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Concept Of Punishments Under Law Of Crime And Compensation To The Victims Of Crime

Object Of The Punishment

The object of punishment is the prevention of crime, and every punishment is intended to have a double effect, viz., to prevent the person who has committed a crime from repeating the act or omission and to prevent other members of the society from committing similar crimes.

Theories Of Punishment

  1. Retributive theory: This theory is based on the principle of an eye for an eye and a tooth for a tooth. It is based on primitive nature of vengeance against the wrong doer. The Supreme Court has recently laid down that an eye for an eye approach is neither proper nor desirable. Mandate of Section 354 (3) Cr.P.C. does not approve of it.

  2. Deterrent theory: According to this theory the punishment is awarded to deter people from committing the emotion of fear plays a vital role in man's life.

  3. Preventive theory: This has also been called Theory of disablement as it aims at preventing the crime by disabling the criminal. In order to prevent the repetition of the crime the offenders are punished with death, imprisonment for life or transportation of life.

  4. Reformative theory: The object of punishment according to this theory should be to reform criminals. The crime is a mental disease which is caused by different anti-social elements.
Therefore, there should be mental cure of criminals instead of awarding them severe punishment as mentioned in Case Law: (Ediga Annama v. State of Andhra Pradesh).

Punishment Under The Indian Penal Code

The scheme of the punishment is laid down from Sections 53 to 75 of the Indian Penal Code out of which five sections (Sections 56, 58, 59, 61 and 62) have already been repealed. Different types of punishments, rules for their assessment and enhancement in subsequent offences, from the subject- matter of this topic. According to Section 53 of the Code the offenders are liable to the following punishments:
  1. Death.
  2. Imprisonment for life.
  3. Imprisonment which may be rigorous, simple or solitary;
  4. Forfeiture of property.
  5. Fine.
The Code as originally enacted contained one more type of punishment known as Transportation for life. This punishment has now been substituted by imprisonment for life (Section 53 - A)

The following are the cases where death sentence may be awarded at the discretion of the Court:

  1. Waging war against the Government (Section 121).
  2. Abetment of mutiny.
  3. Fabricating or giving false evidence as a result of which an innocent person suffers death.
  4. Murder.
  5. To abet an insane, minor or intoxicated to commit suicide (Section 305).
  6. Dacoity with murder.

The maximum term of imprisonment that can be awarded should not exceed life time of the accused and be not less than 24 hours.

Solitary confinement according to Section 73 should be awarded in the following manner:
If term of imprisonment is Solitary confinement should not exceed
a) 6 months 1 month
b) 1 year 2 months
c) More than 1 year 3 months

Forfeiture of property under the Code was provided for in Sections 61 and 62 which were repealed in 1921.

However, under the following Sections the forfeiture of property can be ordered:
  1. Property used or intended to be used in committing depredations on the territories of a friendly country.
  2. Property received with the knowledge that the same has been taken by waging war or committing depredations under Sections 125 and 126 I.P.C. respectively.
  3. Property purchased by public servant who is legally prohibited to purchased or bid for such property.
Fine: where no specific amount to be imposed as fine is mentioned, it shall be discretionary but not excessive. If punishment awarded for offence is fine only or imprisonment with fine, court should direct that in default of payment of the fine, the accused shall be imprisoned for a certain term which should be in addition to the imprisonment already awarded (Sections 63 and 64).
Sections 65 to 70 deal with rule of imprisonment in default of fine.

If offence is punishable with fine and imprisonment the term of imprisonment in default of payment of fine should not exceed one fourth of the maximum term fixed for the offence. If maximum term fixed for an offence is 2 years, in default of payment of fine should not exceed one-fourth of the maximum term fixed for the offence. If maximum term fixed for an offence is 2 years, in default of payment of fine, imprisonment awarded should not be for a term exceeding 6 months. As soon as payment of fine is made the prisoner shall be set free.

If offence is punishable with fine only, the imprisonment in default of payment of fine shall be simple in the following proportion:
Amount of fine Term of Imprisonment
Up to Rs.50 Not more than 2 months
Up to Rs.100 Not more than 4 months
Exceeding Rs.100 Not more than 6 months

Fine imposed by the Court can be realized within 6 years or during imprisonment when the term of the same is longer than 6 years. The death of a prisoner does not discharge him from liability and his property will be liable for his debt. It has been laid down by the Supreme Court that limitation of 6 years prescribed under Section 70 does not apply to fine imposed for contempt of High Court. The imprisonment in default is not a substitute of fine but it is punishment for default.

Death Sentence: The Validity of death sentence as being violative of Articles 14, 19 and 21 of the constitution was challenged for the first time in Jagmohan Singh v. State (1973). But the Court upheld the constitutional validity of Section 302 of the Code. In the meantime the new provisions of the Cr.P.C., 1973 came into being and as per Section 354(3) Judges will have to state special reasons in the judgement for inflicting death penalty.

The Court cannot remain silent spectators of what is happening around the society. So the Supreme Court of India came forward with a new ruling about the awarding of death penalty rarest of the rare case Policy in (Bachan Singh v. State of Punjab (1980). The following case examples considered as the rarest of rare cases by the Supreme Court.

In Kehar Singh v. Delhi Admn. (Indira Gandhi murder case), the accused killed Indra Gandhi while standing on guard duty by firing from carbine, releasing about 25 bullets. Convicting the accused the Court said that it was the most foul and senseless assassination as persons duty bound to protect the life of the Prime Minister have themselves become the assassins. Even the preparation for execution of this egregious crime do deserve the dread sentence of the law.

It is one of the rarest cases where extreme penalty of death was called for. The accused raped and brutally killed his niece, a 7 year-old girl, it was held that undoubtedly it falls in the category of rarest of rare cases (Laxman Naik, v. State, 1994)

Compensation To The Victims Of Crime

Constitutional framework: The Constitutional provisions as to Fundamental Rights especially Article 14 and 21 could be widely interpreted so as to include rights of the victims of crime including right to compensation. Similarly, the constitutional remedies for human rights violations, is extensively applicable to the victims of crime. There are provisions in part IV of the constitution in Directive principles of state Policy which could be liberally construed to cover victims of crime entitling them the right to compensation.

Art 38(1) provides that state shall strive to promote welfare of the people by securing and protecting as effectively as it may a social order in which social, economic and political shall inform all institutions of national life. This provision if interpreted creatively is inclusive of victims rights. Similarly Art 39 which provides for policies to be followed by the state to secure economic justice and Art 40 which provide for equal justice is inclusive of victims rights to compensation.

Article 41 inter alia states that state shall make effective provisions for securing public assistance in the cases of disablement and in the case of undeserved want. The expressions disablement and other cases of undeserved want could be surely interpreted to include victims of crime and hence is state is obliged to provide public assistance to victims by way of monetary compensation apart from guaranteeing other rights to them.

These directives though non justiciable, imposes obligation on the state to take positive action for the welfare of the people. Moreover many of the Directives are elevated to the status of Fundamental Rights by judicial decisions. Apart from these, as per Art 51-A of the constitution it is the Fundamental duty of every citizen of India, ... to have compassion for living creatures and to develop humanism. These provisions also could be creatively interpreted as to include victims of crime.

Victim of crime

  1. Any person, group, or entities who have suffered harm, injury or loss due to illegal activities of others. The harm may be economical, mental, or physical. Thus any person who has suffered harm because of violation of criminal law is a victim.

  2. A person will be considered as a victim even when the offender is not identified or prosecuted. Term victim also includes individuals who have suffered harm as a result of assisting victims in distress or to prevent victimization.

  3. Not only the person who suffered loss or injury are the victim, but in some cases, the near and dear of victims (family members) are also the victims.

Can a victim of crime get compensation in India

Yes. A victim of the offence can get compensation in India. But there is a procedure which needs to be followed.

How can the compensation be sought

The compensation has to be ordered by the court. Compensation can be sought through the procedure established by the court. Compensation is awarded for material as well as non-material damages.

Material damages include medical expenses, loss of livelihood, etc. Non-material damages include pain, suffering, mental trauma, etc. In criminal cases, the victims can directly apply for the compensation, and it is the duty of the lawyer representing the victim to demand such compensation.

Laws governing compensation of victims of crime in India:

  1. The provisions relating to compensation to victims of crime are contained in sections 357, 357(1), 357 (2), 357 (3), 357A, 358, 359 and 250 of the Code of Criminal Procedure, 1973.

  2. Constitution of India also provides for certain safeguards to the victim of crime. Article 14 and 21 of the Constitution supports the argument.

Victim compensation under The Code of Criminal Procedure, 1973

When an accused is proven guilty, and the court passes an order which contains a fine of any denomination, the court can order such fine or any part of it to be paid to the victim of crime. The fine imposed is utilised to compensate the victim of fine in the following ways:
  1. Compensating for the expenses incurred during litigation (357) (1) (a)
    1. This is the essential relief which a victim of a crime must get. Litigation costs in India are very arbitrary. The lawyer charges hefty amount. Getting justice at times adds to the burden of the victim itself. Instead of getting justice, the victim is trapped in the honeycomb of justice delivery system.
    2. The court knows this fact and thus, compensate victim by providing them the expenses incurred during litigation.

  2. Compensation for loss or injury to be recovered by the civil court
    1. If the court is of the view that, the compensation sought is beyond the jurisdiction of the court, the court itself orders the appropriate court to look into the matter.
    2. In the payment to any person of compensation for any loss or injury caused by the offence, when compensation is, in the opinion of the Court, recoverable by such person in a Civil Court.

  3. Compensation in case of death
    1. One might question the fact that, who is the victim where death has been caused? As the victim is already dead, who should be compensated for the crime?
    2. It is the family of the victim. Think of the mental trauma they might have gone through. Medical expenses incurred, expenses during last rites. What if the victim who died was the sole bread earner of the family?
    3. The Court is well aware of such situation. Therefore, the legislature and the judiciary tied their hands to do complete justice.
    4. Victims are entitled to recover damages from the person sentenced for the loss resulting to them from such death. When any person is convicted of any offence for having caused the lives of another person or of having abetted the commission of such a crime.

  4. Compensation of victim of crime in offences like theft, cheating, criminal breach of trust etc.
    In cases of crime such as theft, cheating, criminal breach of trust, criminal misappropriation, the Court either tries for recovery of goods and in the case where recovery is not possible court orders for compensation for the price of such goods.

Compensation Where Fine Is Not Part Of The Sentence

The accused person in such case may be ordered by the court to pay a certain sum as compensation to the victim of crime who suffered loss or injury. Indian legal system is victim friendly. Victim's rights are kept at the top of the priority list.

When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment, order the accused person to pay, by way of compensation, such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.

Victim Compensation Scheme

In 2009, the central government gave directions to every state to prepare a scheme which has to be in agreement with the center's scheme for victim compensation. The primary purpose of the scheme is to provide funds for the purpose of compensation to the victim or his dependents who have suffered loss or injury as a result of the crime and who require rehabilitation.

Quantum of compensation under the scheme

It is the court which orders that the victim who suffered loss needs to get compensated. Under the scheme, whenever a recommendation is made by the Court for compensation, the District Legal Service Authority or the State Legal Service Authority, as the case may be, decides the quantum of compensation to be awarded.

Compensation in cases where the accused is not found guilty or the culprits are not traced

Where the cases end in acquittal or are discharged, and the victim has to be rehabilitated, the court may make a recommendation for compensation.
Where the offender is not traced or identified, but the victim is identified, and where no trial takes place, the victim or his dependents may make an application to the State or the District Legal Services Authority for an award of compensation.

Who is to provide compensation in the above case:

  1. The State or the District Legal Services Authority shall, after due enquiry-award adequate compensation by completing the inquiry within two months.
  2. Also, it is the duty of the State or the district legal service authority to provide an immediate first-aid facility or medical benefits to the victim free of cost on the certificate of the police.

Treatment of victim of crime

All hospitals, public or private, whether run by the Central Government, the State Government, local bodies or any other person, shall immediately, provide the first-aid or medical treatment, free of cost, to the victims of any offence covered under the following of the Indian Penal Code,
  1. 376 (Rape)
  2. 376A (intercourse by a man with his wife during separation)
  3. 376 B (intercourse by a public servant with a woman in his custody)
  4. 376 C (Intercourse by superintendent of jail or a remand home)
  5. 376 D (intercourse by any member of the staff of a hospital with any woman in that hospital)
  6. 376 (Intercourse by superintendent of jail or a remand home)
  7. 376 D (intercourse by any member of the staff of a hospital with any woman in that hospital)

What to do in case of inadequate compensation

If the trial Court, at the conclusion of the hearing, is satisfied, that the compensation awarded under section 357 is not adequate for such rehabilitation, or where the cases end in acquittal or discharge and the victim has to be rehabilitated, it may make a recommendation for compensation.

When is the compensation to be provided:

  1. Along with the duty of the offender, it is the duty of the state too, to compensate the victim. Compensation to the victim of crime can be provided:
  2. At the conclusion of the trial. That is on the orders of the court.
  3. When inadequate compensation is granted by the lower court to the victim of crime, the Appellate Court might increase the compensation.
  4. Where accused is not traceable, it becomes the duty of the state to compensate the victim of the crime.

Central Victim Compensation Fund Scheme

The Central government in 2015 formulated the CVCF scheme to compensate the determined. Every state has their own guidelines which decide the procedure.
An attempt has been made by Author to bring forth the procedure by examining different scheme of the different states. To know the exact step by step procedure, please see your state's guidelines on Victim compensation fund.
  1. Making an application before the District/State Legal Service Authority
    An application can be made for temporary or final compensation. It can be filed by the Victims or their dependents or the SHO of the area. The application must be submitted along with a copy of the First Information Report (FIR), medical report, death certificate, if available, copy of judgment/ recommendation of court if the trial is over, to the State or District Legal Services Authority.

  2. The scrutiny stage.
    District Legal Service Authority of every state first verifies the content of the claim. Specific loss, injury, rehabilitation is taken into consideration.

  3. Deciding the quantum of compensation to be given to victim of crime.
    The quantum of compensation to be granted is decided on the following factors:
    1. The gravity of the offence and the loss suffered by the victim
    2. Medical expenditure incurred during treatment.
    3. Loss of livelihood as a result of injury or trauma.

    Whether the crime was a single isolated event (Example Theft) or whether it took place over an extended period of time (Example multiple times, Rape with a woman who has been locked in a house).

    Whether the victim became pregnant as a result of such offence.

    In the case of death, the age of deceased, his monthly income, the number of dependents, life expectancy, future promotional/growth prospects etc.
    Or any other factor which the Legal Service Authority might deem fit.

  4. Method of disbursement of compensation
    The amount of compensation so awarded shall be disbursed by the respective Legal Service Authority by depositing the same in a Nationalized Bank in the joint or single name of the victim/dependent(s).

    Out of the amount so deposited, 75% (seventy-five percent) of the same shall be put in a fixed deposit for a minimum period of three years.

    The remaining 25% (twenty-five percent) shall be available for utilization and initial expenses by the victim/dependent(s), as the case may be.

    In the case of a minor, 80% of the amount of compensation so awarded, shall be deposited in the fixed deposit account and shall be drawn only on attainment of the age of majority, but not before three years of the deposit.

Where to complain when the compensation is released by the authority, but the same has not reached in the hands of the victim:

  1. This is an unforeseen situation which can further worsen the condition of the victim.

  2. Where the funds are released, but the allotted fund has not reached to the victim, it is preferred to go in person to the District/Legal Service Authority and complain the same. The Legal Service Authority might ask you to inquiry the same with the bank authorities. Do as advised by the Legal Service Authority.

  3. District/Legal Service Authority is designed to help the people, and they are performing their duty well. But if the issue is not redressed yet, there is no other option left than to fight another legal battle.

  4. It is advised to file a writ petition in the High Court under Article 226 of the Indian Constitution.

Every crime depicts the failure on the obligation of the state to respect, protect and fulfil the human rights of its subjects. Not only that every single crime, evidences failure on the part of state, to maintain law and order, harmony and tranquillity in the society, to protect life and property of the people and to use its authority to suppress crime and punish offenders.

Crime often entails substantive harm to people and not merely symbolic harm to the social order. Therefore it is desirable that the structures of criminal justice as well as their theoretical bases should reflect the interests of individual victims as well as the broader interests of the state.

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