Theft and Robbery Similarities and difference, Exercises of Law of Evidence

Download Theft and Robbery Similarities and difference and more Exercises Law of Evidence in PDF only on Docsity! Theft Regulation of the administration is mandatory for the human society. It requires the protection of not only the person as an individual but also their property. Therefore, all systems of jurisprudence have made provision for its protection from the earliest times. Provisions for the violation of property rights have been provided in civil law and remedies are sought by private individual in civil court to obtain specific relief. Thus, Chapter XVII (378- 382) of Indian Penal Code,1860 deals with the Offences Against Property . Theft, in layman terms means the taking of a person’s property without the consent of the owner and Section 378 of the Indian Penal Code, 1860 (IPC) has provided a proper legal definition of theft. Section-378 Under this Section, Theft has been defined as the act of taking any immovable property with a dishonest intent and without the consent of the owner of such property. The Section further provides in the explanations given that any object attached to the earth would be considered as an immovable property hence it could not be a subject of theft but once it is removed from the earth it would become a movable property and could be stolen. The consent that must be attained for a property to be taken without it being considered theft may either be express or implied. Prerequisites of Theft Dishonest Intention Section 24 of IPC provides that dishonesty means the intention of wrongful gain or wrongful loss. Section 23 of the IPC provides the definition of both wrongful gain and wrongful loss. Wrongful gain means gaining any property unlawfully, the person who is losing the property is the legal owner of such property. Wrongful loss means the loss brought about by unlawful means. In the case of M/s. Shriram Transport Finance Co. Ltd. v. R. Khaishiullah Khan [1], payment for a hire-purchase agreement defaulted and the property was seized and the court held that it would not constitute theft as the financer was entitled to seize such property. Further, there were no dishonest intentions. Movable Property Section 22 of IPC has provided the definition of movable property; means that any corporeal property except land and things permanently attached to the earth. Only movable property can be stolen as it is impossible to take immovable property away. Immovable property can be converted into movable property and once it has been converted such property can be stolen. Electricity Electricity has been ruled to be immovable property according to the case of Avtar Singh v. State of Punjab [2] but stealing of electricity has been made a punishable offence. The punishment for theft is provided under section 35 of Electricity Act, 2003 as up to three years of imprisonment with or without a fine. Data Theft of personal data has become one of the biggest issues of the current age. Data is intangible since it is only information thus it is incorporeal and does not come under the definition of theft given in Section 378 of IPC. If data is stored on some tangible object like a hard drive, then theft of such an object would be covered under this Section. Crops Growing crops are attached to the earth and hence cannot be considered movable property but once they are converted into movable property by removing them from the earth, it can be considered as theft. Human Body The human body cannot be considered to be movable property and hence Section 378 cannot be applied in case of theft of human body. But in case of instances where the body has been preserved or the skeleton has been kept, then such property is covered by Section 378 and falls under the definition of movable property. Property in possession In order for theft to have occurred, the property being stolen must be taken from the possession from the owner of such a property. If the property does not have an owner then such property cannot be said to have been stolen if a person acquires such property. For example; if A finds a gold nugget in a stream and he takes the gold home, it cannot be considered theft as the gold nugget has no owner. No Consent The property that is in question must have been taken without the consent of the owner of such a property. The consent can either be implied or express. The consent given must also be free meaning that such consent must not be acquired through means of coercion or fear of injury or misrepresentation of facts. Consent given during state of drunkenness or intoxication as well as consent given by a person of unsound mind cannot be considered to be a valid consent. Robbery is defined by the Black’s Law Dictionary as the felonious act of taking the personal property in the possession of another from his person or immediate presence against his will accomplished using force and fear, with an intention of permanently depriving the true owner of the thing in question.[1] Robbery in common language means to deprive a person of his or her property. In all robbery, there is either theft or extortion. The essence of the offence of robbery is that the offender for committing theft or for carrying away or attempting to carry away the looted property, voluntarily causes or attempts to cause death or hurt or wrongful restraint. Section 390– Robbery In all robbery, there is either theft or extortion. Explanation The explanation attached to the section says that the offender is said to be present within the meaning of this section if he is sufficiently near to put the other person in fear of instant death, or of instant hurt, or of instant wrongful restraint.[2] Even though a robbery would always be either theft or extortion as shown by the definition, in practice it may sometimes be quite difficult to identify as to which part is robbery by theft and which one robbery by extortion. For instance, A enters into the house of В and pointing a revolver at him asks him to surrender all the valuables. While В starts surrendering the valuables, A himself starts picking up some of the other valuables. Ingredients: The essential ingredients of Robbery are:  There must have been commission of theft as defined in Section 378;  The act of theft must have been committed by the offender causing or attempting to cause fear of death, hurt or wrongful restraint or fear of instant death or instant hurt or instant wrongful restraint; and[3]  There must have been commission of extortion as defined in Section 383 and while doing so the offender must have been in presence of the person and subsequently has put the person in fear of instant hurt or instant wrongful restraint or instant death and by causing so has induces the person to deliver some property in possession of the person so put in fear. When Theft is Robbery[4] Theft is robbery when in order to commit theft or while committing theft, or while carrying away or attempting to carry away property obtained by theft, the offender voluntarily causes or attempts to cause to any person death, subject him/her to wrongful restraint or cause hurt or induce fear of instant death, instant wrongful restraint or causing instant hurt. Thus, theft becomes robbery when the following conditions are satisfied;  When the offender voluntarily causes or attempts to cause: o Death, wrongful restraint or hurt or o Fear of instant death, instant wrongful restraint or instant hurt.  And the above act(s) is done o While committing the theft o To commit the theft o While carrying away the property obtained by theft or o While attempting to carry away property obtained by theft. For example: A holds Z down and fraudulently takes Z’s money and jewels from Z’s clothes without Z’s consent. Here A has committed theft, and by committing of that theft, has voluntarily caused wrongful restraint to Z. A has therefore committed robbery.[5] When Extortion is Robbery[6] Extortion becomes robbery when the offender at the time of committing the offence of extortion is in the presence of the person put in fear and commits extortion by putting that person in fear of instant death, instant wrongful restraint or instant hurt to that person or some other person and by doing so induces the person, so put in fear to then and there deliver the thing that has been extorted. Thus, extortion becomes robbery when the following conditions are satisfied; 1. When a person commits extortion by putting another in the fear of instant death, wrongful restraint or hurt 2. Then the offender induces the person under such fear to deliver the property at that very instant; then and there. 3. The offender is in the near presence of such a person put in fear at the time of extortion. Illustration: A meets Z and Z’s child on the high road. A takes the child and threatens to fling it down a precipice unless Z delivers his purse. Z, in consequence, delivers his purse. Here A has extorted the purse from Z, by causing Z to be in fear of instant hurt to the child who is present. A has therefore robbed Z. [7] However, if A obtains property from Z by saying, “Your child is in the hands of my gang, and will be put to death unless you send us ten thousand rupees.” This is extortion, and punishable as such; but it would not be robbery unless Z is put in fear of the instant death of his child. Section 392– Punishment for robbery[8] The punishment for robbery is given under Section 392 of the Indian Penal Code, 1860. By this section, any person who commits robbery shall be punished with rigorous imprisonment which may be extended up to ten years and shall also be liable to pay a fine. If the robbery is committed on the highway between sunset and sunrise, then the period of imprisonment may be extended up to 14 years. Classification of offence The nature of offence under this Section is cognizable, non-bailable, non-compoundable, and triable by Magistrate of the first class. In Ezhil vs. State of Tamil Nadu, the facts of the case were that the accused were charged for offences against Section 364. 392 and 302 read with Sections 34 and 120 B of the Indian Penal Code. The Supreme Court held that keeping in view the proximity of time within which act of murder was supposed to be committed and body found and the articles recovered from possession of accused presumption can be drawn not only of the fact that they were in the possession of the stolen articles after committing robbery but also committed the murder of the deceased. Therefore, conviction of the accused persons under Section 302 and 392 read with Section 34 was proper. Further, in case of Sikander Kumar vs. State[9], the prosecution was that the two appellants pointed a knife at the complainant and took Rs. 50/- and drove away the auto of the complainant. Next day the accused were arrested in Nakabandi in presence of complainant. One independent witness turned hostile.The trial Court imposed punishment against Sikander Kumar and other accused. On appeal, the Delhi High Court set aside the conviction, opining that entire prosecution story was inherently improbable and unbelievable. It would be unsafe to place total reliance on testimony of complainant to base conviction as one independent witness turned hostile. Section 393– Attempt to commit robbery[10] According to this section, anyone who attempts to commit robbery shall be punished with rigorous imprisonment for up to seven years and also be liable for a fine. Definition of Robbery Like theft, robbery involves taking money or property without permission. However, the crime of robbery also involves force or the threat of force. The typical elements of robbery are someone taking money or property:  with the intent to keep the property permanently  without the property owner’s consent  by the use of force or intimidation. Victim must be present[3] Robbery, unlike theft, entails taking property directly from a person. For instance, suppose two men armed with guns enter a bank, demand money from a teller, and flee with the cash. Because they had intent to steal, used the threat of force, and took money directly from a person, the two men have committed robbery. Forms of Robbery Laws may also define robberies in terms of classifications or degrees as well as by types of robbery such as “armed” or “strong arm” robbery of a person; robbery during the commission of rail vessel in operation; home invasion; bank robbery; carjacking; taxi; and ATM user. A home invasion robbery may combine robbery with burglary when property is taken. Armed Robbery is when the suspect uses an instrument which could cause great bodily injury such as a gun, knife, club, pipe, dirk, or other object used to create a threat of physical harm. Strong Arm Robbery is when the suspect uses bodily force without an instrument such as fists, feet, pulling the object away from the victim, shoving or holding victim to the ground, putting a sack overhead, restraining the feet or hands in order to take the property and/or facilitate escape. Penalties for Theft The punishment for theft is given under Sec 379 of the Indian Penal Code, 1860. By this section, any person who commits theft shall be punished with imprisonment of up to three 3 years or with fine or with both. In many countries, theft (or larceny) can be either a felony or a misdemeanor, depending on the value of the stolen property. For example, in Nevada, theft is a misdemeanor if the property is valued at less than $650 and a felony if the value is $650 or more. Theft convictions carry a range of potential punishments, and the range varies depending on the state. For instance, in Nevada, a felony theft conviction can result in up to ten years in prison and a fine of as much as $10,000. A misdemeanor conviction in that state carries the possibility of six months’ jail time and a fine of up to $1,000. Penalties for Robbery The punishment for robbery is given under Section 392 of the Indian Penal Code, 1860. By this section, any person who commits robbery shall be punished with rigorous imprisonment which may be extended up to ten years and shall also be liable to pay a fine. If the robbery is committed on the highway between sunset and sunrise, then the period of imprisonment may be extended up to 14 years. Further, under Section 393 the punishment for an attempt to commit robbery is enshrined. According to this section, anyone who attempts to commit robbery shall be punished with rigorous imprisonment for up to seven years and also be liable for a fine. Because robbery involves force, it is often considered a more serious crime than theft. In most cases, robbery is a felony, and a conviction can result in significant prison time, especially if a weapon was involved. In other countries for example, Georgia’s robbery statute provides that the crime is punishable by up to 20 years in prison. However, an armed robbery conviction in that state can lead to a sentence of up to 20 years in prison, life imprisonment, or even capital punishment. When Theft is Robbery[4] Theft is robbery when in order to commit theft or while committing theft, or while carrying away or attempting to carry away property obtained by theft, the offender voluntarily causes or attempts to cause to any person death, subject him/her to wrongful restraint or cause hurt or induce fear of instant death, instant wrongful restraint or causing instant hurt. Thus, theft becomes robbery when the following conditions are satisfied;  When the offender voluntarily causes or attempts to cause:  Death, wrongful restraint or hurt or  Fear of instant death, instant wrongful restraint or instant hurt.  And the above act(s) is done  While committing the theft  To commit the theft  While carrying away the property obtained by theft or  While attempting to carry away property obtained by theft.