Judgment 1. This appeal has been preferred against the judgment and order dated 14-3-1997 passed by the 2nd Assistant Sessions Judge, Supaul, in Sessions Case No. 5 of 1994, convicting the appellant under Secs. 458, 366 and 376 of the Indian Penal Code (hereinafter referred to as the IPC) and sentenced him to undergo R. I. for 5 years, 5 years and 7 years respectively. However, the sentences were ordered to run concurrently. 2. The prosecution case in brief is that in the night of 14-7-1993 at about 12.00 Oclock in the village Domaha, P. S. Nirmali, district-Supaul the informant and other family members were sleeping in her house. The husband of the victim, namely, Sriprasad Sada had gone to Punjab to earn livelihood. At about 12.00 Oclock in the night on some sound the informant awoke and found the appellant along with co-accused Maheshwar Sada, Mandhak Sada and one unknown person dragging her daughter-in-law Ramiya Devi from the house. The victim tried to resist by holding a Khunta but they all bodily lifted her. The informant and her family members were prevented by accused Laxmi Sada who was armed with lathi and Hareram Paswan was armed with gun and also threatened of dire consequences, if they made any resistance, and thus the appellant and other accused persons forcibly kidnapped the victim Ramiya Devi from the house. It is further alleged that after kidnapping her, she was taken to Nepal by the accused persons and removed from one place to another and accused-appellant Dhiren Sada alias Dhirendra Sada forcibly committed rape on her. In the process of her being removed from one place to another, one day she got opportunity and escaped from the clutches of the accused persons and reached her native place. On 15-7-1993 the informant Jitani Devi came to the police station and lodged a report alleging therein that her daughter-in-law has been kidnapped. After investigation the I.O. submitted charge-sheet and after commitment the trial proceeded in the Court below. 3. The case of the defence is that the accused-appellant has been falsely implicated in this case. The victim Ramiya Devi is a grown up lady. She left her house along with the accused out of her own will. She was not kidnapped nor the accused appellant committed rape on her. 4. 3. The case of the defence is that the accused-appellant has been falsely implicated in this case. The victim Ramiya Devi is a grown up lady. She left her house along with the accused out of her own will. She was not kidnapped nor the accused appellant committed rape on her. 4. In order to prove the guilt the prosecution examined eight witnesses, out of which P.W.4 is the victim lady Ramiya Devi and P.W. 3 (Jitani Devi) is the informant, P.W.1 (Sriprasad Sada) is the husband of P.W.3 who was not present in the house on the alleged date of occurrence. P.W.2 (Rajen Sada) is son of P.W.3. P.W.5 (Dhaneshwari Devi) and P.W. 6 (Manilal Sada) are family members of the informant. P.W.7 (Mundrika Baitha) is I.O. of the case and P.W. 8 (Dr. Kalyani Singh) is the Doctor who examined the victim lady. 5. In her evidence the victim Ramiya Devi (P.W.4) stated that on the night of occurrence, i.e. 14-7-1993 her mouth was gagged up by the accused persons, including appellant Dhiren Sada. They dragged her from the house. Her mother-in-law (P.W. 3) and Dewar (P.W.2) tried to rescue her but they were prevented by the accused persons at the point of gun and lathi. She caught hold the Khunta to save herself which was ultimately broken and her Sari was also unweared. She further stated that after her kidnapping from the house appellant-Dhiren Sada and one unknown person took her to Nepal and kept in different houses and committed rape on her. One day she got opportunity and escaped from the custody of the accused with the help of local people, including a Panwala. She came to her house and on the next day she went to the police station where her statement was recorded and she was medically examined. Her statement was also recorded under Sec. 164 of the Code of Criminal Procedure on 5-8-1993. The evidence of P.W. 4 is fully corroborated by P.Ws. 2 and 3 who are eye-witnesses on the point of kidnapping of the victim lady by the accused after entering inside her house in the night. They also corroborated this fact that Ramiya Devi (P.W. 4) tried to save herself with the help of Khunta (Bamboo pole) and her sari was unweared. P.W. 3 stated that on the next day she has informed about the occurrence. P.Ws. They also corroborated this fact that Ramiya Devi (P.W. 4) tried to save herself with the help of Khunta (Bamboo pole) and her sari was unweared. P.W. 3 stated that on the next day she has informed about the occurrence. P.Ws. 5 and 6 who are family members, have been tendered for cross-examination. They were examined in length and they supported the alleged occurrence. 6. P.W. 7 (the I.O.) visited the place of occurrence and found broken bamboo pole (Khunta), sari of the victim which was fallen at the place of occurrence. However, both the material exhibits were not produced in the Court. The I.O. has found the mark of violence at the place of occurrence. 7. The lady Doctor (P.W. 8) examined P.W. 4 but she has not found sign of rape at the time of her examination. Her report is marked Ext. 2. It has come in the evidence of the victim lady that after getting herself free from the clutches of appellant, she remained at Karjain for 3-4 days under the care of an old woman and thereafter with the help of local people she returned back to her house. Thus, there was a long gap of 5-6 days of the alleged offence of rape when she was examined by P.W. 8. 8. The learned lawyer appearing on behalf of the appellant submitted that the I.O. has not investigated the case properly. He has not seized the broken piece of bamboo used or Sari during the course of investigation nor produced in the Court. It is true that this was a laches on the part of the I.O. but it has been held in several decisions, including one reported in 1996 Pat LJ R (SC) 11 : (1995 Cri LJ 4173) that in case of defective investigation the Court has to be circumspect in evaluating the evidence but accused should not be acquitted on the ground of defective investigation as it would tantamount to playing into the hands of inefficient I.O. Another point that has been raised on behalf of the defence is that the victim lady was grown-up and married. It was not possible for 2-3 accused persons, including the appellant to forcibly kidnap her from her house. And then carried to a long distance up to Nepal border. This was possible only when she was a consenting party. It was not possible for 2-3 accused persons, including the appellant to forcibly kidnap her from her house. And then carried to a long distance up to Nepal border. This was possible only when she was a consenting party. She could have raised hulla when she was carried to the border of Nepal. Another defence that has been taken on behalf of the appellant is that from the affidavit filed on behalf of the appellant it is clear that the victim lady (P.W. 4) has married with the appellant of her own consent, therefore, no case for the offence of kidnapping or rape is made out against the appellant. In the last it was submitted that the evidence of the Doctor (P.W. 8) negatives the allegation of the victim lady that she was raped on several occasions by the appellant. 9. These arguments were considered by the trial Court in paragraphs 17 and 18 of the judgment in detail. It is an admitted fact that the victim (P.W. 4) is a married woman. The appellant is also a married person having children. As such, the question of marrying of the appellant with the victim lady does not arise nor in the eye of law it is a legal marriage. Besides in face of evidence of P.W. 4 and her earlier statement made under Sec. 164, Cr. P.C. it is abundantly clear that she made allegation against the appellant that he with the help of other accused persons has forcibly kidnapped her from her house and under the threat she was taken to the border of Nepal and was raped. Shefurther gave detail description how she escaped from the clutches of the accused and returned back to her house. Her evidence found corroboration from the above discussed evidences of P.Ws. 2 and 3 who are eye-witnesses of the occurrence. Even P.Ws. 5 and 6 who were tendered in their cross-examination, have corroborated the first part of the occurrence with regard to kidnapping of the victim lady from her house by the appellant and other accused persons. There is no suggestion in their cross-examination as to why the informant or her family members would falsely implicate the appellant and other accused. They have no enmity from before. There is no suggestion in their cross-examination as to why the informant or her family members would falsely implicate the appellant and other accused. They have no enmity from before. The question of consent of the victim lady does not arise in this case when she categorically stated that she was forcibly kidnapped from her house and appellant committed rape on her. 10. In the facts and circumstances of the case and after considering the evidences on record I find that the prosecution has been able to substantiate the charge levelled against the accused-appellant beyond all reasonable doubt. As such, I do not find any merit in this appeal. In the result, the appeal is dismissed. 11. The learned appellants lawyer submitted that the appellant has remained in custody all along and he was never allowed bail either by the trial Court or by the High Court. Thus, he has served out his period of sentence and prayed that a direction may be given to the jail authority to get him released forthwith, if not released earlier or not wanted in any other case. 12. In view of the fact that the appellant has remained in jail custody for the period he was sentenced, the jail authority is directed to release him forthwith, if not released as yet or not required in any other case. 13. Mrs. Archana Prasad, Advocate has appeared as amicus curiae and assisted the Court to the best of her sincerity. The Legal Aid Committee of the Patna High Court is directed to pay her fees, in accordance with law. Let a copy of this judgment be made over to her.Order accordingly.