B. K. BEHERA, J. ( 1 ) EACH of the eight petitioners stands convicted under sections 379 and 427 of the Indian Penal Code (for short, the Code) and sentenced to pay a fine of Rs. 50/- and in default of payment thereof, to undergo rigorous imprisonment for one week in respect of each of the two offences by the learned appellate Judge who has maintained the orders of conviction, but has modified the sentences imposed on the petitioners by the trial court. The case of the complainant-opposite party was that on November 28, 1976, the petitioners cut away a portion of the fence to the east of his land and some branches of a mango tree standing on his land and removed the same. The petitioners plea was one of denial and false implication owing to previous grudge and ill will. The complainant-opposite party had examined himself as P. W. 1 and had examined three other witnesses. Two of them, namely, P. Ws. 2 and 3, had spoken about the occurrence and P. W. 4 had come to the scene after the occurrence was over. The petitioners had examined one witness in their defence. ( 2 ) THE learned counsel for the petitioners has submitted that the findings recorded by both the courts are unreasonable, unfounded and illegal calling for interference by this Court in its revisional jurisdiction. It has, on the other hand, been submitted by the learned counsel for the opposite party that there is no justifiable reason to set at naught the concurrent findings recorded by the two courts. ( 3 ) IT is well-settled that normally the jurisdiction of the High Court is to be exercised only in exceptional cases when there is a glaring defect in the procedure or there is a manifest error on a point of law which has consequently resulted in flagrant miscarriage of justice. The High Court is not to act in its revisional jurisdiction as if it is hearing an appeal. But when the findings recorded by the trial and appellate courts are found to be unreasonable or unfounded, interference is called for. After all, concurrent findings do not become infallible merely because they are concurrent. The High Court is not to act in its revisional jurisdiction as if it is hearing an appeal. But when the findings recorded by the trial and appellate courts are found to be unreasonable or unfounded, interference is called for. After all, concurrent findings do not become infallible merely because they are concurrent. ( 4 ) IT is important to keep in mind that in respect of the case of theft of the branches of the mango tree and a portion of the cut fence, no question had been put to any of the petitioners while recording their statements under section 313 of the Code of Criminal Procedure. It is fundamental that the attention of the accused should be drawn to every inculpatory material so as to enable him to explain it. This is the basic fairness of a criminal trial and failure in this area may imperil the validity of the trial itself, if there has been consequential miscarriage of justice. As held by the Supreme Court in Sharad Birdhichand Sardo v. State of Maharashtra,1 circumstances not put to the accused during his examination by the court cannot be used against him. If in a case of theft, no question is put to an accused with regard to this allegation, prejudice must be assumed as the accused person had no reasonable opportunity to explain the incriminating evidence against him. The order of conviction passed against the petitioners under section 379 of the Code must accordingly be set aside. ( 5 ) COMING to the question of damage to the fence, P. W. 1 had not stated that he had raised the fence which had allegedly been cut. As the evidence would show, the petitioners and the opposite party had contiguous lands. The evidence of P. W. 1 was that the petitioners cut a portion of the fence to the east of his Ban. He had not, in terms, stated that the fence had been raised by him or that it belonged to him. As for cutting of two branches of a mango tree, it was not the case of the complainant-opposite party that all the petitioners cut the two branches. His evidence was that the petitioner Bata Mallik had cut the two branches of the mango tree. The witnesses to the occurrence, namely, P. Ws. As for cutting of two branches of a mango tree, it was not the case of the complainant-opposite party that all the petitioners cut the two branches. His evidence was that the petitioner Bata Mallik had cut the two branches of the mango tree. The witnesses to the occurrence, namely, P. Ws. 2 and 3 had, however, made an omnibus statement that the petitioners had cut the two branches of the tree. The allegation was that only two branches had been cut and the petitioners were eight in number. The evidence of P. Ws. 2 and 3 that all the petitioners had cut the branches of the mango tree could not glibly be accepted. P. Ws. 2 and 3 had not testified, as had been deposed to by P. W. 1, that the petitioner Bata Mallik had cut the two branches of the tree. In such state of evidence, to allow the findings of the two courts to stand on the ground that they are concurrent would certainly cause injustice to the petitioners. The case of mischief had not been established by the prosecution. ( 6 ) THERE had been delay in making the complaint in the court. While the occurrence had allegedly taken place on November 28, 1976, the petition of complaint was made in the court on December 7, 1976. The reason for the delay, as the complainant-opposite party had sought to explain, was a proposed settlement which had been suggested by the villagers and ultimately not agreed to by the petitioners. Apart from the oral evidence of P. W. 4 in this regard, there was no documentary evidence in support of this plea of the complainant-opposite party regarding the cause of delay. Thus delay in making the complaint had not been explained satisfactorily and due notice had not been taken by the courts below with regard to the unexplained delay in making the complaint. ( 7 ) FOR the foregoing reasons, I am of the view that the orders of conviction passed by the two courts under sections 379 and 427 of the Code are unreasonable and illegal and must be set aside. I would allow the revision and set aside the orders of conviction and sentences passed against the petitioners. .