Evidentiary value of an approvers testimony

This research paper will deal with the evidentiary value of an approver’s testimony. It shall cover other ancillary aspects with regard to the role of the approver. The researcher will rely on case law to elaborate on the points stated.

At the outset it is important to define the subject itself. An approver is a person involved with a certain crime, but he, at a later stage, confesses and offers to serve as a witness for the prosecution. For his confession and testimony he gets a reduced punishment or even a pardon. Such an understanding between the perpetrator and the prosecutors allows for a water-tight case against the accused and helps successful prosecution also it reduces the time taken for investigation. As such, both parties stand to gain.

Technically, an approver is an accomplice. The accomplice is involved in stages crucial to the crime’s commission, such as planning, execution, or cover-up. In K.K. Dalmia v. Delhi Administartion [1] an accomplice was defined as someone who voluntarily co-operates with, and helps others in the commission of the crime. He is said to be a particeps criminis – a participator in the actual crime.

The definition of the approver has been lucidly put in the words of Sir Subramania Ayyar in his judgement in Ramaswami Goundan v. R. [2] – “an accomplice witness is one who is either being jointly tried for the same offence and makes admissions which may be taken as evidence against a co-prisoner and which make the confessing accused pro hac vice a sort of witness, or one who has received a conditional pardon on the understanding that he is to tell all he knows, and who may at any time be relegated to the dock if he fails in his undertaking."

The accomplice may have known that the crime was going to happen and not taken any steps to prevent it, or may have engaged in other activities which were designed to make the crime easier to commit or less likely to be detected. This gives the approver a rather unique insight on the crime, as he or she was directly involved and makes his testimony of immense importance to the prosecutors.

Having stated this, it must also be noted that is common practice to refer to such testimony of fellow accused as ‘tainted’ without further corroboration. [3] The statements given by them, the accomplices are not accorded the same weight [4] as independent witnesses. There are primarily three reasons for viewing such statements with an eye of suspicion: (a) because an accomplice is likely to swear falsely in a bid to shift the guilt from himself; (b)because an accomplice, as a participator in the crime, being presumed an immoral person, is likely to disregard the oath; (c) because he gives his evidence under promise of a pardon, if he discloses all he knows against those with whom he acted criminally and this hope would lead him to favour the prosecution. [5] Therefore, corroboration of the evidence of an accomplice is essential [6] and shall be dealt with in detail in a later chapter.

Categories of accomplices

In order to be an accomplice, a person must participate in the commission of the same crime and this he may do in various ways. Under English law, they may be categorised as follows:

Prime accused of 1st degree:

The person primarily responsible for the crime having actually committed it

Ex: ‘A’ killed ‘B’ with a knife. A is the prime accused of 1st degree.

Prime accused of 2nd degree:

Persons ancillary to the crime’s commission – present while being committed and assist in its commission.

Ex: When ‘A’ was trying to kill ‘B’, ‘B’s wife obstructed ‘A’. On that the companion of A i.e. ‘D’ caught hold of B’s wife, thereby cleared the way to ‘A’ for murdering ’B’.

Here the acts of ‘D’ come under this category.

Accessories before the fact:

Abettors and conspirators who take part in the crime before the actual occurrence of crime without being physically present at the scene of crime.

Accessories after the fact:

These accomplices who join the hands of accused after the commission of crime to screen the evidence and harbour the criminals from arrest, punishment etc.

It must be noted that if an accessory’s participation is limited to the knowledge that the crime is to be committed, he will not be considered as an accomplice, [7] thus removed from the ambit of “approver".

The Rule of Law & The Need for Corroboration

If Sections 133 and 144, Illustration (b) are read together, there might arise some doubt in the mind of the reader and both sections might seem inconsistent with each other. Section 133 allows for an accomplice to appear as witness whereas in Section 114 it is stated that there is a presumption that his testimony is not to be trusted unless corroborated. Such an anomaly is resolved on developing a deeper understanding of the two sections. Section 133 merely says what is not illegal to do. Nowhere in the section is it stated that, though it is not illegal to convict an accused person on the uncorroborated testimony of an accomplice, a conviction based on it is proper. The section only says that if the Court relies on the evidence of an accomplice in a particular case, the conviction under such circumstances would be legal.

The Court is given the discretion to take into account certain facts for considering whether the rule, that the accomplice, if not corroborated, is unworthy of credit, does or does not apply to the case. In the Full Bench case of the King v. Nga Myo, [8] it has been held that the two illustrations in the explanation to Section 114(b) show circumstances in which the presumption normally to be drawn is capable of being rebutted and that they are given by way of guidance only and in order that the Court may test the facts of the particular case to see whether anything has emerged to show that the evidence of the accomplice need not be corroborated in material particulars. The nature of the offence and the circumstances in which the accomplices make their statements must always be considered. [9] An approver’s evidence is admissible without corroboration only in very exceptional cases.

“Corroboration" does not mean that there should be independent evidence of all the facts which have been related by an accomplice. Obviously, if it were required that every detail of the accomplice’s testimony has to be verified, his testimony would be rendered redundant. To count as corrboration, it is not enough that a piece of evidence merely supports that the accomplice is credible but it must go a little further and implicate the accused. The corrboration of an accomplice is of two kinds: the first is that corroborating evidence which ensures that the approver is trustworthy; and the second which arises for conclusion to the corroboration in material particulars not only of the commission of crime but also of complicity of other accused persons in the crime. [10] 

The rules of corroboration of an accomplice may be stated as follows:

It is not necessary that testimony of the accomplice should be corroborated in every detail, since if this were so, the evidence of the accomplice would be unnecessary.

The corroboration need not be by direct evidence that the accused committed the crime. It is sufficient if it is merely circumstantial evidence of his connection with the crime.

The corroborative evidence must be one which implicates the accused.

The corroboration must be by some evidence other than that of another accomplice. [11] 

Case Laws

Emperor v. Har Prasad Bhargav

Jnanendranath Ghose v. State of West Bengal [12] 

The case relates to Section 133 and 114 of the Evidence Act. The question of corroboration of the approver’s witness was settled by the Supreme Court in this verdict.

This is a case of murder where the accused was sentenced to life by the Sessions Court and came up before the Honourable Supreme Court by way of special leave. The accused was married to one Sibapadi but simultaneously he had an affair going on with one Lila. He proposed that Lila and he co-habit but she turned down the proposal. Thinking Sibapadi was a hindrance in his relationship, he decided to get rid of her. Accordingly he murdered Sibapada Hati on the May 26, 1955. In that murder he was assisted by Jadgish Gorain, Sudhir Gorain and the approver Sastipada Ghose.

The appellant was sentenced to imprisonment for life under s. 302 by the Sessions Judge of Birbhum who agreed with the majority verdict of the jury that he was guilty. He appealed against his conviction to the Calcutta High Court. That Court being of the opinion that there was no misdirection in the Sessions Judge's charge to the jury dismissed the appeal. The two co-accused Jagdish Gorain and Sudhir Gorain were also tried along with the appellant but were acquitted by the jury whose verdict the Sessions Judge accepted.

The conviction of the appellant depended on the evidence of the approver and the circumstantial evidence which corroborated him in connecting or tending or connect the appellant with the murder of the deceased Sibapada Hati. Unless there was a misdirection or non-direction amounting to a misdirection in the charge to the jury which, in fact, had occasioned a failure of justice the jury's verdict must prevail and it cannot be interfered with. The High Court was of the opinion that there was no misdirection in the Sessions Judge's charge to the jury and on this point both – the High Court and the Supreme Court concurred.

Whilst explaining the position of an approver as a witness, the Sessions Court held:

"Before doing so, some established legal principles as regards the approver's evidence and the confessions on which the prosecution has relied in the present case are required to be explained to you. The approver is a competent witness against an accused person and although his evidence is strictly admissible and a conviction is not illegal, merely because it is based on approver's evidence, it is a settled rule of practice not to convict a person on such evidence except under very rare and exceptional circumstances, and usually substantial corroboration is required. I, therefore, warn you, gentlemen, that it is highly dangerous to convict on approver's evidence alone. There can, no doubt be a legal conviction upon the uncorroborated evidence of an accomplice and, as already stated, the uncorroborated testimony of an accomplice is strictly admissible and a conviction based on it alone is not illegal, yet you should remember, gentlemen, that experience teaches us that an accomplice being always an infamous person, he having thrown to the wolves his associates and friends in order to save his own skin and, though criminal, has purchased his liberty by betrayal, his evidence must be received with very great caution and it is highly dangerous to act upon his evidence unless it is materially corroborated. I must also tell you that this rule as to corroboration has become a settled rule of practice of so universal an application that it has now almost the force and reverence of law. Corroboration must be as to the crime and the identity of each one of the accused and the corroboration required must be independent evidence that is reliable evidence of another kind."

The appellant contended that the Sessions Court had ‘misdirected" the jury. While turning down this contention, the Supreme Court held that Evidence in corroboration must be independent testimony, which affects the accused by connecting or tending to connect the accused with the crime. In other words, it must be evidence which implicates him, that is, which conforms in some material particulars not only the evidence that the crime has been committed but also that the accused committed it.

Further the Court pointed out that Corroborative evidence is evidence which shows or tends to show that the story of the accomplice that the accused committed the crime is true. The corroboration need not be direct evidence that the accused committed the crime. It would be sufficient if it is merely circumstantial evidence of his connection with the crime. The corroboration in material particulars must be such as to connect or identify each of the accused with the offence.

State of Bihar

The facts of this case, in brief, are as follows:

Bhagati Ram was a hosiery merchant in the town of Bhagalpur in Bihar. Due to some financial loss incurred in the course of his business he was Rs. 2,76,000 in debt to the Imperial Bank (now called the State Bank of India). Unable to repay the amount, he thought of claiming insurance by setting his mill on fire. In this he was assisted by a few of his employees, his servant and his driver. Unfortunately, due to an accident, he died in the fire himself.

Later his servant Udim turned as an approver but it was after a considerable time that he gave his testimony against his own master; he was known to be a loyal servant and his sincerity as a witness was called into question.

The judge termed him an unreliable witness for the following reasons:

(1) He was a witness of no status and was "a mercenary man''.

(2) He made the confession after a great delay,

(3) He was under police influence who showered favours upon him.

(4) He spoke of sprinkling of petrol three days after the expert's report was received.

(5) His supplementary confession was suspicious. There were developments and inherent improbabilities in his statement.

For the rules relating to appreciation of an approver's evidence, the Court relied on Sarwan Singh v. State of Punjab [13] . Their Lordships in this judgment had held that the appreciation of an approver's evidence has to satisfy a double test. His evidence must show that he is a reliable witness and that is a test 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. The first question that arises for determination, therefore, is whether the approver can be treated to be a reliable witness.

It is beyond controversy that he was a trusted servant of Bhagwati Ram and was living in the Mill premises. That he was present at the Mill when the occurrence took place is also established beyond doubt. Sub-Inspector Ram Prasad Pathak (P. W. 3) found him at the Mill when he arrived there immediately after the explosion. The learned Judge has spoken of the approver's poor status and mercenary nature. If the approver is a competent witness which undoubtedly he is the mere fact that he wag a man of low status should not be adequate to condemn his evidence. It is not quite clear what the learned Judge has meant by describing him as mercenary. (His Lordship discussed the evidence and proceeded.) The charge that he was actuated by mercenary ends in coming out of his hiding has little justification.

26. The approver undoubtedly made his confessional statement about seven months after the occurrence. The learned Judge, however, himself found that there was sufficient explanation for this delay. (After reviewing the evidence, his Lordship proceeded.) On a review of the evidence I think that no case has been made out for rejecting the evidence of the approver so far as the manner of occurrence is concerned. As to whether his account with respect to the persons participating in the crime is concerned can be accepted in toto is however, a matter which I shall discuss hereafter.

27. The question next is : To what extent has the approver's evidence regarding the occurrence been corroborated? In discussing the evidence or the approver what the learned Judge appears to have done was to segregate the incidents deposed to by the approver and seek their corroboration in isolation--a procedure which appears to me to have been erroneous. The nature and extent of corroboration necessary is such a case has been laid down in Rameshwar v. State of Rajasthan  [14] . Their Lordships have held:

''It would be impossible, indeed it would be dangerous, to formulate the kind of evidence which should, or would, be regarded as corroboration. Its nature and extent must necessarily vary with the circumstances of each case and also according to the particular circumstances of the offence charged". The rules which should, however, be applied are these:

(1) It is not necessary that there should be independent confirmation of every material circumstance in the sense that the independent evidence in the case, apart from the testimony of the complainant or the accomplice, should in itself be sufficient to sustain conviction.

(2) The independent evidence must not only make it safe to believe that the crime was committed but must in some way reasonably connect or tend to connect the accused with it by confirming in some material particular the testimony of the accomplice or complainant that the accused committed the crime.

(3) The corroboration must come from independent sources and thus ordinarily the testimony of one accomplice would not be sufficient to corroborate that of another. But of course the circumstances may be such as to make it safe to dispense with, the necessity of corroboration and in those special circumstances a conviction so based would not he illegal.

(4) The corroboration need not be direct evidence that the accused committed the crime. It is sufficient if it is merely circumstantial evidence of his connection with the crime. In this connection their Lordships have also considered the effect of Section 157 of the Evidence Act. It has been pointed out that this Section makes no exceptions. Provided the condition prescribed, that is to say, "at or about the lime etc.", are fulfilled there can be no doubt that such a statement is legally admissible in India as corroboration. The weight to be attached to it is, of course, another matter and it may be that in some cases the evidentiary value of two statements emanating from the same tainted source may not be high, but in view of Section 118 its legal admissibility as corroboration cannot be questioned.

The approver's evidence as to the manner in which the crime was committed appears to be amply corroborated in this case, (After discussing this, his Lordship proceeded). Even if corroboration is lacking in regard to these details it does not falsify the general account given by the approver ns to the manner of occurrence.