Proof of penetration governs rape charges; where absent, conviction may reduce to outraging a woman's modesty.

The SC held that rape was not proved because penetration, even if slight, was not established by the prosecutrix's evidence or the medical material. The surrounding facts also did not show an attempt to commit rape under the statutory test requiring intention to have sexual intercourse despite resistance. The proven conduct did, however, constitute criminal force on a woman with intent to outrage modesty, and the participation of both accused supported liability on the basis of common intention. Accordingly, the conviction for rape was not sustained and was replaced by conviction for outraging modesty with common intention.

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Issues: Whether the conviction of the appellants under Section 376(2)(g) of the Indian Penal Code, 1860 was sustainable on the evidence, or whether the facts disclosed only the lesser offence of outraging the modesty of a woman under Section 354 read with Section 34 of the Indian Penal Code, 1860.

Analysis: The conviction for rape required clear proof of penetration, since penetration, however slight, is the essential ingredient of the offence. The evidence of the prosecutrix and the medical material did not specifically establish penetration, and the surrounding circumstances did not show that the appellants were determined to have sexual intercourse at all events, notwithstanding resistance. On the facts, the case did not make out an attempt to commit rape under Section 376 read with Section 511 of the Indian Penal Code, 1860. However, the conduct proved use of criminal force on a woman with intent to outrage her modesty, which answers the ingredients of Section 354 of the Indian Penal Code, 1860, and the participation of both accused justified the application of common intention under Section 34.

Conclusion: The conviction under Section 376(2)(g) was not sustained; the appellants were convicted instead under Section 354 read with Section 34 of the Indian Penal Code, 1860.

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