Karnataka High Court recently noted that rape on the dead body of a woman would not attract the offence of rape under Section 375 of the Indian Penal Code. Thus, the bench acquitted the man of charges of rape for committing sexual assault on a 21-year-old woman’s dead body after murdering her.
The bench comprising B Veerappa and Venkatesh Naik partly allowed the appeal of Rangaraju @ Vajapeyi and set aside his convict under Section 376 of the Indian Penal Code.
“A careful reading of the provisions of Sections 375 and 377 of the Indian Penal Code make it clear that the dead body cannot be called as human or person. Thereby, the provisions of Sections 375 or 377 of the Indian Penal Code would not attract,” the bench said.
High Court bench added, “It is the specific case of the prosecution that, accused first murdered the victim and then had sexual intercourse with the dead body. Thereby, it cannot be held as sexual offences or unnatural offences as defined under Sections 375 and 377 of the Indian Penal Code. It can be considered as sadism, necrophilia and there is no offence made out to punish under Section 376 of the Indian Penal Code.”
However, the bench has asked the government to revisit the Indian Penal Code to make a few changes to make necrophilia an offence. The Court recommended that the court should either amend Section 377 of the Indian Penal Code or come up with a new provision to criminalise necrophilia.
As per the prosecution case, the convict on June 25th, 2015 murdered the 21-year-old victim and then raped her. Taking into account all the evidences, the Trial Court convicted him.
The convict filed an appeal before the High Court in which he argued that his act was nothing but necrophilia and there is no specific legal provision in Indian Penal Code which makes it punishable.
The prosecution contended that provisions of Section 375(a) and (c)IPC, i.e., “sexual offences” was amended in 1983 and thereby, rape on a dead body attracts sexual offences and is punishable under IPC Section 376.
The amicus curiae in the case stated that it is right that the criminal laws in India don’t recognize necrophilia as a crime but human rights after death have got recognition in the last few years. The friend of the court added that Article 21 of the Constitution of India not just recognizes the right to live with dignity and respect but also includes the right to die in a dignified manner and others related to treatment after death and burial.
The bench referred to Section 46 of the Indian Penal Code which defines death and noted, “Rape must be accomplished with a person, not a dead body. It must be accomplished against a person’s will. A dead body cannot consent to or protest a rape, nor can it be in fear of immediate and unlawful bodily injury. The essential of guilt of rape consists in the outrage to the person and feelings of victim of the rape. A dead body has no feelings of outrage.”
The bench observed that Necrophilia is a “psychosexual disorder” which DSM-IV (Diagnostic and Statistical Manual of Mental Disorders) classifies among a group of disorders called ‘paraphilias’ including pedophilia, exhibitionism and sexual masochism.
The bench noted that though it is not an offence under Indian Penal Code, it could be brought under Section 297 as causing “indignity to any human corpse” by trespass into a place set apart for performance of funeral rites. It added that the person can be punished as an offence of wounding feelings of any person or of insulting any religion, if all the legal ingredients of intention are satisfied.
The bench referred to the Supreme Court judgment in Pt. Parmanand Katara, Advocate vs. Union of India, (1995)3 SCC 248 where the Court noted that the dignity of the dead body of a human being must be maintained and respected.
“Unfortunately in India no specific legislation enacted including under the provisions of Indian Penal Code for the purpose of upholding dignity and protecting rights and crime against the dead body of the woman…In the present case, as already stated supra, the charge is that the accused first murdered the victim and had sexual intercourse with the dead body. Though it is an unnatural offence, as defined under Section 377 of IPC…Unfortunately, the said provision does not include the term ‘dead body‘,” the judgment reads.
Setting aside the conviction under Section 376 of the Indian Penal Code, the High Court bench stated, “The said material aspect has not been considered by the learned Sessions Judge, thereby erroneously convicted the accused under the provisions of Section 376 of IPC in the absence of any provision attracting the offence under the provisions of Indian Penal Code.”
Considering all the evidence and witnesses, the bench noted, “The prosecution has proved beyond reasonable doubt that accused is guilt of homicidal death of deceased and the evidence on record is consistent only with the hypothesis of the guilt of accused, that it is to say, the facts established are not explainable on any other hypothesis except that the accused is guilty…The circumstances are conclusive in nature and they exclude every possible hypothesis except the involvement of the accused in the homicidal death of the deceased. Further, the chain of evidence is so complete not leaving any reasonable ground for the conclusion consistent with the innocence of the accused and it is shown that in all human probability, the act is done by the accused.”
