HIV positive person can't be prosecuted for attempt to murder for having intercourse: Delhi HC

If a HIV positive person is aware of their condition and has unprotected sex, the person can be punished under Section 270 of IPC, said the court

An HIV positive person cannot be prosecuted for an offence of attempt to murder, if he had sexual intercourse with a woman with or without her consent, the Delhi High Court has held.

A bench of Justice Vibhu Bakhru set aside the conviction of a man under Section 307 (attempt to murder) of the IPC but upheld his conviction under Section 376 for raping his stepdaughter.

In cases of sexual assault or rape, the court said it is widely accepted that the HIV positive status of the offender is an aggravating factor to be considered while sentencing the convict.

The court, however, said this reasoning is persuasive and cannot be faulted that unprotected sexual engagement by an HIV positive person, aware of the nature of his disease, can be termed as a negligent act, which he knows is likely to spread the infection of a disease that endangers life, and is thus, liable to be punished under Section 270 (malignant act likely to spread infection of disease dangerous to life) of the IPC.

The court said that the assumption that penetrative sexual assault would in all probability lead to transmission of the disease, which would result in the death of a healthy partner, is not established.

"In the facts of the present case, no evidence whatsoever was led to establish the probability of the prosecutrix being transmitted the said disease," the court pointed out, adding even the police did not invoke charges under Section 307 but the trial court went ahead to hold the man guilty.

The court further said, "the decision of the trial court is largely based on surmises and impressions, without analysis of any scientific data to assume that sexual intercourse by an HIV positive patient would in all probability lead to the demise of his partner."

It also said most countries that do not have specific laws to prosecute offences relating to HIV but try such offenders under their pre-existing laws. The person, who is inflicted with the said disease, does suffer bodily harm and if the act is done recklessly and with mal-intent.

"In certain cases where an HIV positive person fails to disclose his status and engages in any sexual activity, he or she may be prosecuted for sexual assault as in such cases, the consent of the other person to engage in sexual intercourse is vitiated and the sexual act can be construed as one without consent," the court said.