Evolving Victimological Jurisprudence: A View from Supreme Court Cases

Date01 August 2015
Published date01 August 2015
Subject MatterArticle
G.S. Bajpai* & Ramneek Kaur**
Of late, victimology and concern for crim e victims in criminal
justice policies is increasingly becoming a remarkable feature.
Though there are many impetuses to this development. While it
is mainly the UN Declaration for Victims of Crime , 1985 and a
definite policy thrust in case of many western nations, in case
of India it is chiefly the Supreme Court which has a ddressed the
plight of victims of crime. Interestingly enough, the apex court
in India has been highly sensitive with regard to the concerns
and problems of crime victims and therefore it has, time a nd
again, laid down useful guidelines and suggested new approaches
to mitigate the sufferings of crime victims. This activism of the
Supreme Court in India assumes special significance as there
was hardly any comprehensive official policy or la w to extend
assistance to crime victims. The stu dy has been premised to infer
that extensive case laws on crime victims has in ef fect laid down
a solid foundation to what could be termed a s ‘victimological
jurisprudence’. The present study is undertaken to exami ne and
identify the way in which the Supreme Court of India h as dealt
with victims and position taken on various concerns a nd the
problems of crime victims as expressed in the judgments of the
apex court in past few decades. The present study is divided into
three segments. In the first part an overview of concerns and
problems of crime victims in general has been taken to place the
subject matter of the study in a proper context. In the second
segment, specific issues of victims have been analyzed with the
help of case laws. In the last segments, some useful conclusions
have been extricated.
I. Overview of Concerns of Crime Victims
The term ‘victim’ refers to a person who has suffered any loss or injury
as a result of the act or omission against which the accused person has been
* Professor of Law & Registr ar, National Law University, Delhi.
** LL.M., National Law University, Delhi.
Journal of National Law University, Delhi [Vol. 334
charged and the expression ‘victim’ also includes in itself the gu ardian or
legal heir of a victim.1 Hence, in criminology and criminal law, victim of a
crime can be identified as a person who has been ha rmed individually and
directly by the perpetrator, rather tha n by the society as a whole. It cannot
be denied that that crime af fects the individual victims and their families;
not only this, it also causes significant financial loss to the victims in ma ny
cases. The impact of crime on the victims and their fam ilies can range
from serious physical and psychological injuries to mild disturbances.2 The
most common problem, affecting victims of crime, include: fear, anxiety,
nervousness, self-blame, anger, shame, and d ifficulty in sleeping. These
problems often result in the development of chronic post-traumatic stress
disorder (PTSD).3 Besides this, experience of victimization may result in an
increasing fear in the victim of the crime, and the spread of that fear in the
community.4 A review of legal framework in relation to rights of victims of
crime reveals that except providing compensation, very little has been done
either statutorily or through schemes to address the entire range of problems
faced by victims of crime. Basically two types of rights are recognized in
many jurisdictions in respect of victims of crime. They are, firstly, the
victim’s right to par ticipate in criminal proceed ings (right to be impleaded,
right to know, right to be heard and right to assist the court in the pursuit
of truth) and secondly, the right to seek and receive compensation from the
crim inal court it self for injuries suf fered as well as appr opriate inter im reliefs
in the course of proceedings.5 However, it is sad that in India t he victims
do not have the legal rights and protection they deserve to play their just
role in criminal proceed ings which tend to result in disinterestedness in the
proceedings and consequent distortions in crimina l justice administration.6
The U.N. system wants its member countries to gu arantee rights of victims
of crime through their respective legal systems.7 Accordingly, there is a
need to take a fresh look at the position in which the victim of a crime
is placed in ou r crim inal justic e system.8 It is also significant to note that
1 Criminal Procedure Code 1973, s 2(wa).
2 Ku maravelu Chockalingam, ‘Measu res For Crime Victims In T he Indian Crim inal
Justice System’ (United Nations Asia and Far East Institute)htt p://ww w.unafei.or.jp/
english/pdf/RS_No81/No81_11VE_Chockalingam.pdf> accessed 27 April 2016.
3 L Sebba, Third Parties , Victims and the Criminal Jus tice System (Ohio State University
4 ibid.
5 Dr Justice VS Malimath and others, Report b y the Committee on Refor ms of Criminal
Justice System (Ministry of Home Affairs, Government of India 2003).
6 ibid.
7 ibid.
8 S Mura lidhan, ‘Rights of Victim s in the Indian Cr iminal Justice System’ (2004)
International Enviornmenta l Law Research Cent re
pdf > accessed 11 August 2016.
Evolving Victimological Jurisprudence
2015-2016] 35
the role of a victim of crime in our crimina l justice system, which follows
the common law colonial tradition, is restricted to that of a witness in the
prosecution of an offence. This stems from a negative perception of the
victim of a crime as a person who has “suffered harm, including physical or
mental injury, emotional suffering, economic loss or substantial impairment
of their fundamental r ights.”9 Whereas the accused has several rights, the
victim has no statutory right to protect his or her interest dur ing the criminal
proceedings.10 It is pertinent to note that the victim is not a passive object
but an active component of the whole judicial process. The victim also
deserves similar level of protection and attention from the court like that of
an accused. To strike a balance between the human rights of the accused and
that of a victim by plethora of decisions the Honourable Supreme Court of
India attempted to restore the dignity of the victim and to heal up t he wounds
sustained by the victim. Post Code of Criminal proc edure (Amendment)
Act, 2008 and Criminal L aw Amendment Act 2013, a radical and impactf ul
change is found in the Indian criminal justice system by introducing and
redefining the rights of victim. For example Section 24(8) of the Code of
criminal procedu re provides for engaging of an advocate of his/ her choice to
assist the public prosecutor, Trial of offense under section 376 and 376 (A)
to 376 (D) of the Indian Penal Code as far as practicable by a court presided
over by a woman is also given under Section 26 (A). Further provisions as to
recording of statement of the rape victim at her residence or in a place of her
choice or as far as practicable by the woman police officer in the presence
of her parent or guardian or near relative or a social worker of the nearby
locality are given under Section 157 of CrPC. Also Section 173(1-A) of the
Code of criminal procedure ma ndates a specific time of three months for the
investigating agency to complete the investigation if the allegation relates to
the offence of rape of a child. Despite all these amendments some shortfalls
still exist in our crim inal justice system to protect the right of the victim
which shall be discussed in upcoming sections of this ar ticle.
Victimology recognizes two types of victims: fi rst type consists of direct
victims i.e. those who are alive and suffering on account of the harm inflicted
by the accused while committing the crime and se cond type comprises of
indirect victims who are dependa nts of the direct victims of cri mes who
undergo sufferings due to deprivation of their breadwinner.11
In our efforts to look after and protect the human r ights of the accused/
convict, we cannot forgo the rights of a victim or his family in case of his
9 ibid.
10 Chockalingam (n 2).
11 State of Gujarat a nd Anr v. Hon’ble High Court of Gujarat (1988) 7 SCC 392.
Journal of National Law University, Delhi [Vol. 336
death or who is otherwise incapacitated to earn h is/her livelihood as a result
of criminal act of the accused/convict. The victim is certainly entitled to
reparation, restitution and safeguards of his rights and crimi nal justice would
look hollow if justice is not done to the victim of the crime. A victim of crime
cannot be a ‘forgotten person’ in the criminal justice system. It is he who
has suffered the most.12 The Malimath committee Report (2003) in Chapter
6 strongly espoused the idea of ‘justice to victims’. The Report highlighted
the plight of the victims of crime in every criminal justice process and
recommended the constitution of a Victim Support Service Coordinator to
safeguard the interest of the victim at the trial stage. The special concer n for
victim got incorporated into the Code of Crim inal Procedure 1973 through
measures in the Amendments in 2005, 2006 a nd 2008. The 2008 Amendment
has incorporated an elaborate Victim Compensation Scheme that provides
for every State-Government to set up a Victim Compensation Fund.13 There
is an apparent unprecedented concern for the individual or group victims of
injustices whether present or past in criminal or even non-criminal conflict
situations. The national concern for the ‘victims’ was epitomized in the recent
observation of the Home Minister in the Lok Sabha in the Bhopal disaster
debate: “Twenty five years later we can look back with a sense of regret
and guilt that we did not address the grave matter the way it should have
been… We (Lok Sabha) must send a message that we share thei r (victims’)
grief and sorrow with guilt” We see similar expressions of concern for the
victims of national disasters, communa l riots, honour killi ngs, farmers’
suicides and corporal punishment suicides. It is true that many forms of
victimizations of victim hood may still be outside the domain of criminal
justice administration, but in most of the civilized countries all these new
forms of victimizations are being increasingly subjected to crimina l laws,
thus, brought within the ambit of criminal justice administrat ion.14
Even though no separate and special law has yet been enacted in India
for victims of crime, still the silver lining is that justice to victim has been
rendered through affir mative action and orders of the Supreme Court.
II. Findings & Observations
The trends in victim justice and the constitutional commitment to ‘fair
justice’ to all the citizens seem to have motivated the Indian Supreme Court
12 ibid.
13 BB Pande, ‘Growing Concer n for ‘Victims’ Interest in Criminologica l Theory,
Criminal Law Norm s and Field Level Practices: Implications for Future Action’ (2011)
1(1) KIIT Journal of Law and Society.
14 ibid.
Evolving Victimological Jurisprudence
2015-2016] 37
to evolve distinct victim justice jurispr udence in India. The Supreme Court
in various decisions has taken a ‘pro-victim’ approach. By an exam ination of
some of its decisions and by application of var ious methods of data analysis,
the researchers have made an attempt to identify and categorize the issues
concern ing ‘victi ms’ into suita ble heads.
A. Fair Trials for Victims
Each one has an in built right to be dealt fairly in a criminal trial. It
has to be unmistakably understood that a tr ial which is primarily ai med
at ascertaining the t ruth has to be fair to all concer ned. There can be no
analytical, all-comprehensive or exhaustive definition of the concept of a
fair trial, and it may have to be determined in seemingly inf inite variety of
actual situations with the ultimate object in mi nd viz. whether something that
was done or said either before or at the trial deprived the quality of fairness
to a degree where a miscarriage of justice has resulted.15 This view was
reiterated by the Supreme Court in Central Bureau of Investigation (CBI) v
Hopeson Ningshen16 wherein it was observed that, “it will not be correct to
say that it is only the accused who must be fairly dealt with, that would be
turning a Nelson’s eye to the needs of the society at la rge and the victim or
their family members and relatives.” The concept of fair trial entails familiar
triangulation of interests of the accused, the victim and the society and it is
the community that acts through t he State and prosecuting agencies.17 Even
in cases of delay in trials, it would be a mistake to assume that it is only the
accused who gets affected. Delay in trial causes sufferings to the victims as
much as it does to the accused. In fact in Mangal Singh v Kishan Singh18 ,
the Supreme Court observed that in many cases the victim may suffer even
more than the accused. There is, therefore no reason to give all the benefits
on account of the delay in trial to the accused and to completely deny all
justice to the victim of the offence. The trial would fail because it was not
protected from external interferences and every tria l that fails due to external
interference is a tragedy for the victim(s) of the crime was observed in RK
Anand v Registrar, Delhi High Court.19
15 National Huma n Rights Commission v. Stat e Of Gujarat & Ors 2003 (9) SCALE
16 (2010) 5 SCC 115; See also Zahira Habib ulla H Sheikh v. State of Gujara t (2004) 4
SCC 157 and Himanshu Singh Sabh arwal v. State of MP an d Ors AIR 2008 SC 1943.
17 Mohd Hussain @ Julf ikar Ali v. The State (Govt of NC T) Delhi 2012 (8) SCALE
18 AIR 2009 SC 1535.
Journal of National Law University, Delhi [Vol. 338
B. Rights of the Victims
The rights of the accused find prominent place in the procedura l law but
this is not the case with regard to crime victims Accused persons a re entitled
to a fair trial where their gu ilt or innocence can be determine d. But from the
victims’ standpoint, the perpetrator of a crime should be punished. They stand
poised equally in the scales of justice. Victims interests need to be balanced
vis-à-vis that of accus ed. Views to th is effect ech oed in The National Human
Rights Commission v. State of Gujarat20 and in Vika s Kumar Roorkewa l v.
State of Uttarakhand21. The cour t observed that “Broader public and societal
interests require that the victims of the cr ime who are not ordinarily par ties
to prosecution and the interests of the State represented by their prosecuting
agencies do not suffer even in slow process but irreversibly and irretrievably,
which if allowed would undermine and destroy public confidence in the
administration of justice, which may ultimately pave way for anarchy,
oppression and injustice resulting in complete breakdown and collapse of
the edifice of rule of law, enshrined and jealously guarded and protected by
the Constitution.
Simila rly at the time of considering the r ight of the accused to be released
on bail or otherwise or at the time of imposing an appropriate punishment,
the rights of victim must be considered. While considering the right of the
convict to be released, the principles set out by the Court in Arvind Yadav
v. Ram esh K umar 22 were taken into consideration and the Court in State
of MP v. Kusum23 observed that it is also to be borne in mind that the
victim and the family of the victim who have suffered at the hands of the
convict have also some rights. The convicts have no indefeasible right to be
released.24 And while considering the imposition of appropriate punishment,
the court must not only keep in view the rights of the accused but also the
rights of the victim of the crime. Placing reliance on Shailesh Jasvant bhai
v. State of Gujarat25 and Ravji alias Ram Chandra v. State of Rajasthan26
this was observed in a very recent case Alister Anthony Pareirav State of
Maharashtra.27 T he system and the law has a duty to protect such victims of
crime also.28
21 (2011) 2 SCC 178.
22 2003 CriLJ 2552 (SC).
23 AIR 2007 SC 2647.
24 State of MP v. Abdul Kadir and Anr AIR 2009 SC 1801.
25 2006 (2) SCC 359.
26 (1996) 2 SCC 175.
27 (2012) 2 SCC 648,
28 Kuriachan Chac ko and Ors v. State of Kerala (20 08) 8 SCC 708.
Evolving Victimological Jurisprudence
2015-2016] 39
C. Role of Victim in various stages of proceeding
It is interesting to find that the inquisitorial criminal system assigned a
very active role to the victim or his representative in criminal proceedings.
For example, in France, all those who suffer damage on account of the
commission of an offence are entitled to become parties to the proceedings
from the investigation stage itself.29 However in India, the right of victim
to participate in the crim inal proceedings is al most absent. The victim
has no right to lead evidence, he cannot challenge the evidence through
cross-examination of witnesses nor can he advance arguments to influence
decision-making.30 An appraisal of the role of a victim at different stages in
a proceeding would be in order:
1. Investigation
An accused is entitled to a fair investigation since the fair investigation
and fair trial a re concomitant to preservation of fundamental right of an
accused under Article 21 of the Constitution of India. But the State has a larger
obligation i.e. to maintain law and order, public order and preservation of
peace and harmony in the society. A victim of a crime, thus, is equally entitled
to a fai r investiga tion.31 In Parvin derjit Singh v. State (UT Chandigarh)32
the court observed that the free dom of an accused can be curtailed a nd he
can be arrested for the purp ose of protecting the victim and proceeding with
the investigation without hindrance. The investigation process is exclusively
a police function and the victim has a role only if the police consider it
necessary. There are administrative instructions given by police departments
of certain States to give information on progress of investigation to the
victim when asked for. Otherwise till police report (charge sheet) is filed
under Section 173 Cr.P.C., the victim’s plight is pitiable.33 After the police
report is taken cognizance of by the Magistrate, if he decides to drop the
proceedings, it is required of him to hear the victim-in formant by issuing
notice to him.34 The Cour t seems to have recognized a gap in the statutory
provision and enjoined the court not to drop proceedings without giving an
opportunity to the victim to ventilate his gr ievance.
29 Law Resource India, available athttps://indialawyers.wordpress.com/tag/criminal-
justice-system/page /4/(Visited on Apr il 29, 2016)
30 Malimath Committee Report (n 5).
31 Nirmal Singh Kah lon v. State of Punjab an d Ors AIR 2009 SC 984.
32 (2008) 13 SCC 431.
33 Malimath Committee Report (n 5).
34 1997 CrLJ 4636 (SC).
Journal of National Law University, Delhi [Vol. 340
2. In framing of charge
At the stage of discharging a n accused or framing of the charge, the
victim does not participate in the proceed ing. While framing the charge, the
rights of the victim are also to be taken care of as that of the accused, the
Court directed i n RS Mishra v. State of Orissa.35 That responsibility lies on
the shoulders of the Judge. Therefore, on the analogy of a discharge order,
the Judge must give his reasons at least in a nutshell, if he is dropping or
diluting any charge.
4. While determining the nature of offence
It was observed in Sitaram Paswan v. State of Bihar36 that the impact
which the offence had on the victim should be considered while determining
the nature of offence. The award of punishment for commission of offences
should be proportional and commensurate with the gravity of offence
committed. Furt her it was held that the facts and given circumstances in
each case, the nature of the crime, the man ner in which it was planned
and committed, the motive for commission of the crime, the conduct of the
accused, the nature of weapons used and all other attendi ng circumstances
are relevant facts which would enter into the area of consideration.
5. While deciding Punishment
While considering the imposition of an appropriate punishment, the
rights of the victim should be kept in mind. Relying on the landmark
case of Dhananjoy Chatterjee v. State of WB37, wherein this Court had
observed that “shockingly large number of criminals go unpunish ed thereby
increasingly, encouraging the criminals and in the ultimate mak ing justice
suffer by weakening the system’s creditability. The imposition of appropriate
punishment is the manner in which the Cour t responds to the society’s cry
for justice against the criminal. Justice dema nds that Courts should impose
punishment befitting the crime so th at the Courts reflect public abhorrence
of the crime…”, the Cour t in State of Madhya Pradesh v. Santosh Kumar 38
observed that t he Court must not only keep in v iew the rights of th e criminal
but also the rights of the victim of the crime while considering the imposition
of appropriate punishment.
35 (2011) 2 SCC 689.
36 AIR 2005 SC 3534.
37 [1994] 1SCR 37.
38 AIR 2006 SC 2648.
Evolving Victimological Jurisprudence
2015-2016] 41
D. Compensation to the Victim
Compensation is awarded towards sufferance of any loss or injury by
reason of an act for which an accused person is sentenced. Prior to CrPC
(Amendment Act) 2008, India was lacking a comprehensive legislation for
compensation to victims of crime. The 2008 Amendment Act has insert ed a
new section 357A which provides the mechanism to provide compensation
to the victim. Every state government in consultation with the central
government shall prepare a scheme for providing compensation to victim
or his dependents who have suffered loss as a result of the crime and who
require rehabilitation. The District Legal Service Authority or the State
Legal Service Authority shall decide the quantum of compensation af ter
the recommendations made by the court. However, prior to 2008 despite
the absence of any special legislation to render justice to victims in India,
the Supreme Court has taken a proactive role and resorted to affi rmative
action to protect the rights of victims. The court has adopte d the concept
of restorative justice and awarded compensat ion or restitution or enhanced
the amount of compensation to victims, beginni ng from the 1980s.39 It is
a sound policy to punish the wrong-doer and it is in that spirit that the
court s have moulded the reliefs of grant ing comp ensation to the vict ims in
exercise of the powers conferre d on it.40 Prior to 2008, Section 357(3) of
CrPC provided for compensation though in the form of fine. In KA Abbas
HSA v. Sabu Joseph41 observed that the whole purpose of this provision is
to accommodate the interests of the victims in the cri minal justice system.
While observing the same, the Cour t had placed reliance on the case of Har i
Kishan v. Sukhbir Singh42 wherein th is Court had observed that in addition
to conviction, the Court may order the accused to pay some amount by way
of compensation to the victim who has suffered by the action of accused.
It may be noted that this power of courts to award compensation is not
ancillary to other sentences but it is in addition thereto.43 It is a measure
of responding appropriately to crime as well of reconciling the interest of
the victim with that of offender.44 Sect ion 357 provided some reliefs to the
victims as it empowered the courts to direct payment of compensation to any
person for any loss or injury caused by the offence. But in practice the said
39 Sukhdev Singh v. State of P unjab 1982 SCC (Cr) 467; Balraj v. State of UP 1994 SCC
(Cr) 823; Giani Ram v. State of Haryana A IR 1995 SC 2452; Baldev Singh v. State of
Punjab AIR 1996 SC 372.
40 Priyanka Estates In ternational Pvt Ltd and Ors v. State of As sam and Ors AIR 2010
SC 1030.
41 (2010) 6 SCC 23.
42 AIR 1988 SC 2127.
43 Balraj v. State 1995 CriL J 3217 (SC).
44 Manish Jalan v. State of Karnataka AIR 2008 SC 3074.
Journal of National Law University, Delhi [Vol. 342
provision was not proved to be of much effectiveness. Many persons who
were sentenced to long term imprisonment did not pay the compensation
and instead chose to continue in jail in default thereof. In State of Gujarat
v. Hon’ble High Court of Gujarat,45 the court suggested that it would be a
constructive thinking for the State to make appropriate law for diverting
some portion of the income earned by the prisoner when he is in jail to b e
paid to deserving victims. It recommended the States’ concerned to make
law for setting apart a portion of the wages earned by the prisoners to be
paid as compensation to deserving victims of the offence, the commission of
which entailed the sentence of imprisonment to the prisoner, either dire ctly
or through a common fund to be created for this pu rpose or in any other
feasible mode.
Victim compensation as now made applicable by Cr.P.C however, does
not require the apprehension and conviction of the offender to provide
financial relief to the victims. The only point to be considered is that the
amount of compensation payable to victim must be a fair and reasonable
one. There has been mention of fair and reasonable compensation time and
again but what would be a perfect compensation is the confusing question.
Faced with the similar dilemma, the cour t in Arvind Kum ar Mishra v. New
India Assurance Co Ltd
46 observed that perfect compensation is hardly
possible but one has to keep in mind that the victim has done no wrong; he
has suffered at the hands of the wrongdoer and the court must take care to
give him full and fair compensation for that he had suffered. In some cases
for personal injury, the claim could be in respect of life time’s earnings lost
because, though he will live, he cannot earn his l iving. In others, the claim
may be made for partial loss of earnings. Each case has to be considered
in the light of its own facts and at the end, one must ask whether the sum
awarded is a fair and reasonable sum.
Hence, the amount of compensation indisput ably should be determine d
having regard to the pecuniary loss caused to the dependents by reason of
the death of the victim47 or should be proportionate to the injury caused.48
In India Insurance Co Ltd v. Patricia Jean Mahajan 49 the Court observed
that the purpose to compensate the dep endants of the victims is that they
may not be suddenly deprived of the source of their maintenance and as far
45 MANU/SC/0632/1998.
46 (2010) 10 SCC 254.
47 Oriental Insuran ce Company Ltd v. Jash uben and Ors AIR 2008 SC 1734.
48 Reshma Kumari v. Madan Mohan (2009) 13 SCC 422.
49 [2002] 3 SCR 1176.
Evolving Victimological Jurisprudence
2015-2016] 43
as possible they may be provided with the means as were available to them
before the accident took place.50
Compassionate treatment of victims under t he criminal justice system
itself leads to belief in the system which is enhanced by way of compensation
programs, independent of conviction of offenders.51 In Ankush Shivaji
Gaikwad v. State of Maharashtra52, this has b een s tress ed th at it i s obl igator y
on the court to assess the question of awarding of compensation in every case
and this power under section 357 of Cr.P.C. is not ancillar y to other sentences
but in addition thereto.
E. Victims of Custodial Crimes
An accused while in custody can be the victim of abuse of power. Though
several constitutional and statutory-provisions have been enacted to safeguard
the life and personal liberty of citizens, incidents of tortur e and death in the
police custody are ever on the rise. In spite of condemnation of such acts by
the Courts, certai n police officials conduct themselves in a manner resulting
into gruesome torture and deat h of suspects in the police custody. There is
no manner of doubt that these are the most heinous crimes comm itted by
persons, who claim to be the protectors of the citizens. What is distressing
to note is that the incidents of torture and death in the police custody take
place under the shield of uniform and authority, in the four walls of a police
station or in the lock-up, where the victims are totally helpless.53 In Jaywant
P Sankpal v. Suman G holap,54 where an illegally arrested accused became
the victim of the assault, the Court observed that i f a person is physically
tortured while he is in custody, it clearly shows violation of norms relating to
custody of person arrested or detained in connection with any offence.
Considering the increasing number of cases of custodial violence, it is
required that while dealing with the cases of custodial violence, the Courts
should adopt a realistic approach rather than a narrow technical approach.
The courts are a lso required to have a change in their outlook approach,
appreciation and attitude and should exhibit more sensitivity towards such
cases. Following such approach, the Court in Singh Gautam (D) v. State
50 Arun Kumar Agrawal an d Anr v. National Insu rance Company a nd Ors (2010) 9
SCC 218.
51 Bhumika Sharma, ‘Compensat ion to Victims of Cri me Under Cri minal Law’ (Mighty
Laws, 10 May 2011)http://www.mightylaws.in/573/compensation-victims-crime-
criminal-law>accessed 11 August 2016.
52 (2013) 6 SCC 770.
53 K H Shekarappa a nd Ors v. State of Karnata ka (2009) 17 SCC 1.
54 (2010) 11 SCC 208.
Journal of National Law University, Delhi [Vol. 344
of MP,55 recommended that the Government and the legislature must bring
about appropriate changes in the law not only to curb the custodial crime
but also to see that the custodial crime does not go unpunished. Accordi ng
to the Court, it must be ensured that “the truth is found and guilty should
not escape so that the victim of the crime has the satisfaction that ultimately
the majesty of law has prevailed”
F. Rape Cases
Rape is not mere a physical assault, rather it often shakes the whole
existence of the victim56. Such sexual violence apart from being a
dehumanising act, is an unlawful intr usion of the right to privacy and
sanctity of a female. The Indian judiciary has been quite sensitive about
rape cases. In Rajinder @ Raju v. State of HP,57 the Court held that the rapist
not only violates the victim’s privacy and personal integrity, but inevitably
causes serious psychological as well as physical har m in the process. Rape is
unique among crimes, in the sense, the manner in which its victims a re dealt
with by the criminal justice system. Raped women have to undergo certain
tribulations. These begin with their treatment by the police and continue
through a male-dominated cr iminal justice system.58 It is a serious blow
to her supreme honour and offends her self-esteem and dignity. It degrades
and humiliates the victim and where the victi m is a helpless innocent child,
it leaves behind a traumatic experience. The courts are therefore, expected
to deal with cases of sexual crime against women with utmost sensitivity.
Perhaps keeping this view in mind, the 2008 Act added a clause in section
26 of the Cr.P.C that any offence related to rape shall be tried as far as
practicable by a Court presided over by a woman. Section 327(2) Cr.P.C
which provided for the cases (mostly sexual offences) in which the trial is to
be conducted ‘in camera’ was also amended thereby adding a proviso that ‘in
camera’ trial shall be conducted as far as practicable by a woman Judge or
Magistrate. A proviso is also added to sub-section (3) which states that the
ban on printing or publication of trial proceedings in relation to an offence
of rape may be lifted, subject to maintaining confidential ity of name and
address of the parties. Such cases need to be dealt with sternly and severely.
The court in the case of State of Kar nataka v. S Nagaraju59 while dealing
with the offence of rape and its traumatic effect on a rape victim, referred
55 AIR 2005 SC 402.
56 State of Orissa v. Thaka ra Besra and Anr AIR 2002 SC 1963.
58 State of Madhya Prad esh v. Babulal AIR 2008 SC 582.
59 2002 (3) ACR 2220 (SC).
Evolving Victimological Jurisprudence
2015-2016] 45
the observation of the Supreme Court in State of Punjab v. Gurmit Singh60
“Of late, crime against women in general and rape in particu lar
is on the increase. It is an irony that while we are celebrating
women’s right in all spheres, we show little or no concern for
her honour. It is a sad reflection on the attitude of indif ference of
the society towards the violation of huma n dignity of the victims
of sex crimes. We must remember that a rapist not only violates
the victim’s privacy and personal integrity, but inevitably causes
serious psychological as well as physical harm in the process.
Rape is not merely a physical assault- it is often destructive of the
whole personality of the victims. A murderer destroys the physical
body of his victim, a rapist degrades the very soul of the helpless
female. The courts, therefore, shoulder a great responsibility while
trying an accused on charges of rape. They must deal with such
cases with utmost sensitivity.”
In Vithal Tukaram More v. State of Maharashtra61 the Court took a
view that in a sound criminal justice system, such offences against women
should not escape unpunished but it is equally desirable in social interest
that members of the family of the victim are not made to suffer punishment
merely because of their relation with the deceased. It is the duty of the
Courts to see that the pena l provisions intended to curb such crimes by
bringing the offenders to book do not cause injustice to innocent people.
The Court has to consider the plight of the victim in a case involving rape
and the social stigma that may follow the victim to the grave and which in
most cases, practically ruins all prospect s of a normal life for the victim.
The Court made a similar obser vation in State of MP v. Bala @ Balaram62
and observed that it is true that reformation as a theory of punishment is
in fashion but under the guise of applying such theory, courts cannot forget
their duty to society and to the victim.
G. Sole Evidence of Prosecutrix/Victim
In various judicial pronouncements, the Court has taken a stand that
the victim complaining of having been a subject of offence of rape is not an
accomplice of the crime and there is no rule of law that her testimony cannot
be acted without corroboration in material part iculars.63 She stands at a higher
60 1996 CriL J 4466.
61 AIR 2002 SC 2715.
62 AIR 2005 SC 3567.
63 State of Himacha l Pradesh v. Shree Kant Shekar i AIR 2004 SC 4404.
Journal of National Law University, Delhi [Vol. 346
pedestal than an injured witness. In the lat ter case, there is injury on the
physical form , while in the for mer it is both physical a s well as psychological
and emotional.64 Giving guidance to the courts for appreciating evidence of
prosecutrix in cases of rape, the Court i n the landmark judgment of State
of Punjab v. Gurmit Singh65 observed that if evidence of the prosecutrix
inspires confidence, it must be relied upon without seeking corroboration of
her statement in material part iculars. If for some reason the Court finds it
difficult to place implicit reliance on her testimony, it may look for evidence
which may lend assurance to her testimony, short of corroboration require d
in the case of an accomplice.66
In State of Maharashtra v. Chandraprakash Kewalchand Jain67, it has
been observed that a woman, who is the victim of sexual assault, is not an
accomplice to the crime but is a victim of another person’s lust and, therefore,
her evidence need not be tested with the same amount of suspicion as that
of an accomplice; placing reliance on the Court took this view in Vijay @
Chinee v. State of Madhya Pradesh.68 Further in Bharwad a Bhoginbhai
Hirjibhai v. State of Gujarat,69 the Hon’ble apex court took the view, “In the
Indian setting, refusal to act on the testimony of a victim of sexual assault
in the absence of corroboration as a rule, is adding insult to injury. Why
should the evidence of the girl or the woman who complains of rape or sexual
molestation be viewed with the aid of spectacles fitted with lenses tinged
with doubt, disbelief or suspicion? It was further pointe d out that on principle
the evidence of a victim of sexual assault stands on par with evidence of an
injured witness. Just as a witness who has sustained an injury (which is not
shown or believed to be self inflicted) is the best witness in the sense that he
is least likely to exculpate the real offender, the evidence of a victim of a sex-
offence is entitled to great weight, absence of corroboration notwithstanding.
Relying on the view taken by the Court in Rafiq v. State of UP70 which al so
echoed again in Bharwada Bhogiabhai and Hirjibhai v. State of Gujarat,71
in State of Kerala v. Kurissum Moottil Antony72 it was held that an accused
cannot cling to a fossil formula and insist on corroborative evidence, even
64 State of UP v. Pappu @ Yunus and Anr (20 05) 3 SCC 594; Radhu v. State of Madhya
Pradesh (2007) 12 SCC 57; State of UP v. Munshi (2008) 9 SCC 390; Alamelu and A nr
v. State represented by Inspector of Police (2011) 2 SCC 385.
65 1996 Cri LJ 1728 (SC).
66 State of Orissa v. Thakara Besra a nd Anr AIR 2002 SC 1963.
67 AIR 1990 SC 658.
68 (2010) 8 SCC 191.
69 1983 CriLJ 1096 (SC) .
70 1980 Cri LJ 1344 (SC).
71 Bharwada (n 69).
72 2006 (12) SCALE 94.
Evolving Victimological Jurisprudence
2015-2016] 47
if taken as a whole, the case spoken to by the victim strikes a judicial mind
as probable. Judicial response to human rights cannot be blunted by legal
jugglery. A victim of molestation and indignation is in t he same position as
an injured witness and her testimony should receive the same weight.73 In
State of Himachal Pradesh v. Asha Ram74 it was held that ‘it is now well-
settled principle of law that conviction can be founded on the testimony
of the prosecutrix alone unless there are compelli ng reasons for seeking
corroboration. The evidence of a prosecutrix is more reliable than that of an
injured witness. The testimony of the vicim of sexual assault is vital unless
there are compelling reasons which necessitate looking for corroboration of
her statement , the Courts should f ind no difficulty i n acting on the testi mony
of a victim of sexual assault alone to convict an accused where her testimony
inspires confidence and is found to be reliable. It is also well-settled principle
of law that corroboration as a condition for judicial reliance on the testimony
of the prosecutrix is not a requirement of law but a guidance of prudence
under given circumstances. Even minor contradictions or insignificant
discrepancies in the statement of the prosecutrix should not be a ground for
throwing out an otherwise reliable prosecution case.’
Hence it is settled position of law that the conviction for offence under
Section 376 on the sole testimony of a rape victim if the evidence of the
prosecutrix is found to be credible and convincing.75 The character of the
victim is really of no consequence while adjudicating the question as to
whether any rape was committed on her or not. The Court in Sta te of UP v.
Pappu @ Yunus76 obs erv ed t hat e ven a ssum ing tha t the vic tim w as p revio usly
accustomed sexual intercourse that is not a determinative question. On the
contrary, the question which was required to be adjudicated was did the
accused commit rape on the victim on the occasion complained of. Even if it
is hypothetically accepted that the victim had lost her virginity earlier, it did
not and cannot in law give licence to any person to rape her. It is the accused
who was on trial and not the victim. Even if the victim in a given case has
been promiscuous in her sexual behavior earlier, she has a right to refuse to
submit herself to sexual intercourse to anyone and everyone because she is
not a vulnerable object or prey for being sexually assaulted by anyone and
everyone.77 Even to constitute offence under Section 377 IPC, statement of
victim is sufficient even though not corroborated.78
73 Premiya @ PremPrakash v. Sta te of Rajasthan (2008) 10 SCC 81.
74 AIR 2006 SC 381.
75 State of HP v. Suresh Kumar @ D C [2009] 11 SCR 143.
76 (2005) 3 SCC 594.
77 State of UP v. Munshi (2008) 9 SCC 390.
78 Childline India Foun dation and Anr v. Alla n John Waters and Ors (2011) 6 SCC
Journal of National Law University, Delhi [Vol. 348
H. Obligations of the Court
Being the protectors of the civil liberties of the citizens, Courts have
an obligation to grant relief in exercise of its jurisdiction under Articles
32 and 226 of the Constitution to the victim or the heir of the victim
whose fundamental rights under Ar ticle 21 of the Constitution of India a re
established to have been flagrantly infringed, notwithsta nding the right of
the citizen to the remedy by way of a civil suit or criminal proceedings was
observed in SPS Rathore v. State of Haryana.79 The same was reiterated
in Sta te of West Bengal v. The Committee for Protection of Democratic
Rights, West Bengal.80 In the latter case it was also observed that Article
21 of the Constitution in its broad application not only takes withi n its fold
enforcement of the rights of an accused but also the rights of the victim.
While trying the accused on charges of rape, the Court has a great
responsibility to deal with the case with utmost sensitivity since the victim
is helpless female. Reiterating the landmark decision of State of Punjab
v. Gur mit Singh ,81 where the Court pointed out that “Rape is not merely
a physical assault – it is often destructive of the whole personalit y of the
victim. A murderer destroys the physical body of his victim, a rapist degrades
the very soul of the helpless female. The Court, therefore, shoulder a great
responsibility while trying an accused on charges of rape. They must deal
with such cases with utmost sensitivity”, in State of Rajasthan v. NK the
accused,82 the Court observed that “It is true that the golden thread which
runs throughout the cobweb of criminal jurisprudence as administered in
India is that nine guilty may escape but on e innocent should not suffer. But
at the same time no guilty should esca pe unpunished once the guilt has been
proved to hilt. An unmerited acquittal does no good to the societ y. If the
prosecution has succeeded in making out a convinci ng case for recording a
finding as to the accused being guilty, the court shou ld not lean in favour of
acquittal by giving weight to irrelevant or insignificant circumstances or by
resorting to technicalities or by assuming doubts and giving benefit thereof
where none exists. A doubt, as understood in criminal jurisprudence, has to
be a reasonable doubt and not an excuse for a fin ding in favour of acquittal .
An unmerited acquittal encourages wolves in the society being on the prowl
for easy prey, more so when the victims of crime are helpless females. It is
the spurt in the number of unmerited acqu ittals recorded by criminal courts
which gives rise to the demand for death sentence to the rapists. The Courts
79 (2005 ) 10 SC C 1.
80 (2010) 3 SCC 571.
81 Gurmit Singh (n 65),
82 2000 CriLJ 2205 (SC).
Evolving Victimological Jurisprudence
2015-2016] 49
have to display a greater sense of responsibility and to be more sensitive
while dealing with charges of sexual assault on women”.
I. Miscellaneous
1. Convenience of victim to institute a case
Where an act against the victim has been done on a foreign land, it
should be the discretion of the victim as to where to file a complaint. He
could choose the court of his convenience and it should not be mandatory for
him to make a complaint in the place where the accused is to be found. The
court in Om Hemrajani v. State of UP83 obser ved that “The victim who has
suffered at the hands of the accused on a foreign land can complain abou t
the offence to a Court, otherwise competent , which he may find convenient.
The convenience is of the victim and not that of the a ccused”. It was further
observed that “it is possible for a complainant to file a complaint against
an accused in any Court in the countr y. But then we cannot compare the
question of convenience of the accused at the cost of victim’s convenience.
Between the two, the convenience of the latter has to prevail.”84
2. Delay in Lodging F.I.R
In many cases, the victim, apart from the injury suffered by him/
her remain under stress for not being able to register the case too quickly.
Barring a few exceptional situations in certain cases the Indian judiciar y, by
and large, held that delay in lodging FIR shall not be ground to deny justice
to the victim.85
3. Choice of Advocate
Any cr iminal act is considered as a wrong against the State and hence
it is the duty of the State to institute the case on behalf of primar y victim.
The Cr.P.C provides for the appointment of Public Prosecutor and Assistant
Public Prosecutor to represent the case of victim on behalf of the state. The
right of representation by lawyer is a constitutional right of every accused
and there is no reason why it should not be available to the victim as well.
Considering the same, the 2008 Act added a clause in Section 24 that the
court may permit the victim to engage an advocate of his choice to assist the
83 AIR 2005 SC 392.
84 See also Mu saraf Hossain Kha n v. Bhagheeratha Engg Ltd an d Ors AIR 2006 SC
85 Ravi v. Badrinarayan (2011) 4 SCC 693.
Journal of National Law University, Delhi [Vol. 350
III. Summing Up
The present paper is an attempt to highlight the evolving victimological
jurisprudence. A catena of cases have been examined and studied to show
how the Supreme Court has evolved the victimological jurisprudence in
the last decade to consider the victims in terms of privileges on the same
footing as the accused in the crimi nal justice system. Due to the absence
of any legislation on this aspect, the sufferer of crime i.e. the victim is
seemed to be ignored. Though the Supreme Court in numerous cases have
tried to establish the role of the victim in the trial but very less has been
done till now to consider victims on the same footing as the accused is in
terms of privileges. It can be said that the Supreme Court is now shifting its
focus to balance the positioning of the victim vis-à-vis the accused. In fact
the victim centric approach of the apex court now makes a positive move
towards providing adequate compensation, rehabilitation, and sensitivity etc.
However the absence of a comprehensive legislation for victims of crime
often defeat the basic needs and services that victims deserve.
From the study carried out on the approach of the Supreme Court on the
diverse issues related to victims, it can be said that efforts have been made by
the Supreme Court to consider the concerns pertain ing to victims. Following
are a few relevant findings:
sufferings to the victims as much as it does to the accused, While
framing the charge, the rights of the victim a re also to be taken care
of as also that of the accused etc.
hands of the convict have also some rights.
on the victim should be considered while determining the nature of
the compensation must be determined as proport ionate to the injury
an act against the victim has been done on a foreign land, it should
be the discretion of the victim as to where to file a complaint.
adopt a realistic approach. The courts are a lso required to have a
change in their outlook approach, appreciation and attitude and should
exhibit more sensitivity towards such cases.
Evolving Victimological Jurisprudence
2015-2016] 51
rape and the social stigma that may follow the victim to the grave and
which in most cases, practically ruins all prospects of a norma l life
for the victim.86
rape is not an accomplice after the crime. There is no ru le of law that
her testimony cannot be acted upon without corroboration in material
particulars. She stands at a higher pedestal t han an injured witness.
From the above observations and findings of Supreme Court on ‘victims’,
it becomes clear that, the Supreme Court has laid down a foundation of
victimological jurisprudence and this could serve as foundation for evolving
suitable law and the policy on the issues relating to victims . However, it is
observed that though there is a change in approach of the Court from the pro-
accused to pro-victim, it cannot be said that there is a complete shift in its
approach. The victim is not altogether ignored in the criminal justice system.
More over, even though the judicial pronouncement are clear ‘indicators’ of
trends of change, the real change will depend upon change in the mind set
of the criminal justice functionar ies such as the Police, the Prosecutors, the
judges and the lawyers. The role of the trial court judges assumes a great
importance. In many cases the apex court demonstrated t hat the judges in
the lower judiciary within the existing legal framework can afford to be just
and more sensitive to the victims of crime. So long victims are denied the
right to effectively participate in the investigation and prosecution, the often
asse rted e qualit y to al l would be seen th at the c rimi nal just ice syste m is til ted
in favour of the suspected criminals.
It is worthwhile to mention that the gradual shift in the approach of
the Supreme Court is a positive sign but other organ of the govern ment i.e.
the legislature has to make a conscious efforts to consider the rights of the
victims. There are legitimate reasons to bring on par the victim s of crime
with the accused persons who have been bestowed with the constitutional
right to have competent lawyers of their choice to put up the defence against
the prosecution but it is also a fact that the victims of crime or complainants
alleging serious offence have least say in the entire trial in which they alone
have the biggest stake. A lawyer can be provided to an accused who is a
poor fellow in a criminal case and fair hear ing is part of the fundamenta l
right. But there is no legal sanctity accorded to a complainant’s right to have
a lawyer of his/her choice. The only provision to this effect is enumerated
under Section 24(8) of CrPC which says that court may permit the victim to
engage an advocate of his choice to assist the prosecution. However there is
86 State of Rajasthan v. Vinod Ku mar (2012) 6 SCC 770.
Journal of National Law University, Delhi [Vol. 352
nothing to ensure that victim gets an ample opportunity a nd availability of
a competent counsel of his/her choice. If the state can pay for the counsel
of accused, why can’t it extend the same relief to the millions of victims
of crim e?87 Though it has realized its responsibility towards the accused
by making provisions such as to be produced before the magistrate within
twenty-four of arrest, right to consult advocate of his choice, right to be
informed on the grounds of arrest etc., the rights of the victims are yet to be
codified. It is clear that if the crim inal proceedings have to be reasonable,
just and fair to both the parties, the law has to recogniz e the right of victim’s
participation in investigation, prosecution and trial. If the victim is dead,
or otherwise not available this right should vest in his/her fami ly, relative
or next kin. It should be possible even for Government Welfare bodies and
voluntary organizations registered for welfare of victims of sexual offences,
child victims, those in charge of the care of aged and handicapped per sons
to implead themselves as parties whenever the court finds it appropriate for
a just disposal of the case.88 In the absence of any express legislation, there
are many challenges in the process of prevention of victimization and the
protection of victims. Thus, the need of the hour is, to have a legislation for
protection of victims and also provision such as choice of advocate, providing
rights to involvement in procee dings so that a fair trial can b e conducted,
health and safety of the victims, providing full cooperation by the executive
agencies and fair treatment etc. and various such other rights which would
help victim to restore back in position.
87 Rakesh Bhatnagar, ‘It Is Unfair To Deny Effective Legal Aid To Victims Of Crime’
DNA (Mumbai, 16 January 2012) http://www.dnaindia.com/analysis/comment-it-is-
unfair-to -deny-effe ctive-legal-a id-to-victi ms-of-cr ime-1638060> a ccessed 11 Augu st
88 Malimath Committee Report (n 5) .

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