicating a lack of clear separation between


<sup>125</sup> See Cubelic & Khatiwoda 2017. The first and second passages in this section (1.4.1) are taken from this paper.

the realms of state and religion.130 Therefore, the endeavour to introduce a legal code that would bind the king to specific regulations was a unique and formidable task specific to Nepal.131 This ambitious project of establishing a comprehensive national legal code became intertwined with the re(formation) of the Nepalese state in the latter half of the eighteenth century.

The foundation of modern Nepal goes back to Pṛthvī Nārāyaṇa Śāha, who expanded his territory by conquering many other petty royal provinces and established a strong, unified kingdom after he conquered Kathmandu in 1768. After unification, the king figured as the supreme authority in all matters, and was assisted by the royal priests (*rājaguru*s) and members of the royal assembly (*bhāradārī sabhā*). Pṛthvī Nārāyaṇa Śāha ruled his kingdom as an absolute monarch who controlled all levels of power in administrative, legislative and judicial matters. This strong executive power and the centralized government of the Śāha kings lay a solid ground for the development of concrete administrative and judicial institutions staffed with loyal functionaries. For example, such officials as the *cautarīyā*, <sup>132</sup> *kājī*, <sup>133</sup> *saradāra*, <sup>134</sup> *kaparadāra*, 135 *khajāñcī*, <sup>136</sup> *ḍiṭṭhā*, *bicārī*, *subbā*, *dvāryā/dvāre*, <sup>137</sup> *caudharī*, <sup>138</sup> *nāike*<sup>139</sup> and *hajuriyā* 140 were deployed throughout the kingdom in order to keep a firm grip on the provinces.<sup>141</sup> Thus, when the Rāṇā aristocracy seized


executive powers from the king in 1846, a solid foundation for a unified legal code was already in place, and within a decade, the promulgation of the MA became a turning point in Nepalese administrative and legal history. The driving force behind the codification project was Jaṅga Bahādura Rāṇā, the country's de facto ruler, who oversaw a shift away from the country's diverse judicial practices towards a common set of laws. In the following section, I shall first briefly discuss the political scenario during Bhīmasena Thāpā's prime ministership, the turmoil after his fall and the rise of Jaṅga Bahādura Rāṇā, which events not only resulted in the disempowerment of the king for the first time in Nepalese monarchical history, but also represented a milestone in the process of establishing a nation-state, one of whose cornerstones was Jaṅga Bahādura Rāṇā's initiatives towards a homogeneous set of basic laws.

#### 1.4.2 Political Turmoil after Bhīmasena Thāpā's Fall

Bhīmasena Thāpā emerged as a powerful minister at the end of Raṇa Bahādura Śāha's reign between 1777–1806. Under the regency of Lalita Tripura Sundarī, who herself had been born into the Thāpā clan, Bhīmasena Thāpā was given charge over all military and civil authorities.142 In 1811, he obtained the rank of general. After the death of King Gīrvāṇayuddha/Gīrvāṇuyuddha Śāha (r. 1799–1816), Bhīmasena Thāpā became an even more powerful national figure during the kingship of Rājendra Śāha (r. 1816–1847), who was two and a half years old when he was enthroned. During Bhīmasena Thāpā's prime ministership, relations between Nepal and the East India Company worsened, the seeds for which had already been sown by Lord Wellesley, who formally dissolved the peace treaty with Nepal in 1804. The British finally proclaimed war against Nepal in 1814.<sup>143</sup> As a consequence of that war, Nepal had to sign a treaty with the East India Company in 1816, resulting in the loss of two-thirds of its territory. In the aftermath of the war, Bhīmasena Thāpā became the most powerful person in the palace. He consolidated his preeminent position by assigning civil, military and judicial administration of the Western provinces completely to

<sup>142</sup> See Kumar 1967: 24 and K.K. Adhikari 1984: 18.

<sup>143</sup> For an overview of the Anglo-Nepalese war of 1814–1816, see Prinsep 1825: 81–131.

his brother Raṇavīra Siṃha.<sup>144</sup> B.H. Hodgson, corresponding with his superior C.E. Trevelyan, opines that Bhīmasena Thāpā has the "[…] ultimate design of permanently setting aside the rights of the Prince, and will apparently necessitate the increase of the existing strength of the army […]."145 According to B.R. Acharya, Bhīmasena Thāpā, who had enjoyed ultimate power as a shadow of Rājendra Śāha, fell from power because of the autocratic nature of his brother Raṇavīra Siṃha and nephew Māthavara Siṃha Thāpā, and a conspiracy hatched by the British Resident B.H. Hodgson. Since Rājendra Śāha was not able to control the administration, his wives Sāmrājya Lakṣmī and Rājya Lakṣmī Devī had no trouble interfering with the king in all royal matters. In 1837, Bhīmasena Thāpā was accused by Sāmrājya Lakṣmī of poisoning Prince Devendra Śāha. Soon he along with his family members and the royal doctors (*rājavaidya*) who had treated the prince were arrested and put in prison, and their property seized.146 As foreseen by B.H. Hodgson,147 the heavy hand of politics applied by Bhīmasena Thāpā during his twentyfive-year-long rule resulted in a very unhealthy power struggle within the palace and among the (*bhāi*)*bhāradāra*s.148 After the dismissal of Bhīmasena Thāpā from office, the *mukhtiyāra*-ship (prime minister and commander-in-chief) was assigned to Raṇajaṅga Pā̃ḍe, who was a grandson of Kālu Pā̃ḍe, the commander of the Gorkhālī forces during the unification campaign of Nepal initiated by Pṛthvī Nārāyaṇa Śāha.149 Unable to gain support from the majority of *bhāradāra*s, however, he left office after just three months. After his resignation, the process of appointment and dismissal of *mukhtiyāra*s continued until the return of Māthavara Siṃha Thāpā from exile and his appointment as *mukhtiyāra* in May 1843.150 As Wright notes, the frequent rotation of *mukhtiyāra*s and other *bhāradāra*s in the administration, coupled with the faction-building among the royal family members and *bhāradāra*s, created a complete political vacuum, which frequently led to rifts in the


Anglo-Nepalese friendship.151 As a consequence of the extreme political turmoil, the rise of another ruler like Bhīmasena Thāpā was all but a matter of time. Thus, Jaṅga Bahādura Rāṇā appeared on the political scene of mid-nineteenth-century Nepal as if according to script.

#### 1.4.3 The Rise of Jaṅga Bahādura Rāṇā

Sundry stories about Jaṅga Bahādura Rāṇā's courage in facing difficulties, his physical abilities and miraculous events surrounding him have been handed down from generation to generation by Nepalese. A daring jump into the river Triśulī on a horse, his plunge into a deep well or his leap down from the top of the Dharaharā tower, the tallest structure in Kathmandu in the south-west corner of Tũḍikhela.152 However, it is not evident what is fabricated and what real in these stories. Contemporary sources stress Jaṅga Bahādura Rāṇā's intelligence and boldness. For example, the British Resident Major Lawrence describes Jaṅga Bahādura Rāṇā as follows: "Kazi Jung Bahadur is Mathbar Singh's nephew, but though clever and soldier-like, indeed more so than any man in Nepal, he is a time-server and warmly joined the Chautarias during the exile of his uncle and the disgrace of the Thapas."<sup>153</sup> A long discussion on the legendary aspects of Jaṅga Bahādura Rāṇā's career is beyond the scope of this thesis; I shall here briefly introduce Jaṅga Bahādura Rāṇā and his emergence in Nepalese politics.

Jaṅga Bahādura Rāṇā was born on the eighteenth of June 1817 to Gaṇeśakumārī Devī (also called Rakṣakumārī), niece of Bhīmasena Thāpā, and Bāla Narasiṃha Kũvara, who held high positions during Thāpā's time in government.154 Jaṅga Bahādura joined in army operations in his mid-teens while visiting his father stationed in the eastern province of Dhanakuṭā, around 1828, and in the western provinces of Ḍaḍeladhurā and Jumlā, in around 1835.155 In 1837, he, along with his family and a number of relatives lost their positions and property when Bhīmasena Thāpā was dismissed from his post.156 Soon thereafter, he went to Benares for some time and came back to Nepal only in 1841.


<sup>151</sup> See Wright 1877: 55.

<sup>152</sup> See, for example, Whelpton 1983: 9 and M.R. Panta 2013a: 2–3.

<sup>153</sup> This is from a diplomatic report sent to the governor general in June 1845. It is quoted in Stiller 1981: 317.

#### 30 — 1 Introduction

Rājendra Śāha's first queen, Sāmrājya Lakṣmī, died in 1841, leading to more political chaos in the palace. The second queen, Rājya Lakṣmī Devī, quickly became more influential in the royal court. She wanted to enthrone her son, Raṇendra Śāha, who had not been on the roll of succession for the kingship. Jaṅga Bahādura was appointed as a personal attendant of Surendra Śāha in November 1841, and used his position to curry favour with the queen. After two months, he obtained the post of *kājī* and was stationed in Kumārī Coka, an office responsible for keeping government accounts.157 Jaṅga Bahādura gained an even more influential position under Māthavara Siṃha Thāpā, a maternal uncle of his.158 However, their relationship worsened due to disagreement over administrative matters.159 This finally led to the murder of Māthavara Siṃha Thāpā in May 1845 at the hands of Jaṅga Bahādura after he was called by the king to the palace for a meeting.160 Jaṅga Bahādura played a prominent role in the government newly formed soon after the death of Māthavara Siṃha Thāpā, being appointed as general with command over three regiments of the army, although he did not hold an official ministerial position.161 Phatya Jaṅga Śāha held the *mukhtiyāra*-ship in the government, but the leading figure was General Gagana Siṃha, who was strongly supported by Rājya Lakṣmī Devī. The general was shot on 14 September 1846. The queen reacted in an unhinged manner,162 ordering Jaṅga Bahādura to find the murderer. He called a court


assembly consisting of both civil and military officials to the Kot, a royal assembly hall at the Hanumān Ḍhokā palace, where he and his brothers were on hand, along with his three regiments. The queen let herself be convinced by Jaṅga Bahādura that Vīra Keśara Pā̃ḍe, a relative of the minister Dalabhañjana Pā̃ḍe, had murdered Gagana Siṃha. Jaṅga Bahādura proceeded to propose to Phatya Jaṅga that he sentences Vīra Keśara to death, but to no avail. As soon as the queen got wind of this, she herself went to have Vīra Keśara executed, but was stopped by Phatya Jaṅga, Abhimāna Siṃha and Dalabhañjana Pā̃ḍe and told that they would properly investigate the murder. As the queen was heading back to the upper floor of the Kot building, the three of them were shot. Soon the son of Phatya Jaṅga, Khaḍga Vikrama, came to know that his father had been shot, he attacked Kṛṣṇa Bahādura and Bam Bahādura, the brothers of Jaṅga Bahādura, who in turn shot Khaḍga Vikrama. Meanwhile, Jaṅga Bahādura Rāṇā's three regiments were going on a shooting spree, targeting everyone their commander had directed them to. According to K.K. Adhikari,163 Jaṅga Bahādura Rāṇā was given the command of sixteen regiments while the massacre was still taking place. The whole incident lasted until the morning of the fifteenth of September.164 Although it is not clear from the historical records whether the Kot Massacre had been preplanned by Jaṅga Bahādura or was rather a spontaneous reaction on the part of Jaṅga Bahādura, who faced strong pressure from Rājya Lakṣmī Devī to find the murderer of Gagana Siṃha and put him to death. It is obvious in hindsight that Jaṅga Bahādura Rāṇā's being appointed as prime

Oldfield, notes that Rājendra was the main plotter of the murder of Gagana Siṃha, against whom he held his low birth and previous activities. However, he does not mention the name of the murderer. Further, J. Whelpton (1983: 57) and K.K. Adhikari (1984: 35) argue that Gagana Siṃha was shot by Lāla Jhā, a Brahmin with a long criminal record. Although S. Kumar's speculation is convincing that the murder was planned by Rājendra, the reason given by him for Rājendra's plot seems to be an overly speculative. Since Gagana Siṃha, who was strongly favoured by Rājya Lakṣmī Devī and suspected of being her paramour, held the real power in the palace and Phatya Jaṅga Śāha was merely a puppet *mukhtiyāra* (see K.K. Adhikari 1984: 28), Rājendra wanted to stop the rise of Gagana Siṃha.


minister on the sixteenth of September 1846 put Nepalese politics on a steady course—a precondition for establishing the strong judicial and administrative foundations of a nation-state.

### 1.4.4 The Emergence of the MA

As pointed out by L.F. Stiller, since the history of Nepalese politics before Phatya Jaṅga was soaked in blood (the prime ministers Bhīmasena Thāpā, Raṇajaṅga Pā̃ḍe and Māthavara Siṃha Thāpā all died violently), the Kot Massacre did not come as a total surprise.165 The political chaos in the country after the Anglo-Nepalese War (1814–1816) had reached a climax, the loss of one third of Nepalese territory having resulted in a considerable reduction in revenue, so that the country was rife for political change, and it was Jaṅga Bahādura who offered it.166 After the Kot Massacre, he was made commander-in-chief of the army and the country's prime minister.167 His appointments set in place the tradition of both positions being reserved for members of the Rāṇā family, with the Śāha kings now reduced to ceremonial rulers. Although the Rāṇā rulers continued to follow in many respects the path of political isolationism and cultural conservatism, they also showed a certain openness to Western forms of conspicuous consumption, aesthetics and governmental operations.168 This led to considerable legal and administrative reforms.<sup>169</sup> One major example of the greater willingness to engage with foreign ideas is Jaṅga Bahādura's state visit to London and Paris in 1850, the first trip of a South Asian prime minister to Europe.170 As soon


as he returned from his state visit, he formed a law Council (the Ain Kausala)171 to discuss the nature of a proposed law code and to set standardized forms for the previously existing legal documents.172 The MA was promulgated during the reign of Surendra Śāha (r. 1847–1881), on Thursday, the seventh of the bright fortnight of Pauṣa in Vikrama Era 1910 and witnessed by Rājendra Śāha and Trailokya Śāha.<sup>173</sup> Although, as pointed out by K.K. Adhikari, it is uncertain whether the drafting of the MA was a result of Jaṅga Bahādura's introduction to the British legal system during his state visit,174 no direct quotation from the British legal tradition can be detected in the MA.175 Nor, for that matter, does the MA refer to either any Brahmanical text of scriptural law or any other Western or Islamic code of law.176 What is known is that Jaṅga Bahādura, the country's de-facto ruler, established a strong foundation for the unification of diverse judicial practices by promulgating the country's first systematic legal code—one which shares several characteristics with the legal codification that was taking place in colonial India. In both colonial India and Nepal, centralized systems of judicial administration replaced more fluid forms of legal pluralism; the dominance of religious laws giving way to a state-led reform that introduced positivistic notions of legitimacy into the legal norms. The projects to codify Hindu law as a (religious) system of personal law initiated by the British on the basis of orientalist representations of civilization, literate culture and religion and the codification of Hindu customary law by Jaṅga


Bahādura shifted the boundary between private and public spheres and the formation of religious identity. Even as legal texts were being placed centre stage within the judicial process, thus giving translocal and transcultural norms of scholastic-juridical discourse precedence over local customs.177

According to the preamble of the MA, the major aim of the code was to unify the penal system by prescribing clear guidelines for meting out punishment. Since the legal system had not been uniform earlier, two offenders from two different territories or ethnic groups could easily have received different punishments for the same crime.178 Other aims were to "establish a national caste hierarchy for the multiplicity of Nepal's ethno-cultural units, to bring about a homogeneous legislative as well as a uniform system of administration and, through such legal code control over remote areas and separate ethnic groups […]."<sup>179</sup> Especially in comparison with texts of the *dharmaśāstra* tradition, the MA is unique, inasmuch as it "has the great advantage of offering the representation of an entire traditional society—not as a utopia of the moralists and not as reflections of the learned, but as law for immediate application."180

#### 1.4.5 The Contents of the MA

The MA comprises 167 Articles that address a range of judicial, administrative, and legislative matters. As noted by M.C. Regmi and A. Michaels, the MA possesses constitutional qualities, granting


<sup>177</sup> See Khatiwoda 2013.

<sup>178</sup> This can be extracted from the preamble: […] *maramāmilā gardā ekai bihorāmā kasailāī kami kasailāi baḍhatā sajāya huna jānyā hudā tasartha aba uprānta choḍā baḍā prajā prāṇi sabailāi ṣata jāta māphika ekai sajāya havas ghaṭī baḍhī naparos bhannā nimitta tapaslila bamojimakā bhārādārasameta rāṣi kausala gari kausalamā ṭhāharyā bamojimkā ain tayāra garnu bhani śrī 3 mahārāja jaṅga bahādura rāṇā ji. si. bi. prāim miniṣṭara yāṇḍa kamyāṇḍar ina ciphalāi hokum baksī banyākā aina* […] "([…] since there have been dissimilarities [lit. less than enough for some and more than enough for others: '*kasailāi kami kasailāi baḍhatā*'] in punishment [imposed] in the same [kinds of] lawsuit (*ekai bihorā*) until today, therefore, in order to achieve uniformity of punishment according to the crime committed, this *Ain* has been prepared in response to the following order to the thrice venerable Mahārāja Jaṅga Bahādura Rāṇā G.C.B. Prime Minister and Commander-in-Chief […]." (MA-ED2/preamble).

a certain level of autonomy to the civil and judicial administration.<sup>181</sup> It also classifies the hierarchy within the caste system by bringing the various castes and ethnic groups under five main categories:182 Sacred Thread-wearers (*tāgādhārī*), Non-enslavable Alcohol-drinkers (*namāsinyā matuvālī*), Enslavable Alcohol-drinkers (*māsinyā matvālī*), Impure but Touchable castes (*pāni nacalnyā choi chiṭo hālnunaparnyā*) and Untouchable castes (*pāni nacalnyā choi chiṭo hālnuparnyā*).183 The MA codifies a wide range of social, customary and religious practices, such as civil and penal regulations under the caste system, rules of purity and impurity, landownership, debt, inheritance, deposits, marriage regulations, commensality, homicide, witchcraft, slavery, adultery, arson, street cleaning and deforestation. Besides civil and criminal law, it also covers aspects of public law and such constitutional provisions as the appointment and prolongation of civil servants, revenue arrangements and foreign policy. Broadly speaking the 167 Articles of the MA cover the following main legal topics:<sup>184</sup>


As noted by D.W. Edwards, the above contents of the MA remind the law of the *Mānavadharmaśāstra* (hereafter MDh).186 Just like Manu assembles a wide range of social, individual and moral law, so too the MA covers a similar spectrum of topics, with again the Brahmanical caste system as the underlying foundation. The latter, however, is far more differentiated than the MDh in terms of punishments imposed on offenders. For example, the MA, unlike Manu, does not teach how a king, minister or an individual should behave morally and socially, but merely defines the exact punishment for all the offences mentioned in the code. The MA, no longer heterogeneous in nature in the


<sup>181</sup> See M.C. Regmi 2002: 2 and Michaels 2005b: 8.

<sup>182</sup> See Höfer 2004: 9–10.

manner of the judicial system it replaced, made for a quick disposal of court cases. After the codification of the MA, as pointed out by K.K. Adhikari, no shastric texts had to be consulted regarding certain cases.187 According to B.H. Hodgson's account, before the MA was introduced, legal cases involving questions of caste, inheritance, adoption or wills were strictly followed in accordance with the *śāstras*. 188 The remaining cases were adjudicated on the basis of customary practice. The present study will demonstrate that regulations for dealing with homicide do not strictly follow shastric legal categories or prescriptions rather, brings together three different components: shastric and customary practices along with contemporary political thought serving to establish the 'rule of law'.

Since the MA does not provide specific constitutional safeguards guaranteeing its implementation,189 it cannot be said that the MA restricted the absolute authority of the Rāṇā regime. However, it can be argued that the MA became a common basis for the rules of administration and those governing subjects in mid-nineteenth-century Nepal, in spite of some exceptions where the Rāṇā autocracy was above any kind of legislative and jurisdictive constraints.<sup>190</sup>

#### 1.4.6 The Historical Context

As it has been evident that Jaṅga Bahādura Rāṇā's codification project did not emerge all of a sudden, preliminary steps in its direction having been taken from the time of Jaya Sthiti Malla to the onset of the Rāṇā regime. Thus, the MA was to a great extent a manifestation of previously existing regulations—some available in written form and others in customary practices—that were recast into a unified homogeneous legal code. However, it is worth discussing the possible driving forces underlying the emergence of the MA. In the following sections, I present some of the more essential factors.


#### *The Economic factor*

Due to the intermittent wars against the English or the Chinese-Tibetan forces from 1767 onwards, Nepal's economy was under heavy strain by the time Jaṅga Bahādura Rāṇā took power. Nepal had lost not only two-thirds of its territory under the peace treaty of Sugaulī (1816) between Nepal and the East India Company, but also a considerable amount of revenue that could no longer be collected from the areas lost. The economic crisis kept plummeting in the political turmoil after the fall of Bhīmasena Thāpā. The destabilizing power struggle within the royal place and among the *bhāradāra*s kept the land tenure, *ijārā*<sup>191</sup> and *lokabhāra*<sup>192</sup> systems from functioning properly. This lack of a centralized command resulted in a considerable loss for the state treasury,193 which would soon be exacerbated by the Sino-Nepalese war of 1855. By the time of Jaṅga Bahādura arrived on the scene, therefore a reform of Nepal's economy was long overdue, and this required establishing a unified form of land and revenue management which was possible only under a systemic written law enforceable throughout the country. Towards this end, Jaṅga Bahādura was forced to introduce universal regulations, which allowed him to administer state taxation and revenue flows under his direct command. Consequently, the first twenty Articles of the MA deal with land tenure, with a special focus on tenant–landlord relations. Similarly, the MA contains several Articles on the law of succession and adoption which guarantee that the property of deceased heirless persons comes into the possession of the state. Finally, the unified system of imposing heavy fines on offenders in court cases is further evidence that Jaṅga Bahādura wanted to reestablish a strong economic basis for his regime.

#### *Preserving autonomy from British India*

As stated before, Nepal was among a few kingdoms in the South Asian region which protected its sovereignty from the British territorial

<sup>191</sup> System under which the government granted to an individual the exclusive right to collect revenue from a specified source, subject to the payment of a sum stipulated in advance.

<sup>192</sup> It refers to a system in which the local community assumes the responsibility of paying the designated revenue through a representative assigned for that specific purpose.

<sup>193</sup> See M.C. Regmi 1988 for an overview of the economic history of this period.

expansion. All such efforts before Jaṅga Bahādura were dependent on individual actors. The idea of collective nationhood had not yet developed among the subjects, which were divided along lines of ethnicity, culture, language and caste, and between authorities as well. Jaṅga Bahādura's seizure of power only made the political constellation that much more unstable, which split the central and local political leaders and networks even further (most prominently, into the Thāpā, Pā̃ḍe, Royal and Jaṅga Bahādura Rāṇā -factions). This prompted some people to seek out contact with the colonial power, thus putting Jaṅga Bahādura at the risk of being removed from his post, by violent means or otherwise. In order to tackle this challenge, Jaṅga Bahādura resorted to pushing the notion both of a strong collective patriotism and a religious identity as means of establishing a strong moral and legal bond between the country's leaders and its subjects. The creation of the MA, which set the tone for this politically- and religiously-based patriotism—in which king, prime minister and subjects were bound to one another within a legal framework—posed a symbolic threat to British colonialism. For one, the MA restricts unauthorized contact with the colonial power. Actions which resulted in creating enmity with China and British India were regarded as a serious offence for both government officials and subjects. This is manifested in the following citation:

If somebody lies in connection with [some matter] which brings an unexpected calamity [in relations] with China or the English, or which creates hindrances for the realm, he shall be dismissed from his post (*jāgīra*) and put in prison for 12 years. If he agrees to pay a fine [commensurate with the prison sentence], the fine shall be taken in accordance with the *Ain* and he shall be taken outside from the city and set free.194

Moreover, as one strategy for creating a solid religious patriotism, the words 'Nepal as the only remaining Hindu kingdom in the Kali era' was introduced into the MA, along with the Brahmanical notion of 'Christians as Water-unacceptable caste fellows', which clearly distinguished Nepal from British India and the British people.<sup>195</sup> Against the background that Jaṅga Bahādura himself neither accepted the idea of 'divine kingship', one of the basic norms of Hindu orthodox thought, nor was particularly

194 MA-ED1/2 §10. 195 See MA-ED2/87 §  2. invested in other basic Hindu norms,196 his efforts toward constitutionally formalizing Nepal's status as a Hindu kingdom can be interpreted as a patent political strategy to hold the line against British imperialism.

#### *Monarchical fear*

Unlike Bhīmasena Thāpā, Jaṅga Bahādura Rāṇā's emergence and his positions as prime minister of the country and commander-in-chief of the army neither could be ascribed to any favouritism nor enjoyed the blessing of royal assent. Therefore, in order to protect his autocratic supremacy, which he had won with much bloodshed, it was not enough to form an alliance with a certain group or to enjoy the support of the monarch. Since king, kingdom and subjects were still regarded as consubstantial, the king was strongly supported by a majority of subjects and political figures, while the opposition to Jaṅga Bahādura represented an enormous threat. Several attempts were made by the king and his followers to regain power by plotting to assassinate Jaṅga Bahādura, but they all came to naught.<sup>197</sup> Therefore, in order to keep the king under control, Jaṅga Bahādura was forced to institutionalize the monarchy as a ceremonial and cultural authority subject to certain legal restrictions, which subsequently were laid down in the MA. In this way, he deftly kept the king from exercising executive powers.<sup>198</sup> However, he did not touch the religious prerogatives of the king. By refraining from doing so, he not only tied the king to the legal-frame but also, very importantly, avoided a possible backlash from subjects who still regarded the king as an embodiment of Viṣṇu.


#### 40 — 1 Introduction

#### *Nepal's encounter with the western world*

Unlike A. Höfer and D.W. Edwards,199 K.K. Adhikari strongly argues that the MA was not at all influenced by the British legal system, which Jaṅga Bahādura had encountered during his state visit in the 1850s. According to him, "[…] the Ain as a whole was partially customary, yet partially written with the times when it was laid out."<sup>200</sup> K.K. Adhikari is right that no direct evidence of the British legal system has been detected in the *Ain*. However, he does not answer the question of how the idea of drafting such a code emerged in an isolated place like Nepal. The conclusions he does come to seem to be based on only certain Articles, those having to do with criminal cases and caste hierarchy. He leaves unconsidered, for example, the Articles 'On the Throne' (*gaddīko*)201 and 'On Legislative Affairs' (*rājakājako*).202 The legislative checks and balances between the monarch, prime minister and the Council are clearly demarcated in the MA. On the one hand, any form of executive power is denied to the monarch; on the other hand, the prime minister still can be checked by the king in case of any deviation from the *Ain*, and the *bhāradāra*s by the prime minister. For example, in one of the provisions on legislative affairs it is stated:

After the *Ain* is promulgated, whoever deviates from the provisions of the *Ain* so introduced either by giving a wrong explanation of it, or by overstating it or by understating it, shall be punished by the king, if he is a prime minister (*mukhtiyāra*). If a high or low ranking [*bhāradāra*] official files petitions or gives signatures violating the *Ain*, he shall be punished by the prime minister.<sup>203</sup>

Going back to K.K. Adhikari's conclusion, the mentioned idea of checks and balances was neither a customary practice nor a political necessity of the time. K.K. Adhikari fails to explain why Jaṅga Bahādura—if it was simply his aim to codify customary laws and contemporary social


<sup>201</sup> MA-ED1/1.

<sup>202</sup> MA-ED1/2.

<sup>203</sup> *aina bhayāpachi aina bamojim toki chinyākā kurā ulṭāi thorai kurāko ḍherai ḍherai kurāko thorai gari phareba garnyā jo cha testālāi mukhtiyārale bhayā rājābāṭa sajāya garnu aru choṭā baḍā gairhale aina mici biṃti garnyā daskata garnyā mukhatiyārabāṭa sajāya garnu*. (MA-ED1/2 §  21).

practices—did not elevate the role of prime minister above any power block, be it the king or the Council. For example, the following provision in the MA explicitly mentions that nobody stands above the sovereignty of the kingdom:

A king who has ascended the throne shall not sell his own land to neighbouring emperors or kings irrespective of whatever large amount he receives [for it]. Even if a king who has ascended the throne orders [it] to be sold, ministers or the Council shall not sell it. If the ministers or the Council—with or without orders [from the king], or for reasons of their own, [such as] receiving a large sum for a small [piece] of land—sell land within their own boundary to neighbouring emperors or kings, they shall be considered as rebels (*apsara*) and untrue to the [king's] salt (*nimaka harāma*).204 All shall know them as being untrue to the [king's] salt. One can sell land to those who have come with their family and reside as [our] own subjects inside [our] own boundary.205

Therefore, I argue that one of the reasons for the emergence of the MA was the inspiration Jaṅga Bahādura drew from the British parliamentary system as witnessed close up on his state visit to Europe.206 If Ujira Siṃha Thāpā, who was a minor aristocrat, could base weighty legal recommendations on the British court system even in 1822, it seems plausible that Jaṅga Bahādura Rāṇā, who had directly encountered the British political and legal system in London, could have returned with a vision to reform the Nepalese administrative and judicial system.207


However, the British legal influence on the MA does not take the form of imitating actual English judicial codes. Jaṅga Bahādura did not, that is, directly borrow provisions from the British legal system for the MA. Still, he was visibly inspired by the British concept of a universal rule of law when it came to preparing the general framework of the MA.

### **1.5 The Characteristics of the MA**

In this section, I shall discuss some of the characteristics of the MA which distinguish it from the *dharmaśāstra* literature, which may be considered to have been still partially dominant in forming the legal practices of nineteenth-century Nepal.<sup>208</sup> The MA will be shown to be a much more modern and secular creation, one more in line with positive law than both nineteenth-century Sanskrit law texts in British India and pre-MA legal practices in Nepal. I will focus on the following points peculiar to the MA: The MA as the first proper codification of law in Nepalese legal history; as a law code constitutional in character and in its establishment of a rule of law; and as deviating from both Brahmanical law scriptures and customary practices.

### 1.5.1 Codification

In contradistinction to the general opinion,209 the process of legal codification in the MA neither involved merely recording customs and edicts, nor did it come about because of a sudden direct foreign stimulus. Rather, it arose through processes of collecting previously existing legal practice, introducing new legal norms inspired by the colonial and British legal traditions mixed in with homogenizing, if contradictory, regulations meant to guarantee the universal applicability of the former.210 During the nineteenth century, such codification took place within "analogous

a small but telling example. A. Michaels writes: "[…] Jaṅga Bahādura during his trip to London and Paris (15th January 1850 till 29th January 1851) came to esteem of printed books with an almost magical sense as the expression of Western superiority" (Michaels 2005b: 8).

<sup>208</sup> See Hodgson 1880 (vol. 2): 211–236.

<sup>209</sup> See, for example, K.K. Adhikari 1976: 107 and Kumar 1967: 114.

<sup>210</sup> See Caroni 2016.

practical political contexts" 211 in different parts of the globe. According to J.E. Wilson, wherever the codification of law took place,

it occurred because political actors doubted their ability to construct viable forms of rule on the basis of existing intellectual and institutional traditions alone. As the networks that sustained 'old regime' politics fragmented in the late eighteenth century and the early nineteenth, political actors in many different places adopted new textual techniques and developed new concepts of sovereignty to define and govern social conduct in a more anxious world. Codification occurred where political actors felt a sense of rupture with the past.212

For example, as argued by J.E. Wilson,213 British legal culture harboured deep suspicions against the codification of law in the late-eighteenth and early-nineteenth centuries. Initially, British officials in colonial India tried to regulate inheritance practices of the native population in historically faithful continuity with their legal traditions.214 However, due to the complexity of the indigenous law, the colonial regime was torn between administering existing and introducing new law.215 Further, the British administration was not able to understand, identify and act accordingly within the new political, juridical and administrative systems in Bengal. It was thus that the concept of codification gained traction in colonial India. Similarly, after seizing power from the royal dynasty in the mid-nineteenth century, Jaṅga Bahādura felt at variance with the current legal practices, fearing for the stability of his regime if it continued to be based on the previously existing monarchical administration, according to which the king was the final authority in any matter. Therefore, he took the necessary steps towards codification in order to create a uniform legislative space in which the divinity of kingship would be *de facto* questioned by keeping the king within strong legal bounds, the administration and penal system reformed and standardized, the idea of collective nationhood strongly emphasized, the concept of the rule of law made tangible and various ethnic and caste groups brought under a scheme of five major categories.

 J.E. Wilson 2007: 23. ibid. 23. ibid. 22. ibid. 22. 215 ibid. 22.

Even though the principles of legal relativism (i.e., different legal norms according to different status groups) and legal pluralism (i.e., different systems of civil law in different areas), both of which, in shaping the MA, limit the scope of its uniformity, one can still argue that they were still placed within a single state-dominated legal framework. Thus, the MA, rather than being a utopia dreamt up by shastric pundits, represented the whole of traditional society operating according to laws that were actually applied.216 A. Höfer's observation is right that the MA was neither an idealized legal composition emerging completely from long-practised orthodox thought nor merely a rewriting of some Brahmanical legal scripture such as the fourteenth-century NyāV. However, the MA was not an entirely secular codification either. For example, the MA itself states that it "was prepared [after observing] *śāstra*s, [being based on] wise political thought (*nīti*) [and] practised customs (*lokakā anubhava*)."217 Therefore, the MA can be understood as a unique combination of customary practices, positive law218 and some scripturally based orthodox Brahmanical thought. As discussed in the previous section,219 one of the chief aims of the MA was the universal application of punishments according to the crime committed and the caste status of offenders.220 M.C. Regmi calls this stated aim contradictory, inasmuch as making the caste status of offenders a consideration defeats the whole purpose of a unified system.221 Although M.C. Regmi is right that—if the degree of punishment varies according to caste—the code does not offer equal justice under law. Some care is required in order to understand what the following phrase in the MA meant: […] *aba uprānta choṭā baḍā prajā prāṇi sabailāi khata jāta māphika ekai sajāya havas* […]. "[…] From now on all subjects, [irrespective of whether they are] higher or lower in rank, shall receive the same punishment according to the crime [committed] and caste status […]."222 The relevant Articles of the MA reveal that the caste status of offenders is a matter of import when imposing punishments only in instances regarding bodily impurity and a few other very exceptional cases. For example, Brahmins and women are not to be sentenced to

<sup>216</sup> See Höfer 2004: xxxvi.

<sup>217</sup> […] *śāstrale nītile lokakā anubhavale banāyāko aina ho*. (MA-ED2/1 §1).

<sup>218</sup> See Lariviere 2004: 612 for a discussion of the term.

<sup>219</sup> See Part I, 1.3.3.

<sup>220</sup> See MA-ED2/preamble.

<sup>221</sup> See M.C. Regmi 2002: 3.

<sup>222</sup> MA-ED2/preamble.

death for homicide.223 Barring such issues, it is impossible to find areas where caste status affects the degree of punishment, be it, for example, in the Articles on legislation, administration, murder or theft.224

## 1.5.2 A Code with Constitutional Character and the Establishment of Rule of Law

Jaṅga Bahādura Rāṇā is portrayed in historiography very often as an aristocratic *de facto* ruler empowered with all three governmental powers, executive, legislative and judicial. For example, H.N. Agrawal, quoting P. J.B. Rāṇā, characterizes Jaṅga Bahādura Rāṇā as follows:

[…] he [Jaṅga Bahādura Rāṇā] was invested powers and privileges of a sovereign character. They were: "(1) the right of life and death; (2) the power of appointing and dismissing all servants of Government; (3) the power of declaring war, concluding peace, and signing treaties with any foreign power, including British, the Tibetans, and the Chinese; (4) the power of inflicting punishments on offenders; (5) the power of making new laws and repealing old laws, civil, criminal and military." The maharajaship and the absolute powers were made hereditary in his family. And thus, Janga Bahadur made the Rana prime minister, a Maharaja with absolute powers, "as much the sovereign as was Peter the Great of Russia."<sup>225</sup>

However, Jaṅga Bahādura's regime needs to be reanalysed within a larger frame, with due consideration given to the provisions of the MA. The legislative, administrative and judicial autonomy provided by the MA laid the foundation for a constitutional system of government, making the document a unique piece of codified law in South Asian legal history.226 The following observations concern what it is that endows the MA with its constitutional character:


<sup>223</sup> See MA-ED2/64 §1and §  6.

#### 46 — 1 Introduction

# *The changed notion of divine kingship: the king's religious identity and the conceptual separation between king and state*

It is likely that in Nepal the concept of the divine king as an 'incarnation of Viṣṇu' has its roots in the image of King Viṣṇugupta (r. around 6th century) made in the guise of Viṣṇu.227 Given the fact that no follow-up documented evidence has so far been found for its validation, as pointed out by M. Slusser, Jaya Sthiti Malla is the first Nepalese king to include the name of Nārāyaṇa among the titles of his *praśasti* (eulogy)*.* <sup>228</sup> The successors of Jaya Sthiti Malla held firmly to the conception of the king as an embodiment of Viṣṇu, and therefore the Nepalese kingship in the nineteenth and twentieth centuries was understood in terms of 'divine kingship', according to which the monarch is treated as a partial reincarnation (*āṃśikāvatāra*) of Viṣṇu, and as the focus of the kingdom's divine ritual. This elevated the king to a position above all positive law.229 The king as divine entity, an idea central to orthodox Brahmanical thought, is grounded in Brahmanical scriptures.230 The NyāV, which represents a rewriting of Brahmanical scriptures rather than the codification of new legal norms, remained true to the concept. In this context, R. Burghart argues that at the turn of the nineteenth century, the king of Nepal still saw himself as a divine actor in his realm, and still as an embodiment of the universal god Viṣṇu, his palace being known as a temple.231 Similarly, A. Michaels states that in the early part of that century the king was still indistinguishable from the state; no separation between king and kingdom existed.<sup>232</sup> It is likely that Burghart's and Michaels's perception of Nepalese kingship is the result of their explicit focus on the king's ritual roles. These assumptions need to be reassessed *vis-à-vis* the MA, in order to understand nineteenth-century notions of kingship. The Nepalese political elite occupied a heterogeneous, multidimensional ideological space, which provided them great scope for articulating and legitimizing power so


<sup>227</sup> See A. Agrawal 1989: 238–239. J.C. Regmi (1989: 123) further argues that Vaishnavism became strong in the Kathmandu Valley after Jiṣṇugupta and Bhaumagupta installed the sculpture of Buḍhānīlakaṇṭha.

<sup>228</sup> See Slusser 1982: 67.

<sup>229</sup> Once a king is conceived as the embodiment of Viṣṇu, his absolute divine power can take fives forms: those of Agni, Indra, Soma, Yama and Kubera (for example, see NārSm 18.24–31).

as to cast a different shade of meaning on the nature of the king as a partial incarnation of Viṣṇu.233

The MA incorporates notable provisions that establish a connection between traditional notions of kingship and modern conceptions of state structure, marking a significant shift from perceiving the state as a mere extension of the king's household to recognizing it as an autonomous entity. Consequently, the MA introduces a distinct separation between the monarchy and the state, imposing stringent regulations that redefine the monarchy primarily as a cultural and religious institution. The laws outlined in the MA establish that the country's sovereignty is contingent upon its treatment by other nations, transcending internal affairs. While Nepal can be characterized as an oligarchy, if not *de facto* monarchy, during the premiership of JBR and his esteemed status as the thrice venerable great king (*śrī 3 mahārāja*), it is crucial to acknowledge that the king himself was subject to strict legal constraints. Violation of specific offenses carried severe consequences, including dethronement, imprisonment, and even loss of caste. These offenses encompass: i) killing his successor by either administering poison himself or having someone else do so,234 ii) committing unlawful homicide,235 iii) giving, without the prime minister's advice, an order likely to damage the relationship with the two bordering emperors (southern and northern) or engaging in a conspiracy to harm his own *umarāva*s,236 *bhāradāra*s, army and subjects,237 iv) coming down with a serious disease and recovering through treatment within three years, but rather becoming insane or fallings from his caste,238 or v) selling


land in his kingdom to foreign emperors in violation of a prohibition to do so by the Council and prime minister.<sup>239</sup>

Especially interesting in this context is that the MA allows the degradation of the king's caste status. Such a provision explicitly questions the divinity of the king. Moreover, it is not only the enthroned king but also other members of the royal family who are put under legal restrictions meant to prevent unhealthy power struggles in the palace. For example, if the next in line to the throne (i.e., the crown prince) kills the enthroned king, he is to be removed from the roll of succession, put into prison outside of the palace and respectfully provided with food and accommodation.240 A later son or a brother who is on the roll is to be sentenced to death for doing so, as are other royal princes who are not in line to the throne.<sup>241</sup> Not only male members of the royal family but also the queen is covered under the law. For example, a queen who kills an enthroned king and plans to have someone else crowned loses her caste, and is fettered and put into prison outside of the palace. In the case where a murder plot is conceived but remains unexecuted, she shall be put into prison outside of the place but not fettered.<sup>242</sup>

Within the framework of the MA, the relationship between the king, subjects, and state is not solely defined in legal-bureaucratic terms. The government's sphere of activity is also delineated in a manner that emphasizes its role in fostering collective prosperity and safeguarding a shared religious identity. In Nepal, incipient notions of religiously inspired patriotism can be observed in Pṛthvī Nārāyaṇa Śāha's DivU, particularly in the renowned phrase that refers to Nepal as the 'true Hindustan' (*asal Hindustān*).243 However, in the DivU, religious patriotism remains centered around the ruler and can be interpreted as an extension of the ruler's duty to uphold the purity of his realm, rather than a fully developed patriotism grounded in a collective 'we' identity and imbued with a broader socio-economic vision. A more comprehensive conception of religious patriotism finds notable expression


in a section of the MA that pertains to religious endowments.244 This section begins by presenting three cautionary tales that illustrate the futility of spending money for religious purposes or making cash investments in British India. Building upon these illustrative instances, the MA prohibits both charitable transactions and cash investments in foreign countries,245 providing the following justifications:

There is a Hindu kingdom whose *Ain* is such that it bans the killing of cows, women and Brahmins; an independent land of such merit, with a palace, [situated] in the Himalayas (*himavatkhaṇḍa*), the land of the [*nāga*] Vāsukī *(vāsukīkṣetra*), a pilgrimage place of Āryas (*ārjyātīrtha*)246, [the one] that contains Paśupati's Jyotirliṅga and the venerable Guhyeśvarīpīṭha. [This] is the only Hindu kingdom in the Kali era. Henceforth whoever wishes to construct a Śiva temple [or] *dharmaśālā* (pilgrim shelter) [or] establish a *sadāvarta-gūṭhī* (*guthi*)247 shall find a pilgrimage place in [his] own realm and construct the Śiva temple [or] *dharmaśālā* [or] establish the *sadāvarta-guṭhī*. No one—from king to subjects—shall construct a Śiva temple or *dharmaśālā* in a foreign realm. Because if [one] has been constructed in [one's] own realm, [one's] own offspring can repair it at the slightest damage, [one's] own realm will be adorned, and whatever realm has a multitude of *dharma*, no disease, illness or epidemic will come upon it [and] no starvation will occur in it. When one obtains fame for [one's] own realm, [the result] will be splendour: The architects of [one's] own realm will become skilful. The poor will be protected since they will

244 See MA-ED1/4 §1 and MA-ED2/1 §1.

245 The first one tells of a Śiva temple and rest-house (*dharmaśālā*) built by Guru Raṅganātha Paṇḍita in Kāśī having been sold by somebody else without authorization; the colonial administration did not punish this defrauder. The second one deals with a royal endowment (*sadāvarta-guṭhī*) at Kedāranātha Temple on British territory that was confiscated by the colonial administration. The third one involves the Nepalese royal priest Vijayarāja Paṇḍita, who lent 10,000 rupees to an Englishman under a mutual understanding of repayment plus four percent interest per year; he received only three percent. Moreover, the suspicion is raised in the *Ain* that when a person has no male heirs, his daughters will not be able to recover outstanding debts under the inheritance law in British-India (see in MA-ED2/1 §1).

<sup>246</sup> For *āryātīrtha*.

<sup>247</sup> A charitable foundation for the provision of food to the poor, mendicants and pilgrims.

#### 50 — 1 Introduction

receive a salary, and the wealth of [one's] own realm will not go to foreign wealth or to a foreign realm.248

These passages show that the monarch within this framework plays an important role as 'Hindu king,' symbolizing the purity and uniqueness of the polity. On the other hand, the king is here only one among several markers of this 'Hindu identity,' others being the protection of cows, women and Brahmins.

In summary, the monarchical policy outlined in the MA signifies a shift in perception, wherein the king is no longer viewed as the entirety of the polity, but rather as a component within it. While the rhetorical source of sovereignty still attributes a divine essence, often represented as a partial embodiment of Viṣṇu, the king's authority in the MA is constrained by multiple factors. His executive power, ability to dispose of his property, and capacity to establish relations with foreign powers are all subject to limitations imposed by a legal framework that establishes a conceptual separation between the king and the kingdom. This signifies a fundamental change in the understanding of the king's role, highlighting the importance of governance within a defined legal framework rather than absolute authority.

#### *The conceptual establishment of rule of law*

The concept of the 'rule of law' has deep roots in western political and legal discourse, particularly within British political and constitutional history. It encompasses a period spanning from the Norman Conquest to the modern era. According to D. Zolo, the leading principles of the English rule of law were

248 *hiṃdũḥrāja gohatyā nahunyā strihatyā nahunyā brahmahatyā nahaunyā yasto aina bhayāko darbāra himavatkhaṃḍa vāsukīkṣetra ārjyātirtha yotirmaya śrīpaśupatiliṃga śrīguhyeśvarī piṭha yasto puṇyabhumī āphanu muluka chadā chadai kalimā hiṃduko rāja yehī muluka mātrai cha. aba uprānta jaskā sivālaya dharmasālā banāunakāko irādā cha guṭhi sadāvarta rākhana irādā cha āphanā rājyamā tirtha pāī śivālaya dharmasālā banāunu. guṭhī sadāvarta rākhanu. virānā mulukmā rājādekhi raiyatsaṃma kasaile śivālaya dharmasālā nabanāunu. dharmaśālā banāyāko āja u jamīṃna kaccā ṭhaharinyā śivālaya 23 guṭhī sadāvarta narākhanu kina bhanyā āphanā rājyamā banāyā thorai bhatkyā panī āphanā saṃtānale ṭālhaṭola gari banāuna pāunyā aphnu deśa rāmro gulajāra hunyā jauna mulukmā dharma jyādā bhayo tesa mulukmā roga vyādhi desānna na āunyā anikāla naparnyā huṃcha. āphnu desamā kirti baṃdā sobhā hunyā āphanā deśakā kārigaḍha sipālu hunyā jyālā majuri pāunāle gariba kaṃgālako pālanā huṃcha. āphanā mulukako dhana virānā mulukamā jādaina*. (MA-ED2/1 §1).

individuals' legal equality, irrespective of their status and economic conditions. Notwithstanding individuals' deep social inequality—which is deemed to be obvious—all citizens are subject, with no exceptions, to the general rules of ordinary law, in particular to the ones regarding criminal punishment and patrimonial integrity. […] normative synergy between Parliament and judiciary, through which the settlement of single cases is in England the result of decisions stemming from two sources that are in fact, if not certainly in law, equally sovereign. On the one hand, there is legislative sovereignty of Parliament, i.e., the Crown, the House of Lords, and the House of Commons, according to the famous 'King in Parliament' formula. On the other hand, there is the common law, in the hands of ordinary courts.249

However, the British encountered significant challenges in establishing such a rule of law system in colonial India. The Mughal and Hindu legal systems they encountered were considerably complex and varied greatly across communities and regions. Consequently, the British struggled to comprehend the existing legal practices, resulting in the coexistence of two legal systems: Company law and indigenous law. That is, "the original lack of interest in the life of the non-European communities turned into a deliberate legal dualism."250 According to L. Benton, the legal dualism resulted in hybrid forms during the Company's legal history.251 For instance, the 'Choultry' judges became Company servants in 1654, and in 1661, the governor's authority was established over criminal and civil matters. In 1773, the Supreme Court of Judicature at Fort William was established to administer British law to British subjects, Company employees, and Indians who wished to file court cases there.252 However, the complexity of the colonial legal system, shaped by its hybrid nature, necessitated the creation of the role of '*vakilas*' in 1793 to assist complainants and defendants with formal procedures.253 The involvement of untrained Hindu and Muslim legal experts, such as *maulavis* for Muslim law and pundits for Hindu law, posed additional challenges for the English understanding of law. Consequently, in the late eighteenth century, the British felt compelled


<sup>249</sup> Zolo 2007: 7.

<sup>250</sup> Quoted in Benton 2002: 132.

<sup>253</sup> ibid. 138.

#### 52 — 1 Introduction

to commission translations of Hindu legal texts, resulting in distorted variations of both Hindu and Muslim law. As noted by Benton,254 this provided a justification for the dominance of English law and the relegation of Indian law to a secondary position. Finally, the enactment of the Code of 1860 significantly curtailed the enforcement of Hindu and Muslim law in British India, effectively replacing the indigenous legal systems with the English concept of the 'rule of law.'

Even though the MA was fostered in such an isolated and conservative non-nation-state as Nepal, it developed a concrete concept of 'rule of law.' In the mid-nineteenth century, the Nepalese political actors were not familiar with that European concept on any intimate basis, nor was there any colonial force to directly push for the establishment of such a system. Therefore, it is worth looking at the concept of 'rule of law' as conceived in the MA, which was made possible by Jaṅga Bahādura's encounter with the English rule of law in 1850s. It is striking, for example, that the notion of legality in the MA was extended to apply to the monarch himself.255 The text states that all—from the king to his subjects—are bound by the law and that deviating from it will result in punishment irrespective of deviator's status. This can be extracted through the preamble:

[…] whoever does not render verdicts and oversteps his bounds when rendering verdicts or [performing] other [such] acts shall be punished as written in the *Ain* concerning that subject. […] Having said this, we three generations have ordered that all shall obey this *Ain*, starting with us and on down to our subjects. All officials (*kārindā*s) including the prime minister shall act in accordance to the *Ain*. 256

Similarly, the sovereignty of the Council257 defined in the MA in a way which resembles the legislative sovereignty of the English parliament, is another noteworthy element ensuring the rule of law. The Council,

<sup>254</sup> ibid. 139.

<sup>255</sup> See Cubelic & Khatiwoda 2017.

<sup>256</sup> *yasa kitābamā lekhiyā bamojimko nisāpha nigari ghaṭi baḍi pāri kājakāma nisāpha garnyālāi usai kurāko ainmā lekhiyā bamojim daṃḍa sajāya garnu*  […] *bhani hāmi tina pustā basi hāmidekhi raiyata takale yasa aina bamojimamā rahanu bhanyā hokum baksyau*. *śrī prāim minisṭara lagāyata kājakāma garnyā kāriṃdā yasai aina bamojima kājakāma garnu.* (MA-ED2/preamble).

<sup>257</sup> According to K.K. Adhikari (1984: 70), the Kausala (also known as *bhāradārī sabhā*) was called 'Council'. The term *kausala* is probably a corrupt form (*apabhraṃśa*) of the English term 'council'. B.H. Hodgson's (1880 [vol. 2]:

representing the military, civil service, judicial domains along with local officials and village notables, is constituted as both the supreme legislative and executive body, as well as source of law.258 For example, the MA stipulates that the Council had final authority to enact new laws, change previously existing laws and add the necessary laws. It is also extracted through the preamble:

[…] this is the volume of law written in response to the following order to the thrice venerable Mahārāja Jaṅga Bahādura Rāṇā G.C.B. Prime Minister and Commander-in-Chief: "Call the Council, which includes the *bhāradāra*s listed below, and prepare an *ain* as deemed proper in the Council." It was instituted on Thursday, the 7th of the bright fortnight of the month Pauṣa in the [Vikrama] era year 1910 with the approval of us members of three generations, [that is, the king's father Rājendra, King Surendra and Crown Prince Trailokya]. When it is necessary [for a portion] to be corrected or rejected by order of the Council and as witnessed by us, it should be [so] corrected or rejected and added as a new law.259

Moreover, the MA has clearly provided constitutional provisions to safeguard the autonomy of the kingdom. Not only the king, prime minister and subjects but also the autonomous Council was subordinated to higher state interests. The realm is no longer conceived solely as anybody's possession, but is itself regarded as the fundamental principle, as embodied in the territorial integrity of the state. For example, Section 34 'On the Throne' and Section 61 'On Land' contain regulations which prohibit the king, prime minister, Council and subjects from selling land to foreign governments or foreign subjects. This fits in with Burghart's observation that around 1860 the notion of a boundary

212) and D. Wright's (1877: 55) account verify that the Kausala /Kausī was the supreme legislative body even in the period preceding Jaṅga Bahādura.

258 Below, I shall present a diagram (see Part I, 1.7.3) listing the members of the Council according to their positions and castes.

259 *tapasila bamojimakā bhāradāra sameta rākhi kausala gari kausalamā ṭhaharyā bamojimkā aina tayāra garnu bhani śrī 3 mahārāja jaṅga bahādura rāṇā ji si bi prāim miniṣṭara yāṇḍa kamyāṇḍara ina ciphalāi hokum baksī banyākā aina hāmi tina pustābāṭa pani maṃjura gari samvat 1910 sāla miti pauṣa sudi 7 roja 5 kā dina lekhiyākā kitābamā hāmrā rohabaramā kausalakā tajabijamā sacyāunā khāraja garnyā ṭhaharyākā sacyāi khāreja gari nañā bhayāko aina thapi* […] (MA-ED2/preamble).

#### 54 — 1 Introduction

meant to delineate sovereign spaces gained acceptance as something to be established and preserved.260

If an enthroned king himself sells to neighbouring emperors or kings land forbidden to be sold by the prime minister and the Kausala, his subjects shall be permitted to replace such a king irrespective of however large the amount he has received [for it]. If the prime minister or the Kausala—[either] on orders [from the king] or on their own, without orders [from the king], and whether [or not] they receive a large sum for a tiny [piece] of land—sells land within [the country's] own borders to neighbouring emperors or kings, and if it is ascertained that such a prime minister, Kausala or official is untrue to [the king's] salt, know that such persons are [indeed] untrue to [the king's] salt. One may sell land to those who are [fellow] subjects who live in a house on land in one's own country.261

An enthroned king shall not sell his own land to neighbouring emperors or kings irrespective of however large an amount he might receive [for it]. Even if an enthroned king orders [such land] to be sold, neither ministers nor the Kausala shall sell it. If ministers or the Kausala—with or without orders [from the king], or for reasons of their own, [such as] receiving a large sum for a small [piece] of land—sells land within their own borders to a neighbouring emperor or king, they shall be considered rebels (*apsara*) that are untrue to their salt. All shall know them to be untrue to their salt. One may sell land to those who have come with their family and reside as subjects inside [our] own borders.262


<sup>260</sup> See Burghart 1984: 101–125.

The mentioned sections of the MA reveal that the state has emerged as an autonomous entity to which one pays loyalty. Especially interesting in these passages is the expression of collective identity, which binds everyone belonging to the country under a single rule of law and puts the interests of national sovereignty above any other kind, be it personal or institutional.

# *Jurisdictive autonomy and normative synergy between the Council and the judiciary*

As pointed out by D. Zolo,263 the sovereignty of parliament and independence of ordinary courts in making and administering statutory law have made British constitutional practices a lodestone in the political and legal history of the world. Such domestic practices led British colonial governments to introduce similar systems in their colonized territories. The British attempt to introduce positive law in colonial India can be taken as one such example. The social, political and legal systems of pre-colonial India and pre-MA Nepal were pretty similar. Given the large number of indigenous groups and their individual legal, administrative and judicial practices, the emergence of homogeneous legislation which could be widely implemented was not readily possible. Still, the MA appears to have been just such a unique piece of legislation. Including as it does power-sharing provisions among the king, Council and prime minister and allowing for the independence of the courts, it bears one of the most essential prerequisites of a constitutional form of government. The MA devotes several chapters to dealing with judicial procedure.264 As pointed out by K.K. Adhikari,265 the MA displays three important judicial features: it ensured for a quick disposal of lawsuits through a host of provisions that covered all important aspects of indigenous society; it replaced multi-faced scriptural Brahmanical law, which had been used for conducting lawsuits in the pre-codification period; and finally, to a great extent it provided unified and independent jurisdictive practices. More importantly, the courts were bestowed with a considerable degree of autonomy. To safeguard this autonomy, the MA explicitly protects judges from being influenced by

265 See K.K. Adhikari 1984: 274.

<sup>263</sup> See Zolo 2007: 7.

<sup>264</sup> For example, Articles 34–37, 40–48 and 53 of MA-ED2 figure prominently in this regard.

any authoritative actors when handing down court decisions. This is exemplified in the following section:266

Court judges, *ḍiṭṭhā*s and *bicārī*s, [and] the heads of *ṭhānā*s,267 shall decide matters on the order of lawsuits in accordance with the *Ain*. Even if an [oral] order or an order [in the form of] a *lālamohara* from the king or a signed directive (*daskhat*) from the prime minister to decide a lawsuit [in a way which] deviates from the *Ain*, [the above persons] shall not obey them. Lawsuits shall be decided in accordance with the *Ain*. They (i.e., judges etc.) shall not be fined or convicted of committing a crime for having disobeyed such a *[lāla]mohara*, *daskhat*, *hukuma*, 268 *marjī*, <sup>269</sup> oral order or *pramāṅgī*. 270

Further, section 21 on 'Court Affairs' makes the relation clear between courts and the Council, the supreme legislative body. The MA directs courts not to forward to higher authorities any lawsuit which can be conducted under the legal code. To be sure, lawsuits which cannot so be dealt with are to be brought to the Council.

When deciding disputes or court cases, the heads of courts or *ṭhānā*s, the heads of the east and west frontier courts or *dvāryā*s of *amāla*s271 need not refer [them] to the Council as long as a matter written about in the book of the *Ain* is before them. They shall decide [such cases] on their own. If they do not decide [such] lawsuits on their own but refer [them] to the Council, he who refers [them] to the higher authority shall be fined (if he is the head of a court) 20 rupees, (if a *ḍiṭṭhā*) 10 rupees,


(if a *bicārī*) 5 rupees, and (if a *bahidāra*<sup>272</sup> or the *dvāryā* of an *amāla*) 5 rupees. If lawsuits come up which either have not been written about in the *Ain* or conflict with details in it, they shall be referred to the Council. The Council shall act the matter and shall on due consideration have [new provisions] written into the *Ain* if needed to be written into law. If the details of it conflict [with the *Ain*, the Council] shall straighten out the details and define how to decide [such matters in the future].273

Furthermore, the MA not only provides that the judiciary will remain loyal to the nation but also explicitly provides safeguards that it will adjudicate properly, as the following section demonstrates:

From now onwards, when punishing or fining any [type of] offender or carrying out according to the *Ain* [such] other court-related matters [as] tax [audits], [annual] revenue due or account clearings, [the *aḍḍā*, <sup>274</sup> *adālata*, <sup>275</sup> *ṭhānā* or *amāla*] shall bring the *Ain* to bear and write down their pronouncement, stating: 'Perform such and such an action in accordance with such and such a section of such and such an Article.'276


Especially interesting in this context is the normative synergy between the Council and judiciary*.* On the one hand, the courts owe loyalty to the Council as the supreme legislative body, while on the other hand the autonomy of the courts is explicitly mandated, the court officials being directed not to consult the Council as long as court decisions can be made on the basis of the written provisions of the *Ain*. The mentioned separation of powers between the Council and judiciary implies that the state was designed to be a polity of autonomous, mutually complementing forces to which state employees including all highranking and local actors owed collective loyalty. The implementation of the MA's jurisdictive provisions, as shown in the excerpt above, is bolstered by its directing judges to cite the Articles and sections of the MA pertinent to their court decisions. Although the provisions given in the MA bear witness to a solid conceptual development of the autonomy of civil and judicial administrative functions, the extent to which such autonomy had a long-term impact on the Nepalese political cultural needs to be analysed within a larger frame.

#### 1.5.3 The Legitimation of Foreign Diplomacy

Pṛthvī Nārāyaṇa Śāha in his DivU expressed the geographically sensitive location of the Nepalese kingdom famously as 'a gourd between two rocks.' Consequently (he added), "Maintain a treaty of friendship with the emperor of China. Keep also a treaty of friendship with the emperor of the southern sea (the Company)."277 In mid-nineteenthcentury Nepal, foreign diplomacy continued to be crucial because of a possible threat to the country's political and economic autonomy, especially from the colonial government in British India. Jaṅga Bahādura, too, needed to carefully craft his foreign diplomacy towards both neighbouring imperial powers, British India and China. Before the emergence of the MA, Nepal had been stationing envoys at strategic places.278 Jaṅga Bahādura felt the absence of a unified foreign policy as a potential enormous threat from alliances against him. It was possible that anybody who was against him could at any time plan a domestic conspiracy, especially involving an alliance with the southern colonial power. Therefore, through the vehicle of the MA, he paved

<sup>277</sup> Stiller 1989: 42.

<sup>278</sup> See M. Bajracharya, Cubelic & Khatiwoda 2016 and 2017 for a further discussion about the envoys stationed in colonial India by Nepal.

the way for a clear foreign policy by introducing a centralized foreign diplomacy apparatus under strict supervision within the state's legal framework. This helped to prevent unauthorized encounters between domestic actors with non-domestic powers, as the following section spells out:

Somebody who lies about [a matter,] thereby bringing about unexpected calamity [in relations] with China or the English or creating [other] hindrances for the realm, shall be dismissed from his post (*jāgīra*) and put in prison for 12 years. If he agrees to pay a fine [commensurate with the prison sentence], the fine shall be taken in accordance with the *Ain* and he shall be taken outside the city (i.e., sent into exile). Whoever practises fraud or deceit regarding matters relating to China or the English shall, after [due] consideration by the Council, be put in prison for 6 years. If he agrees to pay a fine of 5 rupees per month, he shall be freed.<sup>279</sup>

This section of the MA shows that actions creating rancour with China and British India were a serious offence, whether committed by government officials or ordinary subjects. Moreover, the MA not only prohibits subjects from creating enmity with the neighbouring powers but also explicitly forbids the king and prime minister to do so. This is stated in the following sections:

If a king who has ascended the throne gives, without the advice of the chief minister (i.e., the prime minister), an order which [is likely to] spoil friendly relations with the emperors of the south or north, engages in domestic conspiracy or gives orders which corrupt [his] own *umarāva*s, *bhāradāra*s, army and subjects, he shall be removed from the throne and it shall be granted to the [next] person on the roll of succession; that one shall reign.280


If a minister joins forces with other kings, northern or southern, and is set to hand over [to them] the king's realm (*rājāko muluka*), such a minister shall be executed.281

Jaṅga Bahādura was aware that only peaceful and friendly relations with British India could secure the autonomy of the country, and by extension his own regime. This is why the MA adopted such norms of interstate foreign diplomacy as diplomatic immunity:

If an envoy or resident from China or England commits homicide or any [other] crime after coming to our realm, the courts of [our] own government shall not investigate the case. Their [own] government shall be written to.282

The MA, then, not only concerns itself with civil and criminal justice, administration and the regulation of social order, but also sets up norms for the conduct of international diplomacy.

### 1.5.4 The Reform of Brutal Corporal Punishment

A penal reform that established more lenient forms of punishment is another key feature of the MA, particularly in the case of punishments imposed for committing certain heinous offences. A document issued in 1805, which was copied for the Regmi Research Collection,283 can be taken as an example of the brutality of punishment during pre-MA times. It contains the decision handed down, probably by the king, on a lawsuit forwarded by an anonymous local judicial official and involving adultery committed by a slave with an unmarried girl belonging to the Alcohol-drinking Magar caste. Addressed to an *amālī*, <sup>284</sup> it directs him to punish the slave by taking out his eyes and cutting off his nose,

<sup>281</sup> *bajirale rājāko muluka aru uttara dakṣiṇakā rājāsita mili dina lāgyo bhane testā bajiralāi kāṭi māridinu*. (MA-ED1/1 §33).

<sup>282</sup> *cīna aṃgrejakā ukīla bakīla rajiṭanṭale hāmrā mulukmā āi kehi khuna taksīra garyā bhanyā tīnako nīsāpha āphnā sarkārakā adālatabāṭa herna hudaina. unaikā sarkāramā lekhī paṭhāunu*. (MA-ED1/2 §17).

<sup>283</sup> See NGMPP E 2426/187.

<sup>284</sup> An *amālī* is the chief of an *amāla* office, which is a revenue functionary responsible for a regional administrative unit. The *amālīs* hold judicial powers within their role.

ears and genitals.285 B.H. Hodgson also records similar forms of punishment being carried out in 1826.286 These practices were based on the *dharmaśāstra*s. The NyāV prescribes barbarian forms of punishment even for minor offenses.287 For example, if somebody out of spite spits at or urinates on a person belonging to a higher caste, the king is to have respectively his lips or penis cut off.288 Such cruel forms of punishments are notably absent in the MA. Thus, the MA sentences a slave to death only in the case of having intercourse with the wife, daughter or sister-in-law of his master, or having intercourse with unmarried girls below the age of eleven who belong to a Sacred Thread-wearing and Alcohol-drinking caste.289 In similar cases involving persons other than the ones just mentioned, the punishments are branding, imprisonment, a fine or enslavement depending on the conditions.290 Similarly, the ban on interrogation by ordeal or divine means (*dīvyaparīkṣā* or *niñā* in the MA) is another big step forward for penal reform in the MA.

The first occurrence of the concept of ordeal in Indian classical literature, according to R.W. Lariviere291 in the *Āpastambadharmasūtra* (hereafter ĀpDhS),292 shows the long history of practising such interrogation methods. The NyāV follows along in the same tradition, providing a detailed description of the five following forms of divine interrogation to be undergone by suspects accused of having committed heinous crimes such as theft, murder and adultery: balance (*ghaṭa*),


fire (*agni*), water (*udaka*), poison (*viṣa*) and holy water (*koṣa*).293 B.H. Hodgson's account verifies that such techniques were practised during Nepal's pre-MA period.294 However, the procedures for the water ordeal presented in his account differ from the NyāV.295 In this context, K.K. Adhikari296 argues that trial by ordeal was a common practice in disputes over debts before the beginning of Rāṇā rule. Nevertheless, available evidence does not suggest that trial by ordeal was a very common practice. For example, according to Hodgson,297 interrogation by ordeal could only be carried out upon approval of the king, and only when both parties, the complainant and defendant, agreed. F.B. Hamilton298 does note, though, that after the Gorkhālī conquest the practice of trial by ordeal became more frequent. B.H. Hodgson for his part states that trial by ordeal was conducted in not only civil but also criminal cases.299 In any event, the MA completely abolishes trial by ordeal. Under it, a judge who interrogates an offender by having him held under water would be similarly treated if the suspect dies.300 Furthermore, judges who base their decisions on ordeals are fined twenty rupees. Such decisions are rendered invalid and the case is brought before the court again. The MA explicitly provides for conducting trials on the basis of formalized procedures of interrogation.301 Similarly, it abolishes some previously existing cruel practices, such as the *siṭhi jujha*—a vigorous stone-throwing festival, which was started by Guṇakāmadeva at the Kaṅkeśvarī Kālī temple in Kathmandu and continued to be held annually.302 Now, though, anyone who played such a game was liable to a fine of two rupees. If the fine was not paid, the culprit was put into prison.303 This and similar regulations were applied throughout the country,304 the strict ban on widow burning being especially noteworthy.<sup>305</sup>


Summing up, the MA was Nepal's first proper codification of law in which the concept of positive law was introduced as the guiding principle meant to place the country's sovereignty above any individual or certain powerful institutional interest. The concept of the rule of law was established, being grounded in the autonomy of the courts and in the Council as both the supreme legislative body and the final interpreter of the *Ain* whenever legal norms collided. While it is on the whole a homogeneous code of law, the MA, interestingly, still accepted a certain amount of legal relativism and legal pluralism within its unified legal framework. The specific ways in which it attempted to balance such dichotomies as patrimonialism and independent statehood, royal sovereignty and legal strictures on the king, divine kingship and patriotism is a reminder that global concepts require careful historical contextualization if some semblance of rationality to national trajectories is to be reconstructed.

#### **1.6 The Various** *Ains***: An Overview**

The MA of 1854 was gradually refined, amended and expanded, often incorporating *ad hoc* ideas, and hence the different versions each stand out for a range of diverse notions, formulations and editorial characteristics. K.K. Adhikari notes major amendments of the MA in 1862, 1872, 1888, 1904, 1910, 1918, 1923, 1927–1928, 1930, 1933, 1942, 1947–1948 and 1955.306 The last version of the MA dates from 1962, and is vastly different from the first. In this section, I shall present the major amended versions of the MA.

#### 1.6.1 The Major Amended Versions of the MA

*The 1865–1867 version*

K.K. Adhikari opines that one of the first major revisions of the MA of 1854 was executed in 1862.307 However, his assumption is neither referenced, nor has the edition in question ever surfaced. In his defence, A. Höfer notes an amended version prepared between 1865 and 1867

<sup>306</sup> See K.K. Adhikari 1976: 107; compare Fezas 1990: 301–310.

<sup>307</sup> See K.K. Adhikari 1976: 107.

(VS 1922–1924) that was neither completed nor published.308 As discussed above,<sup>309</sup> scholars who have immersed themselves in the study of the MA often consider MA-ED2 to be the same as the first version, MA-1854. Nevertheless, the preface of the printed edition clearly states that it is based not on the *Ain* prepared in 1854,<sup>310</sup> but on a copy of the amended version of it prepared between 1865 and 1867 (VS 1922–1924).<sup>311</sup> For example, section five of the Article 'On Adultery' was deleted in MA-ED2, which is but one event in the continuous transformation of the MA.<sup>312</sup>

The first amended version added some new Articles and provisions, and deleted and corrected a number of sections. Although this version does not feature any fundamental change to the first edition of the MA, it nevertheless testifies to an ever-increasing wish to improve the original code.313

#### *The amended version of 1870*

The MA was amended for the second time in 1870 (VS 1927).<sup>314</sup> Although the 1870 version again exhibits only a few changes to its predecessors of 1854 and 1865–1867, some of them turn out to be, in fact, quite crucial. In order to safeguard parity before the law, for example, the MA of 1854 had explicitly strengthened the power of the judges to the extent of allowing them to put the prime minister himself into prison were he to issue unlawful orders or indulge in nefarious activities:


If a *pramāṅgī* (written order) is issued by the thrice venerable great king, prime minister, general, colonel or any other person to the *hākima*/head of a court directing him to set free a person who has been put in prison for having confessed to a crime but who has not yet signed a letter of confession or is still under interrogation, the *hākima*/head of the court shall once write [pertinent] details [to the issuer of the *pramāṅgī*]. If the [*pramāṅgī*] is again issued even after declaration of [pertinent] details, [the *hākima*/head of the court] shall put [the issuer of the *pramāṅgī*] into prison. If the *hākima*/head [of the court] fails to put [the issuer of the *pramāṅgī*] into prison, he (i.e., the *hākima*/head of the court) shall be fined 5 rupees.315

In something of a backlash, however, the MA of 1870 retracted much of the judiciary's authority and immunity by adding a new section, which elevates high-ranking government officials above the *Ain*, as demonstrated clearly in the following:

If the king, minister, general, *cautarīyā*, royal priest, colonel, *kājī*, *saradāra*, *bhāradāra* [and] so forth gives an order to the *hākima*/head, *ḍiṭṭhā*, *bicārī*, *amālī* or *dvāryā* [and] so forth of an *aḍḍā*, *gauḍā*, <sup>316</sup> *adālata* or *ṭhānā* to reverse a court decision (lit. to have the winner lose and the loser win) [in a manner] that is not in keeping with the *Ain*, they shall request [the giver of the order,] saying: 'We have taken an oath to uphold the *dharma*, so we cannot do something that, by committing injustice, will lead us to hell.' If an order is given even after such a request is made, in spite of the fact that an injustice would be done according to


the *Ain*, [the *hākima*/head etc.] shall request [the following]: 'Issue the order [in the form] of a *[lāla]mohara* or *daskhata*  [to that effect], and I shall act accordingly.' If a *lālamohara* or *daskhata* is issued, he shall do as written in the order. […]<sup>317</sup>

In a marked departure from earlier versions, the MA of 1870 introduces the practice of tying the execution of justice to a solemn vow, a written oath in the name of divinity and the *dharma* being required of judges set to be appointed to the courts.

During the annual re-allotment of posts (*pajanī*) [including] assigning the government positions of head*/hākima* of a court, *ḍiṭṭhā*, *bicārī* and so on down to chief clerks, the *mukhtiyāra*  shall assign (*dinu*) [the posts] to those who are capable of working and deemed able [to do so] in accordance with the *Ain*. He [the *mukhtiyāra*] shall not assign these posts to persons who are not worthy of them or who have been convicted of committing a crime. When assigning [these posts], [the *mukhtiyāra*] shall have [the qualified candidates] write a statement to the effect: 'I shall hand down judgements in accordance with the *Ain* regarding matters dealt with in the *Ain*, bearing ethics and the *dharma* in mind to the extent that my intellect and insight can. If something turns up which is not [dealt with in the *Ain*], I shall refer the matter to the *sarkāra* and shall act on his [written] orders, being true to his salt. If I do any injustice—take a bribe or show favouritism—[authorities] shall deal [with me] in accordance with the *Ain*.' If the re-allotment is not done accordingly, [the assignment of positions] shall be refused.<sup>318</sup>


Similarly, section 3 'On Court Arrangement' no longer explicitly prescribes punishment for the prime minister if he deviates from the legal norms set out in the *Ain*. It is all the more interesting that religious sentiment here asserts itself over standards of jurisprudence established by the MA of 1854:

If it is known that, the king or the brothers or sons of the minister have interfered in a lawsuit by reversing the [court] decision (lit. by having the loser win and the winner lose), the minister shall undo such [a decision] and justice shall prevail in accordance with the *Ain*. If the minister does not do so, or if he himself, as the minister, reverses [a court decision] (lit. has the loser win and the winner lose), having taken a bribe, he shall be declared a bastard's son (lit. born of two fathers) and untrue to [the king's] salt. [Such] a minister shall be punished; by order of His Majesty, and if not by him, then the Lord will punish [him].<sup>319</sup>

The interesting phenomenon here is that the MA of 1870 steps back from the secular jurisdictive practices put in place in the MA of 1854 to empower the courts with absolute autonomy. The MA of 1870 started limiting the autonomy of the judiciary with the aim of strengthening Rāṇā authority. In addition, editorial and linguistic changes apparent in the MA of 1870 markedly simplify the complex language structure of the 1854 MA, with many small sections supplanting what previously were long paragraphs ceremonial in tone.320 Unnecessary provisions have been deleted, and long sections have been rephrased. Illustratative of this stylistic reboot is a point to the fact that both the MA of 1854 and the first amended version narrate three lengthy stories to highlight reasons why one should not invest one's fiscal resources in foreign lands,321 whereas the MA of 1870 dispenses with such didactic elements and merely formulates restrictive bans on investment in foreign

*garnu bhaṃnyā muculkā lekhāi dinu. so bamojima nagari diyā badara huncha*. (MA 1870/1/1 §1).

319 *rājāle ra bajirakā bhāi chorā kaisaile kasaikā jhaijhagaḍā gaihra māmilā parnyāmā hārnyālāi jitāunyā jitanyālāi harāunyā gari chināyāko rahecha bhanyā testā māmilā bajirale ulṭāi aina bamojima nisāpha garidinu. eti kurā nagarnyā ra arkāko ghusapesa khāi āphu bajira bhai jitanyālāi harāunyā hārnyālāi jitāunyā dui bābule janmāyāko nimaka harāma bajira ṭhaharcha. inalāi jarivānā garnu. śrī 5 mahārājadhirājako hukuma vāhābāṭa nabhayā iśvarale sajāe garnan.* (MA 1870 p. 77 §3).

320 See MA 1870 p. 1–2 §§1–5.

321 See MA-ED2/1 §1.

countries: no one—from king to subjects—is to construct a temple, *dharmaśālā,* rest house, bridge, water spout, pond, resting place (*cautārā*), cremation site, well, garden or the like in a foreign realm.322

#### *The amended version of 1885/1888*

Another major alteration of the MA was carried out under the prime ministership of Vīra Samsera.323 Although completed, the final version only saw publication two years later, in 1888 (VS 1945). As stated in the preface to the *Ain*, the reason for this alteration was the belief that the previous 1870 MA was characterized by convoluted and obscure language, making it difficult to comprehend. Equally important, it was ambivalent in multiple instances. Many provisions of the earlier *Ain*, it averred, had not been stated clearly, and not only once, but repeatedly324 throughout the work, upending any claim to easy usability. It is these supposed drawbacks, which the MA of 1885 sought to correct, stating boldly on its very title page:

When the earlier *Ain* was being formed it became rather prolix, [many] of its provisions having been unnecessarily iterated twice [or even] three times, resulting in disparities in the applicability of penal measures—two to three [incompatible] provisions could be applicable to the same case. [Therefore,] Prime Minister Deva Samsera had [this] *Ain* produced which, being to the point, covers all the matters [as in the previous *Ain*] but so that one provision does not contradict another.325

The amended version was divided into five simplified chapters, with briefer Articles and a more compelling underlying structure. Material departures from the 1854 version remain minimal, at least with regard to the section on homicide. In other instances, emendations testify to

<sup>322</sup> See MA 1870 p. 1 §1.

<sup>323</sup> He attended his office from 5 March 1901 to 27 June 1901.

<sup>324</sup> For example, the section 34 of the Article 'Regarding the Throne' is also placed as the section 61 of the Article 'On Land' (see MA-ED1/1 §34 and 5 §  61).

<sup>325</sup> *aghi āīna bandā sāhrai lambāyamāna bhai ra dobharā tebharā smeta parī sajāya smeta namilyāko yakai muddā sajā*<..>*nāmā 2|3 mahala lāgnyā hunāle śrī 3 mahārāja bīrasaṃsera jaṅga rāṇā bāhādūra* […] *bāṭa choṭakarī tavarasaga sabaikurā pugnyā yekā mahalkā māmalā dośrā mahalko āina nalāgnyā garī banāibaksyāko āin*. (MA 1888/Cover page, in NGMPP E 1214/3).

the growing experience acquired in legal practice within the contemporary political culture. The notion of divine kingship is a case in point. As we have seen above, the MA of 1854 rhetorically provides the king an important role as a Hindu king within the given legal framework by defining the county as the only remaining Hindu kingdom in the Kali era, thereby signalling the purity and uniqueness of its polity. By contrast, the MA of 1885/1888 redefines the country as the "meritorious land which has Paśupati's [Jyotir]liṅga and the venerable Guhyeśvarīpīṭha."326 Poignantly, the king no longer enjoys any religiously or culturally derived legal privileges. At the same time, the prime minister's position as delineated in the 1870 MA was significantly strengthened, since he was granted the authority to overturn court decisions, even if the principles on which they are founded are in clear accordance with the *Ain*. The following section demonstrates this well:

Do not set [a person] free if ordered by anyone other than the prime minister. If the commander-in-chief orders [somebody] to be set free, [the concerned authority] should provide him with information of [what led to] the imprisonment. If the commander-in-chief does not agree [to withdraw the request,] even after being so informed, the prime minister shall be informed. Even in the case where a *pramāṅgī* of the prime minister has been received, [the concerned authority] should take the [ordered] action only after informing [the prime minister of the said details].327

A further significant change is the restriction placed on widow burning (*satī polnu*), part of the amended provisions of the 1885/1888 MA. Although a theoretical restriction was introduced in the MA of 1854328—itself an initial step towards the full abolition of widow burning—the amended MA of 1885/1888 places stronger (i.e., more proactive) restrictions on widow burning by instructing local officials to actively dissuade widows from committing self-immolation. If their exhortations fall upon deaf ears, these officials are now bound to inform

<sup>326</sup> […] *śrī pasupati liṅga guhyeśvarīpīṭha bhayāko yasto puṇyabhūmī* [...]. (MA 1888/3/22 §1, in NGMPP E 1214/3).

<sup>327</sup> *prāim mīniṣṭara bāheka arule choḍideu bhanyā na choḍanu. kamyāṇḍara īna cīphale choḍideu bhanyā yo vyahorāmāsaga thuniyāko ho bhani jāhera garnu. jāhera gardā pani namānyā prāim mīniṣṭarasaṃga jāhera garnu. prāīm mīniṣṭarako pramāṅgī āyā pani jāhera gari mātra garnu*. (MA 1888 p. 5 §13, in NGMPP E 1214/3).

<sup>328</sup> See Michaels 1993 and 1994.

the local court or, where there was no major court in the area, any estate office. A widow is allowed to be burnt only if a decision to that effect is made by the court or office.329

#### *The amended version of 1935*

In 1935, a new version of the MA was prepared during the prime ministership of Juddha Samsera Rāṇā.<sup>330</sup> This edition was in effect until the end of the Rāṇā regime (1950). One of the major changes of this edition was the abolition of slavery.331 Compared to the latter two preceding editions of the MA, this edition contained more practical court procedures to shield the court from undue influence by outside authorities and to otherwise reinforce the autonomy of the judiciary.<sup>332</sup> The role of the king was further restricted by empowering the prime minister to take on the role of a court of appeals.<sup>333</sup> The Bintīpatraniksārī Aḍḍā, a department directly under the prime minister, was given authority to evaluate petitions submitted to the prime minister.<sup>334</sup> On the other hand, the prime minister was not given any power to overturn court decisions:

If a *pramāṅgī* is issued [directing judges] to [settle] a case by taking a view that accords with an order from the prime minister or a *marjī* from the commander-in-chief, then if one can, on the basis of the *Ain* and *savālas*, act in accordance with the *pramāṅgī*, [the judges] shall accept [it] and so act on the basis of the *Ain* and *savālas*. If one cannot so act in accordance with the *pramāṅgī*, [the judges] shall not accept such a *pramāṅgī*. [It] shall be sent back [to the issuer]. If such a [*pramāṅgī*] is returned, the Bintīpatraniksārī Aḍḍā shall inform [the prime minister or


<sup>329</sup> See MA 1888/4/17 §1, in NGMPP E 1214/3.

commander-in-chief] and send it [back] to the [judges] [only] after the criteria of the *Ain* and *savālas* are met.<sup>335</sup>

The prime minister, then, was entitled to order the courts to reinvestigate and re-evaluate cases in instances where petitions yielded substantial evidence of error.

The MA of 1963, a proud project of King Mahendra's, was based on the first constitution of the country, and eventually came to replace prior editions of the MA that had been prepared and operative during the Rāṇā regime. As pointed out by S. Kumar,336 the pre-Mahendra MAs did not constitute the entirety of the law. Therefore, after the promulgation of the MAs, various other legal documents such as *khaḍganisāna*s*,* <sup>337</sup> *sanada*s, *savāla*s and *rukkā*s were issued by the king, prime minister and other officials. Given the enormous number of supplementary laws, it was difficult for court officials to master the intricacies of particular aspects of the law. Therefore, fifteen years after the downfall of the Rāṇā regime, Mahendra formed a law commission to draft a new MA, which he then decreed. It was again divided into five parts and contained procedural, and civil and criminal laws. The major revolutionary concept of this MA was the abolition of the caste system, resulting in a new age of social development. Further, it regulated child marriage, provided property rights for women to an extent and also abolished polygamy. However, regardless of the abolition of caste system, the new MA held firm to the concept of a confessional Hindu state, as envisioned from the first MA of 1854 on.<sup>338</sup>

To sum up, the basic norms of the legal system as introduced by Jaṅga Bahādura Rāṇā in the MA of 1854 remained in place until the end of Rāṇā regime. The legitimacy in the 1854 MA, based on a shared collective identity grounded in strong moral-affective ties between the state domain and subjects, subsequently became the reference point for all further development of the succeeding *Ains*. Therefore, as A. Höfer

<sup>335</sup> *prāim miniṣṭarakā hukuma mutābika ra mukhatyārakā marjī mutābika herneko pramāṅgī bhaī āemā aina savālale so pramāṅgī bamojima garna hune rahecha bhane bujhī liī aina savālako rīta puryāī so bamojima garnū. aina savālale so pramāṅgī bamojima garna nahune rahecha bhane testo pramāṅgī bujhilinu pardaina; phirtā garī paṭhāī dinū; testo phirtā āemā bintipatra niksārī aḍḍābāṭa doharyāī jāhera garī aina savālako rīta puryāī paṭhāī dinū*. (MA 1935 p. 146–147, in NGMPP E 1415/3)

<sup>336</sup> See Kumar 1964: 62–63.

<sup>337</sup> *Khaḍganisānas* were executive orders issued by the Rāṇā prime minister, typically bearing a seal with the image of a sword (*khaḍga nisānā*).

<sup>338</sup> See MA-1963.

#### 72 — 1 Introduction


*Table 1:* A list of the major amendments to the MA after 1963


*Table 1 (continued)*

rightly understood,<sup>339</sup> the MA of 1854 cannot be taken as having strengthened the dictatorial power of the Rāṇā regime. On the contrary, it institutionalized a new political culture under Jaṅga Bahādura Rāṇā, who was provided with well-defined executive powers to the detriment of other domestic institutions, first and foremost the monarchy.

The major amendments of the MA after 1963 are listed in Table 1.<sup>340</sup>

#### **1.7 The Caste System in the MA**

The concepts of purity (*śuddha*) and pollution (*aśuddha*) are key structural elements of everyday life in pre-modern Nepalese society. Religious values and moral conduct are defined in terms of them. Impurity comes about either because of impure acts as defined by custom, or because of birth—by being born into a lower caste. For example,

<sup>339</sup> See Höfer 2004: 2.

<sup>340</sup> The table is based on the seventh (MA-ED-7A), ninth (MA-ED-9A) and tenth (MA-ED-10A) editions of the MA. Compare the table given in the translation of the MA-1963 prepared by the Nepal Law Commission.

drinking liquor is considered as an impure act for Sacred Thread-wearing caste groups in the MA.341 The following section demonstrates this:

If anyone belonging to a Sacred Thread-wearing caste group drinks liquor which he has either made at home, brought from somewhere else or gone somewhere else [to consume,] and if he also contaminates fellow caste members [by eating] cooked rice [together with them], his share of property shall be confiscated in accordance with the *Ain*, his Sacred Thread shall be removed and his caste status shall be degraded to the pure caste of Non-enslavable Alcohol-drinker. If he has not contaminated fellow caste members [by eating] cooked rice [together with them], his share of property shall not be confiscated; only his Sacred Thread shall be removed and his caste status shall be degraded into [that of a] Non-enslavable Alcohol-drinker.342

Similarly, the MA categorizes Kāmīs, Sārkīs, Cunāras, Hurkyās, Poḍhyās etc. as impure caste groups because of their low birth.<sup>343</sup>

There has already been much discussion of the caste system (*jāti/jāta*)*.* <sup>344</sup> According to D. Quigley,345 the terms *varṇa* and *jāti* are indiscriminately translated as caste in various European sources. Since the terms *varṇa* and *jāti* are two different indigenous concepts in Hindu culture, the term 'caste' cannot stand for both*.* Quigley interprets *jāti*  and *varṇa* as follows:

It is very clear, then, that *varṇa* and *jāti* are two different concepts, yet both have been translated as 'caste.' What exactly is the correspondence between them? Perhaps the most widespread


opinion is that *varṇa* is simply a theoretical category never actually encountered on the ground while *jāti* is the 'real' operation unit, the real caste. [As] … many Hindus themselves profess, the world is actually made up of units called *jāti* any one of which can, in theory, be slotted into one of the more embracing *varṇa* categories, or into the residual category of Untouchables.346

However, the MA—in contradiction to the common understanding347—uses the term *jāta* to refer to both, caste class (*varṇa*) and caste group *(jāti*).<sup>348</sup> For example, Upādhyāya Brahmins, Jaisī Brahmins, and Rājapūtas are referred to as *brāhmaṇa jāta*, <sup>349</sup> *jaisī jāta*<sup>350</sup> and *rājapūta jāta*<sup>351</sup> respectively. Such uses of the term *jāta* seem to follow the Hindu *varṇa*-system. However, the MA also terms the Mecyās, a Terai indigenous ethnic group, the Mecyā *jāta*, and Muslims the *musalmān jāta*, thus applying the term *jāta* to tribes and religious groups respectively. The following passage demonstrates this:

[The following decision was made on] Saturday, the first day of the bright fortnight of Pauṣa in the year [VS] 1917: It became apparent that the people of Mugalāna do not accept water [touched by] the Mecyā caste, who live at Morang district in Madhesa of the Gorkhā realm, owing to the fact that they consume buffalo, pig and chicken meat. [The subjects of] our realm, too, do not accept water from the Mecyā caste. While [discussing the question] in the Kausala of the *bhāradāras* whether water can be accepted from the members of Mecyā caste or not from now [on], the Kausala of the *bhāradāras* decided the following: Water shall be accepted from Mecyā for the [following] reasons: [a] water from Newar, Magara, Guruṅg, Bhoṭe and Lāpacyā is also accepted in our realm, although they, too, consume buffalo, pig, chicken, cow and elephant meat; [b] earlier, water had been accepted from the Mecyā caste and sons and daughters of theirs are in the palace as slaves; [c] they do not accept water from Water-unacceptable and Untouchables and Muslims; [d] they respect Śiva as their God, and therefore

351 See MA-ED2/114 §1.

<sup>346</sup> Quigley 1993: 5.

<sup>347</sup> See, for example, Marriot & Inden 1985: 349.

<sup>348</sup> See Höfer 2004: 85–87 for a detailed description regarding the interpretation of the term *jāta* in the context of the MA.

<sup>349</sup> See MA-ED2/113 §1.

<sup>350</sup> See MA-ED2/115 §3.

#### 76 — 1 Introduction

they are the caste whose path is Shaivism. From today onwards, whoever [belonging] to the Parvatīya Thāru caste does not accept water from Mecyā caste shall be fined 5 rupees. If the fine is not paid, he shall, in accordance with the *Ain*, be imprisoned.352

The socio-cultural and caste classifications of the people of Nepal in the 1854 MA are highly complex, reflecting the multitude of intermixed ethno-caste groups and diverse individual cultures.353 Since the caste system of Śāha and Rāṇā Nepal does not seem to follow the Brahmanical *varṇa*-system of dharmashastric practices, it is hard to reach a conclusion regarding the conceptual roots behind the caste system of nineteenth-century Nepal. In distinction to the Brahmanical orthodox *varṇa*-system laid down in dharmashastric texts, the features of the MA's caste system are based in part on dharmashastric ideas but more so on customary practices. For example, as mentioned above, the Mecyā caste was considered as Water-unacceptable (but probably Touchable) caste group in the MA of 1854. However, their caste status was upgraded as Water-acceptable in 1860.354 This indicates that Nepal's caste system was not always bound to Brahmanical orthodox thought. The above example shows that impurity was not a question of personal likes or dislikes but depended on social status, which was deeply rooted in customary practice. Neither any particular *śāstra* nor the state could interfere in the matter. The state was forced by circumstances to decide upon the purity status of the Mecyā community on the basis of established customary norms. This indicates that while the state played the role of lawgiver, it had no inclination to break with existing social practice irrespective of what the *śāstra*s teach. The caste history of Nepal shows, rather, some flexibility when it comes to redefining the caste


*Figure 1:* A *lālamohara* (DNA 14/28) issued by King Rājendra in 1822 (VS 1879)

status of certain categories of people. For example, the Magara caste group was upgraded to Non-enslavable Alcohol-drinkers in a *lālamohara* issued in 1822. It reads as follows (see Figure 1):

Hail! [A decree] of him who is shining with manifold rows of eulogy [such as], 'the venerable crest-jewel of the multitude of mountain kings' and Naranārāyaṇa (an epithet of Kṛṣṇa) etc., high in honour, the venerable supreme king of great kings, the thrice venerable great king, Rājendra Vikrama Bahādura Samsera Jaṅgadeva, the brave swordsman, the divine king always triumphant in war.

[Regarding the following]: To the Magaras throughout the Kingdom, east of the [river] Bherī and west of the [river] Mecī. It has come to our attention that ---1--- (i.e., venerable father of Rājendra) exempted you (i.e., Magaras) from the *aputāli* <sup>355</sup> and

<sup>355</sup> *Aputālī* is an adjective that denotes being 'childless', particularly in the context of a deceased man who has not left behind any male offspring. It refers to property that lacks a son as the rightful heir, thus becoming escheatable property or property that reverts to the state in the absence of a legitimate heir.

#### 78 — 1 Introduction

*cākacakui* 356 [taxes]. Today we have exempted you also from the *pharnyāulo*357, *bāksyo* and *gvāsyo* [taxes]. Additionally, we have made [the following] regulation and [let it be written in] a copperplate: Regarding the crime of committing adultery, [Magaras] shall be punished with a fine but shall not be enslaved [anymore]. Tuesday, the 8th of Āśvina, in [Vikrama era] year 1879. May there be auspiciousness.<sup>358</sup>

The following subsection presents a brief overview of the caste system as laid out in the MA and prior to it.

# 1.7.1 History of the Caste System

An initial attempt to standardise and homogenise the caste hierarchy in Nepal was undertaken after the conquest of Kathmandu Valley by Pṛthvī Nārāyaṇa Śāha in 1769. According to B. Acharya, the king did not try to completely infuse Gorkhālī social and cultural practices into the Newar culture, nor did he entirely accept the previously existing Newar social and cultural practices of the Malla kingdoms.<sup>359</sup> He aimed at a fusion of the pre-existing social and religious culture of Kathmandu Valley and the newly introduced Gorkhālī culture, in an effort to create a culturally more coherent kingdom. For example, a certain Machindra and his family of Dhalāche Ṭola in the city of Patan were punished with enslavement after Kathmandu was conquered by Pṛthvī Nārāyaṇa Śāha, and this resulted in their caste degradation. However, Gīrvāṇayuddha Śāha issued a *lālamohara* and emancipated Machindra and his family


1.7 The Caste System in the MA — 79

*Figure 2:* A *lālamohara* (DNA 12/65) issued by King Gīrvāṇayuddha in 1802 (VS 1858)

from slavery in 1801, thereby reversing the prior order and readmitting them into their former caste. The *lālamohara* reads (see Figure 2):

[Fol. 1r] Hail! [A decree] of him who is shining with manifold rows of eulogy [such as], 'the venerable crest-jewel of the multitude of mountain kings' and Naranārāyaṇa (an epithet of Kṛṣṇa) etc., high in honour, the venerable supreme king of great kings, the thrice venerable great king, Gīrvāṇayuddha Vikrama Śāha, the brave swordsman, the divine king always triumphant in war.

[Regarding] the following: To Machindra of Dhalāche Ṭola in the city of Patan. Earlier, when Nepāla (the Kathmandu Valley) was conquered, your community was uprooted and made slaves. Today, I have freed you and your sons and daughters by removing

#### 80 — 1 Introduction

the title of your status as slaves. Mindful of proper conduct (*khātirajāmā*), perform together with your fellow caste brothers the acts of *dharma* that have been passed down within the tradition of your clan and arrange marriages for your sons and daughters.

Wednesday, the 12th of the dark fortnight of Caitra in the [Vikrama era] year 1858. [May there be] auspiciousness.

[Fol. 1v] Attested by Bam Śāha, witnessed by Bakhatavāra Siṃha, attested by Sera Bahādura [and] attested by Narasiṃha.

There is no extensive historical evidence for an elaborate caste system in the Kathmandu Valley before the time of Jaya Sthiti Malla. However, there has been some speculation about its existence on the basis of a few Licchavi inscriptions. For example, N.R. Panta, quoting the Mānadeva and Vasantadeva inscriptions at Cā̃gu and the inscription in Thānakoṭa among others, argues that the caste system had been already established in the Valley by the sixth century.360 Since the quoted inscriptions merely refer to Brahmins, rituals, ritual gifts given to Brahmins and similar topics,361 the evidence is not sufficient in order to be able to sketch out a complete picture of Brahmanical caste system in the Licchavi period. Still, with their references to Brahmins, such inscriptions provide some minor indications that aspects of the Brahmanical *varṇa*-system were influencing socio-political practices of that time.

A more comprehensive expression of the *varṇa*-system can be found in the NyāV sponsored by Jaya Sthiti Malla. For example, in defining the relation between Brahmins and the king, the NyāV puts the former at the top of the caste hierarchy: '[A seat] for Brahmins is mandatory [to be installed] in front of the seat of king. [The King] shall see all the Brahmins early in the morning and greet [them].'362 Similarly, the following quote from NyāV draws a clear picture of the caste hierarchy imagined along the lines of the Brahmanical *varṇa*-system in the Malla kingdom:

<sup>360</sup> See N.R. Panta 1964: 1–7.

<sup>361</sup> For example, N.R. Panta (1964: 4) quotes: *viprebhyo* '*pi ca sarvvadā pradadatī tatpuṇyavṛdhyai dhanam* […]. "[Queen Rājyavatī remained like Arundhatī] in that she always gave wealth to Brahmins in order to increase his (i.e., King Dharmadeva's) merit […]."

<sup>362</sup> *bra*(!)*hmaṇasyāparīhāro rājanyāsanam agrataḥ*. *prathamaṃ darśanaṃ prātaḥ sarvvebhyaś cāpivādanam*(!). (NyāV, p. 263, see parallel in NārSm 18.33). "A [sign of] the respect (lit. 'lack of disrespect' *aparīhāra*) for Brahmins within a king is their seat in front [of him]."

A Kṣatriya who assails a Brahmin with harsh language shall incur a fine of one hundred [*paṇa*s]. If [such an offence is committed by a Vaiśya], he shall be fined one hundred fifty [to] two hundred [*paṇa*s], while [if it is committed by] a Śūdra, he shall undergo corporal punishment.<sup>363</sup>

The chronicles, for example the *Bhāṣāvaṃśāvalī* (BhV) and *Nepālīkabhūpavaṃśāvalī* (NBhV), are other major sources with detailed accounts of the caste reformation and other regulations introduced by Jaya Sthiti Malla. References to Jaya Sthiti Malla's legal reforms can be seen also in the DivU of Pṛthvī Nārāyaṇa Śāha364 and in the MA.<sup>365</sup> Thus, the NBhV narrates:

He (i.e., Jaya Sthiti Malla) made various laws in Nepāla, such as the following: one should not take the occupation specified for the caste other than those which have been assigned to one's own caste; people of low caste should live using specified kinds of dresses, ornaments, and houses; Kasāī should wear sleeveless *labedā*; Poḍhyā should not wear caps, *labedā*, shoes, and golden ornaments; Kasāī, Poḍhyā and Kulu should not tile their roofs; and everybody should obey people of higher caste than their own.366

Similarly, the BhV gives a detailed narration of Jaya Sthiti Malla's caste reformation. According to this text, a total of 725 castes were defined,367 with certain professions being assigned to them in accordance with their caste status.368 Similarly, the text *Jātimālā* (JM), attributed to Jaya


Sthiti Malla himself, identifies 82 caste groups.369 Table 2 shows the caste division presented in the NBhV and BhV.

The above table shows that Jaya Sthiti Malla started the process of implementing a strong Brahmanical *varṇa*-system in the Kathmandu Valley, one in which all subjects are assigned places within a strict hierarchical caste order. Brahmins are assigned the task of calculating astrologically auspicious days for Brahmins and Kṣatriyas to perform birth rites and sacrifices. Soldiers are supposed to bow down to the feet of Brahmins. Poḍhyās and Kasāīs, who are categorized as Untouchable caste groups in the MA, are not allowed even to wear caps, *labedā*s, shoes or golden ornaments, or to tile their roofs, and are enjoined to pay open respect to members of the upper castes. Such examples indicate that the Brahmanical *varṇa-*system was systematically adopted during Jaya Sthiti Malla's regime. The following passage from the BhV illustrates just how strict it was:

If a Kṣatriya commits adultery with a Brahmin woman who still has a husband, he shall be taken across the river and killed with one stroke by the hand of a *cāṇḍāla*. If a Kṣatriya commits adultery with a Brahmin widow, he shall be punished by chopping off his genitals and fined 30 rupees. If he wants readmission into his caste, [he shall undertake] *prājāpatya*<sup>370</sup> and *cāndrāyaṇa*<sup>371</sup> vows. If a Vaiśya commits adultery with a Brahmin woman who still has a husband, his genitals shall be chopped off and fined 120 rupees. No *cāndrāyaṇa* vow shall be undertaken by either



*Table 2:* A list of caste groups mentioned in the different sections of the NBhV and BhV

*Table 2 (continued)*



*Table 2 (continued)*

[offender or victim]. If a Vaiśya commits adultery with a Brahmin widow, he shall be punished by chopping off his genital and fined 60 rupees. The Brahmin woman shall not [undertake] a *cāndrāyaṇa* vow, [but] if the Vaiśya wants readmission into his caste, he shall undertake *prājāpatya* and *cāndrāyaṇa* vows ten times. If a Śūdra commits adultery with a Brahmin woman who still has a husband, his genitals shall be chopped off and be fed [them,] and he shall be executed by the hand of a *cāṇḍāla.*  No *cāndrāyaṇa* [shall be undertaken] by the Brahmin woman. If a Śūdra commits adultery with a Brahmin widow, his genitals shall be chopped off and he shall be executed by a *cāṇḍāla.* No *cāndrāyaṇa* [shall be undertaken] by the Brahmin woman.372

Brahmins and Kṣatriyas from Gorkhā played a major role in creating the foundation of modern Nepal by supporting the territorial expansion of Pṛthvī Nārāyaṇa's kingdom, and from then on never loosened their close political ties with the Śāha and Rāṇā dynasties. According to M.S. Slusser,373 people from present northern India migrated to Nepal at the end of twelfth century, after the Moghul invasion of northern India.374 Brahmins from Mithila came to the south of Kathmandu,


while other groups including Brahmins migrated to the Western hill regions. Since these latter did not come in big numbers, they adopted the local pastoral culture of the Khasas, a group who were contemporaries of the Licchavis. B.R. Acharya375 argues that the Khasa culture was slowly influenced by the newcomers, which resulted in the spread of a mixed culture throughout the Gaṇḍakī and Kirāta regions. For example, a child born to a Khasa hill woman by a Brahmin is referred to as a Khatri,376 which could doubtless be assigned to the shastric category of *varṇaśaṅkara*. By the sixteenth century, the so-called Rājapūtas, a mixed military aristocracy, formed many petty kingdoms in the Western hill regions.377 Gorkhā, founded by Dravya Śāha in 1559, was one of these kingdoms. Although the Khasas adopted basic Hindu norms, they probably did not follow the strict rules required under the Brahmanical caste hierarchy of the *Ā*ryans of Indian plains.378 For all their deviations from Brahmanical orthodoxy, they were provided with a loose Hindu identity. A famous series of edicts issued by King Rāma Śāha provides evidence that the Brahmanical social structure was already caste-hierarchical and it was perceived as a model system at that time. For example, the fifteenth edict states: 'If one kills a Brahmin, one is guilty of murdering a Brahmin (*brahmahatyā*); if [the offender] is not executed, the king incurs guilt.'379 This is in line with the dharma*shastric* practice of exempting Brahmins from the death penalty.380

### 1.7.2 The Caste Hierarchy in the MA

The caste system of Nepal is very complex, encompassing as it does the country's vastly distinctive peoples and their individual cultures, religions and customary practices. The following account of it by Hodgson suffices to form a picture of this complexity during the pre-MA period:

[…] though both the *Gúrung*s and *Magar*s still maintain their own vernacular tongues, Tartar faces, and careless manners, yet, what with military service for several generations under

380 See GDhS 21.1–3 and MDh 11.55–59.

<sup>375</sup> Translated in M.C. Regmi 1972: 93.

<sup>376</sup> See Bista 1972: 3.

<sup>377</sup> See Slusser 1982: 8.

<sup>378</sup> See S.M. Adhikari 1988: 23–24.

<sup>379</sup> RŚEdict 15, tr. in Riccardi 1977: 53.

the predominant *Khas*, and what with the commerce of *Khas* males with their females, they have acquired the *Khas* language, though not to the oblivion of their own, and the *Khas* habits and sentiments, but with sundry reservations in favour with pristine liberty. As they have, however, with such grace as they could muster, submitted themselves to the ceremonial law of purity and to Brahman supremacy, they have been adopted as *Hindú*s. But partly owing to the licenses above glanced at, and partly by reason of the necessity of distinctions of caste to Hinduism, they have been denied the thread, and constituted a doubtful order below it, and yet not *Vaisya* nor *Sudra*, but a something superior to both the latter—what I fancy it might puzzle the *Shastrí*s to explain on *Hindú* principles.381

The aim of the MA, as stated in the preamble, was to bring uniformity to the regime of punishments as based on the severity of the crime and the offender's caste status (*khata jāta māphika*), irrespective of his official rank.382 However, the notion of *jāta māphika sajāya* 'punishment according to caste status' might seem to be at odds with the aim of bringing uniformity to penal law. As mentioned earlier, the caste status of an offender affects the degree of punishment to be imposed on him only if it relates to matters that concern impurity and pollution. Indeed, there are only a handful of exceptions in which an offender's caste status affects the type of punishment in crimes which are not related to matters of impurity. For example, Brahmins, women and certain groups of ascetics are not allowed to be sentenced to death in any lawsuit.383 The text of the MA shows no sign that the caste status of any individual plays any role in non-religious affairs. In seventy-five Articles in the MA—out of one hundred sixty-seven in total—dealing with non-religious state affairs, caste is at most of tangential relevance. The key principles of the caste system laid down in the MA concern the religious hierarchy but do not, that is, exert any notable influence on political and economic regulations. Thus, barring few exceptions, the MA does not concern itself with the caste status of an individual unless it has some connection with religious matters.

Broadly speaking, the MA introduces, as listed in the table below, the following four caste classes, which were meant to place major

<sup>381</sup> See Hodgson 1874 (vol. 2): 39.

<sup>382</sup> See MA-ED2/preamble.

<sup>383</sup> See MA-ED2/1 §1, and also MA-ED2/64 §§1, 3–4 and 6.

social groups in Nepal and beyond within a comprehensive framework. For example, various Brahmins from the Indian sub-continent, Europeans, and Muslims all have their place in the caste structure of the MA. Table 3 shows the caste hierarchy as conceived in the MA. Except for Upādhyāya and Jaisī Brahmins within the first category, the internal hierarchy within Sacred Thread-wearers, Non-enslavable Alcoholdrinkers and Enslavable Alcohol-drinkers are not clearly distinguished in the MA. However, the MA goes into detail about the internal caste hierarchy of Touchable Water-unacceptable and Untouchable Water-unacceptable castes. The caste groups in the table are arranged according to hierarchical order in cases where their status is clearly defined.<sup>384</sup>

Except for a few cases, the *Ain* does not provide explicit information regarding the association between specific caste groups (*jāta*) and caste classes (*varṇa*). This omission leads to various challenges. One such problem arises in the instance of the alcohol-drinking Kṣatriyas residing in the Western Himalayas. According to the *Ain*, these individuals do not fit into any prescribed caste category. Since they consume alcohol, they are unable to maintain their caste status as Kṣatriyas who wear the Sacred Thread. However, in customary practice, they are still considered Kṣatriyas by birth, although the *Ain* remains silent on this matter.

The MA often paraphrases the totality of the caste system as *cāra varṇa chattisa jāta* (lit. Four Varṇas and Thirty-six Jātas). As stated by P.R. Sharma and A. Höfer, this expression was meant to symbolically address the totality of individual caste groups in the country.385 The frequent occurrence of the terms *varṇa*, Brāhmaṇa*,* Kṣatriya, Vaiśya and Śūdra in the MA gives the wrong impression that the Brahmanical *varṇa*-system has been adopted in the MA. For example, neither the Water-unacceptable nor the Untouchable caste group is a feature of the Brahmanical *varṇa*-system. Similarly, the MA treats ascetics as one caste group, whereas in the Brahmanical *varṇa*-system they are conceived of as outside of the caste structure. Most ascetic sects refuse Vedic sacrifices.386 In ancient India, asceticism represented renouncement of the early stages of Brahmanical orthodox life.387 Since abandoning Vedic ritual activities and customary practices are key defining elements of asceticism, ascetics cannot fall under the Brahmanical caste structure, even though their monastic practices often mirror caste categories.


<sup>384</sup> See Sharma 1977b: 282 and Höfer 2004: 9.

*Table 3:* Symbolic order of the caste system. The table is sourced from Khatiwoda, Cubelic & Michaels (2021) on pages 31–33. On the basis of such categorical differentiations, the caste hierarchy of the *Ain* looks roughly as follows even though the position of some ethnic groups (\* = Ethnic group) is not always clear.

#### **1. Caste group of the 'Sacred Thread-wearers' (***tāgādhārī***)**


**2. Caste group of the 'Non-enslavable Alcohol-drinkers' (***namāsinyā matuvālī***)**

	- \*Bhoṭe (ethnic groups who speak Tibeto-Burmese languages)
	- \*Cepāṅa /Cepāṅga
	- Danuvāra
	- Hāyu
	- Darai
	- \*Kumāla
	- \*Paharī
	- Ghartī (descendants of freed slaves) from hill regions, also called Pāre Ghartī
	- \*Lāpacyā (Lepcha)
	- \*Mājhī
	- \*Ṭhokryā
	- \*Galahaṭyā
	- \*Newar castes from whose members water is unacceptable

#### 90 — 1 Introduction

#### *Table 3 (continued)*

#### **4. Water-unacceptable but Touchable castes (***pāni nacalnyā choi chiṭo hālnu naparnyā***) according to MA-ED2/160 §17.**


#### **5. Untouchable castes (***pāni nacalnyā choi chiṭo hālnu parnyā***) according to MA-ED2/160 §17**


The caste regulations assiduously laid down in the MA are centred on the bodily purity or impurity of a person. The degree of purity possessed depends upon caste status. For example, Brahmins possess the highest degree of purity in comparison with the other three caste classes. The lower one's caste status, the less purity one possesses. However, one can lose one's purity either permanently or temporarily, mainly through different kinds of physical contact with low-caste persons or consuming tabooed food, and also through certain crimes. More than half the content of the MA deals with impurity and pollution, whether coming from impure food or various forms of contact (such as adultery, marriage, commensality etc.) with low-caste persons. As an example, I shall analyse the regulations from the Article 'On Drinking Alcohol and Untouchability' (*madapāna achutī*).<sup>388</sup>

# *Article 87: Regulations regarding drinking alcohol and untouchability*

#### **Basic categories**

#### *1. Castes*

The Article on 'Drinking Alcohol and Untouchability' refers to offenders and victims only by their caste class but not, as in most Articles, by their individual caste group.389 The only exception is in the second section,<sup>390</sup> where Christians, Muslims, Kāmīs*,* Sārkīs*,* Damāīs are mentioned as individual castes and classified as Water-unacceptable and Untouchable caste groups.

#### *2. Food items*

Similarly, under normal circumstances, food is divided into two categories, edible *(bhakṣya)* and inedible *(abhakṣya).* What is edible object for lower caste groups may be inedible for upper groups. For instance, chicken is not edible for Sacred Thread-wearers but edible for Water-unacceptable groups and Untouchables. Several passages391 deal with what can and cannot be accepted from the impure and lowest caste groups, namely, Water-unacceptable but Touchable and Water-unacceptable and Untouchable. Raw grain including rice, everything which has not been washed or mixed with water, raw fish, meat, tobacco for the hookah, perfume, spices, and fruits with a sweet scent, are classified as pure, although they have been touched or kept by impure caste groups. A clay vessel is not considered impure unless it is filled with water. Similarly, Chinese pots, bottles, drinking glasses and pots made out of wood are pure. Liquor, chicken meat, beef and buffalo meat are forbidden for Sacred Thread-wearers. An exception is he-goats, which are edible by Sacred Thread-wearers under Nepalese customary law. If an Untouchable touches certain objects, the transfer of his impurity to the receiver can be averted either by throwing the object away, if it cannot be purified, or by purifying it ritually. Some objects are acceptable even from Untouchable caste groups as long as the object has not come into contact with water.

<sup>389</sup> See, for example, MA-ED2/61 and 62.

<sup>390</sup> See MA-ED2/87 §  2.

<sup>391</sup> See MA-ED2/87 §§1–9.

#### *3. Punishments*

The following degrees of punishment are prescribed in this Article of the MA for offences relating to drinking liquor and untouchability:


# *4. Offenders*

Similarly, offenders are distinguished along the following lines:


The degree of punishment is the highest for an offender of group (a) and decreases in descending order for the lower groups. Table 4 presents examples which clarify the descending degrees of punishments.

Moreover, punishment for a violation of purity rules concerning food decreases according to the receiver's status. Table 5 shows that the degrees of the punishment for offenders is wholly based on the caste group of the victims ('receivers' in the table). As we see in the table, the lower the victim's caste group, the less the punishment for the offender. Conversely, the punishment is higher, the higher the victim's caste group. However, it is clear from the above table that even the


*Table 4:* Degree of punishment according to the nature of crime

lowest caste group is not outside the purity–pollution scale. For example, if a Brahmin knowingly, forcibly or deceitfully feeds taboo food to an Untouchable, he, too, is fined, which gives the lie to the notion that Untouchables are impure by birth and that external impurity cannot increase their impurity. Thus the hierarchical order presented in the MA seems to be a reflection of practised customs 'as they have "come to be" among the various castes and which are now codified as such.'392

Nepal has become a common ground shared by various historical ethnic and caste groups. In a survey conducted by the Central Bureau of Statistics (CBS), 60 caste groups were tabulated on the basis of the 1991 census. This number reached 100 and 125 respectively for the 2001 and 2011 censuses. For 2002, 81 cultural groups were tabulated.<sup>393</sup> Similarly, the Dalita Āyoga listed 29 separate cultural groups among Untouchable castes.394 The complexity of Nepalese caste society raises the question as to how the MA went about establishing a hierarchy of castes within such a mixed social context. Barring a few individual enumerations of caste

<sup>392</sup> See Höfer 2004: 72.

<sup>393</sup> See Central Bureau of Statistics 2014: 3.

<sup>394</sup> See Central Bureau of Statistics 2014: 3.

#### 94 — 1 Introduction



groups in several Articles and sections,395 the MA seldom mentions such groups individually (see Table 2). This suggests that the aim of the MA was to create a broad legal framework that took account of the dominant Hindu caste customs of pre-modern Nepal without attempting to create a clear-cut status for all caste groups. One exception, however, is the internal hierarchy for the Untouchable caste groups drawn up on the basis of customary distinctions, as presented in Table 6.


*Table 6:* Internal hierarchy among Untouchable castes

#### 1.7.3 Were Caste Regulations a Strategy for Hinduization?

Scholars often theorize the caste regulations laid down in the MA as a strategy for establishing the supremacy of Hindu values and the reinforcement of Hindu norms.<sup>396</sup> Since one of the major aims of the codification was to protect the autonomy of the country from British

396 See for example, Sharma 1977b: 285 and 293; and Michaels 2005b: 8.

imperialism by creating an effective unified legal bond between the state and its diverse subjects, the MA declared that Nepal was the only Hindu kingdom in the Kali era. However, such a claim was political propaganda meant to rhetorically warn the British not to threaten the country's autonomy. In order to convince oneself of this, a careful review of the structure of the Law Council (Ain Kausala) responsible for the formulation of the MA is required. That Council had 219 members and consisted of all the senior Rāṇās, royal noblemen (*bhāradāra*), royal priests and civil, judicial and military functionaries, but only a limited number of Brahmins. Figure 3 shows the distribution of the caste groups in the Law Council which gave final approval to bringing the MA into effect. The diagram demonstrates that among all members of the Law Council only 21 percent were Brahmins. Among these, only four persons of high rank and 12 of middle rank could have played an influential role during the codification of the MA. If the main aim of the caste regulations laid down in the MA were to create a strong Brahmanical Hindu state, the number of learned Brahmins would have been comparatively greater, and the norms of Brahmanical orthodoxy would have been incorporated into parts of the MA relating not only to religious affairs but also to state affairs.

Secondly, as stated by D. Bista, the caste system laid down in the MA was not a new scheme but rather an attempt to place the diverse caste practices implemented by Jaya Sthiti Malla and earlier Śāha kings within a single legal state framework.397 Were the MA meant to achieve a strategy of Hinduization, it would have put in place the rigid caste hierarchy laid down in the *dharmaśāstra* texts. For example, the *Gautamīyadharmasūtra* (GDhS) specifies certain duties for all four classes: All Twice-born classes have to fulfil the duties of engaging in study carrying out sacrifices and offering oblations.<sup>398</sup> Brahmins have the additional duties of teaching the Vedas, sacrificing for others and accepting gifts.399 The king, and Kṣatriyas in general, are tasked with protecting all creatures, imposing punishment in order to maintain justice and supporting Brahmins versed in the Vedas.<sup>400</sup> Vaiśyas should engage in agriculture, trading, animal farming and money lending.<sup>401</sup> Śūdras are assigned the task of being of service to all members of

<sup>397</sup> See Bista 1977: 19.

<sup>398</sup> *dvijātīnām adhyayanam ijyā dānam*. (GDhS 10.1).

<sup>399</sup> *brahmaṇasyādhikāḥ pravacanayājanapratigrāhāḥ*. (GDhS 10.2).

<sup>400</sup> *rājño dhikaṃ rakṣaṇaṃ sarvabhūtānāṃ nyāyadaṇḍatvaṃ bibhṛyād brāhmaṇāc chrotriyān* […]. (GDhS 10.7–9).

<sup>401</sup> *vaiśyasyādhikaṃ kṛṣivaṇikpāśupālyakusīdam*. (GDhS 10.49).

*Figure 3:* The distribution of caste groups in the Law Council. Note that two individuals who should be listed under the category of 'Others' are missing in the figure.

the three other upper *varṇa*s and earn their livelihood from such service.402 It is this model of the Brahmanical *varṇa*-system that Jaya Sthiti Malla's caste reformation follows.403 The MA by contrast explicitly refrains from assigning type of livelihood according to a person's caste status:404

One's occupation (*ilama*) is not governed by caste [membership]. [The members of] all of Four Varṇas and Thirty-six Jātas may earn their living by sharpening tools (i.e., the smith's occupation), cobbling shoes or sewing clothes, working in mines, panning for gold, firing brick-kilns (*avāla*), pursuing the potter's (*kumhāla*) trade, preparing leather for *mādala* drums or any other [such] work as an occupation, [or else] may work in commerce (*beca-bikhana*). Nobody is to be reduced in caste,

<sup>402</sup> *paricaryā cottareṣāṃ tebhyo vṛttiṃ lipseta*. (GDhS 10.56–57).

<sup>403</sup> NyāV, p. 269 and a parallel in NārSm 18.47.

<sup>404</sup> For example, the injunction of Manu tells that *na lokavṛttaṃ vartteta vṛttihetoḥ kathaṃcana. ajihmām aśaṭhāṃ śuddhāṃ jived brahmaṇajīvikām*. [Brahmins] "must never follow a worldly occupation for the sake of livelihood, but subsist by means of pure, upright and honest livelihood proper to the Brahmin." (MDh 4.11, translated in OIivelle 2005: 124).

#### 98 — 1 Introduction

and anyone who says otherwise and refuses cooked rice or water commensality will be fined 50 rupees.405

What is striking in the above passage is that contrary to both shastric and customary practices, such professions as cobbling shoes, sewing clothes and working metal used to be carried out by Water-unacceptable and Untouchable castes according to Hindu customary practice.<sup>406</sup> More surprisingly, the MA explicitly permits all caste groups to carry out trade in any articles, irrespective of the degree of their impurity. It states:

[The members of] all Four Varṇas and Thirty-six Jātas shall be allowed to engage in work, from [dealing with] human and pig excrement at the bottom to [dealing with] diamonds and pearls at the top. [They] shall also be allowed to weigh [using] *mānā*, 407 *pāthī* <sup>408</sup> [and] *kuruvā* <sup>409</sup> [measures] and scales (*tulā*). No fault shall be assigned [to them for doing so,] nor shall they be degraded in caste. Whoever says otherwise shall be fined 50 rupees.<sup>410</sup>

Similarly, contrary to Manu and customary practice in Nepal, the MA permits people of all *varṇa*s and caste groups to plough irrespective of sex:

No fault shall be ascribed to men or women from all Four Varṇas and Thirty-six Jātas [including] Upādhyāya Brahmins, Jaisī Brahmins, Rājapūtas and Newars from the three cities [of Bhaktapur, Kathmandu and Patan] for ploughing with a yoke of bulls, he-buffaloes or horses in order to earn their livelihood. No expiation needs to be undertaken by those who plough. If


somebody refuses [anyone] cooked rice commensality (*bhāta kāḍhanu*) for having ploughed, he shall be fined 10 rupees; if water commensality (*pānī kāḍhanu*), 5 rupees.<sup>411</sup>

If a man or woman of any of the Four Varṇas and Thirty-six Jātas is faulted for having ploughed and is fined by an *adālata*, *ṭhānā* or *amāla*, the person in the *adālata*, *ṭhānā* or *amāla* who [agreed with the accusation and also] ascribed [such a] fault shall be fined an amount equal to the fine they (i.e., the legal bodies) imposed.412

The above provisions demonstrate that the MA is fundamentally liberal in terms of letting people choose or change their form of livelihood (*jīvikā*) at will, in contrast to the Brahmanical *varṇa*-system and Hindu customary practices, according to which the spectrum of occupations open to one was set at birth as one of the elements essential for protecting a person's social and religious purity. Occupations, then, were a measure of purity, and authorities were ordered to punish anyone who chose a conventionally improper way of making a living. One can argue, therefore, that the aim of the MA was not to establish a strong hierarchical Hindu society. It rather incorporated new and contemporary social practices that were arising from within a caste system in which Hindu norms continued to be dominant. Since a complete modification of the existing social and caste customs was beyond the power of Jaṅga Bahādura, the existing Hindu caste customs were liberalised and brought within a single legal framework, one consequence of which was to advance the weak state economy of the Rāṇā regime. For example, the centralisation of the collection of fines paid in settlements of caste- and norms-related disputes increased the state's income, while letting people choose their own livelihoods spurred economic activity. The MA, then, did not radically call the existing caste system into question, which could have resulted in political and social chaos, but it did alter it in ways that improved the economy. Since the caste system

<sup>411</sup> *upādhyāya jaisi rajaputa tina saharakā nevāra jāta gaihra cāra varṇa chatis jātakā lognyā svāsniharūle āphnā jīvikā nimitta goru rāṃgā ghoḍā nāri halo jotanyālāi khata lāgdaina. jotanyāle prāyaścitta pani garnu pardaina. kasaile halo jotyo bhani bhāta kāḍhyā bhanyā 10 pāni kāḍhyā 5 rūpaiyākā darale kāḍhanyālāi daṃḍa garnu*. (MA-ED2/31 §  5).

<sup>412</sup> *cāra varṇa chatisai jāta gaihrakā lognyā svāsniharūle halo jotyo bhani khata lagāi adālat ṭhānā amālavāṭa daṃḍa garyā bhanyā unle garyākā daṃḍako vigo vamojim khaṭa lāunyā adālata ṭhānā amālavālā jo ho usailāi daṃḍa gari linu*. (MA-ED2/31 §  6).

had never been implemented in all its rigidity in most of pre-modern Nepal, it was fairly easy to integrate newcomers and the non-Hindu parts of the population into caste society, since they were allowed to continue engaging in their own customary activities.<sup>413</sup> For example, section 18 of Article 99 permits a man to marry a female cousin on his father's side if that is the customary practice:

People of caste groups who have had the ancestral custom of marrying one's own paternal aunt's daughter (*phupukā chorī*), the descendant of a shared grandfather, are allowed to do so. No fault shall be ascribed to them [for doing so]. If people of caste groups who have had no such custom since ancient times wed [in such a manner], they shall be punished in accordance with the *Ain*. 414

Nepal was thus known as a Hindu kingdom without many key characteristic features of a mainstream Brahmanical society.415 Moreover, even though the MA displays many marks of a confessional state, the regulations that enshrined religious pluralism in the caste system represent further evidence that the caste system of the MA was not a strategy of Hinduization. The MA explicitly safeguards the right to practise one's own religion and customs, which Höfer416 interprets as confessional tolerance. The following provision demonstrates this:

Upādhyāya Brahmins, Rājapūtas, Jaisīs, Kṣatriyas and so forth who [belong to] the caste groups of Sacred Thread-wearers, all castes belonging to the Non-enslavable and Enslavable Alcoholdrinkers, Europeans (lit. caste of Europeans), Muslims (lit. caste of Muslims), all castes belonging to the Water-unacceptable but Touchable [caste class] and all castes belonging to Untouchable [caste class], all these people, within the territory of Gorkhā Kingdom, may perform any act in accordance with the practices carried out by their clans of [their] own tradition [which leads] to *dharma* except cow slaughter. Nobody shall get angry about such matters. If somebody gets angry or quarrels in such matters

<sup>413</sup> See Bista 1977: 18.

<sup>414</sup> *aghi pitā purṣādeṣi phupukā chori vihā garnyā rīta caliāyākā jātale āphnā ekā bājyābāṭa janmyākā phupukā chori bihā garna huṃcha ṣata lāgdaina. parāpūrvadeṣi nacalyākā jātale vihā garyā aina vamojima sajāya garnu*. (MA-ED2/99 §18).

<sup>415</sup> See Bista 1977: 18 and 20.

<sup>416</sup> See Höfer 2004: 93.

and comes to complain in a Kacaharī, the one who does such an act that ruins others' tradition shall be fined one hundred rupees. If the fine is not paid, he shall be imprisoned in accordance with the *Ain*. If it comes to be known that a fight occurred [regarding such matters] in which somebody dies, the killer, if he is a member of the caste groups who are allowed to be sentenced to death, shall be sentenced to death. [If the killer] is a member of the caste groups who are not allowed to be sentenced to death, he shall be branded and [his] share of property shall be confiscated in accordance with the *Ain*. 417

To a certain degree, then, the MA represented an attempt to create a confessional state by accommodating the pluralistic social and religious cultures and customs of pre-modern Nepal within a single legal framework in which a Hindu caste system—if one vastly deviating from the classical Brahmanical orthodoxy—was still dominant. Except for a few regulations, such as the ban on cow slaughter, a rigid Brahmanical orthodoxy was not imposed on anyone not belonging to the Hindu tradition. Furthermore, again barring a few exceptions, the MA does not specify which caste group (*jāta*) falls under which caste class. This, too, shows that the strategy guiding caste regulation in the legal code was not to intervene in customary practices. For example, the Alcohol-drinking Kṣatriyas in the Western Himalayas do not fall under any caste category laid down in the MA. Since they consumed alcohol, they could not, according to the MA, retain their caste status as Kṣatriyas, but still they were regarded as Kṣatriyas by birth.<sup>418</sup> Thus, the specific stance of the MA requires careful historical analysis and contextualization if one is to accord it its proper place within the larger debates on caste in South Asia.

417 *upādhyā vrāhmaṇa rajaputa jaisi kṣatri gaihra tāgādhāri jāta namāsinyā matavāli gaihra māsinyā matavāli gaihra jāta iyuropiyena jāta musalmān jāta choi chiṭo hālanu naparnyā pāni nacalnyā gaihra jāta choyā chiṭo hālanu parnyā gaihra jātale gorṣārāja bharmulukamā govadha garnā vāheka arū āphnā kulale gari āyā vamojima āphnā āphnā majhapkā dharma hunyā kāma kurā savaile garnu huṃcha. yaskurāmā kasaile risa nagarnu. estā kurāmā risa rāga jhagaḍā bhai kacaharimā karāuna āyā bhanyā arkākā majhaplāī khalal hunyā kurā garnyālāī 100 rūpaiyā daṃḍa garnu. rūpaiyā natiryā aina vamojim kaida garnu. jhagaḍā bhai jyāna marecha bhanyā mārnyā kāṭinyā jāta bhayā jyānako vadalā jyāna linu. nakāṭinyā jāta bhayā aina vamojima aṃsa sarvasva gari dāmala garnu*. (MA-ED2/89 §10). This section has been translated in Michaels 2005b: 92 and quoted and explained in Höfer 2004: 134.

<sup>418</sup> See Bista 1977: 19.

# 2 The *Mulukī Ain* on Homicide

The modern political history of Nepal starts in the second half of the eighteenth century, after Pṛthvī Nārāyaṇa Śāha conquered all petty kingdoms of the realm and, in doing so, established a strong foundation for a politically unified and socially cohesive Nepal. This unification process was a political and military expansion of his Gorkhā kingdom, which can be interpreted as a threefold process, with the political and military expansion featuring as the 'first' and 'second degree' of unification. The legal unification of the country, on the other hand, represented the third and most difficult stage in the process. For, whereas the unification brought about by Pṛthvī Nārāyaṇa Śāha was only geographical in nature, the enactment of the MA aimed at a social and cultural unification among the country's various ethnic, caste and social groups within a single legal framework.

Therefore, the political and military unification of Nepal in itself did not bring about significant changes in the kingdom's legal practices.1 Prior to the enactment of the first legal code in 1854, a prevailing principle dominated: "sin and crime should be punished—for the sake of order."<sup>2</sup> However, this had scarcely been formalized in any specific written code. Therefore, the question always remained as to how the moral, religious and legal standards were to be practically applied by individuals and by social and religious institutions; who, in Michaels's words,<sup>3</sup> would be the agent to implement them: a god, king or priest? The pre–*Mulukī Ain* period saw various principles and practices being observed in jurisprudence. On the one hand, royal decrees and other official documents such as *rukkā*s, *lālamohara*s, *sanada*s*, pūrjī*s (writ/written notice), *pramāṅgī*s and *hukuma*s were issued by wielders of power—kings, prime ministers, court pandits, legislative bodies and the like—either to establish new laws or to re-enforce the legal norms that had been introduced at some earlier point, such as


the existing customs relating to the various castes and ethnic groups.<sup>4</sup> For their part, royal priests and preceptors (*rājaguru*s or *rājapaṇḍita*s) were given prominent positions in the legal administration of the royal courts. They also acted as judges in cases concerning matters of purity and pollution.<sup>5</sup>

The enactment of the MA, however, established a firmer foundation favourable to the legal unification of modern Nepal by harmonizing previously practised legal procedures, political and social cultures, customs and new political thought into a single legal framework. The MA not only provided an integrated system of unified law that applied most parts of the kingdom (and under which the principles of legal pluralism and relativism are accepted) but also assigned positions, roles and tasks to the various state and social bodies tagged to universally implement the nation-state's principal doctrine ('sin and crime should be punished'). This minimized the role of royal priests, who had previously functioned as minor state authorities granting expiation<sup>6</sup> if instructed to do so either by the courts or, in exceptional cases, by the head of state.

It is against this background that I shall be discussing the history of homicide law in Nepal in the following section. The Article 'On Homicide' from the MA versions of 1854 and 1870 I regard as paradigmatic for the following reasons: (i) no extensive formulation of homicide law existed before the promulgation of the MA; (ii) the MA sets forth detailed regulations on homicide that are bound to the concept of the rule of law expressed in the words 'every offender irrespective of his ritual, social or individual identity shall be punished'; (iii) it largely accepts the shastric ban on putting the king, Brahmins and women to death, but at the same time (iv) it develops a new course of action whereby offenders who are exempt from the death penalty are not banished but rather imprisoned for life, thus enacting the death penalty in a symbolical fashion; (v) under some specific conditions, it does sanction the execution of Brahmins; finally, (vi) it introduces the new standard of basing judgement on whether the crime was committed intentionally or not, and whether the person is of sound mind or not. Bearing as it does all these characteristic features, the 1854 MA Article 'On Homicide' serves as a suitable template for addressing all the problems posed to research mentioned at the beginning.7 The 1870


MA Article 'On Homicide' for its part will help to show the growing awareness and cumulative experience gained within legal practice during the codification process, which in turn will help to answer the question whether the MA was merely a scholarly composition or actually served practical ends.

#### **2.1 The History of Homicide Law in Nepal**

The term 'homicide' is a neutral term designating any act involving the killing of a person by another person—neutral in the sense of not explicitly pronouncing upon whether the killing is lawful or unlawful.8 The rationale for the criminalization of homicide is based on the basic value of human life accepted in almost all societies. According to J. Michael & H. Wechsler, "… the principle end to be served by the law of homicide is the preservation of life…." <sup>9</sup> Concerning the history of homicide law in Nepal, no systematic<sup>10</sup> development of it can be traced back before the codification of the MA. Thus, the historical development of law on homicide in Nepal can be divided into the precodification period (from Licchavi times until the emergence of the MA in 1854) and the post-codification era (after the MA).

### 2.1.1 Homicide Law before Unification

### *Licchavi period*

As was discussed in the first chapter, the recorded legal history of Nepal starts with the Licchavi period in the form of around two hundred inscriptions.11 The inscriptions are mostly concerned with memorialising personal deeds (e.g., donations or the like) and otherwise glorifying Licchavi elites, and there are no clear hints that the Licchavi rulers had in place a systematic penal system based on concrete legal codes or doctrines. Specialists such as T.R. Vaidya and T.R. Manandhar, and R.B. Pradhananga12 who have extensively contributed to the historical


<sup>8</sup> See Morris & Howard 1964: 113.

<sup>9</sup> Wechsler & Michael 1937: 730.

<sup>10</sup> Colonel Ujīra Siṃha proposed some regulations relating to homicide, which I shall deal with below (see Table 8).

evaluation of crime and punishment in ancient and modern Nepal argue that the Licchavi jurisprudential system was based on Hindu legal scriptures. T.R. Vaidya & T.R. Manandhar write: "In ancient time the laws of Manu, Yajnavalkya (sic), Bṛhaspati and others were implemented in Nepal." <sup>13</sup> Similarly, following T.R. Vaidya & T.R. Manandhar, R.B. Pradhananga states: "With the rise of the *Licchhavi* in ancient Nepal, they started not only [a] social system on the basis of *Hindu Dharmasastra* but also they introduced political and legal system based on *Hindu Dharmasastra*."14 Such arguments with very limited historical sources to back them up do little to verify the hypothesis that Hindu legal scriptures were the main sources of Licchavi jurisprudence. However, it can be safely argued, on the basis of the available Licchavi inscriptions, that Licchavi rulers did give thought to establishing a working legal system. For example, the edict issued by Śivadeva and Aṃśuvarman (dated Saṃvat 519) permits subjects living in Kādun village in the Satuṅgala area to collect wood and grass from the forest. If they are prevented by the subjects of Pheraṅkoṭṭa from doing so, the latter will be subjected to punishment. The inscription reads:

Hail! The enthroned great king, glorious Śivadeva, who resides in Mānagṛha, whose success is [grounded] in his enormous virtue, who resembles the banner of the Licchavi clan and who is in sound health, [first] the inhabitants of Kādun village—the headmen [and] village householders—about their well-being, and [then] ordered [the following]: You should know [that] out of respect for the glorious Mahāsāmanta Aṃśuvarman, whose face resembles the moon of a cloudless autumn [sky] and whose might is well known to rivals, and in kindness [to you], I, having been requested [by him to do so,] have inscribed this order on stone. This favour is done for you. The inhabitants of Pheraṅkoṭṭa or any other [place] shall neither seize sickles, machetes, axes or wood from the inhabitants of your village, nor restrain them on their way to or from collecting wood or pasture grass (*ghāsapatra*) from around the forest. Whoever disobeys this order and acts or causes acts contrary to it (*anyathā*) will be subdued for disobeying a royal order (*nṛpājñā*). This favour shall be kept [in place] also by future kings who [know] the weightiness of

<sup>13</sup> See Vaidya & Manandhar 1985: 20.

<sup>14</sup> Pradhananga 2001: 198–199.

*dharma* and who respect the favours done by their great predecessors. … Saṃvat 519….15

The legal prescription contained in the above royal edict is quite short and clear, but it does not contribute significantly to understanding the contemporaneous penal system. The edict codifies the basic sanction that anyone who violates the regulation inscribed on stone will be punished. It does not, however, define the nature of that punishment, whether, for instance, it took the form of a fine, imprisonment or a verbal reprimand (*dhigdaṇḍa*). Many similar general expressions can be observed in the other inscriptions.16 For example, the Vasantadeva inscription of Bāhālukhā (Patan) dated Saṃvat 435 mentions: "… No one among you who is dependent on us [for your livelihood] shall violate this [royal] order. I shall assign to whoever flouts this order and violates it suitable punishment in accordance with the law." 17 This implies that the Licchavi legal system provided for a defined set of punishments for a defined set of offences, but it is not clear whether it was explicitly based on Hindu legal scriptures. The scattered references relating to homicide observed in Licchavi inscriptions suggest that murder was taken as one of the *pañcamahāpātaka*s (five heinous sins),<sup>18</sup> but the punishment for murder during the Licchavi period seems to have varied depending largely on the temperament of the rulers.

15 (*oṃ svasti*) *mānagṛhān niratiśayaguṇasampadāva* (…) (*li*)*cchavikulaketur bhaṭṭārakamahārāja*(*śrī*)(*śiva*)*devaḥ kuśalī kāduṅgrāmanivāsinaḥ pradhānapurassa*(*rāngrāmaku*)*ṭumbinaḥ kuśalam ābhāṣya samājñapaya(ti viditaṃ bhavatu bhava)tāṃ yathānena śaradaghanaśaśāṅkamu(khena) śatrusaṃkhyāpramitabalaparākrameṇa śrīmahāsā(ma)ntāṃ(śu)varmmaṇā vijñāpitena satā mayaitadgauravād yu(ṣmad) anukampayā ca śilāpaṭṭakaśāsane 'bhilikhya prasā(do) 'yaṃ vaḥ kṛto yuṣmdgrāmanivāsinām itaḥ kāṣṭhaghāsapattrāharaṇāya sarvvatra vanabhūmiṅ gacchatān tadādāyāgacchatāñ cādhvani pheraṅkoṭṭanivāsibhir anyaiś ca na kaiścid dātrakaṭṭārakakuṭhārakāṣṭhād ākṣepo vidhāraṇā vā kāryyā yas tv etām ājñām avigaṇayyānyathā kuryyāt kārayed vā sa ni(ya)tannṛpājñātikramaniyamanam avāpsyati bha(vi)ṣyadbhir api bhūpatibhir ddharmmagurubhir ggurukṛtaprasādānuvarttibhir yam prasādo 'nupālanīya* (…) *samvat 519* (…). (Inscription no. 65, Dh. Vajracharya 1973: 263–266).

<sup>16</sup> See, for example, Inscription nos. 64, 71, 105, 107 and 109 in Dh. Vajracharya 1973.

<sup>17</sup> *kathañcid yuṣmābhir amat(!) pādopajīvibhir iyam ājñā vilaṅgayitavyā yaś cemām ājñām ullaṅghya smarayet smārayad vā tasyāhaṃ yathocitaṃ maryyādābandham anuṣṭhāsyāmīti*. (Inscription no. 24 in Dh. Vajracharya 1973: 113).

<sup>18</sup> The concept of the *pañcamahāpātakas* is based on the *dharmasūtras* and -*śāstras*. For example, the VDhS (1.20) and MDh (11.55) list having sex with the wife of an elder (*gurutalpa*, MDh reads: *gurvaṅganāgama*), drinking liquor (*surāpāna*), killing a learned Brahmin (*brahmahatyā*), stealing gold from a Brahmin/ stealing (*brahmaṇasuvarṇāpaharaṇa*, MDh reads: *steya*) and union with outcastes (*patitasaṃyoga*) as the five grievous sins.

For example, the inscriptions of Bhīmārjunadeva and Viṣṇugupta at Yaṅgālahiṭī/Yanlahiti and Bhṛṅgāreśvara dated Saṃvat 64 and 65 state that a murderer should be punished by confiscating his property. It also mentions that only the offender himself, not his family members, is to be held accountable for the crime he committed. The first inscription reads:

If somebody who lives in this territory, the fourth part of Draṅga, commits thievery, adultery or murder, or rebels against the king, only his own property, consisting of house, land, cows or the like, shall become [the property] of the royal family. Not even a small portion of property of the offender's kinsmen … shall unjustly be confiscated.<sup>19</sup>

The second inscription reads:

If somebody is convicted for committing the crime of thievery, adultery, murder or rebellion against the king, only his own property [consisting of] house, land, cows or the like shall be confiscated. [No property] of his kinsmen shall be seized. Anyone who has suffered what is unthinkable, [namely] the crime of … must be compensated [only] with the offender's own property….<sup>20</sup>

By contrast, the Narendradeva inscription at Yāgabahāla states that murder should be punished by enslavement, with the perpetrator's entire property, including his wife, being given to the Āryasaṅgha:

The regulation [provides] the royal family with the right only to enslave an [offender] (lit. body of an offender) who has committed [one] of the five heinous crimes—thievery, adultery, murder and the like—[and] the Āryasaṅgha to the entirety of the

<sup>19</sup> *taddraṅgacaturbhāgasīmābhyantaravartinaś cauraparadārahatyārājadrohakāparādham avāpnuyus teṣām evāmunāparādhena doṣavatāṃ yadātmīyam eva gṛhakṣetragodhanādidravya*(*n*) (*ta*)*d eva rājakulābhāvyam etad doṣābhiśastānāṃ ye dāyādās tebhyo* … … (*nā*)*nyāyenālpam api kraṣṭavyam ity eṣa ca bhavatā* […]. Inscription no. 117 in Dh. Vajracharya 1973: 442–443.

<sup>20</sup> […] *cauraparadārahatyārājadrohakāparādhāṃś ca prāpnuvato yad acintyaṅkara* (…) *līpratibaddhagṛhakṣetragavādinā svadravyeṇaiva* (…) *jayitavyas taddāyādebhyāṃ nātrāpahāraḥ kartavya iti* […] (Inscription no. 118 in Dh. Vajracharya 1973: 449).

property of the offender: his house, land, wife and the like. We transfer the [reign over such a village] to Āryabhikṣusaṅgha of the venerable Śivadeva *vihāra*, home to persons [coming] from all four directions.<sup>21</sup>

It may be observed in the above-discussed inscriptions that homicide was considered to be one of the grievous crimes by Licchavi rulers, and so grievous as to be punishable by death and the confiscation of their property (but in no case that of their kinsmen). The inscriptions of Bhīmārjunadeva and Viṣṇugupta at Yaṅgālahiṭī and Bhṛṅgāreśvara, on the one hand, which assign personal liability for the crime, and the Narendradeva inscription at Yāgabahāla, on the other, which apportions collective accountability, bear witness to the different ways of punishing homicide. This suggests that the Licchavi penal code was not based on any particular Hindu law scripture. R.B. Pradhananga, referring to T.R. Vaidya & T.R. Manandhar, argues that Licchavi rulers ended capital punishment, replacing it with enslavement and confiscation of property.22 It seems that they came to this conclusion through a misunderstanding of a phrase in the Narendradeva inscription at Yāgabahāla: '… *śarīramātraṃ rājakulābhāvyan tad* […]'23 ("the royal clan will have the right to the body of a murderer"), which T.R. Vaidya & T.R. Manandhar and R.B. Pradhananga understand as enslavement. However, the syntax and other parallel references suggest that the right to the body means the king's final authority to execute him. For example, the inscription nos. 31, 32 and 4424 explicitly prohibit local judicial bodies from investigating and imposing punishment on perpetrators who committed one of the five heinous crimes, thereby directing them to forward such cases directly to the king.

Further, regarding the law on homicide during the Licchavi period, T.R. Vaidya & T.R. Manandhar <sup>25</sup> and R.B. Pradhananga<sup>26</sup> both reach the conclusion that Brahmins were exempted from the above punishments because of their superior social standing. The inscriptions


<sup>21</sup> […] *cauraparadārahatyāsambandhādipañcāparādhakāriṇāṃ śarīramātraṃ rājakulābhāvyan tadgṛhakṣetrakalatrādisarvadravyāṇy āryasaṅghasyety anena ca sampannaḥ śrīśivadevavihā(re) caturdiśāryabhikṣusaṅghāyāsmābhir atisṛṣṭaḥ* […]. Inscription no. 133 in Dh. Vajracharya 1973: 496–497.

<sup>22</sup> See Pradhananga 2001: 199 and Vaidya & Manandhar 1985: 36.

<sup>23</sup> See Inscription no. 133 in Dh. Vajracharya 1973: 496.

themselves do not reveal whether these punishments were meant also for Brahmins or were waived in the face of the legal privileges accorded them in the *dharmaśāstras*. More generally, it is uncertain just how much the *varṇa*-system served as a model during the Licchavi period and what the exact position of Brahmins was during it.

#### *Malla period*

It is hard to draw a sharp temporal divide between the Licchavi and Malla periods. No documented evidence so far has been found which can tell us when Licchavi rule ended and the Mallas started controlling the country from its centre in the Kathmandu Valley. As M.R. Panta argues, the Malla period   <sup>27</sup> probably started from the time when the first complete sentences in Newari appeared in the inscriptions.28 Starting from around 982, we find hundreds of legal and administrative records written on palm leaves, and some on copperplates, that go back to the Malla period. Such sources mostly are deeds relating to real property and the like.29 For example, a copperplate of King Jayāditya II records a deed granting a village to one Udayāditya, a merchant. It reads:

[…] You [who are living in this village] know that we, pleased with the outstanding service [received from you], have granted the above-mentioned village [called] Vilivilikā including Tala, Draṅga, land and water [resources], mangos, *mahuvās* <sup>30</sup> and [other] trees, and all royal taxes [to be collected] within the boundaries of this village, to the merchant Udayāditya, a son of the merchant Kulāditya, a resident of Vikrama,31 under such terms whereby we ourselves do not charge [this village] for anything […]32

31 Probably the name of a village.

<sup>27</sup> M.R. Panta calls the Malla period the Newar kingdom (see M.R. Panta 2013b: 1).

<sup>28</sup> See M.R. Panta 2013b: 1.

<sup>29</sup> To get an overview of the legal records from the Malla period, see, for example, Rajvamshi 1983a, 1983b and 1984; also, Śākyabhikṣu 1999, 2000 and 2001.

<sup>30</sup> The name of probably two different varieties of the *Engelhardtia* tree species: *E. spicata* and *E. acerifolia.*

<sup>32</sup> […] *akiñcid grāhyo niratiśayasevārādhitair asmābhir vikramavāstavyasya vaṇikulādityaputrasya śreṣṭhi-udayādityasya saṃpradattaḥ* […]. Copperplate of King Jayāditya, edited in D. Acharya 1997.

Such legal records can prove useful in shedding light on the economic and administrative history of mediaeval Nepal, but they do not contribute much to an understanding of criminal legal policies and their historical development during that time. Nevertheless, it has been often reiterated by native Nepalese scholars that homicide law in mediaeval Nepal was explicitly based on Hindu legal scriptures.33 Since their arguments are based on the oral transmission of history, it remains difficult to ascertain the extent to which Hindu legal scriptures were implemented regarding homicide law in mediaeval Nepal before the last quarter of the fourteenth century. Jaya Sthiti Malla is the first ruler who, thanks to his nation-state, ensured that the legal history of his own time would not be forgotten. But while the NyāV is often taken as the first law code of Nepal,34 it should be rather understood only as a first attempt towards a full-fledged written law, given that it lacks the characteristics of such codification: The incorporation of new political-legal thought as well as custom and usage.35 The NyāV resembles more the colonial Hindu legal digests (*dharmanibandha*) composed in the late eighteenth century under direct colonial command.36 Just as the production of the digests of Hindu law of colonial India finally resulted in the codification of the Indian penal code, so too did the NyāV represent a milestone on the way to establishing a fully operational legal system in Nepal. That the NyāV was composed in the vernacular Newari as well as in Sanskrit makes it is all the more probable that it was not merely a utopian construct but was meant to be applied to the current social setting. The colophon of the text states that the work was written for the ordinary public, who would have had no ability to understand the source text, the *Nāradasmṛti*. It reads:

This weighty body of law handed down (*udita*) [by] the Nārada school is hardly understandable for those of little knowledge. [Therefore,] this clear commentary on it is written in Naipālabhāṣā (i.e., the language of the Malla kingdoms in the Kathmandu Valley, and still spoken today by the Newar

<sup>33</sup> See, for example, Vaidya & Manandhar 1985: 63, and Pradhananga 2001: 201.

<sup>34</sup> See, for example, Pradhananga 2001: 201.

<sup>35</sup> See J.E. Wilson 2007 for a discussion of the constitutive concepts of codification.

<sup>36</sup> For an in-depth examination of the legal digests (*dharmanibandha*), commissioned in colonial India, see Cubelic 2021, also see J.E. Wilson 2007: 16.

#### 112 — 2 The *Mulukī Ain* on Homicide

community). May kings and others understand it, and progress along the path of proper law.37

However, no historical evidence is available to substantiate the hypothesis that the NyāV reflected the social realities of that time. It is based on the *Nāradasmṛti*, and shares the basic elements from the latter regarding homicide law. Table 7 outlines the regulations on homicide and capital punishment laid down in the NyāV.

It is evident that the NyāV was following the NārSm—and thereby ignoring other Hindu legal scriptures in which women are punished differently when charged with homicide—when it formulated the general rule stating that everyone not a Brahmin was to be punished by death for capital crimes.38 The same text states that those who kill women are sinners.39 This would imply that it would be a sin to sentence a female criminal to death.

Table 7 demonstrates that the NyāV formulates a general injunction that, since murder is the unlawful killing of a human being, murderers should be punished according to their caste status. Some noteworthy exceptions are mentioned: Brahmins, for example, may not be killed. Although the NyāV does not elaborate upon homicide law in detail, it nevertheless took the initial step towards a codification of it in vernacular languages.

Another noteworthy document of mediaeval Nepal dealing with homicide law is Rāma Śāha's edict.<sup>40</sup> Sections 15 and 16 briefly deal with homicide law. The edict exempts ministers, male kin of the king, clan members, ascetics, Bhāṭa41 and Brahmins from being sentenced to death whenever they committed, or attempted to commit, murder. They should instead be punished by having their head shaved and being

<sup>37</sup> *idam alpadhiyāṃ*(!) *nṛṇāṃ*(!) *durvvijñeyaṃ yadoditaṃ*(!). *nāradīyaṃ yad astīha nyāyaśāstraṃ mahārthavat.yasyeyaṃ*(!) *likhyate ṭīkā spaṣṭā naipālabhāṣayā. imāṃ vijñāya bhūpādyāś caranu*(!) *nyāyavartmanā*. (NyāV, p. 326).

<sup>38</sup> *aviśeṣeṇa sarvveṣām eṣa daṇḍavidhiḥ smṛtaḥ. vadhāhi*(!) *ṛte brahmaṇasya*(!) *na vadha*(!) *brahmaṇo*(!) '*rhati*. "[Be it] kept in mind that the types of punishment mentioned [here] are to be equally [applied] to all [castes] excluding Brahmins [in the case] of capital punishment. Brahmins may not be killed." (NyāV, p. 226, and the parallel in NārSm 14.8).

<sup>39</sup> See NyāV, p. 298, and the parallel in NārSm 20.1 fn. 1.

<sup>40</sup> See above, Part I, 1.3.2.

<sup>41</sup> Offspring born from the union of a Brahmin man and his Upādhyāya concubine, or a Jaisī woman with whom he is not related, but who was previously married with two husbands; offspring born from the union of an Upādhyāya or Jaisī Brahmin with a concubine or widow belonging to the Daśanāmī, Jogī, Jaṅgama, Sannyāsī, Sebaḍā, Kanaphaṭṭā, Vairāgī or other kinds of ascetics.


*Table 7:* Regulations pertaining to homicide according to the NyāV

It is noteworthy here that, contrary to the common acceptance of this,ii there is no clear statement in the NyāV that women are exempted from capital punishment.


i Brahmins who were punished for committing murder were not readmitted into the caste, i.e., they could not undergo expiation or penance (see NyāV, p. 227, and the parallel in NārSm 14.10).

ii See Vaidya & Manandhara 1985: 62, and Pradhananga 2001: 202.

iii The NyāV categorizes theft as of low, middle and high degree depending on the object stolen (see NyāV, p. 229–230, and the parallel in NārSm 14.13–16).


exiled from the city. If other groups, such as Khasas, Magaras or Newars, do the same, they are to be punished by death, though their family members are exempted from legal scrutiny. It reads:

Edict the fifteenth: If ministers (*cautarīyā*),42 their brothers or members from the same clan commit grave offences leading to the loss of life, they shall be shaved and exiled to a foreign territory. If ascetics [from different schools such as] the [Daśanāma /Daśanāmī]<sup>43</sup> Sanyāsins, Vairāgins<sup>44</sup> or Bhāṭas, commit [such] a grave offence too, they shall be shaved and exiled to a foreign territory. The purpose of exiling brothers [of, *cautarīyās*], or [other] members of their clan to a foreign territory is what is stated in the *śāstra*s, namely that if somebody commits the offence of taking a [human] life, his [own] life shall be taken. If [the murderer] is executed, [the king] commits the sin of killing a kinsman; if [he] is not executed, the king commits the sin [of not punishing a criminal]. Therefore, it is said that they should be shaved and exiled to a foreign territory, since expulsion from the country is equivalent to death. [Similarly,] if a Brahmin is executed, the king commits the sin of killing a Brahmin; if he is not executed, he commits the sin [of not punishing a criminal]. It is said that shaving [a Brahmin's head] is also equivalent to death. Thus, they are to have their heads shaved and to be exiled to a foreign territory. It is said that, since the Daśanāma and Vairāgī ascetics are not to be executed because they wear renunciants' clothes (*bheṣa*), and Bhāṭas, too, are not to be executed, so they are ordered exiled. [The king] has therefore made provisions [for all] to act accordingly.45


Edict the sixteenth—the king has made [the following] provisions: If among tribal groups (*jāta*) such as the Khasas, Magaras, Newars [anyone] commits an offence leading to the loss of life, only he who committed [such] an act shall be executed, [in accordance with adage] 'The neck of him who is guilty.'46

King Rāma Śāha's brief regulations relating to homicide, principally based on ideas drawn from the *dharmaśāstra*s,47 did not contribute greatly to the further development of homicide law. However, the principle of 'only the offender himself shall be punished but not his family' seems to have been enforced to a certain degree by him. Some degree of influence from the Licchavi period in this regard is notable. The move, as R.B. Pradhananga notes, was a progressive one since it ended the system of punishment of a culprit's family members.48 Although such strict adherence to personal accountability for crimes could be taken as a big step forward, it was neither the brainchild of Rāma Śāha49 nor did it have a long-term impact on the development of the concept of a murderer's personal liability. For example, a *rukkā* issued by King Raṇa Bahādura Śāha in 1795 (VS 1852), around one and a half centuries later than Rāma Śāha, orders Kisna (Kṛṣṇa) Dhāmī, the father of a murderer, to pay a fine of 300 rupees. It reads:

Hail! This is a *rukkā* of the supreme king amongst great kings.

[Addressed] to Kisna Dhāmī:

[We have come to know that] the drummer (*nagārcī/nagarcī*) who used to play the *nagarā* in the morning was assaulted by

*saṃnyāsī bheṣa liyākā hunāle avadhya chan. bhāṭa pani avadhya chan bhani deśa nikālā garnu bhanyāko ho. tasartha yasai garnu thiti vādhivaksanu bhayo.* (RŚEdict 15).


your son for having played the *nagarā* in the 7th and 8th *ghaḍī*s<sup>50</sup> of the night. [The drummer] survived the night and died [the next day]. […] One must observe [the rules] of society (*saṃsāra*). Therefore, [in lieu of your son] a fine of 300 rupees is imposed on you for the offence of [your son's] having killed that person. Send the money through the hand of Tilaṃgā.51

This document shows that homicide law in force in mediaeval Nepal was not always adopted in later times. The earlier regulations were abandoned by rulers who wanted to develop standards they thought better suited to the political context of their times.

#### *Post-unification*

As said earlier,52 the unification of various principalities did not bring any considerable change in the development of a countrywide legal system. After his victory over the rulers of the Kathmandu Valley, Pṛthvī Nārāyaṇa Śāha imported Gorkhālī political and social norms, which resulted in the co-existence of a dual set of legal practices: Gorkhālī and Newar. However, late post-unification bureaucracies faced a considerable number of administrative orders in the form of *lālamohara*s, *rukkā*s, *sanada*s, *pūrjī*s and the like to implement, and in doing so they set out on a trajectory towards the unification of the country's legal systems. Since such documents are mostly royal orders having to do with economic activities, it is hard to undertake a comprehensive study of the law on homicide during that time. A more extensive document which delineates legal regulations of homicide during the post-unification period is the *Ainapustaka* (UjAin). Although the UjAin was an attempt to effect a small-scale reformation of the law, it features certain elements of a proper code, one that embodies both customary practices and innovative political thought. Many of the UjAin's regulations had a direct

<sup>50</sup> A measure of time equal to twenty-four minutes, usually measured by floating a bowl with a hole on a bucket filled with water.

<sup>51</sup> *svasti śrīmanmahārājadhirājakasya rukkā--- āge kisna dhāmi prati. tāhā̃ nagarā bajāunyā nagārcilāī byāhā̃na bajāunyā nagarā 7  |8 gari rātri jā̃dā nagarā bajāyo bhani tãmrā chorale kuṭikana ek rāta rahi marecha.* […] *saṃsāra tin tin garnyaiparcha. Tasartha tyo mānis māryāko ṣatbāpat tin saya 300 rupaiyā timilāi daṃḍa bhayo. tilaṃgāhāta rupaiyā cahrāyipaṭhāva*. (Edited in D.R. Panta 1985: 25).

<sup>52</sup> See Part I, 1.3.3.

influence on the MA.53 The drafter of the UjAin, Ujīra Siṃha, explicitly stated that he had observed the British court system (presumably that in practice in its Indian colony) before preparing his code-like text. Such attempts to recommend changes to legal practices by members of the aristocratic elite like Ujīra Siṃha contributed greatly to the development of the idea of codification. Among other things, they offered the rulers new insights into homicide law. The UjAin bears the following key features regarding homicide law and capital punishment.

Table 8 demonstrates that the section of the UjAin dealing with capital offences basically breaks down into the following main areas: Offences committed against a person's body, offences against the sovereignty of the state and crimes relating to incest. What is striking here is that the UjAin altered the ancient practice of exempting Brahmins and women from capital punishment. This shows that the dharmashastric ideas were not always perceived and interpreted from a shastric point of view but, were understood to depend also on the temperament and personal interests of rulers. The UjAin's attitude towards executing Brahmins and women for murder seems to be, as stated by Ujīra Siṃha himself, influenced by the British legal system enforced in colonial Bengal and based on equality before the law. Although Ujīra Siṃha tried to continue the tradition of not killing Brahmins or women by reinterpreting shastric principles in his own way: Brahmins and women charged with homicide would not be sentenced to death per se but subjected to conditions that all but meant certain death. The first section of Article 5 reads:

Article five, first regulation: If somebody commits the crime of taking another's life, a situation ensues wherein there will be injustice lest [the offender] is executed. [Therefore] the latter shall be either decapitated or hanged if he is from a caste that may be executed by means of a martial instrument. If a Brahmin and so forth54 or a woman has committed a [similarly] grievous sin, being convicted of murder by means of a martial weapon, and they must be executed, they shall be chained [and left to perish] or, if they have to be executed promptly, they shall be sent [to an area] where malaria is prevalent during the rainy

<sup>53</sup> See above, Part I, 1.3.3.

<sup>54</sup> The reference is to various subcategories of Brahmins and some sects of ascetics who may not be executed, such as a Jaisī Brahmins, Newar Brahmins or non-household ascetics.

#### 118 — 2 The *Mulukī Ain* on Homicide


*Table 8:* Types of capital punishment called for by the UjAin for murder and other offences


*Table 8 (continued)*

i It is worth noting here that only those who assist in murdering a royal or political authority are sentenced to death; if the victim is an ordinary person, the main culprit is put to death, but not any accomplices. This regulation reflects the chaotic political turmoil in Nepal characteristic of the first half of the nineteenth century, when there was a strong power struggle going on between the Thāpā and Basnyāta families.

#### 120 — 2 The *Mulukī Ain* on Homicide


*Table 8 (continued)*

season or to the northern borderland (Bhoṭa)55 during wintertime, and [authorities] shall keep them there until they die. If the punishment is the severing of genitals, the genitals of those who may be executed shall be severed. In the case of Brahmins and so forth who are [again] convicted of murder by means of a martial weapon, they shall be shaved and exiled from the country. Women have less intelligence and they are impetuous by reason of their excessive anger. They cannot evaluate the consequences of different courses of action. Therefore, when punishing women, either reduce their caste or exile them. If the offence they committed is [considerably] graver, cut off their nose and exile them.<sup>56</sup>

This explicit deviation in the UjAin from both *dharmaśāstra* and customary practice—to my knowledge, the first such documented instance—likely is a result of the close encounter with the colonial

<sup>55</sup> Lit. 'Tibet'. However, here it does not mean the main plateau of Tibet but rather any uninhabited snowy region along the Tibetan border.

<sup>56</sup> *pācau vandejako pahilo tajavīj kasaila (read: kasaile) jiu mārinyā takasīra garyo uslāi namāri nisāpa parnyā chaina bhanyā hatiyāra calāi mārinyā jātalāi jhunaḍāi kāṭihari yeka tarahasãga usko jyāna māridinu. hatīyāra calāi mārdā hattyā lāganyā vrāhmaṇa gairaha jātale ra strīharūle ṭhulo aparādha garyāko cha unlāi namāri hunyāchaina bhanyā nelaimā gālnu. athavā cāḍai mārnu paryo bhanyā varṣā aulāmā hiudamā bhoṭamā rāṣanu. namarikana nachoḍanu. jāta ansāra nalphal kāṭanu bhanyāmā kāṭinyā jātakā nalphal kāṭanu. vrāhmaṇa gairaha hatiyāra calāyā hattyā lāganyā jātalāi muḍi des nikālā garidinu. svāsniharuko akal kam huṃcha. ḍherai risa hunāle āṭi hunchan. yeso garyā yeso holā yeso garyā yeso holā bhani aghipachi ḍhera deṣtainan. tasartha svāsnilāi sāsanā gardā jāta patita garidinu. athavā desa nikālā garidinu. ṭhulo aparādha cha bhanyā nāk kāṭi desa nikālā garidinu.* (UjAin/5 §1).

administration after the ratification of the Sugaulī Treaty in 1816. Henceforth the colonial power was allowed a permanent residency in the Kathmandu Valley in order to maintain close political ties with Nepal's government. Since criminal transactions between Nepalese and the East India Company controlled territories were a big problem of that time,57 the colonial administration negotiated with the Nepalese administration not to exempt anybody from the death sentence in cases of capital crimes irrespective of what Hindu legal scriptures state and what the customary practices were. This diplomatic communication resulted in a reciprocal treaty meant to be put into force between the East India Company and the Nepalese government in 1834 (VS 1891) to control cross-border crime, especially theft and robbery. The treatise explicitly mentions that irrespective of caste and gender status,

57 See, for example, the letter written by the envoy Lokaramaṇa Upādhyāya to the Nepalese palace from Calcutta about tensions that arose between Nepal and the East India Company over cross-border crimes. The letter reads in part: "[…] when I (i.e., Lokaramaṇa Upādhyāya) met Captain Vaca Sāhaba (i.e., Captain F.W. Birch), the Superintendent of Calcutta Police, he told me in the course of conversation that 'the relationship between Nepal and the Company State will certainly be spoilt. My platoon is in Banaras, and I have also been ordered to go there. At the time of deployment of the platoon, I too will join it, leaving this job.' 'We did not intend to make war. If the unique commitment (*ahada paimāna*) is spoiled from the Company's side without any reason, we shall spoil it from our side too. Friendship will remain if it is maintained from both sides; it cannot be maintained only from one side.' When I (i.e., Lokaramaṇa Upādhyāya) said this, Captain Birch replied jestingly that 'there has been impropriety from your side. It is not the custom of the English to spoil [a relationship] first. Your troops came everywhere within the borders and robbed within the Company's territories. Is this proper in friendship? There are several other matters, too. It seems that you have been informed of nothing, and you know nothing. Because of such mismanagement on the part of Hindustanis, we, having come from another place, took Hindustan,' I (i.e., Lokaramaṇa Upādhyāya) replied to him that 'actual information has [always] been arriving to me in writing. As opposed to your country, we do not have the custom of writing false [information] in our country […].'" […] *kalkattākā puliskā suparinḍanṭa kaptāna vaca sāhavasita bheṭa hudā vātacitkā prasaṃgamā nepālasita sarkāra kampanīkā avasya vigrancha mero palṭan vanārasmā cha malāi pani jānu bhani hukum bhayāko cha palṭan kuca hunyā tākamā ma pani mokāma choḍi āphnā palṭanmā sāmela huna jā̃lā bhannyā kurā garyā hāmrā ta laḍāiko mansuvā thiena kampanikā tarphavāṭa ṣānaṣā ahada paimāna choḍi vigranchau bhanyākā velāmā hāmrā tarphavāṭa pani vigranai parlā saluki duvaitiravāṭa rāṣyā rahancha ekatiravāṭa rāṣi rahadaina bhani maile bhantā timiharukā tarphavāṭa acākli huncha hāmrā aṃrejako pailhe āphu vigranyā dastura hoina jahā tāhā sivānāmā laskara āi hāmrā kampanikā jagāmā liṭapiṭa garera laigyā dostimā yasto cāhinyā ho kyā tava aru pani dherai kurā chan timilāi kehi leṣi āvado rahenacha timi kehi thāhā pāudā rahenachau hindusthānikā estai vevaṃdovasta hunāle hāmile arkā velāetvāṭa āi hindusthānko velāet liñyu bhani ṭhaṭṭā garyā jhai gari kurā garyā bhayāko vistāra malāi lekhi āudaicha nabhayāko timiharukāhāko jasto phaiki hāmrā mulukamā leṣanyā dastura chaina bhani maile javāva diñā.* (NGMPP DNA 1/68).

anybody who commits an act of cross-border robbery is to be sentenced to death by the legal authority where the crime took place.<sup>58</sup> Such standpoints insisted upon by the colonial administration helped not only to ensure smooth diplomatic relations regardless of what the *dharmaśāstra*s and customary practice enjoined but also to somewhat stabilize Nepal's chaotic political situation under successive rulers. It is likely, for instance, that the idea of putting Brahmins to death floated in the UjAin and concretized in the treaty must have given pause to Brahmins among the power elite who might have otherwise considered engaging in subversive acts.

The above passage shows the growing awareness of the need for proper homicide laws during post-unification Nepal. These regulations put forward by Ujīra Siṃha represent a comparatively detailed approach to homicide. They deal not only with murder committed by a single person but also attempted murder and murder committed collaboratively by multiple persons. The seventh and eighth sections of Article 5 state:

If someone plans and attempts for no reason (*nāhaka*) to kill a person in one of the ways [mentioned before,]59 the [intended victim] having not died [only] because he received some sort of help, then even so the offender shall, depending on his caste status, be executed because he dared for no reason to make a plan and attempted to kill [the victim,] and would have killed him had he been able to do so. The victim was able to survive by divine intervention; still, the life of him shall be taken who for no reason practised treachery against another's life.60

Even if someone low in rank (*choṭā ādamī*), having intended to take revenge on a high-ranking person who has received his post either as a royal appointment etc. or as a stroke of luck, does not carry out [the deed] but participated in a plot to take revenge or

<sup>58</sup> See NGMPP DNA 4/100 below, Part II: C, Document 1.

<sup>59</sup> See UjAin/5 §  6.

<sup>60</sup> *pācau vandejako sātau tajavīj. yestā nānā trahale (read: tarahale) nāhakmā arkāko jīu mārnyālāi matalap gari puryāyo arū kehi tarahako sahāya milyo guhāri payā (read: pāyo) ra usko jiu marena bhanyā pani nāhākmā arkāko jiu mārna āṭi kāmako matalap puryāunyālāi usle sakyā mārnyai thiyo daiva saṃhāya bhai usko jiu vācyo tāpani nāhākmā arkāko jiu dagā garnyāko jivai jāncha. jāta viśeṣa māridinu.* (UjAin/5 §  7).

merely provided his advice, he shall—depending on his caste status—be executed.61

In addition to the above documents, B.H. Hodgson's memoranda of the Jail delivers of prisoners during the Dasain festival found in the Indian Office Library62 are key documents relating to homicide law and criminal jurisprudence of the pre-MA period, as are his works and miscellaneous essays.63 According to him, homicide law fell strictly under the jurisdiction of the central courts of justice, namely: the Koṭīliṅga, Iṭācapalī, Ṭaksāra and Dhanasāra.64 As soon as a local judicial body received information regarding a homicide, the informant was interrogated in order to establish a corpus delicti. If the informant's evidence turned out to be false, he would be punished for giving false information. Otherwise, the court's soldiers were immediately deployed to secure the site and prevent the murderer from escaping. The most reliable, and indeed mandatory, evidence in order to make possible a court decision regarding a murder trial was the murderer's written confession. It was mandatory to obtain a written and attested confession from the murderer before sentencing him. In order to get it, convicts might be scolded, beaten or otherwise terrorised. The MA displays the same pre-MA attitude toward the need for a written confession before a court handed down its decision.65 On the other hand, it strictly forbids confessions to be obtained by force, and imposes fines on noncompliant officials—greater or less depending on the severity of crime brought before the court.66 After a murder confession is obtained, the verdict is announced and forwarded to the Council for its assessment and final approval. Adding his own to the Council's assessment, the prime minister then referred the matter to the king. Once sanctioned


<sup>61</sup> *pācau vandejako āṭhau tajavīja rājakāja prabhṛtile bhayo athavā āphnā nasīvakā jorale bhayo bhayākā yestā vaḍā ādamīkā dagā nimittya choṭā ādamīle āphule mārana jiu mārnāko matalap gari puryāyena ta ni dagā garnyā kurā kāma ta pasnyā ra sallāha dinyāmātra rahecha bhanyā pani jāta ansāra jiu māridinu.* (UjAin/5 §  8).

<sup>62</sup> See Adam 1950.

<sup>65</sup> See MA-ED2/37 §§1–13.

<sup>66</sup> "If [authorities] without having obtained [any concrete evidence] obtain a confession [from a defendant] by beating him regarding a capital crime but later [the crime] is not verified, the chief [officer] shall be fined 360 rupees […]." *jyū jānyā ṣatatmā* (read: *khatmā*) *dasi saṣalaṣa napāi kuṭpīṭ gai kāyelanāmā leṣāyo pachi ṭhaharena bhanyā testā hākimalāi 360 rūpaiyā daṃḍa garnu* [….]. (MA-ED2/37 §1).

by the king, a *ḍiṭṭhā* was ordered to carry out the punishment. Murderers were always punished corporally. If they were not Brahmins, women or certain types of ascetics, they were taken to the banks of the Viṣṇumatī River and either decapitated or hanged in public at the hands of a Poḍhyā, a member of one of the Untouchable castes. There was no provision for having personal lawyers defend the accused.

Broadly speaking, the following categories of homicide can be sketched in the pre-MA period: lawful killing (killing in self-defence,67 killing a paramour of one's wife and killing in order to save a cow's life), murder (by a single person or by a group of people), attempted murder and assisting a murderer.68

#### **2.2 Regulations Relating to Homicide in the MA**

#### 2.2.1 The Structure of Articles on Homicide

The Article of MA 1854 on homicide is laid out under three rubrics: 1. taking up murder weapons, 2. types of murder and 3. unintentional homicide. The revision of it that resulted in MA 1870 affected both the linguistic component and the content: the complex language structure of the 1854 version was markedly simplified, with many small sections supplanting the more ceremonial prolixity of the earlier paragraphs.<sup>69</sup> What were considered unnecessary provisions were deleted, and long sections rephrased. In the Article 'On Homicide', for example, MA 1870 groups 160 sections under four headings and 13 subheadings, in contrast to MA 1854's three headings, 20 subheadings. The latter thus tends to treat multiple topics under single sections. I shall first present the contrasting headings of the Article 'On Homicide' from the both *Ains*.

#### *MA 1854*


69 See MA 1870/4, 18, 5 and 161.

<sup>67</sup> See HMG. *Pokā* no. 16, quoted in Vaidya & Manandhar 1985: 145.

<sup>68</sup> See UjAin/5.

2.2 Regulations Relating to Homicide in the MA — 125


*MA 1870* <sup>70</sup>


126 — 2 The *Mulukī Ain* on Homicide


# 2.2.2 Basic Categories

# *Accidental homicide*

The MA terms one category of homicide *bhormā jyāna mārnu* ([killing by] mistake) or *bhavitavya hatyā* (accidental [killing]), that is, death inflicted indeliberately. The MA makes a clear distinction depending on whether a killing takes place intentionally or not. For example, in most sections of the *Ain* the phrase *mārauṃ bhanī* (with the intention to kill) is used to define unlawful homicide. The following are the categories recognized as constituting accidental homicide by the MA.

#### **a) Beating a person with hand-blow**

This is one of the new criteria introduced into the MA to differentiate premeditated murder and accidental murder.71 According to this distinction, if somebody above the age of twelve dies as a result of one or two fisticuffs to the back or a cheek but not to sensitive body parts, it is taken as an accidental occurrence. However, if under the same circumstances the victim is less than twelve years, it will be considered a murder, and the offender is punished by death.72

#### **b) Setting traps**

#### *Setting defensive traps*

The MA recognized the death of someone who dies upon falling into trap set up in or around a redoubt, path, fortress or fort closed down earlier by royal decree as accidental murder.73

#### *Setting animal traps*

To set a trap under specified circumstances is allowed by the MA. The death of someone who dies after falling into a trap set with conventional methods for purposes of hunting is defined as an accidental homicide. For example, if in response to a tiger, bear or the like having killed a human, somebody sets a trap, and a person who has been notified in advance falls into it, this is taken as an accidental homicide.<sup>74</sup> Even if somebody dies after falling into a trap set for any purpose other than that of killing, the MA does not recognize it as a murder. Instead, it is taken as a minor unintentional crime. Thus, the punishments take only the form of fines, compensation for the deceased's funerary rites or a *pretium doloris.*<sup>75</sup>

#### **c) Unintentional manslaughter**

The MA considers obvious human error which results in death as a mishap and therefore unpunishable. For example, if somebody during the night strikes at what he misperceives as an animal or the like and a human dies in that attack, the act is recognized as a mishap. However, there is an ancillary condition that the slayer and the deceased should have harboured no mutual malice or engaged in any dispute concerning

<sup>71</sup> See Pradhananga 2001: 226.

<sup>72</sup> See MA-ED2/64 §1.

<sup>73</sup> See MA-ED2/77 §  6.

<sup>74</sup> See MA-ED2/77 §  5.

<sup>75</sup> See MA-ED2/77 §§1–4.

any matter before.76 Similarly, if a human dies in a shooting at the hands of someone hunting in a jungle targeting what he takes to be a deer or other animal, this too is treated as death caused by human error.<sup>77</sup>

#### **d) Death caused by accident**

This is also one of the categories of accidental homicide, which happens during unexpected accidents caused by humans while engaging in daily activities. The person who caused the death is not subject to punishment as long as he and the deceased harboured no mutual malice beforehand. The MA mentions a number of typical situations: (i) An arrow or bullet goes astray when discharged because of breakage, slippage or other loss of control; (ii) Similarly in the case of slippage of an axe or the like from its wielder's hand while cutting down a tree or the like; (iii) Other such accidents: wood being dragged, a field being ploughed, or a path, water channel or temple being constructed; (iv) Men, women or children, when being led across a river or ford, are swept away and drown, having slipped loose from the grip of the person leading them across;<sup>78</sup> or (v) Open agricultural burning gets out of control.<sup>79</sup>

#### **e) Death during interrogation**

The MA provides the right to government interrogators to use mild force if permitted by the prime minister during the process of interrogation. If the use of such force under restricted circumstances lead to the death of an accused person, this is counted as an accidental homicide. This issue is dealt with in Sections 1 and 2 of the Article 'On Theft.'80 If someone has stolen four or five different objects but confesses to having stolen only one of them, interrogators are allowed to flog the accused. If by chance he dies, this is taken as a mishap. Similarly, if someone who is charged with murder or theft is detained on the strength of solid evidence and interrogated by forcible means, the interrogators are not held accountable if the accused dies.

#### **f) The death of captives**

The MA of 1870 introduces a new category of homicide, namely the death of a captive. The code allows holding somebody captive only on

<sup>76</sup> See MA-ED2/65 §  2.

<sup>77</sup> See MA-ED2/65 §  4.

<sup>78</sup> See MA-ED2/65 §3 and §§  5–10.

<sup>79</sup> See MA-ED2/65 §12.

<sup>80</sup> See MA-ED2/68 §§1–2.

condition that he is provided food and drink, and only over a dispute involving a commercial transaction, a debt or credit or the like. If the person who has taken the other captive provides food and water but the latter does not eat and drink what is offered, and then dies in a fearful state of mind, this is taken as a mishap and thus unpunishable.<sup>81</sup>

## *Lawful homicide*

The MA uses the expression *khata bāta lāgadaina* (no blame shall be assigned) to indicate lawful homicide. Homicides committed under the following circumstances are defined as lawful in the MA. Although the MA dedicates a separate chapter to accidental murder, several other references relating to the same issue are observed elsewhere too in the MA.

#### **a) Killing to protect the sovereignty of the kingdom**

To ensure a system of checks and balances between the monarchy and the executive head of the country, namely the prime minister, while safeguarding the country's autonomy and the king's throne, the MA grants the king a unique legal prerogative to authorize the execution of the prime minister. This provision applies only under specific circumstances where the prime minister is found to be involved in plotting to usurp the throne, attempting to assassinate the reigning monarch and queen, or intending to surrender the kingdom's sovereignty to rulers from the southern or northern regions.<sup>82</sup>

### **b) Killing in self-defence**

The basic value of human life is enshrined in the MA. He who has been attacked and injured by someone else is granted the right to defend himself, even if that results in killing the attacker. Such killing is not a murder, nor is it punishable. Especially interesting in this case is that the caste status of the attacker is irrelevant. Although the MA strictly forbids the killing of Brahmins and woman at any cost,83 the ban breaks down in the case of self-defence:

If anybody from any caste including an Upādhyāya Brahmin, with the intention of killing, wields a weapon against some person

<sup>81</sup> See MA 1870, p. 83 §  2.

<sup>82</sup> See MA-ED1/1 §§31–33.

<sup>83</sup> See MA-ED2/64 §1.

who has done nothing wrong, and wounds, and if he who has been wounded shall strike the attacker and kill him—irrespective of whether the attacker is an Upādhyāya Brahmin or from any other caste—then [the slayer's] life shall not be taken, nor is he assigned any blame.84

Women are granted the right to kill in order to defend themselves against sexual assault. They are allowed to kill the assaulter by any means wherever he is found within forty-eight minutes after the assault. The text reads:

If a man from any of Four Varṇas and Thirty-six Jātas including Sacred Thread-wearers forces sexual intercourse upon an unmarried girl, somebody's wife or a widow—irrespective of whether she is from a caste higher than his, equivalent to his or lower than his—and she kills him during the time he is assaulting her or within 2 *ghaḍī*s afterwards, be it by striking him with a weapon such as a cane or stone, making him fall off a cliff, making him be swept away in a river or by strangling him, she shall be assigned no blame for having killed an assaulter during that time. She shall be made to obtain ritual expiation for taking a life and be let off.85

Again, then, whoever sexually assaults a woman can be killed in self-defence irrespective of his caste status or his family relation to the woman.

#### **c) Killing while protecting private property**

For a property owner to kill a thief at the site and in the course of a theft in order to protect private property is considered to be a lawful

<sup>84</sup> *upādhyā vrāhmaṇa arū gaihra jāta kasaile kohi virāva nagaryā mānisalāi mārau bhani hatiyāra calāi ghā lāyo bhanyā tyo ghā lāunyā upādhyā havas vā arū kohi jāta havas testā ghā lāunyālāi ghā lāi māgnyāle hāni jyāna māryo bhanyā pani tesko jyāna pani jādaina ṣatavāta pani lāgdaina*. (MA-ED2/63 §  4).

<sup>85</sup> *āphubhaṃdā upallā jātakā havas āphu mildā jātakā havas āphubhaṃdā ghaṭi jātakā havas arkākā sadhavā vidhavā kaṃnyā svāsnilāi tāgādhāri lagāyat cāra varṇa chattisai jātakā lognyā mānisa kasaile manomāna nagarāi valajaphata javarajasti karaṇi liecha ra karaṇi gardaimā havas karaṇi garyā 2 gharibhitramā havas tesai svāsnile karaṇi linyā tesailāi hatiyāra lāṭhā ḍhũgāle hāni bhiramā laḍāi ṣolāmā vagāi pāso lāi māricha bhanyā usai velāmā māryāko hunāle ṣatavāta lāgdaina. jyāna māryā vāvat ko patiyā garāi chāḍidinu*. (MA-ED2/133 §18).

homicide in the following situations: If the thief has been already convicted once or twice of thievery, and he again comes to steal at the same place and the owner of the property is unable to fight against him;86 Or if thieves come in a group and break down a house wall or they come with weapons.87 Similarly, if the owner is not able to resist the thieves or robbers by other means.88 Further, for a person to kill a friend who had been a travelling companion in a foreign land and who had tried to kill him is lawful if it is proved through the interrogation that both had previously harboured no mutual malice and the deceased had been convicted of thievery once or twice before.<sup>89</sup>

#### **d) Killing by sentry**

A sentry who is stationed by royal decree or through some other authorized order is allowed to kill anyone who threatens him with a rifle or other weapon while being stopped and told not to enter into a restricted area.

#### **e) Killing a witch**

Killing a witch who had failed trial by ordeal undergone of her own free will is lawful. By contrast, since forcing trial by ordeal is forbidden in the MA, killing on the basis of it is unlawful.<sup>90</sup>

### *Killing during elephant or horse riding*

An incident resulting in the death of an individual during a formal or informal ride on an elephant or a horse is considered accidental if the rider is unable to control the animal despite their attempts to do so. For instance, if a mahout fails to control an elephant because it is afraid of something or the animal being in a state of mating aggression (*matta*), resulting in the death of someone, it is regarded as an unfortunate occurrence.91 Likewise, if a horse-drawn cart inadvertently runs over and causes the death of a person, it is also classified as an accident.92


132 — 2 The *Mulukī Ain* on Homicide

#### *Excusable homicide*

#### **a) Homicide committed by a minor**

The MA does not define the age limit of minors in a consistent fashion. The age of full legal responsibility depends on various circumstances. For example, a person below the age of sixteen is recognized as a minor if the matter in question is trade and monetary transactions. Any such transaction made with a person below the age of sixteen is considered invalid.<sup>93</sup> When it comes to bodily impurity regarding food, anyone below the age of twelve is defined as a minor.94 When adultery within Sacred Thread-wearing castes is at issue, a male below the age of eleven and a female below the age of ten are defined as minors. In the case of homicide, finally, the MA defines anybody who is below the age of twelve as a minor. If a minor commits homicide, he is to be imprisoned for a month, undertake expiation and then set free. The respective section reads:

If a child below the age of 12 commits a crime involving bodily harm, from something minor [to] taking a life, they shall be assigned no blame. If someone is killed by [a child], the latter shall be calmly interrogated [in front of] five notable persons from an *adālata*, *ṭhānā* or *amāla*. The child shall not be scolded. If the child says that somebody else ordered him to commit the act and he did so, [the authorities] shall investigate whether the deceased and the one who instructed [the child to kill] harboured any grudges over something. If while conducting the investigation it is determined that the instruction [to kill] was truly [given] and a confession is given, the confession shall be written down and he who instructed [the child] to kill shall be executed. The child who committed the murder shall be imprisoned for 1 month and let go after making him undergo expiation.95

93 See MA-ED2/92 §  2.

<sup>94</sup> See MA-ED2/92 §  6.

<sup>95</sup> *12 vaṛṣadeṣi udhokā vālaṣale sānātinā kurādeṣi jyāna māryā jyānako taksira garyā tinlāi ṣatavāta lāgdaina. jyū māryāko rahecha bhanyā teslāi adālata ṭhānā amālakā paṃca bhalā mānis rāṣi phulyāikana sodhapucha garnu. nahavakāunu. arkāle arhāyothyo ra maile garyāko ho bhanyo bhanyā mārna sīkāunyā mānisko ra marnyāko aghi pachiko kehi kurāko ivi paryāko rahecha ki rahenacha tahakikāta gari ṭhaharāudā ahrāyāko sācai ṭhaharyo sikāunyā kāyela bhayo bhanyā kāyelanāmā leṣāi sikāi marāunyā cāhiko jyāna linu. mārnyā keṭākeṭilāi 1 mainhā kaida gari prāyaścitta dilāi chāḍidinu.* (MA-ED2/92 §  2).

# *Attempted homicide*

Attempted murder is punished in the same way as murder. Table 9 lists the conditions and outcomes.


*Table 9:* Regulations relating to attempted homicide

#### *Unlawful homicide*

The term the MA uses to denote unlawful homicide is *jyānamārā* (lit. killer of life). As pointed out by R.B. Pradhananga, modern law relating to homicide in Nepal has kept this term to denote serious types of murder.96 The MA defines any unauthorized killing of—or the attempt to kill—someone, and with the specific intention to do so, out of greed for property, envy or the like, as unlawful homicide. The punishment for

96 See Pradhananga 2001: 10.

committing unlawful homicide is death and the confiscation of property if the culprit is a man from a caste that may be executed, branding and confiscation if the culprit is a man from a caste that may not be executed, and branding and banishment if the culprit is a woman.

The MA categorises the following types of killings as unlawful homicide:

#### **a) Murder (***jyāna mārnu***)**

Murder is defined in the MA as the killing of one person by another person with the intent to do so, out of greed for property, envy or the like. The MA enumerates some examples to show how murder may take place, such as cutting the throat, stabbing, striking, pressing under a log or rock (*ḍhuṅgo*), strangling, gagging, administering poison, causing the victim to fall to his death or be swept away by a river, or hanging.<sup>97</sup>

The MA 1854 distinguishes the following types of specific individual offenders in a killing carried out by a single person


#### **b) Group murder**

In a murder committed by a multiple number of persons, the different types of offences are categorized into: (i) catching, (ii) dealing the fatal blow, (iii) commanding (ordering to kill), (iv) acting as barrier (helping by barring the victim's path) and (v) onlooking (bystanders to a murder who are larger in number than the murderers but do not try to save the victim).

Furthermore, different types of facilitators are distinguished:


Table 10 summarises the punishments for killing someone intentionally out of greed for property or for some other base motivation, whether during the day or night and by any of a host of means (assaulting and stabbing with a weapon, administering poison or the like).


#### **c) Killing of a minor below 12**

It is a notable feature of the MA that it explicitly safeguards minors who are under their age of twelve. No assault is tolerated against them under any circumstances. If a child dies even from one or two light blows of the hand to sensitive body parts, that is treated as unlawful homicide—irrespective of whether the intention was to kill or not.<sup>98</sup>

#### **d) Killing during robbery**

Homicide committed during an act of robbery is unlawful. If a person is killed by robbers wielding weapons or by any other means during the robbery, up to five types of participants—those who block the street to prevent the victim's escape, those who hold the victim captive, those who strike him, those who order him to be struck, and those who provide weapons—are liable to conviction for having committed unlawful homicide.99

#### **e) Killing of authorised personnel on sentry duty**

Killing an authorised sentry while on duty is unlawful. Even attempting to kill one with a weapon is treated as if it were a murder. If someone opens fire with a rifle, shoots an arrow or discharges any other weapon which injures a sentry at a government post or treasury; a guard at any other place who stands watch by government order; a guard watching over money, immovable property, cattle or a person; or a member of a night patrol—irrespective of whether the victim dies or not—the wielder of the weapon is charged with murder.

#### **f) Causing a person's death by a snake or dog bite**

MA 1870 introduces a category of unlawful homicide not dealt with in the first version of the code. It states that if anyone intentionally kills a fellow human by causing him to be bitten by a snake or dog, he is guilty of murder and will be punished under the sections of the code governing unlawful homicide.<sup>100</sup>

#### **g) Causing injury resulting in death**

The MA defines intentional acts of injury that lead to death within specified timeframes as murder. The following table presents a summary of the corresponding time periods. For instance, if an individual inflicts harm upon another, resulting in death within seven days, the most severe punishment will be applied based on that duration. However, if the death occurs after that timeframe, it may be considered a natural death (Table 11).

### *Caste, group, gender and punishments*

The MA classifies offenders into one of two categories: *kāṭinyā jāta*  and *nakāṭinyā jāta* (those who may be executed and those who may not be executed). Brahmins, the king, certain groups of ascetics, women and persons of unsound mind fall under the first category. The general relevance of caste when meting out punishment for homicide is spelled out in Table 12.

<sup>99</sup> See MA-ED2/68 §  52.

<sup>100</sup> See MA 1870, p. 94 §§  40–41.


*Table 11:* Regulations governing bodily injury resulting in death



i This is dealt with below; see Part II: B.

#### 138 — 2 The *Mulukī Ain* on Homicide

*Table 12 (continued)*


#### 2.2.3 Capital Punishment and Exceptions to It

The exceptions to carrying out capital punishment in consideration of caste, gender or social group are laid out in Table 13: kings, Brahmins, ascetics, and women may not in general be executed but are to be branded. The branding takes a very specific form: The offender's left cheek is branded with the mark *dāmala/ḍāmala*<sup>101</sup> marking him out as a prisoner for life. This seems to have been adopted from the dharmashastric practice. For example, the NyāV states: "[In the case of crimes punishable by branding,] one should shave the culprit's head, imprint a mark of the crime on his forehead, take him around on a donkey and exile him from the city." 102 Instead of exile, the MA institutionalises imprisonment for life. While branding spares the life of the guilty party, it amounts in fact to social death and the need to wage a constant struggle to stay alive.<sup>103</sup>



*Table 13:* Exceptions to capital punishment

No reason is given in MA 1854 as to why Brahmins are not to be put to death. The 1870 MA, however, provides the reason: brahmahatyā, the killing of a Brahmin, is considered as a grievous sin.<sup>i</sup>


#### 140 — 2 The *Mulukī Ain* on Homicide

#### *Gender-specific regulations: More lenient punishment for women*

Also shown in the table above, women may not be executed. Other forms of punishment are also less severe for women than what men could look forward to for the same crimes. The following table compares the punishments imposed on women and men for the certain crimes.


*Table 14:* Gender-specific regulations: More lenient punishment for women

Note: A woman could buy her way out of prison by paying a fine, but a man sentenced to death could not do so.

#### *Homicide with diminished responsibility*

The MA deals with offenders of unsound mind separately. Those judged to fall under this category were held accountable but with diminished responsibility.

*Table 15:* Regulations relating to diminished responsibility for homicide


i Although the phrase *sabai thoka thāhā pāunyā* literally means '[one who] knows everything', it seems to refer to mental sanity, a prerequisite for being held legally responsible for one's deeds.

#### *Regulations relating to execution*

The MA recognises only two methods of execution: decapitating or hanging. Other methods than these are considered to be unlawful. The prime minister is subject to a fine of one thousand rupees if he orders an execution to be carried out in any other way.104

104 See MA-ED2/64 §30.

ii If such insane persons did not eat tabooed food before committing the homicide but started doing so only afterwards, they would be branded and their property confiscated if they could not be exucuted; if they belonged to a caste group whose members could be exucuted, they were sentenced to death.

142 — 2 The *Mulukī Ain* on Homicide

#### *Extradition*

The MA has provisions regarding the transfer of a murderer from one country to another. Domestic authorities are not allowed to press charges against a foreign fugitive accused of a crime who has entered Nepal. It mandates instead going through official channels to bring about extradition. For example, it states:

If someone kills a person and flees towards Madhesa105 or Tibet and crosses a border pillar or a border demarcation, he shall be brought back in consultation with the English resident (*rajiḍaṃṭa*) if he flees to Madhesa, and with the Chief Kājī if he flees to Tibet. He should then be sentenced to death by domestic authorities.<sup>106</sup>

#### *An exceptional regulation for Rājapūtas on adultery and theft*


*Table 16:* Regulations relating to Rājapūta on adultery

As we have seen in Table 16, capital punishment for adultery or thievery within their own caste or involving a higher caste is forbidden when it comes to members of the ruling family. It is very surprising that a regulation relating to adultery and thievery figures at all in the Article 'On Homicide,' and that it should apply only to members of the ruling family, particularly since the MA has separate Articles (68 and 114) on

<sup>105</sup> The name *madhesa* (Skt. *madhyadeśa* and var. *madeśa/madesa*) refers to the flat region south of the Himālaya, north of theVindhya range, east of Kurukṣetra and west of Prayāga (see MW s.v. *madhyadeśa*). This includes the flat lands in the possession of the Nepalese state of that time. In this context, however, the name refers to that portion of the region controlled by the British in colonial India. The other name, *bhoṭa*, which designates Tibet, also support the argument that both were used to indicate the neighbouring realms (see NGMPP K 175/18 below in Part II: C, Document 4).

adultery and theft. The effect is to seem to leave unanswered the question of whether a similar offender from another caste group would be subject to the death penalty or not.

# 2.2.4 Other References on Homicide

The MA attempts to regulate all sorts of possible crimes resulting in death. The Article 'On Homicide' does not itself cover all the possibilities dealt with in the code. Thus, I shall now proceed to present other references to murder in it found outside the Articles specifically devoted to homicide.

### *a) Homicide committed by members of royalty*

The notion that the king was an incarnation of Viṣṇu long absolved the monarch from any kind of legal accountability in pre-modern Nepal. The Nepalese state remained true to its patrimonialist roots according to which the state was organized as an extension of the monarch's household.107 Monarchy itself was defined in religious terms, with the king as the upholder of the purity of the realm and its lawgiver. Such a polity was laid out by Jaya Sthiti Malla in his NyāV.108 The MA of 1854 for the first time not only reduced the monarch to a ceremonial (and primarily ritual) authority but also subjected him to strong legal scrutiny—on a par with state agencies. Therefore, the MA held that even the king should be punished if convicted of homicide in accordance with the written law. The regulations dealing with homicide committed by a king or other royal members were incorporated into the Article 'On the Throne,' which contains, for example, the following provisions:

If an enthroned king kills a younger brother or son—one who would get the throne after him—by administering poison on his own or by having another person do it, such a king shall be dethroned, reduced in caste and put under house arrest outside the palace, [and there] provided with food and clothing suitable

<sup>107</sup> See Edwards 1977.

<sup>108</sup> See NyāV, p. 259–262, and parallels in NārSm 18.21 and 23–30.

to his rank. Such a king shall not be entitled to the throne. The one who is [next in line] to get the throne according to the roll shall be enthroned.109

If an enthroned king kills with his own hands an innocent person without due process of law, he shall be dethroned and put under house arrest outside the palace, [and there] provided with food and clothing with honour. The rightful claimant to the throne shall be enthroned.110

If a crown prince, the rightful claimant to the throne after the king's death, kills the enthroned king by administering poison, he shall not be allowed to be enthroned. Such [a crown prince] shall be reduced in caste and imprisoned outside the palace, [and there] provided with food and clothing. The one who according to the roll is to get the throne among those who come after him shall be enthroned.111

Table 17 summarises the regulations relating to homicide committed by a member of the royal family in connection with royal matters.

<sup>109</sup> *gaddinasida rājāle āphnā sekhapachi gaddi pāune bhāi chorālāī āphule jahara bikha khuvāi bhayo aru mānisa lagāī bhayo jyāna mare bhane testā rājālāi gaddibāṭa khāreja gari jātapatita gari darjāmāphika khāna lāuna di darbāradekhi bāhira najarbandī gari rākhnu yastālāi gaddi hudaina rolale gaddi pāune jo hun gaddīmā unai lāi rākhnu*. (MA-ED1/1 §  9).

<sup>110</sup> *gaddinasida rājāle bekasura benisāphamā āphnā bāhulile kasaiko jyāna mare (read: māre) bhane gaddibāṭa khāreja gari darbāradekhi bāhira najarabaṃdi gari khāna lāuna ijjatasita di rākhanu. gaddimā gaddi pāune hakavālālāi rākhanu*. (MA-ED1/1 §11).

<sup>111</sup> *rājākā sekhapachi gaddi pāune hakawālā balihadale takhatamā basekā rājālāi bikha khuwāi māre bhane tinale gaddimā basna pāudainan. yastālāi jātapatita gari khāna lāuna di darbāra dekhi bāhira kaida gari rākhanu. gaddimā inadekhipachikāmā rolale jasale pāune ho unailāi gaddimā rākhanu.* (MA-ED1/1 §10).


*Table 17:* Regulations relating to homicide within the royal family


*Table 17 (continued)*

#### *b) Exemption on homicide through royal decree*

The MA contains complex and strict regulations on how to deal with homicide, including exceptions under very special circumstances. As discussed above, the king was both lawgiver and executor of the law before the codification of the MA. In order to counterbalance the preponderance of kingly power, the MA, in formulating a regulation that the king could appeal for exemptions on behalf of murderers if he considered them extremely loyal or of great benefit for the kingdom, qualified this by requiring that such an appeal be sanctioned by the prime minister, the Council, a court and the army; otherwise, the executive body would reject the appeal. The text reads:

If an *umarāva*, army [soldier], subject or the like—whether high or low in rank—commits a crime punishable by execution, branding or confiscation of property, and if the enthroned king gives an order to the effect: 'Such and such a person has been true to our salt, wishes us well or is useful for such and such work,' and if the venerable prime minister, *umarāvas* of the Council, chiefs of the courts or army officers shall pardon [the one] facing corporal or monetary punishment, then the Council shall consider the matter, and if it [deems that the offender] has been true to the [king's] salt, has wished him well or is useful, it shall accept the king's having pardoned him; if it [deems] that such is not the case, it shall not accept [the king's opinion], and [the offender] shall be punished in accordance with the *Ain.*<sup>112</sup>

This provision shows that nobody had the individual capacity and authority to thwart legal action taken in response to homicide. It bespeaks a political respect for the rule of law and the value of human life.

### *c) Diplomatic immunity on homicide and protection of envoys*

The Rāṇā rulers were aware that only a peaceful and cooperative relationship with British India and China could secure their survival and the country's autonomy.113 The MA attempts to ensure that political and legal actions with a foreign dimension to them were subservient to the higher-ranking state principle of maintaining such cooperative relationships. Therefore, it adopted practices common between states of guaranteeing certain rights to the other's citizens, including diplomatic immunity to its foreign envoys and diplomats. In cases of suspected homicide, it states that official representatives of the Chinese and English governments did not fall under domestic procedures for dealing with murder charges. Not only did these representatives enjoy such an exemption; their residences in Nepal were also granted the status of special zones of immunity, and in effect recognized as an autonomous territory, as spelled out in the following sections:

If an official representative or the official resident of China or England, having come to our realm, [spills] blood or commits [any other] crime, the courts of [our] own government shall not investigate the case. One shall send notice in writing to their government.<sup>114</sup>


If somebody who has been staying inside a compound where an official British or Chinese representative or their official resident lives [spills] blood or commits [any other] crime, he shall be seized and brought to his superior, who shall be informed that such and such a person [spilt] blood or committed such and such a crime.115

The two passages not only bear witness that the Nepalese state had internalised interstate norms of diplomacy, while applying limits to the king's authority as well. According to the *śāstra*s, one major expression of the king's sovereignty over the sacred realm (*deśa*) was his duty to keep the realm pure from defilement by punishing criminals and maintaining the social order. The recognition of diplomatic immunity goes back to ancient times, but the Rāṇās' codification of it in the MA amounts to a realisation that state security required laws in writing that the state could be held to, even by foreign states. Thus, the MA not only guarantees the diplomatic immunity of foreign representatives but also puts up strong safeguards to discourage attacks against them, stating that '[…] whoever plans to take the life of a [British] resident or representatives of China […] shall be executed.'116

#### *d) Abortion and infanticide*

Neither abortion nor infanticide is dealt with in the Article 'On Homicide.' The MA has a separate Article dealing with both entitled as *jātakamārā*. <sup>117</sup> This is a compound combining *jātaka* (a newborn child) + *mārā* (killer).118 The rationale behind formulating a separate Article 'On Infanticide' lies in the dharmashastric and customary notion of impurity attached to the process of giving birth. Although in terms of content the Article 'On Infanticide' could have been incorporated

<sup>115</sup> *cīna aṃgrejakā ukīla bakīl rajīṭaṃnṭaharu basyākā ṭhāukā unkā khalaṃgābhītra basnyā mānīsale khun garyo aru kehi taksīra garyo bhanyā uslāi pakrī tīmrā phalānāle esto khuna taksīra garyo bhanī usaikā mālik cheu puryāidinu*. (MA-ED1/2 §18).

<sup>116</sup> MA-ED1/2 §  6.

<sup>117</sup> See MA-ED2/143. The MA of 1870 retitles it as *garbha tuhāunyā ra jātaka mārnyāko* ('On Abortion and Infanticide'; MA 1870, p. 136–139).

<sup>118</sup> According to pre-MA legal practice, killing a new born child was one of five exceptionally grievous crimes, the other four being the killing of a Brahmin, woman or cow and adultery. Such cases were taken up by the central court, the Sadara Adālata (see Hodgson 1880 [vol. 2]: 215).

into the Article 'On Homicide,' the MA deals with matters having to do with bodily impurity separately, regardless of relevance to other categories. As discussed above in the chapter on caste, in regulating matters, which have some connection with purity and pollution, the MA assigns a vital role during the process of purification of an offender or victim, for instance, to their caste status, and it is no different in the case of abortion and infanticide. Since both occur in the context of childbirth, those involved—for the MA's purposes, mainly the mother—have first to remove the impurity that comes with childbirth by performing certain rituals depending on caste status. The injunction of Manu states that

… both the mother and father share in the impurity of giving birth. The mother alone is subject to a period of birth impurity, [whilst] the father becomes pure by bathing. [A woman] is purified after the same number of nights as the months [of her pregnancy] if she has a miscarriage.<sup>119</sup>

Regulations relating to infanticide in the MAs of 1854 and 1870 are listed in Table 18.

Contrary to the dharmashastric view on abortion,120 the MA does not consider the act as homicide.121 However, it stipulates that abortion is not permitted by law, and therefore whoever aborts a foetus or contributes to such an act should be punished. The punishment for aborting a foetus is prescribed as enslavement (if the offender is enslavable), and otherwise payment of a fine and acts of penance if such is permitted by law. Both parties, the mother and collaborators, have to undertake expiation for killing a foetus. Further, the MA states that if a woman or

<sup>119</sup> *janane* '*py evam eva syān mātāpitros tu sūtakam*. *sūtakaṃ mātur eva syād upaspṛśya pitā śuciḥ. rātribhir māsatulyābhir garbhasrāve viśudhyati*. (MDh 5.61 and 66).

<sup>120</sup> The VDhS categorises the killing of a foetus (*bhrūṇahatyā*) as one of the exceptionally grievous sins, other four being adultery with the wife of an elder brother, drinking liquor, slaying a Brahmin and stealing gold from a Brahmin (see VDhS 1.20). The ĀpDhS also mention that having an abortion (*garbhaśātana*) is a grievous sin (see ĀpDhS 1.21.8).

<sup>121</sup> The Penal Code of British India instituted by the British Indian government seven years later than the MA contains the same stance: The killing of a foetus is not a homicide. It reads: "Causing the death of a child in the mother's womb is not homicide. But it may amount to culpable homicide to cause the death of a living child, if any part of that child has been brought forth, though the child may not have breathed or been completely born." (See section 299.3 in *The Indian Penal Code of 1860*).

#### 150 — 2 The *Mulukī Ain* on Homicide

*Table 18:* Regulations relating to infanticide


5. 30 rupees fine for hiding information relating to infanticide (MA-ED2/143 §  5) 5. Similar (MA 1870:140 §19) a foetus dies from an accidental injury caused by her husband, midwife or any other woman while helping during childbirth, this falls under accidental killings, and thus nobody is punished:

If a husband, midwife or any other woman is helping a woman during her delivery by pressing her womb or body in order to deliver a child which is unable to be delivered [otherwise], and the woman dies [because of] the labour pains or the child is stillborn, those who helped [her] shall not be held accountable, nor need they undergo expiation.<sup>122</sup>

#### *e) The ritual process of self-immolation*

Self-immolation as a form of ritual suicide was a common practice in ancient and pre-modern Nepal. Although most commonly self-immolation was carried out by widowed women as part of the funerary mourning for their deceased husband, the documented evidence suggests that even servants used to immolate themselves during the period of mourning the death of their master.123 The MA has a separate Article, which regulates the process of self-immolation in detail. Since an in-depth discussion of self-immolation is beyond the scope of the present study, and A. Michaels has already extensively dealt with the Articles on self-immolation in the 1854 and later codes,124 I shall here focus only on the provisions dealing with suicide.

The MA bans a widow from self-immolating as part of funerary rites mourning her son. It further mandates that anyone who allows a woman to do so commits murder, and therefore—if he belongs to a caste whose members may be executed—is to be put to death, while if he who belongs to a caste whose members may not be executed will be punished by branding and confiscation. The property of those who took part in the funeral procession to the place of cremation are to have

<sup>122</sup> *svāsni sutkyāri huṃdā jātak paidā huna sakena ra tyo vālaṣa paidā garāunānimitta āphnu lognyāle havas aru suḍyāni gaihra svāsni mānisale havas peṭa maḍāudā āga thicatā vālaṣa jhikdā tesai vethāko pirale svāsni mari vā vālaṣa jhiktā maryaiko rahecha bhanyā upakāra garnalāi ṣatavāta lāgdaina. prāyaścitta pani garnu pardaina.* (MA-ED2/143 §  4).

<sup>123</sup> For example, see NGMPP DNA 14/41, ed. and tr. by Axel Michaels in http://abhilekha.adw.uni-heidelberg.de/nepal/index.php/editions/show/237 (last accessed on 10 June 2023).

<sup>124</sup> For detailed treatment of self-immolation, see Michaels 1993 and 1994.

their property confiscated but otherwise to be let off.125 Further, the MA explicitly states that the forced immolation of a woman counts as murder. A woman who decides to self-immolate but then reconsiders and leaves the funeral pyre should neither be killed outright nor brought back to the funeral pyre. Anyone who gives an order to kill her, and anyone who seizes and assaults her with the intention to kill are to be held accountable for committing murder, and thus will be punished by branding and confiscation.126 Moreover, for anyone except a son to urge a woman to self-immolate, even if she has the legal right to do so, is also considered murder. Such offenders are subject to capital punishment or branding and confiscation, depending on their caste status. 127

#### *f) Homicide in exercising the right to kill a paramour*

Almost half of the MA is devoted to regulating sexual misconduct128 clear evidence that sexual offences were a major concern in nineteenthand twentieth-century Nepal. One pillar of the shastric view of society was to consider sexual relationships as a main transmitter of 'bodily impurity,'129 and it was to a large extent incorporated into the MA. The higher the adulterer's caste status, the more lenient the punishment.<sup>130</sup> Jean Fezas131 has already extensively dealt with the regulations relating to it in the MA, so I shall focus here only on those parts of Article 'On Adultery' that are pertinent to homicide.132 The MA incorporated the pre-MA practice of permitting an aggrieved husband to kill the paramour of his wife under specified circumstances. The UjAin, to the best of my knowledge, is the first legal document, which mentions this right. The text reads:


The fifteenth regulation of the fifth Article: If a man from any caste knowingly commits adultery with a woman who is a paternal blood relation up from the eighth generation or down from the fourteenth, or else with a woman from the maternal side up to the sixth [and down from] the seventh generation, then if the husband of that woman kills the paramour, so be it. If he does not, the paramour's genitals shall, depending on his caste status, be severed.<sup>133</sup>

The sentence suggests that killing the paramour of one's wife had long been a common practice in pre-modern Nepal. As argued by J. Fezas,<sup>134</sup> no dharmashastric text acknowledges the specific right of an aggrieved husband to kill his wife's paramour. However, it was indeed an unwritten law in pre-modern Nepal. For example, K.K. Adhikari mentions that a husband who did not kill his wife's paramour and who did not cut off his unfaithful wife's nose was not entitled to enter into government service in the early Śāha period.135 The MA officialises the law, while strictly regulating it. Among other provisions, only residents of the kingdom may exercise the right, while someone who once was a resident but left for a foreign land and was serving there is disqualified to return home and carry out such a retributive killing. The regulation states:

If somebody of any caste from the Gorkhā kingdom east of [the river] Mecī to west of [the river] Mahākālī leaves [the kingdom] for purposes other than trade, pilgrimage and religious observances, renounces his allegiance to the king and gives allegiance to a foreign king, and if his wife runs off with another man, then he who has given allegiance to a foreign king shall not be entitled to kill, shave and confiscate the property of his wife if he returns to his homeland, even if he has renounced allegiance [to the foreign king]. If he does so, then in accordance with the *Ain* he—if he is a Brahmin—shall have his property confiscated and be branded. If he is of another caste class, he shall be executed taking life for life. If [such a person] has sexual intercourse with

135 See K.K. Adhikari 1976: 109.

<sup>133</sup> *pācau vandejako pandhrau jatavīja kohi jātakā pani yekā hāḍakā āṭha pustādeṣi puḍho (emend. ubho) caudha pustādeṣi oḍhokā (emend. ũdhokā) dājyu bhāimā ra vāvukā āmākā aphnā mavalipaṭṭi chaiṭo sātau pustāsammakā gairaha sanahamā jāni jāni virā̃u garecha bhanyā u svāsnīko lognyā rahecha ra jāra hānyo bhanyā hānyo hānena bhanyā jāta ansāra nalphal kāṭidinu*. (UjAin/5 §15).

<sup>134</sup> See Fezas 1993: 4.

#### 154 — 2 The *Mulukī Ain* on Homicide


*Table 19:* Regulations relating to the killing of a paramour

a blood relation including through use of force, he shall be punished in accordance with those same [Articles] of the *Ain*. 136

The MA specifies that in order to exercise the right of killing a paramour, the husband must belong to a caste whose members are granted the right to do so (*jāra hānne jāta*). Rājapūtas, Kṣatriyas, Magaras, Guruṅgas, Ghales and Sunuwars are listed by name as enjoying this right.137 Table 19 summarizes conditions applying to all cases of such honour killings as spelled out in the Article 'On Adultery.'<sup>138</sup>

Thus, a Rājapūta, Kṣatriya, Magara, Guruṅga, Sunuvāra and so forth may kill his rival if the latter is not a blood relation or a Brahmin. It is especially interesting that the MA does not make such revenge killings mandatory. Those who had a legal right to take revenge could decide whether to kill, reduce caste status, confiscate property or impose a fine.<sup>139</sup> Moreover, it is expressly stated that one has only once chance to kill. If the paramour emerges from the attempt still alive, no second attempt is allowed. Any second attempt is dealt with in accordance with the law relating to homicide.140


#### *g) Killing of a cow*

The protection of cows is a major concern addressed in Brahmanical shastric texts. The NyāV seems to be the first documented evidence of this concern being topicalized in mediaeval Nepal. Its provisions include cutting off part of a thief's limbs for stealing a cow,141 while to kill one is to commit the most heinous kind of sin, on a par with killing a Brahmin, one's own father or mother, preceptor, wife or newborn child.142 Such shastric practice continued in mediaeval Nepal, and it was explicitly adopted starting from the early Śāha period.<sup>143</sup> As observed by A. Michaels, King Raṇa Bahādura Śāha seems to have been the first Śāha king to enforce a ban on killing cows throughout his realm.144 The MA formalised the ban by making it a strict legal restriction. Although the MA does not directly specify the reason for doing so, it is obvious that cows were of great significance for the Gorkhālī kings. The name Gorkhā, a contracted form of the Sanskrit term *gorakṣa*, means 'protection of cows.' The ban in the MA had its source not only in the strong spiritual ties with this Brahmanical and royal tradition; it also was one of the more significant symbolic acts meant to tout Nepal as the last remaining Hindu kingdom.<sup>145</sup> Thus, the MA equates the killing of a cow to committing murder.

The following are the ways the killing of a cow is considered to be murder in the Article 'On the Killing of Cow:'


#### **The lawful killing of a cow slayer**

Killing someone who has intentionally slain a cow or an ox at the site where this has just occurred is classified under lawful homicide.148 If anybody in the Gorkhā realm sees someone who is deliberately setting about to kill a cow or an ox with a handheld weapon, he should first try to dissuade the latter from doing so. If he is ignored and the animal is slain, he may kill the offender on that day, at that moment and at that site.149

#### **The unlawful killing of a cow slayer**

Killing someone, then and there, who has accidently killed a cow or an ox is an unlawful homicide, and thus the offender is subject to capital punishment if his caste allows for his execution.<sup>150</sup> Killing someone on the basis of second-hand allegations of a cow having been slain amounts to unlawful homicide, and thus such a person is to undergo capital punishment if his caste allows for his execution.<sup>151</sup>

#### **The accidental killing of a cow**


The MA of 1870 has basically the same regulations relating to the slaying of cows. In addition, a provision was added to include yaks:

If anybody within the Gorkhā realm consciously kills a male or female yak, each individual [involved] in the killing shall be


<sup>148</sup> See MA-ED2/66 §  7.

fined 40 rupees. If the fine is not paid, he shall be imprisoned in accordance with the *Ain*. 155

The ban on the killing of yaks is especially interesting here since the animal was neither considered to be holy nor was it a symbol of Hinduization. Careful reflection is needed for coming up with a rationale behind it. A. Michaels argues that the reason was that "the Bhotiya people of the border areas needed to be brought within the Mora kingdom of Nepal, at least symbolically, thereby marked as subjects of Gorkha, not Tibet."156 However, this argument needs to be reanalysed. The MA has certainly set up strict barriers to the slaying of cows, at least partly because of long-established shastric norms and customary practices, but at the same time these need to be placed alongside similarly obligatory provisions not to kill other animals, for example, female goats, buffaloes or pigs. Even during sacrificial processions, female animals may not be sacrificed. It appears, then, that the main reason behind animal protection was the economic: The major source of income in pre-modern Nepal was cattle. The ban on killing yaks can be understood as a measure of protecting the economy in the Himalayan region as well as integrating that region into a centralised law-based polity.

#### *h) Providing false news about death*

The MA sets forth the legal response to providing false information about somebody's death. If such false information results in the death of a kin of the supposedly deceased person, the informant is held accountable for homicide. The pertinent passage reads:

If somebody goes to the home of someone else who has gone to a foreign land and informs [the occupants] that such and such a [member of the household] has died, and if the wife of the one said to have died ritually immolates (*satī*) herself on the basis of information received from that person, then in the case where he who was said to have died returns alive the informant—if he is from the caste that may be executed—shall be executed—taking

<sup>155</sup> *gorṣārājabharamā jānī jānī kasaile cauri caurinī māryo bhanyā mārnyālāi jiya 1 ko 40 rūpaiyākā darale daṃḍa garnu. rūpaiyā natiryā aina vamojima kaida garnu*. (MA 1870 §16).

<sup>156</sup> Michaels 1997: 92.

life for life. If [the informant] is a Brahmin, he shall be branded and his share of property confiscated.157

# 2.2.5 Fundamental Differences in MA 1870's Approach to Homicide

As previously noted, the *Mulukī Ain* of 1870 saw not only material changes to the content of the text but also linguistic ones: the complex language structure of the 1854 MA was markedly simplified, with many small sections supplanting the more ceremonial tone of the previously prevalent long paragraphs.158 Provisions considered no longer necessary were deleted, and long sections rephrased. For example, the MA of 1854 narrates three lengthy true-life accounts to highlight why one should not invest one's fiscal resources in foreign lands.159 The MA of 1870 dispenses with such narrative elements and simply formulates restrictions banning investment in foreign countries.160 Similarly, the Article 'On Homicide' was simplified and rephrased, and some new legal concepts have been introduced. The significant differences observed in the MA of 1870 are the following:

#### *a) Ascetics and capital punishment*

The law on homicide as it applies to ascetics is ambiguous in MA 1854. Sections 3 and 4 deal with murder committed by ascetics.161 However, it is not made clear whether householder ascetics other than Brahmins are exempt from capital punishment or not. Such ambiguity must have caused confusion on occasion. By contrast, MA 1870 explicitly exempts only Brahmin and non-householder ascetics from capital punishment; any householder ascetic not a Brahmin is to be executed if convicted of murder.162


#### *b) Privilege for Rājapūtas*

The 1854 MA exempts Rājapūta ascetics from capital punishment if convicted of homicide, with no distinction made between householders and non-householders. The form their punishment takes is branding and confiscation. The 1870 MA removes this exemption, stipulating that if a Rājapūta ascetic is a householder, he should be put to death if convicted of murder.163 This shift in the legal code would seem to at least mirror, if not for its own part promote, a gradual erosion of Rājapūtas' social status.

#### *c) Substituting payment of a fine for imprisonment*

According to MA 1854, an offender who is not directly involved in a murder can avoid his time in prison by paying twice the fine. For example, those who participate in a murder plot but do not go to the site are to be let off if double the fine is paid.164 Female offenders are more consistently provided this opportunity. Section nine states:

Those who plan [a murder] but do not proceed to the site of murder and those who plan a murder that is revealed before it can be carried out shall be [subject to having] [their] property confiscated and [being] imprisoned for one and a half years. They shall not be set free [from prison] even if twice the fine is paid [in compensation]. If a woman commits such [crimes], she shall be imprisoned for twelve years if the punishment for a male [offender] is branding. If she commits offences which call for the imprisionment of women, she shall not be [subject to having] her property confiscated, and her imprisionment shall be half of that of a man. If a fine is paid [in lieu of imprisonment] by a woman, it shall be accepted and she shall be set free.<sup>165</sup>

In a reversal of MA 1854, the code of 1870 explicitly abandons the system of allowing offenders in homicide cases to forego imprisonment by paying a fine, irrespective of whether they were male or female:

163 See MA 1870 §152. 164 See MA-ED2/64 §1.

<sup>165</sup> MA-ED2/64 §  9.

*myādakā rūpaiyā katti diyā pani nachoḍnu* ('whatever money may be offered [in restitution] for the prison term, [authorities] shall not let off [the culprit]').166 This indicates that the 1870 code acknowledged the notion that criminals should be punished equally, whether rich or poor. The legal provision in MA 1854 that allowed release from prison upon payment of fine may well have encouraged wealthy persons to continue breaking the law. Therefore, it can be argued that the 1870 MA was more sagacious in this respect.

Summing up, the stance taken by the MA regarding the punishment of a king for committing murder can be characterized as a unique blend of shastric ideas and evolving legal perspectives on the role of a monarch. Prior to the MA period, the prevailing belief influenced by the dogmas of the *śāstras* was that the king's words were considered as those of Viṣṇu, possessing the ability to purify the impure, so that 'even as a husband without good qualities is worthy of a wife's worship, [so too] is even a king with bad [qualities] worthy of his subjects' worship.'167 For example, NyāV states: 'An impure person can immediately become pure, and a pure person impure, just through hearing the speech of a king. [Therefore,] how can a king not be divine?'168 On the one hand, the MA accepted the shastric position that kings should not be killed even if they exhibit very bad qualities;169 on the other hand, it established as a common policy under the rule of law that nobody is above the law. Therefore, the punishment introduced for a king's committing murder is life imprisonment. Moreover, as noted in the earlier table, the other interesting regulation relating to homicide within the royal context is capital punishment for Brahmins who attempt to kill the ruler or his successor. This example demonstrates the ideological turmoil within shastric discussions during that time. Despite the unanimous protection afforded to Brahmins in all *śāstras*, the legal discourse prior to codification resulted in significant deviations from these traditional texts. These deviations allowed for the killing of Brahmins in acts of self-defense or their execution if found

<sup>166</sup> See, for example, MA 1870 §  8.

<sup>167</sup> *nirguṇo* '*pi yathā strīṇāṃ pūjya eva patis sadā*. *prajānāṃ viguṇopy eva pūjya eva narādhivapiḥ*(!). (NyāV, p. 258, and the parallel in NārSm 18.22).

<sup>168</sup> *aśucir vacanād yasya śucir bhavati pūruṣaḥ*(!). *śuciś caivāśucis sadyaḥ kathaṃ rājā na daivatam*. (NyāV, p. 270, and the parallel in NārSm 18.49).

<sup>169</sup> For example, the NyāV states: *loke* '*smiṃ dvā avācyāv adaṇḍayo*(!) *ca saṃprakīrttitau*. *brahmaṇaś*(!) *caiva rājā ca tau hīdaṃ bibhṛto jagat*. "In this world, two persons, the king and a Brahmin, ought not to be blamed and killed, for both of them have protected the world." (NyāV, p. 243, and the parallel in NārSm 15/16.21).

guilty of killing a king or the heir apparent. Furthermore, the king could also be downgraded in caste if they committed murder. Nor is the king any longer credited with such supreme divine authority that his verbal orders immediately make impure things pure. Rejecting the inherent divinity of kings, the MA re-assigned the attendant powers to the country's executive body leaving the king himself accountable for crimes.

# 3 The *Mulukī Ain* in Its Application

Jaṅga Bahādura Rāṇā's main aim in promulgating the MA was to unify the penal code by prescribing clear guidelines for meting out punishment. As stated in the previous chapter, since the earlier legal system had not been uniform, two offenders from two different territories, ethnic or cultural groups could easily have received totally different types of punishment for the same crime. Other aims were to bring the existing caste regulations for the multiplicity of Nepal's ethno-cultural groups under a single legal framework, to standardise the legislative process and to create a uniform administration to function throughout the realm.1 The MA is the first Nepalese codification of civil and penal regulations to deal with almost all existing social, judicial and administrative matters. The codification incorporated normative ideas, customary laws and even British political concepts and practices. It was amended and supplemented several times and is still in use, even if in a form that is completely different from the MA of 1854. However, a major question remains, to be addressed in the following section.

# **3.1 Was the MA ever Implemented when Making Juridical Decisions?**

Before elucidating aspects of the implementation of the MA, I shall briefly go over some issues regarding the question of implementing the Brahmanical legal scriptures (*dharmaśāstra*s). There has been a long-standing discussion about the implementation of such law codes in social and legal practice.<sup>2</sup> It is still not sufficiently clear to what extent Hindu society was administered according to customary practices (*deśācāra*) as opposed to legal practices grounded in the *dharmaśāstra*. It is possible that one of the sources of the dharmashastric texts were

<sup>1</sup> See Michaels 2005b: 8.

<sup>2</sup> See, for example, Rocher 1993, Lariviere 2004, Davis 2005 and Michaels 2010.

customary practices,<sup>3</sup> but it is hard to imagine that the Brahmanical *dharma*-texts could have simply incorporated customs as practised in all the geographically and culturally diverse territories and societies of the Indian subcontinent and ended up with a universally acceptable code. Although piles of such Brahmanical jurisprudence of the ancient Indian subcontinent have been transmitted to us, almost no historical material on the legal practices has survived.<sup>4</sup> R.W. Lariviere points out that the *dharmaśāstra* was never supposed to be codified law but only to provide guidelines for legal practice:

The application of all law is context sensitive. It is a delusion to think that the law can be proclaimed for all time and in every circumstance. The authors of the *dharma* literature understood this context sensitivity of *dharma*. It was never their intention to exhaustively record and codify all law applicable for all time. It was their intention to provide a means whereby law could be 'discovered' in each specific context. In an Indian context, there was never the idea that any two crimes or civil wrongs were identical, so there was no reason to be concerned with precedent. Each dispute was unique and what was needed was a general set of guidelines for procedure and for classification of the dispute. This is what the *dharmaśāstra* provided for dispute settlers of ancient India.<sup>5</sup>

Davis's conclusion regarding the issue of implementing dharmashastric texts is similar to R.W. Lariviere's opinion that "sacred texts were not normally sources of positive law, but rather of jurisprudential training."<sup>6</sup> One clear strand of opinion, then, is that these texts are more theoretical exercises that paint a series of fictional constructs and could not possibly or reasonably have been meant, as they stand, to be put into practice as strict law codes. They are books of law—or rather, books of laws—containing, as L. Rocher states, "a mass of floating verses of rules and observations 'that were, indeed, at some time and in some place' governing the life and conduct of people."   7


To illustrate the point that *dharmaśāstra*-texts are more normative and theological than practice-oriented in nature—in the sense that they do not lay down concrete judicial responses to the whole gamut of possible concrete circumstances, and thus could not be used as positive legal texts—I shall present the example of a document that I came across. Preserved in the NAK, it may serve as a solid documentary evidence for the current hypothesis. The document (DNA 4/100) is a letter sent by Raṇavīra Siṃha, a government employee, to General Bhīmasena Thāpā in 1835 (VS 1892) from the Pālpā frontier.<sup>8</sup> It mentions the reciprocal treaty signed between the East India Company and the Nepalese government in 1834 (VS 1891) to control cross-border crime, especially theft and robbery, which was—and remains—a significant problem. Although Brahmins and women are always exempted from capital punishment in accordance with dharmashastric regulations9 and Hindu customary practice in pre-MA Nepal,10 an exception is made in this very plainly formulated treaty, to the effect that if, irrespective of caste and gender status, anybody commits an act of cross-border robbery, he or she shall be put to death by the authority in power where the crime took place. It is stated that the core reason for such strict punishment is in order to ensure the mutual diplomatic friendship between the two governments, Nepal and the Company state. Thus, Nepalese authority declares that anybody from the Four Varṇas and Thirty-six Jātas will be punished by death if the offences of cross-border theft and robbery are proved. This is a typical example illustrating that the legal practices tended to be based either on customary practices or on wholly practical concerns. Despite the fact that Brahmins and women were customarily exempted from capital punishment in eighteenth/nineteenth-century Nepal, such punishment was meted out for the purpose of ensuring smooth diplomatic relations regardless of what the *dharmaśāstra*s and customary practice enjoined.

Coming to the MA, it has always posed the riddle whether the text was really made the basis of legal practice or whether it, too, remained a kind of *dharmanibandha* composed in the vernacular. Scholars who have dealt with different aspects of the MA have not focused in any great detail on the issue of its actual implementation.11 As pointed

<sup>8</sup> See Part II, C. Document 1.

<sup>9</sup> See, for example, ĀpDhS 14 and MDh 11.27.

<sup>10</sup> See, for example, RŚEdict 15.

<sup>11</sup> See, for example, Höfer 2004, K.K. Adhikari 1984, Fezas 2000 and Michaels 2005b.

out by T. Manandhar,12 scholars argue that the MA did not bring any fundamental change to the courts of law of nineteenth-century Nepal because the Rāṇā aristocracy allegedly ignored court procedures that were written down in the MA.13 As observed by these scholars, the Council, which was the supreme executive body and court of appeal, was a mere puppet of the powerful Rāṇā prime minister. H.N. Agrawal even argues that the Council was used only once in 1847 by Jaṅga Bahādura Rāṇā, to declare the abdication of King Rājendra.<sup>14</sup> Similarly, M.C. Regmi writes:

Legislation alone could not circumscribe the reality of the Rana Prime Minister's absolute authority. There were no constitutional safeguards to ensure that he actually complied with the spirit of the restrictive provisions of the code. A tradition gradually evolved according to which the Rana Prime Minister's word was regarded above the law.15

Such arguments are made by scholars without paying enough attention to the large corpus of documents available in private and public institutions in the Kathmandu Valley and beyond. Among the documents, numbering in the hundreds of thousands, only some of them have so far been studied. These unstudied documents form a basis for the still largely unexplored history of legal practice under the MA in mid- and late-nineteenth-century Nepal.

In this section I shall therefore be discussing some of the noteworthy legal documents related to the MA that, issued nearly contemporaneously, were often directly incorporated into the MA both prior to and following the initial publication of the *Ain*. Subsequently, I shall present documented evidence having to do with criminal cases and with civil law which proves that the MA was in fact not a *dharmanibandha-*like legal tome but rather reflected current realities, and so must be regarded as the basis of and point of reference for the workings of the legal system of the Rāṇā administration.


#### **3.2 Associated Documents and Precursors**

#### *Jāṅgabahādurīsthiti*

The *Jāṅgabahādurīsthiti* (hereafter JBS), edited by R. Shrestha, was a legal document (*sthiti*) drafted and actuated roughly three months before the initial publication of the MA. It was drafted by a certain Kedāranātha, possibly a scholar of Maithili descent,16 and finalised on Sunday, the fifteenth of the bright fortnight of Āśvina in VS 1910 (1853).

The invocatory stanzas<sup>17</sup> are historically relevant, stating that the JBS was prepared by order of Jaṅga Bahādura Rāṇā. They signal the specific applicability of the document's contents to Mithilā migrants from northern parts of India who inhabited southern parts of Nepal and, later, the Kathmandu Valley.<sup>18</sup> It chiefly topicalizes rituals of initiation (*vratabandha*), marriage (*vivāha*), annual ancestral rituals (*śrāddha*), adoption (*dharmaputra*), the share of property inherited by a widow (*vidhuvā aṃśadhana*), property partition (*aṃśabaṇḍā*), penal categories, purity regulations and adultery. It also regulates the act of widow burning (*satī jalāunu*) and the annual death ritual related to such widows.

Since the JBS declares that Nepal was viewed as a 'foreign land' by Maithili Brahmins, whose social and ritual regulations are presented as different from—if not incompatible with—contemporaneous Nepalese Brahmin groups, we can safely assume that the JBS was issued with the particular aim of keeping unfamiliar customs from gaining ground


<sup>18</sup> See Bista 1972: 21.

in the region.19 Although the force of such 'foreign' imports was in this case being stunted, there is otherwise a noteworthy degree of tolerance of such customs, owing, not least of all, to the classical Brahmanical notion of *deśadharma*, <sup>20</sup> according to which quasi-legal acceptance is granted to deviant regional customs practised in parallel to the official codified law, as long as they are not in open contradiction to it. One might even go so far as to speak of a long-standing tradition of legal pluralism, and in some cases of legal relativism; the evidence suggests that the Maithili people were not historically prevented from carrying out their own rituals and observing their own customs in Nepal.21

A similar outlook is manifested in the MA: Judges presiding over courts in the Terai are exhorted to pass down judgement without breaching local customs, unless these go directly against the MA.22 However, now that legal relativism has made an appearance, it is necessary to specify that the applicability of multiple legal authorities is limited to a selected set of legal questions, and is supplanted by hierarchical and centralised rules when it comes to actually meting out punishment.<sup>23</sup>


### The contextual function of the *Ain*: A treaty between the Nepalese government and East India Company

As discussed in the previous chapter, the MA served multiple functions, the chief of which was that of a binding legal code. At other times, and in other contexts, it stood in as the country's constitution, while the heightened social awareness displayed by this text generated great momentum to craft further administrative regulations and diplomatic agreements. Very often, these ensuing texts followed in the mould of the MA, and that rather closely, since the latter was perceived as a constitutive model.

The treaty signed by the Nepalese government and the East India Company in 1855 (VS 1911) can be taken as an instructive example of how the standards set by the MA—both of a semantic and stylistic nature—were applied and transferred to the political domain. The MA had adopted, and explicitly acknowledged such international norms of foreign diplomacy as diplomatic immunity. In like manner, the treaty is signed by both governments following well-established norms of stateto-state interaction, and the procedures and approaches outlined in it closely follow standards set in the MA. For example, §18 ('On Legislation') states:

If someone who lives inside the compound of the Chinese or British envoys or residents, commits a murder or any other crime, that person shall be arrested and handed over to his superior with the words: 'Such and such a person of yours committed such and such a crime.'24

In further elaborating upon areas of mutual cooperation between the Nepalese and East India Company's governments, the treaty adheres to

involving Madhyesi and Parbatyā peoples who have settled in the various districts east of the Mahākālī and west of the Mecī—[disputes] over transactions, loan deeds, money matters, [such] property [as] gold, silver, jewellery [and] cattle; verbal abuse, brawling, theft, injury from being struck by swords or bamboo sticks; murder; or adultery committed with members of Water-unacceptable and Untouchable castes, the judgement shall be passed out in accordance with this *Ain*." (MA-ED1/167 §1).

<sup>24</sup> *cīna aṃgrejakā ukīla bakīla rajiṭanṭaharu basyākā ṭhāukā unakā khalaṃgābhītra basnyā mānīsale khun garyo aru kehi taksīra garyo bhanyā us mānīsalāi pakrī tīmrā phalānāle esto khuna taksīra garyo bhani usaikā mālik cheu puryāidinu*. (MA-ED1/2 §18).

the basic tenor of foreign policy norms laid down in the MA, as exemplified in section 6 of the treaty:

If somebody who is connected to the British embassy or lives inside British embassy [compound,] and is not a subject of the Nepalese king, commits a crime within any of the Nepalese king's provinces [but] outside of the embassy border, and the Nepalese palace decides that the accused person is liable for punishment, the Nepalese government shall arrest such a person, shall interrogate [him] and shall hand [him] over to the British embassy for [carrying out] punishment. If under these same circumstances that person is a subject of the Nepalese kingdom, it shall not hand over [the accused] to the British embassy for [carrying out] punishment. If Hindustani merchants or other subjects of the honourable Company's government who have no connection to the British embassy but are living within the boundaries of Nepalese territory commit any crime at any place outside of the British embassy's border and go to the British embassy for asylum in order to avoid punishment likely to be prescribed by the Nepalese palace, the British embassy shall not provide asylum to such persons. [The embassy] shall hand over such persons to the Nepalese government for interrogation and punishment.25

These examples show that the MA served as a constitution, into which legal documents were incorporated piecemeal, if not entirely subsumed. This laid a strong foundation for developing the country into a full-fledged nation-state

25 *yadi kunai vyakti, jasko vṛṭiśa dūtāvāsasaṃga sambandha cha, athavā vṛṭiśa dūtāvāsako bhitra vasekā chan au nipāla sarakārako prajā chainan, le vṛṭiśa dūtāvāsako sīmāko vāhira nipāla sarakārako kunai pani pradeśako bhūbhāgamā aparādha garyo ra so aparādhako nimti nipāla daravāravāṭa sajāyako bhāgī ṭhahariemā tyastā vyaktilāi nipāla sarakārale pakrī jā̃ca paḍatāla au sajāyãko nimti vṛṭiśa dūtāvāsamā sumpine cha, parantu sohī avasthāmā yadi tyo aparādhī vyakti nipāla rājyako prajā cha bhane, nipāla sarakāra dvārā sajāyãko nimti tyastā vyaktilāi vṛṭiśa dūtāvāsamā sumpine chaina. yadi kunai hindūsthānī mahājanaharu athavā mānanīya kampanīkā anya kunai prajāharu jasko vṛṭiśa dūtāvāsasaṃga kehī samvandha chaina ra jo nipālako sīmā bhitrai vasekā chan vṛṭiśa dūtāvāsakā sīmā vāhira anya katai kunai kisimako aparādha garchan ra tinīharu nipāla darvāra dvārā daṇḍita hune thāha pāera vṛṭiśa dūtāvāsako sīmā bhitra śaraṇa lina gaemā, tyastā vyaktiharulāi vṛṭiśa dūtāvāsamā kunai āśraya diine chaina tathā jā̃ca paḍatāla ra sajāyãko nimti nipāla sarakāralāi sumpine cha*. (Transcribed in Yogi 1966: 132).

# **3.3 Documented Evidence of the MA being Put into Practice**

The first piece of evidence of the actual enforcement of the MA to be discussed here was transcribed by T. Manandhar.26 It records the carrying out in 1861 of punishments imposed by the Criminal Court (Iṭācapalī) upon seven criminals, two of whom were sentenced to death for committing murder:

Lachimanyā Jiryāla, who was living in Listi Kokarthali,27 was executed in accordance with [Section] 15 of [the Article] 'On Homicide' after he confessed [his crime] and wrote a note of confession stating: "On Tuesday, when the 20th day of the month Maṅsira in the year [VS 19]18 was underway, I was at [my] cowshed in Japhebyāṃsi. In the morning, I had started doing work in the cowshed after freeing the farm animals (lit. cows and buffaloes) [to graze]. I realized that the farm animals were eating from the *kunyũ*s28 [standing] on the rice field. Meher Siṃha Basnyāta, the son of Naina Siṃha Basnyāta [born] to [his] Bhoṭinī 29 wife, chased the farm animals off and came [towards me] swearing at me. Because he was swearing, I pushed him away and he fell down. When he struck me twice with a stalk of maize, I got angry and struck him, the said Meher Siṃha Basnyāta, on his head with a rod of *kholamyā* wood. He fell down on the spot and could not get up. He could not even gulp down water offered to him, nor did he speak either, or set his foot to stand up. I beat him on Tuesday when 3 or 4 *ghaḍī*s of the day had passed. It is true that the said Meher Siṃha Basnyāta died on Thursday when 10 or 11 *ghaḍī*s of the day had passed from [the effects] of the strike of the rod." 30


Gaja Keśara Ṭhakurī, residing in the Sokhala [quarter] of Pharping,<sup>31</sup> was sentenced to death in accordance with [Sections] 2 and 12 of [the Article] 'On Homicide' after he confessed [his crime] and wrote a note of confession stating: "It is true that when 7 or 8 *ghaḍī*s had passed in the evening of Tuesday, the 5th day of the bright fortnight of Māgha in [VS 19]18, I went to the house of Dīpalocanā Jaisyānī, the Brahmin widow of Raghu Jaisī, who was residing in the Pācaṃḍi [quarter] of Pharping. I opened the bar of the door with my hand, entered into the house and went to the upper floor. While she slept, I grabbed her by the throat, knelt down on her breast and grabbed her hands and feet. I killed the said Brahmin lady Dīpalocanā, making her vomit blood, and stole her property as well."   32

The above self-confessed murderer Lachimanyā Jiryāla was executed after the pertinent section and Article of the MA had been cited. Section 15 states:

If somebody strikes a person either with his foot, a rod or a stone, and that person falls sick, becomes unable to walk and dies from the pain [resulting from the injury] within twenty-two days, the person who struck the blow is considered to have killed the victim. The murderer shall be sentenced to death.…33

*kuniñāṃbāṭa gāī bhaisi dhapāī malāī gāli gardai āūdā malāī gāli garnyā bhani maile nija vasnyātalāī ghuceṭi diṃdā loṭayo ra makaikā choḍale 2 pherā malāī hāndā malāī pani risa ūṭhayo ra ṣolamyā kāṭhakā lāṭhāle nija meher siṃ vasnyātakā kapālamā hāndā tāhi loṭyo*. *ūṭhana sakena*. *pāni ṣuvāṃūdā pani nilena*. *voldā pani volena*. *ṣuṭṭā pani ṭekena. maṃgalavāra byāhāna 3|4| ghari dina caḍhadā kuṭayāko ho vṛhaspativārakā rāta 10|12 ghari rāta vāṃkimā tehi maile lāṭhāle hānyāko coṭale nija meher siṃ vasnyāta maryāko sāṃco ho bhani kāyela bhai kāyelanāmā leṣidinyā listi kokarthali vasnyā lachimanyā jiryāla jyānamārākā 15 lambarakā ainale kāṭi māriyāko ---1.* (Edited in Manandhar 1999: 27).


Of the foregoing victims, Meher Siṃha Basnyāta died from an injury within two days after being struck with a rod by Lachimanyā, who therefore, in accordance with the MA,<sup>34</sup> is considered to have killed the vicitm under these circumstances even if he had no such intention. If the victim had died after twenty-two days, the offender would have only faced a sixty-rupee fine. Similarly, Gaja Keśara Ṭhakurī was executed on the basis of two other sections of the Article 'On Homicide.'   35 Section 2 allows the death punishment to be imposed upon a Rājapūta: "… if a Rājapūta kills a person, he shall be executed."   36 Gaja Keśara Ṭhakurī fell under that category. Section 12 allows for capital punishment when there was an intent to kill.37 Even if the victim had not died, the assaulter would have faced the death penatly in accordance with the same section of the *Ain*, which also regulates attempted murder.

The second case (DNA 14/4)<sup>38</sup> presented here is a royal order (*rukkā*) issued by King Surendra in VS 1937 to Captain Mvāna Siṃha Svā̃ra Chetrī in order to set forth formal procedures for carrying out the death penalty on Hari Goḍīyā, who was found guilty of committing murder. The offender, a resident of Maujye Bajhahī Pallāpura, Baharāica, Mogalānā, killed one Vadala Siṃha Thāpā and then fled. After more than a year he was arrested and brought before a court, where, on Thursday, the 7th of the dark fortnight of Phālguṇa in VS 1935, he confessed his guilt in writing at the Aminī, Adālata and Kacaharī courts that he killed his victim at night while he was asleep and then fled with gold and money concealed at his waist. Half a year passed, and on Saturday, the 30th of the dark fortnight of Śrāvaṇa in VS 1936, Lephṭena Bāla Narasiṃha Svā̃ra Chetrī and Bicārī Kāśīnātha of the local Aminī court submitted a report to a higher court, the Iṭācapalī, that the offender had acted out of greed for property and had stabbed his victim twice in the throat at the latter's residence during the night. Therefore, it was ruled that the offender be sentenced to death at the hands of a local untouchable at the grounds called Pāhāra Pokhara in accordance with Section 9 ('On Homicide')<sup>39</sup> and Section 7 ('On Executing, Shaving and Branding').<sup>40</sup>


<sup>34</sup> See MA-ED2/64 §15.

Subbā Paṇḍita Caṃdrakāṃta Arjyāla submitted a request to Prime Minister Raṇoddīpa and Commander-in-Chief Dhīra Samsera on behalf of the Iṭācapalī court to approve the death penalty:

… Regarding the trial which came to our attention through a request sent by the Iṭācapalī court, we give the order to sentence Hari Goḍīyā to death as punishment for his having committed the crime; to take [him] with sounding cymbals throughout the new territory of Kailālī district and to the grounds called Pāhāra Pokhara and there to behead him at the hand of a local untouchable caste member in accordance with Section 9 on homicide […]<sup>41</sup> and 11 on executing, shaving and branding.42

The third piece of evidence (DNA 12/1) introduced here is a *lālamohara* issued by King Surendra in 1870 (VS 1927) to Mahanta Rūpalāladāsa of Basahiyā monastery (*maṭha*) in the Mahuttari region (*jillā*). Its purpose was to give final approval to a decision made by the Council (the supreme court of appeal) regarding a court case. The case in question was between Kāsīdāsa and Bāladāsa over the successorship to Basahiyā monastery after Mahanta Mohanadāsa's death and control of the monastery's property. As stated in the document, Mohanadāsa had both ritually and according to legal procedure granted the successorship and the monastery's property to Kāsīdāsa in 1863 (VS 1920), as witnessed by three village notables and four of his disciples: Bālādāsa, Sukharāmadāsa, Jīvanadāsa and Prāṇadāsa. One year later in 1864 (VS 1921), however, Bālādāsa wrested control of the monastery, accusing Kāsīdāsa of having acquired the successorship on the basis of forged documents. Kāsīdāsa filed a case against Bāladāsa denying the charge. He presented the note of agreement written by the four disciples and attested by the village notables Gopāla Jhā, Rāma Baksakoi and Bhuvana Maṃḍara on the 14th of the bright fortnight of Māgha in VS 1920 (1863) stating: "Earlier, [our] teacher granted [successorship to the monastery] to Kālīdāsa, [and] today, we four brothers, too, [agree] to grant it to Kāsīdāsa." Bālādāsa came back, arguing that the document had been forged by Kāsīdāsa. To counter this argument, Kālīdāsa presented a note of confession to the court written by the mentioned three witnesses. One of the disciples, Sukharāma, who was the eldest

<sup>41</sup> One letter or number is missing in the document due to breakage.

<sup>42</sup> See Document 2 (NGMPP DNA 14/4) for the source text.

among the three, said: "The document [presented by Kālīdāsa] is not a forged but [indeed] genuine. We are even ready to take an oath if necessary." The investigation went on for two years. By the time the court made its final decision in favour of Kāsīdāsa, on Monday, the 2nd of the dark fortnight of Māgha in VS 1923 (AD 1866), the plaintiff had already died. Thus, the court decided to grant the successorship and property to Rāmadāsa, one of the legally recognised disciples of Kāsīdāsa, in accordance with Section 56 of the Article 'On Court Procedures,' and to punish Bālādāsa in accordance with the same section and Section 34 of the Article 'On Guṭhī Endowments.' The judgement reads as follows:

[Bālādāsa] did not come to the court on daily basis [which is mandatory] in accordance with number [i.e., section] 56 of [the Article] 'On Court Procedures,' after the eyewitness [of Kāsīdāsa] wrote a promissory note [to the court], and was absent for 15 days. Bāladāsa presented himself in court until the 9th day, but he fled on the 10th day giving a written statement to the court on 14/15th of the bright fortnight of Mārga in VS 1923 (AD 1866), saying: "Irrespective of the fact that I would win the law suit, [I agree] to let my [fellow disputer] win the case due to the fact that [I have certain] ties." Since Bālādāsa did not come to present himself in the court till today, the successorship of the monastery shall be granted to Rāmadāsa, a disciple of Kāsīdāsa. Since Bāladāsa claimed the successorship [of the monastery], which he would not get, and also fled, he shall be fined 3000 company rupees in accordance with the section 34 of [the Article] 'On Guṭhī Endowments' when he is found due to the reason that he has no property and family to confiscate in accordance with the section 56 'On Court Procedures.' If the fine is not paid, he shall be imprisoned and set free after the term of imprisonment is over.<sup>43</sup>

Rāmadāsa, a disciple of Kāsīdāsa, did not in the end succeed to the monastery throne. He agreed to hand it over instead to Rūpalāladāsa, another disciple of Mohanadāsa, for as long as he lived. The decision was formally written down, and on Monday, the 2nd of the dark fortnight of Māgha in VS 1923 (AD 1866) was forwarded by Ḍiṭṭhā Chandalāla

43 See Part II, C, Document 3.

Burlākoṭī and Bicārī Kapilamuni Pādhyā of Jaṅgī Adālata 1 to the Council for final approval. After careful review, the Council approved it and issued a *rukkā* to Rūpalāladāsa under the name of Prime Minister and Commander-in-Chief Jaṅga Bahādura Rāṇā (who was also head of the Council) on Sunday, the 13th of the dark fortnight of Phāguna in VS 1923 (AD 1866). Four years later, Rūpalāladāsa made petition to the king through Prime Minister Jaṅga Bahādura Rāṇā and Commander-in-Chief General Raṇa Uddīpa (Raṇoddīpa) Siṃha Kũvara Rāṇā, and therefore the *lālamohara* (presented as Document 3 in Part II: C below) was issued by King Surendra. It contains an extensive report on the history of the case, including a lengthy citation from the Council's decision.

As discussed above, this *lālamohara* rehearses the procedures leading up to a court decision. A local court first investigates the lawsuit, and a decision is rendered only after careful consultation of the pertinent sections and Articles of the MA. This decision is afterwards sent to the Council, which reviews the case to see whether it conforms to regulations in the *Ain* and adds observations of its own. Once the Council approves the final text, it is forwarded to the commander-in-chief and prime minister so that a *rukkā* can be issued. Afterwards it is sent to the king for a red-seal order to be issued by him to the winner of the case (e.g., to Rūpalāladāsa in the present document).

The fourth piece of evidence (K 175/18)<sup>44</sup> is a complaint (*ujura*) made by Samsera Bahādura Pā̃ḍe, an inhabitant of Naradevī Ṭola, against his *kākī* (the wife of his father's brother) Rājakumārī Pãḍenī Kṣatryānī/Chetryānī. She is accused of meeting with her incestuous husband, Pṛthi Bahādura Pā̃ḍe, accepting rice from him and having sexual intercourse with him. There is a set of documents relating to this matter, some seventy manuscripts in all, filmed in the NGMPP K series, including K 118/32, 39, 40*–*41; K 172/57–58, 63; K 175/32–34, 39, 42–44, 47, 49, 52, 57, 60, 66, 68–69, 71–73, 76–77 and 79–80.45 This trial thus deals with a family dispute between Rājakumārī Pãḍenī (the lawfully married wife of Pṛthi Bahādura Pā̃ḍe) and the complainant, her brother-in-law's son (*bhatijo*) Samsera Bahādura Pā̃ḍe. From these documents, it is learned that this dispute arose in VS 1918 after Pṛthi Bahādura committed adultery with the non-widowed wife (*sadhavā*)

<sup>44</sup> See Part II: C, Document 4.

<sup>45</sup> Among these documents, only NGMPP K 172/57, 63, 175/2, 18, 32, 33 and 34 have hitherto been edited and translated. They are particularly relevant to the current discussion and are presented below in Part II: C.

of a fourth-generation cousin and with a similarly distantly related female cousin-in-law (*cāra pustākī didī ra bhāujyū*).46 After committing adultery, he fled to the Terai (Madhyadeśa) with his entire family and household personnel.47 Later, Rājakumārī returned from the Terai and initiated a court case to obtain her legal share of the inheritance. Samsera Bahādura and his side of the family tried to avoid giving her any of the joint property, accusing her of being guilty of willingly accepting rice from her incestuous husband and having sexual intercourse with him. Rājakumārī Pãḍenī for her part insisted on her just claim, mentioning the expiation she had undertaken by order of authorities and offering further evidence.<sup>48</sup> Here, I shall discuss this case as an example showing that not only court administration had proper knowledge of the MA but also that the local actors such as Samsera Bahādura Pā̃ḍe and Rājakumārī Pãḍenī Kṣatryānī were well informed regarding its provisions.

In the first paragraph of his formal complain (*ujura*), Samsera Bahādura states that there is no regulation in the MA that grants cooked rice expiation to a person who accompanies and willingly eats rice with someone who has fled after committing adultery with the non-widowed (*sadhavā*) wife of a fourth-generation male cousin or with a fourth-generation female cousin. Moreover, he argues that such expiation has never been granted to anyone.<sup>49</sup> Thus, he rules out the legitimacy of his opponent's claim: Neither is it grounded in law nor is there precedence for it.

Two issues are seen to be addressed in this statement: (1) adultery committed with an affinal or blood relation (in this case, with the non-widowed wife of a fourth-generation male cousin or with a fourth-generation female cousin), (2) the impossibility of granting expiation to anybody who willingly has eaten together or had sexual intercourse with an incestuous person.

These two issues are dealt with in the MA of 1854: Adultery committed by a Sacred Thread-wearer Kṣatriya is the subject of Article 116 of the *Ain*, 50 consisting of 21 sections. Section 2   51 addresses adultery committed with blood relations (*hāḍamā*) traceable back to within seven


<sup>46</sup> See Part II: C, Document 7.

<sup>47</sup> See NGMPP K 172/58 in http://abhilekha.adw.uni-heidelberg.de/nepal/index. php/catitems/viewitem/10867/1 last accessed on 9 June 2023.

<sup>50</sup> See MA-ED2/116.

<sup>51</sup> See MA-ED2/116 §  2.

generations. The punishment for this offence is prescribed as confiscation of the offender's share of property (*aṃśasarvasva*), removal of the Sacred Thread, shaving of the head, forced consumption of liquor and pork, downgrading of caste and exile—towards the west if the guilty party is from the east and vice versa—across the river. Further, cooked rice may not be received from the offender, nor expiation granted to him. Water, however, can be received.

The second issue is addressed in Article 89, 'On the Religious Judge' *(dharmādhikārko*).52 Section 2 of this Article,53 as argued by Samsera Bahādura in the first paragraph of his complaint, explicitly directs the *dharmādhikārin* not to grant expiation to those who have deliberately polluted themselves, only to those who have not *(bhorako mātra patiyā dinu)*. Further, he should grant expiation to any offender only after having been ordered to do so in a *lālamohara*. For granting expiation to an offender who was not entitled to such, the *dharmādhikārin* could be made to pay a fine of 500 rupees and be dismissed from his post.

Samsera Bahādura, in the fourth paragraph54 of the present document, refers to Section 2 of Article 89 of the MA55 when challenging the wife of his middle uncle to show him the *patiyāpūrjī* (certificate of rehabilitation) issued by a *dharmādhikārin*, since Section 3 of the same Article56 identifies *dharmādhikārin*s alone as entitled to issue such a document. Despite the fact that the *Ain* does not directly order *dharmādhikārin*s to issue a *patiyāpūrjī* upon successful completion of the expiation process,57 A. Michaels writes, referring to Sections 3, 20 and 29 of Article 89,58 that the certificate was an integral part of rehabilitation: "… part of the rehabilitation was a certificate (*purjī*) by which the former caste status was affirmed or reconfirmed. The Dharmaśāstra also prescribed that all certificates of rehabilitation be issued in a written from." 59 In any case, the present text illustrates that *dharmādhikārin*s did indeed issue *patiyāpūrjī*s.<sup>60</sup>


In the fifth paragraph,61 Samsera Bahādura refers to Sections 2, 3 and 6 of Article 89.62 Section 2 prescribes the general procedure for receiving *patiyā*: the person seeking to undertake *patiyā* goes to a court, *amāla* or *ṭhānā*, where a *pūrjī* is issued to a *dharmādhikārin* stating that the petitioner is eligible to undertake *patiyā* and that a *patiyā* should be granted to him. The *dharmādhikārin* will then grant him *patiyā* and issue a *patiyāpūrjī*. Thus, Samsera Bahādura's challenge—if the *patiyāpūrjī* is lost, show him the *pūrjī* issued by the court in accordance with the *Ain*—stands on firm ground.

The sixth paragraph of Samsera Bahādura's complaint <sup>63</sup> argues in conformity with Section 4 of Article 89.64 This section permits the *dharmādhikārin* to grant *patiyā* only if an offence has not been deliberately committed. In cases of deliberate offences, *dharmādhikārin*s should grant *patiyā* only if ordered to do so by *mukhtiyāra*s or because the king has issued a *dastakhata/daskhata* <sup>65</sup> or *lālamohara* to that effect. If *patiyā* is granted without a *lālamohara* in cases of deliberate offences, *dharmādhikārin*s were fined 500 rupees and dismissed from their post.

The discussed document shows that the MA was consulted not only by the court actors but also by local concerned actors. The discussion of both court verdicts and the supplementary legislation to the MA of 1854 is crucial for understanding the growing need for more precise laws with better applicability. One such supplementary legal document, was promulgated by Raṇoddīpa Siṃha Rāṇā in VS 1936 (hereafter, called R-Ain). Its purpose was to assist in the training of judicial officials. In addition to defining criminal and civil cases, the R-Ain provides a clearer explanation of the hierarchy of judicial offices and officials, which was lacking in the MA of 1854. As stated in the R-Ain §§  5–6:

The judicial office where the *hākima* of a *gosvārā* <sup>66</sup> is appointed shall be designated as *gosvārā aminī kacaharī*. An office where a *lephṭena* <sup>67</sup> is appointed shall be referred to as *aminī kacaharī*.

62 See MA-ED2/89 §  2, §3 and §  6.

64 See MA-ED2/89 §  4.


<sup>61</sup> *patiyāko kāgaja harāyāko bhayā adālatabāṭa patiyā garidinu bhaṃnyā purji bhayāko holā tesko nakal lyāun --- 5*. (See Part II: C, Document 4).

<sup>63</sup> *hukuṃle patiyā bhayāko ho bhanyā pramāṅgīko kāgaja lyāun ---6*. (See Part II: C, Document 4).

<sup>65</sup> A missive signed by the prime minister.

A *ṭhānā* shall be the name of the office where a *subedāra*<sup>68</sup> is appointed. [Similarly], a *jamādāra*<sup>69</sup> or *havaldāra*70-appointed office shall be known as *caukī*. These designated terms shall also be used in official documents.

The person vested with the authority to decide a legal case shall be referred to as *hākima*. Other officials shall be recognized as clerks (*kārindā*). When documenting the titles of the respective officials, their specific title shall be used in accordance with their bestowed position.

Moreover, this legislation introduces uniformity in the script used for legal documents, possibly for the first time in pre-modern Nepalese administration. It mandates that reports and documents be sent to the prime minister exclusively written in Deva(nāgarī) script (R-Ain §3). Additionally, it provides guidelines on how to draft various legal documents, including a litigant's application to file a court case, documents for accepting bail or surety, letters from witnesses, confessions, and the written format for taking an oath on *dharma*, among others.<sup>71</sup>

As stated above, these documents indicate that the MA was not merely a theoretical and scholarly work like the classical *dharmaśāstra* texts. Instead, it was grounded in practicality and reflected the current realities of the time. Therefore, the MA is not simply a reiteration of Brahmanical moral values but leans more towards positive law compared to the Sanskrit legal texts of that period. However, it is noteworthy that only a limited number of court verdicts from the 19th century have been discovered thus far. This raises the importance of further research to determine whether the MA was strictly implemented throughout the entire country, from east to west, or if its circulation and enforcement were more limited in scope. While the document provided above indicates a broader implementation of the MA, additional investigation is necessary to ascertain the extent of its practical application.

<sup>68</sup> A commander of a military company consisting of ca. 100 soldiers.

<sup>69</sup> A low-ranking commissioned officer in the army below the *subedāra* and above *havaladāra*, who could be also assigned to civil offices.

<sup>70</sup> A lower, non-commissioned military officer, equivalent to Sergeant.

<sup>71</sup> Please refer to the edition and translation of the *lālamohara* of the R-Ain below (part C, Document no. 12, A 1375/5). Additionally, I would like to highlight that Simon Cubelic and I are currently collaborating on the preparation of a comprehensive annotated edition and translation of the entire R-Ain. We intend to publish this work in *Abhilekha*, the research journal of the National Archives, Kathmandu.

# 4 Conclusion

In order to sum up the foregoing, I come back to the core questions raised in the beginning and will show how the findings of the present study can help to elucidate them.

#### **What were the major factors for the emergence of the MA?**

The process of codifying law in the Western world started from the eighteenth century onward, in, among other places, Prussia (1794), France (1804) and the Habsburg monarchy (1812). That this trend did not remain restricted to European states is evidenced by similar developments in the non-colonial encapsulated kingdom of Nepal. There, based on the principle that 'crime and sin should be punished and purified,' the MA was drafted to replace arbitrary legal practices with a unified system. The motto of the code was "equality in justice irrespective of an offender's rank and position."<sup>1</sup> The MA brought about a significant change by enabling expedited resolution of legal matters, bypassing the need to accommodate diverse local customs and shastric norms as previously required. Following the codification of the MA, there was no longer a requirement to consult *śāstras* or past court decisions before delivering court judgments. Despite the absence of pre-existing practical foundations, such as a well-established group of professional jurists, judicially trained ruling elites, or external colonial influence to guide the process of legal unification, Jaṅga Bahādura Rāṇā, the country's prime minister, successfully orchestrated the transformation of heterogeneous legal practices into a unified legal framework under state authority. This process was shaped by the following key factors:

(a) **The economic crisis in the country**: The power struggle within the royal palace and among other political elite groups in nineteenthcentury Nepal led to a lack of centralized leadership, resulting in a significant depletion of the state treasury. This had a profound impact on the country's economy. Against this backdrop, Jaṅga Bahādura Rāṇā implemented reforms aimed at establishing a unified system of land and revenue management. This was achieved by enforcing a systematic code of law throughout the country. With a central authority possessing such powers, the state gained the necessary means to effectively control the collection and distribution of revenue.

(b) **Protection of autonomy and monarchical fear**: Prior to Jaṅga Bahādura Rāṇā, there was no collective sense of nationhood among the royal family, political elites, and the divided subjects who were characterized by geographical, ethnical and cultural differences. Consequently, there was no unified sentiment to safeguard the nation's autonomy against colonial powers. Jaṅga Bahādura Rāṇā's rise to power further intensified political instability, leading to the emergence of various political factions at both local and national levels. As a result, anti-Jaṅga Bahādura political elites, including the monarch, sought alliances with the Company state, which posed a threat to Jaṅga Bahādura's rule. In response, Jaṅga Bahādura took steps to foster a strong collective sense of nationhood and political patriotism among the population. Central to this effort was the codification of law, establishing a mutually binding legal contract that governed the relationship between the king, prime minister, and subjects.

(c) **Careful observation of colonial politics by Rāṇā rulers**: While the Rāṇā rulers maintained a strong stance of religious isolationism, which had been established by Pṛthvī Nārāyaṇa Śāha as a defence against colonial intrusion, they also displayed a keen awareness of Western political ideas and governance strategies.2 They established an extensive network of informants, envoys, and ambassadors in various locations within the Company state, and even undertook state visits to England and France to demonstrate a sense of openness. As a result, Jaṅga Bahādura Rāṇā drew inspiration from the British parliamentary system and its legal practices, which he had closely observed during his state visit. This influence is acknowledged by previous scholarship and

2 See Toffin 2008: 163.

further confirmed by the present study, as evident in the incorporation of British political concepts and legal practices in the Articles 'On the Throne' and 'On Legislative Affairs' of the MA.

# **How did the MA change existing notions of sovereignty and legitimacy?**

Existing accounts of the monarchy in nineteenth- and twentieth-century Nepal often emphasize the concept of divine kingship, which views the king as a sacred and ritualistic figure closely intertwined with the destiny of the kingdom. This perspective aligns with orthodox Brahmanical scriptures that uphold the notion of divine rulership.<sup>3</sup> However, these interpretations of Nepalese kingship and the Rāṇā regime, particularly during Jaṅga Bahādura's rule, are primarily based on non-textual studies that focus on the ritualistic roles of the king. In contrast, the MA presents a remarkable transformation of the king's sovereign power and challenges the conventional understanding of the 'state as the household of the king.' It merges pre-modern concepts of kingship with new notions of legitimacy through law. By subjecting the monarchy to strict legal oversight, the MA separates the king from the state and ensures the country's sovereignty by limiting the king's divine role to ritual acts. The MA establishes the king's accountability under the 'rule of law' and grants the executive body the authority to demote the king's caste status if he violates regulations. The role of divine kingship requires re-evaluation in light of these developments. The monarchical policy introduced in the MA positions the king as a state actor rather than the sole proprietor of the realm. While the king's ritual sovereignty still draws upon notions of divinity, the MA binds the king to the law in numerous ways. The king's exclusive ownership of the realm, his authority to define foreign relations, and his ability to transform impurity into purity, among other executive powers, are visibly curtailed, further widening the gap between the king, the state, and religion.

The formulation of the MA in an isolated and conservative nonnation-state is indeed remarkable, as it reflects the adoption of the concept of the 'rule of law' within that context. While Nepalese political actors in the mid-nineteenth century were not closely acquainted

<sup>3</sup> See, for example, NārSm. 18.

#### 184 — 4 Conclusion

with the European concept of the 'rule of law,' it is apparent that exposure to British political and constitutional history, spanning from the Norman Conquest to the modern era, played a role in its development. However, there was no direct impetus for Nepal to adopt such a system at that time. The MA emphasizes the importance of legality, as it establishes regulations that apply to all individuals without exemption.4 It is significant that the concept of the 'rule of law' found its place within the legal framework of Nepal, considering the historical and cultural context in which it was formulated. One notable aspect of the MA is the establishment of the autonomy of the Council, which represents the military, civil service, judiciary, local officials, and village notables. This mirrors the English legislative sovereignty accorded to the Parliament and plays a crucial role in promoting the rule of law. The Council is empowered as the supreme executive body, possessing the authority to promulgate new laws and abolish existing ones. On one hand, the courts are accountable to the Council as the supreme legislative body, while on the other hand, the autonomy of the judicial bodies is guaranteed, granting them the right to issue independent judgments. This compatibility between the Council and the judiciary allows the state to function as an autonomous polity, where all employees, including high-ranking and local actors, owe collective loyalty. It reflects a system where the rule of law is upheld and respected, ensuring that the state operates within a framework of legality and accountability.

#### **Was the MA a strategy of Hinduization?**

It has become common among scholars to view the MA in terms of a strategy of Hinduization, or establishing the supremacy of Hindu values, by such measures as reinforcing a stricter caste hierarchy or incorporating laws to protect cows.<sup>5</sup> I would argue, however, that the representation of Nepal as a Hindu kingdom in the MA should more aptly be seen as political propaganda aimed at rhetorically warning the British not to undermine Nepal's autonomy. This can be seen e.g., in such eye-catching statements as the "rest of the (Hindu) world was in the hands of the Mleccha, (loosely: 'barbarian') i.e., the Company" <sup>6</sup> —a

<sup>4</sup> See Cubelic & Khatiwoda 2017.

<sup>5</sup> See, for example, Sharma 1977b: 285 and 1983: 18.

<sup>6</sup> See Fezas 1990: 122.

turn of phrase probably coined in the Divyopadeśa, attributed to Pṛthvī Nārāyaṇa Śāha.<sup>7</sup> To be sure, to a certain degree the MA represents an attempt to create a confessional state by bringing the pluralistic social and religious cultures and customs of pre-modern Nepal within a single legal framework in which a Hindu caste system—for all its being a very limited marker of classical orthodoxy—was principally dominant. Except a few regulations, though, such as the ban on cow slaughter, no rigid Brahmanism was imposed on non-Hindu subjects. Furthermore, barring a few exceptions, the MA does not specify which caste group (*jāta*) falls under which caste class (*varṇa*). This shows that the strategy behind caste regulation in the legal code was not to intervene in the customary practices and invited negotiation on the ground. Moreover, the MA is fundamentally liberal in its letting people choose or change their profession on their own. This is in strong contrast to the Brahmanical *varṇa*-system and Hindu customary practices, in which profession (*jīvikā*) was regarded as one of the essential elements for guaranteeing a person's social status and religious purity. It is obvious, then, that the aim of the MA was not to establish a strongly hierarchical Hindu society. Rather, it was simply adopting contemporary social practices of a caste system in which Hindu norms were dominant. Since a complete modification of the existing social and caste customs was beyond the power of Jaṅga Bahādura Rāṇā, Hindu caste customs were liberalised and brought under a unified legal code, and doing so helped to advance the weak state-economy of the Rāṇā regime—for one, increase in state income came from centralising the collection of fines paid in disputes related to caste and customs. Letting people choose their profession on their own also advanced economic productivity. On the one hand, the MA did not dramatically break with the existing caste system, which otherwise would probably have resulted in political and social chaos. On the other hand, it did alter the caste system to allow for economic improvements. Since the caste system in pre-modern Nepal had never been enforced in all its rigidity in large parts of the realm, it must have been relatively easy to integrate new entrants including non-Hindu populations into the caste society.8 Therefore, caste theories based on partial studies of the MA should be re-examined in the context of a larger historical trajectory.

<sup>7</sup> As pointed out by M.A. Sijapati, the concept of '*asal hindustān*' was also in "strategic and conscious contradistinction to the Islamic imperial presence looming massively to the south." (Sijapati 2011: 33).

<sup>8</sup> See Bista 1977: 18.

#### **Was the MA only influenced by the** *dharmaśāstras***?**

Although the MA—in comparison to other instances of eighteenth- and nineteenth- century legal practice in Nepal—is progressive insofar as it visibly exemplifies the concept of positive law, it also accepts most social and religious customs as long as they do not pose a threat to the national interest or mainstream norms. The Article 'On Homicide,' for instance, recognizes the king as an agent of the state and accords him a focal position in state ritual. However, if he oversteps his ritual role, he is to be punished, like any agent of the state, by the country's executive body. If, for example, he were to commit murder, he would be imprisoned for life. This shows that the MA attempted to establish a rule of law on the basis of the policy 'sin and crime should be punished' irrespective of the offender's position or rank. In laying such a foundation for the nation-state in law, the MA distanced itself from shastric practice, wherein the king is treated as an embodiment of Viṣṇu, and no sin or crime committed by the king can be held against him. At the same time, the MA, in recognition of the king's ritual role, does not condemn him to death if he is found guilty of homicide. Following the shastric principle that 'the king should not be killed,' it instead punishes him by lifetime imprisonment. Similarly, Brahmins, ascetics and women are also exempted from the death penalty, but instead are branded. Everyone else, however, can be sentenced to death if found guilty of murder. The exemption from capital punishment of the above-mentioned groups is in accord with normative ideas based on the *dharmaśāstra*s. However, as noted previously, branding can be considered a form of social death which, under certain circumstances, could be considered a fate worse than actual physical death.<sup>9</sup> Moreover, the MA safeguards the basic value of human life. For example, following shastric practice its ban on killing Brahmins and woman10 is not applicable in cases of self-defence. Irrespective of an attacker's caste status, rank and position, one may kill in self-defence. Doing so does not result in punishment. This is just another example of shastric ideals being abandoned under a growing awareness of the positive nature of law. Similarly, the diplomatic immunity granted to foreign envoys if charged with homicide and the regulations governing extraditing a foreign murderer attest not only to the internalisation of interstate norms of diplomacy but also to a reduction of the king's authority. According to the *śāstra*s, one major

10 See MA-ED2 1854/64 §1.

<sup>9</sup> See RŚEdict 15.

expression of the king's sovereignty over his sacred realm (*deśa*) was his duty to keep the realm pure from defilement by punishing criminals and maintaining the social *status quo*. With the new norms of diplomacy recognised by the MA, foreign envoys were exempted from the domestic law on homicide; further, their residences in Nepal were granted the status of special zones of immunity, in effect recognised as an autonomous territory. The above discussion has shown that the source of the MA was not only the d*harmaśāstra*, but also the new political doctrine of the rule of law and the prevailing customary practices.

# **How and why does the MA of 1870 differ from the MA of 1854?**

A comparison of the two *Ains* (1854 and 1870) shows a growing awareness and knowledge of more systematic legal practices. The simplification of the complex language structure of the 1854 MA by deleting unnecessary formulations, adding new real-world clarifications and rephrasing long and confusing sections proves that the need was felt to update the code, as it probably served as the primary basis for legal decisions in the courts. Interestingly, however, the comparison also discloses that the MA of 1870 retreats from the more secular approach to jurisdictive practices basic to the MA of 1854, wherein the courts were empowered with absolute autonomy. The MA of 1870 started restricting the fully developed autonomy of the judiciary by modifying the constitutional character of the 1854 MA, probably with the aim of strengthening Rāṇā authority. Although the Article 'On Homicide' of 1854 was greatly simplified and rephrased, and many new legal concepts were incorporated into the 1870 MA, the exemption from the death penalty granted to ascetics after being denied them by the 1854 MA can be interpreted as a reactionary tendency to restore more orthodox positions.

### **Was the MA enforced?**

Finally, there has always been disagreement on whether the MA was merely a scholarly legal composition or if it served as a legal guide during court proceedings. Since no significant scholarly work has investigated the enforcement of the MA, an historical evaluation of it in terms of its actual legal authority has had to be put off. However, the documents discussed in the present study do answer the question of the enforcement of the code. It could be unequivocally shown that the law code did in fact have legal force and was used as a primary basis for making court decisions. Even the study of this limited number of documents attests that the MA was not only consulted and applied by judicial bodies and the Council in the courts and the court of appeals but was also read, understood and used by local actors. As shown in the example above, the complaint issued by Samsera Bahādura attests to a profound familiarity with the MA, each point of his eight-paragraph complaint being made with reference to the relevant Articles and sections of the MA.

Sundry nineteenth-century documents, then, clearly tell us that the MA was not simply a theoretical and scholarly work like the *dharmaśāstra*-texts, but was written with practical ends in mind, and reflected current realities. Further, the MA cannot be taken as simply restating Brahmanical moral values as governing legal codes. Rather, it is much more modern in nature, with a palpable sense of the rule of law and a strong conceptual bent towards secularism, and indeed is much more in line with positive law than the eighteenth- and nineteenthcentury Sanskrit legal tomes in British India.

The MA holds significant importance in the realm of South Asian legal history and serves as a valuable source for comprehending various aspects of state formation, the process of codification, kingship, caste hierarchy, social mobility, Brahmanical orthodoxies, and nineteenth-century political thought, including notions of legality, and religious patriotism in Nepal. However, the existing studies on these subjects have largely overlooked the comprehensive relevance of the MA, relying instead on partial contents of the code. Consequently, their legal and historical analyses suffer from a notable dearth of substantial empirical data to support their arguments. Therefore, a meticulous and critical examination of the MA will undoubtedly prompt a re-evaluation of current scholarly approaches to the history of nineteenth-century Nepal and South Asian history, from legal, political and socio-cultural perspectives. Furthermore, it is important to note that only a limited number of court verdicts from the 19th century have been unearthed thus far. This highlights the need for further research to determine whether the MA was rigorously implemented across the entire country, spanning from east to west, or if its circulation and enforcement were more constrained in scope. Although the aforementioned documents suggest a broader implementation of the MA, it is highly recommended to conduct additional investigations in order to ascertain the extent of its practical application.

# Part II Edition and Translation

# Introduction

As mentioned before,<sup>1</sup> the reprint edition of the MA published in 1965 (VS 2022) by the Ministry of Justice, His Majesty's Government of Nepal, is actually the first amended version of the 1854 *Ain* (i.e., MA-ED2). Nevertheless, the MA-ED2 has been referred to as the MA of 1854 by scholars who have dealt with different aspects of the *Ain*. 2 For example, A. Höfer's study on the caste system of the 1854 MA is based on the first amended version, which was prepared on the basis of a copy of it made between 1865 to 1867.<sup>3</sup> J. Fezas's edition of the MA published in 2000 (i.e., MA-ED1) is so far the only publicly available text of the MA of 1854. Although J. Fezas presents the whole text including several Articles of the MA reconstructed on the basis of manuscripts kept in the NAK, his edition suffers, as pointed out by A. Michaels, from having failed to adhere to text-editing methodologies.4 For example, he records text variants by using different colours within the main text but does not tell the reader which variant he accepts. Also surprisingly, he changes all *va*s (व) into *ba*s (ब), which is a common orthographic practice of Indic manuscripts written in Devanāgarī script. In short, he does not make his editorial principles clear. The MA of 1870 for its part has not so far been edited. Thus, a diplomatic edition of the Articles 'On Homicide' from both versions of the MA will be presented below, recording all the variants and editorial conjectures, emendations and so forth in footnotes, with the aim of making the main text as easily readable as possible.

The following manuscripts and editions have been used to prepare the present editions and translations of the Article 'On Homicide' of 1854's and 1870's MAs.

2 For example, Edwards 1977: 120–124, K.K. Adhikari 1984 and Vaidya & Manandhar 1985.

4 See Michaels 2005b: 1 fn. 3.

<sup>1</sup> See Part I, 1.2.

<sup>3</sup> See Höfer 2004: 1.

# **1 MA of 1854**

## 1.1 Edition of the Ministry of Justice (MA-ED2)

*Śrī 5 Surendra Vikrama Śāhadevako Śāsanakālamā baneko Mulukī Ain*. Kathmandu: Śrī 5-ko Sarakāra, Kānuna tathā Nyāya Mantrālaya, VS 2022 (1965), 712 pp.–Chapter 64 ('Jyānamārā'): p. 281–291.

This edition was prepared by H.M.G. Nepal, Ministry of Law and Justice, under the guidance of Sūrya Bahādura Thāpā, who later became the prime minister. The editors were aware of two manuscripts: one dating back to 1854 and another from the period between 1865–1967 (VS 1922–1924). Despite having access to the original 1854 copy, the editors decided to base their edition on the amended manuscript copy from 1865–1967.

According to the ministry (MA-ED2, Preface, p. 6), the later copy incorporated provisions that had been both added and deleted during that period. Therefore, it was deemed more appropriate for the publication of the Ain. Unfortunately, the main manuscript upon which MA1 is based could not be located. Fezas (2000: xlviii–xlix) suggests that this manuscript may belong to the C series of the NGMPP microfilms.

# 1.2 Jean Fezas's edition (MA-ED1)

*Le Code Népalais (Ain) de 1853*, ed. by Jean Fezas, Torino: Comitato per la Publicazione del Corpus Juris Sanscriticum, 2 vols., 2000 (Corpus Juris Sanscriticum, vol. II; Sanskrit Series on Social and Religious Law, ed. by Oscar Botto).

This edition is based on:

1. MsA: This manuscript is believed to be from VS 1912–1918 (1855– 1861?).5 It is currently preserved in the National Archives, Kathmandu under the Subject Number Ca.La.Na. 28/17. Although it lacks a title page, the catalogue card identifies it as '*Aina*.' The manuscript, written in Devanāgarī script with occasionally faded black ink, is inscribed on fragile Nepalese paper in book form (measuring 34 × 25.5 cm). It begins on page 34r and ends on page 856v, with an unclear table of contents for the different chapters. Several

<sup>5</sup> Cf. Fezas 2000: xxxii and xxxiii.

pages are missing, and there are additional contributions by different scribes, suggesting its use in formulating an amended version.


# 1.3 Manuscript, VS 1910 (MA 1854-MS1)

This manuscript, dated 1854, is kept in the National Archives, Kathmandu under the accession number (ca. la. naṃ. 2817). The catalogue card names the manuscript as *Ain* on the cover page. The manuscript is written on Nepalese paper in Devanāgarī script. Each section of the *Ain* has been stamped in attestation at its beginning and end. The size of the manuscript is 34 × 25.4 cm.


# **2 MA of 1870**

# 2.1 Manorañjana version, VS 1927 (MA-ED3)

Kathmandu: Manorañjana Press, VS 1927 (1870). 5 pts.: I (248 pp), II (200 pp), III (232 pp), IV (426 pp), and Addenda (132 pp)–Article 'Jyānāmārāko:' vol. 4.

# 2.2 NAK Manuscript 2, undated (MS2)

The manuscript was microfilmed by the NGMPP from a private collector under the running number 24615 and reel numbers E 1223/17 to 1224/1. The text has no title, but the catalogue card names it as 'Mulukī Ain' and puts it under the *dharmaśāstra* category. The manuscript is incomplete and in many folios the letters are rubbed off. The following folios are missing: 15–16, 111–112, 207–208, 240–243, 298–301, 364–365, 378–379, 439–440, 447–448, 545–550, 567–570, 578–579, 625–626, 649–650, 667–668, 681–682, 687–688, 691–700, 701–744 and 757–794. Page no. 207 is filmed twice. The manuscript is copied on modern Nepalese paper bound in a modern book form 33 × 25 cm. in size.

# **Editorial Conventions**

The texts have been transcribed as faithfully as possible so as to retain the orthographical features. The *nukta*-signs (as in व़, य़) and middle dots (•) have been silently ignored in the editions.<sup>9</sup> *Daṇḍa*s (।) have been supplied to the text as sentence breakers where necessary. ¯ ¯ ¯ ¯ Instances of such broken lines, whether long or short, are always indicated by three dashes (---). When it comes to word separation in pre-modern Nepalese documents, there is no explicit indication provided. As a result, the conventions of modern Nepali have been applied selectively, mainly for the purpose of enhancing clarity.

Round brackets ( ) in the translation have been used for editorial explanations and square brackets [ ] for necessary additions.

<sup>9</sup> The middle dots (•) sometimes function as word separators, but in many cases are used without any obvious purpose.

# **Editorial Signs in the Devanāgarī Texts**


# A. Homicide Law: Editions

# **Edition of Article 64 of the** *Ain* **of 1854**

### ज््ययानमाराको

१. [MS1 p. 282] उपाध््ययाय जैसि व्राह्मण र तेह्रौत््यया भट्ट गैह्र देसि व्राह्मण कसैले मानिस मर््ययामा <sup>1</sup> ऐनवमोजीमको <sup>2</sup> अंस सर््वस््व गरि दामल गर््ननु ।

२. रजपूत जातले आफ््नना हाडनातामा र आफुभन््ददा उपल््लला जातमा करणि चोरि गैह्र कुरा गर््ययामा ऐनवमोजिम मुडिन््यया दामल हुन््यया कै द हुन््यया दंड हुन््यया सर््वस््व हुन््यया हुछुं । ज््ययान जादैन । जारि गर््ययामा साधुको षुसि जार काट्यो भन््यया साधुलाइ षत लाग््ददैन । रजपूतले मानिस मार्यो भन््यया ज््ययानको वदला ज््ययान काटिंछ ।

३. उपाध््ययाय व्राह्मण जोगि भयाका जैसि वाहुन् जोगि भयाका रजपूत जोगि भयाका मावलिको पत्ता नलाग््ययाका जोगि भयाका र कसैसित नविग्र्याका उपाध््ययाका र जैसिका विधुइ दसनाम र जोगि जंगम सेवडाले ल््ययाइ जन््म्ययाका सन््ततान औ वावु र मावलिको पत्ता नलाग््ययाका रमता फकिर कान चिर््ययाका कान फट्टा यस््तताले ज््ययान जान््यया तक््ससिर <sup>3</sup> गर््यया भन््यया ज््ययानको वदला ज््ययान लिनु । ऐनवमोजिम अंस सर््वस््व गरी दामल गर््ननु ।

४. तागाधारि क्षतृ गैह्र मतवालि शुद्र जात इन््हहेरुका <sup>4</sup> सन््ततान दसनाम जोगि जंगम सेवडासित मुडियाका र इनैका कन््यया विधवा वेस््यया दसनाम जोगि जंगम सेवडाले ल््ययाइ तिनैवाट जन््म्ययाका सन््ततान मुडियाकाले ज््ययान मार््यया भन््यया ज््ययानको वदला ज््ययान लिनु ।

५. सवै थोक थाहा पाउन््यया चतुरो जान््यया मुषले वोलन नसक््न्यया लाटाले हतियार लट्ठि ढुंगाले हानि मानिस मार््यया भन््यया ज््ययानको वदला ज््ययान लिनु । गर््न्यया नगर््न्यया कुराको थाहा नपाउन््यया ग््ववााँगाले मानिस मार्यो भन््यया तेस््ततालाइ १२ वर््ष कै द गर््ननु ।

६. चार वर््ण छत्तिसै जात गैह्रका सधवा विधवा र ११ वर््षदेषिका कन््ययाले मानिस मार््यया भन््यया तेस््तता स््ववास्निलाइ दामल गर््ननु । सर््वस््व नगर््ननु ।

७. आफुले जन््ममायाका छोराछोरि मार््न्यया र आफ््ननु लोग््न्यया मार््न्यया चार वर््ण छत्तिसै जातका स््ववास्निलाइ दामल गरी हातगोडामा नेल हालि झैलषाना गोलघरमा राषि रोजको चार पैसा सिधा दिनु । वाहिर ननिकालनु ।

4 MA-ED2 *inhyerūkā*.

<sup>1</sup> Throughout all editions, the ligature *ryā/ ryo* ( ) has been transcribed as र््यया / र्यो.

<sup>2</sup> Throughout editions, both and ऐन् / ऐन have been transcribed as ऐन / ऐन्.

<sup>3</sup> MA-ED2 *ṭaktira*.

८. [MS1 p. 283] कसैले आफ््नना जगाजमिन नगद जिनिस चौपाया कमारा कमारि गैह्र मुद्दामा झगरा भै कसैलाइ ढेरै <sup>5</sup> जना मिलि ज््ययान मार््ययाको रहेछ भन््यया मारौ भनि मतलव गर््न्यया समातन््यया १ हांन््यया १ मार भनि वचन दिन््यया १ इ तिन जनाको ज््ययानको वदला ज््ययान लिनु । इदेषि वाहेक अरु छेकि छेकि कुटाइ मराउन््ययालाइ दामल गर््ननु । अंन््ययायमा अर््ककाको ज््ययान मार््ययाको देषि नछुट्याइ हेरिरहन््ययामा कुटन््यया मार््न्यया भंदा हेरि रहन््यया <sup>6</sup> ढेरै रह्याछन् भन््यया १६ वर््षदेषि माथिका ६५ वर््षसंमका जानकार जवानलाइ जनहि २०।२० रूपैया दंड गर््ननु । कुटन््यया मार््न्यया भंदा देषन््यया मानिस थोरै रह्याछन् भन््यया जानकार हउन् वा वुढावुढि <sup>7</sup> हउन् <sup>8</sup> वालष हउन इन््हहेरुलाइ षतवात लाग््ददैन ।

९. कोहि लोग््न्यया मानिसले रात दिनका विचमा धनमालका लालचले भयो अरू केहि इविले भयो कसैलाइ मारौ भनि हतियारले हानि रोपि जहर विष षुवाइ ज््ययान मार््न्यया भिरभिरका रस््तता पोषरी गैह्रा षाडि इनार षोला जघार साघु झोलंगा पुल पर््षषाल डुंगा रूष झ््ययाल कौसि छानावाट घच््ययाटि गर््धनि लगाइ षसाउन््यया वगाउन््यया यकलास््ममा पक्रि पासो लाउन््यया मुषमा माटो कपडा झारपात गैह्रले वुजो लाउन््यया गरि मानिस मार््ययाको रहेछ भन््यया इनमा मार भनि वचन दिन््यया मार््ननालाइ समातिदिन््यया जति जना छन् तिन््हहेरू हांन््यया र घच््ययाटिदिन््यया पनि जति जना छन् तिनहेरू मार््न्यया वेलामा सग गयाका भया पनि नगयाको <sup>9</sup> भया पनि मार््ननाका पैल््हहे मतलवको कुरा उठाइ मार भनि वचन दिन््यया र हतियार दिन््यया यतिको ज््ययानको वदला ज््ययान लिनु । भागला भनि विकट वस्न्या मारोस भनि वरिपरिवाट छेकिदिन््ययाहरुको ऐनवमोजिमको अंस सर््वस््व गरी दामल गर््ननु । अरु मार््ननाका मतलवमा पस््ययाका मार््न्यया ठाउमा पनि गयाका हतियार नचलाउन््यया नछेकन््यया नसमात्न्या यस््ततायस््तता मतलविहरुलाइ अंस सर््वस््व गरी १२ वर््ष कै द गर््ननु । मतलवमा पस््ययाका मार््न्यया ठाउमा नजान््ययाहरुलाइ सर््वस््व गरी ६ वर््ष कै द गर््ननु । म््ययादको रुपैया <sup>10</sup> डवल दिया पनि रुपैया लि नछाडनु । यति<sup>11</sup> विहोरा गरी स््ववास्नि मानिसले ज््ययान मार््ययाको रहेछ भन््यया दामल गर््ननु । यसै ऐनमा लोग््न्यया मानिसलाइ दामल् गर््ननु भनि लेषियाका षतमा स््ववास्नि मानिसले गर््ययाको रहेछ भन््यया १२ वर््ष कै द गर््ननु । अरु कै द हुन््यया कुरामा स््ववास्नि मानिसको सर््वस््व हुदैन । सर््वस््व नगरी लोग््न्यया मानिसलाइ लेष््ययाको कै दको आधि कै द गर््ननु । स््ववास्निका म््ययादका रुपैया दिया लि छाडिदिनु ।

१०. कोहि लोग््न्यया मानिसले कसैलाइ मारौ भनि हतियारले हान््ययो जहर विष षवु ायो भीरभिरका रस््तता गैह्रा षाडि पोषरी इनार षोला जघार साघ झोलंग ु ा पल  ु <sup>12</sup> पर््षषाल डुंगा रुष झ््ययाल कौसि छानावाट घच््ययाटि षसायी यकलास््ममा पक्रि पासो लायो मषमु ा माटो कपडा झारपात गैह्रको वजो ल ु ायो र त््ययो मानिस मरेन दैवसयं ोगले वाच््ययो वा गहु ार पाइ वाच््ययो वा इलाजहरुले वाच््ययो भन््यया इन््ममा मार भनि वचन


दिन््यया मार््ननालाइ समातिदिन््यया जति छन् तिन््हहेरु हांन््यया र घच््ययाटन््यया पनि जति छन् तिन््हहेरु उस वेलामा सग गयाका भया पनि नगयाका भया पनि पैल््हहे मतलवको कुरो उठाइ मार भनि वचन दिन््यया यतिको ऐनवमोजिमको अंस सर््वस््व गरि दामल गर््ननु । भागला भनि विकट वस्न्या र मारोस भनि वरिपरिवाट छेकन््ययाहरुलाइ ऐनवमोजिमको अंस सर््वस््व गरी ६ वर््ष कै द गर््ननु । अरु मतलवमा पस््ययाका मार््न्यया ठाउमा पनि नगयाका हतियार नचलाउन््यया नछेकन््यया नसमाउन््यया यस््तता मतलविलाइ सर््वस््व गरी ३ वर््ष कै द गर््ननु । मतलव गरि मार््न्यया ठाउमा नगयाकालाइ र मतलव गर््ययाछन गर््न नपाइ जाहेर भयो भन््यया तेस््ततालाइ सर््वस््व गरी १॥ वर््ष गैद गर््ननु । म््ययादको रुपैया नलिनु । यहिे विहोरा स््ववास्नि मानिसले गर््ययाको रहेछ भन््यया दामल हुन््यया षतमा स््ववास्नि मानिसलाइ १२ वर््ष कै द गर््ननु । अरु विहोरामा स््ववास्नि मानिस््कको सर््वस््व हुदैन । सर््वस््व नलिनु । कै दमा लोग््न्यया मानिसलाइ लेष््ययाको कै दको आधि कै द गर््ननु । स््ववास्नि मानिसका म््ययादका रुपैया दिया लि छाडिदिन ।ु

११. [MS1 p. 284] विना हक््ममा यक जनामाथि चार जना आइलाग््यया र लात्तले लट्ठिले कुटपिट गर््यया तेसले ज््ययू वचाउना निमित्त हतियार काढि पन््ससाउदा <sup>13</sup> कोहि मर्यो भन््यया तेसलाइ षतवात लाग््ददैन । यक जना माथि वेहक््ममा ३ जना आइलाग््यया लात्तले लाठाले कुटपिट गर््यया र तेसले हतियार चलायो र घाउ लाग््ययो भन््यया षतवात लाग््ददैन ।

१२. कोहि लोग््न्यया मानिसले वा स््ववास्नि मानिसले सुत््ययाका वेलामा वा विउझ््ययामा <sup>14</sup> लोग््न्ययालाइ हवस स््ववास्निलाइ हवस वालषलाइ हवस मारौौं भनि रेटेछ घोचेछ हानेछ पत््थर मुढाले थिचेछ पासो लायेछ मुषमा वुजो लायेछ र ज््ययान मरेछ भन््यया पनि दैवसंयोगले वाचेछ भन््यया पनि वाहुन् र ऐनवमोजिमका भेषधारिलाइ उस््कको ऐनवमोजिमको अंस सर््वस््व गरि स््ववास्नि मानिसलाइ सर््वस््व नगरि दामल गर््ननु । अरु जातलाइ ज््ययानको वदला ज््ययान लिनु <sup>15</sup> ।

१३. कसैले सवुद मानिसलाइ लट्ठि ढुंगाले हान््ययो हान््ययाको घाउ पाकि निको नभै तेसैका पिडाले मर्यो भन््यया तेस््कको ज््ययू काटिंछ । तेस विचमा छेरुवा विफर आठ्या षवट्या [लागी] लडि वगि लोटि दात हुन््ययाले टोकि मर्यो भन््यया घाउ लायासंमको षत लाग््छ । ज््ययान मर्यो भनि ज््ययानको वदला ज््ययान हुदैन । <sup>16</sup>

[13a] [MS1 p. 285] कसैले सावुद मानिसलाइ लट्ठि ढुंगाले हान््ययो हान््ययाको घाउ पाकि निको नभै तेसैका पिडाले २२ दिनभित्र मर्यो भन््यया तेसैका चोटले मर््ययाको


ठहर््न्ययाले काटिन््यया जातको ज््ययानको वदला ज््ययान काटि मारिदिनु । नकाटिन््यया जात भया ऐनवमोजिमको अंस सर््वस््व गरी दामल गर््ननु २२ दिनदेषी उप््राांत ३ मैह््ननाभित्र मर्यो भन््यया सर््वस््व गरी दामल गर््ननु । तेसै घाउको दर््दनिको नभै तेसै पिरले ३ मैह््नना उप्रान््त ६ मैह््ननाभित्रमा मर्यो भन््यया १०० रुपैया दंड गर््ननु । रुपैया नतिर््यया कै द गर््ननु । ६ मैह््नना उप््राांत मर््ययाको भया र कुट्याका २२ दिन भित्रै छेरुवा विफर आठ्या षवट्या [लागी] लडि वगि लोटि दात हुन््ययाले टोकि मर््ययाको भया ज््ययान मार््ययाको षत लाग््ददैन । जाहासम््मको कुटपिट् गर््ययाको हो उसै ऐनवमोजिम दंड कै द गरी छाडिदिन ।ु

१४. कसैले मलाइ कुटपिट गर्यो भनि कुटाइ माग््न्ययाले <sup>17</sup> आइ फिराद गर्यो र ऐनवमोजिम कुटन््ययालाइ दंड भयापछि कुट्याका पिरले २।४ दिन थलि निको भै आफ््नना काजकाम गर््नहिडन डुलन लाग््ययो पछिवाट अरु वेथा लागि २२ दिनभित्रमा मर्यो भन््यया निको भै काजकाम गर््न र हिडन डुलन लाग््ययाका हुनाले कुटन््ययालाइ फे रि षतवात लाग््ददैन ।

१५. कसैले लात्तले षाद्यो लट्ठि ढुंगाले हान््ययो र थला परी हिडन सके न तेसैका पिरले २२ दिनभित्रमा मर्यो भन््यया तेसैले मर््ययाको ठहर््छ । मार््न्ययाको ज््ययानको वदला ज््ययान लिनु । उठन नसकि तेसै पिरले २२ दिन नाघ््ययापछि मर्यो भन््यया ज््ययानको वदला ज््ययान हुदैन । थला पर््न्यया गरि कुट्याका वावत ६० रुपैया दंड गर््ननु । रुपैया नतिर््यया ऐनवमोजिम कै द गर््ननु ।

१६. कसैले गाला ठोक््ययो हातले कुठाउमा १ चोटदेषि अर््घ्ययालो हान््ययो तेसैका पिरले थला परि उठन सके न ७ दिनभित्रमा मर्यो भन््यया तेस््कको ज््ययान मारिंछ । ७ दिनपछि मर्यो भन््यया ज््ययानको वदला ज््ययान हुदैन । कुट्याका षत वमोजिमको जरिवाना गर््ननु । गाला ठोक््ययाका १।२ दिन थलि हिडन डुलन काम गर््न लाग््यया पछि ७ दिनभित्रमा मर्यो भन््यया पनि ज््ययानको वदला ज््ययान हुदैन । कुट् पिट््कका ऐनवमोजीम दंड गर््ननु ।

१७. [MS1 p. 286] ज््ययानमारा चोर वावति षतूकि धनिको घर छाडि भाग््ययाका वाधा कमारा कमारि कसैले यो यस््तता <sup>18</sup> काम कुरो गर््न्यया हो भनि पोल््ददा पक्रि वाधि नेल ठिगुरा चमौट गैह्र वंधनमा हालि ल््ययाका मानिस नदिमा भिरमा षाडि झ््ययाल छाना इनार साघु झोलंगा पुल <sup>19</sup> डुंगावाट फालहालि लडि वगि दौडदा ठक्कर लागि मरोस््तता पनि थुनि राष््ययाका ठाउमा जहर विष षाइ भयो सेरी इ <sup>20</sup> पासो लाइ मर्यो भन््यया पनि पक्रि ल््ययाउन््ययालाइ पनि थुंन््ययालाइ पनि केहि षतवात लाग््ददैन ।

१८. अर््ककालाइ वेहक््ममा मारौ भंन््यया मतलव गरी पक्रन््यया वाधन््ययामा काटिन््यया जातलाइ काटि मारीदिनु <sup>21</sup> । नकाटिन््यया जातलाइ दामल् गर््ननु । हाकिमका मर््जजि आज्ञा र अडा अदालत अमालवाट पक्रन पठायाकालाइ पक्रि ल््ययाउदा <sup>22</sup> अर््ककाले विचमा चोट छोडि मारेछ भन््यया मार््न्ययालाइ ऐनवमोजिमको सजाय गर््ननु । पक्रन््ययालाइ षतवात लाग््ददैन ।

१९. अडा अदालत अमालवाट र हाकिमका मर््जजि आग््ययाले जगाजमिन नगद जिनिस चौपाया कमारा कमारि लिनदिन गैह्रका कुरामा लिन पक्रन पठायाकालाइ

<sup>17</sup> MA-ED2 *kuṭīnyāle*.

<sup>18</sup> MA-ED1, -ED1 *yastoi*.

<sup>19</sup> Emend. *jholaṃgā pula*; MS1, MA-ED1, -ED2 *jholaṃgā*.

<sup>20</sup> MS1, MA-ED1 *seri*.

<sup>21</sup> MA-ED1 *mārī dinu*; MA-ED2 *kāṭi dinu*.

<sup>22</sup> MA-ED2 *pakrīlyāundā*.

प््ययादा सिपाहिले पक्रि ल््ययाउदा विचमा पक्रि ल््ययायाकालाइ कसैले कुटपिट् गरि ज््ययान मरेछ भन््यया व्राह्मणले रहेछ भन््यया ऐनवमोजिमको अंस सर््वस््व गरी दामल गर््ननु । अरु जातले भया ज््ययानको वदला ज््ययान लिनु । पक्रन््यया र पक्रि ल््ययाउन््यया प््ययादा सिपाहिलाइ षतवात लाग््ददैन । हाकिम अडा अदालत अमालले नभनि पक्रि ल््ययायाकालाइ अर््ककाले चोट छाडि मार््ययाको रहेछ भन््यया जति जनाले चोट छोड्याको छ उति जनालाइ काटिन््यया जातलाइ ज््ययानको वदला ज््ययान लिनु । नकटिन््यया जातलाइ ऐनवमोजिमको अंस सर््वस््व गरि दामल गर््ननु । पक्रन््यया पक्रि ल््ययाउन््ययाको ज््ययू जादैन । ऐनवमोजिमको अंस सर््वस््व गरी लि छाडिदिनु <sup>23</sup> ।

२०. अर््ककाको ज््ययान मारी कोहि मानिस लट्ठा सिवाना नाघि मध््ययेस भोटतरफ भागि गयो भन््यया तेस््ततालाइ मध््ययेसतिर गयाको भया रजिडंटसित भनि भोटतरफ गयाको भया भोटका मोष््यकाजिसित भनि ञाहा झिकाइ ज््ययानको वदला ज््ययान लिनु । विराना मुलुकमा गै ज््ययान मार््नविराना मुलुक््ममा गै समाउन पनि हुदैन । ुं

२१. कसैले मानिसलाइ मार््न लाग््ययो र साधुले गुहार देउ भनि गुहार माग््ददा षवर सुनि गुहार नदिन््ययाहरूमा मानिस हेरि औवल््ललाइ २५ दोयमलाइ २० सिमलाइ १५ चहारलाइ १० रुपैया दंड गर््ननु । रुपैया नतिर््यया ऐनवमोजिम कै द गर््ननु ।

२२. राजा वजिर र देस देसवाट आयाका उकिलवकिल <sup>24</sup> सनवंधि कुरा वाहेक कसैले कसैका ज््ययान मार्यो भन््यया ज््ययान मार््न्यया र ज््ययान मार््ननाको मतलव गर््न्ययाहरुलाइ ऐनवमोजिम सजाये गर््ननु । ज््ययान मार््ननाका मतलवमा नपस््ययाका ज््ययान मारिया पछि थाहा पाइ दवाउन््ययामा आफ््नना आमावावु स््ववास्नि सहोदर दाज््ययूभाइ दिदिवैह््ननि छोराछोरि सासुवुहारीले दवायामा यतिलाइ षतवात लाग््ददैन । गाउका जानकार द्वार््यया मु[p. 286] षिया थरि नाइक््यया महान््यया प्रधान मिझार ज््ययेठा वुढा गौरुुं कटुवाल््ययाहरुले दवायाको भया ऐनवमोजिमको अंस सर््वस््व गरी १ वर््ष कै द गर््ननु । अरु गाउका दुनिञां रैतिले सुनि दवायाको भया ऐनवमोजिमको अंस सर््वस््व गरी छोडिदिनु <sup>25</sup> ।

२३. कसैले कसैलाइ ज््ययान मारौ भंन््यया मतलव गर््ययाछन् <sup>26</sup> भंन आयो र उसले पोल््ययाकालाइ झिकाइ रोवकार गर््ददा मानिस मार््ननाको मतलव गर््ययाको केहि ठहरेन रिसले पोल््ययाको ठहर्यो भन््यया तेस््तता पोलाहा लोग््न्यया मानिसलाइ सर््वस््व गरी २ वर््ष कै द गर््ननु । म््ययादका रुपैया नलिनु । स््ववास्नि मानिसलाइ २० रुपैया दंड गर््ननु । नतिर््यया कै द गर््ननु ।

२४. सर््ककारका देउढिमा पहरा वस्न्या षजानामा पहरा वस्न्या हुकुमले र कमानले अरु जगामा पालो पहरा वस्न्या नगद जिनिस चौपाया मानिस््कको पहरा वस्न्या औ रमन विककट््ममा पालो वस्न्या मानिसलाइ कसैले वंदक ु तिर हतियार चलायो र घाउ लागि पालो वस्न्याको ज््ययान मरेछ भन््यया पनि मरेनछ भन््यया पनि तेस््तता हतियार चलाउन््ययालाइ काटि ज््ययान मारीदिनु । रगत मात्रै आयाको भया पनि काटि मारिदिनु <sup>27</sup> । हतियार भन््यया चलायेछ रगत भंन््यया आयाको रहेनछ भन््यया दामल गर् ।्ननु


२५. लालमोहर दस््षतले अघिदेषि वंद भयाको वाटामा जसले घुस षाई षर््षषुसामत मायामोलहिजा पछि लागि ज््ययू मार््न्यया मानिसलाइ उम््ककाउछ उसलाइ दामल गर््ननु । चोरी गरि आउन््ययालाइ उम््ककायो भन््यया जति चोरि गरी भाग््ययाको छ उम््ककाउन््ययावाट उति विगो लिनु । चोर फे ला पर्यो भन््यया तेरो विगो यसैवाट उठाइ ले <sup>28</sup> भनि सौपिदिनु । अरु कुरो गरि भाग््ययाकालाइ उम््ककाउन््ययालाइ भाग््न्ययालाइ जौन सजाय जौन विगो तिर््ननु भनि लेषियाको छ सोहि सजाय गर््ननु ।

२६. हुकुमले रह्याका चौकि पहरामा कसैले हतियार चलाइ चौकिदारलाइ काटि मिचि गयो भन््यया त््ययो काटिन््यया मानिस मरोस् तपनि घा मात्रै लागि वाचोस् तापनि चौकिमा हतियार चलाउन््ययालाइ ज््ययानका सजायमा दामल गर््नना जातलाइ <sup>29</sup> दामल गर््ननु । काटिन््यया जातलाइ काटि मारिदिनु ।

२७. हुकुमले पहरा चौकि वस््ययाका ठाउमा जान हुदैन भ ुं नि चौकिदार पहरावालले रोकदा पहरावाल र चौकिदारमाथि हतियार झिक््ययो वंदक त ु ाक््ययो भन््यया तेसलाइ पहरावालाले र चौकिदारले काटि मारिदिनु । षतवात लाग््ददैन ।

२८. लोग््न्यया मानिस कसैले कसैलाइ ज््ययान मार््ननाका मतलव गरी जहर षुवाउन भनि तयार हुन््यया र हतियार लि छिडि गौडा वथांन््ययालाइ पक्रि सावित गर््यया ज््ययान लियाको रहेनछ मतलव मात्रै गर््ययाको रहेछ भन््यया मार््ननाको मतलव गर््न्यया सवैलाइ ६<sup>30</sup> वर््ष कै द गर््ननु । हतियार चलाइ ज््ययान वाच््ययाको रहेछ भन््यया हतियार चलाउन््ययालाइ हान््ययाका घाको लमाइ रोप््ययाका घाको <sup>31</sup> गैह्रो नापि जति अंगुलको घाउ लाग््ययाको छ यक अंगुलका घा भया ७ वर््ष २ अंगुलका घा भया ८ वर््ष जति अंगुलका घाउ [MS1 p. 287] यसै रित् दिन वढाइ उति वर््ष कै द गर््ननु । मतलवमा जान््यया हतियार नचलाउन््ययालाइ ६ वर््ष मात्रै कै द गर््ननु । जहर भन््यया षुवायेछ ज््ययान भन््यया मरेनछ भन््यया १२ वर््ष कै द गर््ननु । इन््हहेरुले कै दका रुपैया डवलका हिसावले तिर््छछु भन््यया पनि तिरि जान पाउदैनन्। म््ययादका रुपैया लि छोड्या भन््यया ति छोडन््यया अदालत ठाना अमालका हाकिमलाइ उहि षतुकिका कै दवमोजिम कै द गर््ननु । सावित गर््ददा ज््ययान मर््ययाको रहेछ भन््यया मतलव दिन््यया र ज््ययान मार््न्ययालाइ ज््ययानको वदला ज््ययान मारीदिनु ।

२९. स््ववास्नि मानिस कसैले कसैलाइ ज््ययान मार््ननाको मतलव गरी जहर षुवाउन तयार हुन््यया र हतियार लि छिडि गौडा वथांन््ययालाइ पक्रि सावित गर््ददा ज््ययान मार््ययाको रहेनछ मार््ननाको मतलव मात्र गर््ययाको रहेछ भन््यया मतलव गर््न्यया स््ववास्नि मानिस सवैलाइ ३ वर््ष कै द गर््ननु । हतियार चलाइ ज््ययान वाच््ययाको रहेछ भन््यया हतियार चलाउन््ययालाइ हान््ययाका घाउको लमाइ नापि रोप््ययाका घामा गैह्रो नापि जति अंगुलको घा लाग््ययाको छ यक अंगुलको घा भया ४ वर््ष २ अंगुलको घा भया ५ वर््ष जति अंगुलको घा छ यसै रितले वढाइ उति वर््ष कै द गर््ननु । मतलवमा जान््यया हतियार नचलाउन््ययालाइ मतलवको ३ वर््ष मात्रै कै द गर््ननु । जहर भन््यया षुवायेछ ज््ययान भन््यया मरेनछ भन््यया १२ वर््ष कै द गर््ननु । इनहरुले म््ययादका रुपैया डवलका हिसावले तिर््छछु भन््यया पनि तिरि जान पाउदैनन्। म््ययादका रुपैया लि छोड्या भन््यया ति छोडन््यया अदालत ठाना अमालका

31 MA-ED1, -ED2 *ghāmā*.

<sup>28</sup> MA-ED2 *uṭhāile*.

<sup>29</sup> MS1 omits *jātalāi*.

<sup>30</sup> MA-ED2 *9*.

हाकिमलाइ उहि षतुकिका कै दवमोजिम कै द गर््ननु । सावित गर््ददा ज््ययान मार््ययाको रहेछ भन््यया मतलव दिन््यया र ज््ययान मार््न्यया स््ववास्नि मानिसलाइ दामल गर््ननु ।

३०. ज््ययान जान््यया तक््ससिर गर््न्यया षतुकिहरुको ज््ययान मार््ननु पर््ददाको ज््ययान काटिदिनु । कि फासी दिनु अरु थोक सजाय गरी ज््ययान नमार््ननु । यति २ कुरोदेषि वाहेक अरु सजाय गराइ ज््ययान मराउन््यया वजिरलाइ १०००० रुपैया जरीवाना गर््ननु ।

३१. कसैले कसैलाइ लाठा ढुंगा लट्ठि हात लात गैह्रले कु ट्पिट् गर्यो । कुट्यापछि केहि दीन थलि हिडन डुलन कामकाज गर््न लाग््ययो पछि अरु वेथा लागि २ दिन भित्रमा मर्यो भन््यया आफ््नना कालले मर््ययाको ठहर््छ । कुटन््ययालाइ ज््ययान मार््ययाको तक््ससिर लाग््ददैन । कुट् पिट््कका ऐनवमोजिम दंड सजाय गर््ननु ।

३२. कोहि मानिस भिर पोषरी इनार षोला साघु झोलंगा पुल <sup>32</sup> रुष झ््ययाल कौसि छानावाट र गैह्राषाडिमा षसि लोटि वगि डुवि लडि मर्यो अथवा आफै ले फालहालि लडि वगि डुवि मर्यो अथवा आफै ले पासो लाइ वा हतियार चलाइ हत््यया गरी मर्यो अथवा ठक्कर लागि लोटि भारि स््ममेत् लडि मर्यो अथवा आफै ले जहर विष षाइ वा अंवल लागुचिजहरु षाइ वेहोस भै मर्यो अथवा वन जादा {र} <sup>33</sup> ढुंगो लड्याको लागि मर्यो अथवा अकस््ममात केहि वेथा र घाउ जाहेर नभै मर्यो वा सुत््ययाको सुत््ययै मर्यो अर््कका कसैले हतियार चलाइ काटि मारिदियो <sup>34</sup> यस््तता गैह्र विहोराले मर््ययाका मानिसलाइ रिस [MS1 p. 288] ले अत्तो लगाई फलानाले मार्यो भनि पोलन आया भन््यया जसलाइ पोल््ययाको हो उसलाइ ल््ययाइ रोवकार गर््ददासाछि गुहाइ देषाइ सावित गर््नसके न यहि लेषियाको विहोराले कालले मर््ययाको र आफै हत््यया गरी मर््ययाको वा अरुले मार््ययाको दैवागत परि अकस््ममात् मर््ययाको ठहर्यो वा मर्यो भन््ययाका मानिस ज््ययूदो रहेछ भन््यया तेस््तता पोलाहालाइ ५ वर््ष कै द गर््ननु । म््ययादको दोवर दिया पनि लि नछाडनु । कै द गर््ननु । स््ववास्नि मानिसले यहि विहोराको कुरा पोल््ययाको रहेछ भन््यया सावित गर््नसकिन भन््यया तेस््तता पोलाहा स््ववास्नि मानिसलाइ २॥ वर््ष कै द गर््ननु । म््ययादका रुपैया दोवर दिया लि छाडिदिनु ।

३३. कसैले कसैलाइ कुटपिट गर्यो कुटिन््यया मानिस थलियाको थियेन वा थलि निको भै काममा लाग््ययाको थियो कुटियाका २२ दिन नाघ््ययापछि अरु वेथा लागि मर्यो भन््यया पछि तैले कुट्याका पिरले २२ दिनभित्रमा मर्यो भनि पोल््ययो रोवकार गर््ददा २२ दिन नाघ््ययापछि मर््ययाको ठहर्यो भन््यया अघि कुट् पिट् हुदा जहासम््म भयाको हो उति कुरो मात्र गरी पोलन््यया पोलाहालाइ १॥ वर््ष अघि भया भन््ददाको कुरो वढाइ रिसले पोलन््ययालाइ २॥ वर््ष कै द गर््ननु । म््ययादका रुपैया डवल दिया लि छाडिदिनु स््ववास्नि मानिसले भया यसैको आधि कै द गर््ननु ।

३४. दइ जन ु ा मानिस<sup>35</sup> मात्रै पर्सदे गयाका वा वन मेला गैह्रामा गयाका थिया तेस््ततैमा षोलो तर््ददाभिरका रस््तता हिडदा पौरि <sup>36</sup> षेलदा ढुंगो मुढो लागि लडि वगि सगै भयामा हवस अघिपछि भयामा हवस यक जना मर्यो सग जान््ययाले मर््न्ययाका घरमा आइ यस््तता रितले फलानु मर्यो भनि सुनायो मर््न्ययाका जहानले संका गरि यसैले दगा

34 MA-ED1 *māri diyo*; MA-ED2 *māryo*.

<sup>32</sup> MA-ED1, -ED2 *jholaṃgā*.

<sup>33</sup> The conjugation *ra* is superflux here.

<sup>35</sup> MS1 omits *mānisa*.

<sup>36</sup> MA-ED1, -ED2 *pauḍi*.

गरी हाम्रा फलानालाइ मारिदियो भनि कराउन आयो रोवकार गर््ददासाछि गुहाइवाट भयो अथवा २ जनाको इवि लाग पर््ययाको केहि देषियेन आफ््नना कालले मर््ययाको ठहर्यो भन््यया २ जना मात्रै भयाका संकामा पोल््ययाको रहेछ भन््यया घरका जहानले रहेछ भन््यया षत लाग््ददैन । अरुले रिसले पोल््ययाको रहेछ भन््यया तेस््तता पोलाहालाइ २॥ वर््ष कै द गर््ननु । म््ययादका रुपैया डवल दिया लि छाडिदिनु । अरु स््ववास्नि मानिस भया १॥ वर््ष कै द गर््ननु ।

३५. जाड रक््ससि अरक अफिम भाग धतुरो गैह्र लागु कुरो षाई अर््ककालाई गालि गर्यो कुट् पिट् गर्यो या अंगभंग गर्यो भन््यया कुट् पिट् अंगभंगका ऐनवमोजिम सजाय दंड गर््ननु । ज््ययान मारेछ भन््यया मुडिन््यया जात भया ऐनवमोजिम््कको अंस सर््वस््व गरि दामल गर््ननु । काटिन््यया जात भया ज््ययानको वदला ज््ययान काटि मारिदिनु ।

३६. कोहि वौल््हहायाका मानिसले मानिस मार्यो भन््यया त््ययो वौल््हहायाको मानिस गर््न्यया नगर््न्यया कुराको थाहा पनि पाउदो रहेनछ जात जान््यया अभक्ष गैह्र पनि षादो रहेछ निर््ववाण भै हिडदो पनि रहेछ भन््यया ऐनवमोजिम अंस सर््वस््व गरि दामल

गर््ननु । गर््न्यया [MS1 p. 289] नगर््न्यया कुराको पनि थाहा पाउदो रहेछ अभक्ष गैह्र पनि षादो पनि रहेनछ निर््ववाण भै हिडदो पनि रहेनछ भन््यया तेस््तता वौल््हहाले मानिस् मार््यया मुडिन््यया जातलाइ ऐनवमोजिमको अंस सर््वस््व गरि दामल गर््ननु । काटिन््यया जातलाइ ज््ययानको वदला ज््ययान काटि मारिदिनु । अघि अभक्ष गैह्र षायाको रहेनछ आफुले मानिस् मार््यया पछि अभक्ष गैह्र षायाको ठहर््यया भन््ययो तेस््लले ज््ययू वचाउनका लागि षायाको ठहर््छ तेस््तता मुडिन््यया <sup>37</sup> जातलाइ ऐनवमोजिमको अंस सर््वस््व गरि दामल गर््ननु । काटिन््यया जातलाइ काटि मारिदिनु ।

३७. कोहि मानिस छेरुवा आठ्या षवट्या रोगले पक्र्याको रहेछ वा जरो अतिसार आउ रगत वाथ सुल धौकि<sup>38</sup> गैह्र वेथा लाग््ययाको रहेछ लडि लोटि ठक्कर लागि वा अघिवाट अर््कका कसैले कुटपिट गरी थलियाको रहेछ भन््यया यस््तता गैह्र रोगले काम गर््न नसकन््यया गरि थलियाको रोगिलाइ कसैले कुट् पिट् गरि ज््ययान मरेछ भन््यया यकै चोट् हान््ययाको भया पनि तेसैले मार््ययाको ठहर््छ । रोगले मर््ययाको ठहर्दैन । मार््न्यया मुडिन््यया जात भया ऐनवमोजिमको अंस सर््वस््व गरि दामल गर््ननु । काटिन््यया जात भया ज््ययानको वदला ज््ययान काटि मारीदिनु । कुटिन््ययाको ज््ययान मर््ययाको रहेनछ भन््यया कुटपिट््कका ऐनवमोजिममा दोवर वढाइ दंड कै द गर््ननु ।

३८. कोहि षटिरापटिरा <sup>39</sup> भै ओछ्यानमा पर््न्यया गरी थलियाको रोगिलाइ कसैलि कुट््पपिट गरी ज््ययान मर्यो भन््यया यक चोट् मात्रै हान््ययाको भया पनि तेसैले मार््ययाको ठहर््छ । रोगले मर््ययाको ठहर्दैन । मार््न्यया मुडिन््यया जातलाइ ऐनवमोजिमको अंस सर््वस््व गरी दामल गर््ननु । काटिन््यया जातलाइ ज््ययानको वदला ज््ययान काटि मारिदिनु । कुटिन््ययाको <sup>40</sup> ज््ययान मर््ययाको रहेनछ भन््यया कुटपिट््कका ऐनवमोजिममा दोवर दंड कै द गर््ननु ।

३९. कसैलाइ अघि यकाले कुटपिट गर््ययाको रहेछ कुट्याको दर््दनिको नभै तेसै कुटिन््यया मानिसलाइ अघिल््ललाले ८ घडिदेषि पछि   <sup>41</sup> २२ दिनभित्रमा अर््कका कसैले

<sup>37</sup> MS1 *muḍimā*.

<sup>38</sup> MA-ED2 *vāki*.

<sup>39</sup> MA-ED1 *khatirā paṭirā*.

<sup>40</sup> MS1, MA-ED1 *kāṭinyāko*.

<sup>41</sup> MA-ED1 *ghaḍi-pachi-deṣi*; MA-ED2 *ghaḍi pachi deṣi*.

कुटपिट गरी कुटिन््यया मानिस मरेछ भन््यया अघिवाट कुटन््ययालाइ कुटपिट गर््ययासम््मको षत लाग््छ । कुटपिटका ऐनवमोजिमको दंड कै द गर््ननु । पछिवाट कुटन््ययालाइ ज््ययान मार््ययाको वात लाग््छ । मुडिन््यया जात भया ऐनवमोजिमको अंस सर््वस््व गरी दामल गर््ननु । काटिन््यया जातलाइ ज््ययानको वदला ज््ययान काटि

मारिदिनु । ज््ययान मर््ययाको रहेनछ भन््यया कुटपिटका ऐनवमोजिममा दोवर वढाइ दंड कै द गर््ननु ।

४०. [MS1 p. 290] फलानाले फलानालाई ज््ययान लिनाका लागि फलानु कुरो गर्यो भनि कराउन आयो र रोवकार गर््ददा पोल््ययाको मात्रै ठहर्यो भन््यया ज््ययानसंवन््धका कुरामा पोलाहाले कचहरीमा कागज लेषि सहि समेत हालिदियाको भया ज््ययानसंवधिका पोलाहाले लेष््ययाका ऐनवमोजिम गर््ननु कागज लेषि सहि हाल््ययाको रहेनछ वेडि कर््पन पनि पर््ययाको रहेनछ र यस््ककुरामा कायेल गराउन सक्तिन भन््ययो भन््यया गालि गर््ययाको ठहर््छ । तेस््ततालाइ ज््ययानसंम््ववंधको कुरो भया २० दामल हुन््यया कुरा भया १५ रुपैया दंड गर््ननु । रुपैया नतिर््यया ऐनवमोजिम् कै द गर््ननु ।

४१.<sup>42</sup> ज््ययान मार्यो भन््यया मुद्दामा अडा गौडा अदालत अमालमा पक्रि आइ कायेल भयाका मानिस इटाचपलिमा आउदा इजहार लेषन््यया देषन््यया जाँन््यया गुहाइ तेसरले लेष््ययाको जमान वेदि प्रमाण र वापतिले वक््ययाका कुराको मुष मिल््ययो भन््यया ति गुहाइ तेसर झिकाउनु पर्दैन । वापतिलाइ ऐनवमोजिम गर््ननु । गुहाइ तेसरले लेष््ययाका जमानवंदि प्रमाणको वेहोरा र वावतिले भन््ययाको कुरा मिलेन फरक पर्यो भन््यया चाहिन््यया मानिस प्रमाण झिकाइ रोवकार गरि जो ठहर््छ ऐनवमोजिम गर््ननु ।

<sup>42</sup> The MA-ED1 and MA-ED2 extend up to section 41, while the MS1 only goes up to section 40.

# **Edition of Part 3, Articles 1–4 of** *Ain* **1870**

# ज््ययानमाराको

# [1] पहरामा मिचन््ययाको

१. [MS2 p. 514] सर््ककारका देउढीमा पहरा वस्न्या षजानामा पहरा वस्न्या हुकुम््लले र कमानले अरु जगामा पालो पहरा वस्न्या नगद जिनीस चौपाया मानीसको पहरा वस्न्या औ रमन् विकट््ममा पालो वस्न्या मानीसलाइ कसैले वंदूक तिर हतियार चलायो र घाउ लागी पालो वस्न्याको ज््ययान मरेछ भन््यया पनी मरेनछ भन््यया पनी तेस््तता हतियार चलाउन््ययालाइ काटि ज््ययान मारिदिनु । रगत््ममात्रै आयाको भया पनि काटिदिनु । हतियार भन््यया चलायेछ रगत आयाको रहेनछ भन््यया दामल गर््ननु <sup>43</sup> ।

२. हुकुम््लले रह्याका चौकी पहरामा कसैले हतियार चलाइ चौकीदारलाइ काटि मिची गयो भन््यया त््ययो काटिन््यया मानीस मरोस््त<sup>44</sup> पनि घा मात्रै लागी वाचोस््तता पनी चौकीमा हतियार चलाउन््ययालाइ ज््ययानका सजायमा दामल गर््नना जातलाइ दामल गर््ननु <sup>45</sup> (र) काटिन््यया जातलाइ काटि मारिदिनु ।

३. हुकुमले पहरा चौकी वस््ययाका ठाउमा जान हुदैन भनी चौकिदार र पहरावालले रोकदा पहरावाल र चौकिदारमाथी <sup>46</sup> हतियार झिक््ययो वंदक त ु ाक््ययो भन््यया तेसलाइ पहरावालले र चौकिदारले काटि मारिदिनु षतवात लाग््ददैन ।

४. लालमोहोर दस््खतले अघिदेषी वंद भयाका वाटामा जश्ले घुस षाइ षर््षषुसामत् माया मोलाहिजा पछि लागी ज््ययू मार््न्यया मानिसलाइ उम््ककाउछ उसलाइ दामल गर््ननु । चोरि गरि आउन््ययालाइ उम््ककायो भन््यया जति चोरि गरि भाग््ययाको छ उम््ककाउन््ययावाट उति विगो लिनु । चोर फे ला पर्यो भन््यया तेरो विगो एसैवाट उठाइले भनी सौपीदिनु । अरु कुरो गरि भाग््ययाकालाइ उम््ककाउन््ययालाइ भाग््न्ययालाइ जौन सजाय जौन विगो तिर््ननु भनी लेषियाको छ सोही सजाय गर््ननु ।

[2] [MS2 p. 515] भवितव्य परि ज््ययान मार््ययामा र घा लाग््ययामा गर््न्यया ऐन

१. रातका विचमा जनावरहरु के ही भनि हान््ददा मानिसलाइ लागी मर्यो भन््यया मर््न्ययाको र मार््न्ययाको अघिपछिको ज््ययू जमीन् स््ववास्नि धनमाल चौपाया गैह्र के ही कुराको पनि इवि लाग झगडा <sup>47</sup> पर््ययाको रहेनछ भन््यया भोर ठहर््छ हांन््ययालाइ ज््ययान मार््ययाको वात लाग््ददैन । हांन््ययावाट मर््न्ययाको क्रियाषर््च ५० रुपैया दिलाइ मार््न्ययाला १ तिर््थ गराइ औवलवाट १५ दोयमवाट १० सिम््ववाट ५ चाहारवाट २ रुपैयाका दरले धर््ममाधिकारलाइ गोदान दिलाइ भोरमा ज््ययान मार््ययावावत् पतिया गराइदिनु ।

२. जंगलमा सिकार षेलदा वनको मृग हो जनावर हो भनि तहकित नगरि वंदूककांढले हान््ददा मानिसलाइ लागी मर्यो भन््यया मर््न्ययाको र मार््न्ययाको अघिपछिको इवि लाग के ही पर््ययाको रहेनछ भन््यया भवितव्य ठहर््छ । हांन््ययावाट मर््न्ययाको क्रियाषर््च

<sup>43</sup> MA-ED3 *ainabamojimko aṃśa sarvasva gari dāmala garnu*.

<sup>44</sup> MA-ED3 *marostā*.

<sup>45</sup> MA-ED3 *ainabamojimko aṃśasarvasva gari dāmala garnu*.

<sup>46</sup> MS2 *caukidātamāthī*.

<sup>47</sup> MS2 *jhaga*.

५० रुपैया दिलाइदिनु । ज््ययान मार््ययाको वात लाग््ददैन । ज््ययू मर््ययाको रहेनछ घा मात्र लागेछ भन््यया घाषर््च १० रुपैया हांन््ययावाट दिलाइदिनु । अरु वात लाग््ददैन ।

३.पसुपंछीलाइ हांदा फलफुलहरु झार््न भनि ढुंगा लट्ठि झटाराले हान््ददा मानिसलाइ लागी मर््नगयो भन््यया मर््न्ययाको र मार््न्ययाको अघिपछिको कोइ <sup>48</sup> इविलाग के ही पर््ययाको रहेनछ भन््यया भवितव्य ठहर््छ । ज््ययान मार््ययाको वात लाग््ददैन । हांन््ययावाट कृयाषर््च<sup>49</sup> ५० रुपैया दिलाइदिनु । ज््ययान मर््ययाको रहेनछ घा मात्र लागेछ भन््यया घाषर््च १० रुपैया हांन््ययावाट <sup>50</sup> दिलाइदिनु अरु वात लाग््ददैन ।

४. सहर-गाउभित्र सहर-गाउका नजीक मानीस हिडन््यया डुलन््यया जगा गल््ललि वाटामा मानिस नहटाइ <sup>51</sup> गोलिको टप् खान््यया तजवीज नराषी हांदा मानिसलाइ लागी मर्यो भन््यया मर््न्ययाको र मार््न्ययाको <sup>52</sup> अघिपछिको इविलाग के ही पर््ययाको रहेनछ भन््यया भवितव्य ठहर््छ । हांन््ययावाट कृयाषर््च<sup>53</sup> १०० रुपैया दिलाइदिनु ज््ययान मार््ययाको वात <sup>54</sup> लाग््ददैन । ज््ययान <sup>55</sup> मर््ययाको रहेनछ घा(उ) मात्र लागेछ भन््यया घाषर््च ५० रुपैया दिलाइदिनु अरु वात <sup>56</sup> लाग््ददैन ।

५. धनु कमान् वंदक पेस् ु ्तवल हान््ददा तिर काढ गोलि टप् खायो (अथवा) मार हांदा खुकुरि तरवार भांच्चि <sup>57</sup> खुस््ककि (वा) उछिट्टि मानिसलाइ लागी मर््न गयो भन््यया मर््न्ययाको र मार््न्ययाको अघिपछिको इवि लाग के ही पर््ययाको रहेनछ भन््यया भवितव्य ठहर््छ । हांन््ययावाट ५० रुपैया कृयाषर््च<sup>58</sup> दिलाइ ५ रुपैया गोदान धर््ममाधिकारलाइ दिलाइ पतिया गराइदिनु । ज््ययान मार््ययाको वात लाग््ददैन । ज््ययान मर््ययाको रहेनछ घा मात्र लागेछ भन््यया १० रुपैया घाषर््चदिलाइदिनु अरु वात लाग््ददैन ।

६. [MS2 p. 516] रुख मुढो काट््तता वञ्चरो <sup>59</sup> षुकुरि षुर््पपा चुपि (इत््ययादि) षुस््ककी मानिसलाइ लागी ज््ययान मर्यो भन््यया मर््न्ययाको र मार््न्ययाको अघिपछिको इवि लाग के ही पर््ययाको रहेनछ भन््यया भवितव्य ठहर््छ । हान््ययावाट २० रुपैया कृयाषर््च<sup>60</sup> दिलाइ ५ रुपैया गोदान धर््ममाधिकारलाइ दिलाइ पतिया गराइदिनु <sup>61</sup> ज््ययान मार््ययाको वात लाग््ददैन । ज््ययान मर््ययाको रहेनछ घा मात्र लागेछ भन््यया ५ रुपैया घाषर््चदिलाइदिनु अरु वात लाग््ददैन ।

७. काट्याको <sup>62</sup> रुष ढलि हांगा काट््तता हांगा षसि मुढो गीडदा मुढो ढली <sup>63</sup> उछिट्टि काठ घिच््ययाउदा लडाउदा काठले मिचि रुष ढालदा काठ घिच््ययाउदा षोरिया वारि <sup>64</sup>


जोतषन गर््ददा वाटो कुलो घर देवल वनाउदा काह््न्लला <sup>65</sup> फाड््ददा ढुंगा डल््ललो इट्  <sup>66</sup> काठ लडि थामन <sup>67</sup> नसकी घर््ककि<sup>68</sup> लडी षुस््ककि मानिसलाइ लागी मर्यो भन््यया र चौपायालाइ लागी मर्यो भन््यया मर््न्ययाको र मार््न्ययाको अघिपछिको इवि लाग केहि पर््ययाको रहेनछ भन््यया भवितव्य ठहर््छ । लडाउन््ययाले कृयाषर््च<sup>69</sup> दिनु पर्दैन पतिया गर््ननु पनि पर्दैन । खतवात पनि केहि लाग््ददैन ।

८. लोग््न्ययास््ववास्नि केटाकेटिहरुलाइ लि षोला जघाँर तार््ददा<sup>70</sup> तार््न्ययाका वलले नपुगी थामन नसकी हात षुस््ककि षोलामा लडी वगी डुवि मानिस मर्यो भन््यया षोलो तार््न्ययाको र मर््न्ययाको अघिपछिको इवि लाग के ही पर््ययाको रहेनछ भन््यया भवितव्य ठहर््छ । समाति तार््न्ययालाइ षतवात लाग््ददैन । क्रियाखर््चदिनु पतिया गर््ननु पनि पर्दैन ।

९. श्री ५ सर््ककारका हुकुम््लले परापुर््वदेषी वन््द भयाका गौडा वाटामा र गढि किल््ललामा थापियाका सोला फ््ययाङ् सोला फड््क्यया <sup>71</sup> दर््जन् धराप गैह्रमा मानिस चौपाया गैह्र परि मर्यो भन््यया थापन लाउन््यया थापन््यया कसैलाइ के ही षत लाग््ददैन कृयाषर््च<sup>72</sup> घाषर््च केहि दिनु पर्दैन । प्रायश्चित्त दण््ड पतिया के ही पर्दैन <sup>73</sup> ।

१०. वाघ भालु वदेल गैह्रले मानिस चौपाया अन्नवालिहरु के ही नषाइ सिकारका निमित्त सोला गैह्र कसैले नथापनु । सोला थापेछ र तेस सोलामा मानिस परि मर्यो भन््यया सोला थापन््ययालाइ ऐनवमोजिम््कको अंस सर््वस््व गरि तेस््कको दसौद लि उपर सर््वस््व मर््न्ययाका कृयाषर््च<sup>74</sup> वापत् भराइ दि ६ वर््ष कै द गर््ननु । म््ययादका रुपैया दिया लि छाडनु । ज््ययान मरेन घा मात्रै लाग््ययो भन््यया ५० रुपैया घाषर््चदिलाइ ५० रुपैया दंड गर््ननु । चौपायाहरु मात्र परेछ भन््यया तेस चौपायाको पंचकृतिमोल <sup>75</sup> विगो धनिलाइ भराइ उसै विगावमोजिम दण््ड गर््ननु ।

११. [MS2 p. 517] वाघ <sup>76</sup> भालु वदेल <sup>77</sup> गैह्रले मानिसहरु षायामा गाउ घरमा उर््ददि दि सोला फ््ययाङ् <sup>78</sup> सोला फड््क्यया दर््जन् धराप गैह्र थापेछ र <sup>79</sup> आफु विकट् वस््ययाको रहेनछ र <sup>80</sup> तेस््ममा उर््ददिदियादेषी वाहेकका अरु मानिस परि मर्यो भन््यया सोला थापन््ययावाट मर््न्ययाको कृयाखर््च २५ रुपैया भराई २५ रुपैया दंड गर््ननु । ज््ययान मरेन घा मात्र लाग््ययो भन््यया घाषर््च १२ रुपैया दिलाइदिनु दण््ड पर्दैन । उर््ददि पाउन््यया मानिस पर्यो भन््यया घाषर््च कृयाषर््च<sup>81</sup> पनि के ही भर््ननु पर्दैन दण््ड पतिया पनि पर्दैन ।


१२. वाघ <sup>82</sup> भालु वदेल <sup>83</sup> गैह्रले मानिस षायाको रहेनछ अन्नवालि र चौपायाहरु मात्र षायामा गाउ घरमा उर््ददिदि सोला गैह्र थापेछ आफुविकट् वस््ययाको रहेनछ र तेस््ममा उर्दी दियादेषि वाहेकका अरु मानिसहरु <sup>84</sup> परि मर्यो भन््यया थापन््ययावाट मर््न्ययाको कृयाषर््च ५० रुपैया भराइ ५० रुपैया दण््ड गर््ननु । ज््ययान मरेन घा मात्र लाग््ययो भन््यया घाषर््च २५ रुपैया दिलाइदिनु दण््ड पर्दैन । उर्दी पाउन््यया मानिस परि मर्यो भन््यया १२ रुपैया कृयाषर््च भराइदिनु । घा मात्र लाग््ययो भन््यया ६ रुपैया घाषर््चदिलाइदिनु दण््ड<sup>85</sup> पतिया पर्दैन ।

१३. वाघ भाल वदेल गै ु ह्रले मानिस चौपाया अन्नवालीहरु षायामा गाउघरमा उर््ददिदि सोला गैह्र थापेछ र तेस््ममा चौपायाहरु पर्यो भन््यया सोला थापन््ययालाइ षतवात लाग््ददैन ।

१४. वाघ भालु वदेल गैह्रले <sup>86</sup> मानिसहरु षायामा गाउघरमा उर््ददि के ही नदी वाटा पध््ययेरा वारि करासा गैह्रमा सोला गैह्र थापेछ आफुविकट पनि वस््ययाको रहेनछ र तेस््ममा मानिस परि मर्यो भन््यया सोला थापन््ययाको ऐनवमोजीम््कको अंस सर््वस््व गरि तेस््कको दसौद लि उपर सव <sup>87</sup> सर््वस््व मर््न्ययाको कृयाषर््च<sup>88</sup> वावत् भराइ दि ६ वर््ष कै द गर््ननु । म््ययादका रुपैया दिया लिनु । ज््ययान मरेन घा मात्र लाग््ययो भन््यया ५० रुपैया घाषर््च दिलाइ ५० रुपैया दंड गर््ननु ।

१५. वाघ भालु वदेल गैह्रले मानिसहरु षायामा गाउघरमा उर््ददि के ही नदि वाटा पध््ययेरा वारि करासा गैह्रमा सोला गैह्र थापेछ आफुविकट <sup>89</sup> वस््ययाको रहेनछ र तेस््ममा चौपायाहरु पर्यो भन््यया सोला थापन््ययालाइ खतवात लाग््ददैन ।

१६. वाघ भाल वदेल  ु <sup>90</sup> गैह्रले मानिस षायाको रहेनछ अंनवालि र चौपाया मात्र षायामा गाउघरमा उर््ददि केही नदि वाटा पध््यरयेा वारि करासा गैह्रमा सोला गैह्र थापेछ आफुविकट् पनि वस््ययाको रहेनछ र तेस््ममा मानिस परि मर्यो भन््यया सोला थापन््ययाको ऐनवमोजीम््कको अंस सर््वस््व गरि तेस््कको दसौद लि उपर सवै सर््वस््व मर््न्ययाको कृयाषर््च<sup>91</sup> वावत् भराइ दि ६ वर््ष कैद गर््ननु । म््ययादका रुपैया दिया लि छाडनु । ज््ययान मरेन घा मात्र लाग््ययो भन््यया ५० रुपैया घाषर््च भराइ ५० रुपैया दण््ड गर््ननु ।

१७. [MS2 p. 518] वाघ भालु वदेल गैह्रले मानिस षायाको रहेनछ अन्नवालि र चौपाया मात्र षायेछ <sup>92</sup> र गाउघरमा उर्दी के ही नदी वाटा पध््ययेरा वारि करासा गैह्रमा सोला गैह्र थापेछ र आफुविकट् पनि वस््ययाको रहेनछ र तेस््ममा चौपायहरु पर्यो भन््यया तेस चौपायाको पंचकृति<sup>93</sup> मोल विगो धनिलाइ भराइ उसै विगावमोजिम् दंड गर््ननु ।

१८. कृयाषर््च र घाषर््च भरायाका जम््ममाको दसौद लाग््ददैन नलिनु ।


[3] [MS2 p. 519] अन्नपानि वन््द गरि थुन््ययाको

१. कसैले सुना चादी कसम््तमन् नगद जिनीस जवाहेर {जगाहेर} <sup>94</sup> जग््गगा जमीन् चौपाया कमाराकमारि जातभात घर वारी कुलो पानी वाटो करणी लिनदीन स््ववाष््णणीका <sup>95</sup> निमित्त झगरा भै थुंनु पर््न्ययालाइ अंनपानी आफुले पनि षान नदी थुनी त््ययो मानीस मर्यो भन््यया मुडिन््यया जातलाइ ऐनवमोजीम् अंस सर््वस््व गरि दामल गर््ननु । स््ववाष््णणी <sup>96</sup> मानिसले भया सर््वस््व नगरि दामल गर््ननु । काटिन््यया जातले अंनपानी वंद गरि थुनी मार््ययाको रहेछ भन््यया ज््ययानको वदला ज््ययान काटि मारिदिनु । अंनपानि वंद गरि १ दिन १ रात मात्रै थुन््ययाको रहेछ भन््यया ५ रुपैया २ दिनको १५ रुपैया दिन ३ को ३० रुपैया दिन ४ को ६० रुपैया दिन ५ को १२० रुपैया दिन ६ को २४० रुपैया दिन ७ को ४८० रुपैया दिन ८ को ९६० रुपैया दिन ९ को १९२० रुपैया दिन १० को ३००० रुपैया दिन ११ को ४००० रुपैया दिन १२ को ५००० रुपैया दिन १३ को ६००० रुपैया दिन १४ को ७००० रुपैया दिन १५ को ८००० रुपैया दिन १६ को ९००० रुपैया दिन १७ को १०००० रुपैया दिन १८ को ११००० रुपैया दिन १९ को १२००० रुपैया दिन २० को १३००० रुपैया दिन २१ को १४००० रुपैया जरिवाना गर््ननु । स््ववाष््णणी <sup>97</sup> मानिस््लले अन्नपानि वंद गरि थुनी ज््ययू मर््ययाको रहेनछ भन््यया यस््कको आधी जरिवाना गर््ननु । जरिवानाका रुपैया नतिर््यया ऐनवमोजिम् कै द गर््ननु ।

२. कसैले सुनाचादी कसन््तमन <sup>98</sup> नगदजिनीस जवाहेर जग््गगाजमीन् चौपाया कमाराकमारी जातभात घरवारि कुलोपानी वाटो स््ववास्नी लिनदीन करनी <sup>99</sup> षतछितका निमित्त झगरा <sup>100</sup> भै थुंनु पर््न्ययालाइ थुन््ययाको रहेछ आफ््ननो हवस वा उस््कको हवस अंनपानि षान दियाको रहेछ त््ययो मानिस मर्यो भन््यया त््ययो थुंन््यया मानीसलाइ षतवात लाग््ददैन । त््ययो थुनिन््यया मानीसलाइ थुंन््यया मानिसले अंनपानी षान दियाको नषाइ आफै अतासमा <sup>101</sup> पसी मर्यो भन््यया पनी थुंन््यया मानीसलाइ षतवात लाग््ददैन ।

३. कसैले सुनाचादि कसन््तमन् नगदजिनीस जवाहेर जगाजमीन चौपाया कमारा <sup>102</sup> करनी <sup>103</sup> जातभात घरवारी कुलोपानी वाटो स््ववाष््णणी <sup>104</sup> षतछित लिनदिनका निमित्त झगरा <sup>105</sup> भै अंनपानी वंद गरि थुनी राष््ययाको रहेछ त््ययो थुनियाको मानीस मर्यो भन््यया थुंन््यया मानीस दामल हुन््यया जात <sup>106</sup> दामल हुछ क ुं ाटिन््यया जात <sup>107</sup> काटिंछ । काटिन््यया र दामल हुन््ययाका संतानले थुनी मार््न्ययाका सन््ततानसग आफ््नना कारोवार लीनदीनका रुपैया माल लिन पाउदैन । अंनपानी वंद गरी थुनियाको रहेछ थुनिन््ययाको ज््ययान


मरेन भन््यया थुंन््ययालाइ थुन््ययाका दिनदेषीको दिनगंतीको जरिवाना तिर््ययापछी आफ््नना असामीसंग हिसाववमोजीम््कको रुपैया लिन पाउछ ।

४. अडा गौडा अदालत ठाना सदर दफदर कुमारीचोक अमाल रकम््ददार ठेक <sup>108</sup> इजारादारका कचहरीमा आयाका थुनुवा झगरियाहरुलाइ १ दिन १ रात अन्न षान दियाको रहेनछ भन््यया षत लाग््ददैन । १ दिन १ रात अन्नपानी दवै थोक वंद गर ु ि षान नदी थुन््ययाको रहेछ भन््यया थुनुवाका ऐनवमोजीम् कारीींदालाइ तक््ससिर् लाग््छ ।

५. झगरिया थुनुवाहरुको आफ््नना घरको खानाको सावगास पनि रहेछ उस््कका इष्टमित्र चाकरवाकरको त््ययो झगरिया थुनुवासितको आवतजावत पनी रहेछ भन््यया तेस््तताले षानपिन पाइन भनी करायो भन््यया तेस््कको नालीस सुनिदैन । थुन््ययाको कुराको षत लाग््ददैन ।

[4] [MS2 p. 520] झगरामा हतियार झिक््ययामा र हतियारको चोट् लायामा गर््न्यया ऐन १. ज््ययान मार््ननाको मतलव नगर््ययाको अरु कुरामा झगरामा अर््ककालाइ मार््छछु भनि षुकुरि तरवार षुडा कटारि भाला र नभर््ययाको षालि वन््ददूक धनु हातले मात्र समायो म््ययान दापवाट झिक््ययाको रहेनछ भन््यया तेस््ततालाइ २॥ रुपैया दंड गर््ननु ।

२. ज््ययान मार््ननाको मतलव नगर््ययाको अरु कुराका झगरामा अरकालाइ मार््छछु भनि षुकुरि तरवार षुडा कटारि भाला म््ययान दापवाट झिके छ भन््यया र <sup>109</sup> भर््ययाको वंदूक सोझ््ययायो धनु कमान् काढ सोझ््ययायेछ भन््यया तेस््ततालाइ २० रुपैया दंड गर््ननु ।

३. इवि झगरा के ही नभयाको वाटामा हिडदा आफुले भिर््ययाका षुकुरि तरवार गैह्र हतियारको टुप््पपो म््ययान दापवाट निस््क्ययाको रहेछ र अर््ककालाइ घोचेछ काटेछ कोरेछ <sup>110</sup> र घालाग््न्यया कराउन आयो भन््यया तेस््तता होस नराषी हतियार भिर््न्ययालाइ ४ आना दंड गर््ननु । कराउन आयेन भन््यया वात लाग््ददैन ।

४. चलाचल गर््ददा षेलदा हिडदा अर््ककाले घा लाग््न्यया हतियार गैह्र लियाको भिर््ययाको थाहा नपाइ पक्रदा समाउदा तेही हतियारले काटि कोरि चोट् लाग््ययो भन््यया भवितव्य ठहर््छभिर््न्ययालाइ वात लाग््ददैन ।

५. झगरा हुदुं ा हानु भनि हतियारले हान््यया घोच््ययाको रहेनछ हतियार <sup>111</sup> षोसाषोस गर््ददा घा लागी रगत आयो भन््यया षोसन््ययालाइ घा लाग््ययाको भया दवैलु ाइ दंड हुदैन । हतियार भिर््न्ययालाइ घा लाग््ययाको <sup>112</sup> भया अघिवाट हात हालि अर््ककाको हतियार षोसन््ययालाइ ॥ आना दंड गर््ननु । कराउन आयेन भन््यया वात लाग््ददैन ।

६. ज््ययान मार््ननाको मतलव पनि नगर््ययाका मारौ भनि वाटो गौडा पनि नवथांन््यया अघिको इविलाग पनि के ही नपर््ययाको लुकीचोरिकन पनि हान््ययाको <sup>113</sup> रहेनछ जगाजमीन््कका झगरामा भयो मेलाजात्रामा भयो कारोवार लिनदिनका झगरामा भयो सुनाचादि नगदजिनिस कसन््तमन् जहावेर लत्ताकपडा चौपाया दइपु ाया गैह्रका झगरामा भयो मेलापात कुला वन् घासपात गैह्रका निमित्त र स््ववास््णणिका <sup>114</sup> निमित्त


<sup>108</sup> MA-ED3 *ṭhekadāra*.

<sup>109</sup> MS2 omits *bhanyā ra*.

<sup>110</sup> MS2 omits *korecha*.

<sup>111</sup> MS2 *ruciyāra*.

झगरा भै गालि गोफ््तता कुट् पिट् हुदुं ा रिस थामन नसकी उसै वेलामा मनिस भयाका ठाउमा दिनमा हतियार गैह्रले हानि मानिस मारेछ भन््यया हतियार चलाइ मार््न्यया नका [MS2 p. 521] टिन््यया जात््कका लोग््न्यया मानिस भया ऐनवमोजिम््कको अंस सर््वस््व गरि स््ववाष््णणि<sup>115</sup> मानिस भया सर््वस््व नगरि तेसै दामल गर््ननु । काटिन््यया जात््कका लोग््न्यया मानिस भया ज््ययानको वदला ज््ययान काटि मारिदिनु ।

७.<sup>116</sup> [MA-ED3, p. 85] ज््ययान मार््ननाको मतलव पनि नगर््ययाका मारौौं भनि वाटो गौडा पनि नवथान्न्या अघिको इवि लाग पनि केहि नपर््ययाको लुकिचोरिकन हान््ययाको पनि रहेनछ जग््गगा जमिन््कका झगडामा भयो सुनाचादि नगदजिनिस कसन््तमन् जवाहेर लत्ताकपडा चौपाया दइपु ाया गैह्र र मेलापात कुला वन् घास््पपात गैह्रका निमित्त र स््ववास्निका निमित्त झगडा भै गालि गोफ््तता कुटपिट हुदा रिस थामन नसकि उसै वेलामा मानिस् भयाका ठाउमा हतियार लाठा ढुंगा गैह्रले हानेछ र त््ययो मानिस् मरेन ज््ययू जखम् भै काम नलाग््न्यया भयो भन््यया ज््ययू जखम् गर््न्यया लोग््न्यया मानिस भया २४ वर््ष स््ववास्नि मानिस भया १२ वर््ष कै द गर््ननु । म््ययादका रुपैैंञा कति दिया पनि नलिनु । ज््ययू जखम् गराइ माग््न्ययाले कुटपिट रगत््पक्ष गालि गोफ््तता गर््ययाको भया पनि उसलाइ खतवात लाग््ददैन ।

८. [MS2 p. 521] ज््ययान मार््ननाको मतलव पनि नगर््ययाका मारौ भनि वाटो गौडा पनी नवथांन््यया अघिको इवि लाग पनि के ही नपर््ययाको लुकीचोरिकन हान््ययाको पनि रहेनछ जगाजमिन््कका झगरामा भयो सुनाचादि नगद जिनिस कसन््तमन् जवाहेर लत्ताकपडा चौपाया दइपु ाया गैह्र र मेलापात कुला वन् घासपात गैह्रका निमित्त र स््ववाष््णणिका <sup>117</sup> निमित्त झगरा भै गालिगोफ््तता कुट्-पिट् हुदा रिस थामन नसकी उसै वेलामा मानिस भयाका ठाउमा हतियार गैह्रले हानेछ र त््ययो मानिस मरेन ज््ययू जषम् पनि भयेन घा मात्र लागेछ भन््यया हतियार चलाउन््ययालाइ हान््ययाका घामा लमाइ रोप््ययाका घामा गैह्रो नापी १ अंगुलको घाभया लोग््न्यया मानिस भया १ वर््ष स््ववाष््णणि<sup>118</sup> मानिस भया ६ मैह््नना २ अंगुलको घा भया लोग््न्यया मानिस भया १ वर््ष स््ववाष््णणि<sup>119</sup> मानिस भया ९ मैह््नना ३ अंगुलको घा भया लोग््न्यया मानिस भया २ वर््ष स््ववाष््णणी <sup>120</sup> मानिस भया १ वर््ष एसै रितले जति अंगुलको घा लाग््ययाको छ अंगुल पिछे लोग््न्यया मानिस भया ६ मैह््नना स््ववाष््णणि<sup>121</sup> मानिसलाइ ३ मैह््ननाका हिसावले वढाइ १२ वर््ष नपुग््ययासम््म कै द गर््ननु । एहि रितले हिसाव गर््ददा १२ वर््षदेषी वढता कै द हुन््यया भया पनि १२ वर््ष मात्र कै द गर््ननु । १२ वर््षदेषी वढता कै द नगर््ननु । म््ययादका रुपैया कत्ति दिया पनि नलिनु । घा लाइमाग््न्ययाले कुट्-पिट् रगतपक्ष गालि गोफता गर््ययाको भया पनि उसलाइ षतवात केहि लाग््ददैन ।


[5] [MS2 p. 522] एकै जनाले मारुुं भन््यया मतलव गरि मानिस मार््ययामा सजाय गर््न्यया ऐन

९. धनमालका लालचले भयो वा अरु के ही इविले अर््ककालाइ मारौ भनि हतियार गैह्रले हानि रोपी मानिस मार्यो भन््यया मार््न्यया नकाटिन््यया जात््कका लोग््न्यया मानिस भया ऐनवमोजिम््कको अंस सर््वस््व गरि स््ववाष््णणि<sup>122</sup> मानिस भया सर््वस््व नगरि दामल गर््ननु । काटिन््यया जात््कका लोग््न्ययामानिस भया ज््ययान््कको वदला ज््ययान काटि मारिदिनु ।

१०. धनमालका लालचले भयो वा अरु के ही इविले अर््ककालाइ मारुुं भनि वंदूक काढ सस्त्र गैह्रले हानि रोपी मानिस मार्यो भन््यया मार््न्यया नकाटिन््यया जातका लोग््न्यया मानिस भया ऐनवमोजिम््कको अंस सर््वस््व गरि स््ववाष््णणि<sup>123</sup> मानिस भया सर््वस््व नगरि दामल गर््ननु । काटिन््यया जातका लोग््न्यया मानिस भया ज््ययानको वदला ज््ययान काटि मारिदिनु ।

११. धन््ममालका लालचले भयो वा अरु के ही इविले अर््ककालाइ मारुुं भनि भिर <sup>124</sup> भडखारामा <sup>125</sup> र रुष झ््ययाल कौसि छाना परषाल गैह्रवाट घच््ययाटि षसाइ लडाइ मानिस मर््यया  <sup>126</sup> मार््न्यया नकाटिन््यया जातका लोग््न्यया मानिस भया ऐनवमोजिम््कको अंस सर््वस््व गरि स््ववाष््णणि<sup>127</sup> मानिस भया सर््वस््व नगरि दामल गर््ननु । काटिन््यया जातका लोग््न्यया मानिस भया ज््ययानको वदला ज््ययान काटि मारिदिनु ।

१२. धनमालका लालचले भयो वा अरु के ही इविले अर््ककालाइ मारौ भनि लाठा ढुंगा काठ इट चपरि धातु घुग््ययात्रो झटारा गैह्रले हानि रोपी वा पत््थर मुढाले थिचि मानिस मारेछ भन््यया मार््न्यया नकाटिन््यया जातका लोग््न्यया मानिस भया ऐनवमोजिम््कको अंस सर््वस््व गरि स््ववाष््णणि<sup>128</sup> मानिस भया सर््वस््व नगरि दामल गर््ननु । काटिन््यया जातका लोग््न्यया मानिस भया ज््ययानको वदला ज््ययान काटि मारिदिनु ।

१३. धनमालका लालचले भयो वा अरु के ही इविले अर््ककालाइ मारुुं भनि घोक्रो अठ्याइ वाधि झुंडाइ पासो लाइ मुषमा वुजो <sup>129</sup> लाइ मानिस मार्यो भन््यया नकाटिन््यया जातका लोग््न्ययामानिस भया ऐनवमोजिम््कको अंस सर््वस््व गरि स््ववाष््णणि<sup>130</sup> मानिस भया सर््वस््व नगरि दामल गर््ननु । काटिन््यया जात््कका लोग््न्यया मानिस भया ज््ययान््कको वदला ज््ययान् काटि मारिदिनु ।

१४. [MS2 p. 523] धनमालका लालचले भयो वा अरु के ही इविले अर््ककालाइ मारुुं भनि षाडल््ममा हालि इट् माटो ढुंगा गैह्रले पुरेछ र त््ययो मानिस मरेछ भन््यया मारौ भनि षाडल््ममा हालि पुर््न्यया नकाटिन््यया जातका लोग््न्यया मानिस भया ऐनवमोजिम््कको अंस सर््वस््व गरि स््ववाष््णणि<sup>131</sup> मानिस भया सर््वस््व नगरि दामल गर््ननु । काटिन््यया जात््कका लोग््न्यया मानिस भया ज््ययानको वदला ज््ययान काटि मारिदिनु ।


१५. धनमालका लालचले भयो वा अरु के ही इविले <sup>132</sup> अर््ककालाइ मारुुं भनि गैह्रा <sup>133</sup> गंगा षोला जघाँर <sup>134</sup> इनार पोषरि गैह्रमा घच््ययाटि षसाइ वगाइदियो र त््ययो मानिस पानिमै डुवी वगी मर्यो अथवा आफै पाषा लागी वा अरुले झिकि पाषा लागी ३ दिनभित्र मर्यो भन््यया मारुुं भनि पानिमा षसाउन््यया नकाटिन््यया जातका लोग््न्यया मानिस भया ऐनवमोजीम््कको अंस सर््वस््व गरि स््ववाष््णणि<sup>135</sup> मानिस भया सर््वस््व नगरि दामल गर््ननु । काटिन््यया जातका लोग््न्यया मानिस भया ज््ययानको वदला ज््ययान काटि मारिदिनु । १६. धनमालका लालचले भयो वा अरु के ही इविले अर््ककालाइ मारुुं भनि आगामा घच््ययाटि षसाइ सेकाइ मानिस मार्यो भन््यया नकाटिन््यया जातका लोग््न्यया मानिस भया

ऐनवमोजिम््कको अंस सर््वस््व गरि स््ववास्नि मानिस भया सर््वस््व नगरि दामल गर््ननु । काटिन््यया जातका लोग््न्यया मानिस भया ज््ययानको वदला ज््ययान काटि मारिदिनु । १७. धनमालका लालचले भयो वा अरु के ही इविले अर््ककालाइ मारुुं भनि जहर विष

षुवाइ मानिस मार्यो भन््यया नकाटिन््यया जातका लोग््न्यया मानिस भया ऐनवमोजीम््कको अंस सर््वस््व गरि स््ववास्निमानिस भया सर््वस््व नगरि दामल गर््ननु । काटिन््यया जातका लोग््न्यया मानिस भया ज््ययानको वदला ज््ययान काटी मारिदिनु ।

[6] धेरै जनाले मारौ भंन््यया मतो सल््ललाह गरि मानिस मार््ययामा सजाय गर््न्यया ऐन १८. धनमालका लालचले भयो वा अरु के ही इविले मारौ <sup>136</sup> भनि धेरै <sup>137</sup> जना मिलि हतियार गैह्रले हानि रोपि मानिस मार्यो भन््यया जति जनाका चोटले मर््ययाको छ उति जनालाइ काटिन््यया जातका लोग््न्यया मानिस भया ऐनवमोजिम््कको अंस सर््वस््व गरि श्वाष््णणि<sup>138</sup> मानिस भया सर््वस््व नगरि तेसै दामल गर््ननु । काटिन््यया जातका लोग््न्यया मानिस भया ज््ययानको वदला ज््ययान काटि मारिदिनु ।

१९. धनमालका लालचले भयो वा अरु के ही इविले मारुुं भनि धेरै <sup>139</sup> जना मिलि वंदूक सस्त्र काढ गैह्रले रोपी मानिस मार्यो भन््यया जति जनाको चोट््लले मर््ययाको छ उति जनालाइ नकाटिन््यया जातका लोग््न्यया मानिस भया ऐनवमोजीम््कको अंस सर््वस््व गरि स््ववास्नि मानिस भया सर््वस््व नगरि दामल गर््ननु । काटिन््यया जात््कका लोग््न्यया मानिस भया ज््ययानको वदला ज््ययान काटि मारिदिनु ।

२०<sup>140</sup> [MA-ED3 p. 89] नम््वर्को । धन््ममालका लालचले भयो वा अरु केहि इविले मारौौं भनि धेरै जना मिलि भिर भडखारामा र रुख झ््ययाल कौशि छाना पर््खखाल गैह्रवाट घच््ययाटि खसाइ मानिस् मार्यो भन््यया जति जनाका हातले समाति खसायाको छ उति जनालाइ नकाटिन््यया जात््कका लोग््न्यया मानिस भया ऐनवमोजिम््कको अंश सर््वस््व गरि स््ववास्नि मानिस् भया सर््वस््व नगरि दामल गर््ननु । काटिन््यया जात््कका लोग््न्यया [मानिस] भया ज््ययान््कको वदला ज््ययान काटि मारिदिनु ।


<sup>132</sup> MS2 *bile*.

२१ नम््वर्को । धन््ममालका लालचले भयो वा अरु केहि इविले मारौौं भनि धेरै जना मिलि लाठा ढुंगा इट चपरि काठ धातु झटारा गैह्र र घुग््ययात्रो गैह्रले हानि रोपि या पत््थर मुढाले थिचि मानिस मार्यो भन््यया जति जनाले हात छोडि मार््ययाको छ उति जनालाइ नकाटिन््यया जात््कका लोग््न्यया मानिस् भया ऐनवमोजिम््कको अंश सर््वस््व गरि श्वास्नि मानिस भया सर््वस््व नगरि तेसै दामल गर््ननु । काटिन््यया जात््कका लोग््न्यया मानिस भया ज््ययानको वदला ज््ययान काटि मारिदिनु ।

२२ नम््वर्को । धन््ममाल््कका लालचले भयो वा अरु केहि इविले मारौौं भनि धेरै जना मिलि गैह्रा गंगा खोला इनार पोखरि साँघु झोलंगा तिर झाडि जंघार गैह्रमा खसाइ वगाइदियाछन् र त््ययो मानिस पानिमै डुवि वगि मर्यो अथवा आफै पाखा लागि अरुले झिकि पाखा लाइ ३ दिन भित्रमा मर्यो भन््यया जति जनाले मारौौं भनि समाति घच््ययाटि खसाइ ज््ययान मार््ययाको छ उति जनालाइ नकाटिन््यया जात््कका लोग््न्यया मानिस भया ऐनवमोजिम््कको अंश सर््वश्व गरि स््ववास्नि मानिस भया सर््वश्व नगरि दामल गर््ननु । काटिन््यया जात््कका लोग््न्यया मानिस् भया ज््ययान््कको वदला ज््ययान् काटि मारिदिनु ।

२३ [MA-ED3 p. 90] नम््वर्को । धन््ममालका लालचले भयो वा अरु केहि इविले मारौौं भनि धेरै जना मिलि घोक्रो अठ्याइ वा वाँधि वा झुण््डडाइ वा पासो लाइ वा मुखमा वुजो लाइ मानिस् मार््यया भन््यया जति जनाको हात पर््ययाको छ उति जनालाइ नकाटिन््यया जात््कका लोग््न्यया मानिस् भया ऐनवमोजिम््कको अंश सर््वस््व गरि स््ववास्नि मानिस् भया सर््वस््व नगरि दामल गर््ननु । काटिन््यया जात््कका लोग््न्यया मानिस भया ज््ययानको वदला ज््ययान काटि मारिदिनु ।

२४ नम््वर्को । धन््ममाल््कका लालचले भयो वा अरु केहि इविले मारौौं भनि धेरै जना मिलि खाडल््ममा हालि माटो इट चपरि गैह्रले पुरि मानिस् मार्यो भन््यया जति जनाले समाति खाडल््ममा हाल््ययाको पुर््ययाको छ उति जनालाइ नकाटिन््यया जात््कका लोग््न्यया मानिस भया ऐनवमोजिम््कको अंश सर््वस््व गरि स््ववास्नि मानिस भया सर््वस््व नगरि दामल गर््ननु । काटिन््यया जात््कका लोग््न्यया मानिस भया ज््ययानको वदला ज््ययान काटि मारिदिनु ।

२५ नम््वर्को । धन््ममाल््कका लालचले भयो वा अरु केहि इविले मारौौं भनि धेरै जना मिलि आगामा घच््ययाटि खसाइ सेकाइ मानिस मार्यो भन््यया आगामा सेकाउन््यया वेलामा र हालन््यया वेलामा जति जनाले समायाको छ उति जनालाइ नकाटिन््यया जात््कका लोग््न्यया मानिस भया ऐनवमोजिम््कको अंश सर््वस््व गरि स््ववास्नि मानिस भया सर््वश्व नगरि दामल गर््ननु । काटिन््यया जात््कका लोग््न्यया मानिस् भया ज््ययान््कको वदला ज््ययान काटि मारिदिनु ।

२६ नम््वर्को । धन््ममालका लालचले भयो वा अरु केहि इविले फलानालाइ मार भनि मोख््य भै वचन दियछ र उस््कका आज्ञाले अरु गै मानिस् मारेछ भन््यया मोख््य भै मार भनि वचन दिन््ययालाइ मार््न्यया ठाउमा सग गयाको भया पनि नगयाको भया पनि नकाटिन््यया जात््कका लोग््न्यया मानिस भया ऐनवमोजिम््कको अंश सर््वस््व गरि स््ववास्नि मानिस भया सर््वस््व नगरि दामल गर््ननु । काटिन््यया जात््कका लोग््न्यया मानिस भया ज््ययान््कको वदला ज््ययान् काटि मारिदिनु <sup>141</sup> ।

२७ नम््वर्को । धन््ममाल््कका लालचले भयो वा अरु केहि इविले मा [MA-ED3 p. 91] र््ननाका मतलवमा पसि मार््ननालाइ समातिदिन््यया र वाँधन््यया गरि मानिस मरायाछन् भन््यया मार््ननालाइ समातिदिन््यया वाँधिदिन््ययाहरु जति जना छन् उति जनालाइ नकाटिन््यया जात््कका लोग््न्यया मानिस भया ऐनवमोजिम््कको अंश सर््वस््व गरि स््ववास्नि मानिस भया सर््वस््व नगरि दामल गर््ननु । काटिन््यया जात््कका लोग््न्यया मानिस भया ज््ययानको वदला ज््ययान काटि मारिदिनु ।

२८ नम््वर्को । धन््ममाल््कका लालचले भयो वा अरु केहि इविले मार््ननाका मतलवमा पसि मार््ननालाइ हतियार वन््ददुक् काढ गैह्र दि मार््न्यया ठाउमा समेत् जान््यया हतियार नचलाउन््यया मोख््य भै मार भनि वचन पनि नदिन््ययालाइ मानिस मर््ययाको रहेछ भन््यया जति जनाले मार््ननालाइ भनि हतियार वन््ददुक् काढ गैह्र दि ज््ययान मरायाको छ उति जनालाइ नकाटिन््यया जात््कका लोग््न्यया मानिस भया ऐनवमोजिमको अंश सर््वस््व गरि श्वास्नि मानिस् भया सर््वस््व नगरि दामल गर््ननु । काटिन््यया जात््कका लोग््न्यया मानिस् भया ज््ययान््कको वदला ज््ययान् काटि मारिदिनु ।

२९ नम््वर्को । मार््न्यया चाहि मानिस््लले फलानालाइ मार््छछु हतियार वन््ददुक् काढ देउ भनि उस््लले भन््ददा फलानालाइ मार््छस् भन््ययालाइ हतियार भनि<sup>142</sup> दिएछ मार््न्यया ठाउमा आफु गयाको रहेनछ भन््यया पनि तिनले हतियार दि ज््ययान मरायाको ठहर््ननाले नकाटिन््यया जात््कका लोग््न्यया मानिस् भया ऐनवमोजिम््कको अंश सर््वस््व गरि श्वास्नि मानिस् भय<sup>143</sup> सर््वस््व नगरि दामल गर््ननु । काटिन््यया जात््कका लोग््न्यया मानिस भया ज््ययानको वदला ज््ययान काटि मारिदिनु ।

३०. [MS2 p. 526] धनमालका लालचले भयो वा अरु के ही इविले मार््ननाका मतलवमा पसि मार््न लाग््ददा भाग््लला उम््कला भनि घरभित्र झ््ययाल ढोका थुनिदियेछ वा भर््ययाङ् झिकिदि मानिस मरायाछन् भन््यया मार््ननाका मतलवमा पसि मार््न लाग््ददा झ््ययाल ढोका थुनिदियेछ वा भर््ययाङ् झिकिदि ज््ययान मराउन््यया जति जना छन् उति जनालाइ लोग््न्यया मानिस भया ऐनवमोजीम््कको अंस सर््वस््व गरि दामल गर््ननु । स््ववास्नि मानिस भया १२ वर््ष कै द गर््ननु । म््ययादको रुपैया <sup>144</sup> डवल दिया पनि नलिनु ।

३१. धनमालका लालचले भयो वा अरु केहि इविले मार््ननाका मतलवमा पसि मार््न लाग््ददा भाग््लला उम््कला भनि मर््न्ययाका आग <sup>145</sup> भन््यया नछुन््यया घरभित्र वाहेक वाहिर <sup>146</sup> वाटो गौडा छेकी मानिस मरायाछन् भन््यया <sup>147</sup> मार््ननाका मतलवमा पसि मार््न लाग््ददा वाटो गौडा छेकी ज््ययान मराउन््यया जति जना छन् उति जनालाइ लोग््न्यया मानिस् भया ऐनवमोजिम््कको अंस सर््वस््व गरि दामल गर््ननु । स््ववास्नि मानिस भया १२ वर््ष कै द गर््ननु । म््ययादका रुपैया डवल <sup>148</sup> दिया पनि नलिनु |

३२. धनमालका लालचले भयो वा अरु के ही इविले मार््ननाका मतलवमा पसि मार््न लाग््ययाको अरुले देषनन् भनि विकट् वस्न्या मोष््य भै मार भनि वचन पनि नदिन््यया हतियार पनि नदिन््ययालाइ भानिस मरायाछन् भन््यया विकट् वसि ज््ययान््मराउन््यया जति जना छन् उति जनालाइ लोग््न्यया मानिस भया ऐनवमोजीम््कको अंस सर््वस््व गरि १२ वर््ष स््ववास्नि मानिस भया सर््वस््व नगरि ६ वर््ष कै द गर््ननु । म््ययादका रुपैया डवल दिया पनि नलिनु ।


३३.<sup>149</sup> धनमालका लालचले भयो वा अरु के ही इविले मार््ननाका मतलवमा पसि मार््न्यया ठाउमा संग जान््यया हात नछोडन््यया नसमाउन््यया नवाधन््यया विकट पनि नवस्न्या मोष््य भै मार भनि वचन पनि नदिन््यया हेरि मात्र रहन््यया जति जना छन् उति जनालाइ लोग््न्यया मानिस भया ऐनवमोजीम््कको अंस सर््वस््व गरि १२ वर््ष स््ववास्नि मानिस भया सर््वस््व नगरि ६ वर््ष कै द गर््ननु । म््ययादका रुपैया डवल <sup>150</sup> दिया पनि नलिनु ।

३४. [MS2 p. 527] धनमालका लालचले भयो वा अरु केहि इविले मार््ननाका मतलवमा पस््ययाका मार््न्यया ठाउमा नजान््यया हतियार पनि नदिन््यया मोष््य भै मार भनि वचन पनि नदिन््यया एस््तता मतलविलाइ ज््ययान मर््ययाको रहेछ भन््यया मार््ननाको मतलवमा पस्न्या <sup>151</sup> मतलविहरु जति जना छन् उति जनालाइ लोग््न्यया मानिस भया ऐनवमोजीम््कको अंस सर््वस््व गरि ८ वर््ष स््ववास्नि मानिस भया सर््वस््व नगरि ४ वर््ष कै द गर््ननु । म््ययादका रुपैया डवल् <sup>152</sup> दिया पनि नलिनु ।

३५. धनमालका लालचले भयो वा अरु के ही इविले मारौ भनि धेरै <sup>153</sup> जनाले मतो सल््ललाह गरि जहर विष षुवाइ मानिस मारेछन् <sup>154</sup> भन््यया जहर् विष षुवाइ मानिस मार््न्यया नकाटिन््यया जातका लोग््न्यया मानिस भया ऐनवमोजिमको <sup>155</sup> अंस सर््वस््व गरि स््ववास्नि मानिस भया सर््वस््व नगरि दामल गर््ननु । काटिन््यया जातका लोग््न्यया मानिस भया ज््ययानको वदला ज््ययान काटि मारिदिनु ।

३६. धनमालका लालचले भयो वा अरु के ही इविले फलानालाइ मार््ननालाइ हो भनि जानी <sup>156</sup> जहर विष दिन््ययालाइ षुवाउन््ययाले तेही जहर विष षुवाइ मानिस मार््ययाको रहेछ भन््यया मार््ननालाइ हो भनि जानिजानि मार भनि जहर विष दिन््यया नकाटिन््यया जातका लोग््न्यया मानिस भया ऐनवमोजिम््कको अंस सर््वस््व गरि स््ववास्नि मानिस भया नगरि दामल गर््ननु । काटिन््यया जातका लोग््न्यया मानिस भया ज््ययानको वदला ज््ययान काटि <sup>157</sup> मारिदिनु ।

३७. धनमालका लालचले भयो वा अरु के ही इविले मोष््य भै फलानालाइ जहर विष षुवाइ मार भनि वचन दियेछ र उस््कका आज्ञाले जहर विष षुवाइ मानिस मार््ययाको रहेछ भन््यया मोष््य भै जहर विष षुवाइ मार भनि वचन दिन््यया नकाटिन््यया जात््कका लोग््न्यया मानिस भया ऐनवमोजीम््कको अंस सर््वस््व गरि स््ववास्नि मानिस भया सर््वस््व नगरि दामल गर््ननु । काटिन््यया जात््कका लोग््न्यया मानिस भया ज््ययानको वदला ज््ययान काटि मारिदिनु ।

३८. धनमालका लालचले भयो वा अरु के ही इविले जहर विष षुवाइ मारुुं भंन््यया मतलवमा पसि मार््न्यया ठाउमा संग जान््यया जहर विष पनि नषुवाउन््यया मोष््य भै मार भनि वचन पनि नदिन््यया जहर विष पनि नदिन््यया मतलवीहरुलाइ जहर विष षुवाइ

<sup>149</sup> Note that in the MS2 these sections are inverted, i.e, section 34 precedes the section 33 [adapted]. The MA-ED3, however, lists them according to chronological order [discarded].

<sup>150</sup> MS2 omits *ḍavala*.

<sup>151</sup> MA-ED3 *basnyā*.

<sup>152</sup> MS2 *dabala*.

<sup>153</sup> MS2 *ḍherai*.

<sup>154</sup> MA-ED3 *mārecha*.

<sup>155</sup> MS2 o*bamojīko*.

<sup>156</sup> MA-ED3 *jāni jāni*.

<sup>157</sup> MS2 *nakāṭi*.

मानिस मार््ययाको रहेछ भन््यया मार््ननाका मतलवमा पसि मार््न्यया ठाउमा स््ममेत संग जान््यया एस््तता मतलवीहरु जति जना छन् उति जनालाइ लोग््न्यया मानिस भया ऐनवमोजीम््कको अंस सर््वस््व गरि १२ वर््ष स््ववास्नि मानिस भया सर््वस््व नगरि ६ वर््ष कै द गर््ननु । म््ययादका रुपैया कत्ति<sup>158</sup> दिया पनि नलिनु ।

३९. धनमालका लालचले भयो वा अरु के ही इविले जहर विष षुवाइ मारुुं भन््यया मतलवमा मात्र पस््ययाका मार््न्यया ठाउमा पनि नजान््यया जहर विष पनि नषुवाउन््यया मोष््य भै मार भनि वचन पनि नदिन््यया जहर विष पनि नदिन््यया अरु मतलवीहरुलाइ जहर विष षुवाइ मानिस मार््ययाको रहेछ भन््यया मार््ननाका मतलवमा मात्र पस्न्या मार््न्यया ठाउमा नजान््यया एस््तता मतलविहरु जति जना छन् उति जनालाइ लोग््न्यया मानिस भया ऐनवमोजिम््कको अंस सर््वस््व गरि ८ वर््ष स््ववास्नि मानिस भया सर््वस््व नगरि ४ वर््ष कै द गर््ननु । म््ययादका रुपैया कत्ति<sup>159</sup> दिया पनि नलिनु ।

४०<sup>160</sup> [MA-ED3 p. 94] नम््वर्को । धन््ममाल््कका लालचले भयो वा अरु केहि इविले मारौौं भनि सर््पले टोकाइ मानिस् मार््यया भन््यया नकाटिन््यया जात््कका लोगन््यया मानिस भया ऐनवमोजिमको अंश सर््वस््व गरि स््ववास्नि मानिस भया सर््वस््व नगरि दामल गर््ननु । काटिन््यया जात््कका लोगन््यया मानिस भया ज््ययान््कको वदला ज््ययान् काटि मारिदिनु ।

४१ नम््वर्को । धन््ममाल््कका लालचले भयो वा अरु केहि इविले मारौौं भनि कुकुरले टोकाइ मानिस मार््यया भन््यया नकाटिन््यया जात््कका लोगन््यया मानिस भया ऐनवमोजिमको अंश सर््वस््व गरि स््ववास्नि मानिस भया नगरि दामल गर््ननु । काटिन््यया जात््कका लोगन््यया मानिस भया ज््ययान््कको वदला ज््ययान् काटि मारिदिनु ।

४२ नम््वर्को । धन््ममाल््कका लालचले भयो वा अरु केहि इविले मारौौं भनि हतियार लि लगार््ददा आफ््ननो ज््ययू वचाउनाका लागि भागि जादा त््ययो [MA-ED3 p. 95] मानिस भिड <sup>161</sup> भडखारावाट खसि मर्यो भन््यया डरले भागि जादा भिर भडखारावाट खसि ज््ययान् मर््ययाको हुनाले मारौौं भनि हतियार लि लगार््न्ययालाइ तेस््लले हतियारको चोट् लाउन नपायाको भया लोग््न्यया मानिस भया ऐनवमोजिम््कको अंश सर््वस््व गरि दामल गर््ननु । स््ववास्नि मानिस भया सर््वस््व नगरि १२ वर््ष कै द गर््ननु । म््ययादका रुपैैंञा कत्ति दिया पनि नलिनु ।

४३ नम््वर्को । धन््ममाल््कका लालचले भयो वा अरु केहि इविले मारौौं भनि हतियार लि लगार््ददा आफ््ननो ज््ययू वचाउनका लागि भागि गै खोलामा फाल््हहालेछ र त््ययो मानिस खोलामा डुवि वगि मर्यो भन््यया डरले भागि जादा खोलामा फाल््हहालदा ज््ययान् मर््ययाको हुनाले मारौौं भनि हतियार लि लगार््न्ययालाइ तेस््लले हतियारको चोट् लाउन नपायाको भया लोग््न्यया मानिस भया ऐनवमोजिमको अंश सर््वस््व गरि दामल गर््ननु । स््ववास्नि मानिस भया सर््वश्व नगरि १२ वर््ष कै द गर््ननु । म््ययादका रुपैैंञा कत्ति दिया पनि नलिनु ।

[7] एकै जनाले मारौौं भन््यया मतलव गरि ज््ययू जखम गरायामा सजाए गर््न्यया ऐन ४४ नम््वर्को । धन््ममाल््कका लालचले भयो वा अरु केहि इविले अर््ककालाइ मारौौं भनि हतियार गैह्रले हानेछ रोपेछ र त््ययो मानिस मरेन ज््ययू जखम भै काम नलाग््न्यया भयो

161 Read *bhīra*.

<sup>158</sup> MS2 *kaṭṭi*.

<sup>159</sup> MS2 *kaṭṭi*.

<sup>160</sup> The sections §§  40–49 are missing in the MS2.

भन््यया हान््यया लोग््न्यया मानिस भया ऐनवमोजिमको अंश सर््वश्व गरि दामल गर््ननु । श्वास्नि मानिस भया सर््वश्व नगरि १२ वर््ष कै द गर््ननु । म््ययादका रुपैैंञा कत्ति दिया पनि नलिनु ।

४५ नम््वर्को । धन््ममाल््कका लालचले भयो वा अरु केहि इविले अर््ककालाइ मारौौं भनि वन््ददुक् काढ सस्त्र गैह्रले हानेछ र त््ययो मानिस मरेन ज््ययू जखम भै काम नलाग््न्यया भयो भन््यया हान््यया लोग््न्ययामानिस भया ऐनवमोजिमको अंश सर््वश्व गरि दामल गर््ननु । श्वास्नि मानिस भया सर््वश्व नगरि १२ वर््ष कै द गर््ननु । म््ययादका रुपैैंञा कत्ति दिया पनि नलिनु ।

४६ [MA-ED3 p. 96] नम््वर्को । धन््ममाल््कका लालचले भयो वा अरु केहि इविले अर््ककालाइ मारौौं भनि भिर भडखारामा र रुख झ््ययाल कौसि छाना पर््खखालवाट घच््ययाटि खसाइ लडाइ दियछ र त््ययो मानिस मरेन ज््ययू जखम भै काम नलाग््न्यया भयो भन््यया लोग््न्यया मानिस भया ऐनवमोजिम््कको अंश सर््वश्व गरि दामल गर््ननु । स््ववास्नि मानिस भया सर््वश्व नगरि १२ वर््ष कै द गर््ननु । म््ययादका रुपैैंञा कत्ति दिया पनि नलिनु ।

४७ नम््वर्को । धन््ममाल््कका लालचले भयो वा अरु केहि इविले अर््ककालाइ मारौौं भनि लाठा ढुंगा काठ इट चपरि घुग््ययात्रो झटारा गैह्रले हानेछ र पत््थर मुडाले थिचेछ र त््ययो मानिस मरेन ज््ययूजखम् भै काम नलाग््न्यया भयो भन््यया मारौौं भनि हान््यया लोग््न्यया मानिस भया ऐनवमोजिमको अंश सर््व<sup>162</sup> गरि दामल गर््ननु । श्वास्नि मानिस भया सर््वस््व नगरि १२ वर््ष कै द गर््ननु । म््ययादका रुपैैंञा कत्ति दीया पनी नलिनु ।

४८ नम््वर्को । धन््ममाल््कका लालचले भयो वा अरु केहि इवीले अर््ककालाइ मारौौं भनि आगामा घच््ययाटि खसाइ सेकाइ दियो र त््ययो मानिस् मरेन ज््ययू जखम््भभै काम नलाग््न्यया भयो भन््यया मारौौं भनी आगामा हालन््यया लोग््न्यया मानिस भया ऐनवमोजीमको अंश सर््वश्व गरि दामल गर््ननु । श्वास्नी मानीस् भया सर््वस््व नगरी १२ वर््ष कै द गर््ननु । म््ययादका रुपैैंञा कत्ती दीया पनी नलिनु ।

[8] धेरै जनाले मारौौं भन््यया मतो सल््ललाह गरी ज््ययू जखम् गर््न्ययामा सजाए गर््न्यया ऐन ४९ नम््वर्को । धन््ममाल््कका लालचले भयो वा अरु के ही इवीले मारौौं भनी धेरै जना मीली हतीवार <sup>163</sup> गैह्रले हानेछन् रोपेछन् र त््ययो मानीस् मरेन ज््ययू जखम् भै काम नलाग््न्यया भयो भन््यया जती जनाका चोटले जीउ जखम् भयाको छ उती जनालाइ लोग््न्यया मानिस भया ऐनवमोजीमको अंश सर््वश्व गरी दामल गर््ननु । श्वास्नी मानीस भया १२ वर््ष कै द गर््ननु । म््ययादका रुपैञा कत्ती दीया पनि नलीनु ।

५०. [MS2 p. 530] धनमालका लालचले भयो वा अरु केहि इविले <sup>164</sup> अर््ककालाइ मारौ भनि धेरै जना मिलि वंदूक काढ सस्त्र गैह्रले हानेछ र त््ययो मानिस मरेन ज््ययू जषम् भै काम नलाग््न्यया भयो भन््यया जति जनाका चोट््लले ज््ययू जखम् <sup>165</sup> भयाको छ उति जनालाइ लोग््न्यया मानिस भया ऐनवमोजीम््कको अंस सर््वस््व गरि दामल गर््ननु । स््ववास्नि मानिस भया १२ वर््ष कै द गर््ननु । म््ययादका रुपैया कति<sup>166</sup> दिया पनि नलिनु ।

५१. धनमालका लालचले भयो वा अरु के ही इविले मारौ भनि धेरै जना मिलि भिर <sup>167</sup> भडषारामा र रुष झ््ययाल कौशि छाना पर््षषाल गैह्रवाट घच््ययाटि खसाइ दियाछन्


<sup>162</sup> Read *aṃśa sarvasva*.

<sup>163</sup> Read *hatiyāra*.

<sup>164</sup> MS2 *bile*.

<sup>165</sup> MS2 *pū jaṣam*.

र त््ययो मानिस मरेन ज््ययू जषम् <sup>168</sup> भै काम नलाग््न्यया भयो भन््यया मारौ भनि जति जनाले समाति षसाल््ययाको <sup>169</sup> छ उति जनालाइ लोग््न्यया मानिस भया ऐनवमोजीम््कको अंस सर््वस््व गरि दामल गर््ननु । स््ववास्नि मानिस भया १२ वर््ष कै द गर््ननु । म््ययादका रुपैया कत्ति दिया पनि नलिनु ।

५२. धनमालका लालचले भयो वा अरु के ही इविले मारौ भनि ढेरै जना मिलि लाठा ढुंगा इट चपरि काठ धातु झटारो गैह्र र घुग््ययात्रो <sup>170</sup> गैह्रले हानेछन् <sup>171</sup> वा पत््थर मुढाले थिचेछ र त््ययो मानिस मरेन ज््ययू जषम् भै काम नलाग््न्यया भयो भन््यया मारौ भनि जति जनाले हात छोडी ज््ययू जषम् <sup>172</sup> भयाको छ उति जनालाइ लोग््न्यया मानिस भया ऐनवमोजीम््कको अंस सर््वस््व गरि दामल गर््ननु । स््ववास्नि मानिस भया १२ वर््ष कै द गर््ननु । म््ययादका रुपैया कत्ति दिया पनि नलिनु ।

५३. धनमालका लालचले भयो वा अरु के ही इविले मारौ भनि धेरै जना मिलि आगामा घच््ययाटि षसायेछ <sup>173</sup> सेकायेछ र त््ययो मानिस मरेन गोहारि पाइ वा आफै उम््ककी ज््ययू जखम् भै काम नलाग््न्यया भयो भन््यया आगामा सेकाउन््यया वेलामा र हालन््यया वेलामा जति जनाले समायाको छ उति जनालाइ लोग््न्यया मानिस भया ऐनवमोजीम््कको अंस सर््वस््व गरि दामल गर््ननु । स््ववास्नि मानिस भया १२ वर््ष कै द गर््ननु । म््ययादका रुपैया कत्ति दिया पनि नलिनु ।

५४. धनमालका लालचले भयो वा अरु के ही इविले फलानालाइ मार भनि मोष््य <sup>174</sup> भै वचन दियेछ र उस््कका आज्ञाले गै अरुले ज््ययू जषम् गरि काम नलाग््न्यया गरायेछ ज््ययान भन््यया मरेन भन््यया मोष््य <sup>175</sup> भै मार भनि वचन दिन््यया मार््न्यया ठाउमा संग गयाको भया पनि नगयाको भया पनि लोग््न्यया मानिस भया ऐनवमोजीम््कको अंस सर््वस््व गरि दामल गर््ननु <sup>176</sup> । स््ववास्नि मानिस भया सर््वस््व नगरि १२ वर््ष कै द गर््ननु । म््ययादका रुपैया कत्ति दिया पनि नलिनु ।

५५. [MS2 p. 531] धनमालका लालचले भयो वा अरु के ही इविले मार््ननाका मतलवमा पसि मार््ननालाइ समातिदिन््यया र वांधीदिन््ययालाइ त््ययो मानिस मरेन ज््ययू जषम् भै काम नलाग््न्यया भयो भन््यया मार््ननालाइ समातिदिन््यया वांधीदिन््यया <sup>177</sup> जति जना छन् उति जनालाइ लोग््न्यया मानिस भया ऐनवमोजीम््कको अंस सर््वस््व गरि दामल गर््ननु । स््ववास्नि मानिस भया १२ वर््ष कै द गर््ननु । म््ययादका रुपैया कत्ति<sup>178</sup> दिया पनि नलिनु ।

५६. धनमालका लालचले भयो वा अरु के ही इविले मार््ननाका मतलवमा पसि मार््ननालाइ हतियार वन््ददूक काढ गैह्र दि मार््न्यया ठाउमा समेत जान््यया हतियार नचलाउन््यया मोष््य भै मार भनि वचन पनि नदिन््ययालाइ मानिस मार््ययाको रहेनछ ज््ययू जषम् भै काम नलाग््न्यया भयो भन््यया जति जनाले मार््ननालाइ भनि हतियार वंदूक काढ


दि ज््ययू जषम् गरायाको <sup>179</sup> छ उति जनालाइ लोग््न्यया मानिस भया ऐनवमोजीम््कको अंस सर््वस््व गरि दामल गर््ननु । स््ववास्नि मानिस भया १२ वर््ष कै द गर््ननु । म््ययादका रुपैया कत्ति दिया पनि नलिनु ।

५७. मार््न्यया चाही मानिसले म <sup>180</sup> फलानालाइ मार््छछु हतियार वंदूक काढ देउ भनि उस््लले भंदा फलानालाइ मार््छस् भन््यया ला इ <sup>181</sup> हतियार भनि दियेछ मार््न्यया ठाउमा आफु गयाको रहेनछ र काटिन््ययाको ज््ययान गयाको <sup>182</sup> रहेनछ ज््य जषम भै क यू ाम नलाग््न्यया भयो भन््यया तीन््लले हतियार दि ज््य जषम् गर यू ायाको ठहर््ननाले लोग््न्यया मानिस् भया ऐनवमोजीम््कको अंस सर््वस््व गरि दामल

गर््ननु । स््ववास्नि मानिस भया सर््वस््व नगरि १२ वर््ष कैद गर््ननु । म््ययादका रुपैया कत्ति दिया पनि नलिन ।ु

५८. धनमालका लालचले भयो वा अरु के ही इविले मार््ननाका मतलवमा पसि मार््न लाग््ददा भाग््लला उम््कला <sup>183</sup> भनि घरभित्र झ््ययाल कोठा थुनिदियेछ वा भर््ययाङ् झिकिदियेछन् र त््ययो मानिस मरेन ज््ययू जषम् भै काम नलाग््न्यया भयो भन््यया मार््ननाका मतलवमा पसि झ््ययाल ढोका थुनिदिन््यया भर््ययाङ् झिकिदिन््यया जति जना छन् उति जनालाइ लोग््न्यया मानिस भया ऐनवमोजीम््कको अंस सर््वस््व गरि १२ वर््ष स््ववास्नि मानिस भया सर््वस््व नगरि ६ वर््ष कै द गर््ननु । म््ययादका रुपैया कत्ति दिया पनि नलिनु ।

५९. धनमालका लालचले भयो वा अरु के ही इविले मार््ननाका मतलवमा पसि मार््न लाग््ददा भाग््लला उम््कला <sup>184</sup> भनि घरभित्र वाहेक वाहीर वाटो गौडा छेकीदिन््यया उस््कका आगमा हातले नसमाउन््ययालाइ त््ययो मानिस मरेन ज््ययू जषम् भै काम नलाग््न्यया भयो भन््यया मार््ननाका मतलवमा पसि वाटो गौडा छेकीदिन््यया जति जना छन् उति जनालाइ लोग््न्यया मानिस भया ऐनवमोजीम््कको अंस सर््वस््व गरि ९ वर््ष स््ववास्नि मानिस भया

सर््वस््व नगरि ४ ॥ वर््ष कै द गर््ननु । म््ययादका रुपैया कत्ति<sup>185</sup> दिया पनि नलिनु | ६०. [MS2 p. 532] धनमालका लालचले भयो वा अरु के ही इविले मार््ननाका मतलवमा पसि मार््न लाग््ययाको अरुले देषनन् भनि विकट् वस्न्यालाइ त््ययो मानिस मरेन ज््ययू जषम् भै काम नलाग््न्यया भयो भन््यया मार््ननाका मतलवमा पसि विकट वस्न्या जति जना छन् उति जनालाइ लोग््न्यया मानिस भया ऐनवमोजीम््कको अंस सर््वस््व गरि ९ वर््ष स््ववास्नि मानिस भया सर््वस््व नगरि ४ ॥ वर््ष कै द गर््ननु । म््ययादका रुपैया कत्ति दिया पनि नलिनु ।

६१. धनमालका लालचले भयो वा अरु के ही इविले मार््ननाका मतलवमा पसि मार््न्यया ठाउमा संग जान््यया हात नछोडन््यया नछेकन््यया विकट् पनि नवस्न्या मोष््य भै मार भनि वचन पनि नदिन््यया हेरि मात्र रहन््ययालाइ त््ययो मानिस मरेन ज््य जषम् भै यू काम नलाग््न्यया भयो भन््यया मतलवमा पसि संग गै हेरिरहन््यया जती जना छन् उति जनालाइ लोग््न्यया मानिस भया ऐनवमोजीम््कको अंस सर््वस््व गरि ९ वर््ष कैद गर् ।्ननु <sup>186</sup>


स््ववास्नि मानिस भया सर््वस््व गरि <sup>187</sup> ४ ॥ वर््ष कै द गर््ननु । म््ययादका रुपैया कत्ति दिया पनि ललिनु ।

६२. धनमालका लालचले भयो वा अरु के ही इविले मार््ननाका मतलवमा पस््ययाका मार््न्यया ठाउमा नजान््यया हतियार पनि नदिन््यया मोष््य भै मार भनि वचन पनि नदिन््यया एस््तता मतलवीलाइ त््ययो मानिस मरेन ज््ययू जषम् भै काम नलाग््न्यया भयो भन््यया मार््ननाका मतलवमा पस्न्या मतलवी जति जना छन् उति जनालाइ लोग््न्यया मानिस भया ऐनवमोजीम््कको अंस सर््वस््व गरि ६ वर््ष स््ववास्नि मानिस भया सर््वस््व नगरि ३ वर््ष कै द गर््ननु । म््ययादका रुपैया कत्ति दिया पनि नलिनु ।

६३. धनमालका लालचले भयो वा अरु के ही इविले मारु <sup>188</sup> भनि सर््पले टोकायेछ र त््ययो मानिस मरेन ज््ययू जषम् भै काम नलाग््न्यया भयो भन््यया मारौ भनि सर््पले टोकाउन््यया लोग््न्यया मानिस भया ऐनवमोजीम््कको अंस सर््वस््व गरि दामल गर््ननु । स््ववास्नि मानिस भया सर््वस््व नगरि १२ वर््ष कै द गर््ननु । म््ययादका रुपैया कत्ति दिया पनि नलिनु ।

६४. धनमालको <sup>189</sup> लालचले भयो वा अरु केहि इविले मारौ भनि कुकुरले टोकायेछ र त््ययो मानिस मरेन ज््ययू जषम् भै काम नलाग््न्यया भयो भन््यया मारौ भनी कुकुरले टोकाउन््यया लोग््न्यया मानिस भया ऐनवमोजीम््कको अंस सर््वस््व गरि दामल गर््ननु । स््ववास्नि मानिस भया सर््वस््व नगरि १२ वर््ष कै द गर््ननु । म््ययादका रुपैया कत्ति दिया पनि नलिनु ।

६५. [MS2 p. 533] धनमालका लालचले भयो वा अरु के ही इविले मारुुं <sup>190</sup> भनि हतियार लि लगार््ददा आफ््ननु<sup>191</sup> ज््ययू वचाउनाका लागी भागी जादा त््ययो मानिस भिड <sup>192</sup> भडषारावाट षसेछ र ज््ययान मरेन ज््ययू जषम् भै काम नलाग््न्यया भयो भन््यया ज््ययू वचाउनका लागी भागी जादा भिड <sup>193</sup> भरषारामा <sup>194</sup> षसि ज््ययू जषम् भयाको हुनाले मारुुं <sup>195</sup> भनि हतियार लि लगार््न्ययालाइ तेस््लले हतियारको चोट लाउन नपायाको भया लोग््न्यया मानिस् भया ऐनवमोजीम््कको अंस सर््वस््व गरि १२ वर््ष स््ववास्नि मानिस भया सर््वस््व नगरि ६ वर््ष कै द गर््ननु <sup>196</sup> । म््ययादका रुपैया कत्ति दिया पनि नलिनु ।

६६. धनमालका लालचले भयो वा अरु के ही इविले मारुुं <sup>197</sup> भनि हतियार लि लगार््ददा आफ््ननु<sup>198</sup> ज््ययू वचाउनका लागी भागी गै षोलामा फाल् हालेछ र त््ययो मानिस मरेन ज््ययू जषम् भै काम नलाग््न्यया भयो भन््यया ज््ययू वचाउनाका लागि भागी गै षोलामा फाल हाल््ददा ज््ययू जषम् भयाको हुनाले मारुुं <sup>199</sup> भनि हतियार लि लगार््न्ययालाइ तेस््लले हतियारको चोट लाउन नपायाको भया लोग््न्यया मानिस भया ऐनवमोजिम््कको अंश


सर््वस््व गरि <sup>200</sup> १२ वर््ष स््ववास्नि मानिस भया सर््वस््व नगरि <sup>201</sup> ६ वर््ष कै द गर््ननु । म््ययादका रुपैया कत्ति दिया पनि नलिनु ।

[9] एकै जनाले मारूूं भनि ज््ययू जषम् नहुन््यया कुरो गर््ययामा त््ययो मानिस दैव संजोगले वा गुहारि पाइ वाच््ययामा सजाय गर््न्यया ऐन्

६७. धनमालका लालचले भयो वा अरु केहि<sup>202</sup> इविले अर््ककालाइ मारुुं <sup>203</sup> भनि घोक्रो अठ्यायेछ वाधेछ झुडायछ पासो लायेछ मुषमा वुजो लायेछ र त््ययो मानिस मरेन दैव संजोगले वा गोहारि पाइ वाच््ययो भन््यया मारौ भनि एति विधि गर््न्यया लोग््न्यया मानिस भया ऐनवमोजीम््कको अंस सर््वस््व गरि दामल गर््ननु । स््ववास्नि मानिस भया सर््वस््व नगरि १२ वर््ष कै द गर््ननु । म््ययादका रुपैया कत्ति दिया पनि नलिनु ।

६८. धनमालका लालचले भयो वा अरु के ही इविले अर््ककालाइ मारुुं <sup>204</sup> भनि षाडल््ममा हालि इट माटो ढुंगा गैह्रले पुरेछ र त््ययो मानिस दैव संयोगले वा गुहारि पाइ वाच््ययो भन््यया मारुुं <sup>205</sup> भनि षाडल््ममा हालि पुर््न्यया लोग््न्यया मानिस भया ऐनवमोजीम््कको अंस सर््वस््व गरि दामल गर््ननु । स््ववास्नि मानिस भया सर््वस््व नगरि १२ वर््ष कै द गर््ननु । म््ययादका रुपैया कत्ति दिया पनि नलिनु ।

६९. धनमालका लालचले भयो वा अरु के ही इविले अर््ककालाइ मारुुं <sup>206</sup> भनि गैह्रा गंगा षोला जंघार इनार पोषरि गैह्रमा घच््ययाटि षसाइ वगाइदियो र त््ययो मानिस आफै उत्रि पाषा लाग््ययो <sup>207</sup> अथवा अरुले झिकि<sup>208</sup> पाषा लाइ पानि षायाको तहर््ययाउदा <sup>209</sup> ३ दिन भित्र मरेन वाच््ययो भन््यया मारौ भनि [MS2 p. 534] पानिमा षसाउन््यया लोग््न्यया मानिस भया ऐनवमोजीम््कको अंस सर््वस््व गरि दामल गर््ननु । स््ववास्नि मानिस भया सर््वस््व नगरि १२ वर््ष कै द गर््ननु । म््ययादका रुपैया कत्ति दिया पनि नलिनु ।

७०. धनमालका लालचले भयो वा अरु के ही इविले अर््ककालाइ मारुुं भनि जहर विष षुवायेछ र षान््ययाको ज््ययान मरेन वाच््ययो भन््यया मारौ भनि जहर विष षुवाउन््यया लोग््न्यया मानिस भया ऐनवमोजीम््कको अंस सर््वस््व गरि दामल गर््ननु । स््ववास्नि मानिस भया सर््वस््व नगरि १२ वर््ष कै द गर््ननु । म््ययादका रुपैया कत्ति दिया पनि नलिनु ।

[10] मारौ भनि ढेरै जनाले मतो सल््ललाह गरि ज््ययू जषम् नहुन््यया कुरो गर््ययामा त््ययो मानिस दैव संयोगले वा गुहारि पाइ वाच््ययामा सजाय गर््न्यया ऐन

७१. धनमालका लालचले भयो वा अरु के ही इविले मारौ भनि धेरै जना मिलि गैह्रा गंगा षोला जघार षाडी <sup>210</sup> इनार पोषरि साघु झोलंगा तिरमा षसाइ वगाइदियाछन्


र त््ययो मानिस आफै पाषा लाग््ययो अथवा अरुले पाषा लाइ पानि<sup>211</sup> षायाको तहर््ययाउदा ३ दिन भित्र मरेन वाच््ययो भन््यया जति जनाले मारौ भनि समाइ घच््ययाटि षसाइ वगाइदियाको छ उति जनालाइ लोग््न्यया मानिस भया ऐनवमोजीम््कको अंस सर््वस््व गरि दामल गर््ननु । स््ववास्नि मानिस भया १२ वर््ष कै द गर््ननु । म््ययादका रुपैया कत्ति दिया पनि नलिनु ।

७२. धनमालका लालचले भयो वा अरु के ही इविले मारौ भनि धेरै जना मिलि घोक्रो अठ्यायेछ वा वाध््ययेछ वा झुंडायेछ वा पासो लायेछ वा मुषमा वुजो लायेछ र त््ययो मानिस मरेन वाच््ययो भंन््यया जति जनाको हात पर््ययाको छ उति जना लाइ लोग््न्यया मानिस भया ऐनवमोजीम््कको अंस सर््वस््व गरि दामल गर््ननु । स््ववास्नि मानिस भया १२ वर््ष कै द गर््ननु । म््ययादका रुपैया कत्ति दिया पनि नलिनु ।

७३. धनमालका लालचले भयो वा अरु के ही इविले मारौ भनि धेरै जना मिलि षाडल््ममा हालि माटो इट चपरि गैह्रले पुरेछ र त््ययो मानिस मरेन आफै निस््ककि या<sup>212</sup> अरुले झिकि वाच््ययो भन््यया जति जनाले मारौ भनि षाडल््ममा हाल््ययाको छ उति जनालाइ लोग््न्यया मानिस भया ऐनवमोजीम््कको अंस सर््वस््व गरि दामल गर््ननु । स््ववास्नि मानिस भया १२ वर््ष कै द गर््ननु । म््ययादका रुपैया कत्ति दिया पनि नलिनु ।

७४. [MS2 p. 535] धनमालका लालचले भयो वा अरु के ही इविले मारौ भनि धेरै जनाले मतो सल््ललाह गरि जहर विष षुवायेछ र जहर विष षान््ययाको ज््ययान मरेन वाच््ययो भन््यया मारौ भनि जहर विष षुवाउन््यया लोग््न्यया मानिस भया ऐनवमोजीम््कको अंस सर््वस््व गरी दामल गर््ननु । स््ववास्नि मानिस भया सर््वस््व नगरि १२ वर््ष कै द गर््ननु । म््ययादका रूपैया कत्ति दिया पनि नलिनु ।

७५. धनमालका लालचले भयो वा अरू के ही इविले फलानालाइ मार््ननालाइ हो भनि जानि जानि मार भनि जहर विष दिन््ययालाइ षुवाउन््ययाले तेस््ललेदियाको जहर विष लगी खुवायेछ र षान््ययाको ज््ययान मरेन वाच््ययो भन््यया मार््ननालाइ <sup>213</sup> हो भनि जानिजानि मार भनि जहर विष दिन््यया लोग््न्यया मानिस भया ऐनवमोजीम््कको अंस सर््वस््व गरि दामल गर््ननु । स््ववास्नि मानिस भया सर््वस््व नगरि <sup>214</sup> १२ वर््ष कै द गर््ननु । म््ययादका रूपैया कत्ति दिया पनि नलिनु ।

७६. धनमालका लालचले भयो वा अरु के ही इविले मोष््य <sup>215</sup> भै फलानालाइ जहर विष खुवाइ मारौ <sup>216</sup> भनि वचन दियेछ र उस््कका अज्ञाले जहर विष षुवायेछ षान््ययाको ज््ययान मरेन वाच््ययो भन््यया जहर विष षुवाइ मार भनि वचन दिन््यया लोग््न्यया मनिस भया ऐनवमोजीम््कको अंश <sup>217</sup> सर््वस््व गरि दामल गर््ननु <sup>218</sup> । स््ववास्नि मानिस भया सर््वस््व नगरि १२ वर््ष कै द गर््ननु । म््ययादका रुपैया कत्ति दिया पनि नलिनु ।

७७. धनमालका लालचले भयो वा अरु के ही इविले जहर विष षुवाइ मारौ भंन््यया मतलवमा पसि मार््न्यया ठाउमा संग जान््यया जहर््वविष पनि नषुवाउन््यया मोष््य भै मार


<sup>211</sup> MS2 *pāṃni*.

भनि वचन पनि नदिन््यया जहर विष पनि नदिन््यया अरु <sup>219</sup> मतलवीहरुलाइ जहर विष षुवायेछ षान््ययाको ज््ययान भन््यया मरेन वाच््ययो भन््यया मार््ननाका मतलवमा पसि मार््न्यया ठाउमा स््ममेत जान््यया मतलवी लोग््न्यया मानिस भया ऐनवमोजीम््कको अंस सर््वस््व गरि ६ वर््ष स््ववास्नि मानिस भया सर््वस््व नगरि ३ वर््ष कै द गर््ननु । म््ययादका रुपैया कत्ति दिया पनि नलिनु ।

७८. धनमालका लालचले भयो वा अरु के ही इविले जहर विष षुवाइ मारौ भंन््यया मतलवमा मात्र पस््ययाका मार््न्यया ठाउमा नगयाका जहर विष पनि नषुवाउन््यया मोष््य भै मार भनि वचन पनि नदिन््यया जहर विष पनि नदिया अरु मतलवीहरुलाइ जहर विष षुवायेछ षान््ययाको ज््ययान मरेन वाच््ययो भन््यया मार््ननाका मतलवमा पस््ययाका मार््न्यया ठाउमा नजान््यया एस््तता मतलवी लोग््न्यया मानिस भया ऐनवमोजीम््कको अंस सर््वस््व गरि ४ वर््ष स््ववास्नि मानिस भया सर््वस््व नगरि २ वर््ष कै द गर््ननु । म््ययादका रूपैया कत्ति दिया पनि नलिनु ।

[11] [MS2 p. 536] एकै जनाले मारौ भंन््यया मतलव गरि घाउ लायामा सजाय गर््न्यया ऐन् ७९. धनमालका लालचले भयो वा अरु के ही इविले अर््ककालाइ मारूूं <sup>220</sup> भनि हतियार गैह्रले <sup>221</sup> हानेछ रोपेछ र त््ययो मानिस मरेन ज््ययू जषम् पनि भयेन घाउ मात्र लागेछ भन््यया घाउ <sup>222</sup> लाग््ययाको ठुलो हवस् सानु हवस् हांन््यया लोग््न्यया मानिस भया ऐनवमोजीम््कको अंस सर््वस््व गरि १२ वर््ष स््ववास्नि मानिस भया सर््वस््व नगरि ६ वर््ष कै द गर््ननु । म््ययादका रुपैया कत्ति दिया पनि

नलिनु ।

८०. धनमालका लालचले भयो वा अरु के ही इविले अर््ककालाइ मारूूं <sup>223</sup> भनि वंदूक काढ सस्त्र गैह्रले हानि घा लायेछ ज््ययान मर््ययाको र ज््ययू जखम् भयाको रहेनछ <sup>224</sup> भन््यया घा लायाको <sup>225</sup> थुलो <sup>226</sup> हवस् सानु हवस् हान््यया लोग््न्यया मानिस भया ऐनवमोजीम््कको अंस सर््वस््व गरि १२ वर््ष स््ववास्नि मानिस भया सर््वस््व नगरि ६ वर््ष कै द गर््ननु । म््ययादका रुपैया कत्ति दिया पनि

नलिनु ।

८१. धनमालका लालचले भयो वा अरू के ही इविले अर््ककालाइ मारौ भनि भिर भडखारामा <sup>227</sup> र रुष झ््ययाल कौशि छाना परषाल <sup>228</sup> गैह्रवाट घच््ययाटि षसाइ लडाइदियेछ र त््ययो मानिस मरेन ज््ययू जखम पनि भयाको रहेनछ घा मात्र लागेछ भन््यया घा लाग््ययाको थुलो <sup>229</sup> हवस् सानु हवस्  <sup>230</sup> लोग््न्यया मानिस भया ऐनवमोजीम््कको


अंस सर््वस््व गरि १२ वर््ष स््ववास्नि मानिस भया सर््वस््व नगरि ६ वर््ष कै द गर््ननु । म््ययादका रुपैया कत्ति दिया पनि नलिनु ।

८२. धनमालका लालचले वा अरू के ही इविले अर््ककालाइ मारौ भनि लाठा ढुगा काठ इट चपरि घुग््ययात्रो झटारा गैह्रले हानेछ पत््थर मुढाले थिचेछ र त््ययो मानिस मरेन ज््ययू जषम् पनि भयाको रहेनछ घाउ मात्र लाग््ययो भन््यया घा लाग््ययाको ठुलो हवस् सानु हवस्  <sup>231</sup> मारौ भनि हांन््यया लोग््न्यया मानिस भया ऐनवमोजीम््कको अंश <sup>232</sup> सर््वस््व गरि १२ वर््ष स््ववास्नि मानिस भया सर््वस््व नगरि ६ वर््ष कै द गर््ननु । म््ययादका रुपैया कत्ति दिया पनि नलिनु ।

८३. धनमालका लालचले भयो वा अरू के ही इविले अर््ककालाइ मारौ भनि आगामा हालेछ सेकायछ र त््ययो मानिस मरेन ज््ययू जषम् पनि<sup>233</sup> भयाको रहेनछ आगाले पोलि घा मात्र लागी वाच््ययो भन््यया घा लाग््ययाको ठुलो हवस् सानु हवस् मारूूं <sup>234</sup> भनि आगामा हालन््यया सेकाउन््यया लोग््न्यया मानिस भया ऐनवमोजीम््कको अंस सर््वस््व गरि १२ वर््ष स््ववास्नि मानिस भया सर््वस््व नगरि ६ वर््ष कै द गर््ननु । म््ययादका रूपैया कत्ति दिया पनि नलिनु ।

[12] [MS2 p. 537] धेरै जनाले मारौ भंन््यया मतो सल््ललाह गरि घाउ लाया सजाय गर््न्यया ऐन

८४. धनमालका लालचले भयो वा अरू केहि इविले मारौ भनि धेरै जना मीलि हतियार गैह्रले <sup>235</sup> हानेछन् रोपेछन् र त््ययो मानीस् मरेन ज््ययू जषम पनि भयेन घा मात्र लागी वाच््ययो भन््यया जति जनाले मारौौं <sup>236</sup> भनि हतियारको चोट् छोड्याको छ उति जनालाइ लोग््न्यया मानिस भया ऐनवमोजीमको अंस सर््वस््व गरी १२ वर््ष स््ववास्नि मानिस<sup>237</sup> भया सर््वस््व नगरि ६ वर््ष कै द गर््ननु । म््ययादका रूपैया कत्ति दिया पनि नलिनु ।

८५. धनमालका लालचले भयो वा अरु केहि इवीले अर््ककालाइ मारौ भनि धेरै जना मिली वंदक क ु ाढ सस्त्र गैह्रले हानेछ र त््ययो मानिस मरेन ज््ययू जषम पनि भयन <sup>238</sup> घा मात्र लागी वाच््ययो भन््यया जति जनाले

मारौ भनि चोट् छोड्याको छ उति जनालाइ लोग््न्यया मानिस भया ऐनवमोजीम््कको अंस सर््वस््व गरि १२ वर््ष स््ववास्नि मानिस भया सर््वस््व नगरि ६ वर््ष कै द गर््ननु । म््ययादका रूपैया कत्ति दिया पनि नलिनु ।

८६. धनमालका लालचले भयो वा अरु के ही इविले मारौ भनि धेरै जना मिलि भिर भडखारा <sup>239</sup> रुष झ््ययाल कौशि छाना परषाल <sup>240</sup> गैह्रवाट घच््ययाटि षसाइदियाछन् र त््ययो मानिस मरेन ज््य जषम् प यू नि भयेन घा मात्र लागी वाच््ययो भन््यया जति जनाले

231 MS2 omits *sānu havas*.


<sup>232</sup> MS2 *asa*.

मारौ भनि भिर भडखारा <sup>241</sup> रुष झ््ययाल कौशि छाना परषाल <sup>242</sup> गैह्रवाट षसाल््ययाको छ उति जनालाइ लोग््न्यया मानिस भया ऐनवमोजीम््कको अंस सर््वस््व गरि १२ वर््ष स््ववास्नि मानिस भया सर््वस््व नगरि ६ वर््ष कै द गर््ननु । म््ययादका रुपैया कत्ति दिया पनि नलिन ।ु

८७. धनमालका लालचले भयो वा अरु के ही इविले मारौ भनि धेरै जना मिलि लाठा ढुंगा इट चपरि काठ धातु झटारो गैह्र र घुग््ययात्रो <sup>243</sup> गैह्रले हानि वा पत््थर मुढाले थिचेछ र त््ययो मानिस मरेन ज््ययू जषम् पनि भयेन घा मात्र लागी वाच््ययो भन््यया मारौ भनि जति जनाले हान््ययाको थिच््ययाको छ उति जनालाइ लोग््न्यया मानिस भया ऐनवमोजीम््कको अंस सर््वस््व गरि १२ वर््ष स््ववास्नि मानिस भया सर््वस््व नगरि ६ वर््ष कै द गर््ननु । म््ययादका रूपैया कत्ति दिया पनि नलिनु ।

८८. धनमालका लालचले भयो वा अरु के ही इवीले मारौ भनि धेरै जना मिलि घच््ययाटि षसाइ आगामा हालेछन् सेकायछन् <sup>244</sup> र त््ययो मानिस मरेन ज््ययू जषम् पनि भयेन गुहारि पाइ वा आफै उम््ककी घा मात्र लागी वाच््ययो भन््यया आगामा सेकाउन््यया वेलामा र हालन््यया वेलामा जति जनाले समायाको छ उति जनालाइ लोग््न्यया मानिस भया ऐनवमोजीम््कको अंस सर््वस््व गरि १२ वर््ष स््ववास्नि मानिस भया सर््वस््व नगरि ६ वर््ष कै द गर््ननु । म््ययादका रूपैया कत्ति दिया पनि नलिनु ।

८९. धनमालका लालचले भयो वा अरु के ही इविले फलानालाइ मार भनि मोष््य भै वचन दियेछ र उस््कका आज्ञाले गै अरुले हान््ददा त््ययो मानिस मरेन ज््ययू जषम् पनि भयेन गोहारि पाइ वा आफै उम््ककी घा मात्र लागि वाच््ययो भन््यया मोष््य भै मार भनि वचन दिन््ययालाइ मार््न्यया ठाउमा संग गयाको भया पनि नगयाको भया पनि लोग््न्यया मानिस भया ऐनवमोजीम््कको अंस सर््वस््व गरि १२ वर््ष स््ववास्नि मानिस भया सर््वस््व नगरि ६ वर््ष कै द गर््ननु । म््ययादका रूपैया कत्ति दिया पनि नलिनु ।

९०. [MS2 p. 538] धनमालका लालचले भयो वा अरु के ही इविले मार््ननाको मतलवमा पसि मार््ननालाइ समाति दिन््यया र वाधीदिन््ययालाइ त््ययो मानिस मरेन ज््ययू जषम् पनि भयेन गोहारि पाइ वा आफै उम््ककी घा मात्र लागी वाच््ययो भन््यया मार््ननालाइ समाति दिन््यया वाधन््ययाहरु जति जना छन् उति जनालाइ लोग््न्यया मानिस भया ऐनवमोजीम््कको अंस सर््वस््व गरि १२ वर््ष स््ववास्नि मानिस भया सर््वस््व नगरि ६ वर््ष कै द गर््ननु । म््ययादका रूपैया कत्ति दिया पनि नलिनु ।

९१. धनमालका लालचले भयो वा अरु केहि इविले मार््ननाका मतलवमा पसि मार््ननालाइ हतियार वंदूक काढ गैह्र दि मार््न्यया ठाउमा स््ममेत जान््यया हतियार नचलाउन््यया मोष््य भै मार भनि वचन पनि नदिन््ययालाइ मानीस मार््ययाको र ज््य जषम् भ यू याको रहेनछ घा मात्र लाग््ययो भन््यया जति जनाले मार््ननालाइ भनि हतियार वंदूक काढ दियाको छ उति जनालाइ लोग््न्यया मानिस भया ऐनवमोजीम््कको अंस सर््वस््व गरि १२ वर््ष स््ववास्नि मानिस भया सर््वस््व नगरि ६ वर््ष कै द गर््ननु । म््ययादका रूपैया कत्ति दिया पनि नलिनु ।

९२. मार््न्यया चाहि मानिसले फलानालाइ मार््छछु हतियार वंदूक काढ देउ भनि उसले भंदा फलानालाइ मार््छस् भन््ययालाइ <sup>245</sup> हतियार भनि<sup>246</sup> दियेछ मार््न्यया ठाउमा


<sup>241</sup> MS2 *bhiḍa bhaḍaṣārā*.

<sup>242</sup> MA-ED3 *parkhāla*.

<sup>243</sup> MA-ED3 *ghugyāco*.

आफु गयाको रहेनछ र काटिन््ययाको ज््ययान मरेन ज््ययू जषम् पनि भयेन घा मात्र लागी वाच््ययो भन््यया तिन््लले मार््ननालाइ हतियार दि घा लाग््ययाको ठहर््ननाले लोग््न्यया मानिस भया ऐनवमोजीम््कको अंस सर््वस््व गरि १२ वर््ष स््ववास्नि मानिस भया सर््वस््व नगरि ६ वर््ष कै द गर््ननु । म््ययादका रूपैया कत्ति दिया पनि नलिनु ।

९३. धनमालका लालचले भयो वा अरु के ही इवीले मार््ननाका मतलवमा पसि मार््न लाग््ददा भाग््लला उम््कला भनि घरभित्र झ््ययाल ढोका थुनिदिन््यया भर््ययाङ् झिकिदिन््ययालाइ मानीस मर््ययाको र ज््ययू जषम् भयाको रहेनछ घा मात्र लाग््ययो भन््यया जति जनाले मार््न लाग््ददा झ््ययाल ढोका थुनिदियाका भर््ययाङ् <sup>247</sup> झिकीदियाको छ उति जनालाइ लोग््न्यया मानिस भया ऐनवमोजीम््कको अंस सर््वस््व गरि ९ वर््ष स््ववास्नि मानिस भया सर््वस््व नगरि ४ ॥ वर््ष कै द गर््ननु । म््ययादका रूपैया कत्ति दिया पनि नलिनु ।

९४. [MS2 p. 539] धनमालका लालचले भयो वा अरु के ही इविले मार््ननाका मतलवमा पसि मार््न लाग््ददा भागला <sup>248</sup> उम््कला भनि घरभित्र वाहेक <sup>249</sup> वाहिर वाटो गौडा छेकीदिन््यया उस््कका आगमा हातले नसमाउन््ययालाइ मानिस मर््ययाको <sup>250</sup> र ज््ययू जषम् भयाको रहेनछ घा मात्र लाग््ययो भन््यया मार््ननाका मतलवमा पसि वाटो गौडा छेकिदिन््यया जति जना छन् उति जनालाइ लोग््न्यया मानिस भया ऐनवमोजीम््कको अंस सर््वस््व गरि ६ वर््ष स््ववास्नि मानिस भया सर््वस््व नगरि ३ वर््ष कै द गर््ननु । म््ययादका रूपैया कत्ति दिया पनि नलिनु ।

९५. धनमालका लालचले भयो वा अरु के ही इविले मार््ननाका मतलवमा पसि मार््न लाग््ययाको अरुले देषनन् भनि विकट वस्न्यालाइ त््ययो मानिस मर््ययाको र ज््ययू जषम् भयाको रहेनछ घा मात्र लागेछ भन््यया मार््ननाका मतलवमा पसि विकट् वस्न्या जति जना छन् उति जनालाइ लोग््न्यया मानिस भया ऐनवमोजीम््कको अंस सर््वस््व गरि ६ वर््ष स््ववास्नि मानिस भया सर््वस््व<sup>251</sup> नगरि ३ वर््ष कै द गर््ननु । म््ययादका रूपैया कत्ति दिया पनि नलिनु ।

९६. धनमालका लालचले भयो वा अरु के ही इविले मार््ननाका मतलवमा पसि मार््न्यया ठाउमा संग जान््यया हात नछोडन््यया नछेकन््यया विकट् पनि नवस्न्या मोष््य भै मार भनि वचन पनि नदिन््यया हेरि मात्र रहन््ययालाइ त््ययो मानिस मर््ययाको र ज््य जषम् भ यू याको रहेनछ घा मात्र लागेछ <sup>252</sup> भन््यया मार््ननाका मतलवमा पसि संग गै हेरि रहन््यया जति जना छन् उति जनालाइ लोग््न्यया मानिस भया ऐनवमोजीम््कको अंस सर््वस््व गरि ६ वर््ष स््ववास्नि मानिस भया सर््वस््व नगरि ३ वर््ष कै द गर््ननु । म््ययादका रूपैया कत्ति दिया पनि नलिन ।ु

९७. धनमालका लालचले भयो वा अरु के ही इविले मार््ननाका मतलवमा पस््ययाका मार््न्यया ठाउमा नजान््यया हतियार पनी नदिन््यया मोष््य भै मार भनि वचन पनी नदिन््यया एस््तता मतलवीहरुलाइ मानिस मर््ययाको र ज््ययू जषम् भयाको रहेनछ घा मात्र लागेछ भन््यया मार््ननाका मतलवमा पस्न्या मतलवि जति जना छन् उति जनालाइ लोग््न्यया मानिस भया ऐनवमोजीम््कको अंस सर््वस््व गरि ४ वर््ष स््ववास्नि मानिस भया सर््वस््व नगरि २ वर््ष कै द गर््ननु । म््ययादका रूपैया कत्ति दिया पनि नलिनु ।


<sup>247</sup> MS2 *bhaṃryā*.

<sup>248</sup> MS2 *bhāvalā*.

९८. धनमालका लालचले भयो वा अरू के ही इविले मारौ भनि सर््प हालिदियेछ र त््ययो मानिसलाइ सर््पले टोकी घा मात्र लागेछ ज््ययान् मर््ययाको र ज््ययू जषम् भयाको रहेनछ भन््यया मारौ भनि सर््प लगी हालिदिन््यया लोग््न्यया मानिस भया ऐनवमोजीम््कको अंस सर््वस््व गरी १२ वर््ष स््ववास्नि मानिस भया सर््वस््व नगरि ६ वर््ष कै द गर््ननु । म््ययादका रूपैया कत्ति दिया पनि नलिनु ।

९९. [MS2 p. 540] धनमालका लालचले भयो वा अरू के ही इविले मारौ भनि कुकुर लगाइ टोकायेछ र त््ययो मानिस मरेन ज््ययू जषम् पनि भयेन घा मात्र लागी वाच््ययो भन््यया मारौ भनि कुकुरले टोकाउन््यया लोग््न्यया मानिस भया ऐनवमोजीम््कको अंस सर््वस््व गरि १२ वर््ष स््ववास्नि मानिस भया सर््वस््व नगरि ६ वर््ष कै द गर््ननु । म््ययादका रूपैया कत्ति दिया पनि नलिनु ।

१००. धनमालका लालचले भयो वा अरू के ही इविले मारौ भनि<sup>253</sup> हतियार लि लगार््ददा आफु <sup>254</sup> ज््ययू वचाउनाका लागी भागि<sup>255</sup> जादा त््ययो मानिस भिर भडखारावाट षसेछ र त््ययो मानिस मरेन ज््ययू जषम् पनि भयेन घा मात्र लाग््ययो भन््यया ज््ययू वचाउनाका लागी भागी जादा भिर भडषारामा षसि घा लाग््ययाको हुनाले मारौ भनि हतियार लि लगार््न्ययालाइ हतियारको चोट् लाउन नपायाको भया लोग््न्यया मानिस भया ऐनवमोजीम््कको अंस सर््वस््व गरि ६ वर््ष स््ववास्नि मानिस भया सर््वस््व नगरि ३ वर््ष कै द गर््ननु । म््ययादका रूपैया कत्ति दिया पनि नलिनु ।

१०१. धनमालका लालचले भयो <sup>256</sup> वा अरू केही इविले मारौ भनि हतियार लि लगार््ददा आफु <sup>257</sup> ज््य वचयू ाउनका लागी भागि गै षोलामा फाल हालेछ र त््ययो मानिस मरेन ज््य जषम् प यु नि भयेन घा मात्र लाग््ययो भन््यया ज््य वच यू ाउनाका लागी भागी गै षोलामा फाल हाल््ददा घा लाग््ययाको हुनाले मारौ भनि हतियार लि लगार््न्ययालाइ तेस््लले हतियारको चोट् लाउन नपायाको भया लोग््न्यया मानिस भया ऐनवमोजीम््कको अंस सर््वस््व गरि ६ वर््ष स््ववास्नि मानिस भया ३ वर््ष कैद गर््ननु । म््ययादका रूपैया कत्ति दिया पनि नलिनु ।

[13] एकै जनाले मारौ भंन््यया मतलव गलि<sup>258</sup> हान््ययाको उसलाइ लागी घाउ नलाग््ययामा र हान््ययाको विरि <sup>259</sup> उस््ललाइ नलाग््ययामा सजाय गर््न्यया ऐन

१०२. धनमालका लालचले भयो वा अरु के ही इविले अर््ककालाइ मारौ भनि वंदूक काढ सस्त्र गैह्रले हाल््ददा <sup>260</sup> रोपता उस््ललाइ लागी घा लागेनछ अथवा हान््ययाको विरि वा भागि छलि उस््ललाइ लागेनछ भन््यया मारौ भनि हान््यया रोपन््यया लोग््न्यया मानिस भया ऐनवमोजीम््कको अंस सर््वस््व गरि ६ वर््ष स््ववास्नि मानिस भया सर््वस््व नगरि ३ वर््ष कै द गर््ननु । म््ययादका रूपैया कत्ति दिया पनि नलिनु ।

१०३. धनमालका लालचले भयो वा अरु के ही इविले अर््ककालाइ मारौ भनि वंदूक काढ सस्त्र गैह्रले हानेछ र उस््ललाइ लागी घा लागेनछ अथवा हान््ययाको विरि वा भागी


छलि उस््ललाइ लागेनछ भन््यया मारौ भनी हान््यया लोग््न्यया मानिस भया ऐनवमोजीम््कको अंस सर््वस््व गरि ६ वर््ष स््ववास्नि मानिस भया सर््वस््व नगरि ३ वर््ष कै द गर््ननु । म््ययादका रूपैया कत्ति दिया पनि नलिनु । <sup>261</sup>

१०४. [MS2 p. 541] धनमालका लालचले भयो वा अरू के ही इवीले अर््ककालाइ मारौ भनि भिर भडखारामा र रूष झ््ययाल कौशी छाना परषाल <sup>262</sup> गैह्रवाट घच््ययाटि षसाइ लडाइ दियेछ र ज््ययान पनि मरेन ज््ययू जषम् पनि भयेन घाउ पनि लागेन वाच््ययो भन््यया मारौ भनि घच््ययाटि षसाउन््यया लडाउन््यया लोग््न्यया मानिस भया ऐनवमोजीम््कको अंस सर््वस््व गरि ६ वर््ष स््ववास्नि मानिस भया सर््वस््व नगरि ३ वर््ष कै द गर््ननु । म््ययादका रूपैया कत्ति दिया पनि नलिनु ।

१०५. धनमालका लालचले भयो वा अरू के ही इविले अर््ककालाइ मारौ भनी लाठा ढुंगा काठ <sup>263</sup> इट चपरि घुग््ययात्रो <sup>264</sup> झटारा गैह्रले हान््ययाको पत््थर मुढाले थीच््ययाको उसलाइ लागी घा लागेनछ अथवा हान््ययाको थिच््ययाको <sup>265</sup> विरि वा भागी छलि उस््ललाइ लागेनछ भन््यया मारौ भनि हांन््यया थिचन््यया लोग््न्यया मानिस भया ऐनवमोजीम््कको अंस सर््वस््व गरि <sup>266</sup> ६ वर््ष स््ववास्नि मानिस भया सर््वस््व नगरि ३ वर््ष कै द गर््ननु । म््ययादका रूपैया कत्ति दिया पनि नलिनु ।

[14] धेरै जनाले मारौ भंन््यया मतो सल््ललाह गरि हान््ययाको उस््ललाइ लागी घाउ नलाग््ययामा र हान््ययाको विरि उसलाइ नलाग््ययामा सजाय गर््न्यया ऐन

१०६. धनमालका लालचले भयो वा अरू के ही इवीले मारौ भनि धेरै जना मीलि हतियार गैह्रले हान््ददा रोपता उसलाइ लागी घा लागेनछ अथवा मारौ भनि हान््ययाको विरियेछ भागी छलि उसलाइ लागेनछ भन््यया जति जनाले मारौ भनि हतियार गैह्रले चोट् छोड्याको छ उति जनालाइ लोग््न्यया मानिस भया ऐनवमोजीम््कको अंस सर््वस््व गरि ६ वर््ष स््ववास्नि मानिस भया (अंश) सर््वस््व नगरि ३ वर््ष कै द गर््ननु । म््ययादका रूपैया कत्ति दिया पनि नलिनु ।

१०७. धनमालका लालचले भयो वा अरू के ही इविले मारौ भनि ढेरै जना मिलि वंदूक काढ सस्त्र गैह्रले हानेछ र हान््ययाको उसलाइ लागी घा लागेनछ अथवा मारूूं <sup>267</sup> भनि हान््ययाको विरियेछ भागी छलि उस््ललाइ लागेनछ भन््यया मारौ भनि जति जनाले वंदूक काढ सस्त्र गैह्रको चोट् छोड्याको छ उति जनालाइ लोग््न्यया मानिस भया ऐनवमोजीम््कको अंस सर््वस््व गरि ६ वर््ष स््ववास्नि मानिस भया सर््वस््व नगरि ३ वर््ष कै द गर््ननु । म््ययादका रूपैया कत्ति दिया पनि नलिनु ।

१०८. धनमालका लालचले भयो वा अरु के ही इविले मारौ भनि ढेरै जना मिलि भिर भडखारा रूष झ््ययाल कौशी छाना पर््षषाल गैह्रवाट घच््ययाटि षसाइदियाछन् र त््ययो मानिस मरेन ज््ययू जषम् र घाउ पनि के ही लागेन भन््यया मारौ भनि समाति षसाउन््यया

267 MA-ED3 *mārauṃ*.

<sup>261</sup> Sections 102 and 103 are similar, with the former using both the verbs 'strike' (*hānnu*) and 'stab' (*ropnu*), while the latter only uses the verb 'strike'.

<sup>262</sup> MA-ED3 *parkhāla*.

<sup>263</sup> MA-ED3 omits *kāṭha*.

<sup>264</sup> MA-ED3 *ghugyāco*.

<sup>265</sup> MS2 omits *thicyāko*.

<sup>266</sup> MS2 *ri*.

जति जना छन् उति जनालाइ लोग््न्यया मानिस भया ऐनवमोजीम््कको अंस सर््वस््व गरि ६ वर््ष स््ववास्नि मानिस भया सर््वस््व नगरि ३ वर््ष कै द गर््ननु । म््ययादका रूपैया कत्ति दिया पनि नलिनु ।

१०९. [MS2 p. 542] धनमालका लालचले भयो वा अरू के ही इविले मारौ भनि धेरै जना मिलि लाठा ढुंगा काठ इट चपरि धातु झटारो गैह्र र घुग््ययात्रो <sup>268</sup> गैह्रले हांदा वा पत््थर मुढाले थीचता उसलाइ लागी घा लागेनछ अथवा हान््ययाको विरियेछ वा भागी लुकी <sup>269</sup> उसलाइ लागेनछ भन््यया जति जनाले मारौ भनि हान््ययाको छ उति जनालाइ लोग््न्यया मानिस भया ऐनवमोजीम््कको अंस सर््वस््व स््ववास्नि मानिस भया सर््वस््व गरि ३ वर््ष कै द गर््ननु । म््ययादका रूपैया कत्ति दिया पनि नलिनु ।

११०. धनमालका लालचले भयो वा अरू के ही इविले मारौ भनि धेरै <sup>270</sup> जना मिलि आगामा घच््ययाटि षसाइ सेकायाछन् र त््ययो मानिस मरेन ज््ययू जषम् पनि भयेन आगोले पोलि घाउ पनि के ही हुन पायेन गुहारि पाइ वा आफै उम््ककी वाच््ययो भन््यया आगामा सेकाउन््यया वेलामा र हालन््यया वेलामा जति जनाले समायाको छ उति जनालाइ लोग््न्यया मानिस भया ऐनवमोजीम््कको अंस सर््वस््व गरि ६ वर््ष स््ववास्नि मानिस भया सर््वस््व नगरि ३ वर््ष कै द गर््ननु । म््ययादका रूपैया कत्ति दिया पनि नलिनु ।

१११. धनमालका लालचले भयो वा अरू के ही इविले फालानालाइ मार भनि मोष््य भै वचन दियेछन् <sup>271</sup> उस््कका आज्ञाले गै अरुले हान््ददा हान््ययाको उस््ललाइ लागी घा लागेनछ वा विरियेछ वा गुहारि पाइ वा आफै उम््ककी गै ज््ययू वचायेछ घाउ पनि के ही लाग््ययाको रहेनछ भन््यया मोष््य भै मार भनि वचन दिन््यया मार््न्यया ठाउमा संग गयाको भया पनि नगयाको भया पनी लोग््न्यया मानिस भया ऐनवमोजीम््कको अंस सर््वस््व गरि ६ वर््ष स््ववास्नि मानिस भया सर््वस््व नगरि ३ वर््ष कै द गर््ननु । म््ययादका रूपैया कत्ति<sup>272</sup> दिया पनि नलिनु ।

११२. धनमालका लालचले भयो वा अरू के ही इविले मार््ननाका मतलवमा पसि मार््ननालाइ समातिदिन््यया र वाधिदिन््यया <sup>273</sup> लाइ हान््ययाको उसलाइ <sup>274</sup> लागी घा लागेनछ वा विरियछ <sup>275</sup> अथवा गोहारि <sup>276</sup> पाइ वा आफै भागी छलि ज््ययू वचायेछ भन््यया मार््ननालाइ समातिदिन््यया वाँधन््यया <sup>277</sup>हरू जति जना छन् उति जनालाइ लोग््न्यया मानिस भया ऐनवमोजीम््कको अंस सर््वस््व गरि ६ वर््ष स््ववास्नि मानिस भया सर््वस््व नगरि ३ वर््ष कै द गर््ननु । म््ययादका रूपैया कत्ति दिया पनि नलिनु ।

११३. धनमालका लालचले भयो वा अरू कही इविले मार््ननाका मतलवमा पसि मार््ननालाइ हतियार वंदूक काढ गैह्र दि मार््न्यया ठाउमा समेत जान््यया हतियार नचलाउन््यया मोष््य भै मार भनि वचन पनि नदिन््ययालाइ उसले दियाका हतियार वंदूक काढ गैह्रले


हान््ददा उसलाइ लागी घाउ <sup>278</sup> लागेनछ अथवा मारौ भनि हान््ययाको विरियेछ भागी लुकी उसलाइ लागेनछ भन््यया जति जनाले मार््ननालाइ भनि हतियार गैह्र दियाको छ उति जनालाइ लोग््न्यया मानिस भया ऐनवमोजीम््कको अंस सर््वस््व गरि ६ वर््ष स््ववास्नि मानिस भया सर््वस््व नगरि ३ वर््ष कै द गर््ननु । म््ययादका रूपैया कत्ति दिया पनि नलिनु ।

११४. [MS2 p. 543] मार््न्यया चाहि मानिसले फलानालाइ मार््छछु हतियार वंदूक काढ देउ भनि उसले भंदा फलानालाइ मार््छस्  <sup>279</sup> भन््यया ला हतियार भनि दीयेछ मार््न्यया ठाउमा आफु गयाको रहेनछ र मार््छछु भनि हांन््ययाले हान््ययाको विरियेछ वा भागी छलि उसलाइ लागेनछ भन््यया मार््ननालाइ हतियार वंदूक काढ दियाको ठहर््ननाले लोग््न्यया मानिस भया ऐनवमोजीम््कको अंस सर््वस््व गरि ६ वर््ष स््ववास्नि मानिस भया सर््वस््व नगरि ३ वर््ष कै द गर््ननु । म््ययादका रूपैया कत्ति दिया पनि नलिनु ।

११५. धनमालका लालचले भयो वा अरू के ही इविले मार््ननाका मतलवमा पसि मार््न लाग््ददा भाग््लला उम््कला भनि घरभित्र झ््ययाल ढोका थुनिदिन््यया भर््ययाङ् झिकीदिन््ययालाइ त््ययो मानिस गुहारि पाइ वा आफै उम््ककी वाच््ययो भने ज््ययू जषम् पनि भयेन घाउ पनि के ही लागेन भन््यया मारौ भनि झ््ययाल ढोका थुनिदिन््यया भर््ययाङ् झिकिदिन््यया जति छन् उति जनालाइ लोग््न्यया मानिस भया ऐनवमोजीम््कको अंस सर््वस््व गरि ६ वर््ष<sup>280</sup> स््ववास्नि मानिस भया सर््वस््व नगरि २ ॥ वर््ष कै द गर््ननु । म््ययादका रूपैया कत्ति दिया पनि नलिनु ।

११६. धनमालका लालचले भयो वा अरू के ही इवीले मार््ननाका मतलवमा पसि मार््न लाग््ददा भाग््लला उम््कला भनि घरभित्र वाहेक वाहीर वाटो गौडा छेकीदिन््यया आगमा हातले नसमाउन््ययालाइ मानिस मार््ययाको <sup>281</sup> ज््ययू जषम् भयाको घा लाग््ययाको रहेनछ हान््ययाको उसलाइ लागी घा लागेनछ वा विरियेछ भन््यया मार््ननाका मतलवमा <sup>282</sup> पसि गौडा छेकीदिन््यया <sup>283</sup> जति जना छन् उति जनालाइ लोग््न्यया मानीस भया ऐनवमोजीमको अंस सर््वस््व गरि ४ वर््ष स््ववास्नि मानिस भया सर््वस््व नगरि २ वर््ष कै द गर््ननु । म््ययादका रूपैया कत्ति दिया पनि नलिनु ।

११७. धनमालका लालचले भयो वा अरू के ही इविले मार््ननाका मतलवमा पसि मार््न लाग््ययाको अरूले देषनन् भनि विकट् वस्न्यालाइ मारौ भनि हान््ययाको उसलाइ लागी घा लागेनछ वा विरियेछ अथवा गुहारि पाइ वा आफै भागी छली ज््ययू वचायेछ भन््यया मार््न लाग््ययाको अरूले देषनन् भनि विकट् वस्न्याहरु जति जना छन् उति जनालाइ लोग््न्यया मानीस भया ऐनवमोजिमको अंस सर््वस््व गरि ३ वर््ष स््ववास्नि मानिस भया सर््वस््व नगरि १ ॥ वर््ष कै द गर््ननु । म््ययादका रुपैया कत्ति दिया पनि नलिनु ।

११८ <sup>284</sup> [MA-ED3 p. 115] नम््वर्को । धन््ममाल््कका लालचले भयो वा अरु केहि इविले मार््ननाका मतलब््ममा पसि मार््न्यया ठाउमा सग जान््यया हात नछोडन््यया नछेकन््यया विकट् पनि नवस्न्या मोख््य भै मार भनि वचन् पनि नदिन््यया हेरि मात्र रहन््ययालाइ मारौौं भनि हान््ययाको उस््ललाइ लागि घा लागेनछ वा विरियछ अथ [MA-ED3 p. 116] वा गुहारि पाइ वा आफै भागि छलि ज््ययू वचायछ भन््यया मार््ननाका मतलवमा पसि सग


<sup>278</sup> MA-ED3 *ghā*.

<sup>279</sup> MS2 *māchas*.

गै हेरि रहन््यया जति जना छन् उति जनालाइ लोग््न्यया मानिस् भया ऐनवमोजिम््कको अंश सर््वस््व गरि ३ वर््ष स््ववास्नि मानिस् भया सर््वस््व नगरि १ ॥ वर््ष कै द गर््ननु । म््ययादका रुपैैंञा कत्ति दिया पनि नलिनु ।

११९ नम््वर्को । धन््ममाल््कका लालचले भयो वा अरु केहि इविले मार््ननाका मतलवमा पस््ययाका मार््न्यया ठाउमा नजान््यया हतियार पनि नदिन््यया मोख््य भै मार भनि वचन पनि नदिन््यया एस््तता मतलविहरुलाइ मारौौं भनि हान््ययाको उस््ललाइ लागि घा लागेनछ वा विरियछ अथवा गुहारि पाइ वा आफै भागि छलि ज््ययू वचायछ भन््यया मार््ननाका मतलवमा मात्र पस्न्याहरु जति जना छन् उति जनालाइ लोग््न्यया मानिस भया ऐनवमोजिम््कको अंश सर््वस््व गरि २ वर््ष स््ववास्नि मानिस भया सर््वस््व नगरि १ वर््ष कै द गर््ननु । म््ययादका रूपैैंञा कत्ति दिया पनि नलिनु ।

१२० नम््वर्को । धन््ममाल््कका लालचले भयो वा अरु केहि इविले मार््न भनि सर््प हालि दियछ र त््ययो मानिस््ललाइ सर््पले टोक््ययाको रहेनछ भन््यया मारौौं भनि सर््प हालिदिन््यया लोग््न्यया मानिस भया ऐनवमोजिम््कको सर््वस््व गरि ३ वर््ष स््ववास्नि मानिस भया (अंश) सर््वस््व नगरि १ ॥ वर््ष कै द गर््ननु । म््ययादका रुपैैंञा कत्ति दिया पनि नलिनु ।

१२१ नम््वर्को । धन््ममाल््कका लालचले भयो वा अरु केहि इविले मार््न भनि कुकुर लाइदियछ र त््ययो मानिस््ललाइ कुकुरले टोकन पायन भागि उम््ककि छलि ज््ययू वचायछ भन््यया मारौौं भनि कुकुर लाइदिन््यया लोग््न्यया मानिस भया ऐनवमोजिम््कको अंश सर््वस््व गरि ३ वर््ष स््ववास्नि मानिस भया (अंश) सर््वस््व नगरि १ ॥ वर््ष कै द गर््ननु । म््ययादका रुपैैंञा कत्ति दिया पनि नलिनु ।

१२२ नम््वर्को । धनल््कका <sup>285</sup> लालचले भयो वा रु केहि इविले मारौौं भनि हतियार लि लगार््ददाभिर भडखारामा परि वा खोलामा फाल हालि उत्रि गै वा उसै ज््ययू वचाइ भागि गयछ घाउ चोट केहि लाग््ययाको रहेनछ [MA-ED3 p. 117] भन््यया अर््ककालाइ मारौौं भनि हतियार लि लगार््न्यया लोग््न्यया मानिस् भया ऐनवमोजिम््कको अंश सर््वश्व गरि ३ वर््ष श्वास्नि मानिस् भया सर््वस््व नगरि १ ॥ वर््ष कै द गर््ननु । म््ययादका रुपैैंञा कत्ति दिया पनि नलिनु ।

१२३ नम््वर्को । अर््ककालाइ मारौौं भन््यया मतलव गरि हतियार वन््ददुक काढ लाठा ढुंगा गैह्र लि छिडि वाटो गौडा वथान््ययालाइ हतियार लाठा ढुंगा गैह्र चलाउन नपाउदैमा पक्रियो भन््यया ज््ययान् मार््ननाका मतलवले वाटो गौडा वथान््यया जति जना छन् उति जनालाइ लोग््न्यया मानिस् भया ऐनवमोजिम््कको अंश सर््वस््व गरि ४ वर््ष स््ववास्नि मानिस भया सर््वस््व नगरि २ वर््ष कै द गर््ननु । म््ययादका रुपैैंञा कत्ति दिया पनि नलिनु ।

१२४ नम््वर्को । अर््ककालाइ मार््ननाको मतो सल््हहा गर््ययाछन् सल््हहा गर्दैमा जाहेर भयो भन््यया मानिस् मार््ननाको मतो सल््हहा गर््न्यया जति जना छन् उति जनालाइ लोग््न्यया मानिस भया सर््वस््व नगरि २ वर््ष स््ववास्नि मानिस भया १ वर््ष कै द गर््ननु । म््ययादका रुपैैंञा कत्ति दिया पनि नलिनु ।

१२५ नम््वर्को । अर््ककालाइ मारौौं भनि जहर विख खान््यया कुरा गैह्रमा हालि दिएछ र खान नपाँउदैमा जाहेर भयो भन््यया मारौौं भनि जहर विख खान््यया कुरामा हालिदिन््यया जहर विख खुवाइ मार भन््यया मार््ननालाइ हो भनि जानि जानि जहर विख दिन््यया एतिलाइ लोग््न्यया मानिस भया ऐनवमोजिम््कको अंश सर््वस््व गरि ४ वर््ष स््ववास्नि मानिस भया सर््वस््व नगरि २ वर््ष कै द गर््ननु । म््ययादका रुपैैंञा कत्ति दिया पनि नलिनु ।

१२६ नम््वर्को । एका मानिस््ललाइ मार््ननालाइ भनि जहर विख खान््यया कुरा गैह्रमा हालि दियो र उस््ललेखान नपाँउदैमा अर्को मानिस््लले तेहि जहर विख हाल््ययाको खाएछ र उस््कको ज््ययान मर्यो भन््यया मारौौं भनि खान््यया कुरामा जहर विख हालिदिन््यया नकाटिन््यया जात््कका लोग््न्यया मानिस भया ऐनवमोजिम््कको अंश सर््वस््व गरि स््ववास्नि मानिस भया सर््वस््व नगरि दामल गर््ननु । काटिन््यया जात््कका लोग््न्यया मानिस भया ज््ययानको वदला ज््ययान् काटि मारिदिनु ।

१२७ [MA-ED3 p. 118] नम््वर्को । एका मानिस््ललाइ मार््ननालाइ भनि जहर विख खान््यया कुरा गैह्रमा हालिदिएछ र उस््ललेखान नपाँउदैमा अर््कका मानिस््लले तेहि जहर विख हाल््ययाको खाएछ र खान््ययाको ज््ययान् मरेन वाँच््ययो भन््यया मारौौं भनि खान््यया कुरामा जहर विख हालिदिन््यया लोग््न्यया मानिस भया ऐनवमोजिम््कको अंश सर््वश्व गरि १२ वर््ष स््ववास्नि मानिस भया सर््वस््व नगरि ६ वर््ष कै द गर््ननु । म््ययादका रुपैैंञा कत्ति दिया पनि नलिनु ।

१२८ नम््वर्को । घर वाहेक अनेत्र <sup>286</sup> जग््गगामा वाघ भालु वदेल मृग जरायो अर््नना गैडा स््ययाल गैह्र वनजन््ततुलाइ र पञ््छछि गैह्रलाइ मार््ननाका निमित्त गाँउघर््ममा उर््ददिदि जहर विख खान््यया कुरा गैह्रमा हालिदियाको रहेछ र तेहि जहर विख हाल््ययाको मानिस््लले हवस वा गाइगोरु गैह्रले थाहा नपाइ खाएछ र खान््ययाको ज््ययान मर््न गयो भन््यया भोर ठहर््छ । जहर विख हालिदिन््ययालाइ खत-वात लाग््ददैन पतिया पनि गर््ननु पर्दैन । गाँउघर््ममा उर््ददि नदि हाल््ययाको रहेछ र तेहि खाइ भोरमा परि मानिस मर््न गयाको भया २० रुपैैंञा दण््ड गर््ननु । चौपाया मर््न गया गाँउघरले ठहरायाको विगो मात्र माल््कका धनिलाइ भराइदिनु दण््ड पर्दैन ।

१२९ नम््वर्को । कसैले अर््कका सित हतियार वन््ददुक मागि लगि मानिस मारेछ र हतियार वन््ददुक दिन््ययाले मानिस मार््ननालाइ हो भनि थाहा नपाइ दियाको ठहर्यो भन््यया हतियार दिन््ययालाइ खत वात लाग््ददैन दण््ड पतिया पनि पर्दैन ।

१३० नम््वर्को । कसैले अर््ककासित औसधि गैह्र केहि कामलाइ चाहियो भनि जहर विख माग््ददा जहर विख दिएछ र उस््लले मानिस््ललाइ खुवाइ ज््ययान् मरेछ भन््यया पनि ज््ययान् मर््ययाको रहेनछ भन््यया पनि जहर विख दिन््ययाले ज््ययान् मार््ननालाइ हो भनि थाहा नपाइ दियाको ठहर्यो भन््यया जहर विख दिन््ययालाइ खतवात लाग््ददैन दण््ड पतिया पनि पर्दैन ।

१३१ नम््वर्को । १२ वर््षदेखि मनिका केटाकेटिले आफ््नना घरका [MA-ED3 p. 119] मानिस््ललाइ हवस वा अरु कसैलाइ हवस अर््ककाले नअह्राइ मुनासिवले उपविख खुवाएछ र खान््यया मानिस् मरेनछ भन््यया १२ वर््ष मनिका वालख हुनाले अरु खतवात केहि लाग््ददैन २ ॥ रुपैैंञा दण््ड गरि १ रुपैैंञा गोदान लि पतिया दिनु । अर््ककाले अह्राइ खुवायाको ठहर्यो र ज््ययू मर््ययाको रहेनछ भन््यया अह्राउन््ययालाइ ऐनवमोजिम गर््ननु । खुवाउन््यया वालखलाइ सोहिवमोजिम दण््ड गरि पतिया दिलाइ छाडिदिनु अरु खतवात लाग््ददैन ।

१३२ नम््वर्को । १२ वर््ष नाघ््ययाका लोग््न्यया मानिस वा स््ववास्नि मानिस््लले रिस््लले र दिक्कले आफ््नना घरकालाइ हवस वा घरवाहेका अरु कसैलाइ उपविख खुवाएछ र

286 For *anyatra*.

खान््यया मानिस् मरेनछ भन््यया खान््ययाले मलाइ फलानु <sup>287</sup> उपविख खुवायो ता पनि मेरो ज््ययू मरेन माफ दिञ््छछु भन््यया पनि माफ दिन्न भन््यया पनि अडा अदालत अमालवाट काएलनामा लेखाइ ४ वर््ष कै द गर््ननु । म््ययादका रुपैैंञा दिया लिनु धर््ममाधिकारवाट ५ रुपैैंञा गोदान लि पतिया दिनु ।

१३३ नम््वर्को । व्राह्मण लगाएत चार वर््ण छत्तिसै जात््कका लोग््न्यया स््ववास्नि मानिस् कसैले अर््ककालाइ मार््न भनि हतियार चलाइ घा लाएछ उस््लले हतियार चलाउदा देखन््यया साछि गुहाइ पनि रह्याछन् र घा लाइमाग््न्ययाले आफुलाइ मार््ननाका लागि हतियार चलाइ घाउ लाउन््ययालाइ आफ््ननो ज््ययू वचाउनाका लागि उसै ठाउ उसै वखत््ममा हतियारले वा अरु थोकले हानि ज््ययान मार््ययाको रहेछ गुहार तेवरले पनि मर््न्ययाले पैह््लले हतियार चलाइ घा लाउदा उस््लले मार््ययाको हो भनि मुचुल््कका स््ममेत लेखिदियो भन््यया मार््न्ययालाइ खतवात लाग््ददैन । व्राह्मण र स््ववास्नि हाड गोत्रकालाइ मार््ययाको रहेछ भन््यया पतिया गराइ भात््पपानिमा चलाइदिनु । अरु जात््ललाइ मार््ययाको रहेछ भन््यया पतिया पर्दैन जातैमा रहंछ ।

१३४ नम््वर्को । कसैले अर््ककालाइ मारि तेस््लले मलै मार््न भनि हतियारले हानि घाउ लाउदा तेस््ललाइ मारि आफ््ननो ज््ययू वचाइ आञा भनि गाँ[MA-ED3 p. 120] उ घरमा अडा अदालत अमाल््ममा आफै ले जाहेर गर््न आयो मार््ददामा साछि गुहाइ पनि केहि रहेनछन् भन््यया ज््ययान््मर््ययाका कुरामा मार््न्ययाका मुखले मात्र भनि छुट्टि पांउदैन । अदालत कौशलले तजविज गरि ठहर््ययाउदा मार््ननाका लागि हतियार चलाइ घाउ लाउदा उस््लले आफ््ननो ज््ययू वचाउनका लागि मार््ययाको ठहर््यया तेस््ललाइ खतवात लाग््ददैन छाडिदिनु । वेहक््ममा अर््ककाको ज््ययान््ममारि आफ््ननो ज््ययू वचाउनका लागि मलाइ मार््न भनि आइ लाग््ददा मैले मार््ययाको हो भन्न आयाको ठहर््यया नकाटिन््यया जात््कका लोग््न्यया मानिस््भया ऐनवमोजिम््कको अंश सर््वस््व गरि स््ववास्नि मानिस््लले भया (अंश) सर््वस््व नगरि तेसै दामल गर््ननु । काटिन््यया जात््कका लोग््न्यया मानिस््लले भया ज््ययान््कको वदला ज््ययान् काटि मारिदिनु ।

१३५ नम््वर्को । कसैले अर््ककालाइ मारेछ त््ययो कुरो मार््न्ययाले जाहेर गरेन पछि अरुवाट जाहेर भयो र मार््न्ययालाइ पक्रि ल््ययाइ सोधखोज गर््ददा मलाइ मार््न भनि हान््ददा मैले मार््ययाको भन््ययो मार््ददाको साछि पनि कोहि देखाउन सके न भन््यया तेस््लले रिस््लले मार््ययाको ठहर््छ । नकाटिन््यया जात््कका लोग््न्यया मानिस््लले भया ऐनवमोजिम््कको अंश सर््वस््व गरि स््ववास्नि मानिस््भया (अंश) सर््वस््व नगरि तेसै दामल गर््ननु । काटिन््यया जात््कका लोग््न्यया मानिस््भया ज््ययान््कको वदला ज््ययान् काटि मारिदिनु ।

१३६ नम््वर्को । अर््ककाले वेहक््ममा मानिस््ममार््न लाग््ययामा गुहार माग््ददा खवर सुनि गुहार नजान््ययामा १६ वर््ष माथि ६५ वर््षसम््मका जानकारमा गाउका हाकिमलाइ १०० रुपैैंञा मोख््य वाहेक गुहार माग््ययाको सुनि नजान््यया अरुलाइ जनहि १० रुपैैंञा दण््ड गर््ननु । १६ वर््ष उधोका र ६५ वर््ष उभोका वुढा वालखलाइ र वेरामि भयाकालाइ र स््ववास्नि मानिस््ललाइ वात लाग््ददैन । गुहार माग््ययाको सुन््यया एका घरका धेरै रह्याछन् तिन््ममा १।२ जना गयाछन् अरु गयाको रह्यानछन् भन््यया पनि नजान््यया एका घरका अरुलाइ दण््ड पर्दैन ।

१३७ नम््वर्को । अर््ककाको ज््ययान््ममारि कोहि मानिस लट्ठा सिवाना ना [MA-ED3 p. 121] घि भागि गयो भन््यया तेस््ततालाइ विराना मुलुक््ममा गै समाउन र ज््ययान् मार््न हुदैन । विराना मुलुक््ममा गै पक्रेछ मारेछ भन््यया तेस््ललाइ तक््ससिर लाग््छ । विराना मुलुक््ममा भागि जान््ययालाइ पक्रन सके न भन््यया वात लाग््ददैन । ज््ययान मार््न्ययालाइ मधेसतिर गयाको भया रजिडण््ट साहेवसित भनि भोट््तर््फ गयाको भया भोट््कका मोख््य काजिसित भनि ञाहाँझिकाइ नकाटिन््यया जात््कका लोग््न्यया मानिस् भया ऐन््बमोजिम््कको अंश सर््वस््व गरि स््ववास्नि मानिस भया (अंश) सर््वस््व नगरि तेसै दामल गर््ननु । काटिन््यया जातका लोग््न्यया मानिस् भया ज््ययान््कको वदला ज््ययान् काटि मारिदिनु ।

१३८ नम््वर्को । हाकिम््कका मर््जजि आज्ञाले र अड्डा-अदालत ठाना अमाल कचहरिवाट लिन पक्रन पठाई पक्रि ल््ययायाकालाइ अर््ककाले विचमा चोट छोडि ज््ययान मरेछ भन््यया मार््न्ययालाइ ज््ययान््ममाराका ऐनवमोजिं सजाए गर््ननु । पक्रि ल््ययाउन््यया प््ययादा सिपाहिलाई वात लाग््ददैन ।

१३९ नम््वर्को । हाकिम््कका मर््जजि आज्ञाले र अड्डा-अदालत ठाना अमाल कचहरिले लिन पक्रन पठायाका वाहेक अरुले आफ््नना लिनदिन कारोवारका मुद्दामा पक्रि ल््ययायाका मानिस््ललाई विचमा अरुले चोट् छोडि ज््ययान मारेछ भन््यया मार््न्ययालाई ज््ययान््ममाराका ऐनवमोजिम सजाए गर््ननु । पक्रि ल््ययाउन््यया साहु टल््ससििंलाइ आफ््नना कारोवार लिनदिन गैह्रका मुद्दामा पक्रि ल््ययायाको हुनाले तिन््ललाई वात लाग््ददैन ।

१४० नम््वर्को । ज््ययान््ममारा चोर वावति खतुकि धनिको घर छाडि भाग््ययाका वाँधा कमारा कमारि गैह्रलाई अदालत ठाना अमाल गैह्रवाट प््ययादा सिपाहि पठाई पक्रि ल््ययायाको हवस् वा धनिले पक्रि ल््ययायाको हवस् वा अरु कसैले यो एस््ततो काम कुरो गर््न्यया भनि पोल््ददा पक्रि ल््ययायाको हवस् एस््तता गैह्र विहोराले पक्रि नेल ठुगुरा चमोट गैह्र वन््धनमा हालि थुनि छेकि राख््ययाका ठाउमा आफै ले जहर विष खाइ पासो लाई सेरि मर्यो भन््यया पक्रि ल््ययाउन््यया थुन््यया छेकन््ययालाई वात लाग््ददैन ।

१४१ [MA-ED3 p. 122] नम््वर्को । ज््ययान््ममारा चोर वावति खतुकि धनिको घर छाडि भाग््ययाका वाँधा कमारा कमारि गैह्रलाइ कसैले यो एस््ततो काम कुरो गर््यया हो भनि पोल््ददा अदालत ठाना अमाल गैह्रवाट प््ययादा सिपाहिले पक्रि ल््ययाउदा हवस वा धनिले लिन पक्रन पठाइ पक्रि ल््ययाउदा हवस एस््तता गैह्र विहोराले पक्रि वाँधि नेल ठिगुरा चमौौंत््गगैह्र वन््धनमा हालि ल््ययायाका कोहि मानिस नदिमा भिरमा खाडि झ््ययाल् छाना इनार साघु झोलङ््गगा डुंगावाट फाल हालि लडि वगि दौडदा ठक्कर लाइ आफै मर््यया भन््यया पक्रि ल््ययाउन््ययालाइ खतवात लाग््ददैन ।

१४२ नम््वर्को । सुना चादि नगद जिनिस कसन् तमन् जवाहेर जग््गगा जमिना चौपाया कमारा कमारि करणि जात भात घर वारि कुलो पानि वाटो स््ववास्नि लिनदिन कारोवार गैह्रको निमित्त झगडा भै थुन्नु पर््न्यया मानिस््ललाइ पक्रि ल््ययाउदा वाटामा आफै भिरवाट लडि काहि फाल हालि भागि जादा ठेस ठक्कर लागि मर्यो अथवा हात खुट्टा जखम् भयो अंग भंग भयो भन््यया पक्रि ल््ययाउन््ययालाइ खतवात लाग््ददैन । त््ययो मर््न्ययासग आफनुलिनु पर््न्यया भया पनि हिसाववमोजिम उस््कका सन््ततान अपुतालि खान््यया सग लिन पाउछ अदालत अमाल््ममा कराउन आया भराइदिनु ।

१४३ नम््वर्को । सुना चादि कसन््तमन नगद जिनिस जवाहेर जग््गगा जमिन चौपाया कमारा कमारि करणि जात भात घर वारि कुलो पानि वाटो स््ववास्नि लिनदिन कारोवार गैह्रका निमित्त झगडा भै थुन्नु पर््न्यया मानिस््ललाइ कसैले आफ््नना घर््ममा भयो उस््कका घर््ममा

भयो कोठा चोठा वैगल छिडिमा थुनि राख््ययाको मानिस झ््ययाल कौसि छानावाट फाल हालि मर्यो हात खुट्टा जखम भयो अंग भंग भयो आफ््नना हातले सेरियो हतियार धसि मर्यो पासो लागि मर्यो जहर विख खाइ मर्यो भन््यया थुन्न्या मानिस््ललाइ खतवात लाग््ददैन । त््ययो मर््न्ययासग लिनु पर््न्यया भया हिसाववमोजिम उस््कका सन््ततान अपुतालि खान््ययासग लिन पाइंछ अदालत अमाल््ममा कराउन आया भराइदिनु ।

[15] ज््ययान मारौौं भनि हान््ययाको खत हेरि सजाय गर््न्यया ऐन १४४ [MA-ED3 p. 123] नम््वर्को । मानिस मार््ययाका कुरामा र मानिस मार््ननाको मतलव गर््ययाका कुरामा इनै ऐनमा लेखियाका रितसग मानिस मार््ययाको ज््ययू जखम गर््ययाको घा लायाको मतलव मात्र गर््ययाको रहेछ भन््यया इनै ऐनवमोजिम गर््ननु । इ ऐनमा लेखियाको रितसगै मार््ययाको ज््ययू जखम भयाको घा लायाको मतलव गर््ययाको ठहरेन अरु विहोराले मर््ययाको ज््ययू जखम भयाको घा लाग््ययाको ठहर्यो भन््यया अदालति वन््ददोवस््तका ८ नम््वर््कका ऐनवमोजिम््कको विहोराको अर्को ऐन गराइ मामिला छिन्नु ।

१४५ नम््वर्को । ज््ययान मार््ननाको मतलव गरि हवस वा अरु कुराका झगडामा कसैले हतियारले हानि रोपि या अरु कुरो गरि घा लाया जखम भयामा घाउ नापनु । जखम भयाको ठहराउनु पर्यो भन््यया नाउ भयाका ठाउमा नाउलाइ नाउ नभयाका ठाउमा उस ठाउका जान््यया भला मानिस््ललाइ हान््ययाका घामा लमाइ रोप््ययाका घामा गैह्रो नाप्न लगाई ज््ययू जखम भया नभयाको ठहराउन लगाइ उन््लले ठहरायामा उन््कको एतिसम््म भयाको हो भन््यया मुचुल््कका लि खतुकिलाइ सोहि विहोरामा लेखियाका ऐनवमोजिम गर््ननु ।

१४६ नम््वर्को । ज््ययान मार््ननाको मतलव गरि कुट् पिट् गर््ययाका कुरामा हात गोडा अगुला हाड भाचियाको ज््ययू जखम भया नभयाको वा मर््क्यया नमर््क्ययाको चोट मात्र लाग््ययाको ठहराउदा नाउ भयाका ठाउमा नाउ लगाइ नाउ नभयाका ठाउमा उस् ठाउका जान््यया भला मास््ललाइ हेर््न लगाइ उन््लले ठहरायाकामा उन््कको एतिसम््म भयाको छ भन््यया मुचुल््कका लि खतुकिलाइ सोहि विहोरामा लेखियाको ऐनवमोजिं गर््ननु ।

[16] ज््ययान जान््यया तक््ससिरमा ज््ययान लिना दामल गर््नना अरु सजाए गर््ननाको ऐन् १४७ नम््वर्को । उपाध््ययाय लागाएत ग्रैह व्राह्मण जातले मानिस मार््ययामा ज््ययान जान््यया तक््ससिर गर््यया भन््यया व्रह्महत््यया लाग््न्यया हुन््ययाले ज््ययान नलिनु । ऐन [MA-ED3 p. 124] वमोजीम््कको अंश सर््वस््व गरि दामल गर््ननु ।

१४८ नम््वर्को । चार वर््ण छत्तिसै जात््कका ११ वर््ष नाघ््ययाका कन््यया अथवा विधवा गैह्र स््ववास्नि मानिसले ज््ययान जान््यया तक््ससिर गर््यया भन््यया स्त्रिहत््यया लाग््न्यया हुनाले ज््ययान नलिनु । स््ववास्नि मानिस हुनाले सर््वस््व पनि हुदैन तेसै दामल गर््ननु ।

१४९ नम््वर्को । रजपुत जातले मानिस् मार्यो भन््यया ज््ययान््कको वदला ज््ययान् काटि मारिदिनु । जारि गर््यया ऐन््वमोजिम् साधुको खुसि अरु खतवात गर््ययामा ऐन््वमोजिम् सजाय गर््ननु ज््ययान जाँदैन ।

१५० नम््वर्को । उपाध््यया लागायत् व्राह्मण जात जोगि भयाका वावु र मावलिको पत्ता नलाग््ययाका जोगि कसै सित नविग््ययाका <sup>288</sup> व्राह्मणका विधवा दसनाम जोगि

288 For *nabigryākā*.

जङ््गम सेवडाले राखि उन््बबाट जन््म्ययाका सन््ततान् औ वावु र मावलिको पत्ता नलाग््ययाका रमता फकिर कान चिर््ययाका कान््फट्टाले ज््ययान् जान््यया तक््ससिर गर््यया ज््ययान् नलिनु ऐन््वमोजिम् अंश सर््वस््व गरि दामल गर््ननु ।

१५१ नम््वर्को । व्राह्मण वाहेक् रजपुत तागा धारि नमासिन््यया मासिन््यया मतवालि गैह्र जात दसनाम जोगि जङ््गम सन््ययासि सेवडासित मुडि फकिर भै उसै घर््ममा रह्याका घरवारि नभयाका एस््तता भेखधारिले मानिस मार्यो भन््यया ऐनवमोजिम अंशसर््वश्व गरि दामल गर््ननु ।

१५२ नम््वर्को । व्राह्मण वाहेक् रजपुत तागा धारि नमासिन््यया मासिन््यया मतुवालि गैह्र जात दसनाम् जोगि जङ््गम सेवडा सन््ययासिसित मुडियाका घरवारि गरि ग्रिहस््थ<sup>289</sup> धर््ममा रह्याका एस््तता भेखधारिले मानिस मार्यो भन््यया ज््ययान््कको वदला ज््ययान् लिनु ।

१५३ नम््वर्को । सवै थोक् थाहा पाउन््यया वाक््य फुट्याका लाटाला [MA-ED3 p. 125] टिले मानिस मार््यया भन््यया नकाटिन््यया जात््कका लोग््न्यया मानिस््ललाइ ऐनवमोजिमको अंश सर््वस््व गरि स््ववास्नि मानिस भया सर््वस््व नगरि तेसै दामल गर््ननु । काटिन््यया जात््कका लोग््न्यया मानिस््लले भया ज््ययानको वदला ज््ययान काटि मारिदिनु ।

१५४ नम््वर्को । वाक््यये फुट्याका ग््ववााँगा लाटालाटिले मानिस मार््यया भन््यया ज््ययान््कको वदला ज््ययान् हुदैन लोग््न्यया मानिस् भया १२ वर््ष स््ववास्नि मानिस् भया ६ वर््ष कै द गर््ननु । म््ययादका रुपैैंञा डवल् दिया पनि नलिनु ।

१५५ नम््वर्को । गर््न्यया नगर््न्यया कुरो केहि थाहा नपाँउन््यया निर््ववाण भै हिडन््यया जात जान््यया अभक्ष खान््यया इ लेखियाका कुरामा एउटै कुरो मात्र गर््न्यया एस््तता वोल््हहा वौल््हहिले मानिस् मार््यया भन््यया लोग््न्यया मानिस भया ऐनवमोजिम््कको अंश सर््वस््व गरि स््ववास्नि मानिस् भया सर््वस््व नगरि तेसै दामल गर््ननु ।

१५६. [MS2 p. 551] गर््न्यया नगर््न्यया कुराको थाहा पाउन््यया अभक्ष पनि नषान््यया निवार््ण भै पनि नहिड््न्यया वौल््हहा वैल््हहिले <sup>290</sup> मानिस मार््यया भन््यया नकाटिन््यया जातको <sup>291</sup> लोग््न्यया मानिस भया ऐनवमोजिम््कको अंस सर््वस््व गरि स््ववास्नि मानिसले <sup>292</sup> भया तेसै दामल गर््ननु । काटिन््यया जातका लोग््न्यया मानिस भया ज््ययानको वदला ज््ययान काटि मारिदिनु ।

१५७. मानिस मार््न्यया वौल््हहा वौल््हहाइले <sup>293</sup> मानिस मार््ददामा अभक्ष नर््क<sup>294</sup> गैह्र षायाको पनि<sup>295</sup> रहेनछ आफुले मानिस मार््यया पछि निर््ववाण भै हिड्याको अभक्ष नरक गैह्र खायाको ठहर््यया तेसले ज््ययू वचाउनका लागि षायाको ठहर््छ तेस््तता वौल््हहा वौल््हहाइलाइ <sup>296</sup> नकाटिन््यया जातका लोग््न्यया मानिस भया ऐनवमोजिम््कको अंस सर््वस््व गरि श्वास्नि मानिस भया सर््वस््व नगरि तेसै दामल गर््ननु । काटिन््यया जातका लोग््न्यया मानिसले <sup>297</sup> भया ज््ययानको वदला ज््ययान काटि मारिदिनु ।


१५८. मुडि जात पतित गरि घटि जातमा मिलायाका र आफुभंदा घटि जातमा करणि गरि वा भात पानि गैह्र जात जान््यया कुरो षाइ उसै जातमा मिलायाका मानिसले मानिस मार्यो भन््यया नकाटिन््यया जात पतित भयाकाले मार््ययाको भया ऐनवमोजिम््कको अंस सर््वस््व गरि दामल गर््ननु । स््ववास्नि मानिस भया सर््वस््व नगरि तेसै दामल गर््ननु । काटिन््यया जात पतित भयाकाले <sup>298</sup> भया ज््ययानको वदला ज््ययान काटि मारिदिनु ।

१५९. मुडि जात पतित गरि घटि जातमा मिलायाका र आफुभंदा घटि जातमा करणि गरि वा भात पानि गैह्र जात जान््यया कुरो षाइ उसै जातमा मिल््ययाका मानिसका पतित भयापछि जन््म्ययाका संतानले मानिस मार््यया भन््यया ऐनले जौन जात भयाका छन् उसै जातका ऐनवमोजिम् सजाए गर््ननु ।

१६०. निसाफले वेजाइ <sup>299</sup> गर््न्ययालाइ कुट् पिट् गर््ननु पर्न्यैथियो ३।४ जनाले पक्रि कुट् पिट् गर््ददा आफै ले वेजाइ <sup>300</sup> विछत् <sup>301</sup> गरि विराउन््यया आफै हतियार चलाउन््यया गर््ययाको रहेछ भन््यया ज््ययान मार््ययाको रहेछ भन््यया ज््ययानको वदला ज््ययान ज््ययान <sup>302</sup> मार््ययाको रहेनछ भन््यया छर््ययाक् छुरुक् हतियार चलाइ घा लायामा आफुले कुटियाका वखतमा हतियार चलायाको हुनाले हान््ययाकामा लमाइ रोप््ययाकामा गैह्रो नापि जति अंगुलको घाउ छ उति वर््ष कै द गर््ननु । म््ययादका रुपैया दिया लिनु ।

 MA-ED3 *bhayāko*. MS2 *bejāñi*. MS2 *bejāñi*. MA-ED3 *bīt*. MS2 omits *jyāna*.

# B. Homicide Law: Translations

#### **Translation of Article 64 of the** *Ain* **of 1854**<sup>1</sup>

#### On Homicide

#### **[1. Homicide committed by privileged groups]**

§1 If an Upādhyāya, Jaisī,2 Tehraũte,<sup>3</sup> Bhaṭṭa [Brahmin]   4 or the like


(*gaihra*),5 or a Deśī Brahmin6 kills a person, he shall, in accordance with the Ain, be punished by *dāmala* and his share of property shall be confiscated.

§  2 If a Rajapūta<sup>7</sup> commits adultery, steals or does such things within blood relations or [members] of higher castes,<sup>8</sup> he shall, in accordance with the Ain, be [subjected to the punishment of] being shaved (*muḍinyā* 9 , *dāmala*), being imprisoned, fined and having [his share


of] property confiscated (*sarvasva*).10 He shall not be executed. If a [Rajapūta] commits adultery, the aggrieved husband has the right to decide [to kill the paramour of his wife]. In killing the paramour, the aggrieved husband shall not be held accountable.<sup>11</sup> If a Rajapūta kills a person, he shall be executed—taking life for life.

§3 If an Upādhyāya Brahmin, who has become an ascetic, a Jaisī Brahmin, who has become an ascetic, a Rājapūta, who has become an ascetic, someone whose maternal descent is unknown has become an ascetic, children born to an [ascetic such as] a Daśanāmī,12 Jogī,<sup>13</sup> Jaṅgama14 or Sebaḍā15 with a concubine [Brahmin] widow of an Upādhyāya Brahmin or Jaisī Brahmin, who has not had illicit sexual intercourse with anybody16 [so far], and an itinerant ascetic (*ramatā*),<sup>17</sup>

tuft left on the crown of the head after tonsure). He is forced to consume alcohol and pork. Additionally, the offender is degraded to a Non-enslaveable Śūdra caste if he belongs to a Sacred Thread-wearing caste. If he already belongs to a Non-enslaveable Śūdra caste, his property is confiscated, he is forced to eat dog meat, his head is shaved and he is degraded to the Bhoṭyā caste. Both classes of offenders are exiled to the other side of the river in the east if they come from the west or vice versa (see MA-ED2/42 §1).


a fakir   <sup>18</sup> or a Kanaphaṭṭā   <sup>19</sup> ascetic with pierced ears, whose father and maternal descent are unknown, commits the crime of taking a human life, he shall not be executed, but he shall, in accordance with the Ain, be punished by *dāmala* and his share of property be confiscated.20

§  4 If the offspring of all Sacred Thread-wearing Kṣatriyas, of the Alcohol-drinking castes 21 and of the Śūdra castes who have been shaved (*muḍiyāko*, i.e., who have become ascetics)22 by an [ascetic such

wandering ascetics, they may belong to any sect. They are considered as foreigners, and as typically coming from India.


as] Daśanāmī, Jogī, Jaṅgama or Sebaḍā, as well as the offspring born to a Daśanāmī, Jogī, Jaṅgama or Sebaḍā who have taken an unmarried girl, a widow or a common woman of these (i.e., Sacred Threadwearing Kṣatriyas, members of the Alcohol-drinking caste and Śūdra caste) [as a concubine], and who (i.e., the offspring) have been shaved, kill a person, they shall be executed—taking life for life.23

#### **[2. Homicide by a mute or dull person]**

§  5 If someone who is of sound mind,24 sane and able to understand, but unable to speak, kills a person by hitting [him] with a weapon, stick or stone, he shall be executed—taking life for life. If a dull (*gvā̃go*) person who does not know what is to be done and what not, kills another person, he shall be imprisoned for 12 years.25

eleven to sixteen have been forced to become ascetics, they can be granted expiation within thirty-five days unless they have accepted cooked rice from the ascetic who initiated them. If a woman aged twelve or above has become an ascetic and she has in the interim had sex, no expiation is granted. If a man or woman in that same age group has become an ascetic and he / she has already accepted cooked rice, they are not to be granted the expiation with respect to cooked rice (MA-ED2/88 §  5).


#### **[3. Homicide by women]**

§  6 If a widow or married woman or an unmarried girl past the age of 11 from the Four Varṇas and Thirty-six Jātas kills a person, she shall be punished by *dāmala*, but [her property] shall not be confiscated.26

§  7 If a woman from the Four Varṇas and Thirty-six Jātas kills her own children or husband, she shall be punished by *dāmala* and shall be put into the Golaghara27 prison with her hands and feet fettered. Four *paisās* as ration (*sidhā*)28 [for food] shall be given to her and she shall not be taken out [from the Golaghara].

NBŚ under s.v. *gvā̃go, laṭhepro* and *susta*) were excluded from punishment or received a more lenient sentence.


#### **[4. Joint murder]**

§  8 If somebody kills a person jointly with several people during a legal dispute about land, money, non-monetary property,29 quadrupeds 30 or male or female slaves,<sup>31</sup> three people [of those involved in the crime, i.e., the one who catches the victim with the intention to kill, the one who strikes the lethal blow and the one who orders the victim to be killed] shall be executed—taking life for life. Apart from those, any others [involved in the crime] who cause the victim to be hit and killed by preventing [the victim from escaping] shall be punished by *dāmala.*  If young people, who are aware [that a murder is taking place] (*jānakāra javāna*) and who are past the age of 16 and up to the age of 65, do not hold back a murderer, but keep observing the unlawful murder of another person, they shall be fined 20 rupees each if their number is more than the [the number of] assailants and killers. If the observers [of the murder] are fewer in number than the assailants and killers, they shall


not be held accountable as to whether they were aware [that a murder was taking place], and they are old or young.

§  9 If someone, out of greed for property or out of any other form of envy, with intent [jointly with other people] kills another person during the day or night, 32 [whether he] strikes or stabs [the victim] with a weapon, administers poison, or causes [the victim] to fall or be swept away by pushing [the victim] from a steep sloping path, into a pond, a deep pit, well, river, ford, from a plank or suspension bridge, a wall, boat, tree, out of a window, from a balcony and roof, or [whether he] captures [the victim] in an isolated place and hangs [him] or gags his mouth with mud, cloth, weeds or the like, among the people [involved in the crime the following] shall be executed—taking life for life, irrespective of whether they were present when the murder took place or not: those who give the order to kill, those—irrespective of their number—who captured [the victim] in order for him to be murdered, those—irrespective of their number—who struck and pushed [the victim], those who planned the murder, gave the order and provided the weapon. Those who guarded the street [to prevent the victim's] escape, and those who surrounded the spot to facilitate the killing; they shall, in accordance with the *Ain*, be punished by *dāmala* and their share of property shall be confiscated*.* Other people who participated in the plot of murder and also went to the site, but did not use weapons, did not block the site [to facilitate the killing] and did not capture [the victim] shall, in accordance with the *Ain*, be imprisoned for 12 years and their share of property shall be confiscated. Those who participated in the plot of murder, but did not go to the site, shall be imprisoned for 6 years and their share of property shall be confiscated. They shall not be set free [from prison] even if double the fine is offered in lieu of imprisonment. If a woman kills a person in the [above mentioned] manner, she shall be punished by *dāmala.* If a woman commits such a crime on which this *Ain* imposes the punishment of *dāmala* for male [offenders], she shall be imprisoned for 12 years. In the case of offences which lead to the imprisonment of women, the women shall not be subjected to confiscation of their property and the term of imprisonment shall be half that of a man. If a fine is offered by women culprits in lieu of imprisonment, [the authorities] shall accept this and let them off.

<sup>32</sup> The phrase *rātadinakā vicamā* literally means 'in the middle of day and night'. However, in our context it means 'during day or night'.

§10 If someone, out of greed for property or out of any other form of envy, with intent [jointly with other people] kills another person, striking or stabbing [the victim] with a weapon, administering poison [to him], causing [him] to fall or be swept away by pushing [him] from a steep sloping path, into a pond, a deep pit, well, river, ford, from a plank or suspension bridge, a wall, boat, tree, out of a window, from a balcony and roof, or captures [him] in an isolated place and hangs [him] or gags his mouth with mud, cloth, weeds or the like, and the victim survives by coincidence, through the help of others, or by medical treatment, then among the people [involved in the crime the following] shall, in accordance with the Ain, be punished by *dāmala* and their share of property shall be confiscated: those who gave the order to kill, those who captured [the victim] in order for him to be murdered, those who struck and pushed [the victim], those who planned the plot of murder and gave the order—irrespective of their number and whether they went to the site of the murder when it took place or not. Those who guarded the street [to prevent the victim's] escape, and those who surrounded the spot to facilitate the killing shall, in accordance with the Ain, be [subjected to] the confiscation of their share of property and imprisonment of 6 years. Those who participated in the plot of murder and also went to the site, but did not use weapons, did not surround [the site of crime], and did not capture the victim, shall be [subjected to] confiscation of property and imprisonment of 3 years. Those who planned [the murder], but did not go to the site, and those who planned the murder, but had [their plan] revealed before it could be carried out, shall be [subjected to] confiscation of their property and imprisonment of 1½ years. They shall not be set free [from prison] even if double the fine is offered in lieu of imprisonment. If a woman commits such [a crime], she shall be imprisoned for 12 years if the punishment for a male [offender] is *dāmala*. In the case of offences which lead to the imprisonment of women, the women shall not be [subjected to] confiscation of their property and the term of imprisonment shall be half that of a man. If a fine is offered in lieu of imprisonment by women culprits, [the authorities] shall accept this and let them off.

#### **[5. Self-defence]**

§11 If [a group of] four persons without authority beats one person with sticks or their feet and the [assaulted] person takes out a weapon and pushes aside [the assailants] in order to save his life and someone dies, the [assaulted] person shall not be held accountable. If [a group of] 3 persons without authority beats one person with sticks or their feet and the [assaulted] person uses a weapon and [someone] is wounded, [the assaulted person] shall be assigned no blame.<sup>33</sup>

§12 If a man or woman, with the intention to kill cuts someone's throat,<sup>34</sup> stabs them, strikes them, crushes them under a log or rock, or strangles and gags the mouth of a man, woman or child, whether asleep or awake, [a male offender]—irrespective of whether [the victim] dies or survives by coincidence—shall be punished by *dāmala* and his share of property shall be confiscated, if he is a Brahmin or an ascetic [as specified] according to the *Ain*, and a female [offender] shall be punished by *dāmala*, but no property shall be confiscated. [Offenders] from the other castes shall be executed—taking life for life.

#### **[6. Bodily harm with lethal consequences]**

§1335 If somebody hits an unscathed person (*sābuda mānisa*) with a stick or stone and that person dies within 22 days from the pain of a festered wound which cannot be cured, and if the fact is ascertained that [the victim] died in consequence of this [blow], [an offender] who belongs to a caste group whose members may be executed shall be executed, [whereas an offender] who belongs to a caste group whose members may not be executed shall, in accordance with the Ain, be punished by *dāmala* and his share of property shall be confiscated. If [the victim] dies after 22 days and within 3 months, [the offender] shall be punished by *dāmala* and [his share of property] shall be confiscated. If the victim dies after 3 months, and within 6 months after the deed, from the pain of the same wound, which cannot be cured, [the offender] shall be fined 100 rupees; if he does not pay the fine, he shall be imprisoned. [If the victim dies] after 6 months [in consequence of the festered wound] or dies within 22 days, suffering from diarrhoea,

<sup>33</sup> This section suggests that if an assault is conducted by non-lethal means, the use of lethal weapons for self-defence is lawful only when there are more than two assailants.

<sup>34</sup> The verb *reṭnu* in the context of killing conveys the sense of cutting the throat slowly. Another verb, *sernu*, is synonymous with it (see NBŚ and T s.v. *reṭnu*  and *sernu*). Specifically, *reṭnu* expresses the method of sacrificing animals by letting the blood drip from the carotid artery.

<sup>35</sup> This passage formed the original Section 13, in the first edition of the MA, but was revised in the first amended version, i.e., MA-ED2 (see section 13kh). Therefore, MA-ED2 does not record it. The MA-ED1 has both the original and amended passage (MA-ED1 65/ §§13kh and 13b). Unlike the amended section, the original passage does not specify the period of time within which the offender is responsible for the death of the injured victim.

smallpox, Āṭhyā fever,36 emaciation (*khabaṭyā*)<sup>37</sup>, or dies by falling, being swept away, or being bitten by something which has teeth, [the offender] shall not be assigned the blame for killing a person. As far as the assault is concerned, [the offender] shall, in accordance with the respective [Art. 56] of the Ain, be fined and imprisoned.

§[13kh] If somebody hits an unscathed person with a stick or stone and that person dies from the pain of a festered wound, which cannot be cured, he shall be executed. [If the victim] dies in the meantime, suffering from diarrhoea, smallpox, Āṭhyā, emaciation (*khabaṭyā*), or by falling, being swept away, or being bitten by something which has teeth, [the offender] shall be subjected to the punishment for injuring, but shall not be executed.38

§14 If a person who has been beaten up lodges a complaint that someone has beaten him up and the person who has beaten him up is punished in accordance with the *Ain*'s [Art. 56] and [the victim] thereafter falls sick for around 2–4 days39 due to the pain resulting from the beating, but resumes his own work and walks around, and [then] dies because of another sickness within 22 days, the person who has beaten up [the victim] shall be assigned no renewed blame, because of the fact that [the victim] had already recovered and resumed working and walking around.

§15 If somebody strikes a person either with his foot, a stick, or a stone, and that person falls sick, becomes unable to walk and dies from the pain [resulting from the injury] within 22 days, it is understood that the person who struck has killed the victim. The murderer shall be executed—taking life for life. If [the victim] dies from that pain after 22 days have passed, [the assailant] shall not be executed, taking life for life, but shall be fined 60 rupees for the act of beating. If the amount of the fine is not paid, he shall, according to [what has been ruled elsewhere in] the Ain, be imprisoned.

<sup>36</sup> T (s.v. *ā̃ṭhe*) defines *āṭhyā* as 'a sort of remittent fever occurring on every eighth day, regarded as very fatal'.

<sup>37</sup> The term *khabaṭyā* literally means 'thin' or 'lanky'. It probably does not here denote any particular disease but refers rather to the health condition of a person that loses weight for some unknown reason (see. NBŚ s.v. *khapaṭe*).

<sup>38</sup> The relevant Article is *kuṭapīta jyū jakhama* 'On Brawling and Bodily Injury' (MA-ED2/56).

<sup>39</sup> The time frame given here is not to be understood literally but as an idiomatic expression for 'a couple of days'.

§16 If someone slaps a person on the cheek or hits [him] once on a sensitive part of the body (*kuṭhāũ*)<sup>40</sup> with his hand or with a lock bar<sup>41</sup> and the person [who has been hit] falls sick, cannot stand up because of the pain [resulting from the injury] and dies within 7 days, the [offender] shall be executed. If the victim dies after 7 days, [the offender] shall not be executed, taking life for life, but shall be fined according to the punishment for the offence of brawling. If that person who has been slapped on the cheek starts to walk, move and work after one or two days and dies within 7 days, [the offender] shall not be executed, taking life for life, but shall, in accordance with the *Ain*'s [Art. 58] 'On Brawling,' be punished.

#### **[7. Death under arrestment]**

§17 If somebody lodges a complaint against a murderer, thief, any other criminal (*bāpatī khatukī*  )42 or a bondservant or male and female slaves who have escaped from the house of their master, stating that such and such a person committed such and such an act, and the persons mentioned are arrested, tied up, fettered and brought [to the office concerned], those who arrest [the accused ones] or put [them] into prison shall not be held accountable, if [those being arrested] die by jumping into or falling from a river, steep sloping path, deep pit, window, well, suspension bridge or a rock, by being swept away, by consuming poison [at the place] where they have been imprisoned, by cutting their throat or by hanging [themselves].

§18 If a person with the intention to kill and without [legal] authority captures or ties up another person, he shall be executed, if he belongs to a caste group whose members may be executed. If he belongs to a caste group whose members may not be executed, he shall be punished by *dāmala*. If someone who is sent to be arrested by an *aḍḍā*, *adālata* or *amāla* office is arrested and, while being brought [to the concerned office], someone assaults and kills him in the meantime, the one who kills [the person under arrest] shall, in accordance with the Ain, be punished. The person who arrested [the victim] shall not be held accountable.

<sup>40</sup> The term *kuṭhāũ* (suffix *ku*+*ṭhāū̃*) primarily means 'bad place or improper place' and secondarily refers to the sensitive and vulnerable bodily organs (see NBŚ s.v. *kuṭhāū̃*).

<sup>41</sup> The NBŚ (s.v. *argalā*) records the term *argalā*, which is probably a vernacular form of *arghyālo*, denoting a wooden door bolt.

<sup>42</sup> The meaning of these two terms is not distinguishable. Both terms denote a convicted criminal, especially one accused of committing adultery or theft (NBŚ s.v. *khatukī, bāpatī*).

§19 If a bailiff or soldier, by order of the *hākima* of an *aḍḍā*, *adālata* or *amāla*, is sent to arrest someone [accused] on an issue of money, immovable property, quadrupeds, male and female slaves, or of a transaction (*linadina*)<sup>43</sup> or the like, and the arrestee—while being brought [to the court]—is assaulted and killed on the way by someone, [the assailant]—if he is a Brahmin—shall, in accordance with the Ain, be punished by *dāmala* and his share of property shall be confiscated, whereas if [the assailant] belongs to another caste [that may be executed], he shall be executed. The bailiff or soldier who arrests and brings [the accused to the court] shall not be held accountable. If [the accused] is arrested and brought [to the court] without the order of the *hākima* of an *aḍḍā*, *adālata* and *amāla* and is attacked and killed by someone on the way, as many [people] as attack [the accused], that many shall be executed, if they belong to the caste groups whose members may be executed. If they belong to a caste group whose members may not be executed, they shall, in accordance with the Ain, be punished by *dāmala* and their share of property shall be confiscated. The one who arrests [the accused] and the one who brings [him to the court] shall not be executed, but their share of property shall, in accordance with the *Ain*, be confiscated and they be let off.

#### **[8. Extradition]**

§  20 If someone kills a person and flees towards Madhesa<sup>44</sup> or Tibet, and crosses the border at a border pillar or a border [demarcation], he shall be caused to be brought back, after communication with the [British] Resident if he flees to Madhesa, and with the Chief Kājī if he flees to Tibet. Then, he shall be executed—taking life for life. [A domestic authority] shall not go to a foreign territory and execute or even arrest [anyone].

<sup>43</sup> Lit. 'taking and giving'. This refers to such transactions as credit arrangements and sales contracts that involve future obligations on the part of one or more of the parties.

<sup>44</sup> The term *madhyeśa (*Skt. *madhyadeśa* and var. *madeśa/madesa)* literally refers to the flat land south of the Himālaya, north of the Vindhya Mountain range, east of Kurukṣetra and west of Prayāga. This means that the southern flatlands in the possession of the Nepalese state fell at that time within Madeśa*.* In this context, however, the term refers to the expanse of flat land controlled by the British in colonial India. The other term, *bhoṭa*, used to designate Tibet, also supports the argument that both terms were used to indicate neighbouring realms (see also NGMPP K 175/18, Document 4 below).

#### **[9. Failure to provide assistance]**

§  21 If someone attempts to kill a person and the victim asks for help, but the people who hear his voice (*khabara*) do not provide any help, they shall be fined in consideration of the person: 25, 20, 15 and 10 rupees, respectively, for [persons of the] *abbala*, *doyama*, *sima* or *cahāra* categories. If the fine is not paid, they shall, in accordance with the Ain, be imprisoned.<sup>45</sup>

#### **[10. Exceptions from homicide law and failure to report about homicide]**

§  22 If someone kills a person, the murderers and the plotters shall, in accordance with the Ain, be punished, except for issues [involving] the king, prime minister and envoys coming from different countries. The following people who are not involved in the homicidal plot, but hide facts, even though they know about it, shall not be subjected to any punishment: [the offender's] father, mother, wife, full brother and full sister, son and daughter, mother-in-law and son-in-law. If the following officials hide the [homicidal plot], even though they know about it, their share of property shall, in accordance with the Ain, be confiscated and they shall be imprisoned for 1 year and [afterwards] be let off: *dvāres*, *mukhiyās*, *tharīs*, *nāikes*, *mahānes*, *pradhānas*, *mijhāras*, *jeṭhā*-*buḍhās*, *gauruṅs* and *kaṭuvālas*. If a commoner of the village hides the [homicidal plot], even though he knows (lit. hears) about it, his share of property shall, in accordance with the *Ain*, be confiscated and he shall be let off.46


#### **[11. False accussation]**

§  23 If someone comes to say that somebody has plotted to kill someone else and the accused one is caused to be brought there and is interrogated, but it is ascertained that no plot was planned and this false accusation was made out of anger, the false accuser, [if he is] a man, shall be [subjected to] confiscation of his [share] of property and shall be imprisoned for 2 years; a woman shall be fined 20 rupees and, unless the fine is paid, she shall be imprisoned.

#### **[12. Assault on security personnel]**

§  24 If someone opens fire with a rifle, releases an arrow or discharges [any other] weapon which injures a sentry of a government treasury or of any [other] treasury, a guard of any other place who watches by order or command, a sentry [watching] money, immovable property, quadrupeds or a person, or a sentry patrolling during the night—irrespective of whether the victim dies or not—he who discharges the weapons shall be executed, even if only blood is drawn. If the weapon is discharged, but no blood is drawn, the [assailant] shall be punished by *dāmala*.

#### **[13. Permitting or facilitating escape]**

§  25 If someone lets a murderer escape, who earlier had been forbidden by a *lālamohara* or daskhata to make a journey, in that he takes a bribe or out of greed, he shall be punished by *dāmala*. If someone lets a thief escape, whatever [amount] is stolen shall be taken from the one who lets the thief escape. If the thief is found, he shall be handed over to the person [who let him escape] and that person shall be told to recover the fine [from the thief]. If someone lets a perpetrator escape who commits [an offence] in matters other [than murder and theft] and flees, the one who lets the perpetrator escape shall be punished by the same punishment and fine as prescribed for the absconder.

Kathmandu Valley and local officials who collected revenue in villages within the Valley (Edwards 1975: 109). According to M.C. Regmi, however, there were four *pradhana*s in the Valley to assist the *dvāre*s in discharging similar functions (M.C. Regmi 1970a: 224). The *mijhāra*s were revenue collectors or headmen of certain low occupational castes and Mongoloid communities, such as Tamauta and Lohāra. They collected levies from the families of castes or communities under their jurisdiction (Karmacharya 2001b: 92). *Jeṭhā-budhā*  literally means 'elder man'. It used to be applied to elderly and experienced village notables. According to Whelpton, it was also applied to royal messengers and investigators (Whelpton 1991: 283). The post *gaurūṃ,* according to Karmacharya, was a village agent who served under a *mukhiyā* (Karmacharya 2001b: 92). The post *kaṭuvālyā* was another civil functionary.

#### **[14. Attack on security station]**

§  26 If someone uses a weapon in a police station or sentry post established by [official] order and kills or hits the sentry—irrespective of whether the sentry dies or stays alive after being injured—the one who opened fire in the police station shall be punished by *dāmala*, if he belongs to a caste whose members are to be punished by *dāmala* as punishment for murder. If he [belongs] to a caste group whose members may be executed, he shall be executed.

§  27 If someone—while being stopped by a sentry or a guard saying: '[one shall not] enter into the watch-house or the sentry post [established by official] order'—takes out a weapon [in order to attack] the sentry or guard or aims a rifle [at him], that sentry or guard shall kill [the assailant]. [In so doing, the sentry or guard] shall not be held accountable.

#### **[15. Attempted homicide]**

§  28 If a man—who, with the intention to kill a person, is ready to administer poison to someone else or lies in wait for [him] in a narrow street or narrow pass—is arrested, and while obtaining a confession from him (*sābita garnu*), it transpires that he has not taken the [victim's] life, [but] had the intention [to do so], all those who joined the plot of murder shall be imprisoned for 9 years. If a weapon is used, but [the victim] survives [nevertheless], the one who used the weapon shall be imprisoned according to [the severity] of the wound, as measured by the length of the wound in cases of striking, and the depth in cases of stabbing. If the wound is one finger's breadth [long or deep], [the perpetrator] shall be imprisoned for 7 years; if it is two fingers' breadth [long or deep], he shall be imprisoned for 8 years. The culprit shall be imprisoned for a number of years corresponding to how many fingers' breadth [long or deep] the wound is. Whoever joined the plot [of murder], but did not use a weapon [himself], shall be imprisoned only for 6 years. If poison is administered, but [the victim] does not die, the one [who administered] the poison shall be imprisoned for 12 years. Even if the [perpetrators] say that [they will] pay double the fine in lieu of the prison term, they shall not be [permitted] to pay it and shall not be let off. If the [perpetrators] are set free in that the fine is accepted [that is in lieu of the prison term], the *hākima* of the *adālata*, *ṭhānā* or *amāla* shall be imprisoned proportionally to the imprisonment of that perpetrator. If it transpires, while obtaining a confession, that a person is killed, the one who plotted [the murder] (*matalaba dinu*) and the one who killed the person shall be executed—taking life for life.

§  29 If a woman—who, with the intention to kill a person, is ready to administer poison to someone else or lies in wait for [him] in a narrow street or narrow pass—is arrested and, while obtaining a confession from her, it transpires that she has not taken the [victim's] life, [but] had the intention [to do so], all those who joined the plot of murder shall be imprisoned for 3 years. If a weapon is used, but [the victim] survives [coincidentally], the one who used the weapon shall be imprisoned according to [the severity] of the wound as measured by its length in cases of striking, and depth in cases of stabbing. If the wound is one finger's breadth [long or deep], [the perpetrator] shall be imprisoned for 4 years, if it is two fingers' breadth [long or deep], she shall be imprisoned for 5 years. The culprit shall be imprisoned for a number of years corresponding to how many fingers' breadth [long or deep] the wound is. Whoever joined the plot [of murder], but did not use a weapon [herself], shall be imprisoned only for 3 years. If poison was administered, but [the victim] did not die, the one [who administered] the poison shall be imprisoned for 12 years. Even if the [perpetrators] say that [they will] pay twice the fine in lieu of the prison term, they shall not be [permitted] to pay this and shall not be let off. If the [perpetrators] are set free by accepting the fine [in lieu of the prison term], the *hākima* of the *adālata*, *ṭhānā* or *amāla* shall be imprisoned in proportion to the imprisonment of that perpetrator. If it transpires, while obtaining a confession, that a person was killed, the woman who plotted [the murder] and the woman who killed the person shall be punished by *dāmala*.

#### **[16. Regulation on capital punishment]**

§30 When executing criminals who have committed homicide, they shall either be beheaded or hanged. They shall not be put to death by any other means. If the prime minister (*bajira*) orders an execution by any other than these two methods, he shall be fined 1,000 rupees.

#### **[17. Bodily harm without lethal consequences]**

§31 If someone dies having jumped or having [accidently] fallen into a pond, a well, a river, from a beam bridge, a suspension bridge, a tree, a window, a balcony, a roof, or into a deep pit, or committed suicide by hanging or by using a weapon, or by consuming poison, or if he consumed intoxicants, went unconscious and died, or hit against something and died, or fell down with the load he was carrying and died, or died being hit by a stone that fell down while going to a forest, or died all of a sudden without being sick or injured, or died while he was asleep, or someone else killed him using a weapon, and if a third person out of anger and malice comes to complain that such and such a person killed such and such a person, and if the person who is accused is summoned and interrogated, but the accuser could not present any evidence and witnesses and could not prove that the one who is accused in fact killed that person, and if it is ascertained that it was a natural death as explained above or it was a suicide, or it was an accidental death, or it is proved that the person who was reported to be dead is alive, such a false complainer shall be imprisoned for 5 years. Even if he pays twice the amount set for cancelling the prison term, it shall not be accepted and he shall not be let off. He shall be imprisoned. If such a false complainer is a woman, and if she could not prove it, she shall be imprisoned for 2½ years. If she pays twice the amount set for cancelling the prison term, it shall be accepted and she shall be let off.

§32 If someone assaults someone else with a club, stone, stick, his hand, foot or the like, and that person is capable of walking and taking up his work after being incapacitated for a few days, but dies within 22 days due to another disease, his death shall be considered a natural death and the assailant shall not be convicted as a murderer, but shall, according to the *Ain*'s [Art. 58] 'On Brawling,' be punished.

#### **[18. False accussation in a doubtful case]**

§33 If someone assaults a person and that person is not incapacitated or recovers and takes up his work, but dies after 22 days due to another disease and someone lodges a complaint, saying 'that person died before 22 days have passed because of the pain of your beating,' and it becomes known after an investigation that he died after 22 days had already passed, action shall be taken only to the extent required by what had happened when the brawl took place. The [perjurer] who lodged the complaint shall be liable to the punishment of imprisonment for 1½ years. If a perjurer exaggerates what had happened and lodges a complaint out of anger, he shall be imprisoned for 2½ years. If the [perjurer] pays twice the fine required in lieu of imprisonment, it shall be accepted and he shall be set free. If a woman commits [perjury], she shall be imprisoned for half of the [term of a man].

#### **[19. Homicide under influence of drugs]**

§34 If two people go together, but unaccompanied, to a foreign territory, forest or site of work or the like, and one of them dies, either when both are together, or [one is] slightly behind or ahead while crossing a river, walking on a mountain track or swimming, either because he is hit by a stone or a log [falling from the hill], or he falls, or is swept away, and his travel mate goes to the home of the deceased one and explains that such and such a person died in such and such a manner, but the relatives of the deceased person doubt it and come to complain, saying 'this person killed such and such of our [relatives] out of malice,' yet during the interrogation it is not ascertained through eyewitnesses that there was hatred among the two [travellers], and it is ascertained that the [deceased] died of a natural cause and the complaint was made because of suspicion attaching to the fact that only two people travelled [together], the family member who lodged the complaint shall not be subjected to any punishment. If somebody else lodges [such a] complaint out of anger, he shall be imprisoned for 2½ years. If twice the fine required in lieu of imprisonment is paid, it shall be accepted and he shall be set free. If [the perjurer] is a woman, she shall be imprisoned for 1½ years.

#### **[20. Homicide by a person of unsound mind]**

§35 If someone consumes an alcoholic drink (*jā̃ḍa*-*raksī*), liquor (*araka*), opium, *bhāṅga*, <sup>47</sup> *dhaturo*<sup>48</sup> or the like, and assaults someone verbally or physically or breaks any limb of a person, he shall, according to the *Ain*'s [Art. 56] 'On Assault and Bodily Injury', be punished. If it is ascertained that [the victim] lost his life, the perpetrator shall be punished by *dāmala* and his share of property shall be confiscated, if he belongs to a caste group whose members are liable to being shaved [instead of being sentenced to death]. If he belongs to a caste group whose members may be executed, he shall be executed.

§36 If an insane person who does not know what is to be done and what not, eats unsuitable food that leads to his caste degradation, roams around [as if he were] in the state of liberation (*nirvāṇa*) and kills a person, he shall, in accordance with the *Ain*, be punished by *dāmala* and his share of property shall be confiscated. If that insane person knows what is to be done and what not, does not eat inedible food and does not roam around [as if he were] in the state of liberation, he shall, in accordance with the *Ain*, be punished by *dāmala* and his [share] of property shall be confiscated, if he belongs to a caste group whose members are liable to being shaved [instead of being sentenced to death]; he shall be executed, if he belongs to a caste group whose members may

<sup>47</sup> An intoxicating drink made from hemp leaf.

<sup>48</sup> Thorn-apple, the seeds of which are intoxicating and poisonous.

be executed. If it transpires that this insane person did not eat unsuitable food before [committing homicide], but it is ascertained that he started eating afterwards, it is understood that this person ate unsuitable [food] in order to save his life. Such an insane person shall, in accordance with the *Ain*, be punished by *dāmala* and his share of property shall be confiscated, if he belongs to a caste group whose members are liable to being shaved [instead of being sentenced to death]; he shall be executed, if he belongs to a caste group whose members may be executed.

#### **[21. Homicide of a sick or wounded person]**

§37 If it transpires that someone contracts diseases such as Āṭhyā, emaciation or [any other] fever, dysentery, diarrhoea, bloody diarrhoea, gout, colic and asthma, and is ill due to having been beaten up by somebody earlier or collided [with something], or having fallen, and if such a person is sick in such a manner that he is unable to work because of his illness, and this person is killed by someone else, and even if the [perpetrator] struck only once, it shall be deemed that he killed the person and not that the [victim] died in consequence of his illness. The murderer shall, in accordance with the Ain, be punished by *dāmala* and his share of property shall be confiscated, if he belongs to a caste group whose members are liable to being shaved [instead of being sentenced to death]; he shall be executed, if he belongs to a caste group whose members may be executed. If the person who was beaten up has not died, the [perpetrator] shall, be fined and imprisoned twice as much as what is laid down in the *Ain*'s [Art. 58] 'On Brawling.'

§38 If someone kills a person by assault, who has fallen sick and is bed-ridden with an abscess or some such, even if the [perpetrator] strikes only once, it shall be deemed that the [victim] was killed by him and not that the [victim] died in consequence of his illness. The murderer shall, in accordance with the Ain, be punished by *dāmala* and his share of property shall be confiscated, if he belongs to a caste group whose members are liable to being shaved [instead of being sentenced to death]; he shall be executed, if he belongs to a caste group whose members may be executed. If the person who was beaten up has not died, the [perpetrator] shall be fined and imprisoned twice as much as what is laid down in the *Ain*'s [Art. 58] 'On Brawling.'

§39 If somebody is beaten by someone, and another person beats him again before the beaten person has recovered, and within eight *ghaḍī* or up to 22 days after [the first incident] the beaten person dies, the first assailant shall be found guilty for his assault and shall, according to the *Ain*'s [Art. 58] 'On Brawling,' be fined and imprisoned. The later assailant shall be found guilty of killing a person and shall, in accordance with the Ain, be punished by *dāmala* and his share of property shall be confiscated, if he belongs to a caste group whose members are liable to being shaved [instead of being sentenced to death]; he shall be executed, if he belongs to a caste group whose members may be executed. If the person who was beaten up has not died, the [perpetrator] shall be fined and imprisoned twice as much as what is laid down in the *Ain*'s [Art. 58] 'On Brawling.'

#### **[22. False accussation]**

§  40 If somebody comes to complain that such and such a person has done such and such, and upon interrogation it is ascertained that it is merely a perjury, the perjurer who makes a false accusation of homicide and writes and also signs a statement at a *kacaharī* office, shall be subjected to that punishment which is laid down for a perjurer of homicide. If it transpires that the [perjurer] has not written and signed [such a] statement and the *beḍī* 49 and *karpana*50 fees are not paid and [the perjurer] says that he is not able to make [the defendant] confess, it shall be deemed verbal assault, and he shall be punished with a fine of 20 rupees if the affair [could have] led to a death [sentence]. If it [could have] led to the punishment of *dāmala*, the [perjurer] shall be fined 15 rupees. If the fine is not paid, he shall, in accordance with the Ain, be imprisoned.

§  41 If someone is arrested and brought before an *aḍḍā*, *gauḍā*, *adālata* or *amāla* [to stand trial] in a case involving homicide, and if he confesses to the crime and is brought before the Iṭācapalī [court], then if the evidence of direct witnesses who have provided written depositions—those who saw [the crime] or know [about it]—or [in the form of] confessions written by third parties corresponds with what the offender has asserted, there is no need to summon the direct witnesses and third parties. The offender shall be dealt with in accordance with the Ain. If the particulars of the evidence [from] the direct witnesses and the written confessions of third parties differ from what the offender has stated, the persons and evidence shall be brought forth as required, and whatever is decided upon interrogation shall be carried out in accordance with the *Ain*.

<sup>49</sup> A fee for the initiation of a trial concerning debt recovery.

<sup>50</sup> "A fee of five rupees taken by the court from each party. By paying, the litigants express their will to have the case decided by ordeal" (Khatiwoda, Cubelic & Michaels 2021: 863).

#### **Translation of Articles 1–4 in the 3rd Part of the 1870** *Ain*

#### On Homicide

#### **[1] On assaulting a sentry**

§1 If somebody discharges a weapon, [such as] a rifle [or] an arrow, at a sentry [guarding] a fortified entrance (*deuḍhī*)51 [or] an armoury/treasury, [or assigned] to any other location by [lawful] order or command (*hukum kamān*)52 [for the purpose of] safeguarding money or goods, animals or persons; or else [shoots at] persons on a shift patrolling [the streets] [or] doing night duty,53 [thereby] injuring [them], [the assailant] discharging the weapon shall be executed—taking life for life—[irrespective of] whether the man on the shift dies or not. Even if only blood is drawn, [the assailant] shall be executed. If it turns out that [the assailant] has fired (*calāunu*) a weapon but no blood is drawn, [the assailant] shall be branded.

§  2 If anybody wielding a weapon at a guard post or sentry box established by royal decree (*hukumale rahanu*) kills54 or incapacitates a sentry, irrespective of whether the victim dies or survives with injuries, he who wields the weapon at the guard post shall be branded if he belongs to a caste group whose members are to undergo *dāmala* when charged with convicted of murder, [while] if he is from a caste group whose members are to be sentenced to death, he shall be executed.

§3 When a guard or sentry prevents somebody from entering a locality which the guard or sentry is assigned to guard by royal decree and [that person] unsheathes a weapon or points a rifle [at him], the guard or sentry shall kill him. No blame shall be assigned.

§  4 Whoever, having taken a bribe or out of greed or partiality (*kharkhusāmat mayāmolāhijā*), lets a murderer escape along a route that has previously been closed to travel by a *lālamohara* or *daskhata*


shall be branded. If [someone] lets a thief escape, whatever [amount] is stolen shall be taken from him who lets the thief escape. If the thief is found, he shall be turned over to the person [who let him escape,] and that person shall be told to recover the fine [from the thief] and return it [to the court]. If someone lets a fleeing perpetrator of some other [crime] escape, he shall be punished with the same punishment and fine as prescribed for the escapee.

#### **[2] The law to be imposed in cases of unintentional manslaughter and injury**

§1 When somebody during the night strikes what he misperceives as an animal or something else and a human, who dies in, the [act] shall be taken as a mishap (*bhora*) if it is apparent that the slayer and the deceased harboured no [mutual] malice or engaged in a dispute [concerning] some matter—[each other's] physical body (*jyū*), land, wives, [material or landed] property, cattle etc. [In such circumstances] the slayer shall not be charged with murder. The slayer shall be granted expiation for having committed manslaughter after being made to pay 50 rupees to cover expenditures for the funerary rites of the deceased, made to visit 1 place of pilgrimage [and] made to give, as a religious fee (*godāna*) to the *dharmādhikārin*, 15 rupees for *abbala* [land], 10 rupees for *doyama* [land], 5 rupees for *sima* [land] and 2 rupees for *cahāra* [land].

§  2 If somebody hunting in a jungle discharges a rifle or arrow without being certain that [the target] is a deer or [other] animal, and a human dies in that shooting, it shall be considered as an accident if it is apparent that the slayer and the deceased had previously harboured no [mutual] malice or engaged in a dispute [concerning] some matter. The slayer shall be made to pay 50 rupees to cover expenditures for the funerary rites of the deceased. He shall not be accused of taking a life. If [the victim] did not die but was only injured, he who shot shall be made to pay 10 rupees as general damages for pain and suffering (*ghākharca*). No other blame shall be assigned.

§3 When somebody, in [trying to] strike a land animal or bird with a stone, cane or stick (*jhaṭāro*), or to cause fruit to fall [from a tree], hits [instead] a human and that person dies, it shall be taken as an accident if it is apparent that the striker and the deceased had previously harboured no [mutual] malice or engaged in a dispute [concerning] some matter. No action shall be taken against him who took [the other's] life. The striker shall be made to pay 50 rupees to cover the expenses of [the victim's] funerary rites. If the [victim] did not die but was only injured, the striker shall be made to pay 10 rupees as general damages for pain and suffering. No other blame shall be assigned.

§  4 If somebody, in discharging a rifle inside a city or village, near a city or village, or along an alley or path—[any] place where people frequent—without [first] impelling people to remove themselves [from the line of fire] and without taking [other] measures lest they be hit by a bullet, shoots a person and [that person] dies, it shall be taken as an accidental [occurrence] if it is apparent that the shooter and the deceased had previously harboured no [mutual] malice or engaged in a dispute [concerning] some matter. The shooter shall be made to pay 100 rupees to cover the expenses of [the victim's] funerary rites. No action shall be taken against him who took [the other's] life. If the [victim] did not die but was only injured, [the shooter] shall be made to pay 50 rupees as general damages for pain and suffering. No other blame shall be assigned.

§  5 If, because of [implement] breakage, slippage or [other] loss of control when being discharged, a person is struck by an arrow or bullet shot from a bow, rifle or handgun, or by a sword or *khukurī* <sup>55</sup> while an animal is being slaughtered, and that person dies, it shall be taken as an accidental [occurrence] if it is apparent that the slayer and the deceased had previously harboured no [mutual] malice or engaged in a dispute [concerning] some matter. The slayer shall be made to pay 50 rupees to cover the expenses of [the victim's] funerary rites and be made to undertake expiation by compelling him to pay 5 rupees as a religious fee (*godāna*) to a *dharmādhikārin*. No action shall be taken for having taken [the other's] life. If the [victim] did not die but was only injured, the slayer shall be made to pay 10 rupees as general damages for pain and suffering. No other blame shall be assigned.

§  6 If a person dies through being struck by an axe, *khukurī,* sickle (*khurpā*), wood-cutting knife (*cupī*) or the like which has slipped out of [the wielder's hand] while cutting a tree or log, it shall be taken as an accidental [occurrence] if it is apparent that the slayer and the deceased had previously harboured no [mutual] malice or engaged in a dispute [concerning] some matter. The slayer shall be made to pay 20 rupees to cover the expenses of [the victim's] funerary rites and be made to undertake expiation by compelling him to pay 5 rupees as a religious fee (*godāna*) to a *dharmādhikārin*. No action shall be taken against [the

<sup>55</sup> A knife with an inwardly curved blade, used both as a tool and as a weapon; for an illustration (see Kirkpatrick 1811: 118–119).

slayer] for having taken [the other's] life. If the [victim] did not die but was only injured, the slayer shall be made to pay 5 rupees as general damages for pain and suffering. No other blame shall be assigned.

§  7 If a tree when being felled topples, a branch when being cut falls, or a log when being sectioned gets out of control, or when wood is being dragged or rolled—when, [for example,] trees are being felled and wood being dragged when a field is being cleared and ploughed— [and a person] is crushed [to death]; or else when a path, water channel or temple is being constructed or a mound being levelled, a person or cattle are hit by a stone [or other] round object—[for example,] bricks or wood which has slipped out of control and could not be stopped—it shall be taken as an accidental [occurrence] if it is apparent that the slayer and the deceased had previously harboured no [mutual] malice or engaged in a dispute [concerning] some matter. He who occasioned the falling of [such objects] need not pay [any sum] to cover the expenses of [the victim's] funerary rites, nor need he undertake any expiation. No blame shall be assigned.

§  8 In cases where men, women or children are being led across a river or ford (*jãghāra*) and sink into [the river] and are swept away and drown, having slipped loose from the grip of the person leading them across, the latter having had insufficient strength to hold them back, it shall be taken as an accident if it is apparent that the person leading them across the river and the deceased had previously harboured no [mutual] malice. No blame shall be assigned to him who had been holding on [to the deceased]. He need not cover the expenses of [the victim's] funerary rites nor undertake expiation.

§  9 If a person or four-footed farm animal dies upon falling into [such] traps [as] a *solā phyāṅ*, *solā phaḍkyā*, *darjan* or *dharāpa* set up on paths in [or around] a redoubt, path, fortress or fort that were closed down earlier by order of His Fivefold Venerable Majesty [the King], no blame shall be assigned either to him who had ordered [the trap] to be set up or him who set it up. They need not cover the expenses for [the victim's] funerary rites nor pay general damages for pain and suffering. They need not pay an expiatory fine nor undertake any expiation.

§10 Except in cases where a tiger, bear, boar or the like has slain a human or four-footed farm animal or else eaten standing or harvested crops, nobody shall set up traps for hunting [them]. If somebody does set up a trap and a human dies upon falling into it, he who set up the trap shall be [punished] by confiscating his share of property in accordance with the *Ain* [and] taking ten percent of it; by being made to give compensation [enough] to [cover] all the expenses of the deceased's funerary rites; and by imprisoning [him] for 6 years. If the fine [required for avoiding imprisonment] is paid, it shall be accepted and he shall be set free. If [the victim] did not die but was only injured, [the offender] shall be made to pay 50 rupees as general damages for pain and suffering and shall be fined 50 rupees. If only a four-footed farm animal fell into [the trap and died], [the offender] shall be compelled to pay that animal's owner an amount settled upon by *pañca* (an assembly of elders forming a local judicial body) and be fined an amount equal [to that paid to the owner].

§11 If, as a countermeasure to a tiger, bear, boar or the like having killed a human, somebody sets a trap, such as a *solā, phyāṅ, phaḍkyā, darjana* or *dharāpa*, after informing [persons in advance] at the village, [but] without guarding [the approach to the site] at night himself, and some person other than those who have been notified in advance falls into the trap and dies, he who set the trap shall be compelled to pay 25 rupees for the expenses of the [deceased's] funerary rites and be fined 25 rupees. If the [victim] does not die but is only injured, [the setter of the trap] shall be made to pay 12 rupees as general damages for pain and suffering; however, he shall not be subjected to a fine. If a person who has been notified in advance falls into the trap, [the setter of the trap] need not pay the expenses either for [treating] an injury or for funerary rites, nor need he pay a fine or [undertake] expiation.

§12 If, as a countermeasure to a tiger, bear, boar or the like that, rather than killing a human, has only eaten standing or harvested crops or [killed] a four-footed farm animal, somebody sets a trap or the like, after informing [persons in advance] at the village, [but] without guarding [the approach to the site] at night himself, and some person other than those who have been notified in advance falls into the trap and dies, [the authorities] shall compel the one who set the trap to pay 50 rupees for the expenses of the deceased's funerary rites and fine him 50 rupees. If [the victim] did not die but is only injured, [the setter of the trap] shall be made to pay 25 rupees as general damages for pain and suffering; however, he shall not be subjected to a fine. If a person who has been notified in advance falls into the trap and dies, [he who set the trap] shall be compelled to pay 12 rupees for the expenses [of the deceased's] funerary rites; if [someone who has been notified in advance] falls into the trap and is only injured, [he who set the trap] shall be made to pay 6 rupees as general damages for pain and suffering; however, he shall not be subjected to a fine, nor need he [undertake] expiation.

§13 If, as a countermeasure to a tiger, bear, boar or the like having killed a human [or] four-footed farm animal or having eaten standing or harvested crops, somebody sets up a trap—a *solā* or the like—after informing [persons in advance] at the village, and a four-footed farm animal falls into the trap and dies, no blame shall be assigned to him who set the trap.

§14 If, as a countermeasure to a tiger, bear, boar or the like having killed a human, somebody sets a trap—a *solā* or the like—along a path, at a public water source [or] in a *bārī* 56, *kareso*<sup>57</sup> or the like without informing [persons in advance] and without guarding [the approach to the site] at night himself, and some person falls into the trap and dies, the whole of the property of him who set the trap shall be confiscated in accordance with the *Ain*, with ten percent (*dasauda*) of it taken [as a fine]; in addition, [the offender] shall be compelled to pay for the expenses of the deceased's funerary rites and shall be imprisoned for 6 years. If [he] pays the sum [for waiving the prison] term, it shall be accepted. If [the victim] does not die [but] is only injured, [the setter of the trap] shall be made to pay 50 rupees as general damages for the pain and suffering and be fined 50 rupees.

§15 If, as a countermeasure to a tiger, bear, boar or the like having killed a human, somebody sets a trap—a *solā* or the like—along a path, at a public water source [or] in a *bārī, kareso* or the like without guarding [the approach to the site] at night himself, and a four-footed farm animal falls into the trap and dies, no blame shall be assigned to him who set the trap.<sup>58</sup>

§16 If, as a countermeasure to a tiger, bear, boar or the like that, rather than killing a human, has only eaten standing or harvested crops or [killed] a four-footed farm animal, somebody sets a trap—a *solā* or the like—along a path, at a public water source [or] in a *bārī*, *kareso*  or the like, without informing [persons in advance] at the village and without guarding [the approach to the site] at night himself, and a person falls into the trap and dies, the share of property of the one who set the trap shall be confiscated in accordance with the *Ain*, with ten percent (*dasauda*) of it taken [as a fine]; in addition, [the offender] shall be compelled to pay for all the expenses of the deceased's funerary rites

<sup>56</sup> A flower or vegetable garden around a house. The word is related to Sanskrit *vāṭikā*.

<sup>57</sup> The term *kareso* (Skt. *gṛhāṃśa*) denotes the portions of land belonging to a household other than the area taken by the house itself and the front yard (i.e., the areas along the sides and to the back of the house).

<sup>58</sup> This Section is very similar to Section §13 above.

and shall be imprisoned for 6 years. If [the setter of the trap] pays the sum [for waiving the prison] term, it shall be accepted and he shall be set free. If [the victim] does not die [but] is only injured, [the setter of the trap] shall be made to pay 50 rupees as general damages for pain and suffering and be fined 50 rupees.

§17 If, as a countermeasure to a tiger, bear, boar or the like, rather than killing a human, having only eaten standing or harvested crops or [killed] a four-footed farm animal, somebody sets a trap—a *solā* or the like—along a path, at a public water source or in a *bārī*, *kareso*  or the like without informing [persons in advance] at the village, and also without guarding [the approach to the site] at night himself, and a four-footed farm animal falls into the trap and dies, [the offender] shall be compelled to pay that animal's owner an amount settled upon by *pañca* and shall be fined an amount equal [to that paid to the owner].

§18 The ten percent [fine] on the whole is not levied on the amount paid for the deceased's funerary rites or as general damages for the pain and suffering. [An amount based on either of them] shall not be taken.

#### **[3] Being held captive and having food and water withheld**

§1 If somebody holds captive somebody else without providing him food and water [on the grounds that he] ought to be held captive because of a dispute involving gold or silver, metal vessels, cash or commodities, precious stones or jewellery, land, male or female slaves, caste, real property, fields, water channels, water [sources], [right of] way, adultery, trade or a married woman (*svāsnī* i.e., nuptial issues), and if the captive dies, [the offender]—if he belongs to a caste whose members may be shaved [but not executed]—shall be branded and his share of property shall be confiscated in accordance with the *Ain*. If [such an act] was carried out by a woman, she shall be branded but her property shall not be confiscated. If the person who killed [the victim]—having [first] taken him captive and then withheld food and water—belongs to a caste whose members may be executed, [he] shall be executed taking life for life. A fine of 5 rupees shall be imposed if [he] held [the victim] captive and withheld food and water only for 1 night and 1 day; 15 rupees for 2 days, 30 rupees for 3 days, 60 rupees for 4 days, 120 rupees for 5 days, 240 rupees for 6 days, 480 rupees for 7 days, 960 rupees for 8 days, 1,920 rupees for 9 days, 3,000 rupees for 10 days, 4,000 rupees for 11 days, 5,000 rupees for 12 days, 6,000 rupees for 13 days, 7,000 rupees for 14 days, 8,000 rupees for 15 days, 9,000 rupees for 16 days, 10,000 rupees for 17 days, 11,000 rupees for 18 days, 12,000 rupees for 19 days, 13,000 rupees for 20 days and 14,000 rupees for 21 days. If a woman holds someone captive [but the victim] does not die, she shall be fined half the [above] amounts. If the fine is not paid, [the offender] shall be imprisoned in accordance with the *Ain*.

§  2 If somebody holds captive somebody else [on the grounds that he] ought to be held captive because of a dispute involving gold or silver, metal vessels, cash or commodities, precious stones or jewellery, land, four-footed farm animals, male or female slaves, caste, real property, fields, water channels, water [sources], [right of] way, a married woman (*svāsnī* i.e., nuptial issues), trade, adultery or *khatachita* 59, and if, having provided him his own or the latter's food and water, the captive dies, he who held captive shall be assigned no blame. If he who holds captive provides food and water to the captive but the latter does not consume it, but dies [because of himself] in a fearful state of mind, he who held captive shall be assigned no blame.

§3 If somebody holds captive somebody else without providing him food and water [on the grounds that he] ought to be held captive because of a dispute involving gold or silver, metal vessels, cash or commodities, jewellery, land, four-footed farm animals, slaves, adultery, caste, real property, water channels, [right of] way, a married woman (*svāsnī* i.e., nuptial issues), *khatachita* or trade, and the captive dies, he who held captive—if he belongs to a caste whose members are subject to being branded—shall be branded, [whilst] if he belongs to a caste whose members may be executed, he shall be executed. [Any] offspring of those condemned by branding or execution shall not [be permitted to] receive goods or money, through personal [trade] transactions or lending and borrowing, from the offspring of him who died when [the other] held him captive. If [a tenant debtor] is held captive and, though denied food and water, [still] does not die, he who held captive shall be allowed to take [his contractual] money from the debtor [only] after he has paid the fine [mentioned in §1] corresponding to the number of days starting from the [first] day of captivity.

§  4 If a detainee [or] litigant who has been brought to an *aḍḍā, gauḍā, adālata, ṭhānā,* [or] *sadara daphadara*; the Kumārī Coka; an *amāla*; or a *rakamdāra, ṭheka*[*dāra*] [or] *ijārādāra kacaharī* does not

<sup>59</sup> The term *khatachita* refers to the *pañcakhata*, the fine for heinous crimes (see e.g., M.R. Pant 2002: 77 and 86; for different definitions of *pañcakhata* found in the literature, see ibid. 34). M. Gaborieau (1977: 253) n. 59 and Bouillier (1991: 11) define the term as a fine for illicit sexual relations. In present context, the term can be taken in its broader meaning.

receive food to eat for 1 day and 1 night, no blame shall be assigned. If [he] has been held without both food and water for 1 day and 1 night, officials shall be held accountable in accordance with the section of the *Ain* 'On Detainees.'

§  5 If a detainee or litigant enjoys both sufficient supplies of food from his own home and frequent visits from his close relations [or] servant[s] but proclaims that he has not received food and drink, his complaint shall not be heard. No blame shall be assigned regarding the matter to those who detained him.

#### **[4] The law pertaining to cases when a weapon is unsheathed or when a weapon causes injury**

§1 If, during a dispute over an incidental matter (*aru*, i.e., not a duel or premeditated attack), [a person] who has no intention of taking the life [of the other person] puts his hand to a *khukurī*, one-edged sword (*tarabāra*), double-edged curved sword (*khũḍā*), dagger (*kaṭārī*), spear (*bhālā*), unloaded gun or bow without doing any unsheathing and says, "I'll kill you," such a person shall be fined 2½ rupees.

§  2 If, during a dispute over an incidental matter, [a person] who has no intention of taking the life [of the other person] unsheathes a *khukurī*, *tarabāra*, *khũḍā*, *kaṭārī* or *bhālā* or targets [him] with a loaded gun or [with] a bow and arrow, and says, "I'll kill you," such a person shall be fined 20 rupees.

§3 If [one of two persons] who harbour no [mutual] malice and [are engaging in no] dispute is bearing a weapon such as a *khukurī* or *tarabāra*, and the tip comes out of its sheath while they are walking along a path and [the weapon] pierces, cuts or scratches [the other person], and if the one who is injured launches an official complaint, the one who bore the weapon negligently shall be fined 4 *ānā*s. If the former launches no complaint, no blame shall be assigned.

§  4 If a person, while frolicking, playing or walking [with another person], lays hand on a lethal weapon or the like that he was unaware the other was bearing, and is cut or scratched by that weapon, this shall be taken as a mishap. The person bearing that weapon shall be assigned no blame.

§  5 If, during a dispute [between two persons neither of] whom intentionally strikes or stabs [the other] with a weapon, [one of them] grabs hold of the [other's] weapon and [one of the parties] is injured with loss of blood, neither party shall be fined if the injured party is he who grabbed hold of [the weapon]. If he who bore the weapon is the injured party, he who grabbed hold of the other's weapon, having earlier [initiated the dispute] by striking [the other] with his hand, shall be fined ½ *ānā*; if [the former] does not launch [an official] complaint, [the latter] shall be assigned no blame.

§  6 If a person who has no intention of taking the life [of another] who is not waiting along a path or byway to kill [another], who bears [him] no prior malice and who does not strike [him] from an ambush strikes and kills [that person] spontaneously with a weapon or the like during the daytime and in public, having been unable to control his anger while [the two parties] are engaged in a verbal or physical tussle over a dispute relating to real property, [a dispute] during a festival or procession, a dispute relating to [business] transactions, a dispute relating to gold or silver, cash or commodities, metal vessels, jewels, garments, four-footed farm animals, two-footed farm animals or the like, or a dispute concerning communal field work (*melāpāta*), water channels, forests, grassland or the like, or concerning nuptial matters (*svāsnī*), then in the case where the one who killed by wielding a weapon is a man belonging to a caste whose members may not be executed he shall be branded and his share of property shall be confiscated in accordance with the *Ain*, and in the case when it is a woman, she shall be similarly branded, but her property shall not be confiscated. In the case where it is a man belonging to a caste whose members may be executed, he shall be executed—taking life for life.

§  7 If a person who has no intention of taking the life of [another]—who is not waiting along a path or byway to kill [another]; who bears [him] no prior malice; and who does not strike [him] from an ambush—strikes [that person] spontaneously with a weapon, pole, stone or the like during the daytime and in public, having been unable to control his anger while [the two parties] are engaged in a verbal or physical tussle over a dispute relating to real property, a dispute relating to gold or silver, cash or commodities, metal vessels, jewels, garments, four-footed farm animals, two-footed farms animals or the like, or a dispute concerning communal field work, water channels, forests, grassland or the like, or concerning nuptial matters (*svāsnī*), and the victim does not die but becomes incapacitated due to permanent bodily injury, then in the case where the one who caused permanent bodily injury is a man he shall be imprisoned for 24 years, and in the case where it is a woman, she shall be imprisoned for 12 years. No matter how much money may be offered [to waive imprisonment], it shall not be accepted. The victim whose body has been permanently injured shall be assigned no blame even if he struck [the other], drew blood or assaulted [him] verbally.

§  8 If a person who has no intention of taking the life of [another]—who is not waiting along a path or byway to kill [another]; who bears [him] no prior malice; and who does not strike [him] from an ambush—strikes [that person] spontaneously with a weapon or the like in public, having been unable to control his anger while [the two parties] are engaged in a verbal or physical tussle over a dispute relating to real property, a dispute relating to gold or silver, cash or commodities, metal vessels, jewels, garments, four-footed farm animals, two-footed farm animals or the like, or a dispute concerning communal field work, water channels, forests, grassland or the like, or concerning nuptial matters, and the victim does not die and is not permanently injured but merely wounded, he who wielded the weapon [shall be imprisoned based on the severity of] the wound, measured according to length [in the case of striking and to depth in the case of stabbing]: If the wound is 1 fingerbreadth [long or deep], [the perpetrator]—in the case of a man—shall be imprisoned for 1 year, [and] in that of a woman, for 6 months; if [it] is two fingerbreadths [long or deep], [the perpetrator]—in the case of a man—shall be imprisoned for 1½ years, [and] that of a woman, for 9 months; if [it] is 3 fingerbreadths [long or deep], [the perpetrator] in the case of a man—shall be imprisoned for 2 years, [and] in that of a woman, for 1 year. The prison term shall be increased by 6 months for a male perpetrator and by 3 months for a female perpetrator for every additional fingerbreadth [in the length or depth of] the wound, until the prison term reaches 12 years. Even if the prison term becomes more than 12 years when calculating in this manner, the perpetrator shall not be imprisoned more than 12 years. No matter how much money may be offered [to waive imprisonment], it shall not be accepted. He who has had his body wounded shall be assigned no blame even if he struck [the other], drew blood or assaulted [him] verbally.

#### **[5] The law pertaining to punishment when a single person intentionally kills a human**

§  9 If, out of greed for property or out of any other form of envy, [somebody] with the intention to do so kills a human by striking or stabbing the victim with a hand-held weapon or the like, the murderer—if he belongs to a caste group whose members may not be executed—shall be branded in accordance with the *Ain*, and his share of property shall be confiscated; if [the murderer] is a woman, she shall be branded but no property shall be confiscated. If [the murderer] is a man belonging to a caste group whose members may be executed, he shall be executed—taking life for life.

§10 If, out of greed for property or out of any other form of envy, [somebody] with the intention to do so kills a human by shooting him with a rifle, bow and arrow or other such discharging weapon, the murderer—if he belongs to a caste group whose members may not be executed—shall be branded, in accordance with the *Ain*, and his share of property shall be confiscated; if [the murderer] is a woman, she shall be branded but no property shall be confiscated. If [the murderer] is a man belonging to a caste group whose members may be executed, he shall be executed—taking life for life.

§11 If, out of greed for property or out of any other form of envy, [somebody] with the intention to do so kills a human by shoving or [otherwise] causing him to fall down a steep slope [or] into an abyss, [or else to fall] from a tree, window, balcony, roof, wall or the like*,* the murderer—if he belongs to a caste group whose members may not be executed—shall be branded, in accordance with the *Ain*, and his share of property shall be confiscated; if [the murderer] is a woman, she shall be branded but no property shall be confiscated. If [the murderer] is a man belonging to a caste group whose members may be executed, he shall be executed—taking life for life.

§12 If, out of greed for property or out of any other form of envy, [somebody] with the intention to do so kills a human by striking or stabbing him with a pole, stone, piece of wood, a brick, turf [or] metal, a roped stone used for hunting (*ghugyātro*)60, a wooden stick for dislodging fruit (*jhaṭāro*) or the like, or by crushing him under a rock or log, the murderer—if he belongs to a caste group whose members may not be executed—shall be branded in accordance with the Ain, and his share of property shall be confiscated; if [the murderer] is a woman, she shall be branded but no property shall be confiscated. If [the murderer] is a man belonging to a caste group whose members may be executed, he shall be executed—taking life for life.

§13 If, out of greed for property or out of any other form of envy, [somebody] with the intention to do so kills a human by strangulating, hanging or suffocating him, the murderer—if he belongs to a caste group whose members may not be executed—shall be branded in accordance with the Ain, and his share of property shall be confiscated; if [the murderer] is a woman, she shall be branded but no property shall be confiscated. If [the murderer] is a man belonging to a caste group whose members may be executed, he shall be executed—taking life for life.

§14 If, out of greed for property or out of any other form of envy, [somebody] with the intention to kill a person forces [him] into a deep pit and fills it with bricks, stones, earth or the like, and that person dies, the one who with the intention to kill forced [the other] into the deep pit and filled [it]—if he belongs to a caste group whose members may not be executed—shall be branded in accordance with the *Ain*, and his share of property shall be confiscated; if [the murderer] is a woman, she shall be branded but no property shall be confiscated. If [the murderer] is a man belonging to a caste group whose members may be executed, he shall be executed—taking life for life.

§15 If, out of greed for property or out of any other form of envy, [somebody] with the intention to kill causes [a person] to fall into a deep river (*gaṃgā*)   61, minor river, ford, well, pond or the like by shoving him in and letting him be swept away, and that person dies through drowning or being swept away, or else is first swept away and thereafter comes ashore on his own or is pulled ashore, and dies within three days, he who with the intention to kill caused [him] to fall—if he belongs to a caste group whose members may not be executed—shall be branded in accordance with the Ain, and his share of property shall be confiscated; if [the murderer] is a woman, she shall be branded but no property shall be confiscated. If [the murderer] is a man belonging to a caste group whose members may be executed, he shall be executed—taking life for life.

§16 If, out of greed for property or out of any other form of envy, [somebody] with the intention to do so kills a human by shoving him towards a fire, making him agent fall in and letting [him] burn, [the murderer]—if he belongs to a caste group whose members may not be executed—shall be branded in accordance with the Ain, and his share of property shall be confiscated; if [the murderer] is a woman, she shall be branded but no property shall be confiscated. If [the murderer] is a man belonging to a caste group whose members may be executed, he shall be executed—taking life for life.

<sup>61</sup> *Gaṃgā* in its primary meaning refers to the river of the same name, personified as the eldest daughter of Himavat and Menā, the wife of Śāntanu and the mother of Bhīṣma. Here the word is used to denote any major river (also see T, s.v. *gaṃgā*).

§17 If, out of greed for property or out of any other form of envy, [somebody] with the intention to do so kills a human by letting [him] consume poison (*jahara viṣa*)62, [the murderer]—if he belongs to a caste group whose members may not be executed—shall be branded in accordance with the *Ain*, and his share of property shall be confiscated; if [the murderer] is a woman, she shall be branded but no property shall be confiscated. If [the murderer] is a man belonging to a caste group whose members may be executed, he shall be executed—taking life for life.

#### **[6] The law pertaining to cases of conspiracy to murder**

§18 If, out of greed for property or out of any other form of envy, a multiple number of persons with the intention to do so jointly kill a human by striking or stabbing him with a weapon or the like, as many persons from whose wounding [the victim] has died—if they are men belonging to a caste group whose members may not be executed—shall be branded in accordance with the *Ain*, and their share of property shall be confiscated; if [the murderers] are women, they shall be branded but no property shall be confiscated. If [the murderers] are men belonging to a caste group whose members may be executed, they shall be executed—taking life for life.

§19 If, out of greed for property or out of any other form of envy, a multiple number of persons with the intention to do so jointly kill a human by shooting him with a rifle, bow and arrow or the like, as many persons from whose wounding [the victim] has died—if they are men belonging to a caste group whose members may not be executed—shall be branded in accordance with the *Ain*, and their share of property shall be confiscated; if [the murderers] are women, they shall be branded but no property shall be confiscated. If [the murderers] are men belonging to a caste group whose members may be executed, they shall be executed—taking life for life.

§  20 If, out of greed for property or out of any other form of envy, a multiple number of persons with the intention to do so jointly kills a human by shoving or [otherwise] causing him to fall down a steep slope into an abyss, [or else to fall] from a tree, window, balcony, roof, wall or the like, as many persons as caused him to fall by laying hands [on him]—if they are men belonging to a caste group whose members

<sup>62</sup> The words *jahara* and *viṣa* are synonymous. *Jahara* is a loan word derived from the Persian *zahr*.

may not be executed—shall be branded in accordance with the *Ain*, and their share of property shall be confiscated; if [the murderers] are women, they shall be branded but no property shall be confiscated. If [the murderers] are men belonging to a caste group whose members may be executed, they shall be executed—taking life for life.

§  21 If, out of greed for property or out of any other form of envy, a multiple number of persons with the intention to do so jointly kill a human by striking or stabbing him with a rod, stone, piece of wood, a brick, turf [or] metal, a roped stone used for hunting (*ghugyātro*), a wooden baton for dislodging fruit (*jhaṭāro*) or the like, or by crushing him under a rock or log, the murderer—if he belongs to a caste group whose members may not be executed—shall be branded in accordance with the *Ain* and their share of property shall be confiscated; if [the murderers] are women, they shall be branded but no property shall be confiscated. If [the murderers] are men belonging to a caste group whose members may be executed, they shall be executed—taking life for life.

§  22 If, out of greed for property or out of any other form of envy, a multiple number of persons with the intention to kill jointly cause [a person] to fall into a deep river, minor river, well [or] pond, [or] at a place near a [beam] bridge [or] suspension bridge—onto a bush, ford or the like by shoving him in and letting him be swept away, and that person dies through drowning or being swept away, or else is first swept away and thereafter comes ashore on his own or is pulled ashore, and dies within 3 days, as many persons as have, with the intention to do so, killed [the victim] by catching, shoving and causing him to fall—if they are men belonging to a caste group whose members may not be executed—shall be branded, in accordance with the Ain, and their share of property shall be confiscated; if [the murderers] are women, they shall be branded but no property shall be confiscated. If [the murderers] are men belonging to a caste group whose members may be executed, they shall be executed—taking life for life.

§  23 If, out of greed for property or out of any other form of envy, a multiple number of persons with the intention to do so kills a human by strangling or by hanging or suffocating [him], as many persons as [killed the victim] by laying hands [on him]—if they are men belonging to a caste group whose members may not be executed—shall be branded in accordance with the *Ain* and their share of property shall be confiscated; if [the murderers] are women, they shall be branded but no property shall be confiscated. If [the murderers] are men belonging to a caste group whose members may be executed, they shall be executed—taking life for life.

§  24 If, out of greed for property or out of any other form of envy, a multiple number of persons with the intention to kill a person jointly force [him] into a deep pit and fill it with earth, bricks, turf or the like, and that person dies, as many persons as seized and forced [the victim] into a deep pit and filled [it]—if they are men belonging to a caste group whose members may not be executed—shall be branded in accordance with the *Ain*, and their share of property shall be confiscated; if [the murderers] are women, they shall be branded but no property shall be confiscated. If [the murderers] are men belonging to a caste group whose members may be executed, they shall be executed—taking life for life.

§  25 If, out of greed for property or out of any other form of envy, a multiple number of persons with the intention to do so kills a human by shoving [him] towards a fire, making [him] fall in and letting [him] burn [to death], as many persons as seized [the victim] during the time of making him fall into the fire and during the time of letting him burn—if they are men belonging to a caste group whose members may not be executed—shall be branded in accordance with the *Ain*, and their share of property shall be confiscated; if [the murderers] are women, they shall be branded but no property shall be confiscated. If [the murderers] are men belonging to a caste group whose members may be executed, they shall be executed—taking life for life.

§  26 If, out of greed for property or out of any other form of envy, [someone acting] as instigator, gives the word to assassinate such and such a person, and another person, [acting] on his order, goes and kills the man, the instigator who has given the word to kill, irrespective of whether he went along to the scene of the murder or not—if it is a man belonging to a caste group whose members may not be executed shall be branded in accordance with the *Ain*, and his share of property shall be confiscated; if [the instigator] is a woman, she shall be branded but no property shall be confiscated. If [the instigator] is a man belonging to a caste group whose members may be executed, he shall be executed—taking life for life.

§  27 If, out of greed for property or out of any other form of envy, [a multiple number of persons] are involved in a murder plot, and murder the person after seizing and tying [him] up, as many persons as seized and tied [the victim] up—if they are men belonging to a caste group whose members may not be executed—shall be branded in accordance with the *Ain*, and their share of property shall be confiscated; if [the murderers] are women, they shall be branded but no property shall be confiscated. If [the murderers] are men belonging to a caste group whose members may be executed, they shall be executed—taking life for life.

§  28 If, out of greed for property or out of any other form of envy, [a multiple number of persons] participate in a murder plot [to the extent of] providing weapons such as rifles, bows and arrows or the like, and even go to the site of the killing, [but] do not discharge a weapon and do not [act] as the main [plotter] by giving the word to kill, then as many people as brought about the killing of the victim by providing weapons such as rifles, bows and arrows and the like—if they are men belonging to a caste group whose members may not be executed—shall be branded in accordance with the *Ain*, and their share of property shall be confiscated; if [the accessories to murder] are women, they shall be branded but no property shall be confiscated. If [the accessories to murder] are men belonging to a caste group whose members may be executed, they shall be executed—taking life for life.

§  29 If [someone] who wants to kill [a person] says to someone else: "I'm going to kill [such and such a person]. Give me a weapon—a rifle, bow and arrow [or the like]," and thereupon the latter provides a weapon to the person who has said that he would kill such and such a person, then since he can be judged to have let the victim be killed by providing a weapon, although he does not go to the murder site himself—if it is a man belonging to a caste group whose members may not be executed—he shall be branded in accordance with the *Ain*, and his share of property shall be confiscated; if [the accessory to the murderer] is a woman, she shall be branded but no property shall be confiscated. If [the accessory to the murder] is a man belonging to a caste group whose members may be executed, he shall be executed—taking life for life.

§30 If, out of greed for property or out of any other form of envy, [someone] participates in a plot to murder, and is involved in the killing to the extent of [ensuring that] doors [and] windows inside a house are barred or that ladders have been removed during the murder [in order to prevent] the [victim] from escaping, then as many people as participated in the murder plot, and were involved in the killing to the extent of [ensuring that] doors [and] windows inside a house are barred or that ladders were removed during the murder—if they are men belonging to a caste group whose members may not be executed—shall be branded in accordance with the *Ain*, and their share of property shall be confiscated; if [such accomplices] are women, they shall be imprisoned for 12 years. Even if double the fine required to waive imprisonment is offered, it shall not be accepted.

§31 If, out of greed for property or out of any other form of envy, [someone] enters into a murder plot, and is involved in the killing brings about the killing by blocking a path or byway outside rather than [being present] inside the house—is not, [that is,] someone who laid hands on the [victim's] body—then as many persons as were involved in the killing, and brought about the killing by blocking paths or byways shall, if they are men, be branded in accordance with the *Ain*, and their share of property shall be confiscated. If [they] are women, they shall be imprisoned for 12 years. Even if [such accomplices] pay twice the fine required to waive imprisonment, it shall not be accepted.

§32 If, out of greed for property or out of any other form of envy, [persons] participate in a murder plot, and are involved in the killing to the extent of patrolling the [murder site] to prevent other people from witnessing [the killing,] but who neither give, as the chief [conspirator], the order to kill nor provide weapons, then as many persons as are involved in the killing to the extent of patrolling the site—if they are men—shall be imprisoned for 12 years in accordance with the *Ain*, and their share of property shall be confiscated. If [they] are women, they shall be imprisoned for 6 years but no property shall be confiscated. Even if [such accomplices] pay twice the fine required to waive imprisonment, it shall not be accepted.

§33 If, out of greed for property or out of any other form of envy, [someone] enters into a murder plot, goes to [the site] together [with the killer(s)] but does not strike [the victim] with his hand, seize [him] or tie [him] up, nor does he patrol [the murder site] or give the order to kill but only observes [the murder], then as many persons as [observed the murder]—if they are men—shall be imprisoned for 12 years in accordance with the *Ain*, and their share of property shall be confiscated. If [they] are women, they shall be imprisoned for 6 years but no property shall be confiscated. Even if [such accomplices] pay twice the fine required to waive imprisonment, it shall not be accepted.

§34 If, out of greed for property or out of any other form of envy, [persons] enter into a murder plot but do not go along to the murder site, provide any weapons [or] give the order to kill, but merely have a personal interest in [seeing the victim's] life ended, then as many persons as entered into the murder plot—if they are men shall be imprisoned for 8 years in accordance with the *Ain*, and their share of property shall be confiscated. If [they] are women, they shall be imprisoned for 4 years but no property shall be confiscated. Even if [such accomplices] pay twice the fine required to waive imprisonment, it shall not be accepted.

§35 If, out of greed for property or out of any other form of envy, a multiple number of persons, having plotted to do so, kill a human by having [him] consume poison, then they who killed a human by having him consume that poison—if they are men belonging to a caste group whose members may not be executed—shall be branded in accordance with the *Ain*, and their share of property shall be confiscated; if [they] are women, they shall be branded but no property shall be confiscated. If [they] are men belonging to a caste group whose members may be executed, they shall be executed—taking life for life.

§36 If, out of greed for property or out of any other form of envy, [someone] provides poison [to someone else], knowing that [it is meant] to kill a specified [third] person, and the [second] one has [the victim] consume [it] and [so] kills that person by having [him] consume that poison, then the one who provided poison, knowing that [it was meant] to kill [the victim]—if it is a man belonging to a caste group whose members may not be executed—shall be branded in accordance with the *Ain*, and his share of property shall be confiscated; if it is a woman, she shall be branded but no property shall be confiscated. If [he] is a man belonging to a caste group whose members may be executed, he shall be executed—taking life for life.

§37 If, out of greed for property or out of any other form of envy, [someone] acting as chief [conspirator] instructs [another person] to kill a specified [third] person by having [him] consume poison, and in compliance with his order [the other] kills [the victim] by having [him] consume the poison, then the one who as chief [conspirator] instructs [the other] to kill the victim by having him consume poison—if it is a man belonging to a caste group whose members may not be executed—shall be branded in accordance with the *Ain*, [and] his share of property shall be confiscated; if it is a woman, she shall be branded but no property shall be confiscated. If [he] is a man belonging to a caste group whose members may be executed, he shall be executed—taking life for life.

 §38 If, out of greed for property or out of any other form of envy, [persons] participate in a murder plot [to be carried out] by administering poison go to the murder site together [with the actual murderer] but do not [themselves] administer the poison, nor do they give the order to kill or provide the poison [to the murderer], and the person ends up being killed through the poison being administered, then as many such plotters as participated in the murder plot and even went to the murder site together [with the murderer]—if they are men—shall be imprisoned for 12 years in accordance with the *Ain*, and their share of property shall be confiscated; if they are women, they shall be imprisoned for 6 years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

§39 If, out of greed for property or out of any other form of envy, [persons] participate only [as accessories] in a murder plot [to be carried out] by letting [a person] consume poison, neither going [themselves] to the murder site, administering the poison, giving, as chief plotter, the order to kill, nor providing the poison [to be administered], and it turns out that the person has been killed through the poison being administered, as many plotters as entered into the murder plot only [as accessories in that] they did not go to the site—if they are men—shall, in accordance with the *Ain*, be imprisoned for 8 years and their share of property shall be confiscated; if they are women, they shall be imprisoned for 4 years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

§  40 If, out of greed for property or out of any other form of envy, [persons] with the intention to do so kill a human by having him bitten by a snake, [the perpetrators]—if they are men belonging to caste groups whose members may not be executed—shall be branded in accordance with the *Ain*, and their share of property shall be confiscated; if they are women, they shall be branded but no property shall be confiscated. If they are men belonging to caste groups whose members may be executed, they shall be executed—taking life for life.

§  41 If, out of greed for property or out of any other form of envy, [persons] with the intention to do so kill a human by having him bitten by a dog, [the perpetrators]—if they are men belonging to caste groups whose members may not be executed—shall be branded in accordance with the *Ain*, and their share of property shall be confiscated; if they are women, they shall be branded but no property shall be confiscated. If they are men belonging to caste groups whose members may be executed, they shall be executed—taking life for life.

§  42 If, out of greed for property or out of any other form of envy, [persons] with the intention to kill chase [someone] with a hand-held weapon and [that person] dies upon falling down a steep slope or from [the edge of] a deep drop while running away in order to save his life, then given the fact that the victim died upon falling down a steep slope or from [the edge of] a deep drop while running away out of fear, those who chased [him] with weapons [in hand] with the intention to kill [but] with no one being able to strike [him] with his weapon—if they are men—shall be branded in accordance with the *Ain*, and their share of property shall be confiscated; if they are women, they shall be imprisoned for 12 years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

§  43 If, out of greed for property or out of any other form of envy, [persons] with the intention to kill chase [someone] with a hand-held weapon and [that person] jumps into a river while running away in order to save his life and dies through drowning in the river or through being swept away by [it], then—given the fact that the victim died upon jumping into a river while running away out of fear—those who chased [him] with weapons [in hand] with the intention to kill [but] with no one being able to strike [him] with his weapon—if they are men—shall be branded in accordance with the *Ain*, and their share of property shall be confiscated; if [the perpetrators] are women, they shall be imprisoned for 12 years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

#### **[7] The law pertaining to punishment for physical injury caused by a single person [acting on] an intention to kill**

§  44 If, out of greed for property or out of any other form of envy, [a person] with the intention to kill strikes or stabs [a human] with a weapon or the like, and that human does not die but becomes incapacitated due to permanent bodily injury, then the striker—if it is a man shall be branded in accordance with the *Ain*, and his share of property shall be confiscated; if [the striker] is a woman, she shall be imprisoned for 12 years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

§  45 If, out of greed for property or out of any other form of envy, [somebody] with the intention to kill [a human] shoots him with a rifle, bow and arrow or other such [discharging weapon], and that human does not die but becomes permanently incapacitated, then the shooter—if he is a man—shall be branded in accordance with the *Ain*, and his share of property shall be confiscated; if [the shooter] is a woman, she shall be imprisoned for 12 years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

§  46 If, out of greed for property or out of any other form of envy, [somebody] with the intention to kill [a human] shoves or [otherwise] causes him to fall down a steep slope [or] from [the edge] of a deep drop, [or else to fall] from a tree, window, balcony, roof, wall [or the like], and that person does not die but becomes permanently incapacitated, then [the perpetrator]—if it is a man—shall be branded in accordance with the *Ain*, and his share of property shall be confiscated; if [the perpetrator] is a woman, she shall be imprisoned for 12 years but no property shall be confiscated; no matter how much money is offered to waive imprisonment, it shall not be accepted.

§  47 If, out of greed for property or out of any other form of envy, [somebody] with the intention to kill strikes or stabs [a human] with a stick, stone, a piece of wood, brick, turf, a roped stone used for hunting, a wooden stick for dislodging fruit or the like, or crushes him under a rock or log, and that human does not die but becomes permanently incapacitated, then [he] who struck [the victim] with the intention to kill—if it is a man—shall be branded in accordance with the *Ain*, and his share of property shall be confiscated; if [it] is a woman, she shall be imprisoned for 12 years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

§  48 If, out of greed for property or out of any other form of envy, [somebody] with the intention to kill shoves [a human] towards a fire, makes [him] fall in and lets [him] burn, and that person does not die but becomes incapacitated with permanent bodily injury, [he] who with the intention to kill forced [the victim] into the fire—if it is a man—shall be branded in accordance with the *Ain*, and his share of property shall be confiscated; if [it] is a woman, she shall be imprisoned for 12 years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

#### **[8] The law pertaining to punishment for conspiracy to kill resulting in permanent incapacitation**

§  49 If, out of greed for property or out of any other form of envy, a multiple number of persons with the intention to kill jointly strike or stab [a human] with a hand-held weapon or the like, and that person does not die but becomes incapacitated with permanent bodily injury, then as many persons from whose wounding [the victim's] body has been permanently injured—if they are men—shall be branded in accordance with the *Ain*, and their share of property shall be confiscated; if they are women, they shall be imprisoned for 12 years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

§  50 If, out of greed for property or out of any other form of envy, a multiple number of persons with the intention to kill jointly shoot [a human] with a rifle, bow and arrow or the like, and that human does not die but becomes incapacitated with permanent bodily injury, then as many persons from whose wounding [the victim's] body has been permanently injured—if they are men—shall be branded in accordance with the *Ain*, and their share of property shall be confiscated; if they are women, they shall be imprisoned for 12 years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

§  51 If, out of greed for property or out of any other form of envy, a multiple number of persons with the intention to kill jointly shove [a human] or [otherwise] cause him to fall down a steep slope or from [the edge of] a deep drop, [or else to fall] from a tree, window, balcony, roof, wall or the like, and that person does not die but becomes incapacitated with permanent bodily injury, then as many persons as caused him to fall by laying hands [on him]—if they are men—shall be branded in accordance with the *Ain*, and their share of property shall be confiscated; if they are women, they shall be imprisoned for 12 years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

§  52 If, out of greed for property or out of any other form of envy, a multiple number of persons with the intention to kill jointly strike [a human] with a rod, stone [or] brick, turf, wood [or] metal, a wooden stick for dislodging fruit or the like, or a roped stone [used for hunting] or the like, or crush him under a rock or log, and that person does not die but becomes incapacitated with permanent bodily injury, then as many persons from whose wounding [the victim's] body has been permanently injured—if they are men—shall be branded in accordance with the *Ain*, and their share of property shall be confiscated; if they are women, they shall be imprisoned for 12 years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

§  53 If, out of greed for property or out of any other form of envy, a multiple number of persons with the intention to kill [a human] shove [him] towards a fire, make [him] fall in and let [him] burn, and that human does not die, having received [outside] help or having escaped on his own, but becomes incapacitated with permanent bodily injury, then as many persons as laid hands on [the victim] when he was made to fall into the fire and was allowed to burn—if they are men—shall be branded in accordance with the *Ain*, and their share of property shall be confiscated; if they are women, they shall be imprisoned for 12 years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

§  54 If, out of greed for property or out of any other form of envy, [someone] as a chief plotter gives an order [to someone else] saying: "Kill such and such a person," and [the latter], following the order, goes and incapacitates [the victim], injuring his body permanently but, as it turns out, not having killed him, then the chief plotter, having given the order to kill, irrespective of whether he went to the site of the [planned] killing jointly [with the perpetrator] or not—if it is a man—shall be branded in accordance with the *Ain*, and his share of property shall be confiscated; if it is a woman, she shall be imprisoned for 12 years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

§  55 If, out of greed for property or out of any other form of envy, [a multiple number of persons] participate in a murder plot and seize and tie [the victim] up, [but] in the end [the latter] does not die but is incapacitated with permanent bodily injury, then as many persons as seized and tied [the victim] up in order to kill him—if they are men—shall be branded in accordance with the *Ain*, and their share of property shall be confiscated; if they are women, they shall be imprisoned for 12 years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

§  56 If, out of greed for property or out of any other form of envy, [a multiple number of persons] participate in a murder plot [to the extent of] providing [either] hand-held weapons [or] rifles, bows and arrows or the like, and even go to the site of the killing, [but] do not use a weapon and do not [act] either as the main [plotter] by giving the word to kill, and [the victim] in the end does not die but is incapacitated with permanent bodily injury, then as many people as have let the victim be permanently injured by providing [either] hand-held weapons [or] rifles, bows and arrows or the like—if they are men—shall be branded in accordance with the *Ain*, and their share of property shall be confiscated; if they are women, they shall be imprisoned for 12 years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

§  57 If [someone] who wants to kill [a person] says to someone else: "I'm going to kill such and such a person. Give me a weapon, rifle, bow and arrow or the like," and thereupon the latter provides these [sorts of] weapons to the person who has said that he will kill such and such a person, but does not go himself to the [planned] murder site, and in the end [the victim] does not die but is incapacitated with permanent bodily injury, then since it can be ascertained that he let the victim be permanently injured by providing a weapon he shall—if it is a man be branded in accordance with the *Ain*, and his share of property shall be confiscated; if it is a woman, she shall be imprisoned for 12 years but no property shall be confiscated. No matter how much money is offered to waive imprisonment is offered, it shall not be accepted.

§  58 If, out of greed for property or out of any other form of envy, [persons] participate in a murder plot and [ensure that] doors [and] windows inside a house are barred or that ladders have been removed during the murder [attempt] lest the victim escape, and in the end [the victim] does not die but is incapacitated with permanent bodily injury, then as many people as participated in the murder plot and [ensured that] doors [and] windows inside the house were barred or that ladders were removed—if they are men—shall be imprisoned for 12 years in accordance with the *Ain*, and their share of property shall be confiscated; if they are women, they shall be imprisoned for 6 years but no property shall be confiscated. No matter how much money is offered to waive, it shall not be accepted.

§  59 If, out of greed for property or out of any other form of envy, [persons] enter into a murder plot and block a path or byway outside rather than [being present] inside the house but do not lay hands on the [victim's] person, and in the end [the victim] does not die but is incapacitated with permanent bodily injury, then as many persons as were involved in the murder plot and blocked paths or byways—if they are men—shall be imprisoned for 9 years in accordance with the *Ain*, and their share of property shall be confiscated; if they are women, they shall be imprisoned for 4½ years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

§  60 If, out of greed for property or out of any other form of envy, [persons] participate in a murder plot and patrol the [murder site] to prevent other people from witnessing [the killing], and in the end [the victim] does not die but is incapacitated with permanent bodily injury, then as many persons as were involved in the murder plot and patrolled the site—if they are men—shall be imprisoned for 9 years in accordance with the *Ain*, and their share of property shall be confiscated; if they are women, they shall be imprisoned for 4½ years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

§  61 If, out of greed for property or out of any other form of envy, [persons] enter into a murder plot, go to [the site] together [with their fellow plotter(s)] but do not strike [the victim] with their hand, do not surround [him], do not patrol [the site] or, as a chief plotter, give the order to kill but only observe [the proceedings], and in the end [the victim] does not die but is incapacitated with permanent bodily injury, then as many persons as participated in the plot, went to the site and observed [the act]—if they are men—shall be imprisoned for 9 years in accordance with the *Ain*, and their share of property shall be confiscated; if they are women, they shall be imprisoned for 4½ years but no property shall be confiscated. No matter how much money is offered to waive imprisonment [they] offer, it shall not be accepted.

§  62 If, out of greed for property or out of any other form of envy, [persons] enter into a murder plot but do not go along to the murder site, provide any weapons [or], as chief plotters, give the order to kill, and in the end [the victim] does not die but is incapacitated with permanent bodily injury, then as many persons as entered into the murder plot—if they are men—shall be imprisoned for 6 years in accordance with the *Ain*, and their share of property shall be confiscated; if they are women, they shall be imprisoned for 3 years but no property shall be confiscated. No matter how much money is offered to waive imprisonment is offered, it shall not be accepted.

§  63 If, out of greed for property or out of any other form of envy, [a person] with the intention to kill lets a snake bite [someone], but that person does not die but is incapacitated with permanent bodily injury, then he who with the intention to kill let the snake bite [the victim]—if it is a man—shall be branded in accordance with the *Ain*, and his share of property shall be confiscated; if it is a woman, she shall be imprisoned for 12 years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

§  64 If, out of greed for property or out of any other form of envy, [persons] with the intention to kill [someone] by causing him to be bitten by a dog, but that person does not die but is incapacitated with permanent bodily injury, then those who with the intention to kill cause [the victim] to be bitten by a dog—if they are men—shall be branded in accordance with the *Ain*, and their share of property shall be confiscated; if they are women, they shall be imprisoned for 12 years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

§  65 If, out of greed for property or out of any other form of envy, [persons] with the intention to kill chase [someone] with a hand weapon and [that person] does not die but becomes incapacitated with permanent bodily injury upon falling down a steep slope or from [the edge of] a deep drop while running away in order to save his life, then given the fact that the victim became incapacitated with permanent bodily injury upon falling down a steep slope or from [the edge of] a deep drop while running away in order to save his life, those who chased [him] with hand weapons with the intention to kill [but] were unable to strike [him] with their weapons—if they are men—shall be imprisoned for 12 years in accordance with the *Ain*, and their share of property shall be confiscated; if they are women, they shall be imprisoned for 6 years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

§  66 If, out of greed for property or out of any other form of envy, [persons] with the intention to kill chase [someone] with a hand weapon and [that person] jumps into a river while running away in order to save his life and becomes incapacitated with permanent bodily injury, then—given the fact that the victim became permanently incapacitated upon jumping into a river while running away in order to save his life—those who chased [him] with hand weapons with the intention to kill [but] were unable to strike [him] with their weapons—if they are men—shall be imprisoned for 12 years in accordance with the *Ain*, and their share of property shall be confiscated; if they are women, they shall be imprisoned for 6 years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

### **[9] The law pertaining to punishment in cases where a single person, [in attacking someone else] with the intention to kill, causes no bodily injury and the person survives by chance or through help received [from others]**

§  67 If, out of greed for property or out of any other form of envy, [someone] with the intention to kill [tries to] strangle, garrotte, hang or suffocate [someone else] but that person does not die, whether by chance or through help received [from others], then the person who acted in [any of] these ways with the intention to kill—if it is a man—shall be branded in accordance with the *Ain*, and his share of property shall be confiscated; if it is a woman, she shall be imprisoned for 12 years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

§  68 If, out of greed for property or out of any other form of envy, [somebody] with the intention to kill forces [a person] into a deep pit and fills it with bricks, earth, stones or the like, but that person does not die, whether by chance or through help received [from others], then he who with the intention to kill forced [the other] into the deep pit and filled [it]—if it is a man—shall be branded in accordance with the *Ain*, and his share of property shall be confiscated; if it is a woman, she shall be imprisoned for 12 years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

§  69 If, out of greed for property or out of any other form of envy, [somebody] with the intention to kill causes [a person] to fall into a deep river, minor river, [water around] a ford, well, pond or the like by shoving him in and letting him be swept away, and that person thereafter emerges on his own or is pulled out and, having emptied [his lungs] of inhaled water, survives beyond three days, then he who with the intention to kill caused [him] to fall into water—if it is a man—shall be branded in accordance with the *Ain*, and his share of property shall be confiscated; if it is a woman, she shall be imprisoned for 12 years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

§  70 If, out of greed for property or out of any other form of envy, [somebody] with the intention to kill makes [a person] consume poison, and the one who consumes the poison does not die [but rather] survives, then he who with the intention to kill let [the victim] consume poison—if it is a man—shall be branded in accordance with the *Ain*, and his share of property shall be confiscated; if it is a woman, she shall be imprisoned for 12 years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

### **[10] The law pertaining to punishment in cases where a multiple number of persons who conspire to attack someone with the intention to kill do not cause injury and that person survives, whether by chance or through help received from others**

§  71 If, out of greed for property or out of any other form of envy, a multiple number of persons with the intention to kill jointly cause [someone] to fall into a deep river, minor river, [water around] a ford, well [or] pond—[or somewhere] near (i.e., beneath) a [beam] bridge, suspension bridge or the like—by shoving him in and letting him be swept away, and the person thereafter emerges on his own or is pulled out and, having emptied [his lungs] of inhaled water, survives beyond three days, then as many persons as have seized, shoved and caused him to fall with the intention to kill—if they are men—shall be branded in accordance with the *Ain*, and their share of property shall be confiscated; if they are women, they shall be imprisoned for 12 years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

§  72 If, out of greed for property or out of any other form of envy, a multiple number of persons strangle, garrotte, hang or suffocate [someone] with the intention to kill, and that person does not die but survives, then as many persons as have laid their hands [on the victim]—if they are men—shall be branded in accordance with the *Ain*, and their share of property shall be confiscated; if they are women, they shall be imprisoned for 12 years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

§  73 If, out of greed for property or out of any other form of envy, a multiple number of persons with the intention to kill jointly force [someone] into a deep pit and fill it with earth, bricks, turf or the like, and that person does not die but survives and comes out [from the deep pit] on his own or somebody else extracts him, then as many persons as, with the intention to kill, seized and forced [the victim] into a deep pit and filled [it]—if they are men—shall be branded, in accordance with the *Ain*, and their share of property shall be confiscated; if they are women, they shall be imprisoned for 12 years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

§  74 If, out of greed for property or out of any other form of envy, a multiple number of persons with the intention to kill jointly make [someone] consume poison, and that person who consumes the poison does not die but survives, then those who with the intention to kill made [the victim] consume poison—if they are men—shall be branded in accordance with the *Ain*, and their share of property shall be confiscated; if they are women, they shall be imprisoned for 12 years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

§  75 If, out of greed for property or out of any other form of envy, [someone] provides poison [to someone else], knowing that [it is meant] to kill a specified [third] person, and the [second person] has [the victim] consume [what] was provided by the first person, but the person who consumes [the poison] does not die but survives, then the one who provided the poison, knowing that [it was meant] to kill [the victim]—if it is a man—shall be branded in accordance with the *Ain*, and his share of property shall be confiscated; if it is a woman, she shall be imprisoned for 12 years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

§  76 If, out of greed for property or out of any other form of envy, [someone] acting as instigator instructs [another person] to kill a specified [third] person by having [him] consume poison, and in compliance with his order [the other] has [the victim] consume poison, and that victim does not die but survives, then he who, as [instigator,] instructed [the other] to kill the victim by having him consume poison—if it is a man—shall be branded in accordance with the *Ain*, and his share of property shall be confiscated; if it is a woman, she shall be imprisoned for 12 years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

§  77 If, out of greed for property or out of any other form of envy, [persons] participate in a murder plot [to be carried out] by administering poison and go to the murder site together but do not provide the poison [to be administered], nor do they give the order, as instigator, to kill—to administer the poison—and in the end [the victim] is given poison—consumes [it]—but does not die but rather survives, then those who participated in the murder plot and also went to the murder site together—if they are men—shall be imprisoned for 6 years in accordance with the *Ain*, and their share of property shall be confiscated; if they are women, they shall be imprisoned for 3 years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

§  78 If, out of greed for property or out of any other form of envy, [persons] participate only [as accessories] in a murder plot [to be carried out] by having [a person] consume poison, neither going [themselves] to the murder site, administering the poison, giving, as instigator, the order to kill, nor providing the poison [to be administered], and in the end the poison is administered but the victim does not die but rather survives, then the plotters, those who entered into the murder plot only [as accessories] but did not go to the site—if they are men—shall be imprisoned for 4 years in accordance with the *Ain*, and their share of property shall be confiscated; if they are women, they shall be imprisoned for 2 years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

#### **[11] The law pertaining to punishment in cases where a single person with murderous intent injures another person**

§  79 If, out of greed for property or out of any other form of envy, [a person] with the intention to kill strikes or stabs [a human] with a weapon or the like, and that human does not die or even become permanently incapacitated but is merely wounded, then the striker, irrespective of whether the wound is major or minor—if it is a man shall be imprisoned for 12 years, in accordance with the *Ain*, and his share of property shall be confiscated; if [the striker] is a woman, she shall be imprisoned for 6 years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

§  80 If, out of greed for property or out of any other form of envy, [somebody] with the intention to kill another person shoots him with a rifle, bow and arrow or other such [discharging weapon], and [that person] is wounded but [neither] dies [nor] is permanently incapacitated, then the striker, irrespective of whether the wound is major or minor—if it is a man—shall be imprisoned for 12 years, in accordance with the *Ain*, and his share of property shall be confiscated; if [the striker] is a woman, she shall be imprisoned for 6 years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

§  81 If, out of greed for property or out of any other form of envy, [somebody] with the intention to kill another person shoves or [otherwise] causes him to fall down a steep slope, [from the edge of] a deep drop, [or else to fall] from a tree, balcony, roof, wall or the like, and that human does not die or become permanently incapacitate but is merely wounded, [the perpetrator], irrespective of whether the wound is major or minor—if it is a man—shall be imprisoned for 12 years in accordance with the *Ain*, and his share of property shall be confiscated; If [the perpetrator] is a woman, she shall be imprisoned for 6 years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

§  82 If, out of greed for property or out of any other form of envy, [somebody] with the intention to kill [a human] strikes or stabs him with a stick, stone, a piece of wood, brick, turf, a roped stone [used for hunting], a wooden stick for dislodging fruit or the like, or crushes him under a rock or log, and that person does not die or even become permanently incapacitated but is merely wounded, then [the perpetrator] who with the intention to kill strikes, irrespective of whether the wound is major or minor—if it is a man—shall be imprisoned for 12 years, in accordance with the *Ain*, and his share of property shall be confiscated; if it is a woman, she shall be imprisoned for 6 years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

§  83 If, out of greed for property or out of any other form of envy, [somebody] with the intention to kill [a human] shoves [him] into a fire and lets [him] burn, and that person does not die or even become permanently incapacitated but survives only with a burn injury, then he who with the intention to kill shoved [the victim] into the fire and let him burn, irrespective of whether the wound is major or minor—if it is a man—shall be imprisoned for 12 years, in accordance with the *Ain*, and his share of property shall be confiscated; if [the perpetrator] is a woman, she shall be imprisoned for 6 years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

#### **[12] The law pertaining to punishment in cases where a group of people with murderous intent [only] injure a person**

§  84 If, out of greed for property or out of any other form of envy, a multiple number of people with the intention to kill [a human] jointly strike or stab him with a weapon or the like, and that person does not die or even become permanently incapacitated but survives only with injury, then as many persons as have discharged the weapon with the intention to kill—if they are men—shall be imprisoned for 12 years, in accordance with the *Ain*, and their share of property shall be confiscated; if [the strikers] are women, they shall be imprisoned for 6 years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

§  85 If, out of greed for property or out of any other form of envy, a multiple number of people with the intention to kill [a human] jointly shoot him with a rifle, bow and arrow or the like, and that person does not die, does not become permanently incapacitated but survives only with injury, then as many persons as discharged [weapons] with the intention to kill—if they are men—shall be imprisoned for 12 years in accordance with the *Ain*, and their share of property shall be confiscated; if [the shooters] are women, they shall be imprisoned for 6 years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

§  86 If, out of greed for property or out of any other form of envy, a multiple number of people with the intention to kill jointly shove [a human] or [otherwise] cause him to fall down a steep slope, [from the edge of] a deep drop, [or else to fall] from a tree, window, balcony, roof, wall or the like, and that human does not die or even become permanently incapacitated but rather survives with only injury, then as many people caused him to fall by laying hands [on him] with the intention to kill—if they are men—shall be imprisoned for 12 years in accordance with the *Ain*, and their share of property shall be confiscated; if [the perpetrators] are women, they shall be imprisoned for 6 years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

§  87 If, out of greed for property or out of any other form of envy, a multiple number of people with the intention to kill jointly strike [a human] with a pole, stone, brick, turf, wood [or] metal, a stick for dislodging fruit or the like, or a roped stone [used for hunting] or the like, or else crush him under a rock or log, and that person does not die or even become permanently incapacitated but rather survives with only injury, then as many persons as struck or crushed [the victim] with the intention to kill—if they are men—shall be imprisoned for 12 years in accordance with the *Ain*, and their share of property shall be confiscated; if [the perpetrators] are women, they shall be imprisoned for 6 years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

§  88 If, out of greed for property or out of any other form of envy, a multiple number of people with the intention to kill [a human] shove [him] towards a fire, make [him] fall in and let [him] burn, and that person does not die or even become permanently incapacitated but survives with only injury through having received help or by escaping on his own, then as many people as seized [the victim] during the time he was made to fall into the fire and allowed to suffer burning—if they are men—shall be imprisoned for 12 years in accordance with the *Ain*, and their share of property shall be confiscated; if [the perpetrators] are women, they shall be imprisoned for 6 years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

§  89 If, out of greed for property or out of any other form of envy, [someone] as a chief plotter gives an order [to someone else,] saying: "Kill such and such a person," and [the latter,] following the order, goes and strikes [the victim,] [but] he (i.e., the victim) does not die or even become permanently incapacitated but survives only with injury through having received help or by escaping on his own with only injury, then the chief plotter, having given the order to kill, irrespective of whether he went to the site of the [planned] killing together [with the striker] or not—if it is a man—shall be imprisoned for 12 years, in accordance with the *Ain*, and his share of property shall be confiscated; if [the striker] is a woman, she shall be imprisoned for 6 years but no property shall be confiscated. No matter how much money is offered to waive imprisonment is offered, it shall not be accepted.

§  90 If, out of greed for property or out of any other form of envy, [persons] are involved in a plot to murder [someone] and seize and tie [him] up, [but that person] does not die or even become permanently incapacitated but escapes either through having received help or by escaping on his own with only injury, then as many persons as seized and tied [the victim] up in order to kill him—if they are men—shall be branded in accordance with the *Ain*, and their share of property shall be confiscated; if they are women, they shall be imprisoned for 12 years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

§  91 If, out of greed for property or out of any other form of envy, [persons] enter into a murder plot, supply hand-held murder weapon(s) (a rifle, bow and arrow or the like) and even go to the murder site but neither wield a weapon nor give the order, as the chief [instigator], to kill, and in the end the victim [neither] dies nor becomes permanently incapacitated but is only wounded, then as many persons as provided the weapons such as rifles, bows and arrows or the like in order to kill [the victim]—if they are men—shall be imprisoned for 12 years in accordance with the *Ain*, and their share of property shall be confiscated; if [they] are women, they shall be imprisoned for 6 years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

§  92 If [someone] who wants to kill [a person] says to someone else: "I'm going to kill such and such a person. Give me a weapon—a rifle, bow and arrow or the like," and thereupon the latter provides a weapon to the person who has said that he would kill such and such a person, but he does not go to the site of killing, nor does the victim even die or become permanently incapacitated, but survives with only injury, then since it can be determined that he let the victim be wounded by providing a weapon he shall—if it is a man—be imprisoned for 12 years in accordance with the *Ain*, and his share of property shall be confiscated; if [it] is a woman, she shall be imprisoned for 6 years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

§  93 If, out of greed for property or out of any other form of envy, [persons] participate in a murder plot, and [ensure that] doors [and] windows inside a house are barred and that ladders have been removed during the murder in order to prevent the victim from escaping, but in the end [the victim] does not die or even become permanently incapacitated but is only wounded, then as many people as ensured that doors [and] windows inside a house are barred and that ladders have been removed during the time of killing—if they are men—shall be imprisoned for 9 years in accordance with the *Ain*, and their share of property shall be confiscated; if they are women, they shall be imprisoned for 4½ years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

§  94 If, out of greed for property or out of any other form of envy, [persons] enter into a murder plot and, lest [the victim] escape or flee, block a path or byway outside rather than [being present] inside the house but do not touch [the victim's] person, and in the end [the victim] does not die or even become permanently incapacitated but is only wounded, then as many persons as were involved in the murder plot by blocking paths or byways—if they are men—shall be imprisoned for 6 years in accordance with the *Ain*, and their share of property shall be confiscated; if they are women, they shall be imprisoned for 3 years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

§  95 If, out of greed for property or out of any other form of envy, [persons] participate in a murder plot and patrol the [murder site] to prevent other people from witnessing [the killing,] and in the end [the victim] does not die or even become permanently incapacitated but is only wounded, then as many persons as were involved in the plot [and act of killing] by patrolling the site—if they are men—shall be imprisoned for 6 years in accordance with the *Ain*, and their share of property shall be confiscated; if they are women, they shall be imprisoned for 3 years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

§  96 If, out of greed for property or out of any other form of envy, [persons] enter into a murder plot but do not go along to the murder site, lay [their] hands [on the victim], give the order to kill either as chief instigator but only observe [the act of murder], and in the end [the victim] does not die or become incapacitated but is only wounded, then as many persons as entered into the murder plot, went [to the site of killing] together with [the killer(s)] and observed [the act]—if they are men—shall be imprisoned for 6 years in accordance with the *Ain*, and their share of property shall be confiscated; if they are women, they shall be imprisoned for 3 years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

§  97 If, out of greed for property or out of any other form of envy, [persons] enter into a murder plot but do not go along to the murder site, provide any weapon [or] give the order to kill either as a chief instigator, and in the end [the victim] does not die or even become incapacitated but is only injured, then as many persons as entered into the murder plot—if they are men—shall be imprisoned for 4 years, in accordance with the *Ain*, and their share of property shall be confiscated; if they are women, they shall be imprisoned for 2 years but no property shall be confiscated. No matter how much money is offered to waive imprisonment they offer, it shall not be accepted.

§  98 If, out of greed for property or out of any other form of envy, [persons] with the intention to kill put a snake [where it can bite the intended victim], and the snake bites him, but in the end [the victim] is only injured but does not die or even become permanently incapacitated, then those who with the intention to kill put the snake [where they did]—if they are men—shall be imprisoned for 12 years in accordance with the *Ain*, and their share of property shall be confiscated; if they are women, they shall be imprisoned for 6 years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

§  99 If, out of greed for property or out of any other form of envy, [persons] with the intention to kill let a dog bite [another person,] but that person does not die or become permanently incapacitated but survives with only injury, then those who with the intention to kill let the dog bite [the victim]—if they are men—shall be imprisoned for 12 years in accordance with the *Ain*, and their share of property shall be confiscated; if they are women, they shall be imprisoned for 6 years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

§100 If, out of greed for property or out of any other form of envy, [persons] with the intention to kill chases [someone] with a hand-held weapon and [that person] does not die or become permanently incapacitated but is only wounded upon falling down a steep slope or from [the edge of] a deep drop while running away in order to save his life, then those who chased [him] with weapons with the intention to kill [but] were unable to strike [him] with their weapons—given the fact that the victim was wounded upon falling down a steep slope or from [the edge of] a deep drop while running away in order to save his life—shall, if they are men, be imprisoned for 6 years in accordance with the *Ain*, and their share of property shall be confiscated; if they are women, they shall be imprisoned for 3 years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

§101 If, out of greed for property or out of any other form of envy, [persons] with the intention to kill chase [someone] with a hand-held weapon and [that person] does not die or even become permanently incapacitated but is only wounded upon jumping into a river while running away in order to save his life, then those who chased [him] with weapons with the intention to kill [but] were unable to strike [him] with their weapons—given the fact that the victim was wounded upon jumping into a river while running away in order to save his life shall, if they are men, be imprisoned for 6 years in accordance with the *Ain*, and their share of property shall be confiscated; if they are women, they shall be imprisoned for 3 years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

#### **[13] The law pertaining to punishment in cases when a single person with murderous intent assaults someone but that person is not injured or else the assailant misses his target**

§102 If, out of greed for property or out of any other form of envy, [a person] with the intention to kill strikes or stabs [another person] with a weapon such as a rifle or bow and arrow, and that person is hit but is not [seriously] wounded, or the strike misses [the target], or else the victim is not struck because he runs away from or outwits [the other], then the person who struck or stabbed [the victim] with the intention to kill—if it is a man—shall be imprisoned for 6 years, in accordance with the *Ain*, and his share of property shall be confiscated; if it is a woman, she shall be imprisoned for 3 years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

§103 If, out of greed for property or out of any other form of envy, [a person] with the intention to kill strikes [another person] with a weapon such as a rifle, bow and arrow or other such [discharging weapon], and that person is hit [by the weapon] but is not wounded, or the strike misses [the target], or the victim is not struck because he runs away or sidesteps, the shooter who shot the victim with the intention to kill—if it is a man—shall, in accordance with the *Ain*, be imprisoned for 6 years and his share of property shall be confiscated. If it is a woman, she shall be imprisoned for 3 years but no property shall be confiscated; No matter how much money is offered to waive imprisonment, it shall not be accepted.63

§104 If, out of greed for property or out of any other form of envy, [somebody] with the intention to kill [a person] shoves or [otherwise] causes him to fall down a steep slope [or from the edge of] a deep drop, [or else to fall] from a tree, window, balcony, roof, wall [or the like], and that person does not die or even become permanently incapacitated or is wounded, neither but survives, then he who, with the intention to kill, shoved [the victim] or [otherwise] caused him to fall down—if it is a man—shall be imprisoned for 6 years in accordance with the *Ain*, and his share of property shall be confiscated; if it is a woman, she shall be imprisoned for 3 years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

§105 If, out of greed for property or out of any other form of envy, [somebody] with the intention to kill strikes or stabs [a person] with a pole, stone, a piece of wood, a brick, turf, a roped stone [used for hunting], a stick for dislodging fruit or the like, or crushes him under a rock or a log, [and] that person is hit but is not wounded, or the assault misses [the mark], or the victim is not struck because he runs away from or outwits [the other], then he who with the intention to kill struck

63 Sections 102 and 103 similar (see the footnote to Section 103 in the edition).

[the victim] or crushed him shall—if it is a man—be imprisoned for 6 years in accordance with the *Ain*, and his share of property shall be confiscated; if it is a woman, she shall be imprisoned for 3 years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

## **[14] The law pertaining to punishment in cases when a group of people collectively plot with murderous intent to assault a person but [the victim] is not injured, or else the assailants miss their mark and the victim is not struck**

§106 If, out of greed for property or out of any other form of envy, a multiple number of persons with the intention to kill jointly strike or stab [a human] with a hand-held or other weapon, and that person is struck but is not wounded, or else the assault misses [the mark], or the victim is not struck because he runs away from or outwits [the assailants], then as many persons, with the intention to kill, struck [him] with a weapon or the like—if they are men—shall be imprisoned for 6 years in accordance with the *Ain*, and their share of property shall be confiscated; if they are women, they shall be imprisoned for 3 years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

§107 If, out of greed for property or out of any other form of envy, a multiple number of persons with the intention to kill jointly shoot [a human] with such weapons as rifles or bows and arrows, and that person is hit but is not [seriously] wounded, or else the assault misses [the mark], or the victim is not struck because he runs away from or outwits [the assailants], then as many persons, with the intention to kill, discharged a rifle, bow and arrow or the like—if they are men—shall, be imprisoned for 6 years in accordance with the *Ain* and their share of property shall be confiscated; if they are women, they shall be imprisoned for 3 years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

§108 If, out of greed for property or out of any other form of envy, a multiple number of persons with the intention to kill jointly shove [a human] or [otherwise] cause him to fall down a steep slope [or from the edge of] a deep drop, [or else to fall] from a tree, window, balcony, roof, wall or the like, and that person does not die or become incapacitated or even wounded, then as many people as seized [the victim] and caused him to fall—if they are men—shall be imprisoned for 6 years in accordance with the *Ain*, and their share of property shall be confiscated; if they are women, they shall be imprisoned for 3 years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

§109 If, out of greed for property or out of any other form of envy, a multiple number of persons with the intention to kill jointly strike at [a human] or stab at him with a rod, stone, [piece of] wood, a brick, turf [or] metal, a stick for dislodging fruit or the like, or with a roped stone [used for hunting] or the like, or else crush him under a rock or log, and that person is hit but is not wounded, or the assault misses [the mark], or the victim is not struck because he runs away or hides, then as many persons as struck at [the victim] with the intention to kill shall—if they are men—be imprisoned for 6 years in accordance with the *Ain*, and their share of property shall be confiscated; if they are women, they shall be imprisoned for 3 years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

§110 If, out of greed for property or out of any other form of envy, a multiple number of persons with the intention to kill [a human] jointly shove [him] towards a fire, make [him] fall in and let [him] burn, and that person does not die, suffer burns but survives [either] by receiving [others'] help or escaping [from the site] on his own, then as many persons as seized [the victim], made him fall into the fire and let him burn—if they are men—shall be imprisoned for 6 years in accordance with the *Ain*, and their share of property shall be confiscated; if they are women, they shall be imprisoned for 3 years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

§111 If, out of greed for property or out of any other form of envy, [persons] as chief plotters give an order [to someone else,] saying: "Kill such and such a person," and [the latter,] following the order, goes and assaults [the victim,] who, while struck, is not wounded, or else the assault misses [the mark] or the victim saves his life [either] by receiving [others'] help or escaping [from the site] on his own, then the chief plotters who gave the order to kill, irrespective of whether they went to the site of killing together [with the killer] or not shall—if they are men—be imprisoned for 6 years in accordance with the *Ain*, and their share of property shall be confiscated; if they are women, they shall be imprisoned for 3 years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

§112 If, out of greed for property or out of any other form of envy, [a multiple number of persons] are involved in a plot to murder [a human] and seize and tie [him] up, but in the end the victim is struck but is not wounded, or else the assault misses [the mark] or the victim saves his life [either] by receiving [others'] help or on his own by running away [from] or outwitting [the assailants], then as many persons as seized and tied [the victim] up in order to kill him shall—if they are men—be imprisoned for 6 years in accordance with the *Ain*, and their share of property shall be confiscated; if they are women, they shall be imprisoned for 3 years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

§113 If, out of greed for property or out of any other form of envy, [a multiple number of persons] participate in a murder plot [to the extent of] providing weapons such as rifles or bows and arrows, and go to the site of the killing [but] do not discharge a weapon and do not [act] either as the main [plotter] by giving the word to kill, and in the end the rifles, bows and arrows or the like provided by [them] are discharged but the victim is not wounded, or [the weapons] are discharged with the intention to kill but miss [the mark], or else [the victim] runs away from or outwits [the assailants] and remains unscathed, then as many persons as have provided the weapon to kill him—if they are men—shall be imprisoned for 6 years in accordance with the *Ain*, and their share of property shall be confiscated; if they are women, they shall be imprisoned for 3 years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

§114 If [someone] who wants to kill [a person] says to someone else: "I'm going to kill such and such a person. Give me a weapon such as a rifle, bow and arrow or the like," and thereupon the latter provides a weapon to the person who has said that he would kill such and such a person, but [the provider] does not go to the site of the [attempted] killing, and in the end [the weapon] is discharged with the intention to kill but it misses [the mark] or else [the victim] runs away from or outwits [the assailants] and remains unscathed, then since it can be ascertained that [the provider] provided a weapon—a rifle, bow and arrow or the like—[that would be used] to kill [the victim], he shall—if it is a man be imprisoned for 6 years in accordance with the *Ain*, and his share of property shall be confiscated; if it is a woman, she shall be imprisoned for 3 years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

§115 If, out of greed for property or out of any other form of envy, [persons] participate in a murder plot and [ensure that] doors [and] windows inside a house are barred or that ladders have been removed during the murder in order to prevent the victim from escaping, and in the end [the victim,] who survives [either] by receiving help or escaping [from the site] on his own, is not permanently incapacitated or wounded, then as many people who, with the intention to kill, have ensured that doors [and] windows inside the house are barred or that ladders have been removed—if they are men—shall be imprisoned for 6 years in accordance with the *Ain*, and their share of property shall be confiscated; if they are women, they shall be imprisoned for 2½ years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

§116 If, out of greed for property or out of any other form of envy, [persons] enter into a murder plot and block the path to the main road or [other] paths outside rather than [being present] inside the house, do not lay hands on [the victim,] and in the end [the victim] does not die, does not become permanently incapacitated and is not wounded, or else is attacked but is not wounded, or [the assault] misses the mark, then as many persons as were involved in the murder plot by blocking the path to the main road or [other] paths—if they are men—shall be imprisoned for 4 years in accordance with the *Ain*, and their share of property shall be confiscated; if they are women, they shall be imprisoned for 2 years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

§117 If, out of greed for property or out of any other form of envy, [persons] participate in a murder plot and patrol the [murder site] to prevent other people from witnessing [the killing,] and in the end the assault lands but the victim is not [seriously] wounded, or else it misses the mark, or he saves his life [either] by receiving help [from others] or escaping from or outwitting [the assailants] on his own, then as many persons patrolled the murder site to prevent other people from witnessing the killing—if they are men—shall, be imprisoned for 3 years in accordance with the *Ain*, and their share of property shall be confiscated; if they are women, they shall be imprisoned for 1½ years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

§118 If, out of greed for property or out of any other form of envy, [persons] enter into a murder plot, go to [the site] together [with the killer(s)] but do not strike [the victim] with their hand, do not patrol [the murder site] or give the order to kill as the chief plotter but only observe [the murder], and in the end the assault lands but [the victim] is not [seriously] wounded, or else it misses the mark, or the victim saves his life [either] by receiving help or running away from or outwitting [the assailants] on his own, then as many persons as participated in the plot, went to the site and observed the [attempted] killing—if they are men—shall be imprisoned for 3 years in accordance with the *Ain*, and their share of property shall be confiscated; if they are women, they shall be imprisoned for 1½ years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

§119 If, out of greed for property or out of any other form of envy, [persons] enter into a murder plot but do not go along to the murder site, provide any weapons [or] give the order to kill as the chief plotters, and the assault lands but [the victim] is not [seriously] wounded, or else it misses the mark, or [the victim] saves his life by receiving help or by running away from or outwitting [the assailants], then as many persons as entered into the murder plot—if they are men—shall be imprisoned for 3 years in accordance with the *Ain*, and their share of property shall be confiscated; if they are women, they shall be imprisoned for 1½ years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

§120 If, out of greed for property or out of any other form of envy, [persons] put a snake [in someone's environs] in order to kill him, but in the end the snake does not bite [the intended victim], then those who put the snake [in the victim's environs] with the intention to kill—if they are men—shall be imprisoned for 3 years in accordance with the *Ain*, and their share of property shall be confiscated; if they are women, they shall be imprisoned for 1½ years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

§121 If, out of greed for property or out of any other form of envy, [persons] with the intention to kill [another person] sicks a dog on [him,] but the dog does not bite, or else [the victim] saves his life by escaping from or outwitting [the dog], then those who, with the intention to kill, sicked the dog on [the intended victim]—if they are men—shall be imprisoned for 3 years in accordance with the *Ain*, and their share of property shall be confiscated; if they are women, they shall be imprisoned for 1½ years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

§122 If, out of greed for property or out of any other form of envy, [persons] with the intention to kill chase [someone] with hand-held weapons and [that person] jumps from a cliff or [the edge of] a deep drop or into a river, thus fleeing and saving himself, and in the end suffers no injury, then those who chased [him] with hand-held weapons with the intention to kill—if they are men—shall be imprisoned for 3 years in accordance with the *Ain*, and their share of property shall be confiscated; if they are women, they shall be imprisoned for 1½ years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

§123 If [persons] with the intention to kill take up hand-held weapons—rifles, bows and arrows, stones or the like—and block passages, paths to main routes or [other] paths but are captured before being able to wield their weapons, then as many persons as, with the intention to kill, blocked the paths—if they are men—shall be imprisoned for 4 years in accordance with the *Ain*, and their share of property shall be confiscated; if they are women, they shall be imprisoned for 2 years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

§124 If [persons] make a plot to murder [someone] but this comes to light while they are plotting, then as many people as have been plotting to murder—if they are men—shall be imprisoned for 2 years in accordance with the *Ain*, and their share of property shall be confiscated; if they are women, they shall be imprisoned for 1 year but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

§125 If [persons] with the intention to kill [someone] put poison in food or the like, and the matter is disclosed before the food is eaten, then those who put poison in the food with the intention to kill, those who gave the order to kill [the victim] by letting [him] consume poison and those who provided poison knowing that it was meant to kill [the victim]—if they are men—shall be imprisoned for 4 years in accordance with the *Ain*, and their share of property shall be confiscated; if they are women, they shall be imprisoned for 2 years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

§126 If persons put poison in food or the like with the intention to kill someone but some other person eats that poisonous food and dies before [the targeted victim] consumes it, then those who put the poison in the food with the intention to kill—if they are men belonging to a caste group whose members may not be executed—shall be branded in accordance with the *Ain*, and their share of property shall be confiscated; if they are women, they shall be branded but no property shall be confiscated. If they are men belonging to caste groups whose members may be executed, they shall be executed—taking life for life.

§127 If persons put poison in food or the like with the intention to kill someone, but before [the targeted victim] consumes it some other person eats that poisonous food and, having eaten it, does not die but survives, then those who put the poison in the food with the intention to kill—if they are men—shall be imprisoned for 12 years in accordance with the *Ain*, and their share of property shall be confiscated; if they are women, they shall be imprisoned for 6 years but no property shall be confiscated. No matter how much money is offered to waive imprisonment, it shall not be accepted.

§128 If someone puts poison in food outside a house to kill wild animals—a tiger, wild boar, deer, antelope, wild buffalo, rhinoceros, jackal or the like, or a bird or the like—having [first] informed [persons in advance] at the village, but a human, cow or ox, or the like inadvertently eats that poisonous food and dies, then it shall be taken as a mishap. The one who put poison in the food shall be assigned no blame, nor need he [undertake] expiation. If poison is put in the food without informing [persons in advance] at the village, and a human accidentally consumes it and dies, [the authorities] shall fine him 20 rupees. If a four-footed [domestic] animal happens to die [by eating that food], [the authorities] shall compel [the man who set the poison] to pay that animal's owner an amount settled upon by the village; however, [he] need not pay a fine.

§129 If someone asks for a hand-held weapon—a rifle [or the like]—from someone else, [and the former] takes it and kills a human, then he who provided the weapon to the killer—in cases where it is [later] determined that the provider of the weapon had no knowledge that it was being taken to kill someone—shall be assigned no blame, nor need he [undertake] expiation.

§130 If a person provides poison to someone who states that it is needed for medical purposes or the like, and the latter lets a person consume that poison, then the provider of the poison—in cases where it is determined that he provided the poison without knowing that it was meant to kill—shall be assigned no blame, nor need he [undertake] expiation, irrespective of whether the [victim] died or not.

§131 If a child below the age of 12, having not been directed [to do so] by anyone, feeds something poisonous to a member of his own household or any other person but the person who consumes the poisonous substance does not die, then, given the fact that it is a child below the age of 12, no blame shall be assigned but a fine of 2½ rupees shall be exacted, and expiation shall be granted against 1 rupee taken as *godāna* [by the *dharmādhikārin*]. If it is determined that it had [the poisonous substance] consumed at somebody else's direction but the victim did not die, then he who directed [it to do so] shall be punished in accordance with the *Ain*; the child who had the poisonous substance consumed shall be fined as specified before, be granted expiation and let off. No other blame shall be assigned.

§132 If a male or female who has crossed 12 years of age has, out of anger or vexation, something poisonous consumed by a member of their own household or by somebody who does not belong to their household, and he who consumes it does not die, then a [local] *aḍḍā*, *adālata* or *amāla* shall obtain a written confession from and imprison [the perpetrator] for 4 years irrespective of whether he who consumed the poison says, "Although such and such person had me eat something poisonous, I did not die, so I pardon him" or "I do not pardon him." If [the perpetrator] offers money to waive imprisonment, it shall be accepted, and he shall be granted expiation by the *dharmādhikārin* against 5 rupees as *godāna*.

§133 If any man or woman of the four classes and thirty-six castes, including a Brahmin, wields a weapon and strikes a person with the intention to kill [but only] injures him, and the victim, in order to save his life, kills the attacker then and there by wielding a hand-held weapon [of his own] or other such thing, then he shall be assigned no blame in cases where there are eyewitnesses who saw the weapon [being wielded by the perpetrator] and who submit an affidavit stating that the person who died struck first with his weapon, injuring [the victim] and that therefore the victim killed that [attacker]. If a Brahmin, woman, a blood relation or someone of the same *gotra* is killed, the slayer shall be granted expiation and shall [then] be permitted to eat cooked rice and drink water [together with his fellow caste members]; in cases where persons [other than those] mentioned are killed, no expiation is needed and he shall remain within his caste.

§134 In cases where somebody, after killing another person, proclaims to a village *aḍḍā, adālata* or *amāla*, "When such and such a person with the intention to kill injured me with a weapon, I killed him, [thus] saving my life, and came here," then if there was no eyewitness [who might have] helped him during the killing, he shall not be let off

only on the basis of his verbal statement regarding the killing. If it is determined during an investigation of the case by the *adālata* or [village] council that he killed [the other] in order to save [his] own life when [the latter] with murderous intent injured him with a weapon, he shall be assigned no blame and be let off. If it is determined that he unlawfully killed another person and [then] came proclaiming, "When [such and such a person] attacked me with the intention to kill, I killed him in order to save my own life," he—if it is a man who belongs to a caste group whose members may not be executed—shall be branded in accordance with the *Ain*, and his share of property shall be confiscated; if it is a woman, she shall be branded but no property shall be confiscated. If [the perpetrator] is a man who belongs to a caste group whose members may be executed, he shall be executed—taking life for life.

§135 If someone kills a person [but] but does not inform [authorities] and [the killing] becomes known afterwards through someone else, and the slayer is taken into custody and brought in for interrogation, during which he says, "I killed [that person] when he struck me with the intention to kill," and if—when he is unable to produce any eyewitnesses—it is determined that he killed [the victim] out of anger, then he—if it is a man who belongs to a caste group whose members may not be executed—shall be branded in accordance with the *Ain*, and his share of property shall be confiscated; if it is a woman, she shall be branded but no property shall be confiscated. If [the perpetrator] is a man who belongs to a caste group whose members may be executed, he shall be executed—taking life for life.

§136 If somebody is engaged in the act of killing a person unlawfully and that person cries for help, but the village headman aged between 16 and 65 who does not go to his aid, [even though] aware [that a murder is taking place], shall be fined 100 rupees. Persons other than the village headman who do not go [to help the victim] upon hearing [his] cry for help shall each be fined 10 rupees. Those below the age of 16 and elderly persons above the age of 65, the sick and women shall be assigned no blame. If a multiple number of persons from the same household hear [the victim's] cry for help and 1 or 2 go [in response] but the others do not go, the others from the same household who did not go shall be assigned no blame.

§137 If someone kills a person and flees past a border pillar or the borderline, no one shall enter into the foreign country and capture and kill [him]. If [anybody] does enter the foreign country and captures and kills him, he shall be charged with a crime. In cases where [somebody] is unable to capture [such a person] who flees to a foreign country, he shall be assigned no blame. The Resident Sāheba shall be consulted if [the perpetrator] flees to Madhesa (i.e., British India), and the Chief Kājī if he flees to Bhoṭa (i.e., Tibet). Once he is brought [back] here [to our own country,] the murderer—if it is a man belonging to a caste group whose members may not be executed—shall be branded in accordance with the *Ain*, and his share of property shall be confiscated; if it is a woman, she shall be branded but no property shall be confiscated. If it is a man belonging to a caste group whose members may be executed, he shall be executed—taking life for life.

§138 If [a bailiff or soldier] is sent to take someone into custody by order of a government officer or by [order of] an *aḍḍā*, *adālata*, *ṭhānā*, *amāla* or *kacaharī*, and he who is taken and being brought in is attacked by a third party on the way and dies, the slayer shall be punished in accordance with the law relating to homicide. The bailiff or soldier who was taking [the deceased] into custody shall be assigned no blame.

§139 If someone not sent by order of a government officer or an *aḍḍā*, *adālata*, *ṭhānā*, *amāla* or *kacaharī* takes someone else into custody in connection with a legal dispute involving transactional matters, and a third-party attacks [the detainee] and kills him, the slayer shall be punished in accordance with the law relating to homicide. The creditor or *talsiṅ* who was taking [the other] into custody shall be assigned no blame for having done so regarding a legal dispute involving transactional matters or the like.

§140 If a murderer, thief, adulterer or [any other] criminal, or else a slave, a male or female servant or the like who has fled [their] master's house is caught and taken [into custody] by a bailiff or soldier sent by an *adālata*, *ṭhānā*, *amāla* or the like*,* or is caught and brought [in] by their master [himself], or by somebody else who bears witness against them, stating "This [person] committed such and such act," and [the person], having been put in fetters or stocks or [restrained with] leather handcuffs or the like, or put in prison, [later] dies from having consumed poison, hanged [himself] or cut [his own] throat, then those who caught him and brought [him in], who imprisoned him or who restricted [his movements] shall be assigned no blame.

§141 If a thief, an adulterer or [any other] criminal, or else a slave, male or female servant or the like who has fled [their] master's house is caught and brought [in] by a bailiff or soldier sent by an *adālata*, *ṭhānā*, *amāla* or the like, or is caught and brought [in] by someone who has been sent by their master to catch [them,] and [the person], having been tied up, fettered or put in stocks, or [restrained with] leather handcuffs or the like, dies [along the way] from having on his own jumped into a river, from a cliff, into swampland, out of a window, from a roof, down a well, off a [beam] bridge or suspension bridge, or else from a boat, and [then] while escaping from having been swept away or having collided with [something], then he who caught [the person] and was bringing him [in] shall be assigned no blame.

§142 If a person who is being taken into custody to be held in confinement due to a dispute regarding gold or silver, cash or commodities, vessels, jewels, real property, four-footed [domestic] animals, male or female slaves, adultery, caste-related issues, house and fields, water channels, public water sources, right of way, nuptial issues, trade and transactions or the like, and while being brought [to authorities] dies upon falling down a steep slope or colliding with [something] when at some point he jumps [free] and flees, or else his hand or leg is injured or broken, then he who was taking him into custody and was bringing [him in] shall be assigned no blame. If he who was taking [the other] into custody was to have received something back from the deceased, he shall take [what is owed him] from the offspring of the deceased or from whoever inherits his property if he died without offspring. If [he] comes to an *adālata* or *amāla* to lodge a complaint, [the authorities] shall see that he receives what is due to him.

§143 If someone who needs to be held captive [temporarily] (i.e., pending transfer to authorities) due to a dispute regarding gold or silver, vessels, cash or commodities, jewels, real property, four-footed [domestic] animals, male or female slaves, adultery, caste-related issues, house and fields, water channels, public water sources, nuptial issues, trade and transactions or the like is held by someone inside his own or the other's house—whether in a room on an upper floor [or] on the ground floor—and [the captive] dies from having jumped from a window, a balcony or the roof, or injures his hands or legs, or suffers injury to [other] parts of the body, or dies by cutting his throat, stabbing himself with a weapon or hanging himself, or else dies by consuming poison, then he who held him captive shall be assigned no blame.

#### **[15] The law pertaining to punishment for the crime of striking someone with the intention to kill**

§144 In cases involving the killing of a person or engaging in a plot to kill, [the perpetrators] shall be punished in accordance with this *Ain*

(i.e., the law on homicide). If [someone] has killed, permanently incapacitated or else [otherwise] injured a person, or engaged in a plot [leading to similar results], the perpetrators shall be punished in accordance with the written provisions of this *Ain*. If it is determined that [the perpetrators] did not kill, permanently incapacitate or else injure a person, or engage in a plot [leading to similar results] in such a manner as written in this *Ain*, but rather that they did so in a different manner, the matter shall be decided in accordance with Section 8 of [the Article] on Court Procedures.

§145 If someone with the intention to kill or during a dispute over some incidental matter injures or incapacitates a person by striking or stabbing [him] with a weapon or by other means, the wound [of the victim] shall be measured. If there is a need to determine whether [the victim] has become incapacitated, [one] shall have a barber—in case one is available, and if not, then a knowledgeable village notable measure, in the case of striking, the length of the wound and, in the case of stabbing, its depth, and [the measurer] shall be made to determine whether [the victim] is permanently incapacitated or not. Once he has made a determination, a written statement shall be prepared regarding the extent of injury, and the perpetrator shall be dealt with in accordance with the *Ain* on the basis of these written details.

§146 If someone beats [a person] with the intention to kill, [one] shall have a barber—in the case one is available, and if not, then a knowledgeable village notable—examine the [victim] to determine whether his hands, feet, fingers and toes, or bones have been broken or not, whether he has become permanently incapacitated or not, or whether or not he has suffered merely a minor injury. After [the measurer] has made a determination, a written statement shall be prepared regarding the extent of injury, and the perpetrator shall be dealt with in accordance with the *Ain* on the basis of these written details.

#### **[16] The law pertaining to execution, branding and other punishment for the crime of homicide**

§147 In cases where an Upādhyāya Brahmin or any other person belonging to a Brahmin caste group kills someone or commits a crime resulting in the loss of life, he shall not be executed, given the demerit of killing a Brahmin. [Instead, authorities] shall, in accordance with the *Ain*, confiscate [the perpetrator's] share of property and brand [him].

§148 In cases where an unmarried girl above the age of 11 or a widow from among the four classes and thirty-six castes commits a crime resulting in the loss of life, she shall not be executed, given the demerit of killing a woman. Nor, since she is a woman, shall her property be confiscated; rather, she shall simply be branded.

§149 In cases where [a member of] the Rājapūta caste kills a person, he shall be executed—taking life for life. If he commits adultery, the wronged husband has the right to decide [whether he shall be executed or not]. If [a member from] the Rājapūta caste commits crimes other [than these], he shall be punished in accordance with the *Ain*, but he shall not be executed.

§150 If an Upādhyāya Brahmin or any other Brahmin from any caste group; an ascetic whose father is /was an ascetic and whose maternal line of descent is not known; the offspring born to a Daśanāma ascetic*,* a Jogī, a Jaṅgama ascetic or Sebaḍā ascetic and a chaste Brahmin widow taken as a concubine; or a Ramatā ascetic*,* Phakira or Kānacīrā /Kānaphaṭṭā ascetic whose father and maternal line of descent are not known commits the crime of taking a human life, he shall not be executed, [but] his share of property shall be confiscated in accordance with the *Ain*, and he shall be branded.

§151 If [a member of] a Rājapūta caste [or] any [other] non-Brahmin Sacred Thread-wearer or Non-enslavable or Enslavable Alcohol-drinker or [any other] such caste—(1) who has become a tonsured (*muḍiyāko*) ascetic—for example, a Daśanāma, Jogī, Jaṅgama, Sanyāsī or Sebaḍā [ascetics]—(2) who has remained true to [an ascetic's] duties (*dharma*), and (3) who has no household (i.e., who has taken the vow of chastity)—if a wearer of such a habit kills a person, he shall, in accordance with the *Ain*, be branded and his share of property shall be confiscated.

§152 If [a member of] a Rajapūta /Rājapūta caste [or] any [other] non-Brahmin Cord-wearer or Non-enslavable or Enslavable Alcoholdrinker or any [other such] caste who has become a tonsured ascetic [living] with Daśanāma, Jogī, Jaṅgama, Sebaḍā or Sanyāsī ascetics [but then] establishes a family, remains true to a householder's duties (*gṛhasthadharma*) and assumes a householder's clothing—[if such a man] kills someone, he shall be executed—taking life for life.

§153 If a speech-impaired man or woman who is of sound mind and able to communicate [reasonably well] (*vākya phuṭnu*) kills a person, he—if it is a man who belongs to a caste whose members may not be executed—shall, in accordance with the *Ain*, be branded and his share of property shall be confiscated; if it is a woman, she shall be branded but no property shall be confiscated. If it is a man who belongs to a caste whose members may be executed, he shall be executed—taking life for life.

§154 If a speech-impaired man or woman who is dull-witted but able to communicate [reasonably well] kills a person, there shall be no taking of life for life. If it is a man, he shall be imprisoned for 12 years; if a woman, she shall be imprisoned for 6 years. Even though the [perpetrator] offers twice the amount [required to waive imprisonment], it shall not be accepted.

§155 If someone who does not know what is proper to do and what is not roams around [as if] in a state of enlightenment and eats tabooed food that calls for loss of caste, or engages in merely one of these mentioned activities—if such an insane man or woman kills a person, [the perpetrator]—if it is a man—shall be branded in accordance with the *Ain*, and his share of property shall be confiscated; if it is a woman, she shall be branded but no property shall be confiscated.

§156 If an insane man or woman who knows what is proper to do and what is not, who does not eat tabooed food and who does not roam around [as if] in a state of enlightenment kills a person, [the perpetrator]—if it is a man belonging to a caste group whose members may not be executed—shall be branded in accordance with the *Ain*, and his share of property shall be confiscated; if it is a woman, she shall simply be branded. If it is a man who belongs to a caste group whose members may be executed, he shall be executed—taking life for life.

§157 If an insane man or woman who has killed a person [never] ate tabooed food, excrement or the like before committing the murder but is learned to have roamed around [as if] in a state of liberation and to have eaten tabooed food, excrement or the like afterwards, it can be understood that they ate [such things] in order to save their life. Such an insane person—if it is a man who belongs to a caste whose members may be executed—shall, in accordance with the Ain, be branded and his share of property shall be confiscated; if it is a woman, she shall be branded but no property shall be confiscated. If it is a man who belongs to a caste group whose members may be executed, he shall be executed—taking life for life.

§158 If [the offspring of] someone who has been relegated to a lower caste through [the act of] caste degradation of having one's head shaved, or who has been relegated to a lower caste for [the lesser fault of] having committed adultery with someone of a lower caste, or else for having consumed cooked rice, water or the like [under circumstances] leading to caste degradation—[if such a person] kills someone [else], he—if, while having lost caste, still belongs to a caste whose members may not be executed—shall be branded in accordance with the Ain, and his share of property shall be confiscated. If, in having lost caste, he now belongs to a caste whose members may be executed, he shall be executed—taking life for life.

§159 If someone is killed by a person who was born to one who has been relegated to a lower caste through [the act of] of caste degradation of having one's head shaved, or who has been relegated to a lower caste for [the lesser fault] of having committed adultery with a partner of a lower caste, or else for having consumed cooked rice, water or the like [under circumstances] leading to caste degradation—then [the perpetrator] shall be punished in accordance with the [specific] law applying to the caste to which [the parent] had, in accordance with the *Ain*, been relegated.

§160 When someone who has committed a crime (*bejāi*) and by legal decision (*nisāphale*) is to be beaten [for it] is seized by 3 or 4 persons and beaten, but then, while being beaten he himself makes the mistake of compounding his crime by wielding a weapon, and if [in doing so] he takes a human life, he shall be executed—taking life for life. If [the other] did not die but was injured when [the perpetrator] was frantically wielding his weapon, then, since the latter wielded a weapon himself when he was being beaten, the wound shall be measured by length in the case of striking and by depth in the case of stabbing, and [the perpetrator] shall be imprisoned for as many years as [the size of] the wound in fingerbreadths.

# C. Edition and Translation of Documents

# **Document 1 (DNA 4/100)**

A letter from Raṇavīra Siṃha Thāpā to General Bhīmasena Thāpā (VS 1892)

Edited and translated by Rajan Khatiwoda; dated VS 1892 (1835); National Archives, Kathmandu; microfilmed as NGMPP DNA 4/100 on 17/04/2000; for the digital edition, see https://nepalica.hadw-bw.de/ nepal/editions/show/1074.

**Abstract:** This letter, authored by Raṇavīra Siṃha Thāpā from Pālpā in Tānasena and addressed to General Bhīmasena Thāpā, seeks clarification regarding previously issued *lālamoharas*. The *lālamoharas* pertain to theft, robbery, and the application of the death penalty in cases involving the latter offense, prior to the signing of a treaty with the British Indian Government aimed at preventing crimes, particularly cross-border theft and robbery.

Edition:

[*1r-part1*]

<sup>1</sup> नं ४३९<sup>1</sup>

[Seal]

1 The manuscript number has been inserted by a second hand.

316 — C. Edition and Translation of Documents

	- For o*yogetyādi*.
	- Note that in the edition, both the double dot (..) and single dot (.) above the letters (*akṣara*) are represented by a single dot (◌̇) above. However, it is important to acknowledge that at times they have been used to distinguish nasal sounds.
	- The eulogy is composed in Sanskritized Nepali, which means that the standards of Sanskrit grammar have not been adopted in the edition.

[*1r-part2*]

```
29 ताकित गर््न्यया काम गर्रहदै नुभन्न्या वेवराको रहेछ । येसै येकोहरा वेवरालेअंग्रेज-
30 को मुलुकमा गैडांका चोरि गर्यौ भन््यया ज््ययूजहान्मा पर््लला भनि १५।१५ दिन्मा उर््ददि 
31 दिंदा त हाम्रा रैयेत्हरुको साह्रै मन्षस्न जाला अलिक् देसमा पनि वदनाम
32 पर््लला भन््यया झैैंपनि लाग््ययो । वन््ददोवस््तको लालमोहरमा येक् वेवरा उर्दी दिन््यया लाल-
33 मोहरमा येक् ववरे ा हुनाले विन््तती गरि पठायाको हो । दोह<रा> पाठको वन््ददोवस््तका 
   ला-
34 लमोहरवमोजीम दोहरो उर््ददि नेपाल ---१--- का अम््वलका मानिसलेसर््ककार
35 कं पनिका अम््वलमा डांका र चोरि गर््न गयौ भन््यया सर््ककार कं पनीलेसजाय गर््ननु
36 सर््ककार कं पनिका अम््वलका मानीसलेनेपाल ---१--- का अम््वल्मा आइ चो-
37 रि डाका मार््यया भन््यया नेपाल ---१--- वाट सजाय गर््ननु भन्न्या ९१ सालका कार्त्तिक
38 मैन््हहादषिे वन््ददोवस््त भयाको छ । डांका र चोरिका कुरामा सावित् हुनगयो भन््यया ज््ययू
39 जहानमा पर््लला भनि १५।१५ दिनमा ढुंडुला पिटाइदिन््यया हो कि । अंग्रेज्सितका
40 वन््ददोवस््तका कुराको लालमोहरमा भन््यया डांकाको कुरा मात्रै रहेछ उर्दी दिनु
41 भन्न्या पछिल््ललो लालमोहरमा भन््यया डांका र चोरिमा सावित भयो भन््यया ज््ययूजहा-
42 नमा पर््लला भन्न्या रहेछ । चोरिको कुरामा २ लालमोहरमा येक वेवरा नहुुंदा चोरि-
43 का कुराको उर््ददि दिउ भन््यया गाइ भैसि वा प्राधान चोर््न्ययालाइ पनि चोर भनीींछ गा-
44 इ भैसि वा प्राधान चोर््न्यया समेतलाइ हो कि घर फोरन््यया र विचमा डांका मार््न्ययाला-
45 इ मात्रै हो । अघील््लला मोहरवमोजीमको दोहरा कुराका डांकाको उर््ददि दिन््यया हो कि 
46 पछिल््लला येकोहरा कुराका ववरे ाको डांका चोरि समेतको उ ् र्दी दिन््यया हो । ---१--- मा
47 विन््तती पारिवक््सनुभया हुकु म आग््यया आयावमोजीम उर््ददि दिन लाउला । वीग््यये-
48 चरणेषु। इति सम््वत्१८९२ साल मिति श्रावण सुदि ५ रोज ५ मुकाम पाल््पपा
49 तानसिंशुभम्---
```
Translation:

Number 439

Hail! This letter is preceded by [assurances of faithful] Service! Service! Service! [and] crores and crores of eight-point prostrations *(sāṣṭāṁgadaṇḍavat)* performed by Raṇavīra Siṃha Thāpā to the feet of [my] five times venerable elder brother General Bhīmasena Thāpā, a fit [model] for comparison, most venerable because of every [good] quality and capable of carrying out (lit. elevating) the king's heavy tasks and of firmly holding a sword.

[We are] here fine by the blessing of [your] feet. If [your] feet there are well, happy, auspicious and steady, all our affairs will be protected and advanced. Furthermore, the tidings here are good. The compassionate letter written on Thursday, the 13th of the dark fortnight of Śrāvaṇa arrived on Tuesday, the third of the bright fortnight. [After I read] each paragraph [of it], the extent of its meaning [was understood]. I bow down my head [to your feet]. [Regarding the] following: The letter of instruction [from you which states the following] has arrived: 'The content [lit. matter] of the *rukkā* [containing] details of the mutual extradition of robber[s] has also been sent to you stating [the following:]' "From now on wherever a robbery is committed, [either] at a location [in the jurisdiction] of our ---1--- (i.e., *śrī 5 sarkāra*)5 [or] of the Company Government, the local authority shall administer punishment." *Lālamohara*s have been issued and sent from place to place [relating] to [two] *rukkā*s, [one of them containing] the above-mentioned details and [the other] [prescribing] arrangements for the proclamation *(urdi dinyā)* regarding [this] matter of robbers, [to be announced] by the beating of drums. [These] 2 *lālamohara*[s] will be going [and] reach there [where you are] too. It would be good if [you could] perform the task of sending from place to place the proclamation that [whoever] does not act according to [these] *lālamohara*[s] [but] contrary to [them] will be punished in accordance with what is written in the *lālamohara*[s]'.

This is very proper and good. The [four following] *lālamohara*s have arrived:

The *lālamohara* on compensation for the 2 [*murī*s] and 15 [*pāthī*s] of *kheta*<sup>6</sup> [granted] to the regiment of ---2---<sup>7</sup> as *jāgira* [but] destroyed by landslides and flooding [lit. river] on the *kheta* [next to] the river ---1

The *lālamohara* reflecting the older border pillars under the name of Maheśvara Pā̃ḍe ---1

The *lālamohara* on robbery ---1

The *lālamohara* on the proclamation regarding robbery and theft ---1


As to one [of them]: You had sent me a draft of the *rukkā* asking for my opinion [and containing the following] details: 'Wherever a robbery is committed, [whether] at a location [in the jurisdiction] of Nepal ---1--- (i.e., *śrī 5 sarkāra*) or Company Government, the local authority (*mālikale*) shall exact punishment [by] executing the robber. If persons under Nepal ---1--- (i.e., *śrī 5 sarkāra*) commit robbery at a location [in the jurisdiction] of the Company Government, [the offenders] shall be punished by the Company Government, [while] if persons under the Company Government commit robbery at a location [in the jurisdiction] of Nepal ---1--- (i.e., *śrī 5 sarkāra*), [the offenders] shall be punished by Nepal ---1--- (i.e., *śrī 5 sarkāra*).' [My opinion is that] it would be good to issue double (i.e., in villages and in *kacaharī*s) proclamations every 15 days.

[As to the *lālamohara* on] issuing the proclamation, it has [the following] details: 'Because of robbery and theft in the cross-border areas, the friendship [between Nepal ---1--- (i.e., *śrī 5 sarkāra*) and the Company Government] will suffer, and their peoples, too, will. Therefore, [the proclamation, announced by] the beating of drums, that anybody from the Four Varṇas and Thirty-six Jātas shall be punished by death if [charges] of theft and robbery are proved shall be delivered in every *pragannā* <sup>8</sup> [and] *mauje* <sup>9</sup> . From now on the same proclamation shall also be delivered in *kacaharī*s every 15 days and warnings continually issued.' It seems to me that if the proclamation is delivered every 15 days—that robbery or theft committed in the British-[Indian] territories shall carry the death penalty—our subjects will be very alarmed and the country will fall into some disrepute.

There is one detail in the *lālamohara* concerning arrangements [and] one [other conflicting] detail in the *lālamohara* concerning the proclamation, and therefore I have sent a request [for clarification]. The double proclamations based on the *lālamohara* concerning arrangements for the double readings—if persons from Nepal ---1--- (i.e., *śrī 5 sarkāra*) territory go to commit robbery or theft in the territory of Company Government, [the offenders] shall be punished by the Company Government, [and] persons from Company Government territory go to commit robbery or theft in the territory of Nepal ---1--- (i.e.,

<sup>8</sup> *Pragannā* refers to an administrative district consisting of multiple villages under the supervision of a *chaudharī*. In the past, the Saptari District included 14 *pragannā* (Krauskopff & Meyer 2000: 185).

<sup>9</sup> *Mauje /Maujā* refers to a unit of land revenue administration in the Tarai region. It is a term used to describe a specific measurement or division of land for administrative and revenue purposes (see Krauskopff & Meyer 2000: 185).

*śrī 5 sarkāra*) [the offenders] shall be punished by Nepal ---1--- (i.e., *śrī 5 sarkāra*)—are scheduled [to begin] from Kārtika /Kāttika of the [Vikrama] year [18]91. Should there be the beating of drums every 15 days [announcing] that if a robbery or theft is proved, the offender shall be put to death? It is seen to be the case that in the *lālamohara* concerning arrangements with British-[India] [the offender] is to be put to death only in the case of robbery, [whereas] the *lālamohara* [issued] later states: 'if robbery or theft is proved, a death sentence shall be imposed.'

Regarding the matter of theft, [confusion arises] because the two *lālamohara*s do not agree in detail when ordering the proclamation concerning theft: whether one who steals a cow, buffalo or [any] important or main object (*prādhāna*) is also to be called a thief. [Is it the case that] only one who breaks into houses and commits robbery [is to be called a robber], or is someone who steals a cow, buffalo or *prādhāna* also [included]? Should the proclamation be made according to the prior *lālamohara* [to allow for] a double field of application of robbery or according to the later *lālamohara* concerning theft as well as robbery, each with [its own] strict fields of application? If you could kindly request [clarification of] this matter from ---1--- (i.e., *śrī 5 sarkāra*), I will have the proclamation delivered according to [his] order. [What more to say] to the feet of a knowledgeable one?

Thursday, the 5th day of the bright fortnight of Śrāvaṇa in the [Vikrama] era year 1892 [1835]. From Pālpā, Tānasiṃ [Tansen].

#### Facsimile:

[*1r-part1*]

#### [*1r-part2*]

# **Document 2 (DNA 14/4)**

A *rukkā* from King Surendra ordering the execution of Hari Goḍīyā for an act of homicide (VS 1937)

Edited and translated by Rajan Khatiwoda; dated VS 1937 (1880); National Archives, Kathmandu, Ms. no. 425; microfilmed as NGMPP DNA 14/4 on 04/07/2000; for the digital edition, see https://doi.org/ 10.11588/diglit.39465.

**Abstract:** This *rukkā* issued by King Surendra to Captain (text: *kaptāna*) Mvāna Siṃ Svā̃ra Chetrī lays bare formal procedures for carrying out the death penalty on Hari Goḍīyā, who was found guilty of killing Vadala Siṃ Thāpā.

Edition:

[*1r*]

<sup>1</sup> श्री\<sup>10</sup>

[Royal seal]

	- 10 This portion is not visible on the facsimile provided below.
	- 11 For *śrīmad atipracaṇḍa*0.
	- 12 This has been written in the upper left-hand margin of the document.

324 — C. Edition and Translation of Documents

 स््वस््तति श्रीमन््महाराजाधीराजकस््य <sup>13</sup> रुक्का --- आगेकप््ताांन्म््ववानसिं स््ववााँर छेत्री प्रती । म आफुगोडीया जात भै३४ साल््कका श्रा- वण सुदी ३ रोज १ का राती पाहाडपोषरा सीमल टोल् वस्न्या वद ल सिं थापालाई राती सुती नीदायाका वषत पारि वेहक्मा षुकु - रिले२ चोट् घोक्रामा हानी काटि मारि नीजका कम््वरको सुन तोला १ कं पनी रू ४० स््ममेत्ली म भागी गयाको साचो हो भनी मोगलाना जील््ललै वहराईच ईलाकेपल््ललापुर मौज््यये वझही वस्न्या हरि गोडीया- ले३५ साल्फागुण वदि ७ रोज ५ मा अमिनी अदालत्कचहरि- मा कायल्नामा लेषी दीयाका मुद्दामा धनमाल्का लालचालेभ- यो वा अरू केही ईवीलेअर््ककालाई हतीयार गैह्रले हानी रोपी मा- नीस मार्यो भन््यया मार््न्यया नकाटीन््यया जातको लोग््न्यया मानीस भ- या ऐनवमोजिम्को अंस सर््वस््व गरि स््ववास्नि मानीस भया सर््व- स््व नगरि दामल गर््ननु काटिन््यया जातका लोगन््यया मानीस भया [ज््यया]- नको वदला ज््ययान काटि मारिदीनुभंन््यया ज््ययानमाराका ९ लम््व- र वेहक्मा मानीसको ज््ययान् मार््यया मानीसमा ऐनलेज््ययान लि- नुपर््ददा अवउप््राांत फलानु टक््ससीर<sup>14</sup> गर््न्यया फलानालाई उसलेज््यया न मार््ययाका फलाना ठाउमा लगी ज््ययान काटी मार््ननु वा फासि दी मार््ननु भंन््यया लालमोहरमा लेषाई सो लालमोहरमा जौन जगा- मा लगी मार््ननु भंन््यया लेषीयाको छ उसैजगामा लगी उसैठाउका छोइ छीटो हालनुपर््न्यया जातका हातवाट कटाई मराउनु वा फा- सी दीलाई मार््ननु भंन््यया ज््ययान लीदाको र मुड्दा दामल्गर््ददा ग- र््न्ययाको ७ लम््वर ज््ययान जान््यया मानीसको ज््ययान मार््न पठाउदा र मुड्नुपर््न्ययालाइ मुडी धपाउदा यसलेफलानु टक््ससीर<sup>15</sup> गर्यो र यस््कको ज््ययान मारिन््यया भयो अथवा मुडीयाकालाइ मुडीयो भंन््यया सहरका टोल्टोल्मा झाज पीटाइ लैजानुभंन््यया सोहि महल््कका ११ लम््वरका ऐनवमोजीम्नीज हरि गोडीयाले वदल सीीं थापा- लाई धनमाल्का लालचाले राती सुती नीदायाका वषत पा[रि] [वे]- हकमा षुकु रिले२ चोट् घोक्रामा हानी काटि थलैमा मार््ययामा नीजलाई पाहारपोषर भंन््यया सवैले देषन््यये चौरमा लगी ताहिका छोइ छीटो हालनुपर््न्यया जातका हातवाट ज््ययानको वदला ज््ययान का- टी मारिदीन््यया ठहराञ््ययूूं भनी नञा मुलुक्जील््ललै कै लाली अमी- नीका लेफ्टेन् वालनरसीीं स््ववार छेत्री वीचारि कासिनाथ [...] - रिले३६ साल्श्रावण वदि ३० रोज ६ मा अदालत्इटाचप[ली]- मार््फत्चह्रायाको रपोट्मा हुकु म्मर्जीलेस््ममेत्सदर भैआया- वमोजीम्माल््कका हाकीम्कपटान्<sup>16</sup> म््ववान सिं स््ववार छेत्रीका ना- उमा लालमोहोर लेषाइ सो लालमोहर रमाना गरि पठाइ-


```
37 दीन््यया ठहराञ््ययूूं जो हुकु म्मर््जजि भनि अदालत्इटाचपलीवाट सु-
38 व््ववा पंडीत्चंद्रकांत अर््ज्ययाल्ले---१---का र श्रीमद्राजकु मार कु मारा-
39 त््मज श्री कम््ययाांडर इन चिफ्जनरल धिर संम््ससेर जङ् राणा वहादरु-
40 का हजुरमा वीींती पार््ददार नीजहरूवाट पनी हाम्रा हजुरमा वीींती 
41 पारि जाहरे गरायाकामा नीज हरि गोडीयालेधनमाल्का ला-
42 लचाले वदल सीीं थापालाइ राती सुती नीदायाको वषत पारि वे-
43 हकमा षुकु रिले२ चोट् घोक्रामा हानी थलैमा मार््ययावावत् सो-
44 ही ज््ययानमाराका ९ ज््ययान लीदाको र मुड्दा दामल गर््ददाका (...)
45 ११ लम््वरका ऐनवमोजीम्नीज हरि गोडीयाको ज््ययान मार््न 
46 पथाउदा
           17 यसले यो कसुर गर््ददायसको ज््ययानसजाय हुन््यया भयो
47 भनी झाज पीटाउन लगाइ नञा मुलुक्कै लाली जील््ललाभर 
48 घुमाइ नीज हरि गोडीयालाइ चाहारपोषरा 18 भंन््यया जगाका
49 चौरमा लगी ताहीका छोइ छीटो हालनुपर््न्यया जातका हातवा-
50 ट ज््ययानको वदला ज््ययान काटि मारिदीनाको हुकु म् वक््स्ययौ । इ-
51 ती सम््वत्१९३७ साल्मीती वैसाष वदि १ रोज १ शुभम्।
```
[*1v*]


Translation:

*Śrī* 

[Royal seal]


The thrice venerable great king, who is mighty and has an arm like a staff etc., KCSI, Thong Ling Pinma-Ko Kang-Wang-Syang21 Prime Minister and Commander-in-Chief Raṇoddīpa Siṃha Rāṇā Bahādura ---1

Hail! [This is] a *rukkā* of the supreme king of great kings.

To Captain (Kaptāna) Mvāna Siṃ Svā̃ra Chetrī.

*Āge*: 22 Regarding the trial of Hari Goḍīyā, residing in the *maujye* (i.e., *maujā*) of Bajhahī, Pallāpura, Baharāīca, Mogalāna: On Thursday, the 7th of the dark fortnight of Phālguna in the [Vikrama] era year [19]35 (1879), [the accused] confessed his guilt in writing at the Aminī Adālata Kacaharī [court]   23, stating: "It is true that on Sunday, the 1st of the bright fortnight of Śrāvaṇa in the [Vikrama] era year [19]34 (1877) I, a member of the Goḍīyā caste, killed Vadala Siṃ Thāpā, residing in Simala Ṭola, Pāhāḍapokharā, during the night while he was sleeping by stabbing [him in] the throat twice with a *khukurī* and then fled with 1 *tolā* 24 of gold and [East India] Company Rs. 40 which he had at his waist." On Saturday, the 30th of the dark fortnight of Śrāvaṇa in the [Vikrama] era year [19]36 (1879), Lieutenant (*lephṭen/lephaṭena*) Bālanarasiṃ Svā̃ra Chetrī and Bicārī Kāśīnātha [...]ri of the Kailali Aminī, [in] the new territory, submitted the following report through the Iṭācapalī Court [to the king]: "Since Hari Goḍīyā, out of greed for property, killed Vadala Siṃ Thāpā at his place of residence by stabbing [him in] the throat twice during the night while he was sleeping, we have determined to sentence him to death: to take him to the grounds called Pāhāḍapokharā where the public can witness his beheading—of taking life for life—at the hand of a local Untouchable caste member in accordance with the following law: '[1] Section 9 of [the Article] on Homicide: If a person kills another person out of greed for property or

<sup>21</sup> According to R. Shaha, this title was first awarded to Prime Minister Jaṅga Bahādura Rāṇā in 1871 by the Chinese Emperor. As explained by Shaha the title has the following meaning: "… the Highly Honoured Commander and Instructor (disciplinarian) of the Army, the Aggrandizer of the Country and the Satisfier of the Low and High by Increasing the Reputation and Revenue of the Country" (Shaha 1990, vol. 2: 257–258).

<sup>22</sup> Lit. 'henceforward,' especially used in administrative and legal documents to mark the beginning of a text or paragraph.

<sup>23</sup> For further information on the function of this court in Terai, please refer to R-Ain.

<sup>24</sup> This term used to refer to a unit of weight and standard measure for gold and silver. It is composed of 100 or 96 *rati*, 10 or 12 *māsās*, and is equivalent to ⅟₈₀th of a *sera*. It is important to note that the actual weight of a *tolā* varied based on the specific place and time. For instance, the weight of a *tolā* could range between 11.599 to 11.642, corresponding to the weight of the Bombay or Sicca Rupee.

for any other reason by striking or stabbing him with a weapon or the like, the offender—if it is a man from a caste whose members cannot be put to death—shall in accordance with the *Ain* have all his property confiscated and he shall be punished by *dāmala*; whilst if the offender is a woman, she shall undergo the *dāmala* punishment but without having her property confiscated; whilst if the offender is a man from a caste whose members can be put to death, he shall be executed.' [2] Section 7 on executing, shaving and *dāmala*: 'When the law calls for putting an offender guilty of homicide to death, from now on a *lālamohara* shall be issued stating that such and such a person who has committed the crime shall be executed by beheading or hanging in such and such place, [the place] where he took [the other's] life. The offender shall be taken to the place mentioned in the *lālamohara* and executed by beheading or hanging at the hand of a local Untouchable caste member.'"

[Then] Subbā Paṇḍita Candrakānta Arjyāla (text: Caṃdrakāṃta) on behalf of the Iṭācapalī Court submitted a request to ---1--- (i.e., Prime Minister and Commander-in-Chief Raṇoddīpa Siṃha) and Venerable Prince born of a prince and Commander-in-Chief Dhīra Samsera Jaṅ Rāṇā Bahādura, stating: "[The above-mentioned] report has been approved by order [of the king], so that we have decided that a *lālamohara* shall be issued to the chief of the Māla [Aḍḍā], Captain (text: *kaptāna*) Mvāna Siṃ Svā̃ra Chetrī, and to send it off. Whatever you wish, [please] order." [Deciding upon the request submitted,] they too have ordered as follows: "Regarding the trial which came to our attention [through the request sent by the [Iṭācapalī Court], we have given the order to sentence Hari Goḍīyā to death as punishment for his having committed the crime: to take [him] with sounding cymbals throughout the new territory of Kailali district and to the grounds called Pāhāḍapokharā and [there] to behead him at the hand of a local Untouchable caste member in accordance with Sections 9 on homicide and 9 (sic) and 11 on executing, shaving and *dāmala* − Hari Goḍīyā, who out of greed for property killed [Vadala Siṃ Thāpā] unlawfully during the night while he was sleeping by stabbing him twice in the throat with a *khukurī*."

On Sunday, the 1st of the dark fortnight of Vaiśākha in the [Vikrama] era year 1937 (1880). [May it be] auspicious.

[*1v*]

Through (*mārphat*) Rājaguru Dvijarāja Paṇḍita Through Subbā Candrakānta Arjyāla

Through Guruprohita(purohita) Khajāñcī Vāmadeva Paṇḍita Through Commander Colonel (Kamyāṃnḍara Karṇaila) Sanaka Siṃ Taṃḍãlāhuri Chetrī

# Commentary:

The present document has been issued to authorize the implementation of death penalty for a murderer who committed the act during a theft. It provides a detailed explanation of the necessary procedures involved in imposing the death penalty. Initially, the local court conducts an investigation into the crime and prepares a report recommending an appropriate punishment, taking into careful consideration the relevant provisions of the MA. This report is then forwarded to the king through a higher court known as the Iṭācapalī, which adds its own considered observations. Upon approval by the king, the report is transmitted to the prime minister. Once approved by the prime minister, a *lālamohara* is issued by the king to the designated individual in the local court responsible for carrying out the death penalty. The inclusion of these court procedures and direct references to the pertinent Articles of the MA serves as a significant indication of the MA's implementation.

#### Facsimile:

[*1r-part1*]

330 — C. Edition and Translation of Documents

[*1r-part2*]

[*1v* ]

332 — C. Edition and Translation of Documents

# **Document 3 (DNA 12/1)**

A *lālamohara* from King Surendra acknowledging Rūpalāladāsa as *mahanta* of Basahiyā Maṭha (VS 1927)

Edited and translated by Rajan Khatiwoda; dated VS 1927 (1871); National Archives, Kathmandu; Ms. no. 233; microfilmed as NGMPP DNA 12/1 on 12/06/2000; for the digital edition, see https://nepalica. hadw-bw.de/nepal/editions/show/1399.

**Abstract:** This *lālamohara* of King Surendra calls upon Rūpalāladāsa of Basahiyā Maṭha, Mahottari to enjoy the post of *mahanta*<sup>25</sup> and directs him to identify Rāmadāsa to be his successor.

Edition:

[*1r*]

श्रीदर््गगा ुज््ययू ४७ <sup>26</sup> श्रीमदतिप्रचण््ड-भुजदण््डडेत््ययादि- श्रीश्रीश्रीमहाराज जङ््गवहादूरराणा जी.सी.वी.प्राइम्- मिनिष्टरयाण््डक-म््ययान््डरइनचिफ् [---] १<sup>27</sup>

[Royal seal]

	- 25 The term *mahanta* (also spelled as *mahaṃta*) refers to the temporal and spiritual leader of a centre (such as *āśrama*, *maṭha*, *sthāna*, *akhāḍā*) or a wandering group (*khālsā*) within an ascetic order.
	- 26 This has been added by a second hand.
	- 27 This has been written in the middle left-hand margin of the document.

 सो महन््त्ययाञी मैले २० सालमा चलायाको थिञा । २१ सालमा अघि भयाको वहेोरा दवाइ महन््त्ययाञी मलाई दि जानु भयाको हो भनि कासिदासले झुठो विन््तति पा- रि रुक्का दस््षत्गराई ल््ययाई मेरो महन््त्ययाञी जान््यया होईन भनी वालादासले वा- दि इजहार दिया र मेरा गुरु मोहनदासलेमलाई महन््त्ययाञी दिदा मैलेरुपै- या स््ममेत् राष््ययाको थिञा र निज गुरु श्वर्गेहुुंदा पनि नीज वालादास स््ममेत्जना ४ लेमहन््त्ययाञीको कागज मलाइ लेषीदिंदा मैलेनीज गुरुको काजक्रीया स- मेत्गरि महंन््त्ययाञी चलाइआयाकोमा वालादासलेजवरदस््तति <sup>28</sup> गरि महन््त्यया- ञी चलाउदा मैले ---१---का हजुरमा विन््तती पारि भयाभरका वेहोराको रुक्का दस््षत्गराई लग््ययाको हो झुठो विन््तती पारि लग््ययाको होईन भनि जिल््ललै महुत्तरि वसहीयाका महन््त कासिदासलेप्रतिवादी इजहार दियाका मुद्दामा इजहार प्रमाण अडाले विचार गर््ययाको ऐन सवालका रुहले येस््ममुद्दामा गुरु मोहनदास छंदैजलेश्वर (भा)रि कचहरिमा अफीसर पगरिहरु राषी कासि- दासलाइ महन््त्ययाञी तलाई भयो भन््ददा रुपैया स््ममेत् राषी महन््त्ययाञी पाया- का हुुं । ताहापछि निज मोहन्दास षस््ददा निज वालादास्सुषरामदास् रामजिवन्दा- स् प्राणदास्स््ममेत् वसि गोपाल झा १ राम(वक््सको इर) १ भुवनमंडर १ येति जना साछी राषी अघी गुरुलेपनी इनैकासिदासलाइ दियाको हो आज पनी हामी ४ भाइलेइनैकासिदासलाइ महन््त्ययाञी थामीदिनुभन्न्या मुद्दाको २० साल माघ शुदी १४ रोजका दीन कागज लेषीदीयाको कागज नीज वालादासले कि- र््त्यया भन््ददा सोही कागजमा लेषीयाका साछी स््ममेत् रुक्का दस््षत्गरि झिकाइ जे- ठा सुषरामदास र इनैमाथी लेषीयाका साछी जना ३ ले यो कागज कीर््त्ययाहोई- न सद्दे हो येस््ममा श्रेस््ततालेभाकन पर््यया भाक्छौौं भंन््यया मुद्दाको वक्पत्र लेषी- दियापछि अदालत वन््ददोवस््तका ५६ लंवरका ऐनमोतावीक रोज रोज हाजीर भ- येनौ र १५ दिनसम््म गैर पर्यौ भन््यया परिवन््धलेमेरो जीत हुन््यया भया पनी मेरो हार गरि मेरो झगडीयाको जीत गरिदीनुभंन््यया मुचुल््कका २३ साल मार््ग शुदी १४।१५ रोजका दीन लेषी ९ दीनसम््म कचहरिमा सामेल भै१० दीनदेषी भा- गी गयाको आजसम््म कचहरिमा सामेल हुन नआयापछी महन््त्ययाञी का- सिदासको चेला रामदास्लाइ दीनुआफु लेनपाउन््यया महन््त्ययाञी म पाउन््यया हुुं भनी समाया वावत् वालादास भाग््ययाको हुनालेनीज अदालत वन््ददोवस््तका ५६ लंवरका ऐनलेजायेदात्गर््नलाइ घरद्वार केही नहुुंदा नीज वाला- दास्फे ला पर््ययाका दीन ज््ममानवन््ददी लेषाई गुठीका ३४ लंवरका ऐनलेसो ही मठ््कका जगाको तलसीीं वोटी कं पनी रुपैया ३००० डंड <sup>29</sup> गरि तिर््यया रुपैया ली नतिर््यया कैद गरि कैद पुग््ययापछी छोडीदिनु। महन््त्ययाञी मठ् जित््यया वावत् रा- मदास्वाट फु ट््कर गुठीको जगाका ऐनलेडंडको <sup>30</sup> चौथाइ ७५० जिताउरि ली नीज रामदास्लाइ जगाको वहाली चलाइदी जितापत्रको रुक्का दस््षत् हुुंदा येस मुद्दाको जितापत्र गर््ददातोक्मा इजहारका रुहले तोक्लेषीयो तापनी रामदास्लेआफ्ना घरायेस््ममा मिल््यया माफीक्कागजपत्र गरि राजीनामा ले- षी दीींदा घरायस््ममा मील््ययावमोजीमको वेहोरा स््ममेत् हाली नीज रुपलाल-

For *javarajasti*.

For *daṃḍa*.

For *daṃḍako*.

 दासका नाउमा रुक्का दस््षत्को जितापत्र गरि झगडा छिनीदीन््यया ठहराइ जंगी अदालत्१ लंवरका डिट्ठा छन््दलाल वुर््ललाकोटी विचारि कपील मुनी पाध््यया- ले२३ साल मीती माघ वदी २ रोज २ मा साधक्कौसल्मा जाहरे गराउदा कौसलवाट जांची वुझी अडालेठहराइ ल््ययायावमोजीम्मुनासिव ठहरा- इ साधक् हाल््ददा जाहरे भयो । तसर््थ सो साधक्मा हुकु म्मर्जीको सदर ग- रिवक््स्ययावमोजीम्आफु लेनपाउन््यया जील््ललै महुत्तरि वसहीयाको महन््त्यया- ञी मठ म पाउन््यया हुुं भनी वालादास्लेइजहार चह्राइ महन््त कासिदास्- संग पुर््पक्षे हुुंदैमा निज महन््त मर््ददा नीज महन््तका चेला रामदासले र नी- ज वालादासलेअदालत वन््ददोवस््तका ५६ लंवरका ऐन मोतावीक् रोज रो- ज हाजीर भयेनौौं र १५ दीनसम््म गैर पर्ययौं भन््यया जीत हुन््यया भया पनी हार ग- रि झगडीयाको जीत गरिदीनुभंन््यया मुचुल््कका लेषी ९ दीनसम््म हाजीर भै दसौौं दीनदेषी भागी जांदा नीज वालादास्लाइ गुठीका ३४ लंवरका ऐ- नले वालादास्फे ला पर््ययाका दीन ज््ममानवन््ददी लेषाइ तल्सीीं वोटी ३ हजा- र डंड<sup>31</sup> गरि तिर््यया रुपैया ली नतीर््यया कैद गरि कैद पुग््ययापछी छाडीदीन््यया- छन्महन््त्ययाञी मठ्जीत््यया वावत्फु ट््कर गुठी जगाका ऐनले रामदाससंग जिताउरि कम््पनी रुपैया ७५० ली नीज रामदासका नाउमा जितापत्र हुनुप- र््न्ययाहो तापनी आफ््नना ज््ययूताभर महन््त्ययाञी चलाउनुअरु चेला नतुल््ययाउ- नुकारोवारि मैलेहुनु तिम्रा सेषपछी यो महन््त्ययाञी मैलेचलाउनुभंन््यया वेहोराको तिम्रा गुरुभाइ रामदास्ले घरायेस््ममा राजीनामा लेषी तिमीलाई छा- डीदीयाका हुनालेसोवमोजीम् तिम्रा जिउताभर नीज मठ््कको महन््त्ययाञी चलाइ रामदासलाइ कारोवारि तुल््ययाइ महन््त मोहन्दास्लेचर््चचि आयाव- मोजीम्आफ्ना षातीरजामासंग महन््त्ययाञी जानी नीज वसहीया मठ्- को चलन्गर््ननु अरु चेला नतुल््ययाउनु तिम्रा सेषपछी नीज रामदासलेमहन््त्यया- ञी हुनुभनी जितापत्रको रुक्का दस््षत्गरिवक््स््यौौं भंन््यया वेहोराको २३ सा- ल फागुन वदी १३ रोज १ मा मेरा नाऊमा रुक्का दस््षत् भैमहन््त्ययाञी चलन् गर््ययाको हो लालमोहर भयाको छैन भनी तीमीले ---१---का हजुरमा विन््तती गर््ययाको वीस््ततार नीज ---१--- र श्रीमद्राजकु मार कु मारात््मज श्रीकम््ययान््ड- र इन चिफ्जनरल रण उद्दीप सीींह कुवर राणावाट हाम्रा हजुरमा विन््तती पा- र््ददा जाहरे भयो । तसर््थ सो जीतापत्रवमोजीम् तिम्रा ज््ययूताभर निज मठ््कको महन््त्यया ञी चलाइ रामदासलाइ करोवारि तुल््ययाइ महन््त मोहन्दास्लेचर्चीआया- वमोजीम्नीज वसहीया मठ्अस््थथानका तालुक्को जगा भोगचलन्गर््ननु अरु चेला नतुल््ययाउनु तिम्रा सेषपछी नीज रामदासलेमहन््त्ययाञी हुनुभनी हामीवाट पनी तीमीलाई नीज वसहीया मठ्अस््थथानका महन््त्ययाञीको ला- लमोहर गरिवक््स््यौौं अस््थथानमा अघीदेषी दरि चलीआयावमोजीमका नित्तत्य नैमीत्तत्यक पर््व पर््वका पुजा र धर््म सदावर््त चलाइ हाम्रो जय मना- ई आफ्ना षातिरजामासंग महन््त्ययाञी जानी भोग््य गर । इति सम््वत्१९-

२७ साल मीती चैत्र वदी (…) रोज (…) शुभम्---

For *daṃḍa*.

[*1v*]

<sup>1</sup> मार््फत्श्री ३ माहाराज जंग वाहादरु राणा जिः सिः वि प्राइम मिनिष्टर यान््ड कम््यया डर इन चीफ्

```
2 रुजू श्री कम््ययाांडर इन चीफ्जनरल रण उद्दीप्सिंह राणाः
```
Translation:

Venerable Durgā!

Thrice venerable Mahārāja Jaṅga Bahādura Rāṇā G.C.B. Prime Minister and Commander-in-Chief, [he who holds] a formidable club in the form of his arms---1

Hail! [A decree] of him who is shining with manifold rows of eulogy [such as] 'The venerable crest-jewel of the multitude of mountain kings' and *Naranārāyaṇa* (an epithet of *Kṛṣṇa*) etc., high in honour, the venerable supreme king of great kings, the thrice venerable great king, Surendra Vikrama Śāha, the brave swordsman, the divine king always triumphant in war.

To Mahanta Rūpalāladāsa, head of Basahiyā monastery in Mahuttari District.

Bālādāsa filed a lawsuit, stating: "My teacher Mohanadāsa conferred upon me the office of *mahanta*, placing as he did a *mahant*a's *tilaka*  (blessing mark on the forehead) and *kaṇṭhī* [on me] and noble men (i.e., the monks) [under me]." I ran [the monastery] as its head till the year [VS 19]20 [1863]. Kāsīdāsa made false petition, suppressing previous details from the year [VS 19]21 [1864] and had a *rukkā* issued that stated: '[Mohanadāsa] granted [the office] of *mahanta* to me.' [Thus] my [claim to] the office of *mahanta* is not to be dismissed. Kāsīdāsa, head of Basahiyā monastery in Mahuttari District, filed a lawsuit as a respondent, as follows: "When my teacher Mohanadāsa granted me the office of head of the monastery, I even gave the money [that is the customary gift]. After my teacher died, four of my teacher's disciples including Bālādāsa signed a document giving his consent to grant me the office of head of the monastery, but when I [started] occupying the office of head of the monastery, including performing the funerary rites of my teacher, Bālādāsa forcibly seized my office. Therefore, I made petition to ---1--- (i.e., thrice venerable Mahārāja Jaṅga Bahādura Rāṇā) with all the details and had a *rukkā* issued, and I did not make petition under false pretences. Regarding the lawsuit [filed by me] as a respondent, it was determined by the Jaleśvara court, after calling officers and [other] authorities (*pagari*) as witnesses, that when the teacher Mohanadāsa was still alive the office of head of the monastery had been granted to me. I obtained the office of head of the monastery, giving the money [that is the customary gift]. Thereafter, when [my] teacher Mohanadāsa died, Bālādāsa, Sukharāmadāsa, Rāmajīvanadāsa and Prāṇadāsa signed a document [drawn up by the court] regarding my lawsuit on the 14th of the bright fortnight of Māgha in the year [VS 19]20 [1864] [and] witnessed by Gopāla Jhā, Rāmavakta (Rāmabhakta) Koi and Bhuvana Maṃḍara," stating: "The office of head of the monastery was earlier granted to Kāsīdāsa by our teacher; thus today, too, we four agree to grant it to Kāsīdāsa." [However], Bālādāsa claimed that the mentioned document [presented by Kāsīdāsa] was forged. When the witnesses to the above document were brought [to court] after a *rukkā* was issued [summoning them], Sukharāmadāsa (the eldest disciple [of Mohanadāsa]) and the three [other] mentioned witnesses gave a written statement to the effect that the document was not forged but is genuine, and that, if necessary, they were ready to swear solemnly [to that effect]. Thus, the court made the following decision in that lawsuit: "Bālādāsa agreed to follow [the provision of the *Ain*, writing a statement on the 14th and 15th of the bright fortnight of Mārga in the year [VS 19]23 [1866], as follows: If we are unable to present ourselves in court on a daily basis and are [once] absent up to the 15th day, then in accordance with section 56 'On Court Procedures,' the court shall deem the party opposing me the winner of the lawsuit and me the loser, even if there is the possibility that I would have won the case." He presented himself in court for the first 9 days. From the 10th day, he remained absent and has never come back to court. Therefore, the office of head of the monastery shall be granted to Rāmadāsa, a disciple of [the late] Kāsīdāsa. Since Bālādāsa has no house or property to confiscate in accordance with section 56 'On Court Procedures' for having made a false claim to the office of head of the monastery, he shall be made to write a *jabānabandī* (written statement of the acceptance of a court decision) and fined 3,000 company rupees in accordance with section 34 'On Guṭhī Endowments' when he is found. If the fine is not paid, he shall be imprisoned. After his prison term is over, he shall be set free. [One] shall take 750 company rupees, one fourth of the fine, as the victor's fee, from Rāmadāsa in accordance with miscellaneous Articles on the law relating to 'Guṭhī Land.'

When Bālādāsa was granted the land and a *rukkā* certifying his victory was issued to him, Rāmadāsa signed on household paper his resignation from the office of head of the monastery and made an agreement with Rūpalāladāsa, giving this office to the latter. Therefore, Ḍiṭṭhā Chandalāla Burlākoṭī and Bicārī Kapila Muni Pādhyā of Jaṅgī Adālata No. 1 came to the decision that it would be appropriate to dissolve the lawsuit by issuing a *rukkā* under the name of Rūpalāladāsa to certify his victory. They forwarded the decision to the Council on Monday, the 2nd of the dark fortnight of Māgha in the year [VS 19]23 [1867].

The Council investigated, deemed the decision of the lower court appropriate and forwarded it [higher up] for review. The Council's decision was endorsed. When the court proceedings were going on regarding the lawsuit filed by Bālādāsa against Kāsīdāsa in order to obtain the office of head of Basahiyā monastery in Mahuttari District, which Bāladāsa would [in the end] not obtain, the head of the monastery, Kāsīdāsa, died. Rāmadāsa (a disciple of Kāśīdāsa) and Bālādāsa signed a document in accordance with section 56 on 'Court Procedures' stating that in the case where [either of the two] did not present himself in the court on a daily basis and remained absent for 15 days, the one who was absent would concede defeat and acknowledge the other as victor in the case, even if he [himself] had been likely to win the case. After that agreement, Bālādāsa presented himself in the court for the first 9 days. On the 10th day, he fled. Therefore, Bālādāsa shall be fined 3,000 company rupees in accordance with section 34 on 'Guṭhī Endowments' when found. If he does not pay that fine, he shall be imprisoned; when the prison term is over, he shall be set free. Rāmadāsa shall be made to pay 750 company rupees as a victor's fee in accordance with the miscellaneous *Ain* on 'Guṭhī-land'. Thereupon, a favourable written judgement is to be issued under Rāmadāsa's name. Your (Rūpalāladāsa's) classmate (*gurubhāī*) Rāmadāsa signed a waiver stating: "You (Rūpalāladāsa) shall occupy the office of head of the monastery as long as you live, but you shall not have any disciple, while I shall manage [the monastery's] secular affairs. I (Rāmadāsa) will assume the office of head of the monastery after your death."

It came to be known to us through ---1--- (i.e., Prime Minister Jaṅga Bahādura Rāṇā) and the venerable Commander-in-Chief General Raṇa Uddīpa Siṃha, a prince born of a prince, that you made a petition stating: "A *rukkā* but not a *lālamohara* was issued under my name on Sunday, the 13th dark fortnight of Phāguna in the year [VS 19]23 stating: 'You (i.e., Rūpalāladāsa) shall make Rāmadāsa the [executive] manager of the monastery and enjoy the office of head of it as Mohanadāsa did. You shall not have any disciple. Rāmadāsa shall be the head of the monastery after your death'."

Therefore, we, too, hereby issue a *lālamohara* to you regarding the office of head of Basahiyā monastery, [with the following details]: "In accordance with the details written down in the favourable judgement, you (i.e., Rūpalāladāsa) shall make Rāmadāsa the [executive] manager of the monastery and enjoy the office of head of it as long as you live, as Mohanadāsa did. You shall also enjoy the detached land possessed by Basahiyā monastery, but you shall not have any disciple. Rāmadāsa shall be head of the monastery after your death. You shall continue with the daily and casual worship, rituals, festivals and *dharmasadāvartta* as they have been fixed and passed down by tradition. Celebrate our victories and enjoy the office of head of the monastery."

On (...), the (...) dark fortnight of Caitra in the [Vikrama] era year [19]27. Auspiciousness.

Through (*mārphat*) the thrice-venerable great king Prime Minister and Commander-in-Chief G.C.B. Jaṅga Bahādura Rāṇā

Verified by (*ruju*) venerable Commander-in-Chief General Raṇa Uddīpa Siṃha Rāṇā

#### Facsimile:

#### [*1r-part1*]

340 — C. Edition and Translation of Documents

[*1r-part2*]

[*1v* ]

342 — C. Edition and Translation of Documents

# **Document 4 (K 175/18)**

A complaint (*ujura*) made by Samsera Bahādura Pā̃ḍe re the Rājakumārī Pãḍenī case (VS 1934)

Edited and translated by Rajan Khatiwoda; dated VS 1934 (1877); National Archives, Kathmandu, Guṭhī Saṃsthāna, Bhadrakālī; 2; Guthi Jamina Vivāda; Ka. Po. 15 Gu. Bam.; microfilmed as NGMPP K 175/18 on 04/06/1991; for the digital edition, see https://doi.org/10.11588/ diglit.39466.

**Abstract:** This document is a complaint made by Samsera Bāhādura Pā̃ḍe, an inhabitant of Naradevī Ṭola in Kathmandu, against his *kākī* (wife of his father's brother) Rājakumārī Pãḍenī. She is accused of meeting her by then incestuous husband, Pṛthi/Pṛthvī Bahādura Pā̃ḍe, accepting cooked rice from him and having sexual intercourse with him.

Edition:

[*1r*]

६६<sup>32</sup>

	- 32 This has been added by a second hand.
	- 33 For *khvāinan*.
	- 34 For *khvāina*.
	- 35 For *khvāyāki*. 36 For *khvāyā*.

```
13 हुकुं ले पतिया भयाको हो भन््यया प्रमान््गगीको 37 कागज ल््ययाउन् ---६
```

Translation:

#### 66

A complaint made by Samsera Bahādura Pā̃ḍe.

There is no provision in the *Ain*<sup>39</sup> that allows for the expiation (*patiyā*) through the offering of cooked rice to an individual who accompanies and willingly partakes in a meal with someone who has fled after committing adultery with a non-widowed (*sadhavā*) wife of a fourth-generation cousin and a fourth-generation female cousin. Such a form of expiation has never been granted to anyone to date. --- 1<sup>40</sup>

If the expiation with respect to cooked rice was granted to her in [VS 19]18 [1861], why has she not fed cooked rice to someone of the same caste (*bhatāhā*) [since then]?<sup>41</sup> She has not fed [any such person], but still she should have borne witness to the expiation by inviting a Brahmin priest (*guru-purohita*) [to accept cooked rice from her]. Why has she not borne witness to [it]? ---2

If she has borne witness to the expiation [or] fed cooked rice to someone of the same caste, let her bring forward [as corroborators] the

<sup>37</sup> For *pramāṅgī*.

<sup>38</sup> For *phārakako*.

<sup>39</sup> The term *ain* here refers to the MA.

<sup>40</sup> The complaint made by Samsera Bahādura in this document is confusing without knowledge of the other documents mentioned above, since he only sets forth the substance of his complaint without mentioning the accused's name.

<sup>41</sup> *Bhatāhā* is a person with whom one can eat cooked rice without being contaminated (i.e., a fellow caste member; see T, s.v. *bhatāhā*).

witnessing Brahmin priest and fellow caste members who ate cooked rice offered by her. ---3

If there is no one whom she fed or bore witness to earlier, let her bring the expiation [certificate] (*patiyāpūrjī*) issued to her. ---4   42

If the official document (*kāgaja*, i.e., the certificate) of expiation has been lost, there should be a *pūrjī* (an official short note) issued by the court ordering that she be granted expiation. Let her bring a true copy of it. ---5

If the expiation was undertaken by official order (*hukumale*), let her bring the official document of the *pramāṅgī*. ---6

No fellow-caste member who has eaten cooked rice [with her] has showed up until today, 16 years after the expiation took place. [Is it enough] to show a copy of the *phāraka*<sup>43</sup> without showing the official document relating to the expiation? The matter is not recorded in the *syāhā* 44 the way it is in the *pūrjī*, nor is it recorded in the *āvarje*<sup>45</sup> the way it is in the *syāhā*. [Furthermore,] it is not recorded in the [account book containing] total expenditures (*jammā kharca*) the way it is in *āvarje*, nor is it recorded in the *phāraka* the way it is in the [account book containing] total expenditures. Now, I cannot be satisfied only with a copy of what is written in the *phāraka*. ---7

If, irrespective of whether a fellow caste member has eaten cooked rice with her or not, you [still] give [me] an order to eat [cooked rice with her] without having made an inquiry into the [above-mentioned] evidence, I will, assuming all fellow caste members are present there and are ready to cooked eat rice with her, also be present. I have no complaint [in that case]. ---8

[VS 1934 (i.e., 1877)].46


#### Commentary:

The term *patiyā* has been translated as 'expiation', as synonymous with the Sanskrit term *prāyaścitta*. A. Höfer's discussion of both terms is worth quoting. He writes:

[…] the MA speaks of *prāyaścitko patiyā*, i.e., the re-admission to the caste (*patiyā*) by way of absolution (*prāyaścitta*). It is remarkable that the MA accomplishes rehabilitation through a particular legal act […].<sup>47</sup>

Thus, according to A. Höfer, *patiyā* specifically designates the reinstatement into one's caste, whereas *prāyaścitta* is a way of absolution for that. A. Michaels, discussing the same terms writes:

So far I have used the term 'rehabilitation' (*patiyā*, *prāyaścitta*) as a blanket term denoting absolution, penance, expiation or purification as well as penalty. It is indeed difficult to draw any clear terminological borderline between *patiyā* and *prāyaścitta*. Quite often they seem to be used as synonymous.48

Thus in the MA, although in Section fourty (MA-ED2/89 §  40) the term *patiyā* was used,<sup>49</sup> whereas in section fourty-one (MA-ED2/89 §  41) *prāyaścitta* was preferred. Moreover, some important distinctions have to be done. In most cases, *patiyā* is the penalty through which one keeps or regains one's caste status. In the MA however, *prāyaścitta* focused on the expiative aspects of rehabilitation, while *patiyā* was mostly used to denote the readmission to one's commensal group after punishment and/or paying a fine.

In the MA itself, no obvious distinction is made in the use of these two terms; they seem to be freely interchangeable. *Patiyā* is possibly a *tadbhava/tajja*-word deriving from the Sanskrit term *prāyaścitta*. 50 I may provide a few instances to demonstrate that both terms occur in the MA without any distinctive difference in meaning: 1. The randomness

Mārga in VS 1918 (see the 2nd and 6th paragraphs of this document, NGMPP K 175/32 and NGMPP K 175/34) and Samsera Bahādura submitted his complaint 16 years after the expiation, that is, in VS 1934 (1877).

<sup>47</sup> Höfer 2004: 162.

<sup>48</sup> See Michaels 2005b: 35.

<sup>49</sup> See MA-ED2/89 §  40.

<sup>50</sup> Note: NBŚ gives Skt. *patita* as the etymology.

of their use as seeming alternatives of each other (i) Sections fourty and fourty-one of the Article 89.51 These sections deal with washing the feet of one's daughter during the marriage ceremony. The Section fourty allows, in particular, all Sacred Thread-wearers except for Brahmins to drink water while washing the feet of an unmarried daughter (*kanyā chorīko*) born to a wife from the same caste, whereas if the daughter is born to a wife of a caste, one may not accept cooked rice from, one is allowed to drink water only while washing the daughter's hand. If water is drunk while washing the feet, a fine of two rupees is levied, and *prāyaścitta* calling for the payment of eight *ānā* is enjoined. Moreover, if water is drunk while washing the feet of a daughter who is born to a common woman whether from the same (Non-enslavable) caste as that of the father (a Sacred Thread-wearer) or from an Enslavable caste from which one may not accept water, the fine is five rupees and *patiyā* the payment of one rupees as a cow offering fee (*godāna*). Similarly, Article 41 allows the father, a brother, and other relatives to drink water while washing the hands of the bride and groom if the bride is born to an Upādhyāya Brahmin father and a remarried widowed mother from a Sacred Thread-wearer's caste. If water is drunk while washing her feet, the fine is two rupees and *prāyaścitta* as well as a two *ānā* cow offering fee. Moreover, if water is drunk while washing the feet of a bride born from a common woman whether belonging to the (Non-enslavable) caste of a Sacred Thread-wearer or to an Enslavable caste etc*.* or a caste from which water cannot be accepted, the fine is five rupees and *prāyaścitta* as well as one rupee as a cow offering fee. As shown in this example, the terms *patiyā* and *prāyaścitta* are not confined to mutually distinct contexts; they are used as alternatives to each other. 2. *patiyā*, as noted by A. Höfer and A. Michaels, does not always necessarily imply readmission into one's former caste (i) For instance, section twenty-four of Article 89 pertains to offenders who are not readmitted into their own caste even after receiving *patiyā*. 52 The offender in this case is someone who has not committed any offence but has been shaved (*muḍiyāko rahecha*) and made to eat something taboo because of the anger caused to some authority. Such offenders are not granted *patiyā* with respect to cooked rice, only with respect to water. One should note here that a person cannot be readmitted into his caste if cooked rice cannot be accepted from him and that cooked rice cannot be accepted from an offender

<sup>51</sup> See MA-ED2/89 §§  40 and 41.

<sup>52</sup> See MA-ED2/89 §  24.

who has not received *patiyā* with respect to cooked rice. One may take water from him if he has received *patiyā* with respect to water, but that will not suffice for him to be readmitted into his caste. Thus, I again conclude, on the basis of above example, that *patiyā* is wholly synonymous with the term *prāyaścitta*. By undertaking *patiyā/prāyaścitta*, one merely removes one's pollution, but purifying oneself may not always be enough to regain one's previous caste status. 3. The fact that some terms are used interchangeably is a common feature of the MA. In sections one and six of the 65th Article of the MA,53 the terms *aṃśa-sarvasva* (lit. confiscation of an offender's entire portion of property) and *sarvasva* (confiscation of an offender's entire property) are used interchangeably.

#### Facsimile:

[*1r*]

# **Document 5 (K 175/32)**

An unverified copy of a *phāraka* for an expiation fee paid by Rājakumārī Pãḍenī Kṣatryānī (VS 1918)

Edited and translated by Rajan Khatiwoda; dated VS 1918 (1861); National Archives, Kathmandu, Bhadrakālī; 16; Guthi Jamina Vivāda; Ka. Po. 15 Gu. Bam.; microfilmed as NGMPP K 175/32 on 04/06/1991; for the digital edition, see https://doi.org/10.11588/diglit.36932.

**Abstract:** This document is an unattested copy (see the verified copy K 175/33 below in Part II:C, Document 7) of a *phāraka* confirming receipt of two rupees as an expiation fee (*bheṭī*) paid by Rājakumārī Pãḍenī Kṣatryānī for having eaten cooked rice and having had sexual intercourse with her incestuous husband Pṛthi Bahādura Pā̃ḍe.54

Edition:

[*1r*]

[श्री\]

५६ <sup>55</sup>

४७ <sup>56</sup>

नकल् <sup>57</sup>

	- 54 See NGMPP K 172/58 in http://abhilekha.adw.uni-heidelberg.de/nepal/index. php/catitems/viewitem/10867/1 last accessed on 05 June 2023 and NGMPP K 175/18 above in Part II: C, Document 4.
	- 55 This has been crossed out.
	- 56 This has been crossed out.
	- 57 This has been written in the middle left-hand margin of the document.

350 — C. Edition and Translation of Documents

```
Translation:
Śrī
56
47
   Copy (nakkala)
```
Tuesday, the 9th of the bright fortnight of Mārga in the [Vikrama] era year 1918 (1861)

[This is a receipt for payment of] a Rs. 2 as an expiation (*prāyaścitta*)58 fee in atonement for bodily pollution [incurred] by Rājakumārī Pãḍenī Kṣatryānī, a resident of Naradevī Ṭola by reason of having met her own ritually married husband, Pṛthi Bahādura Pā̃ḍe who is guilty of committing adultery with his 4th-generation female cousin Kālu, of having received cooked rice and water from his hand and even of having engaged in sexual intercourse with him.

#### Commentary:

The document does not specify whether the expiation fee restored purity in terms of only water or of both water and cooked rice. Thus, it remains unclear whether Rajakumārī was readmitted into her caste or not.

The document mentions that Pṛthi Bahādura committed adultery with a 4th-generation female cousin but is silent about a similar act, referred to in other documents,59 with a non-widowed sister-in-law. This may have been passed over here because it was not considered a crime in the MA, whose section seven,60 dealing with adultery committed by Sacred Thread-wearer Kṣatriyas, states that such persons are not liable to punishment for adultery committed with a non-widowed sister-inlaw if they are pardoned by the woman's husband. One can speculate, then, that Pṛthi Bahādura may have been so pardoned. Given, however, that this second instance of adultery is mentioned in documents 22 years later than the present ones suggests another possibility: that this accusation was first levelled in the intervening period.

<sup>58</sup> See K NGMPP 175/18 for the discussion of this term.

<sup>59</sup> See NGMPP K 175/18 and NGMPP K 172/58.

<sup>60</sup> See MA-ED2/116 §  7.

Document 5 (K 175/32) — 351

# Facsimile:

[*1r*]

352 — C. Edition and Translation of Documents

# **Document 6 (K 175/34)**

A copy of *patiyā-pūrjī* issued to Rājakumārī Pãḍenī Kṣatryānī (VS 1918)

Edited and translated by Rajan Khatiwoda; dated VS 1918 (1861); National Archives, Kathmandu, Bhadrakālī; 18; Guthi Jamina Vivāda; Ka. Po. 15 Gu. Bam.; microfilmed as NGMPP K 175/34 on 04/06/1991; for the digital edition, see https://doi.org/10.11588/diglit.36934.

**Abstract:** This document, most likely issued by a *dhamādhikārin* or *dharmādhikāra*, serves as a certification of the completion of the required expiation by Rājakumārī Pãḍenī. The expiation was performed for her involvement in sexual intercourse with her incestuous husband, Pṛthi Bahādura, as well as for sharing cooked rice and water with him.

Edition:

```
[1r]
  [श्री\]
  ४१ 61
1 १९१८ साल 
2 मार््गवदि ९ रोज ३ मा 
3 आफ््नना हाड्मा ४ पुस््तताकि दिदि पर्ने कालुसंग कर््णणिमा वीग्र्याका आफ््नना
4 वीवाहिता लोगन््यया पृथी वाहादरु पाडे छेत्रीसंग भेट्घाट गरी नीजका हा-
5 तको भात् पानी षाई कर््णणि स््ममेत् संसर््ग भया वापत न् रदवी ेटोल वस्न्या
6 राजकु मारि पडेनी क्षत्र्यानीको जिये १ सुद्ध ---२
  Translation:
```
*Śrī*

41

61 The number was added by a second hand.

On Tuesday, the 9th of the dark fortnight of Mārga in the [Vikrama] era year 1918 (1861).

[This is to certify that] the body (lit. 1 body) of Rājakumārī Pãḍenī Kṣatryānī, a resident of Naradevī Ṭola, [has been] purified. [She had been polluted] by reason of having met her own ritually married husband, Pṛthi Bahādura Pā̃ḍe who is guilty of committing adultery with his 4th-generation female cousin Kālu, of having received rice and water from his hand and even of having engaged in sexual intercourse with him. ---2.62

Commentary:

Although the document itself does not reveal who issued it, one can argue on the basis of the customary practices of the time that it must have been some *dharmādhikārin*. 63

The *pūrjī* does not specify whether Rājakumārī has been granted expiation in terms of cooked rice or water. Thus, her caste status after the expiation remains unclear.

Broadly speaking, the Hindu legal tradition offers two types of punishments; religious and secular. Penance (*prāyaścitta/patiyā*) is a form of religious punishment, whilst penalty or fine (*daṇḍa*) is secular which includes such as, capital punishment, confiscation of property or fine etc.64 Nevertheless, the Classical Hindu law focuses more on moral consequences of criminals rather than their objective motives. For example, it is stated in Manu that one can very quickly eliminate sins by penance.65 Similarly, the MA also offers mentioned two schemes of punishments, secular (for non-religious affairs such as, on homicide or theft) and religious (for religious affairs such as, drinking alcohol or funerary rites). The concept of penance incorporated in the MA has a certain influence of the classical sources of Hindu law. Fasting, visiting a pilgrimage place, repetition of Mantras, cow offering ritual (*godāna*) etc. are the forms of penances incorporated in the MA. To

<sup>62</sup> This number probably denotes the expiation fee paid by Rājakumārī (cf. K 175/32, document 5 above and K 175/33, document 7 below).

<sup>63</sup> See Michaels 2005b: 39 and NGMPP K 175/18 (document 4 above).

<sup>64</sup> See Kane 1953: 8–86 for the concept of *prāyaścitta* (penance) and *daṇḍa*  (penalty).

<sup>65</sup> y*atkiṃcid enaḥ kurvanti manovāṅmūrtibhir janāḥ. tat sarvaṃ nirdahanty āśu tapasaiva tapodhanāḥ* (whatever transgressions individuals commit through their mind, speech, or actions, through the austere practices as their sole treasure, they swiftly expiate all of them by virtue of their ascetic endeavors. MDh 11.242).

remain in a state of impurity was a serious social and moral issue in the pre-modern Nepal. One has to remove impurity as soon as possible either by undertaking penance if impurity emerged accidently or his caste status has to be degraded if impurity emerged from willingly carried out action, so that he will not be able to make another person impure. For example, the MA forbids all Sacred Thread-wearer caste groups to consume alcohol. If anyone belonging to a Sacred Threadwearer caste group knowingly drinks alcohol, his Sacred-Thread should be removed and his caste status should be degraded into that of a Non-enslavable Alcohol-drinker.66 No expiation can help to remove the offender's pollution which emerged out of knowingly drinking alcohol. If such pollution emerges out of accidental actions, the MA offers expiation to get rid of it.67

Facsimile:

[*1r*]


# **Document 7 (K 175/33)**

A verified copy of a *phāraka* for an expiation fee paid by Rājakumārī Pãḍenī Kṣatryānī (VS 1918)

Edited and translated by Rajan Khatiwoda; dated VS 1918 (1861); National Archives, Kathmandu, Bhadrakālī; 17; Guthi Jamina Vivāda; Ka. Po. 15 Gu. Bam.; microfilmed as NGMPP K 175/33 on 04/06/1991; for the digital edition, see https://doi.org/10.11588/diglit.36933.

**Abstract:** This document is a verified copy of a *phāraka* 68 confirming receipt of two rupees as an expiation fee (*bheṭī*) paid by Rājakumārī Pãḍenī Kṣatryānī in atonement for having eaten cooked rice and having had sexual intercourse with her incestuous husband Pṛthi Bahādura Pā̃ḍe.69

Edition:

[*1r*] [श्री\]

५५<sup>70</sup>

४७<sup>71</sup>


<sup>1</sup> १९१८ साल मार््गवदी ९ रोज ३

	- 68 See the unverified copy in NGMPP K 175/32 (Document 5 above).
	- 69 See NGMPP K 175/18 (document 4 above) and NGMPP K 172/58.
	- 70 This has been crossed out.
	- 71 This has been crossed out.
	- 72 This section of the text has been recorded in the left-hand margin of the document.

356 — C. Edition and Translation of Documents

Translation:

*Śrī*

55

47

Signature: This has been signed and stamped by Writer (*rāīṭara*) Siddhilāla [in verification of the fact that] "this copy is true to the original *phāraka* submitted to a government clerk (*kāriṃdā*)<sup>73</sup> in the [Vikrama] era year [19]18 [1861]."

[Date]: On Tuesday, the 9th of the dark fortnight of Mārga in the [Vikrama] era year 1918

[This is a receipt of] the fee of 2 rupees in order to undertake expiation for the purification of the body (lit. 1 body) of Rājakumārī Pãḍenī Kṣatryānī, inhabitant of Naradevī Ṭola [who has been polluted] by having sexual intercourse with her own ritually married husband, Pṛthi Bahādura Pā̃ḍe who is guilty of committing adultery with his 4th-generation female cousin called Kālu, by meeting him and by receiving cooked rice and water from his hand.

Commentary:

See the 'Commentary' of K 175/32 (document 5) above.

<sup>73</sup> The final paragraph indicates that the original copies of such documents were kept by the government for its own records.

#### Facsimile:

[*1r*]

358 — C. Edition and Translation of Documents

# **Document 8 (K 172/63)**

A letter granting water-expiation to nine members of Pṛthi Bahādura Pā̃ḍe's family (VS 1928)

Edited and translated by Rajan Khatiwoda; dated VS 1928 (1871); National Archives, Kathmandu, Bhadrakālī; 7; Jāta Vivāda; Ka. Po. 15 Gu. Bam.; microfilmed as NGMPP K 172/63 on 14/05/1991; for the digital edition, see https://nepalica.hadw-bw.de/nepal/editions/show/10865.

**Abstract:** The first part of the letter, probably issued by a *dharmādhikārin*, explains the ritual procedures for undertaking expiation.74 The ritual procedure has been specifically prescribed for nine members (including servants) of the family headed by Pṛthi Bahādura Pā̃ḍe, who was guilty of committing adultery.75 They nine became polluted through having afterwards met their incestuous husband, father or master, and then having eaten cooked rice together with him. The second part of the letter certifies the water-expiation granted to them, although it explicitly mentions that they are still excluded from eating cooked rice together with fellow caste members. One Kaptāna Khaḍga Siṃha Bhaḍārī Kṣatrī had submitted a petition to the prime minister to allow water-expiation to be granted to the remaining family members of Pṛthi Bahādura in view of the first wife of Pṛthi Bahādura, Rājakumārī, having already been granted such expiation.<sup>76</sup> The prime minister responded to this petition by issuing an executive order to the court Iṭācapalī that water-expiation shall be granted in the same way as it had been to Rājakumārī before.<sup>77</sup>

Edition:

[*1r*]

[श्री\]

<sup>74</sup> See commentary on NGMPP K 175/18 (document 4 above) for a discussion of the term *patiyā*.

<sup>75</sup> See NGMPP K 175/18.

<sup>76</sup> See NGMPP K 175/18, 32 and 34.

<sup>77</sup> See NGMPP K 175/32 and NGMPP K 175/34.

Document 8 (K 172/63) — 359

```
1 श्री ३ महारा-
2 ज ---
3 १
1 प्रथम दिन नर वहादरु र किष््न विर््ययाले मुंण््डन गरि (अ)रुले नङ 
2 छेदन् गरि तिलकल््क माटो भस््म पंचगव्य लेपन गरि स्नान 
3 गर््ननु । तस दिन दिनैमा हविष््य ग्रास १५ षानु । दोश्रा दिन रात्री-
4 मा ग्रास १२ षानु । तेश्रा दिन नमागी कसैले षा भनी दिया 
5 ग्रास २४ षानु । चौथा दिन निराहार गर््ननु । यस््तता रितले फेरा ३ 
6 गर््ददा दिन १२ हुछ । १३ दिन् ुं ्ममा पंचगव्य षाइ व्राह्मणलाइ सिधा 
7 दक्षिणा दिनु । सहर काठमाडौ नरदवी े टोल वस्न्या पृथी वाहादरु
8 पाडे क्षेत्रीले आफ््नना हाडमा ४ /५ पुस््तताका भाउज््ययू र दिदी ना-
9 ता पर््न्ययाको स््ममेत् करनी गर््ययाका मुद्दा १५ साल््ममा निज पाडे मदे-
10 सतर््फ जादा नीजका संगमा गयाका ज््ययेठी मुषेनी र अरु तपसि-
11 लवमोजीम््कका मानीस नीज पृथी वहादरुसंग भतीयापछी
12 जेठी मुषेनीले भन््यया पतिया पाइन यकै सरहका तपसिल््कका
13 मानीसले पनि सोहीसरह पतिया पाउनु पर््न्ययाहो भनी क-
14 प्तान षड््ग सिं भडारी क्षेत्रीले [---१---] का हजुर््ममाविन््तती पार््ददा हु-
15 कु म्वमोजीम् नीज पाडेकी जेठी मुषेनीलाइ पतिया भया-
16 को हुनाले नीज पाडेका अरु जहान तपसिलवमोजीम््कका मा-
17 नीसलाइ पनी अदालत इटाचपलिवाट् पानीको मात्र प-
18 तीया गराइदिनु भंन््यया हुकु म् भयाको साचो हो भनी २८
19 साल वैसाष वदी २ रो[ज] ६ मा मेजर कप्तान् सन््ममान््सीीं सिजाप-
20 ती क्षत्रीले प्रमाङ््गगीमा सहीछाप गर््ययाको छ सोवमो-
21 म् तपसीलका मानीसलाइ (ऐंले) ज(हा) (…)
22 (…) हो भात वाहे(क)को पानीको मात्र पतिया गरिदिनु-
23 भया वढीया होला भंन््यया अदालत इटाचपलिका २८ साल
24 वैसाष वदी २ रोज ६ मा छाप लागी आयाका पुर्जीवमो-
```
 श्रीमद्गोरक्षभुपेन्दद्रप्रेरीत स््ममृतिसंमतम् ॥ दुरितच््छछेदनोपायं प्रायश्चीत्त समाचर ॥१॥ <sup>78</sup>


 The verse has been faithfully transcribed as it appears in the document without correcting it in accordance with the standard Sanskrit grammar. Further, it has been edited and translated in Michaels 2005b: 42, where it occurs at the beginning of a *patiyā-pūrjī*.

For *vāhekai*.

360 — C. Edition and Translation of Documents

```
तपसील्
1 नीज पाडेकी व्याहीता माहीली मुषनी 80 हर कु मारी ---१
2 ऐं का छोरा वर््ष ४ को नर वहादरु ---१ 
3 नीज पाडेकी ल््ययाइता मुषेनी हरिलिला ---१ 
4 ऐं---छोरी वर््ष ५ की त्रिविक्रम दवी े ---१ 
5 भान््स्यया वाहुनी लक्ष्मी दवी े ---१
```
चाकर

```
1 धर््मसीला केटी ---१
```

```
2 किष््न विर््यया केटो ---१
```

```
3 मोहन कु मारी केटी ---१
```

```
4 इन्दद्र कु मारी केटी ---१
```

```
1 इति सम््वत् १९२८ साल मीती वैसाष वदी ३ रो[ज] (७)
```
Translation:

*Śrī*

By order of the venerable king of Gorkhā, perform *prāyaścitta*, in accordance with the *smṛti*s, as a remedy that removes evil.

Śrī 3 Mahārāja (i.e., Prime Minister and Commander-in-Chief Jaṅga Bahādura) ---1

On the first day, Nara Bahādura and Kṛṣṇa Vīra <sup>81</sup> should shave [their] heads and [along with] the other persons [mentioned below] should cut their nails,82 should anoint their bodies with sesamum husks (*tilakalka*), [sacred] ash and *pañcagavya* <sup>83</sup> and take a bath. On the same day, during the day-time, they should eat 15 mouthfuls of sacrificial food. On the second day, during the night-time, they should eat 12 mouthfuls. On the third day, they should eat if somebody offers [food] without their having asked [for any]. On the fourth day, they should fast (*nirāhāra*). [They should pass] twelve days repeating [the same procedure] three

<sup>80</sup> For *muṣenī*.

<sup>81</sup> Nara Bahādura was a son of Pṛthi Bahādura, while Kṛṣṇa Vīra was one of his servants (see under 'Detail' of the document).

<sup>82</sup> Because Nara Bahādura and Kṛṣṇa Vīra are male they have to shave their heads as well as cut their nails, whereas the remaining persons are female and consequently are only required to do the latter.

<sup>83</sup> *Pañcagavya* is prepared from the following five cow products: milk, curd, ghee, urine and dung.

times.84 On the thirteenth day, they should eat the *pañcagavya* and offer *dakṣiṇā* 85 [together with other] uncooked ritual offerings to a Brahmin.

Kaptāna Khaḍga Siṃha Bhaḍārī Kṣatrī submitted [the following] petition to ---1--- (i.e., the prime minister) which states: "Regarding the case of adultery committed by Pṛthi Bahādura Pā̃ḍe, a resident of Naradevī Ṭola of the Kathmandu city, with the [non-widowed] wife of a 4th/5th-generation cousin and with a 4th/5th-generation female cousin in the [Vikrama] year [19]15 [1858], Jeṭhī Mukhenī (i.e., Rājakumārī Pãḍenī) 86 and the persons listed in the details [below] were polluted through eating cooked rice with him after they had fled to the Terai with him. [Given that] Jeṭhī Mukhenī had been granted expiation by the order given, the other similarly [polluted] people who are listed in the details [below] should also be granted similar expiation."

[Concerning this matter], on Friday, the 2nd of the bright fortnight of Vaiśākha in the [Vikrama] year [19]28 [1871], stamped official note (*chāpa lāgīāyāko pūrjī*) has arrived, stating: "The order given to the Iṭācapalī court to grant water-expiation to the other members of Pṛthi Bahādura Pā̃ḍe's family listed in the details below is right given that his Jeṭhī Mukhenī granted expiation." 87 In accordance with this note, the nine people [listed] in the details below [have been granted] water-expiation.

#### Details

Māhīlī Mukhenī Harakumārī <sup>88</sup> of [Pṛthi Bahādura] Pā̃ḍe---1 His 4 years old son Nara Bahādura ---1 Lyāitā (concubine) Mukhenī Harililā of [Pṛthi Bahādura] Pā̃ḍe ---1 His 5 years old daughter Trivikrama Devī ---1 [The female] Brahmin cook Lakṣmī Devī ---1

#### Servants

The slave girl Dharmaśīlā ---1 The slave boy Kṛṣṇa Vīra ---1


362 — C. Edition and Translation of Documents

The slave girl Mohanakumārī ---1 The slave girl Indrakumārī ---1 Saturday, the 3rd day of the dark fortnight of Vaiśākha in the [Vikrama] era year 1928 [1871].

Commentary:

Despite the fact that there is no mention of who drew up the document, it can be argued on the basis of the following points that the document was issued by a *dharmādhikārin* to the petitioners as an official certificate. 1. It is explicitly mentioned in the MA that only *dharmādhikārin*s are entitled to perform the rite of expiation, once they receive an official written note (*pūrjī*) from the courts or an attested written order (*pramāṅgī*) from proper authorities.<sup>89</sup> 2. We see that the first part of the letter spells out the ritual procedures to be undertaken by the family members polluted through association with Pṛthi Bahādura. The MA is silent on such procedures, and a *dharmādhikārin* would have been the most likely authority competent to prescribe them. According to *smṛti* texts, for instance MDh,<sup>90</sup> three Brahmins who are learned in the Vedas are allowed to prescribe penances.

#### Facsimile:

[*1r-part1*]

364 — C. Edition and Translation of Documents

[*1r-part2*]

# **Document 9 (K 172/57)**

A deposition submitted by Samsera Bahādura Pā̃ḍe to the Koṭīliṅga court (VS 1942)

Edited and translated by Rajan Khatiwoda; VS 1942 (1886); National Archives, Kathmandu, Bhadrakālī; Bhadrakālī; 1; Jāta Vivāda; Ka. Po. 15 Gu. Bam.; microfilmed as NGMPP K 172/57 on 14/05/1991; for the digital edition, see https://doi.org/10.11588/diglit.36931.

# **Abstract**

This is the deposition made by Samsera Bahādura Pā̃ḍe before the Koṭīliṅga-court that he is able to prove that Rājakumārī Pãḍenī—who is guilty of having sexual intercourse and eating cooked rice with her incestuous husband—had not yet been granted rice-expiation (*bhātako patiyā*).

# Edition:

[*1r*]

<sup>1</sup> श्रीकोटीलिङ््ग

```
2 १
```
(७६) <sup>91</sup>

सहि  <sup>92</sup>

	- 91 This has been crossed out.
	- 92 This has been written just before the beginning of the first line of the main text, in the left-hand margin.

366 — C. Edition and Translation of Documents


तपसिल लेफ्टेन जगत वहादूर पाडे छेत्री ---१ अरू भयाको काग[ज]पत्र गैरह सवै ऐस क-कप्तान सम््ससेर वहादूर पाडे छेत्री ---१ चहरीमा षडै छ ---१ कप्तान भक्त के शर ---ऐं---१ कप्तान वल वहादूर ---ऐं---१ सीव धोज ---ऐं---१ कर्नैल वीजय जङ््ग ---ऐं---१ सुवेदार वेणी जङ््ग ---ऐं---१ चक्र जङ््ग पाडे छेत्री ---ऐं---१ नाऊ नजानेका सीींह वीर पाडेका नाती ---१ सुवेदार प्रताप वहादूर पाडे ---१ सुवेदार तेज वहादूर पाडे छेत्री ---१ लेफ्टेन भुप भंजन ---ऐं---१ सुवेदार कु ल भंजन ---ऐं---१ कप्तान नर जङ््ग पाडे छेत्री ---१ सुवेदार नर वीक्रम ---ऐं---१ ईनसाईन जुद्ध विक्रम् ऐं ---१

ईति सम््वत् १९४२ साल मीति फागुण सुदि ९ रोज १ शुभम् ---

Translation:

Venerable Koṭīliṅga ---1

76

Signature

Written by Samsera Bahādura Pā̃ḍe living at Naradevī Ṭola [of Asana]. *Āge*: In the year [VS 19]15 [1858], when my fourth uncle (*ṭhāĩlā bābā*) Pṛthi Bahādura Pā̃ḍe Kṣatrī—after having committed adulteries with his fourth-generation cousin sister Kālu Kṣatryānī and fourth generation non-widowed sister-in-law—had ran away, his married wife Rājakumārī Pãḍenī went to the place where her husband had fled, and she consciously had illicit sexual relationship with him and ate cooked rice and [drank] water with him. For that reason, she has been prevented from having cooked rice with the fellow caste members (*bhatāhā*), because she was only granted water-expiation, and she has not been accepted in having cooked rice with them. It is true that she has not been granted the expiation with respect to rice and not been allowed to eat together with the fellow caste members. The witnesses, containing the fellow caste members mentioned in the details below, are present as the evidence for what has been written. I will make Rājakumārī Pãḍenī confess regarding what has been written. If I am unable to make [her] confess, and if it will be proven that I have written a false accusation by lying and hiding the truth, I will pay [the fine] in accordance with the *Ain*. With this statement, I have willingly submitted this litigation-*muculkā* to the Court Koṭīliṅga.

#### The Details

Lieutenant (*lephṭena*) Jagata Bahādura Pā̃ḍe Chetrī ---1 Captain (*kaptāna*) Samsera at this court. ---1 Bahādura Pā̃ḍe Chetrī ---1 Captain (*kaptāna*) Bhaktakeśara Pāḍe Kṣatrī ---1 Captain (*kaptāna*) Bala Bahādura Pāḍe Chetrī ---1 Sīvadhoja ---1 Colonel (*karnaila*) Vījaya Jaṅga ---1 Suvedāra Veṇījaṅga ---1 Cakra Jaṅga Pāḍe Chetrī ---1 The grandchild of Sīṃhavīira Pāḍe whose name is unidentified ---1 Suvedāra Pratāpa Bahādura Pāḍe ---1 Suvedāra Teja Bahādura Pāḍe Chetrī ---1 Lieutenant (*lephṭena*) Bhupa Bhaṃjana ---1

All other available documents and so forth are [already] there 368 — C. Edition and Translation of Documents

Lieutenant (*lephṭena*) Kula Bhaṃjana ---1 Captain (*kaptāna*) Nara Jaṅga Pāḍe Chetrī ---1 Suvedāra Nara Vīkrama ---1 Īnasāīna Juddha Vikram ---1 On Sunday, the 9th day of the bright fortnight of Phālguna in the [Vikrama] era year 1942 [1886]. May there be auspicious.

Commentary:

Samsera Bahādura is not convinced by the evidences presented by Rājakumārī. Because of the fact that the evidences93 presented by Rājakumārī only mention that her body has been purified but do not specify whether she had granted both expiations, of water and rice or of only water. Thus, he submits a testimony of the eyewitness against Rājakumārī to the court that she has not yet been granted expiation of rice thus; she is not readmitted into the caste.

<sup>93</sup> Rājakumārī has presented *patiyāpūrjī* as evidences of rice-expiation (see NGMPP K 175/33, 34 above and NGMPP K 175/35 in http://abhilekha.adw. uni-heidelberg.de/nepal/index.php/catitems/viewitem/9437/1 last accessed on 05 June 2023).

#### Facsimile:

[*1r*]

370 — C. Edition and Translation of Documents

# **Document 10 (K 175/2)**

A *jabānabandī* submitted to the Adālata Bandobasta Aḍḍā by Samsera Bahādura Pā̃ḍe (VS 1934)

Edited and translated by Rajan Khatiwoda; VS 1934 (1878); National Archives, Kathmandu, Bhadrakālī; 1; Nārāyaṇī Guṭhī; Ka. Po. 15 Gu. Bam.; microfilmed as NGMPP K 175/2 on 02/06/1991; for the digital edition, see https://nepalica.hadw-bw.de/nepal/editions/show/24220.

**Abstract:** This document is a *jabānabandī* submitted by Samsera Bahādura Pā̃ḍe to the Adālata Bandobasta Aḍḍā. It mentions that since he was arrested and his property confiscated, the petitioner is unable to cause the defendant, Rājakumārī Pãḍenī Kṣatryānī, to be taken to the court and make her confess as stated by him in the complaint note submitted to the court.94

```
Edition:
```

```
[1r]
  श्री\
  श्री ३ महाराज
  १
  श्री कोटिलि(ङ््ग)
  २
  [Seal]
  सहि  95
1 लिषितम् नरदविे टोल वस्न्या सम््ससेर वहादरु पाडेक्षेत्री । आगेमेरा ठाहि-
2 ला वावा पृथि वहादरु पाडेक्षेत्रीलाई हाडनातामा ४ पुस््तताकि दिदि-
3 का कर््णणिको वात लागी १६ सालदेषी मध््ययैसतर््फ भागी गयापछि 
4 नीजकि ज््ययेठी मुषेनी राजकु मारीलाई आफ््नना विवाहिता लोग््न्यया पृ-
```

 थि वहादरु पाडेक्षेत्रीसग भेट््घघाट्गरी नीजका हातको भात पा- नी षाई कर््णणि स््ममेत संसर््ग भया वावत् जिय १ सुद्ध भंन््यया वेहोराको १८ सालैमा पतिया भयाको हुनालेस््ममेत् २६ सालमा थापाथलि ---१---का हुकु म्वमोजिम् नीज ठाहिली आमा राजकु मारीले र मे- रि आमा रत्नकु मारिलेआधि आधि अंस गरी षाईआयाकि रहिछ- न् । हाम्रा नारायणी भंन््यया स््ममेत् ज््ममा ६ गुठी नीज ठाहिली आमालेमा- त्र चलन् गरिआयाकि हुनालेनीजलेमात्र चलन् गरी षान र हाम्रो वं- डा भयाको ढुकुटि वलमिचि चलन् गर््न नीजलेपाउन््यया होइन भं- न््यया मुद्दा स््ममेत्को ३१ सालमा नीज मेरी आमालेअदालत ---२--- मा वादि इजहार दियापछी इटाचपलिमा सर््ददार सो गुठि तैलेचला- उनुभनी लेखिदियाकि हुनालेभत््ककेविग्र्याको स््ममेत मैले वनाई चलन् गर््ययाकि हुुं अवंडा ढुकुटि दवाई षान रत्नकु मारीलेमात्र पाउन््यया होइ- न भंन््यया मुद्दा स््ममेत्को नीज ठाहिली आमालेप्रतिवादि दि सो धनमा- लमा स््ममेत् हामिलाई प्रकाउ गर््ददाहाड््ननातामा कर््णणि गर््ययामा जात प- तित भैसुद्र सरहमा गयाका आफ््नना लोग््न्ययासग सवै वेहोरा थाहा पा- ई जानी जानी सग लागी भात पानीमा भजि आयाकि पानीको मात्र प- तिया पाञांभनी जात भात् वाहेक भयापछी कौनै वेहोरालेपनी अं- स नपाउन््ययालेफु लेई फकाई ढाटी अंस लिन पाउन््यया होइन । वुझ््ददा जात भात् वाहेककि वाहेकैछन् भंन््यया इत््ययादि मुद्दा स््ममेतको न ् ीज ठा- हिली आमाका नाउमा मैले ---१---का हजुरमा विंतिपत्र चढाउदा र नीजलाई भयाका पतियाका माथि लेषियाको फारकको नकल स््ममेत् वुझि यस्मुद्दामा कसो भयाको हो भयाको वेहोरा नढाटि साचो भन भनी मसग सोद्धा मेरो चित्त वुझ््ययो । नीज ठाहिली आमालेसवैगुठि(गन्) चलाइन् ढुकुटि दवाई खा[या]कि छन् भनी पक्रिन् भंन््यया वेहोराले मा- त्र लेषियाको मुद्दा उठाई विंतिपत्र मात्र चह्रायाको हुुं । अदालतमा ् तोकाई लगी र सो विंतिपत्रवमोजिम इजहार मुचुल््कका दी नीज जे- ठि आमालाई कायेल गर््न म सकतिन । लेषियाका वेहोराको मै- ले विंतिपत्र चह्रायाका मुद्दामा ऐन् रहाका निसाफलेजो ठहर््छ म सामेल छुभनी मेरा मनोमान षुसिराजिसग ज््ममानवंदी लेषि अ- दालत् वंदोवस््तमा चह्राञां। इति सम््वत्१९३४ साल मिति चैत्र सुदि १३ रोज २ शुभम् ---

Translation:

Thrice-venerable Mahārāja ---1

Venerable Koṭīliṅga ---2

[Seal]

#### Signature

[The following] has been written by Samsera Bahādura Pāḍe Kṣatrī, resident in Naradevī Ṭola. After my fifth paternal uncle Prithi Bahādura Pā̃ḍe, accused of committing adultery with a 4th-generation female blood cousin, fled to Madhesa in [VS 19]16, expiation was granted to his eldest wife, Rājakumārī, in [VS 19]18, the details [of which are as follows]: "The body (lit. 1 body) [of Rājakumāri] has been purified. [She had been polluted] by reason of having met her own ritually married husband, Pṛthi Bahādura Pā̃ḍe Kṣatrī, of having received cooked rice and water from his hand and even of having engaged in sexual intercourse with him." For that reason, by order of ---1--- (i.e., Thrice Venerable Mahārāja), Thāpāthalī, in [19]26, my fifth paternal aunt Rājakumārī and my mother Ratnakumārī, as it turned out, partitioned the [family] property, with each receiving half.

Since my fifth paternal aunt alone had been enjoying our 6 *gūṭhī*s, including the one called Nārāyaṇī, my mother filed a lawsuit in [19]31 as a litigant [against] her at the ---2--- (i.e., venerable Koṭīliṅga) court, stating: "She [Rājakumārī] is not entitled to enjoy [the *gūṭhī*s] on her own, and [she also] should not be allowed to enjoy our part of the partitioned treasury by force." Afterwards, when [the lawsuit] was forwarded to the Iṭācapalī, Rājakumārī, [my] fifth paternal aunt, filed a defence appeal, stating: "Given that [Ratnakumārī] gave [me] a written statement as follows: 'You shall run the *guṭhī*''', I have enjoyed it, reconstructing what was in disrepair. Ratnakumārī is not entitled to enjoy the unpartitioned treasury on her own."

Thereafter this property [was confiscated] and we were arrested. Then I submitted a petition to ---1--- (i.e., Thrice Venerable Mahārāja) against my fifth paternal aunt together with the following lawsuit: "[A woman]—one who has willingly eaten cooked rice and received water from [her husband] even after knowing that he has lost his caste status down to the equivalent of a Śūdra as punishment for committing adultery with a blood relation—should not under any circumstances get her share of property on the grounds that she has been granted water expiation, while still excluded from having cooked rice with fellow caste members. She should not get her share of property just by inveigling and lying. According to my inquiry, she is still excluded from having cooked rice together with fellow caste members."

When I was asked about my inquiry into the copy of the *phāraka* mentioned above regarding the expiation and told to relate truthfully, without lying, the details of what had happened during that lawsuit, I readily consented.

I have submitted this petition with regard only to the lawsuit whereby my fifth paternal aunt caused us to be arrested [on the basis of the accusation] that my mother had been running all the *gūṭhī*s and had been enjoying the treasury by force. I am unable to convince my first paternal aunt to appear in court with the established facts, nor can I give testimony or make her confess, as mentioned in the petition [submitted to you earlier].

I have willingly submitted this *jabānabandī* to the Adālata Bandobasta Aḍḍā. I shall accept the decision, made in accordance with the *Ain* and your judgement, regarding the petition and lawsuit I initiated, the details of which are written [above].

Monday, the 13th day of the bright fortnight of Caitra in the [Vikrama] era year 1934 [1878].

#### Facsimile:

[*1r*]

# **Document 11 (DNA 15/91)**

A *rukkā* from the king granting Prime Minister Jaṅga Bahādura Kũvara allowances previously enjoyed by Bhīmasena Thāpā (VS 1903)

Edited and translated by Rajan Khatiwoda; VS 1903 (1846); National Archives, Kathmandu, Ms. no. 628; microfilmed as NGMPP DNA 15/91 on 24/07/2000; for the digital edition, see https://nepalica.hadw-bw.de/ nepal/editions/show/2170.

**Abstract:** This royal decree grants Prime Minister Jaṅga Bahādura Rāṇā the same privileges and benefits that were previously enjoyed by General Bhīmasena Thāpā, including the reception of traditionally sent gifts from Koṭa Bhaḍāra and other places on occasions such as Dasain and Phāgu.

Edition:

[*1r*]

```
1 श्रीदर््गगा ुज््ययूूः\
```
[Royal seal]


Translation:

Venerable Durgā!

[Royal seal]

Hail! This is a *rukkā* from the glorious supreme king of great kings.<sup>96</sup>

*Āge*: To Prime Minister and Commander-in-Chief General Jaṅga Bahādura Kũvara.

We have assigned [to you] everything that was previously received from [our] court (*darabāra*) by General Bhīmasena Thāpā and went through the [Kausī] Tosākhānā, Koṭa Bhaṇḍāra and other places, [including] food and drink, dress, usual obligations (*māmulī*) and customary fees (*daidastura*) [delivered by the subjects] during the Dasaĩ and Phāgu festivals. Being loyal to our salt and mindful of your duty, enjoy everything, [including] food and drink, dress, usual obligations and customary fees [delivered by subjects] on Dasaĩ and Phāgu that were enjoyed (lit. eaten and received) by General Bhīmasena Thāpā, collecting them from time to time from the Tosākhānā, Koṭa Bhaṇḍāra and other such places.

Sunday, the 5th day of the dark fortnight of Mārga in the [Vikrama] era year 1903 (8 November 1846). Auspiciousness.

#### Commentary:

By this executive order Jaṅga Bahādura is granted privileges previously enjoyed by Bhīmasena Thāpā, and that, strangely enough, more than seven years after the latter's death in 1839 (on Bhīmasena's end, see Acharya 1971: 15; Adhikari 1984: 22). This series of entitlements were steps along the way to Jaṅga Bahādura's empowerment after the Koṭa Massacre on 14 September 1846. In a multi-step process, rights

96 The title *mahārājadhirāja* could here refer to either the technically still reigning King Rājendra or to his son and technically still crown prince Surendra. Already in August 1842, Rājendra had ordered that his son Surendra be addressed with the title *mahārājadhirāja* (Pandey 1973: 51, Whelpton 1991: 110). In November 1844 (1st of the bright fortnight of Mārga VS 1901), Rājendra issued a document officially conferring the title on his son and empowering him to "conduct the affairs of the administration" (tr. by Acharya 1971: 21). Did this empowerment include the right to issue *rukkās* as *mahārājādhirāja*? In 1846 (VS 1903) after the Koṭa Massacre on 14 September, King Rājendra officially announced his intention to go on a pilgrimage (Pandey 1973: 50 n. 1), and in a *lālamohara* issued on the 10th of the bright fortnight of the month of Kārttika, he authorized Surendra to ascend the throne "in case, while on pilgrimage, he would be made captive by the British government or in case he would not come back even at his fortieth year of age" (ibid.: 50). On the same day the present document was issued, Surendra was appointed prince regent in the absence of the king (ibid: 51 n. 5). Whelpton (1991: 170 n. 96) refers to a *lālamohara* that was issued on the 12th of the dark fortnight of the month of Mārga (13 November 1846) still in Rājendra›s name. Rājendra left Kathmandu for Benares on 23 November 1846 (Whelpton 1991: 166). Only on 12 May 1847 was Surendra officially crowned king of Nepal (ibid.: 173).

and titles were transferred to Jaṅga Bahādura Kũvara, while the reigning Śāha king Rājendra and his heir Surendra were deprived of their power to govern the country. Another *lālamohara* issued on the same day, appointed Surendra prince regent (Pandey 1973: 50; cf. n. 1).

Facsimile:

[*1r*]

378 — C. Edition and Translation of Documents

# **Document 12 (R-Ain, A 1375/5)**

A *lālamohara* issued by King Pṛthvī Vīra Vikrama allowing Prime Minister Vīra Samsera to expand and amend the existing laws, particularly promulgated in VS 1936 (1879) by then Prime Minister Raṇoddīpa Siṃha (VS 1942)

Edited and translated by Rajan Khatiwoda; VS 1942 (1885); National Archives, Kathmandu, Ms. no. 6.1599; microfilmed as NGMPP A 1375/5 on 13/07/1989.

**Abstract:** This *lālamohara* encompasses a directive aimed at improving and updating the existing criminal and civil laws that were initially instituted in 1879 (VS 1936) by the former prime minister. The laws established in 1879 not only offered precise definitions for criminal and civil cases but also delineated the duties and jurisdiction of specific government offices and their officials. Additionally, they provided invaluable guidelines for composing various legal documents, including crucial sample templates that were absent in the *Ain* of 1854 and its subsequent amendments.

Edition:

[*p. 2v*]

श्री दर््गगा ुज््ययू

Royal seal of King Pṛthvī Vīra Vikrama with the legend: श्रीनाथस््य स््वस््तति श्रीश्रीश्रीमहाराजाधिराजपृथ््ववीवीरविक्रमजङ््गवहादूरशाहवहादरुशंशेर (…)


[*p. 2r*]

[Seal of Prime Minister Vīra Samsera]<sup>98</sup>


[Seal of Commander-in-Chief General Khaḍga Samsera]<sup>99</sup>

	- For *dvitīya*.
	- The legend of the seal is not readable because of the quality of the reproduction.
	- The legend of the seal is not readable because of the quality of the reproduction.

380 — C. Edition and Translation of Documents

#### Translation:

[*p. 2v*]

Venerable Durgā!

[Royal seal of King Pṛthvī Vīra Vikrama]

Hail! [A decree] of him who is shining with manifold rows of eulogy [such as] 'the venerable crest-jewel of the multitude of mountain kings' and Naranārāyaṇa (an epithet of Kṛṣṇa) etc., high in honour, the venerable supreme king of great kings, the thrice venerable great king, Pṛthvī Vīra Vikrama Samsera Jaṅga Bahādura Deva, the brave swordsman, the divine king always triumphant in war.

*Āge*: To the chiefs and other officials of *aminīs*, *aḍḍās* and *gauḍās*, and [to] subjects in the administrative centres (*sadara*) and districts (*mophasala*) throughout our realm.

[The following royal order] has come down from earlier times: "There has been no law until today [pertaining to] conducting legal cases at *aminīs*. We have been handling [such] matters (*kāma calāunu*) only on the basis of *savālas* and *sanadas*. [Therefore,] we gave the following order to the thrice venerable Ke Si Yasa Āī (i.e., KCSI) Thoṅ Lina Pim Mā Ko Kāṅ Vāṅ Syāna, Prime Minister and Commander-in-Chief Mahārāja Raṇoddīpa Siṃha Rāṇā Bahādura: 'Hold a Council meeting, having invited the Chief of the Munsīkhānā and [other] *bhāradāras*, and draft a law in line with the decisions of the Council during its meeting, our orders and [international] treaties, [and] in such a way that it does not conflict with any arrangements between the two governments (i.e., the Nepalese and British Indian).' We approved the resulting law, and on Friday, the 10th lunar day of the bright fortnight of the intercalary Āśvina in the [Vikrama] era year 1936, we cancelled or corrected [existing provisions] and added newly required ones to the volume of written [law] based on what was thought needed to be corrected or cancelled during the Council's deliberations in our presence. We [hereby] order: 'Everyone shall perform their tasks and deliver justice according what is written in this law. Whoever does not act in accordance with what is written in this [law] but deviates [from it] shall be punished in accordance with the main (*baḍā*) *Ain* (i.e., MA).' If a law written in this volume needs to be corrected or a [new] law needs to be added [to it], the chief of the Ain Khānā may so add, delete or correct in accordance with whatever has been deemed necessary in deliberations by the Prime Minister and Council. We have ordered, too, that the Prime Minister may add or expand other laws if they are deemed to be beneficial to us (i.e., the king's government) and convenient for and protective of [our] subjects. Every official including the Prime Minister who performs tasks at *aminīs* shall perform them and deliver judgement in accordance with this law." In line with [this earlier royal order] we [hereby] issue the order that from Monday, the 1st day of the dark fortnight of Mārga in the [Vikrama] era year 1942 onwards you, too, thrice venerable Mahārāja, Prime Minister and Commander-in-Chief Vīra Samsera Jaṅga Rāṇā Bahādura, may add new required [laws] or remove ones that contradict customary [practice].

[*p. 2r*]

[Seal of Prime Minister Vīra Samsera]

Hail! The thrice-venerable Mahārāja, Prime Minister and Commanderin-Chief Vīra Samsera Jaṅga Rāṇā Bahādura, who is very mighty and has arms like a staff etc.

[Seal of Commander-in-Chief General Khaḍga Samsera Jaṅga Rāṇā Bahādura]

Approved by a venerable prince born to a prince, the venerable Commander-in-Chief General Khaḍga Samsera Jaṅga Rāṇā Bahādura.

#### Facsimile:

[*p. 2v*]

[*p. 2r*]

# Glossary

In my prior publication, co-authored with Simon Cubelic and Axel Michaels (2021: 60–63 and 855–871), a thorough compilation of administrative, legal, and various other terminologies attested in the *Mulukī Ain* of 1854 and contemporaneous documents has been presented. In the interest of brevity and relevance to the current topic, I here refocus attention on selective terms most relevant to it.


386 — Glossary


*bicārī* – A magistrate ranked under a *ḍiṭṭhā*.


individuals. The post was exclusively held by Brahmins in the royal court.


activities by means of endowed lands or other revenue sources dedicated to these purposes.


*ijārādāra –* The holder of an *ijāra* contract.

*jabānabandī/jamānabandī –* A legal document in which a complainant, defendant, or eyewitness pledges in writing to accept whatever decision the court or legal body reaches in accordance with the law.

*jāgira* (*jāgīra*) – Land assigned to government employees in lieu of salaries. *jamdāra* (*jamadāra*) – A low-ranking commissioned officer in the army who could also be assigned to civil offices.


*kāgaja –* A document with legal effect.


*kaparadāra* – A high-ranking official, a chamberlain, described as the chief of the royal household, the keeper of the king's wardrobe, and the one in charge of jewellery and other valuable items in the palace.

*kaptāna –* A captain, a commissioned army officer ranking below a major.

*kārindā* – A clerk or low-ranking official under the authority of a *hākima*.

*karnela* (*karṇaila*) *–* A colonel.

*kaṭuvāla* – A civil functionary; a village messenger.


*lephṭena* (*lephaṭena*) *–* A lieutenant, ranking below a major adjutant.


ranking official(s), with '*mārphata*' written before their full name signature, for authentication and implementation purposes.

*mauje /maujā –* A unit of land revenue administration in the Tarai; a revenue subdivision formed by a group of villages in certain hill districts and the Kathmandu Valley.

*maulavi –* An expert in Islamic law.


*phāraka –* A written receipt or a deed of release from some obligation.

*pradhāna –* A low-ranking state functionary tasked with serving as headman for specific communities within the Kathmandu Valley and beyond, or else as a local official responsible for revenue collection in villages.

*pragannā –* A unit of land revenue administration in the Tarai, comprising several *maujās*.

*pramāṅgī –* Permission or an order, typically in written form, coming from the king or a high-ranking government official such as the prime minister, often utilized when overriding existing legal norms.

*prāyaścitta* – Penance undertaken by a polluted person for absolution.

*pūrjī* (*purji*) – A writ, a written notice; a formal letter written by a government institution or an official to another institution or person.

*rāīṭara –* A writer or clerk, ranking higher than a *bahidāra* but lower than a *mukhiyā*.

*rājaguru* – A preceptor or guru to a member of the royal family.

*rājapaṇḍita/ rājapurohita*<sup>1</sup> – A royal priest and counsellor, usually a hereditary post occupied by a Brahmin.

*rājavaidya –* A royal physician.

*rakama –* Revenue or a revenue item; mandatory labour owed to the government by peasants cultivating specific classes of land, like *raikara*, *kipaṭa*, or Rāja Guṭhī land; compulsory labour obligations converted to specific services provided regularly and potentially over generations to government-run establishments.

*rakamadāra –* A holder of a *rakama*; a revenue functionary.

<sup>1</sup> The meanings of *rājaguru* and *rājapaṇḍita* sometimes overlap, corresponding to overlaps in the functions of the two posts.

*ramatā –* An individual itinerant ascetic.


*sar*(*a*)*dāra* – A top-ranking official next in the hierarchy under a *kājī*.


#### **Primary Sources**

#### Texts

	- (1.) MA 1854: MA-ED1. *Le Code Népalais (Ain) de 1853*, ed by Jean Fezas. Torino: Comitato per la Publ. del Corpus Juris Sanscriticum. (Corpus Juris Sanscriticum, Volume II), 2000.
	- (2.) MA 1865–1867: MA-ED2. *Śrī 5 Surendra Bikram Śāhadevakā Śāsanakālamā Baneko Mulukī Ain*. Kathmandu: Kānuna tathā Nyāya Mantrālaya, 1965 (VS 2022).
	- (3.) MA 1870: MA-ED3. *Śrīmadrājakumārakumārātmaja Śrīkamyāṇḍara iṃ Cipha Jenarala Raṇoddipa Siṃhā Rāṇā Bahādurakā Marji Motāvika Chāpyāko Kitab.* Kathmandu: Nepāla Manorañjanākhya Yantrālaya, 1870 (VS 1927).
	- (4.) MA 1885/1888: *Śrīmadrājakumārakumārātmaja Śrīkamyāṇḍara ina Cīpha Jenarala Deva Saṃsera Jaṅga Rāṇā Bahādūrakā Marjī*

*Motāvika Chāpiyāko Kitab.* Kathmandu: Śrī Vīradeva Prakāśa Yantrālaya, 1888 (VS 1945).


#### Published Documents


uni-heidelberg.de/nepal/index.php/editions/show/10865 [last accessed on 12 June 2023].


### Unpublished Documents1


no. 6.1599; microfilmed as NGMPP A 1375/5 on 13/07/1989. http:// ngmcp.fdm.uni-hamburg.de/mediawiki/index.php/A\_1375-5\_Ain [last accessed on 10 June 2023].



uni-heidelberg.de/nepal/index.php/catitems/viewitem/9445/1. [last accessed 10 June 2023].


#### **Secondary Sources**



Bouillier, Véronique. 1983. "Les Jangam du Népal: caste de prêtres ou renonçants?" *Bulletin de l'Ecole française d'Extrême-Orient* 72: 81–148.

———. 1991. "The King and His Yogī: Prithvi Nārāyaṇ Śāh, Bhagavantanāth and the Unification of Nepal in the Eighteenth Century." In *Gender, Caste and Power in South Asia: Social Status and Mobility in a Transitional Society*, edited by John P. Neelson, 2–21. New Delhi: Manohar.

Briggs, George Weston. 1982. *Gorakhnāth and the Kānphaṭa Yogīs*. Reprint. Delhi: Motilal Banarsidass.

Burghart, Richard. 1984. "The Formation of the Concept of Nation-State in Nepal." *The Journal of Asian Studies* 44 (1): 101–125.


Gutschow, Niels, and Axel Michaels. 2005. *Handling Death: The Dynamics of Death and Ancestor Rituals among the Newars of Bhaktapur, Nepal*. Ethno-Indology: Heidelberg Studies in South Asian Rituals, vol. 3. Wiesbaden: Harrassowitz.

Hamilton, Francis. 1819. *An Account of the Kingdom of Nepal and of the Territories Annexed to These Dominion by the House of Gorkha*. London: Edinburgh.


410 — Bibliography



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The main ambition of this book lies in a detailed analysis of the formation and enforcement of Nepal's *Mulukī Ain* of 1854, specifically focusing on the provisions regarding homicide within the *Mulukī Ains* of 1854 and 1870. This study also examines contemporaneous legal records, revealing the complexities of the *Ain's* implementation. The articles on homicide serve as a microcosm illustrating the broader evolution of Nepal's legal code, which departed from outdated punishments like genital mutilation and introduced fines and imprisonment instead. Still, the innovations introduced into the *Ain*  of 1854 were not uniformly progressive. The *Ain* in its various stages of development thus showcases the complex ways in which legal systems inevitably undergo transformation.