An HIV Positive Patient Can't Be Punished For 'Attempt To Murder' For Sex Without Woman's Consent: Delhi High Court

The Delhi High Court on Thursday (26th November) ruled that an HIV positive patient can't be convicted for an offence punishable under Section 307 of the IPC (attempt to murder), if he had sexual intercourse without woman's consent. The Bench of Justice Vibhu Bakhru further observed that unprotected sexual engagement by an HIV positive person, when such a person is aware of the nature of his disease; he is liable to be punished under Section 270 of the IPC Factual background An FIR was registered in the year 2011 against the Accused/Appellant, pursuant to the statement made by a girl (aged about fifteen years at the material time). She had alleged that the appellant/accused – who is her step father (an HIV Positive Patient) – had forcibly raped her multiple times. The appellant was charged with committing offences punishable under Section 307/313/376 of the IPC. He pleaded not guilty. He was tried and convicted by the Trial Court. Trial Court's Judgment The Trial Court [North West Rohini Courts, Delhi] found the appellant guilty of raping his step daughter. Further, since the appellant is infected with Human Immunodeficiency Virus (HIV Positive), he was also convicted for an offence punishable under Section 307 of the IPC – attempt to murder. The Trial Court reasoned that since the appellant was aware that his acts could result in transmitting the potentially lethal disease, he had knowingly committed an act, which if resulted in transmitting of HIV and consequently, the death of the victim from that disease, it would amount to murder. Delhi High Court's reasoning and Judgment Re: Conviction for attempt to murder – offence punishable under Section 307 IPC The High Court remarked, "No evidence was led to establish that the prosecutrix had contracted AIDS, yet, the Trial Court framed a charge of actual transmission and found the appellant guilty of the charge framed." The Court did not concur with the view that the appellant/accused was guilty of an offence punishable under Section 307 of the IPC. The Court reasoned that if Trial's Court view is imported, "it would also mean that any sexual activity by a person infected by HIV is punishable under Section 307 of the IPC, notwithstanding that his or her partner has consented to such sexual activity." The Court further said, "If the reasoning adopted by the learned Trial Court is extended further, it would also mean that a healthy person who willingly engages in unprotected sexual intercourse with an HIV positive partner and acquires the said disease as a result thereof that eventually proves fatal, would have committed suicide and, the HIV positive partner would be guilty of abetment of suicide under Section 306 of the IPC if not guilty of committing murder as defined under Section 300 of the IPC." The Court noted that according to the prosecution, the appellant was lonely after the death of his wife and he had sexually preyed on his step duaghter. Further, the Court observed that the second and third limb of Section 300 of the IPC are not applicable as the said act was not done with intention of causing any bodily injury to the prosecutrix, which is likely to cause death or is sufficient in the normal course of nature to cause death. There is no ground to hold that the appellant intended to inflict a deadly bodily injury on the prosecutrix. Importantly, the Court noted that the fourth limb of Section 300 of the IPC was closest to this case, which applies to a person committing an act which he knows is so imminently dangerous that in all probably would cause death or such bodily injury as is likely to cause death and yet, the offender commits such an act without any excuse for incurring the risk of causing death or such injury as aforesaid. In this backdrop, the Court noted that one of the key ingredients of the second, third and fourth limb of Section 300 of the IPC is that the culpable act is so inherently dangerous as is likely to cause death; or is sufficient in normal course of nature to cause death; or in all probability it would cause death. Importantly, the Court said, "The Trial Court has proceeded on the basis that the act of a penetrative sexual intercourse by a person who is HIV positive is likely to cause death to the receptive partner. This is based on two assumptions. First, that such sexual intercourse is most likely to transmit the disease to the healthy partner; and second, that on transmission of the disease, the partner so infected is likely to die. However, both the said assumptions, are without basis and without any scientific evidence, to support the same." The Court also noted that the assumption that penetrative sexual assault would in all probability lead to transmission of the disease, which in all probability would result in the death of a healthy partner is not established. Bench ...

An HIV Positive Patient Can't Be Punished For 'Attempt To Murder' For Sex Without Woman's Consent: Delhi High Court

Sparsh Upadhyay

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