Calcutta High Court (Appellete Side)
Narayan @ Ghanashyam Mondal vs The State on 25 March, 2026
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Prasenjit Biswas
C.R.A. 107 of 1993
Narayan @ Ghanashyam Mondal
-Versus-
The State
For the Appellant : Mr. Rajib Ray.
For the State : Mr. Avishek Sinha,
Mr. Abhishek Verma.
Hearing concluded on : 06.03.2026
Judgment On : 25.03.2026
Prasenjit Biswas, J:-
1.
This appeal is directed against the impugned judgment and
order of conviction dated 21.04.1993 passed by the Additional
Sessions Judge, Contai, Midnapore in connection with Sessions
Trial Case No. VI/May/1992 arising out of Bhupatinagar P.S.
Case No. 45 of 1990, dated 29.05.1990, whereby and where
under this appellant was found guilty for commission of offence
punishable under Section 417 of the Indian Penal Code and was
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C.R.A. 107 of 1993
sentenced to suffer rigorous imprisonment for one year along
with fine of Rs. 500/- and in default of payment of fine to
undergo further simple imprisonment for two months.
2. Being aggrieved by and dissatisfied with the said impugned
judgment and order of conviction and sentence, this appellant
has preferred the present appeal.
3. The prosecution case, in brief, as unfolded from the written
complaint and the materials collected during the course of
investigation, is that-
“the criminal law was set into motion on the
basis of a written complaint lodged by the de-facto
complainant/victim against the present appellant.
In the said complaint, it was alleged that the
appellant had developed an intimate relationship
with the victim on the pretext and assurance of
marriage, and by holding out such promise, he
induced her to repose trust in him, which ultimately
resulted in her being deceived. It has been
specifically alleged in the written complaint that on
one occasion, when the victim was on her way to
watch a cinema show, the appellant followed her
and, taking advantage of a secluded and lonely
place, gagged her mouth and forcibly took her to a
3C.R.A. 107 of 1993
mud house where he committed sexual intercourse
with her against her will. It is further alleged that
at the time of such occurrence, the appellant
assured the victim that he would marry her, and
such assurance was held out as a means to secure
her silence and submission. The prosecution case
further proceeds to state that after the said
incident, the appellant continued to maintain
physical relations with the victim on subsequent
occasions, again on the assurance that he would
marry her. It is alleged that such cohabitation took
place on two or three occasions, during which the
appellant and the victim lived together and
engaged in sexual relations as if they were husband
and wife, the victim having reposed faith in the
promise of marriage extended by the appellant. It
has also been alleged that thereafter, following the
demise of the appellant’s father, the victim
requested the appellant to fulfil his promise and
solemnise the marriage, and to take her to his
matrimonial home. However, at that stage, the
appellant is said to have resiled from his earlier
assurance and categorically refused to marry the
4C.R.A. 107 of 1993
victim. A further allegation made in the written
complaint is that the appellant had suppressed a
material fact from the very inception, namely, that
he was already a married person. According to the
victim, this fact came to her knowledge only a few
days prior to the lodging of the complaint, and it is
contended that such concealment constituted a
fraudulent act on the part of the appellant, thereby
vitiating the consent, if any, given by the victim. It
has also been stated in the complaint that as a
result of the physical relationship with the
appellant, the victim had conceived and was
carrying the child of the appellant in her womb at
the time of filing of the complaint. On the basis of
the aforesaid allegations, the police machinery was
set in motion, and upon completion of
investigation, charge-sheet was submitted against
the appellant under Sections 376 and 417 of the
Indian Penal Code, alleging commission of rape and
cheating, respectively.”
4. The learned Trial Court framed charge against the appellant
under Sections 376/417 of the Indian Penal Code which was
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C.R.A. 107 of 1993
read over and explained to the accused, in which he pleaded
not guilty and claimed to he tried.
5. Ultimately, upon appreciation of the materials available on
record and the evidences cited by the side of the prosecution,
the learned Trial Court found the appellant guilty of the offence
of cheating and convicted him under Section 417 of the Indian
Penal Code.
6. Mr. Rajib Ray, learned Advocate appearing on behalf of the
appellant, has assiduously contended that the impugned
judgment of conviction suffers from patent illegality and is
wholly unsustainable in the eye of law. It is submitted that
there exists no cogent, reliable or legally admissible evidence
on record to bring home the charge under Section 417 of the
Indian Penal Code against the appellant, and the learned Trial
Court gravely erred in recording the conviction merely on the
basis of surmises and conjectures, without there being any
substantive proof of the essential ingredients of the offence of
cheating.
7. Elaborating his submissions, learned Advocate for the appellant
has argued that the very foundation of the prosecution case
stands vitiated inasmuch as the victim girl, who was the de-
facto complainant and the maker of the First Information
Report, expired after lodging of the complaint and prior to trial,
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C.R.A. 107 of 1993
and consequently, she could not be examined as a witness. It
is urged that in the absence of her testimony, the allegations
contained in the First Information Report remained unproved,
and the same could not have been treated as substantive
evidence to sustain the conviction. According to him, the
learned Trial Court fell into serious error in placing reliance
upon such unproved allegations, thereby rendering the
conviction legally untenable.
8. It is further contended that even from the evidence of the
prosecution witnesses, taken at its face value, it would appear
that the victim was herself inclined to marry the appellant, and
there is nothing on record to demonstrate that the appellant
had made any false promise of marriage with a dishonest
intention from the inception so as to induce the victim to enter
into a physical relationship. In the absence of proof of a
fraudulent or dishonest inducement at the very inception, the
essential ingredients of the offence of cheating, as
contemplated under Section 417 of the Indian Penal Code,
remain conspicuously absent.
9. The learned Advocate has also emphasised that the victim, at
the relevant point of time, was admittedly above 18 years of
age and was, therefore, a major, fully capable of understanding
the nature and consequences of her actions. It is submitted
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C.R.A. 107 of 1993
that the materials on record clearly suggest that any
relationship, if at all, between the parties was consensual in
nature, and such consensual acts between two adults cannot,
in the absence of deception or coercion, be brought within the
ambit of a criminal offence under Section 417 of the Indian
Penal Code.
10. Drawing further attention to the inconsistencies in the
prosecution case, learned Advocate for the appellant has
pointed out that there are material contradictions between the
contents of the First Information Report and the statement of
the victim recorded under Section 164 of the Code of Criminal
Procedure. It is argued that such inconsistencies go to the root
of the prosecution case and seriously undermine its credibility.
In the absence of any independent corroborative evidence,
reliance upon such contradictory versions to base a conviction
is wholly impermissible in law.
11. It is also contended that apart from the allegations contained in
the First Information Report and the statement under Section
164 of the Code of Criminal Procedure, there is no substantive
evidence on record to establish that the appellant had either
forcibly committed sexual intercourse or had induced the victim
to do so on a false promise of marriage. In such circumstances,
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C.R.A. 107 of 1993
the very application of Section 417 of the Indian Penal Code is
misconceived and amounts to a misnomer.
12. The learned Advocate has further advanced the argument that
the appellant having been acquitted of the charge under
Section 376 of the Indian Penal Code, the conviction under
Section 417 of the Indian Penal Code cannot be sustained, as
both the charges are intrinsically connected and arise out of the
same set of allegations. It is submitted that once the more
serious charge has failed for want of evidence, the lesser
charge based on the same factual matrix cannot independently
survive.
13. In support of his submissions, learned Advocate has drawn the
attention of this Court to the evidence of PW10, the
Investigating Officer, who in his cross-examination categorically
stated that PW1, the father of the victim, did not disclose
before him that the victim had narrated any incident of forcible
rape or that the appellant had established physical relations
with her on the assurance of marriage. The Investigating
Officer further admitted that no such statements, as later
deposed by PW1 before the Trial Court, were made during the
course of investigation. It is thus contended that the testimony
of PW1 is an afterthought and is based on suspicion rather than
on direct knowledge, and as such, cannot be relied upon.
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C.R.A. 107 of 1993
14. Reference has also been made to the evidence of PW9, the
Medical Officer, who opined that the victim was more than 18
years of age, approximately 19 years old, at the relevant time,
thereby reinforcing the submission that she was a consenting
adult.
15. On the cumulative assessment of the aforesaid facts and
circumstances, learned Advocate for the appellant has
strenuously urged that the prosecution has miserably failed to
establish the charge against the appellant beyond reasonable
doubt. The findings of the learned Trial Court, being based on
insufficient and unreliable evidence, are liable to be set aside.
Accordingly, it is prayed that the impugned judgment and order
of conviction be set aside and the appeal be allowed in favour
of the appellant.
16. Mr. Avishek Sinha, learned Advocate appearing for the State,
has strenuously opposed the appeal and contended that the
impugned judgment of conviction does not suffer from any
infirmity, either on facts or in law, warranting interference by
this Court. It is submitted that the learned Trial Court has
meticulously appreciated the evidence on record and has
arrived at its findings upon proper evaluation thereof, and as
such, the same ought not to be disturbed in the absence of any
perversity or patent illegality.
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C.R.A. 107 of 1993
17. Addressing the principal contention of the appellant regarding
the non-examination of the victim, learned Advocate for the
State has submitted that although the victim expired after
lodging of the complaint and could not be examined during
trial, the prosecution case does not fail on that score alone. It
is argued that the contents of the written complaint are
admissible and stand proved in accordance with law,
particularly in view of the provisions of Section 47 of the Indian
Evidence Act, as contended by him. He has further submitted
that both the written complaint lodged by the de facto
complainant and her statement recorded under Section 164 of
the Code of Criminal Procedure were duly exhibited during trial,
and therefore, the absence of the victim as a witness is not
fatal to the prosecution case.
18. Inviting the attention of this Court to Exhibit-1, being the
written complaint, learned Advocate for the State has
submitted that the same clearly delineates the sequence of
events leading to the commission of the offence. It is pointed
out that as per the complaint, within a few days of the initial
acquaintance, when the victim was on her way to watch a
cinema, the appellant allegedly took her to a secluded place,
gagged her mouth, and forcibly took her to a mud house where
he committed sexual intercourse upon her on the assurance
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C.R.A. 107 of 1993
that he would marry her. It is further submitted that the
complaint also reveals that on subsequent occasions, the
appellant continued to cohabit with the victim on the same
promise of marriage, thereby establishing a pattern of conduct
amounting to deception and inducement.
19. The learned Advocate has next drawn attention to the evidence
of PW1, the father of the victim, who deposed that he came to
learn about the relationship between his daughter and the
appellant when the victim herself lodged the complaint at the
police station on 28.05.1990. It is further highlighted that PW1
categorically stated that his daughter was subsequently
murdered on the night of 28.05.1992 while returning from the
market by unknown miscreants, and that prior to the said
incident, the appellant along with his brother-in-law had visited
their house and threatened him with dire consequences if the
case was not withdrawn. Significantly, it is pointed out that this
part of the testimony remained unchallenged in cross-
examination, thereby lending credence to the prosecution case.
20. Learned Advocate for the State has also relied upon the
evidence of PW2, who stated that he had seen the appellant
working in his field and observed the victim engaging in
intimate conversation with him throughout the day. Though
this may indicate acquaintance, it is argued that such evidence,
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C.R.A. 107 of 1993
when read in conjunction with the victim’s complaint, supports
the existence of a relationship which was subsequently
exploited by the appellant.
21. Further reliance has been placed on the testimony of PW3, who
deposed that the victim had personally narrated to him that the
appellant had forcibly committed sexual intercourse upon her
by gagging her mouth in a deserted room belonging to one
Sripada Pradhan, and thereafter assured her of marriage, on
the strength of which she later consented to further acts of
cohabitation. According to the learned Advocate, this evidence
constitutes a vital piece of corroboration to the allegations
made in the written complaint and the statement under Section
164 of the Code of Criminal Procedure.
22. It is also contended that the written complaint was duly proved
through the evidence of the scribe (PW4) as well as the father
of the victim, thereby satisfying the requirement of proof of the
document. The learned Advocate has further referred to the
evidence of PW5 to submit that the victim was a minor at the
time of the occurrence, and therefore, the question of consent
assumes significance in the context of the promise of marriage
held out by the appellant.
23. Attention has also been drawn to the deposition of PW7, the
Sub-Divisional Medical Officer, who examined the victim on
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C.R.A. 107 of 1993
09.06.1990 in connection with the case and assessed her age
to be approximately 17 years at the relevant time. This,
according to the learned Advocate, lends further support to the
prosecution version regarding the circumstances in which the
incident took place.
24. The learned Advocate has emphasised that the statement of
the victim recorded under Section 164 of the Code of Criminal
Procedure was duly proved and marked as Exhibit-8, wherein
the victim consistently reiterated the allegations as made in the
written complaint. It is submitted that such statement, being
recorded before a Magistrate, carries substantial evidentiary
value and reinforces the prosecution case.
25. On the cumulative consideration of the oral and documentary
evidence on record, learned Advocate for the State has
submitted that the prosecution has successfully established the
chain of circumstances pointing towards the guilt of the
appellant. It is thus contended that there is no material on
record to dislodge the findings of the learned Trial Court, and
the conviction recorded against the appellant is fully justified
and sustainable in law. Accordingly, it is prayed that the appeal
be dismissed.
26. I have anxiously considered the rival submissions advanced on
behalf of the parties and have carefully gone through the entire
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C.R.A. 107 of 1993
materials available on record, including the oral and
documentary evidence as well as the impugned judgment
passed by the learned Trial Court.
27. The principal question that falls for determination in the
present appeal is whether the conviction of the appellant under
Section 417 of the Indian Penal Code can be sustained in law in
a situation where the de-facto complainant/victim, being the
maker of the First Information Report and the most material
witness, expired prior to trial and, therefore, could not be
examined, and further, whether in such circumstances the
written complaint and her previous statement can be said to
have been proved in accordance with law so as to form the
basis of conviction.
28. At the outset, it is required to be borne in mind that a
conviction under Section 417 of the Indian Penal Code, which
deals with punishment for cheating, necessarily presupposes
the establishment of the offence of “cheating” as defined under
Section 415 of the Indian Penal Code. The prosecution,
therefore, carries the burden of proving beyond reasonable
doubt the essential ingredients of the said offence. These
ingredients may be succinctly stated as follows: firstly, there
must be deception of a person; secondly, such deception must
induce the person so deceived to deliver any property or to
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C.R.A. 107 of 1993
consent that any person shall retain any property, or
intentionally induce that person to do or omit to do anything
which he or she would not do or omit if not so deceived; and
thirdly, such inducement must be fraudulent or dishonest at the
very inception.
29. In the present case, a fundamental infirmity strikes at the very
root of the prosecution case. It is an admitted position on
record that the victim girl, who was the defacto complainant
and the maker of the written complaint, expired during the
pendency of the trial and, as such, could not be examined as a
prosecution witness. Consequently, the conviction of the
appellant rests substantially upon two materials, namely, the
written complaint marked as Exhibit-1 and the statement of
the victim recorded under Section 164 of the Code of Criminal
Procedure, marked as Exhibit-8.
30. The case was initially set into motion on the basis of a written
complaint lodged by the defacto complainant alleging that the
appellant had induced the victim into a relationship on the false
promise of marriage and subsequently failed to fulfil such
promise, thereby committing the offence of cheating. Upon
receipt of the said complaint, investigation was undertaken and
culminated in submission of charge-sheet against the appellant.
However, the subsequent demise of the complainant before her
16
C.R.A. 107 of 1993
examination in Court introduces a serious lacuna in the
prosecution case which cannot be lightly brushed aside.
31. It is a settled principle of criminal jurisprudence, rooted in the
provisions of the Indian Evidence Act, that a written complaint
or First Information Report does not, by itself, constitute
substantive evidence of the truth of its contents. Such a
document can only be used for limited purposes, such as
corroboration or contradiction of its maker, provided the maker
enters the witness box. Ordinarily, the author of the document
must depose before the Court to prove not only its execution
but also the veracity of the statements contained therein. It is
only upon such proof that the document can be relied upon as
evidence against the accused.
32. In the present case, although PW2 (the father of the defacto
complainant) and PW4 (the scribe) deposed and the written
complaint was formally marked as Exhibit-1, such marking
does not ipso-facto establish the truth of its contents. Their
evidence could, at best, prove that such a complaint was
written or lodged, but they are not competent to depose about
the truthfulness of the allegations made therein, which were
within the exclusive knowledge of the deceased complainant.
The failure of the maker of the complaint to enter the witness
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C.R.A. 107 of 1993
box, due to her unfortunate demise, renders the contents of
the complaint unproved in the eye of law.
33. It is equally well settled that the contents of a document
cannot be treated as proved merely because the document has
been exhibited. Proof of a document and proof of its contents
are distinct and separate legal requirements. In the absence of
examination of the maker, the complaint remains a piece of
unsubstantiated material and cannot be elevated to the status
of substantive evidence.
34. The inevitable legal consequence of this situation is that the
very foundation of the prosecution case remains unestablished.
When the principal allegations forming the substratum of the
case are not proved through legally admissible evidence, it
would be wholly unsafe to base a conviction upon such
unverified assertions. A criminal Court is bound to adjudicate
on the basis of evidence which satisfies the standard of proof
beyond reasonable doubt, and not on the basis of untested
allegations.
35. It is also pertinent to note that a First Information Report is not
a substantive piece of evidence and can only be used to
corroborate or contradict its maker. In the absence of the
maker, such use is rendered impossible. Therefore, the reliance
placed by the learned Trial Court on the allegations contained
18
C.R.A. 107 of 1993
in Exhibit-1, despite the absence of proof of its contents, is
legally untenable.
36. So far as the statement under Section 164 of the Code of
Criminal Procedure (Exhibit-8) is concerned, the same also
does not, by itself, constitute substantive evidence unless the
maker is examined in Court. Such a statement can be used
only for corroboration or contradiction. In the absence of the
victim’s deposition before the Court, the statement under
Section 164 Cr.P.C. cannot be treated as substantive evidence
to sustain a conviction.
37. Thus, the learned Trial Court fell into a manifest error in law in
treating the allegations contained in the unproved written
complaint, as well as the statement under Section 164 Cr.P.C.,
as the basis for recording the conviction of the appellant. Acting
upon such material amounts to reliance on evidence which has
no probative value in the eye of law.
38. In criminal trials, the burden lies squarely upon the prosecution
to establish the guilt of the accused beyond reasonable doubt
by adducing legally admissible and reliable evidence. When the
most material witness, namely the victim herself, was not
examined due to her death, and when the primary document
forming the basis of the prosecution case remains unproved in
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C.R.A. 107 of 1993
respect of its contents, the entire edifice of the prosecution
case stands seriously undermined.
39. In such circumstances, this Court is of the considered opinion
that the allegations contained in the written complaint cannot
be treated as proved facts, and the reliance placed upon such
unproved material by the learned Trial Court in recording the
conviction of the appellant constitutes a grave and manifest
error of law, which cannot be sustained and is liable to be set
aside.
40. Even if the oral testimonies of the prosecution witnesses are
taken at their highest and accepted in their entirety, the
materials available on record unmistakably indicate that the
victim was a major at the relevant point of time and was fully
competent to take independent decisions concerning her
personal life, including entering into a consensual relationship.
41. In this context, the evidence of PW9, Dr. H.P. Halder, who
medically examined the victim, assumes considerable
significance. The said witness, in the course of his cross-
examination, categorically opined that the age of the victim
was above 18 years and close to 19 years. The opinion of a
qualified medical practitioner, based on scientific examination,
carries substantial evidentiary weight in determining the
approximate age of a person, particularly in the absence of any
20
C.R.A. 107 of 1993
cogent documentary evidence to the contrary. Such medical
opinion, when read in conjunction with the surrounding facts
and circumstances of the case, clearly establishes that the
victim had attained the age of majority and possessed the legal
capacity to consent and to make voluntary choices regarding
her relationship.
42. The factual matrix emerging from the prosecution evidence
further indicates that the relationship between the victim and
the appellant was not one arising out of coercion or deception
from the very inception, but rather a consensual association. It
appears that the victim was inclined to marry the appellant and
continued the relationship over a period of time. As per the
allegations in the complaint, the appellant had initially
established physical relations with the victim on the assurance
of marriage and such relations continued on a few subsequent
occasions. However, the narrative itself suggests continuity of
the relationship, which is indicative of a voluntary and
consensual involvement rather than one induced solely by
fraud or misconception of fact.
43. Significantly, it is only at a later stage, after the death of the
appellant’s father, when the victim allegedly pressed for
marriage and the appellant declined on the ground that he was
already married, that the present complaint came to be lodged.
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C.R.A. 107 of 1993
This sequence of events, as reflected from the record, suggests
that the grievance arose out of the appellant’s subsequent
refusal to marry, rather than from any initial fraudulent
intention. It is well settled that a mere breach of promise to
marry, in the absence of evidence to show that such promise
was false from the very inception and was made with a
dishonest intention to deceive, does not constitute the offence
of cheating.
44. Moreover, the testimony of PW10, the Investigating Officer,
further weakens the prosecution case. The Investigating Officer
categorically deposed that PW1 (father of the victim) did not
state before him during investigation that the victim had
disclosed to him that the appellant had established physical
relations with her on the assurance of marriage on multiple
occasions leading to pregnancy, or that the appellant had
subsequently refused to marry her on the ground of his prior
marriage. These material omissions amount to significant
contradictions, as the version sought to be introduced by PW1
before the learned Trial Court appears to be an embellishment
and improvement over his earlier statement made during
investigation. Such improvements strike at the credibility of the
witness and render his testimony unreliable for the purpose of
sustaining a conviction.
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C.R.A. 107 of 1993
45. It is a settled principle of evidence that when a witness makes
material improvements in Court which were not stated during
investigation, such testimony becomes doubtful and unsafe to
rely upon. In the present case, the evidence of PW1, being
inconsistent with his prior statement, cannot be accorded much
evidentiary value.
46. It is also of considerable relevance that although there were
allegations of rape levelled against the appellant, the learned
Trial Court did not find sufficient evidence to sustain the charge
under Section 376 of the Indian Penal Code and the appellant
was acquitted of the said charge. This acquittal necessarily
implies that the Court did not accept the prosecution case that
the physical relationship was non-consensual or was vitiated by
misconception of fact within the meaning of law.
47. Once it is found that the relationship between the parties was
consensual and that the victim was a major capable of making
her own decisions, the substratum of the allegation that the
appellant committed cheating by inducing her into such
relationship on a false promise of marriage becomes inherently
weak. For an offence under Section 417 of the Indian Penal
Code to be made out, it must be established that the accused
had a fraudulent or dishonest intention at the very inception of
the promise. A subsequent failure or refusal to fulfil a promise,
23
C.R.A. 107 of 1993
howsoever unfortunate, does not by itself give rise to criminal
liability for cheating.
48. It is trite law that the gravamen of the offence lies in the
intention of the accused at the time of making the
representation. In other words, the prosecution must establish
that the accused had a dishonest or fraudulent intention at the
very inception of the transaction and that the promise or
representation made by him was false to his knowledge. A
mere breach of promise, howsoever reprehensible in a moral
sense, does not ipso-facto constitute the offence of cheating
unless it is shown that such promise was made without any
intention of being performed from the very beginning.
49. In cases arising out of an alleged promise to marry, there must
be clear and cogent evidence to demonstrate that the promise
was a mere ruse or a device employed by the accused to obtain
consent, and that such promise was false from its inception. If
the materials on record indicate that the relationship between
the parties was consensual and developed over a period of
time, or that the promise could not be fulfilled due to
subsequent events or change of circumstances, the same would
not attract the penal provisions relating to cheating.
50. Applying the aforesaid settled principles to the facts of the
present case, this Court finds that the evidentiary foundation of
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C.R.A. 107 of 1993
the prosecution case is rendered inherently fragile owing to the
non-examination of the victim herself. The victim, being the
author of the written complaint and the person who allegedly
suffered the deception, was the best and most competent
witness to depose as to the nature of the alleged promise, the
circumstances under which such promise was made, and the
state of mind of the appellant at the relevant point of time. Her
untimely death before trial has undoubtedly deprived the
prosecution of its most vital witness.
51. In such a situation, the Court is required to exercise greater
caution in appreciating the remaining evidence on record. The
written complaint, though brought on record and marked as an
exhibit, cannot by itself be treated as substantive evidence of
the truth of its contents unless duly proved in accordance with
law and tested through cross-examination, which, in the
present case, was rendered impossible due to the death of the
maker. Similarly, the statement recorded under Section 164 of
the Code of Criminal Procedure, though relevant for limited
purposes, cannot assume the character of substantive evidence
in the absence of the maker being examined in Court.
52. Consequently, the prosecution was under an obligation to
establish the ingredients of the offence through independent
and reliable evidence. However, upon a careful scrutiny of the
25
C.R.A. 107 of 1993
testimonies of the prosecution witnesses, it does not appear
that there is any direct or cogent evidence to prove that the
appellant had made a false promise of marriage with a
dishonest intention from the very inception. The evidence, at
best, suggests the existence of a relationship between the
parties, but falls short of establishing the essential element of
deception coupled with fraudulent inducement.
53. In the absence of clear proof that the appellant never intended
to marry the victim at the time when the alleged promise was
made, and in the absence of substantive evidence establishing
that the consent, if any, was obtained on account of such false
promise, it would be unsafe to uphold the conviction under
Section 417 of the Indian Penal Code.
54. It is well settled that suspicion, however strong, cannot take
the place of proof, and where two views are possible on the
basis of the evidence on record, the one favourable to the
accused must be adopted. The standard of proof required in a
criminal case being that of proof beyond reasonable doubt, any
lacuna in establishing the foundational facts must necessarily
enure to the benefit of the accused.
55. In the present case, there is no cogent or convincing evidence
to show that the appellant never intended to marry the victim
from the very beginning or that the promise was a mere device
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C.R.A. 107 of 1993
to obtain consent. On the contrary, the materials on record
suggest a consensual relationship which subsequently did not
culminate in marriage, leading to the filing of the complaint.
56. In view of the above circumstances, this Court is of the
considered opinion that even upon a comprehensive evaluation
of the oral evidence adduced by the prosecution; no case of
cheating is made out against the appellant. The conviction
under Section 417 of the Indian Penal Code, being founded on
insufficient and unreliable evidence and in the absence of proof
of dishonest intention at the inception, is legally unsustainable
and liable to be set aside.
57. In view of the above facts and circumstances and discussion
made above I am of the opinion that the impugned judgment
and order of conviction passed by the learned Trial Court is
liable to be set aside.
58. Thus, the instant appeal be and the same is hereby allowed.
59. Accordingly, the impugned judgment and order of conviction
dated 21.04.1993 passed by the learned Trial Court in
connection with Sessions Trial Case No. VI/May/1992 arising
out of Bhupatinagar P.S. Case No. 45 of 1990, dated
29.05.1990 is hereby set aside.
27
C.R.A. 107 of 1993
60. The appellant is on bail. He is to be discharged from his
respective bail bond and be set at liberty if he is not wanted in
connection with other case.
61. In accordance with the mandate of Section 437A of the Code of
Criminal Procedure (Section 483 of the Bharatiya Nagarik
Suraksha Sanhita, 2023), it is incumbent upon the appellant to
furnish bail bonds, accompanied by suitable sureties. Such
bonds, once executed, shall remain in full force and effect for a
period of six months, ensuring the presence of the appellant as
required by law and securing the due administration of justice.
62. Let a copy of this judgment along with the Trial Court record be
sent down to the Trial Court immediately.
63. Urgent Photostat certified copy of this order, if applied for, be
given to the parties on payment of requisite fees.
(Prasenjit Biswas, J.)
