- (1.) This leave to appeal has been filed with an inordinate delay of 1 year two months and 24 days.
(2.) In reply to the application for condonation of delay, the respondents have filed a counter affidavit. Paras 6 and 7 of the affidavit are reproduced hereunder: That the contents of paras 4, 5 and 6 of the affidavit (Application under Section 5 of the Limitation Act) are denied, misconceived, the deponent of the application under Section 5 of the Limitation Act being a responsible officer not explained the delay accordingly day by day but he filed the present affidavit as casual manner which is against the law and the present case is liable to be dismissed on this very ground for filing of the delay of the appeal. That the contents of paras 7 and 8 of the affidavit (Application under Section 5 of Limitation Act) are denied, misconceived, it shows from the affidavit of the deponent of application under Section 5 of the Limitation Act that on his mercy the filing of the date is filled up in the gap of paragraphs it shows the lackness in the part of the deponent as well as the prosecution agency and this type of lackness is deliberately which is not liable to be condoned and the present application submitted for passing in the office on 26.9.2008 and the office submitted report that the delay of one year, two months and twenty four day on 26.9.2008 but subsequently it was filed in the Registry on 7.11.2008, neither in the affidavit (supported of the application under Section 5 of the Limitation Act) any explanation regarding delay of one year, two months and 24 days have been explained nor thereafter upto filing the present application in the Registry be explained, in these circumstances the application under Section 5 of Limitation Act is liable to be rejected.
(3.) There is a vehement opposition on affidavit as well as orally to the prayer for condonation of delay. That apart, we also examined the impugned judgment and we found no merit in the contentions of the learned State Counsel. The criminal trial originated in an F.I.R. which was registered only under Section 354 I.P.C. In the statement recorded under Section 161 Cr.P.C., it was not the case of the prosecutrix that she had been subjected to forcible sexual intercourse, but later by way of submitting an application under Section 156(3) Cr.P.C., an F.I.R. under Section 376 I.P.C. was registered.;