M.R. Shah, J.

1. Feeling aggrieved and dissatisfied with the impugned judgment and order of acquittal passed by the learned Additional Sessions Judge (Fast Tract Court No. 5), Bhavnagar passed in Sessions Case No. 68 of 2004, by which, the learned trial Court has acquitted the accused for the offence punishable under Section 376 of the Indian Penal Code, the State has preferred present Criminal Appeal.

2. The prosecution case in nutshell are as under:-

2.1 That one Ambaben mother of the prosecutrix lodged a complaint with the Vartej police Station on 20.02.2004 which was registered as FIR being CR-I-55 of 2004 alleging the inter alia that she resides with her husband and children at village Khadsaliya. That her husband Mohanbhai was doing agricultural work. That she had three son and two daughters, out of which two daughters, one elder daughter got married and the younger daughter Gavu was aged 9 years. That she had three buffalo and said Gavu used to take three Buffalo to the field for grassing. It was alleged that on 20.02.2004 at about 9.30 a.m. Gavuben and one Jasiben daughter of Maganbhai went towards pond for the purpose of grassing the cattle. That thereafter at about 3 p.m. Jasiben rushed to the home and told that when they were returning from the pond near Sosariya place one unknown person had caught hold of Gavu and that she shouting and thereafter the complainant and her son Bhubhat went to the place and wife of her son went to call hear husband. It was further alleged that when she asked Gavuben about what happened, she told that while she was returning with Jasiben at that time one unknown person who had put on white pant and shirt, was slim and tall and told her in Gujarati language to give him some water to drink and at that time Gavuben offered water from the plastic bottle and at that time he caught hold of Gavuben and took her to Sosariya Gala and committed the rape on her and thereafter he run away by giving push to Gavuben. It was alleged that there was a bleeding on the private part of the Gavuben and her cloths were also having bloodstain. That thereafter, they went to Vadi and on gathered all family members took Gavuben in Bhavnagar hospital and at that time the original complainant lodged the complaint which was recorded by the Police Sub Inspector Shri Kalsariya which was sent to Vartej Police Station with Vardhi and the same was recorded in the police station diary as CR-I-26 of 2004 by one Jesingbhai Mavjibhai Boriya in charge PSO of Vartej Police Station. That the said FIR/complaint was investigated by one B.P. Kalsariya, PSI, Vartej Police Station who as such recorded the complaint given by the original complainant. During the course of investigation, he recorded the statement of concerned witness. He also prepared the panchnama of place of incident. He sent prosecutrix/victim for medical check up. He also collected the medical evidence. He also collected the cloths of the victim as well as accused who was arrested in the meantime and sent it to the FSL. He also sent the yadi to the Executive Magistrate for conducting TI Parade. He also sent the accused for medical check up. After having prima facie case against the accused, the Investigating Officer filed the charge sheet against the accused in the Court of learned JMFC for the offence under Section 376 of the Indian Penal Code. As the case was exclusively triable by the Court of Sessions, the learned Chief Judicial Magistrate, Bhavnagar committed the case to the Sessions Court, Bhavnagar which was sent to the Court of the learned Additional Sessions Judge, Fast Track Court No. 5, Bhavnagar for trial, which was registered as Sessions Case No. 68 of 2004. The accused pleaded not guilty and therefore, he came to be tried by the learned Sessions Court for the offence under Section 376 of the Indian Penal Code. The learned Sessions Court framed the cha