SURI VENKATAPPAYYA SASTRI, AGENT OF SRI RAJAH RANGAYYA APPA ROW BAHADUR ZEMINDAR GARU Vs. MADULA VENKANNA

JUDGEMENT

(1.) In this case the accused was charged with theft in that he dishonestly quarried and carried away stones from land in the possession of another. The Sub- Magistrate discharged the accused on the ground that the stones were not moveable property and so could not be the subject of theft and he relied on the ruling in Queen-Empress V/s. Kotayya I.L.R. 10 M. 255.

(2.) The question referred for our decision is whether, assuming that the stones were quarried and carried away dishonestly, the accused could be convicted of theft under Section 379, Indian Penal Code.

(3.) We have no doubt but that the answer to this question must be in the affirmative. Under Section 378, Indian Penal Code "Whoever intending to take dishonestly any moveable 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." The only question is whether the stones in this case are " moveable property." Section 22 enacts that these words " are intended to include corporeal property of every description, except land and things attached to the earth, or permanently fastened to anything which is attached to the earth" and in connection with this definition explanations 1 and 2 to Section 378 provide that "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, and " A moving effected by the same act which effects the sever-ancemay be a theft."