Source: Chhattisgarh High Court 

Why in News? 

Recently, the Chhattisgarh High Court in the matter of Neelkanth @ Neelu Nagesh v. State of Chhattisgarh and connected matters, has held that rape on a dead body is horrendous but does not amount to rape under the present laws. 

What was the Background of the Neelkanth @ Neelu Nagesh v. State of Chhattisgarh and connected matters Case? 

• The case involves the rape and murder of a 9-year-old girl from the scheduled caste community. 
• The victim's mother had gone to work at the Forest Colony DFO Bungalow that day, leaving her daughter at home. When she returned around 1:20 PM, her daughter was missing. 
• Initially, a missing person report was filed, followed by the First Information Report (FIR) under Section 363 of the Indian Penal Code, 1860 (IPC) (kidnapping) against unknown persons. 
• The next day, the victim's body was discovered on a hill, partially buried. The body was found in a semi-naked state. 
• Two accused were identified in the case: 
  • Nitin Yadav (23 years old): The primary accused who lived in the victim's neighborhood. 
  • Neelkanth @ Neelu Nagesh (22 years old): The second accused who lived about 2 km away. 
• According to the investigation: 
  • Nitin Yadav would frequently visit the victim's house to watch TV. 
  • He had previously been warned by the victim's mother for inappropriately touching the girl. 
  • On the day of Dussehra, when the mother was away, Nitin allegedly raped and murdered the victim by throttling. 
  • He then hid the body in his house. 
  • Later, he sought help from Neelkanth to dispose of the body. 
  • Both accused took the body on a motorcycle to a hill. 
  • Before burying the body, Neelkanth allegedly committed necrophilia. 
  • They buried the body under a Kosam tree.  
• Medical examination confirmed: 
  • Death was due to asphyxia from throttling. 
  • Sexual assault had occurred. 
  • The time of death was within 24 hours of body discovery. 
  • Both accused were found to be sexually potent. 
• DNA testing revealed profiles of both accused in samples taken from the victim's body. 
• Charges were framed against the appellant-Nitin Yadav for the offences punishable under Sections 363, 376(3), 302, 201, 34 of IPC and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO). 
• Section 3(2)(v) of the Act of 1989 and against the appellant- Neelu Nagesh under Sections 363, 376(3), 201, 34 of the IPC, Section 6 of POCSO Act and Section 3(2)(v) of the Scheduled Castes and the Scheduled extent and Tribes (Prevention of Atrocities) Act, 1989 (Act of 1989).  
• The appellants abjured the guilt and prayed for trial. 
• The learned trial Judge, after considering the statement of witnesses and evidence available on record, convicted and sentenced the appellants. 
• Aggrieved by the decision of the trial court the appellants filed the present appeal before the Chhattisgarh High Court. 

What were the Court’s Observations? 

• The Chhattisgarh High Court made the following Observations: 
  • On Criminal Appeals by Both Accused: 
    • The court found there was ample evidence to uphold the convictions. 
    • While there were no eyewitnesses, the circumstantial evidence was strong enough to prove guilt. 
    • The DNA evidence, recovery of physical items, medical reports, and memorandum statements formed a complete chain of circumstances. 
  • On Death and Sexual Assault: 
    • The court confirmed the homicidal nature of death through medical evidence. 
    • Noted Dr. B. Bara's postmortem findings showing death by throttling. 
    • Acknowledged clear evidence of sexual assault based on medical examination. 
  • On Victim's Age: 
    • Confirmed victim was 8 years 10 months and 7 days old at time of incident. 
    • Verified through school records and witness testimonies. 
    • The established victim was clearly a 'child' under Section 2(d) of POCSO Act. 
  • On Physical Evidence: 
    • Validated the recovery of crucial evidence including: 
      •  Victim's anklets and undergarments. 
      •  Accused person's clothing. 
      •  The spade was used for burial. 
      •  Soil samples matched burial sites. 
  • On DNA Evidence: 
    • Found the DNA profiles of both accused in samples from victim. 
    • Considered this strong corroborative evidence. 
  • On Neelkanth's Necrophilia: 
    • While acknowledging it as "one of the most horrendous crimes one can think of." 
    • Agreed with trial court that current law doesn't allow conviction for rape/POCSO charges when victim is deceased. 
    • Maintained conviction only under Section 201 IPC (destroying evidence). 
  • On Mother's Appeal: 
    • Dismissed appeal seeking additional charges against Neelkanth. 
    • While acknowledging dead bodies deserve dignity. 
    • Noted current laws don't cover necrophilia under rape sections. 
    • Mentioned pending consideration of similar issue before Supreme Court. 
• The Chhattisgarh High Court dismissed appeals of both accused, ordered him to surrender within 15 days. 

Need for Laws Against the Crime of Necrophilia 

What is Necrophilia? 

• Necrophilia is the sexual attraction to or sexual acts with corpses, which represents a severe violation of human dignity and bodily integrity. 
• It is considered both a psychiatric disorder and a criminal act in many jurisdictions worldwide. 
• The act violates the dignity of the deceased and causes severe emotional trauma to the family of the deceased. 

Current Legal Status in India: 

• There is no specific law criminalizing necrophilia in India. 
• Such acts cannot be prosecuted under Section 375/376 IPC (rape) as these sections require the victim to be a living person 
• Currently, these acts are typically prosecuted under Section 297 IPC (trespassing burial places) or Section 201 IPC (destroying evidence). The same has now been covered under Section 301 and Section 241 of the Bharatiya Nyaya Sanhita, 2023 (BNS) respectively. 

Need for Specific Legislation: 

• Constitutional Grounds: 
  • The right to dignity extends to dead bodies. 
  • The Supreme Court has recognized that the right to die with dignity includes respectful treatment of the corpse. 
  • Article 21 of the Constitution of India (COI) protection encompasses dignified treatment of human remains. 
• Social and Moral Grounds: 
  • Absence of specific laws leaves a significant gap in protecting the dignity of the deceased. 
  • The current legal framework inadequately addresses the severity and nature of the crime. 
  • Families of victims face additional trauma due to inadequate legal recognition of the crime. 
• Legal Reform Requirements: 
  • Need for specific statutory provisions defining and criminalizing necrophilia. 
  • Requirement for appropriate punishment commensurate with the gravity of the offense. 
  • Necessity for procedural guidelines for investigation and prosecution of such cases.   
• The lack of specific legislation addressing necrophilia represents a significant gap in Indian criminal law, particularly given the constitutional guarantees of human dignity that extend beyond death.  
• This gap needs to be addressed through comprehensive legislation that recognizes both the criminal nature of the act and its impact on society's moral fabric.