CASES 1919

Sec. 378 to 380]

individual, and if thcy were n t
custody of a person, whether it be the Government or any other
of thcft was not committed
""
Cattle turne
Govemment the offence
in the possession of the
are still in the posscssion
of the owncr, unless the contrary
out to graze in the pasturc or jungle
cattle is theft. Whcre the taker
sclls it subscqucntly his dishonest
is shown, and the taking of such from that fact.
67
the cattle can be inferred
intention while taking away
to roam at largc remains thc propcrty
A bull dedicated to an idol and allowod
(m) Bul. "s9
but not a
- -

or mischicf,
15

and can become the subject of theft,

of the trustecs of the temple,
in accordance with religious usage.0
bull set at large
in confinement is the subject of theft 7
Peacock. A peacock tamed but not kept
(rn)
-

on all
tank,17 or in a tank not enclosed
-Fish in an ordinary open irrigation
(o) Fish. or in a public river or
creek.
the overflow of a neighbouring channel,"
sides but dependent on
or in a tidal and navigable river,"" are
ferae
the right of fishing in which has been let out,14 but
their free regarded state are as ferae naturae
naturae and not the subject of theft. Fish in of water
said to be in the possession of a person who has possession of any expanse
they are as being in the
they are also regarded
where they live but from where they cannot escape; known as
who owns an exclusive right to
catch them in a particular spot
possession of a person are restrained
of their natural
Fish in an enclosed tank
a fishery, but only
within that spot.176 owner, and are,
time according to the pleasure of the
taken at
liberty and liable to be any
test of possession is, whether the fish could escape.
If
theft.17 The
therefore, subject-matter of otherwise not.1 Fish in
the
become the subject of theft,178
they are unable to escape, they of the government and catching
fish therein
in the possession theft."80 Where
government tank is property intention will amount to
necessary criminal
without a licence and with the were covered by
one

including the plot of the complainant

from one plot to another though
area
various plots is a low-lying
could not be restrained from escaping exclusive
sheet of water, the fish of fish could not be said to be
ridges and such possession
otherwise demarcated by 181
and be a subject-matter of theft.
possession of the complainant
Mad 795.
166. Perumal (1955) Cri. L 280. The Magistrate
NLJ 600: (1954) bestia and res mullius.
167. Adhargir (1953) confuses the two terms ferae should really
Mad 145. In this case the Court declined to interfere.
The conviction
168. Nalla (1887) 11 Court held it was not and
nullius. The High
regarded the bull a res
have been for theft. 348.
Nihal (1887) 9 Al
169. Abdul Qayum (1946)
ALJ 27.
Cal 852; Bandhu (1885) 8 Al 51;
Hiru Mondal (1890)) 17
Chunder Sannyal v. 5 SLR
170. Romesh v. Basarmal (1911)
17 AWN 41 Weir 384; Haji Changal
171. Nanhe Khan (1897) Mad 81: (1878) 1
extent that both
the supply and
Saheb (1900) 24
172. Subba Reddi v. Munshoor Ali irrigation tank has fallen to such an without the consent
If the water in an open of such fish
122: 13 Cri. LJ 22. circumscribed and the catching
is
distribution channels
are dry, the freedom offish
36 Mad 472.
Subbian Servai (1911)
would be theft: (Cr) 47;
Government
of Cal. 402. 19 WR
Katani (1888) 15 Nath Malo (1873)
Ram Surma v. Nichala Hurimoti Moddock v. Deno
173. Maya Cal 388; Cri. LJ 452.
Dome (1888) 15 PWN 153: 37
v. Abar
174. Bhagiram Dome Bux (1936) 17 PLT 189: (1936)
5 Mad 390; Elahi
Revu Pothadu (1882) Cut 740.
(1949) Kar
Mahji v. Arobinda 1 Cri. LJ 496.
1 SCJ419: (1965)
175. Govindha
Roy (1964) LJ SO1.
176. Chandi
Kumar v. Abanidhar
Sreenibash Mahatma
(1928) 29 Cri. (1927) 51 Mad 333;
10 Bom 193; 15 Cri. LJ 77; Nokolo Behara
177. Shaik
Adam (1886) (1914) MWN 168: MWN 728 (1): 55
v.
Kadimsetti Tammayya Reddi (1942) 2 MLJ 556:(1942)
178. Manchu Paidigadu Krishna Reddi v. Muniappa
36 Mad 472;
Subbian Servai (1911) 14 Luck 322.
173: (1943) AIR (M) 34 Thakur Jokhan Singh (1939)
LW 696: 44
Cri. LJ
CWN 4 : 32
Cri. LJ 572;
Haldar (1930) 35
Khan v. Adyanath
179. Kaloo
Singh 1977 Cri. LJ 105 (Raj).
Cri. LJ638 (Ori).
Pooran
180.Statev. B r a h m a n a n d a Das
1970
I8 Bairagi Rout v.
 LAWOFCRIMES&CRIMINOLOGY
[Scc 17% to 1
Fish taken at sca arc in the possession of the Owner of the smack hy
by whicl
the
which they
Subject of larccny 12 arc
ther taken. and arc consequently
taken as soon as are

But chanks (popularly inchuded among shell-fish, but really large molluscs) arc

thefi as heences to gather them are granted by the Government.65 The word 'fish io, Cct of
to an English casc not confincd to vertebrates but includes a winkle. She cording
Shcll-fish arc includer
the word tish.
(p) Catilc.- The removal of animals grazing in open lands where the owner has.
them is theft 85 The illegal scizing of cattle and taking them to the pound is not theft 185

former Nagpur High Court has held that the taking for the purposcs of this section me
dishoncst within the mcaning ofs. 117 ofthe Code. It is not necessary that the takin
wrongful gain to the taker, it will suffice for the applicability of the section if it c must
wTongful loss to the owner.1 A person who steals cattle which are let loose by the owner u
a view to their going to drink water at a
river, commits theft. Where certain cattle
scattered from the herd at the time of a cheetah scare in a
forest, any person who sees
animal straying anywhere and takes it, cannot be saidto do so with a such
dishonest intent and
not be guilty of theft. But if the would
person who takes it, subsequently retains it
as his own. then he will be
guilty of criminal intending to treat it
misappropriation.1
9) Carcass.- Where a person kills a wild animal on the
does not belong to the killer but to the property of another the carcass
proprietor of
by his duly authorised agent, is entitled to demandthe property,
and the latter, either
himselfor
and, if refused, seize the
carcass from the
possession of the killer and such persons help
as him toexercise
but as against any person other than the proprietor of the cstate, orhis right are doing no wrong:
lawfully helping the proprietor or his agent the killer has a his authorised agent or those
carcass. 1s Where a man
buried the carcass of a bullock
right to retain possession of the
and another
person dug it up and carried it suspecting it to have been poisoned
because property as well as away, it was held that no theft was committed,
possession in it were abandoned."91
r) Pigeons.-If pigeons are so far
wooden boxes, hang on the tame that they come home
outside of the house of their every night to roost in
and steal them out owner, and a party come in the night
of these boxes, this is larceny,.192
cote, having liberty of
ingress and egress at all times
Similarly, pigeons kept in an ordinary dove
subject of larceny.193 by means of holes at the top, may be the
s)
Partridges.- Partridges, hatched and reared by
WIth her, and from their inability a
hen,
common
practically under the dominionwhile they remaln
to
182. William escape are
183. Sce
Mallison (1902) 20 Cox 204. and in the powc
Annakumaru Pillai
Clark (1915) 25Muthupayal
v.
184. Leavett v. (1904) 27 Mad 551; Parker v. Lord
185. Aradhun Cox 44. Advocate (1904) AC 30*.
Mundul v. Myan Khan
19 of
1879, (1875) 24 WR (Cr) 7; Karsan
Nga Thein O
(1893) 1 UBR Bapu (1902) 4 Bom LR 626; Kasim No.
(1943) 44 Cri. LJ 640:
186. Jhaman Lal (1943) AIR (0) 280. (1892-1896) 238, Paw Din (1938) Ran 63, (18
Dayal (99) 202:
187. Madra (1906) 10 CWN 228n.
188. (1946) Nag 326.
Lakshmya (1878) Unrep Cr. C
89. Venkataswami
190. Artu (1943) MWN s80:
136.
Rautra (1924) (1943) 56 LW 547:
191.(1869) 4 MHC
3 Pat
549 (1943) 2 MLJ 334: (1944) 45 CI. Lo
192. Brooks (1870) (Appx) 30: 1 Wrir 11
 11. Theft in Enterprises, Organisations and Departments Committed by
Public Servant
Investigations into theft in cnterpriscs, organisations and departmcnts fall into two

categorics-
thetts involving stealing. burglary, robbery with violence, cxtortion or swindling. and
thefts committed by public servants (i.c., crimes rclated to their work) The latter involve
those who misappropriate valuable goods and/or moncy which are undcr their authority
(cither in their accounts or under their custody), and such thcft is characterised by the
fact that their entry into those places is legal.
The criminalistic description of thefts committed by public servants contains information
about the following:
the personalities of those who so misappropriate,
the stolen property
the aims and motives of the robbers;
concealed,
the means by which the thefts were prepared, executed and then
the circumstances in which these crimes were carried out,
the material traces,
the results of the crime; and finally,
crimes.
by the public servants to other
the relation of the crime committed
crimes indicates that theft is
Practical experience in the investigation of occupational
of a few public servants, or groups of both public
usually committed by gangs: groups consisting one
servants and outsiders. Thefts
committed by just public servant also take place.
the following
A misappropriators usually include
group of
enterprise, or
public servants in one particular
workers of just one enterprise; or
public servants and ordinary to one or various state departments;
or

servants of various enterprises belonging

public (departments or

servants and ordinary

workers of several enterprises
public
organisations).
the course of their
work be involved in the production,
in
The misappropriators may or distribution
of such material
accounting, guarding
storage, transport, treatment,
supply, sale,
g0ods In some nstances,
according to their degree of permanence. break up. The
Such criminal groups differ and then they
or just a few thefts,
in order to commit one
together community of
they the basis of their participants
come
on
stable criminal groups, however, operating founded on an
hierarchical structure:
Such groups are
worked-out plan
interests goals, are more dangcrous.
and
in accordance with a specially
all participants act of the part he playec
various roles are delegated, to the significance
share of the bounty in proportion
and each receives a concealing such crime ensures the unity
committing theft
and reliably
The common goal of Garnham (1860) 2 F &F
Head (1857) 1 F & F 350;
CCR 158; Cory (1864) 10 Cox 23;
194. Shickle (1868) LR 1
 LAWOFCRIMES &CRIMINOLOGY
2962 Sec. 378 to 380
such a group. Thev thercfore plan well in advance not oily the means for committin
but they also concoct methods of dhsguising samc. Such groups arc formod
itting the thcft,
cither by the voluntary coming togcther of the various participants;
or by actively "recruiting" intothe group, via blackmail, bribes or various deals
similar mcans, those pcople who are in a position of authority within the dcpartm. with
organisation
The position of cach within the group is affected by the following: the
advantage. from
point of view of the embezzlers, of the work he performs, his criminal experience: and the L
moral-cum-psychological qualities. The relationships between them are formed on a businaahis
like basis and always with the aim of
achieving maximum advantage. In approaching ro
people from a large number of workers in government organs and social
misappropriators try to achieve the privileges, conditions and safety factors organisations tho
criminal activities. This they do necessary for their
by establishing certain personal relationships, by
material and other dependence for the creating a
and by giving all rendering of services of a primarily material character
possible gifts, presents and bribes.
Thefts can be divided into three
theft of money; (2) the theft of groups, according to the type of property stolen:
valuable goods, and (3) the theft of both (1) the
goods money and valuable
The stolen
property may or may not be an item recorded and
official document. In some
cases, the misappropriators steal the
accounted for in some
material
other occasions, they convert valuables for future
use, either by themselves or
other; on
goods into cash, jewels or securities, or they these
misappropriated
services ofa non-material exchange them for other material
nature, or they simply use them as bribes. goods, or for
Greed, and the desire for material
motives of theft. gain and personal enrichment are, as a
rule, the basic
The criminalistic
description typical means of theft is of
methodology of the investigation.
of
The considerable significance in the
stages: (1) the preparation of the misappropriators criminal activity usually falls into four
crime (getting the
working out a plan for the execution of the necessary items for the theft in reserve,
(2) theremoval and crime, organising the gang for the crime, and so on,
material valuables; transport
of the stolen
and (4) the goods; (3) the use of the goods, and/or the
concealment of the traces of the crime.
sale of the
Right from the very beginning of their
to
concealing their crime and the clues criminal ideas, the
The means of
thereof. misappropriators generally resort
committing
position of the public servantsand concealing a theft depend to a large extent on the
charactenstics of the concerned, on the type of stolen rank anu

The means
cnterprise wherein the theft takes property, the specL
on
of carrying out a theft fall place, on other
and
into two circumsian
the means of stealing goods accounted
of that
categories
property which will cause a for. These in turn divide into the means theft
the means of theft deficit o
to appear on
which do not cause the relevant
elevant balance
balance sheet,and
n
as a s
ot
stealing goods
rule occur.
such a deficit. sico
unaccounted
Thefts carrird ut
for. In these instances a deticienY
 THEFTIN VESSEL-JURISDICTION 2963

goods are sometimes committed in thosc cnterprises which produce, store or trade in
material goods (the building trade, industry and so on). The crcation of an unaccounted-
for surplus of moncy is a characteristic factor of theft in trade enterprises
The specific nature of the removal, transport and use of stolen property is affected by the
type and size ofthe goods, by the cireumstances in which the crime was comnittod, and by the
means of transport which thc misappropriators may or may not have at their disposal
The criminal activitics arc also reflected in the physical objects involved in the business of
the enterprise (in the means of production, the tools of the trade, transport and so on), and in the
finished and waste products of this business. Furthermore, insofar as the misappropriators are
as a rule members of the staff of the workers collective, their criminal activity cannot be kept
totally out of sight from other members of the collective. The activities of every cnterprise are
verified and controlled by various authorised persons representing government organs, social
of state. the
organisations and controlling organs departments of In compiling their reports,
latter are able to identify the facts of any illegal activity committed by the misappropriators.
including anything connected with an abuse of public property. Finally, any illegal acquisition of
lead to their
public property by the misappropriators is going to be for their use (it might even noticed by
possession of valuables or participation in drinking parties), and such is bound to be
members of their family, relatives, acquaintances, fellow workers and even sometimes by
outsiders. Regardless of the
outsiders.Regardless of the workers and even sometimes by
the creation of the objective
wishes and intentions of the misappropriators, the result is always
and secondly, for analysing and using
prerequisites, firstly, for detecting the traces of the crime,
thefts and expose the thieves.
the information contained therein so as to identify the
12. Theft in vessel-jurisdiction
) Vessel. -

Theft in vessel-jurisdiction.
clauses act 1897 "ship" shall include everý
As per section 3 clause 55 of the general
not exclusively propelled by
oars.
description of vessel used in navigation water craft,
in Rule 3(a) and includes "every description of
The word "vessel is defined means of
craft and seaplanes, used or capable or being used as a
including non-displacement connected therewith navigable by
on water". On the high seas and in all waters
transportation
seagoing vessels.
Merchant Shipping Act.
of "wreck": Section 510 of the
A wreckedship. - Meaning and derclict found in
"wreck" includes jetsam, flotsam, lagan,
1894, stages: "(1) The expression
or on the shores of the sea or anytidal water." difficulty, but
and lagan did not give rise to any
words jetsam, flotsam was defined
The meaning ofthe In Crossman v. West,15 it
considered in many disputes. at sea without any hope
the word "derelict" was abandoned or deserted
had been with the
or cargo which master and crew
as referring to a ship is left by her
to them
15
A vessel which the vessel may
of recovering or returning the management of
even though
to her, is not a
derelict, deserted by her
master and crew
intention of returning where a vessel is
into the hands of salvors. But, derelict.
have passed regarded as
abandoning her, she is
with the intention of afte-
Thames by the plaintiffs who,
Cas. 160. found adrift on the River bee-
195. (1887) 13 App. a barge
was derelict. It had not
(1875) L.R. 4A&E 460, held that the barge was not a
See also The Zeta a wharf.
It was
196. to
in securing her
recovering it.
succeeded
boarding her, to it or

abandoned
without hope of returning
 2964 LAWOFCRIMES& CRIMINOILOGY Scc. 378 to 380

"Once
a vessel became derelict there was no good
rcason why she should ceasc to be
derelict mercly because she was not afloat but lying on the bed of the sea. It was clcar
beyond
doubt that a derelict ship which sank rcmaincd derclict". The
taking of such a wreck, if donc
within be punished under the Thcft Act.
the territorial limits of England and Wales,
could A
person who finds a wreck within the Unitcd Kingdom, or who brings one into the United
Kingdom. is undcr a statutory duty to notify the receiver of wrecks and faces a statutory
penalty if he fails to do so. However, these provisions do not affect title to the property, when
the wreck is found outside the
jurisdiction, it belongs to the finder in the abscnce of any other
claimant, even if it is subscquently
brought into the jurisdiction.
The jurisdiction of a court in
respect of offences committed on high seas is based on the
principle that the ship on the high seas is a floating island anda ship on the
to the
territory of the state the flag of which it flies, for just as in its ownhigh seas is assimilated
committed on the high seas could not territory. Offences
previously be tried by many courts but now by virtue of
Adnirality Offences Act 1894 and the Merchant Shipping Act
offences are placed within the jurisdiction of 1958, the jurisdiction to try
ordinary criminal courts
The Merchant Shipping Act 1894 further
makes provision for the trial of such offences
the ordinary tribunals, while the courts by
(colonial) Jurisdiction Act enables the courts in this
country to regulate the procedure at the trial and the sentence
by the law of India.
Merchant Shipping Act 1894 stands
461 of the Merchant
replaced by the provisions of sub section 2 of section
Shipping Act 1958. By virtue of section 437 to 440
of
Act certain offences can be tried and Merchant
Shipping
the Judicial Magistrate of Ist Class.
cognizance can be taken by
Metropolitan Magistrate or
Section 439 runs as "No court
Metropolitan Magistrate or a Judicial Magistrate of Ist Class shall try inferior to that of a
actor ruling or any offence under this
regulation thereunder. Further section 440 gives special
Metropolitan Magistrate or Judicial Magistrate jurisdiction to the
29 of the code of criminal
Procedure 1973.
notwithstanding anything contained in section
Note Please see further commentry u/s 3 and 4 of this code for the purpose of
jurisdiction.
13. Taking need not be with intention of
It is not retaining property permanently
necessary that the taking should be
the thing taken.197 The
remarks of Norris, J, in Adu
permanent or with an intention to appropriate
regard to the charge of stealing..there is not Shikdar vs. Queen-Empress. "With
only no evidence that
198
convert it (the the prisoner intended to
property) to his use, and make it
accordance with the English lawown on the
permanently his own property are in
theft as given in the Code. subject, which is
The learned Judge seems to quite different from the definition of
Code atemporary have overlooked the fact that
that X, a
taking might constitute theft [vide ill.(1)J. The Hindus of a
under the
Mahomedan, who owned a calf, was going to sacrifice locality apprehended
was come to
by which X consented that the calf that calf and an agreement
by, but Z, a Hindu, who
arrived on the scene
might be tied up in Y's
house, which was close
97.
Sri Churn Chungo (1895) 22 Cal. 1017
subsequently carried away the calf without the
Weir 405, Tiruvengada Chari (1881) 1FB; Nabi Baksh (1897) 25 Cal. 416;
Nagappa
Aiyan (1883) 1 Weir 407; (1890)
Wcir 407; Krishna 15 Bom 344
N9ot1897
Mchra
v. Unrep Cr. C. 908,
Moulabax (1956) MBLRJagannath Misra (1929) 10 PLT 483 30 Cri. LJ Shoma
(1880)
Chatur (1897) Cr. R.
198.
(1885) 11 Cal. 635, 156. 546:(1929) AIR (P) 429, Inder
644
 Sec. 378 to 380] TAKING NEED NOT BE WITINTENTION 2 5

consent ofX or Y to prevent all chances of the calf being sacrificcd and 7 was convicted of
It was hcld that the calf, though it was tied up in Y's house, was still in the posscvsion f
fheft.
X and Z renmoved it and Z's rcmoval of the calf was "dishonest" though his motive was onlyt
from being killed, and that the act of Z, therefore, amountcd to thcft.19 The accuscd,a
save:

to his housc and madc it availablc to

Superintcndent in a governnncnt officc, took a certain filc
filc by other papcrs, and thcrcaftcr the accuscd
another, who replaced some papers in the of
thc Supreme Court hcld the accuscd guilty
returned the file to the officc. On thesc facts
theft onc nccd not take movablc propcrty permancntiy
theft. Subba Rao, J, obscrved, "To commit would satisfy the
of another with the intention not to return it to him. It
out of the possess1on anothcr person though hc
definition if he took any movable property out of the posscssion of
"200
intended to return it later on.
in section 378 of I.P.C. that the gain or loss
It is clear from the definition of theft
total deprivation but it is enough if it is a
contemplated necd not be a total acquisition or a
of property by the person wrongfully gaining or a temporary "keeping out
temporary retention
of property from the person legally entitled.

The appellant with his co-accused were receiving training flying as a cadet. They removed
of the formalities which are pre-
an Aircraft without
authorisation and without observing any
some time in the forenoon
the same day
for an aircraft flight. It is also admitted that
requisties Indo-Pakistan Border.
in Pakistan about 100 miles away from the
they launched at a place
the unauthorised fight has in fact given
The taking out of the aircraft by the appellant for
for his own purpose and temporarily deprived
the appellant the temporary use of the aircraft, the use
aircraft, viz. the Government, of its legitimate use for its purposes i.e.,
the owner of the use being unauthorised
Harvard aircraft for the Indian Air Force Squadron that day. Such
of this was clearly a gain or loss by
unlawful means. So
and against all the regulations of aircraft flying
the appellant committed the
offence of theft.201
of
movable property permanently out of the possession
commit theft one need not take
To
of the property of another
another person. A temporary period of deprivation or dispossession
if he temporarily dispossesses
loss to the other. That a person will act dishonestly
causes
378 of the Indian Penal
is made clear by illustrations (b) and (1) of Sec.
another of his property
Code.
friend of the appellant,
of the prosecution is thatRam Kumar Ram was a
one
The case Alvar. At the
Superintendent to the Chief Engineer's office,
Pyarelal Bhargava, who was a
the file Ex. PA/1 from the
Secretariat
instance of Ram Kumar Ram, Pyarelal
Bhargava got Ram
December 16, 1948, and made it available to
before
through Bishan Swarup, a cleark, him. Thereafter the appellant
on December 16,

Kumar Ram, for removing the affidavit filed by has not

facts it was Contended that the prosecution
1948 returned it to the office. On
these of
movable property within the meaning
took away any
made out that the appellant dishonestly
Sec. 378 of the Indian Penal Code. 202
convicted of the offence of theft.
The appellant has been rightly
429.
PLT 483 30 Cri. LJ 546 (1929) AIR (P)
99. Jagannath Misra (1929) 10
178 (SC).
200. Pyare Lal (1963) II Cr. LJ 1957 Cri. L.J. 552.
AIR 19S7 S.C. 369;
201. K.N. Mehra vs. State of Rajasthan, Cri. LJ 178.
AIR 1963 S.C. 1094; 1963 (2)
207 Pyarclal Bhareava vs. State of Rajasthan,
 LAWOFCRIMES &CRIMINOLXGY
(Sec. 378 to 380
This section abrogates the distinction made by the
English law betwccn posscssion' an
custody But
23
it docs not express the complete
thought of the Lcgislaturc on the question ofd
possession Posscssion' involves the idca of proprictorship, the right to cxcrcisc
control over the thing power or
posscsscd. Possession must be conscious and intelligent possession
not merely the and
physical presence of the accused in proximity to the object.204
According to English law
used to mean 'such a relation 'possession'
is used as regards the
owner, whercas 'custody
towards the thing as would constitute is
having custody had it on his own possession if the person
law would be account What would be a mere "custody under English
'posscssion' under the Code.
Corporeal property is in a person's
Cxclude others from it, and possession when he has such power over it that he can
intends to exercise, if that power on behalf of
he is a trustee. But a necessary,
of some person for whom
himself or
intention to deal with wife, a clerk or a servant, has not this
things in their charge as owners. power or
merely according to English
law. They are, therefore, said to have
custody
A man's
goods are in his possession, not
but also when
they are in a place where he only while they are in his house or on his premises,
feed on common
land), or in a place wheremay usually send them (as when horses and cattle
bunies moncy or ornaments they may be lawfully deposited
in his own
land, or puts them in any other by him, or if he
14. Oysters secret place of
deposit.
The question whether
pearl and edible
been considered in
America where it was saidoysters
that
are
capable of individual ownership has
pearl and oyster bed, but, since both there could be no
can be ownership in a natural
to fish or
animals, they become subject ofplanted and are more akin to inanimate objects than
where they do not naturally grow and the private ownership, if they are planted in a
that they were
planted oysters.206 place is marked and identified place
giving notice to others
15. Abandoned property
But there can
be,
property in a bull set atobviously,
no
property in goods or things abandoned. So
the liberation of a large accordance with the
in there can be no
bull at the religious precepts of the Hindus
may continue to feed performance
of a shradha
ceremony, though the former enjoining
it. Such was held to be the case where owner
disappeared and the owner gave him up for a bullock
followed a cow and
accused, who though lost. The
acquitted of theft were, bullock was afterwards found with the
misappropriation under Sec. 403. But if nevertheless,
convicted of dishonest
possession of the accused then 206he some time had
could not have been elapsed between the loss and
misappropriation.
determine having
0f course the
question in such a case is one
convicted even of criminal
regard to the circumstances of each of fact which the
Court has to
203. Fateh Chand case, for because a bull has been set at
204. Wahib Basha Agarwalla (1916) 44 Cal 477
(FB).
205. (1961) 1 Cr.
Stephen's Digest of CriminalLJ 533. Sec Narayanan Sukumaran
206.Taylor, 72 Am. Dec. 347; Law, page 243. (1961) Ker. 510.
andhu,
208. Nga
8 A.
S1;; Nihal, 9A.Dowling, 11 Cox. 580.
209.R. v.Shwe
Conn Zan, 10 Bur, IT 348: Hiru Mondul,
10 17C, 81? Contn
 large, it does not follow that the owner has relinquished his proprietas thercin, and that it 1s,
therefore, a fair ganme for any one to kill. The mere fact that it was allowcd to be at large does
not signify its abondonmcnt, though it is certainly a material element to consider in judging of the
question of possession, which has neverthcless to be decided upon other considerations, such
the persons who fed it and othcrwisc madc themsclves responsible for its upkeep and
as
protection.210

as to have left in the

Thequestion, whether a thing has becn so absolutely abandoned
his intention. The owner may, for instance, jcttison valuable
owner no right, depcnds upon
in which case he parts with their possession but not
goods to lighten his ship in an emergency, disowned. And
a wreck may be abandoned but not
their ownership which still vests in him. So
abandon absolutely or was it merely an abandonment
the question in each case is, did the owner
it as soon as a chance offered? In England,
from necessity with the intention of repossessing
there is evidently presumption in favour of
the continued ovwnership, for theft from a wreck is
in which no person has any determinate
punishable by the Larceny Act, 1861.21 Of otherthings, theft cannot be committed.212
till seized,
property, such as treasure-trove, waifs, ect.,
16. Property may be valueless
The section only speaks of "movable property"
but not that it should be property of any
the "property" implies some value, at least a farthing, and
value. Under English law, concept
that term in this country. The draftsmen stated that property of little
the same notion adheres to
from
mention cases of travellers who tear twigs
value would be dealt with under Sec. 95. They similar acts which
trees hedges or draw water from another's well and numerous
wayside or
another
would be folly to describe as theft, unless
the act was done maliciously to deprive
not be valuless, though
But it must be remembered that property may
person of his property.215 twelve Judges in a case referred to them
it may not have a present value. It was so held by
and stamp of the notes of county bankers
where the question was whether "obsolete paper
have been reissued constituted property", the Judges
which had been discharged but might and the
was the price of the papers, the printing value,
holding that, though their present value
of larceny 214
stamps, they had potential value which made them the subject
a
The piece of
does matter that the thing taken is of little or even no intrinsic worth.
So not to
written is virtually valueless, but there can be no objection
is
paper on which a ciheque seriousness of which is measured by
the face
treating its taker as being guilty
of a thcft (the
he steals not simply
if he to extract the value from the cheque);
value of the cheque manages of
action that it represents. In other situations too, a piece
the piece of paper, but the thing in as where it
contains a trade
out of all proportion to its intrinsic worth,
paper may have a value
secret or an official secret.
which is based on the
Section 95 of the IP.C.
This section has to be read alongwith minimis non curat lex.
take account of trifles. The maxim de
maxim that the law does not
conflict with the
which is otherwise in
no
been decided in this
case

all that appears to have

210. Nalla, 11M. 145. This is c. 87, s. 8.
other cases on the subject. c. 29, s. 18,
and 7 Will. IV & 1 Vict.,
re-enacted from 7 & 8 Gco. IV,
s. 64,
211.24 & 25 Vict., c. 96,
c. 33, s. 24.
212. 1 Hale 510: 1 Hawk, Mohamed Khan, 8
C.P.L.R. 15.
893: (1925) s. 21; for they might be at any moment joined:
213. Moti, 83 I.C. bank-notes are property,

214 Clark's case, 2 Leach

1036; so the halves of the
 2068 1AWOFCRIMES & CRIMINOLOGY
(Scc. 378 to 380
17. Procedure
Procedure-compoundable, cogmzable, non-bailable
The affence of thefi is
Cognizable the samc is Non-bailablc and may bc tricd by magistrat.
The afficnce of theft u/s 370 1P.C. is
not cxeeed two hundred and
compoundablc where the valuc of the property that docs
fifty nupees in the samc way thc affcncc of 381 I.P.C.
theft is clerk or servant of
property in of master, where the valuc of
wherc the
stoien does not excecd two hundred andpossession the property
fifty nupces. Thc affence may be
the owner of the
propcrty stolen. (as per section 320 and table their under of compounded with
18. Cr.P.C.
Legal presumption from possession
Court may
legitimatcly draw a presumption not only
of the fact that
possession stolen articies were found committed the person in whose
murder215 robbery but also that he committed the
Ordinarily. the
certain cases the law ingrcdients
of the offence
must be all established
recent
possession. It is
dispenses with the proof of dishonesty and infersbyit cvidence. But in
a man, who
is in
provided by the Indian Evidence Act that the Court from the fact of
received the goods possession of stolen may
goods soon after the theft, is either presume that
clausc knowing thcm to be
stolen, unless he the thief or has
obviously assumes a previous theft, can account for his
possession is defended on a claim and, as such, it has possession.216 This
be proved. of right. In that case the
no
application to
theft cannot be
a case where
The assumed, and must
found in presumption must be both natural and
possession of a common article of reasonable. For instance, suppose a person is
which people in the household utility,
it was the station of the accused are say brass pot of
a
common make,
wont to
proceeds oftheft that had taken
a use. Could there be
any presumption that
possession of it as such? On the other place, and that the accused
accused is of such a rare
or unusual
hand, where the property found was in
conscious
found to be in in the
in that case possession of it, such a
nature that the
accused could not havepossession of the
considers it presumption
been
that the law would be natural and ordinarily
proof of cach link. unnecessary to complete the chainirresistible, and it is only
of evidence be
The formal
to be read presumption permitted to be drawn U/s 114
found in the
along with the
important time factor. If Illustration (a) of the Evidence Act, has
possession of a person soon after the ornaments or things of the deceased
permitted. But if several
months expire in the murder, a are
be drawn to the
circumstances interval, the presumption presumption
of guilt may be
of the case. may not be
In this case
recovery was made after 5-1/2
permitted to
Act was not
drawn.217 months. So the
The
recovery of the stolen
presumption
U/s 114 of the
days after the goods was made from the
dacoity. prosecution
of the
So three
presumptions are possible from the appellant three
215. Mukund Kundu recovery,
Mishra vs.
4(a), Indian Evidence State of MP, 1997(1)
27.Tulsiram Kamu Act (1 of Supreme (Cr.) 391.
vs.
State, AIR 1954 1872), Hazari, (1930) O.
Cri. LJ 225. 353, Zihir Nat,
SC 1; 1954
(1934) A. 445
(2).
 1) That the appcllant took part in the dacoity.
stolcn in the Commission
(ii) That he received stolen goods knoving
that the goods werc

of a dacoity: and
them to havc bccn stolen. The
(ii) That the appcllant reccivcd these goods knowing
in thc casc.
choice to be madc, however, must depcnd on thc facts provcd
It is quite clear that all the property which was stolen by
the dacoits was not recovcrcd
werc a length of muslim
from the appellant. the only articles that werc found with the appcllant
is stated to be a cloth
(Exh. 2) and a length of charkhana doriya (Exh. 3). The appcllant
merchant and he may well have acquired these goods as a receiver. It has not been shown that
in the village in which the appellant lived it was known that a dacoity had taken place and goods
had been stolen in the dacoity
On the facts of this casc it seems that the only legitimate presumption to be drawn is that
the appellant knew that the goods were stolen but he did not know that they werc stolen in a
dacoity. The appellant, therefore, can only be convicted under Section 411, Indian Penal Code.
That for offences u/s 412 IPC posecution has to show. something more than the mere
possession. If the prosccution has shown only possession of the dacoity goods, the proper
section to use is 411 IPC 218
If there is other evidence to connect an accused with the crime itself, however small, the
finding of the stolen property with him is a picce of evidence which connects him further with
the crime. There is then no question of presumption. The evidence strengthens the other evidence
already against him. It is only when the accused cannot be connected with the crime except by
reason of possession of the fruits of crime that the presumption may be drawn.
In the present case, the goods stolen were a large quantity of cloth taken for sale to the
market. These goods were not sold and were being taken back to the dealers by the cartmen.
A large number of persons said to be 20 in number pelted stones at the cartmen and looted the
property. Immediately afterwards a number of searches were made the goods were found with
various persons who were prosecuted as offenders and they have been presumed to be involved
in the dacoity itself.
It is impossible to think that these 20 persons were merely recievers of stolen property
from some other 20 persons who were the dacoits. It is legitimate thercfore to raise the
presumption in this case that the persons with whom the goods were found were the dacoits
themselves. The presumption has becn drawn in this case. The conviction ivas theretore correct
in all the circumstances of the case.21
Where the explanation of the accuscd to the possession of the stolcn property is not
accordance with Sec. 114,
Tcasonably true, a presumption would immediately be drawn in
illustration (a) of the Evidence Act 220

+1 +hat in nacceceion of a ver arae

 2970 LAWOFCRIMES&CRIMINOLOGY [Sec. 378 to 380

found in the possession of the appellant soon after the theft. On the country, the bulk of stolen
articles recovered firom the appcllant soon after the theft coupled with the other circumstances
of the case warrant the presumption that the
appellant himself committed the theft.221
The presumption from recent
possession of stolen property is an optional presumption of
fact under Sec. 114 of Indian Evidence Act. It is
open to the Court to convict an
using the presumtion where the circumstances indicate that no other reasonableappellant by
except the guilty knowledge of the appellant is open to the hypothesis
prosecutioon.
In this case, the
appellant had given a fairly acceptable explanation. The prosecution had
been unable to repel the effect of it.
The owner of the truck, S.D. Sutar, had made
which ndicated that the admissions
prosecution case of an unlawful
likely. It is more likely that the appellant had beenpossession
was not on the of
part the appellant
he might untrusted with the truck in order that
repair it and realise the costs.222
It is
proved that the appellant was in possession of
found be in the shape of biscuits
to gold with foreign markings which was
admitted that the gold was kept in a secret chamber of the
safe, and that the accused
whose identity he was not
brought from outside the
country and was given to him by somebody
prepared to disclose.
person who had given him the gold and if he also Thus,
the appellant knew as to who was the
he must have known where the know, as he says, that the gold was smuggled,
person who delivered the
or without
permit because at the time ofthe occurrence thegold to him brought it under a permit
under special circumstances. import gold was banned excepting
of
why the
Having regard to the
totality of the situation, there is
under
prosecution would not be entitled to call into aid the combined effect no reason
ss. 106 and 144 of the
Evidence of Act.223 of the presumptions
The articles were recovered
very son after the dacoity had taken
proved to have been stolen in the course of the dacoity, the case of place and had been
within the ambit of Section 412 the appellants
IPC. clearly falls
The conviction was altered
from 395 IPC to that
was reduced from
four year RI to 2 under Section 412 IPC and the sentence
years RI.224
The nature
presumption under Illustration (a) to Sec. 114, must
the evidence adduced.
No fixed time limit can be depend upon the nature of
laid dowm to determine
recent or otherwise and whether possession is
each case must be
amounts to recent judged on its own facts. The
the stolen article is possession sufficient to justify the question as to what
were such as were
or is not
calculated to pass readilypresumption
from hand
of guilt varies according as
not likely to to hand. If the stolen article
pass readily from hand to hand the
elapsed cannot be said to be too period of one year that
during that period. long particularly when the
of the
There was no appellant had been abscondidng
lapse of time between the date
stolen property.4 of his arrest and the
recovery
221. Ayodhya Singh vs. State of
222.
Karnal Singh Uttam Rajasthan, AIR 1972 SC 2501; 1972 Cri. LJ 1692.
1976 Cri. Singh State of
LJ 842;
vs.
Maharashtra, AIR 1976 SC 1097;
(1976) 2 SCR 747.
223.(i) State of Punjab vs, (1976) 1 SCC 882; 1976 SCC
Gian Chau i (Cri.) 204:
 L E G A L P R E S U M P T I O N F R O M P O S S E S S I O N
2971
Sec. 378 to 380] a c c u s c d is stolen property
scized from the be asked to
that the propcrty can the accuscd
burden to prove
However the burden is
dischargcd
about the place of
after this is found
ncar

the prosecution. Only If a person

lies on crimc and is subscquently
possession of the scized articlcs the c o m m i s s i o n of the
explain his beforc o r after satistactory
explanation,
theft immediatcly he fails to give any
of accused w a s found
in
property which of
commission

stolen where thc

of
found to be in posscssion drawn that hc was a thicf.
Thus
that he had
committed
may be it w a s presumed
the presumption stolen property possession of
and uncxplained possession of
cvidence against
him is his recent
recent
the robbery."
But only if the receiver of stolen property 22
the murders and would be that he
was a
the better presumption to be considered
the stolen property, of stolen property is
what is is not a recent possession
or woollen cloth in an
The question of stolen. Thus, where two ends of
the nature of the article were in the possession
with reference to each, were lost, and
consisting of about twenty yards held that this
unfinished state, the state, it was
being stolen, and still in
same
accused two months after came by the
ofthe to call on the
recent
accused to show how he
was a possession sufficiently of a large
was found in possession
Where within 17 days of the theft the accused
property229 thief and not the receiver of
stolen
number of stolen articles shows that he was himself the
found
is not one wherein one or two or a very
few of the stolen articles were
goods. The case
from him.
in possession of the accused. On the contrary
the bulk of the articles were recovered
after
The number and nature of stolen articles (i.e. gold
and silver ornaments) recovered soon
that the accused had committed the
the incident from the accused raised the presumption
relied upon to prove thett or
theft.250 Where mere recent possession of stolen property is
dishonest possession, such possession must be exclusive.231

question whether a presumption should be drawn under Illus. (a) of S. 114 is

a matter
The
which depends on the evidence and the circumstances of each case. The nature of the recovered
articles, their manner of acquisition by the owner, the nature of the evidence about their
identification, the manner in which the articles were dealt with by the accuscd, the place and
the circumstances of their recovery, the length of the intervening period and the ability or
otherwise of the accused to explain the recovery, are some of those circumstances.
The presumption permitted by S. 114, Ilus. (a) does not arise util the prosecution has
established three facts, namely, the ownership of the article in question, the theft of those
articles and their recent possession by the accuscd. No fixed time limits can be laid down to
determine whether posscssion is recent or otherwise and every case must be judged on its own
merits. The presumption of guilt varies according to whether the stolen articles are or are not
calculated to pass readily from hand to hand and, therefore, the importance to be attached to
possession must vary with the circumstances of each individual 233
Inability to account for possession of property satisfactory- Property cannot be believed
to be stolen property or one obtained by fraudulent means.234
226. Sathian 1971 Cri. LJ 1635 (Mad).
227. Baiju vs. Statc 1978 SCC (Cri.) 142.
228. Udaya Padhan (1965) AIR (Orissa) 123.
229. Partridge (1836) 7C&P 551. See Poromeshur Aheer (1875) 23 WR (Cr) 16; Burke T
230. Ayodhya Singh1972 Cri. LJ 1696 (1884) 6 All 224, 227.
231. Nga Tha Dae (1996 ) RILR 170 (SC).
 2972 LAWOFCRIMES & CRIMINOLOGY Scc. 378 to 380

A Court may. in appropriate circumstances, presume that a man who is in possesion of

stolen goods soon aftcr a theft, is cither the thief or has received thc goods knowing them to be
stolen unless he can account for his possession, becausc it he cannot the thict or to have
reccived the goods knowing them to havc becn stolcn. This applics to property cirminally
misappropriatcd which is also "stolen property": AlR 1945 Mad. 208: (1945) I MLJ 202. But
sec contra. Iilus. (a) to S. 114 relates only to stolen property obtaincd by committing thcft. In
the ease of property obtained by criminal misappropriation, although such propcrty would no
doubt be stolen property, the inferencc that a person who subscqucntly got possession of such
have known that it was "stolen property", cannot be drawn in the case of such
property must
propert:
In order to
rcbut the presumption arising under S. 114 (a) of Evidence Act from recent
possession of alleged stolen articles, the explanation of the accused of such
reasonably convincing as to throw a doubt on his guilt; but a mere denialpossession
must be
so
of the prosecution
story or any assertion inconsistent with facts
proved by the prosecution, cannot amount to an
explanation
Act. 236
to make the
presumption unavailable to the prosecution under S. 114 (a) of the
The words "receives" and "'retains" are
114 of the Evidence Act, generally used together and though Illus. (a) to S.
expressly refers to dishonest receipt of stolen property, a
presumption
about dishonest retention of the stolen
illustration 237 property may equally be made by virture of that

Though Illus. (a) to S. 114 only mentions a case of ordinary theft, it is

its principle applies not well-established that
only to ordinary cases of theft, but also cognate offences such as
dacoity and robbery: ILR 25 Pat. 262. S. 114 is general in its terms.
and the fact that the section does not Illus. (a) is only an illustration,
mean that where the accused is in
provide illustration with reference to a dacoity does not
an
possession of property stolen at a dacoity, no
dacoits or that he had dishonestly presumption
can be made either that
he was one of the
retained the property, received or
knowing or having reason to believer that the
having reason to believe that it possession
transferred by dacoity or knowing or had been
is undoubtedly true that the presumption of guilt from recent and was stolen property.235 It
stolen property is not confined to cases unexplained possession of the
of theft but may be extended to
No invariable rules can be
laid down when and what graver offences also.
exclusive and uncxplained, presumption may arise from recent
Circumstances of each case.239
possession of stolen
property, and it depends upon the facts and
The essence of
presumption that arises under S. 114, Ilus. (a) is that when the
rclating to the ownership, theft and facts
may draw the inference that the possession of the articles have been established, the Court
accused
knowing them to be stolen. Illus. to S. was either the thief or that he had receiyed the goods
(a) I14 of course, only mentions a
ut it is well-establishedthat its case of
ordinary theft,
cognate offences, such principle applies not only to cases of
as, dacoity and
robbery. ordinary theft, but to
235. AIR
236. AIR 1944 Mad.
Mad. 26
26:
237.11.R
23
1952 Cu 83: (1943)
(1958)Mys. 2 MLJ
1952 Cr, LI
151
334. See also (1950) 1
MLJ 792: 1950 AL YHR 201
 POSSIESSR.
P R E S U M P T I O N
FROM of cach
c i r c u m s t a n c c s

LEGAL
of the in dacoity
Sec. 378 to
380]
considercd
in the light thcir
rcmoval
that
i n f c r c n c c is
has to be thc accuscd,
of presumption produccd by thc proper
This rule of the
articles cstablishcd,

oWnership havc bccn

Where the accused
case.
of them by the to cascs ofordinary
and the
production
and not
reccivers.20

not only been

dacoits Act, applics facts havc
the Evidcnce nccessary
S. 114,
were
they othcr possession
of lllus (a) to and whcn b c i l e v c that
likc dacoity to, to
The principle offences
takcn
rccourse Convictcd
accuscd was
cognate c a n bc the
under S. 114,
also to and
theft but
the
presumption of dacoity 412, Penal Code and the only
commission

established, by
transferrcd
under S. commission

propety
was
accused is
chargcd soon
aftcr the
ofthe stolen Wherc a n property
Penal Code. of stolen
under S.
412. him is the
recovcry
411.241
against under S.
proved
property be only will not only
Act, 1872,
circumstance

the
conviction may Indian
Evidence
connected

ofdacoity, under S. 114, Illus. (a) of the robbery and

larceny
The presumption other offences
like murder,
vicw of the
opinion of
also to mistaken in

apply to a n
offence of theftbut presumption
held to be whcn the
concerned

Observations regarding arises only of

with thef. a presumption of possession
of raising reason
The question
in question except
by
Supreme Court. connected with the crime
accused cannot be
a
in the
crime.243
the accused giving
goods
concerned
which be
can
rebutted by establish
bound to
under Illus. (a) is one
question. He is not
A presumption property in of
possession of the There is n o question
explanation of his innocently.
the property the accused is
reasonable an
reasonable doubt
that hc obtained given by
all accused. If the explanation
beyond shifted on to the to acquit the
being the Court is bound
the o n u sof proof one which may
well be true,
reasonable one and
eminently that it is true.244
satisfied affirmatively the
if it is first be proved that
even
not
accused,
S. 114, Ilus. (a), it must
presumption under that there w e r e
no
In order to raise a
possession
of the accused and
reasonable
in the exclusive create a
view or which could
wvas
stolen property
circumstances which could accord with contrary
245
doubt in a judicial mind about it under S. 114 (a) is
for drawing a presumption
conditions precedent recent but
One of the main has not only to be
with the accused. Such possession without
possession of stolen property from the house of the accuscd by itself
of the articles of the samc with
the
also exclusive. Mere recovery exclusive possession
further materials, may not be
sufficient to establish in llus. (a)
is covered by the expression "soon after
accused. The question as to
what period draw thi1s
each The Court is not bound to
circumstances of case.
must vary according to the circumstances of a particular
ask itself whether in the
must always
presumption and the Court can be drawn.0
is one which in fairness to the accused
case the presumption

240. 1960 BLJR 268: ILR 39 Pat. 361.

241. ILR (1958) Cut. 131: AIR 1958
Ori. 106. 2 Crimes (1el.).
Cr. C. 121 (Del.); (1984)
Bom. LR 830: 1970 Mah. LJ 555; 1980 Chand. I.J 348.
242. (1970) 72 on: (1973) 2 Mys.
Foll; AIR 1963 Mad. 476, Rel
429; AIR 1952 Raj. 97 [It is enough if thc
AIR 1956 SC 54
243. AIR 1972 SC 2501;
1942 Pat 439; AIR 1951 Kutch 10; ILR (1951) Raj.
244. 23 Pat. LT 18: AIR 1958 Ori. 106. Sec also AlR 1941 Oudh
ILR (1958) Cut. 131l; AIR
explanation is not inherently or palpably false]:
AIR 1944 Sind 113.
618: I1LR 17 Luck. 182; ILR (1943) Kar. 371;
MPLJ 862; AIR 1929 Sind 9 (DB).
245. 1959 MPC 638: 1959 Jab. LJ 576: 1959
325.Sec also (1945) 47 Bom. LR 63: AIR 1945 Bom. 292: AIR 1954
246. (1941) 43 Bom. LR 629: AIR 1941 Bom.
Mad. 433.
 2974 LAWOF CRIMES & CRIMINOLOGY
The presumption under lllus.
Scc. 37% to 3)
(a) to S. 14, Evidcncc Act, can be raiscd
person is found in posscssion soon after the theft. only when
Lapsc of timc is an
considered. Where the casc is one of
thcft of a bicycle, it has to be borne important factor to h
in mind that it
changes hands: when it is not of any grcat valuc, a pcrson who is found in readil
12 months after the posscssion
allcgcd theft cannot safcty be presumcd to be guilty of thcft or of of it aho
of stolen property possession
knowing it to be stolcn, and he cannot be requircd to cxplain how he has
come by it, in suclh
circumstanccs no conviction under S. 411, IP Codc, can bc
sustained 247
In case of
recovery of stolen property from the accused long after the
presumption can be raised.245 Where the theft, hcld, no
quite frequently or is commonly availableincriminating thing is one which may change hands
and is recovered from the accused
after the theft, held, no many months
presumption
property can be drawn against him.249
that either the accused was thief or a receiver
of stolen
The qucstion as to what amounts to
recent possession sufficient to justify the presumption
of guilt in a particular case varies
according whether the stolen article is, or is not likely to
to
readily pass from hand to hand. But the weight and nature of such
presumption must vary
according to the gravity of the offence and nature of the property involved.250
period of nearly eight months was held not sufficient to take the case out of ambit of [Efflux
of a

Articles like muskets and Police great coats are not illustration].
likely pass readily
to from hand to hand,
and their possession within 10 weeks of the
theft can well be said to be recnt.231
In order to raise legitimately the presumption of theft possession of stolen property should
be exclusive and recent.252
In order to raise a presumption under Section 114, Ilustration (a) it must first be proved
that the stolen property was in the exclusive possession of the accused, and that there were no
circumstances which could accord with contrary view or which could create a reasonable
doubt in a judicial mind about it. 253
The prosecution must establish, not only that the stolen property was recovered from the
house or other place in the occupation ofculprit but also that the incriminating article was in the
housc or other place and the culprit was fully aware of its presence there.
Fact of recovery of railway property from verandah and adjoining land of housc of accused
- Not conclusive proof of his possession over them- Prosccution must prove that recovered
articles were in use and possession of the accused.23
19. Presumption against head of family
In the case of a family living jointly in the same house the hcad of the family is presumed
is rebuttable.255
to be in possession of any illicit article found in the house. The presumption

247. 47 Cr. LJ 599: AIR 1946 Sind 153.

248. AIR 1918 Cal. 243 (D.B.); AIR 1928 Lah. 687, AIR 1926 Lah. 528.
249. 1948 Raj. L. W. 225.
AIR 1959 J&K 105.
35 C 801: AIR 1928 Nag. 213; AIR 1945 Nag. 1; AJR 1952 Him. Pra. 68;
4
3
5 Nag. LJ 17: AIR 1945 Nag. 1: ILR (1945) Nag. 151.
AR 1929 Sind 9(10): 29 Cri. Li 924 (DB); AIR 1934 Rang 80 (82): 35 Cri. LJ 99*
23.1959 MPLJ 862; 1972 Assam LR (Gauhati) 128.
55. 1991 Ci 0 (231): ILR (1945) AlI 290: 47 Cri. LJ 104; Air 1921 Pat. 499 (500)
255. 1991 Cri. LJ
256. AlR 3065 (3069)
1953 Mnd i (DB) (AI). .
In 1914 Cal, 396
 PRESUMPTION AGAINSTUEADOFFAMILY 2.975
Sec. 378 1o 3801

thc family was prescnt at the timc of

Where, of the accuscd who was the cldest of
one
such a placc in
and the bag was rocovcrcd from
the recovery of bag containing stolen goods that he had control
aware of its cxistencc,
it can bc presumcd
the housc that he must have becn cither cxclusively or jointly with other
in law in posscssion ofit
over the bag and was, thereforc,
257
members of the houschold
hcad of a fam1ly is in possession of everything
father or
There is no presumption that a
found 2
neither can it be presumed
that hc is in control of anything so
containcd in his house; several malc and female
found in a house occupicd by
to a s s u m e that property
It is wrong of the hcad of the family
should be considercd to be in possession
members residing therein form the
have no place in cases in
which possession and criminal intent
The assumption can
assume that cveryone residing
in
It is equally unwarranted to
essential clements of an offence. recovered from it.2
be in possession of an article
the house should be deemed to
owner of the house, he
the head of the joint family or the
Mercly because the accused is
cannot be credited with
constructive knowledge of a hidden thing.280
the
are charged with joint illegal possession it is incumbent on
Where twvo or more persons or (b)
accused had either physical or constructive possession
State to prove (a) that each of the or constructive on
behaif of
either physical
that of them had possession thereof
one or more
latter.251
themselves and the other accused to
the knowledge of the
father No
No evidence
from house occupied jointly by accused and his
Article recovered
Article cannot be said to be in possession of
was recovered-
as to which portion of article in house- His wife barely
acquiescing in keeping
accused.252 Husband storing looted property to sustan charge
under S
Such passive partnership is not enough
such property in house house from which stolen property
was

wife.203 Accused residing in the same

412 against that they were joint possession of
in
This fact by itself is not sufficient to prove
recovered-
some conduct or
act showing dominion
For purpose of holding joint
possession
stolen property
should also be proved against accused.
over stolen property keld
was recovered from the accused.
Where after five days of theft, stolen property
or receiver of
stolen property.
raised that either he was a theft
presumption could be recovered from the
accused
were
and silver ornaments
Where the stolen goods, gold for being found in possession
accused offered no explanation
theft and the Indian
within two days ofthe committed the offence under S. 411 of the
have
could be presumed to stolen goods firom
there, held, they time factor. Recovery of
266 Illustration has to be read alongwith articles at the
Penal Code. that somcbody else had kept the
accued two days after
theft. Nothing suggesting be drawn.
recciving stolen property may
of dishonestly
place of recovery. Presumption

296: 52 Cri. LJ 154 (DB).

257. AlR 1951 Pat. Lah. 137 (FB).
LJ 1: ILR (1945)
339 (343): 46 Cri.
258. AIR 1944 Lah **1975 Raj LW 267 (269).
LR 488 (490) (DB)
259. (1953) 6 Sau 1957 Cri. LJ 1091 (DB).
Andh. Pra. 758 (763):
260. AlR 1957
1953 Cri. LJ 1048.
Mad. 534 (536):
261. AlR 1953
48 Cri. LJ 30 (DB)
262. AIR 1946
Pat. 169 (178):
LJ 344 (345) (All).
263. 1963 (1) Cri.
161 (162).
264. 1959 All. LJ
520.
L.W.
265. (1989) 2 Raj.
SC 334: 1974 Cr LJ 277.
266. AIR 1974
267. 19646 Ori. J.D. 284.
 297 LAWOFCRIMES & CRIMINOLOGY
Scc. 378to?
20. Joint Possession
Prosecution proving that articles found im almirah of house in which the accused
Jomtly with his father and ofwhich key was fumished by the father. Evidcnce
videncc isis nenot lived
to mter exchusive possession of postal articles of accused. Appcal was allowcd 26 sufficient
The recovery of the gold cartops and the cardboard box, which containcd them
suspicious, as the prosecution has failed to cstablish that the room, from which
them, is highly
recovered. was that of Deo Singlh, appellant Deo Singh, even according to the prosecui hey
witnesses. was employved outside this village and had only
come on a visit from his dut Ion
oom. from which they were recovered, is described
as a The
room
The Investigating Officcr could not know who in the family or Deo
for keeping cow-dung cakes.
Singh was in actual ocCunation
of this room. n

The production of the key which according to the prosecution evidence, the
at first refuscd to producc,
proved that the portion in which the boxes were kept was appellant
in
had
exclusive possession with all that was contained it. appellant's
in It IS possible that he
other portions of the
partitioned room to other persons, but there is no reason may have sub-let
appellant was not only in possession of the boxes but knew to doubt that the
nature of their contents. something about the incriminating
had' Furthermore, the
Otherwise, why should he, at first, have refused to
appellant had not given any evidence to show that his produce the key he
placed the boxes there, or that there was sub-tenants had
any reason why he should allow them
portion reserved by him for himsclf 270 to use the
21. Restoration
The provision
the relevant
relating restoration of stolen property is given under
portion of which is reproduccd as under section 452 of CR.P.C.
(1) When an inquiry or trial in
any Criminal Court is
order as it thinks fit for the concluded, Court may make such
disposal, by destruction, confiscation
the
claiming to be entitled to or
possession thereof or otherwise, of any propertydelivery to any person
before it or in its or document
custody, or
which has been used for regarding which any offence appears to have produced
the commission of been committed, or
any offence.
(2) Any order may be made
under sub-section
person claiming to be entitled to (1) for the delivery of any
that he exccutes a the possession thereof, without property to any
bond, with or without any condition or on condition
Testore such sureties,
property to the Court if the order made
to the satisfaction
of the Court,
aside on appcal or under sub-section engag1ng to
revision....(3) to (5). (1) is modified or Ser
This scction deals with
the
disposal, at the 'conclusion' of the
property document produced before
or
offence appears to the Court or in its inquiry or trial, of any
have been committed custody or
been used for theregarding
which
offence or which has &any
commission ol a
Complaint of theft- Receiver of stolen
appcalAppcllate Court did not pass any property convicted by trial Court but
Radha
order as to who was
entitled to the
acquited u
269. Kisan
Kapil Singh vs.vs.
Stute
270.13alumal Jamnadas
Statc of P
of Utar
Pradesh. amount-o
unjab, AIR 1969AIR 1963
vs S
Stos SC 11
SC 822:
(1963) 1 Cr, I
Sec. 378 to 380 RESTORATION 2977

acquittal, the complainant accuscd and his father applicd for return of moncy
Complainant
story not belicved by appcllatc Court - Accuscd not claiming but contend1ng that s
to his father Trial court ordering rcturn of moncy to complainant
-
it
belongecd
Hcld that in the
circumstances nonc was cntitled to the amount and that the samc be kept in court till partics
cstablished their rights and on faiure it should be forfeitcd to the Statc271
Where after conviction of accusod for offence of burglary the trial Court dirsctod two
tems of suit property to be returned to the complainant and matter regarding disposal of other
articles was pending before the Chicf Judicial Magistrate but mcans while the High Court set
aside conviction in appeal and dircctcd the return of those two itcms of suit property to the
accuscd, under such circumstances the Supreme Court directcd in an appcal filcd by compla1nant
against order of High Court, that the matter rclating to disposal of thesc two items would be
sent to the Chief Judicial Magistrate before whom matter regarding disposal of other articles
was pending272 In cases of abatement of enquiry the Court should act on the gencral principle
that the property taken under the authority of the law for a particular purposc should, on the
fulfilment of that purpose, go back to the custody whence it was taken.273
Where the enquiry or trial abates on the death of the accused the Magistrate has no
jurisdiction to pass any order as regards the return of the property to either party. The property
must be rcturned to the police for disposal according to Section 457. Whcre property seized
does not belong to informant or accused or any asccrtainable person, contiscation of propcrty
criminal Court to
to state on available evidence is not illegal.275 The section empowers the
deliver theproperty or document to any person 'claiming to be
entitled' to its possession. The
Court has therefore, jurisdiction to decide the question of possession

Where possession of property is by statutory provision Court is not to deliver

restricted
Court to consider right to possess and not
the seized property until the restriction is removed."
Normal rule is to returnproperty to accused.
Ownership of property-
make an enquiry touching
As the basis of an order of delivery of property, the Court has to
the right to possession claimed by an applicant.21s
to the property
cases where the order with regard
Section 452 and Section 453 contemplate
is found to be stolen
the conclusion of the trial under Section 453 where property
is passed on faith for value
same time found to have
been purchascd by another in good
and at the
is the person from whom it
was
property
of the same in such a case
the person entitlcd to possession entitled
and the subsequent bona fide purchaser is only
originally stolen or misappropriated should bc given the same meaning
in

Person entitled to possession

to be compensated.
280
Sec. 457 also.
116: 1980 All Cri. R. 159
271. 1980 UPLT (NOC) All LJ 916. 1955 Cri
1991 Cri. LJ 469: 1990 however AlR 1955 All 63(64):
272. AlR 1991 SC 380 (382): 17 Bom. 748 (755). [Sec
233 (234, 235) (Mad)**(1893)
273. (1906) 4 Cri. LJ
LJ 192]. 52 Cri. LJ 1476.
**AR 1951 Madh B 154 (155):
784 (785) (Cal)
274. 1973 Cri. LJ
68 Cut LT 18. **1963 (1) Cri. I.J 117 (118)(C=
275. 1990 Cri. LJ (NOC) 88: (1989)
**AIR 1964 Ker 124 (125): 1964 (1) Cri. I.J 405
2 Andh. WR 153 (158) 297 (299): 1957
Cri. LJ 1448 (2).
276. (1974) ** AIR 1957 Punj
** 1962 (1) Cri. LJ
654 (657) (Ker)
LT 616 (619).
277. (1993) 75 Cut * * 1980 Mad LW (Cri.)
244. **
1963 (1) Cri. LJ 531 (=
Cri. LJ 733 (Kant) ** 1992 Cri. LJ 3970 (3972) (Mad)
278. 1979 LJ 405
1964 (1) Cri.
279. AIR 1964
Ker. 124 (125):
41 Cri. LJ 275
**
(1936) 19 Nag LJ 264 (268).
1939 Mad 916 (917):
(Gui)**AIR
uidhani LR 684 (687) (Delhi).
 CRIMINOILOGY
LAWOFCRIMES & Scc. 378 to 380

The power thus gnen to decidc the qicstion of possCSsion 1S discrctionary, It is nifcst
(Where qucstion off Dosereethc
that Cnmnal Couris are not cxpectcdto try civil cases.
to
dispuiable and the ights of the parties posscssionfor decision the haci
have to bc decidcd on thc
basis of the
agrocments betwecn the parties,
it would be a matter by a (Civil Court
In casc of conticting claims the title can only bc decidcd by a Civil Court 282 "Thehicct of
c seetion is only to provide a summary method tor restoring status quo.283

Disposal of property under S. 452 is summary in natureand subjoct to propcr adjudication

of civil rights of the partics in a civil suit by the person aggrieved.284
An ordcr under this section does not decide the question of "ownership' of property lt
decides only a right to 'possession' till a Civil Court has decided the question of ownershin 25
Where the Court is in doubt whether the order of restoration shOuld be
made or not it
should decline to make one and leave the owner to such civil remedies as
may be available to
him 285 Normally the property in case of acquittal must go back to the persons from
whose
possession it was seized. Order of Court directing delivery of other property
of two items till declaration of title in excluding delivery
respect thereof from the Civil Court is contrary to law and
liable to be set aside 287
Where the appeal against conviction was allowed
by the Supreme Court, and also the
money and gold recovered from house of accused was not the
the said property was directed to be subject-matter of the charge,
returned to the accused.288
Theft of paddy- Accused
In absence of
acquitted of the charge but paddy returned to complainant
proof that paddy seized from accused was from the
not proper to return the
paddy to complainant. 40 Any person othercomplainant's field, it was
than the one who was in
possession of the property, claiming to be owner, must
prove that the property is his.
Where, in a case the accused
disclaims the property, it is
If an offence has been
committed the status quo is to be improper to restore it to him.
seizure of the goods
by the police but the one before the restored, but not the one before the
of the goods 22 commission of the offence in respect
281. AIR 1960 Madh
Pra 195
Mad 17 (17, 18): 32 Cri. (198): ** Cri. LJ 919
1960 **
AIR 1956 All 319
LJ 355 1980 Mad LJ (320): 1956 Cri. LJ S69(2) **
AIR 1931
282. (1990) 70 Cut LT
669 (672).
(Cri.) 461.
283. AIR 1960 Madh
Pra 195 (198): 1960 Cri.
284. 1992 Cri. LJ LJ 919 ** AIR 1958
3407 (3409) Madh Pra 270
285. 1968 Ker LR 262 (MP). (271): 1958 Cri. LJ 1189
1963 (1) Cri. LJ 117
(267) **
(1967) 33 Cut LT 868 (870) ** AIR
1963 Bom 83
1960 Cri. LJ 1001 ** (118) (Cal) (84): 1963 (1) Cri. LJ 745
**
AIR 1962 All 153 *

AIR 1958 Madh Pra (155): 1962 (1) Cri. LJ 243 **

AIR
(D5
1960 J&K 103 (l04
1942 Nag 82 270 (271): 1958 Cri.
(82): 43 Cri. LJ 698 ** LJ 1189 ** 1957
286. I1LR (1911) 12 Cri. LJ 400 Cri. LJ 238 (239) (Raj) **
(1956) Punj. 1023 (400) (Lah) ** AIR 1947 Alk
287.(1993) 1 Cur Cri R 514 (1025). Nag 33 (35): 47 Cri. Ld *ia
288. 1987 SCC (516) (MP).
(Cri.) 180 (180): 1987 Cri. LR (SC) S50
289.(1983)
290. AIR 1937
1 Crimes 592 (MP). (1).
Pat 591
(592) 38 Cri. LJ 1091.
:
* 31.JR S71 (574)**** (1987) 2 Chand
455
**
(1961) (P& H) 1967 AlÍ WR 775 LR (Cri)
An WR
408 (411): 1987
Chand Cri C (Cri) 408
Cri LJ
1889 37 (39) AIR
** (776) **
(1966)2 Mys LJ 344 (411): 1987 Chand
**
292. 196G Rilu AIR 1954 Mad 1
1960 Ker 235
1 (236): 1960 Ci T
(346) **
1962 (1) Cri LJ 654 (657) (Kel
 Sec. 378 to 380]| PROPERTY REGARDING WHICHORDER MAY BE MADE 2979
Ordinarily, the property in cash and in bills payablc to "bcarcr which circulate as cash,
passes by mere delivery and is in the person who is in posscssion of them for thc time being
when he has reccived them bona fide. The same rule applics to currcncy notcs.
whcn thc transfcrcc of
The property is coins and currcncy notcs passcs by mcrc delivcry
and without noticc of defect in title of
the coins and currency notcs takes in good faith for valuc
of stolen property and if they can
the transferor 294 If coins are found with the thicf or recciver
be ordered to be returned to thc owner2
be identified as the coins which were stolen, they may
accused was alleged to be money stolen
Where money recovered from the house of the
was acquitted on the finding that the money
from the house of the complainant but the accused
did not belong to the complainant and that no offence was committed in respcct of that sum, it
could
directing that the money should be returned to the complainant
not
was held that an order
be sustained.2s5 The mere fact that the accused persons have been convicted under S. 41i of
the Penal Code, does not establish that the recovered currency notes were the very property
stolen from the house. The complainant has to prove that the notes were his
complainant's
property in order to entitle him to get back the notes.2
22. Property regarding which order may be made
sub-section
An order as to destruction, confiscation ordelivery may be made under this
any of the following categories
:-
as regards any property which comes under
the inquiry or trial. This includes not only
) It has been produced before the Court at
under control of the Court.298
physical production but placing the property
further
the inquiry or trial.29 In this case it is not
(1i) It is in custody of the Court holding has been used for the
to the Court under s. 452, that the property
necessary, to give jurisdiction
commission of an offence.
committed regarding such property, or any property
An offence appers to have been
(i1i) and anything
converted or exchanged5o0 [sub-sec. (5)]
into or for which it may have been not been produced in
conversion or exchange, even though such property has
acquired by such
Court 301
for cutting
It has been used in the commission
of an offence, e.g., the implements
(iv) 302
Wire in a case of theft of wire
include a conveyance (such as a
this category would not
It has, however, been held that or for carrying
the
to the place of offence
which was merely used for going
cycle or rickshaw)
stolen good 303

397 (398) (Sind)

NWPHOCR 298 (302)
**
(1911) 12 Cri. *LJ
26 Cri. LJ 1315
**
(1869) 1 *
(1911) 12 Cri. LJ
293. AIR 1926 Sind 17 (17): 28 Cri. LJ 879
AIR 1927 Mad 797 (798):
(265): 16 Cri. LJ 783
**
**
AIR 1915 Bom 265 ** AIR 1914 Lah 567 (S68):
16 Cri. LJ 460.
400 (401) (Mad)
**
(1912) 13 Cri. LJ 21 (21) (Sind)
1969 OCri. LJ 659.
294. AIR 1969 SC 401 (404):
26 Cri. LJ 315.
295. AIR 1926 Sind 17 (17):
1954 Cri. LJ 153.
296. AlR 1953 SC s08 (508): 1967 Cri. LJ 506.
297. AIR 1967 Orissa
46 (47) :
298. 41 st Rep., Vol. 1, para. 43.14.
1928 (H.P.).
299. Bal Kaur v.
State H.P., (1976) Cri. LJ
of
146.
300. Ali, A. 1957 A.P,
Cr. LJ 1189 (para. 10) (Goa).
0L
lielicidade y. P'Souza, (1978)
 Right t rogistercd motor vchicle
possession of a

1. Because of the statutory provisions in the Motor Vchiclcs Act, 1939, as to the rights of
person shown as the 'registercd owner of a vchicle under the Act, cascs frequcntly comc up
bcfore the Courts with problems relating to the custody or delivcry of posscssion of a rcgistcrod
motor vchicle.
2. In vicw of the forcgoing provisions, a person who is the 'rcgistcred owncr' under the
Act is prma facie cntitled to the possession of the vchicle as against any othcr person. for
purposes of s. 451-452, 457 of the Cr. P.C 304 Thc prcsumption is, of course, rebutable by
e v i d e n c e 305

3. In the case of a hire-purchase agrecment s. 19 of the Motor Vehicles Act says that the
person in possession of the vehicle under such agreement shall be entitled to be registered as
oner on application under s. 24 of the Act. Neverthcless, the exact legal relationship between
the financier and the hire-purchaser is to be determined from the terms of each
agreement
4. Where the hire-purchase agreement contains a term that hire-purchase woud get
absolute title only on payment of all the instalments due under the agreement and that in case of
default, the financier would be entitled to recover posscssion from the hire-purchaser, it would
follow that where default is established before thc Magistrate, the latter cannot direct delivery
of the car under s. 452 or 457 to the hire-purchaser even though the registration still stands in
306
the name of the hire-purchaser
Where propcrty kept in custody of the Police has been lost or stolen so that it cannot be
physically returned to the complainant or other person entitled to its return, and the State cannot
show that it had bcen lost notwithstanding due care and attention on the part of its servants, the
Court should direct the State to pay to such person the value of the property which has been
lost in custodia legis, as established by the Court.307
Regarding which any offcnce appears to have been committed
1. No order under this section can be made by the Court when the accused is acquitted on
the finding that no offence had been committed in respect of the property.
2. In such a case, if the complainant claims the property, he should go to the Civil Court
and obtain a stay order from there.

Charge under section 379,- I (name and office of Magistrate, etc.) hereby charge
you (name of accused) as follows
That you, on or about the day of at committed the theft of (specif
the thing) by taking it out of the possession of A B, intending to take the said thing dishonestly
without his consent and thereby committed an offence punishable under s. 379 of the Indian
Penal Code, and within my
cognizancc.
And I hercby direct that be tried you on the said charge.
o.Gopala v. Kelu, (1974) Cr. LJ 210; Dev v. Manohar, (1974) Cr. LJ 1156 (P. & H.); Sarder v. S.F.C., (1964) 2 CT. L.d.
942 (Pat.) DC.
r eNceptional cases. sce Dakhim State of U.P.. (1978) Cr. LJ 204
(para. 14) Bom. v.
(AlI.), Ghafoor v. Motiram, (1978)C. L s

U. Jagdeesan State of
v.
07.
308. Tookappa State, Karnataka, (1978)
v. Cr. LJ 1546
Pushkar (1977) Cr. LJ 1850
v, S u (n (Knt.).
 Sec. 378 to 380] DWELLINGHOUSE 2981

Without proof of dishoncst intention to cause wrongful loss to the complainant and wrongful
gain to the accused a charge for the offencc of theft cannot be framed. Als when the qucstion
of framing a charge of thcft of crops is beingdecided it is the actual possession of land that is
of importance and not the right of anybody thercin. Thc question of owncrship may be cntcrcd
into when the accuscd is askcd to cnter into dcfencc and producc cvidcncc.
Charge under section 380. - I (name and office of Magistrate, etc.) hereby charge
follows:-
you (nane of accused) as

That you, on or about the_ day ofat committed in a building (or tent,
or vesse) used as a human dwelling (or for the custody of property) the theft of (specify the
in the posscssion of AB, and thereby committed an offence punishable under s. 380 of
thing),
the Indian Penal Code, and within my cognizance.
And I hereby direct that you be tricd on the said charge.
Charge under section 381. I (name and office of Magistrate, etc.) hereby charge
you (name of accused) as follows:-
That you, on or about the day of at being a servant (or clerk or
employed in thein capacity of a clerk or servant) of A B, committed theft by stealing property,
the possession of the said A B, and thereby committed an offence punishable
to wit
under s. 381 of the Indian Penal Code, and within my cognizance.
And I hereby direct that you be tried on the said charge.
etc.) hereby charge
Charge under section 382. -I(name and office of Magistrate,
follows:-
you (name of accused) as
committed the theft of (specify
That you, on or about the day of at
made preparation for causing death (or hurt
or
the article) the property of A B, after having said
made) in order to the committing of the
restraint) by (specify the mode of preparation s. 382 of the Indian Penal Codc,
and
committed an offence punishable under
theft, and thereby
Session.
within the cognizanee of the Court of
And I direct that you be tried on the said
hereby charge.
23. Dwelling House
tent or vessel is
tent or vessel, which building,
Whoever commits theft in any building, from a verandah, or the roof
under sec. 380, IPC. Theft
used as a human dwelling, is punished But theft from a
is not a theft in a building.
of a house, or a brake-van
or a railway carriage of
possible to commit the offènce
offence under the section. It is quite
railway building is an as it is possible
to commit theft in a building
anything just
lurking trespass without stealing The offences are quite distinct
and separate sentencees
without committing lurking
house trespass. under sec. 457 and this
sentences
But separate consecutive
can be passed for each offence.
section cannot be passcd. whcther
which person lives
place, or house in
a
a habitation, or
means
The term "dwelling"
permanently or temporarily. term "custody
residence and nothing less. The
understood to refer to
The term must then be or guarding property. The
for it means merely a keeping
wider import,
is, however a term of short a time, but it will be custody, though the
term is
SeVer
 2982 LAWOFCRIMES & CRIMINOLOGY Scc. 378 to 380

now restricted to mean "safe kecping" or *safe custody". But there is no reason to limit its
sense to that meaning.

The accuscd induccd the complainant to deposit her moncys in two banks and her ornaments
in a
third bank and contrived to get accounts opened in their joint names. He subscqucntly
withdrow the moncy and the ormaments from the banks on various dates without the complainant's
knowledge. The accused was prosccutcd under this section. It was held that this section did not
apply as the money was not in the possession of the complainant but was in the posscssion of
the bank and was taken with the bank's conscnt.
The offence under this section is an aggravated form of the offence of theft. The
aggravation lies in the fact that the theft of property is committed in a building, tent of property
is committed in a building, tent or vessel. It is immaterial that
the in building is the joint possession
of the parties. Even the owner of the building himself may be guilty under this section, if he
commits theft ofproperty from it.311
This section does not apply to the of theft of
case
property from the
person of the
complainant found or living in the building.312 A trustee removing the jewels of the Deity from
a temple is guilty of criminal breach of trust, and not of theft
punishable under this section.33
Ingredients of offence under - Husband and wife living jointly in the same house and
having joint possession of property therein- Wife cannot be charged with theft under S.
380.314 The word "building must be construed in its sense as ordinary
to an referring area
which is covered over by a roof315
The limitations imposed by the Legislature, are not as to the nature of the structures or
materials, but as to the use to which such structures are intended to be put.316
Dwell (Linger over), verb- accent, accentuate, brood over, continue, emphasize, extend,
harp upon, impress, in re commorari, insist, intensify, point up, prolong, prolongate, reiterate,
remlongius prosequi, stress
Dwell
( Reside), verb- abide, be located, be present, be settled, be situated, be stationed,
billet, bunk, denizen, domicile, domiciliate, domicilium, habere, habitare, have a
have one's address at, indwell, inhabit, live, habitation,
lodge, make one's home, occupy, populate, quarter,
remain, reside, room, settle, sojourn, stay, stop, take up one's abode, take
up residence, tarry,
tenant. Associated
concepts : citizenship.
Dwelling- any building or structure, though movable or temporary, or a portion thereof,
which is for the time
being the actor's home or place of lodging.
Dwell To "dwell", "dwelling", are
expressions nearly, but not quite, cquivalent to
residue, "residence"; for to "dwell" connotes, more
person lives and
definitcly than "reside", a place where
slceps.- Stround's Judicial Dictionary, Vol. I, 2nd Ed., p. 589.
310. 1979 Cri. LJ
446
(448) (1Him Pra) **
311.1873-1892 LBR 367. (1975) 2 Cri. LT 285 (291) (Him Pra).
312. 1876 Pun Re
No. 14 p. 21
313.(1896)
314. 1980
6 Mad.
LJ 14
(Cr) (DB).
Raj. (16) (DB).
(1899 Cri. C. 327 (332) ISo0
 Dwelling-house -- In a decision reportcd in Basanta Kumar Sen v. (Gour Hari Dey,..
the Calcutta High Court took the view thus:
Once a garden or an open land or a tank is dissociatcd from the structurc or building, it is
no longer a dwclling-house cither on the thcory of convenicnce or physical affinity or
appurtenance or on the theory of physical integrity or parts or componcnts"317
The term "dwelling-house" includes, not merely the actual structure, but also the land
upon which the structure stands, and so much of thc adjoining land as is ncccssary for the
convenient usc and occupation of the house as a dwclling-house.318
The word "dwelling-housc", under Sec. 2 (c) (Gi) of the Wealth-tax Act, 1957, when uscd
in its application to the dweller, means his home, where the dweller requires to reside as a
natural-born man. That is not the requirement of an artificial person like a company and the
company does not require a dwelling-house in the sense of making its home.319
In determining whether a house is a dwelling-house, we shall first find out whether the
house in question was used by the members of the family for residential purpose, secondly, it
would include not merely the structure where the members of the family actually reside or used
to reside but it would include all appurtenants, that means, if there is a courtyard which was
used by the members, such a countryard, if there was another structure, as for example, a
kitchen or a cowshed or a shed for garage, if those are or were used by the members of the
within the word
family as parts of their residential house, all such parts would also be included
dwelling-house" 320

Now mere residence by itself is for the purpose of drawing the inference
not sufficient
be as
that the residence was a dwelling-house maintained for the assessee the residence may
connotes
casual visitor, licensee. The expression "maintains a dwelling-place
as a
a guest, as a
with possession a
the idea that the assessee owns or has taken on rent or on a mortgage
if he is so minded, and the expression
dwelling-house which he can legally and as of right occupy
would cover a case where the assessee has a right
"has maintained for him a dwelling-place"
expenses of maintaining the dwelling-place
are
to occupy or live in a dwelling-place though the
not met by him in whole or in part.321
with domicile or home, and mean that
The words dwelling or residence are synonymous he has
has his fixed permanent home, to which, whenever he is absert,
place where a person
the intention of returning.
habitation
the domicile of the person in which he has voluntarily fixed the
A place is property
mere special and temporary purpose,
but with a present intention
of himself and family, not for a
unless and until something (which is unexpected or uncertain)
of making it his pemanent home
some other permanent
home.
shall occur to induce him to adopt
at another,
living sometimes at one and sometimes
A man may have two diwelling-places, an animus revertendi,
absense each house, though empty, if there be
and during his temporary
will still be his dwelling-house
322
278.
v. Nagu Naik, (1970)
36 Cut. L. T. 275 at p. 206-7.
317. Kuntala Debi 75 C. W. N. 195 at pp.
Sri Ram Chandra Hazra, (1970-71)
318. Sri Surcndra Nath Achar v. Wealth-tax, West Bengal, (1968)
67 I.T.R. 823 (Cal.).
Hills Produce Co. Ltd. v. Commissioner of
319 Kannan Devan IR 1968 Cal, 245 at p. 248.