Accomplice evidence in Sexual offences

By Manav Sony

Introduction: –

Accomplice means any person who along with some other people takes part in committing a crime irrespective of small or large. This particular term is not described either in the IPC or Indian Evidence Act. It is a common term which is used to define a person whom actually the police do not arrest and calls as a witness so as to state everything about the incident in front of the court. This means guilty associated with a crime. If that particular person is taken into custody by the police so as to take part in a crime so as to collect any sort of evidences against the criminals, it is known as a trap-witness. If he is arrested by them and then is issued a pardon, then he is known as an approver. The entire broad meaning of the term accomplice is clearly mentioned under section 133 of the Indian Evidence Act, 1872. [1]Irrespective of the rule under common law which was there in force, those particular witnesses were interested in the inquiry which was not even accurate or justifiable, a particular exception was made all the time in the cases of accomplices who was actually willing to give evidences against some offences in the court. The court basically gives consideration not only whether the defendants could be convicted without any proper evidence or proof. Therefore, there can be some evidences so as to convict the person without the court who will refuse to give the permission in order to allow that person to be a witness. Thus, it is seen that there are no such reasonable probabilities regarding a conviction even with evidence, the court will obviously refuse without any further doubt to anything. In some cases, where the accomplice has actually been indicted jointly, and before the beginning of the trial of the court, it appeared that his evidence will be needed although the usual practice is before the opening of the case proceedings but after an intimation to apply for having him acquitted by offering no accurate evidence or of the fact that the first conviction and sentence is practicable.[2] In the cases of sexual crimes, the other person who is all the time a woman, may or may not be termed as an accomplice for providing evidences against the crime because it is not clear whether she was voluntarily part of it or it was actually a crime committed. Therefore, in the cases of adultery, the opposite part may be termed as an accomplice but in cases, a woman may not be termed as an accomplice i.e. rape under age, seduction abortion and sodomy.

Legal Provisions: –

Section 133 of the Indian Evidence Act, 1872 states 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.”

The difference which comes up over here is that the evidence given by an approver and a confession which is given by a co-accused in the first case is an evidence given under an oath and is also subjected to clear cross examination by the accused party against whom it will be used. In the cases of co-accused, the confessions that are made before trial, behind the back of the accused against whom it is sought to be used or from the dock during the trial proceedings of the court.[3] In some other cases, it cannot even be subjected to a proper cross examination. This is the reason why it is considered to be one of the weakest evidences in the proceedings and proved the accused guilty of the act and it is only used in some unordinary circumstances whenever it arises. This particular issue was outlined in the leading case of R V. Baskerville. In this particular case, Baskerville had been under conviction of committing some acts which are not acceptable and even indecent with two boys. These boys were actually made the accomplices in the court of law because of the fact that they were freely giving consent to the accused for committing the acts and because of this, the act was committed at that time. There is no such doubt arising of the fact that non confirmed evidence of an accomplice is made admissible in the context of law. [4]But, it has been a rule of practice under common laws for the judges in order to warn the juries regarding the danger of convicting any prisoner based on unidentified testimony of an accomplice or group of accomplices and under the discretion of the judges should take out the jury which is within their provinces so as to convict upon any unconfirmed evidences. This has become one of the alarming situations under the history of law in our country till now and as far as accomplices are there and is certainly not at all high in cases of sexual offences. The main clarification which is actually needed for purposes on this country is where are we actually leading to. The offences are tried by a judge without even taking help from the jury members whenever needed. It is needed and important in some vital cases that the judge should clearly intimate in his judgement regarding the rule of caution in the mind along with reasons for considering the judgement. This particular issue was discussed in the case of R V. Elahee Buksh. In this case it was clearly argued that the accomplice laws of India are the same as the accomplice laws of England. Then, this particular accomplice provision was amended in the books of law under sections 133 and 114 of the Indian Evidences Act.

Accomplice in Sexual Offences:

In sexual offences, when a woman has been raped cannot be an accomplice in the court of law. This provision is even same during any unnatural offences. But, in these cases a large number has grown which has treated evidence of the complainant along with the same lines which are known as accomplice evidence. This issue has been explained very widely in the leading case of King v. Baskerville. The main clarification which is really needed for the purpose is that the judges should be giving some type of indications in his judgement process along with the rule of caution going on in his mind. There cannot be any assumptions in absence of evidences which the complainant in rape cases is known as an accomplice. [5]A girl who is a rape victim cannot be known as an accomplice in the court of law although the rule of prudence is needed of the fact that evidence should be there before any conviction can be fully based upon. This particular provision was discussed in detail in the case of Om Prakash v. State of Uttar Pradesh which states that the victim of sexual assault cannot be termed as an accomplice and her evidence would not be needed any confirmation from any other type of evidence including evidence of the doctor. The victim can be a witness under section 118 of the Indian Evidence Act where she can state that she was injured due to physical violence and not under section 133 of the same act. There was another important case in the court of law which was Guddu AKA Santosh v. State of Madhya Pradesh in which it was stated that victim cannot be considered as accomplice and her evidence cannot be treated as accomplice in the offence. It was similarly held in the case of Dinesh AKA Buddha v. State of Rajasthan. [6]

Dangers Faced in Accomplice Evidence

The main dangers that we face in the accomplice evidence is that when a person is fixed and also knows his guilt, then he purchases an immunity or power for himself by accusing others really falsely. The accomplice evidence should be checked really very carefully and also tested before it can be relied upon in the court of law. The evidences of an approver are not actually sufficient enough in the court of law. The evidences which are given by an approver are not at all sufficient enough in order to arrest the person for any crime or guilt which he has committed and is an offence against the rule of nature.[7] These certain issues are dealt under section 133 so as to convict the accused based on unsanctioned evidences given by the accomplices on the grounds of prudence. It was argued in the case of Bhuboni Sahu v. R that the real danger faced is in the story which the accuse says so as to outline some of the facts that are not true but tries to make it true. Therefore, it is recommended that the test of reliability must be made for the accused twice in lieu of the sections 114 and 133 of the Indian Evidence Act.

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.


[1] http://www.legalserviceindia.com/article/l172-Accomplice-Evidence-in-Sexual-Offenses.html#:~:text=The%20danger%20of%20accomplice%20evidence,immunity%20by%20falsely%20accusing%20others.&text=The%20evidence%20of%20an%20approver%20is%20not%20sufficient%20to%20convict,that%20the%20court%20under%20S.. (last visited 7th August, 11:28)

[2] https://en.wikipedia.org/wiki/Corroborating_evidence. (last visited 7th August, 11:54)

[3] https://thehill.com/opinion/judiciary/409635-corroboration-is-not-required. (last visited 7th August, 15:34)

[4] https://www.albertalawreview.com/index.php/ALR/article/download/1943/1932/. (last visited 7th August, 15:58)

[5] https://study.com/academy/lesson/circumstantial-evidence-definition-types-examples.html. (last visited 7th August, 19:27)

[6] https://shodhganga.inflibnet.ac.in/bitstream/10603/224153/6/06_chapter%202.pdf/ (last visited 7th August, 19:56)

[7] https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2071&context=flr. (last visited 8th August, 18:27)

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