An accomplice shall be a competent witness...conviction shall not be illegal merely.....Answer...decided cases.

Question: 'An accomplice shall be a competent witness against an accused person and a conviction shall not be illegal merely because it proceeds upon uncorroborated testimony of an accomplice.' Answer with the help of decided cases. [JJS 2018]

Find the answer to the mains question of the Law of Evidence only on Legal Bites. ['An accomplice shall be a competent witness against an accused person and a conviction shall not be illegal merely because it proceeds upon uncorroborated testimony of an accomplice.' Answer with the help of decided cases.]

Answer

As per the settled position of law, though a conviction is not illegal merely because it proceeds on the uncorroborated testimony of an approver, yet the general rule is not to convict upon the testimony of an accomplice unless it is corroborated in material particulars.

The evidence of an approver does not differ from the evidence of any other witness save in one particular aspect, namely, that the evidence of an accomplice is regarded ab initio as open to grave suspicion.

If the suspicion which attaches to the evidence of an accomplice be not removed, that evidence should not be acted upon unless corroborated in some material particulars; but if the suspicion attaching to the accomplice’s evidence be removed, then that evidence may be acted upon even though uncorroborated, and the guilt of the accused may be established upon the evidence alone.

To understand the correct meaning and application of this term, it is desirable to mention Section 133 of the Indian Evidence Act, 1872 along with Illustration (b) to Section 114 which read as under:-

Section 133: Accomplice of Indian Evidence Act

“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.”

Illustration (b) to Section 114, Indian Evidence Act

"The Court may presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars."

Dealing with the scope and ambit of the above-noted two provisions, the Hon’ble Supreme Court, in Bhiva Doulu Patil v. State of Maharashtra, AIR 1963 SC 599 has held that both the sections are part of one subject and have to be considered together. It has further been held:-

"The combined effect of Sections 133 and Illustration (b) to Section 114, may be stated as follows:

According to the former, which is a Rule of law, an accomplice is competent to give evidence and according to the latter, which is a Rule of practice it is almost always unsafe to convict upon his testimony alone. Therefore, though the conviction of an accused on the testimony of an accomplice cannot be said to be illegal yet the courts will, as a matter of practice, not accept the evidence of such a witness without corroboration in material particulars."

While considering the validity of the approver’s testimony and tests of credibility, this Court, in Sarwan Singh S/o Rattan Singh v. State of Punjab, AIR 1957 SC 637, has held as under:-

“7…..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 in his evidence 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 approver is a reliable witness. If the answer to this question is against the approver then there is an end of the matter, and no question as to whether his evidence is corroborated or not falls 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 the approver….."

8…..Every person who is a competent witness is not a reliable witness and the test of reliability has to be satisfied by an approver all the more before the question of corroboration of his evidence is considered by criminal courts”

In Abdul Sattar v. Union Territory, Chandigarh, 1985 (Supp) SCC 599, where the prosecution had sought to prove its case by relying upon the evidence of the approver, it was held that the approver was a competent witness but the position in law is fairly well settled that on the uncorroborated testimony of the approver, it would be risky to base the conviction, particularly, in respect of a serious charge like murder. Once the evidence of the approver is found to be not reliable, the worth of his evidence is lost and such evidence, even by seeking corroboration, cannot be made the foundation of a conviction.

In Rampal Pithwa Rahidas and Others v. State of Maharashtra, 1994 Supp (2) SCC 73, while considering the very same provisions, this Court has held that the approver’s evidence must be corroborated in material particulars by direct or circumstantial evidence. This Court further held that while considering the credibility of the approver and the weight to be attached to his statement, the statement made in the bail application of the approver can be looked into by the court.