Jharkhand High Court
Mangta @ Dokal Tubid vs The State Of Bihar (Now Jharkhand) on 14 January, 2025
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay
Criminal Appeal (DB) No. 144 of 1998 (R)
[Against the judgment and order of conviction and sentence dated
07.04.1998 (sentence passed on 15.04.1998) passed by Shri Ashim
Kumar Dutta, learned 3rd Additional District & Sessions Judge,
Chaibasa in S.T. No. 181 of 1996]
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Mangta @ Dokal Tubid, S/o Ramchandra Tubid, R/o Village
Manda, P.S. Tonto, District- Singhbhum (West)
.... .... Appellant
Versus
The State of Bihar (now Jharkhand) .... .... Respondent
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CORAM : HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
HON'BLE MR. JUSTICE ARUN KUMAR RAI
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For the Appellant : Mr. Naveen Kr. Jaiswal, Advocate
For the State : Mr. Sanjay Kr. Srivastava, A.P.P.
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C.A.V. on 19/12/2024 Pronounced on 14/01/2025
Per Rongon Mukhopadhyay, J.
Heard Mr. Naveen Kr. Jaiswal, learned counsel for
the appellant and Mr. Sanjay Kr. Srivastava, learned A.P.P. for the
State.
2. This appeal is directed against the judgment and
order of conviction and sentence dated 07.04.1998 (sentence
passed on 15.04.1998) passed by Shri Ashim Kumar Dutta,
learned 3rd Additional District & Sessions Judge, Chaibasa in S.T.
No. 181 of 1996, whereby and whereunder, the appellant has been
convicted for the offences punishable u/s 302/201/34 of the IPC
and has been sentenced to R.I. for life for the conviction u/s
302/34 of the IPC and imprisonment for three years u/s 201 of the
IPC. Both the sentences were directed to run concurrently.
3. The prosecution case arises out of the fardbeyan of
Sura Tubid recorded on 01.03.1996, in which, it has been stated
that on 29.02.1996 there was a Maghe festival being celebrated in
the village and on the said occasion Diku Sundi and Chhota Sundi
had come to the house of Mangta @ Dokal @ Tubid (appellant).
The daughter of the informant namely Somi Tubid @ Kundi was
seen with the said three persons enjoying herself. When at around
5:00-6:00 P.M. Mangta had come to the house of the informant,
the wife of the informant asked him about the whereabouts of her
daughter at which Mangta disclosed that her daughter is in his
house. This pacified the informant and his wife. On the next
morning when the informant asked his wife about his daughter it
came to light that the dead body of a girl is hanging in a tree on the
western side of the village. At this, the informant, his wife and the
villagers went to the said place where they identified the body of
the girl as that of the daughter of the informant. She was hanging
with the help of her own saree about forty feet from the ground. A
Gamcha was found at the place of occurrence which was identified
by the informant, his wife and the villagers Lukna Tubid and
Veersingh Tubid as belonging to Diku Sundi. A towel was found
wrapped over the petticoat of the deceased which was identified by
them to be belonging to Mangta @ Dokal Tubid. The daughter of
the informant used to sell Haria and all the three accused used to
frequent her place. The informant has raised a suspicion that
Mangta @ Dokal Tubid, Diku Sundi and Chhota Sundi had
committed rape upon his daughter and had strangulated her to
death.
Based on the aforesaid allegations Tonto P.S. Case
No. 9 of 1996 was instituted u/s 376/302/201/34 of the IPC. On
completion of investigation charge sheet was submitted and after
cognizance was taken the case was committed to the Court of
Sessions where it was registered as S.T. No. 181 of 1996. Charge
was framed against the accused Mangta @ Dokal Tubid u/s
376/302/34 and 201 of the IPC which was read over and explained
to him, to which, he pleaded not guilty and claimed to be tried.
4. The prosecution has examined as many as six
witnesses in support of its case.
5. P.W.1 (Chandan Singh Munda) has stated that on
01.03.1996 at 7:00 A.M. he received an information that a body is
hanging on a tree, at which, he reached the said place with
Chandrama Tubid. By the time he had reached several persons
had already assembled at the said place. He saw a body hanging at
a height of 40/50 feet with the help of a saree and the dead body
was of Somi @ Kundi. He thereafter went to the Police Station to
inform about the incident. The Police came to the village at 4:00
P.M., had taken down the dead body and recorded the fardbeyan of
Sura Tubid, the father of the deceased. He has proved his
signature over the fardbeyan which has been marked as Exhibit-1.
He has proved his signature as well as the signature of Lukna
Tubid on the inquest report which have been marked as Exhibits-
1/1 and 1/2 respectively. He has also proved his signature and the
signature of Dokal over the confessional statement of Dokal which
have been marked as Exhibits- 1/3 and 1/4 respectively.
In cross-examination, he has deposed that the
news about a girl hanging on a tree was given to him by Sura
Tubid. He cannot say as to the contents of the confessional
statement given by Dokal after his arrest.
6. P.W.2 (Lukna Tubid) has stated that the dead body
of Somi @ Kundi was found hanging on a tree about 40 feet from
the ground. The body had saree, blouse, petticoat, gamcha and a
towel wrapped over it and the gamcha belonged to Diku while the
towel belonged to Dokal. He has proved his signature in the seizure
list which has been marked as Exhibit-1/5.
In cross-examination, he has deposed that every
resident in village Mauda have gamcha and towel.
7. P.W.3 (Sura Tubid) is the informant and the father
of the deceased who has stated that it was a Friday and there was
a Maghe festival in the village on the occasion of which his
daughter was dancing with Dokal @ Mangta, Chhota and Diku. In
the evening Dokal had come to his house and had called for his
daughter, after which she had left but she did not return at night.
When Dokal had come to his house his wife had questioned Dokal
about the whereabouts of her daughter to which Dokal replied that
she is in his house consuming Haria. On the next day his daughter
was found hanging on a tree and a towel was found wrapped
around her waist while a gamcha was lying on the ground. Several
villagers had assembled at the said spot. Dokal disclosed that he
along with Diku and Chhota have committed the murder of Somi
Tubid @ Kundi.
In cross-examination, he has deposed that his
daughter was earlier married in Katlajuri village but her husband
had left her. The Munda of the village had taken down his
statement in writing which was shown to the Police by the Munda
and thereafter Police had come to the village.
8. P.W.4 (Dr. S.S. Birua) was posted as a Civil
Assistant Surgeon at Sadar Hospital, Chaibasa and on 02.03.1996
he had conducted autopsy on the dead body of Somi @ Kundi
Tubid and had found the following:
(i) On external examination - a brown black
ligature mark around the upper part of the neck
with its highest knot mark situated on right side
below and back of the right ear, 1/2" lateral to
the mid line size 6.1/2"x 2.1/2". Both fists and
relaxed. Feet:- relaxed.
(ii) Defecated under clothes.
(iii) Eyes closed. Tongue - Tip beaten up between
teeth.
(iv) Saliva mark whitish in colour dried up from right
angle of mouth.
(v) Vagina- Swollen. Vagina swab- taken from
pathological examination.
On dissection
(vi) Neck- underneath the ligature mark no
ecchymosis, tear of the muscles were seen.
Trachea was normal. Hyoid bone- fracture,
Head- nothing abnormality.
Chest- Whole structures were intact.
Abdomen- Stomach empty, Urinary bladder-
contain little urine.
Pelvis- uterinous contain blood & blood clot,
whole cavity was filled with blood and blood
clot.,
(vii) Result of pathological examination of High
Vaginal Swab- Dead spermotology seen.
Epithelial cells in fair number were seen. Puss
swab- a few seen.
Time since death within 48 hours.
The cause of death was opined to be due to violent
rape leading to haemorrhage inside the pelvic organs causing
shock and death. Neck injury was caused due to hanging after
death. All the injuries were antemortem in nature and sufficient to
cause death in ordinary course of nature. Due to violent rape the
victim died. He has proved the post-mortem report which has been
marked as Exhibit-2.
9. P.W.5 (Indrapal Oraon) was posted as an Officer-in-
Charge of Tonto P.S. and on 01.03.1996 at 5:00 P.M. he had
recorded the fardbeyan of Sura Tubid at the place of occurrence in
village Mauda. He has proved the fardbeyan which has been
marked as Exhibit-3. On 01.03.1996 at 3:30 P.M., he had heard a
rumour that the body of a girl is hanging on a tree at village Mauda
and on such information he reached the village and thereafter
recorded the fardbeyan of Sura Tubid at the place of occurrence.
He had inspected the place of occurrence which is at village Mauda
between the fields of Supai Tubid and Jhingi Tubid in an Asan
tree. Beneath the tree a white checked towel was found. He has
proved the inquest report which has been marked as Exhibit-4. He
has also proved the seizure list and the formal FIR which have
been marked as Exhibits-5 and 6 respectively. In course of
investigation the accused Dokal Tubid was arrested and his
confessional statement was recorded. In order to get the 164
Cr.P.C. statement of the accused recorded he had sent a
requisition to the Chief Judicial Magistrate. In course of
investigation he had recorded the statement of the witnesses and
had submitted charge-sheet showing Diku Sundi and Chhota
Sundi as absconders.
In cross-examination, he has deposed that he had
not sealed the gamcha and towel after they were seized by him. No
Test Identification Parade of the seized articles were conducted.
The restatement of the informant does not contain the assertion
that his daughter was dancing with Dokal, Chhota and Diku. In
such restatement it has not been mentioned that Dokal had
disclosed that the daughter of the informant was in his house
consuming Haria.
10. P.W.6 (Jagarnath Singh) was posted as a Judicial
Magistrate 1st Class in Chaibasa and on 08.03.1996 on the orders
of the Chief Judicial Magistrate he had recorded the confessional
statement u/s 164 Cr.P.C. of Dokal Tubid. He had not asked the
accused the period he was in Police custody. The accused had
voluntarily recorded his statement.
11. The statement of the accused was recorded u/s 313
Cr.P.C. in which he has denied his complicity in the rape and
murder of Somi Tubid @ Kundi.
12. It has been submitted by Mr. Naveen Kr. Jaiswal,
learned counsel for the appellant that there are no eye-witnesses to
the occurrence and only on the basis of the 164 Cr.P.C. statement
of the appellant, in which, he had accepted his guilt the appellant
has been convicted. The circumstances projected by the
prosecution are weak in nature. Absence of any independent
evidence corroborating the 164 Cr.P.C. statement of the appellant
would automatically render such statement redundant.
13. Mr. Sanjay Kr. Srivastava, learned A.P.P. for the
State has submitted that the appellant had confessed about his
involvement in his 164 Cr.P.C. statement which was recorded after
ensuring that the necessary precautions are at place and the same
has received support from the medical evidence and, therefore, the
learned trial court was justified in relying upon the said statement
while convicting the appellant.
14. We have heard the learned counsel for the
respective sides and have also perused the Trial Court Records.
15. The suspicion about the involvement of the
appellant in the commission of rape and murder of the daughter of
the informant stems from the fact that in the evening prior to the
dead body having been found hanging from a tree the deceased
was said to be dancing with the accused including the appellant on
the occasion of Maghe festival. When the wife of the informant
asked the appellant regarding the whereabouts of her daughter it
was disclosed that she was in the house of the appellant
consuming Haria. There are no eye-witnesses to the incident and
even the wife of the informant has not been examined. The gamcha
and the towel said to be belonging to the appellant and another
accused were not put on Test Identification Parade to ascertain the
involvement of the appellant. The only incriminating factor against
the appellant seems to be the 164 Cr.P.C. statement in which he
has accepted to have committed the murder of Somi Tubid though
here also certain contradictions seems to have cropped up in such
statement. The commission of rape upon Somi Tubid @ Kundi has
been attributed to Diku Sundi and Chhota Sundi. He has admitted
of committing the murder of Somi Tubid but has subsequently
retracted and the act of strangulating the deceased has been put
on Diku Sundi. The appellant as per his statement was involved
along the other accused persons in hanging the deceased from a
tree with the assistance of her saree. The 164 Cr.P.C. statement of
the appellant has formed the basis for his conviction by the learned
trial court.
16. In the case of "Aloke Nath Dutta & Ors. versus State
of West Bengal" reported in (2007) 12 SCC 230, the evidentiary
value of a confession recorded u/s 164 Cr.P.C. has been
considered and it has been held as follows:
"104. Section 164, however, makes the
confession before a Magistrate admissible in evidence.
The manner in which such confession is to be recorded
by the Magistrate is provided under Section 164 of the
Code of Criminal Procedure. The said provision, inter
alia, seeks to protect an accused from making a
confession, which may include a confession before a
Magistrate, still as may be under influence, threat or
promise from a person in authority. It takes into its
embrace the right of an accused flowing from Article
20(3) of the Constitution of India as also Article 21
thereof. Although, Section 164 provides for
safeguards, the same cannot be said to be exhaustive
in nature. The Magistrate putting the questions to an
accused brought before him from police custody,
should sometime, in our opinion, be more intrusive
than what is required in law. (See Babubhai Udesinh
Parmar v. State of Gujarat.)
106. Judicial confession must be recorded
in strict compliance with the provisions of Section 164
of the Code of Criminal Procedure. While doing so, the
court shall not go by the black letter of law as
contained in the aforementioned provision; but must
make further probe so as to satisfy itself that the
confession is truly voluntary and had not been by
reason of any inducement, threat or torture.
109. In a case of retracted confession, the
courts while arriving at a finding of guilt would not
ordinarily rely solely thereupon and would look
forward for corroboration of material particulars. Such
corroboration must not be referable in nature. Such
corroboration must be independent and conclusive in
nature."
17. A note of caution has been given that in case of a
retracted confession the Court should delve deeper into the matter
to ascertain the veracity or otherwise of such statement. The Court
in such fact scenario should not ordinarily rely upon the
confession but should endeavour to seek corroboration which as
per the observation made above must be "independent and
conclusive in nature".
18. Although, the learned trial court has sought
corroboration from the evidence of P.W.4 and P.W.6 but it has not
delved deeper into the matter which would have thrown up the
inherent inadequacy in the confession itself. Corroboration has to
be independent and conclusive which however is not borne out
from the evidence on record. The appellant in his confession has
stated about Diku Sundi strangulating the deceased after Diku
Sundi and Chhota Sundi had committed rape upon her which as
noticed above contradicted his claim that he had committed the
murder though as per P.W.4 the cause of death was hemorrhage
due to violent rape committed upon her. The neck injuries were
caused, as per the opinion of P.W.4 due to hanging after death.
There is in fact dearth of corroboration of the said confession from
the evidence of the witnesses. The circumstances which have been
highlighted by the prosecution witnesses are absolutely weak in
nature which further puts the veracity of the confession of the
appellant and it's voluntarily nature in the domain of incertitude.
The learned trial court has not probed deeper into such statement
and the surrounding circumstances in the form of ocular and
medical evidence and has incorrectly come to a finding of guilt of
the appellant. The benefit of doubt on the basis of what we have
discussed above should accrue to the appellant.
19. We, therefore, in view of the above, set aside the
judgment and order of conviction and sentence dated 07.04.1998
(sentence passed on 15.04.1998) passed by Shri Ashim Kumar
Dutta, learned 3rd Additional District & Sessions Judge, Chaibasa
in S.T. No. 181 of 1996.
20. This appeal is allowed.
21. Since the appellant is on bail, he is discharged from
the liability of his bail bond.
(Rongon Mukhopadhyay, J.)
(Arun Kumar Rai, J.)
High Court of Jharkhand at Ranchi
Dated, the 14th day of January, 2025.
A. Sanga /-
