A.D.V. Reddy, J.
1. This petition is by the complainant examined as P. W. 1 in S, C. 15/70 on the file of the Assistant Sessions Judge, Nizamabad to revise the Judgment of the Sessions Judge, Nizamabad setting aside the conviction of the 16 accused under Sections 148 and 307, I. P.C. and under Section 324 I. P.C. against A-2, A-4 to A-11 A-14 to A 16 and Convicting instead only A-l, A-3. A-12 and A-13 under Section 323, I. P.C.
2. The case of the prosecution was that there was a dispute on account of a Father in the Roman Catholic Church constructing a house in the site belonging to Brahmamgari Mattam in the Village of Dharmaram and in that connection there was a faction led by P. W. 1 on one side and A-l on the other and in October 1968. P. W, 1 was beaten on the pretext that he trespassed into the house of one Satyanarayana and molested his wife and as there was an apprehension of the breach of peace, the police took action under Section 107. Cr. P.C. that on 15-2-1969 K. Satyanarayana was beaten by Viswanatham and others and he was admitted in the headquarters' hospital at Nizamabad that the next day there was a false rumour in the village that Satyanarayana succumbed to the injuries in the hospital and thereupon all the accused met in the house of A-14 and conspired to put an end to P. W. 1. and his party members, that at about 8-30 A. M. that day. all the accused formed themselves into an unlawful assembly armed with lathies with the common object of beating P W. 1 and his party men left the house dividing themselves into three batches and while A-14 and his son A-4 and two others stood in the lane leading to Ananthaiah's house, the remaining two batches went towards the hotel situated in the main road and there beat P, Ws. 7 and 8. that from there they went to house of P. W. 1 and surrounded it, started abusing P. W. 1 in filthy language and threatened to set lire to the house as the inmates of the house bolted the house from inside, that thereupon P. Ws. 1 and 4 who were inside the house were trying to escape through rear door and at the same time when four constables arrived through the main gate, the accused ran behind the house and there seeing P. W. 1 beat him with sticks on his legs and other parts of the body and then ran away, that on a report given by P. W. 6, a case was registered and P. W. 1 was sent to the hospital. P. W. 11 examined P. W. 1 and also P. Ws. 7 and 8 and issued the wound certificates and after investigation the charge sheet was filed. The prosecution examined 17 witnesses in support of their case. The accused denied their having committed the offence in their statements and further contended that the case has been foisted on them by the members of the other party. No witness was examined in their defence.
3. The Assistant Sessions Judge convicted all the accused under Sections 148 and 307 IPC and sentenced them to undergo R. I. for 2 years and 31/2 years respectively and A- 5 to A-12 under Section 324 IPC and sentenced them to R. I. for 2 years directing the sentences to run concurrently. On appeal the learned Sessions Judge found that the prosecution had established satisfactorily. The case against A-l. A-3, A-12 and A-13 for beating P. W. 1 and not against the rest of the accused and even with regard to the offence committed by A 1, 3. 12. and 13 he found that on the evidence on record the accused could not have intended to cause the death of P. W. 1 and the fractures sustained by P. W. 1 have not been established by examining the Radiologist and the production of Xray photographs and that the offence committed would only fall under Section 323 IPC in that view he set aside the convictions against all the accused and convicted A-l. 3, 12, and A-13 only under Section 323 I. P. C'. The State has not chosen to prefer any appeal. This petition has been filed only by the complainant P. W. 1.
4. The contentions raised in this petition are that the Sessions Judge was wrong in acquitting the accused of the charges under Section 307 IPC that the material evidence was over-looked by the court and the evidence relating to common object has not been discussed. The powers of the High Court to interfere with the acquittals in revision are circumscribed by the provisions of Section 439 Cr. P.C. Under Section 439 Cr. P.C. Sub-clause (4) the High Court cannot convert a finding of acquittal into one of conviction. Even with regard to the powers of the High Court to remand the case for re-hearing by the appellate Court, as is sought for in this case, the powers are limited,
5. In D Stephens v. Nosibolla : 1951CriLJ510 . it was observed that the revisional jurisdiction conferred on the High Court under Section 439 of the Code of Criminal Procedure is not to be lightly exercised when it is invoked by a private complainant against an order of acquittal, against, which the Government has a right of appeal, and that it could be exercised only in exceptional cases where the interest, of public justice require interference for the correction of a manifest illegality or the prevention of gross miscarriage of justice. This view was again reiterated in Logendranath Jha v. Polailal Biswas : 2SCR676 where it was pointed out that the High Court in a revision filed by a private party against the order of acquittal, cannot interfere with the acquittal in the absence of an error on a point of law and what it cannot do under Section 439 Cr. P.C. Sub-clause (4) it cannot do indirectly by ordering retrial. Basing on the above two decisions in Chinnaswamy v. State of Andh Pra : 3SCR412 , the Supreme Court again administered a warning against the High Court's interference in revision and stated that such interference should be in exceptional cases when there is some glaring defect in the procedure or there is a manifest error on point of law and. consequently there has been a flagrant miscarriage of justice.
6. In this case according to the counsel for the petitioner-P. W. 1 herein. the appellate court had overlooked the material evidence in convicting some of the accused only under Section 323 I. P.C. instead of confirming the conviction of all the accused under Sections 148 and 307. In addition to the above, he has filed a petition to summon the Radiologist and examine him here and has relied on the decision in Raieswar Prasad v. State of west Bengal AIR 1965 S.C. 1887 : (1965) (2) Cri LJ 817 This is a decision that deals with the powers of the appellate court on an appeal filed against an acquittal, but not with the powers of the High Court in revision. It is not open to the High Court sitting in revision to fill up the lacuna in the prosecution case by allowing the examination of witnesses who should have been examined by the prosecution in the lower court. Even the Sessions Judge has dealt with the case on the evidence before him and as the doctor who examined P. W. 1 only stated that there was suspected fracture and as the evidence of the Radiologist who took the X-Ray photographs was absent, the Sessions Judge chose to find that a case of grievous hurt has not been established. This is a question of appreciation of evidence and not a question of overlooking the material evidence in the case. Even with regard to the other evidence, the Sessions Judge has gone into the merits of the case and discussed it fully. It may at best amount to a wrong appreciation of evidence and cannot be styled as overlooking material evidence. As stated already, this Court cannot interfere in revision with an order of acquittal unless there is a glaring defect in the procedure adopted or there is a manifest error on a Point of law and consequently there was a flagrant miscarriage of justice. It cannot be said that the lower court's judgment suffers from any of the above infirmities warranting any interference with the acquittal of A-2. A-4 to A-ll. and A-14 to A-16 of all the charges and A-l A-3, A-12 and A-13 of the charges under Sections 148 and 307 and convicting them under Section 323 I. P.C. only.
7. This petition, therefore, fails and is dismissed.