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Both Mehra and Phillips were cadets on training in the Indian Air Force Academy, Jodhpur. The prosecution is with reference to an incident which is rather extraordinary being for alleged theft of an aircraft, which, according to the evidence of the Commanding 'Officer, P.W. 1, has never so far occurred. The alleged theft was on May 14, 1952. Phillips was discharged from the Academy just the previous day, i.e., May 13, 1952, on grounds of misconduct. Mehra was a cadet receiving training as a Navigator. The duty of a Navigator is only to guide a pilot with the help of instruments and maps. It is not clear from the evidence whether Phillips also had been receiving training as a Navigator. It is in evidence, however, that he knew flying. On May 14, 1952, Phillips was due to leave Jodhpur by train in view of his discharge. Mehra was due for flight in a Dakota as part of his training along with one Om Prakash, a flying cadet. It is in evidence that he had information about it. The authorised time to take off for the flight was between 6 a.m. to 6-30 a.m. The cadets under training have generally either local flights which mean flying area of about 20 miles from the aerodrome or they may have cross-country exercises and have flight in the country through the route for which they are specifically authorised. On that morning admittedly Mehra and Phillips took off, not a Dakota, but a Harvard H.T. 822. This was done before the prescribed time, i.e., at about 5 a.m. without authorisation and without observing any of the formalities, which are prerequisites for an aircraft-flight. It is also admitted that some time in the forenoon the same day they landed at a place in Pakistan about 100 miles away from the Indo-Pakistan border. It is in the evidence of one J. C. Kapoor who was the Military Adviser to the Indian High Commissioner in Pakistan at Karachi, that Mehra and Phillips contacted him in person on the morning of May 16,1952, at about 7 a.m. and informed him that they had lost their way and force-landed in a field, and that they left the plane there. They requested for his help to go back to Delhi. Thereupon Kapoor arranged for both of them being sent back to Delhi in an Indian National Airways plane and also arranged for the Harvard aircraft being sent away to Jodhpur. While they were thus on their return to Delhi on May 17, 1952, the plane was stopped at Jodhpur and they were both arrested.

Learned counsel for the appellant, Shri Sethi, attempted, to minimise the gravity of the incident by characterising it as a thoughtless prank on the part of a young student aged about 22 years who was receiving training as a flying cadet and that there can be no question of any offence under the Penal Code having been committed, whatever may have been the breach of rules and regulations involved thereby. None of the three courts below who have dealt with this case were prepared to accept any such suggestion. Indeed in view of the fact that the appellant himself has not put forward any such defence it is impossible to accede to it. The next contention of the learned counsel for the appellant-and that appears also to be the defence of the appellant-is that as a cadet under training he was entitled to take an aircraft on flight, no doubt subject to certain rules and regulations and that what at beat happened was nothing more than an unauthorised flight by a trainee as part of his training which was due and in which he lost his way. He had to get force-landed in an unknown place and this turned out to be Pakistan territory. The prosecution case, however, is that the flight to Pakistan was intentional and that such flight in the circumstances constituted theft of the aircraft. The main question of, fact to be determined, therefore, is whether this was intentional flight into Pakistan territory. It has been strenuously pressed upon us that the trial court was not prepared to accept the story that the flight was an intentional one to Pakistan and hence there was no justification for the appellate court and the High Court to find the contrary. It is also pointed out that Kapoor, the Military Adviser to the Indian High Commissioner in Pakistan, gave evidence' that when the appellant and Phillips -met him at Karachi on the morning of May 16, 1952, they told him that they wanted to fly to Delhi with a, view to contact the higher authorities there. It was also pointed out that neither the appellant nor Phillips took with them in the flight any of their belongings. Now it is clear from the judgments of the courts below that both the High Court on revision, as well as the Sessions Judge on appeal, came to a clear finding on this matter against the appellant. It is true that the

In view however of the somewhat halting finding of the trial Court on this matter, we have been taken through the evidence. It would be enough to mention broadly the facts from which, in our opinion, the conclusion arrived at by the Courts below that the flight was intended for Pakistan is not without sufficient reason and justification. As already stated, the aircraft in which the appellant was scheduled to fly on the morning of May 14, was a Dakota but he took off in a Harvard plane. It is in evidence that this was done between 5 a.m. and 5-30 a.m., i.e., before the prescribed time. The plane had just then been brought out from the hangar in order to be utilised for some other flight in the regular course. Appellant started the engine himself by misrepresenting to P. W. 12, the mechanic on duty at the hangar, that he had the permission of the Section Officer in charge. He was scheduled to have the flight along with another person, a flight-cadet by name Om Prakash. But he did not fly, with Om Prakash, but managed to take with him a discharged cadet, Phillips, who knew flying. Before any aircraft can be taken off, the flight has to be authorised by the Flight Commander. A flight authorisation book and form No. 700 have to be signed by the person who is to take off the aircraft for the flight. Admittedly these have not been done in this case and no authorisation was given. The explanation of the appellant is that this is not uncommon. These, however, are not merely empty formalities but are required for the safety of the aircraft as well as of the persons flying in it. It is impossible to accept the suggestion of the appellant that it is usual to allow trainees to take off the aircraft without complying with these essential preliminaries. No such suggestion has been made in cross-examination to any of the officers, and witnesses, who have been examined for the prosecution. It is in evidence that as soon as the taking off of the aircraft was discovered, it inevitably attracted the attention of officers and other persons in the aerodrome and that radio signals were immediately sent out to the occupants in the aircraft to bring the same back at once to the aerodrome. But these signals were. not heeded. The explanation of the appellant is that the full apparatus of the radio-telephone was not with them in the aircraft and that he did not receive the message. The appellant goes so far as to say that there were also no maps or compass or watch in the aircraft. It is proved, however, on the evidence of the responsible officers connected with the aerodrome and by production of Ex. P-6, that this particular aircraft, before it was brought out from the hangar, had been tested and was airworthy. It is difficult to believe that the flight would have been undertaken without all the equipment being in order. Even according to the evidence of Kapoor, the Military Adviser to the Indian High Commissioner in Pakistan, the appellant and Phillips had told him that the plane was airworthy. The suggestion of the appellant, therefore, in this behalf cannot obviously be accepted. It has been pointed out to us that there is some support in the evidence for the suggestion of force-landing on account of the weather being bad and the visibility being poor. This may be so, but would not explain why the air. craft got force-landed after going beyond the Indo-Pakistan border. There is evidence to show that the appellant Mehra was feeling some kind of dissatisfaction with his course and was contemplating a change. Seeking employment in Pakistan was, according to the evidence, one of the ideas in his mind, though in a very indefinite sort of way. Having regard to all these circumstances and the fact that -must be assumed against the appellant that an airworthy aircraft was taken off for flight and that a person like Phillips who knew flying sufficiently well and who was discharged the previous day, was deliberately taken into the aircraft, we are satisfied that the finding of the Courts below, viz., that the flight to Pakistan was intentional and not accidental, was justified. It is, therefore, not possible to treat the facts. of this case as being a mere prank or as an unauthorised cross-country flight in the course of which the border was accidentally crossed and force-landing became inevitable.

Theft is defined in a. 378 of the Indian Penal Code as follows:

" 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. "

Commission of theft, therefore, consists in (1) moving a movable property of a person out of his possession without his consent, (2) the moving being in order to the taking of the property with a dishonest intention. Thus, (1) the absence - of the person's consent at the time of moving, and (2) the presence of dishonest intention in so taking and at the time, are the essential ingredients of the offence of theft. In the Courts below a contention was raised, which has also been pressed here, that in the circumstances of this case there was implied consent to the moving of the aircraft inasmuch as the appellant was a cadet who, in the normal course, would be allowed to fly in an aircraft for purposes of training. It is quite clear, however, that the taking out of the aircraft in the present case had no relation to any such training. It was in an aircraft different from that which was intended for the appellant's training course for the day. It was taken out without the authority of the Flight Commander and, before the appointed time, in the company of a person like Phillips who, having been discharged, could not be allowed to fly in the aircraft. The flight was persisted in, in spite of signals to, return back when the unauthorised nature of the flight was discovered. It is impossible to imply consent in such a situation. The main contention of the learned counsel for the appellant, however, is that there is no proof in this case of any dishonest intention, much less of such an intention at the time when the flight was started. It is rightly pointed out that since the definition of theft requires that the moving of the property is to be in order to such taking, " such " meaning " intending to take dishonestly ", the very moving out must be with the dishonest intention. It is accordingly necessary to consider what " dishonest "