INTRODUCTION
The Karnataka High Court has recently highlighted a very delicate yet important issue for India: the criminalization of Necrophilia. In a unanimous decision given by the division bench of B. Veerappa and Venkatesh Nair, exigency regarding the criminalization of Necrophilia in India was brought to light through the case of Rangaraju v. State of Karnataka[1]. Therein, the Karnataka High Court, as an appellate court, extended support to the decision of the Session court in accepting the accused’s crime u/s 302, IPC[2] but couldn’t aptly understand the application of Section 376 IPC[3] or any other on Necrophilia. They rightly noted that no provision under any law of India explicitly talks about Necrophilia and its subsequent liability.
Necrophilia is a term used to define ‘attraction towards dead bodies.’ It may envisage committing sexual acts with a corpse to attain sexual pleasure. It is considered a part of psychosexual behaviour under the Diagnostic and Statistical Manual of Mental Disorders 4 (DSM) within the category of ‘paraphilias.’[4] Paraphilia is a disorder with unusual sexual behaviours and feelings for objects, people, or others as its nucleus. The legal status of Necrophilia in India is unanswered and needs due attention.
BACKGROUND
In an appalling incident in 2015, a woman named Rathnamma was found dead with her piece of clothing lying around by her brother. After that, a complaint was registered, and the investigation was done. A charge sheet was concluded with much circumstantial evidence and the voluntary statements of the accused. In light of the same, the learned Magistrate of the Session court could make out offences u/s 302 and 376 IPC against the accused. Thereafter, an appeal was made to the Karnataka High Court, challenging the order of the inferior court. Challenging the same, the Appellant pleaded that there is an absence of any witness; hence, the last-seen theory doesn’t apply here.
Moreover, no correlation between the convicted actions of the accused and the motive could be made out. It was contended that the voluntary statements provided by the accused shouldn’t be given much weight solely. The learned counsel for the Appellant concluded that crime cannot be made out u/s 376 IPC since no direct mention of a ‘dead body’ can be seen.
The learned State Public Prosecutor (SPP) highlighted the importance of circumstantial evidence and the interlink between the events. Subsequent medical reports of the accused were submitted, which could not be justified by the Appellant. It was also told that u/s 376, the term’ sexual offences’ might envisage rape on a dead body. It was submitted that under the seven descriptions of crime u/s 375 IPC[5], the seventh is ‘when she is unable to communicate consent,’ which may apply to dead bodies; hence, it would amount to rape.
Furthermore, Amicus curia was appointed to assist the court in analyzing the proposition of Necrophilia in India. Abrupt threat on Article 21[6] of the Constitution of India, the Right to live and die with dignity[7] is in attendance if Necrophilia is committed. About the same, section 297[8] IPC was bought up as the closest penalty for Necrophilia in India as it envisages “commits any trespass in any place of worship or on any place of sculpture, or any place set apart from the performance of funeral rites or as a depository for the remains of the dead, or offers any indignity to any human corpse, or causes disturbance to any persons assembled for the performance of funeral ceremonies” as a crime. Answering the confusion regarding the terms ‘man’ and ‘woman’ u/s 375 IPC, it would only include a living person in consonance with Section 10 of IPC[9], not a dead body. Section 10 envisaging the words ‘of any age’ debars its application to dead bodies.
WHAT DID THE COURT HOLD?
Analyzing all the circumstantial evidence and the submissions of the learned counsel for the Appellant, SPP, and the Amicus curiae, the Karnataka High Court held that the accused is liable u/s 302 IPC for murder. In the absence of the last seen theory, reliance on the five golden principles constituting the Panchsheel doctrine was made.[10] This doctrine requires circumstantial evidence to prove beyond reasonable doubt the guilt of the accused and establish only one palpable hypothesis against the accused. If any other form of hypothesis is available, which may include the chances of any other perpetrator being a part of the crime, this doctrine would nullify the establishment of guilt of the accused. This doctrine, in the absence of witnesses, wishes to create a sound system of law and justice wherein a full-proof crime has to be proven to prevent any misuse or mistake of law. The court held that the learned counsel for the Appellant left some central questions unanswered including any sound justification for the injuries present on the accused body and for a piece of primary evidence found at the accused’s home i.e., a cloth with the victim’s blood stains. Moreover, SPP successfully built a full-proof chain of events with much-supporting shreds of evidence; hence, the accused is liable u/s 302 IPC. Concerning section 376 IPC, the court could not make out any offence. According to the Hon’ble Court, the provisions Section 375 & 376 IPC wouldn’t apply to dead bodies as dead bodies do not come under a human’s or person’s ambit.
“Rape must be accomplished with a person, not a dead body. It must be accomplished against a person’s will. A dead body cannot consent to or protest a rape, nor can it be in fear of immediate and unlawful bodily injury.”[11]
Some light was also shed upon Section 297 IPC, but the intention of the section, which must include a religious angle, ruled out its application to the case. The deceased’s rights were discussed in light of Sections 404,[12] 499,[13] and 503 IPC[14]. These sections talk about misappropriation of property, defamation, and criminal intimidation, respectively. Keeping in mind everything stated above, the accused was convicted for imprisonment for life for the offence punishable under Section 302 of IPC with a fine of Rs.50,000/- with a default clause. No conclusive decision in regard to the rape of the victim could be made out due to the preliminary absence of any legal instrument dealing with Necrophilia.
EXTENDED RECOMMENDATIONS
Taking into account the seriousness of the crime committed yet the presence of vagueness about its legal status, several crucial recommendations were given by the court. The Court rightly upheld the spirit of ‘Separation of powers’ and deemed fit to advise the Government as the rightful authority to ascribe appropriate legality to Necrophilia. The Central Government was suggested to understand the need of the hour and inculcate the terms ‘dead body’ and ‘animals’ within the rape provisions. Or it may amend the Indian Penal Code to separately but stringently include ‘Necrophilia’ as a crime head. The state governments were also rightly advised to regulate such offences at the ground level by overviewing the functioning of dead bodies, especially women, at the mortuary and providing a structural disposition plan. A comprehensive ground-level plan shall include the installation and supervision of cameras at the mortuary, specific time allocation for the disposition of bodies and placement of an organized system for the quality functioning and crime prevention.
CONCLUSION
For many years, much scope to debate and discussion regarding the Criminalization of Necrophilia has been given, but its practical impact assessment report stands at zero. The reason is; the absence of any strict legislative action by the legislation makers. Lawmakers should understand this as a part of their obligation and must fulfil it to prevent similar future mishaps. The notorious Nithari Case[15] of 2006 cannot be unremembered. It deserves due attention and correction. For the same, the legislature should coordinate with the Judiciary and bring in either adjoined or separate specific provisions for Necrophilia. Due attention to provisions of other countries criminalizing Necrophilia, like Canada, the UK, South Africa, etc., can also be inclined to a well-thought legislative action.
Author(s) Name: Disha Bhalla (RMLNLU, Lucknow)
References:
[1] Rangaraju v. State of Karnataka, SCC OnLine Kar 23.
[2] Indian Penal Code, 1860,§ 302, No. 45, Acts of Parliament, 1860 (India).
[3] Indian Penal Code, 1860,§ 376, No. 45, Acts of Parliament, 1860 (India).
[4] McManus, M. A., Hargreaves, P., Rainbow, L., & Alison, L. J., Paraphilias: definition, diagnosis and treatment, 5 Nlm 1, 1 (2013).
[5] Indian Penal Code, 1860,§ 375, No. 45, Acts of Parliament, 1860 (India).
[6] India Const. art. 21.
[7] Parmanand Katara v. Union of India & Ors, 1989 AIR 2039.
[8] Indian Penal Code, 1860,§ 297 , No. 45, Acts of Parliament, 1860 (India).
[9] Indian Penal Code, 1860,§ 10, No. 45, Acts of Parliament, 1860 (India).
[10] Sharad Birdichand Sarda v. State of Maharashtra, 1984 AIR 1622.
[11] Id. at 1.
[12] Indian Penal Code, 1860,§ 404, No. 45, Acts of Parliament, 1860 (India).
[13] Indian Penal Code, 1860,§ 499, No. 45, Acts of Parliament, 1860 (India).
[14] Indian Penal Code, 1860,§ 503, No. 45, Acts of Parliament, 1860 (India).
[15] Surendra Koli & Anr. v. State of Uttar Pradesh, 2011 AIR SC 970.
