The central legal point established in the judgment is the interpretation and application of Section 376 of the Indian Penal Code, especially Clause sixthly, regarding the definition of rape and the exception for sexual intercourse by a man with his own wife.

JUDGMENT

H.S. Bedi, J. (Oral) - The prosecutron story in brief as given out by Ram Chander - the father of the prosecutrix Goga - PW 7 was that he was a Banjara by caste and was originally a resident of village Nagaur (Rajasthan). As this vocation was to keep goats etc. he used to move about in different villages from day to day. On 7th June, 1985, he had pitched his tents in the area of village Dobh, where he and his family consisting of six children and his wife including the prosecutrix Goga aged about 12 years also stayed with him. The accused Krishan and the son of Ram Chander were friends and accordingly, they both became Dharam Bhai and the accused often used to visit the dera of Ram Chander. On 7th June, 1985, while Ram Chander had gone to village Dinod to attend a marriage in the family and PW-6 Kela his wife, had gone to a brick kiln in Dobh, to sell milk and Goga who had gone to purchase sugar and tea from the village shop and was returning therefrom, the accused met her on the way and asked to accompany him to Rohtak, where they would see a movie and thereafter would return from there. Goga and the accused Krishan then went to Rohtak, but though no movie was shown to Goga, the accused asked to her to accompany to some other place. The accused, accordingly, took her to village Sunarian and stayed in the house of his brother Ram Chander, where they slept on the roof of the house and during the night the accused committed rape upon her. On the next day, both the accused and Goga the prosecutrix went to Jhajjar, where some clothes were got stitched for Goga by the accused. They then went from place to place, during the course of which the accused committed rape on Goga frequently. Earlier on 7th June, 1985, when Goga did not return to the dera, her uncle Nahnu, went to village Dinod to inform Ram Chander that his daughter had disappeared. Ram Chander, accordingly, came to the dera and started searching for Goga, but when he could not trace her went to the Police Station and lodged the report Ex. PE on 11th June, 1985. The investigation was accordingly, taken up by S.I. Jai Narain (PW 10), who went to the spot and recorded the statements of Nahnu and Kela the uncle and mother of Goga. He also made an effort to search for the accused and Goga, though without success. On 18th June, 1985, Ram Chander along circumstances with Goga came to the Police Station and produced Salwar, Jumper and brassier that Goga had worn and the same were taken into possession. She was taken to the Civil Hospital, Rohtak, where she was medico-legally examined by Dr. Indu Lalit, who found that there was no external mark of injury of any part of the body and that she had been subjected to sexual intercourse. On 19th June, 1986, Goga was taken to Civil Hospital once again for her x-ray examination so as to determine her age, but the x-ray was ultimately taken on 21st June, 1985, by Dr. V.K. Sharma PW 12 and Dr. Arun Garg PW 11, who also conducted an ossification test on her and opined that she was between 9 years and 12 years of age. The accused was arrested on 7th September, 1985 when he was produced before ASI Pratap Singh PW 9 by his brother Chander. He too was got medico-legally examined from Dr. K.K. Chawla PW 3, who in his report Ex. PC opined that the accused was capable of performing sexual intercourse. After completion of the investigation, the accused was challaned for offences punishable under Sections 366/376 of the Indian Penal Code and as he pleaded not guilty to the charge, he was brought to trial.

2. In support of its case, the prosecution examined PW 1 Dr. Indu Lalit, PW 2 Dr. S.S. Sriwastava, PW 3 Dr. K.K. Chawla, the three injured witnesses that is PW 5 Ram Chander, PW 6 Kela and PW 7 Goga the prosecutrix, PW 11 Dr. Arun Garg, and PW 12 Dr. V.K. Sharma and also produced the other formal evidence in Court.

3. The accused when examined under Section 313 of the Code of Criminal Procedure, denied all the prosecution allegations and pl