Chapter 5.21 - Laws Relating to Theft (steya)

Yājñavalkya has not defined the title of law called steya. He has attributed seventeen verses to describe various provisions connected with this title of law. The laws on theft in the Yājñavalkyasmṛti disclose an interesting fact that theft is not confined to those offences where articles to another are taken away by whatever methods but even the very serious offences such as murder, etc., also fall under this title of law called theft. Yājñavalkya expounds under this topic various means by which thieves may be detected for causing an arrest. The ground which form strong basis for officers empowered on this behalf to arrest persons as thieves are when stolen property is recovered with one, by tracing the footmark, one who has been previously convicted of theft and one whose whereabouts are unknown.^[1]

Moreover, on the ground of suspicion of theft [i.e., steya], the following persons may be apprehended–

1. who conceals his name, caste, etc.,
2. one who is addicted to gambling, women and drinking
3. one who on being questioned his mouth dries up and voice falters,
4. one enquiring about other’s property or house,
5. one whose movements are mysterious,
6. one who spends lavishly without having any apparent source of income,
7. one who sells lost or second-hand articles.^[2]

The burden of proving innocence lies on the person who is thus apprehended on suspicion of theft. If he cannot make himself free from the charge establishing his innocence by means of proof, then he shall be compelled by the king to make good the stolen article and also has to undergo the punishment like that of a thief.^[3] The offences coming under the title of law theft must have been considered dangerous to the society. Therefore, the author emphasises on the process of investigating the theft. He has given rules prescribing the liability of the local administrators and of common people when an offence falling under the title steya occurs within their locality. In case of a murder or of a theft taking place in a village and the offender is not traced to have gone out, in such situation, the blame for neglecting a thief will be attached to the headman of the village.^[4]

The Mitākṣarā explains this provision that it is the responsibility of the headman of a village to catch the thief and hand over to the king. While failing to do so, he should make good of the stolen property to the owner. The burden shifts to owner of pasture ground if offence is committed thereof and when offence is committed on road or on non-pasture ground, then burden lies on the guard of the road or the governor of that region.^[5]

Yājñavalkya gives another direction to be followed that when theft [i.e., steya] occurs within the borders of a village or the footmarks of a thief has not emerged out beyond boundary limit, the village is responsible to compensate the loss. In case, it is committed beyond a krośa then, five of the surrounding villages or even ten villages are to be held responsible.^[6] The punishment ordained for the offence of theft in general is that the King should compel the thief to restore the stolen property and should also punish him by various modes of corporal punishments. However, the punishment prescribed for a Brāhmaṇa is that he should be branded and banished from the kingdom.^[7]

Thereafter he states the special kinds of thefts and the special penalty provided thereof.

These are enumerated below -

(i) For the offence of confining others as prisoners, stealing elephants and horses and of committing murder with violence, the King is empowered to impose capital punishment by means of impalement.^[8]

(ii) The punishment o cutting of the thumbs and forefingers is prescribed for cut-purses and pickpockets of first offence. While committing these offenses for second time, a hand or a foot should be deprived of.^[9]

(iii) According to Yājñavalkya, in case of the theft of trifling, meddling, and superior articles, the fine should be imposed according to the value of the article. Another very important observation made by the author is that the place, time, age and capacity of the offender should be taken into consideration while passing sentence.^[10]

(iv) Highest punishment is ordained for striking with a weapon or for destroying an embryo. The highest or lowest may be the punishment in killing of a man or a woman having regard to the merit of the murderer and the person killed.^[11]

(v) An extremely wicked woman, causing destruction of an embryo, killing a man, destroying a bridge or reservoirs should be plunged into water having a stone tied round her neck provided she is not pregnant at that time.^[12]

(vi) The punishment recommended for a woman, who is guilty of administering poison or setting fire or killing her husband, preceptor, her children, is to cut off her ears, hands, nose and lips and to cause to be killed by bulls.^[13]

(vii) Punishment of death by way of burning in a fire of grass is provided for one, who sets fire to a field full of crops, etc., a house, a forest, a village, a pasture or a thrashing floor and also one who knows King’s wife.^[14]

(viii) The person, who knowingly offers food, shelter, fire, water, advice, implements and expenses to either a thief or a murderer is to be punished with the highest amercement.^[15]

Yājñavalkya has dealt with minute details to conduct an enquiry, when a murder is committed by an unknown murderer. The sons and friends or relations of one who has been killed secretly by an unknown individual should be immediately questioned if that person has any quarrel with other, if his wife is in love with other man. The author indicates that, enquiry should be made whether the person murdered was fond of other women or had he any greed for wealth. The people living near the place of murder should be interrogated minutely so that any clue to the murderer may be found.^[16] These provisions are of very practical importance for the process of investigations or enquiries even today.

Theft [i.e., steya] as a title of law in the Yājñavalkyasmṛti, encompasses other subjects of modern criminal jurisdiction besides theft such as murder, causing miscarriage, mischief by fire or explosive substance, etc. Comparing the provisions of the Yājñavalkyasmṛti with the prevailing modern law, the following provisions of Indian Penal Code are found similar to the laws enumerated by Yājñavalkya under Section theft–

(i) Indian Penal Code contains a provision under Section 212 by which harboring an offender is declared to be a punishable offence.^[17] Yājñavalkya has also made it a punishable offence whenever someone harbors a thief.

(ii) Section 32 of Indian Penal Code deals with the offence of voluntarily causing a woman with child to miscarry if not caused in good faith for saving the life of a woman.^[18]

(iii) Section 435, 436 of the same Act contemplates destruction of property or agricultural product and of house respectively committing mischief by fire or any explosive substance.^[19]

(iv) Section 378 of Indian Penal Code defines theft as dishonestly taking any movable property out of the possession of any person without that person’s consent. Punishment for theft is prescribed under Section 379 which is imprisonment of either description for a term which may extend up to three years or with fine or with both.^[20]

(v) Section 302 of this Act declares that whoever commits murder shall be punished with death or imprisonment for life and shall also be liable to fine.^[21] Yājñavalkya also prescribes death penalty for murder. However, it is to be mentioned that the various modes of executing death penalty given by Yājñavalkya are not followed or accepted under modern law. It appears Yājñavalkya has treated the offence of criminal nature within the topic theft.

Footnotes and references:

[1]:

grāhakairgṛhyate cauro loptreṇātha padena vā/ pūrvakarmāparādhī ca tatha cāśuddhavāsakaḥ// Yājñavalkyasmṛti, 2.266

[2]:

anye’pi śvikayā grāhyā… vinaṣṭadravyavikrayāḥ// Ibid., 2.267-268

[3]:

gṛhītaḥ śaṅkayā caurye nātmānaṃ cedviśodhayet/ dāpayitvā gataṃ dravyaṃ cauradaṇḍena daṇḍayet// Ibid., 2.269

[4]:

ghātite’pahṛte doṣo grāmabharturanirgate/ vi vītabhartu pathi cauraddharturavītake// Ibid., 2.271

[5]:

Mitakṣarā, Ibid.

[6]:

svasīmni… kraśāddaśagrāmyathava punaḥ// Ibid., 2.272

[7]:

Ibid., 2.270

[8]:

Ibid., 2.273

[9]:

utkṣepakagranlhibhedau karasandaṃśahīnakau/ kāryau dvitīyāparādhe karapādaikahīnakau// Ibid., 2.274

[10]:

kṣudramadhyamahādravyaharaṇe sārato damaḥ/ deśakālavayaḥśakti saṃcintyaṃ daṇḍakarmaṇi// Ibid., 2.275

[11]:

śastrāvapāte garbhasya pātane cottamo damaḥ/ uttamo vādhamo vāpi puruṣastrīpramāpaṇe// Ibid., 2.277

[12]:

vipraduṣṭāṃ striyaṃ caiva puruṣaghnīmagarbhiṇīm/ setubhedakarīṃ cāpsu silāṃ baddhvā praveśayet// Ibid., 2.278

[13]:

Ibid., 2.279

[14]:

Ibid., 2.282

[15]:

bhaktāvakāśāgnyudakamantropakaraṇavyayān/ dattvā caurasya vā hanturjānato dama uttamaḥ// Ibid., 2.276

[16]:

Ibid.,2.280-281

[17]:

Misra, S.N., Indian Penal Code, pages396-397

[18]:

Ibid., page615

[19]:

Ibid., page797

[20]:

Ibid., pages721-722, 729

[21]:

Ibid., page547