On May 30, the Karnataka High Court recommended that the Government of India amend Section 377 (Unnatural Offences) of the Indian Penal Code (IPC) to include the dead body of any man, woman or animal in order to maintain the right to dignity of the deceased.
The court further recommended the government introduce a separate provision – necrophilia or sadism – as an offence against the deceased as has been done in the United Kingdom, Canada, New Zealand and South Africa.
The court said, “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 court also recommended that such provisions concerning necrophilia and sadism must be punishable with “imprisonment of life or with imprisonment of either description for a term which may extend to ten years and also shall be liable for fine.”
Background
The Karnataka High Court was hearing an appeal against the trial court’s ruling convicting the accused to life imprisonment in a 2015 murder/rape case. It was contended that the convict first murdered the victim and then raped her.
The court set aside the conviction imposed u/s 376 of the IPC; however, the court upheld the conviction for murder confirming the trial court’s ruling imposing imprisonment for life. The court said, “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.”
The court noted, “It is the specific case of the prosecution that, accused first murdered the victim and then had sexual intercourse with the dead body. Thereby, it cannot be held as sexual offences or unnatural offences as defined under Sections 375 and 377 of the Indian Penal Code.” The court added, “Thereby, 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.”
The court said, “Rape must be accomplished with a person, not a dead body. 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.”
“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,” the court said.
The court further said that the trial erroneously convicted the accused u/s 376 of the IPC, in the absence of a provision for the same. The court said, “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 court on the convict’s murder conviction said, “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, that it is to say, the facts established are not explainable on any other hypothesis except that the accused is guilty…The circumstances are conclusive in nature and they exclude every possible hypothesis except the involvement of the accused in the homicidal death of the deceased.”
“Further, the chain of evidence is so complete not leaving any reasonable ground for the conclusion consistent with the innocence of the accused and it is shown that in all human probability, the act is done by the accused,” the court said.
