The Most Essential Ingredients of ‘Theft’(S. 378, Indian Penal Code, 1860)

Whoever, intending to take dishonest], 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. (S. 378). The punishment provided for it is three years and/or fine.

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In order to constitute theft the following five ingredients are nec­essary:

(1) Dishonest intention to take property:

It is initially for the prosecution to prove that the accused had acted dishonesty and where circumstances show that the property has been removed in the asser­tion of a bona fide claim or right, it is not theft.

A person can, however, be convicted of stealing his own property, as where A hav­ing pawned his watch to Z takes it out of Z’s possession without Z’s consent, not having paid what he borrowed on the watch; and though the watch is his own property, A commits theft as he takes it dis­honestly.

Similarly, if A owes money to Z for repairing the watch, and if Z retains the watch lawfully as a security of the debt, and A takes the watch out of Z’s possession, with the intention of depriving Z of the property as a security for his debt, he commits theft, inasmuch as he takes it dishonestly.

But if A having not owed to Z any debt for which Z could detain the watch as security, enters the shop openly and takes his watch by force out of Z’s hand.

A is not guilty of theft as he did not act dishonestly although he may have committed criminal trespass and assault. Similarly if A, in good faith, believing a property belonging to Z to be A’s own property, takes that property out of B’s possession A, as he does not take it dishonestly, does not commit theft.

But if A takes an article belonging to Z out of Z’s possession without Z’s consent, with the intention of keeping it until he obtains money from Z as a reward for its restoration. A having taken the article dishonestly has committed theft.

A servant is, however, not guilty of theft when what he does is at his master’s bidding unless he participates in his master’s knowledge of the dishonest nature of the acts. But if the servant entrusted by 66his master with the care of a certain movable property runs away with it without his master’s con­sent the servant is guilty of theft.

(2) The property must be movable:

A thing so long as it is attached to the earth, not being movable property, is not the subject of theft; it becomes capable of being the subject of theft a is severed from the earth.

(3) It should be taken out of possession of another person:

The property must be in the possession of another person from where it is removed. There is no theft of wild animals, birds or fish while at large, but there is a theft of tamed animals. A finds a ring lying cm the high road not in the possession of any person. A, by taking it commas no theft, though he may commit criminal misappropriation of prop­erty.

(4) It should be taken without consent of that person:

The con­sent may be express or implied and may be given either of the person in possession, or by any person having for that purpose express or implied authority. A being on friendly terms with Z, goes into Z’s library in Z’s absence, and takes away a book without Z’s express consent for the purpose of merely reading it (and with the intention of returning it).

Here it is probable that A may have conceived that he had Z’s implied consent to use Z’s book. If this was A’s impression, A has not committed theft. A asks charity from Z’s wife. She gives A money, food and clothes, which A knows to belong to Z, her husband. Here it is probable that A may conceive that Z’s wife is authorized to give away alms. If this was A’s impression. A has not corn-named theft.

The position is not the same if A is the paramour of Z’s wife and she gives a valuable property, which A knows to belong to her husband Z, and to be such property as she has not authority from Z to give. If A takes the property dishonestly, he commits theft.

(5) There must be some removal of the properly in order to ac­complish the taking of it:

A puts a bait for dogs, in his pocket, and induces Z’s dog to follow ill Here, if A’s intention be dishonestly to take die dog out of Z’s possession without Z’s consent, A has committed theft as soon as Z’s dog has begun to follow A.

Again A meets a bullock carrying a box of treasure. He drives the bullock in a certain direction in order that he may dishonestly take the treasure.

As soon as the bullock begins to move. A has committed theft of the treasure. Similarly, A sees a ring belonging to Z lying on a table in Z’s house. Not venturing to misappropriate the ring immediately for fear of search and detection, A hides the ring in a place where it is highly improbable that it will ever be found by Z, with the intention of taking the ring from the hiding place and selling it when the loss is forgotten. Here, A, at the time of first moving the ring, commits theft.