JUDGMENT - SINHA D.D., J.:---Heard Shri Dharmadhikari, learned Counsel for the appellant, and Shri Dhote, learned Additional Public Prosecutor for the respondent No. 1. 2. The appeal is directed against the judgment and order dated 16-8-1997 passed by the Additional Sessions Judge, Washim whereby appellant/accused is convicted for the offence punishable under section 376(2)(a) of Indian Penal Code and sentenced to suffer rigorous imprisonment for seven years and to pay fine of rupees five thousand, in default to suffer rigorous imprisonment for five months. 3. The facts of the prosecution case, which have given rise to the prosecution of the appellant for the offence charged, in nutshell, are as follows: On 19-1-1994, at about 12 noon, Shila (prosecutrix) was at her own house. Accused came there, who was wearing police uniform. The prosecutrix asked him as to why he had come there and why he wanted to enter in her house. He did not listen to her, entered her house, caught hold of her hand, lifted her maxi, which was on her person, made her lie down, pressed her chest and removed her nicker (underwear). The accused also removed his full pant and committed sexual intercourse with the prosecutrix. The prosecutrix informed about the incident to her father P.W. 2 Sheshrao at about 4. p.m. The prosecutrix lodged first information report at about 10.30 p.m., which is Exhibit 27. The prosecution examined P.W. 3 Sopan, who is uncle of the prosecutrix, and P.W. 4 Kishanrao, Circle Inspector. 4. The prosecution after completing necessary formalities of investigation, filed the charge-sheet. The charge was explained to the accused. The defence of the accused was of total denial and he claimed to be tried. 5. Shri Dharmadhikari, learned Counsel for the appellant, states that the prosecution evidence brought on record is totally insufficient to bring home guilt of the accused for the offence charged. It is submitted that in the instant case, evidence of prosecutrix does not connect the accused with the crime in question. It is submitted that the prosecutrix was neither acquainted with the accused nor known to the accused. Though identification parade is alleged to have been conducted by the prosecution, however, the officer, who had conducted the identification parade has not been examined and, therefore, prosecution cannot take advantage, if any, in this regard. 6. It is submitted that the prosecutrix was neither acquainted with the accused nor known to the accused. Though identification parade is alleged to have been conducted by the prosecution, however, the officer, who had conducted the identification parade has not been examined and, therefore, prosecution cannot take advantage, if any, in this regard. 6. It is contended by the learned Counsel for the appellant that P.W. 1 prosecutrix in her examination-in-chief has specifically stated that at about 12 noon to 1 p.m., she was at her home and at that time, one person came there and since he was dressed like a Police Officer, prosecutrix thought him to be a Police Constable. It is submitted that in the cross-examination of the prosecutrix, she has admitted that she had no acquaintance with the accused. Though the prosecutrix in her examination-in-chief has stated that she had identified the accused in the identification parade, which was held at Akola, however, since prosecution did not examine the concerned officer, who had conducted the identification parade, prosecution cannot take advantage in this regard. It is contended that in view of above referred factual aspect of the matter, identity of the accused has not been established by the prosecution, who, according to the prosecution, has allegedly committed rape on the prosecutrix. It is submitted that prosecution must fail on this sole ground. 7. Learned Counsel Shri Dharmadhikari further states that the report of the Doctor is in favour of the defence since no injuries were noticed by the Doctor either on the private part or on the person of the prosecutrix. The Doctor could not give definite opinion whether a sexual intercourse was committed on the prosecutrix. It is submitted that since defence has admitted the report of the Doctor, the Doctor has not been examined by the prosecution in order to bring on record under relevant factors in this regard. It is contended that in the circumstances, the medical evidence does not support the prosecution at all. 8. It is further contended by the learned Counsel for the appellant that there are material omissions in the evidence of prosecutrix, which destroy the prosecution case put forth by the prosecutrix. It is submitted that though she has stated in her examination-in-chief that when accused entered into her house and caught hold of her hand, she shouted for help. 8. It is further contended by the learned Counsel for the appellant that there are material omissions in the evidence of prosecutrix, which destroy the prosecution case put forth by the prosecutrix. It is submitted that though she has stated in her examination-in-chief that when accused entered into her house and caught hold of her hand, she shouted for help. However, in her police statement, she has not stated that at the relevant time, she raised shouts. There is an omission in this regard, which is a material omission. It is contended that since prosecution failed to examine the Investigating Officer, the defence did not get opportunity to prove omissions. However, in the cross-examination, all these factors are brought on record and, therefore, advantage in this regard must go to the accused. 9. Learned Counsel Shri Dharmadhikari further states that there is no evidence on record to show that from the time of seizure of clothes of prosecutrix till the time they were sent to the chemical analyser, they were kept throughout in the sealed condition since clothes of the prosecutrix, which were seized by the police, were sent to the chemical analyser after 27 days and for want of appropriate evidence in this regard, possibility of putting semen on the maxi of the prosecutrix cannot be ruled out. It is contended that the prosecution has also not examined Police Officer in order to show that clothes of the prosecutrix, which were seized by the police and kept in the sealed packet, were the same clothes and packet, which were forwarded to the chemical analyser for examination and in the absence thereof, finding of semen stains on the maxi is of no consequence. It is submitted that the prosecution also did not prove that the maxi, which was seized by the prosecution, was the same maxi, which was worn by the prosecutrix at the time of alleged incident. It is, therefore, contended that the report of the chemical analyser cannot be relied upon and the prosecution cannot derive any benefit in this regard. 10. Learned Counsel Shri Dharmadhikari states that subsequent conduct of the prosecutrix is also inconsistent with the fact of innocence. The prosecutrix did not inform either to her aunt or P.W. 3 Sopan (uncle of the prosecutrix) the fact of alleged rape though they were present at the relevant time. 10. Learned Counsel Shri Dharmadhikari states that subsequent conduct of the prosecutrix is also inconsistent with the fact of innocence. The prosecutrix did not inform either to her aunt or P.W. 3 Sopan (uncle of the prosecutrix) the fact of alleged rape though they were present at the relevant time. It is contended that this conduct of the prosecutrix falsifies her story of rape. It is submitted that if sexual intercourse was committed by the accused without her consent and against her wish, then the most natural conduct, which was expected of the prosecutrix was to inform the act to her near and dear ones when they were available on the spot. In the instant case, there is material omission brought in the cross-examination of P.W. 3 Sopan in this regard. However, since prosecution has not examined the Investigating Officer, the same could not be proved and, therefore, benefit must go to the accused. 11. It is submitted by the learned Counsel for the appellant that other important aspect as far as testimony of P.W. 3 Sopan is concerned is that he claimed to have identified the accused in the identification parade. However, since the Police Officer, who had conducted the identification parade was not examined, prosecution cannot place reliance on such identification parade. It is contended that P.W. 3 Sopan in his cross-examination has admitted that he heard the conversation, which was going on between accused and prosecutrix inside her house and at that time, he gave a call to the prosecutrix. However, she did not respond to his call. It is further contended that conduct of the prosecutrix in keeping mum at the time of alleged sexual intercourse even though she had an opportunity to shout or respond to the call given by her uncle destroys her theory of rape. In any case, the omission, which are of material nature, finding place in the evidence of this witness could not be proved by the defence for want of examination of Investigating Officer and, therefore, benefit should go to the accused. 12. It is submitted by the learned Counsel for the appellant that the prosecutrix is a lady of easy virtues and on the earlier occasion, she had falsely implicated one Prakash Narayan Panghare in the offence of rape, who was prosecuted under section 376 of Indian Penal Code on the allegation of prosecutrix. 12. It is submitted by the learned Counsel for the appellant that the prosecutrix is a lady of easy virtues and on the earlier occasion, she had falsely implicated one Prakash Narayan Panghare in the offence of rape, who was prosecuted under section 376 of Indian Penal Code on the allegation of prosecutrix. It is contended that because of her loose character, she was not allowed to stay with her family members and was living separately since 1994. The prosecutrix was also in the remand home for some time. It is contended that all these aspects have come in her cross-examination. It is submitted that the prosecutrix has falsely implicated the accused in crime in question at the behest of P.S.I. Rajput. 13. It is alternatively contended that the evidence on record and conduct of the prosecutrix would suggest that even if it is presumed that there was a sexual intercourse committed by the accused, the prosecutrix was a consenting party and, therefore, same cannot fall within the ambit of section 376(2)(a) of Indian Penal Code. 14. It is also alternatively contended by Shri Dharmadhikari, learned Counsel for the appellant, that in the instant case, the learned Counsel appearing for the appellant before the trial Court unfortunately did not conduct the cross-examination of important prosecution witness Shila and her Uncle P.W. 3 Sopan vis a vis their statements under section 161 of Criminal Procedure Code. It is submitted that the appellant has been convicted for a serious offence and should not suffer because of the negligence of the Counsel, who represented him in the trial Court. It is contended that the prosecution has not examined material witnesses like Investigating Officer, person, who has conducted identification parade as well as Police Officer, who has carried the clothes of prosecutrix to the chemical analyser and, therefore, appellant did not get opportunity to cross-examine these witnesses. It is, therefore, contended that this Court in exercise of power vested in it under section 311 of Criminal Procedure Code may be pleased to recall P.W. 1 Shila and P.W. 3 Sopan for further cross-examination in the interest of justice. 15. It is, therefore, contended that this Court in exercise of power vested in it under section 311 of Criminal Procedure Code may be pleased to recall P.W. 1 Shila and P.W. 3 Sopan for further cross-examination in the interest of justice. 15. Shri Dhote, learned Additional Public Prosecutor for the respondent No. 1, at the outset has admitted that investigation carried out by the prosecution in the instant case is not straight-forward and even though evidence, which was available with the prosecution, was not placed before the Court below. It is contended that though identification parade was carried out, the prosecution did not examine the officer, who had carried out the identification parade. Therefore, though identity of the accused is established in the identification parade, however, the advantage cannot be taken by the prosecution for want of necessary evidence on record in this regard. Similarly, though the stains of semen were found on the clothes of prosecutrix, these clothes were not shown to the prosecutrix to identify the same. The prosecution also did not examine the prosecution witness, who had taken these clothes to the chemical analyser in order to establish link in this regard. It is contended that though the material was available to the prosecution, the same was given up by the prosecution, which has not only affected the prosecution case adversely, but has caused total injustice to the prosecution. It is prayed that the case may be remanded back to the trial Court for a fresh trial. 16. In view of the rival contentions canvassed by the respective learned Counsel for the parties, it is necessary to find out whether illegality or material irregularity committed by the prosecution by not examining the material prosecution witnesses, who were necessary to unfold the prosecution case, was with the oblique motive, which has seriously prejudiced the prosecution or even the accused and, therefore, trial is against the public policy requiring wiping out the entire evidence of the prosecution and whether there is a necessity to direct the trial Court to conduct de novo trial from the beginning. It is necessary to keep in mind that the trial conducted by the trial Court serves the public interest and it should not adversely affect the same. It is necessary to keep in mind that the trial conducted by the trial Court serves the public interest and it should not adversely affect the same. It also needs to be seen whether the evidence available was not placed before the Court below by the prosecution and whether such evidence was necessary for a proper disposal of the case or in the public interest. It is no doubt true that prosecution is not obliged to examine all the prosecution witnesses. However, it is incumbent on the prosecution to examine such witnesses whose evidence is essential for unfolding the material particulars of the prosecution case when there are no allegations made that if such witnesses are produced, they would not speak the truth. However, in any case the trial Court would have been well advised to exercise its discretionary power to examine such witnesses. This conduct of the prosecution of non-production of such witnesses or withholding such witnesses from the Court casts a serious reflection on the fairness of the trial and prejudice the defence as well as case of the prosecution by a reason of omission on the part of the prosecution to examine such witnesses. This would lead to a conclusion that there has been no fair and proper trial. 17. It is necessary to keep in mind that if there has been a mere mistake on the part of the prosecution or trial Court, which is of a technical nature and which has not occasioned any failure of justice, then in such situation exercise of power under section 386(b)(i) of Criminal Procedure Code for remanding the case for re-trial is not necessary. However, if the trial itself is not fair and resulted in failure of justice and against the public policy, an Appellate Court can pass appropriate order under section 386(b)(i) of the Code. 18. On the backdrop of the above legal position, it would be appropriate to scrutinise the facts and circumstances of the present case. In the instant case, the most material witness, i.e. officer who has conducted the test identification parade is not examined by the prosecution and there is nothing on record to show that if prosecution would have examined this witness, he would not have supported the prosecution. This witness, in my opinion, is a material witness in order to unfold the prosecution case about identity of the accused. This witness, in my opinion, is a material witness in order to unfold the prosecution case about identity of the accused. It is also well-settled that where test identification parade is not proved by the officer or Magistrate, who has conducted the same and full particulars of the same are not given by him, such report is no evidence of identification. In the facts and circumstances of the present case, it is apparent that prosecution deliberately and with the oblique motive did not examine such witness in order to give advantage to the accused. This, in my opinion, has not only resulted in failure of justice, but is also against the public policy. 19. Similarly, the prosecution failed to examine another material prosecution witness, who had carried the clothes of prosecutrix, which were seized during the course of investigation, to the chemical analyst. Similarly, though the Investigating Officer was not available for tendering evidence because of his demise, the other officer could have been examined, who was familiar and knowing the signature of the original Investigating Officer and appropriate evidence in this regard ought to have been adduced. 20. In the instant case, Shri Dhote, learned Additional Public Prosecution has also admitted that withholding of these material witnesses reflects the oblique motive and prayed for de novo trial. The learned Counsel for the appellant has also alternatively made the similar request though on the different ground. 21. I have already observed hereinabove that if mistake on the part of prosecution to withhold the witnesses could have been of technical nature and has not occasioned any failure of justice and if the question is purely one of this Court taking a different view of the evidence adduced in the case, it would not have been necessary to remand the matter for de novo trial and this Court could have considered the case on merits. However, in the instant case, it is a deliberate act committed with the oblique motive which has not only resulted in failure of justice, but is also against the public policy and, therefore, in my opinion, interest of justice would be served if the matter is remanded back to the trial Court for de novo trial and it would be necessary for the prosecution to examine all the material witnesses, who are necessary for unfolding the prosecution case, as observed in this judgment. This exercise would serve the purpose for eliciting the truth apart from the public purpose. 22. It is made clear that this Court has not considered the contentions canvassed by the learned Counsel for the appellant nor the evidence adduced by the prosecution on merits and has not expressed any opinion in this regard. It is, therefore, open for the trial Court to decide the trial on the basis of fresh evidence adduced by the prosecution. Similarly, it would be proper to issue direction to the trial Court to conclude the trial within a stipulated period. Shri Dhote, learned Additional Public Prosecution is directed to forward a copy of this judgment to the concerned police officials forthwith. 23. It is contended by the learned Counsel for the appellant that the appellant was on bail throughout during the course of trial. However, after order of conviction, the appellant has surrendered and at present he is in jail. It is contended that since this Court is setting aside the impugned judgment and order and is remanding the matter to the trial Court for de novo trial, accused may be released on bail on the same terms and conditions as in the trial Court with fresh bonds during pendency of the trial. 24. For the reasons stated hereinabove, the impugned judgment and order dated 16-8-1997 passed by the Additional Sessions Judge, Washim in Sessions Trial No. 62/1994 is hereby set aside. The matter is remanded to the trial Court for de novo trial. The trial Court is directed to complete the same within a period of six months from the date of receipt of this judgment. The appellant/accused is released on bail on the same terms and conditions as in the trial Court with fresh bonds during the course of trial. 25. The appeal is partly allowed in the above terms. Appeal partly allowed. -----