JUDGMENT Ravindra Singh, J.
1. Heard Sri Pankaj Shukla, learned counsel for the applicant, Sri D. K. Diwan, learned counsel for the complainant and the learned A.G.A.
2. This applicati1on has been filed by the applicant with a prayer that the applicant may be released on bail during the pendency of the trial in Case Crime No. 470 of 2004 , under Sections 363, 366, 376 I.P.C. , police Station Kotwali District Mathura. The bail application filed by the applicant in the Sessions Court was rejected on 27.1 1.2004 by the learned Sessions Judge, Mathura.
3. The prosecution story, in brief, is that the Prosecutrix Km. Dipika, aged about 15 years was the student of High School. She used to go at the house of co-accused Om Prakash Sharma for the tuition. The applicant and Om Prakash Sharma were the tutors. On 13.7.2004, she had gone to the house of the applicant, but she did not return to her house, then the first informant Radhey Ballabh Chaturvedi, the father of the Prosecutrix, went to the house of the applicant, where they found the house of the applicant was locked Thereafter, the first informant and others were remained busy in searching. They were told by one Dwarika Nath Chaturvedi, Suresh Chandra Chaturvedi and Rakesh Chaturvedi that they had seen the Prosecutrix in the company of the applicant and two other co-accused persons on 13.7.2004 at about 6 P.M. when they were going towards the new bus stand then the first information became confident that the Prosecutrix was enticed away by the applicant and two other co-accused persons then the F.I.R. was lodged on 17.7.2004 under Sections 363 and 366 I.P.C. Thereafter, the Prosecutrix was recovered from the company of the applicant on 3.9.2004 from Jaipur. She was medically examined on 4.9.2004. In the supplementary medical examination report, she was found about 16 years of age. Her statement was recorded under Section 164 Cr.P.C. on 9.9.2004 in the court of learned ACJM-Ist, Mathura in which she made the specific allegation against the applicant that she was kidnapped by the applicant and she was raped by him against her Will and consent and she disclosed her age as 15 years.
4. It is contended by the learned counsel for the applicant that the Prosecutrix is a fully developed lady. She was having the love affairs with the applicant. During investigation, the Investigating Officer recovered a rote book of the Prosecutrix in which she has written the Shero Sairi. The Prosecutrix left her parents house with her free Will and consent and she moved from ore to another place in the company of the applicant. According to her statement recorded under Section 161 Cr.P.C., she disclosed her age as 16 years. She stated that she wanted to marry with the applicant. She along with the applicant went to Delhi where she stayed in hotel. Thereafter, she went to Gohati where she stayed for 10 days. Then she went to Calcutta where she stayed with the company of the applicant in a hotel. Thereafter, they went to Jaipur. She has solemnized her marriage with the applicant in a temple of Gohati and Calcutta. She has developed her physical relations with the applicant; with her free will and consent because she was having love affairs with the applicant. She alongwith the applicant was arrested by the police from Jaipur. The medical examination report shows that no injury was seen on her person. No spermatozoa was seen (dead or alive) in the report of the pathologist and no definite opinion about rape could be given. She was used to sexual intercourse. The Prosecutrix was a consenting party, so no offence is made out against the applicant.
5. The contention made by the learned counsel for the applicant is opposed by the learned A.G.A., learned counsel for the complainant by submitting that according to the school certificate, the Prosecutrix is a minor and her date of birth is 16.10.1979. She was below 15 years of age on the date of the alleged occurrence. In F.I.R., her date of birth is disclosed as 15 years and her statement under Section 161 Cr.P.C. was not fairly recorded by the Investigating Officer where her age has been shown as about 16 years and according to the medical examination report also, she was about 16 years of age. Her statement was recorded before this Court on 8.9.2004 in Habeas Corpus Petition No. 31586 of 2004, in which she disclosed her age as 15 years and expressed her. desire to go with her parents and she disclosed her age as 15 years in the statement recorded under Section 164 Cr.P.C. The Prosecutrix was enticed away by the applicant. She was kept at different places where she was raped . So the applicant is not entitled to be released on bail.
6. Considering the facts and circumstances of the case and the submissions made by the learned counsel for the applicant, learned A.G.A. and the learned counsel for the complainant and keeping in mind that the Prosecutrix was under 15 years of age according to the school certificate and she has stated before the learned Magistrate, who recorded her statement under Section 164 Cr.P.C. that she was aged about 15 years, she was kidnapped and raped by the applicant without her consent but under the coercion, even if, the Prosecutrix who was under 16 years of age was a consenting party , will not give any help to the applicant. It is not proper to express any opinion on the merits of the case but the applicant is not entitled to be released on bail.
7. Accordingly, this bail application is rejected.