PROJECT REPORT

ON

CRITICALLY ELUCIDATE THE EXPIATORY

THEORY IN THE CONTEXT OF INDIA
SUBMITTED

TO

MR. MANOJ KUMAR

(FACULTY OF JURISPRUDENCE)

SUBMITTED BY – RISHABH BHARGAV

SECTION - A

ROLL NO. – 129

SEMESTER – VI

DATE OF SUBMISSION – 6/04/2017

HIDAYATULLAH NATIONAL LAW UNIVERSITY

DATE OF SUBMISSION – 6/04/2017

1
 Table of Contents

ContentsPage no

Acknowledgements…………………………………………………………………………….3

Introduction ………………………………………………………………………………..,….4

Objectives………………………………………………………………………………………6

Methodology…………………………………………………………………………………...6

Crime and Punishment…………………………………………………………………………7

Expiatory theory of punishment……………………………………………………………….11

Purpose………………………………………………………………………………………...12

Criticism……………………………………………………………………………………….14

Conclusion…………………………………………………………………………………….16

Bibliography & References………….……………………………………………………….. 17

2
 Acknowledgements

First & foremost, I take this opportunity to thank Manoj Kumar Sir, Faculty, Jurisprudence for
allotting me this challenging topic to work on. He has been very kind in providing inputs for this
work, by way of suggestions, ideas and views.

I would also like to thank my dear friends in the University, who have helped me with ideas
about this work. Last, but not the least I thank the University Administration for equipping the
University with such good library and I.T. facilities, without which, no doubt this work would
not have taken this shape in correct time.

SHUBHAM CHANDRAVANSHI

Semester-VI,

SECTION – ‘A’

Roll no – 129

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Introduction

“Expiation” means “the act of expiating; reparation; amends; compensation; atonement.

According to Expiation Theory, compensation is awarded to the victim from the wrong-doer.

By crimes awarding compensation from the pocket of the wrong-doer, he is punished, and is
prevented from doing such offences in his remaining life. This also becomes a lesson to the
remaining public.

Lily, Criminologist, opines: “The criminal violates the law, and trespasses against another person
and causes injury/harm. Thus he becomes a debtor to the victim. It is just to the Court to pass an
award of compensation payable by the criminal to the victim.

By paying compensation, the society recognises the right of the victim. He satisfies. There is no
question of personal revenge. The criminal is too punished economically. Thus the criminal
justice system achieves its target of prevailing. The peace and prosperity in the society, and to
prevent the crimes in the State.”

According to this theory, the object of punishment must not be merely to prevent further crimes,
but also to compensate the victim of the crime. This theory further believes that the main-spring
of criminality is great and if the offender is made to return the ill-gotten benefits of the crime, the
spring of criminality would be dried up. Though there is considerable truth is this theory, it must
be pointed out that this theory tends to over-simply the motives of a crime. The motive of a
crime is not always economic. Offences against the state, against justice, against-religion, against
marriage, and even against persons, may not always be actuated by economic motives. There
may be other complicated motives involved. In such cases, the theory of compensation may be
neither workable nor effective. Quite often, even in the case of offences actuated by such
motives, the economic condition of the offender may be such that compensation may not be
available. Therefore, this theory can at best, play a subordinate role in the framing of a Penal
Code. 135 By way of conclusion, it may be said that the administration of criminal justice cannot
have any of the above purposes as the single or sole standard of punishment. A perfect penal

4
code must be a judicious combination of these various purposes of punishment. No theory of
punishment is a complete answer by itself. All the above theories of punishment are not mutually
exclusive. If the retributive theory is meant pure vengeance, it cannot be accepted. However, it
does not mean that. In its true sense, it involves the working of Nemesis. The real idea behind
retribution is to make the offender realize-by a process of reformative detention-the heinousness
of his crime, thus preventing him and deterring others at the same time. As observed by justice
Krishna lyer in Rakesh Kaushik Vs Superintendent, Central Jail (referred to above),- "The
fundamental fact of prison reforms-comes from our constitutional recognition that every prisoner
is a person, and such person hold the human potential which, if unfolded, makes a rober a
Valmiki, and a sinner a saint." As stated in a British Government's White Paper entitled "People
in Prison,"- "A society that believes in the worth of individual beings can have the quality of its
belief judged, at least in part, by the quality of its prison and probation services and of the
resources made available to them." In the words of Dr. Sethna, the theories of retribution,
reformation, determent and prevention go hand-in-hand, and exist for the preservation of the
moral order, the protection of society and the rehabilitation of the offender himself 1

1
www.legalservice.com

5
OBJECTIVES OF THE PROJECT

1. To know about punishment and crime.

2. To discuss the expiatory theory of punishment.

3. To study the expiatory theory in the context of India.

RESEARCH METHODOLOGY

The present study is a descriptive and analytical study based on review of both primary and
secondary sources. Primary source includes various data provided by the official sites while the
secondary sources include books, articles, journals, web pages, etc.

Books and other reference as guided by Faculty of jurisprudence have been primarily helpful in
giving this project a firm structure. Websites, dictionaries and articles have also been referred.

6
 Crime And Punishment

Crime: Any act which is (usually grave offence) punishable by law; shameful act charge with or
convict of offence.
Punishment: Punishing or being punished; penalty inflicted on the offender;
Punish: Cause to suffer for offence, chastise, inflict penalty on offender for his crime.

One can surely observe how closely are crime and punishment related. The researcher would in
this chapter precisely like to stress on this point itself.

Crime is behaviour or action that is punishable by criminal law. A crime is a public, as opposed
to a moral, wrong; it is an offence committed against (and hence punishable by) the state or the
community at large. Many crimes are immoral, but not all actions considered immoral are
illegal.

In different legal systems the forms of punishment may be different but it may be observed that
all arise out of some action or omission. All these constitute all moral as well as legal wrongs
such as murder, rape, littering, theft, trespass and many more. As crime is quite different in
different geographical area it is quite evident that the forms of punishment would vary as it was
mentioned earlier that punishment as well as crime are socially determined. A type of action may
be a crime in one society but not in another. For example euthanasia is an offence in India, but in
many European countries such as Holland it is legalized. But there are certain offences which are
recognized almost universally like murder.

Durkheim explains crime, as crime exists in every society which do and do not have laws, courts
and the police. He asserts that all societies have crime, since all societies involve a differentiation
between two kinds of actions, those that are allowed and those that are forbidden. He calls the
latter type criminal.

Law is the string that binds society, and he who attempts to break the string is a danger to the
society as a whole and dealt with sternly by the powerful arms of law. Punishment though most

7
times confused with imprisonment is something much different from it. Punishment though most
times confused only with sanctions may also be of moral nature like ostracism. Punishment,
whether legal or divine, needs justification. Because the justification of legal punishment has
been given greater consideration by philosophers than has the justification of divine punishment
by theologians, the philosophical concepts and 'theories of punishment, (i.e. the justifications)
will be used as a basis for considering divine punishment.

A complete definition will now be made in such a way as to include both legal and divine
punishment. A.Flewfirst suggests that punishment must be an evil, an unpleasantness to the
victim. J. Mabbot objects to the use of the word 'evil' in connection with punishment. He
maintains that 'evil' carries too much moral flavour and also that it suggests positive suffering.
Mabbot states: The world is a worse place the more evil there is in it and perhaps the more
suffering. But it does not seem to me necessarily a worse place whenever men are deprived of
something they would like to retain; and this is the essence of modern punishment. While
deprivation may be a more appropriate description of modern punishment this does not
necessarily exempt it from being an evil. Nor does the suggestion that 'evil' carries a moral
flavour, for in fact the word punishment itself carries a moral flavour. (Like 'evil', punishment is
not in itself a moral term but it is suggested that it usually occurs in an ethical context.) While we
must eventually come to some conclusion as to whether punishment is an evil, it would be
preferable at present to use, as does W. Moberly, the slightly more neutral term 'ill'. Both of these
thinkers of punishment believe that the offender must be answerable for any wrong that he has
done.

K. Baier explains punishment as law-making, penalisation, finding guilty, pronouncing a

sentence. In a legal context law-making is a necessary condition, but it is possible to commit a
wrongdoing intentionally although no law has been made, in fact it is because certain acts are
considered wrong that laws are made in the first place. What is important to note is that
punishment is a conditional act and cannot be isolated from its total context.

But Durkheim has a different approach to punishment altogether. He treats punishment as the
reaction of the society against a crime. According to him a if punishment be a proportionate
response to the harm caused to the society then the extent of the punishment inflicted must be

8
clearly sorted out. He also stressed on the point that punishment can never be calculated; it is an
intensely emotional- sense of outrage- the desire to exact punishment. He says, It is not the
specific nature or result of the offending action as such which matter, but he fact that the action
transgresses widely shared ad strongly held sentiments, whatever these might be in any
particular case. He explains that if punishment is a reaction of the society against the offenders
then it is generally in the form of an outrage or anger thus rather being reparative or reformative
becomes punitive. This approach of the society towards the criminals is what makes us treat
them as outcasts and treated as a deviant from the social norms. This two-fold approach has been
criticized severely by various penologists, as at one time there is the use of both reformative and
retributive theories.

Punishment and crime are very strange phenomena to deal with. It is only if the acts done are
within the course of the provisions provided under the Code then any benefits take out of it is not
questioned. But any action through which maybe the same benefit is gained still the person may
be punished as because his action was not within the scope of the provisions. Also there are
certain elements in the society who though do many immoral acts but as because any provisions
or sanctions are not mentioned so that they can be punished they continue to do that act. One
should not earn any benefits or satisfaction out of such acts.

The legitimacy of any form of has always been criticized. Though there are many legal coercive
measures but it is quite different from punishment. If the punishment were any retribution to an
evil done then regardless of any consequence it would try to end that evil in itself. But if the
objective of the punishment given is to prevent the crime from further occurrence then it would
rather than using coercive methods it would be using persuasive measures and discourage the
offender from committing that act in the future. Treating punishment as a conventional device
for the expression of resentment, indignation, disappointment felt either by the sufferer and his
family or the punishing authority as such J.Feinberg argues that certain kinds of severe treatment
become symbolic of the of the attitudes and judgement of the society or community in the face of
the wrongdoing, and constitute a stigma which castes shame and ignominy on the individual on
whom the punishment is applied. The distinctiveness of the unpleasant measure could consist of
the way of executing them. Thus, summarizing the concept of punishment one can suggest that
punishment includes the following areas :

9
# Punishment inflicted is a feeling of uncomfortable and unpleasant circumstances.
# It is a sequel of a wrongful act.
# There must be some relationship between the punishment inflicted and the crime committed.
# The punishment is a form by which a criminal is made answerable to the society.

10
 Expiatory theory of punishment

According to this theory, the object of punishment must not be merely to prevent further crimes,
but also to compensate the victim of the crime. This theory further believes that the main-spring
of criminality is great and if the offender is made to return the ill-gotten benefits of the crime, the
spring of criminality would be dried up. Though there is considerable truth is this theory, it must
be pointed out that this theory tends to over-simply the motives of a crime. The motive of a
crime is not always economic. Offences against the state, against justice, against-religion, against
marriage, and even against persons, may not always be actuated by economic motives. There
may be other complicated motives involved. In such cases, the theory of compensation may be
neither workable nor effective. Quite often, even in the case of offences actuated by such
motives, the economic condition of the offender may be such that compensation may not be
available. Therefore, this theory can at best, play a subordinate role in the framing of a Penal
Code. 135 By way of conclusion, it may be said that the administration of criminal justice cannot
have any of the above purposes as the single or sole standard of punishment. A perfect penal
code must be a judicious combination of these various purposes of punishment. No theory of
punishment is a complete answer by itself. All the above theories of punishment are not mutually
exclusive. If the retributive theory is meant pure vengeance, it cannot be accepted. However, it
does not mean that. In its true sense, it involves the working of Nemesis. The real idea behind
retribution is to make the offender realize-by a process of reformative detention-the heinousness
of his crime, thus preventing him and deterring others at the same time. As observed by justice
Krishna lyer in Rakesh Kaushik Vs Superintendent, Central Jail (referred to above),- "The
fundamental fact of prison reforms-comes from our constitutional recognition that every prisoner
is a person, and such person hold the human potential which, if unfolded, makes a rober a
Valmiki, and a sinner a saint." As stated in a British Government's White Paper entitled "People
in Prison,"- "A society that believes in the worth of individual beings can have the quality of its
belief judged, at least in part, by the quality of its prison and probation services and of the
resources made available to them." In the words of Dr. Sethna, the theories of retribution,
reformation, determent and prevention go hand-in-hand, and exist for the preservation of the
moral order, the protection of society and the rehabilitation of the offender himself

11
 Purpose

Generally, in other system of punishment, the victim is not taken into consideration. The present
criminal justice system concentrates only on punishing the criminal. The Courts are not in
position to point out the grievance of the victim or his family members.

They only have the aim to 1 prevent the crimes. They only know to’ punish the criminals.
Recently by the efforts of the sociologist’s criminologists, penologists, etc., the criminals are also
not punished severely, and there are certain rehabilitative and reformative steps taken to reform
the criminals. It is a good and welcome measure

Then what about the real victims, who suffered in the hands of such criminals? In majority cases,
the real victim also becomes as a criminal and wants to take revenge against the wrong-doer or
his family.

Psychologically, economically, socially, etc., the victim is not satisfied by mere punishment on
the criminal. The jurisprudents, jurists, criminologists, penologists, sociologists, etc., too are not
concentrating.

However, recently separate researchers, scientists under the name of “Victimologists” are
propounding to give certain remedies to the aggrieved victims and their families. This separate
science is called “Victimology”. This theory supports Expiation Theory.

According to the Victimologists, the chain reactions of personal revenges can be decreased in the
society by awarding compensation to the victims from the property of the criminals. It can
prevent the criminal behaviour in the society. Because it stops chain reaction. It subsides
the personal revenge.

Economically too, the victim or his family members satisfy with the money and can lead their
remaining life safely. It also creates repentance in the minds of the criminals.

Thus considerable sects of modern criminologists, jurists, penologists, jurisprudents,

sociologists, etc. support the idea of victimology and expiation theory.

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State vs. Sayyaduddin 1996 AP

Justice Motilal Naik of A.P. High Court gave a sensational judgment on 25-11-1996 covering
this expiation theory. The case particulars are: Sayyaduddin and his brother raided Maslehuddin
due to personal grudges.

As a result Maslehuddin was killed. The High Court imposed three years imprisonment to the
accused and awarded Rs. 60,000/- as compensation payable by the accused to the family
members of Maslehuddin.

Delivering the judgment, Justice Motilal Naik observed: “By imposing imprisonment on the
accused could not be helpful to the family members of the victim. In my opinion, it is better to
help the victim’s family members, as there is no one to look after them after the death of the
bread-earner.

Therefore, it is justified to impose a penalty/fine of Rs. 60,000/- on the accused besides sending
him to prison for three years.”2

2
www.scibd.com

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 Criticism

The penologists criticise the expiation theory opining that this theory is sufficient to meet the less
serious type of offences, such as abuse, assault, defamation, trespass, torts, etc.

However, the expiation theory could not be a solution in cases of murder, plunders, rapes,
kidnapping, thefts, etc., serious natured offences. If the compensation is allowed to be paid in
rapes, the number of rapists will be increased.

The rich people will be habituated to rape the poor women, and pay the compensation. By their
money, they become recidivists. They can escape imprisonment by paying money.

Therefore, it could not prevent the serious offences. One more difficulty in Expiation theory is
what measures the compensation can be fixed in cases of rape, kidnapping, murder, etc.?

Sometimes, the criminals may not have sufficient money to pay compensation. How much
compensation can be awarded to a woman raped? How the society will react against her and
rapist?

If the woman raped is awarded money, does she not become habituated in filing false
complaints? So by expiation theory, the crimes cannot be prevented, even though certain amount
of compensation is awarded to the victims.

Therefore, it is not a correct remedy to prevent the crimes in the society. However, in the
Criminal Procedure Code, 1973 this theory is already being implemented.

This Code classifies the offences in two categories – one serious natured crimes and another
simple crimes. Section 320 of Cr.P.C. describes certain crimes, which can be compoundable. The
accused can compromise with the victim by paying money or apology.

Assault, defamation, etc: are classified as “compoundable offences” under Section 320 CrPC.
The framers of the Code intentionally excluded the offences of murder, kidnapping, rape, theft,
etc., from compoundable offences.

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These cases are not compromisable and compoundable. The State shall inquire, investigate and
punish the culprit to protect the society from such culprits.

15
 Conclusion

However, the expiation theory could not be a solution in cases of murder, plunders, rapes,
kidnapping, thefts, etc., serious natured offences. If the compensation is allowed to be paid in
rapes, the number of rapists will be increased.

The rich people will be habituated to rape the poor women, and pay the compensation. By their
money, they become recidivists. They can escape imprisonment by paying money.

Therefore, it could not prevent the serious offences. One more difficulty in Expiation theory is
what measures the compensation can be fixed in cases of rape, kidnapping, murder, etc.?

Sometimes, the criminals may not have sufficient money to pay compensation. How much
compensation can be awarded to a woman raped? How the society will react against her and
rapist?

If the woman raped is awarded money, does she not become habituated in filing false
complaints? So by expiation theory, the crimes cannot be prevented, even though certain amount
of compensation is awarded to the victims.

Therefore, it is not a correct remedy to prevent the crimes in the society. However, in the
Criminal Procedure Code, 1973 this theory is already being implemented.

This Code classifies the offences in two categories – one serious natured crimes and another
simple crimes. Section 320 of Cr.P.C. describes certain crimes, which can be compoundable. The
accused can compromise with the victim by paying money or apology.

Assault, defamation, etc: are classified as “compoundable offences” under Section 320 CrPC.
The framers of the Code intentionally excluded the offences of murder, kidnapping, rape, theft,
etc., from compoundable offences.

16
BIBLIOGRAPHY/WEB REFRENCES

1. www.legalserviceindia.com
2. www.slideshare.com
3. www.ncis.com
4. www.sparknotes.com
5. www.law.net

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