Dave, J.—This ii an appeal against the judgment of the Sessions Judge, Jodhpur dated 26th July, 1954, whereby the appellants Jethiya and Motiya have been convicted under secs. 392 and 323 respectively. Jethiya has been sentenced to 5 years rigorous imprisonment while Motiya has been awarded 6 months rigorous imprisonment. 2. The prosecution case against the appellants was that on the morning of the 21st November, 1951, one Khiya son of Raju Vishnoi resident of Matora was going home from Pokarwali Nadi. At that time, three persons viz, the two appellants and one Nawalia beat him with Lathis saying that he was grazing his cattle in the field of Kirta Jat. It was further alleged against them that after Khiya had fallen on the ground, Motiya appellant caught hold of his hands and Jethiya and Navaliya removed the two golden Murkis which he was wearing in his ears. Motiya appellant also snatched from his possession one Bhakla and then all the three appellants ran away from that place because two persons Kana and Bhagwana came to the site, being attracted by Khiyas cries. 3. The first information report about this occurrence was lodged by Khiya himself at the Police Station, Bapini on 23-11-5! at 7 p.m. According to the procecution, the stolen gold Murkis and Bhakla were recovered at the instance of the appellant Jethiya from his sheep-yard and field respectively. All the three accused, Jethiya, Motiya and Nawalia, were challaned by the police for offences under secs. 392 and 397 LP C. in the court of the Sub-Divisional Magistrate, Phalodi. Navalia died during the pendency or" the inquiry in the court! of the committing Magistrate. Jothiya and Motia were committed to the court of the Sessions Judge, Jodhpur. The learned Sessions Judge had found that Motiya had taken part simply in beating Khiya and, therefore, he has been convicted under sec. 323 I.P.C. only. Against Jethiya it has been found that he also robbed Khiya of his gold Murkis and Bhakla and, therefore, he has been convicted under sec. 392 I.P.C. Both the appellants had denied all knowledge of the occurrence in the trial court. Their defence was that Khiya had enmity with them and, therefore, they have been falsely involved in the crime. Jethiya had also denied the recovery of the stolen property from his possession. 392 I.P.C. Both the appellants had denied all knowledge of the occurrence in the trial court. Their defence was that Khiya had enmity with them and, therefore, they have been falsely involved in the crime. Jethiya had also denied the recovery of the stolen property from his possession. One witness was produced in defence to prove that Khiya and Jethiya were on inimical terms. The learned Sessions Judge has disbelieved the defence witness. 4. Learned counsel for the appellants has raised two important questions of law in this appeal, but before dealing with them, it would be proper to be certain about the facts. So far as the factual part of the case goes, the three points for determination are (i) whether Khiya was between by the two appellants on the day of occurrence; (ii) whether the appellants removed Murkis and Bhakla from his person and, (iii) whether the Murkis and Bhakhla recovered by the appellants are same stolen articles. 5. The main prosecution witness regarding the occurrence is P.W. 3 Khiya himself. He has certainly cited two witnesses Kana and Bhagwana as persons, who came to the site on hearing his cries but Bhagwana was not produced by the prosecution and Kana who was examined as a witness, has not been believed by the trial court because of discre-pancies occurring in his statement—once given in the committing Magistrates court and next in the trial court. 6. Learned counsel for the appellants has urged that reliance should not be placed upon P.W. 3 Khiya but it appears from his statement that he has remained altogether unshaken in cross examination. His version is corroborated by other evidence and there is no reason to disbelieve him. He has stated that both the appellants and Navalia had attacked him with Lathies and they continued to beat him even after he fell down on the ground. Thereafter, when he was still lying on the ground, Motiya appellant caught hold of his hands while Jethiya and Navalia removed Murkis from his ears. His Bhakla was also snatched away by Motiya appellant and then all of them ran away from the site since Kana and Bhagwana arrived at the scene. He has given a reasonable explanation for delay in making the first information report. His Bhakla was also snatched away by Motiya appellant and then all of them ran away from the site since Kana and Bhagwana arrived at the scene. He has given a reasonable explanation for delay in making the first information report. He says that he was very badly injured and the Police Station was about 25 miles from the site of occurrence and, therefore, he could reach there on the third day with his brothers help. This witness was examined by P. W. 1 Dr. K. C. Singhle on 25-11-21 and he found no less than 17 injuries on his person. He was next examined by P. W. 2 Dr. M. L. Sharma at Mahatma Gandhi Hospital Jodhpur on 11-12-51 and even by that time 10 injuries were found on his person. There is, therefore, not the least reason to doubt that Khiya was given a very sound beating on the day of occurrence. It is significant that he was not cross-examined even with reference to the first information report. There was no reason for him to leave out real culprits if he were between by others and to implicate the two appellants in their place. The court has believed his statement and I also think that there is absolutely no reason to disbelieve it. It is amply proved by his statement and the evidence of P.Ws. 1 and 2 that both the appellants caused him simple hurt. The appellant Motiya has, therefore been rightly convicted under Sec. 323 I.P.C. Looking to the numerous injuries which were caused to Khiya, the sentence of six months r. i. awarded to him is not at all excessive and, therefore, so far, his appeal is concerned, it is fit to be summarily dismissed. 7. Coming to the other appellant Jethiya. it is established by the evidence of the Sub-Inspector P.W. 7 Saktimal that the murkis Ex. M. 1 and 2 were recovered from the sheep-yard belonging to him. He has stated that they were discovered at the instance of Khiya. According to his version, the appellant took him to his sheep-yard, dug out a small hole under an Aak tree and took out the pair of murkis. Similarly P.W. 10 Madansingh has stated that on the day he was in charge of investigation, the bhakla was recovered by him at the instance of the appellant Jethiya from his field. According to his version, the appellant took him to his sheep-yard, dug out a small hole under an Aak tree and took out the pair of murkis. Similarly P.W. 10 Madansingh has stated that on the day he was in charge of investigation, the bhakla was recovered by him at the instance of the appellant Jethiya from his field. Both the witnesses have been cross-examined but they have remained unshaken. P.W. 4 Manaklal who was a witness to the recovery of the murkis has supported the fact of the contents of the recovery memo Ex. P. I. Similarly P. W. 5 Dhura who was a witness to she recovery of bhakla at the appellants field has also verified its memo and has supported this fact. It is thus amply established from the evidence of the above mentioned four witness that both articles, i.e. pair of murkis and bhakla were recovered by the Police from the possession of the appellant Jethiya at his own instance. The appellant has denied his ownership of these articles while Khiya has identified them as his own property. The fact that these articles were found in Jethiyas possession supports Khiyas statement to the effect that both the articles and murkis in particular were removed from his ears by this appellant. These facts have not been very seriously contested at the time of arguments. 8. It is in main the following "two questions of law on which great stress has been laid by the appellants learned advocate. In the first instance, it has been urged that the prosecution evidence to the effect that the appellant Jethiya had given information which led to the recovery of the murkis and the bhakla is inadmissible in evidence because Sec 27 of the Indian Evidence Act, under which this piece of evidence could be admitted is repugnant to Art. 20 3) of the Constitution of India and, therefore, it stands abrogated by Art. 13 thereof. 9. His next argument is that although on the facts which have been found proved, Jethia appellant may be held guilty for offences under secs. 327 and 379 I.P.C. he cannot be held guilty for an offence under sec. 392 I.P.C. 10. So far as the first question is concerned, it has been urged by learned counsel for the appellants, that the statement of the accused which is admissible under sec. 327 and 379 I.P.C. he cannot be held guilty for an offence under sec. 392 I.P.C. 10. So far as the first question is concerned, it has been urged by learned counsel for the appellants, that the statement of the accused which is admissible under sec. 27 of the Indian Evidence Act is compelled testimony previously obtained from him and that since Art. 20(3) of the Constitution lays down that no person accused of any offence shall be compelled to be a witness against himself, sec. 27 should be considered to be abrogated by the Constitution. His arguments are based on a article appearing in the Journal section of the All India Reporter 1954, December Issue at page 99. Learned counsel has first drawn the attention of this Court to the following observations made by their Lordships of the Supreme Court in M. P. Sharma vs. Satish Chandra (1)— "Broadly stated the guarantee in Art. 20(3) is against "testimonial compulsion". It is suggested that this is confined to the oral evidence of a person standing his trial for an offence when called to the witness-stand. We can see no reason to confine the content of the constitutional guarantee to this barely literal import. So to limit it would be to rob the guarantee of its substantial purpose and to miss the substance for the sound as stated in certain American decisions. The phrase used in Art. 20(3) is "to be a witness". A person can "be a witness" not merely by giving oral evidence but also by producing documents or making intelligible gestures as in the case of a dumb witness (see sec. 119, Evidence Act) or the like. "To be a witness" is nothing more than "to furnish evidence", and such evidence can be furnished through the lips order by production of a thing or of a document or in other modes. So far as production of documents is concerned, no doubt sec. 139, Evidence Act says that a person producing a document on summons is not a witness. But that section is meant to regulate the right of cross-examination. It is not a guide to the connotation of the word "witness", which must be understood in its natural sence, i.e. as referring to a person who furnishes evidence. 139, Evidence Act says that a person producing a document on summons is not a witness. But that section is meant to regulate the right of cross-examination. It is not a guide to the connotation of the word "witness", which must be understood in its natural sence, i.e. as referring to a person who furnishes evidence. Indeed, every positive volitional act which furnishes evidence is testimony, and testimonial compulsion connotes coercion which procures the positive volitional evidentiary acts of the person, as opposed to the negative attitude of silence or submission on his part. Nor is there any reason to think that the protection in respect of the evidence so procured is confined to what transpires at the trial in the court room. The phrase used in Art. 20(3) is "to be a witness" and not to "appear as a witness". It follows that protection afforded to an accused in so far as it is related to the phrase "to be a witness" is not merely in respect of testimonial compulsion in the court room but may well extend from him. It is available therefore to a person against whom a formal accusation relating to the commission of offence has been levelled which in the normal course may result in prosecution. Whether it is available to other persons in other situations does not call for decision in this case." 11. He has then referred to the following observations made by their lordships of the Privy Council in Pulukuri Kottaya vs. Emperor(2)— "The condition necessary to bring sec. 27 into operation is that the discovery of a fact must be deposed to, and therefore so much of the information as relates distinctly to the fact thereby discovered may be proved. The section seems to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence; but clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate." 12. Learned counsel has then proceeded to argue that if secs.;25 and 26 of the Indian Evidence Act and sec. Learned counsel has then proceeded to argue that if secs.;25 and 26 of the Indian Evidence Act and sec. 162 of the Criminal Procedure Code be read together, it would appear that the law (assumes that there is an element of compulsion in the statements which are obtained by the Police Officers from the accused persons in their custody. It is further urged that sec. 27 of the Indian Evidence Act is only a proviso to the fore-going section and if any fact is deposed to as discovered in consequence of information received from an accused in the custody of a Police Officer, only so much of such information as relates distinctly to the fact thereby discovered is made admissible by this section. It is then contended that, even that part of the statement of the accused which is covered by sec. 27 of the Indian Evidence Act is attended with the element of compulsion but in spite of that, it was made admissible by the legislature because is was considered that there was some guarantee of the truthfulness of the information because of the discover of a fact According to learned counsel even this part of the statement of the accused is now repugnant to Art. 20(3) of the Constitution of India as interpreted by their Lordships of the Supreme Court in M. P. Sharma vs. Satish Chandra and, therefore, it should be taken that Sec. 27 of the Indian Evidence Act stands abrogated by Article 13 of the Constitution. 13. I have given due consideration to the arguments referred to above but in my opinion, learned counsel seems to read much more in the observations of their Lordships of the Privy Council and Supreme Court than what was intended to be laid down in the above cases. It should not be forgotten that their Lordships of the Privy Council have themselves pointed out that their observations should be understood in the context of the facts and circumstances in which they are made. Therefore, any tendency to stretch out the meaning of the observations made by their Lordships is not proper. It should not be forgotten that their Lordships of the Privy Council have themselves pointed out that their observations should be understood in the context of the facts and circumstances in which they are made. Therefore, any tendency to stretch out the meaning of the observations made by their Lordships is not proper. It is no doubt true that in the case of M. P. Sharma vs. Satish Chandra, their Lordships of the Supreme Court have given a wider meaning to Art.20(3) of the Constitution of India than what was sought to be put upon it on behalf of the respondents in that case. It was suggested on behalf of the respondents that the said Article should be confined to the oral evidence of a person standing his trial for an offence, when called to the witness stand. Repelling this argument it was observed by their Lordships that there was no reason to confine the content of the Constitution guarantee to this barely literal import, because that would rob the guarantee of its substantial purpose. It was further pointed out by their Lordships that the phrased used in the said Article is to be a witness" and not "to appear as a witness" and, therefore, the protection afforded to an accused was not merely in respect of testimonial compulsion in the court room but it also extended to compelled testimony previously obtained from him. It is, therefore, clear that if it can be shown to the court that the testimony previously obtained from the accused was compelled testimony that would be his by Art. 20(3) of the Constitution of India as interpreted by their Lordships, but this does not mean that every testimony previously given by the accused should be presumed to be compelled testimony. It would appear that in the above case it was urged before their Lordships that a search to obtain documents for investigation procuring of incriminatory evidence from the accused himself and was, therefore, unconstitutional and illegal. This argument did not find favour with their Lordships and it was observed that when the Constitution makers did not think it fit to subject the power of seizure to constitutional limitations by recognition of a fundamental right to privacy, analogous to the American Fourth Amendment, there was no justification to import into it a totally different fundamental right by soma process of strained construction. Learned counsel for the appellants wants this Court to presume that the information which is received from an accused and in consequence of which any fact is deposed to as discovered under Sec. 27 of the Indian Evidence Act is compelled testimony of the accused. He has laid special stress on the following sentence appearing in the judgment in the case of Pulukuri Kotiaya vs. Emperor (2) referred above:— "That ban was presumably inspired by the fear of the Legislature that a person under police influence might be induced to confess by the exercise of undue pressure." It may be remarked that this observation was made with regard to the ban occurring in the two preceding secs. viz. 25 and 26 of the Indian Evidence Act. To my mind, their Lordships only wanted to explain that the Legislature in India probably thought that a person under police influence might be induced to confess by under presure and that was why the ban embodied in secs. 25 and 26 was imposed. Their Lordships did not go to the extent of saying that every information received from the accused by the Police must be presumed to be obtained by under influence or pressure. On the other hand while adverting to sec. 27, it was remarked that the said section seemed to be based on the view that if a fact is actually discovered in consequence of information given, a guarantee is afforded thereby that the information was true, and could, therefore, be safely allowed to be given in evidence. 14. It happens many a time that the accused finds himself in such circumstances that he thinks it useless to hide the real story and, therefore, gives out the information himself. For instance, suppose a servant steals some ornaments including a watch belonging to his master and decamps with the property to another city. When he is arrested by the Police, he denies all knowledge about the occurence. On his personal search, however, the stolen watch is found in his pocket and so he is questioned again as to how it came into his possession He is also asked where is the remaining properly. Being unable to explain the presence of watch he considers it proper to give out the information about the remaining property as well. On his personal search, however, the stolen watch is found in his pocket and so he is questioned again as to how it came into his possession He is also asked where is the remaining properly. Being unable to explain the presence of watch he considers it proper to give out the information about the remaining property as well. He says it is hidden at two different places which he points out and then it is recovered by the Police. In this case it cannot be said that the information given by him is a compelled testimony. It was the force of circumstances and not the Police Officers pressure which brought out the information from him. First offenders or persons who are not seasoned criminals but who happen to commit offences being involved in certain circumstances may similarly give information voluntarily. It cannot be said therefore that in every case it must be presumed that the Police has extorted information by compulsion. It may be argued that the same may be said about certain confessions also made to Police Officers and still they have been made inadmissible. It is true that there can be cases in which an accused might have made a confession before a • Police Officer even without any threat, promise or inducement. The admissibility of such confessions is not banned in some countries. In India Sec. 25 of the Indian Evidence Act has put a ban and, therefore, they have been made inadmissible. It was perhaps thought that it would be difficult to distinguish for the Courts as to which confession made before the Police was given voluntarily and which was obtained by unfair means, and therefore looking to the peculiar conditions of the people of this place the legislature banned the admissibility of these confessions which are covered by sec, 25 and 26 of the Indian Evidence Act. In sec. 27, the Legislature removed this ban in respect of the information which relates distinctly to the fact hereby discovered. When the information given by an accused in Police custody is confirmed by the finding of the property or facts, then there remains no reason to presume that it might still have been obtained by the Police of compulsion. In sec. 27, the Legislature removed this ban in respect of the information which relates distinctly to the fact hereby discovered. When the information given by an accused in Police custody is confirmed by the finding of the property or facts, then there remains no reason to presume that it might still have been obtained by the Police of compulsion. Moreover when it is taken for granted that there is a guarantee of truth regarding the information in consequence of which a fact is actually discovered, I see no reason why it should not also be presumed that such information was voluntarily given, unless it is proved to the contrary that it was obtained by some sort of compulsion. Art. 20(3) of the Constitution of India does not contemplate the suppression of truth simply because the information is given by the accused. It only protects him against being compelled to witness against himself. In my opinion, it is therefore not correct to presume that information given by the accused under Sec. 27 of the Indian Evidence Act is a compelled testimony. It may be remarked in this connection that although, this matter did not come for consideration before their Lordships in the manner it has been agitated here, evidence about discovery of a fact at the instance of the accused was taken into consideration to be admissible by their Lordships of the Supreme Court in the case of Nisa Stree vs. The State of Orissa (3). 15. So far as the present case is concerned it is established beyond doubt that the murkis and Bhakla were recovered from the possession of the appellant Jethiya and, therefore, even if it were not proved that they were discovered at his instance, still he had to explain as to how he came into their possession and since he has not given any satisfactory explanation, the fact of recovery itself supports the statement of Khiya that it was the appellant who took away murkis from his ears. 16. It remains now to consider whether the removal of the murkis by the appellant Jethiya from the ears of Khiya amounted to robbery or to a mere offence of theft. Learned counsel for the appellants has referred to the case of Maghaji Nathaji vs. State(4). The facts of that case are, however, very different. 16. It remains now to consider whether the removal of the murkis by the appellant Jethiya from the ears of Khiya amounted to robbery or to a mere offence of theft. Learned counsel for the appellants has referred to the case of Maghaji Nathaji vs. State(4). The facts of that case are, however, very different. It was found by the learned Judges in that case that the removal of the gun for which the accused were convicted under secs. 394 and 397 I.P.C. was not in their minds and it was only when they were leaving the site of occurence that one Muluji picked it out from a corner in which it was lying. In the present case it certainly appears that the appellants in the beginning only intended to cause hurt to Khiya and there was no intention to deprive him of his property but when they left him, they took away his murkis and bhakla. If the said murkis and bhakla were not on the person of Khiya i.e. if they were just lying on the ground and the appellants had taken them away, it would have been a case of simple theft but it is apparent from the state-ment of Khiya that bhakla was on his person and the murkis were also worn by him in his ears. He also says that one of the appellants caught hold of his hands and the other snatched them from his ears. This shows that in order to commit theft of the murkis the appellants further voluntarily, caused some hurt to him. This, therefore, did not remain a simple case of theft but it amounted to robbery. As defined in Sec. 390 of the Indian Penal Code, theft is robbery if in order to the committing of the theft, or in carrying away property obtained by the theft, the offender voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt or of instant wrongful restraint In the case cited by the appellants learned advocate the accused had done nothing except removing the gun for the purpose of stealing it but in the present case it is established beyond doubt that the appellants voluntarily caused hurt to Khiya in snatching the murkis from his ears. The fact that the appellants caught hold of his hand further shows that he was restrained from opposing them and put in fea!r of further hurt. Under the circumstances, this cannot be said to be a case of simple theft. 17. Learned counsel for the appellants has urged in the end that even if Jethiya be convicted of the offence of robbery, the punishment awarded to him should be reduced because the offence of robbery in this case is more or less technical. In fact, he removed the murkis only as an additional punishment to Khiya after he had fallen on the ground and his original intention was not to commit any such crime. That seems to be correct. It appears that the appellants simply wanted to beat Khiya but when the appellant Jethiya saw that Khiya had fallen down, he snatched his murkis to give him additional punishment and make a dishonest gain for himself. This was not a planned robbery. It was committed because the idea came in the mind of Jethiya at the spur of the moment and he could not resist the temptation. Under the circumstances, three years rigorous imprisonment would be quite sufficient to meet the ends of justice. Motiyas appeal is, therefore, dismissed. Jethiyas appeal against his conviction is also dismissed but so far his sentence is concerned, it is partly allowed, and while his conviction under Sec. 392 is maintained, his sentence is reduced to 3 years rigorous imprisonment.