1. This revision is filed for setting aside the order of the learned Sessions Judge, Dhemaji dated 30.4.2008 in Criminal Appeal No. 9(1)/2008 whereby the order of the learned Chief Judicial Magistrate, Dhemaji dated 21.1.2008 in GR Case 99/2006(SLP) convicting the petitioner under section 411 of the IPC and sentencing to R/I for 6 months with fine of Rs. 500 and in default to R/I for 15 days is affirmed.

2. Heard Mr. N. Baruah, learned counsel for petitioner and Ms. S. Hazarika Bora, learned Additional Public Prosecutor for the State.

3. One Lakhi Nath Dowarah lodged an FIR with the Sissiborgaon police outpost for the theft of a motorcycle carrying number plate AS-22/6021 and belonging to him, which was been parked near his granary, on 11.2.2006. The Silapathar police registered Silapathar PS Case 21/2006 under section 379 of the IPC. Acting a tip-off that two boys were searching for customers to sell a motorcycle near the Chowkidingi ASTC bus stand, the police went there and caught hold of the boys named Hementa Handique, the petitioner, and one Bhaiti Boruah alias Rupam Boruah and when quizzed they admitted to have stolen the two-wheeler. The police seized the motorcycle from them and later gave zimma to informant and completing the investigation filed charge sheet against the accused persons under section 379 of the IPC.

4. One of the accused absconded during trial and petitioner faced trial and denied the charge.

5. In support of its case prosecution examined 7 witnesses. The defence did not examine any one. The plea of defence is of total denial. Statement of petitioner is recorded under section 313 of the Cr.PC. After the conclusion of trial, petitioner is held guilty under section 411 of the IPC and sentenced as above. The appeal filed by him is also dismissed. Hence, this revision.

6. Learned counsel for petitioner contends that as there is no eye witness to the theft and also no seizure witness is examined by the prosecution the case is bad in law and also the conviction is not proper and, hence, petitioner deserves acquittal.

7. Per contra learned counsel for the State contends that the motorcycle is recovered immediately post the theft from the petitioner and who failed to give an account of the theft is itself indicative of the fact that petitioner has kept the stolen two-wheeler belonging to informant without any explanation and, hence, petitioner is rightly convicted.

8. It is notable that the informant (PW-1) and other witnesses PW-2 to 5 stated about the theft of the said motorcycle from the house of the informant on 11.2.2006 by some miscreants but said they did not know the miscreants who stole the bike and PW-1 did lodge the FIR on 12.2.2006. In this context the evidence of PW-5, a police officer, is crucial as he recovered the vehicle.

9. In the evidence PW-5 stated that on receiving information at 12 noon on 12.2.2006 that two men with a motorcycle were standing at the nearby ASTC bus terminus and looking for customers to sell it he went there and spotted them and when asked to show documents of the bike in their name they could not and said they stole it and when the dickey opened found the driving licence and RC written in the name of informant and seized it vide Exhibit 1 and came to police station, called the informant and gave zimma to him after signing a zimmanama vide Exhibit 4.

10. Petitioner who signed the seizure list never claimed the seized vehicle. It is noteworthy that the driving licence and RC naming the informant were found inside the dickey of the bike when seized and so zimma was given to him. The very fact of recovery of the motorcycle indicates that the petitioner possessed it illegally and, hence, failed to give an account of it. He even did not deny the seizure and his signature on it when he was examined under section 313 of the Cr.PC. So the seizure list is duly proved.

11. The submission of defence that the seizure witness is not examined by the prosecution is in itself not destru