Section 404 of Indian Penal Code, 1860 – Explained!

January 28, 2019 0 Comment

The section requires that the offender must possess dishonest intention, and with that intention he must misappropriate or convert to his own use a property possessed by a deceased at the time of his death. At the time of so misappropriating or converting to his own use he must also know that such property was in the possession of the deceased person at the time of his death and since then it has not come into the possession of any person legally entitled to such possession. The section also makes provision for a more severe punishment where the offender was the deceased’s clerk or servant at the time of his death.

The word ‘property’ has been used in the section. This should normally mean that both movable and immovable property are covered within it. But there is a divergence of opinion amongst different courts on this point. The High Courts of Bombay, Calcutta and Madhya Bharat hold the view that this section is limited only to movable property even though the same has not been specifically mentioned.

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But the Allahabad High Court is of the opinion that both immovable and movable property are included in the section because had this not been the intention of the drafters of the Indian Penal Code, they would definitely have used the words ‘movable property’ as they have done in many other sections.

Removing ornaments from the person of a dead body could not be criminal misappropriation of property under section 403 as a dead body is not a person and it cannot, therefore, possess any property. Such act is, therefore, punishable under section 404.

Where the offences of murder and robbery were both committed in the course of the same transaction, the offender was held guilty under section 392 and not under section 404 because in such a case the word ‘person’ could not be interpreted so narrowly and restrictively as to exclude the dead body of a human being whose death was caused in the course of the same transaction as that in which theft was committed.

Where the accused first committed murder of the deceased and then removed a gold ring from the body of the deceased, he caused wrongful gain to himself and thus committed an offence under section 404. Similarly, where the accused persons after murdering the deceased removed ornaments from the body and sold the same, they were held guilty under this section.

Where the accused head constable took away a watch, gold ornaments and cash from a boatman after using force against him by slapping him, while the boatman had got hold of these properties from the body of a person who had drowned, and the accused made no entries of these articles in the records and dishonestly kept them with himself, he was held guilty under sections 394 and 404 of the Code.

Where a prosecution witness admitted that the accused had confessed his guilt before him, and his testimony was not discredited by the cross-examination, and the dead body and stolen ornaments were also recovered at the instance of the accused, his conviction under sections 302, 404 and 201 of the Code was held to be proper.

In Ganesh Lal v. State of Rajasthan the dead body of the victim was recovered from the field showing that she was raped and murdered. The accused was present near the place of occurrence a little before the time of the incident. Silver ornaments worn by the deceased and axe stained with blood were recovered at the instance of the accused. His clothes stained with mud and human blood were recovered from his house. His underwear was having stains of blood and semen.

The accused, a bachelor, had two injuries which could have been caused at or about the time of the incident. He failed to offer any explanation of the said circumstances. The Supreme Court held that necessary inference flowing from the said circumstances could be used as a chain of incriminating circumstantial evidence fastening guilt on him and he was thus guilty under sections 376(2)(f), 302 and 404 of the Indian Penal Code.

The offence under section 404 is non-cognizable, bailable and non-compoundable, and is triable by magistrate of the first class.

Of Criminal Breach of Trust

This part of the offences against property deals with criminal breach of trust under sections 405 to 409, both inclusive.


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