Judgment : 1. The revision petitioner calls in question the legality of the judgment passed in Sessions Case No.11 of 2003 dated 31.3.2003 by The Additional Sessions Court-cum-Fast Track Court, Ramanathapuram. 2. The epitome of the prosecution case can be stated as follows:- P.W.1 Thiagarajan is a resident of Melavalasai Village and he knows the accused. The deceased Pachaiappan was his father-in-law. On 26.2.2002, P.W.1 had visited the house of the deceased. On the same day, at about 10.00 p.m., all the accused were standing in front of the house of Pachaiyappan and called as “akka akka”. All the accused had reported that the deceased was lying in his field after getting injuries. P.W.1 and others had gone to the field of the deceased. One Nagaraj was placing the deceased on his thigh. 3. P.W.1 and others had taken the deceased to Ramanathapuram Government Hospital and since his condition was critical, he had been taken to Rajaji Government Hospital, Madurai. P.W.1 had given a statement to the Police and the same had been marked as Ex.P.1. P.W.9 the Head Constable attached to Tirupullani Police Station had received information from Control Room, Ramanathapuram Police Station on 27.2.2002 at about 4.00 a.m. P.W.9 had subsequently received intimation from B.1 Police Station, Ramanathapuram and proceeded to Government Hospital Ramanathapuram and found that the deceased had been referred to the Government Hospital, Madurai, P.W.9 had gone to Madurai and since the condition of the deceased was critical, he obtained a statement from P.W.1 and the same had been registered in Crime No. 126 of 2002 under Section 307 of the I.P.C. The First Information Report had been marked as Ex.P.7. The investigation had been done by the Inspector of Police. 4. After knowing the fact that the deceased Pachaiyappan had passed away, the Inspector of Police had given a requisition for conducting autopsy and the same had been marked as Ex.P.9. The Inspector had conducted inquest on the dead body of the deceased and the inquest report had been marked as Ex.P.10. The Inspector had given requisition for sending material objects to chemical examination. Inspector had changed the Section of law from Section 307 of I.P.C. into Section of law from Section 307 of I.P.C. into Section 302 of I.P.C. After completing investigation, the Inspector had filed a final report on 31.5.2002 on the file of the Judicial Magistrate Court No. I, Ramanathapuram. 5. Inspector had changed the Section of law from Section 307 of I.P.C. into Section of law from Section 307 of I.P.C. into Section 302 of I.P.C. After completing investigation, the Inspector had filed a final report on 31.5.2002 on the file of the Judicial Magistrate Court No. I, Ramanathapuram. 5. The case had been committed to the Court of Sessions and subsequently, transferred to the Additional District Court-cum-Fast Track Court, Ramanathapuram. Necessary charge had been framed against the accused and the same had been read over and explained to them. The accused had denied the same and claimed to be tried. On the side of the prosecution, P.Ws. 1 to 9 had been examined. Exs.P. 1 to P.7 and M.Os. 1 to 3 had been marked. 6. When the accused had been questioned under Section 313 of the Code of Criminal Procedure, as respects the incriminating circumstances appearing in evidence against them, they denied their complicity in the crime. No oral and documentary evidence had been adduced on the side of the accused. 7. The trial Court after assessing the evidence available on record had come to the conclusion that the prosecution had failed to prove the guilt of the accused under Section 302 read with Section 34 of I.P.C. and consequently, acquitted all the accused under Section 235(1) of the Code of Criminal Procedure. The order of acquittal passed by the trial Court is now being challenged in the present Criminal Revision Case at the instance of P.W.5 viz. Kanagaraj. 8. Before pondering the rival arguments advanced by either counsel, it had become indefeasible to narrate the case of the prosecution for easy reference and also for better appreciation. 9. The case of the prosecution was that the second accused viz., Selvaraj had once served in the field of the deceased viz., Pachaiyappan and since he had not done his duty properly, the deceased had ousted him and he had also attacked him in the presence of others by using a chappal and he also hurled invectives against him and having arranged at the conduct of the deceased. The first accused viz., Pachaiyappan had caught hold of the deceased in the place of occurrence. The first accused viz., Pachaiyappan had caught hold of the deceased in the place of occurrence. The second accused had attacked the deceased by using a cash and the third accused had fisted on the chest and on the back side of the deceased and due to the over act committed by all the accused, the deceased had sustained fatal injuries and initially he had been admitted in Government Hospital, Ramanathapuram and since his condition was critical, he had been referred to Rajaji Government Hospital, Madurai, where he succumbed to injuries and therefore, all the accused had committed the offence under Section 302 read with Section 34 of The I.P.C. 10. As adverted to earlier, the prosecution had chosen to examine P.Ws. 1 to 9 for the purpose of proving its case. The entire case of the prosecution hinges upon Ex.P.1 the complaint. The complainant had been examined as P.W.1 P.W.1 is not an eye witness. One Durairaj and Velu had been examined as P.Ws.2 and 3 and they stated in their evidence that they heard the fact that the deceased had been attacked by some persons. P.W.4 Ramakrishnan is nothing but a mahazar witness. P.W.5 Kanagaraj is the son of the deceased. He stated about the previous animosity existed betwixt the accused and the deceased. P.W.6 Sathyee had stated in her evidence that all the three accused on the date of occurrence had come to the house of the deceased and reported that the deceased had been attacked by some persons. P.W.7 Murugesan had stated about the confession statement alleged to have been given by all the accused. 11. P.W.8 the Doctor who admitted the deceased in Government Hospital,Ramanatha-puram and he stated about the injuries sustained by the deceased. P.W.9 is the Head Constable attached to Tirupullani Police Station who recorded the statement from P.W.1 on 27.2.2002 and registered the same in Crime No. 126 of 2002 under Section 307 of The I.P.C. Further, P.W.9 had stated in his evidence about the investigation done by the Inspector of Police. Therefore, from the narration made above, it is quits clear that in the instant case, eye witnesses had not been examined and the Doctor who conducted autopsy as well as the Investigating Officer had also not been examined. 12. Therefore, from the narration made above, it is quits clear that in the instant case, eye witnesses had not been examined and the Doctor who conducted autopsy as well as the Investigating Officer had also not been examined. 12. The Court below had mainly acquitted all the accused on the ground that the prosecution had not examined any eye witness so as to prove the guilt of the accused under Section 302 read with Section 34 of the I.P.C. Under the aforesaid circumstances, the Court must analyses whether the order of acquittal passed by the Court below is liable to be set aside. Before pondering the lapses committed by the Court below, it had become shunless to look into the decision reported in K. Chinnaswamy Reddy v. State of Andhra Pradesh and Another AIR 1962 SC 1788 wherein the Apex Court had held as follows :- “Where the trial Court has no jurisdiction to try the case but has still acquitted the accused, or where the trial Court has wrongly shut out evidence which the prosecution wished to produce, or where the appeal court has wrongly held evidence which was admitted by the trial court to be inadmissible, or where material evidence has been overlooked either by the trial court or by the appeal court, or where the acquittal is based on a compounding of the offence, which is invalid under the law.” 13. The Court must also look into the decision reported in Thankappan Nadar and Others v. Gopalakrishnan and Another (2002) 9 SCC 393 wherein the Apex Court had held that : ”where the acquittal order did not suffer from any procedural illegality or manifest error of law and the Court passing that order had not overlooked the evidence clinching the issue, the order of acquittal cannot be set aside. 14. From the close reading of the decisions rendered by the Apex Court, the following aspects can easily be discerned. 15. If there was any procedural illegality or error of law or failure eon the part of the trial Court to look into the evidence or glaring defect in the procedure and also flagrant miscarriage of justice, an order of acquittal is liable to be set aside. 16. 15. If there was any procedural illegality or error of law or failure eon the part of the trial Court to look into the evidence or glaring defect in the procedure and also flagrant miscarriage of justice, an order of acquittal is liable to be set aside. 16. The learned counsel appearing for the revision petitioner had emphatically contended that in the instant case, two eye witnesses had been examined under Section 161(3) of The Code of Criminal Procedure and their names had also been found place in the list of witnesses. But for the reasons best known to the prosecution had failed to examine them and further, the Investigating officer as well as the Doctor who conducted Postmortem had also not been examined and under the said circumstances, the Court below had done a clear flagrant miscarriage of justice and in short, the order of acquittal had caused aberration of justice and altogether, the order of acquittal passed by the Court below is liable to be set aside. 17. The learned counsel appearing for the respondents 2 to 4 had also equally contended that even though two eye witnesses are available in the present case, the Public Prosecutor who conducted the Case in the Court below had dispensed them from examining as witnesses and the Court below after evaluating the available evidence on record had rightly come to the conclusion that the prosecution had failed to prove its case and under the said circumstances, there is no inkling or vantage to make interference with the order of acquittal passed by the Court below and altogether, the present Criminal Revision Case deserves dismissal. 18. For considering the rival submissions made by either counsel, the Court has to meticulously look into the connected documents as well as other flagrant mistakes committed by the Public Prosecutor and the Court below. In the list of witnesses, the names of two persons viz., Nagaraj and Sudalai had been mentioned and they had been cited as eye occurrence witnesses. For considering the rival submissions made by either counsel, the Court has to meticulously look into the connected documents as well as other flagrant mistakes committed by the Public Prosecutor and the Court below. In the list of witnesses, the names of two persons viz., Nagaraj and Sudalai had been mentioned and they had been cited as eye occurrence witnesses. The Investigating Officer had recorded statements from them under Section 161(3) of the Code of Criminal Procedure, wherein, they had clearly stated that the first accused viz., Nagaraj had caught hold of the deceased in the place of occurrence and the second accused viz., Selvaraj had attacked the deceased by using cash and the third accused viz., Jaichandran had fisted the deceased on his chest and also on his back side. Therefore, it is quite clear that the said Nagaraj and Sudalai are the eye witnesses in the present case. 19. As rightly pointed out by the learned counsel appearing for the respondents 2 to 4 he Public Prosecutor has dispensed the witnesses namely Nagaraj and Sudali from examining them as witnesses on the side of the prosecution. It has already been pointed out that in the instant case, the witnesses namely Nagaraj and Sudalai are the only eye witnesses. But the Public Prosecutor had not chosen to examine them on the side of the prosecution for the reasons best known to him. At this juncture, it would be apropos to look into the provisions of Section 311 of Criminal Procedure Code. “Any Court may, at any stage of any inquiry trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and reexamine any person already examined and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.” 20. The provisions of Section 311 of the Code of Criminal Procedure can be vivisected into two parts. 21. The first part gives discretion to the Court so as to summon any person as a witness or examine any person in attendance though not summoned as a witness. The provisions of Section 311 of the Code of Criminal Procedure can be vivisected into two parts. 21. The first part gives discretion to the Court so as to summon any person as a witness or examine any person in attendance though not summoned as a witness. The second part is mandatory on the part of the Court to examine or recall or re-examine any such person if his evidence appears to it to be essential to the just decision of the case. 22. The present case comes under the contours of the second part which is mandatory. It had already been pointed out that the witnesses namely Nagaraj and Sudalai are the eye witnesses and they stated in their 161(3) of Statements that they had seen the occurrence and also the manner of attack made by the accused on the person of the deceased. But the Public Prosecutor had failed to examine them as witnesses. Therefore, a primordial duty is cast upon the Court to examine the said Nagaraj and Sudalai as witnesses under the second part of Section 311 of the Code of Criminal Procedure so as to reach just decision of the case. In short, Section 311 of the Code of Criminal Procedure, confers wide powers upon the Court to examine any person whose evidence appears to the Court is very much essential to the just decision of the Court. In the instant case, as taunted in may places, the Public Prosecutor had not chosen to examine the eye witnesses namely Nagaraj and Sudalai. 23. The Court below had acquitted all the accused only on the ground that the prosecution had failed to prove the charge framed against the accused. As pointed out earlier even in the list of witnesses the names of Nagaraj and Sudalai had found place so as to speak the alleged occurrence. 24. As per second part of Section 311 of the Code of Criminal Procedure, the Court below ought to have taken proper steps to examine the eye witnesses namely Nagaraj and Sudalai. Therefore, the Court below had committed clear nonfeasance which resulted flagrant miscarriage of justice. 25. It is also seen from the records that the Public Prosecutor had not only failed to examine the vital witnesses namely Nagaraj and Sudalai but also failed to examine the Doctor who conducted autopsy as well as the Investigating Officer. Therefore, the Court below had committed clear nonfeasance which resulted flagrant miscarriage of justice. 25. It is also seen from the records that the Public Prosecutor had not only failed to examine the vital witnesses namely Nagaraj and Sudalai but also failed to examine the Doctor who conducted autopsy as well as the Investigating Officer. The Court below had not taken any steps to examine the Doctor as well as the Investigating Officer. On that score also, the Court below had committed a stupendous mistake. In fact this Court had closely perused the entire records and found that the Public Prosecutor and well as the Court had done their duty in a perfunctory manner. It is not an exaggeration to say that the Public Prosecutor as well as the Court had adopted desultory conduct. If the witnesses namely Nagaraj and Sudalai had been examined by the prosecution definitely proper decision would have come up. Therefore, it is very clear that the Court below had done manifest error in conducting trial of the case and also done nonfeasance which resulted flagrant miscarriage of justice. Since the Court below had committed the above lapses, it is needless to say that the order of acquittal passed by the Court below is liable to be set aside. In the Light of the discussion made earlier, it is clear that the argument advanced by the learned counsel appearing for the revision petitioner is having merit and whereas the argument advanced by the learned counsel appearing for the respondents 2 to 4 is not having subsisting force. 26. In fine, this Criminal Revision Case is allowed and the order of acquittal passed in Sessions Case No.11/03 dated 31.1.2003 by The Additional District Court-cum-Fast Track Court, Ramanathapuram is set aside and the case is remitted to the Additional District Court-cum-Fast Track, Court, Ramanathapuram. The Additional District Court-cum-Fast Track Court, Ramanahapuram is directed to conduct trial afresh and dispose of the case within four months from the date of receipt of the records and report the same to the Registry without fail.