Case BriefsHigh Courts

Delhi High Court: Vibhu Bakhru, J., observed that If an HIV positive person is aware of their condition and has unprotected sex, the person can be punished under Section 270 of Penal Code, 1860.

Appellant was convicted by the trial court under Sections 376/313/307 of Penal Code, 1860.

Appellant was found guilty of raping his stepdaughter and since the appellant was found to be infected with Human Immunodeficiency Virus (HIV Positive) and was convicted for an offence punishable under Section 307 of IPC — attempt to murder.

Trial Court also observed that since the appellant was aware that his acts could result in transmitting the potentially lethal disease, he had knowingly committed an act, which if resulted in transmitting of HIV and consequently, the death of the victim from that disease, it would amount to murder.

Analysis, Law and Decision

Conviction for Rape — offence punishable under Section 376 of IPC

Whether there is any doubt that the appellant is guilty of committing an offence punishable under Section 376 IPC?

Considering that the prosecutrix gave varied statements at various points of time and had changed her stand on oath. The testimony of the prosecutrix could not be considered as wholly reliable and the trial court erred in proceeding on the said basis. However, Court also denied accepting that she was a wholly unreliable witness.

Further, in view of the above Court stated that it would be unsafe to rely on the testimony of the prosecutrix without any corroborative evidence and hence solely on her testimony, the appellant cannot be convicted.

Bench made another observation that,

in the instant case, there is unimpeachable corroborative evidence that the petitioner had raped the prosecutrix. The DNA Fingerprints of the Products of Conception and the DNA Fingerprints generated from the blood sample of the petitioner conclusively established that the appellant was the biological father of the abortus.

Repeatedly Raped

It is also material to note that the prosecutrix had in the first instance, when she was brought to the Community Care Centre, reported to the nurse that her stepfather had been repeatedly establishing physical relations with her and had been sexually abusing her in front of her siblings.

Even the medical report recorded:

“Repeated Rape by HIV positive stepfather after the death of mother suffering from HIV/AIDS in Jan 2011. Patient was overdue by one week in April 2011 when she was given an injection to get back her periods back. She bled with clots and pieces. UPT done showing pregnancy positive result.”

High Court concurred with the decision of the trial court that the evidence obtained in the present case clearly established beyond any reasonable doubt that the appellant had engaged in sexual intercourse with prosecutrix without her consent and had committed an offence punishable under Section 376 IPC.

Conviction for causing miscarriage – offence punishable under Section 313 IPC

Whether it is established that the appellant is guilty of committing an offence punishable under Section 313 of the IPC?

Trial Court had held that the appellant was guilty of causing miscarriage to the prosecutrix by administering her pills. It is relevant to note that though the prosecutrix was in Sneh Sadan when she was allegedly administered pills by the appellant and the same was allegedly informed to doctors immediately, no action was taken by any of the doctors in this regard.

Bench stated that there is no material to indicate as to what pills were administered to the prosecutrix. Although three medical doctors were examined, none of them mentioned that in their opinion the prosecutrix‘s miscarriage was induced by the said pills.

Hence, the Court stated that there was no description of the pills allegedly administered to the prosecutrix. There is nothing on record to remotely indicate as to what was the substance that was allegedly administered to the prosecutrix.

Court was of the view that there was insufficient evidence to conclude that the appellant had committed the offence of causing the prosecutrix‘s miscarriage. Therefore, the appellant‘s conviction for committing an offence under Section 313 of the IPC could not be sustained.

Conviction for an attempt to murder – offence punishable under Section 307 IPC

Bench did not concur with the view that the appellant was guilty of an offence punishable under Section 307 IPC for several reasons.

Firstly, that the import of holding so would also mean that any sexual activity by a person infected by HIV is punishable under Section 307 of the IPC, notwithstanding that his or her partner has consented to such sexual activity. 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.

Secondly, the trial court had drawn support for its conclusion by mentioning that several countries prosecute cases of transmission of HIV and non-disclosure of HIV status. However, the court had not examined the specific provisions or the rationale used in various jurisdictions for prosecuting non-disclosure of HIV positive status as general offences.

In cases of actual transmission where an HIV Negative person acquires the said disease as a result of engaging in any sexual activity with an HIV Positive partner, the offender is prosecuted for causing bodily harm.

In certain cases where an HIV Positive person fails to disclose his status and engages in any sexual activity, he/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.

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

Thirdly, on a plain reading of Section 307 of IPC, an offence under Section 307 IPC is not made out.

Section 307 of the IPC punishes any act which is done by a person with such intention or knowledge and under the circumstances that by that act cause death, the persons committing such act would be guilty of murder.

Bench observed that clearly, in the facts of the present case, the appellant had not raped the prosecutrix with an intention of causing her death.

According to the prosecution, the appellant was lonely after the death of his wife and he had sexually preyed on his stepdaughter (as allegedly disclosed by him in his disclosure statement).

It is relevant to note that one of the key ingredients of the second, third and fourth limb of Section 300 of the IPC is that the culpable act is so inherently dangerous as is likely to cause death; or is sufficient in the normal course of nature to cause death; or in all probability, it would cause death.

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. In the facts of the present case, no evidence whatsoever was led to establish the probability of the prosecutrix being transmitted the said disease.

In the given circumstances, 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.

Fourthly, the appellant was medically examined and there is no evidence to indicate that he was a carrier of Herpes Simplex Virus. Thus, there is no evidence that the appellant would have transmitted the said disease to the prosecutrix.

Lastly, this Court is of the view that the Trial Court had erred in proceeding on the basis that provisions of Section 270 of the IPC would not be applicable.

In Supreme Court’s decision of Mr ‘X’ v. Hospital ‘Z’: (1998) 8 SCC 296, a case was considered where the respondent hospital had disclosed that the appellant was HIV positive to his fiancé. As a result of such disclosure, the appellant‘s marriage to his fiancé was called off. Appellant instituted an action to recover damages on the ground that the information regarding his HIV positive status was required to be kept secret under medical ethics and was disclosed illegally. The appellant pleaded that since the hospital had breached its duty to maintain confidentiality, they were liable to pay damages to the appellant.

“…the reasoning that unprotected sexual engagement by an HIV positive person, who is 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 of the IPC is persuasive and cannot be faulted.”

Court opined that even if the Trial Court was of the view that it would not be apposite to frame charges under Section 270 of the IPC, the same did not necessarily warrant that charges be framed under Section 307 of IPC.

In view of the above, the impugned judgment to the extent that it convicts the appellant for committing an offence punishable under Section 376 of the IPC was upheld.

Punishment for offences under Sections 313 and 307 of IPC was set aside. [Sabhajeet Maurya v. State (NCT of Delhi), 2020 SCC OnLine Del 1525, decided on 26-11-2020]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of T.V. Nalawade and K.K. Sonawane, JJ. refused to exercise jurisdiction under Section 482 CrPC in favour of the petitioners, even though the parties had resolved the dispute amicably in between them.

The petitioners were booked for various offences including Sections 307 (attempt to murder), 326 (voluntarily causing grievous hurt by dangerous weapons or means), etc. read with Section 34 IPC, and Sections 4 and 25 of the Arms Act. The petitioners preferred the present petition to quash the criminal proceedings in the case registered against them, on the ground that the dispute had been settled amicably between the petitioners and the complainant.

The High Court noted that the allegations against the petitioners were serious and heinous in nature. The petitioners attacked the complainant with lethal weapons like sword, knife, iron rod, etc. and inflicted fatal injuries on the vital part of the body. It was observed that the offences under Sections 307 and 326 are held serious and heinous offences in the eye of law, which would cause social impact. It is a rule of law that while dealing with the application to compound the offences, on the ground of compromise, it is essential to take into consideration the distinction between the personal and private offences and its impact on the society at large.

Referring to a plethora of judicial precedents on the subject, the Court reached the conclusion that the petition needs to be dismissed. It was held: “The gravity of offences and the conduct of the petitioners do not persuade ourselves to quash the proceeding in exercise of powers under Section 482 CrPC. As referred above, offences under Sections 307 and 326 are non-compoundable offences. While committing offences, the petitioners/accused used lethal weapons like sword/knife, iron rod etc.  Pending investigation, the petitioners anyhow managed to enter into the compromise with the complainant but it would not sub-serve the purpose. In case compromise is accepted , it may result in cynical disregard of law, which would have serious impact on the society at large and the people may lose faith in the justice delivery system. In such circumstances, the very purpose and object of legislation about deterrent punishment would be frustrated.”

In such view of the matter, the Court dismissed the petition and directed the prosecution to proceed further with criminal proceedings registered against the petitioners. [Yogesh v. State of Maharashtra, 2019 SCC OnLine Bom 1039, decided on 13-06-2019]

Case BriefsHigh Courts

Bombay High Court: K.K. Sonawane, J., acquitted the appellant who was convicted by the trial court for offences punishable under Sections 307 (attempt to murder) and 353 (assault or criminal force to deter public servant from discharge of his duties) IPC.

Dramatic Incident

On the night of 21-02-2002, a function for the inauguration of Bhartiya Yuva Morcha’s branch office was underway. A sudden fight occurred at the spot following lewd and offensive comments passed by one Shivaji Mundhe against the leader who was inaugurating the office. The audience started thrashing him but the Police personnel deployed on duty intervened and rescued him from the clutched of the violent mob. They were about to take away Shivaji Mundhe in the police jeep when the appellant snatched the revolver of the Polic personnel driving the jeep and put it near his ear. Suddenly from the crowd, someone pulled back the appellant and before any further untoward incident could have occurred, the police took away Shivaji Mundhe.

Conviction

A case was registered and charges were framed against 17 accused for various offences under the Penal Code, the Prevention of Damage to Property Act, 1984 and the Arms Act, 1959. The Additional Sessions Judge acquitted accused 2-17 from all charges holding that the prosecution failed to prove offences against them beyond the reasonable doubt. The present appellant was also exonerated from all charges but two. He was held guilty for the offences punishable under Sections 307 and 353 IPC. Aggrieved thereby, the appellant invoked the remedy under Section 374(2) CrPC and preferred the present appeal.

Acquittal

The High Court perused the entire record. Discussing Section 307, the Court observed, “It is evident from the aforesaid provision that there must be an act which is itself sufficient of causing death.”

Relying on illustration (C) of Section 307, the Court observed, “in a case of attempt to cause death by fire arm, the arm must be fired and till it’s fire no offence of attempt to commit murder under Section 307 of the IPC is held to be taken place.”

It was clarified that, “the provisions of Section 307 of the IPC would apply to the situation, when there has not been merely a commencement of an execution of the purpose, but, something remains short of complete execution; the consummation being hindered by the circumstances, independent of the will of the author.” However, distinguishing the present case on facts, the Court held, “It is to be reiterated that till appellant used the weapon for firing, he cannot be blamed for the offence of attempt to commit murder. But, if he opened the fire and intervention of someone else prevented the shot from taking effect, the offence under Section 307 of the IPC would be held committed against the appellant. In such peculiar circumstances, in the present case, conviction of appellant under Section 307 of the IPC is not sustainable and deserves to be quashed and set aside.”

Furthermore, it was held, ” the appellant had no strain relations or animosity with the police personnels, nor they had come in contact with each other prior to the incident. The restive mob vented wrath against the miscreant PW-4 Shivaji Mundhe. There was no reason for the appellant to assault police constable for committing his murder. It is unsafe to fasten guilt on the appellant for the charge under Section 307 of the IPC.”

Regarding conviction of offence under Section 353 IPC, it was held that “there is no propriety to fasten the guilt under Section 353 of IPC against the sole appellant, when he has been absolved from the offence of unlawful assembly, rioting etc.”

Reversing the order of conviction passed against the Appellant Court, held that, “the act of
appellant flashing the revolver to the Police Personnels would not (by) itself (be) sufficient to constitute offence under Section 307 of the IPC against him.”

Holding as such, the Court allowed the appeal and acquitted the appellant. [Walmik v. State of Maharashtra, 2019 SCC OnLine Bom 449, decided on 28-02-2019]

Case BriefsSupreme Court

Supreme Court: On the issue relating to the power of compounding of offences conferred on a court under Section 320 Cr.P.C. and the powers conferred under Section 482 Cr.P.C. for quashing of criminal proceedings by the High Court, the 3-judge bench of Dr. AK Sikri, SA Nazeer and MR Shah, JJ has held that:

  1. the power conferred under Section 482 of the Code to quash the criminal proceedings for the non-compoundable offences under Section 320 of the Code can be exercised having overwhelmingly and predominantly the civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes and when the parties have resolved the entire dispute amongst themselves;
  2. such power is not to be exercised in those prosecutions which involved heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society;
  3. such power is not to be exercised for the offences under the special statutes like Prevention of Corruption Act or the offences committed by public servants while working in 24 capacity are not to be quashed merely on the basis of compromise between the victim and the offender;
  4. offences under Section 307 IPC and the Arms Act etc. would fall in the category of heinous and serious offences and therefore are to be treated as crime against the society and not against the individual alone, and therefore, the criminal proceedings for the offence under Section 307 IPC and/or the Arms Act etc. which have a serious impact on the society cannot be quashed in exercise of powers under Section 482 of the Code, on the ground that the parties have resolved their entire dispute amongst themselves. However, the High Court would not rest its decision merely because there is a mention of Section 307 IPC in the FIR or the charge is framed under this provision. It would be open to the High Court to examine as to whether incorporation of Section 307 IPC is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to framing the charge under Section 307 IPC. For this purpose, it would be open to the High Court to go by the nature of injury sustained, whether such injury is inflicted on the vital/delegate parts of the body, nature of weapons used etc. However, such an exercise by the High Court would be permissible only after the evidence is collected after investigation and the charge sheet is 25 filed/charge is framed and/or during the trial. Such exercise is not permissible when the matter is still under investigation.
  5. while exercising the power under Section 482 of the Code to quash the criminal proceedings in respect of non-compoundable offences, which are private in nature and do not have a serious impart on society, on the ground that there is a settlement/compromise between the victim and the offender, the High Court is required to consider the antecedents of the accused; the conduct of the accused, namely, whether the accused was absconding and why he was absconding, how he had managed with the complainant to enter into a compromise etc.

In the present case, the Bench was called upon to resolve the conflict between the verdicts in  Narinder Singh vs. State of Punjab (2014) 6 SCC 466 and State of Rajasthan vs. Shambhu Kewat (2014) 4 SCC 149. Elaborating upon the aforesaid judgments, the Court said:

“in the case of Shambhu Kewat (supra), this Court has noted the difference between the power of compounding of offences conferred on a court under Section 320 Cr.P.C. and the powers conferred under Section 482 Cr.P.C. for quashing of criminal proceedings by the High Court. In the said decision, this Court further observed that in compounding the offences, the power of a criminal court is circumscribed by the provisions contained in Section 320 Cr.P.C. and the court is guided solely and squarely thereby, while, on the other hand, the formation of opinion by the High Court for quashing a criminal proceedings or criminal complaint under Section 482 Cr.P.C. is guided by the material on record as to whether ends of justice would justify such exercise of power, although ultimate consequence may be acquittal or dismissal of indictment.”

After quoting Para 29 of the Narinder Singh Verdict, the Court said that the ultimate conclusion in paragraphs 29.6 and 29.7 of the decision of this Court in the case of Narinder Singh (supra) should be read harmoniously and to be read as a whole and in the circumstances stated in point number 4 above.

[State of Madhya Pradesh v. Laxmi Narayan, 2019 SCC OnLine SC 320, decided on 05.03.2019]

Case BriefsSupreme Court

Supreme Court: The bench comprising of DY Chandrachud and MR Shah, JJ set aside a Madhya Pradesh High Court order that had quashed the criminal proceedings for the offences under Sections 307, 294 read Section 34 of the IPC solely on the ground that the original Complainant and the accused have settled the dispute and said that the High Court had committed “a grave error” by doing so.

The Court took note of the fact that not only the aforementioned offences were non-compundable but also the allegations against the accused were “very serious” as allegedly the accused had fired twice on the complainant by a country­made pistol and that one of the accused persons was   reported to be a hardcore criminal having criminal antecedents.

The Court, hence, noticed:

“the   fact   remains   that   the accused   was   facing   the   criminal   proceedings   for   the   offences under Sections 307, 294 read with Section 34 of the IPC and that the   offences   under   these   sections   are   not   non­compoundable offences   and,   looking   to   the   serious   allegations   against   the accused,   we   are   of   the   opinion   that   the   High   Court   has committed a grave error in quashing the criminal proceedings for the offences under Sections 307, 294 read with Section 34 of the IPC solely on the ground that the original Complainant and the accused have settled the dispute.”

In a 2011 verdict, the Court had held that:

“despite any settlement between the Complainant on the one hand and the accused on the other, the criminal proceedings for the offences under Section 307 of the IPC cannot be quashed, as the offence   under   Section   307   is   a   non­compoundable   offence.”

Hence, setting aside the High Court order, the Court directed that the criminal case be proceeded further in accordance with law and on its own merits. [State of Madhya Pradesh v. Kalyan Singh, 2019 SCC OnLine SC 7, decided on 04.01.2019]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Sunil Gaur, J. quashed an FIR registered against the petitioners for an offence punishable under Section 307 IPC in light of the amicable resolution of dispute between the parties.

One of the petitioners was alleged to have given a knife blow on the left hip and right thigh to one Arjun. Another petitioner was alleged to have given a brick blow to him. Remaining two petitioners were bystanders. Injuries sustained by Arjun were opined to be simple in nature.

Jagdev Singh, Advocate moved the petition on behalf of the petitioners seeking to quash the FIR on the basis of compromise entered into between the parties as also on the ground that the misunderstanding which led to registration of the FIR stood clarified between the parties. The complainant and the injured present before the Court supported the submissions of the petitioners.

The High Court, at the outset, observed that the offence committed by the petitioners did not come within the ambit of Section 307. At best it could come within the purview of Section 325. Reference was made to Gian Singh v. State of Punjab, (2012) 10 SCC 303 wherein the Supreme Court had recognised the need for amicable resolution of disputes in cases like the present one. It was noted that the parties were from lower strata of society. Since the differences between the parties were amicably resolved, the misunderstanding stood clarified and in light of the compromise deed, the Court held that continuation of proceedings would be an exercise in futility. Therefore, the FIR and proceedings emanating therefrom were quashed. [Arun Mohan v. State (NCT of Delhi), 2018 SCC OnLine Del 13131, dated 18-12-2018]

Case BriefsHigh Courts

Karnataka High Court: A criminal petition was filed under Section 482 CrPC praying to set aside the order of trial Judge; wherein a Single Judge Bench comprising of K.N. Phaneendra, J. held that the trial Judge erred in convicting the petitioner under Section 307 IPC.

The petitioner was accused of inter alia, offence under Section 307. It was alleged by the complainant that the accused was driving a Scorpio car. When the complainant tried to stop the said vehicle, the accused drove the vehicle backwards and stopped thereafter. The accused was charge-sheeted for offence under Section 307. Learned counsel for the petitioner-accused submitted that the contents of the FIR do not show any material to attract the offence under Section 307 IPC.

The High Court perused Section 307 IPC and was of the opinion that in order to attract the provisions of Section 307, there must be intention or knowledge on part of the accused. In such circumstance, if that act of the accused caused death of the victim, he would have been guilty of murder; but if the person survives then the offence under Section 307 is made out. Also, irrespective of the injuries sustained by the party, there may be constitution of offence under Section 307 of IPC.

In the instant case, the Court found that, there was no allegation in the FIR to show that the complainant was behind the car when accused drove the vehicle backwards. Also none of the witnesses made any allegations that the accused tried to run the car over the complainant. The Court was of the view that there was no material to establish that the accused had any knowledge or intention to do away with the life of the complainant.

Accordingly, the petition was allowed and the proceedings against the petitioner under Section 307 IPC were quashed. [Faizal v. Mohamad Aris, Crl. Petition No. 6826 of 2017, order dated 5.12.2017]