JUDGMENT : Since both the aforesaid appeals arise out of one and the same judgment, they are being decided and disposed of by this common judgment. 2. The appellants named above have challenged their conviction under section 393 read with section 397 of the Indian Penal Code and section 25(1-B)A read with section 3 and section 25(1-B)B read with section 4 of the Arms Act and sentence of R.I. for seven years with fine of Rs. 500/- each, in default of payment of fine to suffer additional S.I. for six months each and R.I. for one year and fine of Rs. 200/- each, in default of payment of fine to suffer additional S. I. for two months each respectively, passed by the learned Fourth Additional Sessions Judge, Indore in S.T. No. 30/2005 by judgment dated 29-11-2005. 3. In short, the prosecution case as placed before the trial Court is that on 26-11-2004 in the noon at 1.00 PM near Rajeev Gandhi Square, Ring Road, Piplyarao, Indore, the complainant PW-1 Guruvej Singh was standing near his truck bearing Registration No. MP-09-KD-3028. At that juncture, acquitted co-accused Faim Khan alias Dhanna Tyrewala and the appellants reached there and surrounded the complainant Guruvej Singh. Appellant Vikram took out a revolver from his pocket and put its barrel at the neck of the complainant whereas appellant Sukhraj Singh and co-accused Dhanna Tyrewala put CHHOORA at his abdomen and asked him to give money. The complainant got scared and shouted attracting Head Constable PW-6 Yudhishthir and PW-8 Rajkumar as well as truck-owner Risal Singh. All the three accused persons were caught with weapons on the spot. The driver Jernailsingh and some bi-passers also reached over on the spot. Accused persons were then taken to the Police Station where PW-1 Guruvej Singh lodged the report Ex.P/1 for commission of offences under sections 393 and 398 of the Indian Penal Code. From appellant Vikram, a country-made pistol and six live cartridges and from Sukhraj Singh and Faim CHHOORAS were seized. The Investigation Officer also prepared spot map Ex.P/2. The seized revolver was sent for examination and opinion to PW-2 Irfan Ali who gave his opinion Ex.P/3. From appellant Vikram, a country-made pistol and six live cartridges and from Sukhraj Singh and Faim CHHOORAS were seized. The Investigation Officer also prepared spot map Ex.P/2. The seized revolver was sent for examination and opinion to PW-2 Irfan Ali who gave his opinion Ex.P/3. After obtaining sanction for prosecution under the provisions of Arms Act from Sub-Divisional Magistrate Shri Rameshwar Gupta, charge-sheet was filed against the accused persons for the above mentioned offences and section 25(1-B)A read with section 3 and section 25(1-B)B read with section 4 of the Arms Act. 4. The accused persons refuted the charges and pleaded their false implication. According to appellant Sukhraj Singh, he was plying Tanker bearing Registration No. MP-09-KA-5184 through the transport of complainant Guruvej and he owed big amount from the complainant who has implicated him falsely with the help of the police so that he may not be required to make the payment. They have not examined any witness in their defence. The learned trial Court, after examining the prosecution witnesses and hearing both the parties, while acquitting co-accused Faim Khan alias Dhanna convicted the appellants as mentioned hereinabove. 5. Learned counsel for the appellants have submitted that the offence under section 397 of the Indian Penal Code would not be made out against the appellants, because they had not committed any dacoity or robbery and for attempt to commit robbery, if deadly weapon was used, there is specific section for making out the offence i.e. 398 of the Indian Penal Code. It is also submitted that the conviction of the appellants under the Arms Act is not sustainable, because the seized weapons were not produced before the Court and their identity with the seizure memo and other reports has not been established by the prosecution. Finally, learned counsel have submitted that for offence under section 393 of the Indian Penal Code, there is no minimum jail sentence prescribed in the statute. Therefore, the appellants may be sentenced to the period already undergone. 6. On the other hand, learned State counsel has supported the impugned judgment and finding arrived at by the learned trial Court. 7. Having heard learned counsel for the parties and after perusing the entire record, this Court finds substance in the arguments advanced by the learned counsel for the appellants. 6. On the other hand, learned State counsel has supported the impugned judgment and finding arrived at by the learned trial Court. 7. Having heard learned counsel for the parties and after perusing the entire record, this Court finds substance in the arguments advanced by the learned counsel for the appellants. Section 397 of the Indian Penal Code is meant for imposing minimum jail sentence of seven years to a person who at the time of committing robbery or dacoity uses any deadly weapon or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person. In the instant case, the main offence charged against the appellants is under section 393 of the Indian Penal Code, attempt to commit robbery, meaning thereby that robbery was not complete and while completing the robbery, deadly weapon was not used. For use of deadly weapon at the time of attempting to commit robbery, appropriate offence would be made out punishable under section 398 of the Indian Penal Code i.e. attempt to commit robbery or dacoity armed with deadly weapon. In this section, only attempt is sufficient for commission of robbery or dacoity. Completion is not necessary and the offender must be armed with deadly weapon. There is no need of use of deadly weapon or causing of grievous injury or attempting to cause death or grievous hurt to any person. 8. This Court has gone through the charge framed by the learned trial Court which is disclosing the facts and ingredients of section 397 of the Indian Penal Code regarding use of deadly weapon or attempt to cause death or grievous hurt. When the statute has prescribed two separate sections, one is under section 397 of the Indian Penal Code for robbery or dacoity with attempt to cause death or grievous hurt or use of deadly weapon and second, section 398 of the Indian Penal Code attempt to commit robbery or dacoity and armed with deadly weapon. When the statute has prescribed two separate sections, one is under section 397 of the Indian Penal Code for robbery or dacoity with attempt to cause death or grievous hurt or use of deadly weapon and second, section 398 of the Indian Penal Code attempt to commit robbery or dacoity and armed with deadly weapon. If the robbery is completed, the offence would be under section 392 of the Indian Penal Code and if hurt is caused with commission of robbery, the offence would fall under section 394 of the Indian Penal Code and at the time of completing the offence of commission of robbery, deadly weapon is used or attempt was done to cause death or grievous hurt, the offence under section 397 of the Indian Penal Code would be attracted. When the offence is not completed, and only attempt was done, the same is punishable under section 393 of the Indian Penal Code, attempt to commit robbery and while attempting to commit robbery, accused are in possession of deadly weapon then offence would be made out under section 398 of the Indian Penal Code. In both the offences under sections 397 and 398 of the Indian Penal Code, minimum jail sentence is prescribed. 9. By framing charge under section 397 of the Indian Penal Code and not framing the charge under section 398 of the Indian Penal Code, the case of the appellants would be prejudiced, because there would not be any cross-examination for the purposes of offence under section 398 of the Indian Penal Code as it is clear from the cross-examination of the prosecution witnesses in the instant case. 10. Section 464 of the Code of Criminal Procedure says that if the Court is of the opinion that there is failure of justice because of absence of, or error in, charge, it may order for framing of charge and recommencement of trial after framing of charge and in case of error, omission or irregularity also direct a new trial to be held upon a charge framed in whatever manner it thinks fit and if the Court is of the opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction. In the case at hand, this Court is of the opinion that now no useful purpose would be served to send the case back for framing of charge under section 398 of the Indian Penal Code and commencement of trial after a lapse of more than three and a half years especially when the property (seized weapons of offence) were not produced before the Court and now seized weapons may not be available, because in the instant appeal, there is no direction issued for preserving the seized weapons at the time of admission of the appeal. 11. The seized fire-arm and CHHOORAS were not produced before the Court to fix the identity of weapons with the seizure memo and identification of the same in Court by the witnesses as the weapons of offence. In the case of Chinta vs. State of M. P., 1999 Criminal Law Reporter (M.P.) 80 while considering the several judgments of this High Court, it was held that the conviction under sections 25 and 27 of the Arms Act cannot be sustained if the seized fire-arms or other arms have not been produced before the Court and no explanation was offered for non-production of the same. Mere filing of a document along with police record would not be a sufficient compliance of proving the seizure and exclusive possession of a particular kind of fire arm from the appellants. [Also see : State of M. P. vs. Krishna Kumar, 2007(1) MPWN 203]. In this view of the matter, in the considered opinion of this Court, the offences under sections 25 and 27 of the Arms Act are not made out against the appellants. Therefore, the conviction and sentence for these offences deserve to be are hereby set-aside. 12. For the foregoing discussion, the offence under section 397 of the Indian Penal Code is also not made out against the appellants and they deserve to be and are accordingly acquitted from this offence. The conviction of the appellants under section 393 of the Indian Penal Code is sustainable. Learned counsel for the appellants have submitted that the appellants are the first offenders and are young married persons having responsibility to maintain their families. Appellant Sukhraj Singh is in jail since last three years and eight months and appellant Vikram remained in jail for one and a half years. Learned counsel for the appellants have submitted that the appellants are the first offenders and are young married persons having responsibility to maintain their families. Appellant Sukhraj Singh is in jail since last three years and eight months and appellant Vikram remained in jail for one and a half years. At the time of incident, Vikram was 22 years of age and he comes from tribal community (Bhilala) having responsibility to maintain his family. The sentence of this appellant has been suspended by this High Court in this appeal and thereafter, there is no complaint against him for his involvement in any other case. Both the appellants are not having any criminal antecedent. Therefore, learned counsel prayed that they may be sentenced to the period already undergone. (Sukhraj Singh remained in jail for 3 years, 6 months and Vikram remained in jail for one and a half years). 13. Having heard learned counsel for the parties on the question of sentence, this Court is of the view that ends of justice would be served by sentencing the appellants to the period already undergone under section 393 of the Indian Penal Code for which minimum jail sentence is not prescribed. There was direct conflict of the complainant with the appellant Sukhraj Singh and it appears that the appellant Vikram being his subordinate and having same profession was also with him. Therefore, there can be difference of jail sentences between the two. 14. In the result, this appeal is allowed in part, in terms indicated hereinabove. Learned trial Court is directed to release the appellant Sukhraj Singh forthwith if not wanted in any other criminal case and on depositing the amount of fine, if not already deposited. Appellant Vikram is on bail. His bail and surety bonds shall stand discharged. 15. Original judgment be retained in the record of Criminal Appeal No. 1372/05 and a copy thereof be placed in the record of Criminal Appeal No. 1378/05. Office is also directed to send a copy of this judgment to the trial Court along with its record for immediate compliance.