(5) theft


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(5) theft

  1. 1. THEFT The parties involve are A, as the accused and B, as the victim. Then, the issue here iswhether B can be held liable for offence of theft as defined under Section 378 of the Penal Code andpunishable under Section 379 of the same code for stealing B’s book.LAW PRINCIPLE Section 378 of Penal Code states that whoever, intending to take dishonestly any movableproperty out of possession of any person without that person’s consent, moves that property inorder to such taking, is said to commit theft. In order to constitute the offence of theft, there are five elements must be fulfilled. Firstly,there must be an intention to take dishonestly. The word ‘dishonest’ is defined in section 24 of thePenal Code as whoever does anything with the intention of causing wrongful gain to one person orwrongful loss to another man, irrespective of whether the act causes actual wrongful loss or gain, issaid to do that thing ‘dishonestly’. Then, under section 23, wrongful gain is gain by unlawful meansof property to which the person gaining is not legally entitled. Meanwhile, wrongful loss is the loss byunlawful means of property to which the person losing it is legally entitled. Therefore, dishonestrequires intention to cause wrongful loss or wrongful gain at the time of moving property. Then, in the case of Munandu v PP, the accused had pleaded guilty to theft of a bicycle.Although he pleaded guilty, he claimed that he was drunk at the time of the incident and took thebicycle by mistake thinking it was his. It was held that if the accused really in good faith and believingthat he bicycle to be his property, he had taken it out of possession, then he did not take dishonestlyand therefore did not commit theft. However, taking of property as a security for a debt was held to be theft in the case of PP vRamiah. In this case, the 3 accused were charged for a house breaking and theft for removing atrunk which was in possession of the victim. The trunk with its contents was found several days laterin the possession of one of the accused. The accused argued that the victim owed him money andthe trunk was removed because it was for the purpose of security for the victim to pay the debt. Thecourt then convicted them for theft. The second element that must be satisfied in order to constitute an offence of theft is theproperty must be movable. Movable is defined in section 22 of Penal Code as to include physicalproperty of every description other than land. The third element that must be fulfilled is the property should be taken out of possession ofanother person. In the case of Sri Churn Chungo, the court held that whoever moves property inorder to take it with the intention of keeping the person is entitled to the possession of it out of thepossession of it by unlawful means, though he does not intend to deprive him permanently of it, issaid to commit theft. The next element is that the property is taken without consent of the person. Explanation 5of section 378 states that the consent may be express or implied and may be given either by theperson in possession or by any person having that purpose authority either express or implied. STATE ILLUSTRATION (m) OF SECTION 378
  2. 2. The last element is there must be a removal of property. The property must be moved ortaken out of possession. It is sufficient that the person, who has formed such dishonest intention,moves that property in order to such taking. Explanation 2 of section 378 of PC states that a moving,effected by the same act which effect the severance, may be theft. In the case of Raja Mohamed vR, the appellant – chemical mixer- removed 2 dozen glasses – from store on ground floor – 2 nd floor– no evidence of removed out of victim’s possession – but had dishonest intention – moves theproperty – in order to move the property out of possession of the company.APPLICATIONCONCLUSION In conclusion, A may be held liable for theft under Section 378 of the Penal Code andpunishable under Section 379 of the same code for stealing B’s book.