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evidence_law:accomplice

Accomplice

In the Indian Evidence Act 1872, the word accomplice has not been defined; it can, therefore, be presumed as used in the ordinary sense by the legislature.

The Black Law’s dictionary defines an “accomplice” as a person who has participated in a guilty act and is liable in a criminal action, by being present at the place where crime has been committed by aiding or abetting in it even when he is absent from the place where crime has been committed, the person participated having advised or encouraged it.

The Court defined accomplice as one who is associated with an offender or offenders in the commission of a crime or one who knowingly or voluntarily helps and cooperates with others in the commission of the crime. The term ‘accomplice’ may include all particeps criminis i.e., a partner in crime. However, there are two scenarios where a person can be held to be an accomplice, even when he is not. In cases where where he was a receiver of stolen property or an accomplice in a previous similar offence committed by the accused when evidence of the accused having committed crimes of identical type on other occasions was admissible to prove the system and intent of the accused committing the offence charged. A person cannot be said to be an accomplice unless he consciously does the crime with the accused for which he could be convicted for the criminal act. A person who did not take part in the offence but was just present at the time of commission of the crime and he did not make any attempt in order to report about the commission of the crime nor did he made any attempt to prevent the crime cannot be said to be an accomplice to the crime.

Categories of Accomplice

A person is an accomplice when he participates in the commission on the same crime. There are two broad categories of modes of participation in crime.

  1. Principals in the first degree or second degree, and
  2. Accessories before the fact, or after the fact.

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.

Accessories before the fact

When a person incites, counsels connives at, encourages or procures the commission of the crime becomes an accessory before the fact. These are those accomplices who counsel, incite, encourage or procure the commission of the crime. A person is an accessory before the fact if he participates in the preparation of the crime. They are not an accomplice. For a person to be accomplices, he must participate in the commission of the same crime as the accused person is charged with in the trial.

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.

Not an Accomplice

The following classes of persons are not accomplices:

  1. When a person, under threat of death or other form of pressure, commits a crime along with others, he is not a willing participant in it, but victim of such circumstances.
  2. A person who witnesses a crime, and does not give information of it out of tenor.
  3. Detectives, paid ‘informers’ and ‘trap or decoy witnesses (to trap the accused) are not accomplices. A court may convict on an uncorroborated testimony of trap witnesses if it is satisfied of their truthfulness.

It is always for the judge to decide whether it is safe to rely and act upon a trap- witness. His partiality for the prosecution is a factor which can hardly be ignored.

Testimony of an Accomplice

Section 133 of Indian Evidence Act speaks about, “Accomplice as competent witness”. This section says that when an accomplice is not a co-accused under trial in the same case,” an accomplice is a competent witness and his evidence could be accepted and if the court feels that there is enough evidence to support the testimony of the accomplice then an conviction can be based on such a testimony.

But this competency that has been given to him by the process of law does not relieve him of the character of an accused. No accused should be forced to be a witness against himself. But in case an accomplice is given a pardon, on the condition that he is speaking the truth, and is not acting under any pressure, and he is not forced to give self-incrimination as is the rule given in Article 20(3) of the Constitution of India, 1950.

The law of evidence, as laid down in Sections 306 and 308, Code of Criminal Procedure, remains unaffected by this law. When an accomplice is pardoned, he is bound to make a complete and truthful disclosure. If he fails to do so, he would be tired of the charges levelled against him originally, and his statement would then be used against him under Section 308

Important of Section 114 in Section 133

There is no contrast between Section 133 and Section 114. These are the two provisions dealing with the same subject. There is no opposition between Section 133 and Section 114, illustration (b) because the illustration only says that the court ‘may’ presume certain state affairs. It does not put a hard and fast guideline. Section 133 lays down the rule of law. But a rule of prudence is laid down in Section 114, illustration (b). It does not suggest a conclusive presumption. Section 133 gives an authorization to the courts to convict the accused on the corroborated testimony of an accomplice, but since the witness is himself involved in a criminal act, he may not be trustworthy.

When the Court feels that testimony of the accomplice may not be trustworthy then that the courts are guided by the principle laid down in Section 114 that if the Court finds it necessary, it can presume that the testimony given by the accomplice is unreliable unless his statements are supported or verified by some independent evidence. This rule of prudence has now come to be accepted as the rule of law by judicial legislation both in Indian and English law. Corroboration is necessary in case of testimony of an accomplice. The nature and extent of corroboration of accomplice evidence may necessarily vary with the circumstances of each case.

The reason of not trusting on the testimony or evidence given by an accomplice is the nature of the evidence. The evidence by an accomplice is already tainted since:

  1. he is a person of low character who has participated in a crime and is therefore likely to have no regard to the sanctity of his oath;
  2. he is interested in falsely destroying the facts in order to shift the guilt from himself; and
  3. he has the inducement of either a promised or implied pardon for his own part in the crime, and is therefore likely to be biased in favour of the prosecution.

Somasundaram @ Somu v. The State Rep. by the DCP, Crl. Appeal no. 403/2010, SC

On 03rd June 2020, Hon’ble Supreme Court observed that it would be unsafe to convict an accused solely based on uncorroborated testimony of an accomplice. The bench comprising of Justices Rohinton Fali Nariman, KM Joseph and V. Ramasubramanian said that an accomplice, to be believed, he must be corroborated in material particulars of his testimony. The bench observed that-

The combined result of Sections 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 86 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. We have used the word 'ordinarily' inspired by the statement of the law in paragraph-4 in K. Hashim (supra) wherein in this Court, did contemplate special and extraordinary cases where the principle embedded in Section 133 would literally apply. 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”.

The bench also discussed the procedure of making an accomplice an approver:

An accomplice is in many cases, pardoned and he becomes what is known as an approver. An elaborate procedure for making a person an approver, has been set out in Section 306 of the CrPC. Briefly, the person is proposed as an approver. The exercise is undertaken before the competent Magistrate. His evidence is recorded. He receives pardon in exchange for the undertaking that he will give an unvarnished version of the events in which he is a participant in the crime. He would expose himself to proceedings under Section 308 of the CrPC. Section 308 contemplates that if such person has not complied with the condition on which the tender of pardon was given either by wilfully concealing anything essential or by giving false evidence, he can be put on trial for the offence in respect to which the pardon was so tendered or for any 88 other offence of which he appears to be a guilty in connection with the same matters. This is besides the liability to be proceeded against for the offence of perjury. Sub-section (2) of Section 308 declares that any statement which is given by the person accepting the tender of pardon and recorded under Section 164 and Section 306 can be used against him as evidence in the trial under Section 308(1) of the CrPC. An accomplice or an approver are competent witnesses. An approver is an accomplice, who has received pardon within the meaning of Section 306. We would hold, that as between an accomplice and an approver, the latter would be more beholden to the version he has given having regard to the adverse consequences which await him as spelt out in Section 308 of the CrPC. as explained by us. It is also settled principle that the competency of an accomplice is not impaired, though, he could have been tried jointly with the accused and instead of so being tried, he has been made a witness for the prosecution.“

Accomplice & Co-accused

Section 30 of the Indian Evidence Act says that the Court may consider the confession of co-accused as evidence. It may be noted that the confession of the co-accused must implicate himself as well as some other accused. Further, the confessions made at the previous trial will not be relevant. When they are jointly tried, but for different offences, in those cases, confession is not relevant. Further, the confession should be a free confession. A confession by a co-accused cannot be treated in the same way as the testimony of an accomplice:

  1. The confession of co-accused is not ‘evidence,’ as it is not given in the presence of the accused, nor is it not recorded on oath, and nor its truth can be subject to cross-examination. However, when the accomplice evidence is taken on oath and tested by cross-examination, a higher probative value is thus given to it.
  2. The basis of a conviction cannot be solely based on the confession of the co- accused. There is a need of corroboration of such evidence if such evidence is not corroborated and the court feels that confession of the co-accused is free and natural the court can consider it. A conviction cannot be termed illegal merely because it proceeds upon the corroborated testimony of an accomplice.
  3. The philosophy of Section 30 is that confession of a co-accused gives a degree of sanction to the truth of his confession against others or himself. Evidence of a co-accused is very weak evidence. The evidence of co-accused can be used only to corroborate other evidence on record if the confession affects himself as well as some other accused person.

Accomplice & Approver

An accomplice may be an approver also. The approver is an accomplice who is tendered pardon by the Court on condition that he makes true and full disclosure of the whole circumstances of the case. Approver has been dealt with under the provisions of Section 306 of Cr.P.C. He is known under Cr.P.C as an accomplice to whom the Court grants a pardon. Thus, an “approver” is always an ‘accomplice,’ but an ‘accomplice’ is not necessarily an approver. Section 306 tenders pardon to an accomplice. The approver’s evidence is looked upon with great suspicion as he is some way concerned or associated in commission of the same crime. But, if found trustworthy, it can be decisive in securing a conviction.

About the Author

  • Adv. Abhishek Gupta (Natraj Legal Solutions)
  • Delhi High Court
  • Ph: 9999052336,8700521407
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