JUDGMENT 1. - This appeal has been directed against the judgment dated 29-3-1990, passed by learned Additional Sessions Judge, Beawar by which he convicted the appellant for offence under section 397 IPC and sentenced him to undergo 4 years rigorous imprisonment and a fine of Rs. 500/- (Five hundred) and in default of payment of fine, to further undergo 1 year rigorous imprisonment. The appellant was further convicted for offence under section 27 of Arms Act and sentenced for a period of 21/2 years rigorous imprisonment and a fine of Rs. 500/- (five hundred) and in default of payment of fine to further undergo 6 months rigorous imprisonment. 2. The brief facts of the case are that on 3-10-1988, Shri Karan Singh Rathore LDC, Rajasthan State Road Transport Corporation, Beawar filed an FIR at Police Station Beawar with the allegations that on the said date he alongwith Shri Dhanna Lal Peon was going to Rajasthan Bank for depositing the cash of the R.S.R.T.C.; that when they reached Ajmiri Gate one person threw Chilles in the eyes of Dhanna Lal and another person snatched bag of money and run away with the bag that when they followed the accused-appellant, he fired on them and then runaway with bag and jumped in the boundary of Roadways; that Shri Karan Singh followed the accused on cycle and snatched the bag of money and later on other persons came at the spot alongwith police and the accused was arrested. 3. On the basis of the aforesaid report, the accused was challaned under sections 392, 394 & 397 read with Section 27 of the Arms Act. After the trial, the accused was found guilty of offence under section 397 IPC and also under section 27 of Arms Act. The learned Additional Sessions awarded sentence to the accused by his judgment as mentioned above. Being aggrieved with the above judgment, the appellant has filed the present appeal. 4. I have heard learned counsel for the appellant Shri R.K. Kasliwal and Shri Naresh Goyal learned Public Prosecutor for the State of Rajasthan. 5. It has been argued by Shri Kasliwal learned counsel for the appellant that on facts on record no offence under section 397 IPC is proved against the appellant. 4. I have heard learned counsel for the appellant Shri R.K. Kasliwal and Shri Naresh Goyal learned Public Prosecutor for the State of Rajasthan. 5. It has been argued by Shri Kasliwal learned counsel for the appellant that on facts on record no offence under section 397 IPC is proved against the appellant. He submits that in the present case neither it has been mentioned in the FIR nor proved that the pistol was used by the appellant while committing offence of robbery. The only statement of the witness is that the pistol was used by the appellant after committing robbery when he was running. He submits that under these circumstances, no offence under section 397 IPC is proved against him the appellant and he deserves to be acquitted of the said offence. He placed reliance on a judgment of the Madras High Court reported in 1972 Cr. LJ 445. He submits that at the best, the accused can be sentenced for offence of robbery under section 392 IPC. The counsel for the appellant further submits that the appellant has already undergone sentence of 2 years and as such he should be sentenced only for the period for which he has already undergone. He further submits that the appellant was 19 years old when the offence was committed and as such, the appellant is entitled to benefit of Section 6 of Probation of Offenders Act which is mandatory in nature. In this connection he placed reliance on a judgment of the Hon'ble Supreme Court reported in 1975 Cr. L.R. (SC) 558, Muhammed Aziz Muhammed Bazir v. State of Maharashtra . 6. The learned Public Prosecutor supported the judgment of the lower court and argued that the offence committed by the appellant is of serious nature and as such, he cannot be given benefit of provisions of Probation of Offenders Act. He further argued that this objection was not raised in the lower court. 7. I have gone through the record of the case and considered the arguments of the counsel for the parties. In my view, the offence under section 397 IPC has not been proved against the appellant. There is no evidence on the record that the appellant used pistol while committing robbery, and as such, the appellant cannot be convicted for offence under section 397 IPC. In my view, the offence under section 397 IPC has not been proved against the appellant. There is no evidence on the record that the appellant used pistol while committing robbery, and as such, the appellant cannot be convicted for offence under section 397 IPC. The pistol was used only when after committing offence of robbery the appellant was running with money bag. In these circumstances, the conviction of the appellant under section 397 IPC cannot be maintained. The appellant is found guilty of offence under section 392 IPC for which I award sentence of 3 years Rigorous Imprisonment and a fine of Rs. 500/- and in default of payment of fine, to further undergo 6 months rigorous imprisonment. The conviction of the appellant under section 27 of the Arms Act is also maintained. 8. I find force the arguments of the counsel for the appellant that the appellant should have been given benefit of Section 6 of the Probation of Offenders Act as the appellant admittedly on the date of occurrence was 19 years old. The Hon'ble Supreme Court in the aforesaid case has observed as under:- "Even though the point relating to the applicability of Section 6 was not raised before the learned Presidency Magistrate or the High Court, this court is bound to take notice of the provisions of that section and give its benefit to the appellant. Particularly since it is a section which is intended for the benefit of juvenile delinquents, reflecting the anxiety of the Legislature to protect them from contact or association with hardened criminals in jails and retrieve them from a life of crime and rehabilitate them as responsible and useful members of society". 9. In these circumstances, even though the appellant did not pray for granting benefit of section 6 of Probation of Offenders Act in the lower court, he cannot be debarred from getting benefit of the said Section. 10. In the result, the appeal is partly allowed, the conviction of the appellant under section 397 IPC is set aside and the appellant is convicted under section 392 IPC and also Section 27 of the Arms Act but instead of sentencing him at once - I hereby direct that he will be immediately released on his entering into a bond in the sum of Rs. 3000/'- (Three thousand) together with a surety in the like amount to the satisfaction of the lower court to appear and to receive sentence when called upon to do so during the period of one year and in the meantime to keep peace and be of good behaviour. The accused is allowed 2 months time to furnish the aforesaid bond. 11. The appeal disposed of accordingly in the manner mentioned above.Appeal Partly Allowed. *******