JUDGMENT : P.K. Tripathy, J. - Though the L.C.R. has been called for, the same has not been received yet. Learned counsel for the petitioner states that the punishment which has been imposed is on the higher side and therefore, save and except raising the legal question about defect in charge he does not want to, contest on any other issue and accordingly prays to dispose of the revision without perusal of the L.C.R. He states that he does not challenge any of the evidence on record to challenge the finding in the impugned judgment save and except the offence for which he should have been convicted. Learned Standing Counsel has no objection to that submission. Hence, this revision is taken up for disposal at the stage of admission on consent of both the parties. 2. Petitioner faced a Sessions trial in S.T. Case No. 170/ 77/570 of 1997-96 in the Court of C.J.M.-cum-Asst. Sessions Judge, Khurda at Bhubaneswar for the offence u/s 397, I.P.C. on the allegation that on 1.10.1996 he wanted to rob the informant (P.W. 1) by Rs. 275/- (two hundred seventy five) by showing a knife and over powering him. The trial court framed charge u/s 397, I.P.C. mentioning the incident, which led to that charge. In all, nine witnesses were examined and relying on such evidence trial court found the petitioner guilty and for his conviction u/s 397, I.P.C. sentenced him to undergo R.I., for seven years. Petitioner preferred a criminal appeal and learned Second Addl. Sessions Judge, Bhubaneswar in Criminal Appeal No. 19/25 of 1999-98 after going through the evidence on record and relying on such evidence upheld the order of conviction and sentence. As against that, this revision has been preferred. 3. Learned counsel for the petitioner Mr. B. S. Mishra, states that in the occurrence night, i.e., on 1.10.1996 appellant/petitioner was arrested in connection with this case and all throughout till date he is in Jail custody and in that process he has already served the sentence for a period of more than five years. He argues that allegation against the petitioner at best amounts to an offence punishable u/s 397, I.P.C, and not u/s 397, I.P.C. and apart from that conviction u/s 397, I.P.C. is not maintainable because charge was not framed for either robbery or dacoity. He argues that allegation against the petitioner at best amounts to an offence punishable u/s 397, I.P.C, and not u/s 397, I.P.C. and apart from that conviction u/s 397, I.P.C. is not maintainable because charge was not framed for either robbery or dacoity. He, however conceeds that when charge is framed for the offence u/s 397, I.P.C. accused can be convicted for the offence of robbery or dacoity, as the case may be: In support of his argument he relies on the case of Balik Ram Vs. The State, 4. Learned Standing counsel after perusal of the impugned judgment and in view of the nature of evidence conceeds that a case for the offence u/s 397, I.P.C. is not made out but he argues that evidence on record is sufficient to prove a case of robbery punishable u/s 392, I.P.C. He also argues that though the charge was defective but the conviction is' not to be disturbed because no prejudice is shown to have been caused to the accused. He relies on the case of Ambika Pandey v. State, Vol. 60 (1974) CLT 825 and Gaya Bhakta and Another Vs. The State, 5. Both the Courts below have recorded concurrent findings' on fact that accused being in possession of a knife, robbed the informant by Rs. 275/- by pointing that knife. In that respect, as noted in the impugned judgments,' P.Ws. 1, 2 and 6 stated that accused put the knife on the belly of P.W. No. 1 but P.Ws. 3 and 5 stated that accused pointed that knife While committing robbery. Admittedly, that knife has not been produced at the time of trial. In that respect, trial Court discussed nothing but the appellate Court rejected contention of the accused to grant him benefit because of non-production of that knife at the time of trial. Learned Additional Sessions Judge held that the seizure list indicates the size of that knife was nine and half inches which includes its wooden handle and therefore, that knife was a deadly weapon. 6. The offence of robbery or dacoity is punishable u/s 397, I.P.C. with a minimum sentence of 7 years if at the time of committing robbery or dacoity offender uses any deadly weapon or causes grievous hurt to any person or attempts to cause death or grievous hurt to any person. 6. The offence of robbery or dacoity is punishable u/s 397, I.P.C. with a minimum sentence of 7 years if at the time of committing robbery or dacoity offender uses any deadly weapon or causes grievous hurt to any person or attempts to cause death or grievous hurt to any person. Therefore, the term deadly weapon' gains importance in the context if the offender is to be convicted for the offence u/s 397, I.P.C, Section 397, I.P.C. is not a substantive offence but provides for higher punishments prescribing a minimum sentence of 7 years when robbery or dacoity is committed in the above indicated manner. See the cases of Ambika Pandey (supra) and Gaya Bhakta (supra). The term "deadly weapon" has not been defined in the Indian Penal Code. Knives are weapons but it depends upon the size and the manner of use to make it deadly. In the case at hand all that the P.Ws. 1, 2, 3, 5 and 6 have stated that a knife was used by the petitioner but it is not on record that in the Court such witnesses stated about the size of that knife. The knife seized in the case, as per the seizure-list, was not produced and not shown to the victim and the eyewitnesses tp bring on record evidence that the seized knife was used at the time of occurrence. What was the size and dimension of the blade portion of that knife, what was the sharpness of the blade of that knife etc., are the relevant factors which was required to be considered to record a finding that the seized knife was a deadly weapon to attract the provision u/s 397, I.P.C, against the petitioner for pointing it towards the P.W. No. 1 at the time of committing robbery. Once that factor has not been proved, undoubtedly petitioner is entitled to benefit arising out of the same. A similar view has been taken by the Delhi High Court in the case of Balik Ram (supra). Though the Addl. Sessions Judge referred to that decision but did not follow the same on a flimsy ground that the size of the knife noted in the seizure-list was sufficient to hold that it was deadly. The aforesaid finding of the appellate Court is undoubtedly based on no evidence but mere surmise and therefore that is not legally sustainable. Though the Addl. Sessions Judge referred to that decision but did not follow the same on a flimsy ground that the size of the knife noted in the seizure-list was sufficient to hold that it was deadly. The aforesaid finding of the appellate Court is undoubtedly based on no evidence but mere surmise and therefore that is not legally sustainable. For that reason, learned Standing counsel fairly conceeds that the offence u/s 397, I.P.C. has not been made out. 7. Argument of learned Standing Counsel is that even if the charge is defective but the charge u/s 397, I.P.C. clearly intimated to the petitioner about the allegation of robbery, therefore, petitioner is not entitled to a clean cut acquittal but is liable to be convicted for the offence of robbery punishable u/s 392, I.P.C. The aforesaid argument of learned Standing Counsel is squarely covered by the ratio in the case of Ambika Pandey (supra) and Gaya Bhakta (supra) so also in the case of Balik Ram (supra). For that reason, learned counsel for the petitioner does not dispute to that contention and conceeds to a conviction for offence u/s 392, I.P.C. 8. At the outset of his argument, learned counsel for the petitioner contended that petitioner has already been inside the Dhadi Panda v. The Commissioner of Consolidation, Orissa jail for over five years. Thus, taking that contention into consideration and the punishment provided for the offence u/s 392, I.P.C. while acquitting the petitioner from the offence under Section, 397, I.P.C. this Court modifies the conviction order by convicting him for the offence u/s 392, I.P.C. and sentencing to undergo R.I. for five years and eleven months (that is the approximate period of detention in custody in connection with this case). If the petitioner has served the said sentence and his detention is not necessary in connection with any other case then he can be released from jail forthwith. The revision is accordingly partly allowed. Final Result : Partly Allowed