A.P. Sahi, J. - (1.) THIS bail has been moved in Case Crime No. 43 of 2009. The allegation against the applicant is that he has committed the offence of rape on the victim Km. Shushma.
(2.) THE allegation in the F.I.R. is that at about 6.00 P.M. in the evening of 18.1.2009 when the victim had gone to the field to attend the call of nature, the applicant allegedly enticed away the victim. THE basis for this suspicion was that the applicant used to manage telephone calls at his friend's place where the victim also allegedly used to communicate with him. THE F.I.R. names 3 other persons, who allegedly helped the applicant in communicating with the victim on telephone. The F.I.R. was lodged after 3 days where after the investigation proceeded. The complainant's statement was recorded and later on the victim was allegedly recovered along with the applicant from the railway Station on 16.2.2009; the recovery memo is Annexure-4 to this Application. They were taken into custody and thereafter the statement of the victim was also recorded under Section 161, Cr.P.C. in which she has stated that the applicant used to eve tease the victim and the applicant also pressurised the victim to marry him. The statement further recites that with the help of 2 other friends, the applicant succeeded in eloping with the victim with the promise to marry her, and they travelled by Bus to Haryana from where they went to the State of Karnataka. During their stay together, the victim alleges that the applicant had intercourse with her. It is alleged that the applicant again returned by train to Baraut (U.P.) along with the victim whereafter both of them were apprehended. Learned counsel for the applicant contends that the victim is more than 18 years of age inasmuch as, her recorded date of birth in the High School Certificate is 5.6.1990. It is urged that she was a major and that she had accompanied the applicant voluntarily to several places. The medical report does not support the prosecution version as no injuries were found and that she was found habitual to sexual intercourse. Learned counsel contends that this is a clear case where the possibility of consent cannot be ruled out and since this has happened contrary to the wishes of parents of the victim, and they belong to different communities, that the applicant has been roped in this case.
(3.) CONSENT has been defined ordinarily as an assent by a person, whether a girl or a boy, who has attained the age of majority. It means to feel together and to be of the same mind. It is an agreement in sentiment to be at one and in accord. It reflects harmony and to act in sympathy with each other. It is voluntary accession or acquiescence to what another proposes or desires. It is in effect a concession where one concedes with concurrence and is presumed to have extended permission. The age of consent as understood under criminal law is the age fixed by law at which a person's consent to certain acts, for example marriage, sexual intercourse etc., is valid in law. The basis of such consent is founded on faith and agreement in feeling.;