Sex with dead body not rape, says Chhattisgarh HC

Though 'raping a dead body' is a 'horrendous' offence, it does not constitute rape as per the law, the court said.

While hearing a case of necrophilia, the Chhattisgarh High Court recently observed that engaging in sexual intercourse with a dead body does not amount to rape, as per criminal laws in India.

Hearing a plea filed by two men in a case involving the kidnapping, rape, and murder of a minor, a bench of Chief Justice Ramesh Sinha and Justice Bibhu Dutta Guru observed that even though "raping a dead body" is a "horrendous" offence, it does not constitute rape as per the relevant sections of the Indian Penal Code (IPC) and the Prevention of Children from Sexual Offences (POCSO) Act.

"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 bench said during a recent hearing, Bar and Bench reported.

"...For convicting an offence under the aforementioned Sections, the victim should be alive," the court further stated.

The Chhattisgarh HC's observations came during a hearing that saw the court uphold the acquittal of one of the accused on charges of rape for engaging in sexual intercourse with the minor's dead body.

In the case in question, the two men—Nitin Yadav and Neelkanth Nagesh—were convicted by a trial court for various offences under different sections of the IPC and the POCSO Act.

While Yadav was found guilty of kidnapping, rape, and murder, and sentenced to life imprisonment, Nagesh was convicted for disappearance of evidence and under Section 34 of the IPC, which deals with committing a crime in pursuit of a common intention, and sentenced to seven years in prison.

However, the prosecution argued that Nagesh, who engaged in sexual intercourse with the minor's body after their death, should also be held guilty of rape as Article 21 of the Constitution guarantees a person the right to die with dignity.

This contention, however, was dismissed by the trial court, which acquitted Nagesh of rape charges.

When the same matter came to the High Court, the bench observed, "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."

However, the HC disagreed with the prosecution's objection and ruled that as per law, Nagesh cannot be held guilty of 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 HC bench was quoted as saying by Bar and Bench, as it upheld the trial court's acquittal order.