Sexual activity by a person infected by HIV will not attract the offence of attempt to murder, observed the Delhi High Court which upheld the conviction of an HIV positive man for raping his minor step daughter but acquitted him of the offence of attempting to murder the victim. The trial court had said that the act of the accused amounted to attempt to murder as he had the knowledge that being HIV positive his crime could have resulted in transmitting the potentially lethal disease causing death. However, the high court which noted that there was no intention to kill the victim, said there was no material furnished along with the charge sheet to establish that the victim was infected with AIDS or was HIV positive and even her tests for HIV had yielded a negative result.
The high court did not agree with the trial court's reasoning that since the man 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 the victim's death from it would amount to murder. Justice Vibhu Bakhru said the high court does not concur with the trial court's view that the appellant man was guilty of the offence of attempt to murder.
The import of holding so would also mean that any sexual activity by a person infected by HIV is punishable under Section 307 (attempt to murder) 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, the high court said. It further said "if the reasoning adopted by the 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 as a result acquires the disease 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," it said. The high court was deciding the appeal filed by the man who was held guilty by the trial court of the offence of raping his step daughter, who was around 15-year-old at the time of offence in 2015, and since he was infected with Human Immunodeficiency Virus (HIV), he was also convicted for the offence of attempt to murder.
Besides rape and attempt to murder, the trial court in 2012, had also convicted the man for the offence of causing miscarriage without woman's consent and was sentenced to 25 years imprisonment. Though the man has been acquitted of the offence of causing miscarriage of the woman by the high court, he would have to spend 10 years in jail for the offence of rape.
The high court noted that the man had not raped the victim with an intention of causing her death. According to the prosecution, the man was lonely after the death of his wife, who was also HIV positive, and he had sexually preyed on his step daughter.