M. B. SHARMA, J.

( 1 ) THE accused appellant has been convicted by the learned Additional Sessions Judge, Jhalawar under his judgment dated December 19, 1986 under section 376 I. P. C. and has been sentenced for the said offence to undergo seven years rigorous imprisonment and to pay a fine of Rs. 500/ -. In default of payment of fine to further undergo six monthst rigorous imprisonment. The accused has further been convicted for offence under section 341 I. P. C. and has been sentenced to undergo 15 days rigorous imprisonment.

( 2 ) THE case of the prosecution is that Shamshad Begum is a girl aged about 12 years. She is the daughter of Shabbir Ali (P. W. 2) and Smt. Jamila (P. W. 3 ). On February 3, 1985 Shamshad Begum (P. W. 1) had gone at about 10. 00 a. m. to the Jungle to graze a she buffalo. It is alleged that the accused appellant along with one other person arrived there. The accused appellant felled her on the ground and caught her by both hands and his companion committed rape on her. Then the companion caught hold of Shamshad Begum by her hands and the accused appellant is said to have committed sexual intercourse. Shamshad Begum was left by the accused appellant himself, at her house and it is alleged that she narrated the incident to her mother Smt. Jamila (P. W. 3) that the accused had ravished her. Shri Shabbir Ali (P. W. 2), father of Shamshad Begum, was not present in the house at that time: and he was called. There was bleeding from the vagina of Shamshad Begum his daughter. Shri Shabbir Ali first called some Vaidhya in the village but he said that it is not possible for him to treat Shamshad Begum. She was taken to the general hospital at Jhalawar, where Dr. Chandra Prakash Barla (P. W. 6), the then Medical Jurist examined Shamshad Begum and he reported that except the bleeding from vagina there was no other injury on her person. For further examination it was necessary to administer anaethesia but her father refused and therefore, further internal examination could not be done. Dr. Chandra Prakash (P. W. 6) in the absence of internal examination of the vagina was not in a position to give any opinion in respect of sexual intercourses, which is said to have been committed with Shamshad Begum. Dr. Smt. Pushpa Gupta (P. W. 10) was also present and she was also of the same opinion. It was only on February 7, 1985 that Dr. Smt. Pushpa Gupta (P. W. 10) examined Shams had Begum and she found that there was bleeding. She examined her under general anaethesia and found that there was no injury on her body and even on her private parts. She noticed the following injury: A linear tear about 3 in length 21/2 in depth on left lateral vaginal wall 1/2 inside the hymen. It was bleeding. Four catgut stitches were applied. Slough was present on the wound which was cleaned. The Salwar of Shamshad Begum (P. W. 1) as well as the vaginal swab, smear etc. were sent for chemical examination and the Chemical Examiner in his report (Ex. P. 21) found that there was human semen on the Salwar and two Chadhies, whereas in vaginal swab or in the Dupti of Shamshad Begum there was no human semen.

( 3 ) AFTER investigation, a charge-sheet was filed against the accused appellant and one Kajar. The learned Additional Sessions Judge only framed charge against the accused appellant under section 376 and 341 I. P. C. and discharged the other co-accused Kajar under his order dated December 19, 1985. As already stated earlier the accused appellant was convicted as aforesaid.

( 4 ) I have heard Amicus Curiae and have gone through the record of the case. The contention of learned Amicus Curiae is that the F. I. R. was lodged by Shabbir Ali, father of Shamshad Begum (P. W. 1), after, talking to Shamshad Begum in which it was not stated that the accused appellant committed sexual intercourse with her. According to the learned counsel, it was only a later development in the statement in the Court that the appellant committed rape of Shamsh