1. This is an appeal against the judgment of the Sessions Judge, Jodhpur dated 26-7-1954 whereby the appellants Jethiya and Motiya have been convicted Under Sections 392 and 323 respectively. Jethiya has been sentenced to 5 years rigorous imprisonment while Motiya has beea awarded 6 months' rigorous imprisonments
2. The prosecution case against the appellants was that on the morning of 21-11-1951, one Khiya son of Raju Vishnoi resident of Matora was going home from Pokarwali Nudi. At that time, three persons viz., the two appellants and one NawaHa beat him with lathis saying that he was grazing his cattle in the field of Kirta jat. It was further alleged against them that alter Khiya had fallen on the ground, Motiya appellant caught hold of his hands and Jethiya and Navalia removed the tw6 golden Murkis which he was wearing in his ears. Motiya appellant also snatched from nis possession one Bhakla and then all the three appellants ran away from that place because two persons Kana and Bhagawana came to the site, being attracted by Khiva's cries.
3. The first information report about this occurrence was lodged by Khiya nimself at the Police Station, Bapini on 23-11-51 at 7 p. rn. According to the prosecution, 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 Navalia) were ehallaned by the police for offences Under Sections 392 and 397, IPC in the court of the Sub Divisional Magistrate, Phalodi. Navalia died during the pendency of the inquiry in the court of the committing Magistrate. Jethiya and Motiya were committed to the court of the Sessions Judge, Jodhpur.
The learned Sessions Judge has found that Motiya had taken part simply in beating Khiya and, therefore, he has been convicted Under Section 323, IPC 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 Section 392, IPC 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 tactual part of the case goes, the three points for determination are (i) whether Khiya was beaten 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 Bhakla recovered by the appellants are the 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 discrepancies occurring in his statements once given in the committing Magistrate 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 un-shaken 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 Navah'a had attacked him with lathis and that 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. 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 brother's help. This witness was examined by P.W. 1 Dr. K, C. Singhal on 25-11 51 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 beaten by others and to implicate the two appellants in their place.
The trial court has believed his statement and 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 Section 323 IPC 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 Exs. M. 1 and 2 were recovered from the sheep-yard belonging to him. He has also stated that they were discovered at the instance of Khiva. 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 BhaHa 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 un-shaken. 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. 1. Similarly P.W. 5 Dhura who was a witness to the recovery of Bhakla at the appellant's field has also verified its memo and has supported this fact. It is thus amply established from the evidence of the above mentioned four witnesses 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 Khiya's possession supports Khiya's 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 seriously contested at the time of argument.
8. It is in main tile following two questions of law on which great stress has been laid by the appellant's 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 Section 27, Indian Evidence Act, under which this piece of evidence could be admitted is repugnant to Article 20(3) of the Constitution of India and, therefore,, it stands abrogated by Article 13 thereof.
9. His next argument is that although on the facts which have been found proved, Jethiya appellant may be held guilty for offences Under Sections 327 and 379, IPC The cannot be held guilty for an offence Under Section 392, IPC
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 Section 27, Indian Evidence Act is compelled testimony previously obtained from him and that since Article 20(3) of the Constitution lays down that no person accused of any offence shall be compelled to be a witness against himself, Section 27 should be considered to be abrogated by the Constitution.
His arguments are based on an article appearing in the 'Journal Section of the All India Reporter 1954, December Issue at p. 99'. learned Counsel has first drawn the attention of this Court to the following observation made by their Lordships of the Supreme Court in 'Sharma V. Satish Chandra' : 1978(2)ELT287(SC) .
Broadly stated the guarantee in Article 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 tile 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 Article 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 Section 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 or by production of a thing or of a document or in other modes.
So far as production of documents is concerned, no doubt Section 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 sense, i. e., as referr-' ing 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 Article 20(3) is 'to be a witness' and not to 'appear as a witness'. It follows that the 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 to compelled testimony previously obtained from him. It is available therefore to a person against whom a formal accusation relating to the commission of an 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 observation made by their Lordships of the Privy Council in Tulukuri Kottaya v. Emperor' AIR 1947 PC 67 (B).
The condition necessary to bring Section 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 Sections 25 and 26, Indian Evidence Act and Section 162, Criminal P. C, 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 Section 27, 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 Section 27, . Indian Evidence Act is attended with the element of compulsion but in spite of that, it was made admissible by the legislature because it was considered that there was some guarantee of the truthfulness of the information because of the discovery of a fact. According to learned Counsel even this part of the statement of the accused is now repugnant to Article 20(3), Constitution of India as interpreted by their Lordships of the Supreme Court in 'Sharma v. Satish Chandra', (A), and, therefore, it should be taken that Section 27, Indian Evidence Act stands abrogated by Article 13 of the Constitution.
13. I have given due consideration to the arguments referred 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.
Punjab Co-operative Bank Ltd., Amritsar v. Commr. of Income-tax, Lahore' AIR 1940 PC 230 (C). 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 'Sharma v. Satish Chandra', (A), their Lordships of the Supreme Court have given a wider meaning to Article 20(3), 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 constitutional 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 phrase 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,1 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 hit by Article 20(3), Constitution of India1 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 into an offence is a compulsory 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 search and 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 funda- mental right, by some 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 Section 27, 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 Kottaya v. Emperor', (B), referred aboveThat 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 Sections viz., 25 and 26, 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 undue pressure and that was why the ban embodied in Sections 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 undue influence or pressure.
On the other hand while adverting to Section 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 occurrence. 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 property. Being unable to explain the presence of the 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 Officer's 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 inducements. The admissibility of such confessions is not banned in some countries.
In India Section 25, 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 country and the general tendency of the Police of this place, the legislature banned the admissibility of those confessions which are covered by Sections 25 and 26, Indian Evidence Act.
In Section 27, the Legislature removed this ban in respect of the information which relates distinctly to the fact thereby 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 by 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.
Article 20 (3), 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 be a witness against himself. In my opinion it is therefore not correct to presume that information given by the accused Under Section 27, Indian Evidence Act is 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 by their Lordships of the Supreme Court in the case of 'Nisa Stree v. State of Orissa' : AIR1954SC279 .
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 v. The State' AIR 1953 Sau 85 (E). The facts of that case arc, 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 Sections 394 and 397, IPC was not in their minds and it was only when they were leaving the site of occurrence 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 DhaMa 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 statement of Khiya that Bliakla 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 ease of theft but it amounted to robbery.
As defined in Section 390, IPC 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 tile appellants voluntarily caused hurt to Khiya in snatching the Murkis from his ears. The fact that the appellants caught hold of his hands further shows that he was restrained from opposing them and put in fear 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, the 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.
Motiya's appeal is, therefore, dismissed. Jethiya's appeal against his conviction is also dismissed but so far his sentence is concerned, it is partly allowed, and while his conviction Under Section 392 is maintained, his sentence is reduced to 3 years' rigorous imprisonment.