JUDGMENT Ravindra Singh, J.
1. Heard V.P. Srivastava learned counsel for the applicant, learned A.G.A and Sri V.M. Zaidi and Sri S.M.N. Abbas Abedi learned counsel for the complainant.
2. This application is filed by the applicant with a prayer that the applicant may be released on bail in case Crime No. 53 of 2005, under Sections 363, 366, 376, 504 and 506, I.P.C. P.S. Bhojpur, District Ghaziabad.
3. From the perusal of the record it appears that in the present case the F.I.R. was lodged by one Shafeeq, the father of the prosecutrix at P.S. Bhojpur district Ghaziabad on 21.5.2005 at 9.30 p.m. against the applicant and three other co-accused persons in respect of incident which had occurred on 15.5.2005 at 6.00 a.m. The distance of the police station was 12 km from the alleged place of occurrence.
4. It is contended by the leaned counsel for the applicant that in the present case te F.I.R. was lodged by the father of the prosecutrix Km Bhoori on 21.5.2005 at 9.30 p.m. which is delayed by 6 days. There is no plausible explanation of delay in lodging the F.I.R. It is further contended that the prosecutrix was consenting party. She wanted to marry with the applicant. She moved freely with the applicant from one place to other place without making any protest. It was known to the first informant and others also. Therefore, the F.I.R. was not promptly lodged , but subsequently, the F.I.R. was lodged on the information given by Mohd. Hasan the Pradhan of the village, which is after thought. The prosecutrix is a major lady. Even according to medical examination report the age of the prosecutrix is about 17 years. She did not receive any injury.
5. The hymen was old torn. Sex and sexual character are well developed. No definite opinion about rape could be given and in the present case during investigation the case was converted by the I.O. Under Section 504 and 506 I.P.C. It is further contended that the applicant and the prosecutrix were arrested by the police.. It is contended that after recovery of the prosecutrix her statement was recorded under Section 164 Cr. P. C. in which she has given a changed version and it was said that the rape was committed with her by the applicant and other co-accused persons on the pistol point, but she stated that the applicant wanted to marry with her and she was forcefully taken away by the applicant and other co-accused persons.
6. It is opposed by the learned A.G.A. and learned counsel for the complainant by submitting that even according to medical examination report the age of the prosecutrix is about 17 years. She was taken away by force by the applicant and other co-accused persons and at the pistol point and rape was committed with her. The age of the prosecutrix is below 18 years. In such circumstances she cannot be consenting party, the offence under Sections 363 and 366 I.P.C. is clearly made out. The offence under Section 376 I.P.C. is made out against the applicant because the prosecutrix has clearly stated in her statement recorded under Section 164 Cr. P. C. that the rape was committed with her by the applicant and other co-accused persons at the pistol point. It is further contended that in such matters the delay in lodging the F.I.R. is natural.
7. Considering all the facts and circumstances of the case and submissions made by the learned counsel for the applicant, learned A.G.A. and without expressing any opinion on the merits of the case, the applicant is entitled for bail.
8. Let the applicant Nadeem involved in case crime No. 53 of 2005, under Sections 363, 366, 376 I.P.C., P.S. Bhojpur, District Ghaziabad be enlarged on bail on his furnishing a personal bonds and two sureties each of the like amount to the satisfaction of the court concerned.