TATUS OF EVIDENCE OF AN ACCOMPLICE UNDER INDIAN S TA EVIDENCE ACT, 1872
Contents I.
Introducti Introduction..... on............ .............. ............. ............. .............. ............. ............. .............. .............. ............. ............. .............. ................ ............................2 ...................2
II. Research Research Methodology. Methodology........ .............. ............. ............. .............. ............. ............. .............. .............. ............. ............. .............. ................ ...............4 ......4 1.
Aims and Objectives....... Objectives............. ............. .............. .............. ............. ............. .............. ............. ............. .............. .............. ............. ................4 ..........4
2.
Nature Nature of roject.......... roject................. .............. .............. ............. ............. .............. .............. ............. ............. .............. ............. ............. ...................4 ............4
!.
"ources "ources of #ata.............. #ata.................... ............. .............. ............. ............. .............. .............. ............. ............. .............. .............. ............. .................4 ...........4
4.
"co$e and %imitation. %imitation........ .............. ............. ............. .............. .............. ............. ............. .............. .............. ............. ............. .....................4 ..............4
&.
Research Research 'uestions. 'uestions........ .............. ............. ............. .............. ............. ............. .............. .............. ............. ............. .............. ............. .................4 ...........4
(.
Mode of )itation.... )itation.......... ............. .............. .............. ............. ............. .............. .............. ............. ............. .............. ............. ............. ...................& ............&
III.
Accom$lice Accom$lice *vidence+ *vidence+ Issues Issues And ers$ective ers$ectives..... s............ .............. .............. ............. ............. .............. ................ .........( ( I.
,ho Is An Accom$li Accom$lice-.... ce-........... ............. ............. .............. .............. ............. ............. .............. ............................. .............................( .......(
II. Accom$lices Accom$lices /ra$ /ra$ ,itne ,itnesses sses unter unters s "$ies "$ies #ecoys #ecoys Informers Informers etc................ etc................ .0 III.
urden of roof+ roof+ ,hether ,hether ,itness ,itness is an Accom$li Accom$lice ce or not-.......... not-................ ................. ...........
I3. I3.
)om$etency )om$etency of Accom$lice Accom$lice as ,itness ,itness...... ............. .............. .............. ............. ............................ ........................... .....
I3. I3. Accom$lice Accom$lice *vidence *vidence and )onfession )onfession of )oaccused )oaccused....... ............. ............... ............................... ........................15 ..15 3.
Accom$lice Accom$lice and "e6ual "e6ual )rimes.... )rimes........... .............. ............. ............. .............. .............. ............. ............. .............. ............. ................15 ..........15
3I. Accom$lice Accom$lice *vidence+ /he 'uestion Of )orroboration.. )orroboration......... ............. ............. .............. ............. ...............11 .........11 3II.
Necessity Necessity of )orroborat )orroboration... ion.......... .............. .............. ............. ............. .............. ............. ............. .............. .............. .................. ..............12 ...12
3III. Nature Nature of )orroborati )orroboration..... on............ .............. .............. ............. ............. .............. .............. ............. ............................ ..............................12 ........12 I7. *6tent of )orroborati )orroboration..... on........... ............. .............. .............. ............. ............. .............. .............. ............. ............. .............. .....................1! ..............1! 7.
A$$reciatio A$$reciation n of Accom$lice Accom$lice *vidence+ *vidence+ /he )orrobo )orroborati ration on Issue... Issue.......... ..................... ...................14 .....14
7I. *nglish *nglish %a8 3s. Indian %a8+ A )om$arat )om$arative ive Analysi Analysis...... s............. ................. ...............................1( .....................1( 7II.
)onclusion. )onclusion........ .............. ............. ............. .............. ............. ............. .............. .............. ............. ............. .............. .............. ........................ .....................1 ....1
References..........................................................................................................................25
TATUS OF EVIDENCE OF AN ACCOMPLICE UNDER INDIAN S TA EVIDENCE ACT, 1872
I.
INTRODUCTION
"ection 1!! of the Indian *vidence Act 1092 1 is the only absolute rule of la8 dealing 8ith accom$lice evidence. 2 :o8ever it is the o$inion of some that this section is redundant as "ection 110 ma;es all $ersons com$etent to testify e6ce$t those $ersons 8hich the section s$ecifically bars. Moreover there is no rule 8hich re 8hich lays do8n the $resum$tion that an accom$lice is un8orthy of credit unless he is corroborated in material $articulars. /hus o8ing to this conflict bet8een "ection 114=b> and "ection 1!! some e6$erts feel that "ection 1!! should have been omitted and the la8 relating to accom$lice evidence 8ould have been the same as it is no8 and the a8;8ardness of a$$earing to sanction a $ractice so universally condemned 8ould have been avoided. avoided .!
:o8e :o8eve verr the the )our )ourts ts have have reso resolv lved ed this this a$$a a$$aren rentt conf confli lict ct bet8 bet8ee een n the the t8o t8o sect sectio ions ns by harmoniously reading "ections 114=b> and 1!! together and held that 8hile it is not illegal to act u$on the uncorroborated testimony of an accom$lice it is a rule of $rudence so universally follo8ed so as to amount almost to a rule of la8 that it is unsafe to act u$on the evidence of an accom$lice unless it is corroborated in material res$ects so as to im$licate the accused. 4 /his in a nutshell is the core of accom$lice evidence and must be ;e$t in mind at all times 8hile dealing 8ith the subject of accom$lice evidence.
/his $roject endeavours at $erforming a com$rehensive study of Accom$lice *vidence. /he first section section discusses discusses the im$ortant im$ortant issues relating relating to accom$lice accom$lice evidence. evidence. It e6$lains e6$lains 8ho an accom$lice is and analyses other as$ects li;e burden of $roof to determine 8hether a 8itness is
1 "ection 1!! of Indian *vidence Act 1092 An An accom$lice shall be a com$etent 8itness against an accused $erson? and a conviction is not illegal merely because it $roceeds u$on the uncorroborated testimony of an accom$lice. 2 /he $rocedural as$ects relating to Accom$lice *vidence are dealt 8ith in "ections !5( !50 and !1& of the )ode of )riminal rocedure 19!. ! . Mali; et al. Law al. Law of EvidenceEvidence- Volum Volumee V =Allahabad+ =Allahabad+ %a8 ublishers India rivate %imited 15>at 4(&1.
4 Ibid at at 4(&2.
TATUS OF EVIDENCE OF AN ACCOMPLICE UNDER INDIAN S TA EVIDENCE ACT, 1872 an accom$lice or not com$etency of an accom$lice as a 8itness accom$lice evidence in se6ual offences and the relation bet8een accom$lice evidence and confession of a coaccused. /he second section deals 8ith the
/o the lay man accom$lice evidence might seem untrust8orthy as accom$lices are usually al8ays interested and infamous 8itnesses but their evidence is admitted o8ing to necessity as it is often im$ossible 8ithout having recourse to such evidence to bring the $rinci$al offenders to justice. /hus accom$lice evidence might seem unreliable but it is often a very useful and even invaluable tool in crime detection crime solving and delivering justice and conse
TATUS OF EVIDENCE OF AN ACCOMPLICE UNDER INDIAN S TA EVIDENCE ACT, 1872
II.
RESEARCH METHODOLOGY
1. AIMS AND OBJECTIVES /he aim of this $roject is to $erform a com$rehensive study of Accom$lice *vidence in light of the statutory $rovisions and case la8. /his $roject also aims at discussing the im$ortant issues relating to Accom$lice Accom$lice *vidence li;e the meaning of accom$lice and 8hat it signifies the issue of corroboration of an accom$lice@s testimony etc. It is also an objective of this $roject to $erform a com$arative analysis of the la8 relating to accom$lice evidence in India and *ngland.
2. NATURE OF PROJECT /he $roject is analytical as 8ell as descri$tive in nature. :o8ever the majority of the $roject is analytical in nature.
ATA 3. SOURCES OF DATA /he sources of data are $rimary as 8ell as secondary in nature. ournals li;e All India Re$orter )riminal %a8 ournal and All *ngland Re$orters have been used. A host of leading te6tboo;s relating to the %a8 of *vidence have also been referred to.
4. SCOPE AND LIMITATION /he $roject is limited in its sco$e in the sense that it deals 8ith only those issues relating to accom$lice evidence 8hich in the o$inion of the researcher are most relevant and im$ortant o8ing to the e6treme 8ide and vast sco$e of the to$ic. Moreover American %a8 relating to Accom$lice *vidence has not been loo;ed at.
ESEARCH QUESTIONS 5. R ESEARCH /he Research 'uestions are+
,hich are the statutory $rovisions dealing 8ith Accom$lice Accom$lice *vidence-
,ho is an accom$lice-
,hat is the relation bet8een accom$lice evidence and confession of a coaccused-
,hat is the nature and e6tent of corroboration re
TATUS OF EVIDENCE OF AN ACCOMPLICE UNDER INDIAN S TA EVIDENCE ACT, 1872
,hat is the necessity for corroborating an accom$lice@s testimony-
:o8 is an accom$lice@s evidence evidence a$$reciated-
,hat is the im$ortance of accom$lice evidence-
,hat are the $roblems and com$le6ities associated 8ith accom$lice evidence-
,hat are the differences and similarities in the la8 relating to accom$lice evidence in India and *ngland-
6. MODE OF CITATION A uniform mode of citation has been ado$ted throughout the course of this $roject.
TATUS OF EVIDENCE OF AN ACCOMPLICE UNDER INDIAN S TA EVIDENCE ACT, 1872
III. I.
ACCOMPLICE EVIDENCE : ISSUES AND PERSPECTIVES WHO IS AN ACCOMPLICE?
It is e6tremely im$ortant to understand 8hat the term accom$lice means and signifies as to attract "ection 1!! a $erson must be an accom$lice.
/he 8ord Baccom$lice@ has not been defined by the Indian *vidence Act 1092 and should therefore be $resumed to have been used in the ordinary sense by the legislature. :o8ever the judiciary has dealt 8ith this issue e6tensively and has tried to e6$lain com$rehensively as to 8ho an accom$lice is.
An accom$lice is one concerned 8ith another or others in the commission of a crime or one 8ho ;no8ingly or voluntarily coo$erates 8ith and hel$s others in the commission of crime.
&
It 8as
held in R.K in R.K Dalmia v. Dalmia v. Delhi Delhi Administration Administration 6 that Can Can accomplice is a person who participates in the commission of the actual crime chared aainst an accused. !e is to be a particeps criminis. "here are two cases however# in which a person has been held to be an accomplice even if he is not a particeps criminis. Receivers of stolen propert$ are ta%en to be accomplices of the thieves from whom the$ receive oods in a trial for theft. Accomplices in previous previous similar offences committed b$ the accused on trial are deemed to be accomplices in the offence for which the accused is on trial# when evidence of the accused havin committed crimes of identical t$pe on other occasions be admissible to prove the s$stem and intent of the accused in committin the offence chared D. D. /he )ourt in &aanath in &aanath v. Empero v. Emperor r ' e6$lained that an accom$lice is a guilty associate or $artner in crime or 8ho in some 8ay or the other is connected 8ith the offence in
& M.% "inghal "ir ohn ,oodroffe ,oodroffe and "yed Amir Ali Ali Law of Evidence- Volume Volume IV =Allahabad+ %a8 oo; )om$any rivate %imited 1!>at &12. ( R.K Dalmia v. Dalmia v. Delhi Delhi Administration AIR 1(2 ") 1021. 9 &aanath v. &aanath v. Emperor Emperor AIR 142 Oudh 221. 0 An accom$lice is also a $erson 8ho is a guilty associate in crime or 8ho sustains such a relation to the criminal act that he can be jointly indicted 8ith the defendant =$rinci$al>.
TATUS OF EVIDENCE OF AN ACCOMPLICE UNDER INDIAN S TA EVIDENCE ACT, 1872 In order to be an accom$lice a $erson must $artici$ate in the commission of the same crime as the accused and this he may do in various 8ays. In *nglish la8 the modes of com$licity 8ith crime are treated under the heads of $rinci$als in the first degree or second degree and accessories before or after the fact.
In *nglish %a8 the term B accomplice@ accomplice@ in its fullness includes in its meaning all the $ersons concerned in the commission of the crime$rinci$als of the first degree second degree and accessories before and after the fact.
In India all accessories before the fact if the $artici$ate in the $re$aration for the crime are accom$lices but if their $artici$ation is limited to the ;no8ledge that crime is to be committed they are not accom$lices. 15 :o8ever o$inion is divided as to 8hether accessories after the fact are accom$lices or not. In some cases it has been held that in India there is no such thing as an accessory after the fact 8hereas in some cases accessories after the fact have been held to be accom$lices. /hree conditions must unite to render one an accessory after the f act+ 11
/he felony must be com$lete
/he accessory must have ;no8ledge that the $rinci$al committed the felony
/he accessory must harbour or assist the $rinci$al felon.
Mere acts of charity 8hich relieve or comfort a felon but do not hinder his a$$rehension and conviction nor aid his esca$e do not render one an accessory after the fact. :e must be $roved to have done some act to assist the felon $ersonally. /he mere fact that one had ;no8ledge that a crime had been committed and that he concealed or failed to disclose such ;no8ledge does not render him an accom$lice. 12 /his is because the concealment may be o8ing to the 8itness@
A $rinci$al $rinci$al of the first degree is one 8ho actually commits the crime? A $rinci$al of the second degree is a $erson 8ho is $resent and assists in the $er$etration of the crime? an accessory before the fact is one 8ho counsels incites connives at encourages or $rocures the commission of a crime. And everyone is an accessory after the fact to a felony 8ho ;no8ing a felony to have been committed by another receives comforts or assists him in order to enable him to esca$e from $unishment or rescues him from arrest for the felony or having him in custody for the felony allo8s him to esca$e or o$$oses o$ $oses his arrest. It is to be noted that a married 8oman 8ho receives comforts or relieves her husband ;no8ing him to have committed a felony does not thereby become an accessory after the fact. 15 (arain 15 (arain )handra *iswas v. *iswas v. Emperor Emperor AIR 1!( )al 151. 11 +upra note +upra note & at &10. 12 Id 12 Id .
TATUS OF EVIDENCE OF AN ACCOMPLICE UNDER INDIAN S TA EVIDENCE ACT, 1872 an6iety for his o8n safety rather than any desire to shield the criminal. A $erson 8ho remains $assively silent after obtaining ;no8ledge of the commission of the crime is not an accom$lice. /o render a $erson an accom$lice his $artici$ation in the crime must be criminally corru$t. 1!
II.
ACCOMPLICES , TRAP WITNESSES, PUNTERS, SPIES, DECOYS, INFORMERS ETC.
An accom$lice may have a motive for giving information as it may $urchase immunity for his offence. A s$y on the other hand may be an honest man? he may thin; that the course he $ursues is absolutely essential for the $rotection of his o8n interests and those of society. /hus s$ies are not such $ersons as 8ould re
In the case of decoys or tra$ 8itnesses 1& the mere fact that a 8itness has acted as a decoy or tra$ 8itness should not be the grounds for rejecting their testimony. /he rule of $rudence re
/hus /hus thou though gh the the evid eviden ence ce of s$ie s$ies s info inform rmer ers s tra$ tra$ 8itn 8itnes esse sess etc. etc. may be loo; loo;ed ed u$on u$on unfavourably they cannot be treated as accom$lices unless it can be actually $roved that they had instigated an offence or abetted the commission of an offence. /his may sometimes ha$$en in their enthusiasm to detect an offence or get an offender arrested.
A $unter is not in the same $osition as that of an accom$lice. :e is entitled to greater credit and his evidence is entitled to greater value. /he evidence of a $unter 8ho is interested in securing a conviction is un8orthy of credit and the $rinci$les a$$licable to the testimony of an accom$lice 8ho is un8orthy of credit are not in a$$licable to the evidence of a $unter 8ho is un8orthy of credit for different reasons but as to the e6tent of corroboration it is not necessary that there should be inde$endent corroboration in all material $articulars. 19
1! Ismail 1! Ismail v. Emperor v. Emperor AIR 149 %ah 225. 14 +upra note +upra note & at 4(95. 1& If a $erson is induced by the $olice to ta;e $art in the commission of the crime for the $ur$ose of collecting evidence against others he is called a tra$8itness. 1( M.) "ar;ar et al. Law al. Law of Evidence- Volume Volume II =Ne8 #elhi+ ,adh8a and )om$any %a8 ublishers 1>at 2500. 19 ,i$abhai 19 ,i$abhai irbhai v. irbhai v. +tate +tate AIR 1(! Euj 100.
TATUS OF EVIDENCE OF AN ACCOMPLICE UNDER INDIAN S TA EVIDENCE ACT, 1872
III.
BURDEN OF PROOF: WHETHER WITNESS IS AN ACCOMPLICE OR NOT?
/he
IV.
COMPETENCY OF ACCOMPLICE AS WITNESS
An accom$lice is a com$etent 8itness $rovided he is not a co accused under trial in the same case. ut such com$etency 8hich has been conferred on him by a $rocess of la8 does not divest him of the character of an accused. 1 An accom$lice by acce$ting a $ardon under "ection !5( )r) becomes a com$etent 8itness and may as any other 8itnesses be e6amined on oath? the $rosecution must be 8ithdra8n and the accused formally discharged under "ection !21 )r) before he can become a com$etent 8itness. *ven if there is an omission to record discharge an accused becomes a com$etent 8itness on 8ithdra8al of $rosecution. Fnder Article 25=!> of the )onstitution of India 1&5 no accused shall be com$elled to be a 8itness against himself. ut as an accom$lice acce$ts a $ardon of his free 8ill on condition of a true disclosure in his o8n interest and is not com$elled to give selfincriminating evidence the la8 in "ections !5( and !50 )ode of )riminal rocedure is not affected. "o a $ardoned accused is bound to ma;e 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 "ection !50.
10 +upra note +upra note 1( at 2504250&. 1 Ibid 1 Ibid at at 2505.
TATUS OF EVIDENCE OF AN ACCOMPLICE UNDER INDIAN S TA EVIDENCE ACT, 1872
IV.
ACCOMPLICE EVIDENCE AND CONFESSION OF COACCUSED
/he confession of one of the coaccused cannot be used to corroborate the evidence of an accom$lice against the others because such a confession cannot be $ut on a higher footing than the evidence of an accom$lice and is moreover not given on oath or subject to the test of cross e6amination and is guaranteed by nothing e6ce$t the $eril into 8hich it brings the s$ea;er and 8hich 8hich it is genera generally lly fashio fashioned ned to lessen lessen.. /ainte ainted d eviden evidence ce is not made made better better by being being corroborat corroborated ed by other other tainted tainted evidence evidence 25. /he Madras :igh )ourt held that in vie8 of the $rovisions of "ection !5 of the Indian *vidence Act 1092 the confession of a coaccused can be acce$ted as corroboration of an accom$lice@s evidence 21. ut the same court later $ointed out that "ection !5 does not affect the rule of $ractice that the )ourts should be loath to acce$t tainted evidence as a corroboration of an a$$rover@s evidence. 22 /he confession of a coaccused cannot afford better or more reliable evidence than that of an accom$lice. If an accom$lice@s evidence is tainted evidence the confession of a coaccused is also tainted evidence. "ection !5 does not com$el a )ourt to acce$t the confession of a coaccused as corroboration of the a$$rover@s evidence. It only em$o8ers the )ourt to ta;e into consideration such confession as against the $erson jointly tried 8ith him or against the the $erson 8ho ma;es such a confession. confession.
V.
ACCOMPLICE AND SEUAL CRIMES
In Rameshwar In Rameshwar Kal$an +inh +inh v. v. +tate of Raasthan /0 the "u$reme )ourt clearly laid do8n that+
/he $rosecutri6 in a case of ra$e cannot be treated as an accom$lice.
/he *vidence Act no8here $rovides that the evidence of a $rosecutri6 in a ra$e case re
As a matter of $ractice courts have insisted on the need of corroboration of the evidence of the $rosecutri6.
/hus the "u$reme )ourt laid do8n the $rinci$le that C the rule which accordin to the cases has hardened into one of law is not that corroboration is essential before there can be a conviction
25 +upra note +upra note & at &(. 21 In 21 In re re .G Rajago$al AIR 144 Mad 119. 22 In 22 In re re admaraja "hetty AI AIR R 1&1 Mad 94(. 2! Rameshwar 2! Rameshwar Kal$an +inh v. +inh v. +tate of Raasthan AIR 1&2 ") &4.
TATUS OF EVIDENCE OF AN ACCOMPLICE UNDER INDIAN S TA EVIDENCE ACT, 1872 but that the necessit$ of corroboration as a matter of prudence e1cept where the circumstances ma%e it safe to dispense with it must be present to the mind of the ude2before a conviction without corroboration can be sustained. "he court also made it clear that the corroboration should be such so as to to render the the prosecution prosecution stor$ reliable reliable and safe to to act upon D24
In +tate of ,adh$a radesh v. +heoda$al 3uruda$al 3uruda$a l /4 the court laid do8n a test to determine 8hether the evidence of a $rosecutri6 re
/hese $rinci$les laid do8n by the courts should be vie8ed as guiding $rinci$les and not infle6ible rule of la8 so as to $revent injustice to the $rosecutri6 and the defendant.
VI.
ACCOMPLICE
EVIDENCE:
THE
!UESTION
OF
CORROBORATION Reading "ection 1!! of the *vidence Act along 8ith "ection 114=b> it is clear that the most im$ortant issue 8ith res$ect to accom$lice evidence is that of corroboration. /he general rule regarding corroboration that has emerged is not a rule of la8 but merely a rule of $ractice 8hich has ac
24 /hus it is clearly the la8 of the land that the $rosecutri6 cannot be treated as an accom$lice although her evidence should be generally corroborated.
2& +tate of ,adh$a radesh v. radesh v. +heoda$al 3uruda$al AIR 1&( Nag 0.
TATUS OF EVIDENCE OF AN ACCOMPLICE UNDER INDIAN S TA EVIDENCE ACT, 1872
VII.
NECESSITY OF CORROBORATION
An a$$rover on his o8n admission is a criminal and a man of the very lo8est character 8ho has thro8n to the 8olves his erst8hile associates and friends in order to save his o8n s;in. :is evidence evidence therefore must be received received 8ith the greatest greatest caution caution if not sus$icion. sus$icion. Accom$lice Accom$lice evidence is held untrust8orthy and therefore should be corroborated for the follo8ing reasons+ 2(
An accom$lice is li;ely to s8ear falsely in order to shift the guilt from himself.
An accom$lice is a $artici$ator in crime and thus an immoral $erson.
An accom$lice gives his evidence under a $romise of $ardon or in the e6$ectation of an im$lied $ardon if he discloses all he ;no8s against those 8ith 8hom he acted criminally and this ho$e 8ould lead him to favour the $rosecution.
VIII.
NATURE OF CORROBORATION
Eenerally s$ea;ing corroboration is of t8o ;inds. Hirstly the court has to satisfy itself that the statement of the a$$rover is credible in itself and there is evidence other than the statement of the a$$rov a$$rover er that that the a$$rov a$$rover er himsel himselff had ta;en ta;en $art $art in the crime. crime. "econd "econdly ly the court court see;s see;s corroboration of the a$$rover@s evidence 8ith res$ect to the $art of other accused $ersons in the crime and this evidence has to be of such a nature as to connect the other accused 8ith the crime.29 /he corroboration need not be direct evidence of the commission of the offence by the accused. If it is merely circumstantial evidence of his connection 8ith the crime it 8ill be sufficient.20 /he corroboration need not consist of evidence 8hich standing alone 8ould be sufficient to justify the conviction of the accused. If that 8ere the la8 it 8ould be unnecessary to e6amine an a$$rover. All that seems to be re
2( M. Monir rinciples Monir rinciples and Diest of the Law of Evidence Evidence =Allahabad+ =Allahabad+ Fniversal oo; Agency 1>at 1!(9. 29 Ratanlal and #hirajlal "he Law of Evidence =Nag$ur+ Evidence =Nag$ur+ ,adh8a and )om$any %a8 ublishers 2551>at 4!(.
20 K.K 20 K.K &adav v. &adav v. +tate of 3uarat AIR 1(( ") 021. 2 Raneet 2 Raneet +inh v. +inh v. +tate of Raasthan Raasthan AIR 100 ") (92.
TATUS OF EVIDENCE OF AN ACCOMPLICE UNDER INDIAN S TA EVIDENCE ACT, 1872
I.
ETENT OF CORROBORATION
/he )ourt must loo; at all the surrounding circumstances in order to arrive at a conclusion 8hether 8hether the evidence should be su$$orted su$$orted in essential essential and material material $articular $articularss by evidence evidence aliunde as to the facts de$osed to by that accom$lice. All $ersons coming technically 8ithin the category of accom$lices cannot be treated on $recisely the same footing. No general rule can be laid do8n on the subject. /he fact that there is no corroborative evidence is not conclusive in favour of the accused. !5 /he )ourts in India should follo8 the *nglish $ractice as to the amount of corroboration re
,here an accom$lice changes his statement very strong corroboration 8ould be necessary to acce$t his $revious version as true.
,here the accom$lice is acting under constraint the corroboration re
!5 +upra note +upra note ! at 4((9. !1 +upra note +upra note & at &94.
TATUS OF EVIDENCE OF AN ACCOMPLICE UNDER INDIAN S TA EVIDENCE ACT, 1872 /he nature and e6tent of corroboration must necessarily vary 8ith the circumstances of each case and it is not $ossible to enunciate any hard and fast rule. ut the guiding rules laid do8n in R v. R v. *as%erville0/ are clear and beyond be yond controversy. controversy. /hey are+
It is not necessary that there should be inde$endent confirmation in every detail of the crime related by the accom$lice. It is sufficient if there is a confirmation as to a material circumstance of the crime.
/he confirmation by inde$endent evidence must be of the identity of the accused in relation to the crime ie. confirmation in some fact 8hich goes to fi6 the guilt of the $articular $erson charged by connecting or tending to connect him 8ith the crime. In other 8ords there must be confirmation in some material $articular that not only has the crime been committed but that the accused committed it.
/he corroboration must be by inde$endent testimony that is by some evidence other than that of the accom$lice and therefore one accom$lice cannot corroborate the other.
/he corroboration need not be by direct evidence that the accused committed the crime it may be circumstantial. circumstantial.
/hese rules have been restated by the "u$reme )ourt of India 8ith the declaration that the la8 is e6actly the same in India.
.
APPRECIATION OF ACCOMPLICE EVIDENCE: THE CORROBORATION ISSUE
/he "u$rem "u$remee )ourt )ourt in +arwan +inh v. +tate of unab 00 laid do8n the la8 8ith res$ect to assessment and a$$reciation of accom$lice evidence and also stated several $rinci$les and rules regarding corroboration of accom$lice evidence. /he )ourt stated+ C "he problem posed b$ the evidence iven b$ an approver has been considered b$ the riv$ )ouncil and )ourts in India on several occasions. It is hardl$ hardl$ necessar$ to deal at lenth with the true leal position in this matter. An accomplice is undoubtedl$ a competent witness under the Indian Evidence Act. "here can be# however# no doubt that the ver$ fact that he has participated in the commission of the offence introduces a serious stain on and )ourts are naturall$ reluctant to act on such tainted evidence unless it is corroborated corroborated in material particulars b$ other independent evidence. It would
!2 R !2 R v. v. *as%erville *as%erville =11(>2 G (&0. !! +arwan +inh v. +inh v. +tate of unab AIR 1&9 ") (!9.
TATUS OF EVIDENCE OF AN ACCOMPLICE UNDER INDIAN S TA EVIDENCE ACT, 1872 not be riht riht to e1pect e1pect that that such such indepe independe ndent nt corro corrobor borat ation ion shoul should d cover cover the the whole whole of the prosecution prosecution stor$ or even all the material particulars. If such a view is adopted it would render the evidence of the accomplice wholl$ superfluous. 5n the other hand it would not be safe to act upon such evidence merel$ because it is corroborated in minor particulars or incidental details because# in such a case corroboration does not afford the necessar$ assurance that the main stor$ disclosed b$ the approver can be reasonabl$ and safel$ accepted as true. *ut it must never be forotten that before the court reaches the stae of considerin the uestion of corroboration and its adeuac$ or otherwise# the first initial and essential uestion to consider is# whether# whether# even as an accomplice# the approver is a reliable witness. If the answer to the uestion is aainst the appr approv over er then then ther theree is an end end of the the matt matter er and and no ues uesti tion on as to whet whethe herr evid eviden ence ce is corroborated or not needs to be considered. In other words the appreciation of an approver7s evidence has to satisf$ a double test. !is evidence must show that he is a reliable witness and that is a test which is common to all witnesses. If this test is satisfied the second test# which still remains to be applied# is that the approver7s evidence must receive sufficient corroboration. corroboration. "his test is special to the cases of wea% or tainted evidence li%e that of an approver D approver D
/hus these tests laid do8n by the "u$reme )ourt are the guiding $rinci$les according to 8hich accom$lice evidence must be a$$reciated.
TATUS OF EVIDENCE OF AN ACCOMPLICE UNDER INDIAN S TA EVIDENCE ACT, 1872
I.
EN"LISH LAW VS. INDIAN LAW- A COMPARATIVE ANALYSIS
In *ngland there is no8 an increasing tendency to insist that the evidence of an accom$lice must be corroborated.!4 :o8ever the fullest and most authoritative e6$osition of *nglish %a8 is laid do8n in R v. *as%erville04 8here all the leading authorities authorities 8ere revie8ed revie8ed and $rinci$le $rinci$less a$$licable 8ere stated in clear terms by the )ourt of A$$eal. %ord Reading the %ord )hief ustice stated the la8 as follo8s+ "here is no doubt that the uncorroborated uncorroborated evidence of an accomplice is admissible in law2 *ut it has lon been a rule of practice at common law for the ude to warn the ur$ of the daner of convictin a prisoner on the uncorroborated uncorroborated testimon$ of an accomplice or accomplices and in the discretion of the &ude to advise them not to convict upon such evidence but the &ude should point out to the ur$ that it is within their leal province to convict upon such unconfirmed evidence2"he rule of practice has become virtuall$ euivalent to a rule of law and since the )ourt of )riminal Appeal came into operation this )ourt has held that in the absence of such a warnin b$ the ude the conviction must be uashed2.If after the proper caution b$ the ude the ur$ nevertheless convict the prisoner# this )ourt will not uash the conviction merel$ upon the round that the accomplice7s testimon$ was uncorroborated.
H!"#$%&'" L(" )* E+,!+- states the la8 as+ !(
"he uncorroborated testimon$ of an accomplice is admissible in law and a ur$ ma$ convict a defendant upon it. 8here# however# a person who is an accomplice ives evidence on behalf of the prosecution it is the dut$ of the trial ude to warn the ur$ that while it ma$ convict on his testimon$ it is danerous to do so unless it is corroborated9 and this rule althouh oriinall$ one of practice now has the force of a rule of law.
In India the la8 relating to Accom$lice *vidence is e6actly the same as *nglish %a8. "ection 1!! of the *vidence Act 1092 clearly lays do8n that a conviction is not illegal merely because it
!4 In Archbold@s C)riminal leadingD it is said that Bit is no8 fully recognied to be an established $ractice virtually e
TATUS OF EVIDENCE OF AN ACCOMPLICE UNDER INDIAN S TA EVIDENCE ACT, 1872 $roceeds u$on the uncorroborated testimony of an accom$lice and to hold that the corroboration is necessary is to refuse to give effect to this $rovision. /he la8 relating to Accom$lice *vidence has been considered by the udiciary in various cases and can be restated as follo8s+
/he Indian Indian *viden *vidence ce Act Act 1092 1092 does does not re says that the )ourt may $resume that an accom$lice is un8orthy of credit unless he is corroborated in material $articulars it ma;es it clear in "ection 1!! that an accom$lice shall be a com$etent 8itness against the accused $erson and a conviction is not illegal merely because it $roceeds u$on the uncorroborated testimony of an accom$lice. /here is no doubt therefore that the uncorroborated evidence of an accom$lice is admissible in evidence.
ut the rule of $ractice at common la8 8hich has become virtually e
/he rule 8hich according to the cases has hardened into one of la8 is not that corroboration is essential before there can be a conviction but that the necessity of corroboration as a matter of $rudence e6ce$t 8here the circumstances ma;e it safe to dis$ense 8ith it must be $resent to the mind of the judge and in jury cases must find $lace in the charge before a conviction 8ithout corroboration can be sustained.
/hus to sum u$ the follo8ing are the salient features of the la8 relating to accom$lice evidence in India and 8hich are a$$licable under *nglish la8 too+
TATUS OF EVIDENCE OF AN ACCOMPLICE UNDER INDIAN S TA EVIDENCE ACT, 1872
According to "ection 1!! of the Indian *vidence Act 1092 an a$$rover is a com$etent 8itness and conviction shall not be illegal if based u$on the uncorroborated testimony of the a$$rover.
According to illustration =b> of "ection 114 of the Indian *vidence Act 1092 the court may $resume that an a$$rover is a man of untrust8orthiness until he is corroborated in material $articulars.
)ourt should not ordinarily convict unless the evidence of the a$$rover is corroborated in material $articulars
"uch corroboration can be direct and circumstantial.
If the evidence of an a$$rover is intrinsically or inherently im$ossible or is other8ise unreliable or unacce$table it should be rejected straighta8ay 8ithout caring to see; for corroborations.
/here /here are severa severall circum circumsta stance ncess by 8hich 8hich the reliabil reliability ity of an a$$rov a$$rover er has to be adjudged one im$ortant test of reliability is that he is corroborated by other evidence in material $articulars.
/he a$$rover should be a particeps a particeps criminis on criminis on his o8n admission or a$$ear to be so by evidence.
TATUS OF EVIDENCE OF AN ACCOMPLICE UNDER INDIAN S TA EVIDENCE ACT, 1872
II.
CONCLUSION
/he )ourts in this country have by harmoniously reading "ection 114=b> 114=b> and "ection 1!! together laid do8n the guiding $rinci$le 8ith res$ect to accom$lice evidence 8hich clearly lays do8n the la8 8ithou 8ithoutt any ambigu ambiguity ity.. /his /his $rinci $rinci$le $le 8hich 8hich the courts courts have have evolve evolved d is that that thoug though h a conviction based u$on the uncorroborated testimony of an accom$lice is not illegal or unla8ful but the rule of $rudence says sa ys that it is unsafe to act u$on the evidence of an accom$lice unless it is corroborated 8ith res$ect to material as$ects so as to im$licate the accused. /his guiding $rinci$le though very clear is often faced 8ith difficulties 8ith res$ect to its im$lementation. ,hile im$lementing this $rinci$le different judges might have different levels of corroboration for accom$lice evidence and thus 8ith no hard and fast rules relating to the e6tent and nature of corroboration an element of subjective ness cree$s in 8hich can result in injustice.
:o8ever in s$ite of the $roblems and com$le6ities associated 8ith accom$lice evidence it must be borne in mind that accom$lice evidence is of e6treme im$ortance and can often $lay the decisive role in a criminal trial. /he testimony of an accom$lice can be e
TATUS OF EVIDENCE OF AN ACCOMPLICE UNDER INDIAN S TA EVIDENCE ACT, 1872
REFERENCES C#ses In re re admaraja "hetty AIR 1&1 Mad 94(11 In re re .G Rajago$al AIR 144 Mad 119JJJJJJJJJJJJJJJJ 119JJJJJJJJJJJJJJJJJJ.11 JJ.11 Ismail v. Emperor v. Emperor AIR 149 %ah 225................................................................................. &aanath v. &aanath v. Emperor Emperor AIR 142 Oudh 221................................................. 221.............................................................. ..................... ...........9 ...9 K.K &adav v. &adav v. +tate of 3uarat AIR 1(( ") 021.............................................................14 ,i$abhai irbhai v. irbhai v. +tate +tate AIR 1(! Euj 100..................................................................15 (arain )handra *iswas v. *iswas v. Emperor Emperor AIR 1!( )al 151....................................................0 R v. R v. *as%erville *as%erville =11(>2 G (&0................................................. (&0............................................................................ ........................... ..........1& ......... .1& R.K Dalmia v. Dalmia v. Delhi Delhi Administration AIR 1(2 ") 1021.................................. ................. ......... ........ 9 Rameshwar Kal$an +inh v. +inh v. +tate of Raasthan AIR 1&2 ") &4........................ &4................ ................. ...........11 ..11 Raneet +inh v. +inh v. +tate of Raasthan Raasthan AIR 100 ") (92....................................................14 +arwan +inh v. +inh v. +tate of unab AIR 1&9 ") (!9.......................................... ............... ........ .......1( 1( +tate of ,adh$a radesh v. radesh v. +heoda$al 3uruda$al AIR 1&( Nag 0............................. ..12 St#t$tes "ection 1!! of Indian *vidence Act 1092...........................................................................! "ections !5(!50 and !1& of the )ode of )riminal rocedure 19!.................................! Boo%s . Mali; et al. Law al. Law of Evidence- Volume Volume V =Allahabad+ =Allahabad+ %a8 ublishers India rivate %imited 15>at 4(&1............................................................................................$assim d . 0 M. Monir rinciples Monir rinciples and Diest of the Law of Evidence =Allahabad+ Evidence =Allahabad+ Fniversal oo; Agency 1>at 1!(9....................................................................................................1! M.) "ar;ar et al. Law al. Law of Evidence- Volume Volume II =Ne8 #elhi+ ,adh8a ,adh8a and )om$any %a8 ublishers 1>at 2500........................................................................................... 15 M.% "inghal "ir ohn ,oodroffe ,oodroffe and "yed Amir Ali Law Ali Law of Evidence- Volume Volume IV =Allahabad+ %a8 oo; )om$any rivate %imited 1!>...............................................9 Ratanlal and #hirajlal "he Law of Evidence =Nag$ur+ Evidence =Nag$ur+ ,adh8a ,adh8a and )om$any %a8 ublishers 2551>at 4!(.................................................................................................14
