A Critical Analysis of Accomplice Witness in India

Topics: Evidence law, Circumstantial evidence, Law Pages: 16 (6620 words) Published: December 5, 2010
A Critical Analysis Of Accomplice Witness In India
A predicament has remained to exist as to whether a court deciding on the fate of an accused should consider the testimony of a friend in crime. The courts have struggled long to settle down on a practical and prudent solution so that the guilty does not go unpunished and the innocent stays unscathed. It is from this prospective that the courts have made an unceaseth attempt through hoard of judicial decisions to come up with a rule of prudence read into the law of evidence to guide the minds whenever an accomplice renders an account of the crime committed. The writing is an attempt to critically analyze the need for receiving accomplice evidence and the approach of caution adopted in such instances. It aims at simplifying the law with regards to accomplices and approaches it from a practical point of view. It makes an effort to endorse the idea that the flexibility engrained should be retained and the law on the point in India should be modified to suit the need of the hour which is indefinitely the speedy disposal of cases so that justice is rendered for justice delayed is justice denied. WHO IS AN ACCOMPLICE?

The Indian Evidence Act, 1872 does not lay down the definition of. An accomplice is a person who has concurred in the commission of an offence 1-2 and the maxim “participes criminis”3 is included in the term. An accomplice is a person who is guilty-associate in crime or who sustains such a relation to the criminal act that he can be jointly indicted with the principal criminal.4 A witness concerned may not confess to his participation in a crime and may deny his being an accomplice but it is for the courts to decide on a consideration of the entire evidence whether he is an accomplice.5 The burden of proving that an accomplice is definitely on the party alleging it for the purpose of invoking the rule while the duty to bring the accomplice character of the evidence to the notice of the court rests upon the prosecution and the court needs to believe by a preponderance of probabilities.6 The essential prerequisite is participation in crime willfully and this can be done in various ways7. The term in fullness includes all persons concerned in the commission of the crime, whether they in the strict legal aptness are principals in the first degree8 or second degree9 or merely are accessories before10 or after11 the commission.12. In India two categories of offenders are recognized- persons who are principals and abettors or instigators and the term accomplice includes both of them i.e. the principal and the privy.13 The three conditions that need to merge are 1) the felony must be complete 2) the accessory must have the knowledge that the felony has been committed 3) the accessory must harbour or assist the principal.14 WHEN IS AN ACCOMPLICE COMPETENT WITNESS?

Section 118 of the Indian Evidence Act speaks about competency of witness. Competency is a condition precedent for examining a person as witness and the sole test of competency laid down is that the witness should not be prevented from understanding the questions posed to him or from giving rational answers expected out of him by his age, his mental and physical state or disease.15 At the same time Section 133 speaks about competency of accomplices. Further more in case of accomplice witnesses, he should not be a co-accused under trial in the same case and may be examined on oath.16 Let us consider the following propositions suggested by courts. First, courts have opined that such competency, which has been conferred on him by a process of law, does not divest him of the character of an accused and he remains a participes criminis17 and this remains the genesis of the major problem surrounding the credibility of such evidence. Secondly, an accomplice by accepting a pardon under Section 306 CrPC becomes a competent witness and may as any other witness be examined on oath, the prosecution must be withdrawn and the...
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