A predicament has remained to exist as to whether a court deciding on the fate of an accused should consider the testimony of a friend in crime. The courts have struggled long to settle down on a practical and prudent solution so that the guilty does not go unpunished and the innocent stays unscathed. It is from this prospective that the courts have made an unceaseth attempt through hoard of judicial decisions to come up with a rule of prudence read into the law of evidence to guide the minds whenever an accomplice renders an account of the crime committed.
The writing is an attempt to critically analyze the need for receiving accomplice evidence and the approach of caution adopted in such instances. It aims at simplifying the law with regards to accomplices and approaches it from a practical point of view. It makes an effort to endorse the idea that the flexibility engrained should be retained and the law on the point in India should be modified to suit the need of the hour which is indefinitely the speedy disposal of cases so that justice is rendered for justice delayed is justice denied. WHO IS AN ACCOMPLICE?
The Indian Evidence Act, 1872 does not lay down the definition of. An accomplice is a person who has concurred in the commission of an offence 1-2 and the maxim “participes criminis”3 is included in the term. An accomplice is a person who is guilty-associate in crime or who sustains such a relation to the criminal act that he can be jointly indicted with the principal criminal.4 A witness concerned may not confess to his participation in a crime and may deny his being an accomplice but it is for the courts to decide on a consideration of the entire evidence whether he is an accomplice.
5 The burden of proving that an accomplice is definitely on the party alleging it for the purpose of invoking the rule while the duty to bring the accomplice character of the evidence to the notice of the court rests upon the prosecution and the court needs to believe by a preponderance of probabilities.6 The essential prerequisite is participation in crime willfully and this can be done in various ways7.
The term in fullness includes all persons concerned in the commission of the crime, whether they in the strict legal aptness are principals in the first degree8 or second degree9 or merely are accessories before10 or after11 the commission.12.
In India two categories of offenders are recognized- persons who are principals and abettors or instigators and the term accomplice includes both of them i.e. the principal and the privy.13 The three conditions that need to merge are 1) the felony must be complete 2) the accessory must have the knowledge that the felony has been committed 3) the accessory must harbour or assist the principal.14 WHEN IS AN ACCOMPLICE COMPETENT WITNESS?
Section 118 of the Indian Evidence Act speaks about competency of witness. Competency is a condition precedent for examining a person as witness and the sole test of competency laid down is that the witness should not be prevented from understanding the questions posed to him or from giving rational answers expected out of him by his age, his mental and physical state or disease.15 At the same time Section 133 speaks about competency of accomplices. Further more in case of accomplice witnesses, he should not be a co-accused under trial in the same case and may be examined on oath.
16 Let us consider the following propositions suggested by courts. First, courts have opined that such competency, which has been conferred on him by a process of law, does not divest him of the character of an accused and he remains a participes criminis17 and this remains the genesis of the major problem surrounding the credibility of such evidence. Secondly, an accomplice by accepting a pardon under Section 306 CrPC becomes a competent witness and may as any other witness be examined on oath, the prosecution must be withdrawn and the accused formally discharged under Section 321 of the Criminal Code before he would be a competent witness18 but even if there is omission to record discharge, an accused is vested with competency as soon as the prosecution is withdrawn.
19 Thirdly, Article 20(3) of the Indian Constitution says that no accused shall be compelled to be a witness against himself. But as a co-accused 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 Section 306 and 308 of CrPC is not affected and 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.
20 This suggests that a participes criminis continues to be the same and if so then despite the fact that his involvement has been pardoned by a judicial act can be used for self-incrimination and to expect a “true and full disclosure” is unreal. SECTION 114 VIS-À-VIS SECTION 133:
At the outset, it has been proposed that incorporation of Section 133 when read in the light of Section 118 speaking about the competency of witness does not justify the inclusion of the former in the Act. Further Section 134 which deals with the number of witnesses in a case negates the second part of Section 133 which narrates that the uncorroborated testimony of an accomplice is not illegal. But the inclusion of the section attains a highly elevated status, for without inclusion of this specific section, there existed a dominant chance of the law being misunderstood or misapplied.
Section 114, illustration (b) creates a cloud of doubt as to the competency of the accomplice witness and it seems significant when seen from this perspective that inclusion of Section 133 was required to settle a sound basis and caution that merely because the testimony of the accomplice is uncorroborated does not make it illegal. The difficulty in understanding the combined effect of the two sections proceeds largely on the account that their positioned under different Chapters in the Act.
It clearly emerges that both- rule laid down in illustration (b) to Section 114 which deals with presumptions of various kinds and the caution laid down in Section 133 are part of the same rule and neither can be ignored in the exercise of judicial discretion, except in cases of a very exceptional nature. The application of the rules together emerges as a rule of practice that has assumed the force of rule of law21 that evidence of the accomplice would be accepted with corroboration.
22 Why this “practical rule” emerged? This rule is an outcome of experience that an accomplice is unworthy of credit23 for the following: 1. A bare and segregated perusal of Section 133 may instigate the young magistrates and judges at the lower courts to base their convictions on the uncorroborated testimony of accomplice witness on the presumption that the legislature intended to encourage such convictions and such testimonies.
2. This rule emerged in order to ration the threats that flow from necessity for administration of justice for an accomplice witnesses are a practical mandate as matter of necessity nevertheless they are infamous and the most dangerous forms of witnesses to base a conviction. 3. An accomplice is a ‘partner in guilt’ and is definitely an infamous witness and inevitably distrust flows into what he testifies calling for fullest corroboration in material particulars for a conviction.
He may without this burden simply testify to save himself by procuring conviction for others.24 Section 133 is the absolute rule of law as regards to the evidence of accomplices but this essentially has to be read with the rule of prudence laid down in illustration (b) of Section 114. Section 114 enacts a rule of presumption but this is not a hard and fast presumption that cannot be rebutted, a presumption puris et de jure and the right to raise this presumption as to an accomplice witness is sanctioned by the Act, and it would be an error of law to disregard it, what effect is to be given to it must be determined by the circumstances of each case.
25 It is thus well settled that except in circumstances entailing an exceptional nature, it is the duty of the court to raise the presumption in section 114 illustration (b), and the legislature requires that the court should make the natural presumption in that section.26 The result of the combined reading that is to be done to both the sections may be stated as follows: 1) the uncorroborated evidence of an accomplice is admissible. There can be a conviction upon the uncorroborated testimony of the accomplice if believed to be true and this is so especially where there is in question the evidence of a person who is not so much an accomplice as a victim27,
2) Although it is so, experience teaches that an accomplice being an infamous person , it is extremely unsafe to rely upon its testimony unless and until materially corroborated 3) It is the duty of the judge to be warned that it is dangerous to convict on the uncorroborated testimony of an accomplice and an omission to warn with prudence would be misdirection 4) and if a departure is made form thus virtual rule of law , then it has to be showed that the circumstances justify the exceptional treatment for the presumption of unworthiness is raised and corroboration is demanded for administration of justice. However, on a perusal of various judicial decisions it seems that the word of caution under Section 114, illustration (b) has a super imposing sweep over the clear wordings of Section 133 What is corroboration?
Corroboration means independent testimony. Lord Abinger said- “ In my opinion that corroboration ought to consist in some circumstance that affect the identity of the party accused. A man who has been guilty of a crime himself will always be able to relate the facts of the case, and if the confirmation be only truth of that history, without identifying the persons, that is really no corroboration at all. If a man were to break upon a house and put a knife to your throat, and steal your property, it would be no corroboration that he had stated the facts correctly, that he had described how the person did put the knife to the throat and steal the property. It would not at all tend to show that the party accused participated in it …………
The danger is that when a man is fixed, and knows that his guilt is detected, he will purchase immunity by falsely accusing others.”28 Independent corroboration does not mean that every detail must be corroborated by independent witnesses and all that is required is that there must be some additional evidence rendering it probable that the story of the accomplice is true.
29 That is to suggest that supposed in a case of conspiracy, if there is corroboration with regards to the general facts of the existence of a conspiracy and also of participation in it of any particular accused, corroboration of the specific acts is unnecessary unless the evidence of the accused is intrinsically subject to suspicion.30Amount of corroboration cannot be laid down in specific as it depends upon the circumstances; particularly on the crime charged and the degree of the accomplice’s complicity.31 THE GREY ZONES: THE PERSISTING PREDICAMENT:
1. The need for asking for corroboration is to bridge the gap between the crime and the criminal. The manner and extent of corroboration are however not clearly defined except the relief that it has to be substantial.32 Some judges have deemed it sufficient, if the witness be confirmed in any material part of the case; others have been satisfied with confirmatory evidence as to corpus deliciti only; but others, with more reasons have thought it essential that corroborative proof should be given of the prisoner having actually participated in the offence: and, when several prisoners are tried, the confirmation should be required as to all of them before all can be safely convicted.33
Regarding the kind of corroboration requires, the SC held that it would be impossible, indeed it would be dangerous, and to formulate the kind of evidence which should, or would, be regarded as corroboration and its nature and extent must necessarily vary with the circumstances of each case and also in accordance with the offences in question.34 Often it has been seen that there arises problems when the offence in question is heinous like rape which is committed with accomplices in secret and there may not be any direct evidence for corroboration and resort is done to circumstantial evidence.35 So the situation stands that there is no fixed standard of corroboration required.
2. The view that before reliance has to be placed on the evidence of an approver the approver must appear repentant is not legally correct. Whether his evidence is reliable or not would and should depend upon the usual tests such as probability of truth of what he said, whether he made a full and complete disclosure , whether his evidence is mere self exculpatory and whether his evidence has been corroborated in material particulars.36 It is also suggested that apart from satisfying the test of corroboration the accomplice witness has to also fulfill the test of reliability.
This does not imply that the evidence of the approver with the corroborating pieces should be treated in two separate compartments.37 This suggests that the two tests are Siamese twins. But the SC in Swaran Singh v. State of Punjab38 held that since the two sets of statements made by the approver were wholly inconsistent and irreconcilable it lead to a conclusion that there was serious infirmity in the character of the approver and hence was not reliable.
39 In Narayan Chetanram Choudhury v. State of Maharashtra40, it was held that- “Only such omissions which amount to contradiction in material particulars can be used to discredit the testimony of the witness. The omission on in the police statement by itself would not necessarily render the testimony of the witness unreliable. When the version given by the witness in the Court is different in material particulars from that disclosed in his earlier statements, the case of the prosecution becomes doubtful and not otherwise.
Minor contradictions are bound to appear in the statement of truthful witnesses as memory sometimes plays false and the sense of observation differs from person to person.” The evidentiary value of the accomplice witness depends considerably upon the circumstances under which the evidence is tendered.41 But the doubt persists that if the testimony of accomplice is reliable then what is the need for corroboration. What the court considers as reliable and whether the two tests are one and the same thing still needs judicial attention and scrutiny to simplify the law. 3. Courts have been critical about the character of an accomplice.
In Indar v. R42, the court opined that the testimony of a man of the very low character who has thrown to the wolves his erstwhile associates and friends in order to save his own skin and who is a criminal and has purchased his liberty by betrayal must be received with great caution. Apart from corroboration, the evidence of the accomplice if at variance with the evidence of another witness on a material point, then it cannot be accepted.43 Sometimes it is quite possible that the accomplice would have acted under pressure and such person though technically be turned as accomplice would not really evince suspicion in the mind of the judge as to his role.
44 It is the duty of the prosecution to bring forth the character of the accomplice evidence to the notice of the court and then to invite belief by reference to corroborative evidence and it cannot be urged in appeal that it was never suggested in the trial court that a witness was an accomplice, the accused can keep quite and take advantage of the flaw in evidence. But the rule of prudence is often read in isolation in the lower courts whereby the character proof of the accomplice is not regarded and with the prevalent corruption of the criminal justice system, the culprit goes scot free due to the loop holes in the testimony of accomplices on the presumption that the accomplice has low morals.
4. There is nothing in law to justify the proposition that evidence of a witness who happens to be cognizant of a crime or who made no attempt to prevent it, or who did not disclose its commission should only be relied on to the same extent as that of an accomplice. Where an informer was upon his own statement cognizant of the commission of an offence , and omitted to disclose it for six days, the court was not prepared to say that he was an accomplice, but held that his testimony was not such as to justify a conviction except where it was corroborated.
45 The factum that a person of low intelligence being struck with terror made no report of a crime does not make her or him an accomplice.46 The Supreme Court in the case of Vemireddy v. S47 held – “If A happens to be present at a murder and takes no part in it, nor endeavours to prevent it, or to apprehend the murderer, this course of conduct will not of itself render him either principal or accessory.”
The caution remains that the evidence of such a person should be scanned with the scrutiny of care and corroboration. It may not be possible to rely on their evidence, but they are not accomplices and it leads to confusion of thought to treat them as practically accomplices and then apply the rule of corroboration as to their credibility, instead of judging their credibility by a careful consideration of all the particular facts of the case affecting the evidence48 suggesting the over emphasis that is laid down upon independent corroboration even of witnesses who do not fall under the category of accomplices.
5. Absolute standard of proof does not exist and for a proof to be beyond reasonable doubt, the standard of reasonable man must be adopted.49 Appreciation of evidence remains a delicate task and often the lower courts have the sole task upon them. A testimony without a fringe of untruth is rare and the court can reject it only when it is tainted to the core, that is, where falsehood and truth are inextricably interwined.
50 The question of weight to be attached to a particular piece of evidence is a matter on which decided cases cannot be of much help.51 It is a well settled principle of the law of evidence that evidence may be accepted partially or in the whole. Where a part of the evidence is not separable from the rest of the unbelievable part, entire statement is liable to be rejected.
52 Merely because a part of the evidence is not acceptable, the entire evidence can not be rejected.53 Witnesses cannot be branded liars in toto and their testimony rejected outright even if parts of their statements are demonstrably incorrect or doubtful and it is sound common sense to refuse to apply mechanically the maxim “falsus in uno falsus in omnibus”. In criminal cases, the court cannot proceed to consider the evidence of the prosecution witness in a mechanical way.
Credibility of a witness should not be accepted merely because it is corroborated by the evidence of other witnesses but credibility should be tested in the touch stone of the probabilities of the case and if the doubt arises with regard to any material fact then the accused should be given the benefit of doubt.54 But often in cases of accomplice witnesses the rule is applied mechanically forgetting these basic principles of appreciation of evidence. 6. Confession of the co-accused can be treated as substantive evidence55 but not an accomplice witness.
Section 3056 says that if in a joint trial for an offence and a confession is made by any one of them, then it should be considered as against such person and also against others and offence in the section includes the abetment of or attempt to commit the offence also.
The object of this section is that where an accused person unreservedly confesses his won guilt, and at the same time implicates another person who is jointly tried with him for the same offence, his confession may be taken into consideration against such other person as well as against himself, because the admission of his own guilt operates as a sort of sanction, which, to some extent, takes the place of the sanction of an oath and so affords some guarantee that the whole statement is a true one.
57 Yet in cases it has been held that confession of the co-accused is an evidence of the weak type for it is not required to be given on oath, nor in the presence of the accused and it cannot be tested on cross-examination and thus it is a much weaker type of evidence than that of the approver which is not subject to any such infirmities.58 The admitted fact is that there is a tendency to include the innocent with the accused which is peculiarly prevalent in India, as it has been observed on numerous occasions by the Courts that it becomes difficult to guard against all the danger and there by insistence is placed on independent evidence which in some measure implicates such accused.
There is an inherent contradiction whereby the Courts have at one point held that confession of co-accused cannot be considered as an accomplice witness and thus it may not require corroboration whilst in other situations the Court considers it as a weak evidence and call for independent testimony is done defeating the earlier reasoning that the co-accused facing a joint-trial with his associates would divulge the truth. Thus it has made the position more complicated and the distinction between an accomplice who has been granted pardon and who still faces trial should be eroded from the legislation and the law should remain that wherever needed the rule of prudence should be adhered.
7. A general rule, courts may act on the testimony of a single witness even where there is no other evidence which supports it. In England, the rules governing warnings to juries in criminal cases about the dangers of unsupported evidence have changed markedly during the last two decades being driven by several concerns, in particular; some old rules were based on the assumptions about the characteristics of certain categories of witnesses which derived from out-dated views and even prejudice, whilst the jury directions which the common law often required were complex, confusing and gave rise to many appeals. The modern law has thus moved towards a position where trial judges have discretion to choose whether to give a simpler form of warning or none at all.
59 This transaction has made redundant a large amount of the previous law concerning the categorization of witnesses and the identification of evidence capable of amounting to corroboration.60 Two further consequences of these changes seem likely. First, the common law in areas not directly covered by the reforms is nonetheless likely to be developed in future in accordance with the values underpinning the reforms.
61 Thus for instance some simplification of the warnings given in cases involving identification evidence might be predicted. Secondly, the replacement of complex set piece warnings with simpler and more flexible warnings may encourage trial judges to give warnings in suitable cases beyond the strict limits of the previous categories.62 In R v.
Makanjoula63 counsel for the appellants argued that the rationale for such warnings had not evaporated overnight with the bringing into force of sections 32 and 33, and that consequently in the cases under appeal the trial judges ought to have chosen to give warnings in the same terms previous law. The court of Appeal disagreed and held that it would be contrary to policy and purpose of the 1994 Act for judges to continue give warnings in the same terms previously used and in all cases involving accomplices and sexual complainants. The court of appeal acknowledged, however, that judges do still have discretion to give warnings about the dangers of relying on unsupported evidence.
The discretion identified by the Court of Appeals in the above mentioned case is a broad one and covers both whether a warning should be given and if so, in what terms should be. In exercising the discretion judges should consider the content and manner of the particular witness’s evidence, the circumstances of the case and the nature of the issues raised in it.64 To avoid the risk of warnings being based on out-dated stereotypes or prejudice the Court of appeal advised that a warning should be only given about a particular witness’s testimony where there was an evidential basis for suspecting that the testimony could be unreliable.
A mere suggestion to the witness in cross-examination that his or her testimony was unreliable will not amount to an evidential basis for this purpose. If there is an evidential basis the judge should vary the terms of any warning65 to be given according to where the witness stands in the scale of unreliability. Set piece warnings were castigated by the Court of Appeal as tortuous and more bewildering than illuminating. Henry L.J. has stated that the ‘old case incrustedcorroboration direction—glazed the eyes of injuries over generations’.66
In Ranadhir Basu v. State of west Bengal67 the testimony of an approver was not accepted in respect of one of the co-accused for want of independent corroboration but the Court held that this did not have the effect of introducing any infirmity in her evidence or creating any doubt regarding her reliability as a witness.
Yet in another case where the evidence of an approver implicated several accused persons, there should have been corroboration not only generally but also qua each accused, nevertheless corroboration from independent source of each and every circumstance was not made necessary.68 This clearly indicates that the rule of prudence has underwent change where reliability precedes the need for corroboration yet the changes in Indian criminal justice system have yet to be incorporated when our predecessors have moved way ahead catering to the need of speedy justice. CONCLUSION
The rules of evidence cannot be departed from, because there may be a strong moral conviction of guilt; for a judge cannot set himself above the law which he has to administer or make it or mould it to suit the exigencies of a particular occasion.69 Suspicion cannot give probative force to testimony which in itself is insufficient to establish or to justify an inference of a particular fact.
70 Suspicion can be a ground for scrutiny cannot be made foundation of a decision for it is well known that the sea of suspicion has no shore and the court that embarks upon it is without rudder and compass.71 In a criminal case no weight of preponderant evidence is sufficient, short of that which excludes all reasonable doubt. Unbiased moral conviction is no sufficient foundation stone for a verdict against an accused.
The degree of probability of guilt has got to be higher almost amounting to certainty than in a civil proceeding and if there is the slightest reasonable or probable chance of innocence of an accused, the benefit must be given to him. But that is quite different from suggesting that the burden of proof is different and the Act does not obviously contemplate that the satisfaction which is required to be caused in the mind of a prudent man before acting on or accepting the prosecution story is to be different kind or degree from the satisfaction which is required when the accused has to discharge the burden which is cast upon him by law.
72 Added to this it has to be bore in mind that unlike civil litigation, in criminal trials the judge has to decide the case on the basis of the evidence adduced before it and independently of decisions in litigation laid down for which a judgment or decision of a court is not available to be adduced as evidence in a case and is of only use to the extent to show the date and its legal consequence.
73 The onus of proof in criminal case never shifts to the accused, and they are under no obligation to prove their innocence or adduce evidence in their defense or make any statement.74 Keeping this at the outset and the backdrop it can be sensed that the need for corroboration is on the basis that there is suspicion in the mind of the judge with regards to the character, the morality of the accomplice. This in turn has the disastrous effect as we see by making the trials lengthy, time consuming, and expensive.
The number of appeals consequentially increases and the higher courts often become the courts of evidence than the court of law upsetting the entire system.
The lack of corroboration often entails the rescue of the perpetrator and the only ground is lack of independent testimony of the accomplice witness. Realizing the facet that no set piece rule can be applied it seems a faulty approach that the lower courts in India have mechanically adhered to the rule of prudence making it an unbreakable and invincible dictate even when the intent behind the evolution has undergone changes and it is in this light that the judiciary should really step up in varying the terms of warning, in changing the order of the tests of reliability and corroboration, in inculcating the flexibility that initially was contemplated.
1-2 R v. Mullins 3 Cox Cr 526 (as per maule J.)3 In two cases where the person is not participes criminis is also considered as an accomplice, namely a) receivers of stolen property b) where a person has been charged with a particular offence and evidence of other similar offences by him has been admitted as proving system and intent and negating accident persons who had been accomplices in the previous offences. (R.K.Dalmia v. Delhi Administration AIR 1962 SC 1821) 4 Ramaswami v. R 14 MLJ 226 (as per Subramania J.), State v. Murli AIR 1957 All 53. (This definition has been based on the US definition of accomplice U.S.v.Neverson14 Century Dig Col 1279.) 5 Hussain Umar v. Dilip Singhji AIR 1970 SC
6 Jagannath v. Emperor AIR 1942 Oudh 2217Ibid.8 A principal of the first degree is one who actually commits the crime whilst a principal of the second degree is one who assists and prepares in the commission of the crime. Ismail Hasan Ali v. Emperor AIR 1947 Lah 220. 9 Ibid.
10 An accessory before the fact is one, who counsels, connives at, encourages or procures the commission of the crime and these are certainly accomplices and all accessories before the fact, if they participate in the preparation for the crime are accomplices but if their participation is limited to the knowledge that a crime is to be committed are not accomplices Ibid; Nar