In an important judgement, the Karnataka High Court has asked the Union government to amend provisions of the Indian Penal Code or introduce a separate provision within six months for dealing with sexual offences against dead women as necrophilia or sadism, in order to maintain the right to dignity of the deceased persons.
A bench of Justices B Veerappa and Venkatesh Naik T passed the direction while setting aside the conviction of a man, Rangaraju under IPC Section 376 for having sexual intercourse with the body of a woman he had murdered.
The bench, however, confirmed the conviction and sentence of life imprisonment with fine imposed upon him for murder under IPC Section 302.
“It is high time the central government, in order to maintain right to dignity of the dead person/woman amends the provisions of Section 377 of IPC to include dead body of any man, woman or animal or to introduce a separate provision to term an offence against a dead woman as necrophilia or sadism like in the United Kingdom, Canada, New Zealand and South Africa to ensure dignity of the dead person including the woman,” the bench said.
The court noted that right to life included the right of dead body as contemplated under Article 21 of the Constitution.
"The dignity of dead body of a human being must be maintained and respected," it said.
The prosecution had contented that the accused, a resident of Golagenahalli of Sira taluk in Tumakuru district, had first murdered the victim and then had sexual intercourse with the body.
The trial court confirmed the conviction for both offences. The division bench, however, partly allowed the appeal filed by the accused by holding that rape on the dead body will not count as offence punishable under IPC Section 376.
"It is the specific case of prosecution that, accused, first murdered the victim and then had sexual intercourse with dead body. Thereby, it cannot be held as sexual offences or unnatural offence as defined under Sections 375 and 377 of the Indian Penal Code," the bench said.
"Thereby, it cannot be termed as rape punishable under Section 376 of the Indian Penal Code. Utmost it can be considered as sadism, necrophilia and there is no offence made out to punish under Section 376 of the Indian Penal Code," the bench added.
The bench noted that in India, no specific legislation has been enacted, including under the provisions of IPC, to uphold the dignity and protect the rights of the dead body of a woman.
The court observed that though it is an unnatural offence under IPC Section 377, the provision does not mention dead body.
“Unfortunately, the provision does not include the term ‘dead body’. Thereby, crimes against women’s dead bodies are happening, including in hospital mortuaries. There is no offence in the IPC to punish such persons,” the bench said.
Issuing a slew of directions, the court told the state government to install CCTV cameras in all hospital mortuaries within six months. The bench said the state shall maintain hygiene, confidentiality of clinical records, privacy and staff sensitisation at mortuaries.