BEHERA, J. ( 1 ) THE petitioner was one of the four accused persons who stood charged under Section 395 read with Sections 511 and 398 of the Indian Penal Code (for short, the Code) with having attempted to commit dacoity in the house of Kartik Chandra Saha (P. W. 1) at Therubali in the district of Koraput at about 1. 30 a. m. on January 4, 1983, when one of them, namely, the petitioner, had been armed with a gun. ( 2 ) I would like to point out at the outset that the definition of Tdacoity contained in Section 391 of the Code not only refers to an act of committing robbery by five or more persons, but also an attempt to commit robbery by the same number of persons. Section 511 of the Code does not apply to a case of dacoity as for an attempt to commit dacoity, a person is to be charged under Section 395 of the Code as the definition of dacoity includes attempt. Secdon 511 of the Code does not apply to cases of attempt made punishable by the express provisions in the Code, such as, attempt to commit murder (Section 307), attempt to commit suicide (Section 309) and conjoint attempt by five or more persons to commit robbery (Section 391 ). These are sop}e of the instances of express provisions made in the Code in which attempts to commit offences have been made punishable distinctly. The charge framed against the petitioner and the co-accused persons for attempt to commit dacoity by the application of Section 511 of the Code was misconceived and even the learned Sessions Judge, whose judgment and order are under challenge in this revision, did not notice this legal defect in the charge. ( 3 ) THE victim (P. W. 1) and his noice P. W. 2) had testified about the attempt to commit dacoity. The evidence of the two Constables (P. Ws. 3 and 5) that four persons including the petitioner had gone in a bus from Rayagada to Therubali on the day of occurrence was not of much consequence. The evidence of P. W. 2 that she had seen the petitioner and the other accused persons at about 8 p. m. during the night of occurrence had not been accepted by the trial court. The evidence of P. W. 2 that she had seen the petitioner and the other accused persons at about 8 p. m. during the night of occurrence had not been accepted by the trial court. The evidence of P. W. 1 that he had seen the petitioner with other four persons at about 9 p. m. during the same night while they were moving on the road leading towards the factory had partially been accepted by the trial court which found that P. W. 1 had seen the petitioner and the co-accused Kalu Majhi along with two others, but it did not accept his evidence that he had been able to identify the other co-accused Gopal Krishna and Bodida Siva. The trial court did not accept the evidence that the petitioner was armed with a gun while attempting to commit dacoity. The evidence of identification against the co-accused persons except the petitioner was discarded. Notice was taken by the trial court that the evidence of identification of the culprits by P. Ws. I and 2 at the test identification parade lost its value because of inordinate delay in holding it. The trial court held that the petitioner and the absconding accused Kalu Majhi, who did not stand trial, were active members of the five persons who had attempted to commit dacoity. The petitioner was found not guilty under section 398 of the Code, but was convicted under section 395 read with section 511 of the Code and sentenced thereunder to undergo rigorous -imprisonment for a period of five years and to pay a fine of Rs. 100/-and in default of payment thereof, to suffer simple imprisonment for a period of one month. ( 4 ) ON appeal, the learned Sessions Judge did not accept the finding that there had been an attempt to commit dacoity in the house of P. W. 1. The learned Judge unreasonably differed from the finding recorded by the trial court that there was paucity of evidence to establish that the petitioner had been armed with a gun. ( 4 ) ON appeal, the learned Sessions Judge did not accept the finding that there had been an attempt to commit dacoity in the house of P. W. 1. The learned Judge unreasonably differed from the finding recorded by the trial court that there was paucity of evidence to establish that the petitioner had been armed with a gun. According to the learned Judge, there was no evidence indicating that the intention of the culprits including the petitioner was to commit dacoity and there was nothing on record to show as to what sort of crime they had committed although the circumstances clearly established that they had some illegal purpose as they had come during the night and they were five in number, but he ultimately held, relying on the evidence of P. Ws. 1 and 2, that the petitioner and others had conceived the design to commit dacoity. Accordingly, the order of conviction was altered and the petitioner was convicted under section 399 of the Code for having made preparation to commit dacoity and sentenced thereunder to undergo rigorous imprisonment for a period of three years. ( 5 ) I have perused the convicted prisoners application in revision and have heard Mr. N. C. Panigrahi, the learned Additional Government Advocate. ( 6 ) UNDER the Code, preparation to commit dacoity is punishable under Section 399. Preparation to commit house-breaking or robbery is not an offence. No hard and fast rule can be laid down that any particular act towards the commission of the offence of dacoity is necessary to constitute preparation. There must be proof, however, that the -culprits had conceived the design of committing dacoity. Once this is established, any step taken with that intention and for the purpose of forwarding that design may justify the court in holding that there has been preparation within the meaning of section 399. When one person intends to commit robbery conjointly with at least four others and having so intended does some act to achieve that end, he shall be held to have made preparation for committing dacoity. Preparation may be evidenced by acts, such as, collection of men, arms and provisions which may manifest an intention to commit dacoity. When one person intends to commit robbery conjointly with at least four others and having so intended does some act to achieve that end, he shall be held to have made preparation for committing dacoity. Preparation may be evidenced by acts, such as, collection of men, arms and provisions which may manifest an intention to commit dacoity. It is necessary to prove that the raid for which the preparation was being made was to be committed by five or more persons, otherwise, it would not be preparation for committing dacoity, but merely for committing robbery and mere preparation for committing robbery, unless it ends in actual attempt, is not punishable by law. , ( 7 ) THE distinguishing features of preparation to commit an offence and attempt to commit one have been laid down by the Supreme Court in Malkiat Singh and another v. The State of. 1 Punjab thus: TI The preparation consists in devising or arranging the means or measures necessary for the commission of the offence. On the other hand, an attempt to commit the offence is a direct movement towards the commission after preparations are made. In order that a person may be convicted of an attempt to commit a crime he must be shown first to have had an intention to commit the offence, and secondly to have done an act which constitutes the actus reus of a criminal attempt. The sufficiency of the actus reus is a question of Jaw which had led to difficulty because of the necessity of distinguishing between acts which are merely preparatory to the commission of a crime, and those which are sufficiently proximate to it to amount to an attempt to commit it ( 8 ) IN the instant case, there was no evidence worth the name that at any time prior to the alleged attempt to commit dacoity, about which the evidence of P. Ws I and 2 was not satisfactory and this charge could not be sustained, the petitioner had made any preparation for commission of dacoity by five or more persons. There was no evidence that at any time prior to the alleged attempt, the petitioner had taken any step for collection of men or arms. There was no evidence that at any time prior to the alleged attempt, the petitioner had taken any step for collection of men or arms. At the bearing, the learned Additional Government Advocate did not support the order of conviction of the petitioner recorded by the appellate court under Section 399 of the Code owing to paucity of evidence, but he contended that the petitioner could be convicted under Section 402 of the Code for being one of the five or more persons assembled for the purpose of committing dacoity although the petitioner had neither been charged for preparation nor for assemblage for the purpose of committing dacoity. ( 9 ) SECTION 402 applies to mere assemblage without proof of other preparation and where there is preparation, section 399 comes into operation. The offence under Section 402 is complete as soon as five or more persons assemble together for the purpose of committing a dacoity. Preparation for committing it may take place before or after the assemblage. Although the offences punishable under the two sections do involve some similar ingredients, the difference is that under Section 402, mere assemblage without other preparation is enough, whereas section 399 is attracted if some additional step is taken in the course of preparation. This Court has held in Puma alias Khaira Mahanta v. State2: In order to hold a person guilty of an offence under Section 402, Indian Penal Code it has to be established that he was one of the five or more persons, who actually had assembled at a particular place for the purpose of committing dacoity. Accordingly, it is at first to be ascertained if five or more persons actually assembled at a particular place for the purpose of committing dacoity. Thereafter it is to be seen if the accused was one of those persons, and he associated himself with those other persons for the aforesaid purpose. The mere presence of a person at that place without his sharing in any way the above purpose with the others would not make him liable for an offence under Section 408, Indian Penal Code. The prosecution is to establish under Section 402 that there had been an assembly of five or more persons constituted for the purpose of committing dacoity and that the accused persons were members of that assem bly. (See James Khalko v. The State of Orissa3 ). The prosecution is to establish under Section 402 that there had been an assembly of five or more persons constituted for the purpose of committing dacoity and that the accused persons were members of that assem bly. (See James Khalko v. The State of Orissa3 ). ( 10 ) THE prosecution had not established the assemblage of five or more persons including the petitioner at any particular place for the purpose of committing dacoity. The evidence that four persons including the petitioner had traveled from Rayagada to Therubali in a bus or even that some of them were seen moving together in the night prior to the occurrence would not establish or even indicate that the petitioner had assembled with others for the purpose of committing dacoity and the persons traveling in the bus including the petitioner were four in number. There was no other clear and acceptable evidence of any assemblage of the petitioner with four more persons for the purpose of committing dacoity except the evidence led at the trial with regard to an attempt to commit dacoity and this charge had not been established, as found by the appellate court. In these circumstances, the petitioner could not also be held liable under Section 40:3 of the Code. ( 11 ) FOR the aforesaid reasons, I would allow the revision, set aside the order of conviction and sentence and direct that the petitioner be set at liberty forthwith. Revision allowed.