Reading time: 8-10 minutes.
A witness is the person who has knowledge about the crime or accident and that person either voluntarily or in obligation provides testimonial evidence, either oral or written of what he or she knows. The Court can convict the person on the testimony of the witness if corroborated and material to issues. But section 133 of the India Evidence Act, 1872 talks about Accomplice witness, the testimony of the accomplice witness against the accused person shall be a competent witness and the conviction will not be illegal just because it comes from the uncorroborated testimony of an accomplice. An Accomplish is one of the partners in commission of a crime or connected with the commission of crime and admitted the same.
Supreme Court passed the recent judgment on K. Hasim vs. State of Tamil Nadu that conviction based on uncorroborated testimony of accomplice to the crime is untenable as the same is against the provision of law. While hearing the criminal appeal by the Supreme Court on the Kidnapping and Murder of an ex-MLA of Tamil Nadu assemble filed by the convicts accused. M.K. Balan, an ex-MLA was reported to be missing on 30th December 2001 by his son and on inquiry by the police the accused were arrested and confessed that they kidnapped and murdered the MLA.
The matter was heard by three judge bench comprising of Justice RF Nariman, Justice KM Joseph and Justice V. Ramasubramanian, following the difference of opinion from division bench on section 133 and section 114 of Evidence Act.
The Supreme Court held that the courts have evolved now and there is requirement of that the accused cannot be convicted solely based on the uncorroborated testimony of an accomplish. The testimony of an accomplish must point the connection of a particular accused. And it was held that accused was convicted in conformity with law by the trial court and no case was made out by the appellants accused and the criminal appeal was dismissed by SC.
Legal provisions regarding testimony
The Indian Evidence Act, 1872 from section 118 to 134, describes about witness, how can testify it and statement which considers as testimony. A witness is the person who has the knowledge about the crime and presented before the court to testify, who has the capacity to understand the questions asked to him with rational answers except tender age, extreme age and mentally disable. Section 118, 121 and 133 of the act defines the capacity of the witness.
Section 133 of The Indian Evidence Act, 1872 talks about the accomplish witness. An accomplish is partner in the commission of crime and turned approver to save his guilt. The Act says that accomplish witness is a competent witness against accused person and conviction if merely based on the uncorroborated testimony of accomplish will not be illegal. An accomplish by accepting his guilt under section 306 of CrPC becomes a competent witness and may examined as other witness. The pardoned accused is duty bound to provide full disclosure of the case and if fails to do so then he will be tried with separate charges and his statement can be used against him. Section 133 read with section 118 illustration which says that the court may presume that an accomplish is unworthy of credit, unless he is corroborated in material particulars
- Khokan Giri v. State of West Bengal, AIR 2017 SCC 668
In this case the accused is convicted on the basis of the testimony of the person who had given the statement soon after arrest and turned approver. The Apex court held that an accomplish witness can be a competent witness, but it would not be safe to solely relay on his testimony without corroboration. Such corroboration must connect the accused with the crime and one accomplish cannot corroborate with another, it should be independent and reliable source.
- Sarwan Singh v. State of Punjab, AIR (2003) 1SCC 240
In this case the accused were convicted on the basis of testimony of an accomplish. The Supreme Court held that the accomplish testimony will be accepted if it satisfied two test. The court gives the double test theory. The evidence provided by the accomplish must show that he is reliable witness, and that test is common to all witness. After satisfying the first test, the accomplish evidence must receive sufficient corroboration. This test is applied in special cases of weak or discredit evidence like that of accomplish.
- Jnanendranath Ghose v. State of West Bengal, AIR 1960 SCR(1) 126
The issue of corroboration of the accomplish witness was settled by the Supreme Court in this case. The accused was married to Sibapadi but also had an affair with Lila. The accused wanted to get rid of her and he decided to murder Sibapadi. He was assisted by other three accused. And one of the accused turned approver to save his own guilt. The jury found the accused guilty on the evidence of approver testimony which was corroborated with the circumstantial evidence and the accused was sentenced to life imprisonment.
The accused appealed in the High court and Supreme Court, contended that the Jury was misdirected. The Superior Court was of opinion that there was no misdirection by the jury and it was held by the Supreme Court held that corroboration of the accomplish testimony must be independent which connects or tends to connect the accused with the crime. The corroboration need not be direct evidence and sufficient if it is circumstantial evidence of his connection with the crime.
Two provisions under Indian Evidence Act, 1889 deals with testimony of accomplish witness. Section 114 illustration b, says that the court may presume that an accomplish is unworthy of any credit unless corroborated in material particulars and section 133 of the act says that an accomplish shall be a competent witness as against the accused person and a conviction the accused based on testimony of an accomplish is valid even though it is not corroborated in material particulars. The contradiction of these provisions should be resolved first. The Supreme Court on its verdict in the case of K. Hasim vs. State of Tamil Nadu tries to resolve the confusion between two provisions and said that:
- There must be some additional evidence that make the accomplish testimony true and reasonably safe to act upon.
- The independent evidence should also reasonably connect with the accused and confirming in some material particular that the accused committed the crime.
- The testimony of the one accomplish cannot be corroborated with that of another but in special circumstances if it is safe to act without the need of corroboration then it would not be illegal.
- The corroboration need not to be direct evidence.
Corroboration is the most important issue with respect to accomplish witness. The rule regarding the corroboration is emerged as rule of practice rather than rule of law. A conviction of an accused on the uncorroborated testimony of an accomplish is legal but at the same time it is not safe also to relay upon uncorroborated evidence as he himself is a criminal and of very lowest character and thus judges must act prudently while considering the uncorroborated accomplish evidence.
Author: Sameeksha Shukla from School of Law, UPES, Dehradun.
Editor: Silky Mittal, Junior Editor, Lexlife India