IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Leave to Appeal No. 28 of 2008 State of Uttarakhand .……… Appellant. Versus Shamshuddin S/o Sarfuddin and another.……… Respondents Mr. Amit Bhatt, Addl. G.A. for the appellant/State. Mr. R.P. Nautiyal, Advocate for the respondents. Hon’ble J.C.S. Rawat, J. The present leave to appeal application has been filed by the State to grant leave to file Government Appeal against the order of acquittal dated 05/11/2004 passed by the learned Judicial Magistrate- 1st Class, Kotdwar in Criminal Case No. 553 of 2002, State Vs. Shamshuddin and others. 2. Brief facts of the case are that an F.I.R. was lodged in the intervening night of 09/10-05-2002 at about 1:00 a.m. by the informant Shaukat Ali alleging therein that the accused/respondents had stolen the record of accounts from the record room of Masjid Committee. This incident was witnessed by Mahmood Gazni and Idrish and they have also identified the accused/respondents. The accused/respondents after committing the theft, ran away towards Nazimabad Chowk. On the basis of the F.I.R. case Crime No.655 of 2002 u/s 380 I.P.C. was registered against the accused/respondents. After completing the investigation, the police submitted the chargesheet u/s 380 I.P.C. against the accused/respondent. 3. After submission of chargesheet, the trial court framed charge u/s 380 I.P.C. against the accused/respondents. The accused denied the charges levelled against them and claimed their trial. 4. The prosecution in support of its case examined as many as four witnesses. PW1 Shaukat Ali, informant, PW2 Mahmood Gajni, PW3 Idrish Ahmed and PW4 Constable Nandu Rai. 2 5. The accused-respondents were examined u/s 313 Cr.P.C. and they have pleaded not guilty to the offence. They have further stated that they have been falsely implicated in this case due to enmity. The defence has also adduced the evidence of DW1 Sahid and other documentary evidence in before the court. 6. The learned Judicial Magistrate-1st Class, after appreciation of the evidence and hearing the parties, acquitted the accused/respondents. 7. Heard Mr. Amit Bhatt, Addl. G.A. for the appellant/State; Mr. R.P. Nautiyal, Advocate for the respondents and perused the record. 8. The acquittal order was passed on the ground that the incident has not been seen by any witness; member of the Managing Committee of the Mosque were not produced before the Court though they were cited in the chargesheet; the presence of PW2 Mahmood Gajni, PW3 Idrish Ahmed was found doubtful at the spot on the ground that both the witnesses have stated before the trial court that they were standing near the mosque at about 1:00 a.m. to sell out lime which was being unloaded from truck at the spot; the witnesses could not state the name of the driver and the conductor and could not substantiate this fact otherwise; the learned trial court also held that PW1 Shaukat Ali, PW2 Mahmood Gajni and PW3 Idrish Ahmed had not stated in their evidence as to how the accused/respondents broke the lock of the mosque and almirah in which the record was kept and how they entered into the said mosque; the learned trial court further held that there was a civil suit bearing No. 29 of 2001 pending between the accused/respondents and the informant Shaukat Ali before the Civil Court in which the Court has directed to produce all the records before the Court which is a subject matter of theft; the pendency of the suit has been admitted by PW1 Shaukat Ali, PW2 3 Mahmood Gajni and PW3 Idrish Ahmed; it is also alleged in the written statement filed by the complainant that Jama Masjid Kotdwar is unregistered and it has no bylaws or any minutes books; on the other hand, the Shaukat Ali PW1 has alleged in that suit that the said document had already been stolen on 29/09/2001 whereas the said document again had been said stolen on 10/05/2002 and the report was not lodged regarding the incident on 29/09/2001; and the entire evidence was found inconsistent. 9. I have heard learned counsel for the parties. During the pendency of the case, the respondent No. 2 has died and the proceedings had abated against him. 10. Learned Addl. G.A. contended that the acquittal recorded by the trial court is not based upon sound reasoning. The testimony of the prosecution witnesses is credible and cogent. The trial court should have relied the entire prosecution evidence. The accused/respondents was to be convicted and he would have been accordingly sentenced by the trial court. Mr. R.P. Nautiyal, the learned counsel for the respondents refuted the contention and supported the findings recorded by the learned trial court. I have perused the entire evidence on record and the judgment with the help of the learned counsel for the parties. Perusal of the record reveals that that the learned trial court was perfectly justified in recording the acquittal on the ground which have been indicated above. The ground of acquittal is based on sound reasoning. On my independent appreciation of evidence, I find that the acquittal order recorded by the trial court requires no interference. It is settled position of law, if two views are possible, then the view taken by the trial court shall prevail. But in this case the conclusion arrived on the basis of the evidence is not that two views are possible in this case. The only conclusion which can be taken from the appreciation of the evidence of the case is that the accused/respondents are entitled to be acquitted. I do not find that the 4 learned trial court has made any error in assessing the evidence of the prosecution. I do not find that any interference is required in this case. 11. In view of the above, I do not find any infirmity in the judgment of the learned trial court. The learned trial court has rightly acquitted the accused/respondents in this case. The leave petition is liable to be dismissed and is hereby dismissed. Accordingly, the appeal also stands dismissed. (J.C.S. Rawat, J.) 06.05.2009 Shiv