Anjana Prakash, J.The Appellant has been convicted under Sections 366 and 376 Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of seven years under both counts by a Judgment and order of conviction dated 9.1.2002 passed by the Presiding Officer, Additional Court, Samastipur, in Sessions Trial No. 81 of 1996/25 of 2001. The case of the Prosecution according to the Informant Jai Narain Rai is that in his absence, Dr. Jagdish Prasad Rai, his son Ranjan Kumar Rai and Niranjan Kumar Rai came to the informants house and started searching him but on not finding him there, they scattered his household articles. Some witnesses saw this occurrence. The reason for the occurrence was that his wife Snail Devi went missing from his house since 6.5.1995 in course of which it is learnt that Raju Kumar Rai, son of Dr. Jagdip Pd. Rai had eloped with her few days back, even though, knowing that she was married to the Informant. A Panchayti was held in this regard, but instead the accused persons acted in a high handed manner and committed this occurrence.

2. The Prosecution in all examined five witnesses whereas the defence also produced three witnesses.

3. PW-4 Shail Devi, the wife of the Informant stated that she was abducted by the Appellant who also committed sexual assault upon her. She had not consented to the same but yet she had to give in.

3A. PW-2 Bhubneshwar Pd. Rai, informant, stated that his wife had become trace-less about 2-3 months back for which a case was instituted in Delhi and then he was arrested from there. He further stated that he had seen his wife living with Raju and then brought her back. He also says about the occurrence that the accused persons acted in a high handed manner.

4. PW-5 is the Investigating Officer who stated that both the cases were separate and the present case was instituted only with regard to the Sections 366 and 376 Indian Penal Code.

5. PW-1 Ramchandra Patel is on the second part of the occurrence and that he had learnt from Dharmendra that the wife of the informant had been seen with the Appellant and she was recovered 2 or 3 months after the same. He does not say anything about any part of kidnapping or rape.

6. The Prosecution case appears to be highly doubtful for the reason that it is not probable that for 2-3 months, a person aged about 32 years would not raise any protest even while living with the Appellant. In such circumstances, I am not convinced that it is a case of kidnapping or sexual assault without consent.

7. Hence, the Appeal is allowed. The order of conviction and sentence dated 9.1.2002 passed against the Appellant in Sessions Trial No. 81 of 1996/25 of 2001 by the Presiding Officer, Additional Court, Samastipur, is, hereby set aside. The Appellant is discharged from the liability of his bail bond.