Karnataka— The Karnataka High Court, Bangaluru has passed a verdict stating that engaging in sexual assault on a deceased woman's body does not amount to rape under Section 376 of the Indian Penal Code (IPC).
While hearing the case Rangaraju Vajapeyi vs State Of Karnataka on 30 May, 2023, the High Court acquitted the petitioner/ accused of rape charges after he sexually assaulted the lifeless body of a 21-year-old girl whom he had previously murdered by slitting her throat in the Tumkuru district in June 2015.
The High Court sustained conviction and fine under Section 302 of the IPC but the accused was acquitted of the offense of raping the deceased victim's body, as there is no provision in the IPC to punish him for this specific offense.
The bench of the High Court, composed of Justice B Veerappa and Justice Venkatesh Naik T, expressed the view that sexually assaulting a dead body represents sadism and necrophilia. However, they concluded that such acts do not fall within the purview of Section 375 and 377, and therefore, no offense is constituted under Section 376 of the IPC.
In their ruling, the High Court bench emphasized, "Upon a careful examination of Sections 375 and 377 of the IPC, it becomes evident that a deceased body cannot be categorized as a human being or person. Consequently, the provisions outlined in Sections 375 and 377 are inapplicable."
The bench further asserted that rape can only be perpetrated against a living individual, not a deceased body. "It must transpire against an individual's will, implicating the absence of consent or the capacity to protest against the act. A lifeless body cannot grant consent or express opposition to rape, nor can it experience immediate and unlawful bodily harm. The crux of rape lies in the violation of a person's dignity and the ensuing sense of outrage," the court pronounced.
Subsequently, the Karnataka High Court recommended that the central government take measures to criminalize necrophilia by amending the provisions of the Indian Penal Code.
It stressed the necessity for such legislation in order to safeguard the dignity of deceased bodies and uphold the right to life, including the right to one's remains, as enshrined in Article 21 of the Indian Constitution.
Additionally, the Court directed the Karnataka state government to install CCTV cameras in all government-operated mortuaries and private hospitals to prevent crimes against the bodies of deceased women.
Ragesh ( pseudo name) the sibling of the deceased victim lodged a complaint on 25th June 2015, stating that he is a permanent resident of Kasaba Hobli, Sira Taluk, Tumakuru District.
The victim, his younger sister, aged 21 and a graduate from the Government College, had enrolled in computer classes in Badavanahalli. She usually returned home from her classes at 3:30 pm.On the aforementioned date, she went to her computer class at 10:30 am, but she did not come back home until evening.
Ragesh assumed she might have visited a friend's house. While working at the Dairy in the village around 6:15 pm, Ragesh overheard people discussing that someone had murdered a girl by slitting her throat located along the road.
He rushed to the scene and discovered that the girl who had been killed was his sister. They also noticed that the assailants had discarded the victim's chudidar pants, underwear, and veil in the bushes after raping her. In order to prevent her from disclosing their identities, they had murdered her by stabbing her neck with a weapon and had left her school bag nearby.
Based on Ragesh's complaint, the local police registered a case for offenses punishable under Sections 376, 302, and 201 of the Indian Penal Code. Following the investigation, the police filed a Charge Sheet against the accused. The District and Sessions Court convicted the accused.
The accused filed the criminal appeal, to overturn the conviction and sentencing order issued by the Principal District and Sessions Judge, Tumakuru.
Necrophilia- 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'.
In United Kingdom, Section 70 of the Sexual Offences Act, 2003 of the UK 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.
In Canada, Section 182 of the Criminal Code of Canada, 1985 makes Necrophilia punishable.
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.
In South Africa, Section 14 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 prohibits Necrophilia.
The court order reads, "It is our experience that everyday newspapers are covered with the reports of group of persons illegally confining the dead bodies on the road, or in front of the police stations holding up traffic for hours making demand of compensation or for better road safety.
The society should not permit such disgrace to the dead body. The State through its agencies must take immediate possession of such dead bodies used for illegal means, for its decent and dignified cremation.
It is brought to our notice that most of the government and private hospitals where the dead bodies, especially young woman kept in mortuary the attendant who appointed to guard, have sexual intercourse on the dead body.
Thereby it is high time for the State Government to ensure such crime should not happen, thereby maintaining dignity of the dead body of the woman. 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."
The court made the following recommendations :
(i) It is high time for the Central Government to amend the provisions of Section 377 of IPC and should include dead body of men, woman or animal as contemplated under the said provision;
Or The Central Government shall amend the new provision in the IPC with regard to sadism or necrophilia against the person whoever voluntarily has carnal intercourse against the natural including the dead body of the woman, punishable with imprisonment of life or with imprisonment of either description for a term which may extend to ten years and also shall be liable for fine.
(ii) It is high time for the State Government to ensure installation of CCTV cameras in the mortuaries of all the government and private hospitals in order to prevent the offence against the dead body of the woman within 6 (six) months from the date of receipt of certified copy of this order.
(iii) The State Government shall maintain following mortuary services:
(a) Mortuary hygiene: Regular mopping and cleaning of mortuary should be undertaken so that dead body remains are preserved in a proper, clean environment, thereby maintaining its dignity.
(b) Secured information: The facility should maintain confidentiality of clinical records and must have a mechanism for guarding information related to the deceased, especially for cases that are stigmatized and socially criticised, such as that of HIV and suicidal cases.
(c) Maintaining privacy of premises: Post mortem room should not come under the direct line of sight of the general public/visitors. To ensure the same, provision of curtain, screen or buffer area may be made in a post mortem room.
(d) Removing physical/ infrastructural barriers
The facility must have infrastructure for delivery of assured services, to meet the prescribed norms. All basic requirements must be available and maintained as per the Indian Public Health Standard Guidelines for District Hospitals for management of the dead bodies
(e) Sensitization of the staff: The mortuary administration may sensitize the staff from time to time to train them in handling of the dead body and deal with the attendants of the deceased with sensitivity.
On March 29, a 21-year old porn addict Karan Singh Panwar killed and raped a 9-year old girl in Mavli of Udaipur district in Rajasthan. Later he dismembered the body in 10 pieces and dumped in a cordoned building.
In December 2016, a 28-yr old contractor Anil Kumar was arrested from Delhi's sunlight colony for raping a woman's dead body.
Kenneth Douglas, 60, worked as a morgue attendant in Ohio, USA, between 1976 and 1992, where he committed the sexual crimes against the dead women while working the night shift.
As per an ANI report Dated 29 April 2023, Pakistani parents are locking daughters' graves to avoid rape as necrophilia cases are on a rise in the country.
In 2011 a grave keeper Muhammad Rizwan from North Nazimabad in Karachi was arrested after he confessed to have raped 48 corpses.
The National Human Rights Commission issued advisory dated 14.05.2021 for Upholding the Dignity and Protecting the Rights of the Dead as under:
1. No discrimination in treatment of the body in any form- To ensure that the dead body is properly preserved and handled irrespective of religion, region, caste, gender, etc.
2. No physical exploitation- Any form of physical exploitation of the body of the dead violates the basic right of the deceased person.
3. Decent and timely burial/cremation- The deceased person has the right to a decent and timely burial/ cremation.
4. To receive justice, in case of death due to crime- The dead have the right to receive justice in cases where death occurs due to crime.
5. To carry out a legal will- The will, if any, left by the dead must be respected and honoured.
6. No defamation after death-The deceased person should not be defamed by any kind of statement or visible representation, made or published intending to harm his/her reputation.
7. No breach of privacy- The deceased person has the right to privacy, i.e., the right to control the dissemination of information about one's privacy.
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