Section 376 Doesn’t Cover Rape Of Woman’s Dead Body, High Time For Govt To Include Necrophilia As Offence Under IPC: Karnataka HC

The Karnataka High Court while dealing with an appeal has held that Section 376 of the Indian Penal Code, 1860 (IPC) does not cover the offence of rape on a woman’s dead body. It said that it is high time for the Central Government to include ‘necrophilia’ (sadism) as an offence under the IPC provisions.

A Division Bench comprising Justice B. Veerappa and Justice Venkatesh Naik T observed, “Unfortunately the said provision does not include the term 'dead body'. Thereby 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. Therefore the provisions of Section 376 of IPC would not attract. … 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.”

The Bench recommended that the Central Government in order to maintain the right to dignity of the dead person/woman to amend the provisions of Section 377 of IPC should include a dead body of any man, woman, or animal or 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 the dignity of the dead person including a woman.

Advocates Hanumantharaya C.H., Abhinaya K., K.V. Manoj, and Amicus Curiae Nithin Ramesh represented the appellant/accused while State Public Prosecutor Kiran S. Javali and Additional State Public Prosecutor Vijaykumar Majage represented the respondent/State.

Facts -

The accused preferred an appeal against the judgment of conviction and order of sentence passed by the Principal District and Sessions Judge convicting him for the offence punishable under Sections 302 and 375 of IPC and sentencing to undergo rigorous imprisonment for life with a fine of Rs. 50,000/- and rigorous imprisonment for a period of ten years with a fine of Rs. 25,000/- respectively. In this case, the victim had joined computer classes used to return home from computer class at 3.30 pm and as usual went to a computer class at 10.30 am but did not return home till the evening.

The elder brother of the victim got to know that a young woman was murdered by slitting her neck and on reaching the spot, he noticed that some miscreants had thrown her sister's churidar pant, underwear, and veil on the bush and had raped her. Under the fear that she may reveal the incident, they murdered her by poking her neck with some weapon and had thrown the school bag nearby, which she used to carry every day.

The High Court in view of the above facts noted, “The dignity of dead body of a human being must be maintained and respected. Moreover, it extended the right to the homeless deceased person to have a decent cremation, according to the religious customs to which one belongs to. It is also established a corresponding duty on the State to ensure decent cremation is served to the person. Article 21 of the Constitution of India emphasized the Right of Life means a meaningful life and not merely animal existence. Right to dignity is also expanded to a dead person.”

The Court further noted that the Transplantation of Human Organs and Tissues Act (THOTA) guarantees a deceased person a right to protect and preserve human organs or tissue or both of the dead body being harvested without his/her consent or the consent of near relatives.

“The law has not so far defined a person will include a dead person. It, however, has some rights which cannot be detached from it, even if the body is deluded of the life, is together forms a human being. … The word ‘person’ may not be construed narrowly serves to exclude dignity of dead body of the human being, who was the person, when alive, which is not claimed and which is required to be cremated or buried with the dignity in accordance with the religious beliefs of the person, if such beliefs can be found by establishing his identity”, said the Court.

The Court further said that the State is obliged in law to maintain sanitation to remove the body, which becomes dangerous, for the safety of other living beings for its adequate disposal.

“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”, also observed the Court.

The Court said that in the case at hand, the accused first murdered the victim and then had sexual intercourse with her dead body.

“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 accused has not made out any case to interfere with the impugned judgment of conviction, convicting the accused for imprisonment for life for the offence punishable under Section 302 of IPC with fine of Rs.50,000/- with default clause”, held the Court.

The Court, therefore, held that the rape of the dead body of a woman will not attract the offence punishable under Section 376 of IPC and further recommended that the Central Government amend the provisions, install CCTV cameras in the mortuaries of all the government, and private hospitals, and maintain the mortuary services such as hygiene, secured information, the privacy of premises, sensitization of staff, etc.

Accordingly, the Court partly allowed the appeal, confirmed the appellant’s conviction under Section 302 of IPC, and set aside the conviction under Section 376 of IPC.

Cause Title- Rangaraju @ Vajapeyi v. State of Karnataka

Click here to read/download the Judgment