Report No. 69

IV. Meaning

73.13. So much as regards the position in the law of procedure. The meaning of the expression "accomplice" is a matter of some interest. In the new Oxford Dictionary, it is stated that the word "accomplice" may be spelt as "a complice", meaning a partner in crime, an associate in guilt.1

The term "accomplice" is not defined in the Evidence Act. The Penal Code does not even refer to it The Code of Criminal Procedure does not use it; it merely refers to the term "accomplice" in a marginal note, which reads thus: "Tender of pardon to accomplice".

The term "accomplice" signifies a guilty associate in crime; or when the witness sustains such a relation to the criminal act that he could be jointly indicated with the accused he is an accomplice.2 This definition is based upon U.S. v. Neverson, 14 Century Dig Col 1279, and White v. Com., 14 Century Dig Col 1280. The Patna case of Kailash Missir v. Emperor, AIR 1931 Pat 105, the Oudh case of Jagannath v. Emperor, AIR 1942 Oudh 221, and the Sind case of Chetumal v. Emperor, AIR 1934 Sind 185, have adopted this definition of "accomplice" which was also adopted in a few other cases3. The terms was explained in Ismail Hussain Ali v. Emperor, AIR 1947 Lah 220, as follows:-

"The expression 'accomplice' has not been defined in the Evidence Act, but there can be little doubt that it means a person who knowingly or voluntarily cooperates with or aids, and assists another in the commission of a crime."

1. Kailash Missir v. Emperor, AIR 1931 Pat 105 (109).

2. Ramaswami Gounder v. Emperor, ILR 27 Mad 271: 14 MLJ 226 (per Subramania Ayyar, J.).

3. (a) Ghudo Ramdhar v. Emperor, AIR 1945 Nag 143;

(b) K.S. Nirmalkum Arsinghji v. State, AIR 1956 Sau 55;

(c) Gobinda Balji Sonar v. Emperor, AIR 1936 Nag 245;

(d) Chetumal Rekumal v. Emperor, AIR 1934 Sind 185.

73.14. Grades.-

In Emperor v. Mathews, AIR 1929 Cal 822 (826), (case of bribery), Cuming, J. made the following observations elucidating the various grades of accomplices:

"It is to be remembered that there are, it may be said, many grades of accomplices. They vary from the man who, for example, with his own hand committed a murder, to the man who as in the present case it is alleged, offered a bribe to another when the latter is being tried for taking the illegal gratification and to that extent aided the accused in committing his offence of taking an illegal gratification.

For, this man is not strictly speaking guilty of the offence of which the other is being tried, and he certainly does not come strictly within the meaning of the term "accomplice" if we accept the definition of term "accomplice" as given by Subrahmanya Ayyar J. in the case of Ramaswami Gounden g. Emperor, 1904 ILR 27 Mad 271, or by Glover, I, in the case of Queen v. Ram Sahoy, 20 MRCr 19, Subramanya Ayyar J. held that the term "accomplice" signifies a guilty associate in crime or where the witness sustains such a relation to the criminal act that he could be jointly indicated with the accused."

73.15. Guilty association necessary.-

Every "participation" in the physical act which constitutes an offence does not make a person an accomplice. There must be a guilty association in crime. It depends upon the nature of the offence and the extent of the complicity of the witness in it. There must be mens rea.

73.16. Presence not equated with complicity.-

In particular, mere presence at the scene of crime does not constitute complicity in crime unless there is guilty association. R. v. Coney, (1882) 8 QBD 534 (557, 558), decided that non-accidental presence at the scene of the crime is not conclusive of aiding and abetting. The jury has to be told by the judge in clear terms, what it is that has to be proved before they can convict off aiding and abetting; what it is of which the jury must be sure as matters of inference before they can convict of aiding and abetting, in such a case where the evidence adduced by the prosecution is limited to non-accidental presence. What has to be proved is stated by Hawkins J. in a well-known passage in his judgment in R. v. Coney, where he said:

"In my opinion, to constitute an aider and abettor some active steps must be taken by word, or action, with the intent to instigate the principal, or principals. Encouragement does not, of necessity, amount to aiding and abetting; it may be intentional or unintentional, a man may unwittingly encourage another in fact by his presence, by misinterpreted words, or gestures, or by his silence, or non interference, or he may encourage intentionally by expressions, gestures, or actions intended to signify approval. In the latter case he aids and abets, in the former he does not.

It is no criminal offence to stand by, a mere passive spectator of a crime, even of a murder. Non-interference to prevent a crime is not itself a crime. But the fact that a person was voluntarily and purposely present witnessing the commission of a crime and offered no opposition to it, though he might reasonably be expected to prevent and had the power so to do, or at least to express his dissent, might under some circumstances, afford cogent evidence upon which a jury would be justified in finding that he wilfully encouraged and so aided and abetted. But it would be purely a question for the jury whether he did so or not."

An accessory after the fact is an accomplice,1-2

On the meaning of "accomplice", the observations of Ramaswami J., in Ambujan Ammal, In re3 are worthy of perusal:

"An accomplice is a person who has concurred in the commission of an offence. 4

The word 'accomplice' means a guilty associate or partner in crime, or who in some way or other is connected with the offence in question, or who makes admissions of fact showing that he had a conscious had in the offence.5 It includes an accessory after the fact."6

1. AIR 1943 PC 4.

2. Surya Kant v. R., 24 CWN 119 (Huda, J.).

3. Ambujan Ammal (in re:), AIR 1954 Mad 326.

4. R. v. Mullins, (1848) 3 Cox CC 526: 12 JP 776 (Maula, J.).

5. (a) Jagannath v. Emperor, AIR 1942 Oudh 221. (b) Emperor v. Burn, 11 Born LR 1153.

6. Ismail v. Emperor, AIR 1947 Lah 220.

73.17. Variety of situations.-

The scope of the concept of accomplice has raised interesting problems with reference to a variety of situations in India. For example, is a person who offers a bribe to public officer an accomplice?1 The question has been answered in the affirmative.

1. (a) R. v. Chhagan, ILR 14 Born 331; (b) Huntley v. Emperor, AIR 1944 FC 66.

73.18. Agent for prosecutions.-

The question of spies has also come up. A distinction is sometimes made between an agent for the prosecution who is a mere spy and a person who associates with criminals with a criminal design. The former is not an accomplice, and his evidence does not require corroboration, though the weight to be attached depends on the character of the individual witness; the latter is an accomplice whose evidence requires corroboration.1-2

If the position of a witness is analogous to that of an accomplice, corroboration in material particulars would be required.3

A few leading cases on the subject, apart from those of Supreme Court (referred to separately) are

(a) Those of the Privy Council, Bhuboni Sahu v. King, AIR 1949 PC 257: (1949) 2 MLJ 194, and Mahadeo v. King, AIR 1936 PC 242: 37 Cr LJ 914;

(b) The Madras cases of Ramaswami Gounden v. Emperor, ILR 27 Mad 271: 14 MLJ 226; In re. S.A. Sattar Khan;4 In re Addanki Venkadu;5 Venkatiah v. Emperor, 1937 Mad Cr C 27; In re M.K. Thiagaraja Bhagavathar;6 Vayasa Rao v. King, 12 MLJ 283; Muttukumaraszvami v. Emperor, ILR 35 Mad 397' Emperor v. Nilakanta, 22 MLJ 490; In re. B.K. Rajagopal;7

(c) The Calcutta cases of Hafizuddin v. Emperor, AIR 1934 Cal 678; Narain Chandra v. Emperor, AIR 1936 Cal 101; Nurul Amin v. Emperor, AIR 1939 Cal 335: 40 Cr LJ 667; Alimuddin v. Q.E., 1896 ILR 23 Cal 361; Dhanpati Dev v. Emperor, AIR 1946 Cal 156;

(d) The Bombay case of Papa Kamal Khan v. Emperor, AIR 1935 Born 230; the Nagpur case of Ghudo v. Emperor, AIR 1945 Nag 143;

(e) The Oudh case of Jagannath v. Emperor, AIR 1942 Oudh 221; the Lahore case of Ismail v. Emperor, AIR 1947 Lah 220; and the Patna case of Kailash Missir v. Emperor, AIR 1931 Pat 105.

1. Emperor v. Chaturbhuj, 1911 ILR 38 Cal 96.

2. See S. v. Samuel, AIR 1961 Ker 99.

3. Vemireddy v. S., 1956 SCR 347: AIR 1956 SC 379; explained in Ramratan v. S., AIR 1962 SC 424 (428): (1962) 3 SCR 590.

4. S.A. Sattar Khan (in re:), AIR 1939 Mad 283.

5. Addanki Venkadu (in re.:), AIR 1939 Mad 266.

6. M.K. Thiagaraja Bhagavathar (in re:), AIR 1946 Mad 271: (1946) 1 MLJ 42.

7. B.K. Rajagopal (in re:), AIR 1944 Mad 117 (FB): (1943) 2 MLJ 634.

V. English Law

73.19. Evolution of the law in England is of interest. In the leading case of R. v. Baskerville, (1916) 2 KB 658 (CCA),1 reported in 1916, Lord Reading, Chief Justice, delivering the judgment of the court of Criminal Appeal (which included Scrutton, Avory, Row latt and Atkin, JJ.) observed:

"There is no doubt that the uncorroborated evidence of an accomplice is admissible in law but it has long been a rule of practice at common law for the judge to warn of the danger of convicting a prisoner on the uncorroborated testimony of an accomplice and in the discretion of the judge, to advise them not to convict upon such evidence; but the judge should point out to the jury that it is within their legal province to convict upon such unconfirmed evidence."

Statham v. Statham, 1929 Probate 13 (139), reported in 1929, contains a useful analysis of the whole law relating to corroboration of the evidence of accomplices. Lord Hanworth M.R. referred to the cases of Thompson v. The King, 1918 AC 221, R. v. Jellyman, (1838) 8 Car & P 604: 173 ER 637, R. v. The Tate, (1908) 2 KB 680 and R. v. Baskerville, (1916) 2 KB 658 and deduced three propositions from them. First, that the evidence of an accomplice is not accepted without corroboration. Second, that a conviction may be quashed in an appeal court where a trial judge had omitted to caution a jury against convicting on the uncorroborated evidence of an accomplice.

Third, that the corroboration must be found in some material particular tending to show that the accused had committed the acts charged. The evidence must also be such as affected that accused by connecting him or tending to connect him with the crime. This case shows a more stringent approach. Later, in Davies v. D.P.P., 1954 AC 378 (399) (HL)., the following propositions were enunciated by the House of Lords:

"(1) On any view, persons who are participes criminis in respect of the actual crime charged, whether as principals or accessories before or after the fact (in felonies) or persons committing, procuring or aiding and abetting (in the case of misdemeanours). This is surely the natural and primary meaning of the term 'accomplice'. But in two cases, persons falling strictly outside the ambit of this category have, in particular decisions, been held to be accomplices for the purpose of the rule: viz.

(2) Receivers have been held to be accomplices of the thieves from whom they receive goods on a trial of the latter for larceny [R. v. Jennings, (1912) 7 Cr App R 242; R. v. Dixon, (1925) 19 Cr App R 36].

(3) When X has been charged with a specific offence on a particular occasion, and evidence is admissible, and has been admitted, on his "having committed crimes of this identical type on other occasions, as proving system and intent and negativing accident; in such cases the court has held that in relation to such other similar offences, if evidence of them were given by parties to them, the evidence of such other parties should not be left to the jury without a warning that it is dangerous to accept it without corroboration [R. v. Farid, (1945) 30 Cr App R 168]........"

The position as to "traps" will be discussed later.2 The following are not accomplices in England:

(a) a child under the age of criminal responsibility assisting in a crime;3

(b) a child victim of a sexual assault,4 and

(c) a woman upon whose immoral earnings the accused is alleged to have lived.5

1. This was cited with approval in Rameshzvar v. State, 1952 SCR 377 (385): AIR 1952 SC 54 (57).

2. See "Entrapment", infra.

3. R. v. Cratchley, (1913) 9 Cr App R 232.

4. R. v. Pitts, (1912) 8 Cr App R 126; R. v. Tatham, (1921) 15 Cr App R 132.

5. R. v. King, (1914) 10 Cr App R 117.

73.20. But, in general, a warning has to be given if a witness has some purpose of his own to serve.1 It is the same with any witness of doubious and doubtful character2 so that, in practice, a warning would be given about the evidence of a woman on whose immoral earnings the accused is alleged to have lived.3 It may be stated also with reference to children who are helpers in crime and child victims of assaults, that corroboration will be required even though they are not "accomplices", in view of separate rules based on different grounds.

1. R. v. Prater, (1960) 2 QB 464.

2. R. v. Brown, (1910) 6 Cr App R 24.

3. R. v. King, (1914) 10 Cr App R 117 (119), Reading, LCJ.

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