“Prosecutrix indulged in consensual sex with accused prior to incident of alleged rape:” Allahabad High Court grants bail to rape accused

The Allahabad High Court granted bail to a 22-year-old rape accused on Thursday, observing that the 17-year-old prosecutrix/ survivor had consensual sexual activity with the accused before the alleged incident of rape and was in a position to fully understand the nature and consequences of her actions
A single-judge Bench of Justice Mohd. Faiz Alam Khan placed reliance on the statements of prosecutrix under Section 161 and 164 of the Code of Criminal Procedure (CrPC) as well as the statement of the father of the prosecutrix to conclude that the applicant and prosecutrix were having an affair and had indulged in sexual activity 4 to 5 times before the alleged rape.
The Court further noted that there were material contradictions in the statement of the prosecutrix recorded under Sections 161 and 164 CrPC. as well as in her statement which was recorded while she was subjected to medical examination.
“The age of the prosecutrix is about 17 years and having regard to the fact that she was studying in D.N.M. Institute of Engineering, it could not be ruled out that she was possessing sufficient knowledge and was in a position to fully understand the nature and consequences of sexual activity,” the Court observed.
The Court passed the order in a bail application moved by the accused against whom a case was registered under Sections 363 (punishment for kidnapping) and 376 (rape) of the Indian Penal Code along with Sections 3 and 4 (penetrative sexual assault) of The Protection of Children from Sexual Offences Act (POCSO) Act, 2012.
The counsel dismissed the claim about his client’s possession of obscene photographs of the prosecutrix as being part of a false narrative. He informed the Court that when the police had seized the applicant’s mobile phone, they had found only three photos of the prosecutrix which were not obscene.
After hearing the parties, the Court observed that there were material contradictions in the two statements made by the prosecutrix. Noting that the prosecutrix had admitted to having consensual sexual relations with the applicant and that she was in a position to know the consequences of sexual activity, the Court decided to grant bail.

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