Report No. 69
Section 133 and Section 114, Illustration (u)
73.1. With section 133, the Act deals with particular witnesses. Two provisions relating to the evidence of accomplices should now be considered. The first is section 133. It provides 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. The second is section 114, illustration (b), which cautions the court that the court may presume that an accomplice is unworthy of credit unless his evidence is corroborated in material particulars.
73.2. Disharmony with section 114, illustration (b).-
There is a certain amount of disharmony between the two provisions-which is usually solved by stating the proposition that the rule that an accomplice is unworthy of credit unless corroborated, is a rule of prudence and not one of law. Nevertheless, the present duality creates complications in practice. We shall deal with this aspect later.
73.3. Two propositions are enacted in section 133. The first proposition, that an accomplice is a competent witness against an accused person, is a proposition which is really superfluous in view of section 118. The section does not make a distinction between one kind of accomplice and another, nor does it confine1 the expression "accomplice" to a person who is an approver.2
It should be noted that the expression "accomplice" is not an expression used in the Indian Penal Code, or (except as a marginal note) in the Code of Criminal Procedure. It appears only in the Evidence Act. The expression "testimony", which occurs in section 133, is also not ordinarily used in Indian statutory law. These are, however, questions of mere semantics, and we may proceed to discuss more substantial matters.
1. See R. v. Nga Myo, AIR 1933 Rang 177.
2. See discussion as to meaning of "accomplice", infra.
II. Need for Section 133 Doubted
73.4. Convictions based on uncorroborated evidence of an accomplice not to stand.-
It is not quite clear why section 133 was inserted at all in the Act. Markby has dealt with the point thus-
"It was not necessary, as section 118 makes all persons competent to testify; except those there enumerated. Nor is there any rule which requires that the evidence of an accomplice should be corroborated. But the emphatic statement in this section might lead persons to suppose that the Legislature desired to encourage convictions on the uncorroborated evidence of an accomplice. This, however, cannot have been the case, because, in section 114, we find given, as one of the presumptions based on the common course of human conduct, the presumption 'that an accomplice is unworthy "of credit, unless he is corroborated in material particulars'.
Moreover, no conviction based on the uncorroborated evidence of an accomplice would be allowed to stand by a court of appeal, except under very rare and exceptional circumstances1 and if a Judge in his charge to the jury omitted "to warn them against the danger of convicting on such uncorroborated evidence, he would be held to have misdirected them. It would, however, have been better to omit this section2. The law on the subject would then have been the same as it is now, and the awkwardness of appearing to sanction a practice so universally condemned would be avoided."3
1. Note the word "exceptional".
2. Emphasis added.
3. Markby on Evidence, p. 98, quoted by Field.
73.5. Perhaps, the draftsman of the Act thought that since several points were discussed in various cases1 (holding that legally a man may be convicted on uncorroborated testimony of an accomplice provided the judge had called the attention of the jury to the fact that this was the sole evidence), it was proper to codify all those points.
1. Queen v. Elahi Buksh, 1 WR Cr Rulings 80, followed in Regina v. Neel-John, 8 WR Cr Rulings 19, and Regina v. Shamsher Beg, 9 WR Cri Rulings 51.
III. Various Situations where Accomplice may become a witness
73.6. There are numerous, situations in which an accomplice may become a competent witness. A person may have been granted pardon under the Code of Criminal Procedure (popularly known as the Queen's pardon in England) and he is then said to become an approver. Or, he may not have been pardoned, but may be under trial separately from the other accused-a course which is not illegal, though usually inconvenient. He might have already been convicted, for example, where the other accused has absconded, so that he is no longer the 'accused'-and therefore, he becomes a competent and compellable witness. Or, though a prosecution was instituted against him, it may have been withdrawn, so that he ceases to be the "accused".
In the alternative, for some reason-say, insufficient evidence of or factual ignorance on the part of the police or otherwise-he might not have been charged at all, and it now transpires that he was also involved in the offence and was a guilty associate in crime. Again, though a co-accused, he may choose to give evidence.1 In every case, he is an accomplice, and his evidence will be subject to the safeguard indicated in section 114, illustration (b). Of course, the extent of corroboration needed will differ from case to case.
1. The enumeration is not intended to be exhaustive.
73.7. Accomplice giving evidence without pardon.-
How an accomplice becomes a witness even though he has not received pardon in accordance with law, is illustrated in a Bombay case.1 A large number of persons were prosecuted for offences of conspiracy under section 120B of the Indian Penal Code, for importing and bringing into India gold in contravention of the provisions of the Sea Customs Act, 1878. They were convicted. In appeal against the convictions, the defence argued in the High Court that two of the accomplices ought to have been prosecuted along with the accused, as there was sufficient evidence against them. If the customs authorities wanted to use their evidence against the accused, they (the authorities) ought to have proceeded to obtain the same by the procedure prescribed by the Code of Criminal Procedure or otherwise by law, but they had no right, on their own responsibility, to choose particular persons as witnesses and prosecute the others.
1. Lakshman Das Chagan Lal Bhatia v. State, AIR 1968 Born 400.
73.8. The High Court rejected this contention of the defence, and held that if it is desired to use an accomplice as a witness without the procedure of pardon, his trial can be separated, and he may either be tried first and then be examined as a witness, or he may be examined as a witness first and then tried.
73.9. The High Court observed that this is not to say that the police were not to charge-sheet a particular accused. The prosecution should obtain either pardon in accordance with section 337 of the Code of Criminal Procedure, 1898, or the accused should have been discharged, or acquitted under section 494. The police may charge him separately, and he may plead guilty. But these points did not affect the competence of the person concerned to give evidence.
73.10. The point came up before the Supreme Court in Sirajuddin.1 In that case, there were charges under the Prevention of Corruption Act, 1947, against the accused, who was the Chief Engineer, Madras. During the course of investigation of the case, the police promised "pardon" to some other officials, who were the subordinates of the accused and had assisted him in the commission of his malpractices. The police thought that if the subordinate officials were prosecuted along with the accused, the case might fail for lack of evidence. The police issued "certificates" to two subordinates officials, assuring them immunity from prosecution for the part played by them.
1. Sirajuddin v. State of Madras, AIR 1971 SC 520 (529), affirming AIR 1968 Mad 117.
73.11. The Supreme Court, while upholding the conviction on the merits, observed that the granting of immunity to two persons who are sure to be examined as witnesses for the prosecution was highly irregular and unfortunate. Neither the Code of Criminal Procedure nor the Prevention of Corruption Act recognises the immunity from prosecution given under these "assurances"; the grant of pardon was not in the discretion of police authorities. However, it may be noted that this irregularity does not seem to have been treated as affecting the position regarding evidence given by the persons concerned.
73.12. Many cases could be cited from the High Courts in which the examination of one of the suspects as a witness was not held to be illegal, and accomplice evidence was received (subject to safeguards) as admissible evidence in the case. In those cases, section 342 of the Code of Criminal Procedure, 1898, and section 5 of the Indian Oaths Act (then in force) were considered, and the word "accused" as used in those sections was held to denote a person actually on trial before a court, and not a person who could have been so tried. The witness was, of course, treated as an accomplice. The evidence of such an accomplice was received with necessary caution in those cases. These cases have been mentioned in Re Khandaswami Gounder1 and were approved by the Supreme Court in Lakskmipat's case.2 The leading cases of the High Courts are:
(Case law as to trial of accomplice)
Queen Empress v. Mona Puna, 1892 ILR 16 Bom 661;
Banu Singh v. Emperor, 1906 ILR 33 Cal 1353;
Keshav Nasudeo v. Emperor, ILR 59 Bom 355: AIR 1935 Born 186; Empress v. Durant, 1899 ILR 23 Born 213;
Akhoy Kumar Mookerjee v. Emperor, ILR 45 Cal 720: AIR 1919 Cal 1021;
A.V. Joseph v. Emperor, ILR 3 Rang 11: AIR 1925 Rang 122;
Amdumiyan v. Emperor, ILR 1937 Nag 315: AIR 1937 Nag 17 (FB);
Gallagher v. Emperor, ILR 54 Cal 52: AIR 1927 Cal 307; and
Emperor v. Har Prasad, ILR 45 All 226: AIR 1923 All 91.
1. Kandaswami Gounder (in re:), AIR 1957 Mad 727.
2. Lakshmipat Choraria v. State of Maharashtra, AIR 1968 SC 938 (944), para. 13.