Accomplice Evidence in Sexual Offenses - Sexual Offences

It was frequently urged against an accomplice, during the 1600's and 1700's, that since by his own confession he was guilty of crime, this turpitude thus acknowledged made him as incompetent as if it were proved by conviction for the crime. This argument is only broadly related to the maxim ne mo tupitudinem suam allegans audiendus est. This means that a person who comes upon the stand to testify that he has at a former time spoken falsely or acted corruptly is, by his very confession, a liar and untrustworthy as a witness. The argument, however, has been judicially repudiated from the very beginning - partly on the ground of necessity, and partly on the ground that turpitude though self confessed, is no hindrance unless there has been a conviction of crime.[2]

Notwithstanding the common law rule which formerly prevailed, that witnesses who were interested in the inquiry were not admissible, an exception was always made in the case of an accomplice who was willing to give evidence; and this exception has been stated to be founded on necessity.[3] The court usually considers not only whether the defendant can be convicted without such evidence, but also whether he can be with it. If, therefore, there be sufficient evidence to convict without, the court will refuse to allow him as a witness. So, if there be no reasonable probability of a conviction even with his evidence, the court will refuse. Where the accomplice has been jointly indicted, and before the trial begins, it appears that his evidence will be required, the usual practice is before opening the case, but after the indictment to apply to have him acquitted by offering no evidence or of that of first convicting and sentencing, if practicable
In sexual crimes, the other person usually the woman - may or may not be an accomplice, according as she is, by the nature of the crime, a victim of it or a voluntary partner in it. Thus, in adultery, the other party may well be deemed an accomplice[4], and so also, perhaps, in incest[5] and in pandering or pimping[6]. But the woman is not an accomplice in rape[7], rape under age[8], seduction[9], or abortion[10] nor the participant in sodomy[11]

Who is an Accomplice

The word "accomplice" is not defined either in the Indian Evidence Act or in the India Penal Code. An accomplice is a person who along with another or others has taken some part - large or small - in the commission of the crime.[12] It signifies a guilty associate in crime.[13] It is a general term and is used to designate the person whom the police for some reason do not arrest but call as a witness 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.[14] If he is arrested and thereafter given a pardon, he is referred to as an approver.[15] That an accomplice, using the term in its general sense to include trap-witnesses and approvers, is a competent witness is provided for by Section 133 of the India Evidence Act, 1872.[16]

The Law
Sec. 133 of the Indian Evidence Act, 1872 states -
"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."

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 cross-examination by the accused against whom it will be used; whereas 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, it cannot be subjected to cross-examination. That is why it is a weak type of evidence, and, taken into consideration only in extraordinary circumstances. Under the illustration of S. 114, the court may presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars.[17]

There is an apparent contradiction between S. 133 and the illustration quoted above. This conflict is resolved in practice by following the procedure prescribed in the case of R v. Baskerville[18]. In this case, Baskerville had been convicted of having committed acts of gross indecency with two boys. These boys were accomplices because they were freely consenting to the acts and there was no use of force. The learned Chief Justice said -
"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 the jury of the danger of convicting a prisoner on the uncorroborated testimony of an accomplice or accomplices, and in the discretion of the Judge should point out to the jury that it is within their legal province to convict upon such unconfirmed evidence….this rule of practice has become virtually equivalent to the rule of law….if after the proper caution by the Judge the jury nevertheless convict the prisoner, this Court will not quash the conviction merely upon the ground that accomplice's testimony was uncorroborated"

That is exactly the law in India so far as accomplices are concerned and it is certainly not any higher in the case of sexual offences. The only clarification necessary for purposes of this country is where this class of offence is sometimes tried by a Judge without the aid of a jury. In these cases, it is necessary that the judge should give some indication in his judgment that he has had this rule of caution in mind and should proceed to give reasons for considering it unnecessary to require corroboration on the facts of the particular case before him and show why he considers it safe to convict without corroboration in that particular case.[19] The law in India relating to the evidence of accomplices stands thus: Even before the passing of the Indian Evidence Act, 1872, it has been held by a Full Bench of the High Court of Calcutta in R. v. Elahee Buksh[20], that the law relating to accomplice evidence was the same in India as in England. Then was legislated the Indian Evidence Act. Reading Sec. 133 and Illus. (b) to Sec. 114, Evidence Act, together the Courts in India have held that whilst it is not illegal to act upon the uncorroborated evidence of an accomplice it is a rule of prudence so universally followed as to amount almost to a rule of law that it is unsafe to act upon the evidence of an accomplice cannot be used to corroborate the evidence of another accomplice. The law in India, therefore, is substantially the same on the subject as the law in England.[21]

Accomplice to be jointly accused or not
In the case of Narayndas v. State[22], it has been held that the provisions regarding joinder of accused contained in the Criminal Procedure Code do not give an accused a right to insist that some one else, though he may be an accomplice in the crime alleged, be joined with him at the trial.[23]

Sexual Offences

A woman who has been raped is not an accomplice. Same is in the case of unnatural offences. But in all these cases a large volume of case law has grown which treats evidence of the complainant somewhat along the same lines as accomplice evidence. The case of King v. Baskerville[24] is a good case law in this regard. It has been a common law principle for some time now that the Judge is supposed to warn the jury of the danger of convicting a prisoner on the uncorroborated testimony of an accomplice or accomplices.[25] The only clarification necessary for the purposes of this country is that the judge should give some indication in his judgment that he has had this rule of caution in his mind. There can be no assumption, in the absence of evidence, that the complainant in a rape case is an accomplice.[26] A girl who is a victim of an outrageous act is, generally speaking, not an accomplice, though the rule of prudence requires that the evidence of a prosecutrix should be corroborated before a conviction can be based upon it.[27] The view that the evidence of a prosecutrix in a rape case requires corroboration in the same manner as that of an accomplice has been criticized many times now.[28]

Victim of a sexual offence is not an accomplice - It was held in the case of Om Prakash v. State of U.P.[29] that is a settled law that the victim of sexual assault is not treated as accomplice and as such, her evidence does not require corroboration from any other evidence including the evidence of a doctor. In the same case, the Judges also declared that a prosecutrix of a sex-offence cannot be put on par with an accomplice. She can be a witness under S. 118 of the Evidence Act, wherein she shall be at par with a person injured due to physical violence, but not under S. 133 of the Act.

It is now well-accepted principle of law that conviction can be founded on the testimony of the prosecutrix alone unless there are compelling reasons for seeking corroboration. It is also well accepted principle of law that corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence. The woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion treating her as if she were an accomplice.[30] The same was also held in the recent cases of State of Punjab v. Gurmit Singh[31] and Ranjit Hazarika v. State of Assam[32]. Court reiterated that the evidence of a victim of sexual assault stands on par with evidence of an injured witness. Just as a witness who has sustained an injury is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of a sex-offender is entitled to great weight, absence of corroboration notwithstanding.[33]

It was again held in the very recent case of Guddu @ Santosh v. State of Madhya Pradesh[34] that it is well settled that the prosecutrix cannot be considered as accomplice and, therefore, her testimony cannot be equated with that of an accomplice in an offence of rape. Again, it was held in the case of Dinesh @ Buddha v. State of Rajasthan[35] that a woman or a girl who is raped is not an accomplice. Corroboration is not the sine qua non for conviction in a rape case.

Principle relating to need of corroboration of a prosecutrix in rape cases

The principle relating to the need of corroboration of a prosecutrix in rape cases has been laid down in two decisions in the Supreme Court, namely, Rameshwar Kalyan Singh v. State of Rajasthan[36] and Sidheshwar Ganguly v. State of West Bengal[37]. In both these cases it was held that the rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be conviction but that that necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispose with it, must be present to the mind of the Judge before a conviction without corroboration can be sustained. These cases also made it clear that the corroboration should be such as to render the prosecution story reliable and safe to act upon. It is also clear that the prosecutrix cannot be considered as an accomplice, but her testimony should be corroborated in order to make sure that the accused has not been falsely implicated.[38] The matter is not res integra[39]. As it is very clear that a rape victim is not an accomplice; now, if the victim girl was of an age below the age of consent, then her consent does not matter, but if the girl consented her testimony will be as suspect as that of an accomplice. And if the girl is also suspected, then her testimony would definitely require corroboration as her word cannot be blindly trusted. Therefore, the test as to whether corroboration is necessary lies in the naturalness of the story deposed to by the prosecutrix. If there is any doubt as regards its genuineness, then there is a need of caution, and therefore of corroboration.

It is also a belief that it is unsafe to convict on the evidence of raped women. It was held in the case of Mahla Ram v. Emperor [40] that when there is no independent evidence of support for the statement of the complainant it would be most dangerous to base a conviction on her uncorroborated testimony. When there is no evidence of any struggle having taken place, nor any marks of any injuries on the person of the complainant or the accused, rape cannot be said to have been proved. So far as the statements of ravished women are considered, they can certainly be used to corroborate her under S. 157[41]. Corroboration of the prosecutrix in a rape case is not always indispensable. The thing to be remembered in such a case is whether it is safe to convict on the solitary statement of the complainant. No doubt, in cases of rape it has almost become an accepted proposition that a person shall not be convicted of the offence of rape solely on the evidence of the prosecutrix, yet courts have held again and again in such cases it is open to them to base the conviction solely on the evidence of the prosecutrix if they are satisfied that the evidence is worthy of credence. It was in this reference that the Bombay High Court held that a woman's evidence shall be corroborated only in cases of rape and not in other cases of sexual nature.[42] There has been yet another important observation that if a girl comes forward and alleges that she has been raped, her evidence should carry more weight than the evidence of ordinary witnesses.[43]

There also might be persons who are not called as accomplices by the court, but who in some way helped in the commission of the offence or was cognizant of it, and omitted to disclose it for a time. Such a person is not a person whose testimony could justify a conviction, but if there is corroboration of his testimony, then it might lead to conviction.[44] There is nothing in law to justify the proposition that evidence of a witness, who happens to be cognizant of a crime, or who made no attempt to prevent it, or who did not disclose its commission, should only be relied on to the same extent as that of an accomplice. The real question in such a case was the degree of credit to be attached to the testimony of such a witness, and that depends on all the facts and circumstances of the case. Hence, though an accomplice is not an incompetent witness, it is unsafe to base a conviction on his statement unless it is corroborated in material particulars.

Sec. 133 to be read with illustration (b) to Sec. 114 of the Act
Sec. 133 of the Indian Evidence Act expressly provides that an accomplice is a competent witness against his co-accused and it renders admissible the testimony of an accomplice against his co-accused. But this section must be read along with the provisions of illustration (b) to Sec. 114 of the Act. This Sec. empowers the Court to presume the existence of certain facts and illustration (b) in express terms says that an accomplice is unworthy of credit unless he is corroborated in material particulars. Thus, it follows that whereas law permits the conviction of an accused person on the basis of the uncorroborated testimony of an accomplice by virtue of the provisions of Sec. 133 who is treated as a competent witness, the rule of prudence which has rightly been always accepted by the courts embodied in illustration (b) of Sec. 114 of the Act strikes a note of warning to the Court that an accomplice does not generally deserve to be relied upon, unless his testimony is corroborated in material particulars. Thus, as a matter of practice and prudence, the courts have held that a testimony of an approver may be accepted in evidence for recording conviction of an accused person provided it receives corroboration from direct or circumstantial evidence in material particulars. The courts have generally looked down upon approvers because they are considered to be people with low morals and not wholly trustworthy persons who for the sake of earning pardon for themselves are willing to let down their erstwhile accomplices and therefore before recording conviction the Courts insist upon independent corroboration of their testimonies.[45] In another 1994 Supreme Court judgment it was again held that though a conviction can be based on uncorroborated evidence of an accomplice as a rule of prudence it is unsafe to place reliance on the uncorroborated testimony of an approver as required by illustration (b) of Sec. 114 of the Evidence Act.[46]

One accomplice cannot corroborate another
It was held in the case of Aung Hla v. Emperor[47] by the Full Bench that there is nothing in the Evidence Act to indicate that one accomplice cannot corroborate another. The evidence of one accomplice is ordinarily not sufficient corroboration of that of another. It is of no value and makes no difference if there are two accomplices giving evidence. The confession of one of the prisoners cannot be used to corroborate the evidence of an accomplice against the others.

Danger of accomplice evidence

The danger of accomplice evidence is that, when a man is fixed, and knows that his own guilt is detected, he purchases immunity by falsely accusing others. The evidence of accomplices should be carefully sifted and tested, before they can be relied upon in a court of law. The evidence of an approver is not sufficient to convict a person charged with an offence. It has happened many times that the court under S. 133 is open to convict the accused based on the uncorroborated evidence of the accomplice witness, but the Court feels like giving it a second thought, and on the grounds of prudence, gives it a deeper thought and then come up with a different judgment realizing that they were committing a mistake as the accomplice was just trying to escape liability as an accomplice in the crime.[48] It was said in the case of Bhuboni Sahu v. R.[49]:
"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 a story matter which is untrue."
Hence, the approver's evidence must pass the double test of reliability and corroboration in material particulars in view of Sections 114 and 133 of the Indian Evidence Act.[50]

Therefore, the following points should be kept in mind -
1. The assumption that a person would not make a confession of guilt without pressure exerted upon him is not correct. It is possible that such a confession may be made with a desire to unburden himself, but where the court has reason to doubt the voluntary nature of the confession it is for the prosecution to prove the absence of threats, promises or inducements;
2. Courts should be slow to depart from the rule of prudence, based on long experience, which requires corroboration of the evidence of an accomplice;
3. The confession of a co-accused can only be taken into consideration when there is independent evidence and then it can be thrown into the scale.

Conclusion
An accomplice is a person who voluntarily participates in the commission of the crime along with others. He is therefore, guilty of the crime along with the other accused persons. The accomplice might not be an accused in the case, but it is still a fact that he was an accomplice in the crime. In the case of a prosecutrix for rape she is a victim of the offence and not an offender. The case of an accomplice, therefore, materially differs from that of a prosecutrix for rape and the evidence of both cannot be placed on the same footing. And hence in law, the evidence of the prosecutrix does not require corroboration like that of an accomplice.[51]

Hence, the rule of prudence requires that evidence of a prosecutrix in a rape case must be corroborated in material particulars by independent testimony connecting the accused with the crime and he further states that the previous statement of the prosecutrix is not the kind of corroboration sought in such cases. Each case depends upon its facts and of after taking all the circumstances into consideration the evidence of the prosecutrix could be believed then the accused could be convicted on her evidence alone, although there is no corroboration in independent testimony connecting the accused with the crime. It is a very well settled rule of practice in our country, following the English rule that the evidence of the complainant must be corroborated in rape cases and the nature of corroboration depends on the facts of each case. Hence, in rape cases, the conduct of the complainant becomes very important and whether she makes a charge promptly or not is always relevant. Therefore, in crimes involving sexual offences, mostly the victim is not considered an accomplice and the provisions of law regarding an accomplice are not attached to the victim. And in any case, if the person in question is declared as an accomplice, then the testimony of such a person shall have to be corroborated, but it is also possible that the conviction of the accused was based on the uncorroborated evidence of the accomplice and this is what brings along with it a risk that the accomplice might be trying to escape liability by cooking up a story such that the Court might convict the accused and forget about the accomplice.

References
Books:
- Bryan A. Garner, Black's Law Dictionary, (Thomson West, Unites States of America, 8th edn., 2004)
- Gopal S. Chaturvedi, Field's Commentary on Law of Evidence, (Delhi Law House, New Delhi, Vol. 5, 12th edn., 2002)
- Ratanlal & Dhirajlal, The Law of Evidence, (Wadhwa & Company, Nagpur, 21st edn., 2004)
- SV Joga Rao, Law of Evidence, (Lexis Nexis Butterworths, New Delhi, 17th edn., 2002, Vol. 4)
- Sarkar & Ejaz, Law of Evidence, (Ashok Law House, New Delhi, 5th edn., 2003)
- Vepa P. Sarathi, Law of Evidence, (Eastern Book Company, Lucknow, 6th edn., 2006).
- WM Best, A Treatise on the Principles of Evidence, (H Sweet, London, 4th edn., 1866)

Websites:
- http://www.law-dictionary.org/RES+INTEGRA.asp?q=RES+INTEGRA

End-Notes
[1] Student, 4th year, BSc.LLB (Corporate Law Hons), National Law University, Jodhpur.
[2] P.M. Bakshi, Basu's law of Evidence, (Indian Law House, New Delhi, 7th edn., Vol. 4, 2003), p. 3460.
[3] SV Joga Rao, Law of Evidence, (Lexis Nexis Butterworths, New Delhi, 17th edn., 2002, Vol. 4), p. 5591.
[4] State v. Henderson, 84 Iowa 161 at p. 165, as has been cited from Gopal S. Chaturvedi, Field's Commentary on Law of Evidence, (Delhi Law House, New Delhi, 12th edn., 2002, Vol. 5), p. 4722.
[5] Brown's case, (1910) 6 Cr. App. 24, Gopal S. Chaturvedi, Field's Commentary on Law of Evidence, (Delhi Law House, New Delhi, 12th edn., 2002, Vol. 5), p. 4722.
[6] Kings case, (1914) 10 Cr. App. 117, Ibid Gopal S. Chaturvedi.
[7] Trimble v. Terr, (1903) 8 Ariz 273
[8] Republic v. Parsons, (1896) 10 How 601 at p. 606.
[9] Keller v. State, (1898) 102 Ga. 506.
[10] R. v. Schwartzenhaner, (1953) 2 D.L.R. 739 at p. 745.
[11] People v. Troutman, (1921) 187 Cal. 313
[12] Trilochan Singh v. Karnail Singh, AIR 1968 Punj. 416; Ismail Hassan Ali v. Emperor, AIR 1947 Lah. 220; Mahadeo v. King, AIR 1936 PC 242.
[13] United States v. Neverson, Country Digest, Vol. 14, Col. 1979, cited from Ramaswami Gounden v. Emperor, ILR 27 Mad. 271 at p. 277; Ghudo Ramdhar v. Emperor, AIR 1945 Nag. 143
[14] Vepa P. Sarathi, Law of Evidence, (Eastern Book Company, Lucknow, 6th edn., 2006), p. 276.
[15] Ibid.
[16] Act 1 of 1872.
[17] Supra n. 2 at p. 277.
[18] (1916) 2 KB 658.
[19] Also see Rameshwar v. State of Rajasthan, AIR 1952 SC 54.
[20] Beng. L.R. Sup., Vol. 459, as has been cited from Gopal S. Chaturvedi, Field's Commentary on Law of Evidence, (Delhi Law House, New Delhi, 12th edn., 2002, Vol. 5), p. 4701.
[21] Bhuboni Sahu v. King, AIR 1949 PC 257 at p. 258
[22] (1964) 66 Bom. LR 17.
[23] Lakshmandas Chaganlal Bhatia v. State, AIR 1968 Bom. 400 at p. 417.
[24] (1916) 2 KB 658, as has been cited from Gopal S. Chaturvedi, Field's Commentary on Law of Evidence, (Delhi Law House, New Delhi, 12th edn., 2002, Vol. 5), p. 4722.
[25] Halsbury's Laws of England, 4th edn., Reissue Vol. 11, (Butterworths, London 1997) p. 471, para 457.
[26] Harendra Prasad Bagchi v. Emperor, AIR 1940 Cal. 461 at p. 462.
[27] Sidheshwar Ganguly v. State of West Bengal, AIR 1958 SC 143.
[28] Surendranath v. Emperor, AIR 1933 Cal. 833; Sikander Mian v. Emperor, AIR 1937 Cal. 321; Supra n. 26.
[29] AIR SC 2006 359
[30] State of Tamil Nadu v. Ravi @ Nehru, 2006 (6) SCALE 441
[31] AIR 1996 SC 1393
[32] (1998) 8 SCC 635
[33] Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, AIR 1983 SC 753
[34] MANU/SC/2620/2006, as equivalent citation is not available yet.
[35] AIR 2006 SC 1267
[36] AIR 1952 SC 54.
[37] AIR 1958 SC 143.
[38] Gurcharan Singh v. State of Haryana, AIR 1972 SC 2661.
[39] "An entirely new thing", as has been cited from http://www.law-dictionary.org/RES+INTEGRA.asp?q=RES+INTEGRA
[40] AIR 1927 Rang. 67.
[41] States that "former statements of witnesses may be proved to corroborate later testimony as to same fact."
[42] Emperor v. Banubai Ardeshir Irani, AIR 1943 Bom. 150.
[43] Bhagwat Singh v. State, AIR 1956 All. 22.
[44] Gopishankar v. State of Rajasthan, AIR 1967 Raj. 159 at p. 167-68.
[45] Rampal Pithwa Rahidass v. State of Maharashtra, 1994 Cr. L.J. 2320 at p. 2324 (S.C.).
[46] Suresh Chandra Bahri v. State of Bihar, AIR 1994 SC 2420.
[47] AIR 1931 Rang. 235
[48] In re B.K. Rajagopal, ILR (1944) Mad. 308
[49] (1949) 76 IA 147
[50] Niranjan Singh v. State of Punjab, (1966) 9 SCC 98; Rama Prasad v. State of Maharashtra, (1999) 5 SCC 30.
[51] Also said in the case of Emperor v. Mahadeo Tatya, AIR 1942 Bom. 121.

The author can be reached at: pranayagoyal@legalserviceindia.com