IN THE HIGH COURT OF ORISSA AT CUTTACK

CRLA No.393 of 2009

CNR-ODHC010373662009

(In the matter of an application under Section 374 of the Criminal

Procedure Code, 1973)

Lambodara @ Lambodar Singh ……. Appellant

-Versus-

State of Orissa ……. Respondent

For the Appellant : Mr. Prabhav Behera, Advocate

For the Respondent : Mr. Jateswar Nayak, AGA

CORAM:

THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA

Date of Hearing: 14.07.2026 : Date of Judgment: 30.07.2026

S.S. Mishra, J. The present Criminal Appeal is arising out of the

judgment dated 09.09.2009 passed by the learned Addl. Sessions

Judge (FTC), Bhawanipatna in Sessions Case No. 102/82 of 2008,

whereby the respondent-accused was acquitted of the offence

punishable under Section 376 but convicted under Section 417 of the

Indian Penal Code and sentenced to undergo R.I. for one year.

2. Heard Mr. Prabhav Behera, learned counsel for the appellant

and Mr. Jateswar Nayak, learned Addl. Government Advocate for the

State-respondent.

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3. The prosecution case, in brief, is that the prosecutrix was a

minor girl aged about 17 years at the relevant time. The accused,

Lambodar Singh, was a resident of Bharatbahal under Bolangir

district and, about one year prior to lodging of the F.I.R., was residing

in the house of his relative, namely, Bikram Singh, situated in the

village of the prosecutrix. During his stay in the village, the accused

allegedly developed physical intimacy with the prosecutrix by

assuring her that he would marry her. It is alleged that, after the

matter came to the knowledge of the villagers, the accused left the

village and went away. Thereafter, the parents of the prosecutrix

arranged her marriage with one Upendra Singh, which was scheduled

to be solemnized on 04.04.2008. On the date fixed for the marriage,

the accused allegedly contacted the family members of the proposed

bridegroom over telephone and requested them not to proceed with

the marriage, stating that he was in love with the prosecutrix and

intended to marry her. On being informed of the same, the family

members of the bridegroom cancelled the proposed marriage.

Subsequently, when the prosecutrix requested the accused to marry

her, he did not agree to do so. Consequently, on 10.04.2008, the

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prosecutrix lodged a written report at Utkela outpost, on the basis of

which Kesinga P.S. Case No.45 of 2008 was registered against the

accused for the offences punishable under Sections 376 and 417 of

the Indian Penal Code.

4. Upon completion of investigation, charge-sheet was submitted

against the accused for the offences punishable under Sections 376

and 417 of the Indian Penal Code. The case was thereafter committed

to the Court of Sessions and, upon transfer, the accused faced trial

before the learned trial Court.

5. In order to substantiate the charges, the prosecution examined

eleven witnesses. P.W.9 was the prosecutrix; P.W.4 was her father;

P.Ws.1, 2, 7 and 8 were examined in relation to the different seizures

made during investigation; P.W.5 was the Medical Officer who

medically examined the prosecutrix; P.W.6 was the Medical Officer

who examined the accused; P.W.3 was the Headmaster of Katapada

Primary School, who produced the school admission register relating

to the age of the prosecutrix; and P.Ws.10 and 11 were the

Investigating Officers. No witness was examined on behalf of the

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defence, the plea of the accused being one of complete denial and

false implication.

6. The learned trial Court, upon appreciation of the evidence on

record, held that the prosecutrix's date of birth, as established from the

school admission register proved through the Headmaster (P.W.3),

was 12.07.1989 and, therefore, she had already attained the age of 18

years at the time of the alleged occurrence. The trial Court further

found from the evidence of the prosecutrix that she and the accused

were in love and that the accused had assured her to marry, pursuant

to which they developed a physical relationship. It was accordingly

held that the prosecutrix was a consenting party to the sexual

intercourse and that the prosecution had failed to establish that she

had been induced to have sexual intercourse solely on account of the

assurance of marriage. The trial Court observed that the prosecutrix

had voluntarily consented to the sexual relationship with the accused,

with whom she was deeply in love, and, being a major and

sufficiently mature, was aware of the consequences of the sexual act.

Consequently, the accused was acquitted of the charge under Section

376 IPC. However, relying upon the evidence that the accused had

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sexual intercourse with the prosecutrix on several occasions after

promising to marry her, thereby making her pregnant, and thereafter

refused to marry her, the learned trial Court concluded that the

accused had committed the offence of cheating and accordingly

convicted him under Section 417 IPC. The relevant part of the

aforesaid judgment is reproduced herein for ready reference:-

“9. Now I have to find out if from the facts proved

above the accused can be held guilty for the

offence of rape punishable under section 376 IPC.

In her evidence during cross examination the

victim girl admitted that her date of brith is

12.7.1989, as per the school admission register.

As per the evidence of P.W.3, the Head Master of

Kadapada Primary School, on whose production

the school admission register was proved and as

per the school admission register, the date of birth

of the victim is 12.7.1989. As such by the time of

incident, the victim had already attained 18 years

of age. As per the evidence of the prosecutrix she

and accused both were in love with each other

and the accused assured to marry her and then

developed physical relationship with her. As such

she was a consenting party to the sexual act.

From her evidence it is not proved that because of

the occurrence of the accused to marry her, she

was tempted to have sex with him. Rather from

her evidence it is proved that she voluntarily

consented for having sexual intercourse with the

accused with whom she was deeply in love. She

agreed to have sex with the accused after knowing

well the consequence thereto as she was a major

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girl by that time and she was well matured to have

knowledge about the sexual act. Accordingly, it

does not constitute an offence of rape U/s 376 of

IPC. Hence the accused is not found guilty for the

offence U/s 376 of IPC. However, from the

evidence of the prosecutrix it is found that the

accused had sexual intercourse with the

prosecutrix several time promising to marry her

and made her pregnant and then refused to marry

her. In my opinion the act of the accused

constituted an offence of cheating and he is found

guilty for the offence U/s 417 Cr.P.C.”

7. The principal question which arises for consideration in the

present appeal is whether, in the facts and circumstances of the case,

the learned trial Court was justified in recording a conviction under

Section 417 IPC merely on the ground that the accused had entered

into a physical relationship with the prosecutrix after assuring her of

marriage and subsequently did not marry her. In order to answer the

said question, it is necessary to examine whether the prosecution has

established the essential ingredients of the offence of cheating and, in

particular, whether the alleged promise of marriage was false from its

inception and was made with dishonest intention. It would be

appropriate to notice the statutory provisions which have direct

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bearing upon the controversy. Section 90 of the Indian Penal Code

provides as follows:

“90. Consent known to be given under fear or

misconception.—

A consent is not such a consent as it intended by

any section of this Code, if the consent is given by

a person under fear of injury, or under a

misconception of fact, and if the person doing the

act knows, or has reason to believe, that the

consent was given in consequence of such fear or

misconception; or

Consent of insane person.— if the consent is given

by a person who, from unsoundness of mind, or

intoxication, is unable to understand the nature

and consequence of that to which he gives his

consent; or

Consent of child.— unless the contrary appears

from the context, if the consent is given by a

person who is under twelve years of age.”

Sections 415 and 417 of the Indian Penal Code read as follows:

“415. Cheating.—

Whoever, by deceiving any person, fraudulently

or dishonestly induces the person so deceived to

deliver any property to any person, or to consent

that any person shall retain any property, or

intentionally induces the person so deceived to do

or omit to do anything which he would not do or

omit if he were not so deceived, and which act or

omission causes or is likely to cause damage or

harm to that person in body, mind, reputation or

property, is said to “cheat”.

Explanation.— A dishonest concealment of facts

is a deception within the meaning of this section.

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417. Punishment for cheating.—

Whoever cheats shall be punished with

imprisonment of either description for a term

which may extend to one year, or with fine, or

with both.”

The expression "cheating" occurring in Section 417 IPC

has to be understood in the light of Section 415 IPC. Thus, the

prosecution must establish the requisite ingredients of deception and

dishonest or fraudulent inducement. Mere breach of a promise,

without proof that the promise was false and was made dishonestly at

the very inception, would not by itself constitute the offence of

cheating. Thus, in a case founded upon an alleged promise of

marriage, the mere fact that the promise was subsequently not

fulfilled cannot, in itself, establish the offence of cheating. The

prosecution must establish that the promise was false at the very

inception and that the accused, at the time of making the promise, had

no intention to honour it. A subsequent refusal to marry may be

relevant evidence, but it cannot, by itself, conclusively establish the

dishonest intention which must exist at the inception of the promise.

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8. The question of consent in cases involving an alleged promise

of marriage also assumes significance in the context of Section 90

IPC. Section 90 IPC provides that a consent is not such consent as is

intended by any provision of the Code if it is given by a person under

fear of injury or under a misconception of fact and if the person doing

the act knows or has reason to believe that the consent was given in

consequence of such fear or misconception. Therefore, the

prosecution must establish not merely that a promise of marriage was

made, but also that such promise was false from the inception, that the

prosecutrix's consent was obtained in consequence of such

misconception and that the accused knew or had reason to believe that

the consent was so given.

9. The Hon'ble Supreme Court in Pramod Suryabhan Pawar v.

State of Maharashtra, reported in AIR 2019 Supreme Court 4010,

has authoritatively laid down the distinction between a false promise

of marriage and a subsequent breach of promise. The Court held that,

to establish that consent was vitiated by a misconception of fact

arising from a promise to marry, it must be shown, firstly, that the

promise of marriage was a false promise, given in bad faith and with

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no intention of being adhered to at the time it was made, and

secondly, that the false promise itself had immediate relevance or a

direct nexus to the woman's decision to engage in the sexual act. The

mere failure to fulfil a promise subsequently cannot automatically

lead to the conclusion that the promise was false when it was initially

made. It was held thus:-

“18. To summarise the legal position that

emerges from the above cases, the “consent” of a

woman with respect to Section 375 must involve

an active and reasoned deliberation towards the

proposed act. To establish whether the “consent”

was vitiated by a “misconception of fact” arising

out of a promise to marry, two propositions must

be established. The promise of marriage must

have been a false promise, given in bad faith and

with no intention of being adhered to at the time it

was given. The false promise itself must be of

immediate relevance, or bear a direct nexus to the

woman’s decision to engage in the sexual act.”

The aforesaid principle has also been reiterated and applied

by the Gauhati High Court in Guluk Kathar v. State of Assam,

Neutral Citation No. 2025:GAU-AS:636, wherein the Court found

that there was no material indicating that, at the inception of the

relationship, the accused had no intention to marry the victim. The

Court observed that the relationship between the parties had

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subsequently broken down and held that, in the absence of clinching

evidence to establish that the victim had continued the relationship on

account of a misconception of fact, the accused could not be

convicted under Section 417 IPC. The Court further reiterated that

mere refusal to marry would not constitute the offence under Section

417 IPC unless the requirements of Section 90 IPC were established.

It was held thus:-

“16. This Court has also not found anything to

indicate from the available materials even

suggesting that at the inception, the accused did

not intend to marry the victim. What is discernible

is that the relation between them broke down.

Therefore, in the considered opinion of this Court,

in absence of any clinching evidence to prove that

the victim, PW-1 had continued her relationship

with the accused for 4 years on a misconception of

fact, the accused could not have been convicted for

commission of offence under Section 417 IPC,

more particularly, in view of the settled

propositions of law that mere refusal to marry

would not constitute offence under Section 417 of

the IPC until and unless the requirement under

Section 90 IPC is established by the prosecution,

which in the case, the prosecution has failed.

Therefore, in the considered opinion of this Court,

the impugned judgments and orders are vitiated by

perversity and cannot withstand the scrutiny of this

Court within the parameter of its revisional

jurisdiction. The judgment relied on by Mr. VA

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Chowdhury, learned amicus cannot be made

applicable in the given facts of the case.”

10. On the basis of the aforesaid principles, this Court finds that the

conviction of the accused under Section 417 IPC cannot be sustained.

Significantly, the evidence relied upon by the prosecution itself

demonstrates that the accused and the prosecutrix were in deep love.

The learned trial Court, while acquitting the accused under Section

376 IPC, specifically accepted the position that the prosecutrix was a

consenting party to the physical relationship and that the prosecution

had failed to establish that the alleged assurance of marriage was the

inducement which caused her to submit to sexual intercourse. Once

the trial Court found that the relationship was consensual and that the

charge of rape was not established, the question whether the promise

of marriage constituted cheating still required an independent

examination of the essential ingredients of Section 415 IPC.

11. In the present case, there is no convincing evidence to

demonstrate that the accused, at the very inception of the relationship,

had made a false promise of marriage with no intention whatsoever to

marry the prosecutrix. On the contrary, the subsequent conduct

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attributed to the accused by the prosecution itself materially weighs

against such an inference. It is the prosecution's own case that, when

the prosecutrix's marriage with Upendra Singh was arranged, the

accused contacted the family members of the proposed bridegroom

and requested them not to proceed with the marriage on the ground

that he was in love with the prosecutrix and wanted to marry her.

Such conduct, though it may not by itself establish a legal obligation

to marry, is certainly relevant while assessing whether the accused

had a dishonest intention not to marry the prosecutrix from the very

inception. The distinction between a promise which was false from

the beginning and a promise which was subsequently not fulfilled is

fundamental to the determination of criminal liability under Section

417 IPC.

12. The learned trial Court appears to have proceeded primarily on

the basis that the accused had established sexual relations with the

prosecutrix after promising to marry her, that the prosecutrix became

pregnant and that he subsequently refused to marry her. However,

such subsequent conduct, without proof of the accused's dishonest

intention at the inception of the promise, is insufficient to constitute

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cheating. The law laid down in Pramod Suryabhan Pawar (supra)

makes it clear that the crucial point of determination is the state of

mind of the accused when the promise was made. The prosecution

cannot establish the offence merely by demonstrating that the promise

was ultimately not fulfilled.

13. The same reasoning applies to the requirement of Section 90

IPC. The prosecution has failed to establish that the prosecutrix's

consent was obtained under a misconception of fact which the

accused knew or had reason to believe to exist. The evidence does not

establish that the accused had deliberately created a false

representation of marriage as a ruse to obtain sexual relations. Rather,

the evidence indicates a continuing relationship between two persons

who were in love and who, at least at one stage, contemplated

marriage. The subsequent breakdown of that relationship cannot, in

the absence of evidence of dishonest intention at inception, be

retrospectively characterised as cheating.

14. This Court also finds that the learned trial Court's acquittal of

the accused under Section 376 IPC, based upon its finding that the

prosecutrix was a consenting party and that the prosecution failed to

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establish that her consent was obtained on account of the assurance of

marriage, assumes relevance while considering the charge under

Section 417 IPC. Although the two offences have distinct ingredients,

the same evidence cannot be selectively relied upon to acquit the

accused of rape on the ground that the relationship was consensual

while simultaneously convicting him for cheating solely because the

relationship subsequently failed, without establishing the independent

ingredient of dishonest intention at the inception.

15. On an overall assessment of the evidence, this Court is of the

considered opinion that the prosecution has failed to prove its case

beyond reasonable doubt that the accused had made a false promise of

marriage in bad faith and without any intention of fulfilling the same

at the time when the promise was made. The subsequent refusal to

marry the prosecutrix, though unfortunate, does not by itself satisfy

the ingredients of Section 417 IPC. The requirements of Section 90

IPC have also not been established in the manner required by law.

16. For the reasons stated above, the conviction of the respondent-

accused under Section 417 of the Indian Penal Code cannot be

sustained. The judgment of conviction and order of sentence passed

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by the learned trial Court is hereby set aside. The respondent-accused

is acquitted of the charge under Section 417 IPC.

17. Accordingly, the Criminal Appeal is allowed.

(S.S. Mishra)

Judge

The High Court of Orissa, Cuttack.

Dated the 30

th

Day of July 2026/ Ashok