JUDGMENT : J.K. Mohanty, J. - Five petitioners have preferred this revision from jail against their conviction and sentence under section 399, Indian Penal Code by the Assistant Sessions Judge, Sonepur which has been confirmed in appeal (Crl. Appeal No. 3-B of 1976) by the Sessions Judge, Bolangir-Kalahandi. 2. Eighteen accused persons including the five petitioners were tried in the Court of Assistant Sessions Judge, Sonepur for having committed an offence under section 398, Indian Penal Code. The case against them was that on 29-4-1974 in the night at about 1 a.m. all the accused persons being armed with lathis, sticks and knives etc. attempted to commit dacoity in the house of complainant Chaitanya Sahu (p.w. 4) of village Saradhapali. The accused persons also assaulted the complainant and the other inmates of the house, his daughter Putna Sahu (p.w. 3) and his father (p.w. 6). When the complainant saw that about 8 to 10 persons armed with lathis etc. came from the side of his cowshed, he out of fear entered into his house and closed the door leaves of his entrance room. The accused persons gave blows to the door leaves to break open the same. The complainant then went to his Dhaba house and made hulla, and as the villagers gathered, the accused persons ran away. The complainant reported the fact before the Officer-in-charge, Tarva police station in writing as per Ext. 6. A formal F.I.R. was drawn up as per Ext. 7. After completion of investigation, charge-sheet was submitted against the accused persons. 3. In order to prove the case prosecution has examined as many as 10 witnesses. P.w. 4 is the complainant. P.w. 1 is the Magistrate, who conducted the T.I. parade. P.w. 2 is the Medical Officer. P.ws. 7, 9 and 10 are the Investigating Officers and the remaining p.ws. are the occurrence witnesses. On behalf of the defence three witnesses have been examined. The occurrence witnesses are p.ws. 3, 4, 5, 6 and 8. P.ws 3, 4 and 6 are the inmates of the house and p.ws. 5 and 8 are the villagers, who gathered on hearing the hulla. In the T.I. parade p.w. 4 and 5 identified petitioner nos. 1 and 3. P.ws. 3 and 6 could not identify any of the accused persons. The identification of petitioner Nos. P.ws 3, 4 and 6 are the inmates of the house and p.ws. 5 and 8 are the villagers, who gathered on hearing the hulla. In the T.I. parade p.w. 4 and 5 identified petitioner nos. 1 and 3. P.ws. 3 and 6 could not identify any of the accused persons. The identification of petitioner Nos. 1 and 3 is not of much importance as according to the witnesses, they were previously known to them. One of the co-accused Nrupa Mahananda made a confessional statement which has been marked as Ext. 13, though he has subsequently retracted from his confessional statement. In course of investigation, the I.O. seized M.O.I, the chapal of accused-petitioner Narayan Jal, which was identified by p.w. 4. The names of Karuna Jal, Isra Jal and Narayan Jal find mention in the F.I.R. The inmates of the house, who were assaulted by the accused persons and received injury, were examined by the doctor, p.w. 2, who has deposed that he found one lacerated injury in between the 2nd and 3rd fingers of left hand of p.w. 3 as per injury report, Ext 2, one bruise on the left shoulder of p.w. 4, as per injury report, Ext. 5 and one lacerated injury on the head just above the right ear and another injury on the occipital bone of p.w. 6 as per the injury report, Ext. 4. The Assistant Sessions Judge after considering the evidence of the eye witnesses to the occurrence, namely, p.ws. 3, 4, 5, 6 and 8, has held that the accused-petitioners along with others went to the house of complainant Chaitanya Sahu (p.w. 4) of Saradhapali with a view to commit dacoity, but as the villagers hearing the hulla gathered there, they were not successful in committing dacoity and ran away. The evidence of p.ws. has been corroborated by the confessional statement made by the co-accused Nrupa Mahananda vide Ext. 13. Further, from the evidence of the doctor, p.w. 2, it is found that the witnesses, namely, p.ws. 3, 4 and 6, were assaulted by some of the accused persons. Considering the evidence on record and the facts and circumstances of the case, the trial Court found the accused persons guilty under section 399, Indian Penal Code for making preparation to commit dacoity, but not under section 398, Indian Penal Code and sentenced each of them to R.I. for four years. Considering the evidence on record and the facts and circumstances of the case, the trial Court found the accused persons guilty under section 399, Indian Penal Code for making preparation to commit dacoity, but not under section 398, Indian Penal Code and sentenced each of them to R.I. for four years. The petitioners preferred Criminal Appeal No. 3-B of 1976 which was heard along with other appeals preferred by other accused persons and the learned Sessions Judge confirmed the conviction and sentence passed by the trial Court. 4. As no body appears for the petitioners, who have preferred this revision from jail, I have carefully gone through the records. I do not find any reason to differ from the finding of the Courts below that the accused-petitioners along with others went to the house of p.w. 4 in the night of 29-4-1974 to commit dacoity, but their attempt was frustrated. 5. The main question which was argued before the Courts below is whether the accused persons are guilty under section 399, Indian Penal Code when they were charged under section 398, Indian Penal Code. Section 398, Indian Penal Code makes punishable attempt to commit dacoity, if it is established that the offender, at the time of attempting to commit robbery or dacoity, is armed with any deadly weapon, whereas section 399, Indian Penal Code provides punishment for any preparation to commit dacoity. Under the Penal Code, preparation to commit an offence is punishable only when the preparation is to commit offences under section 122 (waging war against the Government of India and section 399 (preparation to commit dacoity). Preparation consists in devising or arranging the means or measures necessary for the commission of the offence. I differs widely from attempt which is the direct movement towards the commission after preparations are made. The test for determining whether the acts constitute attempt or preparation is whether the over acts already done are such that if the offender changes his mind and does not proceed further in its progress, the acts already done would be completely harmless. But where the thing done is such that, if not prevented by an extraneous cause, would fructify into commission of the offence, it would amount to an attempt to commit an offence. But where the thing done is such that, if not prevented by an extraneous cause, would fructify into commission of the offence, it would amount to an attempt to commit an offence. On the evidence and facts and circumstances of this case, the accused persons can be held guilty clearly under section 398, Indian Penal Code as in fact they had gone to commit dacoity, but on hearing the hulla as the villagers gathered there, they were unsuccessful in their attempt and fled away. I think, in the facts and circumstances of this case, the Courts below should have punished the accused persons under section 398, Indian Penal Code instead of punishing under section 399, Indian Penal Code. It is ordinarily no offence to make preparation for committing a crime until the stage of preparation has passed and that of attempt is reached. But it is an offence under this section to "make preparation for committing dacoity". So the conviction of the accused persons under section 399, Indian Penal Code though they were charged under section 398, Indian Penal Code is not illegal and the conviction cannot be challenged on the ground that the accused persons cannot be convicted under section 399 though they were charged under section 398, Indian Penal Code. 6. In the result, therefore, I see no reason to interfere with the order of conviction and sentence passed against the accused-petitioners. Hence this revision is dismissed. Final Result : Dismissed