AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.4825 OF 2009 The State of Maharashtra. ... Applicant Vs. Narendrasingh Kuwarsingh Butola ... Respondents Mr. S.S. Pednekar, A.P.P. for the State. CORAM: MRS. RANJANA DESAI & MRS. V.K. TAHILRAMANI, JJ. DATED : 6TH APRIL, 2010. P.C.:- 1. By impugned judgment and order dated 13/7/2009, the Court of Sessions at Sewree has acquitted the respondent of offences punishable under Sections 452, 506 and 376 of the Indian Penal Code (for short, “the IPC”). The State of Maharashtra has challenged the said order of acquittal. 2. We have heard learned A.P.P. appearing for the State AJN 2 at considerable length. He submitted that the impugned judgment and order is perverse and it merits interference from this court. He submitted that the delay in lodging the FIR is the only ground on which the accused has been acquitted. Relying on the judgment of the Supreme Court in Ramdas & Ors. v. State of Maharashtra (2007) 2 SCC 170, learned A.P.P. urged that delay by itself is not sufficient to dislodge the prosecution story. 3. It is not possible for us to accept the submissions of learned A.P.P. In this case, there is a gross delay of 10 months in filing the FIR. According to the prosecution, in November, 2007, the accused is stated to have committed rape on PW-1 Vidya. But, she did not disclose it to anybody. She was frightened that her nude photographs, which were taken by the accused may be shown by the accused to her husband. In December, 2007, on two occasions, the accused is stated to have committed rape on PW-1 Vidya. Again on 26/4/2008, the accused is stated to have committed rape on PW-1 Vidya. The incidents of AJN 3 rape, according to the prosecution, used to take place sometime in the house of prosecutrix or in the house of the appellant. The prosecutrix lodged her complaint after 10 months from the date of first incident. The case of the prosecution that the appellant threatened that if she disclosed the incident to her husband, he would show her nude photographs taken on his mobile to her husband, does not inspire confidence. We find in the record a report of the Assistant Chemical Analyzer to the Forensic Science Laboratory, Mumbai, who has conducted a test of phone memory and SIM card using CelleBrite Universal Memory Exchanger for Mobile Phones UME36Pro. After conducting this test, the result of analysis is stated as under : “Ex-1 and Ex-1/2 do not show the presence of Picture images and video files as compared with reference photo.“ 4. Therefore, there are no photographs on record. In the circumstances, the version of the prosecutrix that the AJN 4 accused was threatening her by saying that her nude photographs would be shown to her husband will have to be discarded. This coupled with the extraordinary delay in filing the FIR, in our opinion, creates doubt about the prosecution case. The judgment of the Supreme Court in Ramdas & Ors. can be distinguished from the facts of this case. In that case, there was only eight days' delay in lodging FIR whereas, in this case, there is 10 months' delay in lodging the FIR. The view taken by the Sessions Court, Sewree is a reasonably possible view, which cannot be interfered with in an appeal against order of acquittal. 5. Application for leave to appeal is rejected. [MRS. RANJANA DESAI, J.] [MRS. V.K. TAHILRAMANI, J.]