UNIT IV:

1. In all robbery, there is either theft or extortion. Explain.

Robbery is a special and aggravated form of either theft or extortion. It has been defined under 390
of the IPC. When theft becomes robbery: when element of fear or force is combined with theft, it
is termed as robbery i.e. where the property is removed by the accused without the consent of the
victim by using force or fear it amounts to robbery. However the fear must be instant and not
distant. Violence may be caused either before, during or after committing theft but it must be
caused to meet the ends of theft. A hurt caused only to avoid capture by a thief will not convert
theft into robbery.

When extortion becomes robbery: when the offender is present at the time of committing extortion
and uses instant fear of death, hurt or wrongful restraint to the victim or any other person and he
in turn delivers the property at the very moment under such fear it amounts to robbery. It is very
important that the offender must be present in front of the victim.

In order to respond to the question it will be important to explain the essentials of both theft and
extortion.

Sec 378. Defines Theft as.—Whoever, intending to take dishonestly any moveable property
(subject matter) 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.

Explanation 1.—A thing so long as it is attached to the earth, not being movable property, is not
the subject of theft; but it becomes capable of being the subject of theft as soon as it is severed
from the earth.

Explanation 2.—A moving effected by the same act which affects the severance may be a theft.

Explanation 3.—A person is said to cause a thing to move by removing an obstacle which
prevented it from moving or by separating it from any other thing, as well as by actually moving
it.

Explanation 4.—A person, who by any means causes an animal to move, is said to move that
animal, and to move everything which, in consequence of the motion so caused, is moved by that
animal.
Explanation 5.—The consent mentioned in the definition may be express or implied, and may be
given either by the person in possession, or by any person having for that purpose authority either
express or implied.

Essentials of theft:

a) It should be a movable property (S. 22)

b) In the possession of anyone (S. 27)- Mere custody will not amount to possession

Lady giving money to a man standing near the ticket counter for him to procure ticket for her R.
v. Thompson

Nine pointer of ownership

Sir James Stephen, Digest of the Criminal Law: A movable thing is said to be in possession of a
person when he is so situated with respect to it that he has the power to deal with it as owner to the
exclusion of all other persons and when circumstances are such that they may be presumed to do
so in case of need.

c) A dishonest intention to take it out of that person’s possession (S. 23 & 24)

d) Without his consent (S.90)

e) A moving in order to such taking- it is not necessary that the taking of the movable property
should be of permanent character or that the accused should have derived any profit- Pyarelal
Bhargava v. State of Rajasthan

A house cannot be subject of theft but there may be theft of its materials (TI Francis v. State of
Kerala, 1982)

K N Mehra v. State of Rajasthan (1957)

Took Harvard T 22 at an earlier time and did not respond to return signals sent.- Indian Air Force
Academy

• It must exist at the time of committing the offence- Illus (h) and (i)
Extortion is defined under S.383 as.—Whoever intentionally puts any person in fear of any injury
to that person, or to any other, and thereby dishonestly induces the person so put in fear to deliver
to any person any property or valuable security, or anything signed or sealed which may be
converted into a valuable security, commits “extortion”.

Essentials: Dhananjay Kumar Singh v. State of Bihar (2007)

a) Intentionally puts any person in fear of any injury (sec 44 defines injury)

b) The purpose of which is to dishonestly induce the person in fear

c) To deliver property or valuable security

Purushottam Jethanand v. State of Kutch (1954) – withheld the passports- police jamadar

Injuries include injury to mind, reputation or property of the person- Abdulwahad Sheikh v. State
of Gujarat (2007)

R S Nayak v. A R Antulay (1986)- unless it is shown that the property is delivered to the accused
pursunt to the threat no offence of extortion is said to be committed.

2. What is kidnapping from lawful guardianship? How does it differ from

abduction?

The provisions with respect to Kidnapping and Abduction have been covered under Sec. 359-374
of the Indian Penal Code:

359. Kidnapping.—Kidnapping is of two kinds: kidnapping from India, and kidnapping from
lawful guardianship.

360. Kidnapping from India.—Whoever conveys any person beyond the limits of India without
the consent of that person, or of some person legally authorized to consent on behalf of that person,
is said to kidnap that person from India.

• Kidnapping from India (if a person is apprehended before he crosses the Indian border,
then this offence will not be complete, it will merely amount to an attempt)
• Kidnapping from lawful guardianship
• Violation of the right of life guaranteed u/Art. 21 of the Constitution
361. Kidnapping from lawful guardianship.—Whoever takes or entices any minor under sixteen
years of age if a male, or under eighteen years of age if a female, or any person of unsound
mind, out of the keeping of the lawful guardian (legal guardian) of such minor or person of
unsound mind, without the consent of such guardian, is said to kidnap such minor or person
from lawful guardianship.
Explanation.—The words “lawful guardian” in this section include any person lawfully entrusted
with the care or custody of such minor or other person.
Exception —This section does not extend to the act of any person who in good faith believes
himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled
to lawful custody of such child, unless such act is committed for an immoral or unlawful purpose.
Essentials:
a) Takes or entices
b) Minor (under sixteen years of age if a male, or under eighteen years of age if a female, or any
person of unsound mind)
c) Out of the keeping of the lawful guardian (without the consent of the guardian)
Takes or entices:
- No active or constructive force is required (Biswanath Mallik v. State of Orissa 1995)
- Consent of the minor is not relevant
- There has to be an active part played by the accused in the process of ‘taking’.

S vardarajan v. State of Madras (1965)- girl goes out of the fathers house voluntarily, agrees to
marry.- no offence was made out in this section.

State of Haryana v. Raja Ram (1973)- Jai Narain was prohibited from entering the house, girl was
14 yrs old. Messages were sent through Raja Ram, meeting was hence arranged by the girl.

Persuasion by the accused person which creates willingness on the part of the minor to be taken
out of the keeping of the lawful guardian, would be sufficient to attract this section. Persuading or
soliciting a minor to abandon legal guardianship at any stage by a person is sufficient to hold him
responsible u/s 361 IPC.
Entice: immediately or it may create an impression gradually. Inducing a minor girl by promise of
marriage to leave the house of the guardian amounts to enticement within the meaning of this
section (Motiram Hazarika v. State of Assam, 2004)

Keeping of Lawful Guardian

- Distinguish Lawful guardian with legal Guardian (restricted)

- Keeping- Charge, protection, maintenance and control

Age of the minor

It is only the consent of the guardian that absolves the accused from criminal responsibility.
Consent of the guardian after kidnapping is absolutely irrelevant.

Punishment:

363. Punishment for kidnapping.—Whoever kidnaps any person from 1[India] or from lawful
guardianship, shall be punished with imprisonment of either description for a term which may
extend to seven years, and shall also be liable to fine.

Chandrakala v. Vipin Menon (1993)- The father was accused of kidnapping his own child as the
child was staying with her maternal grandparents because of the strained relationship between the
husband and the wife.

Abduction

362. Abduction.—Whoever by force compels, or by any deceitful means induces, any person
to go from any place, is said to abduct that person.

s. 362 merely defines what abduction is, hence abduction per se is not an offence unless it is
accompanied by a certain intent to commit another offence along with it.

Essentials:

- Forcible compulsion or inducement by deceitful means

- Object of such compulsion must be going of a person from one place to another
- It has to be accompanied by any of the following sections S/ 364/365/366/367/369
- Bahadur Ali v. King Empror (1923)- when the girl went away from the kidnappers and meets
the accused.

Difference between kidnapping and Abduction

• Person kidnapped is removed out of lawful guardianship while the vice versa is not true.
• Kidnapping is a substantive offence while the vice versa is not true and it has to be
accompanied with any of the offences mentioned above.
3. Write a note on Criminal Breach of trust.

Criminal breach of trust has been defined u/s 405 of the Indian Penal Code as- Whoever, being in
any manner entrusted with property, or with any dominion over property, dishonestly
misappropriates or converts to his own use that property, or dishonestly uses or disposes of that
property in violation of any direction of law prescribing the mode in which such trust is to be
discharged, or of any legal contract, express or implied, which he has made touching the discharge
of such trust, or wilfully suffers any other person so to do, commits “criminal breach of trust”.
Essentials:
I. A person must be entrusted with property or with dominion over it.
 II. He must have dishonestly (s 23 & 24) (a) misappropriated or converted to his own use
that property, or (b) dishonestly uses or disposes of that property in violation of any
direction of law prescribing the mode.
Sadhupati Nageshwar Rao v. State of AP (2012): Entrustment and dishonest intention which
results in misappropriating the property are the main factors which need to be proved in order to
secure conviction.
Entrustment:
• Any manner (much broader in its scope)
• State of Gujarat v. Jaswantlal (1968) - Selling of cement bags for construction purposes.
A fiduciary relationship has to be established in order to understand ‘entrustment’. A mere
transaction of sale will not amount to entrustment.
• State of Uttar Pradesh v. Babu Ram (1961)- money taken by SI for his satisfaction, there
was a relationship that was created in this case. It fell under S. 405 because a relationship
of trust was established.
• Kundanlal v. State of Maharashtra (2001)- gave gold bangles for repair but the accused
pledged it in a bank and raised loan for the same.
Misappropriation:
• Krishan Kumar v. UOI (1959)- the offence will be proved when the prosecution
establishes that the servant received the goods that he was under a duty to receive and was
supposed to report to his master which he did not. The question is of intention and not
direct proof of misappropriation.
• Even a temporary misappropriation is sufficient to make a person guilty under the said
section: R Venkatkrishnan v. CBI (2009)

Aggravated forms of Criminal Breach of Trust

S. 407, 408, 409: Explain these.

4. What is rape? Can a man be guilty of the offence of committing the rape of his

own wife?

The definition of the term rape has been laid down under Sec 375 of the Indian Penal Code, 1860.
It can be given as:
A man is said to commit “rape” if he-—

• Penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or
makes her to do so with him or any other person; or
• inserts, to any extent, any object or a part of the body, not being the penis, into the vagina,
the urethra or anus of a woman or makes her to do so with him or any other person; or
• manipulates any part of the body of a woman so as to cause penetration into the vagina,
urethra, anus or any ~ of body of such woman or makes her to do so with him or any other
person; or
• applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him
or any other person, under the circumstances falling under any of the following seven
descriptions:—

First.—Against her will.

Secondly.—Without her consent.

Thirdly.—With her consent, when her consent has been obtained by putting her or any person in
whom she is interested, in fear of death or of hurt.

Fourthly.—With her consent, when the man knows that he is not her husband and that her consent
is given because she believes that he is another man to whom she is or believes herself to be
lawfully married.

Fifthly.—With her consent when, at the time of giving such consent, by reason of unsoundness of
mind or intoxication or the administration by him personally or through another of any stupefying
or unwholesome Substance, she is unable to understand the nature and consequences of that to
which she gives consent.

Sixthly.—With or without her consent, when she is under eighteen years of age.

Seventhly.—When she is unable to communicate consent.

Explanation I.—For the purposes of this section, “vagina” shall also include labia majora.
Explanation 2.—Consent means an unequivocal voluntary agreement when the woman by words,
gestures or any form of verbal or non-verbal communication, communicates willingness to
participate in the specific sexual act:

Provided that a woman who does not physically resist to the act of penetration shall not by the
reason only of that fact, be regarded as consenting to the sexual activity.

Exception I.—A medical procedure or intervention shall not constitute rape.

Exception 2.—Sexual intercourse or sexual acts by a man with his own wife, the wife not being
under fifteen years of age, is not rape.’

a) Against her will:

The word ‘will’ implies the faculty of reasoning power of the mind that determines whether to do
an act or not. There is a fine distinction between an act done ‘against the will’ and ‘an act done
without consent.’ Every act done ‘against the will’ is obviously ‘without the consent.’ But every
act ‘without the consent’ is not ‘against the will.’ Clause (1) of this section applies where the
woman is in possession of her senses and therefore, capable of consenting. In State of Uttar
Pradesh v. Chottey Lal (2011), the Supreme Court explained that the expression ‘against her
will’would ordinarily mean that the intercourse was done by a man with a woman despite her
resistance and opposition.

In State of Punjab v. Gurmit Singh (1996), a young girl below the age of 16 years was abducted
from her school by the three accused in a car, and she was threatened with death if she raised an
alarm. Despite her refusal, she was made to drink liquor. Then she was raped by each one of them
in turn under the threat of being killed if she persisted in raising an alarm. Due to the threat, she
kept quiet. After repeatedly committing sexual assault on her, they left her the next morning near
the place from where she had been abducted. Surprisingly, the additional judge, Ludhiana
acquitted all the accused on both counts of abduction and rape disbelieving the version of
prosecutrix regarding rape and because of delay in FIR. Allowing the State appeal, and holding
the accused persons liable for rape since at no point of time the prosecutrix willingly cooperated
with the act, the Apex Court held that the sexual intercourse was against her will for which the
accused are liable for committing rape under Section 376, IPC.
Mathura rape case: the fact that the girl did not resist enough and the fact that she was a girl who
habitually had sexual intercourse, the court concluded that it was NOT RAPE! This was a very
wrong reading of law!! APEX court- reversed this judgment!

FAROOQUI case:

b) Without her consent

According to Explanation 2, consent means an unequivocal voluntary agreement when the person
by words, gestures or any form of non-verbal communication, communicates a willingness to
participate in the specific sexual act. Thus, to absolve a person of criminal liability, consent must
be given freely and it must not be obtained by fraud or by mistake or under a misconception of
fact. The burden of proof: In case of charge of rape the onus lies upon the prosecution to prove
that the sexual intercourse was without the consent or against the will of the woman. It would not
be necessary for the defence to prove that the sexual intercourse was with the consent of the woman

In Dileep Singh v. State of Bihar (2005), the appellant was charged and convicted under Section
376, IPC for committing rape of a minor girl. The victim alleged that the accused forcibly raped
her and later consoled her that he would marry her. Accordingly on account of the promise for
marriage made by him, she agreed to have sexual relations with him. After she became pregnant,
she revealed the matter to her parents but efforts made by the father to establish marital tie failed.
She was then constrained to file the complaint. Although the trial court and High Court convicted
the accused, the Supreme Court set it aside. It said:

“Consent given by a woman believing the man’s promise to marry her would fall within the
expression ‘without her consent’ vide clause (ii) to Section 375 IPC, only if it is established that
from the very inception the man never really intended to marry her and the promise was a mere
hoax. When prosecutrix had taken a conscious decision to participate in the sexual act only on
being impressed by the accused’s promise to marry her and the accused’s promise was not false
from its inception with the intention to seduce her to sexual act, clause (ii) to section 375, IPC is
not attracted and established.”

c) Consent of a girl below 18 will not valid

Sexual intercourse with a woman with or without her consent when she is below 18 years of age
amounts to rape. A woman under 18 is considered incapable of giving consent for sexual
intercourse. The age of consent was raised from 16 to 18 by the Criminal Law (Amendment) Act
of 2013. The Apex Court in Harpal Singh (1981), held that even if the girl of 14 is a willing party
and invited the accused to have sexual intercourse with her, the accused would be liable for rape
under this clause

In Mana Ramchandra Jadhav v. State of Maharashtra (2005) the prosecutrix left her mother’s
house and joined the accused because her mother had turned down the proposal of her marriage
with the accused on the ground that she was too young. While she was with the accused he had
sexual intercourse with her against her will. The act of intercourse with the prosecutrix will be
covered under this clause.

Marital Rape

At present in India Marital Rape is not criminalized; exception 2 to Section 375 of IPC specifically
excludes acts of sexual violence in marriage from the ambit of Rape. But however at the same time
exception 2 to Section 375 of IPC also made it clear that, Sexual Intercourse by a man with his
own wife when she is below 15 years of age, is rape, regardless of the fact that, it was done with
or without her consent. It is argued that such a restriction was important to restrain men from taking
advantage of their martial rights prematurely. However, no man can be held liable for raping his
own wife, when she is above 15 years of age. Exception 2 to Section 375 of IPC is clearly violative
of Article 14 of the Indian Constitution (equality before law). Exception 2 to Section 375 of IPC
tends to discriminate against married women.

In Bishnudayal v. State of Bihar (1981),where the victim, a girl of 13 or 14 years of age, who was
sent by her father to accompany the relatives of his elder daughter’s husband to look after her elder
sister for some time, was forcibly ‘married’ to the appellant and had sexual intercourse with her,
the accused was held liable for rape under section 376 of IPC.

However under section 376B of IPC sexual intercourse with one’s own wife without her consent
under a decree of judicial separation is punishable by 2 to 7 years imprisonment.

In RTI Foundation v. Union of India (2015), the Central Government submitted to Hon’ble High
Court of Delhi that Criminalizing Marital Rape may destabilize institution of marriage. Central
Government further submitted that that merely deleting Exception 2 will in no way serve any
useful purpose as a man is said to commit 'rape' as defined under Section 375 of IPC cannot be the
same in the case of marital rape. If all sexual acts by a man with his own wife will qualify to be
marital rape, then the judgment as to whether it is a marital rape or not will singularly rest with the
wife. The question is what evidences the Courts will rely upon in such circumstances as there can
be no lasting evidence in case of sexual acts between a man and his own wife.

In Independent Thought v. Union of India (2017), The Hon’ble Supreme Court of India on 11th
October 2017, In view of the above discussion, I am clearly of the opinion that Exception 2 to
Section 375 IPC in so far as it relates to a girl child below 18 years is liable to be struck down on
the following grounds:–

(i) It is arbitrary, capricious, whimsical and violative of the rights of the girl child and not fair, just
and reasonable and, therefore, violative of Article 14, 15 and 21 of the Constitution of India;

(ii) It is discriminatory and violative of Article 14 of the Constitution of India and;

(iii) It is inconsistent with the provisions of POCSO, which must prevail.

Therefore, Exception 2 to Section 375 IPC is read down as follows:

"Sexual intercourse or sexual acts by a man with his own wife, the wife not being 18 years, is not
rape".

So from the discussion above we see that substantial changes have been made after the 2013
Criminal Law amendment and the provisions with respect to marital rape is retained (criticsm).

5. Write a note on stolen property.

The essentials of Stolen property can be given as: The property being received by a person must
be a stolen property to constitute an offence of receiving stolen property under the provisions of
the Code. Property whose possession is transferred by the five ways given in Section 410 is
considered a stolen property. Those are:

• By theft;
• By extortion;
• By robbery;
 • By criminal misappropriation; and
• By criminal breach of trust.

Ownerless property

It is based on the concept of res nullius which means that a property which has no owner or which
has been abandoned by its actual owner. A property which has no owner cannot be subject to theft
and hence, receiving it would not lead to receipt of stolen property. For e.g- a bull which has been
abandoned by its owner and belongs to no one, taking it would not amount to receiving of stolen
property.

Section 410 says that it is immaterial to consider whether the transfer has been made, or criminal
misappropriation, or breach of trust has been committed, within or outside India. The transfer of
such property can be made within or without India to qualify it as “stolen property"

Section 411 proposes that whoever dishonestly receives or retains a stolen property, knowing or
having reason to believe that such property is a stolen one, shall be imprisoned for a term which
may extend up to three years, or with fine, or both. Therefore any person having belief or
knowledge about any stolen property must not receive or retain it.

The liability under Section 411 arises not only for dishonest “reception” but also for dishonest
“retention”. The difference between the two is that in the former, the person has received the
property dishonestly but may not necessarily retain it dishonestly. However, in the latter, there is
a change in the mind of the person from “honest” to “dishonest” and he then retains that property
dishonestly with himself.

Following are the ingredients that need to be established to prove the guilt of the accused:

a) That the accused had possession of the stolen property.

b) That before the accused got the possession of the property, the property was in some other
person’s possession.

c) That the accused had knowledge and reason to believe that the property was a stolen one.
d) That the accused had intent to deprive the owner of his or her property by keeping or selling it
to another party. Offence under Section 411 is cognizable and warrant should be issued in the first
instance. The offence is non-bailable and compoundable with the permission of the Court. The
offence is tried under the Magistrate.

In the case of Bhanwarlal v. State of Rajasthan, the accused purchased 9kgs of silver for a paltry
sum, having knowledge that it was stolen property. The person was not considered a bona-fide
purchaser by the Court. Silver ingots were recovered from many persons at his instance and his
conviction was held to be sustainable.

In the case of Nagappa Dhondiba v. State, here the stolen ornaments of a deceased person which
she had been wearing when she was alive were discovered, from the information given by the
accused, within thirty days of the murder of the deceased. It was held by the Court that the accused
can only be made liable under Section 411 and not under Section 302 for murder or Section 394
for voluntarily causing hurt in pursuance of robbery as there was no evidence to establish the
liability of the person on those grounds.

In the case of State of Karnataka v. Abdul Gaffar, a copper pot containing Rs. 200 in it was stolen
from the temple. The presumption was made that the person in whose possession the pot was found
must have committed theft. The property was worth Rs. 600. A fine of Rs. 200 was imposed under
Section 411 considering the fact that it was stolen from a temple.

Following ingredients must be satisfied to make a person liable under Section 412:

• That the property is stolen property;

• That such property was concerned with dacoity;
• That the accused dishonestly received it; and
• That accused had knowledge or reason to believe that the said property was stolen in
dacoity.

Following ingredients shall be satisfied for making a person liable under Section 413:

• That the property in question is a stolen property;

• That the accused received that property;
• That the accused habitually deals in such property; and
 • That the person did so having knowledge or reason to believe that the property was stolen
property.

Following ingredients need to be satisfied before making a person liable under Section 414:

• That the property in question is a stolen property;

• That the accused had knowledge or reasons to believe that the property was stolen
property; and
• That the accused voluntarily assisted in concealing or disposing of or making away with
such property.

6. What is criminal breach of trust?

The definition of CBT is laid down under sec 405 of IPC.

Essentials:
1. A person must be entrusted with property or with dominion over it.
2. He must have dishonestly (s 23 & 24) (a) misappropriated or converted to his own use that
property, or (b) dishonestly uses or disposes of that property in violation of any direction
of law prescribing the mode.
Sadhupati Nageshwar Rao v. State of AP (2012): Entrustment and dishonest intention which
results in misappropriating the property are the main factors which need to be proved in order to
secure conviction.
Entrustment:
• Any manner (much broader in its scope)
• State of Gujarat v. Jaswantlal (1968) - Selling of cement bags for construction purposes.
A fiduciary relationship has to be established in order to understand ‘entrustment’. A mere
transaction of sale will not amount to entrustment.
• State of Uttar Pradesh v. Babu Ram (1961)- money taken by SI for his satisfaction, there
was a relationship that was created in this case. It fell under S. 405 because a relationship
of trust was established.
• Kundanlal v. State of Maharashtra (2001)- gave gold bangles for repair but the accused
pledged it in a bank and raised loan for the same.
Misappropriation:
• Krishan Kumar v. UOI (1959)- the offence will be proved when the prosecution
establishes that the servant received the goods that he was under a duty to receive and was
supposed to report to his master which he did not. The question is of intention and not
direct proof of misappropriation.
• Even a temporary misappropriation is sufficient to make a person guilty under the said
section: R Venkatkrishnan v. CBI (2009)

Aggravated forms of Criminal Breach of Trust

S. 407, 408, 409

7. Write a note on the Criminal Misappropriation of property.

Criminal misappropriation has been defined under section 403 of the Code. The section can be
given as:

403. Dishonest misappropriation of property.—Whoever dishonestly misappropriates or converts

to his own use any movable property, shall be punished with imprisonment of either description
for a term which may extend to two years, or with fine, or with both.
Explanation I.—A dishonest misappropriation for a time only is a misappropriation with the
meaning of this section.
Illustration A finds a Government promissory note belonging to Z, bearing a blank endorsement.
A, knowing that the note belongs to Z, pledges it with a banker as a security for a loan, intending
at a future time to restore it to Z. A to use it. Here, as A has a right to use the horse, he does not
dishonestly misappropriate it. But, if A sells the horse and appropriates the whole proceeds to his
own use, he is guilty of an offence under this section.has committed an offence under this section.
Khandu Sonu Dhobi v. State of MP (1972)

(Finder of goods) Explanation 2.—A person who finds property not in the possession of any other
person, and takes such property for the purpose of protecting if for, or of restoring it to, the owner
does not take or misappropriate it dishonestly, and is not guilty of an offence; but he is guilty of
the offence above defined, if he appropriates it to his own use, when he knows or has the means
of discovering the owner, or before he has used reasonable means to discover and give notice to
the owner and has kept the property a reasonable time to enable the owner to claim it. What are
reasonable means or what is a reasonable time in such a case, is a question of fact. It is not
necessary that the finder should know who is the owner of the property, or that any particular
person is the owner of it; it is sufficient if, at the time of appropriating it, he does not believe it to
be his own property, or in good faith believe that the real owner cannot be found (exceptions)
Essentials:

U Dhar v. State of Jharkhand (2003)

1. Carved out from theft.

2. Initial removal is not from any person’s possession. Possession in this case is innocently
acquired but from subsequent intention or knowledge, the retention becomes wrongful and
amounts to its criminal misappropriation.
3. The property was of the complainant.
4. The accused misappropriated or converted it to his own use
5. He did it dishonestly.

Velji Raghavji Patel v. State of Maharashtra (1965) – SC held that he is civilly liable to rest of the
partners of the firm but not criminally liable u/s 403.

Phuman v. R (1908) - the guilt of the accused is determined by the state of his mind at the time
when he appropriates the property to his own use.

The word ‘misappropriation’ means nothing more than improperly setting apart for one’s own use
to the exclusion of the owner. The word ‘converts’ is used with ‘misappropriation’ and means
nothing more than an appropriation of and dealing with the property of another, without right, as
if it was one’s own property.

Distinction between theft and criminal misappropriation

1. Theft there is an initial dishonest taking of property, but in DMP the dishonestly becomes
relevant later
2. Invasion to the possession of property, DMP there is no invasion of possession
3. Theft mere moving (dishonestly) is an offence, but that is not true in the case of DMP
 4. Theft: consent of the person in possession is not taken, DMP: consent is not at all relevant
5. Dishonest intention is common to both

Aggravated form of Criminal Misappropriation

S. 404. Dishonest misappropriation of property possessed by deceased person at the time of his
death.—Whoever dishonestly misappropriates or converts to his own use property, knowing that
such property was in the possession of a deceased person at the time of that person’s decease, and
has not since been in the possession of any person legally entitled to such possession, shall be
punished with imprisonment of either description for a term which may extend to three years, and
shall also be liable to fine (stranger); and if the offender at the time of such person’s decease was
employed by him as a clerk or servant, the imprisonment may extend to seven years (employed-
trust).

Essential ingredients:

• The property in question was in the possession of the deceased at the time of his death
• The accused knowing that the property was in such a possession misappropriated or
converted it for his own use
• He did so dishonestly
• Different punishment prescribed for strangers and for those employed.

Bala Munshi v. State of MP (1958)

Removal of property from the dead body of a person after his death- NOT s. be theft but it will fall
under S. 404.

Re Sathi Prasad (1973)

Forcefully taking away property from a person who has recovered it from the dead body and further
converts it to his own use- IT IS s. 404

Turuku Buddha v. State of Orissa (1999)

Commits murder, removes ornaments from the dead body in the same transaction and converts it
for his own use- IT IS s. 404.

Conclusion:
7. What are the amendments that have been made (under sec 375) in the Indian
Penal Code by the 2013 Criminal Law Amendment Act?
• Change of the definition
• Increase of punishment-sec 376
• Seventhly has been introduced- unable to communicate consent
• Definition of consent
• “any other person”