The Chhattisgarh High Court in a recent order observed that engaging in sexual intercourse with a dead body does not amount to rape.
The court made the observation while hearing a case of necrophilia where two men filed a plea in a case involving kidnapping, rape, and murder of a minor, Bar and Bench reported.
A bench of Chief Justice Ramesh Sinha and Justice Bibhu Dutta Guru noted that though “raping a dead body” is one of the most “horrendous” offence once can think of, but it does not constitute rape as per the sections of the Indian Penal Code (IPC) and 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.
The court said that for convicting an offence under the aforementioned sections, the victim should be alive.
The order from the Chhattisgarh High Court came during a hearing where the court upheld the acquittal of one of the accused, Neelu Nagesh, on charges of rape for engaging in sexual intercourse with the minor’s dead body.
In the concerned case, 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.
Yadav was found guilty of kidnapping, rape, and murder, and sentenced to life imprisonment. On the other hand, Nagesh, his aide, was convicted for the disappearance of evidence and under Section 34 of the IPC.
However, the 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.
The court, however, dismissed the contention, which acquitted Nagesh of rape charges.
“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,” the HC bench ruled.
Nagesh’s acquittal was challenged based on the ground that the accused had indulged in necrophilia and yet the trial court acquitted him of rape charges.
