Section 398, Indian Penal Code, applies only to cases of attempt to commit robbery or dacoity, and not to cases where robbery or dacoity is actually committed.

1. - This is an appeal filed by Hari Ram against the judgment of the learned Sessions Judge, Merta, dated 14th December, 1976, by which he was convicted under Section 398, Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years,

2. The case for the prosecution, which has been accepted by the learned Sessions Judge, is that on 1st February, 1976, Babu Ram was grazing his she-camel and its young-one in the field of Kana Ram Bhambhi at village Bhakrod at about 12 in the noon At that time Hari Ram appellant, having armed himself with a gun, came into the field of Kana Ram Bhambhi and asked Babu Ram to hand over the possession of the she camel and its young-one to him. Babu Ran refused to give the appellant his she-camel and its young-one Upon Babu Ram's refusal, the appellant became angry and in a fit of anger he slapped Babu Ram twice or thrice and snatched away the she-camel and its young-one. The appellant, while earning away the she-camel and its young one, openly declared that if he was pursued by Babu Ram, the latter would be killed. Out of for Babu Ram did not pursue the appellant and went to his house to inform his father about the robbery. At his house he met his father Baksa Ram and related the whole of the incident to him. Baksa Ram went to Ram Chandra Panch and Ram Chandra Chaudhary for help. Ram Chandra Panch, Ram Chandra Chaudhary and Baksa Ram followed the foot prints of the she-camel, but could not trace its where about. So they returned to their village in the evening Ram Chandra Panch and Ram Chandra Chaudhary told Baksa Ram that the appellant might have taken the she camel and its young-one to the fair going on in Nagaur in those days and so it was worthwhile to go there and search for the appellant before making a report of the occurrence to the pc lice. Baksa Ram acted on their advice and went to Nagaur but could not find the appellant or the she-camel in the fair. Hence, he lodged a re port about the incident with the police at police station, Amanda on 4th February, 1975, which is Ex. P. 1 on the record. The police registered a criminal case under Section 398, Indian Penal Code against Hari Ram appellant and made the usual investigation into the matter. After collecting necessary evidence in the case, the police, eventually, submitted a charge-sheet against Hari Ram appellant for the offence under Section 398, Indian Penal Code in the court of the Judicial Magistrate, Nagaur, who, upon finding a prima-facie case exclusively triable by the court of Sessions, committed the appellant to the court of the Sessions Judge, Merta, for trial for the offences under Section 394 and 398, I. P,C.

3. The learned Sessions Judge tried the appellant after framing a charge against him for the offence under Section 398, I.P.G. only. The learned Sessions Judge relied upon evidence of the two eye-witnesses namely, Babu Ram, P.W. 1 and, Ram Niwas, P.W. 2 and held on its basis that the prosecution story had been fully proved by the evidence of these two witnesses. Accordingly, he convicted and sentenced the appellant for the aforesaid offence. Aggrieved by his conviction and sentence, the appellant has preferred this appeal, as stated above.

4. I have carefully examined the evidence on the record and heard Mr. P.N. Mohanani and Mr. R.S. Sharma, learned Counsel for the appellant and Mr. K.c. Bhandari, Public Prosecutor for the State. It has been contended by the learned Counsel for the appellant in the first place that the case for the persecution was false and the evidence produced in support there of is highly unworthy of credence. It was further argued that the appellant owned and possessed agricultural land in the neighbourhood of the field of Babu Ram' and his father and, therefore, the story that he robbed Babu Ram of his she-camel and its young-one in broad day light does not carry conviction to a judicial mind. According to the learned Counsel the appellant was falsely implicated in this case