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In Re: Thangavelu Odayar and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai High Court
Decided On
Judge
Reported in1958CriLJ1198
AppellantIn Re: Thangavelu Odayar and ors.
Cases ReferredEmpress v. Venkatasami
Excerpt:
.....the owner of the article, or the claimant in good faith believes another to be the owner, and he claims, possession on that other's behalf. the claim must be tried and determined by the court, and must be proved by evidence to be fair and good, though not necessarily correct. the claim must be one made in good faith, i. , that the trees belonged to the panchayat and not the government who owned the eri poromboke trees was found to be a mere pretence and not made in good faith and would therefore be of no avail. to carry, convey, draw, push or the like from one place to another; 916, it is provided that, for the purpose of the act, a person steals who without the consent of the owner fraudulently and without a claim of right made in good faith, takes and carries away anything capable of..........gain or a rightful loss, and is consequently said to take the thing under a claim of right.the right claimed is the right to possession as 'against the person in whose possession the article is. this right may be claimed on either of three grounds: (i) because the claimant is owner of the article, and he has not parted with the right of possession involved in ownership in favour or another, (ii) because he bona fide believes himself to be the owner of the article, who has not parted with his possessory rights, (iii) because another is the owner of the article, or the claimant in good faith believes another to be the owner, and he claims, possession on that other's behalf.8. mere assertion of right does not constitute-' a valid claim of right. thus, a mere plea by an accused that the.....
Judgment:
ORDER

Ramaswami, J.

1. This is a revision sought to be preferred against the conviction and sentence by the learned Sub-Magistrate, Vridhachalam, and confirmed by the Judicial District Magistrate of South Arcot in C. A. No. 263 of 1957.

2. The facts are: Under the aegis of two persons convicted by the trial Court but acquitted by the appellate Court, viz., accused 1 and 2 and with the merits of which acquittal we are not concerned here, as no appeal has been preferred by the state, the three revision petitioners before us & a number of coolies were caught red-handed cutting and removing Karuvela trees in lorry loads.

How these people came to be caught red-handed was as follows: P.W. 3 the Thotti of Sirunesslur on coming to know that the accused persons were cutting the Karuvela trees in the Eri Poramboke of Sirunesslur went there and found them with the aid of coolies cutting and arranging to take away the same in a lorry found later to bear No. MDH. 2031. P.W. 3 returned to the village and reported to the village munsif P.W. 2, P.W. 2 took the karnam P W. 1 with him and went to the place of offence.

The village officers asked the persons cutting and taking away the Karuvela trees to desist but in vain. P.W. 2 went to report to the Revenue Inspector. P.W. 1 went to report to the higher authorities. In alighting at Vridhachalam he learnt that the District Collector and the Executive Magistrate was camping at Thittagudi. He gave information to the Collector who accompanied by the Veppore Police went in Jeeps and other conveyances to Sirunesslur Eri and surrounded the area, where the offence was being committed.

On seeing them the coolies ran away. The accused who were directing the operation and participating in the. movement of cutting and loading were caught red-handed. In fact the seizures in the case show that they have been camping there and making it their temporary head-quarters. The Tahsildar of the locality P.W. 5 recorded the statement of accused 3 to 5 (Revision Petitioners) wherein they confessed to their cutting the trees and removing them under the aegis of the acquitted Accused 1 and 2.

It was found that by time the District Collector went there to apprehend the culprits lorry loads of Karuvela trees cut there had already been despatched. They were also seized.

3. The defence of the revision petitioners was that like a largo number of villagers they went to the scene on hearing the Collector and others had come and though they were nothing more than Tamashabins or sight-seers they were apprehended as culprits and that their confessional statements were tutored and enforced. Their alternative plea was that what was done was without dishonest intention and under a bona fide claim of right i. e., the trees belonged to Accused 1 as President of the Panchayat.

Both the Courts below holding that the prosecution had affirmatively and satisfactorily proved their case and that the defence put forward was totally false convicted them under Section 379, IPC and sentenced each of them to 3 months' rigorous imprisonment. Hence this revision.

4. The only point of substance urged here is that the essential ingredient of an offence under Section 379, IPC viz. 'moving' has not been brought home to the revision petitioners.

5. The definition of theft is comprised in two clauses under Section 378, IPC the first having reference to the intention of the offender, the second referring to the taking in pursuance of such intention. The first part of Section 378 down to the word 'consent' refers to intention; the second part refers to conduct.

6. The first thing therefore to be proved is that the person who has moved movable property in the possession of another did so with the intention specified in Section 378. First, 'To take'. The intention must be in the first place to take i. e., to acquire possession of something in the possession of another.

Second, 'Dishonestly'. The intention must be to take 'dishonestly' i. e., interpreting this word by Section 24, the intention must be to take with the intention of causing 'wrongful gain' to one person, or 'wrongful loss' to another person; in other words, applying the definitions of such 'gain' and 'loss' given in Section 23, with the intention of acquiring or retaining by unlawful means, property to which the person so gaining is not legally entitled; or with the intention of, by unlawful means, depriving, or keeping another out of property to which that other so losing is legally entitled.

7. Now it sometimes happens that though a person intends to take property out of the possession of another, he does not intend to cause a wrongful gain, or a wrongful loss (and therefore he does not intend to take 'dishonestly'); he intends, in fact, to cause a rightful gain or a rightful loss, and is consequently said to take the thing under a claim of right.

The right claimed is the right to possession as 'against the person in whose possession the article is. This right may be claimed on either of three grounds: (i) Because the claimant is owner of the article, and he has not parted with the right of possession involved in ownership in favour or another, (ii) Because he bona fide believes himself to be the owner of the article, who has not parted with his possessory rights, (iii) Because another is the owner of the article, or the claimant in good faith believes another to be the owner, and he claims, possession on that other's behalf.

8. Mere assertion of right does not constitute-' a valid claim of right. Thus, a mere plea by an accused that the property with the theft of which, he is accused, is his own property, unsupported by proof or by some circumstances which tend to indicate that there is some truth in the statement is insufficient. The claim must be tried and determined by the Court, and must be proved by evidence to be fair and good, though not necessarily correct.

Mere doubt as to one's right is insufficient; the doubt must be shown to be reasonable, as where the ownership of the property alleged to have been stolen is shown to be the subject of a bona fide dispute between the parties. But the Criminal Law must not be set in motion to assist a civil action and the mere fact that one who is in possession has no right is no ground for another to claim a right to the goods so possessed.

The claim must be one made in good faith, i.e., it must be honestly made, and if not so made as where it is a mere pretence, it will be of no-avail.

9. To sum up the only valid claim of right in connection with theft is a claim of right to possession (see the illustrations (i) and (p) to Section 37S) and a claim to some rights in the thing taken is not a valid claim of right. Besides the fact that the accused merely asserted him possession or a claim of right would not be sufficient. It is sometimes said that where property is removed in the assertion of a contested claim of right, however ill founded that claim may be, the removal does not constitute theft.

But this is the English law which requires proof of felonious intent to constitute theft; it is not the Indian law, and even as an English rule it rejects a mere pretension unless it was bona fide; and presumably there can be no bona fide claim if it was wholly unfounded. Such a claim might be asserted by anybody even a thief, but it will confer on him no immunity.

The assertion of a claim of right must be sufficient to create a reasonable doubt that the property which is the subject of theft may not belong to or be in the possession of the complainant.

10. These principles are deducible from (a) the following case law (b) Standard Works on Indian Criminal Law and (c) Standard works on English criminal law (a) Ram Saran v. Emperor 4 Cri LJ 293 (A), Nassib Chowdhry v. Nannoo Chowdhury 15 Suth WR Cr 47 (B). Pandita v. riahimulla Akundo ILR 27 Cal 501 (C); Dhirendra Mohan v. Emperor 14 CWN 408 (D). Alagaraswami v. Emperor ILR 28 Mad 304 (E)- Ha-mid Ali v. Emperor ILR 52 Cal 1015: A.I.R. 1926 Cal J49 (F); Srinivasulu v. Govinda 1923 MWN 182 : 44 MLJ 138 : A.I.R. 1923 Mad 239 (GV Narasayya v. State : AIR1953Mad516 ; Nataraja Mudaliar v. Devanai Ammal : AIR1941Mad674 Rangaswami v. Emperor ILR 6 Rang 54 : A.I.R. 1928 Rang 113 (J), (b) R. A. Helson Indian, Penal Code Fifth Edn. P. 642 Gour's Penal Law of India Fourth Edn. Vol II Section 4087-4088 P. 1963; J. D. Mayne Criminal Law of India Third Edition. Section 505 p. 728; V. B. Raju I.C.S. Penal Code P. 1066; Ratanlal, Law of Crimes Sixteenth Edn. P. 90S, (c) Russel on Crime, Tenth Edn. (1950) Ch. 56 1203; Roscoe's Criminal Evidence Sixteenth Edn: P. 652 Kenny: Outlines of Criminal law Fifteenth Edition P. 232;

11. Hearing these principles in mind, if we examine the facts of this case, we find that the revision petitioners did not put forward a claim of light but merely asserted that they were only Tamashabins and secondly that the claims of right put forward by accused 1 and 2 (the co-accused who were acquitted) viz., that the trees belonged to the Panchayat and not the Government who owned the Eri Poromboke trees was found to be a mere pretence and not made in good faith and would therefore be of no avail. So we have to turn to the second element viz., physical conduct involved in the definition of theft covered by the word 'moves'.

12. It is a movement of the property in question in order to effect the intended taking or transfer of possession. The meaning of the word 'moves' in this context can be gathered from three sources viz. (a) standard lexicons (b) English Criminal Law and (c) case-law under Section 379, I. P. G.

13. (a) Webster's New International Dictionary defines the word 'moves' in this context as 'to change the place or position of in any manner; to carry, convey, draw, push or the like from one place to another; to impel; shift; to set in motion; to stir; to impart motion; see Vol. II, P, 1415. Similar definitions are given in Funk and Maejnall's New Standard Dictionary for the English language; and Murry's New English Dictionary.

14. (b) In Section 1 (2) of the Larceny Act, J. 916, it is provided that, for the purpose of the Act, a person steals who without the consent of the owner fraudulently and without a claim of right made in good faith, takes and carries away anything capable of being stolen, with intent, at 4he time of such taking, permanently to deprive the owner thereof. By Section 1 (2) of the Larceny Act, 1916, which is declaratory of the common law, the expression 'carries away' corresponding to 'moves' in Section 378, IPC includes 'any removal of anything from the place which it occupies, but in the ease of a thing attached, only if it has been completely detached'. This carrying away is called 'asportation'.

The following extracts from standard works on English Criminal Law define 'asportation'. Russell on Grime, Tenth Edition, Vol. II, Pages J1072-73:

The least removing of the thing taken from the place where it was before with intent to steal it, is a sufficient asportation, though it is not quite carried away. Thus, a guest who had taken the sheets from his bed, with intent to steal them, and carried them into the hall, but was apprehended before he could get out of the house, was held guilty of larceny. So was a person who had taken a horse in a close, with intent to steal him, but was apprehended before he could get him out out of the close. So was a person, who intending to steal plate, took it out of a trunk wherein it had been deposited, and laid it on the floor, but was surprised before he could carry it away R. v, Simson, (1664) Kel 31 (K). And the removal of a parcel from the head to the tail of a waggon, with an intent to steal it, was held a sufficient asportation to constitute larceny : R. v. Coslet (1782) I Leach 236 (L). But where, on indictment for stealing a wrapper and four pieces of linen cloths, the facts were that the pieces of linen cloth were packed up in the wrapper in the common form of a long square, and laid lengthways in a waggon; that the prisoner got the package on one and in the waggon for the greater convenience of taking the linen out, and cut the wrapper all the way down for that purpose; but that he was discovered and apprehended before he had taken anything out of it, his acts were held not to amount to larceny as the bale had not been removed from the place where it was first laid, though his intent to steal was manifest: R. v. Cherry (1781) 2 East PC 556(M).

But where the prisoner had lifted up a bag from the bottom of the boot of the coach, and was detected before he got it out of the boot, and it did not appear that the bag was entirely removed from the space which it had first occupied in the boot; but the raising it from the bottom had completely removed each part of it from the space which that specific part occupied; the judges held, upon a case reserved, that there was a complete asportation: R. v. Walsh (1824) 1 Mood CC 14 (N).

Where the accused put his hand into the prosecutor's pocket, seized his purse and drew it to the edge of the pocket, but failed to draw it completely out of the pocket owing to its meeting an obstruction, and thereupon the prosecutor grasped the purse and replaced it, it was held there was sufficient evidence of asportation to support a charge of larceny though not of larceny from the person: R. v. Taylor (1911) 1 KB 674 (O).

Barris's Criminal Law, Nineteenth Edition, Page 373:

And, similarly, where an ear-ring was torn out of a lady's ear, but was not removed because it subsequently caught in her hair, there was held to be an asportation: R. v. Lapier (1784) 1 Leach 320 (P). If there is no asportation the prisoner may be indicted for an attempt to steal, or on an indictment for larceny he may be convicted of an attempt (Arch. 564).

Roscoe's Criminal Evidence, Sixteenth Edition, page 654:

But, where defendant, sitting on a coach-box, took hold of the upper part of a bag which was in the front boot, lifted it up from the bottom, handed the upper part of it to a person who stood beside the wheel and both holding it, endeavoured to pull it out, but were prevented by the guard, the judges were of opinion that a conviction was right thinking that there was a complete asportation of the bag, because each part of it had been moved, though it was not all completely pulled out. (1824) 1 Mood CC 14 (N).

Dr. Kenny in his 'Outlines of Criminal Law' Fifteenth Edition, page 214 says:

The test (of carrying away) seems to be Has every atom left the place in which that particular atom was before? So there may thus be a sufficient carrying away even though part of the thing still occupies the place which some other part of it previously did; e.g...pulling a pocket-book not quite out of a man's pocket.

Stone's Justices' Manual, 88th Edition, at page 1483 has the following to say:

The felon must, for an instant at least, have the entire and absolute possession of the goods (1781) 2 East PC 556 (M). But their removal from the place where they were, however slight, and notwithstanding they may be left on the premises, will suffice....Larceny from the person requires a more extensive asportation than simple larceny (1911) 1 KB 674 (O). As to attempted asportation, See R. v. Bloxhan (1943) 29 Cri App R 37 (Q).

Halsbury's Laws of England (Simonds Edition) Volume 10, paragraph 1484 (PP. 767-768) sums up asportation as follows:

There must be what amounts in law to an asportation (that is a carrying away) of the goods of the prosecutor without his consent; but for this purpose, provided there is some severance, the least removal of the goods from the place where they were is sufficient, although they are not entirely carried off. The removal, however short the distance may be, from one position to another upon the owner's premises is a sufficient asportation, and so is a removal or partial removal from one part of the owner's person to another. There must, however, be a complete detachment of the goods if attached.

In cases where the asportation cannot be proved, where the prisoner intended to steal and did some act in furtherance of that object, he may be convicted of attempting to steal.

The offence of larceny is complete when the goods have once been taken with a felonious intention, although the prisoner may have returned them and his possession continued for an instant only.

15. The law in India is the same. Explanations (3) and (4) to Section 378, IPC state how the moving could be effected in certain cases. Illustrations (b) and (c) elucidate the meaning of Explanation (4). The offence of theft is completed where there is a dishonest moving of the property even though the property is detached from that to which it is secured. But for moving the property the offence of theft is not completed, though it may still be an attempt.

Now as regards moving, the section does not require that the thing stolen should be moved to any place or to any extent, or indeed that it should have been permanently displaced. In this respect the rule would then be the same as in England where the bare removing of the thing taken from the place where it was before suffices to constitute asportation, though it be not carried away.

So, if the thief moves the goods even an inch from the place where they lay, the offence would be complete even though he may then leave them alone. But since there must be moving, evidence of it must be formally tendered and must be clear and cogent. It is all the more necessary in view of the fact that the Indian Penal Code comprises a large number of cases which would be excluded from the offence in England as savouring of the realty.

But even when a single motion towards changing the place or position of in any manner or towards the carrying, conveying, drawing, pushing or the like from one place to another or impelling, shifting of the subject-matter of the theft is brought home to the accused, the offence of asportation (moving) is complete. This moving must necessarily be with intent to take it dishonestly or must be connected with that intention as otherwise there may be moving but no theft. '

16. These principles are deducible from (a) the following case law and (b) standard works on Indian Criminal Law (a), Queen-Empress v. Venkatasami (V). (b) Ratanlal Law of Crimes 16th Edition P. 932: Gour's The Penal Law of India 4th Edition Section 4109 P. 1974; R. A. Nelson The Indian Penal Code Fifth Edition P, 659; V. B. Raju I. C. S., P. (1937) P. 1073. J. D. Mayne the Criminal Law of India Third Edition P. 726.

17. Bearing these principles in mind, if we examine the facts of this case, we find that these revision petitioners were in furtherance of the common intention of all and which would make each of such persons as liable for that act in the same manner as if it were done by him alone (S. 34, IPC) actively participating in the cutting down, shifting and loading and transporting of the Karuvela trees exhibited in Court.

The convictions are correct and there is no point of law. The sentences of imprisonment are appropriate having regard to the gravity of the offence referred to by both the courts below, the accused having aggravated their offence by a false defence. Both the convictions and sentences merit no interference and this Revision is dismissed.


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