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-22- CRI.APPEALS.155 & 352.2022. Judgment.odt appellants is very serious. The appellants, at the point of sickle, committed rape of the victim. The appellants have crossed all the bounds of humanity. In this beastly act, they have satisfied their sexual lust. They took advantage of the situation and the helplessness of the prosecutrix. In my view, failure to observe the provisions of Section 273 of the Cr.PC is a serious flaw in this case. This flaw in the case of the prosecution has caused miscarriage of justice. If the evidence of the informant is excluded from consideration, then there would hardly be any evidence on record to establish the direct complicity of the appellants in this crime. The Court has to bear-in-mind that the trial of criminal case must be fair not only for the accused but also to the victim of such a beastly crime. Such a crime is against the womanhood and, as such, against society. Great care is required to be taken. The Presiding Officer, in any case, cannot afford to be a silent spectator. In this case, the learned second Judge completely glossed over the mandatory provisions of the law as above.

-32- CRI.APPEALS.155 & 352.2022. Judgment.odt had not been put to them. Failure of the learned Judge to follow the provisions of law has caused miscarriage of justice. It has prejudiced not only the appellants but also the victim. 31] In this case, the DNA report has not been put to the appellants. The Hon'ble Apex Court in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra [AIR 1984 SC 1622] has held that incriminating piece of evidence, if not put to the accused in his 313 Cr.PC statement, cannot be made the basis of the conviction of the accused. It has to be excluded from consideration. It is to be noted that, while recording the evidence, the learned Prosecutor and the learned Judge adopted a very casual and careless approach. The DNA Expert and the Chemical Analyzer have not been examined. The learned Judge, while examining the accused under Section 313 of the Cr.PC, did not even care to frame a proper question and put the DNA report to the accused so as to enable them to explain it. This has caused prejudice to the appellants. Similarly, it has proved prejudicial to the prosecutrix, who had suffered the ordeal of a horrible incident. She was not at fault. This has resulted into miscarriage of justice. 32] It is to be noted that all the above-stated facts, if

-33- CRI.APPEALS.155 & 352.2022. Judgment.odt encapsulated together, would show that these inherent lacunas, defects, and drawbacks have caused miscarriage of justice. It has vitiated the entire trial. Now, there are two options before the Court: either to order retrial or to give a clean chit to the appellants. In my view, in such a crime, my conscience does not permit me to give a clean chit to the appellants. The informant/ prosecutrix deserves a fair trial and justice. Similarly, the appellants also deserve a fair trial. The learned Judges and the Prosecutor, in- charge of the case, have failed to ensure a fair trial to the victim of such a beastly crime as well as to the appellants. In the facts and circumstances, in my view, it would be appropriate to exercise the powers under Section 386(b)(i) of the Cr.PC. In view of the above, the finding with regard to the conviction and sentence is required to be reversed. It is also necessary to order retrial of the appellants before the Sessions Court at Achalpur.