Judgment:

Dr. Arijit Pasayat, J.

1. Leave granted.

2. Challenge in this appeal is to the judgment rendered by a learned Single Judge of the Madhya Pradesh High Court. The respondents faced trial for alleged commission of offences punishable under Section 307 read with Sections 149 and 148 of the Indian Penal Code, 1860 (in short the `IPC). Learned Additional Sessions Judge, Shihore, found the accused respondents guilty and sentenced each to undergo rigorous imprisonment for five years with fine and 6 months rigorous imprisonment for the other two offences. By the impugned judgment the High Court held that the appropriate conviction would be under Section 326 read with Section 149 IPC. Custodial sentence was reduced to the period already undergone, while the fine amount of Rs.500/-was enhanced to Rs.20,000/-.

3. Prosecution version as unfolded during trial is as follows:

On 21.7.1987 at about 4 Oclock in the evening the complainant-victim Jai Singh (PW5) was at the grass field for the purpose of grazing the cattle. The wife of respondent Lila Kishan and wife of Bapulal came there to collect some leaves in the field. Thereafter on account of some earlier enmity the respondents armed with rifle, sticks and axe came there and the accused Lilakishan, Bapu and Kashiram caught hold of the said victim while other accused Jagannath and Amar Singh tied his hands and legs by turban and accused Laakhan with the help of clothes pressed his mouth. Thereafter, his legs were caught by the respondents Bapu and Lila Kishan, while Kashiram chopped off the lower part of the left leg. Gangaram stood there with rifle. The victim sustained injuries on his back, right eye and left leg. After the incident the accused persons ran away from the spot. However, the victim reached the field of Chain Singh and mentioned the incident to him. Umrao Singh and Roop Singh took him to his home. They called the watchman and mentioned him the incident. Due to heavy rain, Jai Singh lodged the report to Police, Ahmadpur on 22.7.1988 at 6.40. On registering the offence, the victim was referred to hospital. The M.L.C. Report was prepared. He was admitted in the hospital and remained under treatment. On completion of the investigation, the accused persons were charge sheeted under Sections 147, 148, 149 and 326 and 307 IPC. The Trial court believed the evidence of the victim PW 5 and also the other evidences brought on record and recorded conviction and imposed sentences as aforestated. The accused persons preferred an appeal before the High Court where the basic stand was that offence under Section 307 IPC is not made out. The High Court held that there was no material on record to show that the injury was sufficient to cause death in the ordinary course of nature. It was observed that chopping of the leg from the body cannot be treated sufficient to cause death. As noted above with the aforesaid observation the conviction and the sentence were altered.

4. In support of the appeal learned counsel for the appellant-State submitted that the High Court has completely overlooked the gruesome nature of the offence. It has also overlooked the evidence of PW1, the Doctor that the injury could have caused death.

5. Learned counsel for the respondent on the other hand supported the judgment of the High Court.

6. With dismay we observe that the High Court has completely overlooked the evidence on record and the impugned judgment shows total non-application of mind. The High Court observed that the doctor has not stated that the injury was sufficient to cause death in the ordinary course of nature. PW 1 had noted that 1/3 of the leg was chopped off below the knee. He had categorically stated that the injury could have caused death. The Doctor (PW14) i.e. the Radiologist clearly stated that the aforesaid chopping of the leg was grievous in nature. With some strange logic the High Court observed that merely on the testimony of PW1 it cannot be assumed that the injury was sufficient