D. M. PATNAIK, J. ( 1 ) IN this revision, the petitioners assail their conviction and sentence of four years RI. and a fine of Rs. 500/- each for the offence punishable under section 394/34,i. P. C. ( 2 ) THE prosecution case is at the relevant time the prosecution party and the petitioners party had factional rivalry in the village. There were also certain allegations against P. W. 4 as the President of the Village Sangha for misappropriating the welfare fund. On 12. 5. 1964 at 11. 30 A. M. P. W. 4 had been to the village tank for bathing. While he was on the ridge, the three petitioners assaulted him. Petitioner Angira caught hold of his neck with a napkin and assaulted him by a cycle chain while the other two petitioners Dharani and Khetra caused injuries by inflicting knife blows. It was however alleged that Khetra and Dharani snatched away the gold chain and gold ring from him. The petitioners denied the prosecution case. They pleaded that on account of enmity they were falsely implicated in the case. ( 3 ) MR. H. S. , Mishra, learned counsel for the petitioners, submitted about the inconsistencies in the medical evidence and the evidence of P. Ws. with regard to the nature of the injuries and thus submitted that the whole case of the prosecution should have been discarded by the learned trial Court. Mr. D. K. Mishra, on the other hand, supported the judgments of the Courts below. ( 4 ) IT may be pointed out that the conviction under section 394,i. P. C. is misconceived. There is no allegation in the F. I. R. nor the evidence of P. Ws. particularly that of P. W. 4 that petitioners at any time intended to commit theft in respect of the gold articles. Robbery has been defined. In all robberies there is either theft or extortion. Theft becomes robbery when in order to the committing of the theft or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt, or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint vide para: 1 of the decision reported in Nila Naik and others v. Shyama Sundar Mohapatra. The words for that end section 390, is not without significance. It means that the hurt caused by the offender must be with the express object of facilitating the committing of the theft, or must be caused while the offender is Committing the theft or is carrying away the property obtained by the theft. It does not mean that the assault or the hurt must be caused in the same transaction or in the same circumstance. Himatsing v. The State of Gujarat. The hurt contemplated must be a conscious and voluntary act on the part of the thief of the purpose of overpowering resistance on the part of the victim, quite separate and distinct from the act theft itself. (Vide decision reported in 35 Cri. L. J. 1934 page 297, Karmun and others v. Emperor ). Therefore, it is necessary to analyse the evidence of the prosecution witnesses. ( 5 ) P. W. 1 an eye-witness stated that he heard the shout of P. W. 4 that he was assaulted. No where he stated that P. W. 1 while shouting gave out that the petitioner were committing theft He further stated that as he and P. W. 2 approached the informant the petitioners Dharani and Khetra snatched away respectively the gold chain and the ring, and fled away. In the F. I. R. lodged by P. W. 4, he did not state that the petitioners came to commit any robbery in respect of gold articles. The tenor of the F. I. R. clearly brings out that he was first assaulted by all the three petitioners and when P. Ws. approached, they snatched away gold chain and the ring. In his evidence P. W. 4 stated that while he was returning from the Nala after attending the call of nature at that time all the three petitioners were standing on the ridge of the tank. Then the petitioners Dharani and Angira enquired form him about his presence at the spot, and thereafter petitioner Angira placed a napkin on his neck and pulled downwards and assaulted him by a cycle chain on his head and left arm when all the petitioners dealt knife blows on the face and eye as a result of which he sustained bleeding injuries. When he shouted for help, petitioner Khetra snatched away the gold chain and petitioner Dharani snatched away the gold ring and petitioner Dharani snatched away the gold ring from him. The evidence does not show that the petitioners for the purpose of committing theft assaulted P. W. 4. ( 6 ) IN the absence of theft, the question of robbery did not arise. Going through the evidence of P. Ws. I do not find the prosecution to have proved the case of theft, since fact of removal becomes doubtful for the following reasons. P. Ws. 3 and 5 are stated to be the witnesses, who according to the prosecution case, accompanied P. Ws. to the house of P. W. 9 to get back the ornaments. According to these witnesses, seeing the petitioners they demanded ornaments alleged to have been taken by them. P. W. 3 stated that when he asked the petitioners about the gold ornaments they said that they did not bring any gold ornaments. P. W. 1 who also accompanied them stated that on being so asked, the petitioners refused to give the articles. P. W. 5 stated that when he demanded the ornaments P. W. 9 said that there would be some trouble and he would send the petitioners to the police station. P. W. 7 is silent about the demand of gold ornaments. (Emphasis supplied ). If PWs. 1,35 and 7 all went to the house of P. W. 9, and asked the petitioner about the gold ornaments, the reply given by the petitioner could not have been so differently stated by these witnesses. It is admitted case of the prosecution that these petitioners took shelter in the house of P. W. 9. That apart, on the face of the admitted rivalry and on the face of the interestedness of the witnesses for the prosecution, it would be hard to believe the case of theft. Therefore, the petitioners could not have been convicted for the offence of robbery. They are acquitted of the charge. ( 7 ) P. W. 4 stated in his evidence to have been assaulted by Angira with a cycle chain and by the other two petitioners Khetra and Dharani with a knife. The doctor did not find any incised injury or any stab injury on the person of P. W. 4. They are acquitted of the charge. ( 7 ) P. W. 4 stated in his evidence to have been assaulted by Angira with a cycle chain and by the other two petitioners Khetra and Dharani with a knife. The doctor did not find any incised injury or any stab injury on the person of P. W. 4. Absence of such injury so stated by P. W. 4 falsifies the prosecution case that P. W. 4 was assaulted by knife. Therefore both of them are acquitted of the charge. The petitioner have proved the station diary entry, Ext. A, which brings out counter allegation of assault by P. W. 4 by means of a stick on these petitioners. Therefore, in view of the admitted case of the defence that P. W. 4 was present at the spot, his evidence that petitioner Angira assaulted him with a cycle chain cannot be disbelieved, under any circumstances. Further nothing has been elicited in the cross-examination to disbelieve his testimony. ( 8 ) THE question would arise whether the petitioners who have been acquitted of the charge of robbery could be convicted for the offence under Sec. 323, I. P. C. for which they were not charged. Law permits this vide the revisional power of the High Court under section 401, Cr. P. C. read with Sec. 386. In the case reported in Jayaram Vilhoba and another v. The State of Bombay. In paragraph 5 of the judgment, the Supreme Court held: There is nothing about transposition of sentence under Section 423 (1) (b ). It only provides for altering the finding and maintaining the sentence, and that can apply only to cases where the finding of guilt under one section is altered to a finding a guilt under another. The section makes a clear distinction between a reversal the order to be passed is one of acquittal, discharge or retrial, whereas when there is an alternation, the order to be passed is one of maintaining, reducing or altering the sentence. ( 9 ) THUS altering the finding of guilt under one section to another section is permissible only when the accused is not prejudiced because of altogether a new case so brought out as a result of such alteration particularly the allegation of which he was not aware of. ( 9 ) THUS altering the finding of guilt under one section to another section is permissible only when the accused is not prejudiced because of altogether a new case so brought out as a result of such alteration particularly the allegation of which he was not aware of. In the present case, it cannot be said that the petitioners have been prejudiced as we have already found in the foregoing paragraphs that the prosecution came forward with a case of assault right from the beginning of the incident. ( 10 ) IN the result, the revision is partly allowed. Petitioners Khetra and Dharani are acquitted of the charges, Petitioner Angira is to undergo R. I for one months for the offence punishable under Section 323, I. P. C. Revision allowed partly. .