While upholding the conviction of an HIV positive man in a rape case, the Delhi High Court has set aside his conviction under an attempt to murder charge — for which a trial court had sentenced him to additional 10 years imprisonment. The HC said such a ruling by the lower court would also mean that any sexual activity by a person infected by HIV is punishable under IPC section 307, notwithstanding the partner’s consent. The trial court, in 2012, ruled the accused was aware his act could result in transmitting the life-threatening disease.
“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. If the reasoning adopted by the learned 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 acquires the said disease as a result thereof 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 as defined under Section 300 of the IPC,” Justice Vibhu Bakhru said.
In the August 2012 order, the trial court sentenced the accused to 10 years in prison for raping his stepdaughter, five years for causing her miscarriage without her consent, and to 10 years for the offence under Section 307. The accused was sentenced to 25 years in prison as the sentences were directed to run consequently.
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