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374. Whoever unlawfully compels 1 any person to labour 2 Unlawful compulagainst the will of that person, shall be punished with im- sory prisonment of either description for a term which may extend labour. to one year, or with fine, or with both 3.
375. A man is said to commit 'rape' who, except in the Rape. case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the five following descriptions:
First.-Against her will".
Secondly. Without her consent.
Thirdly. With her consent, when her consent has been obtained by putting her in fear of death or of hurt 7.
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 3.
Fifthly. With or without her consent, when she is under ten years of age.
Explanation.-Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape 9.
Exception.-Sexual intercourse by a man with his own wife, the wife not being under ten years of age, is not rape 10.
'The compulsion employed must be such as amounts in law to duress and must at least be as great as would vitiate a contract, Mayne, P. C. 306. Compulsory bodily labour is lawful under some local laws: see in the Madras Presidency, Act I of 1858; in Burma, Act XIII of 1877.
*Bodily labour, probably, is meant. 3 Offences under this section may be compounded, Cr. P. C. sec. 345. But amends cannot be awarded, 5 Suth. Cr. 1, col. 2.
1 Sec. 10.
5 where she is in possession of her
⚫ where she is insensible from drink or any other cause, or so imbecile as to be incapable of rational assent, M. & M. 324. The mere cessation of a genuine resistance is not sufficient evidence of consent (I
Suth. Cr. 21), as to which see sec. 90.
7 Sec. 319.
So now in England; Criminal Law Amendment Act, 1885, sec. 4. Where there has been intimacy between the prisoner and the woman there will always be strong reason to suspect that the allegation of such belief was made to obviate the consequences of detection, Mayne, P. C. 308.
It is not necessary to prove emission. Where penetration is not proved the prisoner may be convicted of an attempt, Cr. P. C. sec. 238.
10 But, as in Lord Audley's case, he may be guilty of abetting a rape committed on his wife by others.
376. Whoever commits rape shall be punished with transportation for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine 1.
377. Whoever voluntarily has carnal intercourse against the order of nature with any man2, woman 2, or animal 3, shall be punished with transportation for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine 4.
Explanation.-Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section ".
1 And see the Whipping Act, sec. 4, supra, p. 106. The social position of the woman should not guide the Court to the measure of punishment to be inflicted on the man. The punishment should be proportioned to the greater or less atrocity of the crime, the conduct of the criminal, and the defenceless state of the woman, 6 Suth. Cr. 59, per Seton-Karr J.
2 Sec. 10.
3 Sec. 47.
And see the Whipping Act,
5 of any part of the body.
It is not necessary to prove emission, or that the act was against the will or without the consent of the person upon whom the offence was committed. If that person has consented, both are guilty of the offence, M. & M. 326.
It is not enough for a conviction under this section merely to prove that the accused is an habitual sodomite, 6 All. 204.
OF OFFENCES AGAINST PROPERTY 1.
378. Whoever, intending to take dishonestly2 any move- Theft able property out of the possession of any person without defined. that person's consent, moves that property in order to such taking, is said to commit theft 8.
1 As to the trial of persons previously convicted under this chapter, see Cr. P. C. sec. 348.
Sec. 24. A Hindú woman, therefore, who removes from the possession of her husband, and without his consent, her pallá or stridhana, cannot be convicted of theft, 8 Bom. H. C., Cr. Ca. 11. But a Muhammadan wife is not so identified with her husband that she cannot be convicted of theft of his property, 6 Bom. H. C., Cr. Ca. 9. Where A, acting bond fide in the interest of his master and finding fishermen poaching on his master's fishery, took charge of their nets, and kept possession of them, pending his master's orders, it was held that A had not committed theft, 6 Suth. Cr. 79. And there is no theft where the property is taken by mistake or under a bona fide claim of right to possess them, or with a bond fide belief that the owner's implied consent was given; Savigny, cited by Mayne, p. 314.
* Sec. 22.
See sec. 27, and p. 56, supra. Possession need not be lawful. If A lends B a horse for a week, and B wrongfully retains it after the week has expired, there may be a theft of the horse from B. And so if B had stolen the horse, M. & M. 336.
It is enough if he holds by an apparent title, or even an assertion of title not plainly illusory, 11 Bom. 137, following Cape v. Scott, L. R., 9 Q. B. 277 (where there is a colour
of right a person believing himself aggrieved shall not take the law into his own hands '). Fish living in a creek or in the open irrigation tanks of Southern India are not in 'possession' in such a sense as to render their capture and removal a theft, even though the right of capturing them has been sold or leased by Government to some person other than the accused, 5 Mad. 390. But when Government placed guards round a swamp in which salt was spontaneously formed, it was held that such possession of the salt had been taken as would cause its removal from the swamp against the will of Government, and with the intention of obtaining an unlawful gain, to be theft, 4 Mad. 228. So when the salt was formed in a creek, which was under the supervision of a customs-officer, 10 Bom. H. C. 74. • Sec. 90.
Any removal, however small, will be enough, even though the mover never had the property in his
Explanation 1.-A thing so long as it is attached to the earth, not being moveable 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 1.
Explanation 2.-A moving effected by the same act which effects the severance, may be a theft 2.
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 3.
Explanation 4.-A person, who by any means causes an animal to move 4, 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.
(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 conHere, as soon as 4 has severed the tree, in order to such taking, he has committed theft.
(b) A puts a bait 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 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 5.
(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 2.
(ƒ) 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 3.
(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 5.
(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 jeweller might lawfully detain the watch as a 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) If 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 dishonestly7.
(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.
(1) 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) 4, 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