C.C. Ghose, J.
1. In this case there are four appellants before us. Appellant 1 Latafat Hossain Biswas has been convicted under Section 307 read with Section 34, I.P.C. and under Section 120-B I.P.C., appellant 2 Engraj Sekh has been convicted under Section 307 read with Section 34 and also under Section 120-B. I.P.C., appellant 3 Khedarali Sekh has been convicted under Section 307 read with Section 34 and appellant 4 Kaser Sekh has been convicted under Section 120-B I.P.C.
2. The facts involved in this appeal, shortly stated, are as follows : Saferuddin Biswas and the accused Latafat Hossain Biswas are step-brothers. Their father Naimuddin died in 1327 B.S. and they occupy his pucca house in village Gournagar, P.S. Meherpur. In 1332 B.S. they partitioned the house and property. Latafat occupied the north part of the house, Safer the south part. Since then they have been on bad terms. There were quarrels over the partition of the house and the partition of the property, particularly certain Post Office Cash Certificates left by the father. Also Latafat used to sing low songs insulting Safer's wife. While Safer retaliated by singing similarly insulting songs about Latafat a wife and daughters. About 13th August last Safer was singing some such songs and playing on a harmonium which he had acquired from a creditor when Latafat threat end to shoot him. Safer reported this at the thana. Latafat's hate against his stepbrother became so great that he decided to have him put out of the way altogether. So he called his halsana Engraj Abdul Gain and Alam Sardar and offered them Rs. 150 between them if they would assist him in murdering Safer. On the night of Sunday, 1st Aswin (18th September) Engraj, Kasar, Alam, Abdul Gain. Taherali met in Latafat'a baitakhana and Latafat proposed that they should kill Safer that night. He asked, the others to wait and went out to watch Safer's movements, his intention being to catch him on his way from his baitakhana into his inner house (andarbati). Safer, however, went too quickly into his house and bolted the door so that the attack had to be abandoned for that night. Next night (Monday) Abdul Gain, Kaser, Engraj, Taherali, Alam met again at Latafat's baitakhana. Latafat told them that the work must be done that night positively and that if there were any troublesome consequences he would spend money and save them. He then went out to see what Safer was doing and. coming back reported that Safer was having supper with Meghlal and Mansab and that they would not have long to wait. Presently Saferuddin, Mansab and, Meghlal came out of Safer's house and satin his baitakhana. After a little' Meghlal got up and saying it was time for him to be going home to bed took his departure. Presently the watchers, heard Safer say to Mensab that he (Mansab) might also turn in (at the baitakhana) as he (Safer) was also going, off to bed.
3. Immediately Latafat, Kaser, Taherali, Engraj, Alam and Abdul Gain ran to the door of Safer's inner house. At the door, the approver Abdul Gainsays, he saw another man standing but in the darkness he did not recognize him. Meantime Safar came out of the baitakhana with a lantern in one hand and an inkwell and some papers in the other. As soon as he had stepped inside the door of his inner compound and was approaching the screen wall which is just beyond it on the inside, Latafat and Khedarali came from inside and while Khedar ran past him and took his stand by the door Latafat seized him clapping, one hand at the back of his head and the other over his mouth. Safer dropped, the lantern, the inkwell and papers on the ground and as he struggled and. shouted the others seized him and threw him down, two of them seizing him by the legs. Latafat cut him twice on the neck with a hasua. Safer seized the hasua getting his hands cut in the process but succeeded in wresting it from the grasp of his assailant. Possessed of this weopon he hacked at the two men who were holding him down and then another man hit him on the head with a lathi and he fell back, was assaulted again and became senseless. Before he threw the lantern down he had recognized by its light Latafat and Kedar among his assailants. Presently he came to as he lay with his head down on the ground and perceived that somebody was holding a hand over his nostrils; so he stopped breathing in order to make believe that there was no more life left in him. In the belief that he was dead his assailants left him there. Before that, while the attack was in progress, Mansab who was lying in the baitakhana heard Safer's cries and went up to the door of the andarbatj. It was closed; so he pushed it open and just then some body hit him with a lathi on the arm and side. So he rushed off in fear and began raising an outcry to rouse the neighbours. Meantime the injured Safer picked himself up and went outside to the village road near by groaning and trying to call for assistance. There he was found by Mansab, Sabdal, Reajtulla, Belat, the village Chowkidar Eadali and other neighbours who had been roused by Mansab's shouts. Belat was sent to fetch Dr. Manmatha Nath Biswas from Dariapore about two miles oil and first aid was rendered to Safer, some rags being clumsily tied round his bleeding wounds. He told them that he had just been attacked by some 5 or 6 men, that among them he had recognized his stepbrother Latafat and Kedar and that he had caught hold of a hasua and with it wounded two of his assailants. He was brought to the house of Mansab Biswas where presently the doctor arrived and dressed his wounds.
4. On behalf of the appellants two contentions have been put forward before us first that the confession of the appellant Bngraj should not have been admitted in evidence under Section 30, Evidence Act, as it was not self incriminatory; and, secondly that the evidence against the appellants is that of the approver Abdul Gain and the evidence of the approver, in the absence of independent evidence cannot be corroborated by the evidence of the confessing appellant Bngraj.
5. We have had placed before us the confession of the appellant Engraj. In our opinion so far as the charge of conspiracy under Section 120-B I.P.C. is concerned, that confession was certainly self-incriminatory, and therefore it was admissible in evidence under Section 30 Evidence Act. But having regard to the circumstances of this case where the evidence of the approver is principally on the question of conspiracy and where that evidence is sought to be corroborated by the evidence of the confessing appellant Engraj it amounts to this; that one tainted piece of evidence is sought to be corroborated by another tainted piece of evidence. That being so, the rule that has been laid down for observance in criminal trials, namely, that it would be unsafe to allow the conviction on a charge to remain where the circumstances are such as are indicated above must be followed in this case, and therefore the result is that the conviction of the appellants Latafat Hossain and Kaser Sekh, so far as Section 120-B is, concerned, must be set aside. As regards Engraj, there is his own statement which, as indicated above, was admissible in evidence under Section 30, Evidence Act, and there is no reason why he should not be convicted under Section 120-B, I.P.C.
6. As regards the conviction under Section 307 read with Section 34, there is a large body of evidence, namely, the evidence of Saferuddin who received no less than 21 injuries and of Mansab, Yasin and the doctor Manmatha Nath Biswas. That evidence was placed before the jury in a very fair manner and nothing that has been said in the course of argument before us can induce us to interfere in any way with the conviction under Section 307 read with Section 34, I.P.C.
7. The result, therefore, is that the conviction under Section 120-B of the appellants Latafat Hossain and Kaser Sekh is set aside and the conviction of the appellants Latafat Hossain, Rngraj and Khedarali under Section 307 read with Section 34 I.P.C. is maintained intact. The appellant Kaser Sekh whose conviction under Section 120-B is set aside must be forthwith released from custody.
8. I agree.