JUDGMENT 1. - This is an appeal from jail by the accused-appellant. Jagdish who has been convicted and sentenced by the learned Additional Sessions Judge, Jhalawar, under Sections 376, IPC to five years rigorous imprisonment and a fine of Rs. 500/- in default of payment of fine to a further simple imprisonment for six months. He was also convicted under Section 451, IPC and sentenced to rigorous imprisonment for one year. Both the sentences were ordered to run concurrently. 2. The prosecution story, in brief is that on 11-3-1975, at about 2 p. m. an FIR was lodged by P.W. 2 Mst. Bajrangi, the mother of the prosecutrix, at the Police Station Bhawanimandi. Mst. Bajrangi, P.W. 2 and her husband P.W./1 Ram Dayal had gone to the market for purchasing the grain. The prosecutrix Mst. Dropadi, aged 9 years, was at the house with her 11/2 years old sister when Mst. Bajarangi returned home at about 11.30 a. m. she found Mst. Dropadi weeping while standing in the vaerandah. On being asked the prosecutrix told that the accused Jagdish, visited the house in her absence. He took her inside the house, threw her on the floor, unbuttoned his pants, put his penis over her private parts and pushed the penis into her vagina. It caused pain inside her private parts and blood started coming out. After committing sexual intercourse, the accused removed himself and washed the blood-stained floor with water. Mst. Bajrangi immediately went to the market along with Mst. Dropadi and apprised her husband about what had happened. Thereafter, FIR was lodged. The police registered a case under Section 376 and 448, IPC against the accused-appellant. 3. On behalf of the accused-appellant, it was contended that from the statement of Mst. Dropadi herself no offence under Section 376, IPC is made out. At best, a case under section 376/511, IPC is made out, but in that case the quantum, of sentence shall have to be reduced. It was further contended that on general examination blood was found on the inner aspect of the thigh, external genetalia and perineum. There was greyish white stains (doubtful for semen) on libia majora. There was lacerated wound 1/2" long having skin and fascia depth and gapping to 1/4" on strehching situated on the perineum. It was further contended that on general examination blood was found on the inner aspect of the thigh, external genetalia and perineum. There was greyish white stains (doubtful for semen) on libia majora. There was lacerated wound 1/2" long having skin and fascia depth and gapping to 1/4" on strehching situated on the perineum. Upper end of this wound continuous into the vagina on the posterior surface, Vaginal wall consists of lacerated wound 3/4" X 1/4" X 1/4". This wound was bleeding edges and margins were red and swollen. Hymen was lacerated into multiple small tags and were red, swollen and bleeding on-touch. There was a bruise 1/4"x 1/4"on the left upper side of the urethra red in colour. There was swelling on whole of the external genitalia accompanied by pain and tenderness. According to the Medical Officer the duration of the above injuries was less than 24 hours and the process of healing and pus formation had not started. On X-ray examination the age of Mst. Dropadi was found to be below 9 years. 4. The learned counsel for the accused-appellant however, contended that from the statement of the prosecutrix it has not been established that penetration had taken place. It was contended that she has stated that blood started coming out from the private parts as a result of fingering done by the accused. The learned counsel for the accused-appellant strenuously argued that the prosecutrix has not stated that the accused had opened his 'chaddi' and then put his penis on her private parts and caused penetration. It was also contended that at best the offence made out against the accused-appellant is under Section 376/511, IPC. It was also contended that the accused and Ramdayal took liquor on the day of occurrence in the morning, and this offence must have been committed by the accused while he was in intoxication. It was further contended that the accused-appellant has been a victim of the influence of liquor. It was, therefore, prayed that the accused-appellant prays for mercy. 5. Dr. S.K. Tiwari, Advocate General, was heard. He did not seriously challenge the indulgence of leniency being extended to the accused-appellant so far as the quantum of sentence is concerned. He also did not seriously suppose that the offence as alleged by the facts and circumstances of the case, falls within the purview of Section 376/511, IPC. The statement of Mst. S.K. Tiwari, Advocate General, was heard. He did not seriously challenge the indulgence of leniency being extended to the accused-appellant so far as the quantum of sentence is concerned. He also did not seriously suppose that the offence as alleged by the facts and circumstances of the case, falls within the purview of Section 376/511, IPC. The statement of Mst. Dropadi has been carefully examined. At the time of the alleged commission of the offence no one was present in the house. Mst. Dropadi has stated that the accused fell on her and opened the buttons of his pants. She has not mentioned that the accused removed his 'chaddi'. She has further stated that the accused started fingering in the private parts as a result of which the blood started to come out. Mst. Dropadi has not stated that the accused pressed his penis into her vagina and had caused penetration. 6. There is ample evidence on record that the accused did enter the house of Mst. Bajrangi and took Mst. Dropadi inside the house. Thus, the offence under Section 451, IPC is fully established. 7. As regards the offence under Section 375, IPC, I am inclined to hold that She offence under Section 376/511, IPC is fully established against the accused-appellant 8. The statement of Mst. Dropadi fully establishes that the accused-appellant fell on her, and opened the buttons of her pants. 9. For the reasons stated above, the appeal filed by the accused-appellant deserves to be partly allowed. His conviction and sentence under Section 451, IPC are hereby sustained and confirmed, and his conviction under Section 376, IPC is altered to one under Section 376/511, IPC. The sentence of five years rigorous imprisonment and fine of Rs. 500/- would be altered to three years rigorous imprisonment and a tine of Rs. 500/- and in default of payment of fine to suffer a further rigorous imprisonment for three months. Both the sentences would run concurrently. 10. The accused-appellant and the jail authorities be informed accordingly. *******