Credibility of witnesses and partial corroboration of testimony are crucial in establishing guilt. The gravity of the assault and its consequences influence the application of the Probation of Offenders Act.

S.K. Kar, J.

1. This revision petition is directed against the judgment and order dated 31.5.1995 passed in Criminal Appeal No. 11/95 by learned Single Judge, Golaghat, affirming the judgment/order dated 6.3.1995 passed by CJM, Golaghat, in case No. G.R. 893/89. The present petitioner Shri Minaram Sonowal, who was the accused in this case, was convicted under Section 326 of IPC and sentenced to R.I. for six months together with a fine of Rs. 1,000 etc. On the accusations brought against him and accepted as proved.

2. The brief facts are as follows : On 24.6.1989 at 3.00 p.m. while Sri Gunja Phukan was talking to his friend Bipul Bora alias Chutia at tri-junction point (Tiniall) of Amuguri village, accused Minaram Sonwal (petitioner) alighting from a truck suddenly started striking on Gunja Phukan indiscriminately with a dager (khukuri) resulting in serious cut injuries to his person lading to his unconsciousness.

3. FIR being lodged police registered Merapani PS. Case No. 92/89, under Section 326 of IPC (Case No. G.R. 893/89), investigated the same and submitted charge-sheet. Charge was framed by the trial court under Section 326 IPC, explained to the petitioner/accused to which the petitioner pleaded not guilty and trial proceeded.

4. In course of trial 6 witnesses were examined including the doctor and the I.O. They are the informant, Guna Ram Phukan (P.W.-1), Bipual Bora alias Chutia (P.W.-2), Nenai Sonowal (P.W.-3), Gunja Phukan, the victim (P.W.-4), Shri Tankeswar Dutta the I.O. (P.W.-5) and Dr. Ruhini Kr. Deka, the medical expert (P.W.-6). The statements of accused (petitioner) under Section 313 Cr.P.C. was recorded. Written argument from defence was received and finally trial court passed the impugned judgment as stated before-hand without giving the petitioner any benefit of the Probation of Offenders Act, 1958, in view of the gravity of the assault etc.

5. Defence plea appears to be a case of denial simpliciter with submission that petitioner was implicated out of grudge and victim was in habit of quarrelling with village boys taking liquor and brandishing 'khukuri', (It is not correct to say that there was no recording of statements of the accused under Section 313 Cr.P.C. as mentioned in para 5 of the revision petition).

6. The petitioner contends that there was gross errors committed by the learned courts below and the learned appellate court without arriving to its own independent findings had simply affirmed the views of the trial court and ignored the fact that the witnesses claimed to be eye witnesses by the prosecution did not support the accusation against the petitioner.

7. It requires no reiteration that revisional court, in exercising power under Section 397 Cr.P.C. particularly when there is concurrent findings of the facts by the two courts below, can only examine the correctness, legality or propriety of any finding recorded or order passed etc. But then, the power under Section 397 Cr.P.C. is discretionary and higher courts step in only to cure, in exceptional cases, any miscarriage of justice. Court is not supposed to behave as an appellate court while exercising jurisdiction of revisionary power under Section 397 Cr.P.C. Bearing in mind the law aforesaid, let us examine the evidence on record in order to see whether there is any error, illegality or impropriety in the findings of the two courts below, particularly in appreciating the evidence on record.

8. The victim, P.W.-4 giving his age 20 years on the date of his deposition (4.7.1992) was around 17 years of age on the date of occurrence which is 24.6.1989. As per his evidence on the date of occurrence he was returning from sugarcane field at about 3 p.m. to his house. At Amuguri Tiniali he met Bipul Chutia (P.W.-2) and started talking to him. He felt blow of a khukuri on his head from back side and making a quick turn he noticed the petitioner and recognised him. He raised his right hand to ward off further assault but received the second blow on