Section 133 of the Indian Evidence Act, 1872 is the only absolute rule of law dealing with accomplice evidence. However it is the opinion of some that this section is redundant as Section 118 makes all persons competent to testify except those persons which the section specifically bars. Moreover there is no rule which requires that the evidence of an accomplice should be corroborated. But Section 133 might lead persons to suppose that the Legislature desired to encourage convictions on the uncorroborated evidence of an accomplice.
This interpretation however cannot hold good in light of Section 114 (b) which lays down the presumption that an accomplice is unworthy of credit unless he is corroborated in material particulars. Thus owing to this conflict between Section 114(b) and Section 133 some experts feel that Section 133 should have been omitted and the law relating to accomplice evidence would have been the same as it is now and the awkwardness of appearing to sanction a practice so universally condemned would have been avoided.
However the Courts have resolved this apparent conflict between the two sections by harmoniously reading Sections 114(b) and 133 together and held that while it is not illegal to act upon the uncorroborated testimony of an accomplice it is a rule of prudence so universally followed so as to amount almost to a rule of law that it is unsafe to act upon the evidence of an accomplice unless it is corroborated in material respects so as to implicate the accused. This in a nutshell is the core of accomplice evidence and must be kept in mind at all times while dealing with the subject of accomplice evidence.
To the lay man, accomplice evidence might seem untrustworthy as accomplices are usually always interested and infamous witnesses but their evidence is admitted owing to necessity as it is often impossible without having recourse to such evidence to bring the principal offenders to justice. Thus accomplice evidence might seem unreliable but it is often a very useful and even invaluable tool in crime detection, crime solving and delivering justice and consequently a very important part of the Law of Evidence. Who is an Accomplice?
It is extremely important to understand what the term accomplice means and signifies as to attract Section 133 a person must be an accomplice. The word ‘accomplice’ has not been defined by the Indian Evidence Act, 1872 and should therefore be presumed to have been used in the ordinary sense by the legislature. However the judiciary has dealt with this issue extensively and has tried to explain comprehensively as to who an accomplice is.
An accomplice is a guilty associate or partner in crime, or who sustains such a relation to the criminal act that he could be jointly indicted with the principal. Usually most of the crimes are committed at secluded places where there will not be any eye – witness to testify regard to these offences, and it would not be possible for the police to get sufficient evidence to prove the guilt of the accused. In such cases what police does is that it picks up one of the suspects arrested who is usually least guilty and offers to him an assurance that if he is inclined to divulge all information relating to the commission of the crime and give evidence against his own colleagues, he will be pardoned.
So any such person who is picked up or who is taken by the police for the purpose of giving evidence against his own colleagues is known as an accomplice or an approver. In Davies v. Director of Public Prosecutions, the House of Lords has classified accomplices as follows: i. Participants in the crime charged (participes criminis) whether as principals or accessories before or after the fact (in felonies) or persons committing, procuring or aiding and abetting (in the case of misdemeanours). ii. Receivers in respect of the thieves from whom they receive goods, on a trial of the latter for larceny. iii. Parties to the crimes which may be proved as facts similar to the offences charged.
An accomplice is a person who participates in the commission of the actual crime charged against an accused. If an accomplice is jointly indicted with his fellows, he is incompetent to testify, unless he tendered a pardon or unless he has been discharged, acquitted or convicted. Competency of Accomplice as Witness
An accomplice is a competent witness if he is not being tried in the case in which he is required to give evidence, but if he himself on trial in the case, he is altogether incompetent, for being an accused person in the case, he cannot be examined on oath. If an accomplice is jointly indicted with his fellows, he is incompetent to testify, unless he tendered a pardon or unless he has been discharged, acquitted or convicted. Therefore, an accomplice is a competent witness, if, at the time he is required to give evidence, he is not an accused person in the case in which he is required to testify.
An accomplice by accepting a pardon under Section 306 CrPC becomes a competent witness and may as any other witnesses be examined on oath; the prosecution must be withdrawn and the accused formally discharged under Section 321 CrPC before he can become a competent witness. Under Article 20(3) of the Constitution of India, 1950 no accused shall be compelled to be a witness against himself.
But as an accomplice accepts a pardon of his free will on condition of a true disclosure, in his own interest and is not compelled to give self-incriminating evidence the law in Sections 306 and 308, Code of Criminal Procedure is not affected. So a pardoned accused is bound to make a full disclosure and on his failure to do so he may be tried of the offence originally charged and his statement may be used against him under Section 308. Section 133 and Illustration (b) to Section 114: Harmonious Construction The provisions of the Evidence Act relating to the evidence of an accomplice are contained in Section 133 and Illustration (b) of Section 114 of the Act. S.133. Accomplice:-
An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the un corroborated testimony of an accomplice. S.114. Illustration (b):- The court may presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars. Section 133 provides that the evidence of an accomplice, though it is uncorroborated, may form the basis for a conviction.
This section is the only absolute rule of law as regards the evidence of an accomplice. Section 114 enables the court to presume the existence of any fact which it thinks likely to have happened, having regard to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. In this section are also included certain maxims by way of illustrations which are founded on the experience gained in the past. These illustrations are in two parts. The first part of illustrations contains maxims and the later part exceptions to their application.
The first part of illustration (b) provides that the court may presume that an accomplice is unworthy of credit unless he is corroborated in material particulars. However, when we turn to the later part of illustration (b) it becomes clear that the Legislature itself has envisaged cases where such a presumption may have no application. It provides, “But the Court shall also have regard to such facts as the following, in considering whether such maxims do or do not apply to the particular case before it………
As to illustration (b)— A crime is committed by several persons. A, B and C, three of the criminals, are captured on the spot and kept apart from each other. Each gives an account of the crime implicating D, and the accounts corroborate each other in such a manner as to render previous concert highly improbable”. Illustration (b) is only a rule of caution or guidance to be observed in practice, it is not at all a rule of law. In that respect the illustration is complementary to section 133.
The combined effect of Section 133 and Section 114, illustration (b) it that Section 133 is a clear authorization to the courts to convict on the uncorroborated testimony of an accomplice, but since such a witness, being criminal himself, may not always be trustworthy, the courts are guided by the illustration appended to section 114 that, if it is necessary the court should presume that he is unreliable unless his statements are supported or verified by some independent evidence.
A statement to this effect to be found in the judgment of Chandrachud J. (afterwards C.J.), in Dagdu v. State of Maharashtra "There is no antithesis between S. 133 and illustration (b) to S. 114, because the illustration only says that the court 'may' presume a certain state of affairs. It does not seek to raise a conclusive and irrebutable presumption.
Reading the two together the position which emerges is that though an accomplice is a competent Witness and though a conviction may lawfully rest on his uncorroborated testimony yet the court is entitled to presume and may indeed be justified in presuming that no reliance can be placed on the evidence of an accomplice unless that evidence is corroborated in material particulars, by which is meant that there has to be some independent evidence tending to incriminate the particular accused in the commission of the crime. It is hazardous, as a matter of prudence, to proceed upon the evidence of a self-confessed criminal, who, in so far as an approver is concerned has to testify in terms of the pardon tendered to him". Accomplice Evidence: The Question of Corroboration
Reading Section 133 of the Evidence Act along with Section 114(b) it is clear that the most important issue with respect to accomplice evidence is that of corroboration. The general rule regarding corroboration that has emerged is not a rule of law but merely a rule of practice which has acquired the force of rule of law in both India and England. Once it is determined that the person who has appeared as a witness in fact an accomplice, the question then arises as to what value is to be attached to his evidence, namely, whether it should be acted upon in itself or some independent verification should be thought of his statements. It has been observed from the earliest times as a rule of caution which has now become virtually a rule or law, that the evidence of an accomplice should stand the test of verification at least in main points.
This is known as corroboration. However to understand the question of corroboration with respect to accomplice evidence in its entirety one must look at the following aspects: Necessity of Corroboration
An approver on his own admission is a criminal and a man of the very lowest character who has thrown to the wolves his erstwhile associates and friends in order to save his own skin. His evidence, therefore, must be received with the greatest caution if not suspicion. Accomplice evidence is held untrustworthy and therefore should be corroborated for the following reasons:
- He has been criminal himself, and, therefore, his testimony should not carry the same respect as that of a law-abiding citizen.
- He has been faithless to his companions and may be faithless to the court because he has motive to shift the guilt from himself to his former companions, and
- If he is an approver, he has been favoured by the State and is therefore, likely to favour the state. Nature and Extent of Corroboration
Generally speaking corroboration is of two kinds. Firstly the court has to satisfy itself that the statement of the approver is credible in itself and there is evidence other than the statement of the approver that the approver himself had taken part in the crime. Secondly the court seeks corroboration of the approver’s evidence with respect to the part of other accused persons in the crime and this evidence has to be of such a nature as to connect the other accused with the crime.
Corroboration in material particulars means that there should be some additional or independent evidence: i. Rendering it probable that the story revealed by the accomplice is true and that it is reasonably safe to act upon it; ii. Identifying the accused as one of those, or among those, who committed the crime; iii. Showing the circumstantial evidence of his connection with the crime, though it may not be direct evidence; and iv. Ordinarily the testimony of one accomplice should not be sufficient to corroborate that of the other. “Independent” merely means independent of source which is likely to be tainted. The corroboration of an accomplice required by the rule is corroboration by independent evidence, i.e., by evidence other than that of another accomplice.
Tainted evidence is not made better by being doubled in quantity, and, when there are two sets of evidence, each requiring corroboration, one cannot be used to corroborate the other. It is, therefore, a rule that one accomplice cannot corroborate, or be corroborated by, another accomplice, nor can accomplice corroborate himself; tainted evidence does not lose its taint by repetition. An accomplice may occupy one of three different positions.
He may be, (i) an approver, to whom pardon has been tendered under Section 337 of the "Criminal Procedure Code; or (ii) he may be a confessing accused, making statements from the dock implicating himself and his fellow prisoners; or (iii) he may neither be an approver nor an accused, but an ordinary witness who,, by reason of his connection with the crime, is in fact an accomplice. Now the rule being that one accomplice cannot corroborate another accomplice, whichever of the three position mentioned above a person may occupy, he cannot corroborate, or be corroborated by, another person occupying any one of the three aforesaid positions.
Thus an approver cannot corroborate, or be corroborated by, another approver or a confessing co-accused, or an unpardoned accomplice witness, a confessing co-accused cannot corroborate or be corroborated by, another confessing co-accused, or an unpardoned accomplice witness, and an unpardoned accomplice witness cannot corroborate or be corroborated by another unpardoned accomplice witness.
In the case of Rameshwar v. State of Rajesthan, according to the Supreme Court the four principles with regard to the nature and extent of corroboration are: i. that it is not necessary that there should be independent confirmation of every material circumstance in the sense that the independent evidence in the case, apart from the testimony of the complainant or the accomplice, should in itself be sufficient to sustain conviction; all that is required is that there must be some additional evidence rendering it probable that the story of the accomplice
(or complainant) is true and that it is reasonably safe to act upon it, ii. that independent evidence must not only make it safe to believe that the crime was committed, but must in some way reasonably connect or tend to connect the accused, with it by confirming in some material particular the testimony of the accomplice or complianant that the accused committed the crime, iii. that the corroboration must come from independent sources and thus ordinarily the testimony of one accomplice would not be sufficient to corroborate that of another, iv. that the corroboration need not be direct evidence that the accused committed the crime- it is sufficient if it is merely circumstantial evidence of his connection with the crime.
The best and most uptodate exposition of the nature and extent of corroboration is contained in a judgment of the Court of Criminal Appeal in R v. Baskerville, in which all the leading authorities were reviewed and the principles to be observed were enunciated in the clearest possible terms by Lord Reading, L. C. J., who delivered the judgment of the Court.
The general rules laid down by the Court in that case may be summarized as follows :— i. The corroboration must be by some evidence other than that of an accomplice; and, therefore, one accomplice's evidence is not corroboration of the testimony of another accomplice. ii. The corroborative evidence must be evidence which implicates the accused, that is, which confirms in some material particular not only the evidence that the crime has been committed, but also that the accused committed it. In other words, the corroboration must be both as to the corpus delicti and as the identity of the accused. iii. It is not necessary that the story of the accomplice should be corroborated in every detail of the crime, since, if this were so, the evidence of the accomplice would be necessary. iv.
The corroboration need not be direct evidence that the accused committed the crime; it is sufficient if it is merely circumstantial evidence of his connection with the crime. v. The rule of practice requiring corroboration of the evidence of the accomplice in some material particular implicating the accused has virtually become equivalent to, a rule of law. Here, it becomes important to mention a very significant case of Bhuboni Sahu v.
The King, In this case, eight persons were prosecuted for a murder. Two of them were acquitted by the trial judge and two others by the Patna High Court. Of the remaining, one appealed to the Privy Council. The evidence against the appellant consisted of (a) evidence of an accomplice who had taken part in the murder and had become an approver; (b) the confession of another accused person implicating himself and the appellant; (c) the recovery of a cloth which the deceased was wearing and a khantibadi, an instrument for cutting grass, in circumstances which were taken to verify the evidence of the accomplice. Their Lordship allowed the appeal and acquitted the appellant. It was laid down: i.
That the court should be slow to depart from the rule of caution which requires some independent evidence implicating the accused, ii. That the evidence of one accomplice cannot be used to corroborate the testimony of another accomplice, iii. That the recovery of the cloth and khantibadi could not corroborate the story held out by the accomplice because the recovery of the cloth at the suggestion of the accomplice did not show that it was put there by the appellant and the recovery of a khantibadi from him, particularly one which was not blood-stained, was not an unusual thing, for, a farmer is likely to possess it. Accomplices in Sexual offences
Corroboration is a common point between the victim of rape and an accomplice because though the woman who has been raped is not an accomplice; her evidence has been treated by the courts on somewhat similar lines. Her evidence requires corroboration the same way as that of an accomplice because she is treated as an interested witness. In this case, Rameshwar was charged with committing rape on a young girl of eight years. Her mother was at the time out in her field. She came after about four hours of the incident and found her daughter bleeding. On being asked by the mother why she was bleeding, she wept and told her mother what had happened. Medical examination showed that the girl was in fact raped.
The commission of the crime as a fact was thus proved by medical evidence. But only evidence to connect the crime was the statement of the girl in the witness-box and her complaint to the mother of which the evidence was given by the mother. So the only corroboration available was child’s statement to her mother, that is, the earlier statement of the child is offered as corroboration of her present statement to the court. The Assistant Sessions Judge did not consider this as a sufficient corroboration and acquitted him. But the High Court of Rajasthan set aside the acquittal and convicted him.
The Supreme Court first approved the admission of the evidence of the child under section 118, because, though she did not understand the meaning of oath and therefore no oath was administered to her, yet her unsworn statement inspired confidence. The learned judge expressed the opinion that what she said at or about the time of occurrence being part of res gestae can be corroborative evidence of her evidence and conviction can be based on the testimony of the prosecutrix. In Sheikh Zakir v. State of Bihar, the court said:
“If a conviction is based on the evidence of a prosecutrix without any corroboration, it will not be illegal on that sole ground. But in the case of a grown-up or married woman, it is always safe to insist on corroboration, which can be sought from either direct or circumstantial evidence or both.” In State of Maharashtra v. C.K. Jain, the Supreme Court observed: “A prosecutrix of a sex offence is not at par with an accomplice.
She is in fact a victim of the crime. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge leveled by her.
If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to the illustration (b) to section 114 which requires the court to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice.” The law that emerges on the issue is to the effect that statement of prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The court may convict the accused on the sole testimony of the prosecutrix. Conclusion
The Courts in this country have by harmoniously reading Section 114(b) and Section 133 together laid down the guiding principle with respect to accomplice evidence which clearly lays down the law without any ambiguity. This principle which the courts have evolved is that though a conviction based upon the uncorroborated testimony of an accomplice is not illegal or unlawful but the rule of prudence says that it is unsafe to act upon the evidence of an accomplice unless it is corroborated with respect to material aspects so as to implicate the accused.
This guiding principle though very clear is often faced with difficulties with respect to its implementation. While implementing this principle different judges might have different levels of corroboration for accomplice evidence and thus with no hard and fast rules relating to the extent and nature of corroboration an element of subjective ness creeps in which can result in injustice.
However in spite of the problems and complexities associated with accomplice evidence it must be borne in mind that accomplice evidence is of extreme importance and can often play the decisive role in a criminal trial. The testimony of an accomplice can be equated to an expert’s testimony. Just as a scientist may give evidence with respect to DNA etc. an accomplice can testify about the entire background and facts and circumstances of the offence as he was involved in the commission of the offence and has first hand knowledge of everything related to the offence.
Thus accomplice evidence can help investigators to crack even the toughest of cases and the accomplice is often the star prosecution witness who by his testimony can bring the whole truth out into the open and help the Court bring the offenders to justice. Detractors of accomplice evidence might argue that the testimony of an accomplice is unreliable and untrustworthy as the accomplice is one who has betrayed his own people to save his own skin. However such arguments although not baseless can be circumvented by exercising due care and diligence while dealing with accomplices.
Thus Accomplice Evidence is a necessary evil. However its importance far outweighs its drawbacks and the complexities it poses. Accomplice Evidence, thus, plays an extremely important role in crime detection, crime solving and delivering justice and Accomplice Evidence in the trial can make the difference between delivery of justice and the offender getting away scot-free.
Case Law: Rameshwar v. State of Rajasthan 1952 SCR 377
Introduction This case has, being so significant, been cited by so many judgments. The only reason being that the case has covered various questions of law of general importance. Basically the case talks about the necessity of corroboration in rape cases; nature and extent of corroboration necessary; admissibility of statement made "at or about" the time of occurrence; omission to administer oath in case of a child witness; mother as an “independent” witness in rape cases. Brief Facts of the Case
1. Purni, a girl of 8 years of age, was living with her mother, Ghisi, in a house which was situated in the same locality as opposite to that of the accused Rameshwar. On 23rd October, 1946, sometime in the afternoon, when the incident took place, Ghisi happened to be away. Purni was playing outside her house along with two other girl-friends, namely, Rukamani a girl of 14 years of age, and Shanti. It was stated that while these girls were playing together the accused Rameshwar, standing on the roof of his own house, called them.
Out of the three girls he took Purni to his room. In the room there was a cotton mattress on which Purni was made to lie and attempt was made by the accused to ravish her. She tried to cry but her mouth was gagged and after the act was over she was allowed to go away. After coming down from house of Rameshwar she went to chabutara of her house and was found lying there. When her mother, Ghisi returned from the field at about 4 p.m. Purni narrated to her what had happened.
2. The accused Rameshwar was convicted by the Assistant Sessions Judge, Sawai Jaipur, and sentenced to one year's rigorous imprisonment and a fine of Rs. 250. 3. An appeal was made to the Sessions Judge at Jaipur, that being the appropriate appellate tribunal in that area.
The learned Sessions Judge held that the evidence was sufficient for moral conviction but fell short of legal proof because, in his opinion, the law requires corroboration of the story of the prosecution in such cases as a matter of precaution and the corroborative evidence, in so far as it sought to connect the appellant with the crime, was legally insufficient though morally enough. He was satisfied however that the girl had been raped by somebody. Accordingly, he acquit- ted the accused giving him the benefit of the doubt.
4. The State of Sawal Jaipur and Gangapur appealed against the acquittal to the High Court at Jaipur. 5. The learned High Court Judges held that the law requires corroboration in such cases but held that the girl's statement made to her mother was legally admissible as corroboration and considering that sufficient they set aside the acquittal and restored the conviction and sentence. 6. The High Court later granted leave to appeal under article 134 (1) (c) of the Constitution as the case involved questions of law of general importance. Issues Involved in the Case
- Whether the evidence of a child under 12 years of age is admissible?
- Whether a victim of rape is an accomplice?
- Whether the law requires corroboration in rape cases?
- What should be the nature and extent of corroboration when it is not considered safe to dispense with it?
- Whether the previous statement of an accomplice, or a complainant, be accepted as corroboration?
- Whether the mother can be regarded as an "independent" witness in rape cases? Observations made with regard to the issues involved
The Supreme Court has made the following observations:
1. An omission to administer an oath, even to an adult, goes only to the credibility of the witness and not his competency; so also an omission of the Court or the authority examining a child witness formally to record that in its opinion the witness understands the duty of speaking the truth though he does not understand the nature of an oath or affirmation, does not affect the admissibility of the evidence given by that witness. According to Section 118 of the Indian Evidence Act, there is always competency in fact unless the court considers otherwise.
Though it is desirable that judges and magistrates should always record their opinion when a child is to be examined that the child understands the duty of speaking the truth, and state why they think so, whether a magistrate or judge was really of that opinion can be gathered from the circumstances when there is no formal certificate to that effect on the record. That is why, in the present case, it is plain that the learned Judge had the proviso in mind because he certified that the witness does not understand the nature of an oath and so did not administer one but despite that went on to take her evidence.
2. A woman who has been raped is not an accomplice. If she was ravished she is the victim of an outrage. In sexual crimes, the other person, usually the woman, mayor may not be an accomplice, according to whether she is by the nature of the crime a victim of it or a voluntary partner in it. Thus, in adultery, the other party may well be an accomplice, and so also perhaps in incest, and in pandering and pimping. But the woman is not an accomplice in rape, rape under age, seduction or abortion.
3. In rape cases, the victim can be a consenting party as well as an interested witness. Keeping all such reasons in mind, a large volume of case law has grown up which treats the evidence of the complainant somewhat along the same lines as accomplice. The rule which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge before a conviction without corroboration can be sus