The Supreme Court has observed that it would be unsafe to convict an accused solely based on uncorroborated testimony of an accomplice.
The bench comprising of Justices Rohinton Fali Nariman, KM Joseph and V. Ramasubramanian said that an accomplice, to be believed, he must be corroborated in material particulars of his testimony.
The Court upheld the convictions for the abduction and murder of Tamil Nadu politician and Ex MLA, MK Balan in 2001. The case was referred to the 3-judge bench following a split verdict by a division bench. In this case, the Court discussed the contradiction between two provisions of the Indian Evidence Act.
Section 133 of the Evidence Act declares that an accomplice is a competent witness and further that a conviction based on the uncorroborated testimony of an accomplice is not illegal only on account of it being so. At the same time, Illustration 'b' of the Section 114 of the Evidence Act, provides that the the Court may presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars,
The Court noted that the dichotomy between these provisions has been taken note of and explained by the Supreme Court in these judgments: Sarwan Singh Rattan Singh v. State of Punjab, Haroom Haji Abdulla v. State of Maharashtra, Sheshanna Bhumanna Yadav v. State of Maharashtra. The bench particularly highlighted these observations made in K. Hashim v. State of Tamil Nadu (2005) 1 SCC 237 :
The bench also observed:
The combined result of Sections 133 read with illustration (b) to Section 114 of Evidence Act is that the Courts have evolved, as a rule of prudence, the requirement that it would be unsafe to convict an accused solely based on uncorroborated testimony of an accomplice. The corroboration must be in relation to the material particulars of the testimony of an accomplice. It is clear that an accomplice would be familiar with the general outline of the crime as he would be one who has participated in the same and therefore, indeed, be familiar with the matter in general terms. The connecting link between a particular accused and the crime, is where corroboration of the testimony of an accomplice would assume crucial significance. The evidence of an accomplice must point to the involvement of a particular accused. It would, no doubt, be sufficient, if his testimony in conjunction with other relevant evidence 86 unmistakably makes out the case for convicting an accused.
It observed that every material circumstance against the accused need not be independently confirmed.
"Corroboration must be such that it renders the testimony of the approver believable in the facts and circumstances of each case. The testimony of one accomplice cannot be, ordinarily, be supported by the testimony of another approver. We have used the word 'ordinarily' inspired by the statement of the law in paragraph-4 in K. Hashim (supra) wherein in this Court, did contemplate special and extraordinary cases where the principle embedded in Section 133 would literally apply. In other words, in the common run of cases, the rule of prudence which has evolved into a principle of law is that an accomplice, to be believed, he must be corroborated in material particulars of his testimony. The evidence which is used to corroborate an accomplice need not be a direct evidence and can be in the form of circumstantial evidence. "
The bench also discussed the procedure of making an accomplice an approver:
"An accomplice is in many cases, pardoned and he becomes what is known as an approver. An elaborate procedure for making a person an approver, has been set out in Section 306 of the CrPC. Briefly, the person is proposed as an approver. The exercise is undertaken before the competent Magistrate. His evidence is recorded. He receives pardon in exchange for the undertaking that he will give an unvarnished version of the events in which he is a participant in the crime. He would expose himself to proceedings under Section 308 of the CrPC. Section 308 contemplates that if such person has not complied with the condition on which the tender of pardon was given either by wilfully concealing anything essential or by giving false evidence, he can be put on trial for the offence in respect to which the pardon was so tendered or for any 88 other offence of which he appears to be a guilty in connection with the same matters. This is besides the liability to be proceeded against for the offence of perjury. Sub-section (2) of Section 308 declares that any statement which is given by the person accepting the tender of pardon and recorded under Section 164 and Section 306 can be used against him as evidence in the trial under Section 308(1) of the CrPC. An accomplice or an approver are competent witnesses. An approver is an accomplice, who has received pardon within the meaning of Section 306. We would hold, that as between an accomplice and an approver, the latter would be more beholden to the version he has given having regard to the adverse consequences which await him as spelt out in Section 308 of the CrPC. as explained by us. It is also settled principle that the competency of an accomplice is not impaired, though, he could have been tried jointly with the accused and instead of so being tried, he has been made a witness for the prosecution."
Case no.: CRIMINAL APPEAL NO. 403 OF 2010Case name: SOMASUNDARAM @ SOMU vs. THE STATECoram: Justices Rohinton Fali Nariman, KM Joseph and V. Ramasubramanian
Also in the judgment : When Abduction Is Followed By Murder, Court Can Presume That Abductor Is The Murderer : SC
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