PENOLOGY & VICTMOLOGY

MODULE - II

THEORIES OF PUNISHMENT

PUNISHMENT

Punishment, according to the dictionary, involves the infliction of pain or forfeiture, it is the
infliction of a penalty, chastisement or castigation by the judicial arm of the State. But if the sole
purpose of punishment is to cause physical pain to the wrong-doer, it serves little purpose.
However, if punishment is such as makes the offender realize the gravity of the offence
committed by him, and to repent and atone for it (thus neutralizing the effect of his wrongful act),
it may be said to have achieved its desired effect.

A person is said to be "punished" when some pain or detriment is inflicted on him. This may
range from the death penalty to a token fine. Thus, punishment involves the infliction of pain or
forfeiture; it is a judicial visitation with a penalty, chastisement or castigation.

The objects of punishment, - The needs of criminal justice are considered to

be five, namely:
A. Deterrent
B. Preventive
C. Reformative
D. Retributive
E. Compensation.

THE DETELRRENT THEORY OF PUNISHMENT

Punishment is primarily deterrent when its object is to show the futility of crime, and thereby
teach a lesson to others. Deterrence acts on the motives of the offenders, whether actual or
potential.

Offences are committed, in most cases, as a result of a conflict between the socalled interests of
the wrong-doer and those of society at large. The object of punishment, according to this theory, is
to show that, in the final analysis, crime is never profitable to the offender, and as Locke
observed, to make crime "an ill-bargain to the offender." By making it an ill-bargain to the
offender, the world at large would learn that crime is a costly way of achieving an end.

The idea behind deterrent punishment is that of preventing crime, by the infliction of an
exemplary sentence on the offender. By this, the State seeks to create fear in its members, and
thus deter them from committing crime through fear psychology. The rigour of penal discipline is
made a terror and a warning to the offender and others.

According to the exponents of this theory, punishment is meant to prevent the person concerned
and other persons from committing, similar offences. The advocates for the retention of capital
punishment rely on this theory in support of their contention. They argue that capital punishment,
by its very nature, cannot have either a reformative value or be a retributive necessity. Its only
value, if at all, is by way of deterrence.

However, the theory of deterrent punishment fails to achieve its goal. A hardened criminal
becomes accustomed to the severity of the punishment, and deterrence does not always prevent
him from committing a crime. On the other hand, it also fails to affect an ordinary criminal, as
very often, a crime is committed in a moment of excitement. If the crime is pre-mediated, the
offender commits the crime, knowing fully well, the consequences arising from his act and
performs the act because he cannot help but do it.

In a case decided by the Supreme Court, Phul Singh Vs State of Haryana,

(1980 Cri. L. J. 8), a young philanderer aged 22, overpowered by excess sex stress,
raped a twenty-four year old girl next door in broad day-light. The Sessions Court
convicted him to four years' rigorous imprisonment, and the High Court confirmed the
sentence in appeal. When the matter went in appeal to the Supreme Court, the
sentence was reduced to two years' rigorous imprisonment, as the accused was not an
habitual offender, and had no vicious antecedents. The Supreme Court observed: "The
incriminating company of lifers and others for long may be counter-productive, and in
this perspective, we blend deterrence with correction, and reduce the sentence to
rigorous imprisonment for two years."

THE PREVENTIVE THEORY OF PUNISHMENT

If the deterrent theory tries to put an end to the crime by causing fear of the punishment in the
mind of the possible crime-doer, the preventive theory aims at preventing crime by disabling the
criminal, for example, by inflicting the death penalty on the criminal, or by confining him in
prison, or by suspending his driving license, as the case may be.

Thus, the extreme penalty, the death sentence, ensures that, once and for all, the offender will be
prevented from repeating the heinous act. In the past, maiming was considered an effective
method of preventing the wrong-doer from committing the same crime in the future, by
dismembering the offending part of the body. Thus, a thief's hand would be cut off, or a sexual
off.

In the ultimate analysis, the preventive mode of punishment works in three ways, viz
a) by inspiring all prospective wrong-doers with the fear of punishment;
b) by disabling the wrong-doer from immediately committing any crime; and
c) by transforming the offender, by a process of reformation and reeducation, so that he would not
commit crime again.

In this connection, the following extract from Rule 58 of the International Standard Minimum
Rules is illuminative:

"The purpose and justification of a sentence of imprisonment or a similar measure derivative of

liberty is ultimately to protect society against crime. This end can only be achieved if the period
of imprisonment is used to ensure, so far as possible, that upon his return to society, the offender
is not only willing, but also able, to lead a law abiding and self-supporting life."

THE REFORMATIVE THEORY OF PUNISHMENT

According to the reformative theory, a crime is committed as a result of the conflict Between the
character and the motive of the criminal. One may commit a crime either because the temptation
of the motive is stronger or because the restraint imposed by character is weaker. The deterrent
theory, by showing that crime never pays, seeks to act on the motive of the person, while the
reformative theory aims at strengthening the character of the main, so that he may not become an
easy victim to his own temptation. This theory would consider punishment to be curative or to
perform the function of a medicine. According to this theory, crime is like a disease.

This theory maintains that "you cannot cure by killing".

The exponents of the reformative theory believe that a wrong-doers stay in prison should serve to
re-educate him and to re-shape his personality in a new mould. They believe that though
punishment may be severe, it should never be degrading. To the followers of this theory,
execution, solitary confinement and maiming are relics of the past and enemies of reformation.
Thus, the ultimate aim of the reformists is to try to bring about a change in the personality and
character of the offender, so as to make him a useful member of society.

The reformists argue that if criminals are to be sent to prison in order to be transformed into
law-abiding citizens, prisons must be turned into comfortable, dwelling houses. This argument is,
however, limited in its application, and it must be remembered that in a country like India, where
millions live below the poverty line, it may even act as an encouragement to the commission of
crimes. Lamenting on the conditions prevailing in jails in India, Justice Krishna lyer opens his
judgment in Rakesh Kaushik Vs Superintendent, Central Jail (1980 Supp. S.C.C. 183) with
the following poignant question :

"Is a prison term in Tihar Jail a post-graduate course in crime ?"

In Sunil Batra (II) V. Delhi Administration (1980 3 S.C.C. 488), the Supreme Court regarded a
simple letter from a co-prisoner as sufficient to invoke proceedings by way of habeas corpus. The
judgment deals at length with the shocking conditions prevailing in Indian prisons and suggests a
series of prison reforms. Lamenting on the atrocities prevailing in Delhi's Tihar Jail, Justice
Krishna lyer, in the course of his learned judgment, observes a follows.

"The rule of law meets with its Waterloo when the State's minions become law-breakers, and so
the Court as a sentinel of justice and the voice of the Constitution, runs down the violators with its
writ, and serves compliance with human rights even behind iron bars and by prison wardens."

True it is, that the reformative element had long been neglected in the past. However, the present
tendency to lay heavy stress on this aspect seems to be only a reaction against the older tendency
to neglect it altogether, and has therefore, the danger of leaning to the other extreme. Whereas
reformation is an important element of punishment, it cannot be made, the sole end in itself. It
must not be overlooked, but at the same time, it must not be allowed to assume undue importance.
In the case of young offenders and first offenders, the chances of long-lasting reformation are
greater than in the case of habitual offenders. Again, some crimes, such as sexual offences, are
more amenable to reformative treatment than others. Further, reformative treatment is more likely
to succeed in educated and orderly societies than in turbulent or under-developed communities.

THE RELTRIBUTIVE THEORY OF PUNISHMENT

While discussing the history of the administration of justice, it was seen that punishment by the
State is a substitute for private vengeance. In all healthy communities, any crime or injustice stirs
up the retributive indignation of the people at large. Retribution basically means that the
wrongdoer pays for his wrongdoing, since a person who is wronged would like to avenge himself,
the State considers it necessary to inflict some pain or injury on the wrongdoer in order to
otherwise prevent private vengeance.

Whereas other theories regard punishment as a means to some other end the retributive theory
looks on it as an end in itself. It regards it as perfectly legitimate that evil should be returned for
evil, and that a man should be dealt with the manner in which he deals with others. An eye for an
eye and a tooth for a tooth is deemed to be the rule of natural justice.

Though the system of private revenge has been suppressed, the instincts and emotions that lay at
the root of these feelings are yet present in human nature. Therefore, according to this theory, the
moral satisfaction that society obtain from punishment cannot be ignored. On the other hand, if
the criminal is treated very leniently, or even in the midst of luxury, as the reformative theory
would have it. (and as actually happens in some prisons of the world, which are equipped with
air-conditioning, private toilets, TV sets etc.), the spirit of vengeance would not be satisfied, and it
might find its way through private vengeance.

Therefore, punishment, instead of preventing a crime, might indirectly promote it. Unfortunately,
the retributive theory ignores the causes of the crime, and it does not strike at the removal of the
causes. A mere moral indignation can hardly prevent crime. It is quite possible that the criminal is
as much a victim of circumstances as the victim himself might have been.

It is also unfortunate that this theory overlooks the fact that two wrongs do not really make a right.
The theory also seems to ignore that if vengeance is the spirit of punishment, violence will be a
way of prison life.

RETRIBUTION AS EXPIATION

There is yet another interpretation of the retributive theory, which considers punishment as a form
of expiation. To suffer punishment is to pay a debt due to the law that has been violated. As per
this formula, guilt plus punishment is equal to innocence. According to this view of the retributive
theory, the penalty is a debt which the offender owes to his victim, and when the punishment has
been endured, the debt is paid, and the legal bond forged by the crime is dissolved.
Therefore, the object of true punishment must be to substitute justice for injustice, to compel the
wrong-doer to restore to the injured person that which is his own, and by such restoration and
repentance, the spirit of vengeance of the victim is to be satisfied.

THE COMPENSATION THEORY OF PUNISHMENT

According to this theory, the object of punishment must not be merely to prevent further crimes,
but also to compensate the victim of the crime. This theory further believes that the main-spring
of criminality is great and if the offender is made to return the ill-gotten benefits of the crime, the
spring of criminality would be dried up.

Though there is considerable truth is this theory, it must be pointed out that this theory tends to
over-simply the motives of a crime. The motive of a crime is not always economic. Offences
against the state, against justice, against-religion, against marriage, and even against persons, may
not always be actuated by economic motives. There may be other complicated motives involved.

In such cases, the theory of compensation may be neither workable nor effective. Quite often,
even in the case of offences actuated by such motives, the economic condition of the offender
may be such that compensation may not be available. Therefore, this theory can at best, play a
subordinate role in the framing of a Penal Code.
By way of conclusion, it may be said that the administration of criminal justice cannot have any
of the above purposes as the single or sole standard of punishment. A perfect penal code must be a
judicious combination of these various purposes of punishment.

No theory of punishment is a complete answer by itself. All the above theories of punishment are
not mutually exclusive.

If the retributive theory is meant pure vengeance, it cannot be accepted. However, it does not
mean that. In its true sense, it involves the working of Nemesis. The real idea behind retribution is
to make the offender realize-by a process of reformative detention-the heinousness of his crime,
thus preventing him and deterring others at the same time.

As observed by justice Krishna lyer in Rakesh Kaushik Vs Superintendent, Central Jail

(referred to above),-
"The fundamental fact of prison reforms-comes from our constitutional recognition that every
prisoner is a person, and such person hold the human potential which, if unfolded, makes a rober a
Valmiki, and a sinner a saint."

As stated in a British Government's White Paper entitled "People in Prison,"-

"A society that believes in the worth of individual beings can have the quality of its belief judged,
at least in part, by the quality of its prison and probation services and of the resources made
available to them." In the words of Dr. Sethna, the theories of retribution, reformation, determent
and prevention go hand-in-hand, and exist for the preservation of the moral order, the protection
of society and the rehabilitation of the offender himself.
 MODULE- III

KINDS OF PUNISHMENTS

The following seven kinds of punishment are discussed below, namely,-

(1) Capital punishment
(2) Deportation
(3) Corporal punishment
(4) Imprisonment
(5) Solitary confinement
(6) Indeterminate sentence
(7) Fine.

CAPITAL PUNISHMENT

In the history of punishments, capital punishment has always occupied a very important place. In
ancient times, and even in the middle ages, sentencing offenders to death was a very common
kind of punishment. Even what might be considered as minor offences in modern criminal law,
attracted the death penalty in those days. In England, there was a time when there were as many
as 200 felonies for which the punishment was death. Even the offence of theft of property worth
more than two shillings would attract the penalty of death. Till the middle of the seventeenth
century in England, even the penalty for the offence of forgery was death.

Then there arose a movement in the 18th century, which raised its voice of protest against the in
human of punishment. Bentham can be considered as the spearhead of this movement. He
analysed the causes of crime, and showed how punishment would serve its purpose. According to
him, punishment itself was an evil, but a necessary evil. No punishment was to be inflicted unless
it brought greater good.

The object of capital punishment is said to be two-fold. By putting the offender to death, it may
instill fear in the minds of others and teach them a lesson.
Secondly, if the offender is an incorrigible one, by putting him to death, it prevents the repetition
of the crime by that person on a permanent basis. But it is evident that this punishment is not
based on the reformative object of punishment, in the sense that it is a step of despair.
There have been many arguments for and against this kind of punishment. In a case before the
Supreme Court, them accused killed his ailing wife, as he could not provide the money for her
operation. He also killed his two children, as there would be no one to care for them after the
mother. However, the crime was committed out of poverty, and not for just, vengeance or gain. In
the circumstances, the Supreme Court held that life imprisonment, and not capital punishment,
was the appropriate sentence (State of U.P. V. M.K. Anthony, A.I.R. 1985 S.C. 48).

In Bachan Singh V. State of Punjab (1980 2 S.C.C. 684), the Supreme Court was faced with the
question whether the death penalty imposable for some offences under the Indian Penal Code is
constitutionally valid By a four-to-one majority verdict, the Supreme Court ruled that the death
penalty is constitutionally valid, and does not constitute an "unreasonable, cruel or unusual
punishment." The majority pointed out that the death penalty is to be imposed only for "special
reasons" and only in the rarest of rare cases. However, such provisions cannot be said to be
violative of Articles 14, 19 and 21 of the Constitution. It was also observed that the fact that India
had accepted the International Covenant of Civil and Political Rights does not affect the
constitutional validity of the death sentence. The voice of dissent came from justice Bhagwati,
who delivered a separate verdict to the effect that section 302 of the Code is void, in so far as it
provides for imposition of a death penalty (for murder) as an alternative to life imprisonment.

The Supreme Court has taken a stern view of recent "dowry deaths" and "wife-burning tragedies",
and has refused to commute sentences imposed on such "murders" by lower Courts. The
following observations of the Supreme Court in Vasant Pawar V. State of Maharashtra (1980
Supp. S.C.C. 194) are interesting:

"Wife-burning tragedies are becoming too frequent for the country to be complacentLaw must
rise to the challenge of shocking criminology, especially when helpless women are the victims,
and the crime is committed in the secrecy of the husband's home."

A reference may be made to yet another decision of the Supreme Court in a wife-burning tragedy
which took place in Delhi (State V. Laxman Kumar & others), a detailed discussion whereof
appears in the Appendix (at the end of the book).

a) Arguments against Capital Punishment

(i) Those who denounce this kind of punishment argue that capital punishment has not served its
deterrent object at all. For example, in certain States of the United States of America, where the
death penalty has been abolished, there are fewer serious crimes than in other States, where
capital punishment is still retained. If capital punishment has the deterrent effect which it is
supposed to have, crimes in the former States ought to have increased, and crimes in the
latter States ought to have decreased. Therefore, it is argued that the statistics do not prove the
deterrent effect of capital punishment.

Abolition of capital punishment has been a recent experiment in England and the immediate
results are indeed encouraging. The experiment is worth a trial in India also. Subsequent to its
abolition in England, in July 1983, a private member's Bill was introduced in the House of
Commons for restoring the death penalty in England after fourteen years of its abolition.
However, the Bill was defeated, with 233 votes in favour and 368 votes cast against the proposal.

(ii) Capital punishment may be preventive, but at what cost, and under what circumstances ?
Crimes are very often committed, not by persons who are normal human beings, or under normal
circumstances, it is not even certain that t murder would repeat the murder again. He might have
committed this heinous crime under extraordinary circumstances. If the State were to kill that
man, it could, at best, have only the dubious satisfaction of having prevented a crime which
probably would never have been committed. But it must be noted that, in such a case, in its
anxiety to
prevent a crime, the State itself has committed the greatest crime of taking away the life of a man.

As Professor Henting put it"I see in capital punishment a means of punishment whose
advantages can be obtained by other means, and whose disadvantages cannot be prevented in
any other way than by abolishing it".

(iii) Professor Henting draws our attention to another salient defect of the capital punishment: No
thinking person can claim that our law of evidence and the law of procedure are foolproof, and
always lead us inevitably to the truth. It is possible that there are judicial errors, and in such a
case, capital punishment, once it is awarded and the person executed, cannot be revoked.
Thus, there have been cases where after execution of an alleged murderer, the true murderer is
caught. But can the mischief be remedied ? It is argued that it is, therefore, better to save nine
murderers from capital punishment than to inflict it on one who may be, in fact, innocent. It is,
therefore, argued that this form of extreme punishment is neither effective nor just, and should be
abolished.

b) Arguments in favour of Capital Punishment

(i) On the other hand, those who advocate capital punishment argue that there are some offenders
who are not only incorrigible, but who are immensely dangerous to society, and there is no reason
why society should be burdened with maintaining such people. If you cannot cure, and If this
incorrigible element is harmful to human society, why not remove it altogether ?

(ii) Another argument pressed in favour of capital punishment is that it must be remembered that
punishment by the State is a substitute for private revenge. If a murderer is not punished with
death, it is quite possible that other relatives of the victim might murder the murder, and thus a
chain of murders might set in. So long as human emotions are powerful, so long as the powers of
vengeance prevail, it is argued, capital punishment is a necessary kind of punishment.

In conclusion, it may be said that though capital punishment serves some purpose, in the present
context of our respect for human dignity and the possibility of reforming the character of the
offenders, an experiment of abolishing capital punishment would be a very worthy attempt.

c) EFFECTIVE OF DELAY IN EXECUTING A DEATH SENTENCE :

Very often, there is a considerable delay in executing a death sentence awarded to a convict. This
delay may be attributed to the procedural delays involved in Courts, and often by mercy Petitions
of the relatives in a bid to save the life of the convict.

In a rather surprising decision (delivered in February, 1983), Justice O. Chinnappa Reddy and
Justice R.B. Mishra of the Supreme Court held that if there is a delay of more than two years in
executing a death sentence, the appropriate relief is to vacate the death sentence and commute it to
life imprisonment. The Court held that any delay exceeding two years in the execution of a
sentence should be considered sufficient to entitle the person to invoke Article 21 of the
Constitution, and demand the quashing of the death sentence, the cause of delay, in such cases,
being immaterial. (T.V. Vatheeslwaran V. State of Tamil Nadu, 1983 Cri. L.J. 481).

The decision in T.V. Vatheeswaran's case (above) was, however, overruled by a three-member
Bench of the Supreme Court (consisting of Chief Justice Chandrachud, justice Tulzapurkar and
Justice Varadrajan) only a month later (in March 1983), when the Court held that two-year delay
in Executing the death sentence does not, by itself, give a right to the offender to have it converted
into a sentence f life imprisonment. No doubt, prolonged delay is an important consideration
in such cases, but no hard and fast rule should be laid down to give a right to the murderer to have
his death sentence quashed. As observed by the Court, very often, four or five elapse between the
sentence of death imposed by the Sessions Court and rejection to the final appeal by the Supreme
Court. To this may be added the time taken by the President or the Governor to consider mercy
petitions.
Therefore, the Court observed, if such a hard and fast rule is laid down, it will become an object
of ridicule, by permitting a person to resort to frivolous proceedings in order to delay the
sentence by two years or more. (Sher Singh and Others V. State of Punjab, 1983 Cr. L.J. 803).

In Sher Singh's case (above), the Supreme Court also reiterated that the death sentence is
constitutionally valid and permissible within the constraints prescribed by the Supreme Court
(viz., that it should be imposed only in the rarest of rare cases). Following the later decision of the
Supreme Court, a Full Bench of the Madras High Court ! has also held that delay in execution of a
death sentence is no ground in itself for modification of such sentence to one of life
imprisonment, the circumstances causing the delay being immaterial. (K.G. Pillai V.
Government of India, A.I.R. 1986 Mad. 204).

IMPRISONMENT

Imprisonment, if properly used, may serve all the three important objects of the punishment. It
may be a deterrent, because it makes an example of the offender to others. It may be preventive,
because it disables the offender, at least for some time, from repeating the offence, and it might, if
properly used, give opportunities for reforming the character of the offender.

SOLITAY CONFINEMENT

Solitary confinement is an aggravated kind of imprisonment. This kind of punishment exploits

fully the sociable nature of man, and by denying him the society of his fellow beings, it seeks to
inflict pain on him.

It has been felt by many criminologists that this kind of punishment is inhuman and perverse. It is
possible that this might turn a man of sound mental health into a lunatic. If used in excess, it may
inflict permanent harm on the offender, though in limited cases, if used in proportion, this kind of
punishment may be useful. But if those limits are surpassed, it is likely to be unnecessarily cruel.

S. 73 and 74 of the I.P.C. lay down the limits beyond which solitary confinement cannot be
imposed under the Indian law. Thus, the total period of solitary confinement cannot exceed three
months in any case; nor can it exceed fourteen days at a time, with intervals of fourteen days in
between (or seven days at a time with seven days intervals in between, in case the substantive
sentence exceeds three months' imprisonment).

FINE
Some criminologists are of the opinion that the punishment of fine, in addition to serving its
deterrent object, also serves three more purposes.
Firstly, it may help to support the prisoners;
secondly, it might provide expenses for the prosecution of the prisoners, and
thirdly, it may be used for compensating the aggrieved party.

This kind of punishment may be very useful in cases of criminals who are not hardened. But care
must be taken to see that heavy and excessive fines, which would almost result in forfeiture of the
property of the offender, should not be inflicted. Moreover, facilities for collecting fines must be
created in such a way that levying of fine does not inevitably drive the offender to the prison on
account of his inability to pay the fine.

MODULE - IV

VICTIMOLOGY

CONCEPT OF VICTIMOLOGY

Victimology is the scientific study of victims of crime, a sub discipline of criminology. It seeks to
study the relationship between victim and offenders, the persons especially vulnerable to crimes
and the victims. Placement in the criminal justice system. (CJS). Benjamin Mendelsohn has done
pioneering work in this field. B. Mendelsohn is credited with being the first study to the
relationship between victim and doer (offender) and taken together, he termed to else PENAL
COUPLE.

Mendelsohn studied victims on the basis of their contributions to crimes and classified them into
the following categories.

Completely innocent victims, e.g. Child, Persons in sleep

1. Victims with minor guilt and victims of ignorance such as pregnant women who go to quacks
for procuring abortions
2. Voluntary victims, such as the ones who commit suicide or are killed by euthanasia.
3. victims who are more guilty then offenders such as persons who provoke others to commit
crimes.

The criminal type of victims who commits offences against others and get killed or hurt by others
in self-defense.

Victimology

Until recently, victims were not studied. They tended to be seen as passive recipients of the
criminals greed or anger, in the wrong place at the wrong time. The study of victims, known as
victimology, has resulted in theoretical and research studies, and an awareness of the victim has
grown in the public consciousness. There is now recognition that victims have traditionally not
been treated particularly well by the criminal justice system. Victims suffer not only during the
crime, but that there are also sometimes physical and psychological complications.

Perhaps the first theory to explain victimization was developed by Wolfgang in his study of
murders in Philadelphia. Victim precipitation theory argues that there are victims who actually
initiated the confrontation that led to their injuries and deaths. Although this was the result of the
study of only one type of crime, the idea was first raised that victims also might play a role in the
criminal activity.

Subsequently, some general facts have been gathered about victimization.

Victimization is more likely at night (6:00 p.m. to 6:00 a.m.). Personal larceny is more common
during the day, with more serious crime occurring at night.
Crime occurs more in open public areas, although rapes and simple assaults tend to occur in
homes.
Crime is most frequent in central city areas.
Western urban areas have the highest crime rates, while the Northeast rural areas have the
lowest.
The National Crime Survey indicates that 25% of U.S. households have at least one individual
who was victimized in some way during the past year.
Personal theft is very common. About 99% of Americans will be the victim of personal theft at
some time in their lives, and 87% will be a theft victim three or more times.
Men are twice as likely as women to be victims of robbery and assault.
The violent victimization rate for females has been fairly stable, but there has been a 20% increase
for males in the last 15 years.
 Victim risk diminishes rapidly after age 25. Contrary to popular belief, grandparents are safer
than their grandchildren.
Unmarried/never married people are more likely to be victims than the married or widowed.
The poor are more likely to be victims of crime. They are far more likely to be victims of violent
crime, while the middle class are more likely to be victims of property crime.
African Americans are victimized at the highest rates. Crime tends to be intra-racial (criminals
and victims of the same race) rather than interracial (criminal and victim of different races). About
75% of crime is intra-racial.
Strangers commit about 60% of violent crimes. However, females are more likely to know their
assailants.
In some studies, over half of offenders report being under the influence of alcohol and/or other
drugs when they committed the offense resulting in incarceration.
The characteristics of those most likely to be victimized might be summarized as: young, black,
urban, poor and male.

DEFINITION OF VICTIMOLOGY

The word VICTIMOLOGY was coined in 1947 by a French lawyer, Benjamin Mendelsohn
from a Latin word VICTIMA and a Greek word LOGOS. Victimology is basically a study of
crime from the point of view of the victim, of the persons suffering from injury or destruction by
action of another person or a group of persons.

Schultz (1970) says-

Victimology is the study of the degree of and type of participation of the victim in the gensis or
development of the offences and an evaluation of what is just and proper for the victims
welfare.

CONCEPT OF VICTIM

The role, importance and visibility of the victim have varied greatly in human societies. These
variations reflect the historical evaluation of legal concepts, as well as diverse approached to the
interpretation of such notions as that of individual responsibility.
The concept of the victim is an ancient one that is found in many cultures and that is inextricably
intertwined with religious sacrifice. Early religious rituals from all parts of the world embody the
idea-and often the practice-of divine, human or animal sacrifice. Epics and mythology offer
numerous examples of symbolic sacrifices of victims. Before societies created law or
rules, law and order originated in the individual. The victimized person himself chooses the
offenders punishment and, if possible, inflicted it. Revenge was the driving force of such
individualist justice, and deterrence was its chief aim. The need for security as well as the desire
to prevent future attacks often meant that pre-emptive raids were conducted. Thus, in early
societies the relationship of criminal and victim basically reflected a raw struggle for power and
survival, and the right of the individual victim to take vengeance was of paramount importance.

DEFINITION OF VICTIM

The connotations of term victim vary in different legal, social, psychological

or criminological contexts. The penal codes of the erstwhile USSR describe
the victim as follows.

Those who have as a direct result of a crime suffered moral physical or

material damage;

1. Those who have suffered physical, moral, or material damage throw and attempted offence;
2. Those whose material damage caused by the crime was made good after the crime, either by the
criminal himself or with the help of Militia or of an individual action;

3. Close relation of person who died as a result of a crime.

Victim Services

The development of new programs and legislation has resulted from the study of victims. Such
programs have included:
Victim compensation programs, in which the state pays some of the financial costs of the victim,
particularly with respect to violent crime
Court services, which provide information and assistance to victims
Crisis intervention and counseling programs for victims, particularly in the case of rape
 Self-protection programs that teach people how to avoid victimization (target hardening) and
how to mobilize as a community to prevent victimization (such as neighborhood watch).

There has also been an ongoing debate about victim's rights, and what those rights ought to be.
Should relatives of victims be allowed to speak and discuss the impact of the crime at parole
hearings or at death penalty hearings? (many states now provide for this measure). Should citizens
be warned when an ex-felon moves into their neighborhood? Some people believe that they
should have the right to know and protect themselves. Others believe that the felon has completed
his punishment and should be allowed the opportunity to rehabilitate himself without potential
harassment from others.

This issue has been particularly debated with respect to "Meghan's Law," a law proposed by the
parents of a child murdered by a child molester. The perpetrator had a prior history of molestation,
and lived in Meghan's neighborhood. The parents maintained that had they known of his past,
they would have taken more precautions. The proposed law, which has been passed in some
states, allows neighborhood residents to be informed when a sex offender moves into their
neighborhood. There has been controversy because some former offenders have been driven from
neighborhoods, and have difficulty finding a place to live--and who have served their sentences.
These issues are far from resolution.

VICTIM AND THE CRIMINAL JUSTICE SYSTEM

One important and basic factor in the administration of criminal justice is the victims decision as
to whether he should invoke the judicial process. There are a number of motives and factors
responsible for the wide gap between the actual volume of the crime and the reports made to the
police about it.

Only in the 1940s did scholarly interest in the criminal-victim relationship develop, although the
founders of criminology had been aware of how crucial it was. Hans Von Hentig, Benjamin
Mendelsohn, and Henry Ellenberger, the last in his study of the psychological relationship
between the criminal and his victims.

It is a parody on the vagaries of the criminal justice systems of the Developing World that inspite
of Thirty years of Independence there has been no conceptual study or empirical research
regarding the victims of criminal offences.

A movement for the recognition of the modern victim of crime as deserving more effective
remedy than the traditional practice of bringing civil suits was begun by the English penal
reformer Margery Fry in 1955. Her call for reform was heeded in New Zealand in 1963, when that
countrys parliament established the first crime compensation tribunal. This board has
discretionary power to award public compensation to the victim or his dependants in the case of
certain specified offences. The next year, Great Britains Tory government announced a similar
but non statuary program. In the United States the first jurisdiction to adopt the compensation
principle was California; which enacted its programs in 1965 and put it into operation two years
later. Since that time, similar or related programs have been established in some thirty states in the
United States and in all the Canadian, provinces. Financial restitution by the offender to the victim
represents another development in the legal handling of the victim, in the United States, at least
forty normal restitution programs are in operation.
THE VICTIM AS VICTIM OF THE CRIMINAL JUSTICE SYSTEM

Students and professionals in the criminal justice system have become increasingly aware that the
victim of a criminal often becomes the victim of criminal justice system as well as once the victim
reports his victimization to the police-the gateway to the criminal justice system-he routinely
faces postponements, delays, rescheduling, and other frustrations. All their means loss of earnings,
waste of time, payment of transportation and other expenses, discouragement, and the painful
realization that the system does not live up to its ideals and does not serve its constituency, but
instead serves only itself. Many believe that the victim is the most disregarded participant in
criminal justice proceedings. In practice, after the victim has reported his victimization and
provided information to the police, he may not hear from the police or the prosecutor for a long
time, if ever, cases are disposed of without any consultation with the victim if and when the
victim is called for the trial, he is treated simply as the witness for the state and is subject to long
delays, postponements, and other frustrating experiences.

Newly focused attention has brought professional recognition to the victims plight at the hands of
the criminal justice system: As a result, innovative proposals have been implemented to create
victim assistance programmes, to provide the victim with legal and social referral services, to
honor his right to be consulted and to offer his opinions when the prosecutor plea bargains with
the accused, and to totally revamp the compensation-restitution idea. Some police departments
report to victims the progress being made in investigating and solving their cases, and
communities may provide such services as rape crisis centers and spouse abuse shelters to assist
crime victims by intervening in the crisis and referring the victims to community and others
resources in the case of rape, the womens movement has spurred victimologists-mostly males-to
give more equitable and balanced attention to the issues surrounding what some have called the
most despicable but least punished crime.

Attention to the victim calls for an examination of the appropriate remedies for victimization. Too
often the remedies offered to poor victims reflect middle-class values. The victims point of view
should be sought when systems are developed for compensating crime victims, and the concept of
relative loss should be introduced in debate and deliberations for compensation.
GRIEVANCES AND PROBLEMS OF VICTIMS

The grievances of the victims can be summarized as follows-

1. Inadequacy of the law in allowing the victim to participate in the prosecution in a criminal case
instituted on a police report
2. Failure on the part of the police and prosecution to keep the victims informed about progress of
the case
3. Inconvenience during interrogation by the police and lengthy court proceeding.
4. Lack of prompt medical assistance to the victims of body offences and victims of accident.
5. Lack of legal assistance to the victim.
6. Lack of protection when the victims are threatened by the offender.
7. Failure in restitution of victim.

Along with these grievances, the victims of crimes faced multifarious problems:
I. Economic strain of the family
II. Change in Social role of dependents.
III Frustration and helplessness leading to suicide.
IV Social stigma.
V Emergence of criminal behavior.

An important aspect of investigating a violent crime is an understanding of the victim and the
relation that their lifestyle or personality characteristics may have contributed to the offender
choosing them as a victim. Please do not misunderstand the previous statement. In no way are
victims being blamed for becoming a victim of a violent crime. Even high risk victims (to be
described shortly) have the right to live how they wish without becoming a victim of the type of
offenses described on this site. Yet the fact remains, that to understand the offender, one must first
understand the victim. Victims are classified during an investigation in three general categories
that describe the level of risk their lifestyle represents in relation to the violent crime that has been
committed. The importance of understanding this in an investigation is directly related back to the
level of risk to the offender during the commission of the crime. This information is important to
the investigation to better understand the sophistication or possible pathology of the offender.

High Risk Victims - Victims in this group have a lifestyle that makes them a higher risk for being
a victim of a violent crime. The most obvious high risk victim is the prostitute. Prostitutes place
themselves at risk every single time they go to work. Prostitutes are high risk because they will
get into a stranger's car, go to secluded areas with strangers, and for the most part attempt to
conceal their actions for legal reasons. Offenders often rely on all these factors and specifically
target prostitutes because it lowers their chances of becoming a suspect in the crime. Therefore, in
this example, the prostitute is a high risk victim creating a lower risk to the offender.

Moderate Risk Victims - Victims that fall into this category are lower risk victims, but for some
reason were in a situation that placed them in a greater level of risk. A person that is stranded on a
dark, secluded highway due to a flat tire that accepts a ride from a stranger and is then victimized
would be a good example of this type of victim level risk.

Low Risk Victims - The lifestyle of these individuals would normally not place them in any
degree of risk for becoming a victim of a violent crime. These individuals stay out of trouble, do
not have peers that are criminal, are aware of their surroundings and attempt to take precautions to
not become a victim. They lock the doors, do not use drugs, and do not go into areas that are dark
and secluded.

CONCEPT OF VICTIMOLOGY IN INDIA

Victimology is science of study of the relationship between victims and violators of law or
offenders. Government has recently reinforced this political commitment in the form of funds for
the National Association of Victim Support Schemes (NAVSS). In 1964, when the United
Kingdom became one of the 1st countries to establish a policy commitment to victims of crime in
the form of criminal injuries compensation Board.

The reports of 1st and 2nd British Crime Surveys have begun to shed some light on the nature of the
relationship between victims and offenders. In particular, attention has been paid to the attitude
that victims have towards the treatment of offenders.

A Law Inadequate in favour of victims

The victim is the forgotten man of our criminal justice system. He sets the criminal law in to
motion but then goes into oblivion. The present code of criminal procedure does not recognize the
right of victim to take part in the prosecution of the case instituted on the basis of police report.
The victim is merely a witness in a State versus case. He has no rights to prefer appeal against the
order of acquittal of the accused by trial court in a criminal case started by State. The State
reserves the discretion not to prefer and also to withdraw from the prosecution even in heinous
offences. The victim of crime becomes the victim of our criminal justice system when the political
motivated investigation agency or prosecuting agency shows lack of interest or apathy in the
matter of investigation or prosecution on extraneous consideration.

Innovative approach of apex court.

The Supreme Court has forged new tools, devised new methods and adopted new strategies for
the purpose of making fundamental rights meaningful even to the victims of crime of crime in
AIR 1995 SC 14, the Supreme Court directed the State of Uttar Pradesh to suspend and start
disciplinary action against two police officers and one medical officer for making perfunctory
investigation of rape case to pay the amount of Rs.2,50,000/- as compensation.

There is plethora of decisions, where Supreme Court awarded compensation to the victims, whose
plight was brought to the notice of the apex court either by themselves or by way of public
interest litigation. Millions of victims of crime, who cannot approach the apex court out of
ignorance of lack of resources are still crying for justice with the aim of protecting the human
rights of victim in our criminal justice system and to fulfill the constitutional obligation. The
Supreme court should ask the Government to confer jurisdiction on the criminal courts by making
statutory provision for the compensation of the victims of crime, irrespective of whether the
accused is convicted or not and to make statutory provision for participation of the victim in
prosecution, along with prosecuting agency in a criminal case instituted on report of police.
Compensation & the need for sensitization of judiciary

Legislation conferred jurisdiction on the criminal courts under section 357(3) of the code of
criminal procedure for awarding unlimited amount of compensation to the victims at the time of
passing judgment of conviction. This provision is not ancillary to other provisions of criminal
procedure code, but in addition thereto. By the landmark judgment in Hari Kisans case AIR 1988
SC 2127 Supreme Court not only awarded compensation of Rs.50,000/- to the victim, but also
directed the subordinate criminal courts to exercise the power of awarding compensation to the
victims of offences in such a liberal way that the victims may not have to rush to the civil courts
for compensation to the victims. Unfortunately, the subordinate judiciary is rarely invoking this
provision to award compensation to the victims, where the accused persons are acquitted of the
charge on benefit of doubt or on any technicalities of laws.

The General Assembly of the United Nations has recommended payment of compensation to the
victims of crime by the State, when compensation is not fully available from the offender or other
sources. Unfortunately, the victims of communal riots, dacoity, arson and rape are not getting
compensation in our present justice system. Since the State is under duty to protect the life, liberty
and security of its citizens, it is bound to pay compensation to the victims of crime irrespective of
whether the accused is convicted or acquitted of the criminal charge. As the government is
indifferent to the crying need of the victims, the apex court directed the Government to set up a
criminal injuries compensation Board, under the supervision of criminal courts for awarding
compensation to victims of all crimes including rape or dacoity, in addition to the directions given
to National Commission for women to evolve a proposal for rehabilitation and compensatory
justice to rape victims.

Payment of compensation to the victims of crime for any injury caused to him has not been
institutionalized under the Indian Penal Laws. Nor any legal right to be compensated has been
created in favour of the victim. In case of irreversible injury monetary compensation is the sole
effective remedy. In India there is neither a comprehensive legislation nor a statutory scheme
providing for compensation by State to offender to victims of crime.

The legislative vacuum of a legal right to monetary compensation for violation of human rights
has been supplemented by the higher judiciary by developing a parallel constitutional remedy.

In AIR 1983 SC 1086 the Supreme Court for the first time in Rudal Sah Vs. State of Bihar made it
categorically clear that the higher judiciary has the power to award compensation for violation of
fundamental rights through the exercise of writ jurisdiction and evolved the principle of
compensatory justice in the annals of human rights jurisprudence.

In Oraon Vs. State of Bihar the Supreme Court direct State of Bihar to pay the sum of
Rs.15,000/- as compensation to Bhama Oraon who was illegally detained for 6 years and kept in
mental hospital when he was not in same.

In Sebastain Vs. Union of India AIR 1984 SC 1826, on account of failure of Government to
produce in habeas corpus petition filed by wives, apex court awarded cost of Rs. 1 lac to be given
to wife of each of detenne.

Compensation to Rape victims :

Right of the rape victim to receive compensation flows from Art.21 of the constitution. Every
court has jurisdiction to grant compensation not only at the final stage of trial but also to award
interim compensation at any interlocutory stage of trial in view of reported judgment in AIR 1996
SC 922. In 1995(1) SCC 14 - Supreme Court in case of Delhi Domestic Working Womens Forum
Vs. Union of India, indicated a scheme to award compensation to rape victim both at the time of
trial i.e., interim compensation to rape victim and at the end of the trial. The Supreme Court
suggested the establishment of criminal injuries compensation Board under Art. 38(1) of the
Constitution of India. The rape victim shall be paid compensation by this Criminal injuries
compensation board or the court and while awarding compensation the following particulars are
to be taken into account to calculate the compensation amount i.e., pain, suffering and shocks
experienced by the victims and also loss of earnings due to pregnancy and the expenses of child
birth if this occurs as a result of the rape.. Unfortunately till now this criminal injuries
compensation Board has not been established by the Central Government.

In D.K. Basu Vs. State of west Bengal ( 1997) I SCC P-4, the landmark judgment Supreme Court
has laid down number of guidelines to prevent custodial violence including rape, and has
recognized that custodial rape could be compensated as the same violated Rights to life and
personal liberty guaranteed under Article 21 of the Constitution.

In bodhi Sattra Goutham Vs. Subhra Chakraborthy the Honble Apex Court has held that the
court of session have every authority to award interim compensation if prime facie case against
the accused has been established that a person had sexual relationship with the prosecutrix on
false assurance of marriage. Supreme Court has directed the guilty person to pay Rs.1000/- pm as
interim compensation to the prosecutrix during pendency of case. This judgment is a precedent for
granting interim compensation to the rape victims.

In case of State of Maharashtra Vs. Madhukar N. Mardikar (1991 ) I SCC 57 Supreme court held
that even a prostitute has a right to privacy and no person can rape her just because she is a
woman of easy virtue.

The duty of Court while trying rape cases :

The police, court and lawyers should come forward to provide all sorts of assistance to victims of
rape. Courts must deal with such cases with utmost sensitivity. The court should examine the
broader probabilities of case and not get swayed by minor contradictions or insignificant
discrepancies in witness statements. The court should also provide adequate financial assistance to
the victim of rape. It could also award interim compensation as in Rathinam / State of Gujarat the
court awarded interim compensation to tribal woman who was illegally raped in police custody in
the presence of her husband. Sum of Rs.50,000/- was provided by the State of Gujarat. Apart from
providing financial assistance the victim should be provided medical, social, psychological
assistance which would help her to come out of her trauma.

U/s. 18(3) of the protection of Human Rights Act 1993 National Human Rights Commission has
powers to advance the cause of compensatory justice to the victims of Torture.
There is ample scope of law reform to protect the victims of sexual offences in general and the
victims of rape in particular. Evidence Act be amended suitably. Evidence of victim be taken in
close room. Defense counsel be prohibited from putting question on past character of victim.
Judges and prosecutors may be sanitized to the need of evaluation of evidence of victims of rape.

Though there is a need of legislation in the field, it is equally essential to implement the existing
provisions. The people should be aware of these laws for their effective implementation. All
concern responsible citizen should take effective steps to implement the provisions under law.

We have to activate our Indian society of victimology. The nongovernmental organization on 14th
August, 1992 has formed a society called as Indian society of victimology in Madras many social
scientists, professionals, research scholars, students & criminal justice functionaries interested in
cause of victims of crime India, a convened by Prof. Chockalingam & decided to start working
under the society named as Indian Society of victimology. He was 1st unanimously elected
president . On 18/09/94 former Judge of Supreme Court of India V.R. Krishna Iyer has
inaugurated the same.

There were 5 symposia organized by Indian society of victimology. First Biennial conference was
orgainsed at Madras from 12th & 14 August, 1994. Govt. of Tamilnadu has set up a victim
th

assistance fund in April, 1995. Tamilnadu is 1st state in India to set up such a fund to assist victims
of violent crimes in pursuance of the recommendation of Indian society of victimology.

There is a need to see for the criminal Justice reforms and victims rights organizations to become
more active. Govt. of Maharashtra women and child development Dept., various Boards and
women commission should become active in formation of the group to help such victims of
crime.

On 14th August 1992, many social Scientists, Professors, Research Scholars, Students & Criminal
Justice functionaries interested in cause of victims of crime met at Dept. of victimology at
University of Madras in India and decided to start an organization in the name of Indian
Society of victimology . He was elected unopposed as President.

CONCLUDING REMARKS

The victim is essentially an inseparable part of crime. Therefore the phenomenon of crime cannot
be comprehensively explained without incorporating the victim of a crime. Crime victim, despite
being an integral part of crime and a key factor in criminal justice system, remained a forgotten
entity as his status got reduced only to report crime and appear in the court as witness and he
routinely faces postponements, delays, rescheduling, and other frustrations. All their means loss of
earnings, waste of time, payment of transportation and other expenses, discouragement, and
the painful realization that the system does not live up to its ideals and does not serve its
constituency, but instead serves only itself. Many believe that the victim is the most disregarded
participant in criminal justice proceedings. It is, therefore, the Indian Higher Courts have started
to award the compensation through their writ jurisdiction in appropriate cases.

MODULE - V

COMPENSATION

INTRODUCTION

Victims compensation has always been the weeping beggar at the door of criminal
justice. Although, it is an age old concept but its development on more scientific lines and
also as branch of criminology has begun since a few decades ago. Several countries have
taken up the different schemes of payment of compensation to their victims of crime. These
are taken through different legislative measures. In India as well there are different statutory
provisions in criminal justice under which the compensation can be awarded to the victim of
crime, viz. Fatal Accident Act, 1855, Probation of Offenders Act, 1958 and Code of Criminal
Procedure, 1973.

In pursuance of the recommendations of Law Commission of India in its report1 a

comprehensive provision for compensation to victims of crime has been inserted in section
357 of the Code of Criminal Procedure, 1973 (herein after Cr. P.C.). According to s. 357 subs.
(1) and sub-s. (3), the court may award compensation to the victim of crime at the time of
passing judgment, if it considers appropriate in a particular case in the interest of justice.
These provisions make the trial courts and the appellate courts competent to award
compensation to the victims of crime only after trial and conviction of the accused. These
powers to award compensation are not subsidiary to other sentence, but it is in addition there
to.2 It is left to discretion of the court to decide in each case depending on its facts and
circumstances. However, the existing provisions of Code are not founding encouraging one.
Any compensation awarded under the cover of this Section at the end of normally protracted
trial spanning over an average of 8 to10 years is not immediately available to the victim as he
must await the appellate round to conclude.

It is pertinent to note that the trial courts have seldom used the powers conferred on
them under s. 357, Cr. P.C., liberally. The provision for payment of compensation has been in
existence for a considerable period of time on the statute book in this country. Even so,
criminal courts have not, it appears, taken significant note of the said provision or exercised
the power vested in them thereunder. The Law Commission4 refers to this regrettable
omission in the following words:

We have a fairly comprehensive provision for payment of compensation to the

injured party under section 545 of the Criminal Procedure Code. It is regrettable that our
courts do not exercise their statutory powers under this section as freely as liberally as could
be desired. The section has, no doubt, its limitations. Its application depends, in the first
instance, on whether the court considers a substantial fine as proper punishment for the
offence. In the most serious cases, the court may think that a heavy fine in addition to
imprisonment for a long term is not justifiable, especially when the public prosecutor ignores
the plight of victim of the offence and does not press for compensation on his behalf.

More than three decades back Krishna Iyer J. speaking for the Court in Maru Ram &
Ors. v. Union of India and Ors.5, in his inimitable style said that while social responsibility
of the criminal to restore the loss or heal the injury is a part of the punitive exercise, the
length of the prison term is no reparation to the crippled or bereaved but is futility
compounded with cruelty. Victimology must find fulfilment said the Court, not through
barbarity but by compulsory recoupment by the wrong doer of the damage inflicted not by
giving more pain to the offender but by lessening the loss of the forlorn. The number of
cases6 where s.357 has been used for awarding compensation is like salt in the flour. Courts
never took it seriously. So taking note of the indifferent attitude of subordinate courts, the
Apex Court in the Hari Kishan case,7 directed the attention of all courts to exercise the
provisions under s.357 of the Cr. P.C. liberally and to award adequate compensation to the
victim, particularly when an accused is release on admonition, probation or when the parties
enter into compromise. The court highlighted the importance of s. 357(3) of the Cr. P.C. in
the following words:

Section 357 of Cr. P.C. is an important provision but courts have seldom invoked it.
Perhaps due to ignorance of the object of it, this Section of law empowers the court to award
compensation while passing judgment of convicting. In addition to conviction, the court may
order the accused to pay some amount by way of compensation to the victim, who has
suffered by the action of the accused. This power to award compensation is not ancillary do
other sentences but it is in addition thereto. It is a measure of responding appropriately to crime as
well as reconcealing the victim with the offender. It is, to some extent, a
constructive approach to crimes. It is indeed a step forward in our criminal justice system.8

While taking cognizance of several cases related to compensation the honourable

Supreme Court observed in Ankush Shivaji Gaikwad v. State of Maharashtra,9 that the
award or refusal of compensation in a particular case may be within the Court's discretion,
there exists a mandatory duty on the Court to apply its mind to the question in every criminal
case. Application of mind to the question is best disclosed by recording reasons for
awarding/refusing compensation.

In 2008, Cr. P.C. was amended and s. 357 A10 was added in which victim
compensation scheme had been introduced. Still, there are number of judgements11 in which
courts are giving no reasons for not awarding compensation and they are passing non
speaking orders. Once again in 2013, new additions namely s.357 B, s.357 C have been
inserted in Cr. P.C.12 S.357 B provides the additional compensation to victims who come
under s. 326 A, 376 D of the Indian Penal Code. S. 357 C gives the directions to all the
hospitals whether they run by govt. or by local authorities that they provide the free medical
aid to the victims of ss. 326 A, 376 A, 376 B, 376 C, 376 D of Indian Penal Code.

Besides that, compensatory jurisprudence has also emerged in the light of human
rights philosophy as a dynamic interpretation of Art. 21 of the Constitution. There are a
large number of reported judgements of Supreme Court as well as High Courts which deal
with the problem of compensation under Arts. 32 and 226, for breach of public law duties,
negligent acts of officers of state, illegal detention, custodial death, rape, torture etc. and
creating a new right by way of interpretation of the constitution in human rights approach.
The courts have adopted these new measures for making the human rights as well as
constitutional rights meaningful, effective and have emerged as the champion of the weak,
poor and underprivileged people. The power of the constitutional courts is not only injunctive
in ambit, but it is also remedial in scope. Our judiciary is not legging behind in exercising
extraordinary constitutional jurisdiction and open a new humanistic compensatory jurisprudence by
awarding payment of compensation in appropriate cases not in all cases.13
In Rabindra Nath Ghosal v. University of Calcutta and Ors,14 this Court held:

The Courts having the obligation to satisfy the social aspiration of the citizens have
to apply the tool and grant compensation as damages in a public law proceeding.
Consequently when the Court moulds the relief in proceedings under Articles 32 and 226 of
the Constitution seeking enforcement or protection of fundamental rights and grants
compensation, it does so under the public law by way of penalising the wrongdoer and fixing
the liability for the public wrong on the State which has failed in its public duty to protect the
fundamental rights of the citizens. But it would not be correct to assume that every minor
infraction of public duty be every public officer would be commend the Court to grant
compensation in a petition under Arts. 226 and 32 by applying the principle of public law
proceeding. The Court in exercise of extraordinary power under Arts. 226 and 32 of the
Constitution, therefore, would not award damages against public authorities merely because
they have made some order which turns out to be ultra vires, or there has been some inaction
in the performance of the duties unless there is malice or conscious abuse. Before exemplary
damages can be awarded it must be shown that some fundamental right under Art. 21 has
been infringed by arbitrary or capricious action on the part of the public functionaries and
that the sufferer was a helpless victim of that act.

Compensation : Meaning and definition

Ubi jus, ibi remedium is the basic principle in the tort that states that there is no wrong
without a remedy and the rule of law requires that wrongs should not remain unredressed.
The compensation constitutes an important remedial measure in tort law and the principles
relating to the determination of damages and compensation in tort are well established. There
are several dimensions to the issue of payment of damages and compensation in the law
relating to torts includes the measure of damages, quantum of damages, assessment of
damages, intention of the wrongdoer, proximity of the cause etc.15

Under the Tort law, in order to claim compensation the tort must be of such a nature as will entitle
the plaintiff to recover damages. Where, therefore, the case is of a nature which:16

(a) does not give rise to a right to the plaintiff to recover damages, or to the existence of the liability
of the defendant, as where the defendant has committed no wrong, whether a breach of contract or a
tort, or
(b) does not occasion any loss or damage, or no cause of action accrues to the plaintiff, as when he
himself is at fault or the damages are too remote, or he has failed to mitigate his damages.

Compensation cannot be granted:

Thus, the plaintiff cannot recover that part of the loss17
(a) which is due to his own contributory negligence; or
(b) of which the defendants conduct is not the cause; or
(c) which is not within the scope of the protection of the particular contract or tort; or
(d) which he should have avoided or mitigated; or
(e) which is too uncertain; or
(f) which is past or prospective, that is, is too remote.

However, the term Compensation in present context means amends for the loss
sustained. Compensation is anything given to make things equivalent, a thing given to make
amends for loss, recompense, remuneration or pay.18 It is a sign of responsibility of the
society which is civil in nature representing a non-criminal purpose and end.19 Compensation,
as distinct from damages20 is used in relation to a wrongful act, which cause the injury.21
Literally, compensation means the money which is given to compensate for loss or injury,
whole purpose of compensation is to make good the losses sustained by the victim of crime
or by the legal representative of the deceased or who has suffered of pecuniary loss or
non-pecuniary loss.

Compensation to the victims of crime means something given in recompense i.e. equivalent
rendered. It is to be note that the whole purpose of compensation is to make good the loss sustained
by the victim or legal representative of the deceased. Generally the term compensation limits itself
to monetary compensation which is calculated on the basis of two head i.e. pecuniary loss and
non-pecuniary loss. 22

According to Oxford dictionary,23 Compensation means to provide something good

to balance or reduce the bad effect of damage, loss, injury etc. According to Blacks Law
Dictionary,24 Compensation means payment of damages, or any other act that court orders to
be done by a person who has caused injury to another and must therefore make the other
whole.

In criminal-victim relationships, compensation concerns in making amends to him; or, perhaps, it is

simply compensation for the damage or injury caused by a crime against him.25 As commonly
understood it carries with it the idea of making whole, or giving an equivalent, to one party and has
no relation to any advantage to the other.26 It is counterbalancing of the victims sufferings and loss
that result from victimization. It is a sign of responsibility a non-criminal purpose and end.27

In the words of the Honble Orissa High Court in Saraswate Parabhai v. Grid Corp. of Orissa, 28
It is true that perfect compensation is hardly possible and money cannot renew a physique frame
that has been battered and shattered, as state by Lord Morris in West v. Shephard29. Justice
requires that it should be equal in value, although not alike in kind. Object of providing
compensation is to place claimant as far as possible in the same position financially, as he was
before accident. Broadly speaking in the case of death basis of compensation is loss of pecuniary
benefits to the dependants of the deceased which includes pecuniary loss, expenses, etc. and loss to
estate. Object is to mitigate hardship that has been caused to the legal Compensation awarded
should not be inadequate and should neither be unreasonable, excessive, or deficient. There
can be no exact uniform rule for measuring value of human life and measure of damages cannot be
arrived at by precise mathematical calculation but amount recoverable depends on broad facts and
circumstances of each case. It should neither be punitive against whom claim is decreed nor it
should be a source of profit of the person in whose favour it is awarded.

In Shantilal case30 and Smt. P. Ramadevi v. C.B. Saikrishna,31 Supreme Court of India held that
the compensation is anything given to make things equivalent, a thing given to make amends for
loss, recompense, remuneration or pay. Therefore compensation means an act of the court which
orders a certain sum of money which a court orders to be paid, by a person whose acts or omissions
has caused loss or injury to another in order that there by the person demnified may receive equal
value for his loss or be made whole in respect of his injury.

Article 9 (5) of the International Covenant on Civil and Political Rights, 1966 states any one who
has been the victim of unlawful arrest or detention shall have an enforceable right to
compensation. The content of this Article 9 (5) is that the victim will have an enforceable right to
compensation.

In Baker v. Willolughby,32 it has been considered that A man is not compensated for the physical
injury, he is compensated for the loss, which he suffers as a result of that injury. Inabilities, which
leads full life, and inability to enjoy those amenities, which depends on freedom of movement and
inability to earn as much as is used to earn or could have earned.

In State of M.P. v. Pehlajraj Dwarkadas,33 the court observed that the term compensation has to
be read as a synonym for damages, the word compensation is only a recompense for the
pecuniary loss suffered by the victims and, the words compensation and damages, in this context
have been known and used as synonymous in the law of tort.

In England observations have been made under which it seems that perhaps, there would be a
distinction between words compensation and damages though in England, these words have
often been treated as synonymous terms. But in India, Legislature has deliberately not used the
English term of damages rather has used the word compensation.
However, the word reparation, restitution and damages have been used in relation to compensation
in judiciary. Reparation refers to the action of compensating the wrong doing
and damages done. The term restitution means the responsibility borne by the offender
towards the victim by restoring his/her position and rights that are damaged or destroyed. The
word damages is often used for recovering the pecuniary recompense awarded in reparation
for loss or injury caused by a wrongful act or omission or used for the pecuniary reparation due to
loss or injury sustained by one person through the fault, negligence of another.

In operation of case, namely, Klaus Mittelbachert v. East India Hotels Ltd:34

A man has a legal right in his own life. As he has a legal interest entitling him to make a complaint
if the integrity of his life is impaired by tortious acts not only in regard to pain, suffering and
disability, but also in regard to continuance of life for its normal expectancy. A man has properly a
legal right that his life should not be shortened by tortious act of another. His normal expectancy of
life is a thing of temporal value, so that its impairment is something for which damages should be
given to that.

In Halbutts Plasticine Ltd. v. Wayne Tank and Pump Co. Ltd:35

Each and every case depends on its own facts. It being remembered, first, that the purpose of the
award of damages is to restore the plaintiff to his position before the loss occurred or damage
caused and secondly, that the plaintiff must act reasonably to mitigate his loss. If the article
damaged is a motor car of popular make, the plaintiff cannot charge the defendant with the cost of
repair when it is cheaper to buy a similar car in the market. On the other hand, if no substitute for the
damaged articles is available and no reasonable alternative can be provided, the plaintiff should be
entitled to the cost of repair in the eye of law.

The Forgotten Man - Victim

The victim is essentially an inseparable part of crime. Therefore the phenomenon of crime cannot
be comprehensively explained without incorporating the victim of crime. Crime victim, despite
being an integral part of crime and a key actor in criminal justice system, remained a forgotten
entity as his status got reduced only to report crime and appear in the court as witness36. Many
believe that the victim is the most disregarded participant in criminal justice proceedings.37 It is,
therefore, the Indian higher courts have started to award the compensation through their writ
jurisdiction in appropriate cases.38
However, it is the shortcoming of our present jurisprudence that somewhere it provides the accused
almost all the facilities like right to fair trial, bail, legal aid etc., but the victim is devoid of any
respite in socio-economic terms. Time to time courts has directed the State authorities to provide all
necessary facilities and ensure that human rights of criminals are not violated.39 And the victims of
crime are entirely overlooked in misplaced sympathy for the criminal. The guilty man is lodged,
fed, clothed and entertained in a model cell at the expense of the State.40

The victim instead of being looked after is contributing towards the care of prisoners during his stay
in the prison. Krishana Iyer, J. in Rattan Singh v. State of Punjab,41 aptly highlighting the apathy
of law to a victim of crime, observed:

It is a weakness of our jurisprudence that victims of crime and the distress of the dependents of the
victim do not attract the attention of law. In fact, the victim reparation is still the vanishing point of
our criminal law. This is the deficiency in the system, which must be rectified by the legislation.

Few decades ago the criminal justice system adopted the idea of compensation for victim. Earlier it
would have been difficult to find any criminological agency (official, professional, voluntary or
other) or research group working in the field of victims of crime, or which considered crime victims
as having any central relevance to the subject apart from being a sad product of the activity under
study-criminality. To officials the victim was merely a witness in the court case; to researchers
either the victim was totally ignored or was used as a source of information about crime and
criminals.42 However, in ancient civilizations the victim of an offence was the central figure in any
criminal setting. In our own pre-modern polity, the injured or the victim had a vital say in matters
connected with restitution or retribution. But slowly, as the one civilization gave way to another,
private revenge public justice with the govt. taking on the responsibility for meting out justice, the
offender has become the prima donna and the victim is completely forgotten. Penologists, jurists,
psychologists, sociologists, socio-psychologists, psychiatrists, criminologists, social-workers, and
the government vie with each other in finding explanations, reasons, excuses, why a crime is
committed. So they give stress only and only on the crime and criminal.43

Victim is totally ignored. He enters the gateway to criminal justice. He is faced with interrogation,
delays, postponements, court appearance, insults at the hands of people including police officer and
lawyers, loss of earnings, waste of time and frustration and painful realization dawns on him that
the system does not live up to its ideals and does not serve him-it serves only itself and its minions.
If the victim happens to be a woman her lot is much worse.44

The assumption that by punishing the offender the victim receives justice is of dubious value
today because of the decreasing number of successful investigations and the still smaller number of
convictions in the criminal justice system. If the victim gets back his lost property he is lucky; if he
is not harassed and humiliated in the investigative and trial procedures he should thank his stars.
Given the sickening delay, corruption and technicalities in proof, many victims tend to keep away
from reporting crimes and sometimes take recourse to private vengeance. Either way, the criminal
justice system suffers in not being able to prevent crimes or to punish the guilty when crimes occur
in society. The long-term implications of the situation are indeed alarming for public security,
human rights and governmental accountability.45

Basically, the purpose of criminal justice system is to safeguard the rights of the individuals and the
state against the intentional invasion of the criminals who pollutes the society by violating societal
norms. Several state agencies have always worked in protecting the rights of the criminals and
victim is not provided any compensatory relief. However, the idea of compensation to victim of any
wrong is connected with the legal system in two ways;

firstly, the legal system has to regulate the relationship between the victim and the wrongdoer
and
secondly, it has to regulate the relationship between the victim and administration of
justice. It becomes imperative to understand the basic concept of victim.

The Apex Court in Rattiram & Ors. v. State of M.P. 46 has aptly emphasized on protection of
victims rights:

Criminal jurisprudence, with the passage of time, has laid emphasis on victimology
which fundamentally is a perception of a trial from the view point of the criminal as well as
the victim. Both are viewed in the social context. The view of the victim is given due regard
and respect in certain countries. It is the duty of the court to see that the victims right is
protected.

Recommendations of 154th Law Commission of India

The 154th Law Commission Report on the Cr.PC. devoted an entire chapter to Victimology in
which the growing emphasis on victims rights in criminal trials was discussed extensively as
under:

1. Increasingly the attention of criminologists, penologists and reformers of criminal justice

system has been directed to victimology, control of victimization and protection of victims of
crimes. Crimes often entail substantive harms to people and not merely symbolic harm to the social
order. Consequently the needs and rights of victims of crime should receive priority attention in the
total response to crime. One recognized method of protection of victims is compensation to victims
of crime. The needs of victims and their family are extensive and varied..

1 The principles of victimology has foundations in Indian constitutional jurisprudence. The

provision on Fundamental Rights (Part III) and Directive Principles of State Policy (Part IV) form
the bulwark for a new social order in which social and economic justice would blossom in the
national life of the country (Article 38). Article 41 mandates inter alia that the State shall make
effective provisions for securing the right to public assistance in cases of disablement and in other
cases of undeserved want.

So also Article 51- A makes it a fundamental duty of every Indian citizen, inter alia to have
compassion for living creatures and to develop humanism. If emphatically interpreted and
imaginatively expanded these provisions can form the constitutional underpinnings for
victimology.

2 However, in India the criminal law provides compensation to the victims and their dependants
only in a limited manner. Section 357 of the Code of Criminal Procedure incorporates this concept
to an extent and empowers the Criminal Courts to grant compensation to the victims.

In India the principles of compensation to crime victims need to be reviewed and expanded to cover
all cases. The compensation should not be limited only to fines, penalties and forfeitures realized.
The State should accept the principle of providing assistance to victims out of its own funds

Definition of Victim
The connotations of term victim vary in different legal, social, psychological or criminological
contexts. The penal codes of the erstwhile USSR describe the victim as follows. 47

1. Those who have as a direct result of a crime suffered moral physical or material damage;
2. Those who have suffered physical, moral, or material damage throw and attempted offence;
3. Those whose material damage caused by the crime was made good after the crime, either by the
criminal himself or with the help of Militia or of an individual action;
4. Close relation of person who died as a result of a crime.

Justification For Victim Compensation

Victim compensation is a novel idea and if successfully meted out it retains the equity
between the injured and the injurer. Victims ego gets satisfied and he feels sense of
belongingness and security in the society. The modern world has almost discouraged the
reimbursement to the victim by offender or his family because the state sponsored
punishment supplanted victim and family reparations. The restitution has replaced by
punishment.55 As justice should not only be done but it must be seen to have been done,
therefore according to punishment to the offender or violator of the rights be it may legal
rights, fundamental rights or human rights, of an individual is just the former part of justice
i.e. the justice has been done by punishing the culprit. But the later part that it must be seen to
have been done still requires something more to be done. It requires just not only punishment
to the accused but caring for the victim and protection of his rights and supporting him in
times of distress.

The idea of victim and compensation to such victim is not new but was existing in the
ancient time, which got lost in the later period when the state emerged focusing primarily on
retribution on behalf of a victim by itself. The later criminal justice system due to its over
emphasis on the offender and his rights, lost right of the victims. After Independence, we the
people of India devised for our self and excellent piece of state craft in the form of
constitution of India, wherein due to the commitment to the human dignity, we classified
certain rights as fundamental rights was done and granting of power to the various wings governing
we the people under the expectation that they shall never toy with these basic
rights, took place. Apart from it, India became signatory to various international covenants
and conventions with regard to the human rights which also warrant the state to take care of
the human rights and other rights mentioned therein which are primarily indispensable so far
as the human being is concerned.