JUDGMENT : The appellant Jabbar has been convicted under S. 316, I.P.C. and sentenced to five years' R I., whereas his brothers, appellants Ishaq and Habib, have been convicted under S. 316/34, I.P.C. and sentenced to four years' R. I. The appellants Jabbar and Habib, were also convicted under S. 323/34, I.P.C. and sentenced to three months' R I., whereas the appellant Ishaq was convicted under S. 323 I.P.C simpliciter and sentenced to six months' R. 1.

2. The prosecution of the appellants resulted from an incident which is said to have taken place in front of the house of Jamna (P.W. 8) on the evening of 31st August, 1963, in village Sansarpur, P.S. Koraoa, in the district of Allahabad. It was alleged that Sarju (P.W. 4), the brother of Jamna (P.W. 8), had been engaged as a labourer by Ishaq appellant to carry lime stone from Saraiya hill. It was alleged that Sarju, having expressed his willingness to carry only five Dharas instead of seven "dharas" (seers) of lime, as desired by Isfaaq, annoyed Ishaq appellant who slapped him twice. After that, the three brothers, Jabbar and Ishaq and Habib, are alleged to have gone to the house of Jamna before sunset and to have found Sarju sitting there white Smt. Pangoli (P.W. 9) was applying some turmeric on the back of his neck. As soon as the appellants came to the spot, Ishaq appellant is alleged to have struck two lathi blows at Sarju, who ran from there towards his own adjoining Kotha. After that, Jabbar appellant is said to have enquired from Smt. Panguli (P.W. 9) where her husband Jamna was. As Smt Panguli was unable to tell him where Jamna was, the appellant Jabbar is alleged to have pushed her so that she fell on her stomach and then the appellant Jabbar is said to have kicked her on a side of her stomach. As a result, Smt Panguli (P.W. 9), who was pregnant, was taken ill and gave birth prematurely to a seven month old baby which died. A first information report of this incident was lodged on 2nd September, 1963, at 4.30 p.m., at police station Koraon, at a distance of ten miles from village Sansarpur.

3. The F.I.R. was certainly lodged after considerable delay and the explanation that the fear of the appellants prevented the lodging of the F.I.R. is not convincing. Sarju (P.W. 4) stated that he had asked the witnesses to accompany him to the Thana, but they were not prepared as Jabbar was said to possess a gun. The statement of the Investigating Officer, Sudhar Singh (P.W. 15), revealed the fact that Jabbar appellant had no licence for a gun. But, the further explanations that it was the rainy season and that it had rained so that they could not go to the police station at 9 p.m., together with the fact, mentioned frankly in the F.I.R., that the family of Smt Pangoli was waiting for Motilal (P.W. 5), who is the Sarpanch of the village and a local leader, to return as he had gone out of the village, appear to be truthful. Added to this, the fact that Smt Pangoli is a Kole and comes from a very backward section of humanity, and that there are only a few houses of Koles in the village, may account for the fact that no F.I.R. was lodged until somebody strong enough to give protection or do some party could be found. The fact that the corpse of the child, which died as a result of the fall sustained by Smt. Pangoli, was preserved for three days appears to me to provide a strong corroboration of the story told by Smt. Pangoli (P.W. 9).

4. The names of Sheodhari (P.W. 6) and Sheomural (P.W. 13) and Hinchu (not examined) and Sugriv (not examined) are mentioned in the F.I.R. as those of persons who came to the scene as a result of the cries of Smt Pangoli. The F.I.R. does not mention anything more than a quarrel on the morning of 1st of August, 1963, between Sarju and Ishaq which resulted in the visit to the house of Jamna made by the three brothers. It is not mentioned in the F.I.R. that some persons were sitting in front of the house of Jamna in a Court yard (Sahan) and smoking when the

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