Institute of Legal and Management Studies

An “accomplice" is an associate or partner in a crime.¹ The expression "accomplice" is not defined in the Indian Evidence Act or in the Bharatiya Sakshya Adhiniyam (for short 'the BSA'). However, it is accepted that the word “accomplice" is used in its ordinary sense in the statutes. The evidence of an accomplice is usually admitted on the ground necessity, it being often impossible, without having recourse to such evidence, to bring the principal offenders to justice.

The two provisions

Section 133 and illustration (b) to Section 114 of the Indian Evidence Act deal with the evidence of an accomplice. Section 133 of the Evidence Act states that an accomplice shall be a competent witness against an accused person. It further provides that a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. At the same time, illustration (b) to Section 114 of the Evidence Act provides that the Court may presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars.

Section 133 of the Evidence Act declares that an accomplice is a competent witness. It is a rule of law. In positive terms it provides that the conviction based on the evidence of an accomplice is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. However, illustration (b) to Section 114 of the Evidence Act, which is a rule of prudence or rule of caution, states that an accomplice is unworthy of credit, unless he is corroborated in material particulars.

Combined effect

Does the testimony of an accomplice require corroboration to act upon it? Is there any apparent conflict between the two provisions? As observed in the case of Suresh Chandra Bahri,² if we read Section 133 along with illustration (b) to Section 114 of the Evidence Act, it may lead to certain amount of confusion and misunderstanding as to the real and true intention of the Legislature. Justice Vivian Bose says that the lucid exposition of law on this point given by Lord Reading, the Lord Chief Justice of England, in the case of King v. Baskerville, cannot be bettered.³ In the case of Baskerville,⁴ it is stated as follows:

"There is no doubt that the uncorroborated evidence of an accomplice is admissible in law. But it has long been a rule of practice at common law for the judge to warn the jury of the danger of convicting a prisoner on the uncorroborated testimony of an accomplice or accomplices, and, in the discretion of the judge, to advise them not to convict upon such evidence; but the judge should point out to the jury that it is within their legal province to convict upon such unconfirmed evidence. This rule of practice has become virtually equivalent to a rule of law …… If after the proper caution by the judge the jury nevertheless convict the prisoner, this Court will not quash the conviction merely upon the ground that the accomplice's testimony was uncorroborated”.

In the case of Bhiva Doulu Patil,⁵ the three-Judge Bench of the Supreme Court has held that, Section 133 of the Evidence Act and illustration (b) to Section 114 of the Evidence Act are part of one subject and have to be considered together. The combined effect of these two provisions has been stated as follows:

“According to the former, which is a rule of law, an accomplice is competent to give evidence and according to the latter, which is a rule of practice, it is almost always unsafe to convict upon his testimony alone. Therefore though the conviction of an accused on the 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 in material particulars.”

Later, in the case of Haricharan Kurmi,⁶ the Constitution Bench had occasion to hold as follows:

“Reading these two provisions together, it follows that though an accomplice is a competent witness, prudence requires that his evidence should not be acted upon unless it is materially corroborated; and that is the effect of judicial decisions dealing with this point. The point of significance is that when the Court deals with the evidence by an accomplice, the Court may treat the said evidence as substantive evidence and enquire whether it is materially corroborated or not. The testimony of the accomplice is evidence under Section 3 of the Act and has to be dealt with as such. It is no doubt evidence of a tainted character and as such, is very weak; but, nevertheless, it is evidence and may be acted upon, subject to the requirement which has now become virtually a part of the law that it is corroborated in material particulars.”

The illustration (b) to Section 114 of the Evidence Act incorporates a rule of prudence. An accomplice, who betrays his associates, is not a fair witness. It is possible that he may, to please the prosecution, weave false details into those which are true and his whole story may appear to be true. Then, there may be no means to sever the false from that which is true. It is for this reason that the courts, before they act on accomplice evidence, insist on corroboration in material respects as to the offence itself and also implicating in some satisfactory way, however small, each accused named by the accomplice. In this way the commission of the offence is confirmed by some competent evidence other than the single or unconfirmed testimony of the accomplice and the inclusion by the accomplice of an innocent person is defeated. This rule of caution or prudence has become so ingrained in the consideration of accomplice evidence as to have almost the standing of rule of law.⁷ This rule is guided by long human experience and has become a rule of prudence of general application.⁸

In the case of Somasundaram,⁹ a three-Judge Bench of the Supreme Court has summarized the principles on the point as follows:

“The combined result of Section 133 read with illustration (b) to Section 114 of Evidence Act is that the Courts have evolved, as a rule of prudence, the requirement that it would be unsafe to convict an accused solely based on uncorroborated testimony of an accomplice. The corroboration must be in relation to the material particulars of the testimony of an accomplice. It is clear that an accomplice would be familiar with the general outline of the crime as he would be one who has participated in the same and therefore, indeed, be familiar with the matter in general terms. The connecting link between a particular accused and the crime, is where corroboration of the testimony of an accomplice would assume crucial significance. The evidence of an accomplice must point to the involvement of a particular accused. It would, no doubt, be sufficient, if his testimony in conjunction with other relevant evidence unmistakably makes out the case for convicting an accused. ………Corroboration must be such that it renders the testimony of the approver believable in the facts and circumstances of each case. The testimony of one accomplice cannot be, ordinarily, be supported by the testimony of another approver. ….. In other words, in the common run of cases, the rule of prudence which has evolved into a principle of law is that an accomplice, to be believed, he must be corroborated in material particulars of his testimony. The evidence which is used to corroborate an accomplice need not be a direct evidence and can be in the form of circumstantial evidence”.

Thus, it can be seen that, Section 133 of the Evidence Act is a rule of law while illustration (b) to Section 114 of the Evidence Act is only a rule of caution or rule of prudence. But the rule of prudence, by long practice, has now virtually become a rule of law.

The change

Section 114 of the Evidence Act provides that, the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. This provision is now incorporated as Section 119(1) in the BSA without any change. Illustration (b) to Section 114 of the Evidence Act is also incorporated in the BSA as illustration (b) to Section 119(1).

Section 133 of the Evidence Act has been replaced by Section 138 of the BSA. The changes brought in under Section 138 of the BSA can be seen from the table given below:

Section 133 of the Evidence Act

Section 138 of the BSA

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.

An accomplice shall be a competent witness against an accused person; and a conviction is not illegal if it proceeds upon the corroborated testimony of an accomplice.

It can be seen that the main change in the provision is the substitution of the word “uncorroborated” occurring in Section 133 of the Evidence Act with the word “corroborated” in Section 138 of the BSA. This change in the phraseology was originally not proposed in the Bharatiya Sakshya Bill introduced in the Rajya Sabha. The Bill had been then referred to the Parliamentary Standing Committee on Home Affairs. The Committee, in its report (Report No.248), had observed that, there was contradiction between the original text of Section 133 of the Evidence Act (which was retained in the Bill) and illustration (b) to clause 119(1) of the Bill (corresponding to illustration (b) to Section 114 of the Evidence Act). The Committee was of the opinion that such contradictions between clauses in the Bill may jeopardise the efficacy of the Bill in its application. The Committee had, therefore, recommended that suitable amendments in Clause 138 of the Bill may be made. The change in the phraseology of Section 138 of the BSA was made pursuant to the above recommendation made by the Committee.¹⁰

The impact of the change

The purpose of incorporating the word “corroborated” in Section 138 of the BSA, in place of the word “uncorroborated”, is to remove the apparent contradiction between the two provisions (Section 133 of the Evidence Act and illustration (b) to Section 114 of the Evidence Act). It can be found that the substitution of the word “corroborated” in Section 138 of the BSA, in place of the expression “uncorroborated”, has made these two provisions compatible with each other. The provision under Section 138 of the BSA is now made consonant with illustration (b) to Section 119(1) of the BSA. Further, it can also be found that, the change now brought in under Section 138 of the BSA amounts to statutory recognition of the principle of law laid down by the Supreme Court in various decisions on the combined effect of the two provisions, Section 133 and illustration (b) to Section 114 of the Evidence Act.

At the same time, viewed from another angle, it can also be found that the expression, “a conviction is not illegal if it proceeds upon the corroborated testimony of an accomplice” used in the second part of Section 138 of the BSA, is meaningless, superfluous and redundant. In case of other types of witnesses also, a conviction may not be illegal if it proceeds upon his corroborated testimony. If that be so, there is no necessity to specifically state in Section 138 of the BSA that it is the law in case of an accomplice, especially when the rule of caution given in illustration (b) to Section 114 of the Evidence Act, regarding the testimony of an accomplice, is retained as such in the BSA in the form of illustration (b) to Section 119(1) of the BSA. The first part of Section 138 of the BSA alone, which declares that an accomplice shall be a competent witness, along with the rule of caution provided in illustration (b) to Section 119(1) of the BSA, would have served the purpose of clarifying the law on the point. Thus, it can be seen that, on bringing a change in the text of the second part of Section 138 of the BSA, by incorporating the word “corroborated” in place of the expression “uncorroborated”, that part of the provision has become redundant or superfluous.

In this context it may be mentioned that, the suggestion placed before the Parliamentary Standing Committee on Home Affairs, was for deleting Clause 138 of the Bill. In fact, deletion of only the second part of Clause 138 of the Bill would have been sufficient to achieve the purpose of removing the contradiction, if any, between the provisions.

Conclusion

In conclusion, it can be stated that, in spite of the change introduced in the text of Section 138 of the BSA, the law with regard to the testimony of an accomplice remains the same as enunciated by the Supreme Court in the judgments mentioned hereinbefore. An accomplice is a competent witness. The rule of caution or prudence requires that, his testimony shall be corroborated, for the court to act upon it to enter a conviction against the accused.

Author is Former Judge, High Court of Kerala. Views Are Personal.