Amend Section 377 IPC To Punish Sexual Intercourse With Dead Bodies : Karnataka High Court
Sanjeev Sirohi, Advocate
A-82, Defence Enclave, Sardhana Road, Kankerkhera, Meerut, Uttar Pradesh
Email Id : email@example.com
Date : 03/06/2023
Location : S/o Col. BPS Sirohi, A-82, Defence Enclave, Sardhana Road, Kankerkhera, Meerut-250001, Uttar Pradesh
Amend Section 377 IPC To Punish Sexual Intercourse With Dead Bodies : Karnataka High CourtLaw Finder Doc Id #2235386 While taking the most far reaching significant, path breaking, progressive and pragmatic initiative in the right direction, the Karnataka High Court has in a most learned, laudable, landmark and latest judgment titled Rangaraju @ Vajapeyi And State of Karnataka in Criminal Appeal No. 1610/2017 that was pronounced as recently as on May 30, 2023 has asked the Centre in no uncertain terms to amend the relevant provisions of the Indian Penal Code (IPC) or bring in new ones criminalizing and providing for punishment for carnal intercourse with corpses. We must note that a Division Bench comprising of Hon'ble Mr Justice B Veerappa and Hon'ble Mr Justice Venkatesh Naik T observed that, "It is high time for the Central Government in order to maintain right to dignity of the dead person/woman to amend the provisions of Section 377 of IPC should include dead body of any men, woman or animal or to introduce a separate provision as offence against dead woman as necrophilia or sadism as has been done in United Kingdom, Canada, New Zealand and South Africa, to ensure dignity of the dead person including woman." Further, it has suggested that the amended or the new provision should attract punishment with imprisonment of life or with imprisonment of either description for a term which may extend to ten years and also shall be liable to fine. The recommendations were made after Court observed that "most of the government and private hospitals where the dead bodies, especially young women kept in mortuary, the attendant who was appointed to guard, have sexual intercourse on the dead body." However unfortunately, it said, there is no specific legislation in India for protecting the rights and crime against dead bodies. At the very outset, this remarkable, robust, rational and recent judgment authored by Hon'ble Mr Justice B. Veerappa for a Division Bench comprising of himself and Hon'ble Mr Justice Venkatesh Naik T. sets the ball rolling by first and foremost putting forth in para 1 that, "The appellant/accused filed the present Criminal Appeal against the judgment of conviction dated 09.08.2017 and order of sentence dated 14.08.2017 passed in S.C.No.82/2015 on the file of the Principal District and Sessions Judge, Tumakuru, convicting the him for the offence punishable under Section 302 of the Indian Penal Code and sentencing to undergo rigorous imprisonment for life with fine of Rs.50,000/- in default, to undergo simple imprisonment for a period of two years, and convicting for the offence punishable under Section 376 of Indian Penal Code and sentencing to undergo rigorous imprisonment for a period of ten years with fine of Rs.25,000/-, in default, to undergo simple imprisonment for a period of one year." To put things in perspective, the Division Bench envisages in para 2 that, "It is the case of prosecution that, P.W.1-Nagesh, brother of victim-deceased Rathnamma, filed complaint-Ex.P.1 dated 25.06.2015, stating that, he is permanent resident of Javanahalli, Kasaba Hobli, Sira Taluk, Tumakuru District. Rangappa and Rangamma are his parents. He is the elder son in the family. His elder sister-Lalitha is married. His younger sister-Rathnamma/victim, aged 21 years, completed her Bachelor Degree in Arts from Badavanahalli Government College. She had joined computer classes in Badavanahalli. She used to return home from computer class at 3.30 pm. As usual, on 25.06.2015, Rathnamma went to computer class at 10.30 am. Till evening she did not return home. He was under the impression that she might have gone to her friends house. When he was working in the village Dairy, around 6.15 pm, people who came to Dairy were talking among themselves that some one has murdered a girl by slitting her neck in Doddahalla situated by the side of road running from Gulagenahalli to Javanahalli. He along with his uncle's sonPrasanna Kumar went to spot and saw that the girl who was murdered was none other than his sister and noticed that some miscreants had thrown the chutidar pant, underwear and veil worn by his sister-Rathnamma on the bush and had raped her. Under the fear that she may reveal the incident, they have murdered her by poking her neck with some weapon, and had thrown the school bag nearby, which she used to carry every day. The incident might have happened between 3.00 pm to 5.00 pm. Therefore, prayed to apprehend the accused and punish in accordance with law." As we see, the Division Bench observes in para 7 that, "The learned Sessions Judge, considering both oral and documentary evidence on record, recorded a finding that the prosecution proved beyond reasonable doubt that on 25.06.2015, at 3.00 pm, when the complainant's sister was returning home after attending computer class on the road leading from Borasandra to Mogadi, near Doddahalla, accused held her, closed her mouth and dragged her to a near by bush of Jali plants, cut her neck and murdered her and thereby committed an offence punishable under Section 302 of Indian Penal Code, and further that, after committing murder, accused committed rape on her and thereby committed an offence punishable under Section 376 of Indian Penal Code. Accordingly, learned Sessions Judge, by the impugned judgment of conviction and order of sentence, convicted the accused for the offence punishable under Section 302 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for life and to pay fine of Rs.50,000/- in default, to undergo simple imprisonment for a period of two years, and convicted him for the offence punishable under Section 376 of Indian Penal Code and sentenced him to undergo rigorous imprisonment for a period of ten years and to pay fine of Rs.25,000/-, in default, to undergo simple imprisonment for a period of one year. Hence, present appeal is filed by the appellant/accused." Do note, the Division Bench notes in para 45 that, "A careful reading of the Charge clearly depicts that accused firstly murdered Rathnamma by slitting her neck with M.O.14-blade, and thereafter, committed rape on her and thus committed offences punishable under Sections 302 and 376 of the Indian Penal Code." Be it noted, the Division Bench notes in para 49 that, "Dr. Modi, in his book "The Medical Jurisprudence and Toxicology" has defined Legal Status of Dead as under: "The personality of a human being may be said to commence existence on birth and cease to exist at death. The dead are no longer persons in the yes of law. Their legal personality comes to an end at their death and they are destitute of rights and liabilities. They have no rights because they have no interests. Yet, although all the rights of a human being perish with him, the law, without conferring rights upon the dead, does in some degree recognise and takes into account his desires and interests. There are three things in respect of which the anxieties of living men extend beyond the period of their deaths and which law takes notice of. Firstly, with respect to a person's body: Law deems that a living man is interested in the treatment to be awarded to his own dead body. Law secures his desire through criminal law which makes it an offence to violate the grave." Every dead body has a right to decent burial. Secondly, the reputation of the dead receives some degree of protection from criminal law in that it would be defamation to impute anything to a dead person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives. A libel upon a dead man will be punished by law. Thirdly, the most important matter in which the desires of dead man are allowed by law to regulate the actions of the living is that of testamentary succession. Many years after his death his wishes continue to regulate and determine the disposition and enjoyment of the property, which he owned while living." It deserves noting that the Division Bench notes in para 52 that, "Necrophilia- It is a morbid fascination with death and the dead and more particularly, an erotic attraction to corpses. It is a psychosexual disorder and DSM-IV classifies it among a group of disorders called `paraphilias' including pedophilia, exhibitionism and sexual masochism and names necrophilia as `not otherwise specified'. The Manual cautions that praphilias should be distinguished from the non- pathological use of sexual fantasies, behaviour, or objects as stimuli for sexual excitement in individuals with paraphilia. It may not necessarily be repetitive, but could be the result of rage, experimentation or lust rather than sexual necessity or habit, to Although necrophilia is primarily engaged in by males, occasionally there have been reported instances of female necrophilia. This is not a specific IPC offence categorised under sexual offences mentioned under the Code, but could be brought under Section 297 as causing "indignity to any human corpse" by trespass into a place set apart for performance of funeral rites or as a depository for the remains of the dead Specific IPC offence with Intention of wounding feelings of any person or of insulting any religion, if all the legal ingredients of intention are satisfied." Of course, the Division Bench observes in para 53 that, "In the present case, it is not the case of prosecution that the accused trespassed to a place set apart for the performance of funeral rites or as a depository for the remains of the dead, or offered any indignity to any human corpse, or caused disturbance to any person assembled for the performance of funeral ceremonies, with an intention to wound feelings of any person, or of insulting any religion of any person, or with the knowledge that the feelings of any person are likely to be wounded, or that the religion of any person is likely to be insulted thereby. But 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. 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." While dwelling on the law prevailing in different countries, the Division Bench states from para 54 to 57 that, "54. In United Kingdom, Section 70 of the Sexual Offences Act, 2003 of the UK makes it an offence for a person who intentionally sexually penetrates, knowingly or recklessly, any part of his body into any part of a dead person. It reads as follows: Section 70 Sexual penetration of a corpse (1) A person commits an offence if-(a) he intentionally performs an act of penetration with a part of his body or anything else, (b) what is penetrated is a part of the body of a dead person, (c) he knows that, or is reckless as to whether, that is what is penetrated, and (d) the penetration is sexual. (2) A person guilty of an offence under this section is liable (a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both; (b) on conviction on indictment, to imprisonment for a term not exceeding 2 years."
In Canada, Section 182 of the Criminal Code of Canada, 1985 makes Necrophilia punishable. It reads as follows: Dead body 182. Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than five years or is guilty of an offence punishable on summary conviction who (a) neglects, without lawful excuse, to perform any duty that is imposed on him by law or that he undertakes with reference to the burial of a dead human body or human remains, or (b) improperly or indecently interferes with or offers any indignity to a dead human body or human remains, The above provision appears to be similar though not identical to Sec. 297, IPC.
In New Zealand, Section 150 of the Crimes Act, 1961, serves imprisonment for two years to any person doing any act on the corpse, whether buried or unburied, to harm its dignity.
In South Africa, Section 14 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 prohibits Necrophilia."Quite forthrightly, the Division Bench maintains in para 59 that, "The dignity of dead body of a human being must be maintained and respected. Moreover, it extended the right to the homeless deceased person to have a decent cremation, according to the religious customs to which one belongs to. It is also established a corresponding duty on the State to ensure decent cremation is served to the person. Article 21 of the Constitution of India emphasized the Right of Life means a meaningful life and not merely animal existence. Right to dignity is also expanded to a dead person. The provisions of Indian Penal Code contemplates rights of a deceased person including right against the trespass of burial sites or places of funeral rights under Section 297 of IPC. Right against dishonest misappropriation and conversion of property as contemplated under Section 404 of IPC. Right against the defamation as contemplated under Section 499 of IPC and Right against criminal intimidation as contemplated under Section 503 of IPC." Most remarkably, the Division Bench discloses in para 61 that, "The National Human Rights Commission issued advisory dated 14.05.2021 for Upholding the Dignity and Protecting the Rights of the Dead as under:
Basic Principles for Upholding the Dignity and Protecting the Rights of the Dead
1. No discrimination in treatment of the body in any form- To ensure that the dead body is properly preserved and handled irrespective of religion, region, caste, gender, etc.
2. No physical exploitation- Any form of physical exploitation of the body of the dead violates the basic right of the deceased person.
3. Decent and timely burial/cremation- The deceased person has the right to a decent and timely burial/ cremation.
4. To receive justice, in case of death due to crime- The dead have the right to receive justice in cases where death occurs due to crime.
5. To carry out a legal will- The will, if any, left by the dead must be respected and honoured.
6. No defamation after death-The deceased person should not be defamed by any kind of statement or visible representation, made or published intending to harm his/her reputation.
7. No breach of privacy- The deceased person has the right to privacy, i.e., the right to control the dissemination of information about one's privacy."It cannot be glossed over that the Division Bench points out in para 62 that, "The law has not so far defined a person will include a dead person. It, however, has some rights which cannot be detached from it, even if the body is deluded of the life, is together forms a human being. The provisions of the Indian Succession Act, 1923, provides for execution of the Will of a person, after he has died. A person is also has a right to protect his dead body, to be mutilated, wasted or its organs to be taken out, except by the consent of the person, when he was alive or on the consent of his kith and kin or the State, if the body is unclaimed. The word `person' may not be construed narrowly serves to exclude dignity of dead body of the human being, who was the person, when alive, which is not claimed and which is required to be cremated or buried with the dignity in accordance with the religious beliefs of the person, if such beliefs can be found by establishing his identity. State is obliged in law to maintain sanitation to remove the body, which becomes dangerous, for the safety of other living beings for its adequate disposal. Unclaimed dead body has to be claimed by the State both for the purpose of investigation of the crime if it was committed on the human being who did not naturally died for scientific investigation or for research of medical education. The State is obliged in law both under its powers as welfare State, and to protect the rights of such person in its extended meaning under Article 21 of the Constitution of India for disposal of dead body for a decent and dignified cremation/burial in accordance with the religious beliefs that man kept or possessed." Quite commendably, the Division Bench notes in para 63 that, "It is our experience that everyday newspapers are covered with the reports of group of persons illegally confining the dead bodies on the road, or in front of the police stations holding up traffic for hours making demand of compensation or for better road safety. The society should not permit such disgrace to the dead body. The State through its agencies must take immediate possession of such dead bodies used for illegal means, for its decent and dignified cremation." Most commendably, the Division Bench points out in para 64 that, "It is brought to our notice that most of the government and private hospitals where the dead bodies, especially young woman kept in mortuary the attendant who appointed to guard, have sexual intercourse on the dead body. Thereby it is high time for the State Government to ensure such crime should not happen, thereby maintaining dignity of the dead body of the woman. Unfortunately in India no specific legislation enacted including under the provisions of Indian Penal Code for the purpose of upholding dignity and protecting rights and crime against the dead body of the woman. In the present case, as already stated supra, the charge is the accused first murdered the victim and had sexual intercourse with the dead body. Though it is an unnatural offence, as defined under Section 377 of IPC, which defined whoever voluntarily has carnal inter-course against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine." Most forthrightly, the Division Bench observes in para 65 that, "Unfortunately the said provision does not include the term 'dead body'. Thereby most of the crimes against woman on the dead body including hospital mortuaries happening and it can be considered as sadism or necrophilia and there is no offence in the IPC made out to punish such persons who committed sexual intercourse on the dead body of the woman. Therefore the provisions of Section 376 of IPC would not attract. The said material aspect has not been considered by the learned Sessions Judge, thereby erroneously convicted the accused under the provisions of Section 376 of IPC in the absence of any provision attracting the offence under the provisions of Indian Penal Code." Most laudably, the Division Bench enunciates in para 66 that, "It is the high time for the Central Government in order to maintain right to dignity of the dead person/woman to amend the provisions of Section 377 of IPC should include dead body of any men, woman or animal or to introduce a separate provision as offence against dead woman as necrophilia or sadism as has been done in United Kingdom, Canada, New Zealand and South Africa, to ensure dignity of the dead person including woman." As a corollary and far most significantly, the Division Bench expounds in para 67 that, "For the reasons stated above, the first point raised in the present criminal appeal is answered in negative holding that the accused has not made out any case to interfere with the impugned judgment of conviction, convicting the accused for imprisonment for life for the offence punishable under Section 302 of IPC with fine of Rs.50,000/- with default clause. Accordingly the second point is answered in negative holding that the rape on the dead body of woman will not attract the offence punishable under the provisions of Section 376 of IPC. RECOMMENDATIONS
i) It is high time for the Central Government to amend the provisions of Section 377 of IPC and should include dead body of men, woman or animal as contemplated under the said provision; Or The Central Government shall amend the new provision in the IPC with regard to sadism or necrophilia against the person whoever voluntarily has carnal intercourse against the natural including the dead body of the woman, punishable with imprisonment of life or with imprisonment of either description for a term which may extend to ten years and also shall be liable for fine.
ii) It is high time for the State Government to ensure installation of CCTV cameras in the mortuaries of all the government and private hospitals in order to prevent the offence against the dead body of the woman within 6 (six) months from the date of receipt of certified copy of this order.
iii) The State Government shall maintain following mortuary services:
a) Mortuary hygiene: Regular mopping and cleaning of mortuary should be undertaken so that dead body remains are preserved in a proper, clean environment, thereby maintaining its dignity.
b) Secured information: The facility should maintain confidentiality of clinical records and must have a mechanism for guarding information related to the deceased, especially for cases that are stigmatized and socially criticised, such as that of HIV and suicidal cases.
c) Maintaining privacy of premises: Post mortem room should not come under the direct line of sight of the general public/visitors. To ensure the same, provision of curtain, screen or buffer area may be made in a post mortem room.
d) Removing physical/ infrastructural barriers: The facility must have infrastructure for delivery of assured services, to meet the prescribed norms. All basic requirements must be available and maintained as per the Indian Public Health Standard Guidelines for District Hospitals for management of the dead bodies,
e) Sensitization of the staff: The mortuary administration may sensitize the staff from time to time to train them in handling of the dead body and deal with the attendants of the deceased with sensitivity."Finally and far most significantly, the Division Bench then concludes by holding in para 68 that, "In view of the above, we pass the following:
a) Criminal appeal filed by the accused is allowed in part.
b) The impugned judgment of conviction dated 09.08.2017 and order of sentence dated 14.08.2017 made in S.C.No.82/2015 on the file of the Principal District and Sessions Judge, Tumakuru, convicting the accused under the provisions of Section 302 of IPC with fine of Rs.50,000/- is hereby confirmed.
c) The impugned judgment of conviction and order of sentence convicting the accused for imprisonment for a period of 10 years with fine of Rs.25,000/- for the offence punishable under Section 376 of IPC is hereby set-aside.
d) The accused is hereby acquitted under the provisions of Section 376 of IPC for committing the rape on the victim-dead body as there is no provision in the IPC to punish him for the said offence.
e) The Central Government is hereby recommended to amend the provisions of the IPC as stated supra in order to protect the dignity of the body of the deceased in order to ensure to protect persons right of life includes right of his dead body as contemplated under Article 21 of the Constitution of India within a period of 6 (six) months from the date of receipt of certified copy of this order.
f) The Registrar General is directed to send a copy of this judgment to:
i) The Ministry of Home Affairs, Government of India, New Delhi;
ii) The Ministry of Law, Justice and Parliamentary Affairs, Government of India, New Delhi;
iii)The Chief Secretary, Government of Karnataka, Vidhana Soudha, Bengaluru.
iv) Principal Secretary, Health and Family Welfare Department, Government of Karnataka, Bengaluru.
g) The assistance rendered by Sri C.H. Hanumantharaya, learned counsel along with Ms. Abhinaya K, Sri K.V. Manoj, and Sri Nithin Ramesh, Amicus Curiae and Sri Kiran S. Javali, learned State Public Prosecutor-I along with Sri Vijaykumar Majage, learned Additional State Public Prosecutor, to arrive at this conclusion is appreciated and placed on record."No doubt, what the Karnataka High Court has held in this leading judgment is most commendable and Centre must implement at the earliest what the Karnataka High Court has recommended in this notable judgment to amend Section 377 IPC to punish sexual intercourse with dead bodies which is most condemnable and those who dare to indulge in it deserves to be punished most strictly. There has to be zero tolerance for such heinous crimes. For far too long this most condemnable and reprehensible crime has been going on unchecked, unaccountable and unpunished which must now end now and those who dare to indulge in it must be punished most strictly as the Karnataka High Court has suggested to Centre in this noteworthy judgment!
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