Attempted rape and abetment require proof of overt acts and intentional instigation; completed rape was not established.

Completed rape was not proved because the medical evidence did not establish penetration, but the proved facts and surrounding circumstances showed overt acts beyond preparation, supporting conviction for attempted rape under Section 511 of the Indian Penal Code. The conviction under Section 376 was therefore unsustainable, while the attempt conviction was upheld. Abetment under Section 109 was also not made out because intentional instigation or active complicity linked to the principal offence was not proved on the facts found, so that conviction was set aside.

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Issues: (i) Whether the conviction for rape could be sustained, or whether the proved facts disclosed only an attempt to commit rape punishable under Section 511 of the Indian Penal Code, 1860; (ii) Whether the conviction for abetment under Section 109 of the Indian Penal Code, 1860 was sustainable.

Issue (i): Whether the conviction for rape could be sustained, or whether the proved facts disclosed only an attempt to commit rape punishable under Section 511 of the Indian Penal Code, 1860.

Analysis: The medical evidence did not establish completed rape, but the surrounding facts and the prosecution evidence showed acts sufficient to constitute an attempt. In criminal law, the offence of rape requires penetration, however slight, while an incomplete course of conduct may still amount to attempt when the intention and overt acts towards commission are proved. The evidence accepted by the courts below supported the finding that the accused had gone beyond preparation and had entered the stage of attempt.

Conclusion: The conviction under Section 376 of the Indian Penal Code, 1860 was not sustainable, but the conviction under Section 511 of the Indian Penal Code, 1860 was upheld.

Issue (ii): Whether the conviction for abetment under Section 109 of the Indian Penal Code, 1860 was sustainable.

Analysis: Abetment by instigation requires intentional aid or active complicity and must be linked to the commission of the principal offence. On the facts found, the necessary ingredients for abetment were not made out against the appellant, and Section 109 had no application.

Conclusion: The conviction under Section 109 of the Indian Penal Code, 1860 was set aside.

Final Conclusion: The appellant's conviction was maintained only for the offences found to be proved on the evidence, while the conviction for rape and abetment was eliminated, leaving the sentences for the surviving convictions to operate concurrently.

Ratio Decidendi: Where the evidence does not prove completed rape but does prove overt acts amounting to an attempted commission, conviction under Section 511 of the Indian Penal Code, 1860 is sustainable; abetment under Section 109 requires proof of intentional instigation or active complicity linked to the principal offence.

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