Without beating about the bush, let me come straight to the key point. We have seen how time and again there is an endless raging debate between the proponents and opponents on the million dollar worth question: “Can an accomplice be a competent witness against an accused?” Both sides have their own points and counterpoints. It is imperative that we impassionately analyse the arguments and counterarguments presented by both sides and then guide ourselves to the right conclusion.
Those who are proponents that an accomplice can be a competent witness against an accused very forcefully argue in favour and promptly cite Section 133 of the Evidence Act itself in their favour. Let me recap here Section 133 here for my readers benefit. Section 133 very clearly says: “An accomplice shall be a competent witness against an accused person, and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.” Even a cursory look at this Section makes it very clear that an accomplice shall be treated as a competent witness and a conviction based on the testimony of an accomplice cannot be termed illegal merely because it is uncorroborated.
But it must be added here in the same vein that as the Apex Court has held in several cases just like a Bench of Justice Rohinton Fali Nariman, Justice KM Joseph and Justice V Ramasubramanian held recently in K Hashim vs State of Tamil Nadu (2020) that it would be unsafe to convict an accused solely based on uncorroborated testimony of an accomplice. It was also rightly held that an accomplice, to be believed, he must be corroborated in material particulars of his testimony. This is because an accomplice is one who himself indulges in an act of crime therefore relying entirely on him would not be a prudent option. It must be substantiated also as stated above in material particulars. It was held remarkably 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.
· Secondly, the 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 complainant that the accused committed the crime. This does not mean that the corroboration as to identification must extend to all the circumstances necessary to identify the accused with the offence.
· Thirdly, the corroboration must come from independent sources and thus ordinarily the testimony of one accomplice would not be sufficient to corroborate that of another. But of course the circumstances may be such as to make it safe to dispense with the necessity of corroboration and in those special circumstances a conviction so based would not be illegal.
· Fourthly, 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 Supreme Court held that the combined result of Sections 133 read with illustration (b) to Section 114 of Evidence Act is that the Courts have evolved, as a rule of prudence, the requirement that it would be unsafe to convict an accused solely based on uncorroborated testimony of an accomplice. The evidence of an accomplice must point to the involvement of a particular accused. The Supreme Court also observed that the presumption of trial court against the accused was in conformity with law and thus no case was made out by the appellants accused as a result the criminal appeals were dismissed.
It needs no rocket science to conclude that an accomplice means someone who is an equal partner in a crime and along with other has participated in the commission of a crime. In Jaganath v Emperor AIR 1942 Oudh 221 : 43 Cr LJ 416, it was held that, “An accomplice means a guilty associate or partner in crime, or who, in some way or other is connected with the offence in question or who makes admission of facts showing that he had a conscious hand in the offence. An accomplice confesses himself a criminal who has been concerned in the commission of a crime, participes criminis, whether has concern in the strict legal propriety as principal in the first or second degree, or merely accessory before or after the fact.” In Ismail v Emperor, AIR 1947 Lah 220, it was held that, “The word ‘accomplice’ means a guilty associate or partner in crime, or who in some way or other is connected with the offence in question or who makes admission of fact showing that he had a conscious hand in the offence. It includes an accessory after the fact.”
Truly speaking, in another relevant case law titled Abdul Munim Khan v State of Hyderabad, AIR 1953 Hyd 145 : 1953 Cr LJ 785, it was held that, “Whether a person is or is not an accomplice depends upon the facts in each particular case considered in connection with the nature of the crime, and a person to be accomplice must participate in the commission of the same crime as the accused person in a trial are charged. In short, an accomplice is a guilty associate or partner in a crime or active participant in the commission of the crime.” In Nurul v Emperor, AIR 1939 Cal 335 : 40 Cr LJ 667, it was held that, “Mere presence of a person at the time of commission of the crime or passively helping another to commit a crime or where a person helps the criminal in disposing of the dead body, or concealing it does not make him an accomplice.”
It would be perfectly in order to mention here some relevant case laws where the Supreme Court has decisively held that an accomplice shall be treated as a competent witness. In Chandan v State of Kerala, AIR 2011 SC 1594 at p 1616, the Supreme Court held quite categorically that, “Even if the prosecution does not prosecute a witness and uses his evidence only as an accomplice, it is perfectly legal. The evidence of such witness subject to the usual caution is admissible evidence. The contention that his evidence would be inadmissible because he has not been granted pardon or has not been made accused is of no consequence.” Also, let me mention here that the Supreme Court in Sitaram Sao v State of Jharkhand, AIR 2008 SC 391 (394) (para 15 & 16) observed that Section 133 of the Evidence Act expressly provides that an accomplice is a competent witness and the conviction is not illegal merely because it proceeds on an uncorroborated testimony of an accomplice. But this section has to be read along with Section 114 (b). The latter section empowers the court to presume the existence of certain facts. Although Section 114 (b) provides that the court may presume that the evidence of an accomplice is unworthy of credit unless corroborated, “may” is not must and no decision of court can make it must. The court is not obliged to hold that the accomplice is unworthy of credit. It ultimately depends upon the court’s view as to the credibility of evidence tendered by an accomplice.
In yet another case titled – K Hashim v State of TN, (2005) 1 SCC 237, the Supreme Court held that, “It ultimately depends upon the court’s view as to the credibility of the evidence tendered by an accomplice. If it is found credible and cogent , the Court can record a conviction on its basis even if uncorroborated.” Further, in Prithipal Singh v State of Punjab , (2012) 1 SCC 10, the Apex Court held that, “An accomplice who has not been put on trial is a competent witness as he deposes in the court after taking oath and there is no prohibition in any law not to act upon his deposition without corroboration. Also, in Jasbir Singh v Vipin Kumar Jaggo, AIR 2001 SC 2734, the Supreme Court held that, “The approver’s evidence is looked upon with great suspicion. But if found trustworthy it can be decisive in securing conviction.”
It would be pertinent to mention here that in as early a case as Bhuboni Sahu v King, AIR 1949 PC 257, it was observed that the rule requiring corroboration for acting upon the evidence of an accomplice is a rule of prudence. But the rule of prudence assumes great significance, when its reliability on the touchstone of credibility prudence assumes great significance, when its reliability on the touchstone of credibility is examined. If it is found credible and cogent, the court can record a conviction even on the uncorroborated testimony of an accomplice. On the subject of the credibility of the testimony of an accomplice, the proposition that an accomplice must be corroborated does not mean that there must be cumulative or independent testimony to the same facts to which he has testified. At the same time the presumption available under Section 114 (b) of the Act is of significance. It says that the court may presume that an accomplice is unworthy of credit unless he is corroborated in “material particulars”.
It would be significant to mention here that the Supreme Court in Suresh Chandra Bahri v State of Bihar, 1995 Supp (1) SCC 80 held that the statute permits the conviction of an accused on the basis of uncorroborated testimony of an accomplice but the rule of prudence embodied in Illustration (b) to Section 114 of the Evidence Act strikes a note of warning cautioning the court that an accomplice does not generally deserve to be believed unless corroborated in material particulars . Illustration (b) to Section 114 of the Evidence Act points out that, “The Court may presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars.” It clearly signifies that the evidentiary value of accomplice is not very high and therefore Court has been given every right to presume that an accomplice is unworthy of credit unless corroborated in material particulars.
Simply put, it must also be said that it is clear from this illustration that the Court has been vested with the unfettered discretion to either presume or not to presume that an accomplice is unworthy of credit unless the accomplice is corroborated in material particulars and the Supreme Court too in cases like Sitaram Sao has repeated the same thing. But yes, if the accomplice is corroborated in material particulars the Court has to act on it! Very rightly so!
I feel it would be prudent enough to now also mention some relevant case laws where Supreme Court has taken the clear view that the evidence tendered by an accomplice can be acted upon only when it is corroborated in material particulars. In Madan Mohan v State of Punjab, AIR 1970 SC 1006, the Supreme Court held very categorically that, “The established rule of law relating to the evidence of an accomplice, is ‘whilst it is not illegal to act upon the uncorroborated evidence of an accomplice, it is a rule of prudence to be universally followed as to amount to a rule of law that the courts ought not to pay any respect to the testimony of an accomplice unless he is corroborated in material particulars’.” In a recent case – Mrinal Das v State of Tripura, AIR 2011 SC 3753, the Supreme Court held that though a conviction is not illegal merely because it proceeds on the uncorroborated testimony of an approver, yet the universal practice is not to convict upon the testimony of an accomplice unless it is corroborated in material particulars.
As we see, the 69th Report of the Law Commission of India mentions many situations where an accused could possibly give evidence against the other accused and one such typical situation is that of an accomplice who turns an approver. Let me add here that in Suresh Chandra Bahri v State of Bihar, AIR 1995 SC 2420, the Supreme Court held that, “An accomplice by becoming approver becomes prosecution witness. An approver’s evidence has to satisfy double test:
1. his evidence must be reliable;
2. his evidence should be materially corroborated.”
We also cannot miss out here what the Supreme Court held in the case of Lal Chand v State of Haryana, AIR 1984 SC 226 that, “An approver is undoubtedly a competent witness under the Evidence Act. But the appreciation of his evidence has to satisfy a double test: (1) His evidence must show that he is reliable witness and that is test which is common to all witnesses, if this test is satisfied the second test which still remains to be applied is (2) that approver’s evidence must receive sufficient corroboration. This test is special to cases of weak or tainted evidence like that of the approver.”
While craving for my esteemed readers exclusive indulgence, let me also tell them that in Rameshwar v State of Rajasthan, AIR 1952 SC 54, the Supreme Court laid down that, “Although under Section 133 a conviction will not be illegal merely because it is based on the uncorroborated evidence of an accomplice, ordinarily the courts should not convict a person on the basis of his uncorroborated evidence and the rule of caution laid down in Section 114 must be followed.” In State v VC Shukla, AIR 1980 SC 1382 and in C Chellappan v State of Kerala, AIR 1979 SC 1761, the Supreme Court has held that testimony of an accomplice cannot be accepted in any material particular without corroboration from reliable sources. Corroboration of evidence of an accomplice is, therefore, practically necessary in all cases, though as a matter of law in an exceptional situation courts may dispense with it.
Thus we see how the Supreme Court in its various rulings have time and again laid special emphasis on corroborating the testimony of an accomplice before convicting an accused. In this regard, let me again draw my readers attention to what Supreme Court held in some leading cases like State of Bihar v Basawan Singh, AIR 1958 SC 500 , Khushal Rao v State of Bombay, AIR 1958 SC 22 and in Dagdu v State of Maharashtra, AIR 1977 SC 1579 that, “The risk involved in convicting an accused on the testimony of an accomplice without corroboration in material particulars is so real and potential that what during the early development of law was treated to be a matter of prudence or rule of caution has been elevated by judicial experience into a requirement or a rule of law.” Needless to say, there can be no disputing what the Supreme Court has emphasized very unambiguously in these rulings that while earlier corroborating the testimony of an accomplice was more a matter of prudence or caution, it has now been made a requirement or rule of law by judicial experience which means the rulings of Supreme Court from time to time which made the requisite changes.
It is interesting to note here that in a very recent case – State of Rajasthan v Balveer@ Balli [2014 (133) AIC 148 (SC)], the Supreme Court held that, “Extent of culpability of the accomplice in an offence not material where Magistrate tendering pardon believes that the accomplice was involved in or was privy to the offence. An accomplice is competent witness against accused persons. Evidence of such witness can be basis of conviction.” It, however, also made it clear that Court will presume that accomplice is unworthy of credit unless corroborated in material particulars. It is also worthy to mention here that in Rameshwar v State of Rajasthan, AIR 1952 SC 54, the Supreme Court laid down the following rules regarding the corroboration of accomplice evidence : –
1. It is 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;
2. The independent evidence must not only make it safe to believe that the crime was committed but must in some way reasonably connected or tend to connect the accused with it by confirming in some material particular the testimony of the accomplice or complainant that accused committed the crime;
3. The corroboration must come from independent sources;
4. The evidence of one accomplice cannot be sufficient to corroborate that of another accomplice. But of course the circumstances may be such as to make it safe to dispense with the necessity of corroboration and in those special circumstances a conviction so based would not be illegal;
5. 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.
Of course, many times it has been asked that, “Should there be independent confirmation of every material circumstance to sustain conviction” ? In this context, it would be imperative to recall what the Supreme Court held in Mohd Husain Umar v KS Dalip Singh, AIR 1970 SC 45. It was held that, “It is not necessary that there should be independent confirmation of every material circumstance in the sense that independent evidence, apart from the testimony of the complainant or accomplice, should itself be sufficient to sustain conviction.” It would also be relevant to mention here that the Supreme Court in Swamirathnam v State of Madras, AIR 1957 SC 340 held emphatically that, “It is not necessary that corroboration should be of a kind which proves the offence against the accused. It is sufficient if it connects the accused with the crime.”
It would be in the fitness of things to quote here what the Supreme Court held in Sheshanna Bhumanna Yadav v State of Maharashtra, AIR 1970 SC 1330 where it discussed the test of reliability of the approver’s evidence and rule as to corroboration and laid down very clearly that, “The law with regard to appreciation of approver’s evidence is based on the effect of Sections 133 and 114, Illustration (b) of the Evidence Act, namely, that an accomplice is competent to depose but as a rule of caution it will be unsafe to convict upon his testimony alone. The warning of the danger of convicting on uncorroborated evidence is therefore given when the evidence is that of an accomplice. The primary meaning of accomplice is any party to the crime charged and someone who aids and abets the commission of crime. The nature of corroboration is that it is confirmatory evidence and it may consist of the evidence of second witness or of circumstances like the conduct of the person against whom it is required. Corroboration must connect or tend to connect the accused with the crime. When it is said that the corroborative evidence must implicate the accused in material particulars it means that it is not enough that a piece of evidence tends to confirm the truth of a part of the testimony to be corroborated. That evidence must confirm that part of the testimony which suggests that the crime was committed by the accused. If a witness says that the accused and he stole the sheep and he put the skins in a certain place, the discovery of the skins in that place would not corroborate the evidence of the witness as against the accused . But if the skins were found in the accused’s house, this would corroborate because it would tend to confirm the statement that the accused had some hand in the theft.”
All said and done, it has to be appreciated that even though there is a general tendency to disbelieve the testimony of an accomplice as he/she is himself/herself an equal partner in the crime but the Courts have to rise above the general perception and go strictly as per the evidence available and facts on record. If the testimony of accomplice is corroborated in material particulars, there is no reason to disbelieve it. Even if it is uncorroborated, the Court can still act on it as I have already elaborately discussed in the above paragraphs.
It also cannot be ignored that Section 133 itself arms the Courts to rely on the testimony of an accomplice. This is demonstrated by the use of the word “shall” and not “may” for an accomplice to be a competent witness against an accused person. This Section leaves no room of doubt that an accomplice shall be a competent witness.
To be sure, Section 133 also makes it amply clear that a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. In other words, conviction of an accused person can take place even upon the uncorroborated testimony of an accomplice. But yes, the Courts have to be fully sure that the testimony of an accomplice is true before it acts on its uncorroborated testimony.
Needless to say, the Courts must always thoroughly grill and examine in depth the accomplice about the facts of the case and other matters and rely on it only after it is full sure that the testimony is bonafide and not malafide. Courts must always bear in mind that an accomplice too is of a criminal bent of mind and therefore should not go by face value and believe easily whatever is said by him/her. While it is true that the Courts should avoid being biased in advance while dealing with the testimony of accomplice evidence but must subject them to thorough grilling and cross-examination and give the other party also enough opportunity to do the same before coming to a conclusion pertaining to relying or discarding the testimony of an accomplice.
Finally on a concluding note , let me reiterate here once again that it is always better and safe if the evidence of an accomplice is corroborated in material particulars. This is best illustrated in Illustration (b) to Section 114 by which Court may presume that an accomplice is unworthy of credit unless he is corroborated in material particulars. This is because as stated above, he/she have their own hands full in crime and always want to extricate himself/herself by turning approver and shift the liability to those other co-accused whom he/she intends to send to jail by deposing against them! Therefore, I say that full precautions must always be taken by the concerned Court before acting on the testimony of an accomplice and this is true more so when the testimony is uncorroborated!
This alone explains why Wigmore stated unambiguously that, “An accomplice, whether coindictee or not, is always under a suspicion of discredit, implied from his interest to screen himself and to secure the conviction of his companion and he is usually required to be corroborated by other witnesses.” It also goes without saying that there also has to be a harmonious balance between Section 114(b) and Section 133 while interpreting the law pertaining to evidentiary value of accomplice witness.