This article is written by Antra Shourya, from the Faculty of Law, University of Delhi. The article focuses on the definition and meaning of accomplice as laid down in The Evidence Act 1872 and various precedents. It delves on whether a testimony given by an accomplice is trustworthy in various scenarios. The article further talks about the nature of corroboration needed in case of accomplice evidence.
The Black Law’s dictionary defines an “accomplice” as a person who has participated in a guilty act and is liable in a criminal action, by being present at the place where crime has been committed by aiding or abetting in it even when he is absent from the place where crime has been committed, the person participated having advised or encouraged it.
In layman’s terms, accomplice evidence may appear untrustworthy as accomplices are usually always involved and infamous witnesses, but their evidence is mostly admitted under necessary circumstances because, in these cases, it is not easy to convict main accused without having recourse to such evidence. Thus, accomplice evidence may appear unreliable, but it’s often beneficial and even an invaluable tool in crime detection, crime-solving, and delivering justice and consequently, an essential part of the Law of Evidence. Accomplice and admissibility of accomplice witnesses are mentioned in Section 133 of the Indian Evidence Act,1872. It lays down that an accomplice has to be proved as a competent witness for a conviction, legal to rely upon the uncorroborated testimony of an accomplice.
Who is an Accomplice?
- To attract Section 133 of The Evidence Act, 1872, a person must be an accomplice. Hence, it’s essential to understand the meaning and significance of the term ‘accomplice.’ Anyone who has taken part in the commission of the crime, along with another or others, is called an accomplice. When the police induce a person to take part in crime for finding evidence against others, he is called a trap-witness. When an accomplice who is a trap-witness is given a pardon, he can be referred to as an approver. Section 133 of the Indian Evidence Act 1872 includes trap witnesses and approvers as a competent witness under the term accomplice used in the section.
- In the Indian Evidence Act 1872, the word accomplice has not been defined; it can, therefore, be presumed as used in the ordinary sense by the legislature. The judiciary has tried to define who is an accomplice in various judgments. In Chandan v Emperor the Court defined accomplice as one who is associated with an offender or offenders in the commission of a crime or one who knowingly or voluntarily helps and cooperates with others in the commission of the crime. The term ‘accomplice’ may include all particeps criminis i.e., a partner in crime. A person who is a guilty associate in a crime or who has a relation to the criminal act that can be jointly indicated with the principal criminal is an accomplice.
- The Supreme Court in R.K Dalmia v. Delhi Administration said that an accomplice is a person who takes part in the commission of a criminal act for which the accused is facing trial. He has to be a particeps criminis. However, there are two scenarios where a person can be held to be an accomplice, even when he is not. In cases where a person has received stolen property should be taken as an accomplice of the thieves who stole the property.
- In Shanker v State of Tamil Nadu, the Court held that when an accomplice becomes an approver, he eventually becomes a prosecution witness. An approver’s evidence has to satisfy two tests. Firstly his evidence must be reliable, and secondly, his testimony should be sufficiently corroborated.
Whether a Witness is an Accomplice or Not?
In the case of Jaganath v. Emperor, it was said that an accomplice is a person who is a guilty associate or a partner in crime, or who in some way or the other is connected with the offence in question or some material fact supports that he was part of the crime.
In C.M.Sharma v State of A.P, where a contractor who was forced to give bribe to a public servant on the promise of doing or forbearing to do an official act is held to be a partner in crime and guilty associate. To seek corroboration in all circumstances of the evidence of a witness forced to give a bribe may lead to absurd results as the bribe is not taken in public view, and therefore, there may not be any person who could see the giving and taking of a bribe. In this case, the evidence of the contractor was corroborated by his shadow witness who had accompanied the contractor. The submission of the appellant that the contractor should be treated as an accomplice was rejected. He was not an accomplice since money was extracted from him. In the same case, the Court stated that the corroboration of the evidence of a witness is required when his evidence is not trustworthy as of a witness admissible as an accomplice, even if he is not prosecuted and not granted a pardon.
Competency of Accomplice Witness
When an accomplice is not a co-accused under trial in the same case,” an accomplice is a competent witness.” But this competency that has been given to him by the process of law does not relieve him of the character of an accused. No accused should be forced to be a witness against himself. But in case an accomplice is given a pardon, on the condition that he is speaking the truth, and is not acting under any pressure, and he is not forced to give self-incrimination as is the rule given in Article 20(3) of the Constitution of India, 1950.
The law of evidence, as laid down in Sections 306 and 308, Code of Criminal Procedure, remains unaffected by this law. When an accomplice is pardoned, he is bound to make a complete and truthful disclosure. If he fails to do so, he would be tired of the charges levelled against him originally, and his statement would then be used against him under Section 308.
- In Haroon Haji Abdulla v State of Maharastra, the Court laid down that an accomplice is a competent witness and his evidence could be accepted and if the court feels that there is enough evidence to support the testimony of the accomplice then an conviction can be based on such a testimony.
- In Ravinder Singh v State of HKaryana, an approver is not the most unworthy friend, if at all and having bargained for his immunity, must be proved in the Court. This test is fulfilled, firstly, if the story given by the accomplice seems to be truly natural and probable according to material facts if given minute details are in accordance with reality and are likely to be true. Secondly, if it is established that the story is reliable, then the story must implicate him in such a manner as to give rise to a conclusion of guilt beyond a reasonable doubt.
- In rare cases, uncorroborated evidence of an approver can be held to be true and reliable by the Court after the Court has taken into consideration all the facts of circumstance and situations governing a particular case.
- The general rule requires that an approver’s statement has to be corroborated in material, particularly binding the disclosure between the crime and criminal closely.
- An approver giving minute details or necessary features appertaining directly to an accused if found to be reliable, by the presence of other independent, credible evidence, would make the testimony of the accomplice more credible.
Categories of Accomplices
A person is an accomplice when he participates in the commission on the same crime. In Jagannath v Emperor the Court said that participation in crime could be done in multiple ways. There are two broad categories of modes of participation in crime,
(1) Principals in the first degree or second degree, and
(2) accessories before the fact, or
(3) after the fact.
Principals in the first and second degrees
One who actually commits the crime is a principal of first degree while a person who is just present and assists in the perpetration of the crime is a principal of the second degree. Undoubtedly under all the circumstances, these people are accomplices.
Accessories before the fact
When a person incites, counsels connives at, encourages or procures the commission of the crime becomes an accessory before the fact. These are those accomplices who counsel, incite, encourage or procure the commission of the crime. A person is an accessory before the fact if he participates in the preparation of the crime. They are not an accomplice. For a person to be accomplices, he must participate in the commission of the same crime as the accused person is charged with in the trial.
Accessories after the fact
A person is an accessory after the fact when a person with the knowledge that the accused has committed some crime receives him, comforts him or assists him to help escape from punishment a crime or helps him escape arrest, exercising his free will allowing him to escape, or opposes his arrest.
Three conditions must be fulfilled to establish that there was an accessory after the fact;
(1) the crime must have been completed;
(2) the person assisting the accused must have the knowledge that the accused committed a criminal act;
(3) the actions of the accomplice must result in helping the accused escape or avoid consequences of the principal crime.
Accomplice and Co-accused
- The confession of one of the co-accused cannot be used to corroborate the evidence of an accomplice against the others, because such a confession cannot be put on a higher footing than the evidence of an accomplice and is moreover not given on oath or subject to the test of cross-examination and is guaranteed by nothing except the peril into which it brings the speaker and which it is generally fashioned to lessen. Altered evidence is not made better by being corroborated by other tainted evidence.
- Section 30 of the Indian Evidence Act says that the Court may consider the confession of co-accused as evidence.
- It may be noted that the confession of the co-accused must implicate himself as well as some other accused. Further, the confessions made at the previous trial will not be relevant. When they are jointly tried, but for different offences, in those cases, confession is not relevant. Further, the confession should be a free confession.
A confession by a co-accused cannot be treated in the same way as the testimony of an accomplice:
- The confession of co-accused is not ‘evidence,’ as it is not given in the presence of the accused, nor is it not recorded on oath, and nor its truth can be subject to cross-examination.
- When the accomplice evidence is taken on oath and tested by cross-examination, a higher probative value is thus given to it.
- The basis of a conviction cannot be solely based on the confession of the co-accused. There is a need of corroboration of such evidence if such evidence is not corroborated and the court feels that confession of the co-accused is free and natural the court can consider it. A conviction cannot be termed illegal merely because it proceeds upon the corroborated testimony of an accomplice.
- The philosophy of Section 30 is that confession of a co-accused gives a degree of sanction to the truth of his confession against others or himself.
Evidence of a co-accused is very weak evidence. The evidence of co-accused can be used only to corroborate other evidence on record if the confession affects himself as well as some other accused person.
Accomplice and Approver
An accomplice may be an approver also. The approver is an accomplice who is tendered pardon by the Court on condition that he makes true and full disclosure of the whole circumstances of the case. Approver has been dealt with under the provisions of Section 306 of Cr.P.C. He is known under Cr.P.C as an accomplice to whom the Court grants a pardon. Thus, an “approver” is always an ‘accomplice,’ but an ‘accomplice’ is not necessarily an approver. Section 306 tenders pardon to an accomplice. The approver’s evidence is looked upon with great suspicion as he is some way concerned or associated in commission of the same crime. But if found trustworthy, it can be decisive in securing a conviction.
In the case of Chandan v State of Rajasthan, the evidence of a witness participating in a test identification parade but not examined at trial is not sufficient to corroborate evidence of accomplice approver. Therefore, the conviction was set aside.
In Ravindra Singh v State of Haryana, the Court said that an approver bargains his immunity so he must prove his credibility in Court. This rest is fulfilled,
- Firstly, if the story he relates involves him inthe crime and appears intrinsically to be a natural and probable catalog of events that had taken place.
- Secondly, the story given by the approver so far as the accused on trial is concerned must implicate him in such manner as to give rise to a conclusion of guilt beyond a reasonable doubt.
Accomplice and Sexual Crimes
In Rameshwar Kalyan Singh v. the State of Rajasthan the Supreme Court clearly laid down that, in a case of rape, the prosecutrix cannot be treated as an accomplice. The Evidence Act does not say that the evidence given by prosecutrix in a rape case needs to be corroborated. But, the courts have insisted on the need for corroboration of the evidence given by the prosecutrix as a matter of practice. It was further felt that it would be inherently dangerous and impossible to formulate what kind of evidence should or would be regarded as corroboration.
The nature and extent of corroboration must vary with facts and circumstances of every case and further according to the offence and particular circumstances of the offence committed. But the Court has laid down some guidelines in this regard:-
- It is not compulsory that there should be independent confirmation of every material circumstance in the sense that independent evidence in the case, should in itself be sufficient to sustain a conviction, apart from the testimonies of the complainant or the accomplice. But it’s required that there must be some additional evidence that furnishes that the story of the accomplice or complainant can be held as truth and that it is reasonably safe to act upon it.
- The independent evidence must, in some way or the other reason, be able to connect or must tend to connect the accused with it by confirming in some material form the evidence given by the accomplice that the accused committed the crime. A piece of independent evidence cannot be the sole reason to believe that the crime has been committed.
- Ordinarily, the testimony of one accomplice would not be sufficient to corroborate that of another; thus, the corroboration should come from independent sources.
- The corroboration does not have to be the direct evidence that crime has been committed by the accused. Mere circumstantial evidence of a connection with the crime is also sufficient.
In the State of Madhya Pradesh v. Sheodayal Gurudayal, the Court laid down “a test to determine whether in a certain case, the testimony of the prosecutrix needed to be corroborated.” This test is whether there is genuineness in the story given to by the prosecutrix, if there is no doubt on the account given by the prosecutrix, then there is no need for corroboration. If there are doubts regarding its originality, the testimony will require corroboration. These principles laid down by the courts are to be viewed as guiding principles in the trial of rape cases, but these principles are flexible, depending on the facts and circumstances of the case.
Who is not an accomplice?
In some cases persons are not accomplice:-
- When a person, under threat of death or another form of pressure which he is unable to resist, commits a crime along with others, he is not a willing participant in it but a victim of such circumstances.
- A person who merely witnesses a crime, and does not give information about it to anyone else out of terror, is not an accomplice.
- In Prakash Chand v State, the Court laid down that detectives, paid ‘informers,’ and ‘trap or decoy witnesses are not accomplices. A court may convict on the uncorroborated testimony of trap witnesses if the Court feels that there is truthfulness in testimony presented by the trap witness.
As a general rule of an accomplice, it is for the judge to decide and to keep in mind the facts and circumstances of a case whether the testimony of a trap witness is reliable enough to act upon. Judge’s partiality towards prosecution can hardly be ignored. Judges can be helped by knowing the character, background, and the reputation of the witness to appreciate his evidence.
Evidentiary value of an Accomplice
- When an accomplice makes a testimony, it is not seen as reliable evidence for a conviction, and it has to be verified with other material evidence; this is called corroboration.
- According to Black law’s dictionary, to corroborate means to strengthen, to make a statement or testimony more credible by confirming facts or evidence. Corroborative evidence, in a way, is a supplementary testimony to the already given evidence and tending to strengthen or confirm; additional evidence of a different character to the same point.
- Corroboration does not mean that there should be independent evidence of all facts which have been related by an accomplice. “Indeed, if it were required that the accomplice should be confirmed, every detail of crime evidence would not be essential in the case.” To count as corroboration, it is not enough that a piece of evidence merely supports that the accomplice is credible but must go a little further and implicate the accused.
The corroboration of an accomplice is of two kinds:
- The first one is that corroborating evidence which ensures that the approver is trustworthy; and
- The second which arises for the conclusion to the corroboration in material particulars not only of the commission of a crime but also of the complicity of the other accused persons in the crime.
Necessity of Corroboration
Corroboration is necessary; in fact, approver evidence has to satisfy the double test:
- his evidence must be reliable;
- his evidence should be materially corroborated.
Every competent witness is not a reliable witness, and an approver has to satisfy the test of reliability before the question of corroboration of his evidence is considered by criminal courts.
Nature and Extent of Corroboration
The nature and extent of corroboration of accomplice evidence vary in each case according to the facts and circumstances of the case; it is impossible to make a single rule for this subject. But the Court has laid down guiding principles in R v Baskerville. They are:-
- Independent confirmation is not necessary in every case, with every detail of the crime committed, in the sense that the independent evidence in the case, apart from the testimony of the complainant or accomplice, should itself be sufficient to sustain conviction. All that is required is that there must be “some additional evidence rendering that the story of the accomplice (or the complainant) is true and that it is reasonably safe to act upon it.
- It is necessary that there is a confirmation in the form of some material evidence that the crime has been committed and that it has been committed by the accused. The independent evidence must not only make it safe to believe that the crime was committed but must in some way reasonably connect the accused with it.
- One accomplice cannot corroborate the evidence of the other accomplice; corroboration has to be done independently; it is to be done with other material evidence. All that is necessary is that there should be independent evidence which will make it reasonably safe to believe the witness’s story that the accused was the one, or among those, who committed the offence.
- The corroboration does have to be a direct one that the crime has been committed by the accused; it can be a circumstantial one too. There are two basic kinds of evidence that may be admitted in court – direct evidence and circumstantial evidence. Direct evidence does not require any reasoning or inference to arrive at the conclusion to be drawn from the evidence.
Circumstantial evidence, also called indirect evidence, requires that an inference be made between the evidence and the conclusion to be drawn from it. Circumstantial evidence is often discussed as if it carries less weight than direct evidence. Under the law – and in life – that is not necessarily true. Any piece of evidence, whether direct or circumstantial, must be evaluated in terms of whether the source of the evidence is reliable. Sometimes direct witnesses are also not a reliable one. While there are certainly differences between direct and circumstantial evidence, reliability is not necessarily one of them.
Appreciation of Accomplice Evidence- The Corroboration Issue
The Supreme Court in Sarwan Singh v. the State of Punjab laid down the law with respect to assessment and appreciation of accomplice evidence and also stated several principles and rules regarding corroboration of accomplice evidence. The Court stated the challenge of the credibility of evidence given by an approver had been presented before the Court many times. But it is not necessary to deal at length with what is the true legal position in this matter. Further, the Court said that an accomplice is a competent witness under the Indian Evidence Act.
To attract Section 133 of The Evidence Act, 1872, a person must be an accomplice. An accomplice is a person who has taken part in the commission of the crime, along with another or others. If an accomplice is arrested and thereafter has been given a pardon, he is referred to as an approver.
Under Section 133, the term accomplice includes trap witnesses and approvers as a competent witness. An accomplice can be considered a competent witness if he is not co-accused under trial in the same case. But such competency which has been given to him by the process of law does not relieve him of the character of an accused.
There is no contrast between Section 133 and Section 114. There is no opposition between Section 133 and Section 114, illustration (b) because the illustration only says that the court ‘may’ presume certain state affairs. It does not put a hard and fast guideline. Section 133 lays down the rule of law. But a rule of prudence is laid down Section 114, illustration (b). It does not suggest a conclusive presumption. Section 133 gives an authorization to the courts to convict the accused on the corroborated testimony of an accomplice, but since the witness is himself involved in a criminal act, he may not be trustworthy.
When the Court feels that testimony of the accomplice may not be trustworthy then that the courts are guided by the principle laid down in Section 114 that if the Court finds it necessary, it can presume that the testimony given by the accomplice is unreliable unless his statements are supported or verified by some independent evidence. This rule of prudence has now come to be accepted as the rule of law by judicial legislation both in Indian and English law.
Corroboration is necessary in case of testimony of an accomplice. The nature and extent of corroboration of accomplice evidence may necessarily vary with the circumstances of each case.
Books: Batuk Lal, The Law of Evidence (27thEdition)
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.