Recently the Delhi High court in Sabhajeet Maurya v. State (NCT of Delhi)
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.�
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.
�, says Beg J. in Girja Nath v. State
 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
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.�
� 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
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.
Written By: Syed Aatif
- Crl. App. 493/2013 and Crl. M. (Bail) 7547/2020, Delhi High Court,
delivered on November 26, 2020.
- ILR (1954) 2 All 215 (at 219, 220).
- Director of Enforcement v. M.C.T.M. Corporation (P) Ltd. AIR 1996 SC
- The author is a practicing advocate at the Central Administrative Tribunal (CAT), Delhi High Court and Supreme Court of India.
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