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Rape by HIV+ positive patient doesn't amount to attempt to murder

Recently the Delhi High court in Sabhajeet Maurya v. State (NCT of Delhi)[1] ruled that an HIV positive patient cannot be convicted for an offence punishable under Section 307 IPC.

The single judge Bench of Justice Vibhu Bakhru also observed that unprotected sexual intercourse by an HIV patient when such person is aware of it is punishable under Section 270 IPC.

Brief Facts: An FIR was registered in 2011 against the appellant, pursuant to the statement of the girl (aged fifteen then). She alleged that the appellant who was her step father had forcibly raped her many times.

The appellant was charged under Sections 307/313/376 IPC. He pleaded not guilty. The trial court however convicted him. Further, the trial court also convicted him for the offence under Section 307 IPC i.e. attempt to murder on account of him being HIV positive.

The High court in its order stated that there was no evidence that established that the prosecutrix had contracted AIDS yet the trial court framed the charge of actual transmission of disease and convicted the appellant for the same.

The court opined that such a judgment of the trail court would imply that any sexual activity that an HIV positive person engages in amounts to attempt to murder punishable under Section 307.

The court also held that as per the reasoning of the trial court, 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 under Section 300 IPC.

The court further held that the second and third limbs of Section 300 are not applicable as the act was not committed with an intention to cause any bodily injury to prosecutrix, which is likely to cause death or sufficient in normal course of the nature to cause death.

The court significantly observed, �The Trial Court has proceeded on the basis that the act of a penetrative sexual intercourse by a person who is HIV positive is likely to cause death to the receptive partner. This is based on two assumptions. First, that such sexual intercourse is most likely to transmit the disease to the healthy partner; and second, that on transmission of the disease, the partner so infected is likely to die. However, both the said assumptions, are without basis and without any scientific evidence, to support the same.�[2]

The court also observed that the appellant had not raped the prosecutrix with an intention of causing her death. Thus the court held that appellant�s conviction under Section 307 IPC couldn�t be sustained and was accordingly set aside.

The basis of punishing for an offence under the IPC is intention, the element of mens rea.

�Mens rea�, says Beg J. in Girja Nath v. State[3] while explaining the juristic concept of crime,

�is a loose term of elastic signification and covers a wide range of mental states and conditions, the existence of which would give a criminal hue to actus reus. Sometimes it is used to refer to a foresight of the consequences of the act and at other times to act per se irrespective of its consequences. In some cases it stands for a criminal intention of the deepest dye, such as is visible in a designed and premeditated murder committed with a full foresight of its fatal consequences.

In other cases, it connotes mental conditions of a weaker shade such as are indicated by words like knowledge, belief, criminal negligence or even rashness in disregard of consequences. At other times, it is used to indicate a colourless consciousness of the act itself irrespective of the consequences of the act, or, in other words, a bare capacity to know what one is doing as contrasted, for example, with a condition of insanity or intoxication in which a man is unable to know the nature of the act.�[4]

Mens rea� is a state of mind under criminal law, which is considered as the �guilty intention� and unless it is found that the �accused� had the guilty intention to commit the �crime� he cannot be held �guilty� of committing the crime.[5]

In the pertinent case decided by the Honourable Delhi High court, the element of mens rea to the extent of committing the offence under Section 307 IPC was missing and thus the court was right in setting aside the conviction under Section 307 IPC.

  1. Crl. App. 493/2013 and Crl. M. (Bail) 7547/2020, Delhi High Court, delivered on November 26, 2020.
  2. Ibid.
  3. ILR (1954) 2 All 215 (at 219, 220).
  4. Ibid.
  5. Director of Enforcement v. M.C.T.M. Corporation (P) Ltd. AIR 1996 SC 1100.
Written By: Syed Aatif - The author is a practicing advocate at the Central Administrative Tribunal (CAT), Delhi High Court and Supreme Court of India.
Email: [email protected])

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