The Delhi High Court has ruled that rape by an HIV positive person does not amount to attempt to murder under the Indian Penal Code, Bar and Bench reported on Tuesday.
The court made the ruling while setting aside a trial court’s conviction of an HIV positive man under the charge of attempt to murder. The man was convicted for the rape of his stepdaughter in 2012. She was 15 years old when the crime took place.
The man was sentenced to 25 years in prison – 10 years for the rape, another 10 for attempt to murder, and five years for causing her a miscarriage. The trial court said that the accused knew he could have transmitted the disease to his stepdaughter, potentially causing her death, PTI reported.
“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,” a single-judge bench of the Delhi High Court said in its order, according to Bar and Bench.
Justice Vibhu Bakhru noted that the trial court’s order would also mean that any sexual activity by an HIV positive person should be punishable under Section 307 (attempt to murder) of the Indian Penal Code, “notwithstanding that his or her partner has consented to such sexual activity”.
The court added: “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.
The Delhi High Court also said the trial court’s order would go on to imply that a person who succumbed to AIDS after willingly engaging in unprotected sex with an infected partner had died by 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,” the court added.
The court said that the man had not raped his stepdaughter with the intention of causing her death.