Report No. 69

VII. Recommendation

73.35. We have discussed so far the scope of the concept of accomplices and the effect of participation in crime in general. Coming specifically to the sections, it remains now to consider the question of reconciling the provisions of section 114, illustration (b) and section 133. Notwithstanding the judicial pronouncements to the effect that the first is a rule of prudence and the second a rule of law, the impression still survives that the approaches underlying the two provisions are not imperfect harmony with each other. That a conviction is not illegal even if based on the uncorroborated testimony of an accomplice, may be true in theory; but, according to current trends, such convictions have not been upheld.

73.36. The true position is that it is section 114, illustration (b) which has to be given overriding effect. This correct position emerging from the case law, is obscured by reason of the existence of the two provisions-and that too at two different places in the Act. To remedy this defect, it was suggested to us that we should give a prominent place to section 114, illustration (b)-a rule of prudence which overrides the bare legal rule in section 133, if at all it is considered necessary to retain section 133, it could be by way of retaining the earlier half. But the matter should be dealt with by one section, which would incorporate section 114, illustration (b) as the general and mandatory provision and (ii) combine with is section 133, earlier half.

73.37. The observations of Stephen on these sections unfortunately fail to explain why it was felt necessary to insert both section 114, illustration (b) and section 133. These observations do not also explain why it was considered proper to place the two different provisions in different chapters-except that the rule in section 114, incorporating a presumption based on ordinary commonsense, covers a much wider field than the rule in section 133. Moreover, whatever may have been the position in 1872, the rule of prudence requiring corroboration has now practically attained the status of a rule of law1.

1. See case law, infra.

73.38. Observations of Ameer Ali J.-

The observations of Ameer Ali J. in Kamla Prasad1 state the position thus:-

"The principle underlying the rule against the acceptance of an accomplice's evidence without corroboration proceeds upon certain reasons. Those reasons have been set forth in a number of cases which it is not necessary for us to refer here. Primarily an accomplice's evidence requires to be accepted with a great deal of caution and scrutiny, because it is naturally supposed that, when a person is concerned in a crime and has been discovered as being so concerned, he is likely to swear falsely in order to shift the guilt from himself.

It is also supposed that an accomplice, in other words a participator in the crime, is a person of bad character, and that his evidence, although given under the sanction of an oath, is open to suspicion, and thirdly, evidence given in expectation of any hope of pardon is sure to be biased in favour of the prosecution. It is for these reasons, although the law declares that a conviction is not illegal, merely because it proceeds upon the uncorroborated testimony of an accomplice, that the Courts have held, that ordinarily speaking the evidence of an accomplice should be corroborated in material particulars, and the practice which has been laid down has become, one may say, a part of the law itself".

1. Kamla Prasad v. Sital Prasad, 1911 ILR 28 Cal 339 (342, 343) (Ameer Ali and Pratt, JJ.).

73.39. As to the correct position, it is enough to refer to a fairly recent Supreme Court case.1 In that case, so far as is material, the testimony of the accomplice had not been corroborated, the charge being one of forgery by means of tampering with certain dates in a register. The error of the High Court, in failing to notice that the evidence of the accomplice had not been corroborated, was described by the Supreme Court as an error in law. It pointed out that there was no evidence offered by any of the prosecution witnesses examined from the appellant's office to show the dates when the application were received.

1. R.R. Chari v. State of Uttar Pradesh, AIR 1962 SC 1573 (1583, 1584) (Gajendragadkar & Wanchoo, JJ.) reversing AIR 1959 All 149 (R.K. Chowdhury, J.).

73.40. In a Supreme Court judgment reported in 19701, it was observed that an accomplice is competent to depose but, as a rule of caution, it will be unsafe to convict upon his testimony alone. These observations were made with reference to evidence of an approver. As to the nature of corroborative evidence, it was laid down clearly that it must confirm that part of the testimony which suggests that the crime was committed by the accused. On the facts, corroborative evidence was held to be sufficient. In an earlier case,2 it was even said that the test of reliability of approver's and accomplices evidence was for the court to be satisfied that there was nothing inherently impossible in their evidence. After that conclusion is reached as to reliability, corroboration is required.

1. Sheshanna v. State of Maharashtra, AIR 1970 SC 1330.

2. Lachi Ram, AIR 1967 SC 792.

73.41. It would appear that while for some time, particularly in the Bombay and Madras High Courts, there existed a controversy or uncertainty as to whether there was a rigid rule that the evidence of the accomplice must be corroborated, there has now come to be recognised a mandatory rule to that effect. It is in this sense-that the latter half of section 133, which provides that the conviction is legal, is a dead letter. The first half of section 133, which provides that an accomplice is a competent witness, though a redundant provision in view of section 118, is harmless. But the latter part cannot be described as merely harmless, because it creates a noticeable conflict with section 114, illustration (b), as judicially construed. In other words, if one reads the judicial construction especially during the recently decided cases, on section 114, illustration (b), one cannot deny that it is squarely inconsistent with the latter half of section 133.

73.42. The view taken by the majority judgment in the madras case1 and the minority judgment may be cited as examples. The majority would take the view that a court may be warranted in declining to draw the presumption. Section 133 declares the law, while section 114 merely lays down certain presumption of fact. The minority would take the view that the presumption under illustration (b) must first be drawn. In the minority judgment, Shankaran Nayar, J. recognised the possibility of exceptional circumstances, but recent Indian decisions do not recognise even this possibility. The current view goes beyond the minority view. Even exceptional circumstances are not recognised.

1. ILR 35 Mad.

73.43. Presumption under section 114(b) practically mandatory.-

That the presumption under section 114 is mandatory, though not so expressed in the language, is fairly clear from the reported cases. In MacDonald's Case1 the Privy Council observed that "by every code of evidence, the testimony of a professed accomplice requires to be carefully scrutinised with anxious search for corroboration". These observations, though not made, with reference to the Indian Act, state the correct principle.

1. W.C. Macdonald v. Pred Latimer 1929 PC 15 (18).

73.44. Suggestion considered.-

Thus, the position briefly is that-(i) section 114, illustration (b) is construed in practice as mandatory, and (ii) section 133, latter half, is a dead letter. The suggestion in concrete terms was to substitute one section, in place of section 114, illustration (b) and section 133.

73.45. Recommendation as to section 114 and section 133.-

While we entirely agree that an amendment is needed so as to remove the apparent inconsistency between the two provisions, we do not wish to make the provision in section 114, illustration (b), a mandatory one. As regards section 133, we think that the entire section should be deleted, instead of retaining its earlier half as was the suggestion. Our recommendation, then, is that a section 133 should be omitted, and that in section 114, illustration (b), the words "by independent evidence" should be added after the words "material particulars", that being the general understanding of the nature of corroborative evidence required in respect of accomplices.

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