133. Accomplice. 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.
Conviction can be based on the evidence of approver but as per Section 114, the care has to be taken by the Court that it should corroborated in material particulars. The combined effect of Section 114(b) and Section 133 of the Evidence Act is that though a conviction can be based on uncorroborated testimony of an accomplice but as a rule of prudence, it is unsafe to place reliance on the uncorroborated testimony of an approver as per illustration (b) of Section 114 of the Evidence Act.
It is observed by Hon’ble Supreme Court in the case of It is observed by Hon’ble Supreme Court in the case of Suresh Chandra Bahri Vs. State of Bihar reported in AIR 1994 SC 2420 as under :
Section 133 deal with the testimony of an accomplice. It contemplates 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 first part envisages that an accomplice in other words a guilty companion in crime shall be a competent witness while the second part states that conviction is not illegal merely because it is based on the uncorroborated testimony of an accomplice. But if one read S. 133 with illustration (b) of S. 114 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 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 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 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 with a view to emphasise that the rule contained therein as well as in S. 133 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. However, the difficulty in understanding the combined effect of the aforementioned two provisions arises largely due to their placement at two different places of the same Act. It may be noticed that illustration (b) attached to S. 114 is placed in Chap VII of Evidence Act while S. 133 is inserted in Chap. IX of the Act. The better course was to insert the illustration (b) to S. 114 as an explanation or in any case as proviso to S. 133 of the Act instead of their insertion at two different places and that too in different chapters of Evidence Act. In any case since an approver is guilty companion in crime and, therefore, illustration (b) to S. 114 provides a rule of caution to which the Courts should have regard. It is now well settled that except in circumstances of special nature it is the duty of the Court to raise the presumption in S. 114 illustration (b) and the Legislature requires that the Courts should make the natural presumption in that section. Though a conviction can be based on uncorroborated evidence of an accomplice but as a rule of prudence it is unsafe to place reliance on the uncorroborated testimony of an approver as required by illustration (b) of S. 114.
Hon’ble Supreme Court in the case of Central Bureau of Investigation Vs. Ashok Kumar Aggarwal and anr. [(2013) 15 SCC 222] has observed as under :
Section 114 Illustration (b) and Section 133 of the Evidence Act, 1872 provide for the same that an accomplice is a competent witness and that his testimony can be relied upon but depending upon the quality of the evidence. While Section 133 reads that “Accomplice is a competent witness and a conviction can be maintained on his evidence”, Illustration (b) of Section 114 provides for presumption that “an accomplice is unworthy of credit, unless he is corroborated in material particulars”. Thus, in practice conviction of a person on such evidence should not take place except under very rare and exceptional circumstances. Usually substantial corroboration is required. This provision incorporates a rule of caution to which the court must have regard.
(Vide Sk. Zakir v. State of Bihar, Niranjan Singh v. State of Punjab and State of T.N. v. Suresh.)
