JUDGMENT 1. - This appeal is directed against the judgment of Additional Sessions Judge, No. 1, Baran, dated 4th April 1981, convicting the accused appellant for offence under Section 376 IPC and sentenced him to undergo a term of four years rigorous imprisonment and a fine of L 200/-. In default of payment of fine to further under go two months rigorous imprisonment. 2. Briefly stating the facts that a report was lodged at Police Station Atru, Distt. Kota, by one Chhotulal on 24th September, 1980 at 9.00 p.m. wherein it was alleged by him that he had gone to his field in the day. At about 1.30 p.m. or 2.00 p.m. in the noon his mother called him at the residence, there he saw that his niece Mst. Ghisi was bleeding from her vagina and was weeping with pains. On asking she stated that Danmal Lohar, had taken her to his house while she was playing and he made her to bleed from the vagina. 3. On receipt of this report, a case for offence under Section 376 IPC was registered against the accused appellant and investigation commenced. Mst.Ghisi, aged about 4 years was medically examined by P.W.6, Dr. Sudarshan Dutta, who found following injuries on her person. (1) Abraison I "1/2 ' " over the 4th lumber vertebra; (2) Abrasion 1/4"X1/4" over the anus at its posterior part; (3) The paraneum is found red, swollen and tender on touch; (4) No blood or seminal stains are present on the clothes, genitals and any part of the body; (5) The hymen is not ruptured but found red and congested; (6) Rt. and Lt. labium minor are found red swell on and tender on tough; and (7) Fourchettee is found lacerated. 4. The Doctor has opined that the rape has been committed on the girl. The accused appellant was arrested. The accused-appellant was medically examined and it was found that he too was sexually potent and could be able to commit rape. His age was mentioned to be in between 16-17 years. After completing the investigation a charge-sheet was submitted in the Court of learned M.J.M. Atru and was transferred to the Court of learned Addl. Sessions, Judge, Baran, who had read over the charge for offence under S. 376 IPC to the accused-appellant latter pleaded not guilty to the charge and claimed to be tried. 5. After completing the investigation a charge-sheet was submitted in the Court of learned M.J.M. Atru and was transferred to the Court of learned Addl. Sessions, Judge, Baran, who had read over the charge for offence under S. 376 IPC to the accused-appellant latter pleaded not guilty to the charge and claimed to be tried. 5. The prosecution examined ten witnesses in support of its case.The accused-appellant denied the prosecution story. The trial Court held him guilty for offence under S. 376 IPC and convicted and sentenced the accused-appellant as indicated above. 6. It is contended by the learned Counsel for the appellant that the offence in this case does not proceed beyond Section 384 IPC as there is no evidence of committing sexual intercourse with the prosecutrix Mst. Ghisi. It is submitted that there is no eye witness to the occurrence and the prosecutrix herself in her examination in chief has stated that the accused made her to bleed through her vagina by inserting his finger. It is submitted that in the of any statement about sexual inter-course, the accused-appellant cannot be convicted for offence under Section 376 IPC. At best the offence would be under Section 354 IPC. Learned Public Prosecutor has supported the judgment of the trial Court. 7. I have gone through the entire evidence and considered the arguments made by the learned Counsel for the parties. I have also gone through the judgment of the trial-Court. The learned trial Judge, himself has observed in his judgment that there is no doubt that Mst. Ghisi, has not stated that there was any penetration of any organ in her vagina. He has also admitted that there is no other evidence in this respect, he however, on the basis of medical evidence alone came to the conclusion that it was a case of rape.P.W. 1 Shankar,is a neighbour who had seen the girl bleeding. In the beginning, he has only stated that the girl complained that accused Damnal, has done something to her as a result of which she is bleeding. P.W.2, Chhotulal, who has lodged the report also stated that his niece has stated the at accused Damnal has done bleeding in her vagina. Same is the statement of P.W.3, Smt. Kisturi, grand to other of the prosecutrix whew asked her immediately when she was brought to home. P.W.2, Chhotulal, who has lodged the report also stated that his niece has stated the at accused Damnal has done bleeding in her vagina. Same is the statement of P.W.3, Smt. Kisturi, grand to other of the prosecutrix whew asked her immediately when she was brought to home. P.W. 4 Ghisi,herself has stated that accused appellant Damnal got her vagina blend by his finger. This was her statement in examination in chief. It was not sought to he explained and to the same effect the statement of P. W 9, Mst. Ichhma Bai, the mother. She corroborates the statement of her daughter. She has stated that when she saw bleeding on the private part of' her daughter,she asked her how it bleed, on which she replied that accused-appellant Danmal made her bleeding through his Gnger.Thus, the evidence is to the effect that Danmal had done the Lingering and no sexual intercourse. The Doctor, however, has ruled-out the, theory of lingering because according to him leceration of fourchettee. This is the total evidence on record and in my opinion, in the absence of any evidence other than the Doctor, it would be too risky and venture-some to say that it is a case of sexual intercourse so as to bring the case within the ambit of Section 376 IPC. Neither the prosecutrix has given the least indication about it, nor there is any other evidence. The case of sexual intercourse is neither in the First Information Report nor it has been stated by the prosecutrix. On the contrary, when she was brought to home and her mother asked, she came out with the story that accused was doing fingering and there is no reason to disbelieve her mother's statement and that of the girl. The finding of the Trial Court that it could be because of the fact that the police might not be willing to call it a case of sexual intercourse. It is a perverse thinking, there was no question of not saying it for fear of reputation and the Doctor's statement alone, in my opinion, would not he sufficient to bring the case within the ambit of Section 376 IPC as the opinion of the Doctor is only of the corroborative nature.In this view of the matter, the after course would be to convict the accused-appellant for offence, under S. 356 IPC instead of Section 376 IPC. Regarding question of sentence, Section 354 IPC is punishable with imprisonment up to a period of two years and therefore, it is essential to reduce the sentence also. The accused- appellant is a boy of 17 years and has remained in jail for about a period of one year in my opinion, the sentence already under gone shall meet the ends of justices period of 13 years have elapsed since after the commission of crime and the accused -appellant is a boy of 17 years, who otherwise should have been given the benefit of Section 6 of the Probation of Offender's Act.The result of the aforesaid discussions is that the appeal is partly allowed. The conviction of accused appellant for offence under section 376 IPC is set-aside and he is convicted for offence under Section 354 IPC and his sentence is induced to the period already undergone. The accused-appellant Danmal is on bail and need not surrender his bail-bonds.Appeal Partly Allowed. *******