medical examination of rape victim

This article has been written by Tulika Rawat pursuing a Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution from LawSikho.

This article has been edited and published by Shashwat Kaushik.

Introduction 

India is notorious for its high crime rates, with rape being the fourth one on the list of the most common crimes in India. Traditionally, rape is defined as “sexual molestation, usually unlawful sexual intercourse, carried out by the perpetrator through the assertion of force (physical or emotional, or both) or by the threat of inflicting some kind of injury on a person, or sexual intercourse with a person who is incapable of giving legal consent (minor) or not in the position to give valid consent because of intoxication, unconsciousness, mental illness, mental deficiency, or deception.” However, this definition applies to only those victims who are alive; what about those who can’t speak for themselves—the deceased? Yes, you read it right; sexual offences are carried out with dead bodies as well. 

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In 2023, the Karnataka High Court gave a landmark ruling in a notable case of necrophilia that showed us a harsh reality. The court held that having sexual intercourse with the dead body of a woman can’t fall under the ambit of rape or unnatural offences under the Indian Penal Code,1860  (IPC), which has been now repealed by Bharatiya Nyaya Sanhita,2023(BNS). This rare paraphilia (deviant sexual behaviour) has occurred throughout history, but no strict legislative action has been taken against it in India. The new criminal law that came into force on July 1, 2024 has been proven to be a missed opportunity to address the crime of necrophilia. Despite multiple reminders given by the judiciary on the need for reformation of criminal law to address the heinous acts of necrophilia, the matter remains untouched in the newly enforced criminal law. 

 Through this article, I aim to give you an insight into the gruesome incidents of necrophilia that took place in India. By analysing landmark judgements and existing laws, we will detect the major gap in the legal system and the necessity for legal reforms. We will also take a brief look at the psychological motives behind such a crime. 

What is necrophilia

The word Necrophilia is derived from the combination of two Greek words: philios (attraction to or love for) and nekros (dead body or corpse). It is a form of paraphilia in which a person gets sexual arousal from dead bodies. To elucidate in simple language, a necrophile is a person who elicits sexual pleasure by having intercourse with a dead body, while necrophilia is the commission of the act of having intercourse with the dead body.  

A comprehensive study conducted by Jonathan P. Rosman and Philip J. on 122 cases of necrophiliac acts depicts the psychology behind such behaviour and fantasies. The study classified necrophilia into three categories:  

  • Necrophilia homicide- It is the gravest form of necrophilia, where the necrophiliac person gets compelled to cause the death of a living person to fulfil their sexual enticement.  
  • Regular necrophilia- Here the necrophiliac person doesn’t cause the homicide of a living person; rather, they seek the body of an already dead person to have sexual intercourse with it.  
  • Romantic Necrophilia- In this case, the necrophiliac person only feels sexual arousal towards their romantic interest; they can’t accept the death of their beloved partner or romantic interest and somehow take possession of their corpse to fulfil sexual desire and stay connected to them.   

Surprisingly, the study found that neither mental retardation, sadism, nor psychosis appear to be inherent in necrophilia. The most common motives that came forth were possession of a non-resisting or non-rejecting partner, fears of emotional abandonment, and a desire to reunite with a romantic partner. Poor self-esteem and a lack of confidence, which get worsened by rejection by a romantic partner, often trigger this paraphilia. Necrophiles mostly prefer jobs that require them to be in contact with corpses; despite having occupational access to corpses, some necrophiles commit homicide. 

Rising incidents in India

The incidence of sexual offences against corpses in India is rampantly increasing. Despite the presence of one or two cases reaching the door of courts every year, there are no specific laws in our legal system to criminalise and punish this paraphilia; necrophilia has not been defined under any legislation, and this brings much trouble for the judges to punish the offenders appropriately and protect the dignity of the dead person.

The Nithari case

A spine-chilling case of necrophilia accompanied by murder, cannibalism, and organ trafficking emerged in 2006, infamously known as “The Nithari Case.” This was the first case of paraphilia that caught the attention of the whole nation and many people got introduced to such emerging heinous crimes that seemed taboo. In this case, the accused, Moninder Singh Padher, and his servant, Surinder Koli, were arrested for several heinous crimes: causing the murder of various women and children, engaging in sexual intercourse with the dead bodies of the victims, consuming the body parts of the dead bodies, and organ trafficking. Several pornographic CDs and naked images of the victims were recovered from the accused’s house.  

The Palghar case

 At the time of the COVID-19 lockdown in 2020, a gut-wrenching case came forth from Palghar, Maharashtra, where a shopkeeper (Shiva Choudhary) killed a 32-year-old female customer during a heated argument over the price of goods in his shop. After murdering her by slitting her throat, the shopkeeper raped her body and then dumped it half a kilometre away from the shop.  

On being questioned, he confessed his crime of killing and raping the woman and also said that after being separated from his wife for more than one year, he felt compelled to kill her. He was immediately arrested and examined by a medical examiner for potential mental health issues.

The Jalandhar case

A recently reported case of necrophilia in December 2023 in Jalandhar, where an e-rickshaw driver in his early thirties was arrested for the allegation of the murder of a 22-year-old nurse, the accused admitted to having murdered the nurse by pressing her neck against the seat of e-rickshaw, then raped her lifeless body and returned to the crime scene three hours later to repeat the abominable act. He also confessed to preying on two other women prior to this incident. He claims to have conducted the crime in a drunken state.

The Karim Ganj Hospital Case

A nauseating incident of paedophilic necrophilia came forth in April 2024 from Assam. As per the reports, the deceased minor girl committed suicide by consuming poison. Following her death, the police and a magistrate went to examine the scene and recover the minor’s body, and then the body was sent to the civil hospital of Karim Ganj, where it was kept in a mortuary for a post-mortem. The turn of events became more tragic when the police discovered that the girl’s corpse was raped in the post-mortem room. During the investigation, the police identified the culprit, Manju Rabi Das, a sweeper in the hospital, who confessed to raping the minor girl’s deceased body. The investigation is still underway.

Legal rights of dead

The Indian Constitution, in Article 21, solemnly enshrines the fundamental right to life and personal liberty for all citizens. This right is not merely confined to the realm of living existence but extends beyond the physical boundaries of life itself.

In the landmark case of Parmanand Katara vs. Union of India, the Supreme Court of India interpreted Article 21 and elucidated that it encompasses the right to live life with dignity as an inalienable fundamental right. This right, the court held, does not cease upon the demise of an individual but persists even after death.

The Supreme Court further emphasised the significance of upholding and safeguarding the dignity of the dead in the case of Ashray Adhikhar Abhiyan vs. Union of India. The court recognised the importance of respecting the religious beliefs and practices of the homeless individuals during their funeral rites. It highlighted that the dignity of the dead must be accorded the same level of importance as the dignity of the living.

Similarly, in the case of Ramji Singh and Mujeeb Bhai vs. State of U.P. and Ors., the Allahabad High Court reiterated that Article 21 encompasses the right to treat deceased individuals with the same dignity and respect that they were entitled to during their lifetime. The court expressed its disapproval of unnecessary post-mortem examinations of dead bodies, emphasising that such practices could potentially violate the dignity of the deceased.

These judicial pronouncements underscore the commitment of the Indian judiciary to uphold and protect the right to dignity, both in life and in death. They serve as a reminder that the dignity of the human person, even after the cessation of life, must be respected and preserved.

  • Section 315 BNS states that any misappropriation done with malevolent intention to a dead man’s property is an offence.
  • Section 356 BNS deals with defamation, stipulating that any false and derogatory statement published against a dead person constitutes criminal defamation and is punishable.
  • Section 351 BNS states that intimidating an individual with threats of wounding the image or reputation of a dead person who is dear to him is a criminal offence. 

The above-mentioned sections protect various aspects of a deceased person’s dignity but none of them deal with cases of necrophilia. This depicts that the Indian legislature, to some extent, recognises the rights of a dead person and strives to protect their dignity but is chiefly lacking in addressing the emerging crimes related to deviant sexual behaviour, which underscores the need for law reforms to criminalise necrophilia and similar crimes.

Legal provisions associated with necrophilia 

Section 297 IPC/ Section 301 BNS

As per the provision laid down by Section  297 IPS now Section 301 BNS, if any individual, with the knowledge or aim to wound or insult the religion of a person, trespasses in a worship space or a place that is set up for funeral rites or set up as a repository for the remains of the dead person and treats the corpse with indignity or causes a nuisance to the people assembled there for funeral rites, such person shall be punished with imprisonment up to 1 year or fine or both. Such a violation of the dignity of dead bodies is strictly prohibited under the law. 

 This is the closest section in criminal law that deals with the indignity performed with a dead body. However, the interpretation of this section is vague, it doesn’t define the word “indignity,”  as it is a broad term that includes multiple actions that may outrage the dignity of the dead body, such as throwing the dead body outside the graveyard, undressing the dead body, mutilating the dead body, having intercourse with the dead, etc., and for every action it has a similar punishment, which would not suffice for every case. There is no certain definition of indignity under this section that would ascertain whether this section covers the case of necrophilia or not, and even if it would have covered, still one-year imprisonment, a fine or both would not suffice for such a horrendous act. 

Another deficiency of this section is that it sets geographical limitations to only places of worship and places of sepulture, which makes it inapplicable to those cases where desecration has been performed outside the vicinity of worship places and cemeteries. 

Section 377 IPC (entirely repealed)

 Section 377 IPC expresses that any person who voluntarily or willingly has carnal intercourse against the order of nature with any man, woman, or animal shall be punished with either imprisonment for life or with imprisonment for a term that may extend to 10 years or a fine or both. In the landmark case of Navtej Singh Johar vs. Union of India, Section 377 of the Indian Penal Code, which criminalised consensual sexual intercourse between two people of the same gender, was challenged as being unconstitutional. The Supreme Court of India, in a historic judgement, held that Section 377 was violative of Articles 14, 15, 19, and 21 of the Constitution, which guarantee fundamental rights such as equality before the law, non-discrimination, freedom of expression, and the right to privacy.

The Court recognised that sexual orientation is an essential attribute of one’s personality and that discrimination based on sexual orientation is a violation of fundamental rights. It further held that the criminalisation of consensual same-sex relationships had no rational connection to any legitimate state interest and was, therefore, arbitrary and irrational.

The Court’s decision was a significant victory for LGBTQ+ rights in India. It marked the end of a long and arduous struggle for equality and recognition, and it paved the way for greater acceptance and inclusion of LGBTQ+ people in Indian society.

Following the Supreme Court’s judgement, the government of India took steps to repeal Section 377. In 2019, the Parliament passed the Transgender Persons (Protection of Rights) Act, which included a provision repealing Section 377. The repeal of Section 377 was a major milestone in the fight for LGBTQ+ rights in India, and it brought the country in line with many other nations that have recognised the rights of LGBTQ+ people.

The Bharatiya Nyaya Sanhita (New Criminal Law) is a proposed new criminal code for India that is currently under consideration by the government. The draft code does not include any provision criminalising consensual same-sex relationships, reflecting the Supreme Court’s judgement in Navtej Singh Johar vs. Union of India.

Before the enforcement of new criminal law, this section has been linked to cases of unnatural offences specifically related to dead bodies because the term “unnatural offence” has been used in the section. This section specifically states that it applies to voluntary acts of sexual intercourse that are contrary to nature’s order, and because a dead body is incapable of giving or not giving consent, determining whether the act has been done voluntarily or not becomes impossible, hence this section was not appropriate for such cases. In the case of Childline India Foundation v. Allan John Waters, the Supreme Court explained that for an act to be considered necrophilia under Section 377, there should be carnal intercourse done against nature’s order that is unusual and can’t lead to procreation. Necrophilia evidently goes against nature’s norm but the word “voluntarily’’ used in the section creates complexity and makes it tricky for the judiciary to apply this section in cases of necrophilia.

 This provision had a significant potential for the amendment to include the definition of necrophilia and other deviant sexual behaviour, classifying them as cognisable offences and additionally imposing strict punishment for them; however, the legislature chose to remove the whole section from the new criminal law (BNS). The repeal of this section has adversely affected the interests of animals as well, as it was the only section punishing acts of sexual brutality against animals and unfortunately, there is no other section added to the BNS to address this crime. The removal of this section has faced widespread criticism by the people; it is a major setback to the whole criminal justice system.

Section 375 IPC/ Section 63 BNS

Section 375 of the IPC, now Section 63 BNS, defines rape as sexual intercourse with a woman against her will or in any way that has been stated as unlawful under this section. This section specifies the term “woman,” which has been defined under Section 10 of the IPC, now Section 2(35) BNS, as a female human being of any age. It clearly states that rape under this section only covers female living beings and not their dead bodies; hence, Section 375 and Section 376 of the IPC, now Section 64 BNS, are not applicable in the cases of necrophilia. 

In the case of Rangaraju Vajapeyi vs. The State of Karnataka, a notable loophole in the Indian legal system was highlighted. The High Court upheld the murder conviction of the accused but struck down the conviction for rape awarded by the lower court. The court observed that the act of necrophilia can’t be covered under sections 375 and 377 of the IPC, and there are no provisions under criminal law to punish sexual intercourse with a dead body. The Court clarified that Section 297 of the of the IPC protects the dignity of the dead but does not specifically address necrophilia. The High Court also held that there is an urgent need to reform the criminal law to address the crime of necrophilia specifically.

Conclusion

India lacks a legal framework that provides laws that specifically deal with sexually deviant behaviour like necrophilia. Despite the evident increase in cases of necrophilia, neither old criminal law (IPC) nor new criminal (BNS) law criminalises such deplorable acts. The judiciary has tried to protect the dignity of the dead through various precedents, but due to the absence of anti-necrophilia laws, judges are unable to render judgements to penalise the perpetrator with appropriate punishment and give justice to the victim; thus, the wrongdoer remains unpunished for necrophiliac acts. This is a prominent gap in the Indian legal system to protect the dignity of the dead. The landmark ruling of the Karnataka High Court in 2023 calls for the urgent need for amendments in the criminal law to incorporate provisions to protect dead bodies from being exposed to sexual brutality and punish the evil-doer of such crimes. In the new criminal law that came into force on July 1, 2024, no provision has been added to define and punish the crime of necrophilia. This omission indicates that despite of judiciary’s urgent call for reformation, the legislature continues to ignore the severity of necrophilia.

Taking inspiration from the UK’s Sexual Offences Act of 2003, which recognises necrophilia as an offence under Section 70, India needs to learn from other countries’ legal frameworks. Countries like Canada, New Zealand, and South Africa have already prohibited necrophilia through distinct legislation. Drawing inspiration from countries like the UK, Canada, and South Africa, which have recognised and legislated against necrophilia, India must urgently follow suit. The protection of deceased individuals from sexual brutality is not just a matter of legal necessity but a fundamental aspect of upholding human dignity.

To bridge this legal gap, it is imperative for the legislature to:

  • Clearly define necrophilia and related deviant behaviours.
  • Classify necrophilia as a cognisable offence.
  • Impose stringent punishments for such acts to deter potential offenders.

By addressing this critical issue, India can take a significant step towards protecting the dignity of all individuals, living or deceased, and strengthening the integrity of its criminal justice system.

References

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