Citation : 2025 Latest Caselaw 5475 Jhar
Judgement Date : 4 September, 2025
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Criminal Appeal (S.J.) No. 342 of 2003
With
Criminal Appeal (S.J.) No. 469 of 2003
With
Criminal Appeal (S.J.) No. 477 of 2003
---------
[Against order taking cognizance dated 03.02.2003 passed by
learned Chief Judicial Magistrate Godda in G.O.C.R. No. 11 of 2003
arising out of Miscellaneous Case No.5 of 2002]
---------
In Criminal Appeal (S.J.) No. 342 of 2003
Niranjan Prasad Singh, s/o Sri Bhagwat Prasad Singh, Vill.
Diayra, P.S. Godda, District: Godda ... ... Appellant
Versus
1. The State of Jharkhand
2. Hare Krishna Mahto, s/o late Dhananjay Mahto, Vill. Amarpur
Tola, Saharpur, P.S. Godda, District: Godda
... ... Respondents
In Criminal Appeal (S.J.) No. 469 of 2003
Mohan Mahto, son of Kishun Mahto, resident of village Amarpur,
Tola Saharpura, P.O. Makhni, P.S. Godda (M), District Godda
... ... Appellant
Versus
1
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1. State of Jharkhand
2. Hare Krishna Mahto, son of late Dhananjay Mahto, resident of
village Amarpur, Tola Saharpur, P.O. Makhni P.S. Godda (M),
District Godda ... ... Respondents
In Criminal Appeal (S.J.) No. 477 of 2003
Bharat Jee Mishra, son of Late Radhika Prasad Mishra, resident
of Mohalla- Laheri Tola, P.S. Godda (T), District- Godda.
... ... Appellant
Versus
1. The State of Jharkhand.
2. Hare Krishna Mahto, s/o Late Dhananjay Mahto, resident of
village Amarpur, Tola Saharpur, P.O. Makhni, P.S. Godda,
District Godda. ... ... Respondents
---------
For the Appellant(s) : Mr. Lakhan Chandra Roy, Advocate
[In Cr.A(S.J.) No. 342 of 2003]
Mrs. M.M. Pal, A.C.
[In Cr.A(S.J.) No. 469 of 2003]
Mr. A.K. Kashyap, Sr. Advocate
Mr. Manoj Kumar Sah, Advocate
[In Cr.A(S.J.) No. 477 of 2003]
For the State : Mr. Saket Kumar, A.P.P.
[In Cr.A(S.J.) Nos. 342 of 2003 & 477 of 2003]
Mrs. Vandana Bharti, A.P.P.
[In Cr.A(S.J.) No. 469 of 2003]
For the Informant : Mr. Harendra Kr. Mahato, Advocate
[In Cr.A(S.J.) No. 469 of 2003]
2
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Mrs. Ahalya Mahato, Advocate
[In Cr.A(S.J.) No. 477 of 2003]
---------
PRESENT
HON'BLE MR. JUSTICE ARUN KUMAR RAI
JUDGMENT
C.A.V. on 28.03.2025 Pronounced on 04.09.2025
1. These criminal appeals emanate from the same order, as such, same are being heard together and disposed of by a common judgment.
2. These criminal appeals are directed against order taking cognizance dated 03.02.2003 passed by learned Chief Judicial Magistrate Godda in G.O.C.R. No. 11 of 2003 arising out of Miscellaneous Case No.5 of 2002, whereby and whereunder the learned CJM has taken cognizance of offence under Sections 109, 114, 120-B, 205, 468, 471/34 of IPC against appellants in view of order dated 29.01.2003 passed by the learned 3rd Additional Sessions Judge, Godda.
3. The background of the present case is necessary before examining it, which is noted as under:
(i) The victim filed a complaint case being, PCR No. 278 of 1991 against the appellant Mohan Mahto, wherein she has alleged that in January, 1991 (six months prior to filing of complaint), when she was about 13-14 years of age, the accused (Mohan Mahto, one of the appellant herein) committed rape on her person by finding the victim alone and when it was objected, the accused extended threat to the victim and had also given
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assurance that he would marry her and on this pretext, he sexually exploited her and when this fact was known to the parents of the victim, then she was reprimanded by them and the parents of the victim made complaint to the parents of accused, then parents of the accused had also given assurance of marriage of the accused with the victim. It is further alleged by the victim that she got pregnant and despite finalizing the marriage, the accused did not act upon his promise to solemnize the marriage with her, which prompted her to file the present complaint. This complaint was sent for registration of case and investigation by learned Magistrate vide order dated 13.08.1991 and after due investigation, charge sheet was submitted and after taking cognizance of offence, matter was committed to the court of sessions, where it was numbered as Sessions Case No.65 of 1999/27 of 2002. Charges against accused under Sections 376/493/420 of IPC have been framed on 31st January, 2002 by Additional Sessions Judge-IV, Godda in Sessions Case No. 65 of 1999.
(ii) Record of Sessions Case No.65 of 1999 transpires that prosecution got examined as many as seven witnesses and they are PW-1 Girdhari Sah, PW-2 Muslim Ansari, PW-3, victim, PW-4 Mahendra Mahto, PW-5 Md. Mahbul Ansari, PW-6 Baijnath Mahto and PW-7 mother of the victim. All the witnesses including the victim and her mother got hostile during the trial and case ultimately culminated into acquittal of the accused, vide judgment dated 16th August, 2002 passed by the court of 3rd Additional Sessions Judge, Godda.
(iii) The accused celebrated after acquittal in the aforesaid sessions case and when the father of the victim made inquiry then he came across the fact that above-said persons (witnesses) including victim and other witnesses did not depose before the
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court in Sessions Case No.65 of 1999 and Advocate of the informant told him that he was not allowed to follow up the said case, therefore he was not present at the time of recording of depositions of witnesses.
(iv) After acquittal, one miscellaneous petition being, Misc.
Petition No. 05/2002 has been filed by Hare Krishna Mahto, father of the victim before 3rd Additional Sessions Judge, Godda stating therein that in Sessions Case No. 65 of 1999 statement of Victim (P.W.3) recorded on 08.07.2002, Mahendra Mahto (P.W.4) on 24.07.2002, Mahbul Ansari (P.W.5) and Baijnath Mahto (P.W.6) on 03.08.2002 and Nediya Devi, wife of applicant (P.W.7) got recorded on 07.08.2002 but actually the above witnesses never deposed before the court in the said matter, therefore the accused with the connivance of learned A.P.P. by hatching a conspiracy and committing fraud, deprived the victim from justice.
(v) The aforesaid miscellaneous petition is well supported with affidavits of Mahendra Mahto, Mahboob Ansari, Baijnath Mahto, Nediya Devi (wife of applicant herein), Hare Krishna Mahto (applicant herein). In the above-said affidavit(s), deponents have stated categorically that they did not depose in the above-said session's case.
4. After filing of above-said miscellaneous petition along with affidavit of above-stated person(s), learned Additional Sessions Judge entered into an inquiry under Section 340 of Cr.P.C and issued show-cause to learned A.P.P., learned counsel(s) for the accused, learned counsel for the informant, who have responded to above-said show-cause notices. After going through the response of the show-cause notices, it transpires that they denied their involvement in getting the evidence allegedly recorded by impersonating witnesses in Sessions Case No. 65 of 1999.
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5. Thereafter, learned Additional Sessions Judge recorded the testimony of AW-1 Hare Krishna Mahto, AW-2 Mahendra Mahto, AW-3 Baijnath Mahto, AW-4 Mahboob Ansari, AW-5 Nediya Devi, AW-6 victim, AW-7 Muslim Ansari and AW-8 Girdhari Sah. 6(i). AW-1 Hare Krishna Mahto has stated that he received summon in the present case, but his deposition could not get recorded and he did not know where the case had been transferred and after getting certified copy, he came across the fact that case was transferred to 3rd Additional Sessions Judge, Godda and his statement was never recorded before the said court. He has also stated that at the time of filing of miscellaneous petition, his daughter (victim) had gone to her Mama's place in Nepal, but she returned from there. He has conceded to the fact that he had engaged his counsel, Advocate Niranjan Singh, who is the appellant of Criminal Appeal (S.J.) No. 342 of 2003. He also stated in the inquiry that one case was also pending before SDJM in which Shri Bharat Mishra, Advocate was representing the accused (Mohan Mahto, one of the appellants).
(ii). AW-2 Mahendra Mahto, AW-3 Baijnath Mahto and AW-4 Mahboob Ansari have stated in their respective testimony that they did not depose as witnesses in the rape case.
(iii). AW-5, mother of the victim also stated that she had not received the notice and her testimony had not been recorded in the aforesaid case.
(iv). AW-6 victim has also stated that she received summon in the rape case and she along with her father visited the court and had engaged Shri Niranjan Singh, Advocate as her counsel and the Vakalatnama also filed on her behalf, but her testimony was not recorded and one time petition was given on behalf of accused. The victim has also stated that during pendency of above-said rape case, the accused assured her of marriage but
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did not marry her. She has also stated that one maintenance case was also filed against the accused Mohan Mahto [appellant in Cr. Appeal (S.J.) No.469 of 2003] and in that case, court has allowed maintenance to her son and that case was being followed up by Bharat Jee Mishra, Advocate on behalf of the accused Mohan Mahto. She has also stated that maintenance case has been finally decided.
(v). AW-7 Muslim Ansari has stated that his evidence got recorded in the rape case.
(vi). AW-8 Girdhari Sah stated that he had given evidence in one case, but he could not specify which case it was.
7. Considering the material available on record after inquiry under Section 340 of Cr.P.C, learned Additional Sessions Judge, Godda vide order dated 29.01.2003 came to conclusion that prima-facie case is made out against the four persons (three appellants herein and one A.P.P), therefore in larger interest of administration of justice complaint be filed. Thereafter on 01.02.2003 a complaint being Complaint (G.O.C.R) No.11 of 2003 has been filed before the court of learned C.J.M, Godda, who vide order dated 03.02.2003 took cognizance of offence under Sections 109, 114, 120-B, 205, 468, 471/34 of IPC and summoned accused persons namely (i) Mohan Mahto (appellant in Cr. Appeal (S.J) No. 469 of 2003), (ii) Bharat Jee Mishra (appellant in Cr. Appeal (S.J) No. 477 of 2003), (iii) Ambika Prasad Yadav (Not preferred an appeal), (iv) Niranjan Prasad Singh (appellant in Cr. Appeal (S.J) No. 342 of 2003). Having aggrieved by the above-said order three accused persons out of four, preferred the present appeals.
8. At the outset, learned counsels for the appellants have jointly submitted that no appeal preferred against the order of acquittal in the Sessions Case No. 65 of 1999 and father of the
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victim filed the complaint under the aegis of Section 340 Cr.P.C with ill motive to annoy these appellants without any basis, rather being dissatisfied with the order of acquittal, it would be more appropriate for the victim and the Informant to file an appeal. It has also been urged before this court that alleged incident is of year 2002 and no purpose would be served by asking the appellants to face agony of trial for further two decades.
9. Learned counsel for appellant in Criminal Appeal (S.J.) No. 342 of 2003 has submitted that a foul play plotted against this appellant and on the basis of guess work or imagination it is alleged against the appellant that he connived with the other side without any iota of evidence against this appellant. It is further submitted that none of the witnesses were produced nor testified by this appellant and he has no idea about the progress of the said case and, as such, this appellant has no role in the said commission of alleged offence. On the above premise, it is prayed that order dated 03.02.2003 of taking cognizance may kindly be quashed and set-aside by this Court.
10. Learned counsel for appellant in Criminal Appeal (S.J.) No. 469 of 2003 has submitted that the recommendation in the complaint made by the learned 3rd Additional Sessions Judge, Godda which formed the basis of Cognizance order dated 03.02.2003 has been made without appreciating the facts that the allegation in the complaint is vague and false. He has further submitted that no material has been uttered from the mouth of any of the inquiry witnesses which could disclose the fact that who were the persons who had impersonated on their behalf. He drew attention of this court towards the inquiry in Misc. Case No.05/2002 wherein eight witnesses have been examined out of which four witnesses belong to same family and no permission
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accorded to this appellant to examine those witnesses and on this score prayer for setting aside the above cognizance order is made. It has also been pointed out that there is no opinion of handwriting expert brought on record qua tallying or non-tallying of signature appearing in the deposition of witnesses and signature of witnesses who examined during inquiry under Section 340 of Cr.P.C. Further submission has been made that name of persons has not been disclosed by father of the victim who impersonated as witnesses.
11. Learned counsel for appellant in Criminal Appeal (S.J.) No. 477 of 2003 has submitted that this case has been piled upon false and fabricated evidences due to the grudge and malice of the victim and the informant. He further submitted that cross- examination of P.Ws with the assistance of Junior Advocate never constitutes abatement or conspiracy or any other offence as alleged in the complaint petition against this appellant and learned 3rd Additional Sessions judge erred in recommending the learned C.J.M, Godda to proceed on the basis of inquiry and reply to Show cause, where no iota of evidences has been come up against this appellant and on the above premise this appellant pleaded innocence and prayed for setting aside the above Cognizance order.
12. Per contra, learned A.P.Ps appearing for the sate submitted that cognizance order dated 03.02.2003 which is impugned herein has rightly been passed by the learned C.J.M, Godda upon the recommendation made by the 3rd Additional Sessions Judge who after due inquiry under Section 340 Cr.P.C and on the basis of reply to the show cause issued, requested the learned C.J.M, Godda to proceed with the matter. He further submitted that these appeals are pending for more than 20 years due to fault of
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these appellants and for the ends of justice, it is required to be adjudicated expeditiously.
13. After hearing both the sides and perusing the material available on record, it transpires that all the three appeals have been filed under section 341 Cr.P.C against the cognizance and summoning order dated 03.02.2003 passed by learned Chief Judicial Magistrate Godda in G.O.C.R. No. 11 of 2003, which arises from the complaint made under section 340 Cr.P.C. Being dissatisfied with above-said order, these appeals have been preferred before this Court under Section 341 Cr.P.C and upon the question of maintainability of these Criminal appeals being filled under section 341 Cr.P.C, the Division bench of this Court vide its order dated 27.03.2003 held that these appeals being maintainable and to be decided under Criminal Appeal. Therefore, these criminal appeals are being decided by this Court where the cognizance and summoning order dated 03.02.2003 has been challenged/assailed.
14. As stated in preceding paragraphs, it is clear that the victim, her father, mother and other witnesses (except A.W-7 and A.W-8) have categorically stated in their respective testimony during inquiry and also filed an affidavit stating therein that they had not deposed in Sessions Case No. 65 of 1999 at any point of time, however, the record of the said sessions case reveals that the witnesses were examined in the above-said sessions case and as those witnesses resiled from their earlier statement and became hostile, this resulted into acquittal of the accused namely, Mohan Mahto [appellant in Criminal Appeal (S.J.) No. 469 of 2003], and he is the ultimate beneficiary of the outcome of Sessions Case No. 65 of 1999.
15. As far as appellant Bharat Jee Mishra [appellant in Criminal Appeal (S.J.) No. 477 of 2003] is concerned, he is said to
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be an Advocate who cross-examined the witnesses with the assistance of Junior Advocate whose Vakalatnama was on record in above-said Sessions Case No. 65 of 1999. It is true that informant in Misc. Petition Case No.05 of 2002 had not categorically alleged against this appellant, however, the affidavits which are annexed with the above-said petition speaks about the connivance of this appellant with other co-accused persons which facilitated in recording of evidence of witnesses by impersonation. It is also true that this appellant being an Advocate has not put his signature on the Vakalatnama which is available on record in Sessions Case No. 65 of 1999, however, the Vakalatnama filed by the Advocate namely, Shiv Shankar Jaiswal, has stated in his reply to show-cause that he is junior of the appellant Bharat Jee Mishra and on his instruction, he signed the Vakalatnama.
The Advocate namely, Sumit Kumar has stated categorically that on the instruction of appellant Bharat Jee Mishra he has put his signature on the transfer petition which was filed in said Sessions Case No. 65 of 1999 for transferring the said case from the court of Additional Sessions Judge-IV, Godda to some other court as the said court was vacant on the transfer of presiding officer.
Reply to show-cause of Mr. Diptosh Kumar Sinha, Advocate reveals that he was junior of Bharat Jee Mishra and had signed Vakalatnama on behalf of accused Mohan Mahto for filing transfer petition for transfer of Sessions Case No. 65 of 1999 from the court of Additional Sessions Judge-IV, Godda.
So, response of show-cause notices of above-said three advocates clearly suggest that appellant Bharat Jee Mishra was the counsel for accused Mohan Mahto in Sessions Case No. 65 of 1999 and transfer petition (Misc. Petition No.21 of 2002). This fact further found corroboration from the mouth of the victim,
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who has been examined as A.W-6 during course of inquiry before Additional Sessions Judge-IV, Godda and she had categorically stated that Mr. Bharat Jee Mishra, Advocate was also handling the case of maintenance which was filed by her in which concerned court has awarded maintenance to her son and it has finally been decided.
16. As far as appellant Niranjan Prasad Singh, Advocate in Criminal Appeal (S.J.) No. 342 of 2003 is concerned, it appears that during inquiry by the learned Additional Sessions Judge-III, Godda, when show-cause notice was issued to Additional Public Prosecutor Shri Ambika Prasad Yadav then he filed his response dated 17.09.2002 in which he has categorically stated that the witnesses who have been examined in Sessions Case No. 65 of 1999 were identified by the appellant Shri Niranjan Prasad Singh.
17. As far as plea of learned counsel regarding not bringing on record opinion of handwriting expert qua the signature is concerned, this Court is of considered view that at the time of taking cognizance and summoning the accused persons, court should confine to examine the material what is available on record only and not what could be brought by informant/complainant. Second plea regarding opinion disclosure of names of impersonator is concerned, this Court finds no merit in the argument on account of fact that all these things were done behind the witnesses back i.e. without their knowledge. Needless to say that at the time of recording of evidence during inquiry, there is no locus of prospective accused person(s) to cross- examine the witnesses. Also long delay of the matter, itself, is not the ground to drop the proceeding which is at the very nascent stage itself.
18. It is required to refer herein the case of Kishorbhai Gandubhai Pethani v. State of Gujarat, reported in (2014) 13
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SCC 539 rendered by Hon'ble Supreme Court where it has been held that Perjury amounts to making false statements and it is always of concern for the judicial system and it should be dealt with seriousness. Relevant Paragraph of the judgments reads herein -
9. Perjury is an obstruction of justice. Deliberately making false statements which are material to the case, and that too under oath, amounts to crime of perjury. Thus, perjury has always to be seen as a cause of concern for the judicial system. It strikes at the root of the system itself and disturbs the accuracy of the findings recorded by the court. Therefore, any person found guilty of causing perjury, has to be dealt with seriously as it is necessary for the working of the court as well as for the benefit of the public at large.
19. Also, in the judgment rendered by the Hon'ble Apex Court in the case of Mahila Vinod Kumari v. State of M.P., reported in (2008) 8 SCC 34 wherein it has been observed and discussed by the Apex Curt about the evil of Perjury which should be dealt effectively. Relevant Paragraph of the judgment reads as under -
12. The evil of perjury has assumed alarming propositions (sic proportions) in cases depending on oral evidence and in order to deal with the menace effectively it is desirable for the courts to use the provision more effectively and frequently than it is presently done.
20. Records of the Trial Court reveals that learned Chief Judicial Magistrate, Godda took cognizance under Sections 109, 114, 120-B, 205, 468, 471/34 of IPC dated 03.02.2003 and thereafter summons were issued upon these appellants.
21. It is trite law that cognizance is of an offence and not of the offender and it does not involve any formal action and as soon as the Magistrate applies his judicial mind to the suspected commission of offence if there exist sufficient ground to proceed. Cognizance, therefore, takes place at a point when a Magistrate first takes judicial notice of an offence. Before the Magistrate can be said to have taken cognizance of an offence, he must have not
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only applied his mind to the contents of the complaint presented before him, but must have done so for the purpose of proceeding and the provisions following that section.
22. This Court is also conscious of the judgment rendered in the case of Nupur Talwar v. CBI reported in (2012) 2 SCC 188 whereby it has been held that at the stage of cognizance the court has to look prima facie and if the same is based upon without any basis or no material, the same should be interfered otherwise not. Relevant paragraph of the judgment reads as under -
17. The taking of cognizance means the point in time when a court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence which appears to have been committed. At the stage of taking of cognizance of offence, the court has only to see whether prima facie there are reasons for issuing the process and whether the ingredients of the offence are there on record.
19. The correctness of the order whereby cognizance of the offence has been taken by the Magistrate, unless it is perverse or based on no material, should be sparingly interfered with. In the instant case, anyone reading the order of the Magistrate taking cognizance, will come to the conclusion that there has been due application of mind by the Magistrate and it is a well- reasoned order. The order of the High Court passed on a criminal revision under Sections 397 and 401 of the Code (not under Section 482) at the instance of Dr. Mrs Nupur Talwar would also show that there has been a proper application of mind and a detailed speaking order has been passed.
23. It is apposite to refer herein the judgment rendered in the case of Pepsi Foods Ltd. v. Special Judicial Magistrate reported in (1998) 5 SCC 749 wherein it was held that for Summoning of an accused in a criminal case, it is required to examine the nature of allegations made in the complaint and the evidences which seems sufficient and would succeed to brought charges against the accused persons. Relevant paragraph of the judgment reads hereunder -
28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two
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witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.
24. From the aforesaid factual discussions and legal propositions, it is clear that there is sufficient material to proceed against these appellants and at the threshold it cannot be said that appellants are having no hand in the allegation levelled in the complaint filed by learned Additional Sessions Judge-IV, Godda. It is required to be noted that witnesses in their respective affidavits and testimonies before the court have categorically stated that they have not deposed as a witness in Sessions Case No. 65 of 1999 and even they have not received the summon. It is further required to be noted that if two versions are available before the court of law prior to trial, then which version is correct, the court can only come to conclusion by entering into trial where both the sides would have an opportunity to make assertions and rebut the same in accordance with law.
25. The act done by these appellants, of course falls within the arena of perjury, which is prima facie visible from the discussion made in the preceding paragraph that upon connivance of these appellants, impersonated persons deposed in place of the witnesses and got them examined in the sessions trial and further deliberately made false submission before the said Court upon such deposition. It transpires from complaint dated 01.02.2003 and order dated 03.02.2003 that these appellants and apart from
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one other accused namely Ambika Prasad Yadav, the then A.P.P have been summoned under Sections 109, 114, 120-B, 205, 468, 471/24 of IPC, but this Court is of considered view that it is alleged that the appellants and other co-accused by hatching a conspiracy got examined the witnesses in Sessions Case No. 65 of 1999 by impersonating persons as witnesses which culminated into acquittal of appellant/accused Mohan Mahto. Therefore, prima facie, offence only under Sections 193, 205, 120-B, 34 of IPC is made out, at this stage.
26. Since, the matter is pending for more than 22 years and this Court vide its order dated 30.01.2004 has stayed the proceeding of trial court, therefore, it is expected from the Trial Court to expedite the present case and dispose of it at the earliest, preferably within one year from the receipt of this judgment, and both the sides are also expected to cooperate with the trial court for disposal of the case.
27. In the result, Cr. Appeal (S.J) No. 342 of 2003, Cr. Appeal (S.J) No. 469 of 2003 and Cr. Appeal (S.J) No. 477 of 2003 are hereby dismissed.
28. Let LCR be consigned to the court concerned.
(Arun Kumar Rai, J.)
High Court of Jharkhand at Ranchi Dated, the 04/09/2025 R.K./-A.F.R.
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