A critical study of accomplice as evidence in a criminal trial

Garima Ojha










Accomplice witnesses are of huge significance in a criminal trial where the probability of finding an eyewitness is almost nil. Section 133 of the Indian Evidence Act, 1872 has hence, laid down a rule of law regarding the inclusion of the accomplice as a competent witness under the condition that they are not co-accused in the trial. However, there is a rider to S. 133 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 which bridge closely the gap between the crime and the criminal.

This research adds to the existing literature by tracing the development of accomplice witness in legal jurisprudence and investigating the scope and extent of corroboration required to fulfil the requirement laid down in illustration (b) to Section 114 of the act.

I. Introduction

The rules of evidence have always been an indispensable part of the Indian legal tradition. It accords them the rules and principles to govern the proofs of the facts in a trial and serves as the most important component of dispute redressal. The significance of evidence is synonymous to that of logic to reasoning as without it the trials would be indefinitely prolonged which would be detrimental to the public and vexatious to the suitors.[2] It is defined by Bentham as “any matter of fact, the effect, tendency or design of which is to produce in the mind a persuasion affirmative or dis-affirmative of the existence of some other matter of fact.”[3] It is that determinative factor that can either convict or acquit the accused.

The term accomplice means in its very basic essence a person who had significant involvement and participation in the commission of a crime. Premised on this understanding an accomplice witness can be understood as a witness to a crime who was connected under the ambit of Accomplice, or Accessory to the commission of crime by an unlawful act or omission. Even though no definition of the word ‘accomplice’ can be found in the legislation that consolidates the rule of evidence in the Indian jurisdiction- the Indian Evidence Act, 1872 (hereinafter referred to as ‘the act’), Section 133 of the act deals with the competency of an accomplice witness against the accused. Any conviction that ensued after the proceedings cannot be declared as illegal if it proceeds upon the uncorroborated testimony of an accomplice.

One must understand the paradoxical situation that the courts have to wade through in order to render justice to a principal offender. There might be a lack of trust and reliability in the accomplice’s evidence, but their evidence is an invaluable asset in crime detection and for justice deliverance. The possibility of finding an eye-witness in most of the criminal cases is significantly nil which emphasises on the necessity of an accomplice witness.

The competency of an accomplice witness hence has been made a part of the law of evidence as it has continually been a subject of discourse in various judicial pronouncements. It has been the Indian court’s predicament as they fail to settle down on prudent way other than relying on the accomplice’s testimony that could ensure the conviction of the guilty for the crimes. Section 133 of the Indian Evidence Act, 1872 has hence, laid down a rule of law regarding the inclusion of the accomplice as a competent witness under the condition that they are not co-accused in the trial. Section 114 of the Act on the other hand has postulated a rule of prudence for the presumption of unworthiness of any credit to accomplice’s testimony if unsubstantiated by any corroboration. In this backdrop a question arises as to whether there is incongruity between both the provisions. The resolution of this confusion has been done by the courts of Indian jurisdiction and English jurisdiction that have stressed on the necessity of corroboration whilst elucidating upon the nature and extent of corroboration.

In this research paper, the researcher will delve into determining the meaning and nature of an accomplice and would deal with sundry categories of such witnesses as evidence. Over the course of analysing the manner of competency of an accomplice witness in a criminal trial by looking into the judicial dicta of Indian jurisprudence the researchers would also claim the need for receiving accomplice witness for delivering the justice due to the parties. The researcher would also briefly analyse the juxtaposition of Section 114 and Section 133 of the Indian Evidence Act, 1872 to argue upon the necessity of corroboration under the umbrella of accomplice evidence law. The first part of this project is an introduction to the concept of an accomplice and his role as a witness to convict the accused in a trial at criminal judicature. The second part focuses on the various categories of such accomplice witness whilst unravelling its competency as evidence by going through an array of cases. Furthermore, the paper will deduce the evidentiary value of an accomplice by determining the nature and extent of corroboration to comprehend the need for application of corroboration whilst appreciating the evidence of an accomplice.

II. Accomplice Witness

The term accomplice has attained a profound significance in the modern legal criminal jurisprudence in India. In general lexicon it means a person who has concurred in the commission of an offence and was connected on his part to the unlawful act or omission before, at the time or after its occurrence. The Black’s Law Dictionary defines an accomplice as a person who participated in the offence and is liable in a criminal action for being present at the place of crime and for having encouraged or assisted in its commission.[4] To be precise the person is either a guilty associate or a partner in crime[5].

The Indian Evidence Act, 1872 has not explicitly defined an accomplice and therefore its meaning emanates from the understanding of legislation and the judicial interpretations. Its notion has been well incorporated in the legal ethos of India as the court has defined accomplice in Chandan v. Emperor[6]as one who can be associated with the offender or offenders in the commission of a crime or one who voluntarily helps and cooperates with others in the commission of the crime. That is to say an accomplice includes all the particeps criminis[7] (a partner in crime) who is a guilty associate in a crime and there exists a possibility of joint conviction with the principal offender.[8]Thus, the essential prerequisite for proving a person as accomplice can be traced to the tenet of wilful participation in a crime.

An accomplice becomes an approver if he is granted a pardon under Section 306 of the Code of Criminal Procedure, 1973 and then consequently, becomes a prosecution witness.[9]However, it is on this premise that when he appears as a witness for the prosecution against the accused person with whom he acted together in the commission of the crime, the question arises regarding the testimonial value of a former criminal turned witness. An accomplice who has been made an approver eventually in order to become a prosecution witness or to say an ‘accomplice witness’ has to cross two threshold laid down by the court in Shanker v. State of Tamil Nadu[10]. The first test being that of reliability of the evidence and the second being that of the existence of sufficient corroboration for such testimony. Often it appears as an unreliable source to base a conviction and crime solving but accomplice witness a quintessential aspect of the Law of Evidence.

III. Categories of Accomplices

It has long been settled that wilful participation in the commission of a crime is the quintessential condition for a person to be established as an accomplice. However, there is preponderance in the number of ways in which participation to crime can be categorised[11]. They are broadly classified as Principal offender of First Degree and Second Degree, Accessories before the fact and Accessories after the fact.

A Principal offender of First Degree can be articulated as a person who actually commits the crime by undertaking the unlawful act or omission.[12]Meanwhile, the principal offender of the second degree is a person who either abets or aids the principal offender in the commission of crime.

Accessories before the fact are the person who abet, procure, incite or counsel for the commission of a crime but they themselves do not participate in the commission of crime. That is a person is an accessory before the fact if he connived and had significant involvement in the participation for the preparation of crime. It is hence, just another category of accomplice but it is not synonymous with accomplice as the latter is tried in a court of criminal judicature for an offence he committed.

A person who gives the sanctuary of protection and comfort to a person who has wilfully committed a crime is known as the accessories after the fact. If help is provided to the accused in the form of assistance in escaping from punishments or form being arrested then such persons are called harbourers.[13]

IV. The Competency of Accomplice Witness

The prerequisite of competency of a witness in a criminal trial can be traced to the Section 118 of the act wherein the only threshold that such a person must pass through is that there capability to understand the questions posed to them and to give rational answers to those questions is not hindered by the virtue of “tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.”[14]The competency of an accomplice witness has been further been dealt within the act, in the provision of Section 133 wherein a conviction based on uncorroborated testimony has been legalised. Ensuring that accomplice witness is not a co-accused under trial in the same matter is another criterion for the competency of an accomplice witness. The tenets of competency of a witness have been born and evolved in the shadows of the judicial dicta of the Indian jurisdiction.

One of the notable court opinions in this regard is that of the fact that recognising the competency of an accomplice witness by virtue of the process of law is not a way out for denuding him of his character as an accused. The entire edifice of the concerns for the credibility of an accomplice witness is built upon this well acknowledged adage that he still remains a participes criminis[15]. Competency of an accomplice witness has various facets as has been interpreted in the judicial decisions. For instance, an accomplice becomes competent to testify before a court once it accepts the pardon under Section 306[16]of the Criminal Procedure Code, however, there must a withdrawal of prosecution and formal discharge of the person who is to be examined on oath as a witness under Section 321[17]of the Criminal Procedure Code. Even if there is an omission in recording the discharge, the accused is bestowed with the virtue of competency as a witness as soon as prosecution is withdrawn.[18]

The analysis of the principle of competency of accomplice witness under the umbrella of Article 20(3) of the Indian Constitution is just an extension of our judicial understanding on the subject so far. A witness is granted the constitutional right to not to be a witness against his own cause, and a co-accused or a partner in crime accepts pardon on his own free will under the prerequisite of a true and full disclosure in his testimony, in his vested interest and under the condition of not giving a self-incriminating evidence. Any failure in this regard however, would not affect the law in Section 306 and Section 308 of the Criminal Procedure Code for being made a witness. [19]

It is solely upon the court if they find an accomplice competent for a witness in the particular case and for that it may take a gamut of conditions like behaviour of witness or inclination to speak truthfully to be in consideration for after all it is the weight and value of their testimony[20] that would change the course for justice.

V. Admissibility of Evidence of Accomplice

A. The Effect of Section 133, Indian Evidence Act, 1872

Even though accomplice is usually interested and always infamous witnesses, and their testimony is admitted from necessity, it is often impossible without having recourse to such evidence, to bring the principal offenders to justice.[21]S. 133 of the Indian Evidence Act[22] provides that an accomplice is a competent witness against an accused person and a conviction is not illegal just because it proceeds upon the uncorroborated testimony of an accomplice. Thus, the effect of this provision is that an accused may be legally convicted on one single evidence, given by an accomplice. However, there is a rider to S. 133 in illustration (b) to S. 114 of the act[23]which provides that the Court may presume that an accomplice is unworthy of credit unless he is corroborated in material particulars. [24]

B. Illustration (b), Section 114 - The Cautionary Provision

The cautionary provision mentioned in illustration (b) to S. 114 embodies a rule of prudence because an accomplice who has betrayed his associates, is not a fair witness and it is possible that he may, to please the prosecution, weave false details with those which are true and concoct a whole new story appearing true, and there is a real danger that there may be no means at hand to sever the lies from truth. So, courts before acting on an accomplice evidence, insist on corroboration in material respects as to the offence and also implicating in some measure, however small, each accused named by the accomplice. In this way, the commission of the offence is confirmed by some competent evidence other than the single or unconfirmed testimony of the accomplice and the scope of inclusion by the accomplice of an innocent person is ruled out. 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.[25]

VI. Corroboration of Statements

An accomplice's statements have to be corroborated in material particulars which bridge closely the gap between the crime and the criminal. The touchstone of independent credible evidence is needed to give the needed assurance for acceptance on his testimony on which a conviction may be done.[26] The reasons for insistence on corroboration of the testimony of an accomplice are that an accomplice might swear falsely in order to shift the guilt from himself and that he is an immoral person having participated in a crime who may not have any regard to the oath and, on his own admission, he is a criminal giving evidence under a likelihood of pardon with the hope of getting his own freedom.[27]

There is nothing technical about the idea of corroboration. When in the ordinary affairs of life, one is doubtful about a particular statement one naturally looks to see whether it fits in with other statements or circumstances relating to that particular matter; the better it fits in the more one is inclined to believe it. The doubted statement is thus corroborated to a greater or lesser extent by the other statements or circumstances with which it fits in.[28]

The purpose of corroboration is not to lend validity or credence to evidence which is deficient, suspect or incredible but only to confirm and support that which as evidence is sufficient, satisfactory and credible.[29]

A.  Scope of corroboration required

i. Nature and extent of corroboration required

There should be corroboration in material particulars of the accomplice's statements, as he is considered to be a self-confessed traitor.[30]The corroboration in the full sense means corroboration not only regarding the facts of the crime but also regarding the association of the co-accused with that crime.[31]It is neither possible nor practical to formulate exact principles laying down the kind of evidence which should be regarded as corroboration as its nature and extent must necessarily vary with the circumstances of the case at hand and also according to the offence involved. However, certain general rules have been laid down[32]:

Firstly, independent confirmation of every material circumstance to the extent that the independent evidence in the case, apart from the testimony of the accomplice is in itself sufficient to sustain conviction. All that is necessary is that there must be some additional evidence indicating the probability that the story narrated by the accomplice is true and it is reasonably safe to act upon it.

Secondly, the independent evidence must not just make it safe to believe that the crime was committed but must also in some way reasonably connect the accused with it by confirming in some material particular the testimony of the accomplice the accused committed the crime in question. This does not mean that the corroboration needs to cover all the circumstances necessary to identify the accused with the offence. All that is required is that there should be independent evidence which make it reasonably safe to believe the witness's story that the accused was involved in committing the offence. The reason for such a rule is that a man who has been guilty of a crime himself will always be able to concoct a story based on the facts of the case, and if the confirmation is done only on the truth of that history derived from the story, without identifying the persons that would not translate into any corroboration at all as it does not show that the accused participated in it.

Thirdly, the corroboration must be done from independent sources and therefore, the testimony of one accomplice is not sufficient to corroborate that of another. However, in certain cases, the circumstances may be such that make it safe to allow such corroboration and in those special circumstances, a conviction would not be illegal.

Fourthly, the corroboration need not be a direct evidence that the accused committed the crime. Circumstantial evidence connecting the accused with the crime would also be sufficient. Otherwise, many crimes which are usually committed between accomplices in secret, like incest, offences with females and unnatural offences would never be brought to justice.

ii. Nature of evidence

Every detail of the story of the accomplice does not need to be confirmed by independent evidence although some additional independent evidence must be taken into account to check whether the approver is speaking the truth and there must be some evidence, direct or circumstantial which connects the co-accused to the crime independently of the accomplice. [33] The corroboration does not have to be direct evidence that the accused committed the crime; it is sufficient if there is merely a circumstantial evidence of his connection with the crime.[34]

iii. Judging value of confessions according to circumstances of the case

When the evidence of an accomplice is inherently improbable then it cannot derive strength from corroboration.[35]Making of a number of confessions without a chance for prior consultation between the confessing co-accused may be taken into account but these confessions must inspire confidence both in its content and in the manner and circumstance of its making. If there arises any suspicion of false implication, the confession must be discarded as being of no probative value. Such suspicion may result from a variety of circumstances such as, why the accused confessed; whether he expected a gain for himself by implicating his co-accused, the part he assigns to himself and to his co-accused, whether he availed some opportunity for being coached to narrate a false story.[36]

When there is a single retracted confession corroborating an accomplice evidence, the caution must necessarily be even greater and the probative value smaller. Even if there are more than one such confession and they are proved to be given independently and without an opportunity of a prior meeting of minds, their probative value may increase but the need to exercise caution remains because a number of suspects may be prompted by the same or different motives to implicate a particular individual. It is only when false implication is excluded after a close scrutiny that the confession of a co-accused can be used to lend assurance to other evidence. [37]

B.  Admissibility of Uncorroborated Evidence

i. Position in English law

The English rule with regard to this was laid down in Rex v. Baskerville that if even after taking proper caution by the judge, the jury convicts the prisoner, the Court will not quash the conviction merely upon the ground that the testimony of the accomplice was uncorroborated.[38]The rule laid down in Baskerville case regarding the admissibility of uncorroborated testimony of an accomplice was discussed in detail in Rameshwar v. State of Rajasthan. It was laid down that it is essential for the judge to give some indication in his judgment that he has considered the case with regard to the rule of caution in mind and should also give reasons for considering it unnecessary to require corroboration on the facts of the particular case before him and show why he considers it proper to convict without corroboration in that particular case.[39]

Although illustration (b) to Section 114 provides that the Court may presume that the evidence of an accomplice is unworthy of credit unless corroborated, ‘may’ is not must and no decision of court can make it must. The Court is not obliged to hold that the accomplice is unworthy of credit. It ultimately depends upon the opinion of the Court as to the credibility of evidence tendered by an accomplice.[40]

ii. Value of a confession compared with accomplice evidence

A confession has been placed on a slightly higher level than accomplice evidence A confession intended to be used against a co-accused stands on a lower level than accomplice evidence because the latter is tested by cross- examination while the former is not.[41]Confessions of co-accused are not evidence but if there is other evidence on which a conviction can be based, they can lend assurance to the verdict. A retracted confession must be looked upon with greater concern unless the reasons given for making it in the first instance (not for retraction) are on the face of them false.[42]A retracted confession cannot go further or have higher value than accomplice evidence.[43]

However, there is a strong case for the opposite view as well. A retracted confession is admissible in a court of law against a co-accused under Section 30 and the amount of credibility to be attached to it depends on the circumstances of the particular case. However, an examination of the opinion expressed by various high courts indicates that their opinion is strongly tilted in the view that its value is extremely weak and conviction cannot be done without fullest and strongest corroboration of material particulars. Therefore, as a matter of prudence and practice, a court should not act upon it to convict a co-accused without corroboration.[44]

VII. Conclusion

Evidence serves as that determinative factor which can either convict or acquit the accused. To understand the position of accomplice in the act, we have seen what the word accomplice means in the general sense of the word since it has not been defined in the act, which category of witness it falls under, its value in crime detection, the competency of an accomplice witness against an accused and its evidentiary value, the paradoxical situation that arises due to the rule of prudence enshrined in Section 114 of the act and its implications, the reasons for according a doubtful status to accomplice evidence, the nature and extent of corroboration required to rely on such witness to convict the accused and how judicial pronouncements have attempted to reconcile the two provisions.

Having gone through the basis and all major developments in the jurisprudence of accomplice witness one can conclude by saying that; the rule of prudence must be given due consideration due to certain inherent dangers most notably, the possibility that he may, to please the prosecution, weave false details with those which are true and concoct a whole new story appearing true. At the same time, it is also necessary to understand that direct evidence proving accused’s participation must not be insisted on in certain crimes like bribery and sexual offences as, such insistence on independent evidence will never be able to ensure justice to the victim.

Thus, courts of law need to employ a practical approach and interpret these two principles in light of the facts and circumstances of the case at hand to ensure that truth and justice prevail.

[1] Garima Ojha, 3rd year BA. LLB student at Gujarat National Law University,

Ilina Peehu, 3rd year BBA. LLB student at Gujarat National Law University.

[2] 1 Mahim Chandra Sarkar, Sarkar's Law of Evidence in India, Pakistan, Bangladesh, Burma & Ceylon (Wadhwa & Co. 1999).

[3] 6 Jeremy Bentham, The Works of Jeremy Bentham(Edinburgh: William Tait, 1838).

[4] Garner, Bryan A. and Henry Campbell Black, Black’s Law Dictionary (1999).

[5] Ashok K Jain, Law of Evidence (Ascent Publication 2018).

[6] Chandan v. Emperor, AIR 1930 All 274.

[7] Id.

[8] R.K. Dalmia v. Delhi Administration, (1963) 1 SCR 253.

[9] Shankar v. State of Tamil Nadu, (1994) 4 SCC 478.

[10] Id.

[11]Jagannath v. Emperor, (1920) 57 Ind Cas 93.

[12] Ismail Hasan Ali v. Emperor, AIR 1947 Lah. 220.

[13] Gauri Agrawal, Authenticity of Accomplice Evidence, 1 IJLMH 1 (2018).

[14] Indian Evidence Act, 1872, § 118, No. 1, 1872 (India).

[15] Kundan v. R, AIR 1931 Lah 353.

[16] Code of Criminal Procedure, 1973, § 306, No. 2, 1974 (India).

[17] Code of Criminal Procedure, 1973, § 321, No. 2, 1974 (India).

[18] Sheropati v. R, 18 CWN 1213.

[19] 1 Mahim Chandra Sarkar, Sarkar's Law of Evidence in India, Pakistan, Bangladesh, Burma & Ceylon (Wadhwa & Co. 1999).

[20] Gauri Agarwal, supra note 12.

[21] 1 Taylor, A Treatise on the Law of Evidence(1931).

[22] The Indian Evidence Act, 1872, §133, (India).

[23] The Indian Evidence Act, 1872, §114(b), (India).

[24] Haroon Haji Abdulla v. State of Maharashtra, 1968 SCR (2) 641.

[25] Id.

[26] Suresh Chandra Bahri v. State of Bihar, AIR 1994 SC 2420.

[27] M.O. Shamsudhin v. State of Kerala, 1995 SCC (3) 351.

[28] D.P.P. v. Kilbourne, (1973) 1 All ER 440.

[29] DPP v. Hester, (1972) 3 All ER 1056.

[30]Jnanendra Nath Ghose v. The State of West Bengal, AIR 1959 SC 1199.

[31] Ram Prakash v. The State of Punjab, 1959 SCR 1210.

[32] Rameshwar v. The State of Rajasthan, AIR 1952 SC 54.

[33] Id.

[34] Rex v. Baskerville, (1916 (2) KB 658).

[35] G.S. Bakshi v. Delhi Administration, AIR 1979 SC 569.

[36] Rameshwar, supranote 10.

[37] Rameshwar, supranote 10.

[38] Rex, supranote 12.

[39] Rameshwar, supranote 10.

[40] K. Hashim v. State of Tamil Nadu, (2005) 1 SCC 237.

[41] Subramania Goundan v. The State of Madras, 1958 SCR 428.

[42] Nathu v. State of Uttar Pradesh, AIR 1956 SC 56.

[43] Emperor v. Lalit Mohan Chuckerbutty, (1911) ILR 38 Cal 559.

[44] Ram Prakash v. The State of Punjab, 1959 SCR 1210.