Accomplice Witness and its admissibility as Evidence

In the basic sense Accomplice Witness mean a witness to a crime who, either as principal,
Accomplice, or Accessory, was connected with the crime by unlawful act or omission on his
or her part, transpiring either before, at time of, or after commission of the offense, and
whether or not he or she was present and participated in the crime. The word accomplice
has not been defined by the Indian Evidence Act, 1872. An accomplice is one of the guilty
associates or partners in the commission of a crime or who in some way or the other is
connected with the commission of crime or who admits that he has a conscious hand in the
commission of crime.
To the lay man, accomplice evidence might seem untrustworthy as accomplices are usually
always interested and infamous witnesses but their evidence is admitted owing to necessity
as it is often impossible without having recourse to such evidence to bring the principal
offenders to justice. Thus accomplice evidence might seem unreliable but it is often a very
useful and even invaluable tool in crime detection, crime solving and delivering justice and
consequently a very important part of the Law of Evidence.
Section 133 of the Indian Evidence Act, 1872 deals with the Accomplice Witness. It says that
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.
Usually most of the crimes are committed at secluded places where there will not be any eye
witness to testify regard to these offences, and it would not be possible for the police to
get sufficient evidence to prove the guilt of the accused. In such cases what police does is
that it picks up one of the suspects arrested who is usually least guilty and offers to him an
assurance that if he is inclined to divulge all information relating to the commission of the
crime and give evidence against his own colleagues, he will be pardoned. So any such person
who is picked up or who is taken by the police for the purpose of giving evidence against his
own colleagues is known as an accomplice or an approver.
An accomplice is a competent witness provided he is not a co accused under trial in the
same case. But such competency which has been conferred on him by a process of law does
not divest him of the character of an accused. An accomplice by accepting a pardon under
Section 306 CrPC(Code of Criminal procedure,1973) becomes a competent witness and may
as any other witnesses be examined on oath.
Definition:
In the basic sense Accomplice Witness mean a witness to a crime who, either as principal,

Accomplice, or Accessory, was connected with the crime by unlawful act or omission on his
or her part, transpiring either before, at time of, or after commission of the offense, and
whether or not he or she was present and participated in the crime. The word accomplice
has not been defined by the Indian Evidence Act, 1872. An accomplice is one of the guilty
associates or partners in the commission of a crime or who in some way or the other is
connected with the commission of crime or who admits that he has a conscious hand in the
commission of crime.
An accomplice is one concerned with another or others in the commission of a crime or one
who knowingly or voluntarily cooperates with and helps others in the commission of crime.
It was held in 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.
Categories of Accomplice:
1. 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.
2. Accessories before the fact: They are the person who abet, incite, procure, or counsel for
the commission of a crime and they do not themselves participate in the commission of the
crime.
3. 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.
Competency of Accomplice as Witness:
An accomplice is a competent witness provided he is not a co accused under trial in the
same case. But such competency which has been conferred on him by a process of law does
not divest him of the character of an accused. An accomplice by accepting a pardon under
Section 306 CrPC becomes a competent witness and may as any other witnesses be
examined on oath; the prosecution must be withdrawn and the accused formally discharged
under Section 321 CrPC before he can become a competent witness. Even if there is an
omission to record discharge an accused becomes a competent witness on withdrawal of
prosecution. Under Article 20(3) of the Constitution of India, 1950 no accused shall be

compelled to be a witness against himself. But as an accomplice accepts a pardon of his free
will on condition of a true disclosure, in his own interest and is not compelled to give selfincriminating evidence the law in Sections 306 and 308, Code of Criminal Procedure is not
affected. So a pardoned accused is bound to make 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 Section 308.
When Accomplice becomes a competent witness:
Section 118 of the Indian Evidence Act says about competency of witness. Competency is a
condition precedent for examining a person as witness and the sole test of competency laid
down is that the witness should not be prevented from understanding the questions posed
to him or from giving rational answers expected out of him by his age, his mental and
physical state or disease. At the same time Section 133 describes about competency of
accomplices. In case of accomplice witnesses, he should not be a co-accused under trial in
the same case and may be examined on oath.
Some propositions have been made by Courts in this regard:
First, courts have opined that such competency, which has been conferred on him by a
process of law, does not divest him of the character of an accused and he remains a
participes criminis and this remains the genesis of the major problem surrounding the
credibility of such evidence.
Secondly, an accomplice by accepting a pardon under Section 306 CrPC becomes a
competent witness and may as any other witness be examined on oath, the prosecution
must be withdrawn and the accused formally discharged under Section 321 of the Criminal
Code before he would be a competent witness18 but even if there is omission to record
discharge, an accused is vested with competency as soon as the prosecution is withdrawn.
Thirdly, Article 20(3) of the Indian Constitution says that no accused shall be compelled to be
a witness against himself. But as a co-accused accepts a pardon of his free will on condition
of a true disclosure, in his own interest, and is not compelled to give self-incriminating
evidence, the law in Section 306 and 308 of CrPC is not affected and a pardoned accused is
bound to make 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 Section 308. This
suggests that a participes criminis continues to be the same and if so then despite the fact
that his involvement has been pardoned by a judicial act can be used for self-incrimination
and to expect a true and full disclosure is unreal.

In order to be an accomplice a person must participate in the commission of the same crime
as the accused and this he may do in various ways. In India all accessories before the fact if
the participate in the preparation for the crime are accomplices but if their participation is
limited to the knowledge that crime is to be committed they are not accomplices. However
opinion is divided as to whether accessories after the fact are accomplices or not. In some
cases it has been held that in India there is no such thing as an accessory after the fact
whereas in some cases accessories after the fact have been held to be accomplices. Three
conditions must unite to render one an accessory after the fact:
The felony must be complete
The accessory must have knowledge that the principal committed the felony
The accessory must harbour or assist the principal felon.
Importance of Section 114 and 133:
These are the two provisions dealing with the same subject. Section 114 of the Indian
Evidence Act says that the court may presume that an accomplice is unworthy of any credit
unless corroborated in material particulars.
Section 133 of the Indian Evidence Act says that an accomplice shall be a competent witness
as against the accused person and a conviction the accused based on the testimony of an
accomplice is valid even though it is not corroborated in material particulars.
Necessity of Corroboration:
Reading Section 133 of the Evidence Act along with Section 114(b) it is clear that the most
important issue with respect to accomplice evidence is that of corroboration. The general
rule regarding corroboration that has emerged is not a rule of law but merely a rule of
practice which has acquired the force of rule of law in both India and England. The rule
states that: A conviction based on the uncorroborated testimony of an accomplice is not
illegal but according to prudence it is not safe to rely upon uncorroborated evidence of an
accomplice and thus judges and juries must exercise extreme caution and care while
considering uncorroborated accomplice evidence.
An approver on his own admission is a criminal and a man of the very lowest character who
has thrown to the wolves his erstwhile associates and friends in order to save his own skin.
His evidence, therefore must be received with the greatest caution if not suspicion.
Accomplice evidence is held untrustworthy and therefore should be corroborated for the
following reasons:

q An accomplice is likely to swear falsely in order to shift the guilt from himself.
q An accomplice is a participator in crime and thus an immoral person.
q An accomplice gives his evidence under a promise of pardon or in the expectation of an
implied pardon, if he discloses all he knows against those with whom he acted criminally,
and this hope would lead him to favour the prosecution.
Like the Supreme Court has laid down what is known as theory of double test in the case
of Sarwan Singh v. State of Punjab. In this case Sarwan Singh who was the third accused,
was tried along with two others, i.e. Gurdayal Singh and Harbans Singh, under Section 302
for the murder of one Gurdev Singh who was the brother of the first accused, Harbans
Singh. The case was that Sarwan Singh along with Gurdayal Singh and Banta Singh, who
became an approver later on , caused the death of Gurdev Singh and all the accused were
convicted on the basis of the evidence of Banta Singh. So the evidence of Accomplice is
subject to corroboration.
Nature of Corroboration:
Generally speaking corroboration is of two kinds. Firstly the court has to satisfy itself that
the statement of the approver is credible in itself and there is evidence other than the
statement of the approver that the approver himself had taken part in the crime. Secondly
the court seeks corroboration of the approvers evidence with respect to the part of other
accused persons in the crime and this evidence has to be of such a nature as to connect the
other accused with the crime. 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. The corroboration need not consist of
evidence which, standing alone would be sufficient to justify the conviction of the accused.
If that were the law it would be unnecessary to examine an approver. All that seems to be
required is that the corroboration should be sufficient to afford some sort of independent
evidence to show that the approver is speaking the truth with regard to the accused person
whom he seeks to implicate.
Detectives, Decoys and Trap Witness:
Detectives, decoys and trap witness cannot be put on a par with the accomplice. These are
the persons who act for the advancement of public justice and their aim is to bring the
culprits to book. Although they pretend to collaborate with the culprits in the commission of
crime they do not share the element of Mens rea. These persons therefore cannot be
considered as accomplices and their evidence requires no corroboration.

Where a servant of the accused was a mute spectator to the crime being committed by the
accused, he cannot be regarded as an accomplice witness as he cannot set to have
participated in crime with the requisite mens rea.
Honest Trap Witness:
In C.R. Mehta v. State of Maharashtra, the accused acting in consort offered a sum of Rs. 3
Lacs to the Home Minister of State Government for cancellation of a detention order. The
Minister giving an impression that he would consider the offer filed a complaint with Anti
Corruption Bureau and a trap was laid. While handing over the bribe money to the Minister
the accused along with his three other co accused were arrested. It was held that the
complainant Minister cannot be equated with position of an accomplice and as a witness the
quality of his evidence as also his general integrity being of high order conviction of the
accused can be based even on his uncorroborated evidence.
Application of the Concept of Accomplice witness in various cases:
Janendra nath Ghose v. State of West Bengal the accused was tried for the offence of
murder and the jury found him guilty on the evidence of the approver corroborated in
material particulars. It was contended that there was a misdirection because the jury were
not told of the double test in relation to the approvers evidence laid down in Sarwan Singh
case.
Raghubir Singh v. State of Haryana In this case it was observed:
To condemn roundly every public official or man of the people as an accomplice or quasi
accomplice for participating in a raid is to harm the public cause. May be a judicial officer
should hesitate to get involved in police traps when the police provides inducements and
instruments to commit crimes, because that would suffer the image of the independence of
the judiciary. In the present case the Magistrate was not a full blooded judicial officer, no
de novo temptation or bribe money was offered by the police and no ground to discredit the
veracity of the Magistrate had been elicited.
Lachi Ram v. State of Punjab - the accused was charged with murder and was convicted on
the evidence of an approver corroborated in material particulars. On the question whether
proper tests were applied in applied in appreciating the approvers evidence the Supreme
Court held:
It was held by this Court in Sarwan Singh case that an approvers evidence to be accepted

must satisfy two tests.

The first case to be applied is that his evidence must show that he is a reliable witness, and
that is a test which is common to all witness. The fact that High Court did not accept the
evidence of the approver on one part of the story does not mean that the high Court held
that the approver was an unreliable or untruthful witness. The test obviously means that the
Court should find that there is nothing inherent or improbable in the evidence given by the
approver and there is no finding that the approver has given false evidence.
The second case which thereafter still remains to be applied in the case of an approver and
which is not always necessary when judging the evidence of the witness, is that his evidence
must receive sufficient corroboration. In the present case the evidence of the approver was
reliable and was corroborated on material particulars by good prosecution witnesswho have
been belived by the lower courts.
Conclusion
The Courts in this country have by harmoniously reading Section 114(b) and Section 133
together laid 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. This guiding principle though very clear is often faced with difficulties with
respect to its implementation. While implementing this principle different judges might have
different levels of corroboration for accomplice evidence and thus with no hard and fast
rules relating to the extent and nature of corroboration an element of subjectiveness creeps
in which can result in injustice.
Accomplice witness can be a competent witness by fulfilling certain condition. One
necessary condition for being Accomplice Witness is that he must be involved in the crime.
So, the Accomplice Evidence can be taken as a strong evidence when it is subject to
corroboration.