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CONCLUSION & SUGGESTIONS

 CHAPTER- X

CONCLUSION AND SUGGESTIONS

It has been said that there is but one general rule of evidence, the
best that the nature of case will admit.1

Since the time immemorial Human society has formulated various

methods and rules to acertain the truth. The early law givens recognised

from the beginning that a proceeding in a court of Law often involved

suppression of facts and suggestion of false hood. Manu says, the King

presiding over the tribunal shall ascertain the truth and determine the

correctness of the allegations regarding the subject of the suit, the

correctness of testimonies of the witness, the description, time and place

of the transaction or incident giving rise to the case as well as the usage of

the country and pronounce a true judgment. Yagnavalkya warns that they

might be sometimes self inflicted. Similarly Narad, laying down rules

based on principle of "res ipsa loquitur," concludes by saying that some

one might make a mark upon his person through hatred or to injure an

enemy. The law givers enjoin that evidence must principally be weighed

not counted. Similarly Islamic jurist classified oral evidence in order of

merit viz. full corroboration, testimony of a single individual and

admission including confession. The evidence lead by a person himself

guilty of offence was since ever looked up on with suspicion.

1 Lord Hard Wicke in Omy Chund Vs. Barkier Atk. 2,49.

[455]
 An accomplice, by long legal tradition is a notoriously infamous
witness, who purchases his immunity by accepting to accuse others. The
court may consider, though it is not bound to consider, an accomplice
unworthy of credit unless he is corroborated in material particulars. The
evidence of a accomplice requires to be accepted with a great deal of
caution and scrutiny because

(a) he has a motive to shift guilt from himself.

(b) he is an immoral person likely to commit perjury on occasion.

(c) he hopes for pardon or has secured it, and so favours the
prosecution.2

In indictments particularly of serious crimes, the counsel of caution and the

rule of prudence enjoin that it is unsafe to rest a conviction on the evidence

of a guilty partner in a crime without independent corroboration on the

material particulars. Judicial experience was, thus, elevated to a rule of

law. "It is a practice which deserves all the reverence of law."

The rule of evidence cannot be departed from, because there may be

a strong moral conviction of guilt, for a judge cannot set himself above the

law which he has to administer or make it or mould it to suit the exigencies

of a particular occasion.3

Suspicion cannot give probative force to testimony which in itself is

in sufficient to establish or to justify an inference of a particular fact. The

degree of probability of guilt has got to be higher almost amounting to

2 Barkat Ali v. The Crown (1916) P.R. No. 2 of 1917 Cr.

3 Barindra Kumar Ghose V. Emperor (1909) 37 Cal 467.

[456]
certainty than in a civil proceeding and if there is the slightest reasonable
or probable chance of innocence of an accused the benefit must be given to
him.

Keeping this at the outset and the backdrop it can be sensed that the
need for corroboration is on the basis that there is suspicion in the mind of
the judge with regards to the character, the morality of the accomplice.
This in turn has the disastrous effect as we see by making the trials

lengthy, time consuming, and expensive. The number of appeals

consequentially increases and the higher courts often become the courts of

evidence than the court of law upsetting the entire system. The lack of

corroboration often entails the rescue of the perpetrator and the only

ground is lack of independent testimony of the accomplice witness.

Realizing the facet that no set piece rule can be applied it seems a faulty

approach that the lower courts in India have mechanically adhered to the

rule of prudence making it an unbreakable and invincible dictate even

when the intent behind the evolution has undergone changes and it is in

this light that the judiciary should really step up in varying the terms of

warning, in changing the order of the tests of reliability and corroboration,

in inculcating the flexibility that initially was contemplated.

The nature and extent of the corroboration must necessarily vary

with the nature and circumstance of each case. Enunciation of any general

rule, valid for all occasions is, at once, unwise and unpractical. Thus by

long tradition to explore the truth then emerged general test for the
admissibility of accomplice evidence they are first, it is not necessary that

[457]
there should be independent confirmation of every material circumstance
in the sense that the independent evidence in a the case, apart from the
testimony of complainant of the accomplice should in itself be sufficient to
sustain conviction.

Secondly the independent evidence must not only make it safe to

believe that the crime was committed but must in some way reasonably
connect or lend to connect the accused with it by confirming in some

material particular the testimony of the accomplice or complainant that the

accused committed the crime. Thus does not mean that the corroboration

as to identity must extend to all the circumstance necessary to identify the

accused with the offence.

Thirdly, the corroboration must come from independent source and

thus ordinarily the testimony of one accomplice would not be sufficient to

corroborate that of another.

Fourthly, the corroboration need not be by direct evidence that the

accused committed the crime. It is sufficient if it is merely circumstantial

evidence of his connection with the crime.4

An author by analysing various cases, that opinion of jurists has

suggested that accomplice should be treated as a competent witness

because the term "accomplice" has neither been defined under Indian

Evidence Act, 1872 under section 133, or under section 114 illus. (b), nor

the Code of Criminal Procedure 1973, which regulate the procedure of the

testimony of such a person through sections 306, 307 and 308 and not even
4 Rameshwar Kalyan Singh V. St of Rajasthan AIR 1952 SC 54. 1952 SCJ 46.

[458]
the Indian Penal Code 1860, though specifically sections 34, 35, 36, 37,

38, 107 to 117, 120 (B), 141 to 149 deal with the commission of crime by
two or more persons jointly.5

The term was more specifically explained in R.K. Dalmia V. Delhi

Administration6......

"An accomplice is a person who-participated in the commission of

the actual crime charged against an accused. He is to be a particeps

criminis. There are two cases, however, in which a person has been held to

be an accomplice even ifhe is not a particeps criminis. Receivers ofstolen

property are taken to be accomplices of the thieves from whom they

receive goods on a trial of theft. Accomplices in previous similar offences

committed by the accused on trial are deemed to be accomplices in the

offence for which the accused is on trial, when evidence of the accused

having committed crimes of... identical type on other occasions is

admissible to prove the system and interest of the accused in committing

the offence charged. However, if there is not doubt that the witness took

part in the commission of the offence for which the accused charged and

sentenced, he can be termed as an approver. Thus, where a witness is not

concerned with the commission of the crime for which the accused is

charged, he cannot, be, said to be an accomplice in the crime. Mere being

aware cannot make an accomplice."

5 Dr. J.K. Malik in Journal of legal studies Vol. XXXVI.

6 AIR 1962 SC 1821

[459]
 Since, an accomplice has taken part in the commission of a crime
and converted himself into a co-accused from a noble man, so whether his
testimony can be relied upon. His testimony may be acted upon, and he
may be treated as a reliable, trust-worthy and credible witness, and his
testimony, may become the sole basis for convicting another accused
person. This is clear by the following reasons. First, the Code of Criminal

Procedure 1973 under Section 303, 306, 307, 308, and section 315

considers him competent.

The plain reading of these sections makes it abundantly clear that

the Code of Criminal Procedure 1973 recognizes an accused person to

become a witness. The Indian Penal Code 1860, under various sections

namely 176, 178, 179, 180, 187, 202, 203 and 204 also cast a duty on the

citizens of India to inform about the commission of crime which has been

committed by some one in their respective areas. The term "whosoever"

used under these sections clearly support the above view. The Indian

Evidence Act, 1872, which deals with the problems and procedure of

examining witnesses, under sections 30, 118, 120, 133 and 114 illus. (b)

deals with the testimony of a co-accused and accomplice.

The legislature was very much conscious about the possible dangers

of his testimony, so the legislature simultaneously enacted section 114

illust. (b) under the Indian Evidence Act 1872 to deal with possible

dangers which may arise in this regards, hence the real position of law is

that the testimony of an accomplice, cannot be decided wholly either on

the basis of section 133, or 114 (b), but by taking into consideration, the

[460]
provisions of both these provisions as well as the provision of sections 306
to 308 laid down under the Code of Criminal Procedure 1973. The
observations made by Lord Reading in the famous case of R v. Baskerville7
are apt observations in this regard. It has been declared in this case that
"there is no doubt that the uncorroborated evidence of an accomplice is
admissible in law. But it has been long 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, 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 confirmed evidence. This rule of practice has become virtually

equivalent to a rule of law, etc......We hold that evidence in corroboration

must be independent testimony, which connects accused with the crime. In

other words, it must be evidence, which implicates him, that is which

confirms in some material particular not only the evidence that the crime

has been committed but also that prisoner committed it. The corroboration

is thus the same whether the case falls within the rule of practice at

common law or within that class of offence for which corroboration is

required by statue. The nature of the corroboration will necessarily vary

according to particular circumstances of the offence charged. It would be

in high degree dangerous to attempt to formulate the kind of evidence

which would be regarded as corroboration, except to say that corroborative

evidence that the accused committed the crime is true, not merely that the

crime has been committed by the accused.... The corroboration need not be

7 (1916) 2 KB 658.

[461]
direct evidence that the accused committed the crime; it is sufficient if it is
merely circumstantial evidence of his connection "with the" crime."
This judgment became so famous that it was followed in England
O

and India in several cases and it became guiding star on this point of law
in the law of evidence. Approving the above observations and carrying the
law further in this regards the Supreme Court has held that the rule laid
down in R. v. Baskerville with regard to the admissibility of the

uncorroborated evidence of an accomplice is also the law in India so far as

accomplices are concerned. The only clarification of the rule that is

necessary for the purpose of India is that this class of offence is tried by a

judge without the aid of jury. In such cases it is necessary, that the judge

should give some indication in his judgment that he had the rule of caution

in his mind and should proceed to give reasons for considering it

unnecessary to require corroboration on the facts of the particular case

before him and show why he considers it safe to convict without

corroboration on the facts of the particular case before him and show why

he considers it safe to convict without corroboration in that particular case.

There is, however no rule of law or practice that there must in every case
be corroboration before a conviction can be allowed to stand.89. The

Supreme Court has also held that a conviction can be based on the

uncorroborated testimony of an accomplice provided the judge has the rule

of caution in mind.10

8 Davis v. D.P.P. (1954) 1 All Er 507; In re: Venkata Subba Reddy; Noor Mohammad V.R. AIR 1941
Khadim V.R. AIR 1937 Sind 162; Saidar Ali Shah V.R. AIR 1941.
9 Rampal P. Rahindas Vs St of Maharastra (1994) GLJ 2320.
10 Vasudevan Vs State (1993) CrLJ 3151.

[462]
 The need for asking for corroboration is to bridge the gap between
the crime and the criminal. The manner and extent of corroboration are
however not clearly defined except the relief that it has to be substantial.11
Some judges have deemed it sufficient, if the witness be confirmed in any
material part of the case; others have been satisfied with confirmatory
evidence as to corpus deliciti only; but others, with more reasons have
thought it essential that corroborative proof should be given of the prisoner

having actually participated in the offence; and when several prisoners are

tried, the confirmation should be required as to all of them before all can

be safely convicted. Regarding the kind of corroboration requires, the SC

held that it would be impossible, indeed it would be dangerous, and to

formulate the kind of evidence which should, or would, be regarded as

corroboration and its nature and extent must necessarily vary with the

circumstances of each case and also in accordance with the offences in

question. Often it has been seen that there arises problems when the

offence in question is heinous like rape which is committed with

accomplices in secret and there may not be any direct evidence for
corroboration and resort is done to circumstantial evidence.14 So the

situation stands that there is no fixed standard of corroboration required.

11 R. v. Tate 1908 2 KB 680.

12 R.v. Stubbs 1855, 25 LJMC 16
13 Narayan Chetanram Choudhury v. State of Maharastra 2000 (8) SCC 457.
14 The observations of Lord Rading in King v. Baserville 1960 KB 658 is noteworthy: "the corroboration
need not be direct evidence that the accused committed the crime; it is sufficient if it is merely
circumstantial evidence of his connection with the crime. A good instance of this indirect evidence is
to be found in Reg v. Birkett and the if the law were otherwise, then many crimes which are
committed with the accomplices in secret like incest, offences against female or the present case
would never be brought to justice."

[463]
 The view that before reliance has to be placed on the evidence of an

approver the approver must appear repentant is not legally correct.

Whether his evidence is reliable or not would and should depend upon the
usual tests such as probability of truth of what he said, whether he made a

full and complete disclosure, whether his evidence is mere self exculpatory

and whether his evidence has been corroborated in material particulars.15 It

is also suggested that apart from satisfying the test of corroboration the

accomplice witness has to also fulfill the test of reliability. This does not

imply that the evidence of the approver with the corroborating pieces

should be treated in two separate compartments.16 This suggests that the

two tests are Siamese twins. But the SC in Swaran Singh v. State of
i n

Punjab held that since the two sets of statements made by the approver

were wholly inconsistent and irreconcilable it lead to a conclusion that

there was serious infirmity in the character of the approver and hence was

not reliable. In Narayan Chetanram Choushury v. State of

Maharashtra19, it was held that- "Only such omissions which amount to

contradiction in material particulars can be used to discredit the testimony

of the witness. The omission on in the police statement by itself would not

necessarily render the testimony of the witness unreliable. When the

version given by the witness in the Court is different in material particulars

15 S. v. Nageswara AIR 1963 SC 1850.

16 Major EG Barsay v. State of Bombay AIR 1961 SC 1762.
17 AIR 1957 SC 637
18 Herein the court found that the approver had not implicated one Harbans Singh in the offence in his
first statement but subsequently he implicated Harbans Singh and thus the SC was dragged to the
irresistible conclusion that the approver is wholly unreliable evidence.
19 2000 (8) SCC 457.

[464]
from that disclosed in his earlier statements, the case of the prosecution

becomes doubtful and not otherwise. Minor contradictions are bound to

appear in the statement of truthful witnesses as memory sometimes plays

false and the sense of observation differs from person to person. "The
evidentiary value of the accomplice witness depends considerably upon the
0C\
circumstances under which the evidence is tendered. But the doubt

persists that if the testimony of accomplice is reliable then what is the need

for corroboration. What the court considers as reliable and whether the two

test are one and the same thing still needs judicial attention and scrutiny to

simplify the law.

Courts have been critical about the character of an accomplice. In

o/
Indar v. R. , the court opined that the testimony of a man of the very low
character who has thrown to the wolves his erstwhile associates and friends

in order to save his own skin and who is a criminal and has purchased his

liberty by betrayal must be received with great caution. Apart from

corroboration, the evidence of the accomplice if at variance with the

evidence of another witness on a material point, then it can not be

accepted. Sometimes it is quite possible that the accomplice would have

acted under pressure and such person though technically be turned as

accomplice would not really evince suspicion in the mind of the judge as to

20 Banu Singh v. RILR 33 Cal 1353.

21 AIR 1931 Lah 408, Amar v. R AIR 1931 Lah 406.
22 Nafiz Ahmed v. State 1989 Cri LJ 1296 (herein the accomplice witness had a variant testimony as to
who had given the packet of brown sugar from that as testified by another witness who was not an
accomplice.)

[465]
his role.23 It is the duty of the prosecution to bring forth the character of the
accomplice evidence to the notice of the court and then to invite belief by
reference to corroborative evidence and it cannot be urged in appeal that it
was never suggested in the trial court that a witness was an accomplice, the

accused can keep quite and take advantage of the flaw in evidence. But the

rule of prudence is often read in isolation in the lower courts whereby the

character proof of the accomplice is not regarded and with the prevalent

corruption of the criminal justice system, the culprit goes scot free due to

the loop holes in the testimony of accomplices on the presumption that the

accomplice has low morals.

There is nothing in law to justify the proposition that evidence of a

witness who happens to be cognizant of a crime or who made no attempt to

prevent it, or who did not disclose its commission should only be relied on

to the same extent as that of an accomplice. Where an informer was upon

his own statement cognizant of the commission of an offence, and omitted

to disclose it for six days, the court was not prepared to say that he was an

accomplice, but held that his testimony was not such as to justify a
conviction except where it was corroborated.24 The factum that a person of

low intelligence being struck with terror made no report of a crime does

not make her or him an accomplice. The Supreme Court in the case of

23 Sathyaseelan v. State 1991 Cri LJ 2941 (Ker) (herein the witness had lent his taxi car for transporting
the dead body without even knowing that it was the dead body of a murdered person. At the last stage
when he was told that the deceased happened to die accidentally in sexual intercourse, he became
panic-stricken and could not help as his part by then was over. There cannot be a legal taboo in using
his testimony as a piece of corroborative evidence)
24 Eshan Ch. V.RILR 21 Cal 328.
25 R.V. Sree Narayan AIR 1949 Oudh 48.

[466]
Vemireddy v.S. held, "If A happens to be present at a murder and takes
no part in it, nor endeavours to prevent it, or to apprehend the murderer,
this course of conduct will not of itself render him either principal or
accessory." The caution remains that the evidence of such a person should
be scanned with the scrutiny of care and corroboration. It may not be
possible to rely on their evidence, but they are not accomplices and it leads
to confusion of thought to treat them as practically accomplices and then

apply the rule of corroboration as to their credibility, instead of judging

their credibility by a careful consideration of all the particular facts of the

case affecting the evidence suggesting the over emphasis that is laid down

upon independent corroboration even of witnesses who do not fall under

the category of accomplices.

Absolute standard of proof does not exist and for a proof to be

beyond reasonable doubt, the standard of reasonable man must be

no

adopted. Appreciation of evidence remains a delicate task and often the

lower courts have the sole task upon them. A testimony without a fringe of

untruth is rare and the court can reject it only when it is tainted to the core,
that is, where falsehood and truth are inextricably intertwined.29 The

question of weight to be attached to a particular piece of evidence is a

matter on which decided cases cannot be of much help.30 It is a well settled

principle of the law of evidence that evidence may be accepted partially or

in the whole. Where a part of the evidence is not separable from the rest of

26 AIR 1956 SC 379 (relied upon passage in Russell on Crimes, 10th ed at page 1846)
27 Haffijuddin Vs R. 38 CWN 111.
28 State of West Bengal v. Orilal Jaiswal AIR 1994 SC 1418.
29 Lila Krishan v. Maniram Godara AIR 1985 SC 1073.
30 Charan Singh v. State of Uttar Pradesh AIR 1975 SC 276.

[467]
 ■J I
the unbelievable part, entire statement is liable to be rejected. Merely
because a part of the evidence is not acceptable, the entire evidence can not
be rejected.32 Witnesses cannot be branded liars in toto and their testimony
rejected outright even if parts of their statements are demonstrably
incorrect or doubtful and it is sound common sense to refuse to apply
mechanically the maxim "falsus in uno falsus in omnibus." In criminal
cases, the court cannot proceed to consider the evidence of the prosecution

witness in a mechanical way. Credibility of a witness should not be

accepted merely because it is corroborated by the evidence of other

witnesses but credibility should be tested in the touch stone of the

probabilities of the case and if the doubt arises with regard to any material

fact then the accused should be given the benefit of doubt. But often in

cases of accomplice witnesses the rule is applied mechanically forgetting

these basic principles of appreciation of evidence.

Confession of the co-accused can be treated as substantive

evidence34 but not an accomplice witness. Section 3035 says that if in a

joint trial for an offence and a confession is made by any one of them, then

it should be considered as against such person and also against others and

offence in the section includes the abetment of or attempt to commit the

offence also. The object of this section is that where an accused person
unreservedly confesses his won guilt, and at the same time implicates

another person who is jointly tried with him for the same offence, his

31 Jyotilal Chakrobarty v. Dipak Dutta 1995 Cr LJ 930 (Cal).

32 V. Vishwambharan v. State of Kerala 1994 Cri LJ 522 (Ker)
33 Mangulu Kanhar v. State of Orissas 1995 Cr. L.J. 2036
34 Balbir Singh v. State of Orissa 1995 Cri LJ 1762 (Ori)
35 Section 30 of The Indian Evidence Act 1872.

[468]
confession may be taken into consideration against such other person as
well as against himself, because the admission of his own guilt operates as
a sort of sanction, which, to some extent, takes the place of the sanction of
an oath and so affords some guarantee that the whole statement is a true
one.36 Yet in cases it has been held that confession of the co-accused is an
evidence of the weak type for it is not required to be given on oath, nor in
the presence of the accused and it cannot be tested on cross-examination

and thus it is a much weaker type of evidence than that of the approver

which is not subject to any such infirmities. The admitted fact is that

there is a tendency to include the innocent with the accused which is

peculiarly prevalent in India, as it has been observed on numerous

occasions by the Courts that it becomes difficult to guard against all the

danger and there by insistence is placed on independent evidence which in

some measure implicates such accused. There is an inherent contradiction

whereby the Courts have at one point held that confession of co-accused

cannot be considered as an accomplice witness and thus it may not require

corroboration whilst in other situation the Court considers it as a weak

evidence and call for independent testimony is done defeating the earlier

reasoning that the co-accused facing a joint-trial with his associates would

divulge the truth. Thus it has made the position more complicated and the
distinction between an accomplice who has been granted pardon and who

still faces trial should be eroded from the legislation and the law should

remain that wherever needed the rule of prudence should be adhered.

36 Empress v. Daji Narsu (1882) 6 Bom 288.

37 Bhuboni Sahu v. The King 76 IA 147.

[469]
 A general rule, courts may act on the testimony of a single witness
even where there is no other evidence which supports it. In England, the
rules governing warnings to juries in criminal cases about the dangers of
unsupported evidence have changed markedly during the last two decades
being driven by several concerns in particular; some old rules were based
on the assumptions about the characteristics of certain categories of
witnesses which derived from out-dated views and even prejudice, whilst

the jury directions which the common law often required were complex,

confusing and gave rise to many appeals. The modem law has thus moved

towards a position where trial judges have discretion to choose whether to

-5 0

give a simpler form of warning or none at all. This transaction has made

redundant a large amount of the previous law concerning the

categorization of witnesses and the identification of evidence capable of

amounting to corroboration. Two further consequences of these changes

seem likely. First, the common law in areas not directly covered by the

reform sis nonetheless likely to be developed in future in accordance with

■JQ

the values underpinning the reforms. Thus for instance some

simplification of the warnings given in cases involving identification

evidence might be predicted. Secondly, the replacement of complex set

piece warnings with simpler and more flexible warnings may encourage

trial judge warnings in suitable cases beyond the strict limits of the

previous categories. [Sec. 32 and 33 of the Criminal Justice and Public

Order Act 1994 which abrogated the rules which previously required juries

38 Phipson on Evidence, 15th ed, Maxwell Publications, London (2000).

39
Ibid.

[470]
to be given warning about the danger of relying on the uncorroborated
testimony of an accomplice of the accused.

In R.v. Makanjoula40 counsel for the appellants argued that the

rationale for such warnings had not evaporated overnight with the bringing
into force of sections 32 and 33, and that consequently in the cases under
appeal the trial judges ought to have chosen to give warnings in the same
terms previous law. The court of Appeal disagreed and held that it would

be contrary to policy and purpose of the 1995 Act forjudges to continue

give warnings in the same terms previously used and in all cases involving

accomplices and sexual complainants. The court of appeal acknowledged,

however, that judges do still have discretion to give warnings about the

dangers of relying on unsupported evidence. The discretion identified by

the Court of Appeals in the above mentioned case is a broad one and

covers both whether a warning should be given and if so, in what terms

should be. In exercising the discretion judges should consider the content

and manner of the particular witness's evidence, the circumstances of the

case and the nature of the issues raised in it.41 To avoid the risk of

warnings being based on out-dated stereotypes or prejudice the Court of

appeal advised that a warning should be only given about a particular

witness's testimony where there was an evidential basis for suspecting that

the testimony could be unreliable. A mere suggestion to the witness in

cross-examination that his or her testimony was unreliable will not amount

to an evidential basis for this purpose. If there is an evidential basis the

40 (1995) 1 W.L.R. 1348, CA

41 (1995) 1 W.L.R. 1348 C.A.

[471]
judge should vary the terms of any warning.42 to be given according to

where the witness stands in the scale of unreliability. Sept piece warnings
were castigated by the Court of Appeal as tortuous and more bewildering
than illuminating. Henry L.J. has stated that the 'old case incrusted
corroboration direction — glazed the eyes of injuries over generations.43 In
Ranadhir Basu v. State ofwest Bengal,44 the testimony of an approver was

not accepted in respect of one of the co-accused for want of independent

corroboration but the Court held that this did have the effect of introducing

any infirmity in her evidence or creating any doubt regarding her reliability

as a witness. Yet in another case where the evidence of an approver

implicated several accused persons, there should have been corroboration

not only generally but also qua each accused, nevertheless corroboration

from independent source of each and every circumstance was not made
necessary.45 This clearly indicates that the rule of prudence has underwent

change where reliability precedes the need for corroboration yet the

changes in Indian criminal justice system have yet to be incorporated when

our predecessors have moved way ahead catering to the need of speedy

justice.

Hence, it is appropriate to say that in the present time when no

witness or evidence is available against the accused to prove the guilt or

42 A moderate warning, suitable for case where a witness has been shown to be unreliable, will urge
caution before acting on the unsupported evidence of the witness. A stemmer warning, suitable for a
case where a witness has been shown to have lied or to have made previous false accusations or to
bear a grade against the accused, will suggest looking for supporting evidence before acting on the
witness's testimony. All such warnings should be given, if at all, in the course of the judges review
such warnings should be given, if at all, in the course of the judges review of the evidence. Note
Phipson on evidence.
43 R.v. IL (1999) Crim L.R. 489, CA.
44 2000 Cr. LJ 1417, AIR 2000 SC 908.
45 A Devendran v. State of Tamil Nadu AIR 1998 SC 2821

[472]
crime, in such hard situations, the evidence of an accomplice should be
tolerated as a necessity because great encouragement will be given to bad
men, by withdrawing from their minds the fear of detention and
punishment through the instrumentality of their guilty partners. Therefore
it is in the interest of the society, and State, that the testimony of an
accomplice should be tolerated as a necessary evil. It can further be said
that the law makes an approver's evidence admissible. The law is

conscious of the fact that a participator in a Crime is not a person who is

worthy of credit. He is a tainted witness and he comes into the witness box

without unblemished conduct. But, the law realizes that there are certain

offences, which could never be proved unless the evidence of an approver

was made available.

The simple logic being the "enemy of an enemy is friend" and so the

friends in crime when depart they may be credible enough to dispose

against each other and can be trust worthy to reasonable extent.

In this regard Markby46 has opined that the legislature desired to

encourage convictions on the uncorroborated evidence of an accomplice,

because the universal practice in this regard is that the testimony of

universally condemned person would be avoided. But to cover a situation

when 'nothing" is available, then "something" though not good, should be

considered. Further Section 133 of the Indian Act 1872 is the only and

absolute rule of law as regards the evidence of an accomplice. The term

"shall be a competent witness", used under this section clearly indicates the

46 Mark by on Evidence 98.

[473]
philosophy of the legislature behind enacting this section. Legislature did
not go to lay down any condition or qualification, to be fulfilled by such
person, before his testimony is considered as trustworthy, reliable or
credible. "The rule of corroboration has been developed by the judges and
jurists, to avoid the possible dangers, of the testimony of such a person.
But at the same time, it should also be borne in mind that section 133 of
the Indian Evidence Act, 1872, cannot be applied directly but by

combining it with section 114 illust. (b) as well as section 30 of this Act.

The risk involved in convicting an accused on the testimony of an

accomplice, unless it is corroborated in material particulars, is so real and

patent that what during the early development of law was felt to be a

matter of prudence has been elevated by Judicial experience into a

requirement of Law. Thus, rule corroboration is a rule of procedure and not

a rule of law and hence rule of procedure should not always dominate over

rule of law. So, the testimony of accomplice should be considered as

reliable, trustworthy and credible.

In preciding pages of the present thesis an attempt has been made to

study different dimensions of the accomplice as a witness.

In the first chapter the development of general rules regarding the

evidentiary value of accomplice has been discussed.

In the second chapter an attempt has been made to explain the

meaning and concept of the word "accomplice". The term accomplice has

not been defined in Indian Evidence Act or Criminal procedure code nor in

any other statute hence its ordinary diction-any meaning has been used to

[474]
explain the concept. An accomplice is a friend in crime who being
particeps criminis, purchases his immunity by turning approver and
accepting to accuse other.

An accomplice is a person who is guilty-associate in crime or who

sustain such a relation to the criminal act that he can be jointly indicated
with the principal criminal. A witness concerned may not confess to his

participation in a crime and may deny his being an accomplice but it is for

the courts to decide on a consideration of the entire evidence whether he is

an accomplice. The burden of proving that an accomplice is definitely on

the party alleging it for the purpose of invoking the rule while the duty to

bring the accomplice character of the evidence to the notice of the court

rests upon the prosecution and the court needs to believe by a

preponderance of probabilities. The essential prerequisite is participation in

crime willfully and this can be done in various ways. The term in fullness

includes all persons concerned in the commission of the crime, whether

they in the strict legal aptness are principals in the first degree or second

degree or merely are accessories before or after the commission. In India

two categories of offenders are recognized -persons who are principals and

abettors or instigators and the term accomplice includes both of them i.e.

the principal and the privy.

The three conditions that need to merge are :-

(1) The felony must be complete

(2) the accessory must have the knowledge that the felony has been

committed.

[475]
 (3) the accessory must harbour or assist the principal.

In the Third Chapter, an effort has been made to describe cases and
stages in which the concept of an accomplice is applicable. With increase
in the number of cases, which are being reported in the newspaper, judicial
reports, journals etc. regarding the role, status and position of an
accomplice in criminal law, the researcher has tried to differentiate the
concept of accomplice, with identical terms and to analyse and study the

situations where the concept becomes applicable. This is done by

differentiating accomplices with that of accessories, aiders, abettors and

principals. At the same time the researcher has also tried her best to find

out those persons who though resemble with accomplice but are not so by

comparing the characteristics of an accomplice with persons like spy,

detective, decoy, paid-informer, trap witness, who associate themselves

with wrong-doer for discovery and disclosure of an offence. Beside this all,

an elaborate discussion of bribery Cases, decoy witness, witnesses of the

raiding party, prosecutrix in a rape case etc. is done to find out whether

they too come within the definition of an accomplice.

The law regarding the evidence of accomplice has been discussed in

the Fourth Chapter, in the international sense scenario. An attempt has

been made to study foreign legal systems including United Kingdom,

United States of America. Gulf countries etc. By the advancement of time,

culture civilization, some law has developed in most progressive stages

while some has legged behind, where Commonwealth countries follows

English pattern the Gulf and Middle Eastern nation are govern by strict

[476]
Islamic Sharia. However there exist a similarity of universal nature
regarding the evidence and credibility of evidence of accomplice.

In the fifth chapter an effort has been made to evaluate the principal
of competency of accomplice as witness as well as the privilege attached
with. An accomplice standing in the witness box for the prosecution side
with the grant of pardon is termed as approver. He is a treacherous
character who has broken the vows of secrecy to his other friends of crime

but has been categorised as a competent witness with the ridder of some

independent corroboration.

Approver is a competent witness and a conviction will lie basing

upon his evidence as per Sec. 133 of IEA. But as per Section 114

illustration (b) of IEA accomplice's evidence is unworthy of credit unless it

is supported with the material aspects through other circumstantial

evidence as corroboration. This is required since he is an unbelievable

person betraying to his co-accused. Recently, the Hon'ble Supreme Court

also held that accomplice evidence is not believable unless it is

corroborated with material aspects as guarantee of truth.

However there is no doubt about the competency of accomplice as

witness. However his statement, to be relied, they must pass the strict test

of independent corroboration and should leave no ground of slightest doubt

about his own participation in the act.

Although the evidence of a co-accused during the course of joint

trial is evidence for all purposes in the case including incrimination of his

co-accused, where it appears that he may have some purpose of his own to

[477]
serve which may incline him to give false evidence, the judge must be very
careful in accepting it and injury trial, it is desirable that the jury should be
warned of the danger of convicting on his uncorroborated evidence. '

Again, there is nothing in the law of evidence which makes the

statements of witnesses produced by one accused inadmissible against a
co-accused. But for obvious reasons such evidence should be accepted
with great caution.

To give "evidence against", it is no necessary that there should have

been any hostile intent in order that a person should be held to have given

evidence against his co-accused. The important point is, not the state of

mind of the witness, but the likely effect of his testimony. It is enough if

the evidence would have to be included in any summary of the evidence in

the case which, if accepted, would warrant conviction of the other person

charged in the same proceedings. Evidence against in this context, means

accused's or his witness's evidence supporting material respect or

undermines the defence of that co-accused. The deponent, thus, is in the

same position as a witness for the prosecution so far as the co-accused is

concerned, and nothing must be done to impair the right of a person

charged to discredit his accusers.

By deposing against his partners he intum earn for himself the bless
of pardon which means his escape from the clutches of sentence.

Going further in chapter six the value and role of statements of an

accomplice has been discussed and an attempt has been made to find out

[478]
the amount and nature of corroboration necessary in weighing accomplice
evidence as well as the necessarily of it.

An accomplice has contributed to the conviction of another,

certainly has a strong moral and equitable claim to clemency, and if he be
subsequently convicted of that crime, his moral claim should be recognized
by the pardoning power. It is proved that an accomplice is a competent
witness and there is no absolute rule of law which enacts that the

conviction on the evidence of an accomplice is a bad but there is an

established practice, founded on the judicial experience and that in a

material particular pointing not only to the crime but to the participation of

the accused in that crime.

Therefore, the evidence of an accomplice must be confirmed, not

only as to the circumstances of the crime, but also to the identity of the

prisoner. It does not mean that there must be confirmation of all the

circumstances of the crime; as we have already stated, that is unnecessary.

It is sufficient if there is confirmation as to a material circumstance of the

crime and of the identity of the accused in relation to the crime. Therefore,

evidence in corroboration must be by independent testimony which affects

the accused by connecting or tending to connect the accused with the

crime. In other words it must be evidence which implicates him, that is

which confirms in some material particular not only the evidence that the

crime has been committed but also that the prisoner committed it. The test

applicable to determine the nature and extent of the corroboration is thus

the same whether the case falls within the rule of practice at common law

[479]
or within that class of offences for which corroboration is required by
statute. The nature of the corroboration will necessarily vary according to
the particular circumstances of the offence charged. It would be in high
degree dangerous to attempt to formulate the kind of evidence which
would be regarded as corroboration except to say that corroborative
evidence which shows or tends to show that the story of the accomplice
that the accused committed the crime is true not merely that the crime has

been committed by the accused.

It has been discussed time and again in the preceding pages that

evidence in corroboration must be independent testimony, which affects

the accused by connecting or tending to connect the accused with the

crime. The corroboration should be corroboration derived from evidence

which is not vitiated by the accomplice-character of the witness, and

further, should be such as to support that portion of the accomplice's

testimony which makes out that the prisoner was present at the time when

the crime was committed, and participated in the acts of commission.

An attempt has been made in chapter seven to discuss the credibility

and reliability of an accomplice. In this chapter, it has been discussed that

in considering the weight and value of the testimony of any witness, the

appearance, attitude, and behavior of the witness, the interest of the

witness in the inclination of the witness to speak truthfully or not, the

probability or improbability of the witness's statements, and all other facts

and circumstances in evidence may be taken into consideration. Thus, the

[480]
testimony of any witness may be given such weight and value, as the
testimony of such witness is entitled to receive.

The question of credibility of a witness has primarily to be decided

by referring to his evidence and finding out as to how the said witness has
stood cross examination and what impression is created by his evidence
taken in the content of the other facts of the case and also in the light of the
probability. Thus credibility of any witness is to be judged with reference

to:-

(a) his character

(b) extent and manner of interestedness and

(c) how he fared in cross-examination

Thus after withstand these test there is no doubt about the credibility

of accomplice as a competent witness though the general presumption goes

against his truthfulness were and thus his statement need to be supported

by untainted evidence. Therefore, illustration (b) to Sec. 114, provides a

rule of caution to which the courts should have regard. But is a

presumption and a rule of prudence which can not over turn the rule of law

laid down by sect 133 which declare an accomplice as a competent witness

against an accused person.

In chapter eight, researcher has discussed that the exemption of an

accomplice from criminal liability should be made according to the

provisions of Constitution (Art. 72 and Art. 161) and Code of Criminal

Procedure (Section 432 to 435), 1973.

[481]
 Further, in this chapter, the procedure for pardon and prosecution of
an accomplice when he has violated the terms and conditions of granting
him pardon under Sections 306 to 308 and 432 to 435 (A) of the Code of
Criminal Procedure 1973 has been explained. The provisions under
Section 337 to 339 of the Code of Criminal Procedure, 1898, have also
been discussed as many cases were decided under these sections before the
enforcement of the new Code of Criminal Procedure, 1973. The researcher

has discussed by whom, to whom, on what conditions pardon may be

tendered and what are its effect and also the constitutional validity of it.

In chapter nine the researcher has tried to discuss that as legislature

provisions cannot fill the gap of huge lacunas of the existing laws,

therefore, the Supreme Court and the High Court of this country and earlier

the House of Lords the privy council as well as, the existing High Courts

before 26 Jan 1950, have contributed a lot in the development of law in

various fields. So, the researcher has discussed various case laws under this

chapter to throw some light on the approach of judges towards the concept

of accomplice, their credibility as witness and the evidenciary value of

their testimony.

Thus a close look at the preceding chapters show that if the evidence

of accomplice be rejected as totally incredible, it would not only hurt the

very root of justice but also shake the pillar stone of present society. Since

the time immemorable it has been a difficult task to extract an absolute

credible evidence regarding any crime but these days there is general

apathetic attitude to come to witness box, as it means inviting various

[482]
social, legal as well as psychological hardships. Thus there has developed
as more sympathetic attitude towards the accomplice when he turns an
approver as it is hardly possible to get proper independent witness in
serious crimes involving destructive and terror activities. Thus though with
a caution of prudence his testimony is accepted as credible and whole
world has similar legal perspective on this matter.

[483]
 SUGGESTION
In the last, it is the duty of the researcher to provide some
suggestions, which may be considered by legislature, judges and jurists for
their help while dealing with such problems before them. There are few
ah
suggestions given by an author namely:

(1) Such witness fulfills the qualifications of competency laid down

by section 118 and Sec. 120 of the Evidence Act., 1872;

(2) Just being in association with the commission of crime, he does

not become immoral person for his whole life. Section 54 of the

Evidence Act, further approved it;

(3) As corroboration is necessary, in the matters of other witnesses,

too, so, after corroboration it should be acted upon, because just

on the ground that he is a man of questionable nature, is not by

itself sufficient to reject his evidence and the degree of suspicion

with which he is attached to the evidence of accomplice varies

according to the extent and nature of his complicity;

(4) After corroboration, the testimony of such a witness should be

accepted. The rule, degree nature of corroboration differ from

person to person. The observations of the Supreme Court in

Rameshwar Singh V. State of Rajasthan,48 that "It would be

impossible, indeed it would be dangerous, to formulate the kind

of evidence which should or would be regarded as corroboration.

47 Dr. J.K. Malik in Journal of the Legal Studies, Vol. XXX VI

48 AIR 1952 SC 54.

[484]
 It's nature and extent must necessarily vary with the
circumstances of each case and also according to the particular
circumstances of the offence charged, but to this external rules
are clear, i.e. it is not necessary that there should be independent
confirmation of every material circumstances in the sense that
independent evidence in the case, apart from the testimony of the
complainant or the accomplice should in itself by sufficient to

sustain conviction. All that is required is that there must be some

additional evidence rendering it probable that the story of the

accomplice is true and that is reasonably safe to act upon it". The

independent evidence must not only make it safe to believe that

the crime was committed but must in some way reasonably

connect or tend to connect the accused with it by confirmation in

some material particulars, the testimony of the accomplice or

complainant that he committed the crime. The corroboration

must come from independent source and thus ordinarily the

testimony of one accomplice would not be sufficient to

corroborate that of another. The corroboration need not be direct

evidence that the accused committed the crime. It is sufficient if

it is merely circumstantial evidence of his connection with the

crime.

(5) He should be treated as a reliable witness. In the opinion of

Taylor49 accomplice, who are usually interested, and always-

49 Taylor, A Treatision the law of Evidence (1931) Vol. Para 967.

[485]
 infamous witnesses, and whose testimony is admitted from
X

necessity, it being often-impossible, without having recourse to

such evidence, to bring the principal offenders to justice, it is the
apt view in this regard;

(6) It can also be said that in a situation where "Nothing" is available

against the accused. "Something" which is available should be

considered to prove the guilt of the accused person, because in

such situation "it" remain only best evidence and the foundation

of the Indian Evidence Act, are that best and relevant evidence

must be given and there should be no discrimination among

witnesses. (Section 134 of the Evidence Act);

(7) According to Indian Evidence Act, character of the accused in

criminal cases is not relevant to prove or deny any liability

because sections 53 and 54 of the Act, support this view.

Therefore, now only, on the basis of association in a crime for

once, one person can be deprived off his right to appear as a

witness and testify:

(8) It can further be said that the most important consideration which

have to be considered by the court, while accepting or rejecting

his testimony are his character, background, the situation or

circumstances in which he was forced to become a witness,

truthfulness, manner of revealing the facts, and feeling of

remorse, gravity of the offence committed. To avoid any possible

[486]
 dangers the process of corroboration by tallying it with other
evidence or witnesses;

(9) In the age of scarcity of witnesses and evidences, the available

evidence should not be converted into "unavailable evidence or
witness".

(10) Further it can be said that the well-established principle of

Criminal jurisprudence is that it is the duty of the court to decide

cases and not the parties, because a noble man may commit a

worst possible crime, and a person of easy virtue may have a

good cause of action. So, his testimony should not be rejected on

this ground.

(11) The language used under Section 133 of the Evidence Act "shall

be a competent witness", is indicative of the mind of the

legislature, to consider such testimony without any further

conditions or qualifications, on the other hand, the term used

under Section 114 illust. (b) of the Evidence Act, "may

presume", shows, that legislature did not want to discard such

evidence. Thus Section 30 and Section 133 of the Evidence Act,

prevail over the provisions of Section 114 illus. (b) of the Act;

(12) However it would be more appropriate view if both these

sections while reading together, a synthesis might have drawn by

the court in this regard to meet the scarcity of witness and

evidence of the present era;

[487]
 (13) In weighing accomplice evidence, the judge should not overlook
the position in which accomplice may stand, and the motives,
which he may for stating what is false. If the evidence of the
accomplice, although uncorroborated, is true and establish the
guilt of the other accused, it is the duty of the court to convict
another accused and there may be cases of exceptional character

in which the accomplice evidence alone convinces a Judge. In

such situations, his testimony should be considered. Thus, the

value of his evidence depends considerably upon the

circumstances under which his evidence ins tendered;

(14) Lastly, it can be said the rule of corroboration is not a substantive

law but a rule of practice, and rule of corroboration is not a

substantive law but a rule of practice, and rule of practice should

not always dominate over the rule of law. So, the testimony of an

accomplice be considered though with caution looking into facts

and circumstances of each and every case.

Thus going through the above suggestion by the learned author it is

clear that in present day world which is witnessing a multidimensional

errosion of social values and an apathy to words ones duties while dealing

with the criminal proceeding no piece of evidence can be risked for being

coming from a corrupt source.

Besides them some additional suggestions are given below.

1. An accomplice must also go through the general test of

competency and corroboration like any other.

[488]
2. There must be an objective and scientific test for the extent of
corroboration and nature of corroboration needed to make an
accomplices evidence reliable pertaining to the facts and
circumstances of each case.

3. There should be an untainted and absolutely independent peace

of evidence to strengthen and support the story of accomplice,

which not only connects the strang of crime but also connect him

with his partner and give a clear version of his role in the act

before his turning an approver.

4. With exemplary serious threats of terror activities and need for

the fight against terror, the confession of a co-accused be treated

enough to implicated others with even the slightest support of

other direct or indirect evidence. And in such case an accused

confession be taken as a piece of reliable evidence even if it

comes without the privilege of pardon.

5. The power of pardon should be exercised more generously in

such serious crimes in order to get what ever evidence is

possible. And besides pardon there should be some programme to

provide protection to him similar to witness protection

programme. Which could encourage misguided people to come

forward and use legal provisions to disclose serious crimes

against humanity. This increase of pardon as well as some

guarantee of protection would definitely serve better in the

interest of Nation as well as whole Human race.

[489]
6. The modem society is witnessing a tremendous rise in organised
crime where heinous crimes like murder, extortion, sedition and
white collar Crimes are planned, and committed behind closed
doors it is very difficult and in fact rare to get an absolute
independent witness. And in order to expose these scientifically
operating organized rackets there should be a more liberal view
attached to words the strict test of corroboration and in such case

the conviction can be based on the testimony of an accomplice

giving regard to his own role and character with or without any

independent direct or indirect evidence.

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[490]