Raipur: In a recent judgment, the Chhattisgarh High Court stated that engaging in sexual intercourse with a dead body does not amount to rape under criminal laws of India. The court’s observation was made while hearing a case involving the kidnapping, rape, and murder of a minor. The court’s decision was based on the fact that the relevant sections of the Indian Penal Code (IPC) and the Prevention of Children from Sexual Offences (POCSO) Act only apply when the victim is alive. 

The bench, comprising Chief Justice Ramesh Sinha and Justice Bibhu Dutta Guru, noted that while necrophilia is a “horrendous” offense, it does not constitute rape under current laws.

The case involved two men, Nitin Yadav and Neelkanth Nagesh, who were convicted by a trial court for various offenses. While Yadav was found guilty of kidnapping, rape, and murder, and sentenced to life imprisonment, Nagesh was convicted for disappearance of evidence and sentenced to seven years in prison. However, the prosecution argued that Nagesh should also be held guilty of rape for engaging in sexual intercourse with the minor’s dead body.

“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.

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 is 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.

The court ultimately upheld the acquittal of Nagesh on rape charges, citing the lack of legal provisions to prosecute necrophilia as rape.