Evidence of Accomplice

Subject - Law of Evidence

Topic - E VIDENCE O F A CCOMPLICE

PROJECT SUBMITTED TO:

Ms. Neetu (Faculty of

LAW ) PROJECT SUBMITTED BY:

Atul

PAL ROLL NO. 38

EVIDENCE OF ACCOMPLICE: LAW OF EVIDENCE

VII SEMESTER, 4nd YEAR ON THE 27TH OF September 2010

TABLE OF CONTENTS • EVIDENCE OF ACCOMPLICE : AN INTRODUCTION • THE KNOT • ACCOMPLICE • WHAT IS AN ACCOMPLICE • CATEGORIES OF ACCOMPLICE 1. Principal offender of first degree and second degree 2. Accessories before the facts 3. Accessories after the facts 4. Reliance at the testimony of accomplice 5. Trap and decoy witness and approver 6. Legitimacy of witness

EVIDENCE OF AN APPROVER AND THE CONFESSION OF THE CO- ACCUSED

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•

EVIDENCE OF ACCOMPLICE: LAW OF EVIDENCE •

NATURE OF CORROBORATION

• EVIDENCE OF ACCOMPLICE IN CRIME OF RAPE • EVIDENCE OF ACCOMPLICE OF CRIME OF MURDER • EVIDENCE OF ACCOMPLICE AND CONFESSION OF AN ACCUSED • CONFESSIONS OF NALINI, SENTENCED TO DEATH FOR RAJIV GANDHI’S ASSASSINATION • CONCLUSSION • BIBLIOGRAPHY

EVIDENCE OF ACCOMPLICE: AN INTRODUCTION

“Accomplices are usually interested and always infamous witness and whose testimony is admitted from necessity, it being always impossible without having recourses to such evidence to bring up the principal offenders to justice” -

Lord Taylor (A Treatise on the law of Evidence)1

An accomplice means a person who has taken part in the commission of a crime. When it’s commission is an accomplice. Conspirators lay their plot in secret, in execute it 1

(1931) Vol 1 Para 967.

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an offence is committed by more then more person in concert, every one participating in

EVIDENCE OF ACCOMPLICE: LAW OF EVIDENCE ruthlessly and do not leave much evidence behind. Often, therefore the police has to select one of them for the purpose of being converted into a witness. He is pardoned subject to the condition that he will give evidence against his former partners in the crime. He is then known as an accomplice, turned witness or approver. He appears as a witness for the prosecution against the accused person with whom he acted in the commission of the crime. The Indian Evidence Act, through section 133 categorically that an accomplice is a competent witness and the court can convict on the basis of such evidence and the conviction will not be illegal simply because it proceeds upon the uncorroborated testimony of an accomplice. The other dealing with the matter is in the illustration (b) to sec.114 of the aforementioned Act, which says that the Court may presume that an Accomplice is unworthy of credit unless corroborated in material particulars. The Supreme Court, dealing with sec.133 and sec.114, illustration(b) observed “there is no antithesis between sec.133 and illustration (b) to sec.114 of the Evidence Act, because the section only says that the court ‘may’ presume a certain state of affairs. It does not seek to raise a conclusive and irrefutable presumption.” It is hazardous, as a matter of prudence, to proceed upon the evidence of a self-confessed, who, so far as n approver is concerned, has to testify in the terms of pardon tendered to him. The risk involved in convicting the accused on the testimony of an accomplice, unless it is corroborated immaterial particulars, is so real and patent that what during the early development of law was felt to be a matter of prudence has been elevated by judicial experience into a requirement of law. It is necessary to understand what was hardened into the rule of law is not that this conviction is illegal, if it proceeds upon the uncorroborated testimony of an accomplice but that the rule of corroboration must be present to the mind of the judge and that corroboration may be dispensed with only if peculiar circumstances of a case make it safe to dispense with it. The combined effect of section 133 and 114 illustration (b) may be stated as follows: “according to the former which is rule of law, an accomplice is competent to give evidence and according to the latter which is a rule of though, the conviction an accused on the testimony of an accomplice can’t be said to be

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practice, it is almost always unsafe to convict upon his testimony alone. Therefore,

EVIDENCE OF ACCOMPLICE: LAW OF EVIDENCE illegal, the courts will as a matter of practice not accept the evidence of such a witness without corroboration in material particulars.”

THE KNOT Illustration (b) of section 114 of the Indian Evidence Act says that, “an Accomplice is unworthy of credit unless he is corroborated in material particulars. It means that an Accomplice is not to be believed unless he is corroborated in material particulars. It is a rule of prudence and practice which practically amounts to a rule of law that the evidence of an Accomplice need not be acted upon unless it is corroborated as against the particulars used in material respects.2 The principal reason for holding that an Accomplice is unworthy of credit are as follows: (a) An Accomplice is a participator in a crime and is consequently an immoral person, and therefore he is likely to disregard the sanctity of oath. (b) The Accomplice is likely to state falsely in order to shift the fault from his shoulders. He gives evidence under the promise of pardon and on the condition that if he disclosed all he knows against those with whom he committed the crime and this hope may load him to favor the prosecution. Although as a matter of law corroboration is not necessary to convict an accused person on the evidence of an Accomplice, an Accomplice should, as a rule, be presumed to be unworthy of credit, unless he is corroborated.3 The confession of a co-accused cant be used to corroborate the evidence of an Accomplice. 4 The corroboration in the case of an Accomplice must point to the identification of the person charged with the particular fact with which the direct evidence connects him. 5 Where the evidence of an Accomplice is not totally unapproved by re-assuring

Emperor V. Mataprasad (1982) 45 Bom LR 64, See also; K.Hussain V. State of T.N, AIR 2005 SC 128[Para 23] 3 Baburao Sahu V. King AIR 1999 PC 257 4 Provincial Govt.V Raghuram AIR (1942) Ng 799 5 Emperor V. Kalwa AIR (1926) 98 ALL 909.

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2

EVIDENCE OF ACCOMPLICE: LAW OF EVIDENCE circumstances, the accused could be convicted on the basis of such evidence.6 Where the testimony of the approver was corroborated in respect of only the first accused and not in respect of sound accused, conviction of the former was upheld but the later was given benefit of doubt.7 Although illustration (b) provides that the court ‘may’ presume that the evidence of an Accomplice is unworthy of credit unless corroborated, ‘may’ is ‘not’ must and no decision of the court can make it must. The court is not obliged to hold that he is unworthy of credit. It ultimately depends upon the courts view as to the credibility of evidence rendered by an Accomplice.8 One Accomplice cannot corroborate another. However, if several Accomplices simultaneously and without previous concert give a consistent account of the crime implicating the accused, the court may act to the several. Statements as corroborating each other, but it must be established that the several statements of the Accomplices were given independently and without any previous concert.9 It is now well settled that the minimum amount of corroboration required to make it safe to act on the testimony of an approver is that the evidence must be corroborated not only as to the “corpus delicti” but also as to the identity of the accused person. Corroboration need not be direct evidence that the accused committed the crime, it is sufficient even though it is mere circumstantial evidence of his connection with the crime10 Where the Accomplice is not a criminal but a spy or informer his evidence doesn’t require any corroboration.11 In point of law an Accomplice is a competent witness against an accused person. But great caution in weighing his testimony is dictated by prudence and reason. Unless the case is very exceptional one, an evidence of Accomplice should not be relied and accepted as being sufficient.12

6

State of T.N V. Suresh AIR 1998 SC 1044 Gajalaxmi V. State of T.N. 1997 5 SCC . 8 K.Husain V. State of T.N (2005) 1 SCC 237. 9 Hussain Umma V. Dalipsinghji, AIR 1970 SC 45. 10 Tribhuvan Nath V. State of Maharashtra AIR 1973 SC 950 11 C.R.Mehta V. State of Maharashtra 1993 CRlj 2863 (Bom). 12

S.C Bihari V. State of Bihar 1994 CrLJ 327 [Para 93].

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EVIDENCE OF ACCOMPLICE: LAW OF EVIDENCE

ACCOMPLICE

An accomplice is a person who along with another or others has taken some part-large or small-in the commission of the crime. It is a general term and is used to designate the person whom the police for the prosecution. If he is a person induced by the police to take part in the crime for the purpose of collecting evidence against others, he is called a trap –witness. If he is arrested and thereafter given a pardon, he is referred to as an approver. That an accomplice, using the term in its general sense to include trapwitnesses and approvers is a competent witness is provided for by section 133. It 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.” In reference to the requirements of corroboration, the word used is “may” and not “must”, and no decision of court can make it must .It ultimately depends upon court’s view as to the credibility of evidence tendered by an accomplice .If it is found credible and cogent, the court can record conviction on its basis even if uncorroborated .Corroboration in material particulars means that there should be some additional or independent evidence; (a) Rendering it probable that the story revealed by the accomplice is true and it is reasonably safe to act upon it; (b) Identifying the accused as one of those, or among those, who committed the offence? (c) Showing the circumstantial evidence of his connection with the crime, though it may not be direct evidence; and (d) Ordinarily the testimony of one accomplice should not be sufficient to corroborate

13

K.hasim v. state of T.N.,(2005).237 1 SCC 45

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that of the other.13

EVIDENCE OF ACCOMPLICE: LAW OF EVIDENCE

WHAT IS AN ACCOMPLICE The word accomplice has not been defined by the act. It is generally understood that an accomplice means a guilty associates or partner in crime .An accomplice by becoming an approver becomes a prosecution witness .An approver’s evidence has to satisfy a doubt test : (1) His evidence must be reliable and (2) His evidence should be sufficiently corroborated.14 An accomplice cannot corroborate himself; tainted evidence does not lose its taint by repletion.”The danger of acting on his own admission a bad character who took part in the offence and afterwards to save himself betrayed his former associates and who had placed himself in a position in which he can hardly fail to have a strong bias in favour of a prosecution; the real danger is that he is telling a story which in its general outline is true and it is easy for him to work into the story matter which is untrue. He may implicate ten people in an offence and the story may be true in allits details as to eight of them, but untrue as to the other two, whose names have been introduced because they are of the approver. This tendency to include the innocent with the guilty is peculiarly prevalent in India, and it is very difficult for the courts to guard against guilty safeguard against the risk of condemning the innocent with the guilty lies in insisting on independent evidence which in same measure implicates each accused. An accomplice is a person who participates in the commission of the actual crime charged against an accused. He is to be a “participes criminis “. There are two cases however in which a person has been held to be an accomplice even if he is not a participes criminis. Receivers of stolen property are taken to be accomplices of the thieves from whom they receives goods, on a trial for theft. Accomplices in previous offence for which the accused is on trial when evidence of the accused having committed crime identical type on other occasions be admissible to prove the system and intent of 14

Shanker v.State of T.N 1994 CrLJ 3071

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similar offences committed by the accused on trial are deemed to be accomplices in the

EVIDENCE OF ACCOMPLICE: LAW OF EVIDENCE the accused in committing the offence charged.15 A witness, who is not a guilty associates in crime and who does not sustain such a relation to the criminal act that he could be jointly indicated sent .A witness who only happens to be conversant with a crime or who makes no attempt to prevent it or who does not disclose it, is not an accomplice and the rule of practice as to corroboration does not apply to his evidence.16 There is no warrant for the position that if a man sees the perpetration of a crime and does not give information of it to anyone else, he might well be regarded as an accomplice.17 The privy Council has down in Mahadeo v king

18

,which is a decision on appeal from

Fiji islands ,were the English law of evidence is in force ,that the evidence of an accessory must be corroborated in some particular not only bearing upon the facts of the crime but upon the accused implication in it. It further holds that this principle the house of lords have again emphasized that this rule of corroboration, which was long a rule of practice, is now virtually a rule of law. In keeping with this principle the House of lords have again emphasized that a clear warning must be given to the jury that it is dangerous to convict and not merely telling them to proceed with causation .The facts of R.v Bagshaw 19 were virtually repeated in R v Spencer.20 In State v Muli,21 a person who is present at the commission of the crime and who is interested is not disclosing the commission of the crime is a person who is in the position of an accomplice.

CATEGORIES OF ACCOMPLICE An accomplice may come under any of the categories: 15

RK Dalmia v delhi administration ,AIR 1962 SC 1821 Dhanapati de v emperor ,1994 2 Cal 312. 17 Vemi reddy sathyanarayan reddy v state of hyedrabad 1956 Hyd 386 18 1936 38 Bom lr 1101 19 1984 1 All er 971. 20 1985 1 All er 673. 21 AIR 1959 All 53

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EVIDENCE OF ACCOMPLICE: LAW OF EVIDENCE (1)

PRINCIPAL OFFENDER OF FIRST DEGREE AND SECOND DEGREE: A principal of the first degree is one who actually commits the crime.

A principal of the second degree is a person who is present and assists in the perpetration of the crime .These persons are undoubtedly under all circumstances, accomplice. (2) A C C E S S O R I E S B E F O R E T H E F A C T S : Accessories before the facts are persons who abet, incite, procure or counsel for the Commission of a crime and they do not themselves participate in the commission of the crime of these persons, those who counsel, incite encourage or procure the commission of the crime are certainly accomplices . As for the persons who the fact, if they participates in the preparation of the crime are accomplice committed they are not participating in the commission of the same crime as the accused person in a trial are charged.

(3) A C C E S S O R I E S A F T E R T H E F A C T S : Accessories after the fact are persons who receives or comfort or protect persons who have committed the crime of felony knowing that they have committed the crime of felony. If accessories help the accused in escaping from punishment or help him from not being arrested, such person are known as horboures and these persons and these persons can be accomplices because all of them are participants in the commission of the crime in some way or the other. If a man sees the perpetration of the crime and does not give information of it to any one else, he might well be regarded in law as an accomplice. Such person though technically not an accomplice, his position is not superior to that of an accomplice.

Section 133 of the evidence act lays down that an accomplice is a competent witness and a conviction based on the sole of testimony of an accomplice is not illegal,

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(4)R E L I A N C E A T T H E T E S T I M O N Y O F A C C O M P L I C E :

EVIDENCE OF ACCOMPLICE: LAW OF EVIDENCE contrary to the provision of section 133, section 114, illustration (b) says the court may presume that an accomplice is unworthy in material particulars. In Emperor V. Srinivas krisna22 it has been laid down that section 133 is the only absolute rule of law as regard the evidence of an accomplice. In Haroon Haji Abdullah v State of Maharashtra: The Supreme court in this case held that: “The Indian Evidence Act in section 133 provides that an accomplice is a competent witness against an accused person and that a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice .The effect of this provision is that the court trying an accused may legally convict him on the single evidence of an accomplice. To this there is a rider in illustration (b) to section 114 of the act which provides that the court may presume that an accomplice is unworthy of credit unless he is corroborated in material particulars. This cautionary provision incorporated a rule of prudence because an accomplice who be of credit unless he is corroborated in material particulars. This cautionary provision incorporated a rule of prudence because an accomplice who betrays his associates is not a fair witness and it is possible that he may, to please the prosecution, weaves false details into those which are true and his whole story appearing true, there may be no means at hand to sever the false from that which is true. It is for this reason that courts, before they act on accomplice evidence, insist on corroboration in material respects as to the offence itself also implicating in some satisfactory way however small, each accused named by the accomplice. In this way the commission of the offence is confirmed testimony of the accomplice and the inclusion by the accomplice of an innocent person is defeated. This rule of caution or prudence has become so ingrained in the consideration of Accomplice evidence as to have almost the consideration of Accomplice evidence as to have almost the standing of a rule of law. The corroboration of evidence could be direct or circumstantial. One such circumstance may be the making of a number of confession by the co-accused. But before even a number of such confession can be used each such confession must inspire confidence both in its making and when there is a single retracted confession the probative value smaller.” 22

1950(7) bom lr 969

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corroborating other accomplice evidence the caution must necessarily be still greater and

EVIDENCE OF ACCOMPLICE: LAW OF EVIDENCE

(5) T R A P A N D D E C O Y W I T N E S S A N D A P P R O V E R : An accomplice in its general sense includes trap witness and approver. If an accused person is arrested and there after given a pardon, he is referred to as an approver. He is one that, confessing felony committed by himself accused others to be guilty of the same crime .When an accomplice terms as a witness on accepting the pardon granted by the court under section 306 Criminal Procedure Code to speak the facts relating to the offence, he is called an approver. If a person is induced by the police to take part in the crime for the purpose of collecting evidence against other’s he is called a trap-witness. (6) L E G I T I M A C Y O F W I T N E S S : The difference between the evidence of an approver and the confession of a co – accused is that in the first case, it is evidence given on oath and subject to crossexamination by the accused against whom it will be used; where as in the case of a co – accused against whom it is sought to be used or from the dock at the time of the trial. In either case, it cannot be subjected to cross-examination. Chandan and others v The state of Rajasthan: So far as the question about the conviction based on the testimony of the accomplice is concerned the law is settled and it is established as a rule of prudence that the testimony of accomplice if it is thought reliable as a whole conviction could only be based if it corroborated by independent evidence either direct or circumstances connecting the accused with the crime. Thus where in a murder case there was no direct evidence and the only available was that of the approver and other evidence regarding recovery of articles, but so far as the identification the articles at the parade was not examined at the trial, his evidence could not be ensued to corroborate the evidence of the approver because: (i) what he identified and stated to the Magistrate who conducted the identification (ii) what he stated to the Magistrate at the time of the test identification parade is not subjected to cross-examination was at the back of the and hence could not be used as

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parade is only be used to corroborated his testimony if he was examined at the trial and;

EVIDENCE OF ACCOMPLICE: LAW OF EVIDENCE evidence against by the approver did not approve, to be natural, the conviction of the accused was, therefore, liable to be set. So, far as the question about the conviction based on the testimony of the accomplice is concerned the law is settled and it is established as a rule of prudence that the testimony of accomplice it is thought reliable as a whole conviction could only be based if it is corroborated by independent evidence either direct or circumstantial connecting the accused with the crime . Haroon Haji Abdulla v State of Maharastra: 23 An accomplice is a competent witness and his evidence could be accepted and a conviction based on it if there is nothing significant to reject it as false. But the rule of prudence, ingrained in the consideration of accomplice evidence, requires independent corroborated evidence the accused against when the accomplice evidence is used with crime. Ravinder singh v state of Haryana:24 An approver is not most unworthy friend, if at all and be, having bargained for his immunity, must prove in the court. This test is fulfilled, firstly, if the story he relates involved to be a natural and probable catalogue of events that had taken place. The story if given of minute details according with reality is likely to be same if from being rejected previously. Secondly, once that hurdle is crossed, the story given by any approver so far as the accused on trial is concerned, must implicate him in such a manner as to give rise to a conclusion of guilt beyond reasonable doubt. In a rare case taking into consideration all the factous circumstance and situations governing a particulars case, conviction based on the uncorroborated evidence of an approver confidently held to be true and reliable by the court may be permissible. Ordinarily, however, an approver’s statement has to be corroborated in material particular’s binding closely the disclose between the crime and criminal. Certain clinching features of involvement disclosed by an approver appertaining directly to an accused if reliable, by the touchstone of other independent credible evidence, would give the needed assurance for acceptance of his

23 24

1968 2 SCR 641 1975 3 SCR 435

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testimony on which a conviction may be based.

EVIDENCE OF ACCOMPLICE: LAW OF EVIDENCE In this decision the first test indicated is that if the story given out by the accomplice appears intrinsically to be natural and probable, then alone that evidence could of some value and then it is further observed that ordinarily an approver’s statement has to be corroborated. In this view of the settled legal position which was not disputed before us, it was contended that the evidence about recovery is of no consequences as there is no consequences there is no evidence of identification but as it was contended. As the opposition said that, Gyausi lal who is the son of the deceased is not examined at the trial but he had identified articles at the identification parade and the learned counsel attempted to contend that this evidence could not be looked into because: (i) Who he identified and stated to the Magistrate who conducted the identification parade is only hearsay evidence as that evidence cannot be used to corroborate his testimony if he was examined at the trial.

EVIDENCE OF AN APPROVER AND THE CONFESSION OF THE CO-ACCUSED Is that in the first case, it is evidence given on oath and subject to cross-examination by the accused against whom it will be used, where as in the case of a co-accused the confession is made before the trial, behind the back of the accused against whom it is sought to be used, or from the dock at the time of the trial. In either case, he cannot be subjected to cross-examination. That is why it is a week evidence, and, taken into consideration only in extraordinary circumstance. In Kashmira Singh case, it was held that: “A co-accused who confesses is naturally an accomplice and the danger of the testimony in no way lessened when the evidence is not on oath and cannot be tested by cross-

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of one accomplice to corroborate another has repeatedly been pointed out. The danger is

EVIDENCE OF ACCOMPLICE: LAW OF EVIDENCE examination. The courts have insisted on corroboration in the case an evidence of accomplice, because: (i)The evidence of an accomplice is obliviously tainted evidence, he himself being one who taken a part in the crime (ii)No harm will come to him whatever part he gives himself, because, either he is not arrested by the police or if arrested, there is the lender of guilt on to innocent persons against whom a grudge is borne; and as pointed out in: Bhuboni Sahu v R.; “The real danger is that he is telling a story which in its general outline is true and it is easy for him to work into the story matter which is untrue.

NATURE OF CORROBORATION Corroboration is evidence from a source independent of the relevant witness which implicates the accused by tending to show both that the crime was committed and that the accused committed it. Corroboration, more broadly, however, might be taken to apply to any case in which one item of evidence boosts up the value of another item of evidence higher than it was before. The following definitions for ‘corroborate’ are given by the Oxford English Dictionary: To strengthen (an opinion, statement, argument, etc.) by concurrent or of a person.

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agreeing statements or evidence; to make more sure or certain; to support, confirm: said

EVIDENCE OF ACCOMPLICE: LAW OF EVIDENCE The Bombay high court has laid down the following principles with regard to the nature and extent of corroboration: (a) That it is not necessary that there should be independent conformation of every material particular; (b) That independent evidence should not only make it safe to believe that the crime was committed, but in some way reasonably connect or tend to connect the accused with it by confirming In some material particulars the testimony of the accomplice complainant that the accused committed the crime; (c) That the corroboration must come from independent sources; and (d) That the corroboration need not be direct evidence that the accused committed the crime it is sufficient if it is merely circumstantial evidence of his connection with the crime. The corroboration is not necessary of independent nature. Independent corroboration doesn’t mean that every detail given by the Accomplice must be corroborated by the independent witnesses. All that is required is that there must be some additional evidence rendering it probable that the story of the Accomplice is true and it is safe to rely on. In reference to the requirements of corroboration, the word used is “may” and not “must”, and no decision of court can make it must. It ultimately depends upon court’s view as to the credibility of evidence tendered by an accomplice. If it is found credible and cogent, the court can record conviction on its basis even if uncorroborated. Corroboration in material particulars means that there should be some additional or independent evidence; (a) Rendering it probable that the story revealed by the accomplice is true and it is reasonably safe to act upon it; (b) Identifying the accused as one of those, or among those, who committed the offence; (c) Showing the circumstantial evidence of his connection with the crime, though it may

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not be direct evidence; and

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EVIDENCE OF ACCOMPLICE: LAW OF EVIDENCE (d) Ordinarily the testimony of one accomplice should not be sufficient to corroborate that of the other.25

EVIDENCE OF ACCOMPLICE IN CRIME OF RAPE In the case of rape the evidence of prosecutrix that she had enforceably subjected to sexual intercourse along with co-accused when her conduct and circumstances indicate that she was consenting party, has to be disbelieved by court unless there is adequate corroboration-as held in Jarnail Singh v State of Rajasthan.26 A prosecutrix cant be considered as an accomplice and her testimony cant be acquitted with that of an accomplice in an offence. As a rule of prudence, however, court normally looks for some corroboration of her testimony, so as to satisfy its conscience that she is telling the truth and the person accused of rape on her, has not been falsely implicating. 27 She is infact a victim of crime and her evidence must receive the same weightage as is attached to an injured complainant or witness. Corroboration is not the ‘Sine Quanon’ for conviction in a rape case. The Indian courts refusing to act on the testimony of victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. There is no reason why the evidence of the female who complains of such, should be viewed with the aid of a spectacle fitted with lenses tinged with doubt or disbelief or suspicion. To do so, is to justify the charge the charge of male superiority in a male dominated society. 28 There is no rule of law that her testimony cant be acted upon without corroboration in materials particulars. She stands on a higher pedestal then injured witness. In the later case, there is injury on the physical form, while in the former it is physical as well as physiological and emotional. However, if the court on facts, finds its difficult to accept her version on its face value it n=may search for evidence, direct or circumstantial, to lend assurance to her testimony. Assurance, sought of corroboration, as understood in the context of an accomplice, would suffice.29 K.hasim v. state of T.N.,(2005).237 1 SCC (1972) CrLJ 824 (Raj). 27 Supra note 7. 28 Rameshwar Kalyan Singh v State of Rajasthan AIR 1952 SC 54. 29 State of H.P v Shree Kant, (2004) 8 SCC 153. 26

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25

EVIDENCE OF ACCOMPLICE: LAW OF EVIDENCE Also in rape case independent confirmation of every material circumstances is not required and the corroboration of the evidence of the prosecutrix need not be direct evidence that the accused committed the crime but it is sufficient if it is merely circumstantial evidence of the connection with the crime.30 Corroboration of evidence of prosecutrix in trial u/s 366 of IPC is not necessary.31 What she said at or about time of occurrence being the part of res gestate can be corroborative evidence of her evidence and conviction can be based on testimony of the prosecutrix. In the case of rape of a girl of 7 years who’s evidence was changing from time to time her evidence must be corroborated32 evidence of the girl should carry the more weight then evidence of an ordinary witness.

EVIDENCE OF ACCOMPLICE OF CRIME OF MURDER Conviction of the accused resting primarily on the testimony of the accomplice in a murder case is valid only if the testimony is reliable and is corroborated in material particulars and in where exculpatory statement of the accomplice which was full of infirmities and was uncorroborated, there was no evidence on record to show that the

30

Sheikh Jakir v State if Bihar AIR 1983 SC 911. Moti Ram Krishna Rao v State of M.P, AIR 1955 Nag 121. 32 Duli Chand v State, AIR 1952 Ajmer 54. 33 Banwari Lal v State of H.P, (2004) CrLJ 1067. 31

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deceased died an unnatural death.33

EVIDENCE OF ACCOMPLICE: LAW OF EVIDENCE

EVIDENCE OF ACCOMPLICE AND CONFESSION OF AN ACCUSED In case of a person confessing who has resiled from his statement, general corroboration is sufficient, while an accomplices’ evidence should be corroborated in material particulars and a co-accused who confessed is naturally an accomplice and the danger of using the testimony of one accomplice to corroborate another has repeatedly been pointed out. The danger is no way lessened when the evidence is not on oath and cant be tested by cross-examination.34 A confession intended to be used against a co-accused stands on a lower level then accomplice evidence because the latter is at least tested by cross-examination whilst, the former the is not. The confession of co-accused are not evidence but if there is other evidence on which a conviction can be based; they can be referred to as lending some assurance to the verdict.35 An extra-judicial confession made by a person, who was subsequently made a approver, cant be relied upon. The approver is no better then an accomplice and his testimony therefore, would need independent corroboration before it can be acted upon.36 Corroboration of an accomplices statement in the court must be found elsewhere and not in his confession, for an accomplice like an approver does not corroborate himself. But his confession can certainly be referred to in order to show that his story narrated by him in the court has in its materials particulars been throughout consistent and the caution must necessarily be still greater and the probative value smaller, where there is single retracted confession corroborating other accomplice evidence.37 None disclosure of the name of one accused person when questioned by police before he offered to confess, is not of much consequence when in the confessional statement he implicated himself and other accused persons. Where a petition for quashing of FIR was moved on the ground that the involvement of the accused in the offence could not be construed merely on the confessional statement of the accomplice without any corroboration, it was held that

34

Kashmira Singh v State of M.P, AIR 1952 SC 159. Haricharan Kurmi v State of Bihar, AIR 1964 SC 1184. 36 State v Debnu, AIR 1957 HP 52. 37 Supra 11. 35

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when the statement of the accomplice itself prima facie made out an involvement of a

EVIDENCE OF ACCOMPLICE: LAW OF EVIDENCE petitioner in the alleged offence, the corroboration part of the statement would be a matter to be embarked upon by the trial court.38

CONFESSIONS OF NALINI, SENTENCED TO DEATH FOR RAJIV GANDHI’S ASSASSINATION WORDS

(IN

HER

OWN

)

May 7, 1991:"Subha, Dhanu and myself (Nalini) surveyed the place and requested some organisers to allow us to garland V.P. Singh when he comes to the dais. However, the organisers did not permit us. But Subha and Dhanu managed to reach V.P. Singh and hand over the garland to him...." May 21, 1991: "I (Nalini) saw Subha was trying to put Dhanu in the crowd of people waiting to greet Rajiv Gandhi. Once Rajiv Gandhi began to receive shawls from people the queue broke. Dhanu sneaked into the ladies crowd which surrounded Rajiv Gandhi and came close to him. When Kokila was reciting her poem, she exploded the bomb...." Nalini, the 33-year old stenographer, now mother of a five-year old girl born in jail, proved to be the most vital link for the Special Investigation Team (SIT). She was the principal accused, the only survivor of the five-member "assault" team which killed Rajiv Gandhi, whose confessional statement proved to be the clincher for the investigators. In all, 17 of the 26 accused persons gave confessions under Section 15 of the Terrorists and Disruptive (Prevention) Act (TADA). Though all the confessions were retracted later, they remained admissible evidence and as a reading of the 1,600-page judgment shows, the versions of Nalini, Murugan, the LTTE militant who indoctrinated and later of the conspiracy case.

38

Sureshchandra Bahri v State of Bihar, AIR 1994 SC 2420.

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married her, as well as that of Santhan, another hardcore LTTE militant formed the core

EVIDENCE OF ACCOMPLICE: LAW OF EVIDENCE It was another Sri Lankan accused, Jayakumar who first speaks of the two "tigresses" who arrived on May 1, 1991 in Madras as part of the nine-member assassination squad with Sivarasan. Jayakumar introduces the LTTE's death-squad saying that, "Sivarasan had lost one eye in the war with IPKF. Subha and Dhanu were trained LTTE tigresses. Both of them would speak ill of the IPKF and Rajiv Gandhi." In his confession, Murugan says he knows Dhanu as "Anbu" and had seen her in LTTE training camps. Giving his profile of the would-be assassin, he says she used to work with Akila, the head of the LTTE's women's intelligence wing and used to maintain the files of prisoners. His version finds corroboration in the confession of another accused, Athirai, who says he had first spotted Dhanu in the LTTE's training camp in Mathaiya. Dhanu, she recalls, was unmarried, had lost her father, used to drive a moped in Sri Lanka and spoke very little to the others in the LTTE camps. The first "dry run" attempted by the LTTE is mentioned in the confession of Bhagyanathan, Nalini's brother (also sentenced). Even before the death squad had arrived, Murugan had begun the indoctrination of Nalini and on April 18, when Rajiv Gandhi was beginning his election campaign, took her along for a rally Rajiv attended along with Jayalalitha. Bhagyanathan also confesses that it was he who introduced the photographer, Haribabu39 to the squad. In her lengthy confession, Nalini says she had realised early Murugan and Sivarasan wanted to use her as a "cover" for Dhanu and Subha. "They had difficulty in communicating as they spoke in typical Sri Lankan accent. For this reason they needed my services as a natural cover." But her role as a co-conspirator was also clear to her. "...by now I had been mentally prepared for retaliatory action including killing of

39

he was also interested in the LTTE.

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leaders"- says Nalini.

EVIDENCE OF ACCOMPLICE: LAW OF EVIDENCE Nalini makes it evident that the "dry run" conducted by the gang during V.P. Singh's election rally at Nandanam, Chennai, was their acid test. But they failed - Nalini did not make it to the dais and Subha and Dhanu could only hand over the garland to him. Murugan confesses to the blunder later, "I (Murugan) had given Nalini my Yashika camera to photograph V.P. Singh. But she did not photograph properly due to nervousness. Subha and Dhanu could not garland V.P. Singh in the neck as he received it in the hand. Sivarasan scolded everybody for not garlanding on the dais and he warned that they should not repeat it." In his judgment, Justice V. Navaneetham has interspersed the versions of the accused with the corroborative evidence collected by the SIT. Subha and Dhanu, for instance, mention the "dry runs," in two letters they wrote in mid-May to Pottu Amman, the head of LTTE's intelligence wing and Akila, the head of the women's intelligence wing from Madras. In one letter, Dhanu and Subha write, "we are confident of succeeding in our mission for we had encountered a similar situation. We will complete the mission by the month end". In the other letter they say: "We believe that the objective for which we have come here will be accomplished successfully because we had encountered a similar situation (we went very close to Singh)..."Justice Navaneetham has given the judgment a fictional tilt by taking the plot back and forth -- using bits of evidence marshalled by the SIT and, then, the confessional statements. According to him, the plot thickens once Sivarasan learns from newspapers that Rajiv Gandhi was, finally, arriving in Sriperumbudur. Nalini recalls that Sivarasan was "very tense and excited. He said they had come only for this...I had a strong feeling that Rajiv Gandhi was their final target." The judge uses a bunch of other confessions to describe how the LTTE's squad prepared for Sriperumbudur. In her confession, Nalini says that one day before the assassination, Dhanu was complaining of a pain in her ankle and she (Nalini) advised her to get treated in her mother, Padma's house. "From this conduct of Sivarasan," the judgment notes, "it wanted to make her 100 per cent fit before they left for final assault."

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can be inferred that Dhanu was going to kill Rajiv Gandhi and that is why Sivarasan

EVIDENCE OF ACCOMPLICE: LAW OF EVIDENCE It is from the confessions of Vijayan, another Sri Lankan accused, and Nalini comes the countdown to the tragedy. Vijayan describes how Dhanu and Subha had carefully dressed for the occasion, Dhanu had applied make-up and was photographed with Sivarasan's camera. But it is the version of Nalini which is the most incriminating. She confessed that, "Subha told me thatDhanu was going to create history today by assassinating Rajiv Gandhi and that I will be very happy if I also participated in that. I agreed. I could also see that Dhanu was concealing an apparatus inside her dress." She then describes how before boarding the bus for Sriperumbudur, Dhanu said she wanted to say her final prayers and was taken to the Pillayar Temple. They then purchased a garland, had ice-cream and boarded the bus for Sriperumbudur. Once in the meeting ground, Nalini recalls how Sivarasan was trying to put Dhanu in the crowd of people surging forward to greet Rajiv Gandhi and trying to talk to two women in particular - Latha Kanan and her daughter, Kokila who was supposed to read out a poem to Rajiv Gandhi. On the dais, Rajiv had noticed Kokila. He patted the girl on her back. Kokila began reciting the poem. Dhanu was standing right behind her. And this time she did not falter. Besides the confessions of the 17 accused, the version of one more witness is relied upon heavily by the judge. It is the evidence given to the court by a former member of the Rajya Sabha and a member of the DMK party, who has been put on the list of coded witnesses. The former MP had confessed to having clandestinely visited Jaffna in 1989 to meet LTTE supremo, V. Prabhakaran and had been video-taped. The coded witness had also admitted that on July 30, 1987 he had spoken to Prabhakaran on telephone from Ashoka Hotel in New Delhi. Prabhakaran had spoken the following words, "we have been betrayed by the Government of India and by Rajiv Gandhi. I have been stabbed in the back." This according to the judgment is the raison 'd eat of the assassination of the former London, where his speech had again been taped. However, as the assassination trial progressed and the role of the LTTE was established, the former MP turned hostile.

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prime minister. Later, the former MP had spoken at an international Tamil Conference in

EVIDENCE OF ACCOMPLICE: LAW OF EVIDENCE

Unwilling to let go evidence which hinted at the motive for the killing, technical experts from the Indian Institute of Technology, probably for the first time for a criminal trial in India, did "neutral networking" of the speech and visuals in the cassettes and matched them with the voice and features of the witness. Thus, besides the versions of the accused themselves, his evidence remained crucial for the prosecution.

CONCLUSSION

An accomplice cannot corroborate himself; tainted evidence does not lose its taint by repletion. The danger of acting on his own admission a bad character who took part in the offence and afterwards to save himself betrayed his former associates and who had placed himself in a position in which he can hardly fail to have a strong bias in favour of a prosecution; the real danger is that he is telling a story which in its general outline is ten people in an offence and the story may be true in all its details as to eight of them, but untrue as to the other two, whose names have been introduced because they are of the

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true and it is easy for him to work into the story matter which is untrue. He may implicate

EVIDENCE OF ACCOMPLICE: LAW OF EVIDENCE approver. This tendency to include the innocent with the guilty is peculiarly prevalent in India, and it is very difficult for the courts to guard against guilty safeguard against the risk of condemning the innocent with the guilty lies in insisting on independent evidence which in same measure implicates each accused An accomplice means a person who has taken part in the commission of a crime. When an offence is committed by more then more person in concert, every one participating in it’s commission is an accomplice. Conspirators lay their plot in secret, in execute it ruthlessly and do not leave much evidence behind. The court seeks corroboration of the approver’s evidence with respect to the part of other accused person in crime, and this evidence has to be of such a nature as to connect the other accused with the crime. The corroboration need not be direct evidence of the commission Of the offence by the accused.

BIBLIOGRAPHY BOOKS: •

S V Joga Rao(Dr), Evidence : Cases and Materials, LexisNexis(A division of Reed Elsevier Pvt Ltd), New Delhi, India, 2003 Dr. Avtar Singh, Principles of Law of Evidence, sixteenth edition, Central Law Publication 2007

•

Vepa P. Sarathi, Law of Evidence, sixth edition Eastern Book Company

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•

EVIDENCE OF ACCOMPLICE: LAW OF EVIDENCE Lucknow, 2006 •

Cross on Evidence, (Collins Thaper ed.),seventh edn.1990

•

Murphy on Evidence, fifth edition ,1995.

•

M Monir, commentary on law of Evidence, sixth edition,1989

•

Cross on Evidence, (Collins Thaper ed),seventh edn,1990

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• www.legalserviceindia.com

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