Karnataka High Court: In the instant appeal seeking to set aside the conviction under Sections 376 and 302 of Penal Code, 1860, where the question arose that whether rape on a woman’s dead body attracts the provisions of Section 376 of Penal Code, 1860, the Division Bench of B. Veerappa* and Venkatesh Naik T., JJ., held that, commission of rape on a woman’s dead body cannot be termed as “rape’ to attract Section 376 of Penal Code, 1860. However, the same would be considered as “necrophilia”. The Court further recommended the Central Government to consider addressing “necrophilia” either by amending Section 377, Penal Code 1860 or by introducing a specific penal provision for the same.
Background: The matter originated in 2015 when brother of the deceased- victim found her dead body with her throat slit and since the clothes on her person were strewn across the area, it was suspected that she had been raped as well. The Police registered the case and began its investigations and apprehended the accused-appellant and the matter reached the Sessions Court.
The Sessions Judge found that the accused-appellant first murdered the victim while she was returning home from the computer class. After the murder, the accused-appellant committed rape on her. The accused-appellant was convicted under Sections 376 and 302 of Penal Code, 1860.
The impugned judgment of the Sessions Judge was then challenged before the High Court.
Contentions: The respondents contended that after the 1983 amendment of Section 375(a) and (c) of Penal Code, 1860, “sexual offences” includes rape on a dead body, therefore the conviction is justified.
Submissions by the Amicus Curiae:
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Given the peculiarity of the case, the Court also heard the submissions advanced by the amicus curiae. The amicus submitted that Indian penal laws do not recognise “necrophilia” [erotic attraction to dead bodies] as a crime in itself; however, the notion of human rights after the death of a person has begun to gain traction in recent years. Art. 21 of the Constitution recognises not only right to live with dignity, but also includes the right to die with dignity and has certain rights of treatment after death, burial etc.
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The amicus further submitted that Section 297 of Penal Code, 1860 remotely covers necrophilia by covering aspects such as trespassing in places of worship or places set apart for funerary practices or offering any indignity to human remains/ corpses. However, this provision cannot be understood to directly address or penalise necrophilia.
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As per the amicus, the question is that whether ‘man’ or ‘woman’ under the Section 377 of Penal Code, 1860 can also include the ‘dead’?
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The amicus curiae also submitted before the High Court the legal positions in foreign countries like United Kingdom, Canada, New Zealand and South Africa, where “necrophilia” is expressly prohibited and penalised.
Court’s Assessment- Perusing the submissions and the peculiarity of the matter, the Court considered that whether rape on a woman’s dead body attracts the provisions of Section 376 of Penal Code, 1860.
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The Court noted that in the trial before Sessions Court the circumstances (recovery of murder weapon, non-explanation of incriminating circumstances etc.) point towards the accused-appellant and the prosecution was able to prove his guilt beyond reasonable doubt.
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Vis-à-vis commission of rape murdering the victim, the Court deliberated that whether such act falls under Section 375 or Section 377 of IPC. Upon a combined reading of both the Sections, the Court point out that the Session’s Court did not consider that dead body cannot be called as human or person, thus both Sections 375 and 377 of IPC would not be attracted. Therefore, no offence has been committed which is punishable under Section 376 of IPC.
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The Court pointed out that rape must be accomplished with a person against their will. A dead body is not a person and cannot protest a rape. Sexual intercourse with a dead body is nothing but necrophilia.
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The Court observed that Necrophilia, is a psychosexual disorder and it is not a specific offence under “sexual offences” enumerated in the Penal Code, 1860. Action can be brought under Section 297 only if the angle of religion is involved.
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The Court pointed out that in the instant case neither the accused-appellant trespass any religious site or hurt any person’s religious sentiments nor did his act falls under the specifications of Sections 375 and 377 of IPC, therefore it cannot be termed as rape punishable under S. 376. “Utmost, it can be considered as sadism, necrophilia”.
Dignity of the Dead:
The Court noted that dignity of a dead body must be maintained and respected. Art. 21 of the Constitution emphasises on right to life which is beyond mere animal existence and Right to Dignity is expanded to a dead person. The law has not defined “person” to include a dead person, but a human being has some rights which cannot be detached from them even when their body becomes devoid of life.
The word “person” may not be construed narrowly as it excludes the dignity of the dead body who was a person when alive. The State has an obligation under Art. 21 of the Constitution.
The Court also made a sombre observation regarding news reports highlighting disgracing of a dead bodies by confining them or using them stop traffic and protest etc. The Court also made a macabre observation that how dead bodies kept in morgues/mortuaries are often subjected to necrophilia. Furthermore, due to lack of any specific legislation, disgraceful acts against dead bodies such the one committed in the instant matter, keep on happening with no repercussions.
Although “necrophilia” is an unnatural sexual act, which should have attracted the provisions of Section 377, IPC, but the provision does not include the term “dead body”.
The Court observed that several foreign countries like United Kingdom, South Africa, Canada etc, already have specific laws that recognise and penalise necrophilia.
Recommendations for Amendment or Specific Provisions:
Given the macabre nature of the matter and lack of any law addressing such offences, the Court deemed it fit to make some recommendations to the Central Government
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Amend Section 377, Penal Code, 1860 to include “dead body of men, women or animal”.
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Or introduce new provision in Penal Code to include sadism; necrophilia; voluntary carnal intercourse against the course of nature with a dead body of a woman, punishable with imprisonment (life or 10 years) along with fine.
For the State Government, the Court recommended to ensure installation of CCTVs at mortuaries in hospitals and maintain the following mortuary services-
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Mortuary hygiene;
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Secured information and Maintaining privacy of the premises;
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Removing physical and infrastructural barriers;
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Sensitization of the staff for handling dead bodies and dealing with attendants of the deceased with sensitivity.
[Rangaraju v. State of Karnataka, 2023 SCC OnLine Kar 23, decided on 30-05-2023]
*Judgment delivered by Justice B. Veerappa.
Advocates who appeared in this case :
Appellant-Hanumantharaya C.H., Adv. a/w Abhinaya K., KV Manoj, Advs;
Respondent- Kiran S. Javali, SPP and Vijaykumar Majage, Additional SPP;
Amicus Curiae- Nithin Ramesh;
