Recently, the division bench of the Karnataka High Court comprising Justice B Veerappa and Justice Venkatesh Naik T held that sexual assault on the dead body of a woman will not amount to the offence of Rape punishable under Section 376 of the Indian Penal Code.

The Court in the said matter, has acquitted a man of rape charges for committing sexual assault on the dead body of a 21 years old girl, after murdering her.

The bench said “A careful reading of the provisions of Sections 375 and 377 of the Indian Penal Code make it clear that the dead body cannot be called as human or person. Thereby, the provisions of sections 375 or 377 of the Indian Penal Code would not attract.”

It added “It is the specific case of the prosecution that, the accused first murdered the victim and then had sexual intercourse with the dead body. Thereby, it cannot be held as sexual offences or unnatural offences as defined under Sections 375 and 377 of the Indian Penal Code. It can be considered as sadism, necrophilia and there is no offence made out to punish under Section 376 of the Indian Penal Code.”

In the said matter, the accused back in the year 2015, murdered the 21-year-old girl by slitting her neck and then allegedly raped her. The police arrested the accused during the investigation and later filed a chargesheet against him. The trial court on appreciation of the evidence had convicted the accused.

The convict in his appeal contended the alleged act is nothing but 'necrophilia' and there is no specific provision in IPC punishing the said act.

The prosecution opposed the plea and contended that provisions of Section 375(a) and (c)IPC, i.e., "sexual offences" was amended in 1983 and thereby, rape on a dead body attracts sexual offences and is punishable under Section 376 IPC.

While giving reference to Section 46, IPC which defines death and observed, “Rape must be accomplished with a person, not a dead body. It must be accomplished against a person's will. A dead body cannot consent to or protest a rape, nor can it be in fear of immediate and unlawful bodily injury. The essential of guilt of rape consists in the outrage to the person and feelings of victim of the rape. A dead body has no feelings of outrage.”

Thus it held that sexual intercourse on the dead body is nothing but necrophilia- an erotic attraction to corpses. Court noted Necrophilia is a "psychosexual disorder" which DSM-IV (Diagnostic and Statistical Manual of Mental Disorders) classifies among a group of disorders called 'paraphilias' including pedophilia, exhibitionism and sexual masochism.