The word “Accomplice” is not defined under Indian Evidence Act.

In ordinary sense an accomplice is a person who has taken part in the commission of a crime along with others. When an offence is committed by more than one person then everyone participating in the commission of such offence is an accomplice.

Or in other words accomplice is a guilty associate or partner in crime (particeps criminis), or who sustains such a relation to the criminal act that he could be jointly indicted with the principal.

Partner In Crime

Hon’ble Supreme Court of India in R.K. Dalmia v. Delhi Administration AIR 1962 SC 1821, observed that: “An accomplice is a person who- participates in the commission of the actual crime charged against an accused. He is to be particeps criminis.

There are two cases however, in which a person has been held to be an accomplice even if he is not particeps criminis; Receivers of stolen property are taken to be accomplices of the thieves, from whom they receive goods, on a trial of theft.

Accomplices in previous similar offences committed by the accused on trial deemed to be accomplices in the offence for which the accused is on trial, when evidence of the accused having committed crimes of identical type on other occasions be admissible to prove the system and intent of the accused in committing the offence charged.”

WHO IS AN ACCOMPLICE WITNESS?

Accomplice witness is someone who is both a witness to a crime and an accomplice in that same crime. Witness to a crime who either as principal, or accessory, was connected with the crime by unlawful act or omission on his or her part, either before, at the time or after commission of the offence.

If the witness cannot be prosecuted for the offense with which the accused is charged, then the witness is not an accomplice witness as a matter of law. Moreover, a witness is not an accomplice witness merely because he or she knew of the offense and did not disclose it, or even concealed it.

WHEN IS AN ACCOMPLICE COMPETENT WITNESS?

If an accomplice is jointly indicted with his fellows, he is incompetent to testify, unless he is tendered a pardon; or unless he has been discharged, acquitted or convicted.

In other words, accomplice is a competent witness, if, at the time he is required to give evidence, he is not an accused person in the case in which he is required to testify.

An accomplice by accepting a pardon under section 306 of CrPC, 1973, becomes a competent witness and may as any other witness be examined on oath, and the prosecution must be withdrawn and the accused formally discharged under section 321, CrPC, 1973.

Under Art. 20(3) of the Constitution of India, 1950, no accused shall be compelled to be a witness against himself. But an accomplice accepts a pardon of his free will on condition of a true disclosure, in his own interest and is not compelled to give self-incriminating evidence.

Under section 308(1) of CrPC, 1973, when a pardoned accused who is bound to make full disclosure, fails to do so, either by willfully concealing anything essential or by giving false evidence, not complied with the condition on which the tender was made, such person may be tried for the offence in respect of which the pardon was so tendered or for any other offence of which he appears to have been guilty in connection with the same matter.

Importance of Sections 114 and 133, IEA, and Necessity of Corroboration

Section 133 of the IEA, 1872, describes about competency of accomplice. It provides: “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, IEA, states that an accomplice is unworthy of credit, unless he is corroborated in material particulars.

Reading above two provisions, it is clear that the most important issue with respect to accomplice evidence is that of corroboration.

Insistence upon corroboration is based on the rule of caution and is not a rule of law.

Joint reading of both sections points out that: ‘a conviction based on the uncorroborated testimony of an accomplice is not illegal, but according to prudence it is not safe to rely upon uncorroborated evidence of accomplice and thus judges must exercise extreme caution and care while considering uncorroborated accomplice evidence’.

Accomplice evidence is untrustworthy and therefore should be corroborated for the following reasons:

An accomplice is likely to swear falsely in order to shift the guilt from himself;

An accomplice is a participator in crime and thus an immoral person;

An accomplice gives his evidence under a promise of pardon or in the expectation of pardon, if he discloses all he knows against those with whom he acted criminally, and this hope would lead him to favour the prosecution. Thus, by means of a pardon, he transfers himself from the accused’s dock to the witness-box as an approver, to give evidence for the state.

ACCOMPLICE AND CO-ACCUSED

The confession of a co-accused (Sec. 30) is not treated in the same way as the testimony of the accomplice because

1. The testimony of an accomplice is taken on oath and is subjected to cross examination and so is of a higher probative value.

2. The confession of a co-accused can hardly be called substantive evidence as it is not evidence within the definition of Section -3 as it not taken on oath , or made in the presence of accused and even cannot be cross examined by other parties.

3. It may be taken into consideration along with other evidence in the case and it cannot alone form the basis of a conviction. While the testimony of an accomplice alone may be sufficient for conviction.