Conviction for attempt to murder converted to causing hurt due to lack of intention and evidence; benefit of the First Offender granted as no previous criminal history existed.

JUDGMENT :

Rajnish Kumar, J.

1. Heard, Sri Pradeep Kumar Tripathi, learned counsel for the appellants, learned AGA and Sri Dharmendra Kumar, Advocate holding brief of Sri Arun Saxena, learned counsel for the private respondent.

2. The instant Criminal Appeal under Section 374(2) of CRIMINAL PROCEDURE CODE (hereinafter referred as Cr.P.C.) has been filed against the judgment and order dated 12.02.2013 passed in Session Trial No.561/2009; State of U.P. versus Dharmeshwar and others by the Additional District and Session Judge (Ex-cader) Court No.2, Sitapur arising out of Case Crime No.159/2006, under Section 307 of INDIAN PENAL CODE (hereinafter referred as I.P.C.), Police Station Misrikh, District Sitapur, by means of which the appellants Dharmeshwar and Babu Ram have been convicted under Section 307 I.P.C. and sentenced to rigourous imprisonment of four years with fine of Rs.2000/- each and in default of payment of fine, further two months additional rigourous imprisonment. It has further been provided that out of the fine deposited by the appellants, Rs.1500/- shall be paid to the injured Ved Prakash as compensation.

3. Learned counsel for the appellants submitted that the appellants are the real brothers and have been falsely implicated by their nephew due to land dispute. They have been convicted under Section 3 07 I.P.C. and sentenced rigorous imprisonment for four years with a fine of Rs.2000/- each, which has been deposited by them. The appellants have no criminal history either before passing the impugned order of conviction or thereafter and they are law abiding persons of society. The appellants and the complainant; injured are close relatives and developed harmonious relations during pendency of the instant criminal appeal, as such, no fruitful purpose would be served by sending the appellants to jail to serve the remaining sentence. The appellants do not want to press the instant criminal appeal on merits and restrict their prayer for grant of benefit of First Offender, which has wrongly and illegally been denied by the trial court without assigning any special reason. The benefit of first offender cannot be denied without recording any special reason. It has further been submitted that the appellants undertake to follow all the terms and conditions as may be imposed by this Court while passing the order in the instant criminal appeal. He further submitted that even if the prosecution case is taken to be correct, the evidence under Section 3 07 I.P.C. is not made out and the offence under Section 3 24 is only made out because only one gun shot was made by the accuseds on leg and it is also not proved as to who made the shot out of the two appellants. Thus the conviction may be converted into Section 3 24 and the appellants may be granted benefit of First Offender.

4. Learned AGA opposed the submissions of learned counsel for the appellants and submitted that the appellants have rightly been convicted in accordance with law under Section 307 I.P.C. and sentenced accordingly and the appeal is liable to be dismissed.

5. Learned counsel for the complainant does not dispute that the appellants are the real brothers and the complainant is the nephew of the appellants and they have developed harmonious relations during the pendency of the criminal appeal and no fruitful purpose would be served by sending the appellants to jail and he has also no objection