In a controversial ruling, the Chhattisgarh High Court has observed that engaging in sexual acts with a dead body, while undeniably “horrendous,” does not constitute rape under Indian law. The court made this observation while hearing an appeal in a case involving the kidnapping, rape, and murder of a minor.
The division bench of Chief Justice Ramesh Sinha and Justice Bibhu Dutta Guru noted that the legal definition of rape under the Indian Penal Code (IPC) and the Protection of Children from Sexual Offences (POCSO) Act necessitates the victim being alive at the time of the offense.
“There is no doubt that the offence committed by the accused-Neelkanth @ Neelu Nagesh i.e. raping a dead body is one of the most horrendous crimes one can think of but the fact of the matter is that as on 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,” the court stated.
The observations came during a hearing where the court upheld the trial court’s acquittal of one of the accused, Neelkanth Nagesh, on charges of rape. However, Nagesh was convicted for other offenses, including the disappearance of evidence and criminal acts in furtherance of common intention under Section 34 of the IPC. He was sentenced to seven years in prison.
The case involved two men, Nitin Yadav and Nagesh. Yadav was convicted of kidnapping, rape, and murder and received a life sentence. The prosecution argued that Nagesh, who engaged in sexual acts with the minor’s dead body, should also be convicted of rape, citing Article 21 of the Constitution, which guarantees a person’s right to die with dignity. This argument, however, was dismissed by both the trial court and the High Court.
“The learned 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 prosecution contended. However, the High Court upheld the trial court’s finding, clarifying that the legal framework does not categorize necrophilia as rape.
“There can be no disagreement on the issue that dignity and fair treatment is not only available to a living man but also to his dead body and every dead body is entitled for a respectful treatment but the law as on date has to be applied to the facts of the case and none of the offences as prayed by the learned counsel for the objector can be imposed upon the appellant-Neelkanth @ Neelu Nagesh,” the bench observed.
The judgment underscores a significant gap in India’s criminal laws concerning acts of necrophilia. While the court expressed its disapproval of such acts, it maintained that the current legal provisions do not classify the act of sexually assaulting a deceased person as rape.
The ruling has sparked public debate on the need to address legal lacunae in dealing with cases of necrophilia. Critics have pointed out the ethical and moral implications of such acts and the necessity of legislative amendments to ensure justice for victims, even posthumously.