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Evidentiary Value of Accomplice In The Light of Procedural Laws In India

Everything which does not keep pace with the changing needs of the society does not last for a long time and as such law should not be static in nature it should meet the demands of the changing society. Law has been categorically divided in to substantive law and procedural law and the substantive portion of the law is applied in practice through the mechanism provided under the procedural law. The current paper emphasizes upon determining the true meaning and nature of an accomplice. Moreover the paper attempts to deal with the ways and extent how a court of criminal judicature will rely upon the evidence of an accomplice as an instrument for rendering justice.

Accomplice - Meaning

The term “Accomplice” has gained a lot of significance in this modern legal fraternity specifically under the criminal laws in India. Before entering in to the core discussion of my topic adherence to be given to understand the congruence and compatibility of the Indian Evidence Act, 1872 and the Criminal Procedure Code , 1973 so that the topic would get more interesting and valuable one. We know that law has been sub-categorised under the two headings:
1. Substantive Law
2. Procedural Law
and being a legal thinker it is very important for one and all that both this categories of law should be read in conformity, in otherwords both the categories of law should walk together in order to form a harmonious construction.

Can a accomplice be a competent witness ?
Competency of witness is one of the basic fundamental rule which is to be strictly adhered by the court by virtue of section 118 of the Indian Evidence Act, 1872. The competency of a person is one of the vital eligibility and condition precedent for examining a person and the reasonable test which is to be applied that a person should not be prevented from understanding the questions or to give rational answers which is generally expected depending upon his tender age.

Accomplice – Aim And Object

The topic of my present discussion i.e Accomplice is a bit of confusing and varying in nature as sometimes it would make a double opinion both in the form of positive and negative sense. The term Accomplice first appears in section 114 illustration (b) under the Indian Evidence Act 1872 which says that An accomplice is unworthy of credit unless he is corroborated in material particulars and subsequently again in section 133 of the Indian Evidence Act, 1872 it defines 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.

Thus the two sections under the Indian Evidence Act, 1872 is somewhat contradictory in sense and that makes a confusion to draw out a final conclusion. If an accomplice desires to give evidence or depose anything before a criminal judicature, he cannot be simply discarded or thrown out from the eyes of a criminal trial rather he should be considered as a competent witness but it is very pertinent and vital for a criminal court to testify him before any judgment or order is passed by such court on the words of an accomplice.

However sometimes it is also seen that the court is not able to put reliance on the words of an accomplice as for his changing nature as like a ‘chameleon’ changes in the due course of nature. If a person who is found to be giving evidence as a witness against his co-friend accused , then there may be a serious probability that he can also betray the court by miss-guiding the judicature. But still the procedural law entailed under the criminal procedure code gives a special provision under section 306 i.e Tender of pardon to an accomplice.

The section states with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence to which the section applies, the chief judicial magistrate or metropolitan magistrate at any stage of the investigation or inquiry into or the trial of the offence and the magistrate of the first class inquiring into or trying the offence at any stage may tender a pardon to such person on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor in the commission thereof.

However subsequently again under section 307 criminal procedure code which provides for Power to direct tender of Pardon it states that At any time after the commitment of a case but before the judgment is passed, the court to which the commitment is made may with a view to obtaining at the trial the evidence of any person supposed to have been directly or indirectly concerned, in or privy to, any such offence, tender a pardon on the same condition to such person. However both the section implies that a criminal court may presume that an accomplice is a competent witness and the court may tender a pardon to such person on condition of his making full and true disclosure of the circumstances of the case.

The criminal procedure code does not make an effort to elaborate the concept of accomplice and does not employ the word “approver” in any of the above provision. As per the dictionary meaning Accomplice is a person who is also somehow involved in the crime with any other person in the commission of the crime, whether as principal or accessory. In the case of Shankar vs State of Tamil Nadu (1994) 4 SCC 478 , it was held by the court that an accomplice is a person who participates in the commission of the actual crime charged against an accused.

The main target and objective behind section 306 of the criminal procedure code, 1973 is to understood in a wider sense. It has been seen that many a times when a crime is committed in a very crafty and cagey manner so as no clue or evidence can be traced for its investigation or detention, pardon is granted to the accomplice for apprehending and detecting the other offenders, so that the court may reach to a conclusion. The main target of section 306 criminal procedure code was to ensure that criminals who were charged with heinous and grave crimes, do not evade or escape punishment and thus in this way the prosecution uses the instrument of tending pardon to accomplice on a condition that he will give evidence against the former partners in the crime. It is then he is known as an accomplice for turning as a witness or an approver against his crime partners.

The main question which lies in the discussion is that as to what extent the court can keep reliance on his evidence or as to what extent his evidence or testimony can be relied upon for convicting his crime partners or what value the court can give upon the evidence of criminal who has now turned a witness?

However in answering the former questions, we have to focus on the touchstone sections provided under the Indian Evidence Act, 1872 i.e section 133 and section 114 illustration (b). If we strictly adhere to the clear meaning of these sections, then we can undoubtedly find that there is an apparent contradiction between these two sections. Section 133 is a clear cut authorization to the criminal courts to convict on the uncorroborated testimony of an accomplice, but there remains a confusion that since such a witness is a criminal himself he may not always be reliable and are guided by the illustration provided under section 11, that if it is necessary the court should presume that he is unreliable unless his statement are supported by material particulars.

Limitations of The Statute
One of the basic principle which is underlying under the criminal jurisprudence is that conviction or acquittal should always be made in conformity with the principles of natural justice and procedure established by law as provided under the Article 21 of the Constitution of India. Thus if an accomplice has a chance to get exempted from criminal liability, yet the pardon should be granted in accordance in accordance to the provisions entailed under Article 71 and 161 of the constitution of India read with section 432 and 435 of the criminal procedure code, 1973 .

Kinds of Accomplice:

An accomplice is a person who must be a participant in the commission of the same crime. However there are various modes of participation -:
1. Principal in the first and second degree- The principal of the first degree is one who actually commits the crime whereas the principal of the second degree is one who assist in the commission of the crime and as such both the categories will fall under the term Accomplice.

2. Accessories before and after the fact- Accessories before the fact is one who counsels, guides, incites, persuades connives or procures for the commission of the offence and as such they fall under the term of “accomplice” .
Accessories after the fats is one who gives assistance or comforts to someone known to be a felon or with the commission of a felony and as such they fall under the purview of accomplice.

However three essentials conditions are there to prove an accessory after the fact:
i. The crime must be completed
ii. The accessory after the fact should have knowledge that the crime has been committed.
iii. The accessory must assist the principal offender.

Caution Rule
However once it is determined that the person who has appeared as an accomplice to give witness against his crime partners, the question arises as to what worth can be given to his evidence, but however it has been observed from the decades that rule of caution has now became a rule of law, that the words of an accomplice should be testified by the instrument of corroboration. Now there are various reasons why corroboration has been held to be compulsory in judging an accomplice .Firstly, he has been a criminal himself and therefore his words should not carry the same respect as like ordinary law abiding person, secondly if he has betrayed his companions then there may be high probability that he may be faithless to the court, thirdly an accomplice is always a chameleon which changes its color and therefore his words as an evidence are necessary to be corroborated.

The Indian judiciary has interpreted the provisions of accomplice in the light of section 133 and section 114 illustration (b) by means of Harmonious construction in various cases without having any ambiguity. The principal rule which the court believes that reliance can be kept on the uncorroborated testimony of the accomplice but at the same time the rule of common prudence says that the words of the accomplice should not carry the same respect as like a normal man of prudence and as such his words should be testified by means of corroboration. However it has also been seen that different judges have adjudicated the principle in a varied manner and as such there is no hard and fast rule to implement the principle and as such sometimes it leads to injustice.

i. Batuk Lal, Law of Evidence, (Central Law Agency) 2016.
ii. Singh Avtar, Priniciples of the Law of Evidence, (Allahabad : Central Law Publications)
iii. Criminal Procedure Code, 1973 Bare Act (New Delhi :Universal Law Publication) 2017
iv. Constitution of India ( Allahabad Law Agency), 2000

Websites Referred
i. - An Essay on A Critical Analysis Of Accomplice Witness In India
ii. – Legal Definition of Accomplice Witness.

Case Laws
i. Shankar vs State of Tamil Nadu (1994) 4 SCC 478

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