‘Law should not sit limply, while those who defy it to go free and those who seek its protection lose hope’
In criminal jurisprudence of India, victimology has been a widely neglected field where the role of the victim is only of a witness. Time and again there has been a lot of focus on the humanitarian facet but very little to look at the life of a victim in a more holistic manner rather than only focusing on the monetary compensation. Recently, in the case of Parvinder Kansal v. the State of NCT[i], the Supreme Court passed a judgement stating that any appeal filed by the victim seeking enhancement of sentence shall not be maintainable. The appellant, in this case, is the father whose minor son was first kidnapped and then brutally murdered. The respondent was convicted under s section 364A along with section 34 of IPC and was sentenced to life imprisonment and fine. The petitioner filed an appeal before the Delhi High Court against this order under section 372 of CrPC submitting that a sentence of life imprisonment is inadequate in the given case and challenged the order by seeking enhancement of the sentence to the death penalty. The High Court dismissed the appeal and it was contended to the apex court wherein the bench stated that Section 372 of CrPC gives right to appeal only when the accused is convicted for a lesser offence and there is no provision for questioning the order as inadequate.
This is a glaring deficiency of our criminal justice system where the victims of the crime are not attracted by the law and this dearth of the system needs to be rectified by the legislature. We see that the accused in the criminal jurisprudence of India is placed in a favourable position as compared to the victim. In this article, the author evaluates the emergence and the current status of the victims. The approach has been to analyse Section 372 of the CrPC and the need to provide the right to appeal for enhancement of sentence.
VICTIMOLOGY OF HUMAN RIGHTS
Within the Indian legal framework, the term victim is defined under Section 2(wa) of CrPC, 1973 as 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 here the expression victim also includes the guardian or legal heir of the victim as well. Now the question: Is the role of a victim only limited to making a complaint to a Magistrate or registering an FIR? It is very important to understand that victims are the real sufferers of a crime and they should be properly placed in the criminal justice system. After all, victims are humans too who need to be given basic human rights without which one would unable to live as human and develop to the full potential. . “Everyone has the right to recognition everywhere as a person before the law” which gives rise to the notion of victim participation and procedural rights for victims. There are many laws in the constitution to protect the accused but there is hardly anything to protect the victims during their fight against the injustice Thus, there is an urgent need to take a fresh look at the victim's through the lens of human rights and recognize their ground rights.
AN ENDEAVOUR TO LOCATE VICTIMS IN THE CRIMINAL JUSTICE SYSTEM
Victims are not given any opportunity to assist the court with evidence or any question. The entire focus of the system is on the accused and the victims get neglected in this entire process. The position of the victims has been highlighted by the Malimath Committee on Criminal Justice Reforms which was made to address the plight of victims. It was constituted by the Ministry of Home Affairs in November 2000 and headed by the Chief justice of Kerala and Karnataka and former member of NHRC.[ii] The committee suggested that the victims should have a right to prefer an appeal against any unpropitious order. He/She should be allowed to challenge the conviction for a lesser offence or when there is an inadequacy of sentence or when a considerable amount of compensation wasn’t paid. The entire justice system needs to work in coordination to achieve the common goal as the victims have now lost their confidence and crying for attention and justice. The committee proposed setting up a better working system for the victims in a balanced structure so as to provide equal opportunities to the accused as well as the victim. The recommendations were to provide victims a right to appeal against unfavourable orders, services like psychiatric and medical assistance, a codified form of legislation to compensate the victim, and funds to achieve the financial requirements.
Similar suggestions have been submitted by the Law Commission in its 154th Report to strengthen the position of the victim. Another attempt was made to locate the victims in the criminal justice system bypassing the Code of Criminal Justice (Amendment) Act, 2008 by providing the much-needed definition of the victim the Code of Criminal Procedure 1973. This was brought up to address the concept of Victimisation and also to recognize the burden on Victims' shoulders by not just the act but also the trial process that goes on for years to achieve justice.
JDICIAL RESPONSE TO THE VICTIM’S RIGHT TO APPEAL
New provisions were added in Section 372 of CrPC to confer the rights of the victim to appeal in the criminal jurisprudence. Three situations in which the victim can file an appeal are:-
(a) Acquittal of the accused (b) Conviction of the accused for lesser offence (c) in case of inadequate compensation
It can be noted that the said provision does not say anything about the right to appeal for enhancement of sentence which remains at the liberty of the state under section 377 of the code. The entire section is interpreted in such a way that it creates instability among the procedure for appeal in all the streams that are the State, the Victim, and the complainant.
In the case of Rekha Murarka vs The State Of West Bengal,[iii] it was ensured that the right of appeal accorded to a victim under the proviso to Section 372 of the Cr.P.C. should not be rendered meaningless in the trial stage and balance should be maintained to not tamper the scheme of the Crpc. Similarly, In Devender Pal Singh v. State of NCT of Delhi[iv], it was held that death sentence should be warranted and not life imprisonment in case of an extremely brutal murder or when the motive is extreme depravity. The death sentence may also be justified in cases when the victim of the murder is an innocent child or an old woman or a helpless child or a person vis-à-vis, whom the murderer is in a dominating position, or a public figure generally loved and respected by the community. In Mahesh v. the State of M.P[v]., this Court deprecated the practice of taking a lenient view and not imposing the appropriate punishment observing that it will be a mockery of justice to permit the accused to escape the extreme penalty of law when faced with such evidence and such cruel acts. The court held that “To give a lesser punishment to the appellants would be to render the justice system of this country suspect. The common man will lose faith in the courts. In such cases, he understands and appreciates the language of deterrence more than the reformative jargon”. Similarly in Bantu v. State of U.P.[vi], the court held that the undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed, etc. The judicial pronouncements have shown that the proviso to Section 372 was added to achieve the objective behind creating such a right in favour of the victim by harmoniously construing the provisions of the Code.
A lot has been said about victimology and its implementation and several steps have been taken to approach this problem in a neutral and balanced way by keeping the feelings and his rights in mind. The United Nations Declaration of Basic Principles of Justice Victims of Crime and Abuse of Power includes a number of rights for victims and provides them to be treated with respect and recognition. It also provides victims with the right to express their views and right to protection of their physical safety and their privacy. Finally, the Declaration acknowledges victims' right to reparation from the offender as well as compensation from the state. The gist remains the same no matter what statute we choose, it is the victim who perpetually loses in the end. Every party in a trial has a chance to win but what goes with the victim goes unnoticed. However, it will be wrong to say that Indian laws have done absolutely nothing for the victims. Several measures and amendments have been brought up to compensate the victim in a more effective manner. There are miles that have been covered but there are many miles left to go. It should be the earnest effort of the lawmakers to make sure that there is a channel of true justice for the victims.
[iii] Rekha Murarka v. The State Of West Bengal, MANU/SC/1600/2019 [iv] Devender Pal Singh v. State of NCT of Delhi, AIR 2002 SC 1661. [v] Mahesh v. State of M.P, AIR 1987 SC 1346. [vi] Bantu v. State of UP, (2008) 11 SCC 113.
This article has been written by Shreya Tulavi , who is a third year student of law at Hidayatullah National Law University.