– Yushmita Sidar.
Introduction
“When the only proof against a person charged with a criminal offence is the evidence of an accomplice, uncorroborated in any material particular, it is the duty of the judge to warn the jury that it is unsafe to convict any person upon such evidence, though they have a legal right to do so.” –Sir James Fitzjames Stephen.
Sir James Fitzjames Stephen, the founding father of the Indian Evidence Act, cautioned that relying exclusively on an accomplice’s uncorroborated evidence puts the legal system in jeopardy. His above-mentioned quote from his Digest of the Law of Evidence, Article 121, published in 1876, emphasizes this concern by highlighting the inherent danger of this form of evidence.
Convictions frequently rely on witness evidence, but the reliability of accomplices must be carefully considered. An accomplice deliberately participates in criminal conduct with others, beyond just aiding in crime.
The Indian Evidence Act (IEA) allows convictions based solely on accomplice testimony under Section 133, recognizing them as competent witnesses. However, Section 114 Illustration (b) gives courts discretion to reject such testimony without corroboration, acknowledging the potential for unreliable evidence.
The new Bharatiya Sakshya Adhiniyam (BSA) mandates that accomplice testimony must be supported by evidence. Previously, an accused could be convicted based solely on accomplice testimony. However, Section 138 BSA now requires mandatory corroboration, making accomplice evidence alone insufficient for conviction. Section 119 Illustration (b) mirrors Section 114 (b) of IEA.
This article examines the distinctions between co-accused, accomplices and approvers in India. It analyzes the BSA’s provisions for pardoning an accomplice in exchange for testimony and the corroboration of the testimony.
Differences: Co-accused, Accomplice and Approver
Co-accused: A co-accused is someone charged and tried alongside the primary accused for the same crime. For instance, if A points a gun at a bank manager and demands money, and B takes the money, both A and B would be charged with robbery and considered co-accused.
Accomplice: The Allahabad High Court defines an accomplice as someone who knowingly and voluntarily participates in a crime with others. An accomplice differs from a co-accused in that they admit guilt and testify against the co-accused in exchange for a pardon, but cannot be co-defendants.
Approver: An accomplice becomes an approver when granted pardon to testify against the accused. Sections 306, 307, and 308 CrPC (Sections 343, 344, and 345 BNSS) address the tender of pardon, power to grant pardon and breach of pardon terms for approvers.
The following analysis can be made: all accomplices are co-accused, but not all co-accused are accomplices; all approvers are accomplices, but not all accomplices are approvers.
As per Lord Abinger, in R. v. Farley (1837), “The danger is that when a man is fixed and knows that his own guilt is detected, he purchases immunity by falsely accusing others,” allowing co-accused to testify against the accused without scrutiny creates a conflict of interest, making their evidence unreliable and biased.
Law allows a co-accused to be made a witness of the prosecution (accomplice) under Sections 306 and 307 CrPC. The Kerala High Court held that a co-accused can only testify against another accused in the same case if granted pardon as an approver under said sections. The law provides a measure to the prosecution to secure the assistance of an accused for a successful prosecution.
Section 306 CrPC (Section 343 BNSS)
The only change in the new provision is removing the word “Metropolitan Magistrate”.
It allows the Chief Judicial Magistrate and Magistrate of First Class to grant pardon to accomplices at any stage (investigation, inquiry & trial), if they fully disclose the crime or persons involved, especially for crimes with seven years or more sentences. The grounds for pardon and the accomplice’s response must be recorded.
Under Section 306 (4) (b), the approver, if not already on bail, must be held in custody until the trial is concluded. A petition was filed in the High Court of Jammu and Kashmir and Ladakh challenging its constitutionality and the bench led by Justice Mohanlal upheld the provision, stating it aims to protect the approver from the indignation, rage, and resentment of his associates. However, the court noted that High Courts can grant bail to the approver using their inherent power under Section 482 CrPC balancing public interest and the approver’s right.
This provision balances convictions and leniency for cooperating accomplices who express remorse. However, courts must carefully analyze the accomplice’s reliability to prevent inaccurate testimony, verifying it with other evidence. It is an exception where the state promises pardon if the accomplice discloses facts and meets the conditions outlined in Section 306.
Section 307 CrPC (Section 344 BNSS)
Section 307 BSA allows the court to pardon an accomplice during trial to encourage their testimony against co-accused, creating a two-tiered pardon system. While less restrictive than Section 306, the separate procedures may raise concerns about unequal access to pardon. However, both sections aim to obtain evidence from accomplices in exchange for a pardon when evidence is lacking.
Section 308 CrPC (Section 344 BNSS)
As per this section, if an accomplice granted pardon under Sections 306 or 307 fails to comply, they can be charged with the original crime and perjury. The prosecutor needs the High Court’s approval to file these charges. In State of Maharashtra v. Abu Salem Ansari, the Supreme Court held that once the prosecution issues a certificate under Section 308, the approver reverts to accused status and the defence cannot cross-examine them.
Corroboration of Accomplice Evidence
Analyzing Previous Approach (Section 133 & Section 114 Illustration b IEA): The IEA allows convictions based solely on uncorroborated accomplice testimony under Section 133. However, Section 114 Illustration (b) gives courts discretion to reject such testimony without corroboration. This recognizes the potential for fabrication by accomplices seeking a pardon, raising concerns about the credibility of their evidence.
Section 114 Illustration (b) advises courts to be cautious when using accomplice testimony, as it allows them to deem the accomplice untrustworthy if their testimony lacks corroboration on crucial facts. This recognizes the potential for accomplices to downplay their own role while emphasizing the accused’s, despite Section 133 allowing convictions based on uncorroborated accomplice evidence.
Accomplice testimony cannot be corroborated by testimony of another: The standards of evidence should not shield the accused from conviction, nor allow an accomplice to convict through mutual testimony. In K. Hashim v. State of Tamil Nadu, the court held accomplice evidence requires corroboration by circumstantial evidence, not just another accomplice’s testimony.
Guiding Rules: R. v. Baskerville established that corroborating accomplice evidence must be independent and link the accused to the crime, setting new standards influencing judicial systems, including India.
In Ravinder Singh v. State of Haryana, the test for an accomplice’s legitimacy was twofold: whether the narrative implicates them in a natural sequence of events, and whether it implicates the accused in a way that proves guilt beyond reasonable doubt. However, the necessity for corroboration is a prudent precaution, not a legal requirement. Judges can convict based solely on the approver’s testimony if they are fully confident in its trustworthiness, as established in Sitaram Sao Mungeri v. State of Jharkhand.
Analyzing New Framework (Sections 138 & 119 Illustration b BSA): The first draft of the BSA only modified the section numbers, with Section 133 becoming 138 and Section 114 Illustration (b) becoming 119 Illustration (b). The Parliament Standing Committee noted a contradiction between these clauses, potentially leading to uncertainty. To prevent this, the committee recommended deleting Section 138, later modified.
In the final approved legislation, the phrase “corroborated” in Section 138 was replaced with “uncorroborated”. As a result, for the accused to be convicted solely on accomplice evidence, such evidence must now be corroborated. Sections 138 and 119 Illustration (b) now work together to mandate the corroboration of accomplice evidence, making it a rule of law rather than just a rule of prudence.
This shift is expected to have a significant impact on the judicial system. It will ensure accomplice testimony is confirmed with specific evidence, making it more reliable and trustworthy and reducing the risk of wrongful convictions. It will also establish a clear and consistent norm for the judiciary to follow, eliminating the possibility of contradictory rulings. Additionally, the requirements for corroboration will likely lead to more extensive investigations to obtain supporting evidence.
Conclusion
The BSA represents an important change in how Indian Courts consider accomplice evidence. While required corroboration may limit judicial discretion, it promotes a more trustworthy and just system. This new paradigm, along with thorough investigations, can help ensure convictions are based on firm, verifiable evidence, reducing the risk of false convictions.
Navigating this new realm requires careful planning. Courts must set clear rules for analyzing accomplice testimony and supporting evidence, drawing inspiration from past judgments. The BSA is an important step towards a stronger and more equitable criminal justice system in India, despite existing challenges.
The author is a graduate of Hidayatullah National Law University, Raipur.