Accomplice

By | December 27, 2019
accomplice

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Accomplice | Overview

In criminal cases many times we see that there are accomplices to the actual criminal. Evidence from accomplice is dealt with in section 133 of the Indian Evidence Act 1872.

Who is an accomplice?

The definition of an accomplice is not given in the Evidence Act 1872. Accomplices are criminals who take part in the commission of a crime. The definition of the term was given in the case of R.K. Dalmia v. Delhi Admin[1], in that case, it was said that an accomplice is a person who is a particeps criminal, except where he was a receiver of stolen property or an accomplice in a previous similar offence committed by the accused when evidence of the accused having committed crimes of identical type on other occasions was admissible to prove the system and intent of the accused committing the offence charged.

A person cannot be said to be an accomplice unless he consciously does the crime with the accused for which he could be convicted for the criminal act. A person who did not take part in the offence but was just present at the time of commission of the crime and he did not make any attempt in order to report about the commission of the crime nor did he made any attempt to prevent the crime cannot be said to be an accomplice to the crime.

Accessories before the fact

All accessories before the fact who participated in the crime are accomplices to the crime. But if their participation is only to the extent of knowledge that the crime will be committed then they will not be called as accomplices to the crime. For being an accomplice to the crime a person has to take part in the same offence like that of the accused.[2]

In the case of Dhanapati De v. Emperor[3], the court said that a witness who helped in the commission of a crime by keeping a lookout whether police are approaching or not is said to be an accomplice.

Accessories after the fact

For a person to be the accessory after the fact, the following three things are necessary as mentioned in the judgement of State of Bihar v. Srilal Kejriwal[4]: –

  1. the felony must be complete;
  2. the accessory must have knowledge that the principal committed the felony; and
  3. the accessory must harbour or assist the principal felon.

In the cases of rape, the prosecutrix cannot be called as an accomplice and her evidence cannot be compared to that of an accomplice’s. However, as a rule of prudence, the court usually looks for some corroboration which satisfies the fact that she is telling the truth and the person being accused of rape has actually done the crime.[5]

In the case of Shri Rakshit Khosla v. State[6], it was said that even if the conduct and the circumstances of a case seems to show that the prosecutrix had given consent for sexual intercourse but the prosecutrix evidence shows that she has been forcibly subjected to sexual intercourse by the accused and the co-accused, the court is supposed to believe the evidence given by the prosecutrix unless there is adequate and material corroboration against her.

Testimony of an accomplice

Section 133 of the evidence act[7] states that “An accomplice shall be a competent witness against an accused person, and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.”

Section 114 illustration (b) of the Indian evidence act states that an accomplice is unworthy of evidence unless corroborated in material particulars.[8] This section states that it is not illegal if the conviction is done even without corroboration. C.J. Peacock stated that, “I am of opinion that a conviction upon the uncorroborated testimony of an accomplice is legal. This is not a new law, nor founded upon a new principle. This point was decided in England, as far back as 1662 after the conference with all the judges.”[9]

In the case of Queen Empress v. Chagan Dayaram[10], the Bombay high court observed that, “The rule in Section 114 and that in Section 133 are part of one subject and neither section is to be ignored in the exercise of judicial discretion. The illus. (b) of section 133 is, however, the rule, and when it is departed from, the court could show, or it should appear, that the circumstances justify the exceptional treatment of the case.”

In the case of Emperor v. Shrinivas Krishna[11], the court said that section 133 is the only absolute rule with regards to the evidence by an accomplice. But illustration (b) of section 114 of the evidence is also a rule that the judge should give regards to. However, it is not a hard and fast rule which is incapable of rebuttal.

In the case of Bhiva Doulu Patil v. State of Maharashtra[12], the court said that the combined effect of section 133 and illustration (b) of section 114 is although it is not illegal to convict an accused solely based on the testimony of the accomplice, the courts will tend not to accept the testimony of an accomplice without corroboration.

Even in civil cases, the courts do not accept the evidence given by an accomplice without corroboration. It is because the accomplice has seriously stained his evidence by participating in that notorious act. This was observed in the case of Surajmal v. Sundarlal Patwa[13].

The reason of not trusting on the testimony or evidence given by an accomplice is the nature of the evidence. The evidence by an accomplice is already tainted since:

  1. he is a person of low character who has participated in a crime and is therefore likely to have no regard to the sanctity of his oath;
  2. he is interested in falsely destroying the facts in order to shift the guilt from himself; and
  3. that he has the inducement of either a promised or implied pardon for his own part in the crime, and is therefore likely to be biased in favour of the prosecution.[14]

In the case of Vali Mahomed (M/s). v. C.T.A. Pillai[15], the Supreme Court held that the evidence given by an accomplice cannot be taken without corroboration. In the case of Chandrakant Vishwanath Jakkal v. State of Maharastra[16], the Supreme Court observed that “It would be impossible, indeed it would be dangerous, to formulate the kind of evidence which should or would be regarded as corroboration. Its 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 extent the rules are clear, i.e. it is not necessary that there should be independent confirmation of every material circumstance in the sense that independent evidence in the case, apart from the testimony of the complainant or the accomplice should in itself be 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 it is reasonably safe to act upon it.”

In the case of Rameshwar v. State of Rajasthan[17], the apex court said that “The rule laid down in King v. Baskerville[18] with regard to the admissibility of the uncorroborated evidence of an accomplice is the law in India also so far as accomplices are concerned and it is not any higher in the case of sexual offences. The only clarification of the rule that is necessary for the purposes of India is where this class of offence is tried by a judge without the aid of a jury.

In such cases, it is necessary that the judge should give some indication in his judgment that he has 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 in that particular case.” It was also said that however, there is no rule that corroboration needs to be done compulsorily before a conviction can be done.


References

[1] AIR 1962 SC 1821

[2] Ratanlal and Dhirajlal, The Law of Evidence, p.749 ed.24

[3] ILR (1944) 2 Cal 312

[4] AIR 1960 Pat 459

[5] Gurcharan Singh v. State of Haryana, AIR 1972 SC 2661

[6] ILR 1969 Delhi 653

[7] Indian Evidence Act 1872, s 133

[8] Indian Evidence Act 1872, s 114

[9] Queen v. Elahee Buksh, 5 WR (Cri) 80 (FB).

[10] ILR (1890) 14 Bom 331

[11] (1905) 7 Bom LR 969

[12] (1962) 65 Bom LR 347

[13] ILR 1965 MP 800

[14] Ratanlal and Dhirajlal, The Law of Evidence, p.754 ed.24

[15] AIR 1961 Bom 48

[16] 1978 Crlj 431 (Bom)

[17] (1952) SCR 377

[18] (1916) 2 KB 658


  1. When Facts not otherwise Relevant become Relevant