Law of Evidence

By Nizam Azeez Sait,

MODULE No. 11

CONFESSION OF THE CO-ACCUSED UNDER SECTION 24 AND ACCOMPLICE’S EVIDENCE UNDER SECTION 138

This is the 11th Module on the subject ‘Law of Evidence’, in this module we will discuss Confession of the Co-Accused under Section 24 of the Bharatiya Sakshya Adhiniyam (section 30 of the Evidence Act) and Accomplice’s Evidence under Section 138 of the Bharatiya Sakshya Adhiniyam (Section 133 of the Evidence Act).

MODULE INDEX

  1. Confession of the Co-Accused – Evidentiary Value
  1. Accomplice’s Evidence Under Section 138 of the Bharatiya Sakshya Adhiniyam (Section 133 of the Evidence Act)

Interplay Between Sections 138 and 119 (b) of the Bharatiya Sakshya Adhiniyam

1. Confession of the Co-Accused – Evidentiary Value

Now let us see the evidentiary value of the confession of the Co Accused under Section 24 of the Bharatiya Sakshya Adhiniyam (Section 30 of the Evidence Act).

The section provides that confession of co-accused can be taken in to consideration but is not substantive evidence against the other accused;

Section 24 of the Bharatiya Sakshya Adhiniyam (Section 30 of the Evidence Act) lays down that:

When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession.

Explanation I.—”Offence”, as used in this section, includes the abetment of, or attempt to commit, the offence.

Explanation II. — A trial of more persons than one held in the absence of the accused who has absconded or who fails to comply with a proclamation issued under section 84 of the Bharatiya Nagarik Suraksha Sanhita, 2023 shall be deemed to be a joint trial for the purpose of this section.

Illustrations.

(a) A and B are jointly tried for the murder of C. It is proved that A said—”B and I murdered C”. The Court may consider the effect of this confession as against B.

(b) A is on his trial for the murder of C. There is evidence to show that C was murdered by A and B, and that B said—”A and I murdered C”. This statement may not be taken into consideration by the Court against A, as B is not being jointly tried.

Section 24 of the Bharatiya Sakshya Adhiniyam corresponds to Section 30 of the Evidence Act. Explanation II is a new addition. The Bharatiya Nagarik Suraksha Sanhita, 2023 permits trial in absentia of the absconding accused, and such trial will also be considered as joint trial with respect to the absconding accused.

Joint trial is a prerequisite for invoking Section 30 and such joint trial must be for the same offence. The confession must inculpate the maker as well as the co-accused. The Section does not treat such confessional statement as substantive evidence against the co-accused but permits the court to take into consideration the statement as against such co-accused. It is trite law that a confession referred in Section 24 of the Bharatiya Sakshya Adhiniyam (S.30 Evidence Act) can only be used to “lend assurance to other evidence against a co-accused.

In State (NCT of Delhi) v. NavjotSandhu Alias Afsan Guru, 2005 (11) SCC 600, the Supreme Court has laid down the scope of S.30 of the Evidence Act in the following terms:

“The crucial expression used in S.30 (Section 24 of the Bharatiya Sakshya Adhiniyam) is “the Court may take into consideration such confession”. These words imply that the confession of a co-accused cannot be elevated to the status of substantive evidence which can form the basis of conviction of the co accused.”

The Court also referred to the following oft quoted observations of Vivian Bose, J., in Kashmira Singh v. State of M.P., AIR 1952 SC 159 relating to the purpose for which the confession in S.30 of the Evidence Act (Section 24 of the Bharatiya Sakshya Adhiniyam) can be used against the co-accused:

“The proper way to approach a case of this kind is, first, to marshal the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept.”

The confession of a co – accused is used against another accused without giving him any opportunity of testing the veracity of the confession by cross – examining the maker thereof. No wonder, therefore, that the Supreme Court has laid down that the confession of the co – accused is not really ‘evidence’ in its strictosenso and cannot be made foundation for conviction of the person, who did not make the confession, though such confession can be used as an additional reason for believing the evidence on record.

2. Accomplice’s Evidence Under Section 138 of the Bharatiya Sakshya Adhiniyam (Section 133 of the Evidence Act)

Now we will move on to the law relating to Accomplice’s Evidence under Section 24 of the Bharatiya Sakshya Adhiniyam.

An accomplice is a guilty associate or partner in the commission of crime. He is a “Participiscriminis”

Section 138 of the Bharatiya Sakshya Adhiniyam (Section 133 of the Evidence Act) provides that “An accomplice shall be a competent witness against an accused person”.

Sections 343 and 344 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (Sections 306 and 307 of the Criminal Procedure Code) provides for tendering pardon to a person supposed to have been directly or indirectly concerned in or privy to an offence. As per S.306 CrPC Pardon may be granted with respect to (a) any offence triable exclusively by the Court of Session and (b) any offence punishable with imprisonment which may extend to seven years or with a more severe sentence.

Pardon is granted with a view to obtaining the evidence of such accomplice against his associates in crime. When pardon is accepted by the accomplice, he becomes an approver.

Interplay Between Sections 138 and 119 (b) of the Bharatiya Sakshya Adhiniyam

The law relating to the credibility of the evidence of the Accomplice/Approver is dealt with in Sections 138 and 119 (b) of the Bharatiya Sakshya Adhiniyam (Sections 133 and 114 illustration (b) of the Evidence Act).

Section 138 of the Bharatiya Sakshya Adhiniyam (S.133 of the Evidence Act) in positive terms declares that 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.

Whereas illustration (b) to Section 119 of the Bharatiya Sakshya Adhiniyam (S.114 of the Evidence Act), marks a caution on the credibility of the evidence of the accomplice. Relevant portion of Section 119 reads as follows:

The Court may presume–

(b) that an accomplice is unworthy of credit, unless he is corroborated in material particulars;

Apparently the above two provisions lay down somewhat contradictory assertions. Section 138 makes it clear that the evidence of an accomplice is substantive evidence and conviction solely on its basis is not illegal. S.119(b) is an illustration of an optional presumption of fact which authorizes the Court to draw a presumption as above. It is rather a rule of prudence. Regarding the interplay between S.133 and S.114(b) of the Evidence Act (Sections 138 and 119 (b) of the Bharatiya Sakshya Adhiniyam) and the requirement and nature of corroboration the Privy Council in Bhubon Sahu v. The King (AIR 1949 PC 257) observed as under:

“..the rule requiring corroboration for acting upon the evidence of an accomplice is a rule of prudence. But the rule of prudence assumes great significance when its reliability on the touchstone of credibility is examined. If it is found credible and cogent, the Court can record a conviction even on the uncorroborated testimony of an accomplice. On the subject of the credibility of the testimony of an accomplice, the proposition that an accomplice must be corroborated does not mean that there must be cumulative or independent testimony to the same facts to which he has testified. At the same time, the presumption available under S.114 of the Evidence Act (Sections 119 (b) of the Bharatiya Sakshya Adhiniyam) is of significance. It says that the Court may presume that an accomplice is unworthy of credit unless he is corroborated in “material particulars”.”

In Sarwan Singh v. State of Punjab, AIR 1957 SC 637, a 3 judges bench of the Supreme Court laid down the theory of “double test” in the scrutiny of the evidence of an approver, in this regard the Supreme Court held:

“There can be, however, no doubt that the very fact that he has participated in the commission of the offence introduces a serious stain in his evidence and courts are naturally reluctant to act on such tainted evidence unless it is corroborated in material particulars by other independent evidence. It would not be right to expect that such independent corroboration should cover the whole of the prosecution story or even all the material particulars………. His evidence must show that he is a reliable witness and that is a test which is common to all witnesses. If this test is satisfied the second test which still remains to be applied is that the approver’s evidence must receive sufficient corroboration. This test is special to the cases of weak or tainted evidence like that of the approver.”

In Suresh Chandra Bahri v. State of Bihar AIR 1994 SC 2420, the Supreme Court observed:

“…if we read S.133 of the Evidence Act with illustration (b) of S.114 of the Evidence Act (Sections 138 and 119 (b) of the Bharatiya Sakshya Adhiniyam) it may lead to certain amount of confusion and misunderstanding as to the real and true intention of the Legislature because quite contrary to what is contained in S.133 illustration (b) to S.114 of the Evidence Act lays down “that an accomplice is unworthy of credit, unless he is corroborated in material particulars”. A combined reading of the two provisions that is S.133 and illustration (b) of S.114 of Evidence Act (Sections 138 and 119 (b) of the Bharatiya Sakshya Adhiniyam) go to show that it was considered necessary to place the law of accomplice evidence on a better footing by stating in unambiguous terms that according to S.133 (Sections 138 of the Bharatiya Sakshya Adhiniyam) a conviction is “not illegal or in other words not unlawful ” merely because it is founded on the uncorroborated testimony of an accomplice while accepting that an accomplice is a competent witness. But at the same time the Legislature intended to invite attention to the illustration (b) of S.114 of the Evidence Act (119 (b) of the Bharatiya Sakshya Adhiniyam) with a view to emphasise that the rule contained therein as well as in S.133 (Sections 138 of the Bharatiya Sakshya Adhiniyam) are parts of one and the same subject and neither can be ignored in the exercise of judicial discretion except in cases of very exceptional nature.”

The law on the above lines has been reiterated in many subsequent decisions including, Francis Stanly v. Intelligence Officer N.C.B, AIR 2007 SC 794 and Sitaram v. State of Jharkand AIR 2008 SC 391 where in the Court held as follows:

“The Statute permits the conviction of an accused on the basis of uncorroborated testimony of an accomplice but the rule of prudence embodied in illustration (b) to S.114 of the Evidence Act ( Sections 119 of the Bharatiya Sakshya Adhiniyam) strikes a note of warning cautioning the Court that an accomplice does not generally deserve to be believed unless corroborated in material particulars. In other words, the rule is that the necessity of corroboration is a matter of prudence except when it is safe to dispense with such corroboration must be clearly present in the mind of the Judge.”

The Court further held that

“Although S.114 illustration (b) (Section 119 (b)of the Bharatiya Sakshya Adhiniyam provides that the Court may presume that the evidence of an accomplice is unworthy of credit unless corroborated, “May” is not must and no decision of Court can make it must. The Court is not obliged to hold that he is unworthy of credit. It ultimately depends upon the Court’s view as to the credibility of evidence tendered by an accomplice.”

Hidayatulla, J. sounded the note of caution in Haroom Haji v. State of Maharashtra (AIR 1968 SC 832) thus:

“This rule of caution or prudence has become so ingrained in the consideration of accomplice evidence as to almost the” standing of a rule of law”. A Constitution Bench of the Supreme Court has laid down in State v. Basawan Singh (AIR 1958 SC 500) that even in respect of an accomplice all that is required is that there must be some additional evidence rendering it probable that the story of the accomplice is true and that it is reasonably safe to act upon it. “Corroboration need not be by direct evidence that the accused committed the crime, it is sufficient even though it is merely circumstantial evidence…….”.

The same principle has been reiterated by the Supreme Court in Jadav v. State (AIR 1966 SC 821) and many other subsequent decisions.

In Somasundaram @ Somu v. State rep. by the Deputy Commissioner of Police AIR 2020 SC 3327: 2020 (7) SCC 722, a three judges bench of the Supreme Court comprising, Rohinton F. Nariman; K. M. Joseph; V. Ramasubramanian, JJ, surveying through the precedents laid down as under:

To summarize, by way of culling out the principles which emerge on a conspectus of the aforesaid decisions, we would hold as follows:

The combined result of S.133 read with illustration (b) to S.114 of Evidence Act (Sections 138 read with 119 (b) of the Bharatiya Sakshya Adhiniyam) 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 unmistakably makes out the case for convicting an accused

With that we come to the close of this Module on the subject ‘Law of Evidence’. Hope you enjoyed and found it useful.

See you again in another module with another interesting topic on the ‘Law of Evidence’.

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Exercise Questions

  1. Explain the Evidentiary value of the confession of the Co Accused under Sections 24 of the Bharatiya Sakshya Adhiniyam (Section 30 of the Evidence Act).
  2. Elucidate on the basis of decided cases “An accomplice shall be a competent witness against an accused person”.
  3. Is there any inconsistency between Section 138 and illustration (b) of 119 of the Bharatiya Sakshya Adhiniyam (Section 133 of the Evidence Act and illustration (b) of S.114 of the Evidence Act)? How these provisions can be reconciled? Discuss in the light of decided cases.