Victim Compensation - An Analysis: Chapter-Iii

CHAPTER- III
VICTIM COMPENSATION - AN ANALYSIS
3.1 Introduction
Crime is a social phenomenon. In every society the existence of crime and

violence is inevitable. Every developed as well as developing country in the world these
days has a growing problem of crime1 and the product of the crime i.e. victim, is equally
bound to emerge. When a crime is committed the offender is apprehended, tried,
punished or acquitted or even in some situations he is released on probation, although he
is found guilty in the Court. But the victims are victims still.2 Hence, it is the need of the
hour that the criminal justice system must do something more than punishing the
criminal. It must seek to cure and repair the harm of the victims who suffer emotionally,
physically and financially by the crime. Though it is not easy, it should be the important
basis of the justice system because it is a moral and legal responsibility of the justice
system to make all efforts to prevent crime victimization and also to provide relief and
satisfaction to the victims.
Our criminal justice system tends to take the victim for granted and is more
concerned with the offender, his activities, his rights and his correctional needs. Only,
after the second world war, as a result of the activities of certain progressive thinkers and
activists in various advanced countries like the UK, Canada, USA, Australia and New
Zealand, the focus has marginally shifted towards the unfortunate victim, who generally
is the most injured party in the crime and also the party who naturally deserves redress
but often does not get it.3 The United Nations Declaration on Basic Principles of Justice
for Victims of Crime and Abuse of Power 1985, also draws attention to the fact that
crime is not just a violation of a criminal code but also causes harm to victims including
economic loss, emotional suffering and physical or mental injury.
1
Walter C. Reckless, The Crime Problem, 1st edn., (New York: Meredith Publishing Company, 1967),
p.10.
2
A.H.Mondal, “Crime Victims and their Treatment in the Administration of Justice”, Vol.14, Central India
Law Quarterly, (2001), p.32.
3
Shaveta Gagneja, “Justice to Victim and the Criminal Justice System in India: A Human Rights
Approach”, Vol. 35,Indian Socio-legal Journal, (2009), p.135.
43
In the past two or three decades exceptional international movements have

progressed and dedicated in improving the plight of victims of crime. This developing
interest in the needs and rights of victims was initiated by different sources with varying
agendas. However, one fundamental theme that has united supporters of victims’ rights is
the demand for empowerment and participation in the criminal justice system. Therefore,
victimology seeks to rectify the omission and resurrect the victim from oblivion. It looks
at the crime from the victim’s point of view.
3.2 Concept of Victimology
The word “VICTIMOLOGY” was coined in 1947 by a French lawyer, Benjamin

Mendelsohn from a Latin word ‘VICTIMA’ which means “Victim” and a Greek word
‘LOGOS’ which means a system of knowledge. 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. The word victimology is new coinage
and has gained considerable importance due to the untiring work of Miss Margery Fry of
the John Howard Association of England and the World Society of Victimology.4
The concept of victimology can be better understood if we analyze the meaning,

issues and significance of victimology.The most important of the branches of
criminology is victimology which deals with the scientific study of victims and
everything that is connected with the study of victim, who is one of the participants in a
crime. The primary issues in victimology are the scope of victimology, who the victim is,
process of victimization and the nature of compensation and restitution. Victimology is
the independent study of the relationships and interactions between the offender and
victim before, during and after the crime. Victimology scientifically studies the
relationship between the injured party and an offender by examining the causes and the
nature of the subsequent suffering. Thus victim-offender relationship is one of the most
important notions in victimology. In simple terms, “Victimology is, simply, the scientific
knowledge of the victim”.5 There are two major sub areas of victimology, one describes
4
Prof. R. Deb, “Victimology”, Vol. 92, Criminal Law Journal, (1986), p.7.
5
Miomira Kostic, “Victimology: A Contemporary Theoretical Approach to Crime and its Victim”, Vol.8:1,
Facta Universitatis Series: Law and Politics, (2010),p.65,available @: http://facta.junis.ni.ac.rs/ lap/lap
2010/lap2010-04.pdf accessed on July 1, 2014.
44
the scientific study of criminal behaviour and the nature of the relationships which exist
between the offender and victim and the other relates to the administration of justice and
the role of systems of compensation and restitution to the victim.6
3.2.1 Defining Victimology
A victim is someone who suffers some hardships due to another person’s illegal
act. Victimology is the study of the people who incur these harms because of illegal
activities. Besides it also studies victims of crimes and other forms of human rights
violations. This study includes the handling of victims, the physical and mental condition
of victims, as well as their financial suffering. Therefore some attempts are made to
define the subject and determine the scope of the subject.
As a concept, it is hard to give a generalized definition of victimology, due to the

fact that different persons define victimology in varying ways. As a “recently developed
sub-discipline of criminology”, victimology focuses equally on victims as well as on
crimes. To be more clear, victimology studies incidents where persons, institutions or
communities are considerably injured or damaged.
Merriam Webster’s dictionary has included two views namely, “the study of the
ways in which the behaviour of crime victims may have led to or contributed to their
victimization”. 7 In the broader sense victimology is the entire body of knowledge
regarding victims, victimization and the efforts of society to preserve the rights of the
victim. Hence it is the knowledge drawn from such fields namely, law, psychology,
medicine, social work, politics, education and public administration.8 According to P.J.
Dussich “Victimology” is an academic scientific discipline which studies data that
describes phenomena and causal relationships related to victimization. However, Cressey,
openly declared Victimology as a non-academic program under which miscellanies of
ideas, interests, ideologies and research methods have rather been arbitrarily grouped.
Fattah opined that, it may be the study of victim and victimization and it has the potential
of reshaping the entire discipline of criminology. If scholars like Drapkin and Viano
6
V.V.Devasia & Leelamma Devasia, Criminology Victimology and Corrections, (New Delhi: Ashish
Publishing House, 1992), p.82.
7
Merriam Webster Dictionary, available@: http://www.merriam-webster.com/dictionary/victimology
accessed on January 10, 2015.
8
Supra note 6, p.14 (preface).
45
have substantiated that, victimology is the branch of criminology with primary studies,
the victims of crime and everything that is connected with such are victims, for Antilla
“Victimology studies the logical, sociological, psychological and criminological aspects
of the victim-offender relationship and the role played by the victim in occurrence of the
offence”.9 Another victimologist Parsonage describes that Victimology is concerned with
the interaction in which both the criminal and the victim have functional role and
responsibilities.
Andrew Karmen, who wrote a text on victimology, broadly defined victimology

as: “The scientific study of victimization, including the relationships between victims and
offenders, the interactions between victims and the criminal justice system, that is, the
police and Courts, and corrections officials, and the connections between victims and
other societal groups and institutions, such as the media, businesses and social
movements”.
The idea of looking at victims through the lens of human rights is not entirely
new. As early as 1985, Robert Elias battled for a “Victimology of Human Rights”. Elias
cautioned the victimologists not to limit their object of study to victims of crime. Instead,
he argued that, victimologists should study all man-made victimizations, which include
crimes as well as gross violations of human rights such as genocide, torture and slavery.
Thus, Elias proposed that human rights violations should be included in the field of
victimology.10
One of the most comprehensive definitions acceptable by everyone is specified
clearly in the study made by The World Society of Victimology, that included “the
scientific study of the extent, nature and causes of criminal victimization, its
consequences for the persons involved and the reactions by the society, in particular, the
police and the criminal justice system as well as voluntary workers and professional
helpers”.11
9
Gurpreet Singh Randhawa, Victimology and Compensatory Jurisprudence, 1st edn., (Allahabad: Central
Law Publications,.2011) ,p.43.
10
Jo-Anne Wemmers, “Victims’ Rights are Human Rights: The Importance of Recognizing Victims as
Persons”,Temida (2012),p.73, For details see,http://www.doiserbia.nb.rs/img/doi/1450-6637/2012/1450-
66371202071W.pdf accessed on December 11,2014, pp.78-79.
11
Kumaravelu Chockalingam, “Measures For Crime Victims In The Indian Criminal Justice System”,
Resource Material Series no.81, in The 144th International Senior Seminar Visiting Experts’ Papers,
46
In nutshell, victimology is the study of the scientific study of sufferings

experienced by the victim due to crime. It includes the relationship between the sufferer
and the author of the crime. Thus victimology, as defined for this study, focuses on
understanding crime and its repercussions on the victim, and how the society in general
respond to crime. It also includes an understanding, whether the victim receives social
support, how the society evaluates different types of crimes and whether the officials
react to a crime and implement safety measures or ignore the impact of crime.
Victimology includes the study of victims of criminal acts. The victim’s relationship with
the offender and his experience with the criminal justice system is examined from the
victim’s perspective. 12
3.3 General background of Victim
Every crime produces victims. Generally the victims are considered as the
informants or witnesses in criminal trials. They are assisting the State in its endeavor to
punish offenders, and have become the central point of the criminal justice system.
Hence, victims’ needs are to be taken into account for the simple reason that the victim
can handle even when the causes of crime are serious. Their needs are found to be
individual and are depended on a number of factors, viz; social, emotional, practical or
financial. For example, indirect victims of homicide and victims of violent crimes have a
very strong reaction that need to be supported for a long period of time, or in some cases
will never fully recover. It is true that victims are provided with proper support. But this
rests on a sensitive approach which consists of recognition of the individual needs and
help on one side, and avoiding the victim blaming and secondary victimization on the
other side.13
In the whole process, victims of the crime face diverse problems. For instance,
when the victim is the sole earning member of the family and if he dies, the family
members face financial breakdown. Sometimes physical disability caused by
p.100,available@:http://www.unafei.or.jp/english/pdf/RS_No81/No81_11VE_Chockalingam.pdf accessed
on January 10, 2013.
12
Rachel Morgan, “Importance of Victimology”, available@: http://www.ehow.com/facts_6808303
_importance - victimology.html accessed on January 16, 2014.
13
Jana Bednarova, “The Heart of the Criminal Justice System: A Critical Analysis of the Position of the
Victim”, Internet Journal of Criminology (2011), pp. 6-7, available@: http://www.internetjournalof
criminology.com/bednarova_the_heart_of_the_criminal_justice_system.pdfaccessed on June 5, 2014.
47
victimization, causes inferiority complex in the victim, which may lead to frustration and
sometimes commitance of suicide. Victims of rape have to face the social stigma of the
society, they generally hesitate to report. Thus the impact of victimization varies from
victim to victim.
Some injustices14 are caused to the victims. The laws are inadequate and they do
not allow the victim to participate in the prosecution in a criminal case instituted on a
police report.
1. The police and prosecution fail to keep the victims informed about progress
of the case.
2. Inconvenience is caused to the victim during examination by the police and
lengthy Court proceedings.
3. Lack of prompt medical assistance to the victims in case of body offences and
victims of accident.
4. The required legal assistance is not provided to the victim.
5. The victims are not protected when they are threatened by the offender.
6. Failure to award restitution and compensation to the victim.
The victims of crimes also face certain problems such as:

1. Economic strain of the family
2. Change in social role of dependents
3. Frustration and helplessness leading to suicide
4. Social stigma
5. Emergence of criminals.
Victims require a minimum resource to support and restore the loss they had
suffered. These sources consist of the empathy, compassion and consideration of the
victims, their family and the society. Justice can be achieved when the whole society is
contented with the process and the result is fair to all participants.15 By fulfilling their
requirements the self-confidence of victims of crime will increase in the criminal justice
system.
14
Hari Shanker Rai, “Compensatory Jurisprudence and Victims of Crime”, Criminal Law Journal, (2004),
p.334.
15
What Do Victims Want? Effective Strategies to Achieve Justice for Victims of Crime, From the 1999,
International Association of Chiefs of Police, Summit on Victims of Crime, Published in May 2000,
(executive summary,) pp.2-3,available @: http://www.theiacp.org/portals/ 0/pdfs/WhatDoVictims Want
SummitReport.pdf. accessed on September 21, 2014.
48
3.3.1 Victim – A forgotten person

“The victim of crime is often a forgotten person in our criminal justice system”.
Much ink has been spilt over the plight of this forgotten member in the criminal justice
system. Several piecemeal reforms have commenced with the creation of compensation
schemes and have extended to include victim-witness programs, social service referral
programs, disaster intervention programs, victim advocacy programs and victim-offender
mediation programs. But still the victim has not received his share.16 Because victim is
not given equal treatment in the criminal justice process on different grounds namely:
access to Courts, right of being heard, free legal aid, exploitation by State agencies
(including the police), inadequate compensation. He is also treated as a mere witness in
the entire justice process. These are the various deficiencies in the justice delivery
process which have resulted in narrowing the outline of access to justice for victims of
crime.17
This is primarily so because in the Indian criminal justice system, the crime
victim has not been given any special status or right as compared to the status accorded to
the accused. He is left in the hands of the State agencies and continues to be a neglected
category. It is a dire need that assistance to victims should be provided by ensuring
greater participation of the victim in the criminal justice process and by making the
agencies of the criminal justice system to be more receptive to the needs of the victims of
crime and address their issues sincerely and empathetically. In a system still generally
focused on offenders and often ignored the victims, the studies in bringing about the
treatment of police and other judicial machinery have an important bearing on the
victims’ wellbeing. Victims seem to come third in police priorities after convicting
offenders and preventing crime. Moreover, their work is often biased by classifying the
victims as deserving, innocent, negligent, and provocative and so on. The number of
victims who have dealings with the Courts is much smaller but impact can be more
16
Alan N. Young, The Role of the Victim in the Criminal Process: A Literature Review - 1989 to 1999,
(2001), available@:http://www.justice.gc.ca/eng/rp-pr/cj-jp/victim/rr00_vic20/p1.html accessed on May 1,
2016.
17
Neha Kapur &Rishabh Rathore, “Access to Justice vis-à-vis Victims of Crime”, in AIL Mohali’s
National Seminar on Access to Justice in India, available @:ail.ac.in/outresearch/Access-to%20
justice%20is-a-vis-victims-of-crime.docx, accessed on May 7,2014.
49
traumatic. As a matter of fact the victims are re-victimized by the criminal justice system
itself.18
The victim of crime should not be a “forgotten man” in criminal justice system as
it is he who has suffered the most. His family is ruined in case of death of the victim or
physical injury. Apart from this, other factors like loss of reputation humiliation etc. are
also faced by the victim and his dependents. Of course an honour which is lost or life
which is assassinated cannot be recompensed but monetary compensation definitely will
at least provide some solace.
Totally ignored when the victim 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. Soon the victim realizes the painful dawn on him that the system does not
subsist up to its ideals and does not serve him. This neglect of the victim makes the
situation still worse.19
Predominantly, the purpose of criminal justice system is to safeguard the rights of

the individuals and the State against the criminals who damage the society by violating
societal norms. Numerous agencies have always been working to protect the rights of the
criminals and the victim is not provided any compensatory relief. However, the idea of
compensation to victim is related with the legal system. The legal system should not only
regulate and control the relationship between the victim and the wrongdoer but also has
to regulate the relationship between the victim and administration of justice. It thus
becomes imperative to understand the basic concept of victim.
3.3.2 Victim of Crime: Conceptual Analysis

The word victim is one of the approaches of the criminological language. Even
though it was used to coin the term victimology, its real criminological meaning remains
unclear, and its utility remains doubtful.20 Victims of crime21 play a critical role in the
18
Hari Om Gautam, Victims of Crime and the Law, 1st edn., (New Delhi :Regal Publications, 2011), p.109.
19
V.N. Rajan, Victimology in India, 1st edn., (New Delhi :A.P.H. Publishing Corporation, 2012), p.2.
20
Robert C. Davis, et al, Victims of Crime, 2nd edn., (London: SAGE Publications, 1997), p.257.
21
“Victim’ means the person or persons who have suffered financial, social, psychological or physical
harm as a result of an offense, and include, in the case of any homicide, an appropriate member of the
immediate family of any such person”.
50
criminal justice system. The concept of a ‘victim’ can be traced back to the ancient
societies which were connected to the notion of sacrifice. In its original meaning the
term, victim was referred to a person or an animal put to death during a religious
ceremony in order to honour some supernatural power or deity.22 Thus in ancient days, a
victim was a person or animal sacrificed to honour a God or leader.
Today, it is commonly referred to individuals who suffer the injury, loss or

hardship due to any cause. The word victim is rather used arbitrarily. With the passage of
time, the concept of a victim was expanded to include other meanings. A victim may be a
direct victim who have received injury or an indirect victim, who are dependents on the direct victim
or a legal heir who have suffered a loss indirectly. These victims may face primary victimization that
is a harm caused due to the crime committed by the culprit or may face secondary victimization
which is followed due to the effects of crime such as torture by police, prosecution failure, etc.
23
The American Heritage Dictionary defines “victim” as (a) someone who is put
to death or subjected to torture or suffering by another; (b) execution or casting out a
person to satisfy a deity or hierarchy; (c) victims of war; (d) person who is tricked,
swindled or taken advantage of; and (e) a person who suffers injury, loss, or death as a
result of a voluntary undertaking. As per Collins English Dictionary,24 “ ‘victim’ means
a person or thing that suffers harm, death, etc. from another or from some adverse act,
circumstance, etc”.
One of the progressive definitions of victim appears in The U.N. Declaration on

Basic Principles of Justice for Victims of Crime and Abuse of Power 1985. According to
Article 1 “Victim” means persons who, individually or collectively, have suffered harm,
People are victims if and only if ;

(1) they have suffered a loss or some significant decrease in well-being unfairly or undeservedly and
in such a manner that they were helpless to prevent the loss;
(2) the loss has an identifiable cause; and;
(3) the legal or moral context of the loss entitles the sufferers of the loss to social concern. For details
see:John’s J ,Victim’s Role In Criminal Justice System: A Fallacy Of Victim Empowerment?,
Legal Comment 225,Heinonline,1992-1993,available@: http://heinonline.org/HOL/ Landing
Page?handle=hein.journals/sjjlc8&div=17&id=&page=accessed on November 11, 2015.
22
Andrew Karmen, Crime Victims: An Introduction to Victimology, 8th edn., (U.S.A: Linda Ganster, 2013), p.2.
23
American Heritage Dictionary, available @: http://www.thefreedictionary.com/victim accessed on
December 9, 2014.
24
Collins English Dictionary, available @: http://www.collinsdictionary.com/dictionary/english/victim,
accessed on December 9, 2014.
51
including physical or mental injury, emotional suffering, economic loss or substantial

impairment of their fundamental rights, through acts or omissions that are in violation of
criminal laws operative within Member States, including those laws prescribing criminal
abuse of power and Article 2 provides that a person may be considered a victim, under
this Declaration, regardless of whether the perpetrator is identified, apprehended,
prosecuted or convicted and regardless of the familial relationship between the
perpetrator and the victim. The term “victim” also includes the immediate family or
dependants of the direct victim and persons who have suffered harm in intervening to
assist victims in distress or to prevent victimization.25
In the Guidelines of National Policy, a victim is meant as any person who has
suffered harm, including physical or mental injury; emotional suffering; economic loss or
substantial impairment of his or her fundamental rights, through acts or omissions that are
in violation of the criminal law. All victims, irrespective of race, gender, sex, marital
status, ethnic or social origin, colour, sexual orientation, age, disability, religion,
conscience, belief, culture and language are included. Victims of crime and violence
experience not only the direct negative impact of the incident , but also, frequently, other
negative impacts that are secondary to the incident and that occur during contact with the
criminal justice and associated systems . For example, a woman who has been sexually
assaulted may experience a “second rape” when asked to recount what happened in
public at a charge office, again when being examined by a doctor who lacks empathy and
yet again when giving evidence at her trial. Secondary victimization may be reflected in a
wide range of symptoms, ranging from relatively minor discomfort to severe physical,
psychological and emotional trauma which may result in social difficulties.26
The International Criminal Court has defined “Victim” as natural person who has
suffered harm as a result of the commission of any crime within the jurisdiction of the
Court,27 it includes “organizations or institutions” that have sustained direct harm to any
25
U.N. Declaration on Basic Principles of Justice for Victims of Crime and Abuse of Power, 1985, Articles
1 and 2.
26
National Policy Guidelines for Victim Empowerment, available @:http://www.dsd.gov.za/index2 .php?
option=com_docman&task=doc_view&gid=84&Itemid=3 p.3 accessed on March 17, 2013.
27
Defined in (For the purposes of the Statute and the Rules of Procedure and Evidence”, finalized draft
text, adopted by the Preparatory Commission at its 23rd meeting, 30 June 2000, document PCNICC/2000/
1/add.1) The Rules of Procedure and Evidence of ICC, Rule 85(a).
52
of their property, which is dedicated to religion, education, art or science or charitable

purposes and to their historic monuments, hospitals and other places and objects for
humanitarian purposes.28
The Crime Victims’ Rights Act, 2004 defines a “victim” as a “person directly and
proximately harmed as a result of the commission of a Federal offence”. The Official
definition of “Victim” is specified, in the United Nations Commission on Human Rights,
“The right to restitution, compensation and rehabilitation for victims of gross violations
of human rights and fundamental freedoms”.29 “A person is a ‘victim’ where, as a result
of acts or omissions that constitute a violation of international human rights or
humanitarian law norms, that person, individually or collectively, suffered harm,
including physical or mental injury, emotional suffering, economic loss, or impairment of
that person’s fundamental legal rights. A ‘victim’ may also be a dependant or a member
of the immediate family or household of the direct victim as well as a person who, in
intervening to assist a victim or prevent the occurrence of further violations, has suffered
physical, mental or economic harm”.30
Quinney argues that the notion of a “Victim” is a social construction based on

underlying values and beliefs. He further argues that we define an act as criminal because
there is something or someone whom we can identify as a victim. Alternatively it has
been argued by scholars like Barbour, Johnson and Wasielewski that the way in which
society perceives or defines crime will determine who is defined as a victim and that
society’s perception of victim is culture-bound.31
In a nutshell victim includes a person who has suffered physical, emotional, or

pecuniary harm as a result of the commission of crime. Other persons included may be a
spouse, a legal guardian, a parent, a child, a sibling, another family member, or another
person designated by the Court in case victim is dead. Hence, the expression “Victims of
Crime” has to be understood in a comprehensive and inclusive sense and not in the
28
The Rules of Procedure and Evidence of ICC, Rule 85(b).
29
Final Report of the Special Rapporteur, Mr M. Bassiouni, submitted in accordance with Commission
Resolution 1999/33”, UN document E/CN.4/ 2000/62.
30
Declaration on the Right to Restitution for Victims of Gross Human Rights Violations, 1999, p.57.
31
Research Report, Victims of Crime-an Overview of Research and Policy, (Office of Crime Statistics,
Attorney-General’s Department.) 8, Series C, No. 3, November, 1988, p.3.
53
narrow sense of being an individual victim. It may also include a shared victimization
which may comprise a group, a class or a society to whom harm, damage, loss, injury,
both physical and psychological, which have been caused by an individual wrong doer or
group of persons in lawful authority by abusing their powers. Thus in every society there
is a continuous process of constructing and deconstructing victims.32
For the first time in India the term victim is statutorily defined by an additional
clause under the Code of Criminal Procedure (Amendment) Act, 2008.33 After clause
(w), clause (wa) is inserted. According to this clause “victim” means a person who has
suffered any loss or injury caused by reason of the act or omission for which the accused
person has been charged and the expression “victim” includes his or her guardian or legal
heir.
3.3.3 Socio-economic Analysis of Position of Victims
Often forgotten, the victim seems to be dissatisfied with the criminal justice
system, but the reasons vary according to the agency. The victims’ experiences with the
professionals of the system such as Police, Lawyers, Court officials and those receiving
compensation agencies are rarely considered. The most formidable difficulty in analyzing
crime trends in India is the gap between the incidence and reporting of crime on one hand
and the reporting and recording of crime on the other. Generally, it takes long time for the
police to investigate criminal cases. It is a known fact in India that all crimes are not
reported to the police for one or the other reason. For instance, in case of the rape victims
the mental torture is deep and the sufferings are unbearable. The injury is physical as well
as psychological. With this trauma the victims have some common apprehensions about
not reporting the crime, like the victim is worried that the law enforcement won’t
believe her, she doesn’t want to be put in trouble, often the questions put forth by the
authorities are shocking, etc. Thus the victim in the criminal justice system feels not only
dejected but becomes a victim of “secondary victimization” by the criminal justice
system.
32
Supra note 20, p.257.
33
Code of Criminal Procedure (Amendment) Act, 2008, section 2 (wa).
54
On the other hand the judiciary is not awarding adequate compensation. In many
cases there is a delayed compensation, due to which the victim is the sole sufferer
socially as well as economically. At the same time there are number of other factors
responsible for the unwillingness of the victim to process the criminal case through the
criminal justice system. The foremost is that the criminal justice procedure is a time
consuming one. Cases are adjourned on some or the other reasons. This slows down the
Court procedure and in turn discourages the victim seeking the criminal justice system.
Thus, except in some marginal cases, a considerable number of victims would prefer to
suffer this loss in silence rather than go through the criminal justice system. It is also true
that in a number of cases the entire amount of compensation will be paid off to meet the
legal fees or the medical expenses where the victim’s family is suffering from poverty.
Sometimes the family may desperately need financial compensation when their financial
burdens rise. To illustrate, Shweta, a child rape victim and her family needed financial
compensation. Her father lost his job as a water supplier and some subsequent jobs
because he needed time off to take Shweta to doctors, cooperate with police and attend
Court hearings. The family had to borrow money to pay for hospital admittances and
rent.34
The victim also faces another economic burden. In order to claim the
compensation he has to approach civil court for claiming compensation which affects the
economic condition of the victim as he has to appoint another lawyer for civil
proceedings and also has to spend money for Court fees and other legal expenses. Not
only this, in some cases the Court awarded inadequate compensation for which the victim
has to file appeals to Higher Courts to get proper justice, which is again an expensive
procedure. For example, Subalaxmi, a match industry worker, whose leg got amputated
after sustaining injuries in an accident, had approached the Motor Accident Claims
Tribunal, which awarded a sum of Rs. 2 lakhs, as compensation in 2002. Being aggrieved
by the order, she approached the High Court which enhanced the sum to Rs. 2.75 lakhs,
but did not grant her any money for permanent disability. She again challenged the order
34
Child Rape Victims Need More Compensation Faster, Counsel To Secure Justice, HAQ-Centre for child
rights,available@:https://d3n8a8pro7vhmx.cloudfront.net/csj/pages/119/attachments/original/1459491034/
Child_Rape_Victims_Need_More_Compensation_Faster_-_HAQ_CSJ.pdf?1459491034, accessed on
May13, 2016.
55
in the Apex Court. Allowing her plea, the Court said, the High Court’s decision not to
award her any sum for permanent disability was “not permissible”. The Apex Court
computed her total compensation as Rs. 6, 48,640/-. The Court also directed the transport
corporation to provide her the enhanced amount with interest of 9 percent per annum
within a period of eight weeks.35
The quantum of compensation payable is for the State to decide on the basis of its
economic resources and the legitimate interests of the victims. Some judges are cautious
while awarding compensation because they fear that victims may not reveal the truth
about the severity of the ill-treatment to win financial benefits. Judges also consider that
the parents could misuse the money meant for child victims, as many victims and their
families run their household on small daily wages with no savings. Thus the current
scenario is not only unjust from the point of view of victims of crimes but is also the
denial of the Rule of Law.36
3.3.4 Victims under Different Contexts
One fundamental way in which the scope of victimology can grow in the future is
by reorganizing and classifying more individuals as victims of crime by the general
public as well as by the researchers. In the present scenario there are victims of crime
who did not exist in the past. The framework of victim has been broadened in the present
days.
By the mid of the 20th century criminologists developed methods to categorize

types of victims based on factors such as biological, sociological, psychological, etc. The
main purpose behind this was to understand the phenomenon of victimization in a better
way.
3.3.4.1 The Child Victim
For Hans V.Hentig, children are psychologically immature and hence they easily
become victims.37 For this reason they need special safeguard and care, especially child
35
Deccan Herald, Monday, November 19, 2012.
36
Flogging a Dead Horse-Our Judges Discretion: Flogging a Dead Horse?-An Analysis of the Vanishing
Point of Indian Victim Compensation Law available @:http://www.lawteacher.net/free-law-essays/judicial-
law/flogging-a-dead horse.php#ixzz48YdzZVkQ ,accessed on May 7, 2013.
37
Supra note 6, pp.231-232.
56
victims’ of sexual abuse are to be treated with compassion and dignity. Hence all those
who are concerned with criminal justice system need to be sensitized their role to prevent
further victimization of crime victims. To ensure this end, it is very much essential to lay
down guidelines and the entire concerned are to observe to assure that justice is to be
delivered to child victims. 38
3.3.4.2 The Female Victim
Female is considered by Han V. Hentig as a victim with “another form of

weakness”.39 In spite of the recent developments, violence against women of all ages is
40
continued. The serious problem faced by the criminal justice system is rape which is
not only a crime against the individual but is one which destroys the basic equilibrium of
the social atmosphere. Although there are outlined guidelines to help law enforcement
immediately assisting rape victims, but the tragedy continues as compliance with these
guidelines has become very rare.41
3.3.4.3 Elderly Victims
The population of the elderly persons has been increasing over the years.42 The
elderly population is increasing and crimes against them are taking new forms. The
Department of Health Report has identified different forms of elderly victimization
namely physical abuse such as, hitting, kicking. Sexual abuse such as rape, sexual assault
and other sexual acts. Psychological abuse such as emotional abuse, threats, blaming and
verbal abuse. Financial abuse such as theft, fraud, transfer of property or benefits, or
change of wills. Neglect like ignoring or withholding health, social or other type of care
or services, or withholding of food and discriminatory treatment harassment, slurs or
38
State of Karnataka v. Puttaraja AIR 2003 SCW 6429.
39
Supra note 9, p.64.
40
Dr. Krinhna Pal Malik, Penology Victimology and Correctional Administration in India, 1st edn.,
(Faridabad –Haryana: Allahabad Law Agency,2011), p.259.
41
Delhi Domestic Working Women’s Forum v. Union of India, (1995) 1 S.C.C. 14.
42
As per the UNESCO estimates, in 2005, the number of the aged that is, 60+ is 590 million. The figure
will double by 2025. By 2025, the world will have more elderly than young people and will probably cross
close to two billion mark by 2050. In India also, the population of elder persons has increased from nearly 2
crores in 1951 to 7.2 crores in 2001. In other words about 8% of the total population is above 60 years. The
figure will cross 18 % by 2025. The Maintenance And Welfare Of Parents And Senior Citizens Act, 2007:
A Unique Act.
57
similar treatment.43 The victimization levels may vary significantly across studies and
areas researched. Hence like the young and the female, the old also are in need of some
protective devices.
3.3.4.4 Accident Victims
Victims of accidents are those who sustain bodily injuries and are disabled either
permanently or temporarily. It may arise out of the use of a motor vehicle, railway, air
craft, and a ship or sometimes may be caused while operating the machine in a factory.
Thus the victims of motor accident have a right to claim compensation under the
Statute.44 Provision has also been made empowering the government to establish and
administer a solatium fund out of which compensation can be paid in case of death or
grievous injury resulting hit and run cases where the person guilty of causing the accident
remain untraced.45 In a number of cases, the Supreme Court has laid down sound
guidelines relating to the just compensation that is to be paid to the accident victims.
However, in some rigid cases compensation is not paid or inadequate compensation was
paid. But generally it is found that Courts and tribunals have been liberally granting
compensation to these victims in accordance with the observations made by the Supreme
Court.
3.3.4.5 Victims of Abuse of Powers
Victims of abuse of power include those persons who are either victims of illegal
detention or police atrocities or custodial violence. Every individual has an absolute right
to life and personal liberty that is guaranteed by Article 21 of the Constitution of India.
The Supreme Court has made attempts to fill the lacunae in the field of compensation by
using its power under Article 32 of the Constitution of India. Article 22 of the
Constitution of India protects every individual from illegal detention.46The Supreme
Court and various High Courts in India, National Human Rights Commission and State
43
Lorraine Wolhuter, et al, Victimology- Victimization and Victim’s Rights, 1st edn., (New York: Routledge-
Cavendish, 2009),pp.108-109.
44
Sections 140, 161, and 166 of The Motor Vehicles Act, 1988 entitles a victim of motor accident to prefer
a claim for compensation before a duly constituted Motor Accident Claim Tribunal.
45
Shalini Naval, “Victim compensation under Criminal Justice System in India”, Criminal Law Journal,
(2012), p.235.
46
Ibid., p.236.
58
Human Rights Commissions, various voluntary organizations and the media have
contributed much towards ensuring custodial justice, but till today it is found that the
incidents of custodial violence are prevalent in India.
3.3.4.6 The Minorities
Often minorities become victims of powerful group because of racial, linguistic,

religious and caste prejudice.47 They are generally the worst sufferers whenever there are
conflicts due to socio economic imbalance and political factors. In India a number of
caste and communal riots which occur every year which lead to murder, rape, destruction
of property etc., on a large scale in which the main sufferers obviously are the people
who belong to minority and weaker sections. No legal action is possible and even tried in
such cases in our country. The tragedy is that if the suffering is more the protection to the
victims is less.48 An artificial disadvantage is imposed on the minority race.
3.4 Victimization
Victimization in itself is not an unusual phenomenon in our society. Annually,

hundreds of millions of people, including many women and children, throughout the
world suffer harm as a result of crime, terrorism and the criminal abuse of power. A
report of the World Health Organization on Women’s Health and Domestic Violence
(WHO, 2005) estimates that in many countries as many as 30 % of all women become
victims of partner violence during their lifetime. The 2005 Human Security Report
documents the range and depth of victimization by terrorism and other forms of political
violence.49 It is also true that victimization rates are higher in urban areas compared to
rural areas. Thus, the logical indicator of the fact is that there is a greater likelihood of
being victimized within urban areas.50
Every human being needs to feel safe and secure. But, the fact is that
victimization robs the victim’s sense of security, and makes them feel vulnerable. Certain
47
48
Ahmad Siddique, Criminology, Problems and Perspectives, 6th edn., (Lucknow :Eastern Book Company,
2009), p.594.
49
Dr. Purvi Pokhariyal, “ Post U.N. Declaration on Victims Scenario in India – Assessment of Victim’s
Position in India”, available @: http://www.indlawnews.com/Newsdisplay, accessed on March 25, 2010.
50
Ugljesa Zvekic, Anna Alvazzi del Frate ,Criminal Victimization In The Developing World, (Rome:
United Nations International Crime and Justice Institute Publication, No. 55, 1995), p.286.
59
victims fear their offender in particular. Before they can start healing, victims need to
have their feeling of safety restored. Obviously some safeguards need to be laid down in
order to protect victims from further victimization. Hence as a first step, authorities must
communicate with victims in order to be aware of their concerns. By this the victims feel
secured which in turn will help the victims to realize that they are not completely
powerless.51
“Victimization is an asymmetrical relationship that is abusive, parasitical,

destructive, unfair, and illegal. Offenders harm their victims physically, financially, and
emotionally. Laws recognized that injured parties deserve governmental support and
economic aid were passed centuries ago, but until the middle of the twentieth century, the
plight of crime victims was largely overlooked, even by most of the criminologists. When
some researchers began to study victims, their initial interest betrayed an ant victim bias:
they sought evidence that the victims’ behavior before and during the incidents
contributed to their own downfall. Since the 1960s, the majority of the social scientists
attracted to this new discipline have labored to find ways to ease the suffering of victims
and to prevent future incidents”. 52
The death of homicide victim is often not intended, it is the result of accidental
circumstances. The victim’s family and the dependents begin to suffer from the moment
the relatives are informed and called upon to the spot to identify the corpse. They suffer
emotionally, psychologically and economically. The sufferings are unimaginable if the
deceased is the bread earner.53
The victim of crime, after occupying a position of almost complete darkness for
centuries, has now come to the fore and been received as a person worthy of attention in
almost all the States across the world. The interest in the victims of crime was focused in
the nineteen seventies and eighties, many international symposia were held to draw
attention on the victims of crime. In 1979, the World Society of Victimology was formed.
The U.N.Congress on Prevention of Crime and Treatment of Offenders took up the cause
51
WHERE DO THEY BELONG? Giving Victims a Place in the Criminal Justice Process, paper presented
at the National Victims of Crime Conference 23& 24 September 2008 Adelaide, Australia, p.7.
52
53
Bharat B. Das, Victims in the Criminal Justice System,1stedn.,(New Delhi: APH Publishing
Corporation,1997),pp.31-32.
60
and has contributed to a large extent in drafting a Declaration of victim’s right and placed
it on the agenda of the seventh U.N.Congress in Milan, Aug-Sep. 1985. On 29thNov
1985, the General Assembly of United Nation adopted the Declaration of Basic
Principles of Justice for Victims of Crime and Abuse of Power.54 This Declaration is very
much concerned with the collective responses to the needs of the victim; it also
establishes standards for the fulfillment of the needs of the primary victims and also
secondary victims i.e. the family members, witnesses, etc. The Declaration not only has
set standards for access to justice and fair treatment but also acted as a precedent for
victim legislation all over the world.
However, in India, the rights of victims are still often overlooked. India has
largely ignored the protection of victims’ rights, irrespective of whether the doer is the
State or a private individual. This is one of the reasons that the society is becoming
increasingly prone to crimes. There is an overall deliberate neglect of the victims of
crime. It is important to emphasize this particular aspect because the history of crime and
punishment in the whole civilized society discloses a progressive concern with the
treatment of the criminal and the society disregards the ill-fated condition of the victim.
It has been said: “While society is weeping over the criminal, it is showing no concern,
indeed no concern for the victims of crime. Society is brutal towards the victims of crime,
not against the criminals”. Hence, it is the responsibility of the welfare State to protect its
citizens against crime. The maintenance of police forces, the regulatory laws of armed
forces and the prescribed limits of self-protection should collectively accept this
responsibility. If the State fails to protect the innocent victims who are subjected to
violent crimes, it may result in serious injury or loss to the victim or his dependents. The
consequence is that the State is under a responsibility to compensate the victims for the
loss of injury.55
In the present day, the concept of victimization has been expanded even further to
include harm done upon someone from any cause. Such causes include crime, natural
54
Supra note 25.
55
Venugopal Rao, Crime in Our Society A Political Perspective, (New Delhi:Vikas Publishing House Pvt.
Ltd., 1983),p.43.
61
disasters, diseases and human-rights violations.56 People have become victims of

accidents, natural disasters, diseases, or social problems such as warfare, discrimination,
political witch hunts, and other illegal acts.57
3.4.1 Different Versions of Victimization
There are mainly two types of victimization which the victim is subjected to
namely primary victimization and secondary victimization:
3.4.1.1 Primary Victimization
Primary victimization relates to the direct effects of a crime. Primary victim is a

58
person who is immediately injured by the victimized event. It is the direct loss from
what has happened to the victim .For instance, if a person is raped, it is the victim who
experiences the injuries suffered during the crime. The injury may be physical, mental
including a fatal injury and also financial loss. Primary victim refers to personalized or
individual victims.59
3.4.1.2 Secondary Victimization
Secondary victimization refers to the indirect result of the criminal act. A

secondary victim is a victim who has suffered nervous shock and is mentally injured
without any physical harm or injury.60 Very often; this type of victims in all probability
will have to suffer in the society after the commission of crime. They suffer
psychologically after witnessing violent or traumatic event. Sometimes by merely hearing
about the victimization of a neighbour, friend, acquaintance, or co-worker it can result in
secondary victimization and the consequences may increase anxiety and fear of crime. 61
He has to face many troubles from the different agencies in the society. It may even be
caused by Police, Doctors, Probation Officers, at times even by the Prosecutors. A victim
may also be ill-treated at the hands of the hospital authorities. In the criminal
56
Lesley Henton, How has Victimology Developed? available@:http://www.ehow.com/about_
5539502_victimology-developed.html accessed on October 25,2014.
57
Supra note 22 , p.2.
58
For details see The Criminal Injuries Compensation Scheme 2008, para 9(a).
59
60
David Miers, “Rebuilding lives”, Criminal Law Review. (2006), p.701.
61
Susan Herman and Michelle Waul, Repairing the Harm: A New Vision for Crime Victim Compensation
in America, (Washington, DC :National Center for Victims of Crime, 2004), p.17.
62
administration of justice process secondary victimization may occur because of

difficulties arising in balancing the rights of the accused and the victim. It is most
shocking for the victim when a victim suffers for not getting any assistance from the
justice system. He is discouraged by not getting any appropriate remedy. 62The secondary
victims have no voice at all; no matter how great is the impact of crime on their lives.63
3.4.2 Re-victimization
Although one victimization incident is detrimental to persons who fall victims of

crime, there are individuals who experience more than one victimization incident, which
is called revictimization. Revictimization occurs when an individual who has experienced
a victimization incident experiences a subsequent victimization, of the same type or a
different type in separate incidents, but during no particular time frame. Much of the
research shows that revictimization has also become a common phenomenon. What the
research has shown, however, is that some types of victimizations are more likely to re-
occur than others. Specifically, revictimization is especially common in personal crimes
including assault, intimate partner violence, and rape as well as the property crime of
burglary. The revictimization of victims by the criminal justice system can occur at
various points throughout the case. For example, police actions have been found to be
sources of revictimization for rape victims.64
3.4.3 Consequences of Victimization
Often the victim has a feeling that the crime will occur again. Victims experience
shock, denial and disbelief during and immediately after a crime. Fright and fear is
repeatedly accompanied by persistent behavior like uncontrolled talking or a feeling that
someone must take care or the victim makes up his mind that the sufferings are forever.65
These sentiments clearly show that crime has varying significant, consequences on
individual crime victims, their families and friends, and also on communities. The impact
62
Durga Pada, Das, “ Secondary Victimization”, Vol.114, Criminal Law Journal, (2008),pp .205 -206.
63
Charles Pollard,“Victims and the Criminal Justice System: A New Vision”, Criminal Law Review,
(2000), p.5.
64
65
J.L.Barkas, Victims, 1st edn., (Peel Press, 1979) , p.10.
63
of crime on victims results in emotional and psychological, physical and financial

consequences.66
Crime has a powerful, life-changing effect on the welfare, safety, health, and
financial stability of victims. Mental illness, suicide, drug and alcohol abuse are most
common among crime victims. The distress of victimization can result in a wide range of
reactions. Victims perhaps are tolerating a variety of immediate, short-term, and long-
term reactions in the aftermath of crime. The majority victims of crime are able to
manage with the trauma of victimization. This is true only when the crime victims are
counselled as regards the supportive services, information about justice processes and
their relevant rights.
Short-term trauma occurs during or immediately after the crime. Some common
responses to trauma include:
1. Victims are shocked, surprised, and terrified when it happens.
2. They often have feelings of unreality - “This can’t be happening to me”.
3. Emotional problems.
4. Physiological anxiety, including rapid heart rate, hyperventilation, and
stomach distress.
5. Symptoms of anxiety, including feeling terrified, helpless, guilty, or out of
control.
On the other hand, if victim’s distress is not identified and attended to by the
psychological support services , then the initial and short-term trauma reactions can
worsen and turn into long-term trauma reactions which , consist of:
1. Major depression.
2. Thoughts of suicide and suicide attempts.
3. Use and abuse of alcohol and other drugs.
4. Ongoing problems with relationships.
5. Anxiety disorders.
6. A changed view of the world as a safe place.
66
Eidell Wasserman and Carroll Ann Ellis, “Impact of Crime on Victim”, Participant’s Text 2007 National
Victim Assistance Academy, Track 1, Foundation-Level Training ,p.1. available @: http://www.ccvs.
state.t.us/sites/default/files/resources/VVAA%20Ch%206%20Impact% 20of %20Crime.pdf accessed on
April 13, 2014.
64
7. Increased risk of further victimization.
Every crime victim is unique. Individual sufferings are affected by pre-

victimization and post victimization factors .These factors may be related to individual
knowledge, degree of personal and social support.
Brief summaries of the physical, emotional/psychological, and financial impacts

of crime are discussed below. They provide an overview of the range of possible
reactions that victims may experience.67
Physical Impact
• Physiological anxiety (including rapid heart rate and stomach distress)
• Physical injuries (such as broken bones, sprains, and burns)
• Physical injuries that lead to other health conditions (such as heart attack,
stroke and fractures from falling)
• Permanent disability
• Disfigurement
• Lethargy and body fatigue
• Sleep disorders.
• Loss of appetite, excessive appetite, or eating disorders
• Inability to work
• Increased risk of future victimization
• For sexual assault victims: possible exposure to sexually transmitted
diseases, exposure to HIV, and unwanted pregnancy
Emotional/Psychological Impact
• Shock
• Terror
• Confusion
• Helplessness
• Fear
• Anger or rage
67
Ibid., pp.7-8.
65
• Grief or intense sorrow.

• Anxiety / Depression (including helplessness, and feeling out of control)
• Difficulty in trusting self or others.
• Inability to concentrate.
• Concerns about personal safety.
• Problems with important relationships
• Social withdrawal
• Concerns about being blamed
• Negative changes in belief system
• Increased feelings of vulnerability
• Increased risk of alcohol or other drug abuse
• Isolation
• Persistent avoidance of things associated with the traumatic event
• Suicide
Financial Impact
• Medical bills (e.g., emergency transportation, hospital stays, inpatient and
outpatient physical care, medical supplies)
• Replacement of eyeglasses, hearing aids, or other sensory aid items damaged,
destroyed, or stolen
• Rental and related costs for physical mobility restoration equipment (e.g.,
wheelchairs, ramps, crutches)
• Occupational therapy
• Mental health counseling and therapy
• Loss of wages
• Loss of or damage to personal property
• For homicide victims, funeral and burial expenses and loss of income
There are some negative consequences if victim’s rights are neglected:

1. Victims are made to survive with mental trauma, physical injury, loss or
damage to property. They should also be ready to accept the insensitive
investigation and legal process.
66
2. The victims lose faith and trust on the State capability to protect the citizens.
3. The victims are not willing to invoke the criminal justice process against the
offenders. This will result in the growing tendency for victims and the
community to take the law into their own hands.
4. There will be greater emphasis on punitive and retributive punishments and
not on restitution and compensation.
5. Lack of faith in the criminal administration of justice particularly in the police
and the Courts.
Thus from the above discussion it is evident that the enhancement of the victims
rights and remedies need to be an important concern of the criminal justice system. Only
then the citizens can repose confidence in the administration of justice and will further
assist in attaining the social objectives given in the Constitution. The rationale behind this
proposition is based on the fact that all the concerned parties will continue to live in the
society with the fundamental objective to preserve and enhance social harmony.
The above discussion is summed up in the words of Radeliffe Brown as; (A)
Judge is not regarded as having properly settled a case until all parties concerned are
satisfied with the settlement.68
3.4.4 Legal Remedies - Mapping the Terrain
In mapping the terrain various Statutes are spread across a variety of concerns and
interest. Of immediate relevance are Statutes which deal directly with compensation for
personal injury.
To begin with firstly laws affecting labour69 and the workforce can be
acknowledged expressing a concern with disease, disability, death and compensation.
Secondly incidents of injury, disability and death connected with rail70, air71, and
sea travels72 are recognized in the law. Compensation is no stranger to these laws. Motor
vehicles have significantly affected the development of the law of personal injury and
68
Adeniyi Olatubosun ,“Compensation to Victims of Crime in Nigeria: A Critical Assessment of Criminal
Victim Relationship”, Vol. 44 :2, Journal of Indian Law Institute,( 2002), pp.207-209.
69
The Workmen’s Compensation Act, 1923.
70
The Railways Act, 1989.
71
Carriage by Air Act, 1972.
72
Marine Insurance Act, 1963.
67
compensation.73 The increasing rate of severity of accidents has promoted and influenced
the direction of charges in the law of compensation in motor vehicles accidents. The
provision of a schedule of compensation in the interests of expediency is a recent
legislative experiment.74
Thirdly the criminal justice system has shown marginal concern for victims of
crime under the Criminal Procedure Code, 1973 75 to compensate them.
Fourthly various Statutes relating to Juvenile76, Central excise77, Customs laws78

are set up which may constitute a basis for compensation. The existence of statutory fund
could find the administration to deal with proximity of relief for victims.
Fifthly an approach to victim caring has also begun to appear through insurance,
which has an impact on the nature and meaning of compensation.
Sixthly the treatment of compensation in ‘emergency’ situation i.e. at the time of

war, earthquake, floods, and drought are now the priorities of the State and the
importance attached.
Seventhly two emerging institution viz., the Lok Adalats79 to the compensating of
victims enables speedy and inexpensive justice and Human Rights Commission 80 which
answers the State whenever human rights are violated by the agents of the State have an
effect on perception of the victim and of compensation.81
3.5 Victim v. Offender - Legal Relevance
In a criminal trial there are at least two active participants, viz, the offender or
perpetrator for whose sake the entire machinery of justice always remains vigilant, and
the other is the victim of crime - the ‘Forgotten Man’ of the criminal justice system.
When any crime has been committed the offender is apprehended, tried, punished or
73
Motor Vehicles Act,1939,which is replaced by Motor Vehicles Act,1988.
74
Motor Vehicles (Amendment) Act, 1994, Second Schedule.
75
Criminal Procedure Code, 1973.
76
Juvenile Justice Act ,1986.
77
Central Excises Act,1994.
78
Customs Laws (Amendment) Act, 1991.
79
The Legal Services Authorities Act, 1987.
80
Protection Of Human Rights Act,1993.
81
Usha Ramanathan, “Statute Law, Injury and Compensation”, Vol. 47:2 Journal of the Indian Law
Institute, (2005), pp.162-164.
68
acquitted or even in some situations he is released on probation when the reformative

slogan dominates floor of the Court, even if, he is found guilty. The entire criminal
justice system is alarmed more in defending rights of the accused and in inflicting
punishment. But, the rights of the crime victims, on the other hand, are never focused.
Over the past five decades the act of balancing State and individual justice has become
more difficult.
Legal relevance of Victim and offender
If we consider the judicial process from the victims’ perspective the victims are
introduced to a system as though they are not the affected party .No doubt the victim is
shown immeasurable sympathy and compassion but he soon falls into public oblivion.
The injured party found that they have no standing in Court, no right to counsel, no
control over the prosecution of the case and no voice in its disposition. Many times
victims hesitate to report crime to the police for the reason that they may not respond
immediately. Sometimes it is understood that the opinions of the victims are rarely
solicited. Hence he will have to grease the palms of the police. The victim receives the
callous indifference and exploitative treatment in the criminal justice system in India.82
The most common problem suffered by many of the victims after reporting an
offence is the absence of receptive and sympathetic attitude from the police towards the
victims who has come with all mental, physical or moral loss resulting from the crime.
Another blockage for the victim in getting anticipated justice is when crime acquires an
official identity. He will have to take all trouble to approach the police for investigation
arrange for prosecution, court trial, etc bearing expenses by himself .By this it is evident
that the justice system is neglecting the victim.
No doubt, occasionally the tenor of judicial pronouncement shows deeper concern

for the victims of the society who suffer more within the legal system. But such casual
utterances are no solutions. With the result the victims are losing faith in the capacity of
legal system to bring about changes in their life conditions and to deliver justice system.
Thus the victims feel left out, unsatisfied, or further victimized by the justice process.
82
Bharat .B. Das and Swagata Patnaik, “Victim’s Perception of Criminal Justice System”, Vol.6:2, Central
India Law Journal, (1993), pp.160-161.
69
Victim v. Offender relationship
A victim is always viewed in relation to the offender. In the words of Mendelsohn

the victim and his offender are described as ‘Penal Couple’. For Von Henting83 the
relationship between the victimizer and the victim are very complicated. The victim one
who suffers and the victimizer, one who harms appear in victimization in a close
interpersonal relationship and the victim plays a determinant role with the victimizer.
However, Cho Sung Tai points out that, “The victim and the victimizer should be
understood in terms of victimization, incidence and relationship. Both “affinity” and
“propinquity” factors should be considered for the differentials in participation,
commitment and involvement in victimization. Though not intended for creating an
impression that the victim and victimizer are “guilty by association” we are suggesting
that the interaction and relationship should be understood objectively, rather than
assumed to be a hallmark of the victimizer”.84
During the 1950’s there was an increase in the interest of the study of criminal-
victim relationship .The broader psychological aspects of the victim’s relationship with
the criminal were discussed by Henri Ellenberger who suggested that though there is a
common understanding that criminal and victim are interrelated, they are different as
black and white.85 Rhoda J .Milliken was of the opinion that the post crime sufferings of
the victim should also be considered. Often she wrote that the victim suffers not only
from the crime when it is committed but also from the events that “serve to scar deeply
and sometimes damage irreparably the human being for whose protection the public
clamors”.
The victim offender relationship may contain the origin of victimization. Every
human being needs to feel safe and secure. But, at the same time victimization takes
away the victims security, making them feel insecure. But, social justice being the goal of
law and victims of crime being part of criminal justice system, victims are at liberty to
83
Hans Von Henting , The Criminal and his Victim, 1st edn., (New Haven :Yale University Press, 1948),
p.383.
84
Cho Sung Tai, Criminality, Victim and Victimiser, Victimology A New Focus, (Massachusetts: Drajikin
Viano, Levingston Books, Vol.1, 1974), pp. 93-98.
85
Stephen Schafer, Victimology: The Victim and His Criminal, (Reston Virginia: Reston Publishing
Company,1977), pp. 45-47.
70
share the promises of social justice. As there is lack of statutory awareness of

victimology of social justice, just, reasonable and effective reparation of victims through
compensation is essential.
3.6 Need for Reparation, Restitution and Restorative Justice
The terms compensation, damages, restitution are often used interchangeably at

the domestic level.86 Reparation includes the concepts of ‘restitution’ and
‘compensation’.87 The subject of compensation and restitution to victims of crime is also
a part of victimology. The victim is a useful and helpful member of the society who has
failed to protect himself against victimization. Therefore the society is under an
obligation to provide compensation and restitution to victims.88 A principle of law that
has existed for centuries is reparation. It is not completely a legal principle. It is a concept
used in ethical and political discussion. In purely legal terms, reparation refers to the
obligation of the wrongdoing party to redress the damage caused to the injured party. The
obligation to afford reparation arises as a result of the breach of an obligation that caused
an injury.89
3.6.1 Reparation
‘Reparation’ is not synonymous with restitution. It involves mere ‘making good’

than damage done to property, body or psyche. It also demands recognition of the harm
done to the relationship between offender and victim, and the damage done to the
victim’s property or person. Restitution is the normal form of reparation. It is only when
restitution is not promising; the injured party is assured to claim damages and
compensation.90 The object of reparation is compensation to the victim and not
punishment of the guilt.
86
Gabriela Echeverria, Reparation ,A Sourcebook for Victims of Torture and Other Violations of Human
Rights and International Humanitarian Law, (The Redress Trust, 2003), p.7, available @:
http://www.redress.org/downloads/reparation/SourceBook.pdf accessed on April,13,2015.
87
Vince Morabito, “Compensation Orders Against Offenders – An Australian Perspective”, Vol.
4,Singapore Journal of International and Comparative Law,( 2000), p.59.
88
Supra note 6, p.97.
89
Reparation , A Sourcebook for Victims of Torture and Other Violations of Human Rights and
International Humanitarian Law, 1st edn., (The Redress Trust, 2003) , p.7.
90
Raghunadha Reddy, “Reparation of the Wrong: Problems and Perspectives: An Evaluation on the
Compensation for the Breach of Fundamental Rights” Vol.46, Indian Journal of International Law ,(2006),
p.572.
71
The term ‘reparation’ signifies the payments of money, restitutions of property,

release of persons or any other act by the person or State who is legally responsible for
injury to another in order to restore that damage. It is also the principle of international
law that the breach of any commitment involves an obligation to make good the loss
satisfactorily. Reparation as far as possible must, eradicate the consequences of the
illegal act and return to the same state which would, have existed if that act would not
have been committed. Davis explained that reparation should not be seen as residing
solely in the offer of restitution; adequate reparation must also include some attempt to
make amends for the victim’s loss of the presumption of security in his or her rights.91
In 1965, Marvin Wolfgang noted: “The victim of a crime has historically and
almost universally enjoyed the right to reparation. This right was confiscated by the State
in the form of fines without due consideration for the victim”.92 In the ancient times the
conqueror in a war often paid the reparation to the conquered on the theory that the
conquered having suffered the miseries of the defeat, had to be compensated to make his
wounded feelings, less intense and to lessen his desire for revenge and thus to restore the
peace.93 It is noteworthy to explain that if the state of mind of the public is analyzed,
victims would welcome the opportunity to seek some reparation from, ‘their’ offender in
place of traditional punishment.94 The prospect of reparation may encourage victims to
report crimes, to cooperate with the police and to appear at trial; consequently the
efficacy of the criminal justice process will be enhanced.95 Reparation, as mentioned
above is commonly associated with paying monetary compensation. It refers to the
responsibility of the wrongdoing party to restore the damage caused to the injured party.
According to the Basic Principles and Guidelines, reparation includes “restitution,

compensation, rehabilitation, satisfaction, and guarantees of non-repetition”.96 Indian law
does not safeguard the victims, it ignores other non-monetary forms of reparations. The
91
Lucia Zedner, “Reparation and Retribution: Are They Reconcilable?”, Vol. 57, The Modern Law Review,
(1994), p.234.
92
M. Wolfgang, “Victim Compensation in Crimes of Personal Violence,” Minnesota Law Review (1965),
p.50.
93
94
Supra note 92 ,p.232.
95
Ibid., pp.232-233.
96
Supra note 25.
72
primary concern in India must be to protect the interest of victims by repairing the harm.
The judiciary has a supreme duty to safeguard the rights of the victims diligently.
Although the judiciary is actively engaged in finding redress for victims, the ultimate
goal must be to pass authoritative, efficient, and creative legislation in order to strengthen
the hand of the judiciary. New legislation should also address other needs of victims
which may include medical and psychological care, economic care, immediate protection
and security, and long-term rehabilitation.97
Thus restitution, compensation, rehabilitation, satisfaction and guarantees of non-

repetition may be considered as the five recognized forms of reparation which aim at
repairing the harm caused to the victims and the survivors. Restitution consists of re-
establishing the status quo ante, i.e. the situation that existed prior to the occurrence of
the wrongful act.98 Compensation is the financial recompense for losses which may be
either pecuniary or non-pecuniary. Rehabilitation aims to address any physical or
psychological harm caused to victims including “medical and psychological care as well
as legal and social services”.99 Satisfaction includes services and homage to the victims.
Guarantees of non-repetition should include, protecting persons in the legal, medical and
health-care professions, the media and other related professions, and human rights
defenders.100
All these forms of reparation will not be required for human rights violations. In
every case, the purpose will have to be studied as to which reparation measures are
needed to address the specific harm caused. It is noteworthy that reparations are not
recognized as a humanitarian gesture, but rather they are viewed as they are – a rights-
based framework for redress.
97
S.R.Sandhya, “Plight of Crime Victims in India”, Vol.1:2, International Journal of Research and
Analysis, (2013), p.470.
98
Reparation, A Sourcebook for Victims of Torture and Other Violations of Human Rights and
International Humanitarian Law, 1st edn., (The Redress Trust, 2003), p.15.
99
The UN Basic Principles and Guidelines on the Right to Remedy and Reparation for Victims of Gross
Violations of International Human Rights Law and Serious Violations of International Humanitarian Law.
Adopted by the UN General Assembly on 16 December, 2005. Article. 21 (UN Basic Principles) available
@:http://www.ohchr.org/EN/ProfessionalInterest/Pages/RemedyAndReparation.aspx, accessed on June 1,
2014.
100
Supra note 25, Article 23 (d).
73
3.6.2 Restitution
In the perspective of victimology, restitution is an important alternative to

deterrence, rehabilitation and retribution. Restitution focuses on the victim’s loss and
offers ways, means and techniques for mitigating or minimizing the physical,
psychological and social impacts that are experienced personally by victims.101 It is one
of the forms of compensation for the losses and injuries suffered by the victim.
Restitution certainly involves repairing the damage between offenders and victims, as
well as rehabilitating offenders.102 It is defined as restoration of anything unlawfully
taken from another. Thus, “the principle of restitution is an integral part of virtually every
formal system of criminal justice of every culture. It holds that, whatever else the
sanctioning power of society does to punish its wrongdoers, it should also ensure that the
wrongdoer is required to the degree possible to restore the victim to his or her prior state
of well-being”.103 Thus, “Restitution can be defined as a sanction imposed by the part on
a person convicted of a crime which requires the convicted person to make a monetary
payment to the victims or sometimes to donate his labour for the benefit of the
community”.104
According to Akers & Sellers, restitution has three specific goals105: Firstly, it
restores victims by providing financial and psychological benefits. The compensation
aspect of restitution can address both the victim’s financial loss and the victim’s sense of
injustice. Secondly, restitution can serve as a means of changing offenders’ behavior.
This rehabilitation aspect of restitution is aimed at changing offenders’ behavior by
forcing them to recognize both the losses that they have caused and their responsibility
for repairing those losses. Thirdly, restitution has punishment aspects, in that the
requirement of making payments is more onerous than straight probation.
101
Bonnie S.Fisher & Steven P.Lab, Encyclopedia of Victimology and Crime Prevention, (New Delhi:
SAGE Publications Ltd., Vol. II, 2010), p.776.
102
Glen Kercher, et al, “ Restitution in Texas- A Report to the Legislature”, (S. Rep. No. 104-179, at 12,
reprinted in 1996 U.S.C.C.A.N. 924, 925–26), p.3.
103
Attorney General Guidelines for Victim and Witness Assistance, May, 2005, available @: http://
www.legislationline.org/documents/action/popup/id/6803,accessed on January 3, 2014.
104
105
74
3.6.2.1 Concept of Restitution
The conventional view suggests that there is only one principle on which the law
of restitution is dependent, namely the principle of unjust enrichment. Restitution owed to
victims of crimes is a critical part of the criminal judgment. Recently, Courts across the
Commonwealth have recognized that restitutionary awards are essential. It is sanctioned
in cases of wrongdoing as well as for unjust enrichment.106 Restitution to crime victims
has a long history. Mosaic Law, the Code of Hammurabi and Roman law all contained
provisions for restitution. Throughout history, crimes were primarily regarded as harms
against individual victims. But during the 12th century crimes commenced, in Europe,
were gradually viewed as offences against the king’s peace rather than against individual
victims. Offenders were ordered to pay fines to the king’s treasury rather than pay
restitution to a victim who was actually violated.107
Restitution is one of the oldest practices in the world for dealing with local
offences. Though the original rationale for victim restitution diminished over the years,
restitution as a sanction came back in the late 19th and early 20th centuries, when it was
viewed as a means to achieve a major criminal justice goal i.e. offender rehabilitation .108
Stephen Schafer noted that among Indian Hindus and Semitic nations the death fine and
restitution were used, and continued to prevail for centuries. Indian Hinduism required
restitution and atonement; he who atones is forgiven. Islam also enjoins restitution and
atonement.109 In a sense restitution to crime victims has come in full circle. During the
colonial times, it was victims, rather than the State that investigated and prosecuted
crimes, particularly in theft and property crimes which resulted in awards of multiple
damages from the offender.110 Thus it can be understood that from victim’s point of view
restitution will make up the loss he has suffered. But its significance was lost when the
penal laws were developed.
106
James Edelman,“The Measure of Restitution and the Future of Restitutionary Damages”,
available@:http://www.propertybar.org.uk/__data/assets/pdf_file/0006/83778/The_measure_of_restitution
_and_the_future_of_restitutionary_damages,_J_Edelman.pdf accessed on April 12,2015.
107
108
109
J. M.J. Sethna, Society and the Criminal, 4th edn., (Bombay :N.M. Tripathi Pvt. Ltd.,1980 ), p. 207
110
Supra note 20, p .246.
75
3.6.2.2 Status of Restitution
Historically restitution has been considered an offender based remedy. In its

historic connotation restitution was designed to benefit the offender rather than the
victims. In the past, restitution or compensation by an evildoer were related to the
concept of punishment. It was only when the king began to exercise direct control, the
concept of compensation or restitution were separated from criminal law and referred to
the law of torts.111Restitution to crime victims is an important criminal law objective.
Though restitution can be an effective criminal sanction, it is not an appropriate
punishment for all types of crimes, for instance, it is very difficult to quantify in murder
or rape cases as restitution may be less effective. Thus restitution will be inadequate
when sanctioned for violent crimes.
The benefits that restitution offers to victims do not usually make it inappropriate
as a criminal sanction. Restitution has been employed as a punitive sanction throughout
history. In ancient societies, there was a practice to reimburse the victim or his family
even before the separation of civil and criminal law.112 It was only recognized towards
the end of Middle Ages, that the concept of restitution was temporarily merged in penal
law. 113
In ancient Roman law, in spite of the close relationship between criminal law and
civil law it was not easy to get reliable information concerning the position of restitution
in criminal law. According to the law of Twelve Tables in case of theft, the thief, who
was caught in the act of committing the theft, was under an obligation to pay double the
value of the stolen object.114 …. Where the stolen object was found in the course of a
house search he was to pay four times the value if he resisted the execution of the house
search. He was to pay four times the value of the stolen object if he had taken it by
robbery.115 The primary purpose of restitution was not to compensate the victim, but to
protect the offender from retribution from society. Very often the critics of restitution say
111
Supra note102, p.778.
112
Kavita Balakrishnan, “Victim Compensation - Evolution, Indian Response and Global Developments”,
Vol. 6: 46, Journal of Indian Legal Thought, (2008), p.51.
113
Dr. Stephen Schafer, Restitution to Victims of Crime, (London: Stevens & Sons Ltd., 1960), p.5.
114
115
Ibid.
76
that it is a civil remedy and the fundamental duty of criminal law is to redress the public
wrongs.
In working restitution programmes there are some practical impediments: Firstly,

they are time consuming. Secondly, lack of suitable types of work for juveniles is seen.
Thirdly , many offenders lack the earning ability to make the restitution adequate.
Fourthly, very often the victim suspects the soundness of the programme.116
There are many weaknesses in restitution. In many cases, restitution is worthless,

because most offenders have no money and are in underprivileged position.117Restitution
offers only limited possibility.118 On some occasions restitution may not succeed to
endeavor well due to adequate funding agencies. Restitution order is not mandatory. It is
discretionary and possibly will not be sanctioned always. The trend of laissez-faire era in
the 19th century was not willing to restitution and compensation programme which was
predominant in advanced nations. Because of the inadequacy of restitution programme,
emphasis shifted to a species of social insurance administrated by a public agency that
made payment directly to victim. In some cases, restitution is still continued. One of the
rationales which have been advanced in support of proposal for legislation involving
compensation by the State to the victim is that the State has a duty to protect its citizens
from crime and if it fails to do so, it incurs an obligation to indemnify those who are
victimized.119
In nutshell, restitution is an apt and powerful criminal sanction that promotes the
objectives of criminal law namely: rehabilitation, deterrence and retribution. These
objectives will safeguard restitution only within the criminal justice system. Victims may
file a case against the accused after the State imposes criminal sanctions other than
restitution. Society as well as victim has an interest at stake when a crime is committed.
Society may be benefited from the criminal sanctions imposed along with restoring the
financial benefits. But because the victim may not find it beneficial to go for a civil
116
117
118
Nigel Walker, Crime and Criminology; A Critical Introduction, (New York: Oxford University Press,
1987), p. 170.
119
77
action the public benefits of restitution may be lost if the victim is given the choice of
enforcement.
3.6.3 Restorative Justice
The primary aim of the criminal law is to restore peace, heal the injury and
redress the harm of victim. To restrain the injustice and to repair the harm a process,
known as restorative justice was introduced. Restorative justice is about the idea that,
since crime hurts, justice should heal the harm. It follows that conversations with those
who have been hurt and with those who have caused the harm must be central to the
process. Victims take an active role in the process, while offenders are encouraged to take
responsibility for their actions, “to repair the harm they’ve done—by apologizing,
returning stolen money, or community service”. In addition, it provides help for the
offender in order to avoid future offences. It is based on a theory of justice that considers
crime and wrongdoing to be an offence against an individual or community, rather than
the State. Restorative justice that fosters dialogue between victim and offender shows the
highest rates of victim satisfaction and offender accountability.120 Thus, restorative
justice respects the basic human needs of the victim, the offender and the community.121
Its main function is to bring the two disputed parties closer to each other.
According to the restorative model, the administration of justice includes the

active participation of the people directly involved and affected by the criminal activity.
It is a response to crime that seeks to balance the needs of crime victims, criminal
offenders, and the communities to which they belong. It’s aim is exclusive, as it respects
victims, the forgotten component of the criminal justice system. Thus it aims at
encouraging offenders to take responsibility for the consequences of the harm they have
caused to the victims. The restorative justice supports the victims and holds offenders
responsible. But very often it allows the community to take an active role in the justice
process. Therefore restorative process seeks to correct the wrong that has been committed
and to repair the damage that victims, offenders, and communities have encountered.
120
Restorative Justice Project of The Midcoast, available @ : http://www.rjpmidcoast.org/what-is-
restoratative-justice.html ,accessed on January 15, 2014.
121
Supra note 20, pp-264,265.
78
Common examples include restitution, community service, and victim-offender

conferencing.122
The details of implementation of restorative justice in the justice systems of the

early societies is documented in a number of other historical sources, many of which
indicate that punishment, in today’s sense, was an exception rather than the norm. For
example, the Code of Hammurabi (2380 BC), which is one of the first samples of written
law, adopted the practice of individual compensation. On several occasions, this served
as a substitute for the death penalty.123
As an ideology, restorative justice is represented by certain values and principles.

One such value is respect for the dignity of the individual; this is a basic human right,
which can be found in the Universal Declaration of Human Rights, 1948. But in a human
rights perspective both the accused and the victim are treated as subjects of the law. The
second value is the participation of victims and offenders. Victims are invited into the
process and given an opportunity to express their views and concerns. Thus as active
participants’ victims and offenders are empowered and can control the result. Restorative
justice is a process to study how the outcomes or decisions are reached. The third value is
reparation. Offenders will be prepared to recognize the consequences of their activities
and accordingly will be held responsible. Thus the restorative process obviously
recognizes and validates victims and their suffering and seeks to repair the victim.
Reparation can take many different forms from monetary compensation to symbolic
reparation or an apology.124
At the abstract level, “restorative justice is fundamentally concerned with

restoring relationship, with establishing or re-establishing social equality in
relationships”. At a more concrete level restorative justice “involves the victim, the
offender and the community in a search for solutions which promote reconciliation and
122
Janet K. Wilson, The Praeger Handbook of Victimology, (Connecticut: Greenwood Publishing Group,
2009), pp.227- 228.
123
Dr. Theo Gavrielides, “Restorative Practices: From the Early Societies to the 1970s”, Internet Journal of
Criminology,( 2011 ), p.6.
124
79
reassurance”.125 Vans Ness and Heetderks Strong wrote: “What is restorative justice? It is
in a different way of thinking about crime and our response to it. It focuses on future
harm caused by crime. It requires offenders to take responsibility for their actions and the
harm they have caused. It seeks redress for victims, recompense by offenders and
reintegration of both within the community. It is achieved through a cooperative effort by
communities and the government”.126 However, Tony Marshall, a leading British
exponent is typical in seeing restorative justice, not as “a single academic theory of crime
or justice”, but as representing “in a more or less eclectic way, the accretion of practical
experience in working successfully with particular crime problem.127 Marshal points out
that restorative justice is “a process whereby all the parties with a stake in a particular
offence come together to resolve collectively how to deal with the aftermath of the
offence and its implications for the future”.128 But, Bazemore and Walgrave have
proposed a simple definition: “Restorative justice is every action that is primary oriented
towards doing justice by repairing the harm that has been caused by crime”.129 Mc Cold
clearly wrote: “The essence of restorative justice is not the end, but the means by which
resolution is achieved”.130
Howard Zehr states that there are some assumptions131 behind restorative justice:
1. Crime violates people and relationships.
2. Justice aims to identify needs and obligations; so that things can be made
right.
3. Justice encourages dialogue and mutual agreement.
4. Gives victims and offenders central roles , and
5. Is judged by the extent to which responsibilities are assumed, needs met, and
healing is encouraged.
125
Sreekumar R., “Need and Importance of Restorative Justice”, in P. Madhava Soma Sundaram, et al,
Crime Victims and Justice - An Introduction to Restorative Principles, 1st edn., ( New Delhi : Serials
Publications,2008), p.20.
126
Shlomo Giora Shoham ,et al, International Hand Book Of Penology And Criminal Justice, (London:
Ori Beck, Martin Kett, CRC Press , 2008), p.620.
127
128
Student Thesis Mukaddas Alhassan, “An Evaluation of a Victim Offender Mediation Program at a
Juvenile Court”, available @:https://etd.ohiolink.edu/rws_etd/document/get/ysu1280344760/inline,
accessed on June 2, 2014, p.1.
129
130
Ibid., p.622.
131
80
Restorative justice does not primarily ask what should be done to the offender, but
it wants to find solutions to repair the harm. Thus it can be a rehabilitative justice
approach. Hence it is another paradigm according to some advocates.132 Restorative
justice can go a long way without an offender involved. Sometimes if the offender is not
caught, even if the victim is assessed, the partial justice can be done by repairing or
compensating the victim and by restoring public assurance that the crime is not
acceptable.133 Accordingly, restorative justice is not only about restoration but also about
justice, both moral and legal justice.134 Crime causes harm to the victim and justice
focuses on repairing that harm. The criminal justice system should give the victims to
participate in its decision. It becomes the duty of the government to maintain order and
see that there is peace in the society.
The Fundamental principles135 of restorative justice are:
1. The wrongdoer can directly be accountable for the individual victim and the
community affected by the wrongful act.
2. The wrongdoer is required to take direct responsibility for making “things
whole again” to the certain extent that is possible.
3. To provide the victims purposeful access to the Courts and correctional
processes, which allows them to assist in shaping the wrongdoer’s obligation.
4. To encourage the community to become directly involved in supporting
victims, holding wrongdoer’s accountable.
5. To provide opportunities for wrongdoer’s to reintegrate into the community.
The aim of the criminal justice system is to protect the rights of individuals against
the intentional invasion of criminals who violate the basic norms of the society. Criminal
justice system was devised more than a century ago to protect the rights of the innocent
and punish the guilty. In a modern welfare State in order to ensure that innocent persons
may not be victimized, the accused has been granted certain rights and privileges while
the byproduct of crime, i.e. victims are entirely overlooked in misplaced sympathy for
criminal.136 After the crime is committed restorative justice seeks to create non-violent
132
133
Ibid.
134
Ibid., p.626.
135
136
Supra note 50.
81
social relationship in the society. It keeps a proper balance between the victim’s needs
and those of the offender.137
Criminologists and victimologist have used many terms interchangeably so as to

reflect the criminal-victim relationship. Very often the words reparation, restitution,
composition and compensation are used by writers interchangeably. But they differ in
legal philosophy and in administration. Restitution and reparation are used officially and
unofficially. Reparation in simple terms means the action of compensating for wrong or
damage done. Restitution is a process by which offenders are held responsible for the
losses they have caused to the victims of crimes. Composition (compensation) is a tort
remedy. Composition offered an alternative which was in many ways equally satisfactory
to the victim composition combined punishment with damages.138
Although there is not much opposition to the theory or ideological basis for
restorative justice, there is some controversy as to whether or not it will work in practice.
Some victimologist view that the acceptance of restorative justice is based more on
“humanistic sentiments” rather than restorative justice’s effectiveness. According to
Morris, some of the most common criticisms that are used against the practicality or
realism of restorative justice are; restorative justice erodes legal rights; restorative justice
results in net-widening; restorative justice trivializes crime restorative justice fails to
‘restore’ victims and offenders; restorative justice fails to effect real change and to
prevent recidivism; restorative justice results in discriminatory outcomes; restorative
justice extends police powers; restorative justice leaves power imbalances untouched;
restorative justice leads to vigilantism; restorative justice lacks legitimacy; and restorative
justice fails to provide ‘justice’. Additionally, some critics like Gregory Shank and Paul
Takagi see restorative justice as an incomplete model in that it fails to fix the
fundamental, structural inequalities that make certain people more likely to be offenders
than others.139
137
Chandra Sen Pratap Singh, Victims of Crime – Their Rights and Human Rights, 1st edn., (New Delhi:
Deep and Deep Publications Pvt. Ltd, 2010), p.45.
138
139
A Research Project by Dona Mokeira Anyona ,on “Retributive Justice And International Criminal
Court”, available @: http://erepository.uonbi.ac.ke/bitstream/handle/ 11295/60379/ Retributive%20 Justice
%20And%20International%20Criminal%20Court%20%28ICC%29.pdf?sequence=3 accessed on February
7, 2014.
82
However, restorative justice does not primarily ask what should be done to the
offender, but it wants to find solutions to repair the harm. Thus it can be a rehabilitative
justice approach. Restorative justice programmes can be used to reduce the burden on the
criminal justice system, to divert cases out of the system and to provide the system with a
range of constructive sanction.140Though it is true that the victims are generally
acknowledged to be neglected party in the criminal justice process, but restorative justice
will remain as an ideal and was once the predominant response to crime in most
societies.141 Restorative justice is one philosophy or process in which the criminal justice
system seeks to assist victims. It is a philosophy which believes that the disparity in lives
of victims is because of crime. As a result, the offender, who is the cause of such an
imbalance, is persuaded to be involved in reducing the burden that has arisen by bringing
back the victim’s life to normal.142 It reduces the harm and injury by paying
compensation.
3.7 Compensation
The most obvious and concrete form of reparative justice is compensation.

Restitution is used interchangeably with compensation. However, it is the reparation of
the victim’s sufferings and loss, restoring the victims to his place in the community. The
object of compensation is not to give punishment for the wrong inflicted. It is neither a
reward, nor a punishment. The sole purpose is to make good the loss sustained by the
victim or the legal representatives of the deceased. As distinct from restitution, the term
compensation refers to payments made by the State to victims of crime. Victim
compensation, programs are clearly directed toward the restoration of economic loss
sustained by victims of violent crimes.143
3.7.1 Meaning and Definition

Literally, compensation means the money which is given to compensate for loss
or injury. The whole purpose of compensation is to make good the losses sustained by the
140
Handbook on Restorative Justice Programmes, Criminal Justice Handbook Series,( New York: United
Nations Publication) , (2006), p.2.
141
Heather Strang, and Lawrence W. Sherman, “Repairing the Harm: Victims and Restorative Justice”,
Vol. 15, Utah Law Review, (2003),p.16.
142
Supra note 129, pp. 6-7.
143
Hudson, Joe and Galaway, Burt “Crime Victims and Public Social Policy”, Vol.3:6, The Journal of
Sociology & Social Welfare,(2014), p.632.
83
victims or by the legal representatives of the deceased. It is counter balancing of the

victim’s sufferings and loss that result from victimization. It is a sign of responsibility
for a non-criminal purpose and end.144 Compensation, in criminal-victim relationships,
concerns the counter balancing the victim’s loss that results from the criminal attack. It
means making amends to him; or, perhaps it is simply compensation for the damage or
injury caused by a crime against him.145 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.146 We very well know that compensation is a civil remedy but to
redress the victim, it is essential to include victims in criminal laws.
As per the Oxford dictionary,147“Compensation means to provide something good

to balance or reduce the bad effect of damages, loss, injury etc”. Black’s Law
dictionary,148 states that “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”. According to Cambridge dictionary,149 “Compensation means,
money that is paid to someone in exchange for something that is lost or damaged or for
some problem”.
Victim compensation refers to payment or reparations made to a crime victim.

Victims of violent crime may suffer financial stress that is hurtful like their physical
injuries and emotional trauma. Victim compensation works as a monetary restitution by
governmental entities to people injured. The compensation amount comes from the
collection of fines and fees assessed in Court cases.150
Compensation is calculated on two broad heads: (i) special damage or pecuniary

loss i.e. the loss which can be calculated in terms of money e.g. loss of earnings,
144
Supra note 6, p.97.
145
Stephen Schafer, Victimology The Victim and his Criminal, (Virgina:Reston Publishing Company,
1977), p.153.
146
Sammaiah Mundrathi, Law on Compensation-To Victims of Crime and Abuse of Power, 1st edn., (New
Delhi :Deep and Deep Publications Pvt. Ltd, 2002), p.2.
147
Oxford Advanced Learner’s Dictionary, (Oxford: Oxford University Press, 5th edn., 1996).
148
Black’s Law Dictionary, St. Paul, Minn., 7th edn., 1999.
149
Cambridge Advanced Learner’s Dictionary, 2nd edn.,( Cambridge University Press, 2006),available @:
http://dictionary.cambridge.org/dictionary/english/compensation accessed on April 19, 2013.
150
Victim Compensation Law and Legal Definition, available @: http://definitions.uslegal.com/v/victim-
compensation/ accessed on April 20, 2013.
84
expenses for medical treatment etc. and (ii) general damage or non-pecuniary loss i.e. the
loss which cannot be calculated in an objective manner in terms of money e.g. loss of
amenities, pain and suffering, loss of expectation of life, etc.151
There is no mechanism for award of immediate relief and compensation to the

victims in cases where there is any statutory provision for award of compensation that
can only be invoked after the matter is decided on merits.152In State of Gujarat v.
Shantilal, 153 the Apex Court 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 which the Court orders to be done, or 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 the person on whom injury is caused may receive equal
value for his loss or be made whole in respect of his injury. In the ancient period the
offender’s age, sex and prestige of the victim were taken in to consideration while
awarding compensation.154
One of the principles of compensatory justice states that offender must be asked
to pay compensation to the victims. If the offender is unable to pay then State takes the
responsibility to secure justice to victims. Victims of every type of violence or abuse,
including rape, domestic violence, acid attacks etc., are eligible for financial help. Family
members of homicide victims and sex abused child all need compensatory justice. In such
cases State compensation programs gather funds from the criminals and then distribute
this fund to the victims. Thus compensatory justice converts the personal responsibility of
the offender into the liability of the State.
In view of that the compensatory justice should consist of155:

1. A conclusion drawn from the compensation plan that the government has
failed in its responsibility of protecting its citizens from crime.
2. Compensation made available to all victims of crime.
151
R.K.Bag, “Perspectives in Victimology in the Context of Criminal Justice System”, Vol. 105:4,Criminal
Law Journal (1999), p.148.
152
R. K. Mahajan, “Justice to Victims”, Vol.95, Criminal Law Journal, (1989), p.158.
153
AIR 1969 SC 634.
154
Barnes and Teeters, New Horizons in Criminology, 1st edn., (New Delhi :Prentice Hall, 1959), p.88 .
155
85
3. Compensation that includes medical expenses, mental health counseling, lost

wages for victims who are unable to work because of injury caused due to the
reason of the crime, lost support for dependents of homicide victims, funeral
expenses, etc.
4. An effective compensation plan providing a speedy system of compensation.
3.7.2 Rationale for Introducing Compensation Programme
The debate on justification of victim compensation has been carried on

exclusively by the legal professionals. Several justifications for initiating victim
compensation programmes have been progressed in victimological literature in the west.
Though some have proved to be contradictory, still these rationales are generally
reflected in the State’s Victim Compensation Statutes and are able to serve whenever
specific programme procedures are functioning. Thus, even if the particular rationale
cited for the development of any given victim compensation programme is found
inappropriate in itself, the information of the various conflicting justification for victim
compensation will possibly help to explain the development of certain provisions in
compensation Statutes. The rationale156 behind State responsibility may be narrated as
under:
3.7.2.1 The Duty of the State to Protect Citizens
The State has a duty to protect its citizens from crime and that if it fails do so, it
incurs an obligation to compensate those who are ill-treated. If in some cases the State
fails in its obligation to protect the individual, then the State has broken the agreement
and accordingly be liable for the loss caused to the victims of crime.
3.7.2.2 The Welfare Theory
It arises from the assumption that the government exists and functions for the
people. The State has a civilized duty towards poor, the sick, underprivileged,
unemployed, disabled veteran and so on; it has a duty towards the victims of crime too.
However, this duty of State is not based on any contractual obligation but on the social
156
86
conscience of its general public. But no State victim compensation legislation admits this
course.
3.7.2.3 Mercy of Government
Another theory related to the welfare of the victims is the “mercy of government”.
Under this rationale, it is argued that the State has the power to “deal mercifully with
certain individuals”. The government through legislations may grant compensation to the
individuals who have been unfortunate to become victims of criminal incidents.
3.7.2.4 Shared Risk Argument
Another rationale offered for victim compensation is the “shared risk” argument.
Under this case, the government is considered to be an employer or entrepreneur. While
selling the products an employer includes the cost of the risk services in the price of the
manufactured goods. Thus the consumer who makes the payments instead of the risk
services contributes to the payments made to those who have suffered damage. The taxes
paid by the citizens to the government are seen as payment of premium in an insurance
which every citizen covers against the risk of victimization shares with, every other
citizen. Various countries in the world have recognized the responsibility of the State to
compensate the crime victims. “The intention is not that the State should be given the
same liability for compensation as the offender, but that the State should go so far as is
reasonable to ensure that the victim does not suffer undue hardship”.157
3.8 Conclusion
The present criminal justice system largely contains adversarial method under
which prosecution is imposed with the burden of proving crime beyond reasonable doubt,
accused is presumed to be innocent and there is total detachment of Courts from
investigating agencies. All these factors have contributed towards lesser conviction rates.
On the other hand victim compensation is a State obligation. Whether the offender is
traced or not, whether he is convicted or acquitted the victim needs justice in the form of
compensation. Courts must consider victims’ needs.
157
Alphonso, G.M., “Victim Compensation-A Conceptual Analysis”, Vol. II, Central India Law Quarterly,
(1998), p.459.
87
But unfortunately the Courts ignored the interest of the victims, while they are
busy in protecting the interest of the accused. Not only the Courts but also the criminal
justice establishments, including legal scholars, lawyers and criminologist have largely
ignored the victim in the present legal frame work.
Therefore, victim support and awareness is the need of the hour in India. It is
important to provide relief and support to the victims who have suffered physical or
emotional injury as a result of a crime. A sentence of imprisonment or a death sentence to
the accused person may only give some mental relief to the victim or to the family
members of the deceased victim, but it will not compensate the genuine financial loss
sustained by the victim or the family members of the deceased victim. The rights of an
accused are well safeguarded both by the Constitution and other laws of the country. But,
there has hardly been any reference to the rights of the victims of crime towards
restorative justice. So right to compensation and restitution are in reality very significant
to provide relief to the victim of crime or his family members for the injury or loss
suffered by them.158 Defining the term “victim” is of immense importance as falling
within the purview of ‘victim’ is the prime criteria to be eligible for victim compensation.
In the process of prevention of victimization and the protection of victims, there

are many challenges faced in India which are to be tackled through some positive
measures. Victims often feel ignored and twice victimized by the criminal justice system,
hence the justice system should function in a manner that the victim should not feel
frustrated or re-victimized by the State or law enforcement agencies. The needs of the
crime victim are to be fulfilled and changes need to be made to their role in the criminal
justice process.
The role of the crime victim in the justice process should be viewed as a
balancing act. There are many competing interests in determining what the victim’s role
should be .Hence, with a new perspective on the role of victims in the justice process
laws are to be made to balance the issues and interests relating to victim’s rights .The
victim should be more than a witness. The role that the victim plays should be stronger
158
Fhameda Qudder, “Crime Victims’ Right to Compensation in Bangladesh: A Comparative
Approach”,Vol.11 No.31, European Scientific Journal,(2015),available @: http://eujournal.org/i ndex.php
/esj/article/viewFile/6614/6318accessed on August 22, 2016 pp.306-307.
88
with an emphasis on compensation. Victims should be heard in sentencing, feel satisfied,

and be informed throughout case processing as the victims are the ones who feel the
immediate damage caused by the crime. The Courts should also seek victim approval
with the purpose of improving victim satisfaction with their involvement in the justice
process.159
159
Ryan Ruddy, “The Victim’s Role in the Justice Process”, Internet Journal of Criminology, (2014), p.2,
available @:http://www.internetjournalofcriminology.com /Ruddy_The_Victim%27s_Role_in_the_ Justice
_ Process_IJC_Jan_2014.pdf ,accessed on August 23, 2016.

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What is the concept of victimology?

What is the concept of victimology?

What are the issues in victimology?

What are the issues in victimology?

CHAPTER- III

VICTIM COMPENSATION - AN ANALYSIS

Crime is a social phenomenon. In every society the existence of crime and

In the past two or three decades exceptional international movements have

3.2 Concept of Victimology

The word “VICTIMOLOGY” was coined in 1947 by a French lawyer, Benjamin

The concept of victimology can be better understood if we analyze the meaning,

3.2.1 Defining Victimology

As a concept, it is hard to give a generalized definition of victimology, due to the

Andrew Karmen, who wrote a text on victimology, broadly defined victimology

In nutshell, victimology is the study of the scientific study of sufferings

3.3 General background of Victim

The victims of crimes also face certain problems such as:

3.3.1 Victim – A forgotten person

Predominantly, the purpose of criminal justice system is to safeguard the rights of

3.3.2 Victim of Crime: Conceptual Analysis

Today, it is commonly referred to individuals who suffer the injury, loss or

One of the progressive definitions of victim appears in The U.N. Declaration on

People are victims if and only if ;

including physical or mental injury, emotional suffering, economic loss or substantial

of their property, which is dedicated to religion, education, art or science or charitable

Quinney argues that the notion of a “Victim” is a social construction based on

In a nutshell victim includes a person who has suffered physical, emotional, or

3.3.3 Socio-economic Analysis of Position of Victims

3.3.4 Victims under Different Contexts

By the mid of the 20th century criminologists developed methods to categorize

3.3.4.1 The Child Victim

3.3.4.2 The Female Victim

Female is considered by Han V. Hentig as a victim with “another form of

3.3.4.3 Elderly Victims

3.3.4.4 Accident Victims

3.3.4.5 Victims of Abuse of Powers

3.3.4.6 The Minorities

Often minorities become victims of powerful group because of racial, linguistic,

Victimization in itself is not an unusual phenomenon in our society. Annually,

“Victimization is an asymmetrical relationship that is abusive, parasitical,

disasters, diseases and human-rights violations.56 People have become victims of

3.4.1 Different Versions of Victimization

3.4.1.1 Primary Victimization

Primary victimization relates to the direct effects of a crime. Primary victim is a

3.4.1.2 Secondary Victimization

Secondary victimization refers to the indirect result of the criminal act. A

administration of justice process secondary victimization may occur because of

Although one victimization incident is detrimental to persons who fall victims of

3.4.3 Consequences of Victimization

of crime on victims results in emotional and psychological, physical and financial

7. Increased risk of further victimization.

Every crime victim is unique. Individual sufferings are affected by pre-

Brief summaries of the physical, emotional/psychological, and financial impacts

• Grief or intense sorrow.

There are some negative consequences if victim’s rights are neglected:

3.4.4 Legal Remedies - Mapping the Terrain

Fourthly various Statutes relating to Juvenile76, Central excise77, Customs laws78

Sixthly the treatment of compensation in ‘emergency’ situation i.e. at the time of