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ALIGARH MUSLIM UNIVERSITY

MALAPPURAM CENTRE, KERALA

END- TERM ASSIGNMENT [ BATCH – 2018 B.A.LL.B.]

In the Subject of
LAW OF EVIDENCE- II ( BLLB603)
Semester- VI
On the Topic

“Evidence Of Accomplice- Section 133”

Submitted To Submitted By

Mr. Galib Nashtar Vaibhav Teotia

Asst. Prof. RollNo. 18Ballb03

Dept. Of Law (AMUMC). En.No- GJ3957

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TABLE OF CONTENTS

S.No. PARTICULARS P.No.

1 Introduction 3
2 Who is Accomplice 3
3 Accomplice under English Law 4
4 Need for Accomplice Evidence : A necessary Evil 5
5 Relevancy of Accomplice Evidence 5
6 Difference between civil and criminal law 8
7 Competency of Accomplice as witnesses 8
8 Section 133 and Section 114 9
9 Rule Regarding Corroboration : Rule of prudence 10
10 Conclusion 14
11 Bibliography 15
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INTRODUCTION

An accomplice means a person who has taken part in the commission of a crime. When an
offence is committed by more than one person in concert, everyone participating in pits
commission is an accomplice. Conspirator lay their plot in secret , they execute it ruthlessly
and don’t leave much evidence behind. Often , therefore the police has to select one of them
for the purpose of being converted into a witness. 133 of the Indian Evidence Act, 1872 is
the only absolute rule of law dealing with accomplice evidence. However it is the opinion of
some that this section is redundant as Section 118 makes all persons competent to testify
except those persons which the section specifically bars. Moreover there is no rule which
requires that the evidence of an accomplice should be corroborated. But Section 133 might
lead persons to suppose that the Legislature desired to encourage convictions on the
uncorroborated evidence of an accomplice. This interpretation however cannot hold good in
light of Section 114 (b) which lays down the presumption that an accomplice is unworthy of
credit unless he is corroborated in material particulars. Thus owing to this conflict between
Section 114(b) and Section 133 some experts feel that Section 133 should have been omitted
and the law relating to accomplice evidence would have been the same as it is now and the
awkwardness of appearing to sanction a practice so universally condemned would have been
avoided.

However the Courts have resolved this apparent conflict between the two sections by
harmoniously reading Sections 114(b) and 133 together and held that while it is not illegal to
act upon the uncorroborated testimony of an accomplice it is a rule of prudence so universally
followed so as to amount almost to a rule of law that it is unsafe to act upon the evidence of
an accomplice unless it is corroborated in material respects so as to implicate the accused. 1
This in a nutshell is the core of accomplice evidence and must be kept in mind at all times
while dealing with the subject of accomplice evidence.

WHO IS AN ACCOMPLICE

1 Batuk lal, The law of evidence, 647, Central law agency, 23rd edition, 2020
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It is extremely important to understand what the term accomplice means and signifies as to
attract Section 133 a person must be an accomplice.

The word ‘accomplice’ has not been defined by the Indian Evidence Act, 1872 and should
therefore be presumed to have been used in the ordinary sense by the legislature. However
the judiciary has dealt with this issue extensively and has tried to explain comprehensively as
to who an accomplice is.

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. 2

It was held in R.K Dalmia v. Delhi Administration3 that “an accomplice is a person who
participates 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 if he is not a particeps criminis. Receivers of stolen property are taken to be
accomplices of the thieves from whom they receive goods in a trial for 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 be admissible to prove the system and intent of
the accused in committing the offence charged”.

The Court in Jaganath v. Emperor4 explained that an accomplice is a guilty associate or

partner in crime, or who in some way or the other is connected with the offence in question or
who makes admissions of facts showing that he had a conscious hand in the offence. 5

ACCOMPLICE UNDER ENGLISH LAW

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 English law the modes of complicity
with crime are treated under the heads of principals in the first degree or second degree and
accessories before or after the fact.

Categories of Accomplice :

2 Dr Avtar Singh, principles of the law of evidence, 554, Central law Publication, 22nd edition , 2016
3 AIR 1962 SC 1821.
4 AIR 1942 Oudh 221.
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➢ A principal of the first degree is one who actually commits the crime;
➢ A principal of the second degree is a person who is present and assists in the
perpetration of the crime;
➢ An accessory before the fact is one who counsels, incites, connives at encourages or
procures the commission of a crime and
➢ An accessory after the fact to a felony who, knowing a felony to have been
committed by another, receives, comforts or assists him in order to enable him to
escape from punishment or rescues him from arrest for the felony or having him in
custody for the felony allows him to escape or opposes his arrest.
It is to be noted that a married woman who receives, comforts, or relieves her husband
knowing him to have committed a felony does not thereby become an accessory after the fact.

In English Law the term ‘accomplice’ in its fullness includes in its meaning all the persons
concerned in the commission of the crime-principals of the first degree, second degree and
accessories before and after the fact.

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. 6

NEED FOR ACCOMPLICE EVIDENCE: A NECESSARY EVIL

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.7

RELEVANCY OF ACCOMPLICE EVIDENCE

6 Narain Chandra Biswas v. Emperor, AIR 1936 Cal 101.

7 Supra note 1 at 649
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The evidence given by an accomplice under criminal law is made under section 10 and
section 30 of the Indian evidence act

STATEMENTS MADE BY THE CO CONSPIRATORS

Under Section 10, where there is reasonable ground to believe that two or more person have
conspired together to commit an offence or an actionable wrong, anything said, done, or
written by any one of such person in reference to their common intention, after the time when
such intention was first entertained by any one of them, is a relevant fact as against each of
the person believed to be so conspiring, as well for the purpose of proving the existence of
the conspiracy as for the purpose of showing that any such person was a party to it.

This section is based on the “theory of implied agency”. So the things said or done by one
conspirator are admissible against the other if they relate to the conspiracy.

The general principal is that no person can be made liable for the acts of another except in
cases of abetment in criminal proceeding and contract of agency in civil proceeding. But in
conspiracy the persons who take part in conspiracy are deemed to be the mutual agent or
confederates for the purpose of the executive of the joint purpose.

In Badri Rai v. State8, it has been held that section 10 of the evidence act has been
deliberately in order to make such acts or statements of the co-conspirator admissible against
the whole body of conspirators, because of the nature of the crime. A conspiracy is hatched in
secrecy, and executed in darkness. Naturally, therefore it is not feasible for the prosecution to
connect each isolated act or statement of one accused with the acts or statement of the others,
unless there is common bound linking all of them together.

Requirements of Section 10:

1. Existence of the conspiracy: The operation of S10 is strictly conditional upon being
reasonable ground to believe that two or more persons have conspired together.
In Government of NCT of Delhi v. Jaspal Singh 9, it has been held that once there is
sufficient material to reasonable believe that there was concert and connection between
persons charged with a common design, it is immaterial whether they were strangers to each
other, or ignorant of actual role of each of them or they did not perform any one or more of

8 AIR 1958 SC 953

9 (2003) 10 SCC 586
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such acts by joint efforts. It is not necessary that all should have joined in the scheme from
the first; those who come in at later stage are equally guilty, provided the agreement is
proved.

2. Things said, done, or written in reference to their common intention:

If the things are said, done, or written in reference to the common intention of the conspiracy
then only the things said, done, or written will be admissible in the court of law. But if
anything said, done, or written by any fellow conspirator after the conspiracy no longer exist
and had ended or ceased to exist, it will be inadmissible against other

3. Admissions of Evidences related to acts outside the period of conspiracy:

This is very clear with the bare text of S.10 that the things said, done, or written will be
relevant only then when such intention was first entertain by any one party to the conspiracy.
Again the thing is necessary to remember that the things said, done, or written is not relevant
when the conspiracy is over.

In the case State of Tamil Nadu v. Nalini 10, it has been held that once it is shown that a
person snapped out of conspiracy, any statement made subsequently thereto cannot be used
against other conspirator under section 10 of Evidence Act.

CONFESSION MADE BY THE CO ACCUSED IN A JOINT TRIAL

Under Section 30, when more persons than one are jointly tried for the same offence, the
confession made by one of them, if admissible in evidence, should be taken into
consideration against all the accused, and not against the person who alone made it. It appears
to be very strange that the confession of one person is to be taken into consideration against
another. Where the confession of one accused is proved at the trial, the other accused persons
have no other opportunity to cross examine him. It is opposed to the principle of
jurisprudence to use a statement against a person without giving him the opportunity to cross
examine the person making the statement. This section is an exception to the rule that the
confession of one person is entirely admissible against the other. 11

In Kashmira Singh v. State of MP , the accused kashmira who was an assistant food
procurement inspector, his services along with the another food inspector were terminated on

10 AIR 1999 SC 2640

11 Supra note 2 at 557
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a report of the food officer when they were getting the rice polished in a rice mill. Kashmira
was heard twice saying that he would teach a lesson to the food officer. After a few months
the son of the food officer was found missing and his body was found in a well. Kashmira,
gurudayal brother of kashmira, prithipal son of gurudayal and one gurubachan, a rickshaw
puller in this case were tried of conspiracy and killing the child. The prosecution story was
that prirthipal led the child, when he was playing near the gurudwara, for some distance and
then the child was taken on the cycle by kashmira to a house where he was murdered.
According to the judgment of the sc guruibachan was not a rickshaw puller by profession and
the rickshaw was hired only for that night for the disposal of the body of the deceased.

Hence before the confession of one accused may be taken into consideration against others, it
has to be shown that:

1. the person confessing and the others are being tried jointly.
2. they are being tried for the same offence.
3. the confession is affecting the confessioner and the others.

DIFFERENCE BETWEEN CIVIL LAW AND CRIMINAL LAW

Statement whether admission or confession made by a co plaintiff or co defendant or co

respondent is not made admissible against the other plaintiff, defendant or appellant
under civil law. Whereas the law is different under criminal law, any statement made by
a co accused is made relevant and admissible against the other accused under section 10
and 30 of Indian Evidence Act.

Observed in the case of Harihar Rajguru Mohapatr v. Nabakishore Rajaguru

Mohapatra12and Reiterated in the case of Ambar Ali v. Lutfe Ali13

“The admission of one co-plaintiff or co-defendant is not receivable against another, merely
by virtus of his position as a co-party in the litigation; if the rule were otherwise, it would in
practice permit a litigant to discredit an opponent's claim merely by joining any person as the
opponent's co-party, and then employing that person's statement as admissions.

12 AIR 1963 Ori 45

13 AIR 1918 Cal 971
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Consequently, it is not by virtue of the person's relation to the litigation that the admission of
one can be used against the other; it must be, because of some privity of title or of
obligation".

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
self-incriminating 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.

ACCOMPLICE: A COMPETENT WITNESS UNDER SECTION 118

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.

RELATION BETWEEN SECTION 114 AND 133

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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.

The law was laid down in the case of Dagdu V. State of Maharashtra14

“There is no. antithesis between s. 133 and illustration (b) to s.114 of the Evidence Act,
because the illustration only says that the Court 'may' presume a certain state of affairs. It
does not seek to raise a conclusive and irrebutable presumption. Reading the two together the
position which emerges is that though an accomplice is a competent witness and though a
conviction may lawfully rest upon his uncorroborated testimony, yet the Court is entitled to
presume and may indeed be justified in presuming in the generality of cases that no reliance
can be placed on the evidence of an accomplice unless that evidence is corroborated in
material particulars, by which is meant that there has to be some independent evidence
tending to incriminate, the particular accused in the commission of the crime.”

RULE REGARDING CORROBORATION: RULE OF PRUDENCE

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 15.

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. 16

14 1977 AIR 1579

15 Supra note 1
16 Ibid
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Thus the Supreme Court laid down the principle in the case of Rameshwar v. The State Of
Rajasthan17

“the rule which according to the cases has hardened into one of law is not that corroboration
is essential before there can be a conviction but that the necessity of corroboration as a matter
of prudence except where the circumstances make it safe to dispense with it must be present
to the mind of the judge…before a conviction without corroboration can be sustained. The
court also made it clear that the corroboration should be such so as to render the prosecution
story reliable and safe to act upon”

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:

• An accomplice is likely to swear falsely in order to shift the guilt from himself.
• An accomplice is a participator in crime and thus an immoral person.
• 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.

The nature and extent of corroboration must necessarily vary with the circumstances of each
case and it is not possible to enunciate any hard and fast rule. But the guiding rules laid down
in R v. Baskerville18 are clear and beyond controversy. They are 19:

❑ It is not necessary that there should be independent confirmation in every detail of the
crime related by the accomplice. It is sufficient if there is a confirmation as to a
material circumstance of the crime.
❑ The confirmation by independent evidence must be of the identity of the accused in
relation to the crime, ie. confirmation in some fact which goes to fix the guilt of the
particular person charged by connecting or tending to connect him with the crime. In

17 1952 AIR 54
18 (1916)2 KB 658
19 Supra note 1
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other words, there must be confirmation in some material particular that not only has
the crime been committed but that the accused committed it.
❑ The corroboration must be by independent testimony that is by some evidence other
than that of the accomplice and therefore one accomplice cannot corroborate the
other.
❑ The corroboration need not be by direct evidence that the accused committed the
crime, it may be circumstantial.

These rules have been restated by the Supreme Court of India with the declaration that the
law is exactly the same in India.

ASSESSMENT AND APPRECIATION OF ACCOMPLICE EVIDENCE

The Supreme Court in Sarwan Singh v. State of Punjab20 laid down the law with respect to
assessment and appreciation of accomplice evidence and also stated several principles and
rules regarding corroboration of accomplice evidence.

The Court stated: “The problem posed by the evidence given by an approver has been
considered by the Privy Council and Courts in India on several occasions. It is hardly
necessary to deal at length with the true legal position in this matter. An accomplice is
undoubtedly a competent witness under the Indian Evidence Act. There can be, however, no
doubt that the very fact that he has participated in the commission of the offence introduces a
serious stain on and Courts are naturally reluctant to act on such tainted evidence unless it is
corroborated in material particulars by other independent evidence. It would not be right to
expect that such independent corroboration should cover the whole of the prosecution story
or even all the material particulars. If such a view is adopted it would render the evidence of
the accomplice wholly superfluous.

On the other hand it would not be safe to act upon such evidence merely because it is
corroborated in minor particulars or incidental details because, in such a case corroboration
does not afford the necessary assurance that the main story disclosed by the approver can be
reasonably and safely accepted as true. But it must never be forgotten that before the court
reaches the stage of considering the question of corroboration and its adequacy or otherwise,
the first initial and essential question to consider is, whether, even as an accomplice, the

20 AIR 1957 SC 637

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approver is a reliable witness. If the answer to the question is against the approver then there
is an end of the matter and no question as to whether evidence is corroborated or not needs to
be considered.

In other words the appreciation of an approver’s evidence has to satisfy a double test. His
evidence must show that he is a reliable witness and that is a test which is common to all
witnesses. If this test is satisfied the second test, which still remains to be applied, is that the
approver’s evidence must receive sufficient corroboration. This test is special to the cases of
weak or tainted evidence like that of an approver”

Thus these tests laid down by the Supreme Court are the guiding principles according to
which accomplice evidence must be appreciated.

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 approver’s 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.

CONCLUSION

The guiding principle with respect to accomplice evidence says that conviction may be based
upon the uncorroborated testimony of an accomplice and 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.
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Accomplice evidence is of extreme importance and can often play the decisive role in a
criminal trial. an accomplice can testify about the entire background and facts and
circumstances of the offence as he was involved in the commission of the offence and has
first hand knowledge of everything related to the offence. Thus Accomplice Evidence is a
necessary evil.

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.
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BIBLIOGRAPHY

BOOKS REFERRED:

• Lal Batuk, The Law of Evidence, ( central law Agency, 23rd edition), 2020

• Singh Avtar, Priniciples of the Law of Evidence, (Allahabad : Central Law

Publications), 2007

WEB LINKS:

• http://www.oppapers.com/essays/A-Critical-Analysis-Of-Accomplice-

Witness/507650 – An Essay on A Critical Analysis Of Accomplice Witness In India