Rape On Woman's Dead Body Will Not Attract Section 376 IPC: Karnataka High Court

The Karnataka High Court has held that sexual assault on the dead body of woman will not attract the offence of Rape punishable under Section 376 of Indian Penal Code. It thus acquitted a man of rape charges for committing sexual assault on the dead body of a 21 years old girl, after murdering her.

A division bench of Justice B Veerappa and Justice Venkatesh Naik T partly allowed the appeal filed by convict Rangaraju @ Vajapeyi, thereby setting aside the conviction under Section 376 of the Code. However, the court upheld his conviction for murder and confirmed the life imprisonment sentence imposed by the trial court.

The bench said “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.”

It 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.”

The bench however recommended the government to consider amending or enacting a law to punish such acts.

Background

As per the prosecution case the accused had on June 25, 2015, murdered the 21-year-old girl by slitting her neck and then allegedly raped her. The police had arrested the accused during investigation and later filed chargesheet against him. The trial court on appreciation of evidence had convicted the accused.

The convict in his appeal contended the alleged act is nothing but 'necrophilia' and there is no specific provision in IPC punishing the said act.

The prosecution opposed the plea and contended that provisions of Section 375(a) and (c)IPC, i.e., "sexual offences" was amended in 1983 and thereby, rape on dead body attracts sexual offences and is punishable under Section 376 IPC.

The amicus curiae appointed in the case pointed out that although Indian Criminal Laws do not recognize 'necrophilia' as a crime in itself, the human rights after death of a person has gained recognition. Article 21 of the Constitution of India, not only recognizes a right to life with dignity and respect, but also includes the right to die in a dignified manner and certain rights of treatment after death, burial etc., he said.

Findings

The bench was dealing with the question whether sexual intercourse with a dead body would attract rape charges under any provision of IPC. At the outset, it referred to Section 46 which defines death and observed, “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.”

Thus it held that sexual intercourse on the dead body is nothing but necrophilia- an erotic attraction to corpses. Court noted 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.

It said though it is not a specific offence categorised under sexual offences in IPC, 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 could also 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, Court opined.

Dignity of dead

The High Court referred to the judgment of the Apex Court in Pt.Parmanand Katara, Advocate vs. Union of India, (1995)3 SCC 248, wherein it was held that the dignity of the dead body of a human being must be maintained and respected. It remarked,

“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 Court was thus constrained to set aside the conviction under Section 376 IPC. It said “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.”

Following which it recommended the Central Government to amend the provisions of Section 377 of IPC to include dead body of any man, woman or animal or to introduce a separate provision as offence against dead woman as necrophilia or sadism as has been done in United Kingdom, Canada, New Zealand and South Africa.

Murder conviction

The court on going through the evidence of witnesses and other material produced by the prosecution held that “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.”