| introduction | jurisprudence |
| sections | section 133 r/w 114(b) |
| relevant case laws | Bhuboni Sahu vs the King Haroon haji Abdullah vs St. Of Maharashtra Ravinder Singh vs st. Of Haryana |
| present problem | questions related |
| conclusion | answers as per our reasoning |
An accomplice is not defined in evidence act and therefore persuaded to have been used in ordinary sense. Accomplice means guilty associate or partner in crime. He is a person convicted or confessed guilt with charge or trial.
When offence is committed by more than one person in concert, everyone participating in its commission is accomplice. Often police has to collect one of them to convert into witness. An accomplice by becoming approver becomes prosecution witness. An approver is a person who agreed to give evidence against his partner in crime.
An accomplice is a competent witness in evidence act.
When a person is not accomplice:
- Mens rea is absent
- person did something in threat, pressure
- detectives, paid informers
- who witness a crime or who makes no attempt to prevent it- out of terror
Section 133:
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.
Illustrations:
(a) A, a person of the highest character, is tried for causing a man’s death by an act of negligence in arranging certain machinery. B, a person of equally of good character, who also took part in the arrangement, describes precisely what was done, and admits and explains the common carelessness of A and himself. The evidence of B shall have to be considered by the Court, while deciding on the negligence of A.
(b) A crime is committed by several persons. A, B and C, three of the criminals are captured on the spot and kept apart from each othe.- each gives an account of the crime implicating D, and the accounts corroborate each in such a manner as to render the previous concert highly improbable. The variance in the different accounts of facts given by A, B, C as to the part of D shall be taken into account by the Court while deciding if D was an accomplice.”
section 114(b):
An accomplice is unworthy of credit unless he is corroborated in material particulars.
These both sections are complementary to each other.
Section 133 authoritates court to convict on basis of uncorroborated evidence but since such witness being criminal itself may not always be trustworthy. Sec 114 says, if it is necessary, then court should presume that he is unreliable unless statement are supported or verified by some independent evidence.
Hence, though an accomplice is a competent witness and though conviction may lawfully rest on uncorroborated testimony, yet curt has to presume and may indeed be justifying in presuming that no reliance can be placed on evidence of accomplice unless that evidence is corroborated in material particulars.
Relevant Case Laws:
Bhuboni Sahu vs The King
facts:
One Kalia Behara was brutally murdered at a place between Berhampur, where he lived and carried on business as a jutka driver, and Golantra, to which he was driving with passengers in his jutka. It is unnecessary to refer to the details of the murder; though it may be noted that the motive attributed to the appellant was that he is a relation of accused 1 and 2 who are said to have been on terms of enmity with the deceased, but both of whom were acquitted of the murder. Eight persons were charged with the offence and tried. By the sessions Judge of Ganjam Puri. The learned judge convicted six of the accused including the appellant who was accused 7 and one Trinath, who was accused 5.The six convicted persons appealed to the High Court at Patna. Two of the appeals were allowed, but the other appeals, including those of the appellant and Trinath, were dismissed.
issue:
whether there was evidence upon which theappellant could be properly convicted?
judgement:
The evidence against the appellant consisted of, (a) the evidence of Kholi Behara who had taken part in the murder and had become an approver; (b) the confession of Trinath recorded under S. 164 Criminal P. C., which implicated both himself and the appellant in the murder, but which was retracted in the Sessions Court; and (c) the recovery of a loin cloth identified as the one which the deceased was wearing when he was assaulted, and a khantibadi, or instrument for cutting grass, in circumstances alleged to implicate the appellant.The statement made by the approver under Section 164 plainly does not amount to the corroboration in material particulars which the Courts require in relation to the evidence of an accomplice. An accomplice cannot corroborate himself; tainted evidence does not lose its taint by repetition. It will be noticed that the section applies to confessions, and not to statements which do not admit the guilt of the confessing party. In the present case the Courts in India appreciated this, and ruled out statements made by certain of the accused which were self-exculpatory in character. Section 30 seems to be based on the view that an admission by an accused person of his own guilt affords some sort of sanction in support of the truth of his confession against others as well as himself. But a confession of a co-accused is obviously evidence of a very weak type. It does not indeed come within the definition of “evidence” contained in Section 3, Indian Evidence Act, 1872 (IEA). It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination. It is a much weaker type of evidence than the evidence of an approver which is not subject to any of those infirmities. Section 30, however, provides that the Court may take the confession into consideration and thereby, no doubt, makes it evidence on which the Court may act; but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case; it can be put into the scale and weighed with the other evidence.
In the present case their Lordships are in complete agreement with the Judges of theHigh Court in declining to act upon the evidence of the approver supported only by theconfession of Trinath. These two persons appear to have been nothing but hinted assassins.They had ample opportunity of repairing their statements in concert, and in addition, theapprover has sworn to two contradictory stories, and Trinath has denied that his confessionwas true.Lordships are of opinion that the conviction of the appellant cannot stand.
Haroon Haji Abdullah vs State of Maharashtra
facts:
Gold was smuggled into India by bringing it in steam launches from places on the Persian Gulf, transshipping it into Indian boats standing out at sea, then bringing it to the Indian shores and by being taken away by persons waiting for it.
There was a raid on the night of August 13, 1961 while a consignment was being brought in. Many of the smugglers were arrested.
On the 14th, the Customs Authorities served notices upon the suspects under Section 171A of the Sea Customs Act. On the 15th, two Customs Officers recorded the statements, in answer to the notices, from two of the suspects Kashinath and Bengali, independently, and almost simultaneously.
The statement of Kashinath implicated himself and Haroon Haji Abdulla in the smuggling. The statement of Bengali contained a confession of his own guilt as well as the implication of Haroon in the smuggling, but retracted later alleging duress and torture.
Trial court convicted the appellant, High Court confirmed the conviction relying on the statement of Kashinath and the retracted confession of Bengali.
issue:
Whether the statement is admissible of accomplice under section 133 IEA?
judgement:
Appellant contended that, as Kashinath was an accomplice, no conviction could be based on his evidence unless it was corroborated in material particulars; and the statement of Kashinath before the Customs authorities and the confession of Bengali to the Customs authorities which was later retracted, could not be used for purposes of such corroboration
The Evidence Act in Section 133 provides that an accomplice is a competent witness against an accused person and that a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.
There is a rider in illustration (b) to s. 114 of the Act which provides that the Court may presume that an accomplice is unworthy of credit unless he is corroborated in material particulars.
This cautionary provision incorporates a rule of prudence because an accomplice, who betrays his associates, is not a fair witness and it is possible that he may, to please the prosecution, weave false details into those which are true and his whole story appearing true, there may be no means at hand to sever the false from that which is true.
It is for this reason that courts, before they act on evidence, insist on corroboration in material respects as to the offence itself and also implicating in some satisfactory way, however small, each accused named by the accomplice.
This rule of caution or prudence has become so ingrained in the consideration of accomplice evidence as to have almost the standing of a rule of law.
A retracted confession is a weak link against the maker and more so against a co-accused. Retracted confession can be used against maker and co-accused. It is not substantive piece of evidence. It can be used as corroborative piece of evidence. It is very weak evidence.
There is corroboration to the evidence of Kashinath in respect of Haroon from the confession of Bengali given independently and in circumstances which exclude any collusion or malpractice. The appeal was dismissed. Conviction of Haroon was upheld.
Ravinder Singh vs State of Haryana
facts:
Ravinder Singh husband of Bimla was employed in the Air Force Department at Sirsa. He was asking for divorce from her wife, but she was not ready to give divorce. Ravinder had threatened her for life. Ravinder had a girlfriend, Balbir Kaur, and wanted to marry with her. Ravinder, Bimla, Satinder Kumar, Jasbir Inder Singh and Bhanu Prakash Singh left for Sirsa by train from Sasni Railway Station. Ravinder and Bhanu Prakash Singh threw acid in the mouth of Bimla, when there was no other passenger in the compartment except the above five persons. The accused threw Bimla from the running train. Some acid drops fell on the hands of the accused and Bhanu Prakash Singh and on their pants and shirts. Jasbir Inder Singh, friend of Ravinder Singh turned into Approver. Trial Court acquitted Ravinder Singh. High Court convicted him under Section 302, I.P.C. and awarded life sentence.
issue:
Whether the husband caused the murder of his wife?
judgement:
We also find from the approver’s evidence that the accused went to the Doctor of the AirForce to show the burns on his hands. This fact is not denied by the accused.An approver is a most unworthy friend if at all and he having bargained for his immunity,must prove his worthiness for credibility in court.The story given by an approver so far as the accused on trial is concerned, must implicatehim in such a manner as to give rise to a conclusion of guilt beyond reasonable doubt.In a rare case taking into consideration all the factors, circumstances and situationsgoverning a particular case, conviction based on the uncorroborated evidence of inapprover confidently held to be true and reliable by the court may be permissible.Every approver comes to give evidence in some such manner seeking to purchase hisimmunity and that is why to start with he is an unreliable person and the rule of cautioncalling for material corroboration is constantly kept in mind by the court by time-wornjudicial practice.
The SC found the approver in the present case to be highly reliable and the testimony of the approver corroborated with independent witnesses.Ravinder Singh’s conviction was upheld by the Supreme Court.
Present Problems:
Karim, George and Abheek are charged with the murder of Berry, and tried together. Karim becomes an approver and gives evidence, that Abheek beat Berry to death, while George and he were keeping a watch on the other who might have come to his rescue. George states in his confession to the Judicial Magistrate, made in the police custody, that he was instigated by Abheek to participate in the crime, but it was Abheek who dealt the blow with a stick to Berry. George and Karim were in the same cell in the police custody. The trial court convicted Abheek on the basis of Karim’s testimony and George’s confession. Abheek appeals against his conviction. Decide the appeal in light of the provisions of the Evidence Act, applicable, and the decided cases.
Answer: The statement and testimony against accused is to be taken by court in consideration. Section 30 lays down that when two or more persons are tried jointly for the same offence, and the confession made by one of them is proved at the trial, the Court may take into consideration the confession against the other accused as well as the accused confessing the guilt.
