Having Sex With Dead Body Not An Offence In India
The dead can’t speak, and neither can they protest. So, it is left to the living to speak up for those who can’t.
In the Karnataka district of Tumakuru, a 21-year-old lady was killed and then raped in 2015. After the trial, the accused was found guilty of murder and rape by the Sessions Court. The Karnataka High Court maintained the accused’s conviction for the two counts when he filed an appeal there.
The accused subsequently filed an appeal before a division bench, which affirmed the murder allegation but cleared him of the accusation of “rape” on the grounds that the man had instead engaged in necrophilia, which is not a crime under any provision of the Indian Penal Code (IPC).
The right to dignity of a human corpse has now come under investigation as a result of this court order.
Not just that, another cold observation of the Karnataka High Court came as a mind-numbing shock, almost bordering on disbelief.
“It is brought to our notice that in most of the government and private hospitals where the dead bodies, especially of young women, are kept in the mortuary, the attendant who is appointed to guard them has sexual intercourse with the dead body,” the court said.
The court continued by saying that it was important that the state government take steps to prevent future crimes of this nature in order to uphold the honour of the dead women.
“Unfortunately, in India, there is no specific law against necrophilia”, the high court division bench of Justice B Veerappa and Justice Venkatesh Naik stated while calling upon the Centre to formulate a new law criminalizing necrophilia in India.
KARNATAKA NECROPHILIA CASE IS NOT AN ISOLATED ONE
News stories about rape-murder incidents are common, but the 2015 case in Tumakuru involved rape that occurred after the death of a 21-year-old woman. This incident is not unique.
A 23-year-old guy attacked a woman who was taking a bath in a stream in Assam’s Udalguri district in August of last year, hacking her to death before raping her.
During the Covid lockdown in June 2020, a shopkeeper cut the throat of a 32-year-old female customer after an argument. The 30-year-old killed her and then sexually raped the body.
A 26-year-old woman’s body was allegedly gang-raped by three men after being dug out from a grave in the Ghaziabad region in October 2015.
Necrophilia also found a mention in the infamous Nithari serial rape and murder case of 2006. Surinder Kohli, the help at Moninder Singh Pandher’s Noida residence, admitted to killing minor girls and having sex with their corpses.
RAPE OF CORPSE NOT RAPE?
In the Tumakuru case, while the division bench of the Karnataka High Court upheld the offence of murder against the accused, it said no case of rape under Section 375 (rape) could be made out as rape on a woman’s dead body was not an offence under IPC provisions.
The bench pointed out that the ‘rape’ of the corpse would also not come within the scope of “unnatural offences” under Section 377 of IPC.
“A careful reading of Sections 375 and 377 of IPC makes it clear that a dead body cannot be called a human or person. Therefore, the provisions of Section 375 or 377 would not be attracted,” the bench observed.
Saying that it was “high time” the Centre made changes to the IPC to make necrophilia an offence, the court recommended that the government either amend Section 377 of IPC or introduce a separate penal provision to criminalise necrophilia.
The accused had contended before the high court that as per the prosecution, the victim was first murdered and then her dead body was sexually assaulted. Therefore, the offence under Section 376 would not apply to him.
It was further contended that the act was nothing but necrophilia and because there was no specific provision in the Indian Penal Code to convict the accused, he should to be acquitted.
Given these submissions, the main issue before the high court division bench was whether the rape on a woman’s dead body would attract the offence of rape under Section 375 of the IPC. Here is what the court observed in its judgment.
WHAT DID COURT SAY ON RAPE & NECROPHILIA
Drawing a distinction between rape and sexual assault on a woman’s dead body, the court said:
“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 or 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 sexual intercourse on dead body is nothing but necrophilia.”
Defining necrophilia, the court said: “It is a morbid fascination with death and the dead and more particularly, an erotic attraction to corpses. It is a psychosexual disorder and DSM-IV classifies it among a group of disorders called ‘paraphilias’, including pedophilia, exhibitionism and sexual masochism and names necrophilia as ‘not otherwise specified’.”
“It is the specific case of prosecution that, the accused first murdered the victim and then had sexual intercourse with dead body. Thereby, it cannot be held as sexual offences or unnatural offence as defined under Sections 375 and 377 of the Indian Penal Code. Thereby, it cannot be termed as rape punishable under Section 376 of the Indian Penal Code. Utmost it can be considered as sadism, necrophilia and there is no offence made out to punish under Section 376 of the Indian Penal Code,” the court said.
The Karnataka High Court also outlined a series of instructions for the state to execute within six months in light of its observation about sexual assault on the dead bodies of young women in hospital mortuaries.
In order to avoid any crimes against a woman’s body, one of the instructions to the state government is to make sure that CCTV cameras are installed in every hospital mortuary.
The court further requested that government and private medical staff members receive sensitive training on how to handle a dead body and how to interact with the deceased’s companions.
COUNTRIES WHERE NECROPHILIA IS AN OFFENCE
THE UK: In the United Kingdom, Section 70 of the Sexual Offences Act, 2003 makes it an offence for a person who intentionally sexually penetrates, knowingly or recklessly, any part of his body into any part of a dead person. The punishment for the same ranges from 6 months to a term not exceeding 2 years.
CANADA: In Canada, Section 182 of the Criminal Code of Canada, 1985 makes Necrophilia punishable. The punishment in Canada is imprisonment for a term of not more than five years. The law in Canada appears to be similar though not identical to Section 297, IPC.
NEW ZEALAND: In New Zealand, Section 150 of the Crimes Act, 1961, serves imprisonment for two years to any person doing any act on the corpse, whether buried or unburied, to harm its dignity.
SOUTH AFRICA: In South Africa, Section 14 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 prohibits necrophilia.
In India, corpses don’t have the rights of a legal person. But there are several judgments that uphold the right to human dignity even after death. Will the right to dignity be extended to prevent sexual violation of corpses?
Also read: 3 People Charred To Death As Truck And Tanker Catch Fire Following Collision In Vadodara
(This is an NDTV story that has been rewritten by Bharat Express staff.)
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