- (1.) SHIV Shanker, J. This is the first bail application moved on behalf of applicant Sunil, son of Sri Vir Singh in case crime No. 170/2006, under Sections 376, 506 I. P. C. P. S. Masuri, district Ghaziabad.
(2.) BRIEFLY the prosecution case, according to the F. I. R. , is that the Prosecutrix Km. Mamta, aged about 14 years informed her father on 8-7-2006 that she had gone at the flour machine of present applicant Sunil about six months ago. She was forcibly taken by him in his room at about 11 a. m. He committed rape with her on the point of country made pistol. She became un-conscious for about one hour. Thereafter she reached at her house but she could not dare to disclose this fact to her parents. About three months ago, she was also going in the same way and she was stopped by the applicant Sunil and tried to take her in his house. Anyhow, she escaped and reached at her house. At that time, he alongwith his brother Praveen and father came at her house, when none was present there except her and at the same time she was threatened not to disclose the facts of rape. Consequently she was terrorized and the present applicant had committed rape with her several times when she was alone, consequently she became pregnant. About 20 days ago of the alleged occurrence, she had gone to ease and at that time there was darkness. There again she was also threatened by showing country made pistol by the present applicant and his brother Praveen by saying the act of miss-carriage to her. Thereafter this fact was taken in the knowledge of her parents, upon which it was complained at the house of applicant but he himself caused injuries on his mouth for implicating parents of the victim. Thereafter the F. I. R. was lodged on 11-7-2006 at 11 p. m. against the accused persons. Heard learned Counsel for the applicant and learned A. G. A. as well as perused the whole record. It is contended by learned Counsel for the applicant that she was found aged about 17 years according to medical report. Therefore, she may be above 18 years. She is major lady and she was having 32 weeks of pregnancy. It is further contended that she gave birth of a child on 20-8-2006. It is further contended that the incident has been shown about 6 months ago in the statement of prosecutrix recorded under Section 161 Cr. P. C. while this incident has been shown in the statement recorded under Section 164 Cr. P. C. three months ago. Therefore, she may be consenting party.
(3.) HOWEVER, learned A. G. A. has opposed the prayer for bail by stating that he committed offence of rape with minor girl. It has been mentioned in the F. I. R. that she was being threatened several times not to disclose the fact of sexual intercourse to anybody after showing country made pistol. Certificate of Mahanand Mission Primary Pathshala, Ghaziabad has been produced in this bail application which reveals that her date of birth is shown as 7-5-1993. This incident had allegedly taken place before 3 or 6 months from 8-7-2006. Therefore, she was under the age of 14 years at the time of alleged occurrence. Although medical report of the prosecutrix reveals that she was found aged about 17 years at the time of alleged occurrence. It is worthwhile to mention here that she was student of class III according to the above school certificate, on that basis, the age under 14 years is more reliable and it is not liable to be deemed that she was got admitted in class I at the age of 14 years. It is also worthwhile to mention here that preference will be given to the educational certificate regarding her age in comparison of medical report. According to the statement of prosecutrix also either under Section 161 Cr. P. C. or 164 Cr. P. C. she has specifically stated that the applicant has committed offence of rape several times, but no any report was lodged due to several times threatening. At the most it can be stated that she was the consenting party. However, consent of the prosecutrix under the age of 16 years is immaterial. It appears that she is below the age of 14 years at the time of alleged occurrence according to the Educational certificate. The present applicant committed rape several times by giving threats is not to lodge any F. I. R. against him and out of their wedlock, a child was born. It is worthwhile to mention here that it not a case on behalf of applicant that he has married with prosecutrix. Therefore, this shows that he has spoiled the life of prosecutrix who is unmarried woman. In such circumstances, there is no force in the arguments advanced by learned Counsel appearing on behalf of applicant and prima facie case of rape is made out against the present applicant. Therefore, the bail application of present applicant is not liable to be allowed.;