CHAPTER I

INTRODUCTION

1.1 Introduction

Victims of crime are important players in criminal justice

administration both as complainant/informant or as witnesses for
the police/prosecution. Despite the criminal justice system being
heavily dependent on the victim, it has however been more
concerned with the offender and his interests almost
subordinating or disregarding the interest of victim. In the civil law
system generally the victims enjoyed a better status in
administration of justice. Towards the last quarter of the twentieth
century, the common law realized the adverse consequences
arising from this inequitable situation and enacted laws giving
rights of participation and compensation to the victims. In the
Constitution of many countries, victims’ rights have been
recognized by making necessary changes in criminal justice
procedures. Victim’s participation in plea bargain negotiations has
been shown to contain their vengeful instincts, decrease their
assessment of the system being too lenient on criminals and
inculcate feeling of fairness in the whole process. Increased victim
satisfaction will in effect enhance the efficiency of the criminal
justice system by ensuring his future support to the system. 1

In the context of criminal justice system there are victims of crime and
also victims of abuse of power. These days, the study of criminal law
would remain incomplete without taking into consideration the
circumstances and situation of the victim. The victim is one of the
central figures in the criminal process that deserves the attention of
the society. The criminal justice system, without the cooperation of
the victim of crime and victims of abuse of power cannot work. The
victim has due concerns in the administration of criminal justice.
Victim puts forward complaint to competent authority and sets the

1 Justice Malimath Committee Report (2003) on Criminal Justice Reforms constituted

by the Government of India (Ministry of Home Affairs, New Delhi), available at:
http://mha.nic.in/pdf/criminal_justice_system.pdf.

1
criminal law into motion. During trial he provides relevant evidence to
the court and is principal witness. “Witnesses” as Bentham said “are
the eyes and ears of justice”. If the victim/witness is incapacitated
from acting as the eyes and ears of justice, the trial gets paralysed
and cannot be called as a fair trial.

Universally efforts are being made by the States collectively and

independently to enhance the role of the victims in the criminal
justice system. Major amendments have been made in the criminal
procedures to advance various rights to such victims of crime. The
involvement of the victims of crime is required for reporting of crime,
investigation of the case, trial of accused, determining the sentencing
and even in aftermath of the sentencing i.e. restoration and
rehabilitation of victim and also the convict. A number of studies have
proved that while some victims may prefer not to report the crime, or
set the criminal law in motion for some obvious reasons, there are
others who actively participate in the criminal proceedings against the
offender. Globally it is felt that there is a need to provide victims their
participatory rights to secure justice, restitution and rehabilitation.
Many countries have assured to specifically accord participatory
rights to the victims of crime. 2

1.2 Victimology – Meaning and Concept

The word “victimology” has been derived from a Latin word Victima
and a Greek word Logos which means science of victims. The term
was developed by a French lawyer in the middle of twentieth
century 3. It is basically a study of crime from the point of view of
victims suffering from physical injury or economic loss. Defining
Victimology Marvin E. Wolfgang stated that victimology is the

2. Robert C. Davis et al., Victims of Crime, Sage Publications, U.S.A, 2007, p. 278.
3 The term Victimology was developed by Benjamin Mendelson.

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scientific study of the victims and process of etiology and
consequences of victimisation.

Victimology is relatively a new study in the field of criminal law.

Victimology is concerned with the role of victims in the criminal
justice system, their rights and deals with protecting their dignity and
human values. Victimology is an academic scientific discipline which
studies data that describes phenomena and causal relationships
related to victimizations. This includes events leading to the
victimization, the victim’s experience, its aftermath and the actions
taken by society in response to these victimizations. Therefore,
victimology includes the study of the precursors, vulnerabilities,
events, impacts, recoveries, and responses by people, organizations
and cultures related to victimizations 4.

Victimology is the thorough study and analysis of victim

characteristics and may also be called as ‘victim profiling’. The
reason why victimology is important is that the victim constitutes
roughly half of the criminal offence and as such, is as much part of
the crime as the crime scene, weapons and eye witnesses. This is
especially true when we are presented with a live victim and may be
able to provide the best behavioural and physical description of the
offender 5.

Victimology helps in gaining knowledge of consequences, impact of

crime on victims of crime. Getting full and adequate information
pertaining to various needs of victims is the foremost requirement for
providing an effective criminal justice system. Crime victims often

4 John P. J. Dussich, Associate Professor, Criminology Department, California State

University, Fresno and Director, Tokiwa International Victimology Institute, Tokiwa
University Victimology Graduate School, Japan, “131st International Senior Seminar
Visiting Experts’ Papers”, Resource Material Series no. 70, available at:
www.unafei.or.jp.
5 Prakash Talwar, Victimology, Isha Books Publishers, New Delhi, (2006), p. 1.

3
suffer physical, financial and psychological trauma that persists long
after their victimization. Intense and concrete feelings of dejection,
distress, anger, fear, anxiety, isolation, low self-esteem, helplessness,
sleep disturbances, alienation, emotional distress, other anxiety-related
symptoms and depression are common reactions after the commission
of a crime against the victim. Victimization put the concerned victim in
a state of dilemma and the mind of victim thus lose its equilibrium
resulting in further deterioration of health both mental and physical.
Therefore a meaningful study on victimology needs to focus on all these
significant facets pertaining to criminal justice system to meet the ends
of criminal justice system on the whole.

The study of victimology attempts to discuss victims in various crime

situations like victims of violent crimes, victims of Socio-Economic
offences, victims of terrorism, victims of organized crimes, victims of
international crimes, victims of vulnerable class like women victims of
sexual offences, sexual harassment, domestic violence, acid attack,
trafficking, prostitution, outraging the modesty of women, victims of
voyeurism, stalking etc., child victims of abuse, trafficking, child
pornography, prostitution, child exploitation etc, victims of
disadvantaged class like poor, socially/educationally backward.
‘Vulnerability and Fragility’ refers to those conditions whether it be a
physical, psychological, social, economic condition wherein a person
or a group of persons has weaknesses which would make them more
fragile. It means those sections of the society which are more prone to
be victimized as women and children.

Victimology helps in knowing the causation of victimizations,

commonly referred as ‘Victimogenesis’. It simply refers to the factors
relating to the origin of victimization. Similarly it also provides basis
for the study of contributory factors relating to victimization. That is

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commonly known as ‘Victim Precipitation’ which means study of
situations where the victim causes, directly or indirectly, wholly or
partly, their own victimization. ‘Victimization’ refers to an incident or
an event whereby grave violation of human rights takes place where
human beings, communities and institutions are damaged or injured.
Human ethics and human rights violation leads to a situation wherein
feelings of hatred destroy the moral fabric of the society. Human
rights aim to protect the dignity of all human beings and unity and
integrity of a nation. Human rights are not the gift of any high
authority. The law only recognize and regulate them.The study of
victimology also provides basis to study law and its various aspects
pertaining to securing justice to victims of crime. Victimology is more
concerned with protection of human dignity, human values, human
ethics, code of conduct in society and rights of an individual which
must be protected in the society by the agency of State.

The study of victimology provides for an initiative to put the victim in

the same position as was enjoyed by the victim prior to his/her
victimization. It is the duty of the State and the society to again bring
the feelings of mutual trust after victimization. This is also known as
victim-offender reconciliation, restorative justice, victim-offender
dialogue, victim-offender conferencing, victim-offender mediation. The
victim and the offender are joined by their family members,
community members or other socially respectable persons. Under this
process, the offender and the victim talk to each other about the
crime, the effects of such crimes relating to victimization and the
effects it had on their lives of the victims and their family members.

Victimology is concerned with wide range of issues concerning victims.

It investigates the relationship between the offender and
victim/victims. It also deals with the process of victimisation, of being

5
a victim, and in this context directs much of its attention to the
problems and miseries of victim. The victim suffers short-term or long-
term damage of an economic, a social, a physical, mental or moral
nature, a damage which is almost totally overlooked by
institutionalised social control, such as Law, Courts, Public
Prosecutors and last but not the least by the system itself. The victim
of crime is remarkably reluctant to openly put forward demands for
his redress or relief for violation of his rights 6.

1.3 Interrelationship of Criminology, Penology and Victimology

The concept of crime is not new it is rather quite old. We can say
crime existed right from the start of mankind. The old societies were
having certain traditions and rules which were followed by the
communities. ‘A tooth for tooth and an eye for an eye’, the theory of
retribution/retaliation/vengeance etc. was present in some of the
primitive societies. Miller says that a crime is the commission or
omission of an act which the law forbids or commands under the pain
of punishment by the State by the proceedings under its own name.
Law, according to Austin is the command of the sovereign. So a wrong
which is pursued by the sovereign or his subordinates is a crime.7
Kenny says that crimes are wrongs whose sanction is punitive and in
no way remissible by a private person; but is remissible by crown
alone, if remissible at all. 8

In the traditional societies, private vengeance rule was there in which

the burden of protection against crimes and of punishing the
offenders rested with the individuals against whom the offence had

6 Hari Om Gautam, Victims of Crime and the Law, Regal Publications, New Delhi, 2011,
p. 5.
7 Lectures on Jurisprudence, XXVII.
8 Kenny, Outlines of Criminal Law, The Macmillan Company, New York, 1907.

6
been committed. It was only after the societies got organized that
crime was taken as an act against the society as a whole and against
the State as particular. Now, it is the society and State which is
considered to be the proper authority to bring the culprit to book.

In medieval period human thinking was dominated by religious

mysticism and human relations were controlled and regulated
through myths, superstitions and religious beliefs. Little attention was
given to motive, environment, psychology of the offender in the
causation of crimes and relatively less concern was shown towards the
victims of crime and abuse of power. This situation prevailed till the
end of seventeenth century. Thereafter, with the change of human
thinking, the concept of crime was altogether changed as more
reference was started to be given to the real crime causations and
providing proper attention towards the victims of crime and abuse of
power 9. Thus finally it paved the way for a new branch of knowledge
that today is known as victimology.

It all started with the development in the field of criminology which

ultimately leads towards the attention of the society towards victim
oriented studies. The father of modern criminology, Cesare Bonesana
Marchese De Beccaria, an Italian criminologist, started studying the
systematic and scientific study of criminology for the very first time.
He started the scientific study of criminals. He gave concrete results of
his scientific investigation.

In Europe, the seventeenth and eighteenth century was dominated by

religion and church was having the maximum powers. In political
sphere, thinkers such as Hobbes and Locke were concentrating on
social contract as the basis of social evolution. Scientific knowledge

9 N.V. Paranjape, Criminology and Penology with Victimology, Central Law Publications,
Allahabad, 2012, pp. 40-48.

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was at rudimentary stage. The concept of crime was not understood in
a scientific manner, it was rather vague and obscure. There was a
general belief that man’s actions were controlled by some super
natural power as man himself was not able to do the concerned act
termed as an offence. It was generally believed that man commits
crime due to influence of some external spirit called ‘demon’ or ‘devil’.
Thus an offender commits crime due to influence of that external
factor which was called as super power. No attempt was made to
probe into the real cause and the factors of crime causations. The Pre-
classical thinkers considered crime and criminals as an evidence of
the fact that the individual was possessed of some evil. These thinkers
considered that the super spirit is present everywhere and they
considered the omnipotence of spirit. Trial by battle was common
mode of deciding the fate of criminal. The right of the society to
punish the criminal was, however, well recognized 10. The offender was
regarded as a person who could only be cured by torture and pain and
suffering as ultimately the concerned soul is benefited thereby 11.

In India, since the time of Manu it has been repeatedly argued that
trials by ordeals are the creation of Brahma and have been practiced
by gods, great sages and all thoughtful persons. Medhatiti further
pointed out that ordeals have worked very efficiently. In India
judgment by Divine Ordeal was given in Yajnavalkya Smiriti i.e by fire,
water, poison, balance and Kosa.

During the middle of eighteenth century Cessare Beccaria gave his

theory of criminality by rejecting the hypothesis that the evil spirit is
present everywhere in the universe. His study proved that the mind of

10 Criminology Teaching Material prepared by Ms. Glory Nirmala, under the sponsorship
of the Justice and Legal System Research Institute, 2009, available at
http://ethiopianlaw.weebly.com/uploads/5/5/7/6/5576668/ criminology.pdf.
11 Supra note 9.

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an individual plays an important role in the commission of a crime
and attributed the concept of free will of an individual in the
commission of a crime. He further emphasized the Pain and Pleasure
Theory. According to him a man has power of reasoning, with this
power he is distinguished from other creatures of nature. Only the act
is to be seen and not the intention of the offender. It is the physical
act of an individual and not his criminal mind which resulted into the
commission of crime or a wrong. The offender takes pleasure by giving
pain to other persons. So pain is also to be inflicted on him. So,
indirectly victim concern studies initiated thereby. Prevention of crime
is better than punishing a person as it served no purpose.

The theory developed by Beccaria was due to the writing of the people
like Rousseau, Montesque, Bacon and Hume. His work, Essays on
Crimes and Punishment received worldwide recognition. He raised his
voice against severe penalties as torture or abuse of power and death
penalty. The major shortcoming of the theory is that it was based on
the hypothesis of free will. He relied only on the physical act/wrong
committed by a person without putting any attention to the guilty
mind of the said person. Further Beccaria supported the concept of
equal punishment for same offence thus making no distinction
between first offenders and the recidivists or habitual offenders who
deserved more punishment for the repetitive crime.

Due to the major short comings in free will theory, it did not survive
and soon it was felt that treating first offenders and the recidivists
alike, a big mistake was committed. Certain wrongdoers in the society
such as minors, idiots, insane or incompetent had to be treated
leniently irrespective of the similarity of their criminal act because

9
these people were incapable of appreciating the difference between
right and wrong 12.

With the development of behavioural sciences, the monogenetic

explanation of human conduct lost its validity and a new trend to
study the genesis of crime was adopted. By the nineteenth century,
certain French doctors were successful in establishing that it was
neither free will of the offender nor his innate depravity which
actuated him to commit crime but the real cause of criminality lay in
the anthropological features of the criminal 13. The main exponents of
this school were three eminent Italian criminological jurists, namely,
Cesare Lombroso, Raffaele Garofalo and Enrico Ferri 14.

Lombroso was the first criminologist who made an attempt to

understand the personality of offender in physical terms. He employed
scientific methods in explaining criminal behaviour and shifted the
emphasis from crime to the criminal. His theory was that the
criminals were physically different from normal people and possessed
few physical characteristics of inferior animal world. Goring, Gabriel
Tarde etc. had criticized him because it is sought of foolish thing to
convict a person only on the basis of his appearance. This theory
vanished with the passage of time. The assumption that there is some
nexus between atavism and criminal behaviour had no scientific
basis. Criticising Lombrosian theory, Professor Sutherland observed
that by shifting attention from crime as a social phenomenon to crime
as an individual phenomenon, Lombroso delayed for fifty years the

12 Retrived from http://www.slideshare.net/aika92TD/sharon-classical-and-

neoclassical-schools.
13 Supra note 10.
14 Supra note 9.

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work which was in progress at the time of its origin and in addition,
made no lasting contribution of its own 15.

Enrico Ferri (1856-1928) believed that factors such as emotional

reactions, social infirmity or geographical conditions also play a vital
role in determining criminal tendencies in men. His main contribution
is his work, The Law of Criminal Saturation. This theory presupposes
that the crime is the synthetic product of three main factors:
geographical, anthropological, psychological or social. Ferri proved
that mere biological reasons were not enough to account for
criminality. He firmly believed that other factors such as emotional
reaction, social infirmity or geographical conditions also play a vital
role in determining criminal tendencies in man. He emphasized that
criminal behaviour is the outcome of various factors having their
combined effect on the individual. According to him the social change
which is inevitable in a dynamic society, results in disharmony and
conflict. As a result of this social disorganization takes place. In a
wake of such rapid social changes, the incidents of crime are bound to
increase. The heterogeneity of social conditions destroys the congenial
social relationship, creating a social vacuum which proves to be fertile
ground for criminality 16.

More recently, with the development of human psychology there is

greater emphasis on the study of emotional aspect of human nature.
This branch of knowledge has enabled modern criminologists to
understand the criminal behaviour of offenders in its proper
perspective. Professor Gillin, has therefore, rightly remarked that the
theory of modern clinical school on the side of crimogenesis
presupposes offender as a product of his biological inheritance

15 Supra note 10.

16 Supra note 9.

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conditioned in his development by experiences of life to which he has
been exposed from infancy upto the time of commission of crime.
Thus, clinical school takes into account variety of factors. It further
suggests that the criminals who do not respond favourably to
correctional measures must be punished with imprisonment or
transportation for life while those who are only victims of social
conditions should be subjected to correctional methods such as
probation, parole, reformatories, open-air-camps etc. Thus briefly
speaking, individualization has become the cardinal principle of
criminology. The main theme of clinical school is that personality of
man is a combination of internal and external factors, therefore,
punishment should depend on the personality of the accused 17.

As civilization advanced, new ideas regarding individual rights and

duties towards fellow human beings developed and crime was
considered as crime against society and the State. The sociological
aspect about the evolution of society is that first of all individual came
into being then families thereafter clans, after that society and then
the State (earlier it was police State but now the concept of welfare
State is there). One of the basic criticism against the present system is
that it has failed to protect the society against rising incidents of
crime 18.

Victimology is the latest branch of criminology which deals with the

study of victims who suffer at the hands of wrongdoer. Criminology
is the study of crime and criminals. It aims at discovering the
causes of criminality and effective measures to fight against crimes.
Penology is associated with criminal justice policies pertaining to

17 Ibid.
18 An address by Justice S. Rajendra Babu, Chairperson, NHRC, on the Foundation Day
Function of National Human Rights Commission (12th October, 2007) at FICCI
Golden Jubilee Auditorium, New Delhi.

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punishments, modes of punishments, forms of punishments etc.
Victimology, according to some thinkers is a branch of criminology
which is concerned with victims of crime. Though there is an
interrelation between criminology, penology and victimology, yet
there is need to give specific attention to study victimology.

As such, issues in victimology, are central to the victim and is

required to be studied in the wider conspection of criminal justice
system along with criminology and penology. The adjective law of
evidence and procedural law required to respect rights and assure
meaningful remedies to the victims in a dignified manner.

1.4 Historical Developments in Victimology

The European countries suffered countless hardships in the shape of

deaths and loss to property during Second World War. After the end
of war some eminent scholars started exploring the concept of
victimology as an independent study other than criminology. The
scientific and technical research pertaining to victimology can be
traced back to 1950. Till then the criminologists were focusing their
attention towards the wrong doers and crimes itself. Then the
criminologist shifted their focus towards the victims of crime and
abuse of power. People like Mendelson and Von Hentig, started the
research in that direction and began to study the victims of crime. 19

In 1960s movements pertaining to victim compensation and

rehabilitation started across the globe. In Europe, the Convention on
the Compensation of Victims of Violent Crimes, 1983 incorporated the
essential rights of victims. The Council of Europe recommended
changes and modifications in criminal justice by incorporating victim’s

19 K.B. Agrawal (Prof.) and R.K. Raizada, (Prof.), Modern Thoughts on Victimology and
Crimes, A Comparative Study, University Book House Pvt. Ltd., Jaipur, 1997, p. 1.

13
rights in every stage of criminal proceedings. Following this
recommendation, many countries enacted laws aimed at providing
increased participation of the victims of crime in the criminal justice
process. For example, the Criminal Injuries Compensation Act, 1995 of
the U.K., the Victim and the Witness Protection Act, 1982 of the USA,
the Victims’ Rights and Restitution Act, 1990 of the USA, etc. In an
informative report "Criminal Justice: The Way Ahead" presented to the
British Parliament in February 2001, the UK Home Department made
the following recommendation for reforms in the criminal justice
system with the observation:

We will put the needs of victims and witnesses at the heart of

the criminal justice system and ensure they see justice done
more often and more quickly. We will support and inform them,
and empower them to give them best evidence in the most
secure environment possible 20.

The history of crime is very old and crime existed since time
immemorial. According to some philosophers Civilization is supposed
to have come into existence from that very day when man started
thinking that he is naked. It is from then that the concept of crime
has evolved. The earlier societies had some rituals and customs which
were followed by all members of the respective society. ‘A tooth for
tooth and an eye for an eye’, the theory of retribution or retaliation or
vengeance etc. was present in old days.

In ancient times, the Babylonian Code of Hammurabi (more than four

thousand years old) is often taken as the first legal Code that provides
even compensation to the victims. The position of victim was that the
victim was given priority over the offender. Each crime included
different modes of restitution. Like if a theft of goods in transit was

20 “Witness Protection Rights, Needs and Benefits Required to Ensure Effective Victim
Testimony” by Justice M. Jagannadha Rao, available at:
http://www.sabrang.com/cc/archive/2005/dec05/humanrights.html.

14
committed then the restitution was five times more than the amount of
goods, like wise if criminal breach of trust was committed by an
employee he was bound to make restitution three times more than the
amount. There were also provisions, that if the thief was not traced or
identified, then the State has to pay the amount of restitution if the
victim had itemized his property in the presence of God 21. (The legal
document also provides that if the brigand has not been taken, the
man plundered shall claim before God what he has lost; and the city
and sheriff in whose land and boundary the theft has taken place shall
restore to him all that he has lost). The Code of Hammurabi also
provided that if a man has committed robbery and is caught then the
punishment of death is to be given. But if he is not caught then the city
mayor shall replace whatever the man who was robbed had lost
provided the robbed man declare what he lost in the presence of God.
And if in the process of robbery the death has been caused then the
city mayor to provide one munch of silver to his heirs.
The penal processes adopted by many countries for years relied mainly
on the deterrent and retributive aspects of punishments. In some
situations law was such as to compensate the victim and not to provide
severe punishment to the offender. And in those cases the state plays
the role of arbitrator. In the codes of all archaic civilisations, the
amount of redress was to be fixed as per the discretion adopted by the
injured party. The penal laws were more akin to the law of torts. The
person injured proceeds against the wrongdoer by an ordinary civil
action, and recover money damages if he succeeds 22.Therefore many
offences as theft, assault, libel, slander etc were treated as torts
wherein compensation was paid to the victims if he succeeds in proving
damages to them.

21 Supra note 6 at pp. 54-55.

22 Sir Henry, S. Maine, Ancient Law, Oxford Library Press, 1946.

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During the eleventh century, the victim had a key position in common
law and was responsible for the apprehension, charge and prosecution
of offenders. This system was known as private prosecution and the
victims controlled every aspect of judicial process including
punishment (Kirchengast, 2006). This was referred as the golden age of
the victims as they exercised their rights and played major role in the
criminal justice process. The Saxons and the Germans introduced the
use of wergild, which means that they renounced a vendetta after a
murder or serious bodily injury, provided that the offender
compensated the victim or his family (Schaffer, 1968; Alline, 2001). The
agreement between the offender and victim or his clan put an end to
any further violence. But 13th century witnesses the decline of the
victim’s role and rights. There were thoughts that the crime was
primarily against the society rather than an individual. So aftermath
the commission of crime the payment of compensation was to be paid
by the offender rather than by the State. From the 17th Century
onwards, parliamentary sovereignty grew and the king becomes less
influential personally. Instead he was seen as a figure of sovereignty.
Laws were passed by legislature and were no longer passed by a king
alone 23.
There is no society in the world without crime. The concept of law is
essentially concerned with the maintaining of law and order situation
and can be said to have been started with the jurisprudential aspect
of Social Contract Theory. Under that theory two pacts were signed
and these are first, pactum unionis (agreement between the general
crowd to live together) and the second, pactum subjectionis
(agreement between subjects and the King under which subjects
surrendered some of their rights to the King whose ultimate duty was

23 G.S. Bajpai, Criminal Justice System Reconsidered, Victim & Witness Perspectives,
Serial Publications, New Delhi, 2012, pp. 2-3.

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to protect them under whatever circumstances). Crime is considered
as a wrong the remedy of which is the punishment of the offender at
the instance of State or the society. It is therefore, considered as an
offence against the society and ultimately against the State.

In India, Manu (ancient law giver) clearly says that if limb is injured
or a wound is caused or blood flows, the assailant shall be made to
pay for the expenses incurred on cure as a whole. He further says
that he who damages the goods of another, be it intentionally or
unintentionally, shall give to the owner a kind of fine equal to the
damage 24. To make it more clear the maxim- tooth for tooth and an
eye for an eye based on the retributive theory of punishment gives
the victim a kind of relief to satisfy his/her vengeance by punishing
the wrong doer. The compensation to crime victim is not considered a
punishment to the offender. It has been an obligation on the part of
the society to re-impose faith and confidence on the victim which was
lost due to the offender’s act of delinquency and crime.

The protection of the human dignity is the responsibility of the State

machinery. It is the State which is responsible for the protection of all
human beings and unity and integrity of a nation. If the human
dignity of an individual is not respected that means that the individual
might be victimized. The violation of human ethics and code of
conduct often leads to anarchy. The institution of State is having the
sole responsibility to maintain law and order situation. If it is so only
then the peace and security can be maintained. The obligation to
protect life, liberty and property of the citizens is on the institution of
State. State is thus duty bound to protect the citizens and to put the
offender behind the bars and to bring him to book. According to

24 The Laws of Manu in Manusmruthi, Chapter VIII, verse 287, available at:
www.legalserviceindia.com.

17
Martin Luther King injustice anywhere is threat to justice everywhere.
Justice is not only to be delivered but also must be shown to have
been delivered. If any where there is violation of standard norms of
society that would mean that there would be chaos. It simply means
that threat to justice has been posed and such a situation will also
adversely affects the law and order situation and would result in great
loss to human life and property resulting in injustice and
victimization.

1.5 National and International Developments in Victimology

During the past thirty years efforts have been made to initiate victim
orientation schemes by the Western countries for rehabilitation,
protection and financial assistance to the victims of crime and to
prevent abuse of power. Only recently, long after the Second World
War as a result of the activities of certain progressive thinkers and
activists in various advanced countries, like the U.K., Canada, U.S.A.,
Australia and New-Zealand, the focus has marginally shifted towards
the unfortunate victim, who generally is the most affected party in the
crime and also the party who naturally deserves redress. Just to take
an example: Canada-Manitoba enacted the Justice for the Victims of
Crime Act, 1986. New-Zealand also enacted the Victims of Offences
Act, 1987. In U.K., the Criminal Justice Act, 1988 has made new
provisions for payment of compensation by the Criminal Injuries
Compensation Board. In U.S.A., the Victims of Crime Act, 1984 is
made part of the federal law. 25

The United Nations General Assembly on 29th November, 1985 made a

Declaration of Basic Principles of Justice for Victims of Crime and
Abuse of Power adopting national and international perspectives

25 Justice A.S. Anand, (Dr.), Judge Supreme Court of India, Shri P. Babulu Reddy
Foundation Lecture on “Victims of Crime – The Unseen Side”, (1998) 1 SCC (Jour) 3.

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pertaining to the rights of victims of crime and victims of abuse of
power. It was also declared that offenders or third parties responsible
for their behaviour should, where appropriate, make fair restitution to
victims, their families or dependents. This Declaration has been
described as ‘Magna Carta’ of rights of victims’ worldwide.

Various international documents like the International Bill of Human

Rights (that includes Universal Declaration of Human Rights (UDHR)
1948, the International Covenant on Civil and Political Rights, 1966,
the International Covenant on Economic Social and Cultural Rights,
1966) the International Convention on the Elimination of All Forms of
Racial Discrimination, 1963, the Convention on the Rights of the Child,
1989, the Declaration of Basic Principles of Justice for Victims of Crime
and Abuse of Power adopted by United Nations Assembly (1985) etc.
provides for various rights to vulnerable groups as well as individuals.
The Declaration of 1985 defines the victim irrespective of the status of
the offender. A victim is a victim irrespective of the status of the
perpetrator of a crime. The said document of 1985 was produced by
the Commission on Crime Prevention and Criminal Justice of the
United Nations.

In India recently various developments are noticed in the criminal

justice system like Fair Trial, Speedy Justice, Public Interest
Litigation, Plea Bargaining, Witness protection, Free Legal Aid,
Judicial Activism etc. speaking about fairness in the Criminal Justice
Process. Most part of the Indian Criminal Law was codified by the
Britishers during colonial rule by enacting three major criminal law
statutes viz: the Indian Evidence Act, 1872, the Indian Penal Code,
1860, the Codes of Criminal Procedure, 1861, 1872, 1882 and 1898
(now the Code of Criminal Procedure, 1973). These laws are amended
from time to time to meet the challenges. There are also Special and

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Local laws which deal with various issues pertaining to victims for
example: The Immoral Traffic (Prevention) Act, 1956, the Dowry
Prohibition Act, 1961, the Indecent Representation of Women
(Prohibition) Act, 1986, The Commission of Sati Prevention Act, 1987,
the Protection of Women from Domestic Violence Act, 2005). The
Constitution of India, 1950 guarantees certain fundamental rights to
citizens that are enforceable by the judiciary. Recently the Criminal
Law(Amendment) Act, 2013 has included penal and procedural
provisions keeping in view the need to protect the victims.

Judicial Trends: In the violation of human rights, the Supreme Court

of India has also emphasised the need for compensation in various
judicial pronouncements 26.The courts in India while Sentencing the
accused with imprisonment do impose fine. But with long term
imprisonment the fine was treated to be burden on convict’s family 27.
As such there was also a trend to increase fine by reducing the terms
of imprisonment 28. Presently with the introduction of Section 357 and
357A in the Code of Criminal Procedure, 1973 new compensatory
jurisprudence has emerged. The apex court has emphasised that trial
court must take into account the need to compensate victim on the
conviction of accused as a mandatory consideration 29. The Supreme

26 See Rudal Shah v. State of Bihar, (1983) 4 SCC 141, Sebastian M. Hongray v. Union of
India AIR 1984 SC 571, Saheli v. Commissioner, AIR 1990 SC 513, Padmini v. State of
Tamil Nadu, 1993 Cri LJ 2964, Civil Liberties and Human Rights Organisation v. P.L.
Kukerty 1988 (2) G.L.R. 37, Susheela v. State of Karnataka, 1991 Cri LJ 2675, P.V.
Kapoor v. Union of India 1992 Cri LJ 128, P.U.D.R. v. Union of India, AIR 1987 SC 355,
Nilabati Bahera v. State of Orissa AIR 1993 SC 1960.
27 See State v. Pandurang Shinde, AIR 1956 Bom. 711 (fine with life imprisonment
cannot be imposed), Palaniappa Gounder v. State of Tamil Nadu, AIR 1977 SC 1323
(High Court commuted death sentence to life imprisonment with fine of Rs. 20,000,
Supreme Court held that fine is excessive and reduced to Rs. 3000 to be paid to
dependents), Guruswami v. State of Tamil Nadu, AIR 1979 SC 1177 (Death sentence
commuted to life imprisonment with fine of Rs. 10,000).
28 See Nand Ballabh Pant v. U.T. of Delhi, AIR 1977 SC 892, Prabhu Parsad Sah v. State
of Bihar, AIR 1977 SC 704, Brijlal v. Premchand, AIR 1989 SC 1661, Venkatesh v.
State of Tamil Nadu, 1993 Cri LJ 61, Madhukar Chander v. State of Maharashtra 1993
Cri LJ 3281.
29 See Munish Jalan v. State of Karnataka, AIR 2008 SC 3074, Ankush Shivaji Gaikwad
v. State of Maharashtra, AIR 2013 SC 2454 (Courts are bound to consider award of

20
Court has specifically issued guidelines for the awarding of
compensation to rape victim. The court issued directions to constitute
Criminal Injuries Compensation Board 30.

1.6 Restorative Justice through Compensation and

Rehabilitation

Western countries adopted schemes for payment of victim

compensation and enacted laws on this topic. New-Zealand was the
first country to adopt victim compensation scheme in 1963. United
Kingdom followed New-Zealand and introduced Criminal Injuries
Compensation Scheme in 1964 to provide ex-gratia compensation to
victims of specific crimes. The Criminal Injuries Compensation Board
was constituted to administer compensation scheme. In Australia,
State of New South Wales was the first State to enact legislation in
this respect, and Queens Land, South Australia and Western
Australia followed it in 1968, 1969 and 1970 respectively. The State of
Victoria enacted more comprehensive law in 1972, and the other
States followed. In the USA it was the State of California, in the year
1965, to legislate on victim compensation; most of the other States
also followed California. The Federal Government of the USA also
enacted (1) The Victim and Witness Protection Act, 1982, (2) The
Victims of Crimes Act, 1984 which were enforceable throughout the
country 31.

The Indian Penal Code, enacted in 1860 as such did not contain any
provision for awarding compensation to the victim. However, under
offences against property, Chapter XVII, the stolen property if

compensation. The word ‘may’ should be read as ‘shall’ in Section 357), Suresh v
State of Haryana, Criminal Appeal No. 420 of 2012.
30 See Domestic Working Women’s Forum v. Union of India, (1995) 1 SCC 14, Bodhishtwa
Gautam v. Subra Chakraborti, AIR 1996 SC 922.
31 V.N. Rajan, Victimology in India, Ashish Publishing House, New Delhi, 1995, pp. 17-
85.

21
recovered is liable to be returned to the victim/owner. The Code of
Criminal Procedure, 1898 contained Sections 545 and 546 which
empowered the trial court to award relief to the victim in the form of
compensation to the victims to be paid out of fine imposed on the
accused when he was convicted and sentenced. But the payment was
allowed only when the judgment became final, subject to recovery of
the fine. The Code of Criminal Procedure, 1898 has been thoroughly
revised and re-enacted as the Code of Criminal Procedure, 1973.
Provisions of Sections 545 and 546 of the old Code were included as
such in the new Code as Sub-Sections (1), (2) and (5) of Section 357
and Sub-Sections (3) and (4) were newly inserted to make Section 357
more victim friendly. The new provisions are meant to be dealt with
those offences where, fine is not part of the substantive punishment
and to enhance the discretionary powers of the trial/appellate courts
to award compensation. Section 357-A has been newly inserted by the
Code of Criminal Procedure (Amendment) Act, 2008. This Section
provides for a scheme for providing funds by the State Government in
co-ordination with the Central Government to provide compensation
to the victim of crime or his dependents who have suffered any
substantial loss or any injury as a result of an offence. Further by the
Criminal Law (Amendment) Act, 2013, new Sections i.e. Section 357B
and 357C have been added. Section 357B provides for compensation
to be in addition to fine under Section 326A or Section 376D of the
Indian Penal Code, 1860. Section 357C provides that all hospitals,
public or private, whether run by Central Government, the State
Government, local bodies or any other person, shall immediately,
provide the first-aid or medical treatment, free of cost, to the victims
of any offence covered under Section 326A, 376, 376A, 376B, 376C
376D or Section 376E of the Indian Penal Code and shall immediately
inform the police of such incident.

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1.7 Rights of Victims

The victim of crime is an informant to lodge FIR. A victim of crime

after the commission of an offence has the choice either to lodge First
Information Report with the police regarding the cognizable offence or
approach the court through a complaint. Sometime victim is hesitant
to go to the police because of the indifferent behaviour of the police
officers firstly in recording the FIR and then during investigation. It is
only after an FIR is lodged that investigation in the case can be
initiated. However, police avoids the recording of FIR which further
aggravates the agony of the victim. The practice to verify any
information before recording FIR is against the statutory provisions of
law. The principle concern of lodging an FIR is to set the criminal law
in motion and to take suitable steps by the police for the investigation
of the case and to bring the offender to book. The police are duty
bound to hold the investigation of a cognizable offence without
obtaining an order from the court. It is the criminal law requirement
that FIR must be recorded in the case of cognisable offence. However
after completion of the investigation the police officer is empowered to
submit the investigation or police report to the Magistrate in the
shape of charge sheet, failure report or cancellation report as the case
may be.

The victim of crime has a right to be examined as a prosecution

witness. Then victim deposes as a prosecution witness against the
accused during the trial. In the present criminal justice system,
offences recorded by the police are treated as offences not only against
an individual rather against the institution of the State/Society itself,
which after investigation by the police come to the court through
prosecution agency for the purpose of the trial. During the trial of the
case the victim is examined as a witness before the court.

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In a criminal justice system, victims of crime have various rights like
right to lodge a complaint, right to speedy justice, right to be heard,
right to fair trial, right to get information, right to be present in the
court at hearing, right to protection against retaliation, right to
address the court, right to consult officials, cross examining
witnesses, right to produce evidence in his favour, right to incamera
proceedings during inquiry and trial of certain cases like rape,
domestic violence, right regarding maintaining of confidentiality of
name and address in prosecution of rape cases, right to prefer an
appeal against any order passed by the court acquitting the accused
or convicting for a lesser offence or imposing inadequate
compensation, right not to be asked indecent questions as to previous
immoral character in rape cases etc. There is inclusion of new
Chapter XXI A on plea bargaining which also affords
complainant/victim to be part of mutually satisfactory disposition.

Similarly certain rights are granted for the protection of victims like
the identity of the victim to be kept confidential, trial of certain
offences must be to the exclusion of general public, recording of the
statements of victims, use of screen recording of the statement
through video conferencing, cross-examination through Judge,
change in the venue of trial, physical protection to the victim of crime
etc.

1.8 Scope and Significance of the Study

Crime is prevalent in every country in one form or the other and

necessary steps to control/eradicate it are necessary. The criminal
justice system all over the world is focused on the reformation of
offender and their punishment. Further it is concerned with the
rehabilitation of the convicts after the sentence is over. The concept of

24
providing justice has widened the area of penal reforms like the release
of the offenders on probation or parole and other correctional methods
to make the convicts fit to live in the society as good citizens. The
victims of crime on the other hand are almost forgotten. Today the
purpose of the criminal justice system appears to find out the guilt or
innocence of the accused person and for that cause the victim is
regarded as a mere witness because he(victim) is personally interested
to get the culprit punished. In case the offender is not punished or
awarded minor punishment the victim will be discontented with the
criminal justice system itself and there is a possibility of his breaking
the law for getting the justice that will disturb law and order situation.

There is a discernable change in the overall crime scenario and pattern

of crime in the present time. The new forms of crime and criminality
have emerged in new situations and circumstances. The researcher has
studied all these aspects to study the impact of present day crimes on
victims.

The significance of the study is in the point that it is the need of hour
that the victims of crime must be protected, rehabilitated and
provided with speedy and timely justice. The victims of crime must be
granted rights, protections and remedies for securing justice.

The study will benefit academic researchers and students of criminal

law as it has made a detailed analysis of the emerging legal concepts
and laws on victims of crime in India and abroad. Further the study
will serve the society by highlighting the shortcomings in the laws on
victims and suggesting suitable changes and modifications. The study
will also serve the legal community especially the criminal law lawyers
by providing detailed discussion on procedural aspects, law and
judicial pronouncements of courts. The study will also contribute

25
towards generating a sense of responsibility in State agencies like
police, prosecutors etc. towards giving the treatment to the victims of
crime in conformity with their human dignity.

1.9 Object and Purpose of the Study

The primary and basic objective of the study is to analyse the various
emerging trends in victimology in India and in other countries. The
study has made a humble attempt to understand various developments
on the subject at the national and international level and to suggest
improvements in the existing criminal law in India and to make the
system more victims friendly. The concern of this study is to make
available and analyse in one study the scattered literature on this
subject.

A lot of research has been done abroad on various issues concerning

victims. No doubt few studies have been done in India also. But
comparatively there is dearth of literature on the topic in the Indian
context. As we follow adversarial process, victims are granted less
rights in India as compared to Western countries. The purpose of the
study is to highlight the issues that various rights and remedies to the
victims of crime must be granted at all the stages of criminal justice
like investigation, trial, at the sentencing stage and even after the
sentencing.

1.10 Research Methodology

The present study is mainly doctrinal. Doctrinal research has been

done by the researcher using descriptive, analytical and critical
methods of research. Sources of analytical study are books of both
national as well as international authors, national and international
journals, articles, magazines, reports of certain committees &
commissions. Besides the above mentioned sources, various judicial

26
pronouncements on the subject are thoroughly surveyed and critically
analysed. To make the findings of the study to reach a meaningful
conclusion, an attempt is made to discuss and critically evaluate
different provisions of the Criminal Law (Amendment) Act, 2013, the
Indian Penal Code, 1860, the Code of Criminal Procedure, 1973, the
Indian Evidence Act, 1872, the Constitution of India, 1950, the
Protection of Women from Domestic Violence Act, 2005, the Legal
Services Authority Act, 1987 etc. Thus, critical method of research is
used along with descriptive and analytical to find out lacunas in the
present laws. Even data is analysed from secondary sources like the
National Crime Record Bureau and other resources pertaining to
crime commission that shows trends in crimes.

1.11 Hypothesis

1. Victim of crime does not have an appropriate place in the

criminal justice system in India.

2. Increase in number and nature of present day crimes have

aggravated the plight of victims.

3. To maintain peace and harmony in the society, the victims of

crime must be protected and rehabilitated.

4. Restoration and Rehabilitation of victim is prime concern of

Criminal Justice System whether the guilt of accused is
established or not.

5. State must develop mechanism to redress grievance of victims of

crime.

6. The guilty must compensate/ provide redressal to the victim.

7. There is a need to develop Victim Relief Fund to meet exigencies

of victim compensation in all cases.

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 8. There is a need for comprehensive legal frame work to ensure
justice to victims of crime in the criminal justice system.

1.12 Research Questions

An attempt has been made to answer the following research

questions:

1. How is the Indian Criminal Justice System lacking in providing

fairness and justice to victims of crime?

2. How is the emerging crime scenario impacting more harshly the

victims of crime?

3. What are the emerging trends in victimology at the national and

international levels?

4. How does the denial of justice harm the larger interests of peace
and harmony in a democratic and welfare State?

5. Why and how to compensate/rehabilitate the victims of crime?

6. Why the guilty person should compensate the victim

with/without punishment?

7. What should be the objective and purpose of victim relief fund?

8. Whether there is a need for comprehensive policy and

legislation for victim compensation/rehabilitation?

1.13 A Brief Overview of Chapters

Chapter One gives brief introduction to the subject and studies Scope
and Objectives of the Study along with methodology to be adopted.
Certain Hypothesis are drawn and Research Questions are raised.

Chapter Two deals with Victims in Present Crime Scenario

28
Chapter Three is regarding Victims and Criminal Justice System

Chapter Four provides for International and National Developments

in Victimology.

Chapter Five depicts Rights and Remedies to the Victims of Crime.

Chapter Six is concerned with Restitution and Rehabilitation of

Victims of Crime.

Chapter Seven contains Conclusion and Suggestions based on

study.

29