(PER : HONOURABLE MR.JUSTICE KS JHAVERI)

1. The present application for leave to Appeal is directed against the judgment and order dated 28.2.2013 passed by the learned 8th Addl. Sessions Judge, Rajkot, in Sessions Case No. 85/2009, whereby, the accused has been acquitted for the offence under Section 365, 366, 376 of IPC.

2. The brief facts of the prosecution case are that on16.1.2008, between 1.00 hours and 3.00 hours in the night, from village Kamlapur, the appellant had kidnapped or abducted the prosecutrix, aged about 17 years and 4 month, by coaxing and tempting with an intention to be secretly and wrongfully confined her and within an intention to commit illicit intercourse with her and took her at open place where he forcefully committed rape on her without her consent and wish, and therefore, the complaint was lodged against the accused persons before the Bhadala Police Station. On the basis of the complaint, investigation was carried out. After completion of investigation, charge-sheet was filed before the Court of learned Judicial Magistrate, Jasdan. Since the office was triable by the Court of Sessions, it was committed to the Court of learned 8th Addl. Sessions Judge, Rajkot, which was numbered as Sessions Case No. 85/2009.

3. To prove the case against the accused, the prosecution has examined the following witnesses.

1. Bhagwanjibhai Bhimjibhai Bambhaniya Ex. 9

2. Ghudabhai Valabhai Rathod Ex.11

3. Vinodbhai Bhagvanji Sarvaiya Ex. 13

4. Maganbhai Sidebhai Metaria Ex. 15

5. Bhanubhai Savashibhai Dudharejia Ex. 17

6. Prosecutrix Ex.19

7. Dr. Haridas Narbheram Desani Ex. 29

8. Dr.Bipinchandra Mahashankar Nayak Ex. 32

9. Rambhaben Bhanubhai Savashibhai Ex. 37

10. Devrajbhai Rambhai Ex. 40

11. Somakubhai Anakbhai Ex. 41

12. Mukeshbhai Najabhai Rathod Ex. 42

13. Harishkumar Rambhai Kidiya Ex. 56

14. Purshottam Dalabhai Rathod Ex. 60

15. Bhupatbhai Somabhai Sariya Ex. 74

4. The prosecution has also relied on the following documentary evidences.

1. Panchnama of scene of offence place Ex. 10

2. Panchnama of person of accused Ex. 16

3. Panchnama of clothes of prosecutrix Ex. 12

4. Panchnama of clothes put on by the prosecutrix at the time of incident Ex. 14

5. Statement of complainant Ex. 18

6. Yadi Ex. 30

7. Medical certificate of prosecutrix Ex.31

8. Yadi Ex. 34

9. Letter of opinion Ex. 35

10. Birth certificate of prosecutrix Ex. 38

11. Yadi Ex. 33

12. Case papers of prosecutrix Ex. 36

13. Form Ex. 61

14. Copy of Missing Register No. 2/08 Ex.62

15. Order for investigation Ex. 63

16. FIR Ex. 64

17. Yadi Ex. 65

18. Copy of General Register of Kamlapur Kanya Shala Ex. 76

19. Birth certificate of prosecutrix Ex. 77

5. The trial Court, after taking into consideration the evidences produced by the prosecution, acquitted the accused of the charges levelled against him by the aforesaid judgment and order. Hence, the present application for leave to appeal.

6. Learned APP Ms. Shah for the State has submitted that the trial Court has committed error in not appreciating the evidence produced on record. She further submitted that the trial Court erred in holding that though independent witnesses were available, none of them were examined by the prosecution. The trial Court wrongly observed that there are contradictions in the evidences of the witnesses. In that view of the matter, the judgment and order of acquittal is required to be quashed and set aside.

7. We have considered the judgment and the reasons recorded by the learned trial Judge. We have considered the record and proceedings. We have heard learned APP for the State.

8. At the outset, it is required to be noted that the principles which would govern and regulate the hearing of appeal by this Court against an order of acquittal passed by the trial Court have been very succinctly explained by the Apex Court in a catena of decisions. In the case of M.S. Narayana Menon @ Mani Vs. State of Kerala & Anr, reported in (2006)6 SCC, 39, the Apex Court has narrated about the powers of the High Court in appeal ag