Rape committed by HIV positive person not attempt to murder: Delhi High Court [READ JUDGMENT]

The Delhi High Court recently ruled that commission of rape by an HIV positive person did not amount to the offence of "attempt to murder" under Section 307 of the Indian Penal Code (Sabhjeet Maurya v. State)..The judgment was passed by a single-judge Bench of Justice Vibhu Bakhru in an appeal from an order passed by the trial court. .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.Delhi High Court.The appellant was convicted for the commission of offences under Sections 376 (rape), 313 (causing miscarriage without woman’s consent), and 307 (attempt to murder) IPC. He was, thereafter, sentenced to undergo twenty-five years of rigorous imprisonment, apart from fines. .The trial court found the appellant guilty of attempt to murder on account of the facts that he was suffering from AIDS, was HIV positive, and was aware that his acts could result in transmitting the potentially lethal disease to the prosecutrix..The trial court had reasoned that although Sections 269 and 270 IPC provide for punishment for spreading infectious disease dangerous to life, intentionally or negligently, there was a need for tougher criminal laws regarding non-disclosure of Sexually Transmitted Diseases/Infections..While deciding the appeal, the High Court upheld the appellant's conviction under Sections 376. However, the Court held that there was insufficient evidence to conclude that the appellant had committed the offence of causing the prosecutrix‘s miscarriage under Section 313 IPC. It also did not concur with the view that the appellant was guilty of attempt to murder under Section 307 IPC. The judgment reads,."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 offence entailing a higher punishment.".The Court explained that if the trial court's order was accepted, it would also mean that any sexual activity by a person infected by HIV was punishable under Section 307 IPC, notwithstanding the fact that his or her partner had consented to such sexual activity.It added that this would also imply that a healthy person who willingly engaged in unprotected sexual intercourse with an HIV positive partner and acquired the said disease that eventually proves fatal, would have committed suicide. Consequently, the HIV positive partner would be guilty of abetment of suicide under Section 306 IPC if not guilty of committing murder as defined under Section 300 IPC, the Court said. .The Court further held that even from a plain reading of Section 307 IPC, an offence of attempt to murder was not made out, as the appellant had not raped the prosecutrix with "an intention of causing her death"..Remarking that the decision of the trial court was largely based on surmises and impressions, without analysis of any scientific data, the Court recorded,."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 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...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.".The Court also considered the trial court's reliance on the fact that several countries prosecuted cases of transmission of HIV and non-disclosure of HIV status.In response, the High Court said that the trial court did not examine the specific provisions or the rationale used in various jurisdictions for prosecuting non-disclosure of HIV positive status only as general offences..After analysing the legal framework of several countries, the Court observed that in cases of sexual assault or rape, it was widely accepted that the HIV positive status of the offender was used as an "aggravating factor" to be considered while sentencing. .Lastly, the Court opined that the trial court erred in holding that Section 270 IPC would not be applicable. The reasoning that unprotected sexual engagement by an HIV positive person, who is aware of the nature of his disease, could be termed as a negligent act and be punishable under Section 270 IPC, was persuasive, the Court noted..It was also held that in the present case, there was no material to establish that the prosecutrix had been infected with AIDS or was HIV positive. Further, even the chargesheet did not impute any charge of commission of an offence under Section 307 IPC..In view of the above, the appellant‘s conviction under Section 307 was set aside..Advocates Anu Narula and Rohan Ahlawat appeared for the appellant. .Additional Public Prosecutor Ravi Nayak appeared for State..[Read judgment]