Dharnidhar Jha, J.

1. The solitary appellant has been convicted by the learned Presiding Officer of Fast Track Court VI, Sitamarhi in Sessions Trial No. 808 of 2005 by judgment dated 2nd February, 2007 for committing offences under sections 413 and 414 IPC. The appellant has been directed to suffer RI for five years as also to pay a fine of rupees two thousand, else to suffer RI for six months under section 413 IPC. He has further been sentenced to undergo RI for two years under section 414 IPC.

2. The informant of the case was the Officer Incharge of Pupri Police station. He stated in his written statement (Ext. 2) that he along with an ASI B.P. Yadav (P.W.7), I.O. of the case, reserved guard Havildar Devendra Sharma, Constable 535 Satendra Kumar, Constable 300 Tahir Hussain, Constable 214 Surendra Prasad Yadav and Constable 272 Hit Narayan Singh started by the police jeep for investigating Pupri P.S. Case no. 156 of 2005 under section 379 IPC and during that course, searched the house of the present appellant, who was named 2 accused in that case. Seeing the police force, the appellant is said to have attempted to run away from there but he was chased by the police and villagers and was arrested.

3. On search of the house of the present appellant in presence of two witnesses, namely, Kale Khan and Md. Basiur Rahman, P.Ws 4 and 5 respectively, six bicycles were recovered as per description given in the written report (Ext. 2). Those cycles were seized and seizure memo (Ext. 1) was prepared.

4. P.W. 8 drew up his self statement and instituted the FIR and handed over the investigation of the case to ASI Basudeo Prasad Yadav (P.W.7), who investigated the case and sent up the appellant for trial.

5. Nine witnesses were examined by the prosecution and three witnesses were produced by the defence. Out of nine prosecution witnesses, P.Ws 4 and 5, as just stated, were witnesses to seizure memo, but they stated that nothing had been seized in their presence nor they had been witnesses to search and seizure of the house of the present appellant and that the seizure memo does not bear the signature of the present appellant as it had not been made over to him. Remaining seven witnesses, who were police witnesses, supported the story. P.W. 7, the I.O. stated that one person had come to the police station to identify one of the bicycles but neither the name of that particular person nor the description of the cycle which was identified by him had been given by P.W. 7. There is absolutely no evidence indicating that they were the subject matters of any theft case especially of Pupri P.S. Case no. 156 of 2005 registered by the police or any other agency competent to do it nor there was any evidence to indicate that any one had come to the police station for claiming those bicycles.

6. The solitary contention was that under the facts of the case and in the light of the evidence, it is not indicated that the cycles were theft properties of any particular case or cases, the charge under sections 413 and 414 IPC could not be sustained. No evidence was on record that any of the bicycles recovered from the house of the appellant was the subject matter of Pupri P.S. Case no. 156 of 2005 which the informant claimed being investigated into and which connection the house of the appellant was searched and recovery was made.

7. Section 413 IPC reads as under:

"413. Habitually dealing in stolen property.--- Whoever habitually receives or deals in property which he knows or has reason to believe to be stolen property, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."

8. Habitually receiving or dealing stolen property could be established only when the evidence was produced by the prosecution to indicate that the appellant was accused in similar nature of case and that too when he had been found guilty in most of the cases, if not