L5 Offence of theft under Indian Penal Code

Important ingredients of the offence of theft are:

1. moves property;

2. movable property;

3. dishonest intention;

4. out of the possession of any person;

5. without that person's consent.

Thus, if a person dishonestly moves a movable property out of the possession of any other person without that person's consent, moves that property in order to such taking, is said to commit theft.

The property must be movable. A tree planted in soil or a fan attached to cieling is an immovable property. When the tree is uprooted or the fan is removed from the fixed position, it becomes movable. If the intention is dishonest in such moving , the moving itself becomes theft.

There must be moving of property. Severance of immovable property with dishonest intention itself becomes theft. Removal of obstacle to use someone else's property with dishonest intention is also theft. Suppose X is watering his field through a pipe. Y has his field adjacent to X's field. The water flowing through pipe is prevented from entering Y's field through a wooden plank. If Y removes the plank to water his field with dishonest intention , then Y commits theft.

Even causing an animal to move belonging to other with dishonest intention is also theft. Suppose, A has bullock cart and there is a treasure box on the cart. B, in order to take the box shows food to the bullocks and cause them to move. Such movement also results in theft.

The intention to move property must be dishonest. Suppose, M finds a mobile lying on a table. He thinks that it is his mobile but actually the mobile belongs to N. This is not a case of theft by M as there is no dishonest intention. Even when M knows that it is N's mobile and thinking that N might have forgot it M takes itto return to N, there will be no theft. But, A has pen with only 10% refil left in it. B has a similar pen with full refil in it. A intentionally exchanges it with B's pen to get use of more refil. This is also a case of theft.

Theft is committed out of a person's possession rather than against his ownership. So, an important question arises that can a person commit theft of his own property? The answer is Yes. Suppose, D is a person whose watch has to be repaired. D gives it to a watch repairer who repairs it. In order to avoid payment of repairing, D goes to his shop at night and takes that watch in D's absence. Here, D commits theft of his own property.

An important thing to note is that an ownerless thing can't be subject to theft. If a property is in nobody's possession , it can't be stolen. If a property is in possession of several joint owners and one of the owners takes exclusive possession dishonestly , he has committed theft. The property must be taken in possession without the person's consent.

The consent may be written, oral or through any action. Suppose, A takes a diamond ring from B's house without his consent to keep it with him till B repays an earlier loan. This is a case of theft. Consider, K goes to L's house and visits his library. In L's absence K takes a book from there thinking that he would return it after reading and considering that K is his friend. This is not a case of theft.

Now consider an important example. G is a person standing besides a tree. H comes there and asks if G is willing to sell that tree for Rs 5000. G is not the owner of the tree rather it belongs to Z but still to earn money he accepts the offer of H. H comes and cut down the tree. Then, there is no liability of theft on H as there is no dishonest intention. But G is guilty of abetment to theft.

A goes to B's house. There he sees a gold chain lying on the sofa. He observes that he can't take it away at that time. So, he decides to hide it beneath the cushions of the sofa. This is also a case of theft.