JUDGMENT : JOYMALYA BAGCHI, J. 1. The appeal is directed against the judgment and order dated 9th March/13th March, 2018 passed by the learned Additional Sessions Judge, 2nd Court, Alipore, South 24-Parganas in Special S.T. No. 05 (09) 15 [Special Case No. 153/15] convicting the appellant for commission of offence punishable under Section 4 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as POCSO Act) and under Section 376 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for ten years and to pay fine of Rs. 1,00,000/-, in default, to suffer simple imprisonment for one year. Fifty percent of the fine amount, if realised, is directed to be paid to the victim child. No separate sentence was awarded for commission of offence under Section 376 of the Indian Penal Code. 2. The prosecution case as alleged against the appellant is to the effect that on 14th May, 2015 at about 4:30 P.M. the victim returned home crying and alleged that the appellant, a neighbour, whom she referred to as Karim chacha had called her to his room and thereafter had taken off her clothes, touched her private parts and ravished her. PW2, mother of the victim took her daughter to the police station and on the statement of P.W.2, Garfa Police Station Case No. 140 of 2015 dated 14th May, 2015 under Sections 4/8 of the POCSO Act and under Section 376 of the Indian Penal Code was registered for investigation. The victim was medically treated and her statement was recorded under Section 164 of the Code of Criminal Procedure. In conclusion of investigation, charge-sheet was filed against the appellant. Charges were framed under Section 4 of the POCSO Act and under Section 376 of the Indian Penal Code. The appellant pleaded not guilty and claimed to be tried. In the course of trial, prosecution examined 8 witnesses and exhibited a number of documents. The defence of the appellant was one of innocence and false implication. He however, did not adduce any evidence to improbabilise the prosecution case or rebut the statutory presumption under Section 29 of the POCSO Act. In conclusion of trial, the trial Judge by the impugned judgment and order dated 9th March/13th March, 2018 convicted and sentenced the appellant, as aforesaid. 3. Mr. He however, did not adduce any evidence to improbabilise the prosecution case or rebut the statutory presumption under Section 29 of the POCSO Act. In conclusion of trial, the trial Judge by the impugned judgment and order dated 9th March/13th March, 2018 convicted and sentenced the appellant, as aforesaid. 3. Mr. Arindam Jana, learned advocate appearing for the appellant argued that the version of the victim suffers from inherent contradictions and/or improbabilities. There are contradictions in the depositions of the victim and her mother with regard to the genesis of the incident. Her brother and father who are vital for the unfolding the prosecution case have not been examined. PW2 deposed that she lodged a written complaint at the police station in the instant case whereas FIR was registered on her oral complaint. It is further argued that there is divergence between the medical reports prepared by PW5 & 7, doctors who treated the victim. PW7 categorically stated that the victim was not subjected to sexual intercourse. Hence, the appeal is liable to be allowed. 4. On the other hand, learned advocate appearing for the State submitted that the evidence of PW1 is clear and convincing. Her version had been corroborated by PW2, her mother. Local witnesses namely, PW3 & 4 also corroborate the allegation of forcible rape upon the victim. PW5, doctor who examined the victim immediately after the incident found her hymen was ruptured and tenderness in her private parts. PW7 examined the victim about 3 weeks after the incident and no importance ought to be given to such medical report. Hence, the appeal is liable to be dismissed. 5. Pw1 is the victim and the most vital witness in the instant case. She is a girl aged around 11 years. She was a student of Kalikapur Junior High School. She deposed in the evening she was playing with her brother. Karim chacha called her saying that he would give her a toy for her brother. Initially she did not go with him but when he is called her again she went with him. He pulled her hands and she ran away and went to the bathroom. Karim took her from the bathroom to his house. He took off her wearing apparels by showing a knife and raped her. He threatened that he would kill her as well as her mother. She sustained pain in her abdomen. He pulled her hands and she ran away and went to the bathroom. Karim took her from the bathroom to his house. He took off her wearing apparels by showing a knife and raped her. He threatened that he would kill her as well as her mother. She sustained pain in her abdomen. She told the incident to her parents. She also told the incident to the doctor and police. She proved her signature on her statements recorded before the learned Magistrate. 6. In cross-examination she stated that she went with her parents to the police station at about 5.00P.M. Then went to the hospital at about 6.00P.M. They returned to house about 7.00P.M. 7. Pw2 is the mother of the victim. She deposed her daughter was playing with her brother on 14th May, 2015 at about 4.00P.M. At that time, she was serving food to her husband. Karim called her daughter. Thereafter her daughter came to her house and stated that she would go to the bathroom. Her daughter went to the bathroom. Since her daughter did not return from the bathroom, she went near the bathroom and found the door of the bathroom open. She shouted for her daughter. Then she found her daughter returning from the house of Karim. She was shivering and looked frightened. When she inquired, her daughter remained silent. She slapped her and took her to the house. Then her daughter narrated the incident to her. They went to the house of Karim and found that he was preparing tea in his verandah. Her husband slapped Karim once or twice. Brother-in-law of Karim advised him to run away. She found blood stains in the private parts of her daughter. She went to the police station and then to the hospital. After returning from the hospital she lodged written complaint. She gave consent for the medical examination of her daughter. She put her signature on the statement of her daughter recorded before the learned Magistrate. Police recorded her statement when she lodged written complaint. 8. In cross-examination, she deposed that police did not interrogate her elder daughter as she went for her tuition at that time. 9. Pw3 and PW4 are local people. They are post occurrence witnesses. 10. Pw3 deposed that he saw Jogilal, father of the victim was assaulting Karim. Karim ran away. Police recorded her statement when she lodged written complaint. 8. In cross-examination, she deposed that police did not interrogate her elder daughter as she went for her tuition at that time. 9. Pw3 and PW4 are local people. They are post occurrence witnesses. 10. Pw3 deposed that he saw Jogilal, father of the victim was assaulting Karim. Karim ran away. P.W.s 3 and 4 were informed by the parents of the victim about the incident, Karim ran away. 11. Pw5, Dr. Somen Mondal was a medical officer attached to S.S.K.M. Hospital. On 14th May, 2015 at about 16.30 hrs. he examined the victim and noted as follows : 1. She did not attend menarehe till the date of her medical examination by me. 2. On general examination, she was found to be conscious, pulse-90 per minute, BP-110/64, Palor - mild. 3. There was a small abrasion over her right chin which was allegedly done by the accused person. No other cut mark or mark of abrasion was found. 4. On local examination, no cut mark, no abrasion, no foreign body was found. 5. Her hymen appeared to be ruptured. No bleeding per vagina was present. Tenderness present. 12. He proved the written complaint (Exbt.-3/1). He opined that the victim might have been sexually assaulted. 13. Pw7, Dr. Tapan Kanti Roy is another medical officer who examined the victim on 6th July, 2015 opined as follows: - 1. Her labia majora and minora were at developing stage. 2. Her hymen was intact. 14. In my opinion, the said girl was not subjected to sexual intercourse. No veneral disease was detected. 15. He proved the report (Exbt. 6) and signature thereon (Exbt. 6/1). 16. Pw6, Sabita Ghosh Roy Chowdhury, who was posted as L.S.I. at New Alipore Police Station reduced the complaint made by PW1 into writing. She proved the written complaint (Exbt. 4/1) and signature thereon (Exbt. 4/2). 17. Pw8, Ratnangshu Mondal is the Investigating Officer in the instant case. He deposed that he prepared rough sketch map of the place of occurrence with index (Exbt.-7). He recorded the statement of the witnesses. He sent the victim for medical examination at S.S.K.M. Hospital. He collected the medical report of the victim. He sent the victim to the Court for recording her statement under Section 164 of the Code of Criminal Procedure. He recorded the statement of the witnesses. He sent the victim for medical examination at S.S.K.M. Hospital. He collected the medical report of the victim. He sent the victim to the Court for recording her statement under Section 164 of the Code of Criminal Procedure. He arrested the accused from a place under Bhadreswar Police Station. He collected the medical report of the accused (Exbt.-9). He took photographs of the place of occurrence. On completion of investigation, he submitted charge-sheet. 18. From the evidence on record particularly that of P.Ws.1 and 2 it appears that the victim, a school going child aged about 11 years, was called by the appellant to come to his room on the lure that he would give her a toy. Initially she was unwilling but thereafter she followed him. When the appellant pulled her hands, she ran away and went to the bathroom. The appellant again took her from the bathroom to his room and ravished her. She came out of the room in a frightened and trembling condition. Initially the victim could not respond to the queries from her mother. Her mother slapped her. Then she narrated the unfortunate incident to her mother. It has been argued that there is variance with regard to the genesis of the incident as narrated by P.Ws.1 and 2 and the vital witnesses, e.g. brother and father of the victim had not been examined. 19. I have analysed the evidence of the aforesaid witnesses in extenso. I find that their versions are substantially corroborative of one another. Apart from a minor variation, whether the victim had come inside the house prior to going to the bathroom, there is no contradiction in their respective versions. Prosecution case is well established through the evidence of the aforesaid witnesses. Hence, non-examination of the brother and father of the victim, in my considered opinion, does not affect the unfolding of the prosecution case. 20. It is trite law that quality and not quantity of evidence are relevant to test the authenticity and veracity of the prosecution case. As I am convinced with regard to the truthfulness of the versions of P.Ws.1 and 2, further corroboration from the brother or the father of the victim is unnecessary. On the other hand, the versions of P.Ws.1 and 2 find corroboration from independent sources. As I am convinced with regard to the truthfulness of the versions of P.Ws.1 and 2, further corroboration from the brother or the father of the victim is unnecessary. On the other hand, the versions of P.Ws.1 and 2 find corroboration from independent sources. P.Ws.3 and 4 are the neighbours who upon hearing hue and cry rushed to the spot and PW3 noted that the appellant was being assaulted by the father of the victim. When he queried about the reason of assault, the parents narrated the incident of rape to him. Thereafter the appellant ran away. PW 4 was also narrated the incident of rape immediately after the occurrence. 21. It has been argued that brother-in-law of the appellant was present at the house at the time of occurrence improbabilising the prosecution case. I am unable to accept such contention raised on behalf of the appellant. From the cross-examination of PW2 it appears that brother-in-law is a post occurrence witness who advised the appellant to run away when he was being assaulted by the father of the victim after the incident. Hence, I am of the opinion that the brother-in-law had come to the spot after the occurrence and there is nothing on record to show that he was present in the room when the incident occurred. 22. It has been emphatically argued that the medical evidence does not support the prosecution case. It has been contended that PW5 did not give any firm opinion that the victim had been subjected to sexual assault while PW7 ruled out any case of sexual intercourse. I find that PW7 had examined the victim on 6th July, 2015 i.e. about three weeks from the date of occurrence. On the other hand, PW5 had examined the victim on the date of occurrence and noted that her hymen may have been ruptured and there was tenderness in her private parts. 23. Medical evidence is the nature of opinion on evidence and it is open to the court to accept the one which is a more reliable one. When the opinion of a medical witness is contradicted by another, the court should accept the opinion which corroborates the direct evidence in the case [see Piara Singh & others vs. State of Punjab, (1977) 4 SCC 452 (para 5 & 6)]. When the opinion of a medical witness is contradicted by another, the court should accept the opinion which corroborates the direct evidence in the case [see Piara Singh & others vs. State of Punjab, (1977) 4 SCC 452 (para 5 & 6)]. In view of the fact that P.W. 5 examined the victim immediately after the incident and his opinion corroborates the version of the victim, I am inclined to accept his opinion instead of P.W.7 who examined the victim about 3 weeks after the incident. 24. It is trite law that full penetration and rupture of hymen is not a sine qua non for "penetrative sexual assault" as defined under Section 3 of the POCSO Act or 'rape' as defined under Section 376 of the Indian Penal Code. Slightest penetration resulting in tenderness in the private parts of the victim is sufficient to constitute rape. When the version of the victim and her mother is judged from the report of the medical officer (PW5) who found tenderness in the private parts of the victim, I have no hesitation to come to the conclusion that the victim had been subjected to penetrative sexual assault by the appellant. 25. It has been argued that there was enmity between the appellant and the victim over the issue of eviction of the appellant from his tenanted portion. PW2 as well as the appellant were co-tenants in the premises. Apart from a vague suggestion which was denied, no evidence has been placed on record with regard to enmity between PW2 and her husband with the appellant over the issue of tenancy. 26. Hence, I am constrained to observe that the defence plea of enmity over tenancy is a figment of imagination which was belatedly concocted in the course of trial as a desperate measure and was rightly turned down by the trial court. 27. With regard to the lodging of FIR it is important to note that the FIR was immediately lodged after the incident ruling out any possibility of false implication. Oral statement of PW2 was reduced into writing by PW6 at the police station which was treated as FIR. 28. Hence, I do not find any illegality and/or irregularity in lodging of the FIR which had been instituted at the earliest point of time. 29. In the light of the aforesaid discussion, I uphold the conviction recorded against the appellant. 30. 28. Hence, I do not find any illegality and/or irregularity in lodging of the FIR which had been instituted at the earliest point of time. 29. In the light of the aforesaid discussion, I uphold the conviction recorded against the appellant. 30. Coming to the issue of sentence, keeping in mind the facts and circumstances of the case particularly the controversy whether the hymen of the victim was ruptured or not, I am inclined to reduce the sentence imposed upon the appellant. 31. Accordingly, I direct that he shall suffer rigorous imprisonment for seven years and shall pay fine of Rs. 1,00,000/-, in default, to suffer simple imprisonment for one year. 32. With the aforesaid modification as to sentence, the appeal is disposed of. 33. The period of detention, if any, undergone by the appellant during investigation, enquiry and trial shall be set off against the substantive sentence imposed upon him in terms of Section 428 of the Code of Criminal Procedure. 34. The lower court records along with a copy of this judgment be sent down at once to the learned trial court for necessary action. 35. Photostat certified copy of this order, if applied for, be given to the parties on priority basis on compliance of all formalities. 36. I agree.