Session: 2019-20

​DEPARTMENT OF LAW

​2nd
​ ​GCT assignment of Law of Evidence​:
Topic: ​“Accomplice evidence-its nature & evidentiary
value, reconciliation of the apparent contradiction
between S. 133 and illustration(b) to S.114

S​ubmitted By:   
Subuk Muskan
Roll No. 17 BALLB 41

​S​ubmitted to:   

Prof. Mohd. Ashraf

ACKNOWLEDGMENT
This work is not the presentation of individualistic efforts. It is the combined series of efforts. I
would like to express my sincere gratitude to my subject teacher “ ​Prof.Mohd. Ashraf ​for his
valuable guidance regarding the formalities and resources related to the assignment.

This assignment is a combination of material collected from different research papers and
articles. Lastly, I would also like to thank my friends and family who have helped me in
completing this assignment.
CONTENTS:

1. Introduction
2. Who is an Accomplice?
3. When is an accomplice a competent witness?
4. Categories of accomplice
5. Who is not an accomplice
5.1Accomplice and approver
6. Evidentiary value of accomplice
7. Apparent contradiction between S. 133 and illustration (b) to S. 114
7.1 Corroboration as a rule of caution
7.2 Nature and extent of corroboration
7.3 Appreciation of Accomplice evidence-combined effect of S. 133
and S. 114
8. Conclusion
9. Bibliography
INTRODUCTION
It is well-established principle of the law of evidence that every fact has to be proved or
established by some sort of "evidence" or "testimony" from a "competent witness." Accomplice
is a competent witness as stated by S. 133 and a conviction can be based on his uncorroborated
testimony. Usually, all the crimes are committed in secrecy and it would not be possible for the
police to prove the guilt of the accused. In such cases, the police picks up the least guilty person
and offers an assurance to him that if he gives all the information relating to the crime, he will be
pardoned, and he is known as accomplice.

However, there has long been a controversy whether the court should consider the testimony of
the friend in crime, while deciding the case. The Courts, have through a plethora of judgments
devised a rule of prudence and caution while receiving the testimony of accomplice. And that
rule of prudence is enshrined under S. 114 (illustration b) which provides that an accomplice is
unworthy of credit unless his testimony is corroborated in material particulars. There seems to be
an apparent contradiction between S. 133 and (illustrn. b) to S. 114 because one makes the
evidence given by accomplice admissible and the other questions its reliability.

Accordingly, this assignment analyzes the nature and the evidentiary value of the accomplice
evidence, the apparent contradiction between S. 133 and S. 114 (illustration b) and its
reconciliation.

WHO IS AN ACCOMPLICE?

The word accomplice is not defined in the Indian Evidence Act. Accomplice means a “guilty
associate” or a “partner in crime”. When an offence is committed by more than one person in
concert, everyone participating in its commission is an accomplice. Conspirators lay their plot in
secret and execute it without leaving any evidence. Often the police selects one of them for the
purpose of being converted into a witness and he appears as a witness for the prosecution in the
hope of getting pardoned​1​. The term accomplice includes ​“trap-witness”​ and ​“approver”.

In ​Chandan v. Emperor​2​, ​the Court defined accomplice as one who is associated with the
offender(s) in the commission of the crime or one who knowingly or voluntarily helps and
cooperates with others in the commission of the crime. The SC in ​R.K. Dalmia v. Delhi
Administration​3​said that an accomplice must be a ​participes criminis ​in respect of the crime
charged, whether as principal or accessory before or after the fact (in felonies) or persons
committing, procuring or aiding and abetting (in case of misdemeanours).

W​hen is an accomplice a competent witness? :

According to s. 118 of the Evidence Act, a competent witness is one who can understand the
questions put to him and is able to give rational answers to them. An accomplice is also a
competent witness and he should not be a co-accused under trial in the same case:

(i) ​But this competency given to him by law does not relieve him of the character of the
accused; he remains a participes criminis;
(ii) ​He becomes a competent witness by accepting a pardon under S. 306 CrPc; ​(iii) ​Art. 20 (3)
says that no person 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, and not in any pressure, in
his own interest, the law under S.306 & 308 of CrPc is not affected and he is bound to make
full disclosure and on his failure to do so, he would be tried of the offence originally charged
and his statement would be used against him under Section 308.

Dr. Avtar Singh, Principles of the Law of Evidence, Central Law Publications, 20​th ​edn. 2013, p. 524
1​
2​
AIR 1930 All 274
3​
A.I.R. 1962 S.C. 1821
Categories of Accomplices:

In ​Jagannath v. Emperor​4​, ​it was held- an accomplice can participate in the commission of
the crime in multiple ways. The modes of taking part in a crime has been dealt under following
heads:

1. ​Principals in the first and second degree: ​Principal of 1​st ​degree is one who actually
commits the crime. A principal of 2​nd ​degree is one who is present and assists in the
perpetration of the crime.
2. ​Accessories before the facts: ​He is one who counsels, incites, connives at, or procures
the commission of the crime, if he participates in the commission of the crime but if the
 participation is limited to the knowledge that a crime is to be committed they are not
accomplices.
3. ​Accessories after the facts: ​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 escape from the punishment for the crime, intentionally allows him to escape
or opposes his arrest.​5

Accomplice and Approver:

Approver is an accomplice who is tendered pardon by the Court on condition of making a full
and true disclosure of the whole circumstances of the case. Thus, an approver is always an
accomplice, but an ‘accomplice’ is not necessarily an approver. The evidence of the approver is
looked upon with great suspicion but if found trustworthy, it can be decisive in securing
conviction.​6

4​
AIR 1932 All 227
5​
Batuk Lal, The law of Evidence, Central Law Agency, 22​nd ​edn. 2018, p. 634

6​
Ibid, p. 636
EVIDENTIARY VALUE OF AN ACCOMPLICE​:

When an accomplice makes a testimony, it is not seen as a reliable evidence for a conviction, and
it has to be verified with other material evidence, this is called corroboration. Every competent
witness is not a reliable witness, and an approver must satisfy a double test before a conviction
can be based on it:

1. ​General test​: he must show that he is a reliable witness;

2. ​Special test​: his evidence must receive corroboration in material particulars which is generally
required in case of a weak and tainted evidence as that of an accomplice.

The Supreme Court has laid down a ​“double test” ​in ​S​arwan Singh v. State of Punjab,​
1957, to establish a procedure to determine reliability of approver testimony. First, the court has
to satisfy itself that the statement of the approver is ​“worthy of credit”. ​Along with this, there
must be evidence—other than the statement of the approver—that he or she played a role in the
crime. This would serve to satisfy whether the evidence is coming from an actual accomplice or
not.

Apparent contradiction between S. 133 and illustration (b) to S. 114:

Regarding the reliability on the testimony of an accomplice, two provisions of the Evidence Act
seem to contradict each other. ​S. 133 ​lays down that ​an accomplice is a competent witness and a
conviction based on the sole testimony of an accomplice is not illegal. ​Contrary to this,
illustration (b) to Sec. 114 ​lays down - ​the court may presume that an accomplice is unworthy
of credit unless he is corroborated in material particulars. ​The contradiction is only apparent
and not a real one.

Corroboration as a Rule of Caution:

S. 114 (illustrn. b) lays down a ​rule of caution or prudence ​which has now assumed the force
of rule of law. This very fact that he has been himself a participator in the crime puts a serious
question mark on the testimony of an accomplice and the corroboration has been held to be
necessary for him because:
 • ​There is no sanctity of oath for him and he is always a chameleon which changes its color; ​•
If he has betrayed his companions, then there is a high possibility that he will be faithless to
the Court and might always be willing to shift the fault over the shoulder of others; ​• ​He gives
evidence under the hope of being pardoned and this hope may lead him to unnecessarily favor
the prosecution​7​.

• ​He has been a criminal himself and his words should not carry the same respect as ordinary
law abiding person.

Nature and extent of Corroboration:

Corroboration does not mean that there should be independent evidence of all the facts which
have been related by the accomplice. S. 114 requires that the corroboration should be in
‘material particulars’. ​The corroboration of an accomplice is of two kinds:

1. Corroborating evidence which ensures that the approver is trustworthy 2. Corroboration in

material particulars which confirms not only of the commission of the crime but also that the
accused committed it​8​.

The nature and extent of corroboration of accomplice evidence vary according to the facts and
circumstances of each case. But the Court has laid down guiding principles in ​R v. Baskerville​9​:

1. ​It is not necessary that there should be independent confirmation of every material
circumstance. All that is required is that there must be some additional evidence
rendering the story of the accomplice true and that it is reasonably safe to act upon it.
2. ​There must be some independent evidence which must not only make it safe to believe that
the crime was committed but must in some way reasonably connect the accused with it.
3. ​One accomplice cannot corroborate the evidence o the other accomplice; corroboration has
to be done independently.
4. ​Corroboration need not be a direct evidence that the accused committed the crime; it can
be circumstantial too.

Joga Gola v. State of Gujarat, AIR 1982 S.C. 1227

7​
8​
Balwant Kumar v. UT of Chandigarh, AIR 1988 SC 139
9​
1916 2 KB 658
Appreciation of Accomplice evidence- Combined effect of S. 133 and
S.114 (illustration b):

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 evidence of the accomplice is looked
upon either suspicion but it does not mean that the evidence of an accomplice can never be relied
upon. S. 133 has to be read along with S. 114(illustration b). It ultimately depends upon the
court’s view as to the credibility of the evidence of accomplice. The rule of prudence requires
that the evidence of an accomplice should ordinarily corroborated by some other evidence. If it is
found to be credible and cogent, the Court can record conviction on its basis even if
uncorroborated.​10

The combined effect of S. 133 and S. 114 was observed by the SC in ​Dagdu v State of
Maharashtra​11 ​– “There is no antithesis between S. 133 and illustration (b) to S. 114 because the
illustration only says that the court ​‘may’ presume ​a certain state of affairs. It does not seek to
raise a conclusive and irrebuttable presumption. Reading the two together, the position that
emerges is that the accomplice is a competent witness and though a conviction may lawfully rest
on his uncorroborated testimony, yet the Court is entitled to presume and may indeed be justified
in presuming that no reliance can be placed on the evidence of an accomplice unless
corroborated in material particulars by which is meant that there has to be some independent
evidence tending to criminate the particular accused in the commission of the crime.”

RECENT CASE:

In ​Manohar Jain Sable & Ors. v. State of Maharashtra​12​, the Court held that the combined
effect of illustration (b) to S. 114 and S. 133 of the Indian Evidence Act is that though a
conviction can be based on uncorroborated testimony of an accomplice but as a rule of prudence,
it is unsafe to place reliance on his uncorroborated testimony.

10 ​
Supra note 6 at 637
11 ​
(1977) 3 SCC 68 74,75
12 ​
Manu/MH 2030/2018
CONCLUSION
​

I hereby conclude that it is the general rule that all the persons who have participated in the
commission of the crime must face consequences. A participant in a crime cannot escape by
shifting the burden on the shoulder of others. But the evidence given by the accomplice becomes
admissible out of necessity as it is only through him that the principal offender can be brought to
justice.

The Courts are usually reluctant to act upon the weak and tainted evidence as that of the approver
unless it is corroborated in material particulars by other independent evidence, however, it should
not be expected such evidence should cover whole of the prosecution story. On the other hand, it
would not be safe to act upon such evidence merely because it is corroborated in minor
particulars, because in such a case, corroboration does not necessarily mean that the story
disclosed by the approver is reliable.

Since the accomplice has himself been a guilty associate, his testimony cannot be given the same
credit as that of a law abiding man, however, his evidence becomes admissible to know about the
identity of other accused persons in order to prevent the greater evil which might be caused by
them in the future.

BIBLIOGRAPHY:

1. Dr. Avtar Singh, Principles of the Law of Evidence, Central

Law Publications, 20​th ​edn. 2013.
2. Batuk Lal, The law of Evidence, Central Law Agency, 22nd
​
edn. 2018.