HIV-Positive person can’t be convicted of attempt to murder if he has sex with or assaults partner: Delhi high court

4 dec 2020

HIV-Positive person can’t be convicted of attempt to murder if he has sex with or assaults partner: Delhi high court

The Delhi high court stated that an HIV-positive person cannot be convicted of attempt to murder if he or she has sex with the consent or disagreement of their partner.
The appellant was prosecuted under Section 376 of the IPC. The FIR was registered from the statement made by a girl, who was aged about fifteen years at the material time. The single bench of justice Vibhu bakhru has acquitted the HIV-positive man who raped his minor step-daughter in an attempt to murder case.
However, the court has upheld the lower court’s decision to convict the accused in the rape case.
It was reported that the accused, who was her stepfather and had continuously raped her. The minor was referred to the gynaecological ward and underwent dilation and evacuation procedure. The trial court found the appellant guilty of taping his step daughter and since the appellant was infected with HIV positive. So, therefore he was also convicted for an offence punishable under Section 307 of the IPC that is attempt to murder. The trial court stated the fact that since the appellant was aware that his acts could result into transfer of the disease, he had knowingly and intentionally committed an act, which if resulted into the same then the death of the victim from that disease would amount to murder.
The high court observed in its judgement that in cases of sexual violence, the offender is infected with HIV positive is an important element while sentencing, but due to the reason of his illness he cannot be convicted of charges to attempt of murder that is Section 307 of IPC. Therefore, the accused can be convicted under Section 270 of the IPC.