March 18, 2013

(Mis)understanding the Impersonation Rape: Guest Post by Professor (Dr.) Askand Pandey

1. Introduction:
Rape is a heinous crime against a woman and rapists deserve severest punishment. At the same time, a criminal statute must be strictly construed and it should punish only those who are clearly and unambiguously hit by its words.[i] If the words of a statute are capable of only one meaning, the rule of literal interpretation would be applied and no deviation from this rule would be possible unless reading the statute as a whole, the context directs us to do so.[ii] It is more so, if the offence is grave and carries severe punishment. The offence of rape as defined in Section 375 of the Indian Penal Code, 1860[iii] (hereinafter the IPC), carries punishment up to life imprisonment and also stipulates mandatory minimum sentence in certain aggravating circumstances.[iv] Impersonation rape is defined in Clause fourthly of Section 375, IPC (hereinafter the clause) and the clause envisages a situation where sexual intercourse by a man with a woman amounts to rape if following conditions are present:
(a)    that the sexual intercourse with the woman has taken place with her consent
(b)   that the accused obtained the consent of such a woman, knowing that he is not the husband of the woman
(c)    that the woman gave her consent believing that she is the lawfully wedded wife of the man with whom she has consented to have sexual intercourse
(d)   that such a belief is mistaken and founded on the deceit played by the accused  impersonating her husband
In nutshell, the clause criminalizes sexual intercourse with a woman, where the accused has impersonated her husband. In a recent case Bhupinder Singh v. Union Territory ofChandigarh[v], (hereinafter Bhupinder), the Supreme Court of India had an occasion to interpret the clauseBhupinder is the only Supreme Court decision on the issue of impersonation rape and the author would argue that the Supreme Court misunderstood the elements of this offence resulting in grave injustice to the appellant and laying down the law incorrectly.

2. The Factual Matrix of Bhupinder:
The facts of the case are that the prosecutrix Manjit Kaur filed a complaint stating that she was employed as Clerk in All Bank Employees Urban Salary Earners Thrift Credit Society Ltd. and worked as such till September, 1991. The accused Bhupinder Singh was employed as Data Entry Operator in the State Bank of Patiala, Sector 17-C, Chandigarh. He used to come to her office and developed intimacy with her. The accused proposed to the prosecutrix, representing himself as single, to which she agreed and their marriage was solemnized soon after. She got pregnant sometime in 1991, but on the insistence of the accused got it terminated.  She again became pregnant in July 1993 and their relations remained cordial till March, 1994. On 6-3-1994 when she had gone to Rose Garden, she met Devinder Kumar Bansal and Vinod Sharma, who were friends of the appellant Bhupinder Singh. Those persons told her that accused Bhupinder Singh was already married with one Gurinder Kaur and was having children from the said wedlock. She asked them as to why they had not told her about the previous marriage of her husband. But they avoided answering. She went to the accused, who had, on the pretext of going for some work, gone to his wife Gurinder Kaur. She had a fight with both Bhupinder Singh and Gurinder Kaur there and tried to inform police about the same but was prevented by her relatives from doing so. On 16-4-1994, she was admitted in General Hospital and gave birth to a female child. She informed Bhupinder Singh about this as he was the father of the child. But Bhupinder Singh did not turn up. On her complaint, a case was registered for the offence punishable under Sections 420/376/498-A, IPC[vi]. In his statement under Section 313 of the Code of Criminal Procedure, 1973, the appellant took the stand that he started knowing the complainant after his marriage with Gurinder Kaur. The complainant was known to his wife before her marriage with him and she had come along with her mother to their place in 1988 in Sector 23, Chandigarh where her mother requested him to get her a job as she had finished studies and wanted to get a job. The complainant stayed in their house for six months. Thereafter, he arranged a job for her. However, she had shifted and being of loose morals, entertained many people. When he learnt that she was of loose morals and was going out with different persons at odd hours, he objected and told the complainant to mend her ways. But she started fighting with him and demanded money which he does not pay and, after delivery of the child, she filed a false complaint. Gurinder Kaur stated that she knew the complainant prior to her marriage. Documents were also produced to show that in official documents, accused-appellant had shown the complainant as his wife and nominee. Upon trial, in a judgment dated 20-9-1999 passed by learned Additional Sessions Judge, Chandigarh, the accused was convicted for offences punishable under Sections 376 and 417 of IPC[vii]. He was sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.10,000/- with default stipulations for the first offence and rigorous imprisonment for nine months in respect of the second offence. An appeal against the aforementioned order of conviction was filed by the accused-appellant in the Punjab & Haryana High Court. The High Court found that the case at hand was covered by the clause, therefore, the accused was guilty of the offence and was liable for punishment under Section 376, IPC. Accordingly, the conviction, as done, was upheld. But, taking into account the fact that the complainant had knowledge about his marriage and had yet surrendered to him for sexual intercourse; held this to be a fit case for reduction of sentence and award of adequate compensation.[viii] Accordingly, custodial sentence of three years rigorous imprisonment was imposed in place of seven years rigorous imprisonment as was done by the trial court. The compensation was fixed at Rs.1,00,000/- which was directed to be paid within three months. It was indicated that in case the compensation amount was not paid, the reduction in sentence would not be given effect to.[ix] The High Court took this view of the offence in spite of the arguments advanced by the counsel for the appellant that when the complainant knew that he was a married man and yet consented for sexual intercourse with him, the clause would have no application. It was also submitted that the fact that the complainant knew about his being a married man, is clearly established from the averments made in a suit filed by her where she had sought for a declaration that she is the wife of the accused.[x]

3. Decision of the Supreme Court in Bhupinder:
The accused preferred an appeal to the Supreme Court by way of Special Leave. The Supreme Court, speaking through Justice Arijit Pasayat, observed that:[xi]

“Though it is urged with some amount of vehemence that when complainant knew that he was a married man, Clause "Fourthly" of Section 375, IPC has no application, the stand is clearly without substance. Even though, the complainant claimed to have married the accused, which fact is established from several documents, that does not improve the situation so far as the accused-appellant is concerned. Since, he was already married, the subsequent marriage, if any, has no sanctity in law and is void ab initio. In any event, the accused-appellant could not have lawfully married the complainant. A bare reading of Clause "Fourthly" of Section 375, IPC makes this position clear”. [Emphasis supplied]

It was held by the Supreme Court that the High Court had reduced the sentence taking into account the peculiar facts of the case, more particularly, the knowledge of the complainant about the accused being a married man. The Supreme Court found this knowledge, to be sufficient and adequate reason for reduction of the sentence and awarding of compensation to the victim and dismissed the appeal.

4. Understanding the Clause in Perspective:
As mentioned earlier, “impersonation rape” would be constituted only where the accused has impersonated the husband of the prosecutrix and has had sexual intercourse with her. On the other hand, where the accused, being married, lies to the prosecutrix about his marital status, making her believe that he is single, thereby inducing her to have sexual intercourse with him on a promise of marriage, it is not rape. It may be cheating. Also, where the accused, by deceit, induced a false belief in the mind of the prosecutrix that she is lawfully wedded to him, and thereby has cohabitation or sexual intercourse with her, the case would be covered under Section 493, IPC.[xii] This offence is non-cognizable[xiii], non-bailable[xiv], non-compoundable[xv] where as rape is a cognizable, non-bailable and non-compoundable offence. Section 192 of the Code of Criminal Procedure, 1973, stipulate that only the aggrieved party can take recourse to criminal sanction for the offence under Section 493, IPC. Apart from the procedural distinctions, these provisions are fundamentally different in their elements as well. However, the Indian courts appear to be confused about the scope of these two sections. This confusion is inexplicable considering the fact that the framers of IPC had put both the provisions in different chapters dealing with two different subjects. Section 493, is in Chapter XX of the IPC titled “offences against marriage”.  The object of Chapter XX of the IPC, as a whole, appears to be protection of the sanctity and integrity of the institution of marriage, where as object of Chapter XVI of which rape is a part, is protection of bodily integrity of a person. Section 493, IPC, only punishes a man for obtaining the body of a woman by a deceitful assurance that he is her husband. To prove deception, it must be conclusively established that the accused had dishonestly or fraudulently concealed certain facts or made a false statement knowing it to be false.[xvi] The fundamental difference between Section 493, IPC and the clause is that impersonation is not an essential element of the former whereas without impersonation as the husband of the prosecutrix, the offence under the latter would not be made out. Is it possible that an accused be guilty under both the provisions on the basis of same set of facts? Yes, says a Division Bench of Calcutta High Court in KartickKundu v. State of West Bengal[xvii], holding that;

“when the girl is below 16 years of age and any man has sexual intercourse with her the offence of rape under S. 375 (5) is committed. Where the consent is obtained fraudulently making-her believe that she has been lawfully wedded then the offence falls under S. 375 (4) and S.493. The "deceit" contemplated under S. 493 can be practised upon a woman who is above 16 years of age and also who is below 16 years of age. The Penal Code does not distinguish between a minor and a major woman. It will be an unwarrantable encroachment upon the section to introduce a limitation on the ground of minority and to bold that a minor is excepted in S. 493, Penal Code”.[xviii] [Emphasis supplied].

It must be noted that all cases covered under Section 493, IPC would not be covered under the clause, as the latter requires an additional element of impersonation. If there is deceit contemplated under Section 493, IPC coupled with impersonation, the case would fall in both, the clause and Section 493, IPC, otherwise not. In Sunil Vishnu Salve v. State of Maharashtra[xix], it has been held that the clause applies when a man induces a married woman to have sexual intercourse with him by impersonating her husband. When consent by a woman to a man is given under misconception of fact that he was her husband, it amounts to rape by a person to whom the woman believes to be her husband”.[Emphasis supplied]

5. Supreme Court’s Misinterpretation of the Clause:
It is submitted that the Supreme Court judgment in Bhupinder suffers from fundamental legal infirmities and does not correctly interpret the law under the clause. The first fundamental error, which the Supreme Court committed in Bhupinder is, that it confused “mitigating circumstances” with “exonerating circumstances”. The former merely mitigate the culpability while making the accused criminally liable for the offence, with a lesser punishment. Section 376, IPC allows the courts to award punishment lesser than the statutory minimum punishment prescribed for rape, if sufficient and adequate reasons for doing so exist. However, this does not mean that where the facts do not disclose commission of a particular offence; in the name of judicial discretion, the same could be brought under it. Doing so would be against the established canons of interpretation of penal statutes.[xx] On the other hand the “exonerating circumstances” would be those which take the case away from the definition of the offence, or in other words, where, the facts do not disclose commission of a particular offence, which the accused has been charged with. It is not uncommon in such circumstances for the courts to convict the accused with some other offence, subject to the condition that the same is not prejudicial to the accused.[xxi]
Secondly, the Supreme Court did not refer to any authority or case law on the subject in arriving at the conclusion of guilt. And last but not the least, the Supreme Court failed to read the clause as a whole and selectively omitted the words “because she believes that he is another man”. A mistaken belief in the validity of marriage and the same about the identity of the accused would mean different things and lead to different criminal liability under different provisions of the IPC. The Supreme Court read the clause to apply to a situation where the sexual intercourse has taken place with her consent, when the man knows that he is not her husband, and that her consent is given because she believes herself to be law­fully married, and thereby enlarged its grasp. In Bhupinder, if at all, the facts disclose commission of an offence under Section 493, IPC. Ends of justice would have been met, had the accused-appellant been held guilty under Section 493, IPC, with the same punishment. Identifying the appropriate offence and awarding corresponding punishment is fundamental to criminal justice dispensation.

6. Conclusion and Suggestions:
It seems that the Supreme Court misconstrued the clause as it does not specifically mention “impersonation” as an element of the offence. In England, the Sexual Offences Act, 1956, had a similar provision in clearer terms.[xxii] It is suggested that the Indian Parliament should amend the clause to obviate its further misinterpretation. It is unfortunate to see that someone who is not guilty under the clause is declared so. The decisions of the Supreme Court not only resolve issues between the parties to the case, but also lay down binding law for the future cases having same or similar facts. Any misapplication or misinterpretation of a penal provision shall have serious repercussions for the right to life and personal liberty of an individual. Apparently, a reason for applying the clause in Bhupinder appears to be the fact that Section 493, IPC was not brought to the notice of the Supreme Court. In Director of Settlements A.P. v M.R. Apparao,[xxiii] it has been held that the law declared by the Supreme Court cannot be availed on the ground that certain aspects were not considered or relevant provisions were not brought to the notice of the Court. Going by this, Bhupinder can not constitute a precedent for similar cases. It is hoped that in future the Supreme Court would correctly interpret the clause in deciding a case similar to Bhupinder, setting the controversy at rest, once and for all.

Acknowledgment : This article first appeared in Criminal Law Journal (November Issue).

[i] A.G. v. Sillem, (1864) 33 LJ Ex 92.
[ii] A.G. v. Milne, 1914 AC 765.
[iii] S. 375. Rape.—A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following de­scriptions:—
 First.— Against her will.
 Secondly.—Without her consent.
 Thirdly.— With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
 Fourthly.—With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be law­fully married.
 Fifthly.— With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupe­fying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
 Sixthly.— With or without her consent, when she is under sixteen years of age.
 Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
 Exception.—Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.

[iv] S. 376. Punishment for rape.—(1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both: 
Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.
(2) Whoever: -
(a) Being a police officer commits rape-
(i) Within the limits of the police station to which he is appointed; or
(ii) In the premises of any station house whether or not situated in the police station to which he is appointed; or
(iii) On a woman is his custody or in the custody of a police officer subordinate to him; or
(b) Being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or 
(c) Being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman's or children's institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or
 (d) Being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or
 (e) Commits rape on a woman knowing her to be pregnant; or
 (f) Commits rape when she is under twelve years of age; or
 (g) Commits gang rape, 
Shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine:
Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years.
Explanation 1
Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section.
Explanation 2
"Women's or children's institution "means an institution, whether called an orphanage or home for neglected women or children or a widows' home or by any other name, which is established and maintained for the reception and care of women or children.
Explanation: 3
"Hospital" means the precincts of the hospital and includes the precincts of any institution for the reception
and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation.

[v] 2008 Cri L J 3546.
[vi] Section 420, IPC prescribes punishment for cheating whereas section 498-A, IPC punishes cruelty against a married woman by her husband and his relatives.
[vii] Section 417, IPC punishes cheating.
[viii] Bhupinder, supra note 5 at para 7.
[ix] Ibid.
[x] Id. at para 8.
[xi] Id at para 11.
[xii] S.493. Cohabitation caused by a man deceitfully inducing a belief of lawful marriage: 
Every man who by deceit causes any woman who is not lawfully married to him to believe that she is lawfully married to him and to cohabit or have sexual intercourse with him in that belief, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
[xiii] See, the First Schedule of the Code of Criminal Procedure, 1973.
[xiv] Ibid.
[xv] Sections 320-321, Id.
[xvi] See, Gaur K.D., A Textbook on Indian Penal Code, (Delhi: Universal Law Pub. Co., 3rd ed. 2004), p. 720.
[xvii] 1967 Cr L J 1411 (Cal.). 
[xviii] Ibid. at paras 16, 17.
[xix] 2006 Cr L J 587 (Bom.)
[xx] Shanti Prasad Jain v. Director of Enforcement, AIR 1962 SC 1764.
[xxi] See, Maran Chandra Paul v. State of Tripura, 1997 Cr L J 715 (Gau.), para 7.
[xxii] S. 1 (3) provided that “A man also commits rape if he induces a married woman to have sexual intercourse with him by impersonating her husband”.  The Sexual Offences Act, 2003 is also clear about this aspect of the offence of impersonation rape.
[xxiii] AIR 2002 SC 1998. 

1 comment:

Anonymous said...

K.A. Pandey Sir,
First of all, thank you very much for coming up with an enlightening discourse on the subject matter.
Second, that you taught us the concepts so well that I and all those who attended your lectures, could easily make out in the initial paragraphs the mistake that the Supreme Court would have made... Instantly, came the idea that is a case of Section 493 and not of Section 375(4).
Third, I could more so make out that the judgment would be an obviously erroneous, when i happened to read the name of the Judge... J. Arijit Pasayat... because of the fact that the words you said, "he is a judge who has done more harm to the Criminal Justice System than could be done.. and that he has a knack for writing creative judgments" while discussing judgments given by the above mentioned Judge in 2 cases on the issue of Rape... the cases being Priya Patel v. state of M.P. and State of Rajasthan v. Hemraj.

Neeraj Singh, B.A.LL.B.(Hons.)III Year, RML National Law University