The Delhi high court while hearing a criminal appeal in a rape case upheld the rape conviction of the appellant, however, acquitted him for the charge of attempt to murder holding that HIV positive person cannot be liable for an attempt to murder even if sexual intercourse is without the woman’s consent.
The FIR was filed by the appellant’s step-daughter who was allegedly raped multiple times by the accused. The prosecutrix made the statement that her step-father forcefully raped her multiple times after the demise of her mother when she was 15-years old. Since the accused was HIV positive the prosecutrix was also tested for the disease but her test results came negative. The trial court evaluated all the medical and forensic evidence and statement of the prosecutrix along with other witnesses and convicted the appellant under section 376,313 and 307 of the IPC for rape, miscarriage, and attempt to murder of the prosecutrix and sentenced him to 25 years imprisonment.
The appellant aggrieved by the trial court’s judgment the accused filed an appeal in the Delhi high court. The counsel for the appellant contended that the prosecutrix has changed her statement under oath due to which her testimony is unreliable and also defended the accused on other charges pleading that the accused be acquitted of all charges.
The single-judge bench of Delhi high court of Justice Vibhu Bakhru upheld the trial court’s conviction under section 376 IPC for rape after finding that there was enough forensic and medical evidence that corroborated the prosecutrix testimony. However, the court found no sufficient material on record to charge the appellant under section 313IPC for miscarriage and acquitted the appellant for the same.
On the issue of the trial court’s conviction under section 307IPC for an attempt to murder the court held a different view and dictated that such an instance of rape by an HIV positive patient cannot be seen as an attempt to murder. The court remarked “This Court is unable to subscribe to the aforesaid approach of the learned Trial Court. Merely because the learned Judge was of the view that the Legislature must provide for a higher punishment for non-disclosure of the STI/STD status of the person engaging in sexual activity, does not justify contriving to classify it as an offense entailing a higher punishment.” Regarding the legal implications of the trial court’s judgment the high court held that the learned trial court judge erred in charging the accused with an attempt to murder and commented “that the import of holding so 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. This is because the culpable act under Section 307 of the IPC does not cease to be one if the victim of such an act has also consented to the same. 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 relied on laws of multiple other countries regarding the spread of such disease and held that it might be an aggravating factor while sentencing but there are no specific laws regarding it. The court was of the opinion that the conduct of the accused may not come under the purview of an attempt to murder since there was no intention of killing and the same was also not contended by the prosecution. The court criticizing the trial court’s view on the matter remarked “The Trial Court has proceeded on the basis that the act of 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 the 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.” Since there was no disease transmitted to the victim and there was no mal-intent to kill the victim, the court scrapped the charges under section 307 IPC. The court also mentioned that section 270 IPC( malignant act to spread disease dangerous to life) was not applicable in the present case since there was no malice on the part of the accused regarding the spreading of the disease. The court, therefore, only upheld the conviction for rape under section 376 of IPC and set aside conviction and sentencing under section 313 and 307 of IPC, and disposed of the appeal.
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