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Synopsis

The Chhattisgarh High Court has observed that having sexual intercourse with a dead body (necrophilia) is one of the “most horrendous crimes” one can think of, but the same does not amount to the offence of ‘Rape’ punishable under the Indian Penal Code (IPC) or the Prevention of Children from Sexual Offences (POCSO) Act.

A bench of Chief Justice Ramesh Sinha and Justice Bibhu Datta Guru, made the observation that for the commission of an offence of rape, the victim should be alive. Relying on the judgment of the Karnataka High Court in Rangaraju vs State of Karnataka (2023), the court noted : “the Indian Laws do not consider Sexual Intercourse with a Dead body as “RAPE" and a suitable parameter to convict the accused under Section 376 of the IPC.”

The court’s observation came in a case where a 9-year-old girl was kidnapped, raped, and murdered by the accused, Nitin Yadav. The victim's body was then taken to a hill, where it was buried. Before burial, the co-accused, Neelkanth @ Neelu Nagesh, committed necrophilia on the victim's body.

The court found that it was proven that accused Yadav throttled the victim's neck, because of which she died, and thereafter, he carried the dead body along with the undergarments and slippers of the victim to his house and hid the body inside the house. It further noted that thereafter, he met co-accused Neelkanth and informed him about the incident and also asked him for help to cause the disappearance of the body, and that is how they both took the dead body to a hill where accused-Neelkanth raped the dead body of the victim, before burying the same.

The court, relying on the judgment passed by the Allahabad High Court, in the case of Surendra Koli v. State of Uttar Pradesh and others, popularly known as the ‘Nithari Killing Case’, highlighted that Article 21 of the Constitution of India provides not only the right to life with dignity but also right to die in a dignified manner. The court noted : “the depredations committed by the accused upon dead bodies of his victims cannot be turned a blind eye. The Court laid down principles of bodily integrity, consent, and dignity and also observed that in the case of rape upon a dead body, all three of these principles are violated. Even though Indian criminal laws do not recognize 'necrophilia' as a crime in itself, at the same time the human rights of a dead person cannot be discounted.”

The court further stated: “raping a dead body is one of the most horrendous crimes one can think of but the fact of the matter is that as on date, the said accused cannot be convicted for the offence punishable under Sections 363, 376 (3) of the IPC, Section 6 of the POCSO Act, 2012 and Section 3(2)(v) of the Act of 1989 as the offence of rape was committed with a dead body and for convicting an offence under the aforementioned Sections, the victim should be alive.”

In light of these findings, the court dismissed the appeal (against the acquittal of Neelkanth @ Neelu Nagesh) filed by the mother of the minor girl. However, Neelkanth was convicted under Section 201 IPC for causing the disappearance of evidence. The court also upheld the conviction of Nitin Yadav, who was convicted by the trial Court under Sections 376(3), 363, 302, 201 IPC and 3(2)(v) of the SC and ST (Prevention of Atrocities) Act, 1989.

The court directed Neelkanth, who was granted bail in Feb 2024, to surrender and serve the remaining part of the sentence for the offence under Section 201 IPC.

 

Cause Title: Neelkanth @ Neelu Nagesh v State of Chhattisgarh [CRA No. 1920 of 2023]