JUDGMENT Palok Basu, J. 1. Two brothers Dwarika alias Lalla and Keshav Dubey sons of Ram Kripil have preferred this appeal against their conviction u/Sec. 302/34 IPC sentencing them imprisonment for life, as awarded by the third Additional District Judge, Gorakhpur in Sessions Trial No 135/78. 2. One Vishwanath and two appellants were prosecuted under Section 302/34 IPC on the charge that in furtherance of their common intention the three accused caused fatal lathi injuries to Sarjoo Pandey at about 8.30 A. M. in village Bhandaro, Police Station Chilawa Tal, district Gorakhpur. The informant of this case is Dinesh Chandra son of deceased Sarjoo Pandey. According to the prosecution case, he was accompanying his father on the day of the incident upto the Railway Station Jagatbela, wherefrom they would have proceeded to their different destination. When the two had reached near about the pipal tree in village Bhandaro, the three accused (two appellants and Vishwanath) were present there alongwith lathis. Keshav alias Lalla Dubey incited the others saying that the deceased would not be compromising the matter. Let us kill him today. At this, all the three belaboured Sarjoo Pandey with their lathis causing him injuries, consequent upon the hue and cry, raised, Shiv Kumar Shukla, Arindam Dubey, Ram Kriksha Tiwari and Gabboo Yadav reached the spot and said why the accused were beating teacher Sarjoo Pandey deceased. At this the accused ran away. The prosecution case further is that the victim was carried by the informant alongwith two other persons namely Badal Yadav and Shobhi Yadav, who took the victim to the district hospital Gorakhpur, where the victim expired around 10 30 A. M. Consequently, Dinesh Chandra lodged FIR at P. S. Kotwali district Gorakhpur on 12-8-77 at 11 A. M. Lost Mortem examination was conducted on the dead body of Sarjoo Pandey on 13-8-77 at 2 P. M. by Dr. P. N. Awasthi PW 5 who found the following ante-morten injuries on the person of the deceased. "Antemortem injury- 1.Contusion with swelling 4" x 3" on lower half outer right upper arm. 2.Contusion with swelling 4-1/2" x 3" on lower half outer part left upper arm. 3.Abraded contusion 3-1/2" x............part of left knee. 4.Seven oblique hardled contusion on back coming from right to left side varying from 8" x 1" to 5" x 1" 3. "Antemortem injury- 1.Contusion with swelling 4" x 3" on lower half outer right upper arm. 2.Contusion with swelling 4-1/2" x 3" on lower half outer part left upper arm. 3.Abraded contusion 3-1/2" x............part of left knee. 4.Seven oblique hardled contusion on back coming from right to left side varying from 8" x 1" to 5" x 1" 3. On internal examination, fracture lower 1/3 right humerous, multiple fracture lower 1/3 left humerous was found. Mo other internal damage was noted in the Post-Mortem Examination Report. However, the opinion as to the cause and manner of the death, as is apparent from the said report, is that the death was caused due to shock and internal haemorrhage as a result of the injuries described. After due investigation, Chargesheet was submitted by PW 4 Laxmi Narain Yadav against two appellants whereas co-accused Vishwanath was apparently absconding and as such the charge sheet against the said accused was filed as absconder. After due committal proceedings, the accused were committed to the Court of Sessions and the Sessions Judge has, believing the prosecution case, convicted and sentenced the appellants as stated above. 4. Both the accused have pleaded not guilty and have attributed their false implication due to enmity. They have examined two defence witnesses Udbhav Nath Tiwari and Amir Ahmad in order to prove that one of the witness Shiv Kumar Shukla had filed an affidavit in the Court of the Chief Judicial Magistrate, Gorakhpur, denying the witnessing of the incident as alleged in the First Information Report. In order to prove the case, the prosecution examined three eye witnesses namely Dinesh Chandra Pandey, PW 1, Shiv Kumar Dubey PW 2 and Gabboo Yadav PW 3. The second set of witnesses were formal in nature and they consisted of PW 4 Station Officer, Laxmi Narain Yadav who is one of the Investigating Officers, PW 5 Dr. In order to prove the case, the prosecution examined three eye witnesses namely Dinesh Chandra Pandey, PW 1, Shiv Kumar Dubey PW 2 and Gabboo Yadav PW 3. The second set of witnesses were formal in nature and they consisted of PW 4 Station Officer, Laxmi Narain Yadav who is one of the Investigating Officers, PW 5 Dr. P. N. Awasthy who conducted the Post Mortem examination on the dead body of Sarjoo Pandey, deceased, I. P. Singh PW 6 is the doctor who was posted in the District Hospital Gorakhpur, who had examined the victim when alive, Sub-Inspector Rajeshwar Shukla PW 7 is also one of the Investigating Officers and Head Constable Kailash Nath and Head Constable Sri Prakash PW 8 and 9 are deposing about the lodging of the F.I.R. We have heard Sri Jagdish Singh Sengar, learned Counsel for the petitioner and Sri T. N. Sinha, learned Government Advocate on behalf of the State of Uttar Pradesh and we have examined the record. 5. The learned Trial Judge has discarded the evidence of Shiv Kumar PW 2 and Gabboo Yadav PW 3. He placed implicit reliance upon the evidence of PW 3 Dinesh Chandra, the informant. On scrutinising the judgment and evidence we do not find any reason whatsoever to differ from the finding of the Sessions Judge concerning discarding of the evidence furnished by Shiv Kumar Shukla and Gabboo Yadav. Learned Counsel for the appellants wanted to criticise the testimony of Dinesh Chandra PW 1 informant and said that in all likelihood he should have received injuries had he been present at the time of the incident. No injury was found on the informant Dinesh Chandra. It is true that if he would have been present at the place of incident, he would have jumped upon his father to save him and then he too should have sustained injuries. But, the fact remains that he was aged about 16 or 17 years on the date of incident. Therefore, to expect that in the face of three persons belabouring his father with lathis the young lad of 16-17 years would have jumped upon those persons to save his father, will be expecting too much from the lad. Therefore, the testimony of Dinesh Chandra PW 1 that he was present on the spot can not be decried. Therefore, to expect that in the face of three persons belabouring his father with lathis the young lad of 16-17 years would have jumped upon those persons to save his father, will be expecting too much from the lad. Therefore, the testimony of Dinesh Chandra PW 1 that he was present on the spot can not be decried. THEre is a ring of truth in his statement when he deposes that he had made cries to save his father. His presence also is probable keeping in view the fact that he was a student and for that he had to travel from his village by train to join the College. His father was a School teacher and he too has to leave the village and go to the School by train for earning his livelihood. Under the circumstances the going of PW 1 Dinesh Chandra with his father deceased Sarjoo Pandey and having seen the occurrence is more than probable and has to be believed. 6. Learned Counsel for the appellants has vehementally argued that even if the entire prosecution case is accepted to be true, the offence will not go beyond Section 325 IPC. Sri T. N. Sinha, learned Government Advocate has on the other hand argued that in view of the evidence provided by the testimony of the Doctor P. N. Awasthi PW 5 who conducted the Post Mortem examination the case must be held to go to Section 304 Part II of IPC. This takes us to the discussions as to what are the injuries and what offence is made out because we have no reason to disbelieve or doubt the eye witness account provided by Dinesh Chandra PW 1. We have seen that the deceased had only four ostensible lathi injuries. None of them were found on the vital part of the body. Injury Nos. 1, 2 and 3 are on the two arms and left knee respectively. Injury No. 4 indicates 7 lathi injuries on the back. There was no fracture inside the chest/stomach region. According to the Post Mortem Report, the lower 1/3 of the right humerous and lower 1/3 left humerous were alone found fractured. It is true that the doctor in the Post Mortem report has written 'internal haemorrhage' as the reason attributed for causing death of the deceased. There was no fracture inside the chest/stomach region. According to the Post Mortem Report, the lower 1/3 of the right humerous and lower 1/3 left humerous were alone found fractured. It is true that the doctor in the Post Mortem report has written 'internal haemorrhage' as the reason attributed for causing death of the deceased. However, in his testimony in the court the doctor has nowhere stated as to which part of the organ or the cavity in the chest or stomach region had any internal haemorrhage. From the Post Mortem report we could not find any place or organ where the doctor had found accumulated blood. Therefore, the opinion that the deceased has died due to internal haemorrhage is based on particularly no evidence. The courts come to a finding as to what offence is made out mostly relying upon the opinion of medical expert particularly concerning the matter of haemorrhage. We expect that the doctors who perform the Post Mortem would specifically tell the court all datas for opining internal haemorrhage causing death. Haemorrhage, if any, must be specifically noted in the Post Mortem report. In the absence of the aforesaid details in the post mortem report, the opinion of the medical expert will just be an opinion which can not be tested on the touchstone of reasoning and may cause prejudice to the case of the accused. To repeat, in the instant case, we are left with no details whatsoever, as to what internal haemorrhage was caused which may have resulted in death of the deceased. From the four external injuries sustained by the deceased as noted in the Post Mortem report, no internal haemorrhage has been apparently caused. Consequently, the benefit of this has to be extended to the accused and from this point of view an offence only under Section 325 IPC can be said to have been made out because of the two fractures on the arm. The charge under Section 302 IPC has not been brought home and the appellants have to be acquitted thereunder. 7. Coming to the question of sentence the appellants learned Counsel argued that the appellants had surrendered before the Chief Judicial Magistrate on 2nd of September 1977 and were bailed out on 18th September 1977. They remained in Jail as under-trial prisoners for nearly three weeks then. 7. Coming to the question of sentence the appellants learned Counsel argued that the appellants had surrendered before the Chief Judicial Magistrate on 2nd of September 1977 and were bailed out on 18th September 1977. They remained in Jail as under-trial prisoners for nearly three weeks then. The Sessions Judge, passed the order of conviction on 20-9-1978 when both were taken into custody and after the bail order by the High Court in the appeal, they were released on bail on 27th September 1978. Thus both of them had undergone the sentence of about a week as convicts. In other words, it is argued, that nearly a month imprisonment has already been undergone by both the appellants. It was frantically argued that sending the appellants back to jail for some more months or years will not serve the cause of justice particularly when they were prepared to pay some fine which will not be taken as enhancement of sentence. Sri T. N. Sinha learned Counsel for the State says that if some fine is imposed under Section 325 IPC, it can certainly be handed over to Dinesh Chandra Pandey as compensation. Considering the facts and circumstances of the present case, we are of the opinion that the period already undergone and a sum of Rs. 2000/- fine to be paid by each of the appellant under Section 325 IPC will meet the ends of justice. 8. The appeal consequently, is allowed in part. THE appellants Dwarika alias Lalla Dubey and Keshav Dubey sons of Ram Kripal are acquitted of the charges under Section 302/34 IPC and are convicted under Section 325/34 IPC. Their sentences of imprisonment for life is substituted by imprisonment already undergone by each one of them and a fine of Rs. 2000/- (two thousand) each. THE appellants are allowed two months time for making the deposit of the amount of Rs. 2000/- as fine in the Court of the Chief Judicial Magistrate, Gorakhpur. In case of default of payment of fine the appellants will undergo Rigorous Imprisonment of six months each. THE entire amount of Rs. 4000/- paid by or realised from the appellants as fine shall be paid to the first informant Dinesh Chandra Pandey son of Sarjoo Pandey resident of Bhandaro, Police Station Chilwatal, district Gorakhpur as compensation. In case of default of payment of fine the appellants will undergo Rigorous Imprisonment of six months each. THE entire amount of Rs. 4000/- paid by or realised from the appellants as fine shall be paid to the first informant Dinesh Chandra Pandey son of Sarjoo Pandey resident of Bhandaro, Police Station Chilwatal, district Gorakhpur as compensation. This will be done by the Chief Judicial Magistrate, Gorakhpur, within a period of five months from today. The appellants are on bail, they need not surrender. Their bail bonds are discharged.