ORDER :

1. This appeal has been preferred against the judgment dated 12th July, 2011 of the High Court of Gujarat at Ahmedabad upholding the conviction and sentence of the appellant awarded by the trial Court under Sections 366 and 354 of the Indian Penal Code [for short "IPC"], with the modification that the sentence under Section 366of the IPC, has been reduced to rigorous imprisonment for two and half years with fine but under Section 354 sentence for one year, has been affirmed.

2. The case of the complainant is that on 12th September, 1989, she hired an auto rickshaw from the railway station for going to her house at 12.30 A.M. along with another lady companion. After dropping the other companion at her house, the complainant was left alone. The accused instead of dropping her at her house, speeded up the rickshaw and suggested that he will take her for a stroll. When she cried, he put his hand on her mouth to stop her from shouting. In the process, she gave a bite on fingers of hand of the accused and jumped out of the rickshaw. Other persons were attracted on hearing her shouts on which the accused ran away. She went to police station and lodged the First Information Report. After investigation, the accused was sent up for trial. The accused was charged under Sections 366 and 354 IPC. The trial Court accepted the above version of the prosecutrix which was supported by medical evidence as to existence of injury on fingers of accused and convicted and sentenced him, which has been confirmed by the High Court with the modification noticed above.

3. Learned counsel for the appellant submitted that no offence under Section 366 IPC was made out as the ingredient of the said offence is kidnapping or abducting the woman with intent to compel her for marriage against her will or in order that she may be forced or seduced to illicit inter course. In the present case, the prosecution version does not contain the ingredients of the said offence. It was submitted that offence under Section 354 IPC was also not made out as the appellant did not assault or use criminal force intending to outrage the modesty of the prosecutrix. Alternatively, sentence awarded against the appellant may be reduced having regard to the fact that the appellant has already undergone imprisonment for about 4 months. It is pointed out that as per certificate dated 4th November, 2011 issued by the Deputy Superintendent, Jail, the appellant had undergone 3 months and 24 days and adding further period till he was released on bail in pursuance of order dated 25th November, 2011, the appellant has already suffered imprisonment for more than 4 months.

4. We asked learned counsel for the State as to how charge under Section 366 IPC could be held to be established even if the entire version of the complainant is accepted as true. Learned counsel for the State is unable to show as to how the said charge can be held to have been established in the absence of the ingredients of the said offence. In Chote Lal and Anr. v. State of Haryana, 1979(4) SCC 336, it was observed :

"2. Having appreciated the entire facts and circumstances of this case, we are of the view that the conviction of neither of the appellants on any of the counts can be maintained. The High Court has failed to record any finding which was necessary to be recorded for the purpose of maintaining their conviction under Section 366 Indian Penal Code. By merely finding that they abducted Lajwanti, the charge under Section 366 could not be held to have been proved. It was further necessary to find that they abducted the woman for any of the purposes mentioned in Section 366. In the absence of such a finding that charge fails against both the appellants."

5. We are thus of the opinion that the conviction and sentence awarded to the appellant under Section 366 IPC is liable to be set aside.

6. As regards charge under Section 354 IPC, we are of the view that the version of the complainant does make out a case. There is