Is sexual intercourse with dead body rape? Chhattisgarh High Court answers

The Chhattisgarh High Court recently observed that engaging in sexual intercourse with dead body does not constitute rape under Section 376 of the Indian Penal Code (IPC) or under the Protection of Children from Sexual Offences Act (POCSO Act) [Neelkanth @ Neelu Nagesh v. State of Chhattisgarh]. .A Bench of Chief Justice Ramesh Sinha and Justice Bibhu Dutta Guru said that even though raping a dead body (necrophilia) is one of the most horrendous act one can think of, it will not amount to the offence of rape under the relevant provisions of the IPC and the POCSO Act. Such provisions apply only when the victim is alive, the Court explained."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 and for convicting an offence under the aforementioned Sections, the victim should be alive," the Court said.The Court made the observation while upholding the acquittal of a man booked for raping a dead body though he was convicted for other offences. .The Court was hearing a plea filed by two men accused in a case involving the kidnapping, rape and murder of a minor victim, who was sexually abused even after her death.The two accused men Nitin Yadav and Neelkanth Nagesh had been convicted for different offences under the IPC and the POCSO Act. While Yadav was found guilty of rape, kidnapping and murder and was sentenced to life imprisonment, his accomplice Nagesh was convicted under Section 201 (causing disappearance of evidence of offence, or giving false information to screen offender) and 34 (acts done by several persons in furtherance of common intention) and was sentenced to seven years of imprisonment.The Court, after having considered the evidence and submissions before it, held that the prosecution had proved beyond doubt that the two accused men were guilty. It thus, upheld their respective convictions and sentences..In the same case, Nagesh's fate was challenged on the ground that he had engaged in sexual intercourse with the victim's dead body, yet the trial court had acquitted him of the offence of rape under the IPC and the POCSO Act.It was contended by the prosecution that although Indian law does not classify sexual intercourse with a dead body as "rape" under Section 376 of the IPC, Article 21 of the Constitution guarantees the right to die with dignity, which extends to the treatment of a person's body after death."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 are entitled to a dignified funeral", it was argued. The Court however, disagreed with the objection and ruled that as per law, the offence of rape cannot be imposed on Nagesh. "There can be no disagreement on the issue that dignity and fair treatment is not only available to a living man but also to his dead body and every dead body is entitled for a respectful treatment but the law as on date has to be applied to the facts of the case and none of the offences as prayed by the learned counsel for the objector can be imposed upon the appellant-Neelkanth @ Neelu Nagesh," it explained.Thus, it dismissed the plea challenging Nagesh's acquittal with regard to the offence of rape. "Since we have already concurred with the reasons and findings arrived at by the learned trial Court, we are not inclined to allow the acquittal appeal filed by the mother of the victim and as such, the same also stands dismissed," the Court said. .Advocate Shivendu Pandya appeared for Nagesh while advocate Aman Kesharwani represented Yadav. Deputy Advocate General (DAG) Shashank Thakur represented the State of Chhattisgarh.Advocate Dheeraj K Wankhede represented the victim's mother. .[Read Judgment]