“TIME IS OF THE ESSENCE” CLAUSE IN COMMERCIAL CONTRACTS IN INDIA

Commercial Contracts in India more often than not contain a clause of “Time is the essence of the Contract”. This clause becomes imperative considering the fact that sometimes the transactions are of enormous value and any kind of delays on the part of one party can entail very large amounts of losses for the other. The consequences of delay are different depending on whether time is of the essence and when it is not.

Garner’s Dictionary of Modern Legal Usage defines the phrase “time is of essence” in the following words: “When a contract stipulation relating to the time of performance is ‘of the essence’ of a contract, a party’s failure to meet that stipulation automatically justifies the other party’s rescinding the contract—no matter how trivial the failure.” A time-of-essence provision is a powerful weapon, since it can give an otherwise minor delay the legal effect of a material breach of contract.

In India, the provision relating to “time as the essence of contract” is contained in Section 55 of the Indian Contract Act, 1872. Stating simply, the Section provides that if something is promised to be done at a specified time and the same is not performed, the contract becomes voidable at the option of the promise if it was the intention of the parties that time should be of the essence of the contract. Further, the section provides that if it was not the intention of parties to make time of the essence, the promisee is entitled to claim compensation for any loss caused by the default. Finally, the section goes on to say that if time is intended to be of the essence by the parties but performance is accepted on some other time, compensation cannot be claimed by the promise unless he gives such a notice to the promisor.

Intention of the parties

In Indian law the question whether or not time is of the essence of the contract would essentially be a question of the intention of the parties which are to be gathered from the terms of the contract. An express stipulation in this matter cannot be a conclusive determination of the intention of the parties. If the contract in its terms provides that time is the essence of the contract, but other terms of the agreement show that the parties did not intend time to be of the essence, the court has held that time is not of the essence. The intention of the parties can be ascertained from:
(a) The express words used in the contract;
(b) The nature of the contract itself;
(c) The nature of the property which forms the subject matter of the contract;
(d) The surrounding circumstances.
It has been held in the case of China Cotton Exporters v. BeharilalRamcharan Cotton Mills Ltd .that in commercial contracts time is ordinarily of the essence of the contract. The rule is that except in commercial contracts, the ordinary presumption is that time is not of the essence of the contract. This presumption can be rebutted by showing the intention of the parties. Time is presumed not to be of essence in contracts relating to immovable property , but of essence in contracts of renewal of leases . At common law stipulations as to time in a contract giving an option for renewal of a lease of land were considered to be of the essence of the contract even if they were not expressed to be so and were construed as conditions precedent. The onus to plead and prove that time is of essence of the contract is on the person alleging it, thus giving opportunity to the other party to adduce rebuttal evidence that time was not of essence. Where both the parties are engaged in business and articles are purchased by one party from the other party for business purposes the transaction falls within the term ‘mercantile transaction. ’

Stipulations in the Contract and their consequence

In order to ascertain whether time was intended to be of the essence or not, the terms and conditions of the agreement should be carefully read . If the parties intend to make time of essence, they must express this intention in clear and unambiguous terms. If no time is specified, the question of time being of the essence does not arise at all. However, merely specifying the time at which the contract has to be performed does not make time the essence of the contract. If the contract provides that in case of delay by any party the contact would be held to be cancelled, it raises a strong evidence towards the parties intending the time to be of the essence.

An express stipulation, however, is not a conclusive proof of time being of the essence of the contract. Even where the parties have expressly provided that time is of the essence of the contract, such a stipulation will have to be read along with the other provisions of the contract. It is pertinent to note the case of Hind Construction Contractors v. State of Maharashtra to further elucidate this point. The Appellant entered into a contract with the respondent on July 2, 1955 for the execution of a work with the condition that contract should be completed in 12 months from the commencement of the work. The Appellant could not complete the work within the stipulated time and the Respondent rescinded the said contract with effect from August 16, 1956. The Appellant contended that time was not of the essence and further on account of several difficulties, such as excessive rains, lack of proper road and means of approach to the site, the completion was delayed. The Supreme Court, in deciding that time was not of the essence in relied on two clauses in the contract. First, there was a power to grant extension of time on reasonable grounds on an application by the contractor/appellant. Second, there was a provision to recover penalty/compensation from the appellant at specified rates during the time the work remains unfinished. These two provisions, as per the court, exclude the inference that time was intended to be of the essence of the contract.

Time, when it is not of the essence, can be subsequently made so, by notice by the party not in default. The notice must, however, contain clear stipulation that it wants to make time of the essence, with express provision or necessary implication. Any such notice ought to fix a reasonably long time requiring the other side to perform his part of the contract. In the notice for making time of the essence of the contract, the party can be intimated that in default of compliance with the requisition, the contract will be treated as cancelled. The party who serves such a notice must himself be bound by it.

Extension of time

Since one party to the contract cannot unilaterally alter or vary the terms thereof he also cannot extend the time thereof without the other party’s intimating its consent or agreement thereto by any of the methods stated in section 4 of the Contract Act. Therefore, time for performance can be extended only by an agreement arrived at between the promisor and promisee. A mere extension of time and nothing more is only a waiver to the extent of substituting the extended time for the original time and not an utter destruction of the essential character of time. Where one party intimated to the other about the extension of time, but the other party did not communicate any acceptance, time for performance was not extended.

When time is not of the essence

Time is not of the essence where the contract provides for damages for delayed completion, or for extension of time in certain circumstances, despite express provision making time of the essence, or provision of a default clause. These provisions are inconsistent with the intention to make time of essence. Time was not of essence where the time for performance was extended twice and the object of a purchase was not a commercial undertaking.

Time is not of the essence when the contract did not specify a date for the completion, but merely provided for completion to take place as soon as reasonably expected. A party’s general right to have the contract performed within reasonable time is unaffected by the fact of time not being of the essence. Time was held to be not of essence where in a contract for import and supply of sugar, the port of discharge had not been named and the surveyor not been appointed without whose certificate the question of payment did not arise.

Acceptance after the specified time and Waiver

When a party waives his right by taking benefit under a contract after the fixed time, he cannot rely on time being of the essence of the contract in order to avoid a contract. A claim for compensation under this section would be barred, if the promisee accepts performance after stipulated time unless he had given notice to the promisor of his intention to do so. In the case of State of Kerala v. M.A Mathai , it was held that if there are any delays in the performance of reciprocal obligations by an employer, the contractor gets the right to avoid the contract but if he does not avoid the contract and accepts the belated performance, he cannot claim compensation for any loss sustained to him due to delay in performance, unless he gives a notice of the same to the delaying party.
CONCLUSION
From the above analysis of the concept of time as the essence of the contract, in light of the provisions of the Indian Contract Act, it may be concluded that the question as to whether time is of the essence of the contract or not, can only be answered by looking at the intention of the parties. Clauses such as extension of time and imposition of liquidated damages or penalty etc. may go against the intention of the parties to make time of the essence since the parties find an adequate remedy in the way of penalty or LD. It may also be concluded that in case of a commercial or mercantile contract, time is presumed to be of the essence.

Uniform Civil Code: The Dormant Law

Prof. Annam Subrahmanyam and Mohan Rao, Bolla

Introduction

The High Court of Kerala in Agnes alias Kunjamol v. Regeena Thomas, has been confronted with a peculiar question of which the law has been dormant. It has, inter alia, reference to a long awaited issue of enactment of Uniform Civil Code. Despite the Constitutional mandate by Part – IV of the supreme law of the land, no state has had courage to make the law on the subject. Long ago, in the Shah Bano Case, the Apex Court has expressed its regrets that Article 44 of the Constitution has remained a dead letter. One decade after Shah Bano Case, in Sarla Mudgal v. Union of India, the Supreme Court of India, has reiterated the need for the Uniform Civil Code for India.

India has been declared more ‘secular’ through the 42nd Constitutional Amendment in 1976. Secular character was considered as one of the basic structures of the Constitution of India by the Kesavananda Bharathi Court. Alas, the plight of women in India has been continuing unabated in the male ‘chauvinistic’ society!

The Peculiar Agnes Case The story of the Agnes case hails from the most literate district of Kerala, viz., Ernakulam. There are several peculiar and interesting issues in this case. Firstly, it pertains to a ‘legal battle between a mother in law and a daughter in law’ in which the mother in law has succeeded in the lower courts. The brief facts of the Agnes case are as follows: The first plaintiff/appellant, Mrs. Agnes, was married to one Sebastian, the youngest son of the defendant. At the time of the marriage, a sum of Rs. One Lakh has allegedly been given to the defendants’ family by the first plaintiff’s family. Sebastian was also allegedly having 75% share in the Prakash Gold Covering business managed by his father. As the father was sick, the business was being run by Sebastian.

 

Another peculiarity of the case was that Sebastian became mentally sick and the sickness aggravated to such a stage that he had caused the death of one of his two children. He was prosecuted under Section 302 IPC but was given the benefit of Section 84 of IPC. He is undergoing treatment in a mental hospital. The other child of the first plaintiff and Sebastian, i.e., Ms. Nayana (minor) is the second plaintiff in the instant case.

 

After the death of the father in law, the business was run by Thomas the elder son of the defendant. The first plaintiff has been living in the ‘Tharawadu’ house (the ancestral residential house in the name of the defendant which is said to have been maintained with the One Lakh rupees brought by the first plaintiff). The defendant has been providing Rs. 1000/- per month and Thomas was giving Rs.2000/- per month for some time to the first plaintiff. Another peculiarity is that the defendants stopped giving the amounts to the Plaintiffs and strangely served eviction notice to the first plaintiff. Thus, the battle between the mother in law and the daughter in law has begun. The daughter in law replied obviously that she would be rendered homeless but the defendant and her family were not willing to provide anything for her and her daughter and were only willing to do something to Sebastian. Apprehending forceful dispossession, the suit was filed by the Plaintiff. The defendant resisted the suit.

 

The daughter in law claims that the amount of Rs. One lakh given by her family at the time of the marriage was utilized for the maintenance of the ‘tharawadu’ (ancestral) house. The house according to her has been orally given to her by the defendant. The defendant being a retired teacher claims that the (‘tharawadu’ house) schedule property was acquired with her own funds. She wants to evict the daughter in law (even without providing anything for her living) and sell the residential house to utilize the sale proceeds for treatment of her son Sebastian.

 

The Trial Court came to the conclusion that the first plaintiff was unable to establish any manner of right over the suit property and therefore, dismissed the suit. The Appellate Court too dismissed the appeal. Both the Courts found that “being a Christian there is no ‘tharawadu’ (ancestral) for the family and the first plaintiff has no manner of the right over the suit property.”

 

The Subordinate Status of Women

 

The concept of maintenance under all matrimonial statutes stems from the financial subordinate status of the woman. Women are socialized into accepting being wives and mother, as their primary role. As housemakers, women’s contribution to the household economy has remained unremunerated and un accounted for. Even when women do earn, they rarely had control over their earnings. Hence in most cases, when women are compelled to leave their matrimonial house due to any reasons, they were rendered destitutes. More often then, the children became the sole responsibility of the women. Of course, S. 125 Cr.P.C, some relief to such women. But, such a state of affairs is far from satisfactory. “ The Court lamented that ‘the relief provided under section 125 Cr.P.C., is far from satisfactory.’

 

Justice Bhavadasan has traced the position in Common law and observed that in Common law, the husband has no right to turn his wife out of the house. She has a right to reside there and it is not possible for the husband to drive her out. The Court recalled,’ the Hindu Law has always recognized the independent status of wife. In fact, Koutilya in Arthasasthra and Manu in Manusmruthi, have dealt with the right of maintenance of the wives. Both the parties belong to Christianity and the Indian Christian Marriage Act, 1872 does not provide any property rights to the daughter in law.

 

However, the Court held that the principle of ‘ubi jus ibi idem remedium’ applies in this case…,”

Article 44 : The Dead Letter

 

As a matter of regret the Court ruled that Article 44 of our Constitution had remained a dead letter. It provides that “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.” The Court observed that there was no evidence of any official activity for framing a common civil code for the country. A belief seems to have gained ground that it is for the Muslim community to take a lead in the matter of reforms of their personal law. A Common Civil Code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies. The Court expressed its hope that the community is likely to bell the cat by making gratuitous concessions on this issue.

 

The Court further reminded that ‘It is the State which is charged with the duty of securing a uniform civil code for the citizens of the country and unquestionably, it has the legislative competence to do so. A counsel in the case whispered, somewhat audibly, that legislative competence is one thing, the political courage to use that competence is quite another.’

 

The Court realized the difficulties in bringing persons of different faiths and persuasions on a common platform. But a beginning has to be made if the Constitution is to have any meaning. Inevitably, the role of the reformer has to be assumed by the courts because, it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable. But piecement attempts of courts to bridge the gap between personal laws cannot take the place of a Common Civil Code. Justice to all is a far more satisfactory way of dispensing justice than justice from case to case. speaking through Chief Justice Y.V. Chandrachud in Mohd.Ahmed Khan v. Shah Bano Begum held as under:

 

“The High Court expressed wonder as to how long would it take for the Government of the day to implement the mandate of the Framers of the Constitution under Article 44 of the Constitution of India. The traditional Hindu Law – personal law of the Hindus – – governing inheritance, succession and marriage was given a go-by as back as 1955-56 by codifying the same. There is no justification whatsoever in delaying indefinitely the introduction of a uniform personal law in the country…. Article 44 is based on the concept that there is no necessary connection between religion and personal law in a civilized society. Article 25 guarantees religious freedom whereas Article 44 seeks to divest religion from social relations and personal law. Marriage, succession and like matters of a secular character cannot be brought within the guarantee enshrined under Articles 25, 26 and 27. The personal law of the Hindus, such as relating to marriage, succession and the like has all a sacrament origin, in the same manner as in the case of the Muslims or the Christians. The Hindus along with Sikhs, Buddhists and Jains have forsaken their sentiments in the cause of the national unity and integration, some other communities would not, though the Constitution enjoins the establishment of a common civil code for the whole of India.”

 

Comparing the two provisions viz. Arts.25 and 44 the Court analyzed that the former guarantees religious freedom whereas the latter divests religion from social relations and personal law. It is no matter of doubt that marriage, succession and the like matters of a secular character cannot be brought within the guarantee enshrined under Arts.25 and 26 of the Constitution. Any legislation which brings succession and the like matters of secular character within the ambit of Arts.25 and 26 is a suspect legislation. …. in Smt. Sarla Mudgal, President, Kalyani and others v. Union of India and others it was opined that it was a matter of regret that Art.44 of the Constitution has not been given effect to. Parliament is still to step in for framing a common civil code in the country. Accordingly, ‘a common civil code will help the cause of national integration by removing the contradictions based on ideologies.’

 

Relief Granted

 

The evidence was to the effect that the first plaintiff hails from a poor family and her family will not be able to support her, if she goes to her parental house. One can only say that the position of the first plaintiff and her daughter is deplorable and precarious. The only course now open to this Court, is to let the plaintiffs continue to reside in the plaint schedule property till they are provided with another home by her husband’s family members. As already stated, the plaintiffs may not have any statutorily enforceable right in this regard. The Court finally ruled that certainly, the Plaintiff, ‘has a right to reside in the matrimonial house,’ reminding that her husband has been mentally ill and ‘one can easily understand the plight of the first plaintiff and her daughter.’

 

Accordingly, the appeals were allowed and in the result, the setting aside the judgments of the lower courts, the Hon’ble Court issued an ‘order of permanent prohibitory injunction against the defendant [or any one claiming under her] from dispossessing the plaintiffs from the plaint schedule property until they are provided with another suitable residence by the family members of Sebastian, her husband.’

 

The counter claim filed by the respondent/defendant was held dismissed. Further, the plaintiffs were held entitled to their costs throughout.

 

Conclusion

It may be concluded that this judgment of the Kerala High Court through the Justice P.BHAVADASAN would be an eye opener for the parliamentarians to come forward to enact a law in pursuance of Article 44 of the Constitution of India in the interest of rendering famine justice. It is sumitted that we can’t, with a sigh of relief, feel contended with the laudable judgments of the Courts like the one we are discussing about. It may be pointed out that time is ripened and it is for the legislature to enact a law for a Uniform Civil Code. It is analytically clarified in the case and the Court’s historic venture to do justice to an unfortunate Christian woman of whom the law has been silent, was so apt and appreciable.

 

But, the State cannot remain a mere spectator when many a Shah Bano and Agnes suffer due to lack of the statutory aid given in pursuance of Article 44 of the Constitution. By performing its duty, the State would render justice to the needy, deserving and deplorable Chiristian and Muslim (Minority) women. Hope that the parliamentarians exhibit the courage expected by the Supreme Court in Shah Bano and Sarla Mudgal cases by enacting a law in pursuance of Article 44 of the Constitution.

Accomplice Witness and its admissibility as Evidence

Ayush Yadav

Introduction:

In the basic sense Accomplice Witness mean a witness to a crime who, either as principal, Accomplice, or Accessory, was connected with the crime by unlawful act or omission on his or her part, transpiring either before, at time of, or after commission of the offense, and whether or not he or she was present and participated in the crime . The word ‘accomplice’ has not been defined by the Indian Evidence Act, 1872. An accomplice is one of the guilty associates or partners in the commission of a crime or who in some way or the other is connected with the commission of crime or who admits that he has a conscious hand in the commission of crime .

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.

Section 133 of the Indian Evidence Act, 1872 deals with the Accomplice Witness. It says that 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.

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.

An accomplice is a competent witness provided he is not a co accused under trial in the same case. But such competency which has been conferred on him by a process of law does not divest him of the character of an accused. An accomplice by accepting a pardon under Section 306 CrPC(Code of Criminal procedure,1973) becomes a competent witness and may as any other witnesses be examined on oath.

 

Definition:

In the basic sense Accomplice Witness mean a witness to a crime who, either as principal, Accomplice, or Accessory, was connected with the crime by unlawful act or omission on his or her part, transpiring either before, at time of, or after commission of the offense, and whether or not he or she was present and participated in the crime . The word ‘accomplice’ has not been defined by the Indian Evidence Act, 1872. An accomplice is one of the guilty associates or partners in the commission of a crime or who in some way or the other is connected with the commission of crime or who admits that he has a conscious hand in the commission of crime.

An accomplice is one concerned with another or others in the commission of a crime or one who knowingly or voluntarily cooperates with and helps others in the commission of crime. It was held in R.K Dalmia v. Delhi Administration that “an accomplice is a person who participates in the commission of the actual crime charged against an accused.

Categories of Accomplice:

1. Principal offender of First Degree and Second Degree: The principal offender of first degree is a person who actually commits the crime. The principal offender of the second degree is a person who either abets or aids the commission of the crime.

 

2. Accessories before the fact: They are the person who abet, incite, procure, or counsel for the commission of a crime and they do not themselves participate in the commission of the crime.

 

3. Accessories after the fact: They are the persons who receive or comfort or protect persons who have committed the crime knowing that they have committed the crime. If they help the accused in escaping from punishments or help him from not being arrested, such person are known as harbourers. These persons can be accomplices because all of them are the participants in the commission of the crime in some way or the other. Therefore anyone of them can be an accomplice.

Competency of Accomplice as Witness:

An accomplice is a competent witness provided he is not a co accused under trial in the same case. But such competency which has been conferred on him by a process of law does not divest him of the character of an accused. 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. Even if there is an omission to record discharge an accused becomes a competent witness on withdrawal of prosecution. 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.

 

When Accomplice becomes a competent witness:

Section 118 of the Indian Evidence Act says 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. At the same time Section 133 describes about competency of accomplices. In case of accomplice witnesses, he should not be a co-accused under trial in the same case and may be examined on oath.

Some propositions have been made by Courts in this regard:

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 criminis 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.

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. 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.

In order to be an accomplice a person must participate in the commission of the same crime as the accused and this he may do in various ways. In India all accessories before the fact if the participate in the preparation for the crime are accomplices but if their participation is limited to the knowledge that crime is to be committed they are not accomplices. However opinion is divided as to whether accessories after the fact are accomplices or not. In some cases it has been held that in India there is no such thing as an accessory after the fact whereas in some cases accessories after the fact have been held to be accomplices. Three conditions must unite to render one an accessory after the fact:

  •  The felony must be complete
  •  The accessory must have knowledge that the principal committed the felony
  •  The accessory must harbour or assist the principal felon.

 

Importance of Section 114 and 133:

These are the two provisions dealing with the same subject. Section 114 of the Indian Evidence Act says that the court may presume that an accomplice is unworthy of any credit unless corroborated in material particulars.

Section 133 of the Indian Evidence Act says that an accomplice shall be a competent witness as against the accused person and a conviction the accused based on the testimony of an accomplice is valid even though it is not corroborated in material particulars.

Necessity 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. The rule states that: A conviction based on the uncorroborated testimony of an accomplice is not illegal but according to prudence it is not safe to rely upon uncorroborated evidence of an accomplice and thus judges and juries must exercise extreme caution and care while considering uncorroborated accomplice evidence.

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:

  •  An accomplice is likely to swear falsely in order to shift the guilt from himself.
  •  An accomplice is a participator in crime and thus an immoral person.
  •  An accomplice gives his evidence under a promise of pardon or in the expectation of an implied pardon, if he discloses all he knows against those with whom he acted criminally, and this hope would lead him to favour the prosecution.
  • Like the Supreme Court has laid down what is known as theory of “double test” in the case of Sarwan Singh v. State of Punjab . In this case Sarwan Singh who was the third accused, was tried along with two others, i.e. Gurdayal Singh and Harbans Singh, under Section 302 for the murder of one Gurdev Singh who was the brother of the first accused, Harbans Singh. The case was that Sarwan Singh along with Gurdayal Singh and Banta Singh, who became an approver later on , caused the death of Gurdev Singh and all the accused were convicted on the basis of the evidence of Banta Singh. So the evidence of Accomplice is subject to corroboration.

 

 

Nature 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. The corroboration need not be direct evidence of the commission of the offence by the accused. If it is merely circumstantial evidence of his connection with the crime it will be sufficient. The corroboration need not consist of evidence which, standing alone would be sufficient to justify the conviction of the accused. If that were the law it would be unnecessary to examine an approver. All that seems to be required is that the corroboration should be sufficient to afford some sort of independent evidence to show that the approver is speaking the truth with regard to the accused person whom he seeks to implicate.

Detectives, Decoys and Trap Witness:

Detectives, decoys and trap witness cannot be put on a par with the accomplice. These are the persons who act for the advancement of public justice and their aim is to bring the culprits to book. Although they pretend to collaborate with the culprits in the commission of crime they do not share the element of Mens rea. These persons therefore cannot be considered as accomplices and their evidence requires no corroboration.

Where a servant of the accused was a mute spectator to the crime being committed by the accused, he cannot be regarded as an accomplice witness as he cannot set to have participated in crime with the requisite mens rea.

Honest Trap Witness:

In C.R. Mehta v. State of Maharashtra, the accused acting in consort offered a sum of Rs. 3 Lacs to the Home Minister of State Government for cancellation of a detention order. The Minister giving an impression that he would consider the offer filed a complaint with Anti – Corruption Bureau and a trap was laid. While handing over the bribe money to the Minister the accused along with his three other co – accused were arrested. It was held that the complainant Minister cannot be equated with position of an accomplice and as a witness the quality of his evidence as also his general integrity being of high order conviction of the accused can be based even on his uncorroborated evidence.

 

Application of the Concept of Accomplice witness in various cases:

Janendra nath Ghose v. State of West Bengal the accused was tried for the offence of murder and the jury found him guilty on the evidence of the approver corroborated in material particulars. It was contended that there was a misdirection because the jury were not told of the double test in relation to the approver’s evidence laid down in Sarwan Singh case.

Raghubir Singh v. State of Haryana – In this case it was observed:

“To condemn roundly every public official or man of the people as an accomplice or quasi – accomplice for participating in a raid is to harm the public cause. May be a judicial officer should hesitate to get involved in police traps when the police provides inducements and instruments to commit crimes, because that would suffer the image of the independence of the judiciary.” In the present case the Magistrate was not a full – blooded judicial officer, no de novo temptation or bribe money was offered by the police and no ground to discredit the veracity of the Magistrate had been elicited.

Lachi Ram v. State of Punjab – the accused was charged with murder and was convicted on the evidence of an approver corroborated in material particulars. On the question whether proper tests were applied in applied in appreciating the approver’s evidence the Supreme Court held:

“It was held by this Court in Sarwan Singh case that an approver’s evidence to be accepted must satisfy two tests”.

The first case to be applied is that his evidence must show that he is a reliable witness, and that is a test which is common to all witness. The fact that High Court did not accept the evidence of the approver on one part of the story does not mean that the high Court held that the approver was an unreliable or untruthful witness. The test obviously means that the Court should find that there is nothing inherent or improbable in the evidence given by the approver and there is no finding that the approver has given false evidence.

The second case which thereafter still remains to be applied in the case of an approver and which is not always necessary when judging the evidence of the witness, is that his evidence must receive sufficient corroboration. In the present case the evidence of the approver was reliable and was corroborated on material particulars by good prosecution witnesswho have been belived by the lower courts.”

 

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 subjectiveness creeps in which can result in injustice.

Accomplice witness can be a competent witness by fulfilling certain condition. One necessary condition for being Accomplice Witness is that he must be involved in the crime. So, the Accomplice Evidence can be taken as a strong evidence when it is subject to corroboration.

 

Books Referred:

1) Dr. V. Krishnamachari, Law of Evidence, (Hyderabad: S.Gogia &Co.), 2010

2) Singh Avtar, Priniciples of the Law of Evidence, (Allahabad : Central Law Publications), 2007

3) Dhiraj Lal & Ratanlal, TheLaw of Evidence,(Nagpur : Wadhwa & Company), 2008

4) Tandon M.P., Indian Evidence Act, 1872, (Faridabad : Sri Sai Law Publication), 2006

5) Sarathi P. Vepa, Law of Evidence,(Lucknow : Eastern Book Company), 2006

6) Myeni S.R., The Law of Evidence, ( Hyderabad : Asia Law House), 2008

7) Basu S.D., The Law of Evidence, ( Faridabad : Allahabad Law Agency), 2010

 

Websites Referred:

1) http://www.airwebworld.com/articles/index.php?article=900 – A Critical Analysis Of Accomplice Witness In India

2) http://www.oppapers.com/essays/A-Critical-Analysis-Of-Accomplice-Witness/507650 – An Essay on A Critical Analysis Of Accomplice Witness In India

3) http://legal-dictionary.thefreedictionary.com/Accomplice+Witness – Legal Definition of Accomplice Witness

4) http://legalsutra.org/507/accomplice-evidence/ – Accomplice Evidence

Cases Referred:

1) Jagannath v. Emperor, AIR 1942 Oudh 221

2) Francis Stanly v. Intelligence Officer N.C.B., Thiruvananthapuram, 2007 Cri. Lj 1157 (SC)

3) K. Hasim v. State of Tamil Nadu, 2005 Cri. Lj 143 (SC)

4) Subhash Chandra Panda v. State of Orissa, 2001 (4) Crimes 367 (DB) (Ori)

5) C.R. Mehta v. State of Maharashtra ,1993 Cr.Lj 2863 (Bom.)

6) Sarwan Singh v. State of Punjab, AIR 1957 SC 637

7) R.K Dalmia v. Delhi Administration, AIR 1962 SC 1821.

8) Janendra nath Ghose v. State of West Bengal, AIR 1959 SC 1199

9) Raghubir Singh v. State of Haryana, (1974) 4 SCC 560

10) Lachi Ram v. State of Punjab, AIR 1967 SC 792