State with reasons, what offence, if any, has been committed by ‘A’ in following cases [MPCJ 2018]
(i) ‘A’ finds valuable ring on the road. He picks it up and sell immediately?
Ans. The explanation No. (II) of Section 403 of the IPC prescribes the duty and liability of the finder of goods of any movable property out of possession of any person. In such circumstances, it is no offence at all to merely take such property possession with a view to protect the same or restore it to the owner. But, such finder of goods becomes liable in following circumstances-
- Subsequent to taking into possession of goods, he appropriates the goods to his own use despite of having actual knowledge about its owner or alternatively he had means of discovering the owner.
- Or, he appropriates the goods to his own use without using reasonable means to discover and give notice to the owner and without keeping the property a reasonable time to enable the owner to claim it.
In the light of aforementioned discussion of law, the accused ‘A’ in the given problem has committed an offence of criminal misappropriation as defined under section 403 of the IPC because he appropriated the valuable ring ‘immediately’ without resorting the reasonable mean to discover and give notice the owner and also without keeping the same with him till a reasonable time.
(ii) ‘A’ cause cattle to enter upon a field belonging to “B” intending to cause and knowing that he is likely to cause damage to the crop of “B”.
Ans. Under section 425 of the IPC, in order to constitute the offence of mischief following essential ingredient must be satisfied-
- That a wrongful loss or damage to the public at large or to any specific person was intended or there was knowledge of such consequence. It shows that Mens rea is an essential ingredient.
- And with the aforesaid mens rea, that any property was actually destroyed or any change should occur in any such property or in the situation thereof that destroys or diminishes its value or utility or affects it injuriously.
In the light of aforementioned discussion of law, the accused ‘A’ in the given problem has committed an offence of mischief as defined under section 425 of the IPC because he with requisite guilty mind has actually caused damage to the crop of ‘B’ standing in the field.
(iii) ‘A’ flew away with an aeroplane without permission of authorities however he restored the aeroplane at its place a day after..
Ans. Section 378 of the IPC defines theft and enumerates following essential ingredient in order to constitute the offence-
- Moving a movable property of a person out of his possession without his consent.
- That such moving is in order to take the property with a dishonest intention.
If the aforementioned requirement is satisfied then it is immaterial that the concerned movable property was taken out of the possession only temporarily. The Hon’ble Apex Court has in K. N. Mehra vs The State Of Rajasthan, AIR 1957 SC 369 in similar factual matrix that under section 378 of the IPC in order to complete the offence a total deprivation of property is not required. The aforesaid legal position has also been reiterated by Hon’ble Apex Court in Pyare Lal Bhargava vs State Of Rajasthan, AIR 1963 SC 1094 and held that in order to commit theft one need not take movable property permanently out of the possession of another with an intention not to return it to him. So, under the definition of theft it is sufficient to constitue offence if any movable property is dishonestly taken out of the possession of another person even accused had an intention to return it sooner or later.
In the light of aforementioned discussion of law, the accused ‘A’ who flew the aeroplane without permission of authorities has caused loss to such authority due to deprivation or dispossession. Hence, accused ‘A’ has committed an offence of theft as defined under section 378 of the IPC and it is immaterial that he intended to return the aeroplane at some later point of time.
(iv) ‘A’ enters in ‘B’s house at midnight with intention of committing theft’, but moved away by poverty of B. He kept Rs. 50 in house and left away.
Ans. In the given problem, the culpability of the accused ‘A’ needs to be examined on following points-
- Related to house trespass :- The accused ‘A’ has committed an offence of House trespass simpliciter as defined under section 442 of IPC and accordingly punishable under section 451 of IPC because he has entered into a building which is used as a human dwelling (house) with an intention of committing an offence i. e. to commit theft.
- Related to theft :- Under scheme of Indian Penal Code, 1860, the stage of preparation to commit the offence of theft is not punishable. It is only an attempt to commit theft and the offence of theft itself which are punishable. The question as to whether any particular act of the accused has crossed the stage of preparation and entered into the realm of an attempt of the offence has to be determined with the help of Proximity test as laid down by Hon’ble Apex Court in State of Maharashtra vs Mohammad Yakub (1980) 3 SCC 57. That is, if accused after making preparation and with the intention to commit the offence, does an act towards its commission though such act need not be the penultimate act towards the commission of that offence but must be an act during the course of committing that offence.
In the light of aforementioned discussion of law, the accused ‘A’ in the given problem has barely entered into house which has constituted a separate offence but he did not do anything related to the offence of theft and much less any direct act toward the commission of theft. Hence, on the point of committing an offence of theft, the accused has committed no offence and his act has remained in the stage of preparation itself.
