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"It is the high time for the Central Government in order to maintain right to dignity of the dead person/woman to amend the provisions of Section 377 of IPC should include dead body of any men, 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, to ensure dignity of the dead person including woman...", the High Court has further observed.
A division bench of the Karnataka High Court recently held that sexual intercourse on the dead body of a woman would not amount to rape, in view of provisions of Section 376 of the Indian Penal Code.
The bench further held that rape must be accomplished with a person, not a dead body and 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 sexual intercourse on dead body is nothing but necrophilia", the bench added.
As per Section 375 of the Indian Penal Code, a man is said to commit the rape if he penetrates his penis, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person.
Moreover, Section 377 of the Indian Penal Code-Unnatural offences defines that, whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Referring to these provisions, a bench of Justices B Veerappa and Venkatesh Naik T observed,
"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. Therefore, there is no offence committed punishable under Section 376 of the Indian Penal Code.
In the case before court, the accused had first murdered the victim and then had sexual intercourse with dead body.
The court held that such act could not be termed as rape and "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."
However, the bench added that it was unfortunately that the said provision did not include the term 'dead body'.
"...most of the crimes against woman on the dead body including hospital mortuaries happening and it can be considered as sadism or necrophilia and there is no offence in the IPC made out to punish such persons who committed sexual intercourse on the dead body of the woman..", the High Court observed.
Case Title: RANGARAJU @ VAJAPEYI vs. STATE OF KARNATAKA
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