OFFENCES AGAINST PROPERTY: THEFT
Offences against property have been committed from time immemorial, ever since primaeval man acquired private property as opposed to property owned in common in primitive societies. The necessity for theft arises out of need as well as greed. Celebrated French novelist Victor Hugo in his epic historical novel Les Miserables relates the famous incident where his character ex-convict Jean Valjean robs a loaf of bread out of need. The Penal Code of Sri Lanka, in Chapter XVII titled 'Of Offences Against Property', lays down the law with regard to the criminal offence of theft. On 'theft', Section 366 says, whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit 'theft'.
In explanation it is said, (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, (2) a moving effected by the same act which effects the severance may be theft, (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, (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, and (5) the consent mentioned in the definition may be expressed 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.
Illustration
In illustration it is said, (a) A, cuts down a tree on Z's ground, with the intention of dishonestly taking the tree out of Z's possession without Z's consent. Here as soon as A has severed the tree, in order to such taking, he has committed theft, (b) A, puts abait for dogs in his pocket, and thus induces Z's dog to follow it; here if A's intention be dishonestly to take the dog out of Z's possession without Z's consent, A has committed theft as soon as Z's dog has begun to follow A, (c) A, meets a bullock carrying a box of treasure; he drives the bullock in a certain direction, in order that he may dishonestly take the treasure; as soon as the bullock begins to move A has committed the theft of the treasure, (d) A, being Z's servant, and entrusted by Z with the care of Z's plate, dishonestly runs away with the plate without Z's consent; A, has committed theft, (e) Z, going on a journey, entrusts his plate to A, the keeper of a warehouse, till Z shall return; A, carries the plate to a goldsmith and sells it; here the plate was not in Z's possession; it could not, therefore, be taken out of Z's possession, and A, has not committed theft, though he may have committed criminal breach of trust, (f) A, finds a ring belonging to Z on a table in the house which Z occupies; here the ring is in Z's possession, and if A dishonestly removes it, A, commits theft, (g) A, finds a ring lying on the high road, not in the possession of any person, A, by taking it, commits no theft, though he may commit criminal misappropriation of property, (h) A, sees a ring belonging to Z lying on a table in Z's house; not venturing to misappropriate the ring immediately for fear of search and detection, A hides the ring in a place where it is highly improbable that it will ever be found by Z with the intention of taking the ring from the hiding place and selling it when the loss is forgotten; here A, at the time of first moving the ring, commits theft, (i) A, delivers his watch to Z, a jeweller, to be regulated; Z' carries it to his shop; A, not owing to the jeweller any debt, for which the jeweler might lawfully detain the watch as security, enters the shop openly, takes his watch by force out of Z's hand, and carries it away; here A, though he may have committed criminal trespass and assault, has not committed theft, inasmuch as what he did was not done dishonestly, (j) A, owes money to Z for repairing the watch, and if Z retains the watch lawfully as a security for the debt, and A, takes the watch out of Z's possession with the intention of depriving Z of the property as a security for his debt, he commits theft, inasmuch as he takes it dishonestly, (k) again if A, having pawned his watch to Z, takes it out of Z's possession without Z's consent, not having paid what he borrowed on the watch, he commits theft, though the watch is his own property, inasmuch as he takes it dishonestly, (l) A, takes an article belonging to Z out of Z's possession, without Z's consent, with the intention of keeping it until he obtains money from Z as a reward for its restoration; here A, takes dishonestly; A, has, therefore, committed theft, (m) A, being on friendly terms with Z, goes into Z's library in Z's absence, and takes away a book without Z's express consent, for the purpose merely of reading it and with the intention of returning it; here it is probable that A may have conceived that he had Z's implied consent to use Z's book; if this was A's impression, A, has not committed theft, (n) A, asks charity from Z's wife; she gives A money, food and clothes which A knows belong to Z, her husband; here, it is probable that A may have conceived that Z's wife is authorized to give away alms; if this was A's impression, A has not committed theft, (o)A, is the paramour of Z's wife; she gives a valuable property which A knows belong to her husband Z and to be such property as she has not authority from Z to give; if A, takes the property dishonestly, he commits theft, and (p) A, in good faith, believing property belonging to Z to be A's own property, takes that property out of Z's possession; here, as A does not take dishonestly, he does not commit theft.
Punishment
On punishment for theft, Section 367 says, whoever commits theft shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
On theft of cattle and of praedial products, Section 368 says, whoever commits theft (a) of any bull, cow, steer, buffalo, heifer or calf or (b) of any fruit, vegetable, or other praedial production, or any cultivated root or plant used or capable of being used for the food of man or beast, or for medicine, distilling, or dyeing, or in the course of any manufacture, may in addition to any other punishment for theft, be punished with whipping.
Of theft in any dwelling house and so on, Section 369 says, whoever commits theft in any building, tent, or vessel, which building, tent, or vessel is used as a human dwelling, or for the custody of property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
On theft by a clerk or a servant of any property in the possession of a master, Section 370 says, whoever, being a clerk or servant, or being employed in the capacity of a clerk or servant, commits theft in respect of any property in the possession of his master or employer, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Of theft after preparation made for causing death or hurt, in order to the committing of the theft, Section 371 says, whoever commits theft, having made preparations for causing death or hurt or restraint, to any person, in order to the committing of such theft, or in order to the effecting of his escape after the committing of such theft, or in order to the retaining of property taken by such theft, shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
In illustration it is said, (a) A, commits theft of property in Z's possession and while committing this theft, he has a loaded pistol under his garment, having provided this pistol for the purpose of hurting Z, in case Z should resist; A, has committed the offence defined in this Section, and (b) A, picks Z's pocket, having posted several of his companions near him in order that they mayrestrain Z, if Z should perceive what is passing and should resist or should attempt to apprehend A; A, has committed the offence defined in this Section.
Treatise
In the treatise Offences under the Penal Code of Sri Lanka by Prof. G.L. Peiris that should adorn even a layman's library, it is mentioned that Abdul v. Dias (1910) 14 NLR 23 was a case where a licensed cattle seizer untied a bull from the complainant's garden and took it to the police station, falsely alleging he had found it loose and trespassing on the road. It was held in appeal that the dishonest intention, necessary for the conviction of theft, could be readily established in these circumstances. Hutchinson CJ said: "This man moved the bull, intending to take it out of the owner's possession without his consent; the question is whether he did it'dishonestly' within the meaning of the Code. He intended to cause loss to the owner who, if the accused could satisfy the Court or the Village Tribunal that the bull was trespassing, would have to pay something under the Cattle Trespass Ordinance in order to get his bull back". Inasmuch as an intention to cause wrongful loss to the complainant was demonstrable, the Court held that the dishonest intention in the accused had been proved.
In Gunasekera v. Soloman (1923) 25 NLR 474 Bertram CJ said: "In this case the Magistrate says that there can be no doubt that the accused were not bent so much on stealing the bull and half cart as on causing annoyance or injury to the complainant by their driving away the cart and bull. The injury there referred to is not an injury in the nature of wrongful loss. It is clear that this was an act of trespass of a malicious nature done with the object of causing annoyance, and I do not think it can be considered as theft within the meaning of our law".
Defence
In Gnanaprakasam v. Bulner(1916) 19 NLR 190, the accused was charged with having instructed her servant to bring some coal from the railway premises. Her defence to the charge of abetment of theft was that she believed the cinders in the railway yard to be discarded property which could be appropriated by anyone. The accused person's conviction was vitiated on the ground that her genuine belief that the property was res derelictae negated a dishonest intention. In appeal, de Sampayo J. observed: "It is not necessary that the subject should, in fact, be a derelict; it is sufficient if the person charged bona fide believed it to be so .... Therecan be no intention of causing wrongful loss to (the owner) when it is in good faith believed that he has abandoned the property and no longer wishes to have it".
