Bhopal: In a landmark judgment, the Chhattisgarh High Court held that having sex with the deceased cannot be considered as rape under the law.
A bench of Chief Justice Ramesh Sinha and Justice Vibhu Dutt Guru, while delivering the judgment in the case, pointed out that Section 376 of the Indian Penal Code (IPC) and the Protection of Children from Sexual Offenses (POCSO) Act came into force. It applies only if the victim is alive and therefore having sex with the deceased cannot be considered as rape under the law.
However, the court has commented that there is no doubt that the crime of raping the dead body (necrophilia) committed by the accused is the most heinous crime anyone can think of.
But the reality is that the accused has not been punished till date due to the crime of rape with dead body.
The case relates to a recent incident in which two persons, Nitin Yadav and Neelkanth Nagesh, kidnapped, raped and murdered a minor.
Yadav was sentenced to life imprisonment by the court on charges of rape, kidnapping and murder, while his alleged accomplice Nagesh was accused of destroying evidence.
In the case, the prosecution argued that necrophilia violates Article 21 of the Constitution, which guarantees the right to die with dignity and violates the scope of a person’s right to deal with the dead body after death, asking the bench to uphold Yadav’s conviction on the charge of rape.
However, the court opposed the prosecution saying that respect and fair treatment should be provided not only to the living but also to the dead.
“But the existing law has to be applied to the facts of the case, and no offense as objected to by the learned counsel can be imputed to the appellant (accused),” the court said.
Although he was found guilty of other crimes, the court acquitted Yadav of rape charges.