Rape on woman's dead body not offence under Section 375 IPC; high time Central government makes necrophilia an offence: Karnataka High Court

The Karnataka High Court recently ruled that rape on the dead body of woman (necrophilia) would not attract the offence of rape under Section 375 of the Indian Penal Code (IPC) [Rangaraju @ Vajapeyi v State of Karnataka]..A bench of Justices B Veerappa and Venkatesh Naik also said that it would 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 Court said.It therefore, said that it is high time the Central government makes changes to IPC to make necrophilia an offence.Thus, the Court urged the government to either amend Section 377 of IPC or introduce a separate penal provision to criminalise necrophilia. "The Central Government is hereby recommended to amend the provisions of the IPC as stated supra in order to protect the dignity of the body of the deceased in order to ensure to protect persons right of life includes right of his dead body as contemplated under Article 21 of the Constitution of India within a period of 6 (six) months from the date of receipt of certified copy of this order," the Court ordered. .In addition to this, the Court also directed the State government to ensure CCTV cameras are installed in all government mortuaries and private hospitals to prevent offences against a woman's dead body. The State was also asked to maintain mortuary hygiene, ensure confidentiality and privacy at mortuaries, remove infrastructural barriers and sensitise mortuary staff. .The Court was hearing an appeal against an order of the Sessions Court convicting the appellant for the offences of murder and rape of a 21 year-old woman. .The appellant contended that as per the prosecution, murder of the victim was committed first and then the dead body was sexually assaulted. Therefore, the offence under Section 376 would not be attracted. Further, it was contended that the act of the accused was nothing but necrophilia and there being no specific provision in the IPC to convict the accused, he ought to be acquitted. .In light of these submissions, the question before the Court was whether rape on a woman's dead body would attract the offence of rape under Section 375 of the IPC. .To examine this, the Court carried out a careful reading of Sections 375 (rape) and 377 (unnatural offences) of the IPC. It was found that the two would not be applicable in the facts of the case. "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."In this respect, the conviction by the Sessions Judge was found erroneous and set aside."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.".The appellant was, however, found guilty of committing murder based on the recovery of a blood stained weapon and clothes from his house as well as a lack of explanation for incriminating circumstances. "The material on record clearly establish that, based on aforesaid circumstances 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", the Court concluded. Thus, the conviction for the offence of murder was confirmed. .On arriving at these findings, the Court observed that dignity of a human being's dead body must be maintained and respected. "Right to dignity is also expanded to a dead person."It was opined that the State must ensure that such crimes do not happen. But, there is no specific legislation enacted in India including under the provisions of the IPC for upholding dignity and protecting rights of a woman's dead body, the Court said..With these observations, the government was asked to revisit the law and the Court's registrar general was directed to send a copy of the judgment to the Central and State governments. .Advocates Hanumantharaya CH, Abhinaya K, and KV Manoj appeared for the appellant, the respondents were represented by State Public Prosecutor Kiran S Javali, Additional State Public Prosecutor Vijaykumar Majage. Advocate Nithin Ramesh served as the Amicus Curiae. .[Read Judgment]