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Admissibility Of Accomplice Witness As Evidence In India

Accomplice witness testimony is often a major component of the state's attempts to secure a criminal conviction against an accused person. This is an important factor to take into account when one considers that in India, it is more common for a criminal case to be initiated through a private complaint filed by the victim, as opposed to one initiated by the state itself. In this context, an 'accused person' is technically defined as a person against whom an offense is registered by a complaint or any other informant.

So this will include persons who are targets of criminal prosecution stemming from allegations levelled against them in private complaints. This broadly defines the term 'accused person' and could possibly include persons who have become accused in criminal cases based on evidence of which an accomplice witness has been the source. Therefore, studies that examine the import of accomplice witnesses in terms of their interactions with the state-run criminal justice system are not meaningless or irrelevant to the general trend of a criminal case in India.

But taking into account the Criminal Procedure Code, Sec. 133 defines an accomplice. It says, "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." Therefore, it is seen that under the law, an accomplice can be a witness in court in the case tried on them or the other accused person. Thus, they are a person who has committed a crime but is giving or tampering to give evidence before a magistrate or a police officer directing the commission of the offense. So we can say that an accomplice witness is a witness who comes forward to give evidence, and they are also a victim in a way.

An accomplice witness is a person who is in some way concerned in the commission of a crime or a person who has taken part in an offense. An accomplice is someone who is allied with a criminal defendant accused of a crime, either before or during the commission of the crime, and who aids, abets, assists, advises, or is another accessory to the planning or committing of the offense. An accomplice is the person who should be jointly tried and may be jointly punished with the person who has actually committed the offense. Therefore, it is vividly clear that an accomplice is a person who is involved in criminal activities or the commission of the offense, and they are a person who has committed a crime.

Definition of an Accomplice Witness

An accomplice witness is one who is in some way concerned in the commission of a crime or who is an accomplice or partner in the guilt. The first and foremost condition for becoming an accomplice witness, according to the Indian Evidence Act, is that the person concerned should be "a competent witness" under S.118 of the Indian Evidence Act. He should be an adult of sound mind and not disqualified by any law to give evidence. Under the section, an offence is a legal wrong and 'person' includes any company or association or body of persons, whether incorporated or not.

Thus, an accomplice is a person who takes a major part in committing a crime, whereby an offence is committed. For instance, there is an offence of cheating to murder and there is a witness of what took place during these offences, the person is an accomplice. He might not be an accused providing he is 'concerned in the commission of the offence'.

Mit Singh case is a good example of this, as aforesaid in the facts. But a witness of theft in an offence of robbery is not an accomplice. Generally, a person who does the actus reus of an offence is a principal, but there are many offences which can only be committed by more than one person, e.g. robbery, joint family corruption, and they share equal criminal liability with the principal. Now, those persons are also accomplices and are said to have an equal share in the commission of the offence. But a person who only abets the commission of an offence is an abettor and a person who falsely administers to procure abortion is a woman for translation. These are "accusations" of the ancillary offences and such persons are not accomplices to the offence. (Nair, 2023) (Shirali, 2020)

Importance of Accomplice Witness Testimony

Accomplice witness is an important witness in the judicial system of every country where criminal justice system exists. His evidence is treated differently from that of an approver in that in the case his evidence must always be corroborated whilst in the case of an approver it is not necessary unless the court requires it. An accomplice is a person who has taken part in the commission of a crime or in the same series of acts which is alleged against the accused. Normally he is the perpetrator or one of the perpetrators of the crime and his evidence is often tendered with a view to obtaining a pardon. Accomplice can be considered as a violator of the law who is giving evidence in the

hope of escaping punishment. With a view to scaling down the stringency of the rule, the Indian Evidence Act has chosen to treat the evidence of an accomplice in an unsatisfactory case as heinous, to be put on par with the evidence of an approver. Consequently, the attempts to improve the situation of the accomplice witness have noticeably been at the cost of lowering the status of an approver. (Yadav, 2021)

Admissibility of Accomplice Witness Testimony

The decision in Longwave has impacted the course of criminal law in South Africa, as it has been adopted and applied by our highest courts in many other respects. This same test was employed at the International Criminal Tribunal for the former Yugoslavia, where it was held that the surrounding circumstances must significantly implicate the accused. This has been interpreted as a directive to convict an accused in a case in which the evidence of an accomplice is the sole evidence against him, only if the circumstances surrounding the crime and the witness's evidence together lend credence to guilt and exclude any other reasonable inference - Limaj Ilir case, IT-03-66-T, 30 November 2005. (Thusi and Selepe2023)

An approach has been formulated in S V. Longwave 1976 (1) SA 230 (A.D) which remains the locus classicus on this issue. It was said there that the real test of the trustworthiness of evidence of an accomplice is whether corroboration apart from his evidence will implicate the accused. This test has been frequently cited in the annals of South African law and it has been employed in a variety of contexts ranging from a consideration of the weight to be attached to accomplice evidence to consideration of the proper test for a discharge at the close of the prosecution case.

One of the issues before considering the admissibility of evidence of an accomplice is the approach and methodology. There has been no generally approved definition of "approach" and "methodology" in this context, not to say agreement on the distinction between the two terms. One understanding is that the "approach" refers to a general abstract direction in considering cases of a certain class, while the "methodology" refers to the immediate steps taken in a particular case to give effect to the approach - R. v. Stewart and Rouse [1975] 3 ALL E.R. 92.

Evidently, there has been no change in the law that an accused can be convicted on the uncorroborated evidence of an accomplice - per Viscount Simon in Baskerville [1916] A.C. 273 at 318. This is not to say that an accused cannot be convicted based on such evidence, but only to emphasize that corroboration remains a necessary element in assessing whether it is safe to act on such evidence.

The previous view was that the evidence of an accomplice should not be believed unless it is corroborated in material particulars - R. v. Muhammad [1936] 2 ALL E.R 440. This view has now been rightly rejected. It is no longer the law that the evidence of an accomplice is to be treated with suspicion. However, the courts are now directed to treat an accomplice as a competent and credible witness.

Then, while retaining his evidence as evidence in the case, the courts proceed to consider what value should be attached to it. This puts the courts in a difficult position, requiring them to give some sound reasons for holding that the witness's evidence should be rejected without there being any real test formulated in terms of law as to when a court should act upon it. (Baker, 2020)

Admissibility of accomplice witness is one of the most controversial topics under the law of evidence. An accomplice witness is someone who testifies for the prosecution and provides evidence against their former friend and partner in the crime. Both English law and Indian law have undergone radical changes regarding the approach to the credibility and trustworthiness of accomplice evidence.
  1. Legal Provisions for Admissibility in India
    With reference to the meaning of the term 'competency', it only means that the witness is able to take an oath and give evidence. It does not determine the quality of the evidence or whether the same will be creditworthy or reliable.

    There are conflicting views regarding whether an accomplice is a competent witness or not. One view is that an accomplice is competent as the law does not debar him in view of Section 133, but his evidence is not credible and must be corroborated. The other view is that the competency of an accomplice to give evidence has been modified by the necessity of Section 114 illustration (b). However, it is now well settled that an accomplice is a competent witness and can be subjected to cross-examination like any other witness.

    This is discussed with reference to the Indian Evidence Act as an accomplice is a competent witness and Section 133 provides that a witness who is competent to give evidence and is not expressly declared to be incompetent may give evidence of any matter of fact. These provisions come into play when the prosecution relies on evidence given by an accomplice and are essential to determine whether the evidence can be accepted or if it will be a case of no evidence. As pointed out earlier, an accomplice is a competent witness. Now, it has to be determined whether the evidence given by him will be admissible or not. (Stephen, 2023).
     
  2. Criteria for Admissibility
    In India, an accomplice is a competent witness. The general rule is that the evidence of an accomplice should be viewed with suspicion and acted upon with caution. It is unsafe to base a conviction on the testimony of an accomplice unless it is corroborated in material particulars. The Supreme Court has said that it is the duty of the court to scrutinize the evidence of the accomplice with great care and only after coming to the conclusion that it is true and reliable, it should look for corroboration.

    An accomplice cannot become a competent witness by obtaining a pardon because a person is not entitled to purchase their own evidence by confessing their guilt and implicating their confederates in order to secure a lesser punishment. But a pardon makes them a compellable witness, as without it, they are entitled to claim privilege against self-incrimination. The distinction between a competent and a compellable witness has been clearly brought out in Section 133 of the Evidence Act.
     
  3. Judicial Approach to Admissibility
    In light of the legislative provisions to traffic accomplices daunt testimony, the judicial approach in regarding the said evidence assumes significance. The Indian Evidence Act leaves the appreciation of the testimony to the discretion of the judge. But judicial opinion oscillates between two extremes, one of regarding the evidence as wholly unworthy of credit and the other of treating it at par with that of an approver.

    Both these views are untenable. Legal annals are replete with instances of acquittals due to lack of corroboration to the accomplice evidence or material corroboration, having led to the miscarriage of justice in convicting an innocent person. Judicial scepticism on the one hand subjects the accomplice to stringent cross-examination and on the other forces the prosecution to adduce further evidence lest the accomplices daunt testimony be rendered useless. This situation often compels the accomplice to be transformed into an approver.

    It is submitted that accomplice evidence when considered, independently of other evidence and without his being declared an approver should be subjected to three distinct stages of an examination by the judge as to its admissibility, examination and scrutiny as to its veracity and finally the warning to the jury. The following is the suggested formula for determining the question of admissibility:
    1. There must be proof aligned of the guilt of the accused.
    2. The testimony must be such that a reasonable tribunal might credit it.
    3. The nature and extent of the corroboration must be such to control the criminal liability of the accomplice.

    This could brush aside the necessity of corroboration rule and the impugned section 133 of the evidence act, enforce the spirit of section 30 and inculcate common sense in electoral its value as evidence and the need to use it as a tool of conviction, keeping an eye on the higher goal of justice. (Nagpal, 2020)

Evaluation of Accomplice Witness Testimony

Please note that the term "corroboration" simply refers to evidence that confirms the accomplice's evidence. It is stated that corroboration of an accomplice is not a rule of law but a rule of prudence. As a witness of a court, it is desirable in the interest of justice to demand that testimony be scrutinized with care. The value of an accomplice's testimony, which is a matter of common knowledge, should be tested by the light of surrounding circumstances. The object sought to be accomplished by corroboration is not to support the testimony of an accomplice witness, but to test its veracity. It is considered that the case should go to the jury if there is some evidence capable of being believed in corroboration, which implicates the accused. Unless the accused is being acquitted, if no such evidence is available.

When evaluating the testimony of an accomplice witness, certain factors must be considered. An accomplice is an interested party in the sense that he is being prosecuted for the offense with which the accused is charged, or is in some way involved in it. Two facts must be remembered while evaluating an accomplice witness. First, he is a competent witness, and his evidence is subject to the same rules of assessment as applicable to the evidence of any other witness. This means that an accomplice witness can be believed and convicted based on his uncorroborated testimony. Second, the evidence of an accomplice is weak, and it must disclose that he is speaking the truth. This means that his evidence must be corroborated on material particulars. Corroboration is not a sine qua non for prosecutions in which the accused is being tried based on accomplice evidence, but it is required as a matter of prudence. The necessity of corroboration is higher in serious crimes as opposed to light ones, and in convictions as opposed to acquittals.
  1. Corroboration Requirement
    This provision clearly represents a departure from the previous law, and the legislature believed that it would better serve the interest of justice. Although it has understandably been met with some criticism.

    However, at the same time, the provision creates a presumption to the effect that an accomplice is not worthy of credit unless his testimony is corroborated. While this in itself is not fatal to the burden of an accused to deny or explain the incriminating evidence, it does impose a burden on the prosecution to adduce such corroborative evidence when relying upon accomplice testimony.

    This provision attempts to recreate a middle ground in which the rule of prudence is somewhat retained. It does this by assuming that an accomplice is unworthy of credit unless his testimony is corroborated in material particulars. However, it does not require general corroboration as the previous law provided. Thus, a conviction is no longer vitiated merely because it is based solely on the uncorroborated testimony of an accomplice. Therefore, the strict ban on such a conviction is removed.

    This rule came under attack in several decisions during the last few decades. In 1980, the law commissioners recommended in their 69th report that this rule was unsound and unduly favoured the accused. They argued that it was therefore unjust. This report was addressed in several subsequent decisions, culminating with the Supreme Court's examination of this rule in Andhey Gound v. State of Madhya Pradesh [1986]. This decision was the watershed and ultimately led to the partial abolition of the said rule by the enactment of section 114 B of the Evidence Act.

    Subsequently, in Bhubon v. The King [1949], the Federal Court, the leading predecessor to the Supreme Court of India, interpreted this provision as imposing a ban on the conviction of an accused person based solely upon the testimony of an accomplice. This imposed a higher burden upon the prosecution than merely requiring corroborated testimony to support an accomplice conviction. This ban on conviction based solely on accomplice testimony became the so-called rule of prudence developed through case law. It stated that while it was not illegal to convict solely based upon the testimony of an accomplice, it was not safe to do so. Therefore, as a matter of practice, courts should not convict on the uncorroborated testimony of an accomplice.

    At one time, the common law required that the testimony of an accomplice be corroborated in order to support a criminal conviction. This was also the rule in India as set forth in several decisions of the Privy Council promulgated in the late 19th and early 20th centuries. Section 133 of the Indian Evidence Act expressly codified this rule, providing that an accomplice is a competent witness against an accused person and a conviction is not illegal merely because it proceeds based on uncorroborated testimony of an accomplice. However, it is not safe to base a conviction upon such testimony.
     
  2. Factors Considered in Evaluating Credibility
    1. Characteristics of the witness: In the examination of the characteristics of a witness, the judgments of Chhagan Ram and Raj Kumar provide a total of seven particular factors that may affect the credibility of witness testimony. These are: bad antecedents, enmity with the accused, previous criminal record, animus against the accused, professional witnesses, conduct during the trial, and the general demeanor of the witness. While not all of these features will be applicable to every witness, or of equal importance to the assessment of their credibility, they do provide a useful checklist of the various factors that should be taken into account when considering the value of a witness' testimony.
       
    2. Circumstances of the crime: In cases where the witness is implicated in the crime as a result of their alleged involvement, and has received a pardon under section 306 or 308 of the Criminal Procedure Code, it has been held that the testimony of such a witness is akin to an approver. As frequently stated in judgments dealing with the credibility of an approver's testimony, the fact that the witness is the real culprit is a circumstance that goes against the prosecution case, which is of greater importance when considering cases where the person giving evidence is the sole or main witness to the offence in question.
       
    3. The landmark judgment in Dhanpat v State of Uttar Pradesh: highlighted concerns with the traditional use of a two-pronged test for accomplice witness testimony - i) whether to believe the witness, and ii) whether to rely upon his evidence. The latter requirement was interpreted as placing accomplice evidence on par with hearsay evidence, as both could be believed, but not used for a conviction without corroboration. Subsequent decisions have led to some reform to this approach, instead focusing on the assessment of witness testimony through consideration of the circumstances of the crime, and the characteristics of the witness, to understand their personal interest in the case. (Shirali, 2020)
     
  3. Role of the Judge and Jury
    In evaluating the credibility of an accomplice witness, both in determining the sufficiency of corroboration and the weight to be given to his testimony, it is clear that judges and juries will be considering and weighing essentially the same factors. This symmetry, together with the fact that the sufficiency of the corroboration and the weight of the testimony are necessarily interrelated, requires that there be cooperation between the judge and jury in assessing and evaluating the testimony and ultimately in determining whether or not a conviction is supported by the requisite amount of unimpeached testimony which itself is found to be credible. If either the judge or the jury errs in his evaluation, the conviction will be rendered unsustainable.

    Like the sufficiency of corroboration, the credibility of an accomplice witness is a matter primarily for determination by the jury. While judges are in a position to observe whether or not a witness appears to be telling the truth or is worthy of belief, it is the jury which must determine what weight, if any, the testimony shall be given. In making this determination, the jury may look to the nature of the witness' interest in the outcome of the case, the extent to which the witness stands to gain or lose by the result, and the extent to which the witness' testimony is consistent with other known facts.

While corroboration legally is essential to support a conviction, it is not essential that it should be in every detail a criminal confirmation in material particulars given by the accomplice to justify conviction. Thus, even the sufficiency of the amount of corroboration is primarily a question for determination by the jury, and the issue of whether or not a witness is in fact an accomplice remains at all times one of fact for the jury to decide.

Judges, in general, enjoy a great deal of discretion in ruling on the sufficiency and weight of the corroboration. Under Section 114A of the Indian Evidence Act, however, judges are directed to presume, as a matter of law, that an accomplice is an unworthy witness unless corroborated in material particulars. Nevertheless, this presumption and the judicial direction arising therefrom are rebuttable and do not relieve the judge of the duty to consider and determine the general reliability of the witness' testimony in light of all the surrounding circumstances.

Challenges and Limitations of Accomplice Witness Testimony

An accomplice is considered a competent witness and is not disqualified because of his previous conviction or previous bad character; such conviction or bad character can, however, be proved and may affect his credibility. If it actually affects the judgment of the court upon his testimony, he may be regarded as a witness whose evidence requires corroboration, and the injunction of the Code of Criminal Procedure that no conviction should be based upon it may secretly influence the mind of the judge or jury, that despite the directions of the court that the evidence should be assessed in the same way as any other evidence, the witness may be regarded as unworthy of belief.

The net result may be that the accused is convicted although the evidence against him is no more than that of an acquittal witness, which is a miscarriage of justice. This rule has the potential to convert the joint trial of the accused and the accomplice into a separate trial of the accused; for if the accomplice is successful in obtaining a pardon and goes back on his former statement, the accused may find the case against him fail.

An accomplice is likely to be a habitual offender or a professional criminal. He is, therefore, not unlikely to have a bias and prejudice against someone whom he names as his accomplice in order to obtain a pardon. This is all the more likely if he does not obtain the immunity from prosecution which he expected. The fact that he may have an axe to grind against the accused weakens the value of his evidence and may make it dangerous to act upon. Section 133 of the Indian Evidence Act provides that an accomplice is a competent witness, but even his competency may be put in issue, and if the prosecution fails to satisfy the court that he is competent, then his evidence will be of no value.
  1. Potential Bias and Motive to Lie
    Accomplices have a motive to lie in order to reduce their own punishment and to do so at another's expense. Accomplice witnesses are typically involved in some kind of plea arrangement in which they have entered with the prosecution. To testify against a co-defendant, the accomplice usually has his own charges reduced, is sentenced less harshly, or in some cases, is granted immunity from prosecution. This has the effect of creating "an express or implied understanding that the witness will receive leniency or immunity in return for favourable testimony". This gives the accomplice a strong motive to lie in hope of securing the reward. Studies of psychology suggest that perceived rewards or punishments will lead to changes in behaviour.

    If we accept this proposition, then the promise of a reward and the fear of no reward are powerful motivational factors which are likely to result in the witness adjusting their testimony to suit the needs of those giving the reward. This adjustment in testimony may be to the extent of inventing false stories in hope of gaining the reward. In the case of accomplice witnesses, the "reward" may be a substantial one in that it may mean the difference between serving a long jail sentence and freedom. This is clearly demonstrated in R v Wilson & Patterson where both the accomplices who testified were well known villains who had had their charges dropped, and were paid reasonable sums of money from the witness fund.

    The "liar's dividend" provides those who adjust their evidence with an advantage that is not normally obtained by honesty. This provides the witness with result satisfaction from the perceived good deed of freeing his accuser and the self-interest motivation of saving themselves. The advantage gained combined with the fact that the liar can rationalize his conduct as being in the public interest, has resulted in there being a presumption that benefit has passed to the witness who is giving evidence, and thus a presumption that dishonesty in these witnesses constitutes perjury. This markedly increases the culpability of the liar and calls for a need to prevent the liar testifying. (SINGH, 2021)
     
  2. Reliability Issues
    Reliability refers to the consistency of the testimony and whether the evidence is true or false. Reliability often depends on the demeanour of the witness and whether the witness has the opportunity to testify in court without being harassed. If an accomplice is nervous or overly calm in the courtroom, it can cause speculation as to why they are acting this way. An accomplice can be disrupted in testimony by badgering or relentless cross-examination by defence counsel. If the accomplice confesses to

    criminal activity when in fear of an authority figure, then that confession is unreliable. Often, confessions given to law enforcement officers or leading questions suggest that the expectation is to confirm guilt. This can result in the accomplice believing that the preferred answer is the only answer and hence making the accomplice an unreliable witness. Many times, statements given by an accomplice can be inconsistent, which may be due to the high level of detail present in a lie.

    A jury may throw out the entire testimony if there is a single inconsistency. The timing of testimony is pertinent to reliability in that because accomplices are often involved in the same trial or awaiting trial, they may change testimony in an effort to gain favour with the prosecution for a reduced sentence or dropped charges. This concept of the "deal" can cause the accomplice to testify to false events but with great confidence and detail. Confidence in lying and detailed recall of events often convince jury members and can result in a wrongful conviction. Confidence and detailed recall are often seen as marks of a reliable witness but can be quite the contrary for an accomplice.
Safeguards and Precautions:
Under Section 133 of the Indian Evidence Act, an accomplice is said to be a competent witness against an accused person and a conviction is not illegal merely because it is based on his uncorroborated testimony. However, it is a rule of prudence and good practice not to convict upon the evidence of an accomplice unless it is corroborated in material particulars implicating the accused. (Chakravarty, 2022) (Singh & Biswas, 2021).

The trial testimony of an accomplice witness is a kind of evidence which is looked at with great care and caution. This is so because an accomplice who has taken part in the commission of a crime with others has most likely been promised immunity, clemency or a reduction in sentence in exchange for his testimony.

Such incentives are usually given by the prosecution and create a suspicion that the witness may, in order to gain favour with the prosecution or out of enmity towards the accused, implicate the accused whether he was involved in the crime or not. This is especially so in a country like India where, in practice, a person is prosecuted often on the basis of little or no evidence other than the testimony of a confession alleged to have been made to a police officer during the course of investigation.

References:
  • Nair, V. V. (2023). The status of victim protection in India: comparative analysis with international regime. International Journal of Public Law and Policy. researchgate.net
  • Shirley, A. M. (2020). A Critical Study of Impact of Hostile Witness on Administration of Criminal Justice System in India-With Special Reference to the State of Goa. unigoa.ac.in
  • Yadav, P. (2021). Traversing the Muddy Waters´┐ŻLegality, Tenability, and Reliability of Co-defendant's Confession under the Indian Evidence Act. Statute Law Review. [HTML]
  • Thusi, X., & Selepe, M. M. (2023). The impact of poor governance on public service delivery: A case study of the South African local government. International Journal of Social Science Research and Review, 6(4), 688-697. ijssrr.com
  • Baker, J. H. (2020). Criminal courts and procedure at common law 1550-1800. Crime in England. [HTML]
  • Stephen, J. F. (2023). The Indian evidence act. [HTML]
  • Nagpal, R. (2020). What Is the Evidentiary Value of Accomplice Testimony? Available at SSRN 3696635. [HTML]
  • SINGH, A. (2021). Role of forensic science in the investigation of Homicide-A study of Indian legislation. 103.85.141.163
  • Chakravarty, A. (2022). Witnesses in the Criminal Justice System. Issue 2 Int'l JL Mgmt. & Human. [HTML]
  • Singh, R. & Biswas, S. (2021). Witness Protection: Under Aegis of the Law. Issue 3 Int'l JL Mgmt. & Human. [HTML]

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