Sexual assault on the dead body of a woman will not attract the offence of rape punishable under Section 376 of Indian Penal Code, the Karnataka High Court ruled as it acquitted a man of the charge for committing the said crime on the dead body of a 21-year-old girl after murdering her. The High Court, however, upheld his conviction on the charge of murder and confirmed the life imprisonment sentence imposed by the trial court.
The high court was hearing an appeal filed by a man, who had been convicted by a trial court of murdering and raping a 21-year-old in Karnataka’s Tumakuru district in 2015.
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A bench of Justices B Veerappa and Venkatesh Naik said that raping the dead body of a woman will not come under the ambit of rape or unnatural offences under the IPC, and urged the government to either amend Section 377 of IPC or introduce a separate penal provision to criminalise necrophilia.
“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.
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“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 said in its order.
The court noted in its order that it was the specific case of the prosecution that the accused first murdered the victim and then had sexual intercourse with the dead body. Therefore, the court held that it cannot be held as sexual offences or unnatural offences as defined under Sections 375 and 377 of the Indian Penal Code. “It can be considered as sadism, necrophilia and there is no offence made out to punish under Section 376 of the Indian Penal Code,” it said.
In his plea against the order of the Sessions court convicting him of murder and rape, the accused contended that the 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. He further contended that since the the act was necrophilia, and there being no specific provision in the IPC to convict the accused, he ought to be acquitted.
To examine whether the sexual assault on the dead body would amount to rape, the court carried out a careful reading of Section 375 (rape) and Section 377 (unnatural offences) and concluded that both could not be applicable in the case.
“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 said.
A 21-year-old woman was murdered and her dead body sexually assaulted in Karnataka’s Tumakuru district in 2015.