JUDGMENT Ravindra Singh, J.
1. Heard Sri Chandra Jeet Singh Yadav learned counsel for the applicant and learned A.G.A.
2. This application is filed by the applicant Champat with a prayer that he may be released on bail in case Crime No. 85 of 2005, under Sections 342, 366 and 376 I.P.C. P.S. Musajhag, District Budaun. "
3. From the perusal of the record it appears that in the present case the F.I.R. was lodged by one Sri Raja Ram at P.S. Musajhag, District Budaun on 6.4.2005 at 5.00 p.m. against the applicant in respect of the incident which had occurred on 27.2.2005 at about 7.00 p.m. In the vicinity of village Bhair Nagla. The distance of the police station was 4 km. From the place of the occurrence. The F.I.R. was lodged against the applicant and six other persons.
4. According to prosecution version on 27.2.2005 at 7.00 p.m. The prosecutrix Km Santosh Kumari aged about 11 years had gone to attend the call of nature to a jungle, out side the village. She did not came back. The search was made but she could not be traced out. It was informed by some persons that she was kidnapped by co-accused Chandra Pal, Bheem, Pan Singh and Bhoorey because the prosecutrix was seen in their company. Thereafter, the first informant the father of the prosecutrix made a request to co-accused Pan Singh to return her daughter. He had given an assurance of her return within two or four days. He extended a threat for not taking any legal action against him. He was told that accused persons wanted to marry the prosecutrix with the applicant. Subsequently, the first informant came to know that the applicant had taken away the prosecutrix. The prosecutrix was recovered, but the applicant ran away from the alleged place of the occurrence. According to medical examination report the prosecutrix was found aged about 14 to 15 years and no definite opinion about rape could be given and no injury was seen on the person of the prosecutrix. The statement of the prosecutrix was recorded under Section 161 Cr. P. C. in which she stated that some false charges were made upon her by her brother Rakesh so she left the house of her parents. She met a person who disclosed his name Pan Singh and she disclosed the fact that she had left her parent's house. He took initiative and after persuation the prosecutrix was handed over to her father and brother. Thereafter, she was beaten by her brother.Balveer Singh and others. Then she thought that she would be murdered by her family members therefore she left the house in the night and reached at the applicant's house, where two persons namely Yashpal and Om also came, who stated that the applicant is unmarried so perform the marriage with him. Thereafter at the saying of Chadrapal and Bheem, the prosecutrix was taken by the applicant and moved from one place to another. The applicant had committed rape in a field of wheat on the third day of her arrival thereafter the rape was committed regularly wherever she was taken. On the day of her recovery she was brought by the applicant to his home from there was taken to Budaun to perform the court marriage but when they were waiting for any vehicle the father, brother and other were seen, then the applicant ran away leaving the prosecutrix there. Thereafter the F.I.R. was lodged by the prosecutrix and disclosed her age as 11 years and stated that the applicant committed rape without her will. It is contended by the counsel for the applicant that even according to statement of the prosecution she was not kidnapped by the applicant she herself went at the house of the applicant. Thereafter she became the consenting party the prosecutrix was a girl of bad character. That is why her father and brother having the objection against her and the F.I.R. was lodged by her father which is too much delayed. It shows that the prosecutrix was consenting party.
5. It is opposed by learned A.G.A. by submitting that the prosecution is minor. According to medical examination report also her age is about of 14 -15 years and according to her statement the rape was committed by the applicant with her without her free will and consent.
6. Considering all the facts and circumstances of the case and the statement of the prosecutrix recorded under Section 161 Cr. P. C. by which the prosecutrix was not kidnapped by the applicant and she herself left the house of her parents and reached to the house of the applicant, but she was raped by the applicant regularly for a considerable period and the applicant wanted to marry with her. According to the medical examination report the age of the prosecutrix is about of 14-15 years it has not been rebutted by the applicant in his bail applicant, even no ground has been taken to show that the prosecutrix was a major girl of 18 years or above. In such age of the prosecutrix her consent and free will has no importance. Without expressing any opinion on the merits of the case, the applicant is not entitled for bail, at this stage.
7. Accordingly, the bail application is rejected at this stage.