Krishit Nandu

3rd Year - A030

ACCOMPLICE AS A WITNESS

INTRODUCTION

Chapter IX of the Indian Evidence Act (i.e., Sections 118 to 134) deals with competency,
privileges, admissibility and number of witnesses. A competent witness is one who is entitled
to appear before the Court of law and give evidence. Section 133 provides the rule as to the
evidence of an accomplice. However, it can be seen that there is an apparent inconsistency
between Section 133 and illustration (b) to Section 114. To resolve this conflict, it is important
to know who is an accomplice, the competency of an accomplice as a witness, the evidentiary
value of the evidence of accomplice and the rules as to corroboration of evidence of
accomplice.

WHO MAY TESTIFY AS A WITNESS/ COMPETENCY OF WITNESSES

Competency of witness to testify is a prerequisite to him being administered an oath. A witness

is said to be a competent witness when there is nothing in law to prevent him from appearing
in court and giving evidence. Section 118 of the Evidence Act, contains the general rule as to
the competency of witnesses.

Section 118 provides that:

All persons shall be competent to testify unless the Court considers that they are prevented
from understanding the questions put to them, or from giving rational answers to those
questions, by tender years, extreme old age, disease, whether of body or mind, or any other
cause of the same kind. Prima facie, the section says that everyone is competent to be a witness
as long as they can understand and respond to the questions posed and the Court is expected to
pay special attention to the capability of the witnesses. This section is not concerned with the
admissibility of the testimony of the witnesses or their credibility; it deals with competency of
parties to be witnesses.

Test of competency

The plain and simple test of competency is whether a witness can understand the questions
being posed to him and answer accordingly in a rational manner. In other words, every person
who in the opinion of the Court, has the capacity to understand the questions put to him and
the capacity to give rational answers to those questions is a competent witness.

COMPELLABILITY OF A WITNESS

A witness may be competent and yet not compellable. He may have the power of understanding
the question and may be able to give rational answers thereto, but may not be subject to the
authority of the court. The court cannot compel him to attend and depose before it. Again a
witness may be competent and may also be compellable yet the law may not force him to
answer certain questions. This is called restricted compellability or privilege. Privilege of a
witness means the right of a witness to withhold evidence to disclose certain matters. The right

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is based on the grounds of convenience and public policy. It is the public interest and interest
of justice that particular witness should not be compelled to disclose certain matters.
Magistrates, lawyers, spouses etc., have right to be protected from answering certain question
when they are being examined as witnesses, Sections. 121 to 132 deal with their privileges.

SECTION 34 OF THE INDIAN PENAL CODE

Section 34 states that when more than one person commits a crime or criminal conduct
having a common intention of the crime, each and every one of them is accountable for the
act committed in a manner as if the crime was committed by him alone.
Section 34 of the Indian Penal Code is a very important component of the criminal law in
India. It helps in ascertaining and proving the level of culpability and responsibility of the
people jointly involved in committing the offence. It also helps in finding the accountability
of an individual where the test to prove liability of every individual is difficult for the acts
committed by each of the persons involved in the crime committed.
Essentials for constituting Section 34 of the Indian Penal Code
1. Act committed by more than one person that is multiple people criminal in nature.

2. Common intention of all the people being a part of the act.

3. Engagement of all the people in the commission of the criminal act.

WHO IS AN ACCOMPLICE?
It is extremely important to understand what the term accomplice means and signifies as to
attract Section 133 a person must be an accomplice. The word ‘accomplice’ has not been
defined by the Indian Evidence Act and should therefore be presumed to have been used in the
ordinary sense by the legislature. However, the judiciary has dealt with this issue extensively
and has tried to explain comprehensively as to who an accomplice is. An accomplice is a person
who is concerned with others in the commission of a crime or one who knowingly or voluntarily
cooperates with and helps others in the commission of crime. The Madras High Court in the
case of:

Ramaswami Gounden

v.

Emperor

Observed that where the witness sustains such a relation to the criminal act that he could be
jointly indicted with the accused, he is an accomplice.

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It was held in the case of:

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. He is to be a particeps criminis [one who, although not present, helps in
any way the commission of a crime, or who after the deed assists or hides the person who did
it]. An accused is a guilty partner in crime, as he is actually connected with the offence in
question.

It was held in the case of:

K Hashim

v.

State of Tamil Nadu

That where a witness is not concerned with the commission of the crime for which the accused
is charged, he cannot be said to be an accomplice in the crime in which he is being accused.

CATEGORIES OF ACCOMPLICE
In order to be an accomplice, a person must participate in the commission of the same crime in
question. He is particeps criminis in respect of the actual crime charged. An accomplice may
participate in the crime in the following ways –

1. Principal in first and second degree

The principal of the first degree is one who actually has committed the crime in question. a
principal of second degree is a person who is present and assists in the commission of the crime.
These persons are accomplices under all circumstances.

2. Accessory before the fact

An accessory before the fact is one who counsels, incites, encourages or procures the
commission of the crime. All accessories before the fact are also accomplices if they participate
in the preparation for the crime. But if their participation is limited to the knowledge that crime
is going to be committed, they are not accomplices.

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3. Accessory after the fact

A person is an accessory after the fact if he assists, comforts or rescues another person despite
knowing that such person has committed a felony (crime). Three conditions must unite to
render one an accessory after the fact:

a. The crime must be complete

b. The accessory must have knowledge that the principal committed the crime

c. The accessory must harbour or assist the principal felon.

In the case of:

v.

Jennings

the Court held that, the receiver of a stolen property is an accomplice as he is an accessory after
the fact.

COMPETENCY OF ACCOMPLICE AS WITNESS

An accomplice is a competent witness provided he is not a co accused under trial in the same
case. An accomplice by becoming an approver becomes a prosecution witness. An accomplice
by accepting a pardon under Section 306 of the Code of Criminal Procedure, 1973 becomes a
competent witness and may be examined on oath as any other witness. The prosecution must
be withdrawn and the accused must be formally discharged under Section 321 Code of
Criminal Procedure before he can become a competent witness. According to Section 133 of
the Indian Evidence Act, an accomplice is a competent witness against an accused person, and
conviction is not illegal merely because it proceeds upon the uncorroborated statement of an
accomplice.

Section 133 vis-à-vis Illustration (b) to Section 114:

Section 133 lays down that the evidence of an accomplice, though it is uncorroborated, may
form the basis for a conviction. However, according to illustration (b) to Section 114, the Court
may presume that, an accomplice in unworthy of credit, unless he is corroborated in material
particulars. It must be noted that the presumption under Section 114 is a presumption of fact
and thus it is at the discretion of the Court whether to presume the fact or not. It is only a rule
of guidance to which the Court should have regard. The combined effect of Section 133 and
Section 114, illustration (b) is that though the conviction of an accused on the uncorroborated
testimony of an accomplice cannot be said to be illegal, yet the Courts will, as a matter of
practice, not accept the evidence of such a witness without corroboration.

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CHANDRACHUD J. observed in

Dagdu

v.

State of Maharashtra

“There is no antithesis between Section 133 and illustration (b) to Section 114, because the
illustration only says that the court ‘may’ presume a certain state of affairs. It is hazardous, as
a matter of prudence, to proceed upon the evidence of a self-confessed criminal. Therefore the
Court may be justified in presuming that no reliance can be placed on the evidence of an
accomplice unless that evidence is corroborated.”

Necessity of Corroboration

As a general rule, a Court can act on the evidence of a single witness, including that of an
accomplice even if it is uncorroborated. However, as a matter of prudence and practice, it is
generally observed that the evidence of an accomplice should not be relied upon without
material corroboration. It was observed in:

Barkat Ali

v.

State

That the evidence of an accomplice requires to be accepted with a great deal of caution and
scrutiny because –

a. He has a motive to shift guilt from himself

b. He is an immoral person likely to commit perjury on occasion

c. He hopes for pardon or has secured it, and so favours the prosecution.

Rules of Corroboration
In

Suresh Chandra Bahri

v.

State of Bihar

The Supreme Court has said that an approver’s evidence has to satisfy the double test:

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a. His evidence must be reliable; and

b. His evidence should be materially corroborated.

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.

In:

Husain Umra

v.

Dilip Singh

The Supreme Court held that the corroboration of the testimony of an accomplice must be done
by some independent evidence. An accomplice cannot corroborate himself. Thus, the previous
statement by the accomplice even recorded under Section 164 of the Code of Criminal
Procedure cannot be used for the corroboration of his testimony.

The nature and extent of corroboration must necessarily vary with the circumstances of each
case and it is not possible to enunciate any hard and fast rule. In the case:

Rameshwar

v.

State of Rajasthan

the Supreme Court has laid down four principles with regard to the nature and extent of
corroboration–

a. It is not necessary that every detail of the crime should be corroborated by the accomplice.
It is sufficient if there is a confirmation as to a material circumstance of the crime.

b. The corroboration must be by independent testimony that is by some evidence other than
that of the accomplice and therefore one accomplice cannot corroborate the other.

c. The independent corroboration must reasonably connect or tend to connect the accused with
the crime. In other words, there must be confirmation in some material particular that not only
has the crime been committed but that the accused committed it.

d. The corroboration need not be by direct evidence that the accused committed the crime, even
circumstantial evidence is sufficient.

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CONCLUSION

The Courts in this country have by harmoniously reading Section 114(b) and Section 133 of
the Indian Evidence Act along with Section 34 of the Indian Penal Code that together lays
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.

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BIBLIOGRAPGHY

1. Books

Law of Evidence by Ratanlal & Dheerajlal

Jethmalani & Chopra's Law of Evidence

Indian Evidence Act of 1872 - Bare Act

Commentary on Indian Evidence Act, 1872 by Dr. Pushkar Kumar Pandey

2. Cases

Ramaswami Gounden v. Emperor

R.K Dalmia v. Delhi Administration

K Hashim v. State of Tamil Nadu

R v. Jennings

Dagdu v. State of Maharashtra

Barkat Ali v. State

Suresh Chandra Bahri v. State of Bihar

Husain Umra v. Dilip Singh

Rameshwar v. State of Rajasthan