By Dr Pallavi Gupta and Dr NK Bahl
In June 25, 2015, a 21-year-old woman in Tumakuru district of Karnataka went to attend her computer class at 10:30 am. But she did not return home. Her brother, who was working at a dairy, heard some people there mentioning that someone had murdered a girl by slitting her neck. When he, along with his uncle, reached the site, he found to his shock that the victim was his sister. The miscreants had thrown her clothes and bag in the bushes and raped her. In order to hide this crime, they murdered her with a weapon. The incident happened between 3 pm to 5 pm.
An FIR was registered against unknown persons. The accused was arrested seven days after the incident. After investigation, a charge sheet was filed by the police under Section 376/302 of the IPC. There were no eyewitnesses. Bloodstained clothes and a towel with the B+ blood group were recovered from the residence of the accused. The blood group of the victim was also B+. There were six injuries on the body of the accused and 16 on the victim. The accused was convicted under Sections 302 and 376 of the IPC.
But what made this story intriguing was the question whether it was murder first and then rape, or the other way around. The rape of a dead body is called necrophilia and is derived from the Greek word nekros which means dead body and philos which means attraction or love. It involves attraction towards a dead body. A necrophilic is a person who is sexually excited by or attracted to dead bodies. According to Collins Dictionary, necrophilia means sexual intercourse with a dead body or the desire to do it.
The offence of necrophilia is still a grey area under Indian law, but the Karnataka High Court on May 30, 2023, clarified some of the ambiguities by observing that Sections 375 defining rape/sexual offences and 377 defining unnatural offences will not be imposed to cases of necrophilia. Thus, the accused was acquitted of charges of rape. A close reading of both Sections makes it clear that a dead body cannot be called a human being or a person as defined under Section 11 of the IPC, which says that the word “person” includes any Company or Association or body of persons, whether incorporated or not.
However, the accused was held guilty of murder. Justices B Veerappa and Venkatesh Naik directed the central government to amend Section 377 within six months so as to include rape of corpses and carcasses to protect the dignity of the deceased.
The global scenario on necrophilia reveals various sections in different countries that prohibit this offence. In the UK, it is Section 70 of the Sexual Offences Act, 2003; in Canada, it is Section 182 of the Criminal Code, 1985; in New Zealand, it is Section 150 of Crimes Act, 1961, and in South Africa, Section 14 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007.
However, in India there is no law which can address the barbarous act of necrophilia. In the Karnataka High Court, it was argued on behalf of the accused that the offence of rape cannot be made out as it was committed after the murder of the woman and there was no specific provision against necrophilia in the IPC.
But can necrophilia be checked? If we cannot address this problem, it will be tantamount to saying that women are not safe even in the grave. One safeguard is provided in Section 297 IPC which is often applied to grave diggers to protect the dignity of corpses. But what is important here is the intention. This Section talks about the intention of wounding the feelings of any person. But this again is a very complicated issue as considering the feelings of a person who is no longer living poses questions. Moreover, this provision is limited to religious places and doesn’t apply to other spaces like open, abandoned fields, forest lands, etc., where offences like necrophilia are commonly committed. Most of them are committed in mortuaries.
It is also important to note that Section 297 does not address sexual intercourse, sexual offences or any behaviour that is sexual in nature. Section 377 defining unnatural offences states that “whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten year and shall also be liable to fine”. The phrase “against the order of nature” is not defined and does not clearly say whether it pertains to a living or a dead person. The Section refers to “carnal intercourse against order of nature with any man, woman or animal”. But Section 10 of the IPC defines a man and woman as living human beings of any age. So, Section 377 cannot be applied to cases of necrophilia.
Similarly, for invoking rape laws, the limitation is that they apply to living persons and not to dead ones. Moreover, the consent of the female or an act against her will has no meaning once she is dead.
Lacuna in the IPC suggests that necrophilia is not squarely covered in any of the crimes defined by it. This crime jeopardises a person’s human rights because dignity in death is equally important. Article 21 of the Constitution offers citizens the fundamental right to live with human dignity. The Supreme Court in Parmanand Katara vs Union of India (1989) said that Article 21 enshrines the rights to life, freedom and dignity for both living people and dead ones. Again in Ashray Adhikar Abhiyan vs Union of India (2002), the apex court recognised the right of homeless people to have a decent burial in accordance with their religious beliefs. Thus, right to dignity is also expanded to a dead person.
Article 21 offers dignity, fair treatment and respect to citizens and these also extend to their mortal remains because it is a bodily right. Even after they have passed away, their body is a receptacle of that right. So in that sense, necrophilia is violating their dignity and is a violation of their fundamental right.
Another aspect of this case is that there were no eyewitnesses to the crime. Even the complainant who lodged an FIR at the jurisdictional police station reached the spot of the crime much later, by which time the victim had breathed her last. So, it is quite likely that the complainant guessed that she was raped first and then murdered to keep her quiet.
The District and Sessions judge, while convicting the accused under Sections 376 and 302 of the IPC, found that she was murdered first and then raped. The High Court also took a similar view. The matter is likely to reach the Supreme Court.
Be that as it may, necrophilia, which is a barbarous and heinous act, needs to be brought into the framework of criminal law. Section 375 IPC should be suitably amended so as to include the dead body of women. Alternatively, Section 377 IPC should be amended to include dead bodies of woman, man and animals. CCTV cameras should be installed in all mortuaries of hospitals. Maintenance of hygiene in mortuaries, confidentiality of information relating to the deceased, privacy of postmortem houses and management of dead bodies are equally important issues so that the dignity of the dead is preserved.
—Dr Pallavi Gupta is the Head of Department, JEMTEC School of Law, Greater Noida; and Dr NK Bahl is former District & Sessions judge, UP, and Professor at JEMTEC School of Law