Short Note : 1. This appeal is directed against the judgment of the Additional Sessions Judge Shahdol, in Sessions Trial No. 31 of 1974, finding each of the appellant Tulsidas and Anand Bihari guilty of offence punishable under section 304 (latter clause) IPC, with the help of section 34 of the IPC, and sentencing each of them to rigorous imprisonment for two years. 2. The facts of the case, in short, are that the appellants and their companion one Vijaya Kumar (since also convicted but who has not appealed) and Jograj since dead) were students in Class 10, section-D, in the Government Higher Secondary School Kotma. On 28-2-74 at about 7-30 a.m., all of them were attending the period of Mr. N.P. Shrivastava (P.W.15) who while teaching them the theories of Commerce was dictating them notes. Vijaya Kumar, the companion of the appellants, objecting to Mr. Shrivastava (P.W.15)'s dictating notes in detail requested him to dictate notes only briefly. Mr. N.P. Shrivastava (P.W.15), however, advised the desirability of detailed notes because it would be only answers in detail which could secure better marks in the examination. Jograj (since dead) apparently agreeing with the advice of Mr. Shrivastava (P.W.15) requested him to continue dictating notes in detail. This infuriated Vijaya Kumar (the companion of the appellants) and the appellants, who consequently in the company of Vijaya Kumar, left the class room under protest. After a while, when the period was over and Jograj was standing near the gate of the school building the appellant Anand Bihari carrying a cycle chain, the appellant Tulsidas carrying a horse whip and their companion Vijaya Kumar carrying a knife in the pocket of his trousers suddenly surrounded Jograj. The appellants caught hold of the hands of Jograj and their companion Vijaya Kumar almost in a flash stabbed Jograj in his chest. Vijaya Kumar driving the knife out of his victum's chest and the two appellants brandishing, their weapons preventing those who wanted to apprehend them, soon disappeared from the scene. The profusely bleeding and unconscious Jograj was immediately taken to the local hospital but within five minutes of his arrival there he breathed his last. Vijaya Kumar driving the knife out of his victum's chest and the two appellants brandishing, their weapons preventing those who wanted to apprehend them, soon disappeared from the scene. The profusely bleeding and unconscious Jograj was immediately taken to the local hospital but within five minutes of his arrival there he breathed his last. Held : Placing reliance upon Chand and others v. The State of U.P. AIR 1972 SC, p., 955, it is contended for the appellants that each of the 1ppellants being under 18 years of age to be exact about 17 years of age ought to have been given benefit of section 4 of the Probation of Offenders Act. Section 6 of the Probation of Offenders Act provides that when any person under 21 years of age is found guilty of having committed an offence not punishable with imprisonment for life the Court shall not ordinarily sentence him to imprisonment unless it is satisfied that having regard to the circumstances of the case including the nature of the offence and the character of the offender it would not be desirable to deal with him under section 3 or section 4 of the Act. The Court when not giving the benefit of either section 3 or section 4 of the Act has also to record its reasons for doing so. [See Mohammed Aziz Mohammed Nasr v. State of Maharashtra (AIR 1976 SC p., 730). A duty is cast upon the Court also to call for a report from the Probation Officer and consider it along with any other relevant information regarding the character and condition physical or mental of the offender for the purpose of satisfying itself whether or not it would be desirable for it (the Court) to deal with the offender either under section 3 or 4 of the Probation of Offenders Act. 3. 3. In this case, no doubt, the learned Additional Sessions Judge has given sound reasons for not giving the benefit of Probation of Offenders Act to the appellants, namely, their brazenly act openly in the premises of school during school hours thereby creating a sense of awe and insecurity among the students and their guardians and their not hesitating to take the life of Jograj himself a boy of their age, on a petty issue, he had, however, called no report from the Probation Officer in the area nor any other information regarding the character of the two appellants. The crucial date for reckoning the age of the offender appear to be the date of the offence. [See. Darshan Kumar v. Secretary Municipal Corporation Jabalpur, (AIR 1973 SC p.. 906)] impliedly overruling the decision in Ramji Missar and another v. State of Bihar, (AIR 1963 SC p., 1088). The two appellants clearly were below 21 years of age even at the date of the passing of the sentence. It was their first offence. They were students. The learned Additional Sessions Judge, therefore, ought to have, taking the provisions contained in section 6 of the Probation of Offenders Act into account, dealt with the appellants under section 4 of the Probation of Offenders Act considering that it was their first offence. 4. To conclude, the two appellants Tulsidas and Anand Bihari having been rightly found guilty of offence punishable under section 304. Latter clause IPC, read with section 34 IPC, their convictions are upheld Each of them, however, being below 21 years of age on the date of the offence having regard to section 6 of the Probation of Offenders Act in the absence of a report from the Probation Officer, is entitled to the benefit contained in section 4 of Probation of Offender Act. The appeal of each of the appellants with regard to their conviction for offence punishable under section 304 Latter clause IPC, read with section 34 IPC, is dismissed. Each of the appellants shall, however, appear before the Additional Sessions Judge, Shahdol, on 15-12-78 when the Additional Sessions Judge, Shahdol shall deal with him under section 4 of the Probation of Offenders Act calling upon each of them to enter into a personal bond in a sum of Rs. Each of the appellants shall, however, appear before the Additional Sessions Judge, Shahdol, on 15-12-78 when the Additional Sessions Judge, Shahdol shall deal with him under section 4 of the Probation of Offenders Act calling upon each of them to enter into a personal bond in a sum of Rs. 5,000 and also furnishing solvent security in a like sum with two sureties undertaking to keep the peace and be of good behaviour for a period of three years and during such period in the event of breach of such an undertaking to receive sentence when called upon to do so.