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Raj Kumar vs State on 3 December, 2019

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IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on : November 01, 2019
Decided on : December 03, 2019

+ Crl. Appeal no. 187/2018

RAJ KUMAR …. Appellant
Through: Mr. Sharad Malhotra, Adv. for
DHCLSC.
versus

STATE ….. Respondent
Through: Mr. Kewal Singh Ahuja, APP
for the State with ASI Ram
Vilas, PS Pahar Ganj.
Mr. Sarfraz Khan, Adv. for
DSLSA.
CORAM:
HON’BLE MR. JUSTICE R.K.GAUBA

ORDER

1. This criminal appeal assailing conviction on charge of rape,
notwithstanding the testimony of the prosecutrix conceding the
relationship to be consensual, has led to revelation of a pattern of
irresponsible exercise of jurisdiction vis-à-vis victim compensation
scheme necessitating measures to be taken so as to curb misuse of
public money.

2. The appellant was brought to trial in the court of Sessions (case
no.28940/2016) in the wake of report (charge-sheet) under Section
173 of the Code of Criminal Procedure, 1973 (Cr.PC) dated
23.08.2016 submitted by the Station House Officer (SHO) of police
station Pahar Ganj upon conclusion of investigation into first

Crl. Appeal No.187/2018 Page 1 of 67
information report (no.247/2016), on the accusations of his
complicity in certain acts of commission or omission, the same
statedly constituting offences punishable under Sections 376(2)(n)
and (f), 313 and 506 of Indian Penal Code, 1860 (IPC). The
Additional Sessions Judge presiding over the trial, by his judgment
dated 27.12.2017, held the appellant guilty and thus convicted him, as
charged, for the said offences.

3. By order dated 06.01.2018, sentence of rigorous imprisonment
for ten years with fine of Rs.2,000/- was awarded as the punishment
for offence under Sections 376(2)(n) and (f) and Section 313 IPC
respectively. In addition to this, the trial judge also awarded
imprisonment for two years with fine of Rs.2,000/- for offence under
Section 506 (Part-I) IPC. The order on sentence further directed that
in case of default in payment of fine, the appellant would undergo
simple imprisonment for one year on the first three counts and simple
imprisonment for six months on the last count. The benefit of set off
under Section 428 of the Code of Criminal Procedure, 1973 (Cr. PC)
for the period of detention already undergone was also accorded. The
trial court, accepting the application of Delhi Commission for Women
(DCW), further directed the District Legal Services Authority
(DLSA) to pay Rs.1,00,000/- (Rupees One Lakh only) as
compensation to the prosecutrix.

4. Feeling aggrieved by the aforementioned judgment of
conviction, and order on sentence, the appeal at hand was filed
alongwith an application for suspension of sentence.

Crl. Appeal No.187/2018 Page 2 of 67

5. The application for suspension of sentence and release on bail
pending hearing on the appeal came up before this court on
19.11.2018 which was allowed by a detailed order, pursuant to
submissions made at which stage it was also deemed proper that
report be called from DLSA with regard to the release of
compensation to the prosecutrix, it at the same time being directed
that in the event of the compensation not having been released, it to
be ensured by suitable steps that no such release was allowed till
further directions from this court. The proceedings recorded in the
wake of the said directions shall be noted later at appropriate stage in
the course of this judgment.

6. It is essential to take note of the background facts before
proceeding further.

7. The prosecutrix (PW-2) is the daughter of the elder brother of
the appellant, she being one of the five siblings which include two
brothers and two sisters, her father concededly having two brothers
including the appellant, he living in a separate accommodation. The
prosecutrix concededly was 21 years’ old on the date of FIR (Ex.
PW1/B) being registered at her instance and on her complaint (Ex.
PW1/A) in the police station, it being part of the rukka which contains
endorsement (Ex. PW13/A) of SI Devinder Kaur (PW-13), the
investigating officer (IO). According to the allegations made in the
FIR, registered on 08.06.2016, which were reiterated by her (PW-2)
in her statement under Section 164 Cr. PC (Ex. PW2/B) before the
Metropolitan Magistrate (PW-12) on 10.06.2016, the incident which
became subject matter of the charge of rape (as framed against the

Crl. Appeal No.187/2018 Page 3 of 67
appellant) had occurred on the day of the Holi festival in 2016
(described in the charge-sheet as 23.03.2016). By all accounts,
including the material gathered during investigation, also medical
examination of the prosecutrix by Dr. Smita Datta (PW-4) and Dr.
Chhavi Gupta (PW-5), as indeed the version of her father (PW-3), the
prosecutrix was a girl who was major having attained the age of
consent on the crucial date.

8. From the events that have been narrated in the evidence,
particularly by the prosecutrix (PW-2) and her father (PW-3), it
emerges that the former (PW-2) had become pregnant with a child,
there being some complication on account of bleeding per vagina
noticed by her mother on 06.06.2016. The prosecutrix was taken by
the parents to nearby railway hospital where her medical examination
statedly brought to light the pregnancy. The medical examination
confirmed that she was carrying a fetus of about two months’ duration
when the complications had begun, it being also confirmed by the
examining doctors that the prosecutrix had consumed some medicine
on the previous day (i.e. 05.06.2016), the bleeding having eventually
led to miscarriage.

9. The record of the medical examination of the prosecutrix was
proved at the trial through two medical officers i.e. PW-4 (Chief
Gynaecologist) and PW-5 (Assistant Divisional Medical Officer),
they having, inter alia, referred in the course of their testimony to the
medico-legal certificate (Ex. PW2/A), casualty card (Ex. PW4/A) and
indoor treatment file (Ex. PW4/B). The pregnancy was confirmed
with the help of urine pregnancy test kit. Pertinent to note here that

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the gynaecologist (PW-4) in her clinical notes recorded at 1.40 a.m.
on 06.06.2016 (Ex. PW4/A) also indicated that the prosecutrix had
been “changing statement” and had also admitted that she had taken a
pill on the previous day, it not being the case that any medicinal tablet
was administered forcibly. The prosecutrix herself confirmed to the
examining doctor that the pregnancy was the end-result of coitus in
which she was engaged about two months’ prior to this visit to the
hospital, the excessive bleeding resulting in the mis-carriage
(described as incomplete abortion) being apparently an event
triggered by consumption of the pill. During the treatment, part of the
placenta and detached cord with membrane were removed from the
uterus, the said biological exhibits having been handed over by PW-4
to the IO on her formal request (Ex. PW4/C), the same described in
the proceedings as “product of conception” having been deposited
initially in the Malkhana (vide Ex. PW11/A), as proved by the
Moharrar (Malkhana) ASI Jal Singh (PW-11), and would eventually
reach the Forensic Science Laboratory (FSL), the result of
examination whereof is inconsequential on all important issue of
consent.

10. It is against the above backdrop of events leading to medical
examination of the prosecutrix, that the matter was brought to the
notice of the police station by the hospital administration where initial
input was recorded vide DD no.16B dated 06.06.2016 (Ex. PW10/A)
at 8.33 p.m. on 06.06.2016. The matter was entrusted initially to SI
Raj Kumar (PW-10) who reached the hospital, accompanied by HC
Manoj. As per the version of the said police official (PW-10), he had
found the prosecutrix admitted in the hospital against MLC but she
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was reportedly not in a condition to give her statement. He returned
and lodged DD entry no.63B, keeping the matter pending. He paid
another visit to the hospital on the next day and tried to record the
statement of the prosecutrix but was told by her that she would give
her statement only after her father had reached the hospital. The
matter was thereafter inquired into by PW-13, the investigating
officer.

11. The statement (Ex. PW1/A) of the prosecutrix thus came to be
recorded by PW-13 in the afternoon of 08.06.2016. As per the
endorsement (Ex. PW13/A), the prosecutrix was then still under
treatment as an indoor patient in the same hospital.

12. In her version in the FIR, the prosecutrix stated that on the date
of the Holi festival in 2016 (23.03.2016), she was alone at home in
the evening hours when the appellant, her Chacha (younger brother of
her father), came there at about 5.30 p.m. She told the IO in the FIR
that the appellant had tried to force himself on her without her
consent and would not deter even though she had refused to
cooperate. She stated that the appellant had forcibly removed all her
clothes and thereafter committed rape upon her also extending threat
that in case she were to reveal this to anyone, he would kill her. She
stated that, out of modesty and fear, she had not disclosed this
incident to anyone. She further stated that she had become pregnant
on account of the said sexual intercourse and when she had disclosed
the pregnancy to the appellant, he had asked her to abort. She also
stated that on 05.06.2016 in the morning, the appellant had brought
some pill which she had been asked to consume stealthily. She stated

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that she had started bleeding immediately thereafter and had disclosed
the facts to her mother who took her to the hospital. It was further
recorded in her statement forming the basis of the FIR that she had
discarded and thrown out all the clothes which she was wearing at the
time of the sexual intercourse because they had become soiled.

13. On the request (Ex. PW12/A) of the investigating officer (PW-

13), the prosecutrix (PW-2) was examined under Section 164 Cr. PC
by the Metropolitan Magistrate on 10.06.2016. The said statement
has been proved by the Metropolitan Magistrate (vide Ex. PW2/B), it
also having been referred to during the deposition of the prosecutrix
(PW-2) at the time of her court testimony. In the said statement (u/s.
164 Cr. PC), the prosecutrix reiterated that she had become pregnant
on account of sexual intercourse in which she had been engaged by
her Chacha (the appellant), she stating that this was without her
consent. She also stated that it was he who had brought the medicine
on 05.06.2016 on account of which she had suffered from acute pain,
this being followed by admission in the hospital, her parents having
come to know of the pregnancy on 06.06.2016. She further added in
the said statement (before the Metropolitan Magistrate) that after the
alleged event on the day of the Holi festival, the appellant had
subjected her to forcible sexual intercourse two or three times in a
week and further that she had been kept under fear so as to deter her
against disclosure.

14. As indicated earlier, the appellant was put to trial on charges
being framed for offences punishable under Sections 376(2)(n) (f),
506 and 313 of IPC. In the case as set out by the prosecution on the

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basis of evidence noted above, the version of the prosecutrix, as
indeed that of her father who only was examined additionally (her
mother conspicuously not being a witness) was most crucial.

15. In her court testimony, however, the prosecutrix turned hostile.
She explained that the family (including her) were living in a servant
quarter at the fourth floor level made available by her employer in his
residence in a government departments’ colony and on the day of the
Holi festival at about 5.00 p.m., while other members of the family
were away, she being alone at home, the appellant had come and
established physical relation with her, this being followed by such
physical intimacy two or three times subsequently, all along with her
consent. She deposed that the appellant had not extended any threats
to her. She stated that because of the (consensual) physical
relationship, she had become pregnant and that she had aborted her
pregnancy willingly by consuming some medicine. She confirmed
the prosecution version that the bleeding which was triggered had
brought the knowledge of her state of pregnancy to her mother who
had taken her to the hospital where she was admitted for treatment for
three days. She was confronted with her statement (Ex. PW2/A) on
the basis of which FIR had been registered and also her statement
(Ex. PW2/B) before the Magistrate, in answer to which she stated that
she had become confused and was not in a fit state of mind and on
that account had alleged the use of force and absence of consent. The
prosecutrix was cross-examined by the Public Prosecutor, but nothing
in support of the charge could be brought out against the appellant in
such exercise. She reiterated, during her cross-examination, that

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physical intimacy leading to pregnancy was out of her own free will
and with her consent, there being no duress exercised at any stage.

16. PW-3, the father of the prosecutrix, is in no position to prove
facts as may render the charge believable. He only deposed about
learning the facts concerning involvement of the appellant leading to
pregnancy of his daughter based on information that he had gathered
from his wife (i.e. the mother of the prosecutrix). It has already been
noted that the mother of the prosecutrix has not been examined. It
may be added here that, even if she were to be examined, her version
would not aid or assist the prosecution case in bringing home facts
beyond what has been testified by the prosecutrix. The testimony of
PW-3 on the crucial aspects is thus nothing but hearsay.

17. In his statement under Section 313 Cr. PC, the appellant while
denying the evidence of the prosecution showing his complicity in the
crimes with which he has been charged claimed innocence and
attributed false implication to some dispute involving him on one
hand with the Naani (maternal grandmother) and Mausi (maternal
aunt) of the prosecutrix, on the other.

18. Inspite of the statement to above effect of the prosecutrix, she
being totally hostile to the prosecution case, the trial judge was not
impressed with her explanation. He believed the version set out in the
FIR, as reiterated in the statement under Section 164 Cr. PC, and
found the appellant guilty. The reasoning for such conclusion, as
articulated in the impugned judgment, may be extracted as under :-

―60. Had the physical relation established by the
accused would have been with the consent of the
prosecutrix, she would not levelled allegation
Crl. Appeal No.187/2018 Page 9 of 67
against accused in her statement Ex. PW1/A
recorded at the hospital where she was got admitted
by her mother and thereafter during the course of
investigation she reiterated the allegation against
the accused in her statement u/s. 164 Cr.PC
recorded on oath.

61. Needless to mention that the statement u/s. 164
Cr. PC recorded by Ld. Metropolitan Magistrate
after ascertaining the voluntariness of making the
statement by the victim which completely rules out
possibility of prosecutrix being not in a fit state of
mind at the time of giving the said statement.

62. The explanation for leveling the allegation
against the accused in both the statements given by
the prosecutrix that she was not in a fit state of mind
at the time of giving her said statements is not only
incompatible with the sequence of event right from
the incident, and recording of her both the said
statements, she being taken to hospital for treatment
but also not plausible and does not appeal to the
reason. Hence, unbelievable.

65. Keeping in mind her entire narration which she
had given by her on oath, it become apparently clear
that had PW2 Prosecutrix not been aggrieved by the
offence committed by the accused with her, she
would have not given statement alleging that
accused committed rape upon her to the police at the
very first instance which lead the registration of
present FIR and that for the similar reason she
reiterated the entire facts in her statement recorded
by Magistrate u/s. 164 Cr. PC.

68. Father of the prosecutrix who has been
examined as PW3 is witness of hearsay fact. In his
statement u/s. 313 Cr. PC, accused had stated that
he has been implicated falsely due to dispute
between him and Naani and Mausi of prosecutrix. It
is not expectable in any such type of case no
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prosecutrix being niece would level false allegation
against the accused / real uncle.

70. Prosecutrix has been declared hostile by Ld.
Addl. PP for the State as she did not support the
case of prosecution on any point. Further, there is
no explanation by the accused in the statement u/s.
313 Cr. PC on the fact that why he had given
abortion pills to the prosecutrix. Simply he has
stated that it is incorrect. Rather he had submitted
that he has been implicated falsely due to dispute
between him and Naani and Mausi of prosecutrix.

71. Further, Naani and Mausi of the prosecutrix has
not been examined in defence evidence.

72. Submission of ld. counsel for accused that
prosecutrix was consented for sexual intercourse
with the accused is not acceptable because even if
prosecutrix consented accused being uncle /
guardian of prosecutrix was duty bound to take her
to her father despite that he did not bring the
prosecutrix to her father and indulged himself in
sexual intercourse with the prosecutrix which leads
her pregnancy thereon accused has also extended
threat not to disclose anything to any person. In the
present case consent of the prosecutrix also
corroborate the case of prosecution. It does not
make any difference if the prosecutrix was
consenting for sexual intercourse with accused.‖

19. Having heard the learned counsel for the appellant and the
additional public prosecutor representing the State and having
perused the record, this Court is of the opinion that the judgment
rendered by the Additional Sessions judge holding the appellant
guilty cannot be sustained. The reasoning set out for such conclusion,

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as extracted above, appears to be more a case of moral judgment than
a judgment based on facts and law.

20. As is not in dispute, the prosecutrix was not a minor but an
adult having attained the age at which she could take her own
decisions, particularly in such matters as of her engagement in sexual
activity with a person of her choice. Her amorous involvement with
the younger brother of her father may be immoral or taboo in personal
law but the definition of rape under Section 375 IPC does not factor
in inhibitions of such kind.

21. There is no doubt that the prosecutrix had levelled allegations
in the FIR, followed by similar statement before the Magistrate under
Section 164 Cr.P.C., accusing the appellant of use of duress, this
having a direct bearing on the issue of her willingness or consent.
But then, she has herself disowned the said allegations before the
police and during investigation as those which were levelled because
of her confusion and being not in a fit state of mind at the relevant
point of time.

22. It is not correct to proceed on the assumption that because she
is real niece of the appellant, the prosecutrix could not have levelled
false allegations against him. Judicial precedents are replete with
examples where such allegations made against close relatives, or kith
or kin, have been found to be not only false but also motivated.

23. Motive to falsely implicate may have been the defence pleaded
by the appellant but failure on his part to adduce evidence does not
mean the burden of proof has shifted from the prosecution. The

Crl. Appeal No.187/2018 Page 12 of 67
testimony of the prosecutrix in the court is the substantive evidence
which fully exonerates the appellant from any culpability.

24. It appears that the factum of she having become pregnant with
a child having been exposed to her parents on account of bleeding, the
prosecutrix was constrained to share background facts with them. For
some reasons, she chose to take the position of innocence and thus
coined the theory of use of duress which led to the present
prosecution. The reluctance on her part to give her version to police
for two days, particularly when she first wanted to consult the father,
throws up the possibility of some external influence having coloured
the story. But, her court testimony demonstrates that her conscience
would not allow her peace and consequently she opted to reveal the
truth at the trial owning up to her pro-active and consensual
participation in the physical intimacy. Her deposition on oath at the
trial has to be taken as the evidence which must be the basis of
findings on facts, it being unfair on the part of the trial court to treat
the FIR and the statement under Section 164 Cr.P.C. as the material
which controls the conclusion.

25. For above reasons, the charge of rape under Section 376 (2) (n)
and (f) IPC must fail. Same must be the result of the charge for
offences under Sections 313 and 506 (Part I) IPC. The prosecutrix has
admitted on oath that she had consumed certain medicinal tablets out
of her own free will and that there was no intimidation exercised by
the appellant. There has been no effective investigation carried out as
to the nature of medicinal preparation which was consumed by the
prosecutrix, not the least drawing a nexus between consumption of

Crl. Appeal No.187/2018 Page 13 of 67
such medicinal preparation and the bleeding resulting in pre-mature
termination of pregnancy.

26. On the foregoing facts, and in the circumstances, the judgment
dated 27.12.2017 of the Additional Sessions Judge holding the
appellant guilty for offences under Sections 376 (2) (n) (f), 313 and
506 (Part I) IPC and the order on sentence passed on 06.01.2018
awarding substantive punishment on each count are hereby set aside.
The appellant is acquitted.

27. This case, however, has given rise to certain concerns about the
directions for payment of compensation to the prosecutrix by the trial
court and the action taken thereupon by the legal services authority.
This calls for further consideration and appropriate directions.

28. As has been noticed earlier, the Additional Sessions Judge
while awarding punishment by order on sentence passed on
06.01.2018 directed the District Legal Services Authority (DLSA) to
pay to the prosecutrix compensation in the sum of rupees one lakh
referring in this context to considerations such as age, status of
prosecutrix, her education, mental trauma and future prospects. Such
directions were given on the application moved by the counsel for
Delhi Commission for Women (DCW).

29. When the above discussed nature of evidence that had been
adduced by the prosecution at trial came to be referred in the context
of application – Crl.M. (Bail) 285/2018 – for interim suspension of
sentence, this Court, by order dated 19.11.2018, had also called for a
report from DLSA and issued a restraint order against release of the
compensation in the meanwhile. On 03.12.2018, the report dated
Crl. Appeal No.187/2018 Page 14 of 67
29.11.2018 of Special Secretary, Delhi State Legal Services Authority
(DSLSA) came on record whereby the Court was informed that the
Secretary of the Central DLSA had communicated that ―final
compensation‖ of rupees three lakhs had been paid to the prosecutrix
in terms of the order dated 20.02.2018 of Victim Compensation
Committee, such amount having been transferred into the bank
account of the prosecutrix through RTGS/NEFT on 25.04.2018. The
subsequent inquiries by DSLSA, under the directions of the Court,
revealed that the said amount was withdrawn by the prosecutrix
almost immediately after its remittance into her account.

30. What stands out from the above narration is that though the
trial judge had directed compensation in the sum of rupees one lakh
by order dated 06.01.2018, the Central DLSA deemed it appropriate
to award an enhanced compensation of rupees three lakh from the
victim compensation fund and issued an order to that effect on
20.02.2018, transferring such amount on 25.04.2018, there being no
consideration of the fact that the judgment in question had by then
been appealed against in February, 2018.

31. The expectation of victim of a crime for complete justice in the
form not only of punishment but also by reparation in the shape of
compensation has now come to be accepted as legitimate, it being the
obligation of the court to factor in such concerns in every case, the
provisions of Sections 357 and 357-A Cr.P.C. – certain others on the
subject, such as Sections 357-B and 357-C Cr.P.C. adding to the
jurisprudence – guiding the course of justice.

Crl. Appeal No.187/2018 Page 15 of 67

32. Prior to amendment of the Code of Criminal Procedure, 1973
by Act No.5 of 2009, made effective from 31.12.2009, the provision
contained in Section 357 Cr. PC was the solitary statutory command
and guidance (besides Section 5 of the Probation of Offenders Act,
1958) on the subject of compensation. Section 357 Cr. PC would
read thus :

“357. Order to pay compensation.

(1) When a Court imposes a sentence of fine or a
sentence (including a sentence of death) of which
fine forms a part, the Court may, when passing
judgment, order the whole or any part of the fine
recovered to be applied-

(a) in defraying the expenses properly incurred
in the prosecution;

(b) 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;

(c) when any person is convicted of any offence
for having caused the death of another person
or of having abetted the commission of such an
offence, in paying compensation to the persons
who are, under the Fatal Accidents Act, 1855
(13 of 1855 ), entitled to recover damages from
the person sentenced for the loss resulting to
them from such death;

(d) when any person is convicted of any offence
which includes theft, criminal
misappropriation, criminal breach of trust, or
cheating, or of having dishonestly received or
retained, or of having voluntarily assisted in
disposing of, stolen property knowing or having
reason to believe the same to be stolen, in
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compensating any bona fide purchaser of such
property for the loss of the same if such
property is restored to the possession of the
person entitled thereto.

(2) If the fine is imposed in a case which is subject to
appeal, no such payment shall be made before the
period allowed for presenting the appeal has
elapsed, or, if an appeal be presented, before the
decision of the appeal.

(3) 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.

(4) An order under this section may also be made by
an Appellate Court or by the High Court or Court of
Session when exercising its powers of revision.
(5) At the time of awarding compensation in any
subsequent civil suit relating to the same matter, the
Court shall take into account any sum paid or
recovered as compensation under this section.‖

33. Section 5 of the Probation of Offenders Act, 1958, on the other
hand, runs as under :-

―5. Power of court to require released offenders to
pay compensation and costs.–

(1) The court directing the release of an offender
under section 3 or section 4, may, if it thinks fit,
make at the same time a further order directing him
to pay–

(a) such compensation as the court thinks
reasonable for loss or injury caused to any
person by the commission of the offence; and

Crl. Appeal No.187/2018 Page 17 of 67

(b) such costs of the proceedings as the court
thinks reasonable.

(2) The amount ordered to be paid under sub-section
(1) may be recovered as a fine in accordance with
the provisions of sections 386 and 387 of the Code.
(3) A civil court trying any suit, arising out of the
same matter for which the offender is prosecuted,
shall take into account any amount paid or
recovered as compensation under sub-section (1) in
awarding damages.

34. A bare look at the word of the law quoted above would reveal
that the criminal court may direct compensation to be paid either
under Section 357 Cr.PC or Section 5 of the Probation of Offenders
Act only in the event of a person being held guilty and convicted of
the crime, the idea being to recompense for the loss or injury
consequently caused, such amount of compensation contemplated as
an amount which would eventually be adjustable in the event of a
civil court also being approached for award of damages (under the
law of torts). But, there have been difficulties faced vis-a-vis the
scheme of Section 357 Cr. PC. As was observed by the Supreme
Court in its judgment reported as Gang-rape Ordered by Village
Kangaroo Court in W.B., (2014) 4 SCC 786, Section 357 Cr. PC
(which only covered the field earlier) is “not mandatory in nature”
and “only the offender can be directed to pay compensation to the
victim” there-under.

35. Taking note of the deficiencies in the main provision of Section
357 Cr. PC, the following observations of a division bench of Punjab
and Haryana High Court in Rohtash vs. State of Haryana (Crl. A.

Crl. Appeal No.187/2018 Page 18 of 67

No.250/1999, decided on 01.04.2008) were quoted with approval by
the Supreme Court in Suresh v. State of Haryana (2015) 2 SCC 227:

“21. Though a provision has been made for
compensation to victims under Section 357 Cr.PC,
there are several inherent limitations. The said
provision can be invoked only upon conviction, that
too at the discretion of the Judge and subject to
financial capacity to pay by the accused. The long
time taken in disposal of the criminal case is another
handicap for bringing justice to the victims who
need immediate relief, and cannot wait for
conviction, which could take decades. The grant of
compensation under the said provision depends
upon financial capacity of the accused to
compensate, for which, the evidence is rarely
collected. Further, victims are often unable to make
a representation before the court for want of legal
aid or otherwise. This is perhaps why even on
conviction this provision is rarely pressed into
service by the courts. Rate of conviction being quite
low, inter alia, for competence of investigation,
apathy of witnesses or strict standard of proof
required to ensure that innocent is not punished, the
said provision is hardly adequate to address to the
need of victims…‖
(emphasis supplied)

36. If the sentence imposed against a convict includes the sentence
of fine, by virtue of Section 357(1), the compensation that can be
awarded by the court must necessarily be restricted to the fine that has
been imposed and recovered. In contrast, Section 357 (3) Cr. PC
stipulates that the court may direct the amount specified by it to be
paid as compensation if the punishment awarded does not include
imposition of fine. To put it simply, there is no restriction on the
amount of compensation to be directed to be paid under Section 357

Crl. Appeal No.187/2018 Page 19 of 67
Cr. PC if only sentence of imprisonment has been awarded.
Otherwise, the amount of fine imposed and recovered is the ceiling to
the award of compensation. On the other hand, if the court intends to
provide reasonable compensation, without facing any such
restrictions on the amount, it perforce would have to give the benefit
of release without substantive punishment, by applying the provision
of Sections 3 or 4 of the Probation of Offenders Act, 1958.

37. Be that as it may, what stands out from Section 357(2) Cr. PC
is the fact that the entitlement of the victim to receive compensation
for the loss or injury suffered is dependent on finality of the decision
on the issue of guilt and conviction for the reason that no payment (to
the victim) of compensation is permitted by law to be made till such
time as the period for presenting an appeal has elapsed or, if an appeal
be presented, till such time the appellate court has taken a decision
thereupon.

38. The provision contained in Section 357A Cr. PC was added by
the amendment Act of 2009 ushering in major reforms on the subject
of victim restitution in criminal law process, in the wake, inter alia, of
Declaration of Basic Principles of Justice for Victims of Crime and
Abuse of Power, 1985 adopted by UN General Assembly. It
provides thus :

―357A. VICTIM COMPENSATION SCHEME.

(1) Every State Government in co-ordination with the
Central Government shall prepare a scheme for
providing 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.

Crl. Appeal No.187/2018 Page 20 of 67

(2) 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,
shall decide the quantum of compensation to be
awarded under the scheme referred to in sub-section
(1).

(3) If the trial Court, at the conclusion of the trial, 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 recommendation for
compensation.

(4) 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
award of compensation.

(5) On receipt of such recommendations or on the
application under sub-section (4), the State or the
District Legal Services Authority shall, after due
enquiry award adequate compensation by completing
the enquiry within two months.

(6) The State or the District Legal Services Authority, as
the case may be, to alleviate the suffering of the victim,
may order for immediate first-aid facility or medical
benefits to be made available free of cost on the
certificate of the police officer not below the rank of the
officer in charge of the police station or a Magistrate of
the area concerned, or any other interim relief as the
appropriate authority deems fit.‖

39. In Suresh (supra), the Supreme Court while construing Section
357-A Cr.P.C., taking note of various decisions including Ankush
Shivaji Gaikwad v. State of Maharashtra, (2013) 6 SCC 770: (2014) 1
SCC (Crl.) 285; Mohd. Haroon vs. Union of India, (2014) 5 SCC 252
: (2014) 2 SCC (Crl.) 510; Laxmi vs. Union of India, (2014) 4 SCC
Crl. Appeal No.187/2018 Page 21 of 67
427 : (2014) 4 SCC (Crl) 802, Abdul Rashid vs. State of Odisha,
2013 SCC Online Ori. 493 : ILR (2014) 1 Cut 202 and Delhi
Domestic Working Women’s Forum vs. Union of India, (1995) 1 SCC
14: 1995 SCC (Cri) 7, observed thus :

“13. …The object and purpose of the provision is to
enable the Court to direct the State to pay
compensation to the victim where the compensation
under Section 357 was not adequate or where the
case ended in acquittal or discharge and the victim
was required to be rehabilitated.

(emphasis supplied)

40. In Ankush Shivaji Gaikwad (supra), the court ruled that “while
the award or refusal of compensation in a particular case may be
within the Court’s discretion, there exists a mandatory duty on the
Court to apply its mind to the question in every criminal case.‖ In
Suresh (supra), the jurisprudence on the subject was expanded further
thus :

“16. …it is the duty of the courts, on taking
cognizance of a criminal offence, to ascertain
whether there is tangible material to show
commission of crime, whether the victim is
identifiable and whether the victim of crime needs
immediate financial relief. On being satisfied on an
application or on its own motion, the court ought to
direct grant of interim compensation, subject to final
compensation being determined later. Such duty
continues at every stage of a criminal case where
compensation ought to be given and has not been
given, irrespective of the application by the victim.
At the stage of final hearing it is obligatory on the
part of the court to advert to the provision and
record a finding whether a case for grant of
compensation has been made out and, if so, who is
entitled to compensation and how much. Award of
Crl. Appeal No.187/2018 Page 22 of 67
such compensation can be interim. Gravity of
offence and need of victim are some of the guiding
factors to be kept in mind, apart from such other
factors as may be found relevant in the facts and
circumstances of an individual case.‖
(emphasis supplied)

41. As is clear from the plain reading of Section 357A Cr. PC
(unlike under Section 357 Cr. PC), the award of compensation to the
victim is not dependent on an individual being found guilty. The
compensation may be awarded from out of the funds made available
by the State under the Victim Compensation Scheme, even though the
offender be not traced or identified or case brought against an
individual were to end in acquittal or discharge. But, there can be no
doubt as to the fact that in order to have a legitimate claim for
compensation under the Victim Compensation Scheme in terms of
Section 357A (like under Section 357), there must be requisite proof
of commission of an offence, the victim of such offence being
properly identified and requiring rehabilitation, the philosophy behind
such statutory command being that compensation for the victim of
crime is integral to the judicial process, the plight of victim not to be
ignored “even when a crime goes unpunished for want of adequate
evidence” [Manohar Singh vs. State of Rajasthan, 2015 (2) SCC (Cri)
332]. To put it more clearly, there can be no compensation awarded,
either under Section 357 or under Section 357A Cr. PC or, for that
matter, under any other statutory provision, in case the criminal court
were to conclude that no offence had been committed.

42. It is in the above context that the inhibition against release of
compensation under Section 357 Cr. PC, before elapse of the period

Crl. Appeal No.187/2018 Page 23 of 67
for presenting appeal (or till the decision is rendered on such appeal,
if presented) assumes significance. One must, however, hasten to add
here that given the scheme of the law such restrictions on release of
final compensation cannot be applied, for obvious reasons, against the
grant of interim compensation foremost because there is no occasion
for appeal and particularly when such emergent and tentative relief is
afforded bearing in mind pressing factors such as immediate needs of
the victim for purposes of rehabilitation, urgent medical aid,
treatment, etc. As is, however, also clear, inter alia, from the afore-
quoted observations of the Supreme Court in Suresh (supra) that grant
of interim compensation must be “subject to final compensation being
determined later” and based on “tangible material to show
commission of crime” and, therefore, with strings attached.

43. Almost all States and Union Territories of India, including
National Capital Territory of Delhi, have framed and notified Victim
Compensation Schemes in terms of the statutory obligation under
Section 357A Cr. PC. The scheme earlier framed for Delhi has since
been modified and promulgated as Delhi Victim Compensation
Scheme, 2018 (“Delhi scheme”), brought into effect from 02.10.2018.
As has been reported by the Member Secretary, DSLSA, the Delhi
scheme is in two parts, the second of which specifically deals with the
subject of ―Compensation Scheme for Women Victims/ Survivors of
Sexual Assault / other Crimes, 2018‖, which provides detailed
guidelines not only as to the factors to be considered while awarding
compensation (including interim compensation) but also as to the
procedure for making an application for such award and the manner
in which such requests are to be enquired into, additionally dealing
Crl. Appeal No.187/2018 Page 24 of 67
with subjects such as the method of disbursement through banking
channels and also of possible recovery of the amount (thus paid to
victims) from persons responsible for the crime.

44. As highlighted earlier, the liability to comply with the order to
pay compensation under Section 357 Cr. PC is fastened against the
offender whose guilt has been proved whereas the compensation
awarded under Section 357A is from out of the Victim Compensation
Fund made available by the State under the scheme controlled by the
Legal Services Authority. No doubt, the court at the conclusion of
the trial may require compensation to be paid not only under Section
357 Cr. PC but also from the funds under Section 357A Cr. PC but
for having resort to both the provisions, it must record satisfaction
that the compensation awarded under the former provision is “not
adequate” for rehabilitation of the victim. It is only upon reaching
such satisfaction that it can “make recommendation‖ for
compensation to be paid under the Victim Compensation Scheme.
The decision to pay such compensation under Section 357A, upon
receipt of such recommendation, rests with the legal services
authority.

45. Some of the guidelines provided in (clauses 11 and 12 of) part
II of Delhi Victim Compensation Scheme, 2018 are important for the
present discussion and may be quoted as under :-

“11. METHOD OF DISBURSEMENT OF
COMPENSATION– (1) The amount of
compensation so awarded shall be disbursed by the
SLSA by depositing the same in a Bank in the joint
or single name of the victim/dependent(s). In case
the victim does not have any bank account, the
Crl. Appeal No.187/2018 Page 25 of 67
DLSA concern would facilitate opening of a bank
account in the name of the victim and in case the
victim is a minor along with a guardian or in case,
minor is in a child care institution, the bank account
shall be opened with the Superintendent of the
Institution as Guardian. However, in case the victim
is a foreign national or a refugee, the compensation
can be disbursed by way of cash cards. Interim
amount shall be disbursed in full. However, as far as
the final compensation amount is concerned, 75%
(seventy five percent) of the same shall be put in a
fixed deposit for a minimum period of three years
and the remaining 25% (twenty five percent) shall
be available for utilization and initial expenses by
the victim/dependent(s), as the case may be.
(2) 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.

Provided that in exceptional cases, amounts may be
withdrawn for educational or medical or other
pressing and urgent needs of the beneficiary at the
discretion of the SLSA/ DLSA.

(3) The interest on the sum, if lying in FDR form,
shall be credited directly by the bank in the savings
account of the victim/dependent(s), on monthly basis
which can be withdrawn by the beneficiary.

12. INTERIM RELIEF TO THE VICTIM– The State
Legal Services Authority or District Legal Services
Authority, as the case may be, may order for
immediate first-aid facility or medical benefits to be
made available free of cost or any other interim
relief (including interim monetary compensation) as
deemed appropriate, to alleviate the suffering of the
victim on the certificate of a police officer, not below
the rank of the officer-in-charge of the police
station, or a Magistrate of the area concerned or on
the application of the victim/ dependents or suo
Crl. Appeal No.187/2018 Page 26 of 67
moto. Provided that as soon as the application for
compensation is received by the SLSA/DLSA, a sum
of Rs.5000/- or as the case warrants up to Rs.
10,000/- shall be immediately disbursed to the victim
through preloaded cash card from a Nationalised
Bank by the Secretary, DLSA or Member Secretary,
SLSA. Provided that the, interim relief so granted
shall not be less than 25 per cent of the maximum
compensation awardable as per schedule applicable
to this Chapter, which shall be paid to the victim in
totality.

Provided further that in cases of acid attack a sum
of Rs. One lakh shall be paid to the victim within 15
days of the matter being brought to the notice of
SLSA/DLSA. The order granting interim
compensation shall be passed by the SLSA/DLSA
within 7 days of the matter being brought to its
notice and the SLSA shall pay the compensation
within 8 days of passing of order. Thereafter an
additional sum of Rs.2 lakhs shall be awarded and
paid to the victim as expeditiously as possible and
positively within two months.‖
(emphasis supplied)

46. The guidelines provided in (clauses 12 and 13 of) the first Part
of the Delhi Scheme are mutatis mutandis similar to those quoted
(from the second Part) above.

47. A learned single Judge of this court while dealing with the
issues of payment of compensation to the victims of motor accidents,
had issued certain guidelines, inter alia, by order dated 13.02.2017 in
FAO 842/2003 Rajesh Tyagi Ors vs. Jaibir Singh and Ors., and
extended the benefit thereof for purposes of securing the corpus of
compensation disbursed to victims of Railway accidents by order
dated 21.04.2017 in FAO 22/15, titled Geeta Devi vs. Union of India,

Crl. Appeal No.187/2018 Page 27 of 67
2019 SCC Online Del 8919, specifying the staggered manner in
which the benefit is to be afforded such that dispensation is more
beneficial.

48. In the wake of the judgment dated 06.01.2018 passed against
the appellant herein and the direction for payment of final
compensation of rupees one lakh by the impugned order of sentence,
an inquiry was conducted by Secretary of DLSA (Central) under the
Delhi Victim Compensation Scheme. It has been reported by the
Member Secretary, Delhi State Legal Services Authority that the final
compensation of rupees three lakh was awarded to the prosecutrix of
the case at hand pursuant to order dated 20.02.2018 of the District
Victim Compensation Committee which reads thus :-

―20.02.2018
Central District Legal Services Authority received
Judgment dated 06.01.2018 passed by Sh. Ramesh
Kumar-II. Ld. ASJ/SFTC-02 Central, THC, Delhi
for considering the final compensation of
Rs.1,00,000/- to the victim. Pursuant to the receipt
of the aforesaid Judgment, an enquiry was
conducted by the Secretary, DLSA (Central) as per
Section 357A(5) of the Code of Criminal Procedure,
1973 (―Cr.PC‖).

During the inquiry, victim deposed that :

―I am victim in the present
case. I have studied upto 10th
class. My father is doing a
private job and earning about
Rs.6,000/- per month. My
mother is a housewife. I have
two brothers and two sisters.

Crl. Appeal No.187/2018 Page 28 of 67
I have not received any
compensation from any
Government Authority till
date. I will use the
compensation money for my
sustenance.‖
The Committee examined the statement of

victim, statement of IO and considered the
provisions of Delhi Victim Compensation Scheme,
2015.

The inquiry was conducted by Secretary,
CDLSA, in exercise of power conferred vide a letter
and corrigendum issued by teh DSLSA viz. Letter
bearing Ref. No.Legal Aid Wing / DSLSA/VCS 2011
/ 2013/6296 dated 25.09.2013 and its corrigendum
bearing Ref. No. Legal Aid Wing / DSLSA/VCS/2014
/ 3809 dated 12.08.2014.

Upon considering the same, the Committee is
of the considered view that the case of the victim
falls under Sl. No.3 of the Schedule to the Delhi
Victim Compensation Scheme, 2015. Though the
court has recommended an amount of Rs.1,00,000/-
(Rupees One Lacs Only) as Final Compensation but
after going through the relevant documents and the
gravity of the case, the committee after considering
all the aspects, has decided to award additional
compensation of Rs.2,00,000/- (Rupees Two Lacs
Only) i.e. the total amount of Final Compensation is
of Rs.3,00,000/- (Rs.Three Lacs Only) should be
paid to the victim for her rehabilitation.

Thus, in exercise of power under Section 357A
(2) of Cr.P.C., it is recommended that a sum of
Rs.3,00,000/- (Rs. Three Lacs Only) be paid to the
victim as Final Compensation from the Victim
Compensation Fund constituted under Rule 3 of the
Delhi Victim Compensation Scheme, 2015.
The aforesaid amount of Rs.3,00,000/- (Rupees
Three Lacs Only) may be disbursed by the Delhi
Crl. Appeal No.187/2018 Page 29 of 67
State Legal Services Authority (―DSLSA‖), Patiala
House Courts as per Rule 12 of the Delhi Victim
Compensation Scheme, 2015 i.e. 25% be made
available immediately and 75% of the amount ( in
case of minor 20% be made available immediately
and 80% of the amount be kept in FDR till Majority
but not before 3 years of the deposit) shall be
deposit in terms of rule 12 of the scheme and in
terms of judgment of the Hon’ble Delhi High Court
in Geeta Devi vs. Union of India (FAO 22/2015,
decided on 21.04.2017) and Sachindra Mishra Vs.
Sunita and Others [WP(C) No.7398/2016, decided
on 04.05.2017] for payment of compensation
amount to the beneficiaries in a phased manner as
follows :-

Sl.No. FDR Amount (For Victim Period of FDR
‗P’) (in months)
1. Rs.10,000/- 36
2. Rs.10,000/- 37
3. Rs.10,000/ 38
4. Rs.10,000/ 39
5. Rs.10,000/ 40
6. Rs.10,000/ 41
7. Rs.10,000/ 42
8. Rs.10,000/ 43
9. Rs.10,000/ 44
10. Rs.10,000/ 45
11. Rs.10,000/ 46
12. Rs.10,000/ 47
13. Rs.10,000/ 48
14. Rs.10,000/ 49
15. Rs.10,000/ 50
16. Rs.10,000/ 51
17. Rs.10,000/ 52
18. Rs.10,000/ 53
19. Rs.10,000/ 54
20. Rs.10,000/ 55
21. Rs.10,000/ 56
22. Rs.15,000/- 57
Crl. Appeal No.187/2018 Page 30 of 67
Investments of the above FDR(s) would be
subject to the following conditions :-

1. Original fixed deposit receipts be
retained by the bank in safe custody.
However, the statement containing FDR(s)
number, FDR(s) amount and date of maturity
be furnished to the beneficiary.

2. The maturity amount of the FDR(s) be
credited in the above account of the
beneficiary.

3. No loan, advance or pre-mature
discharge of the FDR(s) would be
permissible without the permission of this
authority.

4. The bank shall not permit any joint
names other than that of beneficiary in the
above said saving bank account as well as
the FDR without the permission of this
Authority.

5. The liberty is given to the beneficiary to
approach his Authority for pre-mature
release of the FDR(s) in the event of need for
withdrawal of amount for educational
medical other pressing and urgent needs of
the beneficiary, in exceptional cases.

6. Interest accruing on the said deposit
shall be deposited in the said account of the
beneficiary.

Copy of this Order be forwarded to DSLSA, Patiala
House Courts in a sealed cover with a request to
immediately disburse the compensation amount of
Rs.3,00,000/- (Rupees Three Lacs Only) to the
victim and send an intimation to this Authority.
Copy of the Order be also sent to the Ld. Concerned
Court for information and record.

Crl. Appeal No.187/2018 Page 31 of 67

Copy of the Order be also forwarded to the SHO, PS
Pahar Ganj, in a sealed cover, for information and
assistance of the victims.

Copy of this order be also forwarded to the Branch
Manager, Karnataka Bank, Overseas, New Delhi
(Account No.5422500100864401 IFSC Code-
KARB0000542). Copy of the bank passbook be
attached with the intimation to be sent to the Bank.‖

49. Noticeably, the District Victim Compensation Committee
while adopting the above decision to grant compensation of
Rs.3,00,000/- (Rupees three lakhs) to the prosecutrix took note not
only of the judgment of conviction rendered on 06.01.2018 but also
referred to afore-quoted provisions of (Part II of) Delhi Victim
Compensation Scheme, 2018 as indeed the decisions in cases of
Geeta Devi (supra) and Sachindra Mishra (supra). To put it simply,
the decision of the District Victim Compensation was to disburse the
amount of compensation in phased manner – twenty five per cent
(25%) immediately and the balance in the form of twenty-two fixed
deposit receipts, the maturity proceeds of the first of which was to
come in hands of the prosecutrix only on the elapse of thirty-six
months. Noticeably, the District Victim Compensation Committee,
while directing final compensation to be paid as aforesaid on
20.02.2018 did not ascertain as to whether any appeal had been
preferred against the judgment of conviction by the person who was
alleged to be the offender of the crime. Noticeably further, the
amount of compensation in entirety was made over to the banker of
the prosecutrix by a communication dated 31.03.2018, sent under the
signatures of Member Secretary, DSLSA, pursuant to communication

Crl. Appeal No.187/2018 Page 32 of 67
dated 15.03.2018 of Secretary, Central DLSA about decision dated
20.02.2018.

50. Further, from the facts reported by the Member Secretary,
DSLSA, by his submissions dated 17.09.2019 and 10.10.2019, it is
clear that banker to the prosecutrix credited the entire amount in her
saving bank account and permitted its immediate withdrawal without
any restriction, this against the directions of the District Victim
Compensation Committee in its order dated 20.02.2018 and the
communication dated 15.03.2018 of the Secretary, Central DLSA.
The letter dated 31.03.2018 was addressed by DSLSA only to its own
banker, the decision to pay in phased manner not being reflected
therein. It is also clear that the concerned authorities in DLSA or
DSLSA were not alive to such manner of disbursement, in breach of
its decision and communication, till these facts came to light during
the hearing on the appeal at hand.

51. On 14.10.2019, this court observed thus :

―It appears from the reports earlier filed by the
Member Secretary, DSLSA that there has been a
communication gap between the authorities
competent in law to award compensation from the
Victims Compensation Fund governed by Delhi
Victims Compensation Scheme, 2018 on one hand
and the banks in question on the other. It appears
that in spite of decision of the Victim Compensation
Committee in the case at hand to remit the payment
of final compensation in staggered manner, the
entire amount was transferred to the account of the
beneficiary (the prosecutrix) in one go. The learned
counsel for DSLSA submitted that the inquiries have
evinced the response of the banker of the beneficiary
that he was ignorant and cannot say as to why the
Crl. Appeal No.187/2018 Page 33 of 67
entire amount was allowed to be credited in favour
of prosecutrix and withdrawn immediately by her.

The Member Secretary, DSLSA, by his further
report dated 11.10.2019, has indicated that an
advisory has been issued on 10.10.2019 to all the
Secretaries of District Legal Services Authority to
ensure that the disbursement to the beneficiaries is
made in a phased manner and, for this, compliance
reports are to be called for from their bankers. In
view of the court, such advisory may not be
sufficient inasmuch as it should in first place be the
responsibility of the banker of DSLSA to secure
proper compliance, if necessary by requisite follow-
up.

During the course of hearing on the appeal,
under directions from the court, DSLSA has
compiled and collated data respecting the cases in
which interim compensation had been granted over
a calendar year (2017 having been chosen by
DSLSA) and the present status of such cases. As per
the statistics presented, the DSLSA had paid, in
2017, interim compensation in as many as 247
criminal cases of various districts of Delhi. From
out of them, 175 cases are stated to be still pending
trial, 33 having resulted in closure of the
proceedings either upon conviction or for other
reasons such as abatement, abscondance or the case
having been sent ―untraced‖. The remaining 39
cases, which is quite a substantial portion of the
entire lot, are reported to have resulted in
―acquittal‖.

The ratio of cases resulting in acquittal,
particularly where the finding of the court is that no
crime was committed (as shown by some of the
judgments) seems to be too high to be ignored. The
figures which have been presented give rise to
further cause of concern as to the possible abuse of
the funds made available by the State for purposes
Crl. Appeal No.187/2018 Page 34 of 67
of victim compensation scheme. This possibility of
abuse of public funds will have to be plugged by
suitable guidelines. Suggestions given by DSLSA so
far do not seem to cover this area.

The learned counsel for DSLSA sought time to come
up with further report.

Be listed on 21.10.2019.‖

52. On 21.10.2019, the report from DSLSA being awaited, upon
further consideration, it was directed thus:-

―No report has been submitted in terms of the
directions in the order dated 14.10.2019. The
learned counsel for DSLSA seeks extension of time.
It may be added here that some of the judgments
rendered in the 39 cases resulting in ―acquittal‖, as
referred to in the order dated 14.10.2019, have
given rise to further cause for concern. Particularly,
two cases stand out, they being sessions case no.
100/2017 arising out of FIR no. 172/2016 of police
station Lahori Gate titled State vs. Prem Kumar @
Rajesh decided by Additional Sessions Judge -02
(Central) on 20.08.2018 and sessions case no.
62/2016 arising out of FIR No. 142/2016 of police
station Safdarjung Enclave titled State vs. Rajesh
Kumar decided by judgment dated 26.04.2019 by
Additional Sessions Judge (Special Fast Track
Courts South district). In each of those cases, the
prosecutrix was an adult woman, in the first
mentioned case she disowned the entire case
explaining that she had levelled false charges at the
instance of her second husband because of his old
enmity with the accused. In the second case, the
evidence of the prosecutrix was found to be not
credible. In both, the respective accused have been
acquitted. Yet, in each, directions have been given
for payment of compensation by DSLSA. In the first
mentioned case, such directions have been given
Crl. Appeal No.187/2018 Page 35 of 67
because the prosecutrix was found to be poor and in
need of financial help from the court. In the second,
the compensation has been ordered to be paid to the
child born out of the physical relationship between
the prosecutrix and the accused who, in the opinion
of the trial court, would suffer the stigma of being
called ―illegitimate‖
Aside from the report called for, by directions in the
order dated 14.10.2019, the Member Secretary,
DSLSA shall also make a further report on the
following aspects:-

(i) Steps, if any taken, under the
Delhi Victim Compensation Scheme, for
recovery of compensation (interim or
final) in all such cases as have ended in
acquittal at the trial court or in appeal.

(ii) Steps, if any taken, under the
Delhi Victim Compensation Scheme, for
recovery of compensation (paid to the
victims) from the person(s) found guilty
for the crime.

(iii) The details of payment of
compensation, if any made, in the wake of
directions by afore-mentioned judgments
dated 20.08.2018 (FIR no. 172/2016 of
police station Lahori Gate) and
26.04.2019 (FIR No. 142/2016 of
police station Safdarjung Enclave),
along with copies of all relevant
documents including the order(s) of
Victim Compensation Committee,
communication to the concerned bank
etc.

A report in light of above directions, and in the
directions in the order dated 14.10.2019, must be
filed well in advance before next date of hearing
with copy of the opposite parties.

Crl. Appeal No.187/2018 Page 36 of 67

Be listed for final hearing on 1st November, 2019.‖

53. The member Secretary, DSLSA, in compliance with the above,
filed further report dated 30.10.2019. He has expressed some
difficulty of the banker of the legal services authority about staggered
payments referring in this context to lack of any mechanism of
control or supervision over the other banks (i.e., the banks of the
beneficiaries). It has been conceded in the said report of DSLSA that
till date no action has been initiated by the legal services authority for
recovery of compensation from the wrong-doers or from persons who
may have wrongfully received such benefits.

54. Answering the queries with regard to the directions of the
criminal courts in cases arising out of FIR No.172/2016 of police
station Lahori Gate and FIR No.142/2016 of police station Safdarjung
Enclave, the Member Secretary, DSLSA by his report dated
30.10.2019, has confirmed that the matter arising out of latter case is
still pending for consideration before District Victim Compensation
Committee, but with reference to former (i.e., FIR No.172/2016 of
police station Lahori Gate) it has been reported that the District
Victim Compensation Committee of Central District, by its order
dated 18.09.2018, decided to award compensation of Rs. three lakh to
the prosecutrix of the said case. A copy of the said order dated
18.09.2018 of District Victim Compensation Committee has been
submitted with the report which also confirms that the amount was
disbursed by instructions issued to the concerned bank on 06.10.2018.

55. Copies of the judgments of the other cases which have ended in
acquittal (as mentioned in above quoted proceedings of 14.10.2019

Crl. Appeal No.187/2018 Page 37 of 67
and 21.10.2019) were also submitted and, upon perusal, it has been
noticed that the findings returned in some of them are that no offence
as alleged had been proved to have been committed. The case at hand
would add to the said list, such result being reached at the stage of
first appeal. It is essential to take note of some facts respecting a few
of the other above-mentioned judgments.

56. Six of the above-mentioned other cases involved allegations,
inter alia, of the offence of rape or of penetrative sexual assault (or its
attempt) punishable under Protection of Children from Sexual
Offences Act, 2012 (POCSO Act). Each of these cases have resulted
in the accusations constituting such offences being disbelieved and
the respective accused being acquitted. The brief facts and particulars
may be summarized thus :-

(a). In Sessions case no.58830/2016, arising out of
FIR no.1148/2015 of police station S.P. Badli, leading
to the judgment of acquittal dated 22.10.2016 rendered
by Additional Sessions Judge -01 (North), the accused
was put on trial on charge for offences punishable
under Sections 363, 366, 376(2)(i) IPC 4 POCSO
Act, the prosecutrix having been described as a girl aged
fifteen years. The prosecutrix herself discredited the
prosecution case by deposing that there had been no
physical relationship established with her.

(b). In Sessions case no.59294/2016, arising out of
FIR no.434/2016 of police station Bhalswa Dairy,
leading to the judgment of acquittal dated 08.01.2019
Crl. Appeal No.187/2018 Page 38 of 67
rendered by Additional Sessions Judge -01 (North), the
accused was put on trial on charge for offences
punishable under Sections 363, 366, 376(2)(f)(i), 506(II)
IPC 6 POCSO Act, the prosecutrix having been
described as a girl aged eleven years. The testimony of
the material witnesses i.e. victim (PW-1) and her mother
(PW-2) as to commission of offences was found “not
reliable and trustworthy”.

(c). In Sessions case no.44621/2015, arising out of
FIR no.196/2015 of police station Bhajan Pura, leading
to the judgment of acquittal dated 16.02.2017 rendered
by Additional Sessions Judge -01 (North-East), the
accused was put on trial on charge for offences
punishable under Sections 376, 506 IPC 6 POCSO
Act, the prosecutrix having been described as a girl aged
seven years. The accusations and the evidence led
about commission of offences were disbelieved, the
conclusion being that the prosecution had failed to prove
its case.

(d). In Sessions case no.53675/2016, arising out of
FIR no.1009/2016 of police station Mangol Puri,
leading to the judgment of acquittal dated 19.03.2019
rendered by Additional Sessions Judge -01 (North-
west), the accused was put on trial on charge for
offences punishable under Sections 376, 323, 506 IPC
6 POCSO Act, the prosecutrix having been described

Crl. Appeal No.187/2018 Page 39 of 67
as a girl aged less than three years. The evidence was
found to be not credible, the conclusion being that the
prosecution had failed to prove commission of any
offence.

(e) In sessions case no. 361/2017, arising out of FIR
no. 295/2017 of police station Bhalswa Dairy, leading to
the judgment of acquittal dated 23.10.2017, rendered by
Additional Sessions Judge-01 for North District, the
accused was put on trial on charge for offences
punishable under Sections 376 IPC and 6/10 POCSO
Act, the prosecutrix being described as his own minor
daughter. At trial, the prosecutrix and her mother
deposed that false charges had been leveled on advice of
some NGO to force the accused to give up alcohol. The
offence was held not proved.

(f). In Sessions case no.14/2017, arising out of FIR
no.323/2016 of police station Sonia Vihar, leading to the
judgment of acquittal dated 20.04.2018 rendered by
Additional Sessions Judge -01 (North-East), the accused
was put on trial on charge for offences punishable
under Sections 363, 366, 376 IPC and 6 POCSO Act,
the prosecutrix having been described as a girl who had
not attained majority. The evidence captured in the
judgment shows it to be a possible case of elopement,
the prosecutrix having testified that she had gone with

Crl. Appeal No.187/2018 Page 40 of 67
the accused of her own volition, having stayed with him
though there being no physical relationship established.

57. As per the data presented in tabular form, DSLSA had granted
interim compensation in all the above mentioned six cases to the
prosecutrix, it being in the sum of Rs.30,000/- each in the first and
last mentioned matters (i.e. FIR nos.1148/2015 and 323/2016) given
on 27.02.2017 and 24.10.2017, the amount in other four cases being
Rs.50,000/- each granted by orders dated 27.02.2017, 31.05.2017,
07.06.2017 and 22.06.2017 respectively.

58. There are five cases involving, inter alia, the charge of rape,
each levelled by an adult woman, accusing the respective accused
brought to trial of having subjected her to sexual intercourse on the
false promise of marriage. These cases have also similarly resulted in
acquittal, the finding returned at the end of respective trial being that
the physical intimacy was consensual. The brief facts and particulars
are as under :

(a). In Sessions case (number not given), arising out
of FIR no.1601/2015 of police station Seema Puri,
leading to the judgment of acquittal dated 04.02.2019
rendered by Additional Sessions Judge-02 (Special Fast
Track Court) for Shahdara District, the accused was put
on trial on charge for offences punishable under
Sections 376, 506, 313, 406 IPC, the prosecutrix having
been described as a receptionist in a clinic, she allegedly
having been approached by the accused during his visits
at her workplace. The prosecutrix herself testified that
Crl. Appeal No.187/2018 Page 41 of 67
she had entered into physical relationship with her own
consent and free will, there being no force applied
thereby disproving the charge.

(b). In Sessions case no.2605/2016, arising out of FIR
no.150/2016 of police station Sunlight Colony, leading
to the judgment of acquittal dated 27.10.2018 rendered
by Additional Sessions Judge (Special Fast Track Court)
for South-East District, the accused was put on trial on
charge for offences punishable under Section 376 IPC,
the prosecutrix having attributed physical intimacy after
formal engagement (for marriage) with the accused.
The trial court held that the charge for offence had not
been proved, the evidence showing that the relationship
was consensual.

(c). In Sessions case nos.231/2014 and 2232/2016,
arising out of FIR no.1036/2014 of police station
Govind Puri, leading to the judgment of acquittal dated
26.07.2017 rendered by Additional Sessions Judge
(Special Fast Track Court) for South-East District, the
accused was put on trial on charge for offences
punishable under Sections 376 and 384 IPC, the
prosecutrix having been described as a college student
who had befriended the accused, he having subjected
her to forcible physical relationship. As per the
judgment of the trial court, there was no medical
evidence available in corroboration, the testimony of the

Crl. Appeal No.187/2018 Page 42 of 67
prosecutrix about commission of offences being
disbelieved.

(d). In Sessions case no.19/2016, arising out of FIR
no.1049/2013 of police station Mehrauli, leading to the
judgment of acquittal dated 31.07.2018 rendered by
Additional Sessions Judge (Special Fast Track Court)
for South District, the first accused was put on trial on
charge for offences punishable under Sections 376,
354B, 506, 509, 34 IPC (the other charged for sharing
common intention), the prosecutrix having been
described as a married woman whose husband had
abandoned her and the daughter, the accused having
allured her to be in sexual intimacy, she delivering a
daughter as a result. The trial judge concluded that the
relationship was consensual, no offence having been
committed.

(e). In Sessions case no.35/2017, arising out of FIR
no. 73/2017 of police station Saket, leading to the
judgment of acquittal dated 01.11.2018 rendered by
Additional Sessions Judge (Special Fast Track Court)
for South District, the accused was put on trial on
charge for offences punishable under Sections 376 and
313 IPC, the prosecutrix having described the accused
as a neighbour who had proposed marriage to her and
thereafter had established physical relationship on false
promise of marriage. It was proved at the trial that the

Crl. Appeal No.187/2018 Page 43 of 67
prosecutrix was married to another person and had two
children from out of such wedlock, the claim of death of
her husband being not substantiated. Crucially, it was
held that the physical intimacy was consensual, there
being no occasion for false promise of marriage.

59. Interim compensation was granted by DSLSA in all the above
mentioned cases by orders dated 22.05.2017, 30.05.2017, 04.07.2017,
13.09.2017 and 24.10.2017, the amount disbursed to the prosecutrix
in each being Rs.35,000/-, Rs.25,000/-, Rs.50,000/-, Rs.1,00,000/-
and Rs.1,00,000/- respectively.

60. There are two cases which also need notice, each involving
allegations of use of duress or conceit, the prosecutrix in each being
an adult woman, the evidence having been disbelieved, the accused
being consequentially acquitted :

(a). In Sessions case no.52647/2016, arising out of
FIR no.1105/2015 of police station Mangol Puri,
leading to the judgment of acquittal dated 07.02.2019
rendered by Additional Sessions Judge (Special Fast
Track Court) for North West District, the accused
persons were put on trial on charge for offences
punishable under Sections 376(2), 498A, 506, 34 IPC,
the allegations (of rape) primarily being against the
father-in-law (one of the accused), he having allegedly
forced himself upon her with the suggestion that she
could conceive from physical intimacy with him since
she had failed to do so with her husband (also an
Crl. Appeal No.187/2018 Page 44 of 67
accused). The trial court disbelieved the evidence and
rejected the charge of use of force, deceit, fraud and
absence of consent.

(b). In Sessions case no.1553/2016, arising out of FIR
no.419/2014 of police station Jaitpur, leading to the
judgment of acquittal dated 07.10.2017, rendered by
Additional Sessions Judge (Special Fast Track Court)
for East District, the accused was put on trial on charge
for offences punishable under Sections 376, 328, 323
IPC, the prosecutrix having alleged that the accused had
taken advantage of her when she had contacted him in
some context, subjecting her to forcible sexual
intercourse after administering some intoxicant. The
trial court held that the evidence was not worthy of
reliance, the commission of offences not being proved.

61. In both the above mentioned cases, DSLSA had granted interim
compensation in the amounts of Rs.50,000/- and Rs.1,00,000/- by
orders passed on 23.01.2017 and 03.03.2017 respectively.

62. In yet another case, the charge was brought, inter alia, of
offences of rape and outraging the modesty, the prosecutrix being a
maid-servant in household of one of the accused. The Sessions case
no.216/2015 arising out of FIR no.507/2015 of police station Rani
Bagh ended in acquittal by judgment dated 02.06.2018 of Additional
Sessions Judge (Special Fast Track Court) for North West District
since the prosecutrix herself disowned the accusation explaining some

Crl. Appeal No.187/2018 Page 45 of 67
pressure. The DSLSA had earlier granted Rs.50,000/- to her by order
dated 08.09.2017 as interim compensation.

63. Two other cases, in particular, stand out as stark examples of
most irresponsible manner in which the jurisdiction to grant
compensation under the cover of Section 357A Cr. PC has been
exercised. These facts need to be noticed a little more elaborately.

64. Sessions case no.62/2016 had come up before the court of the
Additional Sessions Judge (Special Fast Track Court) for South
District on the basis of charge-sheet submitted pursuant to
investigation in FIR no.142/2016 of police station Safdarjung
Enclave. The accused was put on trial on the charge for offence
under Section 376 IPC. The prosecutrix had alleged that she had
befriended the accused who was working as a driver in the same
household where she had been engaged as a cook. She attributed
proposal of marriage by the accused, he having established physical
relationship with her after promising marriage, having moved in to
start living with her as her husband. The trial ended in judgment of
acquittal passed on 26.04.2019, the testimony of the prosecutrix as to
commission of offence having been disbelieved. It appears that the
evidence also showed that due to the physical intimacy with the
accused, the prosecutrix had given birth to a child. While acquitting
the accused of the charge for the offence of rape, finding the
testimony of prosecutrix unworthy of reliance, the trial judge
proceeded to direct compensation to be given by DLSA to the child,
setting out its reasons as under :-

―As per the allegations proved in this case, one
female child was born on 04.09.2016 out of the
Crl. Appeal No.187/2018 Page 46 of 67
sexual intercourse committed between the
prosecutrix and Rajesh Kumar. Although, the
prosecution has failed to prove the ingredients of
offence of rape as defined in Section 375 Cr. PC
against Rajesh Kumar but facts cannot be lost
sight of that a female child has been born in the
course of relationship between the prosecutrix
and Rajesh Kumar and the said child will suffer
the stigma of being called illegitimate. It is also
to be noted that the prosecutrix is a poor person
who is making a living by working as domestic
help. In the circumstances, I will be failing in
my duty if no order is passed for the welfare of
the child and to protect her future.

xxx
In this, child who has been born out of
relationship between the prosecutrix and Rajesh
Kumar is the victim, as the said child has
acquired the status of being illegitimate for no
fault of her and at the same time, said child will
suffer various hardships including emotional
and mental trauma on account of lack of care
and protection which would have been otherwise
provided by a father in case she was a legitimate
child. ‖
(emphasis supplied)

65. It may be mentioned here that as per the report of DSLSA, by
an earlier order dated 23.05.2017 it had granted interim compensation
of Rs. one lakh to the prosecutrix. Mercifully, as confirmed by the
report dated 30.10.2019 of Member Secretary, DSLSA no further
payment of compensation in this case has been made pursuant to
directions of the court of sessions as quoted above, the matter being
still pending before District Victim Compensation Committee. Yet,

Crl. Appeal No.187/2018 Page 47 of 67
the interim compensation which was granted earlier remains what
may now be classified as ―wrongful gain‖ to the prosecutrix.

66. The facts of Sessions case no.100/2017, decided by Additional
Sessions Judge-02 (Central) – same judge as had rendered the
judgment under appeal herein – are even more glaring. It had arisen
out of charge-sheet laid after conclusion of investigation into FIR
no.172/2016 of police station Lahori Gate. The accused was put on
trial on charge for offences under Sections 328, 376 and 506 IPC and
Section 66-E of IT Act. The husband of the prosecutrix had died in
2013 and she had a child aged about eight years when she got married
again on 24.02.2016. The accused against whom she levelled
allegations leading to the said prosecution was found at the trial to be
the brother of the wife of younger brother of her second husband.
She alleged that he had taken her to a guest house on some pretext
and having administered to her some substance in a soft drink had
committed forcible sexual intercourse without her consent. She,
however, deposed at trial that the accusations were false, levelled
under pressure from her second husband because he had some enmity
with the accused. She denied that she had ever been taken by the
accused to any such place or having subjected her to forcible sexual
intercourse. In this view, the trial court dispensed with the statement
of accused under Section 313 Cr. PC and acquitted him by judgment
dated 20.08.2018. But, having done so it held and directed as under :-

―46. Since prosecutrix has been examined and her
appearance reveals that she is from very poor family
and needs financial help from the Courts. Although, she
has been turned hostile in the present case but she has
specifically deposed that she has made present
Crl. Appeal No.187/2018 Page 48 of 67
complaint on the pressure of her husband who have
deserted her.

47. Considering the status of the prosecutrix, this
court is of the view that compensation of Rs.3 Lacs be
given to the prosecutrix for her need.

48. Copy of this order be sent to the DLSA, Central
District, Delhi for necessary action.‖
(emphasis supplied)

67. It may be mentioned here that earlier, by order dated
06.10.2017, the DSLSA had paid Rs.50,000/- as interim
compensation to the prosecutrix. Shockingly, the District Victim
Compensation Committee, by its order dated 18.09.2018, awarded
compensation in the sum of Rs. three lakh to the prosecutrix on the
basis of above-quoted directions of the court of sessions. Copy of the
order dated 18.09.2018, as submitted with report dated 30.10.2019 of
Member Secretary, DSLSA reveals a mechanical approach. The
committee headed by a senior judicial officer simply referred to the
judgment dated 20.08.2018 and recorded the statement of the victim
(during inquiry) wherein the prosecutrix described herself as the
“victim”. The committee did not care to take note of the result of the
criminal case, not the least the deposition of the prosecutrix at the trial
wherein she had admitted the allegations (of rape) to be false and
motivated. The order passed in the said case seems to be based on
some template used in every next case. Apparently, there was total
non-application of mind.

68. Interestingly, clause 9(5) of the second Part of Delhi Victim
Compensation Scheme, 2018 provides thus :

Crl. Appeal No.187/2018 Page 49 of 67

“(5) In case trial/appellate court gives findings that
the criminal complaint and the allegation were false,
then Legal Services Authority may initiate proceedings
for recovery of compensation, if any, granted in part or
full under this Scheme, before the Trial Court for its
recovery as if it were a fine.‖

69. Clause 10(7) of the first Part of the aforementioned Scheme
contains a similar provision vis-a-vis offences other than those
involving women victims.

70. Delhi Victim Compensation Scheme, 2018 also permits
recovery of compensation (paid to the victim) from the person found
responsible for the crime and, in this context, clause 15 of its second
Part may be quoted thus :

“15. Recovery of compensation awarded to the victim
or his/her dependent (s) – Subject to the provisions of
sub-section (3) of section 357 A of the Code, the Delhi
State Legal Services Authority, in proper cases, may
institute proceedings before the competent out of law for
recovery of the compensation granted to the victim or
his/her dependent (s) from person(s) responsible for
causing loss or injury as a result of the crime committed
by him/her.‖

71. From the reports of Member Secretary, DSLSA, it appears that
the above provisions have not been put to any use till date.

72. This court is not aware of the status of appeal or any other
petition presented before any court by any person after the above
mentioned judgments were rendered. Concededly, there has been no
endeavour made by the DSLSA to recover the compensation which
was paid in any of these cases.

Crl. Appeal No.187/2018 Page 50 of 67

73. The Code of Criminal Procedure, 1973 defines “victim” by
Section 2(wa) as under :-

―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;‖
(emphasis supplied)

74. The plain language of the statutory definition makes it clear
and vivid that in order to be treated as a “victim”, for purposes of
criminal law, it must be established that there has been an act of
commission or omission indulged in which has resulted in loss or
injury being caused to the person. It is inherent in this scheme that
commission of an offence punishable under the criminal law is a pre-
requisite to the rights of the person who has consequently suffered
loss or injury – in case of such person having died, his or her guardian
or legal heir being included. To put it conversely, if no offence has
been committed, for purposes of criminal law, there cannot be a
victim. This is amply clear from the language of sub-Section (1) of
Section 357A Cr. PC wherein provision of scheme and fund for
purposes of compensation to the victim or his dependents is
mandated, the expression “victim” being qualified by the words “who
have suffered loss or injury as a result of the crime and who require
rehabilitation” (emphasis supplied).

75. Some confusion may prevail on account of the language
employed in sub-sections (3) and (4) of Section 357A Cr.P.C., which
have been quoted earlier. Sub-section (3) deals with a situation where
a case is brought for prosecution of an individual but it fails because,

Crl. Appeal No.187/2018 Page 51 of 67
in the opinion of the criminal court, there is either not sufficient
evidence to put him on trial, this resulting in order of “discharge” or
when the prosecution fails to prove the guilt, leading to judgment of
“acquittal”. The trial court, notwithstanding such result of discharge
or acquittal of the accused, may “make recommendation for
compensation” to the victim, provided a case is made out that s/he
“has to be rehabilitated”. Sub-Section (4), on the other hand, covers
a situation where no prosecution is launched or, borrowing the
expression used in the statute “where no trial takes place” because the
“offender is not traced or identified”. Yet, the legislation permits the
Legal Services Authority to make an “award of compensation” in
terms of sub-Section (5) if “the victim is identified”. These
provisions, however, are not to be misconstrued to say that
compensation may be ordered under either of these clauses – whether
or not trial take place – whatever be the result of investigation. It is
inherent in the use of the expression “victim” in each that commission
of crime qua the person “identified” as “victim” is sine-qua-non. The
award of compensation, whether on recommendation by the court or
by the DLSA upon application being made to it, under Section 357A
Cr.PC necessarily requires commission of an offence, existence of a
victim (a person who may have suffered “loss or injury” on account
of commission of such offence) and her need “to be rehabilitated”. It
must be added that the criminal court cannot “direct”, but only “make
recommendation”, for compensation to be paid under Section 357A
Cr. PC and, before it does so, it must hold an inquiry to find as to
whether there is possibility of compensation to be ordered to be paid
by the accused whose guilt has been proved under Section 357 Cr.PC
Crl. Appeal No.187/2018 Page 52 of 67
and, if so, whether such compensation payable by the accused (under
Section 357 Cr. PC) would be “adequate” or not.

76. There have been stories of false claims for compensation under
the criminal law floating around for many a year. The other cases
referred to above seem to only confirm the possibility of such theories
being true. Since the data which has come up before this court is
limited to one year (2017), and out of the total 247 cases in which
interim compensation was paid in that year by the DSLSA, only 72
have reportedly reached some conclusive stage (till the time of
compilation of data), what may have revealed itself as gross abuse
may be only tip of an iceberg. The number of cases (39) in which
acquittal has been ordered with clear finding that the commission of
the offence was not proved when contrasted against the number of
cases (33) which stand closed with finding of conviction (or on
abatement, untraced etc.) being the result is too large to be ignored.
The last two earlier mentioned other cases – those arising out of FIR
no.142/2016 of police station Safdarjung Enclave and FIR
no.172/2016 of police station Lahori Gate – are too appalling to be
treated as stray aberrations. These are judgments rendered by senior
judicial officers of sufficient standing. Recommending compensation
to be paid (in the first case) to the child of the prosecutrix after
disbelieving her, only because the child was begotten without a lawful
marriage and might suffer the stigma of illegitimacy and directing
compensation (in the second case) to be paid by DSLSA to the
prosecutrix, who has admitted on oath that the case was falsely
engineered with ulterior motive, only because she is from a poor
family and in need of financial help are illustrations of grossly
Crl. Appeal No.187/2018 Page 53 of 67
irresponsible use of public funds governed by Victim Compensation
Scheme.

77. Interestingly, DSLSA on one hand submits that the criminal
courts are not authorized by law to issue “order” for compensation to
be paid under section 357-A Cr.P.C. but may ―make
recommendation‖ it being the domain of the legal service authority to
pass award in terms of the Victim Compensation Scheme. Yet, in the
case arising out of FIR No.172/2016 of police station Lahori Gate the
order for payment of compensation of Rs. three lakh to the
prosecutrix of that case was treated as binding, justification being
offered to the effect that the trial court ―had passed specific orders
specifying the amount of compensation‖. This court is unable to
locate any such direction in (paras 47 and 48 of) the judgment dated
20.08.2018 as quoted earlier. Be that as it may, it must also be noted
that in the order dated 18.09.2018 of District Victim Compensation
Committee it has been found that ―the victim falls under serial No.3
of the Schedule to the Delhi Victim Compensation Scheme, 2015‖.
For clarity, it may be mentioned that serial no.3 of the schedule
appended to 2015 Scheme, as has been referred to, relates to a case of
“rape”. The committee failed to note that, by the same judgment
wherein compensation had been recommended, the trial court had
found that no such offence had taken place.

78. The compensation in the criminal law is not a matter of
largesse. To say the least, the manner in which such orders have been
passed smacks of gullibility or unacceptable tendency to be populist
on the part of the criminal courts throwing law and caution to winds

Crl. Appeal No.187/2018 Page 54 of 67
resulting in public money (Victim Compensation Fund) being
squandered.

79. From the above facts and material, the possibility of false
claims of compensation being brought under the cover of trumped up
charges of commission of crime cannot be ruled out. The utilization
of victim compensation fund by legal services authority is expected to
be based on scrutiny of the claims by inquiry guided by the provisions
of the scheme under section 357-A Cr.P.C. It is assumed that before
interim compensation is granted, the concerned officers of legal
services authority would be searching for ―tangible material‖
confirming the commission of the offence and the need for urgent
interim compensation for the victim who has been properly identified.
But, since the award of interim compensation is ―subject to final
determination‖, it is necessary that the grant of such interim relief is
subject to sufficient safeguards such that the possibility of false
claims going through may be plugged and such that money if wrongly
paid is retrieved. After all, the fund provided for Victim
Compensation Scheme is public money, held in trust, to be utilized
only for the intended purposes.

80. In case of award of final compensation there can be, generally
speaking, no case of undue hurry in matter of disbursement. By the
time the court renders its final decision determining the issues as to
the commission of crime, complicity and guilt of the person brought
to trial and the entitlement to compensation, long time would have
lapsed. The emergent needs, if any, would ordinarily have been taken
care of through dispensation under the jurisdiction to grant interim

Crl. Appeal No.187/2018 Page 55 of 67
relief or direct medical aid and assistance. The findings on the core
issues – commission of the offence and the complicity of the person
charged – before they become final and binding would almost
invariably be tested in appeal. This is why the enforcement of the
sentence may be suspended in terms of Section 389 Cr. PC and the
dispensation of the amount of compensation awarded expected to be
deferred for later in terms of Section 357(2) Cr. PC. In the considered
opinion of this court, such inhibition against immediate release of the
amount of compensation should also apply to the compensation
awarded under Section 357A Cr. PC in as much as the decision of the
trial court on the issue of inadequacy of the compensation under
Section 357 Cr. PC or as to need of the victim to be “rehabilitated”
by compensation from victim compensation scheme must also be
similarly subject to scrutiny by the superior forum of appellate or
revisional jurisdiction.

81. There is no doubt that the public money placed at the disposal
of the judicial organ cannot be allowed to be abused, misused or
pilfered. The victim may be entitled to compensation, under Section
357A Cr. PC, even in a situation where the offender is not traced or
identified or where sufficient evidence to bring him to trial or prove
his guilt cannot be gathered. But this does not mean that a person
claiming to be the victim of a crime can receive money under Section
357A Cr. PC, or for that matter under any other similar provision of
law, without it being proved that he or she has been subjected to a
crime for which such compensation can be ordered or paid. In this
view, the receipt of compensation by the complainant may turn out to
be a wrongful gain if the decision of the trial court holding the
Crl. Appeal No.187/2018 Page 56 of 67
accused guilty or returning a finding as to commission of offence
were to be upturned by the appellate or revisional court. The court
cannot allow the judicial process to be used for wrongful gain at the
cost of the public exchequer. It is, thus, incumbent that the legal
services authority – custodian and trustee of the victim compensation
scheme and fund – puts in position sufficient safeguards vis-a-vis
disbursement.

82. A series of lapses is found to have occurred in the case from
which this appeal has arisen and which need to be flagged and
summarised.

83. As has been noticed in the context of the judicial review of the
decision rendered by the trial court in the judgment under appeal, the
finding as to the commission of the offence of rape was returned in
the teeth of the admission of the prosecutrix, a major, that she had
indulged in consensual physical relationship with the appellant
(accused). As observed earlier, the trial court proceeded to find the
appellant guilty more as a case of moral turpitude than on parameters
of the requisite ingredients of the penal provision. Having found the
appellant guilty, while considering the question of sentence, the trial
judge did not at all examine the subject of compensation in terms of
Section 357 Cr. PC. Instead, it allowed the application of DCW to
direct DLSA to pay compensation which apparently would be a
direction under Section 357A Cr.PC. Such order to DLSA to pay
compensation, in the given facts and circumstances, was uncalled for
since there was no scrutiny made, or satisfaction recorded, as to the

Crl. Appeal No.187/2018 Page 57 of 67
possibility of compensation under Section 357 Cr. PC, if awarded,
being “not adequate”.

84. The District Legal Services Authority acted on the decision of
the trial court and treated it as “recommendation” under Section 357A
Cr. PC. It took note of the result of the sessions trial but then, quite
apparently, did not at all go into the merits, assumably because the
judgment of the court of sessions was a judicial order which would
bind the authority. As is shown from the order dated 20.02.2018 of
Victim Compensation Committee (quoted earlier) the statement of the
prosecutrix was recorded after the decision by the court of sessions.
In the said statement before the Committee the prosecutrix described
herself as the “victim”. This statement was clearly untrue if seen
against the backdrop of her deposition at the trial which was noted in
the judgment of the court of sessions. If the District Victim
Compensation Committee had taken care of going through the
evidence on which the said decision had been rendered, it might have
gone a little slow in passing the order of compensation on 20.02.2018
or, at least, in the follow-up action in its wake and instead awaited the
result of the appeal.

85. As noted earlier, the trial judge had rendered his decision by
passing the order on sentence on 06.01.2018. It may be noted that the
order was corrected by a clarification issued on 02.02.2018. The
period within which appeal could have been preferred against the said
decision, thus, would have ended on 04.03.2018. The appeal had
been submitted through jail visiting advocate of Delhi High Court
Legal Services Committee on 05.02.2018 and came up before the

Crl. Appeal No.187/2018 Page 58 of 67
court on 19.02.2018. The District Victim Compensation Committee
decided, by order dated 20.02.2018, to pay enhanced compensation of
rupees three Lakhs to the prosecutrix and released the said amount by
a communication dated 15.03.2018. There is nothing in the
documents submitted with the reports of Member Secretary, DSLSA
showing any effort on the part of the authority to ascertain if any
appeal had been filed and, if so, its status.

86. Though the decision (of DLSA) expressly stated that the
money would be made available to the prosecutrix in a phased
manner, it was remitted in lump-sum by credit into the account of the
prosecutrix by the end of March 2018. The banker of DSLSA was
not asked to ensure disbursement of the money in a phased manner,
there being no accountability placed on the banker of the beneficiary
as to due compliance. The decision to pay the money in staggered
manner, in this view, was more of a lip service. As is clear from the
proceedings recorded on the file of this appeal, the exercise to retrieve
the money from the prosecutrix turned out to be a very arduous task,
it having come back to the victim compensation fund, upon being
returned by the prosecutrix in piece-meal manner.

87. Against the backdrop of the above facts and circumstances, this
court, by orders dated 24.05.2019 and 14.10.2019, had called upon
the Member Secretary, DSLSA to make submissions in writing as to
whether any guidelines can be laid down on the subject. Some
suggestions have been given by the Member Secretary, DSLSA in his
reports dated 17.09.2019 and 30.10.2019. This court has given
anxious consideration to the same but is of the view that, in the

Crl. Appeal No.187/2018 Page 59 of 67
present context, a large number of guidelines which have been
proposed are nothing but reiteration of the letter of the existing
statutory law or of extant Delhi Scheme. To illustrate this point,
reference may be made to Section 357A Cr. PC wherein the criminal
court has the jurisdiction to make “recommendation‖ for
compensation rather than ―direct‖ such compensation from the
victim compensation fund. Similarly, it is trite that before the trial
court has resort to Section 357A Cr. PC for recommending
compensation, it must record satisfaction as to inadequacy of the
compensation that can be ordered under Section 357 for
“rehabilitation” of the victim. The Delhi Victim Compensation
Scheme 2018, which is in force, has the statutory backing. The
money paid there-under may be recovered from the person found
responsible for the crime (in terms illustratively of clause 15 of the
second part). Similarly, the scheme also permits the money paid
wrongly to be recovered back if the findings are returned to the effect
that the criminal complaint and the allegations were “false” [clause
10(7) of first part and clause 9(5) of second part]. But then, there
concededly has never been any action initiated by the legal services
authority for such recoveries to be effected. The suggestions on
above lines made in the report of the Member Secretary, DSLSA
should rather be a reminder to the legal services authorities
themselves of the need to put such provisions of the scheme to action.

88. In the opinion of this court, the case at hand, as also the cases
(of acquittal of 2017) referred to earlier, should be a wake-up call for
possibility of abuse of the victim compensation fund to be plugged by
suitable amendments to the Delhi Victim Compensation Scheme
Crl. Appeal No.187/2018 Page 60 of 67
2018. Lest the prevalent practices in the criminal courts of Delhi, as
illustrated by numerous instances quoted above, de-generate into a
well-entrenched financial scam, corrective measures need to be
adopted with a sense of urgency.

89. This Court thus holds that :-

(i). The obligation of the criminal court to consider
direction for payment of compensation under Section
357 Cr. PC (as indeed under other provision of law
such as Section 5 of Probation of Offenders Act) is a
matter of inquiry by the criminal court and the amount
paid there-under is subject to recovery from the person
found guilty for the offence the commission of which
has been proved.

(ii). The Victim Compensation Fund set up by the State
in terms of the Victim Compensation Scheme under
Section 357A Cr. PC is at the disposal of Legal
Services Authority and the criminal court in seisin of
the case may only “make recommendation” to, but not
“direct”, such authority to pay compensation to the
victim (or his dependents) from such fund. In this
view, the legal services authority before it decides to
award compensation and disburses the amount must
make proper inquiry to independently find whether a
case is made out in law, and under the scheme, for such
compensation to be paid guided, of course, by the

Crl. Appeal No.187/2018 Page 61 of 67
evidence led at trial and conclusion of the court based
thereupon.

(iii). Before making a recommendation under
sub-Section (2) of Section 357A Cr. PC for
compensation to be paid in a criminal case wherein a
person has been found guilty of complicity in the crime
which has been proved, the criminal court must make
inquiry as to whether :

(a). The victim (or his dependents) had
suffered “loss or injury as a result of the
crime” and “require rehabilitation”;

(b). the compensation can be ordered to be
paid under Section 357 Cr. PC by the
convict;

(c). the compensation awarded under
Section 357 Cr. PC is “not adequate” for
“rehabilitation”;

(iv) If a criminal case ends in “acquittal” or
“discharge” of the person arraigned as the accused, the
criminal court may “make recommendation for
compensation” if :

(a). the commission of the offence has been
duly proved;

Crl. Appeal No.187/2018 Page 62 of 67

(b). the victim of such offence has been duly
identified; and

(c). there is a case made out of “loss or
injury as a result of the crime” suffered by
such victim requiring “rehabilitation”.

(v). If the investigation into the crime which is alleged
does not lead to the offender being “traced” or
“identified”, the legal services authority may award
“adequate compensation” but, before it does so, it must
hold an enquiry and find, on the basis of “tangible
material”, that :

(a). the crime was in fact committed;

(b). there is a victim duly identified who has
“suffered loss or injury as a result of the
crime” and requires “rehabilitation”.

(vi). The authorisation in law by virtue of sub-
section (6) of Section 357A Cr. PC to arrange for
“immediate first-aid facility or medical benefits” or
“any other interim relief‖ to be made available to the
victim, on the certificate of police or the magistrate
also necessarily requires due proof, on the basis of
“tangible material”, of commission of an offence and it
having resulted in loss or injury on which account the
victim is in need of being helped “to alleviate the
suffering”

Crl. Appeal No.187/2018 Page 63 of 67

(vii). The payment of interim compensation under
the Victim Compensation Scheme is “subject to final
determination” of the right to receive compensation
under the law and, therefore, it must be awarded and
disbursed with appropriate riders to take care of the
possibility of being recovered back in the event of it
being ultimately concluded that the accusations were
unfounded.

(viii). Unless the exigencies of the case so demand,
compensation (whether interim or final) ought not be
released by DSLSA in lump sum, care to be taken that
the money meant for rehabilitation of the victim is not
frittered away and also such that in the event of
superior courts in hierarchy upturning the decision, the
money if wrongly paid, can be recovered back and, for
such purposes, the existing practice of DSLSA, as also
ordained by various provisions of the Delhi Victim
Compensation Scheme, 2018, to release the
compensation in a phased manner should be
scrupulously followed and ensured to be complied with
by all concerned including the bankers of the authority
and the beneficiary.

(ix). Unless the exceptional circumstances of the
case so demand, the final compensation awarded by
DSLSA in terms of the Victim Compensation Scheme
under sub-Section (3) of Section 357 Cr. PC ought not

Crl. Appeal No.187/2018 Page 64 of 67
be released by DSLSA unless and until the period
allowed for bringing a challenge to the decision of the
trial court (by appeal or a petition) has elapsed or if an
appeal (or petition) be presented, before decision
thereupon, it being incumbent on DSLSA to approach
the superior hierarchal court to seek early release of
compensation in case the prevalent circumstances
concerning the victim so justify.

90. On the available facts, and in the circumstances, noted above,
and, of course, in light of above conclusions, this court directs as
under :-

(i). Delhi Victim Compensation Scheme, 2018 be
appropriately modified and improved upon keeping in
view, inter alia, the conclusions reached by this court
as summarized above.

(ii). In addition to formal amendment of the Delhi
Victim Compensation Scheme 2018, measures be
taken by Member Secretary, DSLSA, amongst others,
by issuing guidelines and holding sensitization
programmes so that there is no abuse of the Victim
Compensation Fund and such that it attains its intended
objectives.

(iii). The Member Secretary, DSLSA shall formulate
the standard operating procedure such that the
decisions of the competent authorities to release the

Crl. Appeal No.187/2018 Page 65 of 67
compensation in a phased manner is scrupulously
complied with by all concerned – including bankers of
the authority and the beneficiary – and there is proper
accountability and follow-up.

(iv). The Member Secretary, DSLSA shall create
a permanent mechanism for monitoring of the progress
and result of investigation or trial of all such cases in
which interim relief of compensation has been
provided under the Victim Compensation Scheme such
that :

(a). In the event of it being found by
investigation or at trial that no offence was
committed, the money paid to the victim can be
recovered back.

(b). In the event of an accused being found
guilty, and convicted, the money paid as
compensation from the Victim Compensation
Fund under Section 357A Cr. PC may be
recovered from him.

(v). For ensuring that there is a possibility of the
amount to be recovered back from the victim in the
eventuality mentioned above, suitable safeguards in the
form of appropriate documentation (undertaking,
indemnity bond or such like other measures) shall be
evolved and adopted by DSLSA for future use.

Crl. Appeal No.187/2018 Page 66 of 67

(vi). The data of 2017 has been referred to in this
judgment only by way of illustration. The Member
Secretary, DSLSA shall arrange for an appropriate
scrutiny of all such past cases where interim
compensation was awarded (including those of 2017
noted earlier) and take necessary measures for recovery
in accordance with law of such amounts as have been
wrongfully paid.

(vii). Such provisions of Delhi Victim Compensation
Scheme, 2018 as permit recovery of the amount paid to
the victim from the wrong- doer, lying dormant and in
disuse, shall be enforced in accordance with law by
legal services authority.

91. The appeal is disposed of in above terms.

92. A copy of this judgment shall be circulated by the District
Session Judges amongst all judicial officers under their respective
control.

93. The copies of this judgment shall also be sent to the Member
Secretary, Delhi State Legal Services Authority and the Chief
Secretary, Government of NCT of Delhi for further necessary action
at their respective end. A report of action taken on these directions
shall be submitted to the court, by the said authorities, within three
months.

R.K.GAUBA, J.

DECEMBER 03, 2019
ynv
Crl. Appeal No.187/2018 Page 67 of 67

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