JUDGMENT 1. - This is a State appeal against the order of acquittal passed by the First Class Magistrate, Ratangarh on 23.5.70 acquitting all the four accused persons namely, Kanaram, Nanda, Birdaram of the charges under section 379 of the Indian Penal Code and Ramlal of charge under section 411 of the Indian Penal Code. 2. A theft in the house of Surja P.W. 1 was committed on the night between 18th and 19th of July, 1968 by breaking open the lock of a Kothi and ornaments belonging to his daughter Mst. Sanna P.W. 2 were taken away by the thieves. Surja when he got up in the morning found that the lock was broken. He also discovered the foot prints of a person who was putting on the 'Chappal'. He tried to trace out the person who had committed theft at his place by the track of the foot prints and he reached the house of Kanaram. Accused Kanaram was not found in the village, therefore, Surja & his son Nanu went to Ratangarh in search of Kanaram. They found Kanaram at the shop of Dwarka Prasad Sunar P.W. 3. When they reached the shop of Dwarka Prasad they discovered that Kanaram intended to dispose of a 'Tewta' to him, bu he refused to purchase it as he did not deal in the ornaments. Immediately Kanaram was taken by Surja and his party to the police station Ratangarh where first information report Ex. P/1 was lodged by Nanu P.W. 5. The recovery of 'Tewta' was made from the possession of Kanaram and the recovery memo Ex. P/2 was prepared. The Police party then came to the spot of occurrence. Mst. Sanna P.W. 2 then informed the Police party that her ornaments which were kept in a 'Bajre-Ki-Handi' were also lost. The police arrested the accused who vide his information Ex. P/10 disclosed the whereabouts of 'Kanthla' which was recovered at his instance at the house of Ramlal Sunar on 20.7.68 vide Ex. P/11. Sixteen loose 'manias' of 'Galsari' were also recovered from the house of Kanaram in pursuance of the information given by him. Birdaram another person who was involved in this affair was arrested and also 9 loose 'manias' of Galsari were recovered at his instance. The lock was also seized by the police but the seizure memo Ex. P/11. Sixteen loose 'manias' of 'Galsari' were also recovered from the house of Kanaram in pursuance of the information given by him. Birdaram another person who was involved in this affair was arrested and also 9 loose 'manias' of Galsari were recovered at his instance. The lock was also seized by the police but the seizure memo Ex. P/4 does not disclose whether the lock was found broken or it was opened with a key. Ther ornaments were put up for indentification by the Tehsildar P.W. 10 Shri Khinv Karan and they were identified to be that of Mst. Sanna by P.W. 2 Sanna, P.W. 1 Surja, P.W. 5 Nanu and P.W. 8 Hazari who is said to have made these ornaments. These ornaments were correctly identified at the trial by all these witnesses to be that of Mst. Sanna. 3. The prosecution produced 13 witnesses to prove its case, but the learned trial Magistrate after carefully examining the prosecution witnesses found various discrepancies which created doubt in his mind that the case has been wrongly foisted on the accused persons to wreak vengeance. As many as 20 points were given by the learned Magistrate to disbelieve the prosecution case and acquitted all the accused persons of the charge. The learned Magistrate, however, ordered that 'Tewta' may be returned to Mst. Sanna but with regard to other ornaments he observed that the order for the return of these ornaments shall be passed after inquiry.He also issued a notice to Surja Complainant under section 250 of the Code of Criminal Procedure why special damages may not be awarded for having taken frivolous proceedings against the accused persons. 4. Learned counsel appearing on behalf of the State and the complainant Surja Ram read out the judgement of the trial court and pointed out that the trial court has based its inferences mainly on conjectures and not on facts. It was also argued that the trial court has ordered the return of the 'Tewta' to Surja, but the other ornaments which have not been claimed by the accused persons to be their own have not been returned to the complainant inspite of the fact that they were correctly identified by Mst. Sanna, Surja, Nanu and Hazari to be that of Mst. Sanna. 5. The statements of P.W. 1 Surja, P.W. 2 Mst. Sanna, Surja, Nanu and Hazari to be that of Mst. Sanna. 5. The statements of P.W. 1 Surja, P.W. 2 Mst. Sanna, P.W. 3 Dwarka, P.W. 4 Kurdaram, P.W. 5 Nanu and P.W. 6 Magharam were read over to me. Learned counsel appearing on behalf of the accused respondents pointed out that after going through these statements it is difficult to fix the liability of committing theft on the shoulders of any of these accused persons as these statements are full of discrepancies which cannot be explained on any hypothesis except that the accused persons have been wrongly impleaded in this case. 6. It is true that the inconsistencies in the statements of Surja, Dwarka, Kurdaram, and Nanu are there in respect of the manner in which the 'Tewta' was recovered from the possession of Kanaram, but from the operative portion of the order that was passed by the prosecution to be that of Mst. Sanna and, therefore, he directed the return of this ornament to Surja. 7. The first information report lodged at 4.00 p.m. at the police station Ratangarh simply discloses that the theft of 'Tewta' was committed from the house of Surja after breaking open the lock of the 'Kothi'. P.W.2 Mst. Sanna has categorically stated that all the ornaments belonging to her were kept in the Kothi, but 'Kanthla' and 'Galsari' were kept in a 'Bajre-Ki-Handi' in that Kothi. It is strange that when Surja and Mst. Sanna suspected a theft of her ornaments from the Kothi then naturally they must have tried to find out whether other ornaments which were kept in the same Kothi were intact or not. It is really unnatural on the part of Surja and Mst. Sanna not to have tried to discover whether the 'Kanthla, and Galsari' put in the same Kothi were still there or they were also taken by the thieves. The learned Magistrate observed in his judgement that at what stage the police was informed about the theft of these two ornaments, because neither there has been an additional first information report nor was there any mention of this fact in the police diary that the theft of 'Galsari' and 'Kanthla' could not be discovered by Mst. Sanna after the first information report Ex. P/1 was lodged. Sanna after the first information report Ex. P/1 was lodged. The way in which the recovery of these ornaments was made also created doubt in the mind of the learned Magistrate and, therefore, he gave as many as 20 points to express his doubt about the correctness of the prosecution case. 8. I have carefully gone through the judgement of the trial court and I find that a genuine doubt can be created regarding the correctness of the case, but the ownership of the ornaments cannot be doubted in any circumstances and, therefore, the learned trial court should not have withheld the order of return of these ornaments to the complainant. 9. The case of Kanaram, however, stands on a different footing, but the statement of Surja, Dwarka, Kurdaram and Nanu are discrepant on the question about finding 'Tewta' with Kanaram.It is an appeal against the order of acquittal and, therefore,it is difficult for this Court while sitting in appeal to change the order of acquittal into that of conviction on such discrepant evidence. However, I would like to observe that it is difficult for this Court to draw an inference that a false has been foisted on Kanaram and other accused persons in order to wreak vengeance and, therefore, the issuance of notice under section 250 of the Code of Criminal Procedure in these circumstances is unwarranted. 10. The result is that the appeal of the State fails and it is hereby dismissed, but a direction be issued to the trial court that the ornaments brought in the possession of the court in this case be returned to Surja Ram complainant. The notice issued under section 250 of the Code of Criminal Procedure is hereby quashed. *******