JUDGMENT :

M.R. Shah, J.

Present case is a glaring example of inaction on the part of all three instruments in justice delivery system i.e. the Presiding Officer/trial Court, the Public Prosecutor and the Investigating Agency in finding out the real truth which resulted into the acquittal of the respondent accused who was tried for the offences punishable under Sections 363, 366 and 376 of the Indian Penal Code, 1860 (hereinafter referred to as "IPC"). Present case demonstrates how the Presiding Officer who has conducted the trial; the Public Prosecutor and the Investigating Agency failed in performing their respective duties while conducting the trial, resulting into failure of justice delivery system.

1.1. Present Appeal under Section 378(1)(3) of the Code of Criminal Procedure, 1973 (hereinafter referred to as "CrPC") has been preferred by the appellant State of Gujarat against the impugned judgment and order of acquittal dated 12.04.2012 passed by the learned 2nd Additional Sessions Judge, Jamnagar in Sessions Case No.67 of 2009 by which the learned Judge in absence of the deposition of the prosecutrix/victim and/or without examining the prosecutrix as a witness, has acquitted the respondent herein-original accused for the offences punishable under Sections 363, 366 and 376 of the IPC.

2. Facts and chronological events leading to the present Criminal Appeal in nutshell are as under:

2.1. That the father of the prosecutrix/victim - Dineshbhai Dhanjibhai lodged a complaint/FIR against the respondent herein-original accused before the Kalavad Police Station, Rajkot being ICR No.21/2009 initially for the offences punishable under Sections 363, 366 of the IPC alleging inter alia that his daughter has been kidnapped by the respondent accused and/or he has taken her away from the lawful custody of her guardians with a view to force or seduce her to illicit intercourse and for illegal purpose on 23.02.2009. The concerned police officer initiated the investigation, recorded the statement of the witnesses. During the course of the investigation and on the basis of mobile tower location, the respondent-accused came to be arrested from Godhra with the victim on 23.03.2009. That the statement of the prosecutrix/victim was recorded and considering the statement of the prosecutrix that the respondent-accused had sexual intercourse with her against her wish and thereby committed rape on 12.03.2009, report was made to the learned JMFC adding charge for the offences punishable under Section 376 of the IPC also. That thereafter the prosecutrix was sent to Doctor for medical examination. Thereafter, after completing the investigation it was found that the respondent-accused has prima facie committed the offences punishable under Sections 363, 366 and 376 of the IPC and he was to be prosecuted/tried for the aforesaid offences and therefore, the IO of Kalavad Police Station filed the charge-sheet against the accused in the Court of learned JMFC, Kalavad for the offences punishable under Sections 363, 366 and 376 of the IPC.

2.2. That thereafter as the case was exclusively triable by the Court of Sessions, the learned JMFC committed the case to the Sessions Court, Jamnagar under Sections 209 of the CrPC by order dated 11.06.2009. The case was registered as Sessions Case No.67/2009 in the Sessions Court, Jamnagar. That the learned Additional Sessions Judge, Fast Track Court No.2, Jamnagar framed the charge against the accused at Exh.9 on 09.10.2009 for the offences punishable under Sections 363, 366 and 376 of the IPC. The charge was read over to the accused. The respondent accused pleaded not guilty and therefore, he came to be tried by the learned Additional Sessions Judge for the offences punishable under Sections 363, 366 and 376 of the IPC.

2.3. It appears from the charge-sheet papers that prosecution has as such cited 23 witnesses who were named in the charge-sheet. That as such the actual trial begun on 20.11.2009 and on that day the prosecution