MEMORIAL ON BEHALF OF THE PROSECUTION

Enrolment No.-180101150
Enrolment No.-180101150

DR. RAM MNOHAR LOHIYA NATIONAL LAW UNIVERSITY

MOOT COURT AND CLINICAL LEGAL EDUCATION, 2020

Before
THE TRIAL COURT OF DUM DUM

UNDER SECTION 378 AND SECTION 379 OF INDIAN PENAL CODE, 1862

STATE………………………………………………………...……………PROSECUTION

v.

D.K. KAPOOR AND ADARSH PRIYADARSHANAN………………..…. DEFENDANT

MEMORIAL ON BEHALF OF THE PROSECUTION

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 MEMORIAL ON BEHALF OF THE PROSECUTION

TABLE OF CONTENTS

INDEX OF AUTHORITIES…………………………………………………………………..3

STATEMENT OF JURISDICTION..........................................................................................4

STATEMENT OF FACTS........................................................................................................5

ISSUE RAISED.........................................................................................................................8

SUMMARY OF ARGUMENTS...............................................................................................9

ARGUMENTS ADVANCED.................................................................................................11

[ISSUE I]: DEFEDANTS ARE LIABLE TO BE PUNISHED UNDER SECTION 379 OF

IPC FOR THE OFFENCE OF THEFT AND THE ACT CANNOT BE CONSIDERED
MERE DEFIANCE OF FLIGHT RULES AND REGULATIONS....................................11

[ISSUE I. A]: THE SUBJECT MATTER IS A MOVABLE PROPERTY.....................12

[ISSUE I.B]: THE AIRCRAFT WAS IN POSSESSION OF THE GOVERNMENT....12

[Issue I.C]: THE DEFENDANTS TOOK THE AIRCRAFT OUT OF THE

POSSESSION OF THE GOVERNMENT......................................................................13

[ISSUE I.D]: THERE WAS NO CONSENT FOR REMOVING THE AIRCRAFT

FROM THE POSSESSION OF THE GOVERNMENT.................................................13

[ISSUE I.E]: DEFENDANTS HAD DISHONEST INTENTION TO TAKE THE

AIRCRAFT......................................................................................................................14

PRAYER..................................................................................................................................16

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INDEX OF AUTHORITIES

Cases

Gulab v. State of M.R, 1991 (2) M.P. Weekly Notes 182.......................................................11

K.N. Mehra v. State of Rajasthan, 1957 AIR 369....................................................................13
Pyare Lal Bhargava v. State of Rajasthan, AIR 1094, 1963 SCR Supl. (1) 689.....................11
Queen-Empress v. Sri Churn Chungo, ILR 22 Cal.1017 (FB) ; and Queen-Empress v.
Nagappa, ILR 15 BOM. 344................................................................................................14
Rakesh v. State of Nct Of Delhi, 2010 (7) RCR (Cri) 1503....................................................13
State of Maharashtra v. Vishwanath, AIR 1979 SC 1825........................................................13

Statutes

The Indian Penal Code 1862, sec 22........................................................................................12

The Indian Penal Code 1862, sec 23........................................................................................14
The Indian Penal Code 1862, sec 24........................................................................................14
The Indian Penal Code 1862, sec 378..........................................................................11, 13, 14
The Indian Penal Code 1862, sec 379......................................................................................15

Other Authorities

http://www.legalservicesindia.com/article/1245/Possession.html...........................................12

Books

Dias, Jurisprudence (5th ed.) 290.............................................................................................12

K.D. Gaud, Textbook on Indian Penal Code, (Universal Law Publishing, 2009) at 688........13

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 MEMORIAL ON BEHALF OF THE PROSECUTION

STATEMENT OF JURISDICTION

The Hon’ble Court has jurisdiction by virtue of section 181(3) of the Code of Criminal
Procedure, 1973 to try instant matter under section 378 and 379 of Indian Penal Code, 1860.
The State and D K Kapoor and Adarsh Priyadarshanan, being parties to the case have
recognised the jurisdiction of the trial court and agree to accept the decision of the Court.

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STATEMENT OF FACTS

1. D.K. Kapoor and Adarsh Priyadarshanan were cadets on training in the Indian Air
Force Academy, Dum Dum. The prosecution is with reference to an incident which is
rather extraordinary being for alleged theft of a Rafale, which, according to the
evidence of the Commanding 'Officer, has never so far occurred. The alleged theft
was on May 14, 2020. Adarsh was discharged from the Academy just the previous
day, i.e., May 13, 2020, on grounds of misconduct. DK was a cadet receiving training
as a Navigator. The duty of a Navigator is only to guide a pilot with the help of
instruments and maps. It is not clear from the evidence whether Adarsh also had been
receiving training as a Navigator. It is in evidence, however, that he knew flying.

2. On May 14, 2020, Adarsh was due to leave Kolkata by train in view of his discharge.
Adarsh was due for flight in a MIG 29 as part of his training along with one
Somranjan, a flying cadet. It is in evidence that he had information about it. The
authorised time to take off for the flight was between 6 a.m. to 6-30 a.m. The cadets
under training have generally either local flights which mean flying area of about 20
miles from the aerodrome or they may have cross-country exercises and have flight in
the country through the route for which they are specifically authorised.

3. On that morning admittedly Kapoor and Adarsh took off, not a MIG 29, but a Rafale
EH/DH. This was done before the prescribed time, i.e., at about 5 a.m. without
authorisation and without observing any of the formalities, which are prerequisites for
a Rafale-flight. It is also admitted that some-time in the forenoon the same day they
landed at a place in Beijing about 2016 miles away from Kolkata. It is in the evidence
of one T.K. Vardrajan who was the Military Adviser to the Indian High
Commissioner in China at Beijing, that DK and Adarsh contacted him in person on
the morning of May 16,2020, at about 7 a.m. and informed him that they had lost their
way and force-landed in a field, and that they left the plane there. They requested for
his help to go back to Delhi.

4. Thereupon Vardrajan arranged for both of them being sent back to Delhi in an Indian
National Airways plane and also arranged for the Rafale being sent away to Dum

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Dum. While they were thus on their return to Delhi on May 17, 2020, the plane was
stopped at DumDum and they were both arrested for theft of the plane.

5. The case for the prosecution, is that DK and Adarsh stole away the Rafale and flew
with it to China with a dishonest intention. The defence, as appears from the answers
thereto, was as follows. DK went to the aerodrome on the morning of May 14, at the
usual time and took off the Rafale along with Adarsh and they flew for some time.
After a short while the weather became bad and visibility became poor and hence,
they turned the Rafale back towards Dumdum side by guess. They continued what
they thought to be the return journey for some time but finding the petrol nearing
exhaustion they force-landed in a field which, on enquiry, they came to know was in
Chinese territory.

6. DK and Adarsh pleaded that characterising it as a thoughtless prank on the part of a

young student aged about 22 years who was receiving training as a flying cadet and
that there can be no question of any offence under the Penal Code having been
committed, whatever may have been the breach of rules and regulations involved
thereby. The next pleas they took is that as a cadet under training he was entitled to
take an Rafale on flight, no doubt subject to certain rules and regulations and that
what at beat happened was nothing more than an unauthorised flight by a trainee as
part of his training which was due and in which he lost his way.

7. He had to get force-landed in an unknown place and this turned out to be Chinese
territory. The prosecution case, however, is that the flight to China was intentional
and that such flight in the circumstances constituted theft of the Rafale. The main
question of, fact to be determined, therefore, is whether this was intentional flight into
Chinese territory. It is also pointed out that Vardarajan, the Military Adviser to the
Indian High Commissioner in China, gave evidence' that when the DK and Adarsh
-met him at Beijing on the morning of May 16, 2020 they told him that they wanted to
fly to Delhi with a, view to contact the higher authorities there. It was also pointed out
that neither the Respondents nor Adarsh took with them in the flight any of their
belongings.

8. Although the facts on the record point almost conclusively that they were heading
towards China, it is impossible to dismiss the other theory beyond the realm of
possibility that they were going to Delhi to contact the higher authorities there. But it

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is on record that DK started the engine himself by misrepresenting to Ram Bihari, the
mechanic on duty at the hangar, that he had the permission of the Section Officer in
charge. He was scheduled to have the flight along with another person, a flight-cadet
by name Somranjan. But he did not fly, with Somranjan, but managed to take with
him a discharged cadet, Adarsh, who knew flying. Before any Rafale can be taken off,
the flight has to be authorised by the Flight Commander. A flight authorisation book
and form No. 700 have to be signed by the person who is to take off the Rafale for the
flight. Admittedly these have not been done in this case and no authorisation was
given. The explanation of the DK and Adarsh is that this is not uncommon. These,
however, are not merely empty formalities but are required for the safety of the Rafale
as well as of the persons flying in it.

9. It is in evidence that as soon as the taking off of the Rafale was discovered, it
inevitably attracted the attention of officers and other persons in the aerodrome and
that radio signals were immediately sent out to the occupants in the Rafale to bring
the same back at once to the aerodrome. But these signals were not heeded. The
explanation of the DK and Adarsh is that the full apparatus of the radio-telephone was
not with them in the Rafale and that he did not receive the message. The DK and
Adarsh went so far as to say that there was technical glitch in communication system
in the Rafale which made them incommunicado.

10. The question before the trial court is whether such is an attempt of theft or theft or it
amounts as just an unauthorised flight and defiance of Flight Rules and Regulations.
Argue the case.

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ISSUE RAISED

[ISSUE I]: DEFENDANTS ARE LIABLE TO BE PUNISHED UNDER SECTION 379

OF IPC FOR THE OFFENCE OF THEFT AND THE ACT CANNOT BE
CONSIDERED MERE DEFIANCE OF FLIGHT RULES AND REGULATIONS.

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 MEMORIAL ON BEHALF OF THE PROSECUTION

SUMMARY OF ARGUMENTS

[ISSUE I]: DEFENDANTS ARE LIABLE TO BE PUNISHED UNDER SECTION 379

OF IPC FOR THE OFFENCE OF THEFT AND THE ACT CANNOT BE
CONSIDERED MERE DEFIANCE OF FLIGHT RULES AND REGULATIONS.

[ISSUE I. A]: THE SUBJECT MATTER IS A MOVABLE PROPERTY

According to Sec 22 of IPC the aircraft, Rafale, qualifies to be a movable property.

[ISSUE I.B]: THE AIRCRAFT WAS IN POSSESSION OF THE GOVERNMENT

The term possession expresses the physical relation of control exercised by a person over a
thing. since the cadets had to take authorisation and observe the formalities, which are
prerequisites for an aircraft flight it is clear that aircrafts were well within the control and
possession of the Indian Air Force Academy, Dum Dum and hence the Government.

[ISSUE I.C]: THE DEFENDANTS TOOK THE AIRCRAFT OUT OF THE POSSESSION
OF THE GOVERNMENT
Definition of theft under s. 378 would be satisfied if the property is temporarily taken out of
the possession of a person though the accused intended to return it later on. In the present
case there can be no reasonable doubt that the taking out of the Rafale by the defendants for
the unauthorised flight has in fact given the defendants the temporary use of the aircraft, for
his own purpose and has temporarily deprived the owner of the Rafale viz. the Government,
of its legitimate use for its purposes.

[ISSUE I.D]: THERE WAS NO CONSENT FOR REMOVING THE AIRCRAFT FROM
THE POSSESSION OF THE GOVERNMENT
The taking out of the aircraft in the present case had no relation to any training. It was in an
aircraft different from that which was intended for the training course for the day. It was
taken out without the authority without observing any of the formalities and before the
appointed time also in the company of a person like Adarsh who, having been discharged,
could not be allowed to fly in the aircraft. It is impossible to imply consent in such a
situation.

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[ISSUE I. E]: DEFENDANTS HAD DISHONEST INTENTION TO TAKE THE

AIRCRAFT
A person can be 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 person so gaining is not legally
entitled or to cause loss, by wrongful means, of the property to which a person so losing is
legally entitled. In the present case there can be no reasonable doubt that the taking out of the
Rafale aircraft by the defendants for the unauthorized flight has in fact given the defendant
the temporary use of the aircraft for his own purpose and has temporarily deprived the owner
of the aircraft, viz., the Government, of its legitimate use for its purposes. Two cadets of air
force (one discharged for wrongful conduct and one trainee as navigator) took an aircraft to
China without any authorization. Further, they took the aircraft by misrepresenting that they
had the authorization. it is on record that DK started the engine himself by misrepresenting to
Ram Bihari, the mechanic on duty at the hangar, that he had the permission of the Section
Officer in charge. The defence taken by the accused that they had taken the aircraft for
training purpose and only later the flight got diverted to Pakistan and therefore, at the time of
taking there was no dishonest intention does not stand because the facts showed otherwise as
one of the accused was already discharged and the other was scheduled for training at a later
time on another aircraft. Therefore, it can be rightly concluded that the defendant has
‘dishonest intentions’ while taking the aircraft out of the possession of the Government.

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ARGUMENTS ADVANCED

[ISSUE I]: DEFEDANTS ARE LIABLE TO BE PUNISHED UNDER SECTION 379

OF IPC FOR THE OFFENCE OF THEFT AND THE ACT CANNOT BE
CONSIDERED MERE DEFIANCE OF FLIGHT RULES AND REGULATIONS.

Theft is defined as follows:

" Whoever, intending 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. "1

As to ingredients of section 378 of IPC, the Hon’ble Supreme Court of India in the case of
Pyare Lal Bhargava vs State of Rajasthan2, it was held as follows: ‘The section may be
dissected into its component parts thus, a person will be guilty of the offence of theft, if he-

 intends to cause a wrongful gain or a wrongful loss by unlawful means of Property to

which the person gaming is not legally entitled or to which the person losing is legally
entitled, as the case may be: see ss.23 and 24 of the Indian Penal Code;
 the said intention to act dishonestly is in respect of movable property;
 the said property shall be taken out of the possession of another person without his
consent;
 he shall move that property in order to such taking.’

The Hon’ble High Court of Madhya Pradesh in the case of Gulab v State of MR 3, has laid
down the five factors which requires a strict proof so as to hold that evidence of theft has
been made out. They are:

i. dishonest intention to take property;

ii. the property must be movable;
iii. it should be taken out of possession of another person;
iv. it should be taken without consent of that person; and
v. there must be removal of the property in order to accomplish the taking of it.

1
The Indian Penal Code 1862, sec 378.
2
Pyare Lal Bhargava v. State of Rajasthan, AIR 1094, 1963 SCR Supl. (1) 689.
3
Gulab v. State of M.R, 1991 (2) M.P. Weekly Notes 182.

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[ISSUE I. A]: THE SUBJECT MATTER IS A MOVABLE PROPERTY

Section 22 of IPC has provided the definition of “movable property”; means that any
corporeal property except land and things permanently attached to the earth 4. Only movable
property can be stolen as it is impossible to take immovable property away. Immovable
property can be converted into movable property and once it has been converted such
property can be stolen.

In the present case defendants have been accused of committing the offence of theft of an
aircraft, Rafale EH/DH, which is a corporeal property and cannot be considered land on thing
permanently attached to earth. Therefore, it can be rightly concluded that the aircraft is a
movable property.

[ISSUE I.B]: THE AIRCRAFT WAS IN POSSESSION OF THE GOVERNMENT

In order for theft to have occurred, the property being stolen must be taken from the
possession from the owner of such a property. If the property does not have an owner then
such property cannot be said to have been stolen if a person acquires such property. 

The term possession expresses the physical relation of control exercised by a person over a
thing. Salmond says, “the continuing exercise of a claim, to the exclusive use of a thing
constitutes the possession of it”. Maine defines possession as “physical detention coupled
with the intention to hold the thing detained as one’s own”. Pollock on the other hand has
given a new meaning to the word possession. He says that “in common speech a man is said
to possess or be in possession of anything which he has the apparent control, or from the use
of which he has the apparent power of excluding others”5

Possession is a question of fact of relation between a person and a thing. 6 Savigny identified
two elements in the concept of possession; (a) Corpus Possessionis, effective control, and (b)
animus domini, the intention to hold as owner. In simple terms possession is control over a
property by a person which is recognized by law. The person in possession of thing has
certain legal advantages. A person’s right to possess a thing is however, relative. ‘Possession
carries with it the claim to possession and not to be interfered with until someone else
establishes a superior title.’7 ‘Possession’ therefore, would occur only when the law
recognizes the right of a person to keep control over the property.

4
The Indian Penal Code 1862, sec 22.
5
http://www.legalservicesindia.com/article/1245/Possession.html.
6
Dias, Jurisprudence (5th ed.) 290.
7
Id.

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 MEMORIAL ON BEHALF OF THE PROSECUTION

In the case at hand, since the cadets had to take authorisation and observe the formalities,
which are prerequisites for an aircraft flight it is clear that aircrafts were well within the
control and possession of the Indian Air Force Academy, Dum Dum and hence the
Government.

[ISSUE I.C]: THE DEFENDANTS TOOK THE AIRCRAFT OUT OF THE POSSESSION
OF THE GOVERNMENT
Theft is complete the moment goods are moved out of the possession of the victim with
dishonest intention. It need not have come into possession of the accused 8. ‘What the law
contemplates is the intention to take and the actual taking is a step beyond such intention and
not relevant for the purpose of definition of theft.’9

Definition of theft under s. 37810 would be satisfied if the property is temporarily taken out of
the possession of a person though the accused intended to return it later on 11. Wrongful loss
need not be caused by permanent deprivation of property but may be caused even by
temporary dispossession. A temporary period of deprivation or dispossession of the property
of another causes loss to the other.12 Similarly in K.N. Mehra v. State of Rajasthan 13 taking of
aircraft temporarily with dishonest intention was held to satisfy the requirement of offence of
theft under s. 378.

In the present case there can be no reasonable doubt that the taking out of the Rafale by the
defendants for the unauthorised flight has in fact given the defendants the temporary use of
the aircraft, for his own purpose and has temporarily deprived the owner of the Rafale viz. the
Government, of its legitimate use for its purposes i.e. the use of this Rafale for the Indian Air
Force Squadron that day.

[ISSUE I.D]: THERE WAS NO CONSENT FOR REMOVING THE AIRCRAFT FROM
THE POSSESSION OF THE GOVERNMENT
The contention, that in the circumstances of this case there was implied consent to the
moving of the aircraft inasmuch as the cadets were, in the normal course, would be allowed
to fly in an aircraft for purposes of training. It is quite clear, however, that the taking out of
the aircraft in the present case had no relation to any such training. It was in an aircraft

8
State of Maharashtra v Vishwanath, AIR 1979 SC 1825.
9
K.D. Gaud, Textbook on Indian Penal Code, (Universal Law Publishing, 2009) at 688.
10
The Indian Penal Code 1862, sec 378.
11
Rakesh v. State of Nct Of Delhi, 2010 (7) RCR (Cri) 1503.
12
See illustrations (b) and 1 of s. 378.
13
K.N. Mehra v. State of Rajasthan, 1957 AIR 369.

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different from that which was intended for the training course for the day. It was taken out
without the authority of the Flight Commander without observing any of the formalities,
which are prerequisites for an aircraft flight and before the appointed time also in the
company of a person like Adarsh who, having been discharged, could not be allowed to fly in
the aircraft. The flight was persisted in, in spite of signals to return back when the
unauthorized nature of the flight was discovered. It is impossible to imply consent in such a
situation.

Therefore, it can be clearly stated that there was no implied or express consent whatsoever of
the Academy officials that authorised the cadets to remove the aircraft from the possession of
the Government.

[ISSUE I. E]: DEFENDANTS HAD DISHONEST INTENTION TO TAKE THE

AIRCRAFT
Indian Penal Code defines dishonest intention as:

"Dishonestly" -Whoever does anything with the intention of causing wrongful gain to one
person or wrongful loss to another person, is said to do that thing "dishonestly".14

The Code further explains “'wrongful gain' --"Wrongful gain" is gain by unlawful means of
property to which the person gaining is not legally entitled.

'Wrongful loss'-- "Wrongful loss" is the loss by unlawful means of property to which the
person losing it is legally entitled.”15

Taking these two definitions together, a person can be 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 person so gaining is not legally entitled or to cause loss, by wrongful means, of the
property to which a person so losing is legally entitled. It is further clear from the definition
that the gain or loss contemplated need not be a total acquisition or total deprivation but it is
enough if it is a temporary retention of property by the person wrongfully gaining or a
temporary "keeping out" of property from the person legally entitled. This is clearly brought
out in illustration (1) to s. 37816 of the Indian Penal Code and is uniformly recognized by
various decisions of the High Courts which point out that in this respect "theft" under the
Indian Penal Code differs from "larceny" in English law which contemplated permanent gain

14
The Indian Penal Code 1862, sec 24.
15
The Indian Penal Code 1862, sec 23.
16
The Indian Penal Code 1862, sec 378.

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or loss17. In the present case there can be no reasonable doubt that the taking out of the Rafale
aircraft by the defendants for the unauthorized flight has in fact given the defendant the
temporary use of the aircraft for his own purpose and has temporarily deprived the owner of
the aircraft, viz., the Government, of its legitimate use for its purposes, i.e., the use of this
Rafale aircraft for the Indian Air Force Squadron that day. Such use being unauthorized and
against all the regulations of aircraft-flying was clearly a gain or loss by unlawful means.
Further, the unlawful aspect is emphasized by the fact that it was for flight to a place in
China. The circumstances of the unauthorized flight justify the conclusion both as to the
absence of consent and as to the unlawfulness of the means by which there has been a
temporary gain or loss by the use of the aircraft. We are, therefore, satisfied that there has
been both wrongful gain to the appellant and wrongful loss to the Government.

Two cadets of air force (one discharged for wrongful conduct and one trainee as navigator)
took an aircraft to China without any authorization. Further, they took the aircraft by
misrepresenting that they had the authorization. it is on record that DK started the engine
himself by misrepresenting to Ram Bihari, the mechanic on duty at the hangar, that he had
the permission of the Section Officer in charge. The defence taken by the accused that they
had taken the aircraft for training purpose and only later the flight got diverted to Pakistan
and therefore, at the time of taking there was no dishonest intention does not stand because
the facts showed otherwise as one of the accused was already discharged and the other was
scheduled for training at a later time on another aircraft. Therefore, it can be rightly
concluded that the defendant has ‘dishonest intentions’ while taking the aircraft out of the
possession of the Government.

Since, all the five essential ingredients of theft are duly fulfilled the defendants are guilty for
the offence of theft under sec. 378 of IPC and therefore should be penalised under sec 379 18
of the Code for the theft of the aircraft.

17
Queen-Empress v. Sri Churn Chungo, ILR 22 Cal.1017 (FB) ; and Queen-Empress v. Nagappa, ILR 15 BOM.
344.
18
The Indian Penal Code 1862, sec 379.

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PRAYER

In the light of the fact, issues raised, arguments advanced and authorities cited, the
Prosecution most humbly and respectfully prays before this Hon’ble Court, that it may please
to adjudge and declare that –

1) That the defendants are liable for the offence of theft and should be punished under
section 379 of IPC.

The Prosecution further prays that the Court may make any such order as it may deem fit in
terms of equity, justice and good conscience.

(Respectfully Submitted)

-Counsel for the Prosecution

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