ISSUE 3: Whether the witness of accomplice is authentic?
It is humbly submitted before the honourable court that the petition filed by the Petitioner
against the decision of the Honourable trial court of Premnagar is maintainable under Section
133 of Gondhian Evidence Act, 1872. It is contended that the jurisdiction of the High Court
can always be invoked when the
S.133 of the Indian Evidence Act 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.
This section deals with the law relating to accomplice evidence. The first part says that an
accomplice, i.e., a guilty associate in crime, shall be a competent witness. This was not
necessary, as under S. 118 all persons are competent witnesses, except those who suffer from
disqualification of an intellectual character. It says all persons shall be competent to testify
unless the Court considers that they are prevented from understanding the questions put to
them, or from giving rational answers to such questions, by tender years, extreme old age,
disease, whether of body or mind, or any other cause of the same kind.
In the instant case, the two accomplices Krishna Pehelwan and Munna as identified by Nishant
Kumar, the owner of the mall, in the Test Identification Parade are competent witnesses. They
are not subject to S.118 that only include people of weak intellect. They seem to be
competent witnesses as according to the facts of the case, they are intellectually healthy
persons and were opposing the celebration of Valentine’s day and were also shouting slogans.
The court relying on various High Courts observation and provisions of Evidence Act opined
that evidence produced by accomplice can be taken into consideration provided there is no
apparent defect.1
The second part of S.133 lays down that conviction is “not illegal” merely because it is based
on the uncorroborated testimony of an Accomplice. This also is covered by S.134 which does
not require any particular number of witnesses for the proof of any fact. But without any
specific section relating to accomplice evidence there was a chance of the law being
misunderstood or misapplied if the only thing left in the Act were illustration(b) to S.114(a
1
Laxmipat Choraria and Ors. vs. State of Maharashtra AIR 1968 SC 938
general section dealing with all kinds of presumptions) which says that “an accomplice is
unworthy of credit, unless he is corroborated in material particulars.” It would seem therefore
that it was considered necessary to place the law of accomplice evidence on a sounder basis
by saying in clear terms by way of caution that a conviction is “not illegal” (i.e., not unlawful)
merely because” it is based on the uncorroborated testimony of an accomplice, while
declaring that an accomplice is a competent witness.
An accomplice shall be competent witness against an Accused person and conviction was not
illegal merely because it proceeds upon uncorroborated testimony of an accomplice. It was
held in Nand Lal More vs. The State2
In the instant case, as the accomplice were the sole witnesses of the case, the court can’t out
rightly reject the possibility of the witnesses telling the truth. The court rejected the
contention of the prosecution without any proper reasoning given to the prosecution for the
same. The court only took into consideration the Illustration b of S. 114 that states that an
accomplice witness must be backed by the corroborated evidence. But the S. 133 is totally
ignored. The positive law clearly states that the evidence of an accomplice can be acted upon
and is admissible in the court of law.
Accomplice evidence is admitted from necessity as it is generally impossible to get sufficient
evidence of many heinous and diabolical crimes, unless one of the participators is disposed
to disclose the circumstances within his knowledge on account of the tender of pardon. The
greatest offenders would go unpunished, if accomplice evidence were to be rejected.
In the instant case, there was such a strong case against the defendants and the police in their
FIR had booked the offenders under dozens of offences- such is the degree of the offence that
includes rioting to inciting hatred in people of different religion to heinous crime of abetment
to suicide. It is necessary for the court to go through the merits of the case and admit the
testimony of the accomplice. The court do not take any witness without an oath and as the
accomplice have taken an oath in front of the court about their testimony being truth in their
best of knowledge, they are a competent witness and their testimony should be admissible
on account of the degree of the crime and the scarcity of any witnesses or evidences.
2
1965 CriLJ 393
The deposition of an accomplice in a crime who has not been made an accused/put to trial,
can be relied upon, however, the evidence is required to be considered with care and caution.
An accomplice who has not been put on trial is a competent witness as he deposes in the
court after taking oath and there is no prohibition in any law not to act upon his deposition
without corroboration. It was held in Prithipal Singh etc. vs. State of Punjab and Anr. etc.3
Under the S.9 of the Indian Evidence Act, Nishant Kumar has identified these people as a
participator in the instant case. Thus, it cannot be said that the evidence of the accomplice is
completely uncorroborated as the case may be. Nishant Kumar, being present on the crime
scene and seen everything with his own eyes, could be called into question to identify other
people against whom Krishna Pehelwan and Munna give their testimony if the court admits
them as a competent witness.
An accomplice/approver is a competent witness but as he has participated in the commission
of the offence, his evidence must be corroborated in material particulars by other
independent evidence - Evidence of eye witnesses and the hostile witnesses can be given
credibility if it is corroborated in material particulars.4
Thus it can’t be said that the testimony given by the accomplice can’t be corroborated and
the court was mistaken in stating that witness of accomplice is unworthy of credit.
3
AIR 2012 SCC 10
4
Mrinal Das & Ors vs State Of Tripura AIR 2011 SC 3753
