JUDGMENT Taking up first charge under section 457 I.P.C. according to Naguji (P. W.1) and his daughter Nandibai (P.W. 2) they were aroused by hearing Khat Khat sound in the house. They saw a hole having been made in the wall. According to Naguji he saw the accused coming out from the house when he caught him and did not allow him to. run away. Nandibai substantially gave out the same version as Naguji. Their version is substantially corroborated by Hiralal (P.W.3) and Hariram (P.W. 4) who were attracted by the cries at the night and to who Naguji narrated the version. Besides, utensils were also seized from the accused as per seizure memo Ex. P/2 by Prahlad Singh Tomar (P.W. 5). Explanation of the accused that he had gone to realise loan of Rs. 50/- given by him to Naguji at midnight is not acceptable. The evidence discussed above amply establishes that the accused committed offence of house breaking by night in the house of Naguji in order to commit offence of theft punishable under section 457 I.P.C. As far conviction under section 394/397 IPC it is necessary for the prosecution to establish that the accused committed robbery as defined under section 390 I.P.C. and while committing the same, he caused grievous hurt to Naguji and his daughter Nandibai and that he used any deadly weapon to attract Sec. 397 I.P.C. The accused is alleged to have carried a sword. The sword was not exhibited as an article nor is there any evidence to show that it is a deadly weapon. In Ratanlal's Law of crimes 23rd Edition at page 1497 based on Adesh Kumar's case (1986 Cr. L.J. 233 Delhi High Court)and Ramkishan's case [1982 Cr. L.J. (NOC) 14] a judgment of this Court the following is observed:- "Where the victim did not state anything about the kind of knife used to inflict injury or about the size of the blade, etc. the accused could not be convicted under S. 397 as the weapon used was not proved to be a deadly weapon. And where there was no proof that offender at the time of committing dacoity used deadly weapon, conviction was quashed." Besides the above, Naguji, according to Dr. Chawla (P.W. 6) had only a lacerated wound and a bruise and the two wounds were caused by hard and blunt weapon. And where there was no proof that offender at the time of committing dacoity used deadly weapon, conviction was quashed." Besides the above, Naguji, according to Dr. Chawla (P.W. 6) had only a lacerated wound and a bruise and the two wounds were caused by hard and blunt weapon. It has not been argued or suggested that the. wounds to Naguji were caused by blunt side of the sword. Further Nandibai had an incised wound 1/4" x 1/6" x 1/2" on ring finger of right palm. Dr. Chawla has opined that this injury could also be self inflicted. Looking to the injury it is difficult to believe that it could have been caused by a sword blow dealt voluntarily. It may well be that it was caused in struggle. Benefit should be accorded to the accused in respect of offence under section 394/397 I.P.C. Considering all 'this, it cannot be said to have been established that the accused caused hurt with sword to Naguji or his daughter Nandibai. His conviction under section 394/397 I.P.C. or even under Sec. 392 IPC must be and is hereby set aside and so also the sentence thereunder. 1986 CrLJ 233 and 1982 CrLJ (NOC) 14 relied on. Appeal partly allowed.