JUDGMENT Hon’ble M.K. Mittal, J.—This appeal has been filed by Vijai Kumar son of Girja Shankar against the judgment and order dated 4.10.1982, passed by Sri B.K. Sharma, the then Illrd Additional Sessions Judge Shahjahanpur in Sessions Trial No. 171/1982 whereby the appellant has been found guilty and convicted under Sections 394 and 398, I.P.C. and has been sentenced to undergo rigorous imprisonment for 7 years. Fine has also been imposed on him with default stipulation. 2. I have heard Sri P.N. Mishra, learned senior Counsel for the appellant and Sri S.L. Kesharwani learned A.G.A. for the State and have perused the impugned judgment. 3. The brief facts of the case are that a first information report (Ex Ka-3) was lodged by Kishan Das on 9th December, 1981 at 6.45 p.m. at the Police Station. It was alleged in the report that he was living in his multi-storeyed house in Mohalla Diwan Jograj of Shahjahanpur city with his wife Smt. Imarti Devi and two daughters Km. Sudha and Km. Renu. On 9th December, 1981 at about 6.00 p.m. Smt. Imarti Devi and her two daughters were in the third storey of the house and Smt. Imarti Devi was resting on the cot and Km. Sudha was cooking food in the kitchen adjoining the bedroom and electric light was burning in the house. Vijai Kumar accused appellant alongwith his companion came there and entered bedroom, carrying a tamancha in his hand. He showed it to Smt. Imarti Devi and said “jo kuchh ho hamen do, wa chabian nikalo”. Smt. Imarti Devi scolded him and got up and went near the telephone and when she lifted the receiver the accused snatched it and snapped the wire. On this, out of fear she, retreated back 4-5 steps and the accused fired a shot on her left foot. Hearing the sound of fire, Km. Sudha ran towards her and the companion of the accused who had reached kitchen gave a blow at her face with the butt of the tamancha. Smt. Imarti Devi and her two daughters raised alarm whereupon the appellant and his companion ran away through the staircase. The accused Vijai Kumar was known to them from before because he had served as a servant at their house for 7 days, about two months prior to the occurrence. Smt. Imarti Devi and her two daughters raised alarm whereupon the appellant and his companion ran away through the staircase. The accused Vijai Kumar was known to them from before because he had served as a servant at their house for 7 days, about two months prior to the occurrence. The other person was also identified but his name was not known to the ladies of the house. The shop of the informant was about 125 paces from the house and Km. Renu was sent there who narrated the incident to her father. Kishan Das came to the house and found Smt. Imarti Devi and Km. Sudha in injured condition. They also narrated the incident and thereafter complainant went to lodge the report. 4. Head Moharrir Parmeshwari Dayal who was posted at police station prepared the chik report Ex. Ka-5 and registered case in the general diary at report No. 57(copy Ex. Ka-6). 5. Sub-Inspector Harnandan Singh came to the house of the informant and took the injured persons to hospital by police jeep. Dr. A.K. Jain examined Smt. Imarti Devi at 9.12.1981 at 7 p.m. and found the following injury on her person. (1) Three small gunshot wounds of entry, measuring about 1 cm. in diameter, round in shape in front of left foot, situated in an area 8 cm. x 3 cm.; two gunshot wounds situated on right side and one gunshot wound on left side in a triangular manner. Bleeding on touch was present. Depth was not probed. The injury was kept under observation and x-ray was advised. According to doctor the injury was fresh and caused by some firearm, Doctor proved the injury report Ex-Ka-1. Doctor also examined Km. Sudha same day at 7.25 p.m. and found following injury on her person. (1) Lacerated wound 1 cm. x skin deep on right side of forehead, 2 cm. above right eyebrow and bleeding on touch was present. According to the Medical Officer this injury was simple in nature and was caused by some blunt weapon and was fresh. He proved the injury report Ex. Ka-2. Dr. P. S. Verma PW 4 was posted as radiologist in the district hospital. Under his supervision the x-ray of the left foot of Smt. Imarti Devi was taken on 10th December, 1981 in district hospital and three small rounded radio opaque shadows were seen. He proved the injury report Ex. Ka-2. Dr. P. S. Verma PW 4 was posted as radiologist in the district hospital. Under his supervision the x-ray of the left foot of Smt. Imarti Devi was taken on 10th December, 1981 in district hospital and three small rounded radio opaque shadows were seen. The doctor proved x-ray plate as material Ex. 1 and the report Ex. Ka-4. 6. The case was investigated by sub-inspector Har Nandan Singh PW 6. He interrogated the witnesses, inspected the place of occurrence and prepared the site plan Ex-Ka-7. After completing investigation he submitted charge-sheet Ex. Ka-8 against the accused appellant. The other person could not be traced out. 7. In support of its case the prosecution led evidence and besides the above noted formal witnesses examined Sri Kishan Das complainant as PW1, Smt. Imarti Devi injured PW 2 and Km. Sudha injured PW 3, as witnesses of fact and occurrence. 8. The accused was examined under Section 313, Cr.P.C. He denied the prosecution case and stated that the witnesses have wrongly deposed against him. He did not adduce any evidence in defence. 9. Learned Trial Court on the basis of the evidence came to the conclusion that the accused person came to the house of the informant and attempted to commit robbery and in that incident also caused injuries to Smt. Imarti Devi with firearm. The learned Trial Court sentenced the appellant to undergo 7 years imprisonment, which is the minimum provided under Section 398, IPC. Feeling aggrieved, the appellant has preferred this appeal. 10. Learned Counsel for the appellant has contested the appeal mainly on the question of sentence only. He has contended that the appellant remained in jail during trial although, he was directed to be released on bail but he could not furnish his bail bonds and remained in custody. The order dated 24.11.1982 also shows that the accused was directed to be released on bail by order dated 10.6.1982 but he could not avail the same and he was directed to be released on bail in this appeal by order dated 24.11.1982. 11. In this case the accused has been convicted under Sections 394 and 398, IPC for attempting to commit robbery and in that incident he also voluntarily caused hurt to Smt. Imarti Devi. 11. In this case the accused has been convicted under Sections 394 and 398, IPC for attempting to commit robbery and in that incident he also voluntarily caused hurt to Smt. Imarti Devi. But the evidence as has come on record, shows that there was no robbery in the case. Section 390 of IPC defines robbery and it could be either by way of theft or extortion. Under Section 394 a person is liable to be punished if he causes injuries while committing or attempting to commit robbery. Under Section 398, IPC a person can be convicted for attempting to commit robbery, if at that time he is armed with a deadly weapon. In the instant case the prosecution came with the allegations that when the accused came he asked Smt. Imarti Devi “jo kuchh ho hamen do, wa chabian nikalo”. The accused is not alleged to have snatched the keys or to have taken any goods or valuables or attempted to have taken goods or valuables from the house of the informant. In the circumstances, no robbery or attempt to commit robbery was committed and Sections 394 and 398, IPC were attracted in this case. 12. In the case of Chinnadurai v. State of Tamil Nadu, 1995 SCC (Cri) 1147 the Hon’ble Apex Court while considering the scope of Section 398, IPC held that "Section 398, IPC gets attracted if at the time of attempting to commit robbery or dacoity, the offender is armed with a deadly weapon which will attract an imprisonment of not less than seven years. When no robbery or dacoity has been committed as such, in the sense that no property was removed from the house of the complainant and nothing said to be belonging to complainant was recovered, it would be difficult to hold that there was any attempt in regard to the commission of robbery or dacoity.” In that case the articles were scattered and the house was ransaked but no article was removed and it was held that it did not amount to attempt to robbery. Similar is the situation in the instant case. Here the accused only demanded the key and did not remove any article from the house of the complainant and therefore, in my opinion the learned Trial Court erred in convicting the appellant under Sections 394 and 398, IPC. 13. Similar is the situation in the instant case. Here the accused only demanded the key and did not remove any article from the house of the complainant and therefore, in my opinion the learned Trial Court erred in convicting the appellant under Sections 394 and 398, IPC. 13. However the fact remains that the appellant came to the house of the informant and fired at Smt. Imarti Devi, causing injuries in her foot. This act was voluntarily done by the accused. However the injuries were found to be simple as no fracture or internal damage was found by the doctor. Therefore, this act of the accused will not travel beyond Section 324, IPC. Accordingly he is held guilty for committing the offence under Section 324, IPC and is liable to be convicted under Section 324, IPC instead of Sections 394 and 398, IPC. So far as the question of sentence is concerned, the incident took place as far back as on 9th December, 1981. The accused has already suffered the agony of the case in the trial Court and in this case for more than 26 years. He also remained in jail for about a year. Taking in view the entire facts and circumstances of the case, I consider that justice would be met if the accused appellant Vijai Kumar is awarded a sentence of imprisonment of the period already undergone by him for the offence under Section 324 of the Indian Penal Code. 14. In the result the appeal is partly allowed, the conviction and sentence of the accused under Sections 394 and 398, IPC are hereby set aside and instead he is convicted under Section 324, I.P.C. The accused is awarded the sentence of imprisonment for the period already undergone. ———