By – Maitreyee Mishra
INTRODUCTION
The ‘Nithari’ case of 2006, involved Moninder Singh Pandher and his domestic servant, Surinder Koli, in a strange kind of crime: a planned series of murders and rapes with each victim, following the discovery of multiple skeletons near Pandher’s residence. A case was filed against Koli, under Sections 302 (punishment for murder), 376 (punishment for rape), 201 (causing disappearance of evidence of offence, or giving false information to screen offender), and several other provisions of Indian Penal Code 1860. Further, Koli admitted to kidnapping, raping, murdering, and defiling the bodies of women and girls after they died.
All of these strangely violent and pervert acts are classified under the umbrella term “necrophilia”[1], which, further, is a kind of “paraphilia.[2] Necrophilia is a rare sexual attraction to corpses, a kind of psychological disorder known since ancient times.[3]
Psychological disorders become a social threat when perverted acts lead to serious crimes. They can no longer be seen as problems subjected to rehabilitation processes for cure, rarest of the rare crimes arise out of them, and the State has to step in.
PSYCHOLOGICAL BASIS OF NECROPHILIA
According to Dr. Anil Aggarwal, necrophiles have a sexual gratification for the dead, however it extends to more perverse acts than merely unnatural sexual acts.[4] It is accompanied by other disturbing behaviours such as sadism, cannibalism, necrophagia (feeding on the dead), vampirism (gratification for the blood of dead humans), necropedophilia (sexual attraction to dead children), and necrozoophilia (sexual attraction to dead animals).
ANALYSIS OF 2023 JUDGEMENT
The rare offence of necrophilia gained attention once again in 2023 when Karnataka High Court overturned rape charges but sustained murder charges against Rangaraju[5], accussed of the brutal murder and further sexual assault of a woman in Badavanahalli, Karnataka.
The Rangaraju Judgment is notably distinct from other rulings involving sexual assaults on corpses. In this case, the judiciary highlighted a critical gap in the criminal justice system. The court pointed out that without specific laws to cover such heinous acts, it becomes difficult to ensure justice for these particularly grotesque offences.
The Sessions Judge found the accused guilty of murder and rape.[6] The accused was sentenced to life imprisonment for murder, along with a fine of ₹50,000, or two years of simple imprisonment as an alternative. For the rape conviction, he was given ten years of rigorous imprisonment and a fine of ₹25,000, or one year of simple imprisonment as an alternative.[7]
The convict, in his appeal in the Karnataka High Court argued that the act was simply “necrophilia” and that no provision in the IPC punished such an offence.[8] The court was to decide upon the with issue: “Does sexual intercourse with the dead body of a woman amount to rape under Section 376 of the IPC?” The court verdict was in the negative, stating that “A close reading of Sections 375 and 377 of the Penal Code, 1860 clarifies that a dead body cannot be considered a human or person. Thus, these sections do not apply, and no offence is committed punishable under Section 376 of the IPC.”[9]
The court also referred to the definition of death under Section 46 of the IPC: “The word ‘death’ denotes the death of a human being, unless otherwise indicated by the context.”[10] Accordingly, for an act to be considered rape, it must be committed against a human being, and not a dead body.. Since a corpse cannot consent, object, or experience fear of immediate injury, sexual intercourse with a dead body constitutes necrophilia, not rape.
In the judgement for accused’s appeal against the verdict by Sessions Judge, the High Court ruled that “sexual assault on the dead body of a woman does not qualify as rape under Section 376 of the Indian Penal Code. Consequently, the court acquitted the man who had sexually assaulted a 21-year-old woman after killing her..
The court recommended that the Central Government amend Section 377 of the IPC to include the term ‘dead body’ to ensure the protection of the dignity and rights of the deceased. It also directed the state government to install CCTV cameras in all mortuaries of government and private hospitals to prevent such crimes.
EXISTING LEGAL LACUNAS
The Indian judiciary acknowledges that the legal system must protect individuals even after death. In Parmanand Katara[11], The Supreme Court ruled that the right to dignity under Article 21 applies not only to the living but also to the deceased, affirming that corpses must be treated with the same respect as living individuals. In Ashray Adhikar Abhiyan v. Union of India[12], the Supreme Court stressed the need to respect the religious beliefs of homeless individuals, especially during their cremation rituals. But nowhere one sees the slightest stances of a legal remedy when the dead are violated sexually.
Section 297 of IPC[13] (the Indian Penal law before BNS, 2023) provided for punishment for the offence of desecrating the dead. Undoubtedly, it addressed the trespassing of burial sites and desecration of graves but failed to specifically target necrophilia for it focussed on safeguarding burial grounds and the sanctity of dead’s resting place, rather than criminalising sadistic acts against corpses.[14]
Section 377[15], which was partially stuck down in Navtej Singh Johar vs UOI[16], provided for punishing unnatural sexual acts between two persons. Herein, the status of “person” hinders administration of justice. As a dead body is not a person, a dead body’s legal status further complicates the entire concept of necrophilia. The requisite of Section 377 was that carnal intercourse should be involuntary, but since a corpse cannot provide consent to an act, meaning the element of consent is inherently absent in this situation. Which further complicates the applicability of Section 377.
Despite this, without explicit and stringent laws targeting necrophilia the justice system lags in penalising sexual crimes against the dead. The Karnataka High Court virtually failed in front of this legal lacuna. The statutory definition of rape under Section 375 of the Indian Penal Code (IPC) was inadequate for prosecuting the offender, as it applies only to acts involving living persons. The partially repealed Section 377, which previously dealt with unnatural offences, could not effectively cover necrophilia.
CONCLUSION
The act of necrophilia involves a morbid and unhealthy fixation on death and the dead. It suggests a deep-seated psychological disturbance in the mind of a person. This perverse sexual conduct cannot be dismissed as a disorder. It has serious implications, wherein the rights of the dead are violated. The Victorian-era Penal Code of India may have ignored this offence. It had no provisions that would have included the definition and penalisation of it.
However, even the new penal code of India, the Bharatiya Nyaya Sanhita Act, 2023, did a disservice by conveniently neglecting this offence. A golden opportunity to correct mistakes of the colonial era slipped off the fingers. The wakeup call rendered by the Karnataka HC must not be missed at any cost. This inevitable void leaves wide room for the continuation of the sexual abuse of the dead. This essay appeals for a separate provision to address this morally reprehensible and legally unacceptable perversion.
[1] Neelakshi Bhaskar, ‘Necrophilia Legal Perspective’, (2020) 2(2) IJLSI <https://ijlsi.com/22-necrophilia-legal-perspective/>
[2] Tyler T .Ochoa and Christine Jones, ‘Defiling the Dead: Necrophilia and the Law’, (1997), 18 Whittier L. Rev. <http://digitalcommons.law.scu.edu/facpubs/89>
[3] Jonathan P. Rosman, Phillip J. Resnick,‘Sexual Attraction to Corpses: A Psychiatric Review of Necrophilia’, (1989) 17(2) Bull Am Acad Psychiatry Law <https://jaapl.org/content/jaapl/17/2/153.full.pdf>
[4] Anil Aggrawal, Necrophilia: Forensic and Medico-Legal Aspects (CRC Press 2011) 1-2
[5] Rangaraju v. State of Karnataka, 2023 SCC OnLine Kar 23.
[6] Ibid
[7] Ibid
[8] Ibid
[9] Animesh Jha and Himanshu Ranjan,‘Case Comment: Rangaraju @Vajapeyi vs State of Karnataka’ (2023) 6(5) IJLMH <https://ijlmh.com/paper/case-comment-rangaraju-vajapeyi-vs-state-of-karnataka/>
[10] Jay Gajbhiye, ‘Questioning The Unpredictability: A Legal Insight Into Necrophilia’, (Legal Services India) <https://www.legalserviceindia.com/legal/article-4980-questioning-the-unpredictability-a-legal-insight-into-necrophilia.html>
[11] Pt. Parmanand Katara vs Union Of India & Ors, 1989 AIR 2039.
[12] Ashray Adhikar Abhiyan vs Union Of India & Ors, 2002 AIR SCW 133.
[13] Indian Penal Code 1860, s 297
[14] Abhishek Sanjay and Tanya Sara George, ‘An analysis into the laws governing Necrophilia in India in view of the decision in Rangaraju v. State of Karnataka’ (Vidhi Centre for Legal Policy, 13 April 2024
[15] Indian Penal Code 1860, s 377
[16] Navtej Singh Johar vs Union Of India, AIR 2018 SUPREME COURT 4321.