Rape Of Dead Bodies Not Considered Offense Under IPC: Should Necrophilia Be Criminalised?

Several countries like UK, Canada, New Zealand and South Africa have criminalised necrophilia where crimes against dead bodies are punishable offences.

Written by: Snigdha Choudhury

Updated: June 1, 2023, 6:24 PM IST

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https://www.india.com/explainer/rape-dead-bodies-not-considered-offense-under-ipc-should-necrophilia-be-criminalised-6084080/ Copy

The act of having sexual intercourse or sexual contact with a dead body is known as necrophilia.

New Delhi: 21-year-old Riya (name changed) had gone to attend computer classes in a village in Karnataka’s Tumakuru district on June 25 in 2015. She never returned home that day. Her body did. Her family received the shock of their lives when they found out she died allegedly after her throat was slit. A 22-year-old man, who hailed from the same village as the victim, was arrested for her murder. However, more murkier details emerged as the case unfolded. After killing the girl, the accused reportedly climbed on top of her body and forced himself on the corpse.

A session court had convicted the accused of murder under Section 302 and sentenced him to rigorous life imprisonment. The court found him guilty of rape under Section 376 and sentenced him to 10 years imprisonment for the same on August 14 in 2017.

The accused challenged the session court’s order and filed an appeal in the Karnataka High Court. His appeal was heard by a division bench and the High Court found him guilty of murder but acquitted him of rape charges. the court awarded him rigorous life imprisonment and a fine of Rs 50,000 for the accused under Section 302 (murder) of the IPC but he was not charged under rape.

Rape Of Dead Bodies Not Considered Offense Under IPC

A man is said to commit ‘rape’ under Section 375 if he has forceful sexual intercourse with a woman under circumstances falling under any of the six following de­scriptions –

1. Against her will
2. Without her consent
3. When her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt
4. “With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupe­fying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent,” according to the Section 375 in Indian Penal Code (IPC)
5. “With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupe­fying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.”
6. “With or without her consent, when she is under sixteen years of age. Explanation.—Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.”

Acquitting the accused of rape charges, the Karnataka High Court said provisions under Section 375 and Section 377 have made it clear that a (dead) body cannot be categorised as “human”. So basically, no offense can be said to be committed under the relevant IPC sections.

“Admittedly, the accused had sexual intercourse on the dead body. Whether it amounts to an offence under Section 375 or Section 377 of the Indian Penal Code? A careful reading of the provisions of Section 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,” the Division Bench of Justices B Veerappa and Venkatesh Naik T said in their judgment on May 30 as per a report by news agency PTI.

Section 377, which deals with unnatural offenses, states that whoever “voluntarily has carnal inter­course against the order of nature with any man, woman or animal, shall be punished”.

While giving out the order, the Karnataka High Court requested the Centre to amend the provisions or bring in new ones criminalising and providing for punishment for ‘carnal intercourse’ with corpses.

What Is Necrophilia And Should It Be Criminalised?

The act of having sexual intercourse or sexual contact with a dead body is known as necrophilia. Several countries like UK, Canada, New Zealand and South Africa have criminalised necrophilia where crimes against dead bodies are punishable offences.

The Karnataka High Court has urged the Centre to amend the relevant provisions under the Indian Penal Code (IPC) or add new ones to provide punishment for ‘carnal intercourse’ with corpses.

However, certain aspects need to be looked into carefully before amending provisions or adding new ones so that they cannot be misused. “Law should be amended in a manner that there is a certainty of the punishment if such an act is committed so that the accused is not scott-free,” Utkarsh Singh, a noted Delhi-based human Rights lawyer, told India.com.

“If a man (accused) gets bail with such a mentality and he goes around with such a mentality then the society is at stake,” Singh said.

The human rights advocate said new IPC sections should be added with provisions so that the cases are dealt with expeditiously. “Any crime committed to outrage the modesty of women should be given strict punishment. For someone to even commit such a crime on a dead body, we need to understand how the mind of the accused works on a higher degree of crime. There should be different IPC sections introduced like 376(A) or 302(A) which would deal with such cases expeditiously and not a trial like that the case would go on for years,” Singh said.