INTRODUCTION- Offence against property finds a prominent place in the penal code, the basic elements common to the offences under this chapter is “Dishonestly”, which the code describes as the intention of causing “wrongful gain” to one person or “wrongful loss” to another but the manner in which dishonestly is exercised differs in different cases. 1 “Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss or another person is said to do that thing “dishonestly”. 2 Now the question comes what is wrongful gain and wrongful loss? For that our Indian penal code section 23 says about wrongful gain and wrongful loss. This section “Wrongful gain is gain by unlawful means if property to which the person losing it is legally entitled. ” And “wrongful loss is the loss by unlawful means of property to which the person losing is legally entitled. For human society to regulate its administration it requires the protection of not only the person of individuals, but also of their property.
In short we can say that the offences which effects or harm to the public property is considered as offence against property. What are the areas comes under this? The basic element common to the offences under this chapter is dishonesty which the code describes as the intention of causing wrongful gain to on e person to wrongful loss to another. A stage is however reached when violations of property rights become so violent, mischievous of fraudulent that the state finds it necessary to step in an utilize the machinery for its criminal law to afford protection to property in a speedy and effective way.
For this it has divide into 10 heads (a) theft (b)extortion (c)Robbery and dacoity 1 Textbook on The Indian Penal Code by K. D. Gaud. fourth edition 2009, foreworded by Justice V. N. Khare, Published By Universal Law Publishing Co. PVT. Ltd. C-FF-1A, Dilkhush Industrila estate. Gt road Karnal Road. Delhi. page 687, 1st paragraph. 2 Section 24 of Indian penal code, bare act universal publication. (d)criminal misappropriation of property (e) Criminal breach of trust (f) Receiving stolen property (g) Cheating (h) Fraudulent disposal of property (i)Mischief (j)Criminal trespass. OF THEFT (Section 378-382) Section 378 says that whoever intended to take dishonestly any movable property out of the possession of any person without that person’s consent moves that property in order to such taking is said to commit theft. For instance- A finds a ring belonging to Z on a table in the house which Z occupies. Here the ring is in Z’s possession, and if a dishonestly removes it, A commits theft. This section defines theft and nest section prescribes punishment thereof. In order to constitute the offence of theft, there must exist following ingredients. a) The accused must have an intention to taking dishonestly; Note- The word dishonestly means as is used in this section, does not carry its ordinary meaning it is a technical term which has been expressly defined in section 24 of IPC itself. A person can be said to have said to have dishonest intention If, in taking the property, it is his intention to cause gain, by unlawful means of the property to which the persons so gaining is not legally entitles or to cause loss by unlawfully means of property to which the person so losing is legally entitled. A person may be the guilty of theft of his own property if he takes it dishonestly from other see ills. (j) and (k). where the accused took a bundle belonging to himself which was in the possession f a police constable and for which the constable was accountable it was held that he constable had special property in it and that therefore the accused was guilty of theft. 6 There is no presumption of law that husband a wife constitute one person in India for the purpose of criminal law.
If the wife removes her husband’s property from his house with dishonest intention husband and without his consent her SRTIDHAN (woman property). Cannot be convicted of theft because this 3 Supra 1. 4 R A Nelson’s Indiian Penal Code Ninth Edition 2003, by S. K. Sarvaria. volume iv section 378 to 511.. Published by Lexix Nesxis ( a division of Reed ElsevierP. v. t Ltd) New Delhi, India, Page 3753, SCOPE clause(a). 5 See footnote 4, page 3756, 3rd paragraph. 6 The Indian penal code Ratanlal Dhirajlal 30th edition 2008. Published by wadhwa and company Nagpur office at new delhi , Nagpur , agara.
Page 726, last paragraph. species of properly belong s to her absolutely. Os also a husband can Be convicted if he steals his wife’s STRIDHAN. But in MAHOMEDAN law it is laid down that a MAHOMEDAN wife may be convicted of stealing from her husband because under this system of law there does not exist the same union of interest between husband and wife as exists between an English husband and wife. The same reasoning would apply in the case of a MAHOMEDAN husband. 7 (b)The subject of the theft must be some moveable property. 8
Explanation- if a person takes anything of another dishonestly in his possession by moving it then only it is theft if it is not attached to the land, if a sale of trees belonging to tree others and not cut down at the time of sale does not constitute theft. 9But removable of a man’s trees blown down by a storm amounts to theft. 10 Taking salt against the will of the government from a swamp which is government property and is guarded by the police is theft11 Electricity not being moveable property, cannot be the subject of theft under the Indian penal code.
But section 39 of the Indian electricity act 1910 brings the act of dishonest abstraction consumption or use of electricity within the meaning of theft as understood in the Indian penal code. 12 (c) The said moveable property must be taken out of the possession of any person; Notes-The term must be distinguished from custody. A man is said to . be in possession of a thing when he can deal with it as the owner to the exclusion of others. The property is in his custody when he cannot deal with it as the owner, but merely keeps it for the sake of another as in the case of a servant holding property for his master.
To constitute theft the property must have in the possession of someone and the possession of someone and then removed from his possession. 13 7 Supra 6, page 736, paragraph 5 and 6. 8 Supra 4. 9Supra 6, Page 728, 3rd paragraph. 10 Ibid. 11 Emperor v shiv ram (1891)ILR 15 BOM 702. 12 See footnote 4, page 3759, third paragraph. 13 See footnote 1, page 691clause7 CASE RELATING TO THEFT. In a case K. N. MEHARA v. STATE OF RAJSTHAN AIR 195 7 SC 369 and in RAMRATAN V STATE OF BIHAR AIR 1965 SC 926,930, the ingredients of theft have defined.
In this case in this case there were two persons K. N. Mehara and M. Z. Philips were employed in Indian air force. Both of them were convicted under s 379 IPC for the theft of an aircraft. Both the accused person were cadets on training in the Indian air force academy at jodhpur. Had been discharged from the academy on the ground of the misconduct. Mehara was a cadet receiving training as a navigator and was due to a flight in a Dakota as part of his training.
However on the scheduled day Mehara along with Philips took off not in Dakota but a Harvard HT822 before the prescribed time without authorization and without absenting any of the formalities which were perquisites for an air craft flight . they landed at a place in Pakistan about 100 miles away from the India Pakistan blotted. Both of them were sent back to Delhi and arrested reroute in jodhpur and protected and convicted theft. Thus we can indentify the ingredients of theft as follow (i) dishonestly (ii)movable property (III)out of the possession of any person (iv)without the consent of that person(v) moves that property.
To the prevention and control these kinds of offence section 379 provides punishment for that. It lays down whomever commits theft shall be punished with imprisonment of either description for a term which may extend to three years or with fine or with both. There are different kinds of theft have been indentified in our Indian penal code. Also it classifies different kinds of theft done by different persons in different situation and provides separate punishment for all these types of theft. I will be discussing different kinds of punishment as follow.
PUNISHMENT RELATING TO DIFFERENT TYPES OF THEFT. Section380- Theft in dwelling house, etc- This section says whoever commits in any building tent or vessel, which is used as a human custody of property, shall be punished imprisonment of either description for a term which may extends to seven years, and shall also be liable to fine. The word dwelling house means a building, tent or vassal in which a person lives or remains whether permanently or temporarily. A railway waiting room is a building used for human dwelling. 4 This section really gives greater security only to property deposited in a house and not to the immovable property of the person to the party from whom it is stolen. Section 381- Theft by clerk or servant of property in possession of master- This section says whoever being a clerk or servant, or being employed in the capacity of a clerk or servant, commits theft in respect of any property in the possession of his master or employer, shall be punished with imprisonment of either description for a term which may extends to seven years and also be liable to fine.
The very position of the clerk or of a servant which involves the lacing of confidence in him by his master or employer give him ample opportunity to handle his property on account of which particular importance is attached to it. If clerk and servant do the offence of theft then it is also consider as criminal breach of trust under section 408 also. So he provides for the punishment for seven years. 15 Section 382Theft after reparation made for causing death, hurt or restrain in order to the committing of theft – whoever commits theft, having made preparation for causing death or hurt or restrain, or feat of death , or hurt, or of restraint, to any person, in order to the committing of such theft , or in order to the effecting of his escape after the committing of such theft to in order to the retaining of property taken by such theft shall be punished with rigorous imprisonment for a term which may extent to ten years and shall also be liable to fine.
An accused cannot be convicted under this section unless there is proof of actual theft for which he was present at the scene of occurrence. 16The guilty preparation is the essence of this offence. If however, hurt is attempted or actually inflicted the theft would amount to robbery. 17 If one keeps a knife with him and commits theft he may be liable for conviction for the offence under this section even though there was no occasion for him to wield the knife or cause injury. 14 See footnote 11, page 693, section 380 comments. 15 See footnote 4, page 3819, scope,4th paragraph. 16 Lal singh v emperor AIR 1923 Lah 512, 25 Cr LJ 386 (2). 7 See footnote 4, page no- 3824, paragraph 2. OF EXTORTION Section 383-390 of Indian penal code deals with different types of extortion, where section 383 “whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induce the person so put in fear to any person any property to valuable security, or anything signed or sealed which may be converted into a valuable security, commits “extortion”. For instance A threatens to publish a defamatory libel concerning Z unless Z gives him money. He thus induces Z to give him money.
He has committed extortion. Thus we can find the elements of extortion. In fear of injury to that person or any other person Dishonestly inducement of person to put in fear To deliever any person ,property, of valuable security Or anything sighned which may be converted into a valuable security CASE REFERED In a very famous case JADUNANDAN SINGH AND OTHERS V. EMEMPEROR AIR 1941. PAR. 129. It was decided that what will be the criteria of put in fear of a person? It was decided that to convict a person in extortion it must be proved that the victims were put in fear of injury to themselves or to others.
Also decided that mere threat of divine displeasure does not amount to extortion. FACT OF THE CASE – Narain Dusadh and Sheonand Singh, Were returning after the inspection of some fields when the two petitioners and others assaulted them. The petitionet gave a blow to Narain on the right leg and then other people assaulted Sheonandan. Jadunandan, after this forcibly took the thumb impression of Narain on one piece of blank paper and of Sheonandan on three blank papers. On these findings the two petitioners and two others were convicted for extortion under s 384 of IPC. 18 TANULAL UDHA SINGH V EMPEROR is also relevant example of extortion.
In this case it was said the harm threatened or caused to be threatened must be form something illegally done. According to se 43 of Indian penal code illegal means anything which is an offence or which is 18 Brief fact of case jadunandan singh and others v. ememperor air 1941. par. 129 prohibited by law, or which furnishes ground for civil action. 19 To prevent these kinds of offence in our society Indian penal code section 384 provides punishment – whoever commits extortion shall be punish with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
THEFT AND EXTORTION DISTINGUISHED Extortion is thus distinguish from theft- Extortion is committed but h wrongful obtaining of consent. But In theft the offender takes without the owner’s consent. The property obtained by extortion is not limited, Immovable property may be the subject of extortion. Whereas in theft only movable property are the subject to theft. In extortion the property is obtained by intentional putting a person in fear of injury to that person or to any other, and thereby dishonestly inducing him to part with his property.
Whereas In theft the element of force does not arise. 20 PUNISHMENT FOR DIFFERENT TYPES OF EXTORTION Section 384 to 389 of Indian penal code awards punishment for extortion it says whoever commits extortion shall be punished with imprisonment of ether description for a term which may extended to three years, or with fine, or with both. 19 Criminal law cases and material, fourth edition, buy k. d. gaud. published by lesis nexis, spage 616. 20 See footnote 6, page 742, theft extortion distinguished. More over section 385 says whoever, in order o the committing of extortion, puts any person in fear, or attempts to put any person in feat of any injury shall be punished with imprisonment of either for a term which may extend to two years or with fine or with both. Scope of this section- if the complete offence for instance fear caused and a consequent delivery of the property is committed then it is punishable under section 384. If only the first part of the offence is committed it is punishable under this section. The extortion defined in section 383 includes putting any person in fear of injury and covers this section which deals with a less serious offence. 1 Section 386 putting person in fear of injury in order to commit extortion- this section says whoever commits extortion by putting any person in fear of death or of grievous hurt to that person or to any person of to any other shall be punished with imprisonment of either description for a term which may extend to ten years an shall also be liable to fine. In this section if the fear is caused is that of death or grievous hurt in naturally cause’s great alarm. The section therefore provides for severe penalty in such cases. 2 Section 387, extortion by putting a person in fear of death or grievous hurt. – whoever in order to the committing of extortion puts or attempts to put any person in feat of death or of grievous hurt to that person or to any other shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine. However section 386 and sec 387 have the same relation as sec 384 and se 385 the only difference being that in a case of this section and se 386 the injury in fear of which a person is put is death or grievous hurt.
Should necessarily be instant. 23 Section 388- this section says whoever commits extortion by putting any person in feat of an accusation against that person or any other having committed or attempted to commit any offence punishable with death or with imprisonment for life or with imprisonment for a term which may extend to ten years or of having attempted to induce any other person to commit such offence shall be punished with imprisonment of either description for a term which may extend 21 See footnote 4, Page 3840, paragraph1. 2 See footnote 6, page 744, comment on section 386. 23 See footnote 4,Page 3844, scope section 387, paragraph 1. to ten years and shall also be liable to fine and if the offence be one punishable under sectin377 of this code may be punished with imprisonment for life. Section 389- whoever in order to the committing of extortion puts r attempts to put any person in feat of an accusation against that person or any other of having committed or attempt to commit an offence punishable with death or with[ imprisonment for life] or with imprisonment for a term which may extend to ten years shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine and if the offence be punishable under section 377 of this code may be punished with [imprisonment for life]. OF ROBBERY
Section 390 of Indian penal code says that in all robbery there is either theft or extortion. Now the question comes when a theft is robbery? And when extortion is robbery? For the answer of this question in Section 390 itself laid down Theft is robbery if in order or then committing of the theft or in committing the theft or in carrying away or attempting to causes or attempts to cause to any person death or hurt or wrongful restrain of feat of instant death or of instant hurt or of instant wrongful restrain. is said to committed robbery.
It means every theft is robbery if in order to committing it. In Harish Chandra v. State of U. P the victim boarded into train at Chakarpur railway station the accused and the co- accused along with some other person entered the same compartment. When the train reached Thankpur railway station at about 9:30 pm some of the passengers started getting down from the compartment and there was a great rush. At that time the accused forcibly took away the wrist watch of the victim and when the victim raised an alarm the co-accused jumped out of the compartment. The victim also followed them.
Ant after all the accused were caught and the stuff were also recovered from them. Both of the accused were charged for the robbery. It was argued on behalf of the defense that since the slapping of the victim too place after that watch had been stolen the hurt could not have been said to have been caused in order to commit the theft so as to bring the offence under sec 390 IPC the supreme court rejected the argument. 24 The ingredients of this section is- 1) There is attempts to cause a person’s death or hurt or wrongful restrain or fear of instant death or. ) Of instant hurt or instant wrongful restrain. Robbery is an aggravated form of extortion And every extortion is robbery also when in order to committing it offender at the time of committing it is in the presence of the person put in feat and commits the extortion by putting that person in feat of instant hurt or of instant wrongful restrain to that person or to some other persons to do so putting in fear induces the person so put in fear then and there to deliver up the thing extorted. PUNISHMENT FOR DIFFERENT KINDS OF ROBBERY-
Section 392, punishment for robbery- lays down Whoever commits robbery shall be punished with regrous imprisionment for a term which may extend to ten years and shall also be liable to fine and if the robbery be committed on the highway between unset and sunrise the imprisonment may be extended to fourteen years. Section 393, attempt to commit robbery- whoever attempts to commit robbery shall be punished with rigorous imprisonment for a term which may extend to ten years and shall be also be liable to fine and f the robbery be committed on the highway between sunset and sunrise the imprisonment may ne extended to fourteen years.
An intention to rob coupled with some overt act short of robbery in furtherance of the intent is of paramount importance for convicting a person under section. 25 Attempts for offences under the Indian penal code are punishable under section 511 where no express provision is made for 24 See footnote 19, page 611. Case Harish Chandra v. State of U. P. 25 Pillai crimainal law page 1038 punishment of such attempts. This section expressly provides for punishment for attempts to commit robbery. Section 511 would not apply to it.
Robbery stands on a different footing from dacoity in this respect as an attempt at dacoity is punishable as decoity. 26 Section 394 voluntarily causes hurt in committing robbery- this section says if any person in committing f pr in attempting to commit robbery voluntarily causes hurt such person and other person jointly concerned in committing or attempting to commit such robbery shall be punished with [imprisonment for life] or with rigorous imprisonment for a term which may extend to ten years and shall also liable to fine.
There may be dacoity without hurt being caused but in the case of an offence under this section sort is one of the essential elements if no hurt is caused no offence would be made out. Case referred- Om Praksh v. state of utttarpradesh AIR 1956 ALL 163. It has decided what are the criteria which take a case in an offence of robbery? In this case persons had charged for dacoity, two of them were acquitted, the court said that for the dacoity there must be 5 persons. 7 OF DECOITY-: Every dacoity is robbery. There is only slight difference between robbery and decoity. Section 391 of Indian penal code says when five or more person conjointly commit or attempt to commit a robbery or where the whole number of persons conjointly committing or attempting to commits a robbery and persons present and aiding such commission or attempt amount to five or more every person so committing attempting or aiding is said to commit dacoity.
It is punishable under section 396 of Indian penal code it says whoever commits decoity shall be punished with imprisonment for life or with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine. In Kusho Mohtan v. State of Bihar AIR 1980 sc 788; 1980 cr law journal 543 and. Shyam Bihari v. State of Uttarpradesh AIR 1957 sc 320. are the related case for decoity and punishment for decoity. 26 See footnote 4, page 3874, paragraph 3rd. 27 See footnote 19, page 618, case Om Prakash v state of Uttar Pradesh..
DIFFERENCE BETWEEN ROBBERY AND DECOITY. For an offence of dacoity, minimum number of the miscreants required is five. The term dacoity is defined in section 391 IPC which clearly postulates that when five or more person conjointly commit or attempt to commit a robbery or where the whole number of person conjointly committing or attempting to commit a robbery and person present and aiding such commission or attempt amount to five or more every person so committing attempting or aiding Is said to commit dacoity.
The offence of robbery is defined in section 390 IPC and as is cleat from a perusal of the said section even a theft is robbery If during its commission the offender voluntarily causes or attempts to cause to any person death or hurt or wrongful restrain or fear of instant death or of instant hurt or of instant wrongful restrain. Whereas robbery is punishable under section 392 IPC dacoity is punishable under se 395 of IPC. 28 PUNISHMENT FOR DIFFERENT TYPES OF DECOITY
Section 395, punishment for dacoity- Indian penal code provides punishment for decoity; it says whoever commits dacoity shall be punished with [imprisonment for life] or with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine. It comes into play only when the prosecution makes out an offence under section 390 and the number of assailants reaches to the statutory minimum. The maximum punishment provided under this section is life imprisonment for a term which may extend to ten years.
Fine also be imposed. Decoity is considered a very grave and serious crime and hence courts hence held that in cases of dacoity deterrent sentences is called for. In awarding punishment for an offence under this section two things are to be considered 1) Having regard to the gravity of the offence committed the punishment that each individual deserves 2) On the facts and circumstances of a particular case whether a unusually heavy sentence is required to protect the interests of the public at large by acting as a deterrent to others. 8 See footnote 4, page 3856,robbery and dacoity distinguished. Paragraph 2. Section 396, Decoity with murder- deals with an aggravated form of decoity. It says if any one of five or more persons who are conjointly committing dacoity commits murder in so committing dacoity every one of those persons shall be punished with death or[ imprisonment for life] or regroups imprisonment for a term which may extend to ten years and shall also be liable to fine.
In order to bring home the offence of dacoity with murder under section 396 it is not necessary to prove that in under was committed by any particular member of the gang or that it was a common intention of the gang to commit the murder or that other members of the gang expected the murder to take place. Nor it is necessary to prove that murder was committed jointly by ll the members of the gang. All that is required to be established by the preoccupation is that the murder had been committed while committing a dacoity.
If that is established then all the members of the aging who have committed dacoity are also equally liable for the murder under this section. 29 CASEREFRED- decoity with murder depends on facts and circumstances of the case30 I am giving a example of a case Shyam Bihari v state of Uttar Pradesh Facts of the case- in an attempt to commit robbery the appellant killed one of the victims who had caught hold of the appellant’s associate. The appellant was convicted under section 396 for the offence of dacoity with murder.
The appellant contended that he could not be convicted under section 396 IPC because any murder committed by the dacoits during their fight when they were running away without any booty could not be treated as murder committed in the commission of the dacoity. The high court negative this contention and held that section 396 would be attracted even where an attempt had been made to commit dacoity and a murder was committed when the 29 Nelson criminal law page 3843, paragraph 2nd. 30 See footnote 19 page 618, first line. acoits were trying to make safe retreat and confirmed the sentence of death passed by the session judge. The appeal of the accused was similarly dismissed by the apex court. 31 Section 397 robbery or dacoity with attempt to cause death or grievous hurt- This section says if at the time of committing robbery or dacoity the offender used any deadly weapon or causes grievous hurt to any person or attempts to cause death or grievous hurt to any person the imprisonment with which such offender shall be punished shall be less than seven years.
Section 398, attempt to commit robbery or dacoity when armed with deadly weapon- the section says if at the time of attempting to commit robbery and decoity, the offender is armed with any deadly weapon the imprisonment with which such offender shall be punished shall not be less than seven years. Both section 397 and section 398 do not create substantive offence, but merely prescribe a minimum sentence for the offence of robbery and dacoity mentioned in these sections.
Under section 397 of IPC if at the time of committing robbery or dacoity the offender uses any deadly weapons or causes grievous hurt or attempts to cause death or grievous hurt, he shall be liable to suffer a minimum sentence of seven years imprisonment. The essential of this section is as follow- a) An offence of robbery or dacoity must have been committed b) The offender should be taken part in the said offence ) The offender should have used a deadly weapons or cased grievous hurt or attempted to cause death or grievous hurt to any person at the time of committing a dacoity32 in Pholl kumar v delhi administration the accused had entered a petrol pump. The first accused was armed with a knife while the second accused had small fun in his hand. The first accused asked the employees of the petrol pump to hand over the keys. To terrorize the employees the second accused fired three shots in the air. One shot struck the window and two hit the ground.
Thereafter they ransacked the office and decamped with the money, the question threat arose for consideration was whether the first accused that was carrying a knife with him but did not use it 31 Ibid. 32 Pillai crimainl law page 1047 for committing any over act would be covered under se 397. The Supreme Court held that in section 397 the words used were the offender uses whereas in section 398 the expression is armed with deadly weapons. Both the section provides minimum sentences of seven years.
The court held that first accused was carrying a knife which was deadly weapon open to the view of the victims sufficient to frighten or terrorize them. Any other overt act such as brandishing of the knife or causing of grievous hurt with it. It was not necessary to bring the offender under this section. 33 Section 399- preparation of decoity- Whoever makes any preparation for committing dacoity shall be punished with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine?
In our Indian penal code there is very few section where mere preparation of any offence is punishable for example offence against country. Preparation of decoity is also one of the offences which preparation is punishable. Section 402 provides punishment for only for assembling for the purpose of decoity- This section says whoever at any time after the passing of this act shall be one of five or more person assembled for the purpose of committing dacoity shall be punished with rigorous imprisonment for a term which may extend to seven years and shall also be liable to fine.
Section 401, punishment for belonging to gang of thieves- the section says whoever after the passing of this act shall belong to any wandering or other gang of persons associated for the purpose of habitually committing theft or robbery and not being a gang of thugs or dacoits shall be punished with rigorous imprisonment for a term which may extend to seven years and shall also be liable to fine. 33 Pillai page 1047/48.