TMI Blog1957 (2) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 fights 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 Dakaota, 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 ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant himself has not put forward any such defence it is impossible to accede to it. The next contention of the learned 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 best happened was nothing more than 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 Paki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 discharge cadet, Phillips, whom 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... country flight in the course of which the border was accidentally crossed and force-landing became inevitable. 7. It has been strenuously urged that if the flight was intended to be Pakistan the appellant and Phillips would not have contacted Kapoor and requested him to send them back to Delhi. But this does not necessarily negative their intention at the time of taking off. It may be that after reaching Pakistan the impracticability of their venture dawned upon them and they gave it up. It may be noticed that they were in fact in Pakistan territory for three days and we have nothing but their own word as to how they spent the time on the 14th and 15th. However this may be, if the circumstances are such from which a Court of fact is in a position to infer the purpose and intention and the story of having lost the way cannot be accepted having regard to the aircraft being airworthy, with the necessary equipment, the finding that it was a deliberate flight to Pakistan cannot be said to be unreasonable. It may be true that they did not take with them any of their belongings but this was probably part of the plan in order to take off by surprise and does not exclude the idea o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... honest intention consists of under the Indian Penal Code. Section 24 of the Code says that whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person is said to do that thing dishonestly . Section 23 of the Code says as follows : 'Wrongful gain' is gain by unlawful means of property to which the person gaining is not legally entitled. 'Wrongful loss' is the loss by unlawful means of property to which the person losing it is legally entitled. A person is said to gain wrongfully when such person retains wrongfully, as well as when such person acquires wrongfully. A person is said to lose wrongfully when such person is wrongfully kept out of any property, as well as when such person is wrongfully deprived of property. 11. Taking these two definitions together, a person can be said to have dishonest intention, if in taking the property it is his intention to cause gain, by unlawful means, of the property to which the person so gaining is not legally entitled or to cause loss, by wrongful means, of the property to which a person so losing is legally entitled. It is further cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tial taking out of such aircraft for flight was committed at the very outset, there is no difficulty in coming to the conclusion, as the courts below have done, that the dishonest intention, if any, was at the very outset. This is not a case where a person in the position of the appellant started on an authorised flight and exploited it for a dishonesty purpose in the course thereof. In such a case, inference of initial dishonest intention may be difficult. The question, however, is whether the wrongful gain and the wrongful loss were intentional. It is urged that the well-known distinction which Penal Code makes, in various places, between intention to cause a particular result and the knowledge of likelihood of causing as particular result has not been appreciated. It is also suggested that the decided cases have pointed out that the maxim that every person must be taken to taken to intend the natural consequence of his acts, is a legal fiction which is not recognised for penal consequences in the Indian Penal Code. (See Vullappa v. Bheema Row A.I.R. 1918 Mad. 136. Now whatever may be said about these distinctions in an appropriate case, there is no scope for any doubt in this ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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