A consensual relationship, even with a promise to marry, does not constitute rape if the other party is aware of the accused's marital status and consents willingly.

JUDGMENT :

G.BASAVARAJA, J.

1. The appellant has preferred this appeal against the judgment of conviction and order on sentence passed by the VII Additional Sessions Judge, Mysuru (for short "the trial Court").

2. For the sake of convenience, the parties herein are referred to as per their rank and status before the trial Court.

3. The brief facts leading to this appeal are that, H.D.Kote Police submitted charge sheet against the accused for the commission of offence under sections 376, 417 of Indian Penal Code.

4. It is alleged by the prosecution that the Prosecutrix and the accused are the residents of Hatvalu Village, H.D.Kote Taluk. The Prosecutrix is not married. She is the only daughter of CW4-Malligamma. Her husband had deserted her when the Prosecutrix was about 5 years old. CW4-Malligamma is aged and short of eye-sight. She and her daughter are eking their livelihood by doing coolie work. The Prosecutrix and the accused belong to the same caste. Accused is married to one Sakamma, however they have no issues.

5. The accused had befriended and lured the Prosecutrix into intimate relationship, promising that he would marry her. He had told the Prosecutrix that as he did not have children out of the first marriage, he would marry her. He also told her that at first they should have intimate sexual contact and the family members would not raise any objection thereafter and it would pave way for their marriage. Believing the words and assurance given by the accused, the Prosecutrix gave in to wishes of the accused and both had sex several times. The accused also used to visit the house of the Prosecutrix. Due to the said intimate relationship between them, the Prosecutrix became pregnant and informed the said fact to the accused. On the assurance given by the accused, she had not informed the said fact to her mother or other villagers. As her mother was short of sight, she has not initially noticed that her daughter was pregnant. The said fact was brought to her notice by the neighbors and when questioned, the Prosecutrix revealed to her mother about her relationship with the accused and also that he had assured of marrying her. The accused had thereafter started avoiding her which forced the Prosecutrix and her mother to inform the above facts to the village elders and accordingly panchayat was convened. The accused who appeared before the panchayat, suspected the paternity of the child in the womb of prosecutrix and demanded that the blood samples have to be verified for which the Prosecutrix had agreed. However, the accused had not come forward for the said test. The Prosecutrix had thereafter approached Chamundeshwari Women's Association, NGO for counseling and reported the matter to the office bearers. The accused was summoned to the above office on 25.06.2012 and when enquired, he had admitted of impregnating the Prosecutrix but however informed them that his first wife was also carrying and the family members had opposed the marriage of accused with the Prosecutrix. However, on the next day i.e., on 27.06.2012, he had disputed the paternity and sought DNA examination of the blood samples. Taking note of the stand taken by the accused in the panchayat, she was advised to take appropriate action. Therefore, on 17.07.2012, the Prosecutrix approached the H.D.Kote Police Station and lodged a complaint against the accused. The Prosecutrix was 8 months pregnant at that time of lodging the complaint. Thereafter, she had given birth to a girl child, which later came to be