Engaging in sexual intercourse with a person’s dead body is one of the most horrendous acts one can think of, but the offence does not come under Section 376 of the now-shelved Indian Penal Code (IPC) or under the Protection of Children from Sexual Offences (POCSO) Act, the Chhattisgarh High Court has observed.
The High Court made the observation while upholding the acquittal of a man, Neelu Nagesh, who had a case filed against him for raping a minor’s dead body (necrophilia) even though he was convicted for other offences, Bar and Bench reported.
“Such provisions apply only when the victim is alive. There is no doubt that the offence committed by the accused- Neelkanth alias Neelu Nagesh raping a dead body is one of the most horrendous crimes one can think of,” a bench of Chief Justice Ramesh Sinha and Justice Bibhu Dutta Guru said.
“But the fact of the matter is that as of date, the said accused cannot be convicted for the offence punishable under Sections 363, 376 (3) of the IPC, Section 6 of the POCSO Act, 2012 and Section 3(2)(v) of the Act of 1989 as the offence of rape was committed with a dead body. For convicting an offence under the aforementioned sections, the victim should be alive,” it added.
The court was hearing a plea filed by two men accused in a case involving kidnapping, rape and murder of a minor, who was sexually assaulted even after her death, according to Bar and Bench.
Nagesh and the other accused, Nitin Yadav, had been convicted for different offences under the IPC and the POCSO Act.
Yadav was found guilty of rape, kidnapping and murder and was handed life imprisonment. Nagesh, his aide, was convicted under Section 201 (causing disappearance of evidence of an offence, or giving false information to screen offender) and 34 (acts done by several persons in furtherance of common intention) and was sentenced to seven years of imprisonment.
In the same case, Nagesh’s fate was challenged based on the ground that the accused had indulged in necrophilia and yet the trial court acquitted him of rape charges under the IPC and the POCSO Act.
The prosecution contended that although Indian law did not classify sexual intercourse with a body as “rape” under Section 376 of the IPC, Article 21 of the Constitution reserves the right to die with dignity, which also pertains to the treatment of the person’s body after death.
The bench then held that the prosecution had proved beyond doubt that the two accused were guilty and upheld their respective convictions and sentences, Bar and Bench reported.
“The trial court has erred in law by acknowledging the fundamental truth that necrophilia constitutes a flagrant infringement upon the rights of the deceased, who are entitled to a dignified funeral,” the court said before dismissing the plea.
