HIV positive patient having sexual intercourse without a woman's consent cannot be convicted for an offense punishable under Section 307 of IPC,1860: Delhi HC [READ ORDER]

The Delhi High Court on 26th November 2020, declined the view of the Trial Court and held that in case an HIV positive patient has sexual intercourse without a woman's consent, he can't be convicted for an offense punishable under Section 307 of Indian Penal Code,1860.

The Bench of Justice Vibhu Bakhru further observed that in case of unprotected sexual engagement by an HIV positive person, when such a person is aware of the nature of his disease; his act can be termed as a negligent act and thus he is liable to be punished under Section 270 of the Indian Penal Code,1860.

Brief Facts of the case

1. Complainant had alleged that her stepfather had forcibly raped her multiple times
2. Pursuant to her allegation, an FIR was registered on 05.08.2011. under Section 376 of IPC,1860
3. She was handed over to Swati Sharma from Child Line, NGO Prayas, who brought her to the police station, and her statement were recorded.
4. To establish the case, the prosecution examined fourteen witnesses and the defense did not lead any evidence.
5. The appellant was charged for committing offenses punishable under Section 307/313/376 of the IPC,1860. He pleaded not guilty to the offenses. He was tried and convicted by the Trial Court.

The verdict of the Trial Court

1. The judgment was delivered by the learned ASJ-02, North West Rohini Courts, Delhi on 27.08.2012.
2. The Trial Court found the appellant guilty of raping his stepdaughter and since the appellant is infected with Human Immunodeficiency Virus (HIV Positive).
3. He was also convicted for an offense punishable under Section 307 of the IPC,1860 – attempt to murder.
4. 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.

Thus, in effect, he was sentenced to twenty-five years of rigorous imprisonment apart from fines.

The question examined by the Delhi High Court 

1. Whether there is any doubt that the appellant is guilty of committing an offense punishable under Section 376 of the IPC,1860?
2. Whether it is established that the appellant is guilty of committing an offense punishable under Section 313 of the IPC,1860?
3. Whether findings of Trial Court for convicting the appellant for an offense punishable under Section 307 of the IPC,1860?

Observations of the Delhi High Court

The Court observed that:

1. Section 300 of the IPC is also 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.
2. The Trial Court had erred in proceeding on the basis that provisions of Section 270 of the IPC would not be applicable. The learned Trial Court had noted in the order that a charge under Section 270 of the IPC was not framed (and a Charge under Section 307 IPC was framed instead) because the said Section uses the word „malignantly‟ and the same refers to a kind of general malice, which was absent in the instant case.

Findings of Delhi High Court

1. There can be no doubt that the appellant is  guilty of raping the prosecutrix. The Court concurs with the decision of the Trial Court that the evidence obtained in this case clearly establishes beyond any reasonable doubt that the appellant had engaged in sexual intercourse with the prosecutrix without her consent and had committed an offense punishable under Section 376 of the IPC. The Court also concurs with the sentence awarded to the appellant for committing the said offense i.e. – rigorous imprisonment for a period of ten years along with the fine of ₹2,000/- and in default of payment of fine, to undergo simple imprisonment for a further period of one month.
2. There was insufficient evidence to conclude that the appellant had committed the offense of causing the prosecutrix’ miscarriage. Therefore, the appellant’s conviction for committing an offense under Section 313 of the IPC, 1860 cannot be sustained and is, accordingly, set aside.
3. The appellant’s conviction for committing an  offense under Section 307 of the IPC, 1860 cannot be sustained and is, accordingly, set aside.
4. The impugned judgment to the extent that it convicts the appellant for committing an offense punishable under Section 376 of the IPC, 1860 is upheld and, to the extent that it convicts the appellant of committing offenses under Sections 313 and 307 of the IPC, 1860 is set aside.

[READ ORDER]