JUDGMENT : P.K. Tripathy, J. - The informant in S.T. No. 276 of 1992 of the Court of Sessions Judge" Cuttack has filed this re.visi6n application u/s 401, Code of Criminal Procedure with a prayer to set aside the order of acquittal of the accused/opposite party Nos. I to 3. One of the eye-witnesses to the occurrence, namely Kuna alias Soumendra Kar, has been added as opposite party No. 4 besides the State of Orissa as opposite party No. 5. 2. On 20.1.1992 Chandramani Samal (hereinafter referred to as the deceased) and Darshan Samal (hereinafter referred to as P.W. No. 4) sustained some injuries and taken to the hospital for treatment. Chandramani succumbed to the injury on his head and 'P.W. No. 4 recovered after treatment. The said two injured are the maternal uncle ('Mamu') of the present Petitioner. On the date of occurrence, after hearing about the incident from his maternal uncle, Petitioner lodged written report before the Officer in charge, Mahanga Police Station and the same was treated as F.LR. and investigation was conducted. The C.L, Salipur submitted charge-sheet against opposite party Nos. 1 to 3. They were committed to the Court of Sessions where they faced the trial and were acquitted on 18.3.1993 by learned Sessions Judge, Cuttack. 3. During the course of trial, prosecution. examined eight out of twenty charge-sheeted witnesses and relied upon the F.LR. (Ext. 6), Inquest Report (Ext. 1), Post-mortem Report (Ext.3), Report of the Chemical Examiner (Ext.5), Seizure Lists (Exts. 7 & 8) and the Spot Map (Ext. 9), which are relevant for perusal. During the course of trial, P.W. No. 1 Raghunath Samal, P.W. No. 2 Kulamani Sethi who were described as eye-witnesses to the occurrence and P.W. No. 4, the injured deposed implicating nothing against the accused persons. P.W. No. 4, who was the injured and the brother of the deceased, stated in his deposition that his brother sustained injury due to fall on stony surface and he also sustained injury during the process of rescuing his brother. The Post-mortem Report and the deposition of the Doctor, who conducted the autopsy, reveals that the injury on the deceased indicates that there was single blow on the head. The Post-mortem Report and the deposition of the Doctor, who conducted the autopsy, reveals that the injury on the deceased indicates that there was single blow on the head. The evidence of the said doctor (P.W. No. 6) further indicates that because of the stitches given to the wound during the course of treatment it was not possible to state whether blunt side of a sharp-cutting weapon like 'Katari' could have caused that "injury. Prosecution declined to examine the other witnesses which includes two more eye-witnesses to the occurrence, out of whom opposite party No. 4 is one. The said opposite party No. 4 appearing in this Court through an advocate filed an affidavit advancing the contention that he had no knowledge about the occurrence relating to death of the deceased. 4. Learned Sessions Judge, on a reference to the evidence of the said eight witnesses and the exhibited documents, found the charge to have not been proved and accordingly he acquitted the opposite parties 1 to 3. 5. During the course of hearing, while challenging the impugned order of acquittal, Petitioner with much persuation advanced the contention that it was incumbent on the part of the prosecution to examine all the charge-sheeted witnesses and particularly the other eye-witnesses mentioned in the charge-sheet. His further contention was that even if the Petitioner was not an eye-witness to the occurrence, but he being the informant, prosecution should not have dispensed with his examination by declining him. It was further contended on behalf of the Petitioner that for the ends of justice and for proper adjudication of the matter, the other official and non-official witnesses should also have been examined by the prosecution. He argued that notwithstanding the failure of the prosecution to examine the witnesses, the trial Court did not properly discharge its duty in as much as the trial Court should have resorted to provision in Section 311, Code of Criminal Procedure for examination of such witnesses. He concluded with the argument that because of non-examination of the relevant witnesses, there has been failure of justice resulting in the culprits of murder rewarded with order of acquittal. 6. Learned Addl. Standing Counsel appearing for the opposite party No. 5 lent a supportive argument supporting the argument of the Petitioner. He, however, could not say why the State did not prefer appeal challenging the order of acquittal. 7. 6. Learned Addl. Standing Counsel appearing for the opposite party No. 5 lent a supportive argument supporting the argument of the Petitioner. He, however, could not say why the State did not prefer appeal challenging the order of acquittal. 7. Learned Counsel for the opposite party No. I argued that in view of the evidence of P. Ws. 1, 2 and 4 besides the evidence of PW. No. 6 relating to the nature of the injury, it cannot be said that there has been a failure of justice due to non-examination of other charge-sheeted witnesses. According to him, out of the remaining charge-sheeted witnesses two have been ascribed the role of eye-witnesses. to the occurrence and one of such eye-witnesses is opposite party No. 4 The said witness has already filed an affidavit declining his knowledge about the alleged occurrence. The injured himself has already exonerated the accused persons of the alleged offence. Under such circumstance, according to the opposite party No. 1, a remand for fresh trial or further trial is not in the interest of justice in as much as it is not known what the other eye witnesses would depose. Learned Counsel for the opposite Party No. I argued that assuming for the sake of argument that the said eyewitness would support the prosecution, then credibility of that witness will be at stake in view of the evidence of P.W. No. 4 and P. Ws. 1 and 2 as well. He further argued that non-examination of the Petitioner was not fatal to the prosecution since he was a post-occurrence witness and the purpose of his examination; Le., relating to the proof of the F.I.R. was no more required in as much as the F.I.R. was exhibited. He further argued that the other witnesses mentioned in the charge-sheet are formal witnesses relating to search, seizure etc. and, therefore, their examination would not have improved the case of the prosecution in any manner. Accordingly, opposite party No. I argued not to interfere with the order of acquittal. He added to his argument by inviting attention of the Court to the order dated 9. I 2.1997 of this Court by which the revision against opposite party No. 3 was dismissed. Accordingly, opposite party No. I argued not to interfere with the order of acquittal. He added to his argument by inviting attention of the Court to the order dated 9. I 2.1997 of this Court by which the revision against opposite party No. 3 was dismissed. In that connection he states that once the revision has been dismissed as against opposite party No. 3, who is a co-accused, different treatment cannot be given to opposite party Nos. I and 2, the other two accused persons. 8. In support of the contention that non-examination of the material witnesses has resulted in miscarriage of justice and, therefore, this Court should remand the case for further trial, Petitioner has relied on the cases of Shyam Sundar Pradhan v. Charan Sahu and Ors. : (1993) 6 OCR 175, Smt. Sebalata Rout v. State of Orissa and Ors. : (1990) 10 OCR 175, and Nabaghana Behera and Anr. v. State of Orissa : (1996) 11 OCR 520. In the case of Shyam Sundar (supra) the injured persons were not examined and the prosecution case was closed by the trial Court on the ground of non-availability of such witnesses. On perusal of record this Court observed that no effort was made by the trial Court to issue notice to them in proper address. The trial Court recorded the order of acquittal on the ground of non-examination of the injured persons. Under such circumstance, this Court remanded the case for further trial. In the case of Smt. Sebalata (supra) the fact before this Court was that at the outset of the trial both the informant-petitioner and the Public Prosecutor wanted to add some persons to the list of eye-witnesses to the occurrence mentioned in the charge-sheet. Those witnesses had been examined and their statements had been recorded under Sections 161 and 164, Code of Criminal Procedure At the commencement of the trial though the Public prosecutor' advanced the contention regarding such persons being material witnesses and the trial Court having not opined contrary to that opinion, yet during the course-of prosecution evidence not only the Public Prosecutor declined to examine them and thereby failed in his duty but also learned Sessions Judge rejected the prayer of the informant for examination of such witnesses. Keeping in view the principle criminal law relating to Court's duty and the aforesaid facts and circumstances, this Court felt that there was a again miscarriage of justice in not examining such witnesses and accordingly interfered with the order of acquittal and remanded the case for trial by way of examining those material witnesses. In the case of Nabaghana Behera (supra) the order of conviction of the Petitioner being upheld by the appellate Court was under consideration of this Court by exercising the revisional jurisdiction. Non-examination of the Doctor, granting injury certificate and the Investigating officer who investigated into the case was found to be against the interest of justice and, therefore, while setting aside the order of conviction this Court directed for retrial by examining the Doctor and the Investigating Officer. 9. Petitioner has also relied on the case of Himansu Mohan Patnaik and Anr. v. State of Orissa and Ors. (1997) 13 OCR 459 in support of the contention tl1at lapse of time is no ground to pass an order for further trial. 10. Petitioner has also placed reliance on the case of State of U.P. v. Anil Singh AIR 1 88 SC 1998. In that case the apex Court was considering correctness of the order of acquittal recorded by the High Court as against the judgment of conviction by the trial Court. Three. eye-witnesses were examined in that case which included the brother of the deceased who was not only the informant but also an eye-witness to the occurrence. The evidence of the eye-witnesses was accepted by the trial Court to record an order of conviction against the accused. As noted by the apex Court, such evidence was disbelieved and rejected by the High Court on flimsy grounds. After discussing and analysing the whole fact scenario regarding assessment of the evidence, the apex Court took note of the responsibility of the Court in the system of criminal justice delivery system and observed: 1. It is also our experience that invariably the witnesses add embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if true, in the main. If there is a ring of truth in the main, the case should not be rejected. It is also our experience that invariably the witnesses add embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if true, in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the Court to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witnesses. It is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is an important as the other. Both are public duties which true Judge has to perform. 11. Petitioner also relied on the case of Motilal Kum bhar v. State 24 (I 958) CLT 445. In that case, while upholding the conviction of the Petitioner, this Court made an observation for non-examination of. the female witness who searched the female accused and recovered counterfeit coins from her 'Ghagra'. It was observed by this Court that such essential witnesses should have been examined. 12. In all the above cited decisions, the apex Court as well as this Court have not only decided the cases keeping in view the facts and evidence involved in such cases, but also made observations relating to exercise of the revisional power against the order of acquittal in a just and proper manner. In all such cases, the sine qua non for exercising the revisional power to interfere with an order of acquittal has been reiterated by stating that if the revisional Court shall find that non-interference with the order of acquittal will result in flagrant miscarriage of justice because of the illegality committed during the trial, then it should interfere with such order of acquittal. The above quoted passage from the apex Court also mandates that in the justice delivery system the position of a complainant and the accused stands at par so far as the decision which the Judge is to make. 13. The above quoted passage from the apex Court also mandates that in the justice delivery system the position of a complainant and the accused stands at par so far as the decision which the Judge is to make. 13. Being abreast of the aforesaid principle and the facts, circumstances and the evidence in the case at hand being analysed, this Court finds that the trial Court has acquitted the accused because of lack of evidence to prove the allegation of inflicting injury to the deceased by the accused. In that context, the evidence of P.W. 4 who is not only the brother of the deceased but also allegedly co-victim provides a clean chit to the accused from the allegation of murder. As it appears, being influenced by that unshaken evidence the prosecutor as well as the trial Court confined to that evidence besides the evidence of the eye-witnesses (P. Ws. 1 and 2) and did not think of examination of the further two eye-witnesses and the other witnesses mentioned in the charge-sheet. The aforesaid approach of the prosecutor and the trial Court cannot be said to be illegal though that may not amount to reasonableness in its literary sense. At no stage of the trial the informant watched the prosecution or took care to apply to the trial Court for examination of the remaining two eye-witnesses. It may be noted here that F.I.R. being accepted in evidence and marked exhibit no-examination of the Petitioner in this case cannot be said to be fatal because he was a post-occurrence witness. His evidence would not have improved the prosecution case for proving anything against the accused persons when the direct evidence adduced by the prosecution read with medical evidence does not prove a case of homicidal death. 14. Though it is argued by the Petitioner regarding the misconduct of the prosecutor in declining the two other eye-witnesses, but no malaise has been alleged or proved against the prosecutor. Under the given facts and circumstances, this Court finds that the conduct of the prosecutor and the Presiding Officer for not securing attendance of the remaining two eye-witnesses cannot be regarded as a patent illegality or total callousness to flout the course of justice. Under the given facts and circumstances, this Court finds that the conduct of the prosecutor and the Presiding Officer for not securing attendance of the remaining two eye-witnesses cannot be regarded as a patent illegality or total callousness to flout the course of justice. P.W. No. 4 in his deposition having admitted about injury on his body due to fall and not due to assault by the accused, that evidence did not prompt the prosecution to examine the Doctor. Examination of the Doctor to prove the injury certificate under any circumstance could not have proved complicity of the opposite parties 1 to 3 in the alleged crime. The other witnesses named in the charge-sheet and not examined by the prosecution were formal witnesses or witnesses to other circumstances, which could not have contributed for proving anything against opposite parties 1 to 3 in the absence of evidence of their participation in the crime. Under such circumstance, declining of such formal witnesses in the present case is not found to be an illegal step taken by the prosecution or the trial Court. 15. There is no doubt in the correctness of the principle raised by Mr. Pujari, learned Counsel for the Petitioner that at the time of trial the duty of the Public Prosecutor is to see that all the evidence collected during the investigation should be brought on record and in that respect if the prosecutor fails or neglects to bring on record the relevant evidence, then the trial Court should not be a silent spectator and by exercising the power u/s 311, Code of Criminal Procedure the trial Court should see that all relevant evidence is brought on record for proper adjudication. But there are exceptions to that principle and when the deceased is not to come to depose and the brother of the deceased who sustained the injury and a couple of eye witnesses deposed by stating about innocence of the accused and the post-mortem report does not reject the theory of the possibility of the deceased sustaining the injury by fall, in such a case the conduct of the prosecutor and the trial Court in closing the prosecution case without examining the other witnesses does not make any difference on the merit of the case nor it renders the case in failure of ends of justice. 16. 16. To sum up, this Court holds that in the present case, under the discussed facts and circumstances, this Court does not find any reason to interfere with the order of acquittal which is based on proper assessment of evidence. In that connection, so far the present caste is concerned, this Court also does not find any illegality, malafide or lapses on the part of the prosecution or the trial Court for concluding the trial by not examining other witnesses enlisted in the charge sheet, in as much as unimpeachably two eye-witnesses (P. Ws. 1 and 2) and the co-victim with the deceased, i.e., P.W. No. 4 rendered no allegation of homicide against the accused persons. Hence, the Criminal Revision is dismissed. Final Result : Dismissed