(1) THIS appeal is directed against the judgment and order of the High court of Madras passed in Criminal Revision Case No. 16 of 1983 confirming the conviction and sentence of the appellant herein.

(2) BROADLY put, the case as found against the appellant is thus: Public Witness 3 was a moneylender and his activities became a source of revulsion to the appellant. Evidence has been led by the prosecution to show that under the unfair deals of PW 3 the villagers were reeling in helplessness and agony. The appellant and his companions decided giving Public Witness 3 a rough jolt. On the day of occurrence at about 6.30 p.m., the appellant and his companions trespasser into the house of PW 3. In the presence of Public Witness 1, the son of Public Witness 3, and Public Witness 4, the wife of Public Witness 3, he ransacked the house as if committing a robber) and in the process caused extensive injuries to Public Witness 1 and Public Witness 3. Some of those injuries were serious and were on vital parts. The weapon employed for the purpose was a big knife. Promptly the matter was reported by Public Witness 1 to the Police and an FIR was recorded in which not only the name of the appellant, but that of his companions too figured. Occasion later arose to record the dying declaration of Public Witness 3 since his condition was deteriorating. A Magistrate employed for the purpose a recorded the statement of Public Witness 3 in which specifically the appellant alone was mentioned by name and the names of others were missing, though their participation in the occurrence was fixed in that statement. All the same, during the occurrence no article was removed and, thus, in a sense, no robbery or dacoity was committed. Correspondingly, nothing was recovered from the appellant or his companions, which could be said to be robbed property. This is the sum total of the prosecution case.

(3) THE participation of the appellant has been established by three courts below and we have no reason to disbelieve PWs 1, 3 and 4 with regard to the complicity of the appellant in the crime. The argument available to others on the basis of omission of their names in the so-called dying declaration of Public Witness 3 is of no avail to the appellant since he at least was named both in the FIR as also in the statement of Public Witness 3. There could even be no reason for PWs 1, 3 and 4 to have falsely added the appellant to be one of the culprits of the crime. We entirely agree with the view of the courts below with regard to the appellants participation in the occurrence.

(4) IT seems to us that the conviction of the appellant under Section 398 Indian Penal Code whereunder he has been sentenced to seven years rigorous imprisonment cannot be sustained. Section 398 Indian Penal Code gets attracted if at the time of attempting to commit robbery or dacoity, the offender is armed with a deadly weapon which will attract an imprisonment not less than seven years. When no robbery or dacoity has been committed as such, in the sense that no property was removed from the house of the complainants and nothing said to be belonging to the complainants was recovered, it would be difficult to hold that there was any attempt in regard to the commission of robbery or dacoity. Scattering of articles in the house may cause a scene as if ransacked, but that does not prove the charge. We thus feel that on the evidence, the conviction of the appellant under Section 398 Indian Penal Code is not sustainable. Accordingly, the same is set aside.

(5) THE appellant has been convicted under Section 307 Indian Penal Code too for which he has been sentenced to three years Rl. Sentences under other counts are of lesser duration and all have been ordered to run concurrently. It is for this reason that attempt has been made by Mr Vanamamalai, learned counsel for the appellant to plead for reduction of sentence under the count of Section 307 Indian Penal Code on