S. K. MOHANTY, J. ( 1 ) THIS revision is directed against the appellate decision of the Sessions Judge, Sundergarh confirming the judgment passed by Assistant Sessions Judge, Sundergarh in Sessions Trial No. 14/4 of 1988 convicting the two petitioners under section 307/34 I. P. C. and sentencing each of them to undergo rigorous imprisonment for four years and to pay fine of Rs. 1,000/- in default to undergo rigorous imprisonment for six months more. ( 2 ) THE two petitioners and the injured P. W. 2 are brothers being the sons of one Rampal. Prosecution alleged that on 17. 1. 1987 at about 2. 30 P. M. when P. W. 2 Mageswar was returning after attending a feast on the bank of river thumb, both the petitioners appeared before him and out of them petitioner Karla by means of falsia aimed a blow at the neck of Mageswar and when latter tried to ward off the blow, it hit his right thumb and chopped it off. Soon thereafter petitioner Asadhu gave an axe blow on his buttock. Mageswar sustained profuse bleeding injuries and ran to village Mlilidhi, where he was nursed. From there, he was removed to Subdega Public Health Centre where he was hospitalised for three months. As a result of the incident Mageswar lost his right thumb permanently. ( 3 ) THE petitioners took the plea of denial and contended that they have been falsely implicated in the case. ( 4 ) AS many as 13 witnesses were examined, for the prosecution. P. W. 1, the brother-in-law of the injured while claiming to have seen that incident, lodged F. I. R. at Kinjirkella Police Station situated at a distance of 25 K. Ms. from the place of occurrence on the following day at about 1 P. M. P. W. 3 is the son of the injured. Co-villagers, P. Ws. 5, 6 and 8 were examined as occurrence witnesses, but they did not support the prosecution and denied their knowledge about the occurrence. P. Ws. 10 and 11 are residents of Malidhi who claimed to have seen the injuries on the thumb and buttock of the injured, P. W. 4 the wife of the injured heard about the incident from P. Ws. 1 and 3 and rushed to Malidhi where she saw her husband in injured condition.
P. Ws. 10 and 11 are residents of Malidhi who claimed to have seen the injuries on the thumb and buttock of the injured, P. W. 4 the wife of the injured heard about the incident from P. Ws. 1 and 3 and rushed to Malidhi where she saw her husband in injured condition. The two petitioners have been convicted and sentenced as above relying on the direct evidence of occurrence witnesses. P. Ws. 1 to 3, the post-occurrence witnesses, P. Ws. 4, 10 and 11 and medical evidence of the doctor P. W. 9. ( 5 ) MR. Misra, learned counsel for the petitioners attacked the order of conviction and sentence on the following grounds P. Ws. 1 and 3 are direct relations of the injured. Prosecution story is not corroborated by independent witnesses P. Ws. 5,6 and 8. Prosecution has not examined the other eye witness Toya Pradhan, who according to P. W. 1 attended the feast. The admission of P. W. 1 in his evidence that the participants of the feast took alchohol has not been considered by the courts below to find out if there was possibility of injuries being sustained during free fight among the participants. There is discrepancy in the evidence as to whether the assault took place when P. W. 2 and others, were silting or returning after taking the feast. On these grounds, it is submitted that the prosecution evidence needs re-appreciation by this Court. ( 6 ) NO infirmity whatsoever in the evidence of P. Ws. 1, 2 and 3 who directly implicated petitioners as assailants could be pointed out at the time of hearing. Their evidences are also corroborated by P. Ws. 10 and 11, residents of a different village, who claimed to have seen the right thumb of P. W. 2 missing and bleeding injuries on his right palm and buttock. The doctor P. W. 9 examined P. W. 1 on the date of occurrence and found a sharp cut injury (right thumb excised from the base) another sharp cut injury at the lateral and of the first secral vertabrel (buttock ). The Investigating Officer, P. W. 12 visited the spot, which is the bank of river In where the new utensils used in the feast and blood on the earth.
The Investigating Officer, P. W. 12 visited the spot, which is the bank of river In where the new utensils used in the feast and blood on the earth. He seized from the spot the cut portion of the right thumb and some blood-stained sand under Exts: 1 and 2. The falsia M. O. II and axe M. O. III were seized from the house of petitioners on 20. 1. 1987. The doctor has stated that the injury on the buttock and the right thumb could be caused by M. Os. III and II respectively. ( 7 ) THE courts below have carefully examined the above direct and circumstantial evidence and accepted the same. On the point of re-appreciation of evidence, by the Court of revision Mr. Mishra pressed into service two single bench decisions of this Court which may now be referred to. ( 8 ) IN Dambarudhar Pradhan1, while stating that in a criminal revision this Court does not ordinarily go into the matter of evidence, K. P. Mohapatra J. has further stated that if in a given case there is non - consideration or misconstruction of evidence, there is no bar for the court to glance at the evidence for doing substantial justice to the parties. In that case, the Executive Magistrate without discussing the evidence of the witnesses individually or as to their credibility, came to hold that none of the parties proved his exclusive possession and so he was unable to satisfy himself as to which of them was in possession of the disputed land on the date of preliminary order. In this background Mohapatra, J. appraised the evidence and concluded that the evidence should have satisfied the Executive Magistrate that on the date of the preliminary order petitioner was in possession of the land in dispute. In such special facts, for doing substantial justice this Court exercising revisional power resorted to appraisal of the evidence. ( 9 ) IN Purandar Bhukta, V. Gopalaswamy, J. proceeded to re-assess the prosecution evidence with the clear realisation that this is not done normally while exercising revisional jurisdiction, because there existed serious infirmities in the prosecution case. The revision arose out of a case under section 323, I. P. C. and infirmity appeared in the evidence of the informant injured himself. Further his statement did not at all fit in with the medical evidence on record.
The revision arose out of a case under section 323, I. P. C. and infirmity appeared in the evidence of the informant injured himself. Further his statement did not at all fit in with the medical evidence on record. The Courts below were guilty of most superficial appreciation of evidence. Thus there were some special facts in that case which justified re-assessment of the prosecution evidence in revision. ( 10 ) APPRECIATION of evidence are functions of trial and appellate courts who alone are to judge whether discrepancies in depositions of witnesses are material or not on the facts and evidence appearing in a particular case, the High Court sitting in appeal may arrive at a totally different conclusion but that cannot be a ground for interference while exercising revisional power. Concurrent findings of fact are not open to attack in revision, save in exceptional cases when conclusion on facts is grossly and palpably unjust or perverse. In this connection, the Apex Court in Duli Chand v. Delhi Administration, A. I. R. 1975 S. C. 1960 has held that the jurisdiction of the High Court in a criminal revision application is severely restricted and it cannot embark upon a reappreciation of evidence. ( 11 ) IN the case at hand, the findings of facts recorded by the courts below are backed by the direct testimony of P. Ws. 1 to 3, indirect testimony of P. Ws. 10 and 11 and the medical evidence. The ultimate conclusion on fact drawn by the courts below on the above materials cannot be said to be either unjust or perverse, because one more eye-witness has not been examined, some independent witnesses did not support the prosecution and the direct evidence is interested testimony. High Court is to exercise revisional powers in exceptional cases when there is glaring defect in procedure or manifest error of law which has resulted in flagrant miscarriage of justice. As to the glaring defect in procedure, some instances are improper admission, shutting out, overlooking or rejection of material evidence, misreading of documentary evidence, nonobservance of material provision of procedural law, wrong placing of burden of proof, etc. As to manifest error of law, some instances are, want of jurisdiction and want of sanction. In either case, for interference by the revisional court there must be flagrant miscarriage of justice.
As to manifest error of law, some instances are, want of jurisdiction and want of sanction. In either case, for interference by the revisional court there must be flagrant miscarriage of justice. No such procedural defect or error of law leading to miscarriage of justice has been pointed out by the petitioners at the hearing. ( 12 ) AS found by the courts below, P. W. 2 was assaulted by falsia and axe, both of which are sharp cutting instruments. Petitioner Karla aimed the falsia blow at the neck of P. W. 2, but it hit his right thumb and chopped it off, and soon thereafter the other petitioner Asadhu gave an axe blow on P. W. 2sbuttock. The injury on the buttock was 3-1/2 inch long, one inch wide and one inch deep. From these materials conclusion has rightly been drawn that both the petitioners shared the common intention to kill P. W. 2 and if death would have ensued then they would have been found guilty of murder. Consequently, therefore, the petitioners have been rightly convicted for the offence under section 307 reado-with section 34 I. P. C. The sentence of four years of rigorous imprisonment imposed on each or them does not appear to be either high or excessive. In the facts of the case, however, I am of the view that only sentence of imprisonment as above would meet the ends of justice. The same is therefore maintained and the sentence of fine is set aside. ( 13 ) WITH the modification in sentence as above, the revision is dismissed. Appeal dismissed.