Section 133 of the Indian Evidence Act, 1872

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Who is accomplice?

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The word “accomplice” has nowhere been defined in the Evidence Act. An accomplice means “a guilty associate” or a partner in crime.” An accomplice is a person who is connected with another or others in the commission of crime. He is a person who participates in the commission of the crime. Where the witness sustains such relations to the criminal act that he would be jointly indicted with the accused, he is an accomplice. For example, when number of persons have committed an offence and one of them is produced as a witness before the court, he is called as accomplice.

Principle:

Section 133 lays down that an accomplice shall be a competent witness against an accused person and the conviction is not illegal merely because it proceeds from the uncorroborated testimony of an accomplice. He being a guilty associate, shall be a competent witness in crime. Although there is no rule of positive law that the evidence of an accomplice cannot be acted upon, it is settled practice to require corroboration of the evidence of an accomplice and the rule of practice has now virtually assumed the force of a rule of law.

This section gives free hand to the court to convict an accused on the basis of sole uncorroborated testimony of an accused. It has also given sanction to the punishment awarded by the court. But how it is safe to convict an accused solely on the basis of approver’s statements unless the statements are supported and verified by independent evidence? If there is slightest doubt on the truthfulness of the approver’s evidence, no conviction can be held as opined by the Supreme Court.

If the evidence of the approver is considered reliable the second test which is still to be applied is that the approver’s evidence must receive corroboration. “There is no rule of positive law that the evidence of an accomplice cannot be acted upon.” What is required is that there must be some additional and independent credible evidence. “It is settled practice to require corroboration of the evidence of an accomplice and the rule of practice has now virtually assumed the force of law.” Ordinarily combined effort of Sections 133 and 114 to the Evidence Act is the conviction can be leased on uncorroborated testimony of as an approver but as a rule of prudence, it is unsafe to place reliance on the uncorroborated testimony of an approver.

The evidence of an accomplice deserves outright rejection but as a rule of prudence it is safe to place reliance on uncorroborated testimony of an approver. The appellant-accused contradicted the approver’s version in respect of appellant’s role. In such a case the statement of approver regarding manner of murder and the role of accused and that of approver himself therein, held, should be tested on the basis of prudence doctrine taking into consideration inter alia evidence produced by accused for imposition of lesser punishment.

However, Section 133 has to be read along with Section 114(b) and reading them together the law is well settled that the rule of prudence requires that the evidence of an accomplice should ordinarily be corroborated by some other evidence. It is desirable that the court seeks reassuring circumstances to satisfy the judicial conscience that the evidence is true. In a smuggling case the Supreme Court once again observed: “the evidence of an approver does not differ from the evidence of any other witness except that his evidence is looked upon with great suspicial. But the suspicial may be removed and if the evidence of an approver is found to be trustworthy and acceptable then the evidence might well be decisive in securing conviction.”

Necessity of corroboration:

On uncorroborated testimony Sir Bones Peacok observed, “I am of opinion that a conviction upon the uncorroborated testimony of an accomplice is legal. This point was decided in England as far back as on 10th December, 1662 after a conference with all judges.” Likewise Section 133 prescribes only one rule that the Conviction of an accused is not illegal if it is based on the solitary testimony of an accomplice. But, contradiction arises when the Illustration (b) of Section 114 is read in order to evaluate Section 114. “The rule in Section 114 and Illustration (b) and that in Section 133 are parts of one subject and neither section can be ignored in the exercise of judicial direction.” According to Illustration (b) of Section 114 an accomplice is unworthy of credit unless he is corroborated in material particular. “It is, however, not a hard and fast presumption, incapable of rebuttal, it is rather a rule of prudence not to rely on the uncorroborated testimony of an accomplice. The rule is that the necessity of corroboration is a matter of prudence except when it is safe to dispense with such corroboration must be clearly present in the mind of the judge.”

It is now well settled by a long series of decisions that except in circumstances of special nature it is the duty of the court to raise the presumption in that section as would be clear from the decisions. The court further observed that though there is no legal hurdle against acting on the testimony of an accomplice, it would be prudent to base on conviction on such a testimony unless it is corroborated in materials particulars.

It was held that “no distinction can be made between an accomplice who is an approver and who is not so. Therefore, a conviction based on uncorroborated testimony of an approver is not illegal. But, courts as a matter of prudence and practice do not accept the testimony of an approver without corroboration in material particulars.

The nature and extent of such corroboration would depend upon corroboration of the facts of each case. But it should not be vague and unreliable. It is hazardous, as a matter of prudence, to proceed upon the evidence of a self-confessed criminal, who is so far as an approver is concerned, has to satisfy in terms of the pardon tendered to him. This was a case of murder of a dozen of young girls where the court rejected the sole evidence of the approver.

The reasons why corroboration is necessary have been discussed by the Supreme Court in Balwant Kaur and Joga Gola cases. Considering the impact of Illustration (b) of Section 114 upon the Section 133, it was of the view that the court should have to consider in the light of the facts and circumstances of the case. “Indictments, particularly of series of crimes, the counsel of caution and the rule of prudence enjoy that it is unsafe^ to rest on conviction on the material particular. Judicial experience was, thus, elevated to a rule of law.”

So far the probative value of evidence of an accomplice is concerned; it is practically the same as that of the co-accused. The corroborative statement left no doubt in the mind of the judge regarding involvement of the appellants in the commission of the crime for which they are entitled. It was held that the conviction of accused on the basis of testimony of accomplice would not be reliable to set aside.

As regards corroboration there should be such corroboration of the parts of story connecting accused. Where the approver evidence is untrustworthy there is need for corroboration. All that is required that there must be additional evidence rendering it probate that the story of the accomplice is true. It may be direct or circumstantial. When the testimony of the accomplice casts a doubt upon reliability as a witness in respect of other accused persons it is not to be acceptable. In a rape case the reasoning of corroboration is somewhat different.

The corroboration need not be direct that the accused had committed the crime. The corroborative evidence should be such as to lend assurance that the evidence of the prosecutix can be safely acted upon. The only rule of law is that this rule of prudence must be present in the mind of the judge. That is why Justice Krishna Iyer emphasised the need for corroboration be present in the mind of the judge.

The same principle was again followed in Sheikh Zakir v State of Bihar. Therefore, the law in rape case being based on solitary evidence of the victim is now well settled as found in subsequent cases. It is also settled that in practice the courts almost start with the presumption against the trustworthiness of the accomplice. On principle the evidence of the victim of sexual assaults stands at per with the evidence of any injured witness. Her evidence is entitled to great weight without any corroboration.

Conditions to be followed by approver:

1. To be an approver he is to be an associate with other partners of the crime and must have elements of mens rea. If he does not have any element of mens rea for which the offence was committed he is not an accomplice.

2. Acceptance of the evidence of accomplice will be accepted provided he proves himself to be trustworthy or by circumstantial evidence.

3. Before accepting testimony of the accomplice the identity of other associates has to be confirmed by the accomplice witness.