Difference between Section 133 and the illustration (b) of Section 114 of the Evidence Act are given below:
The Court may presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars. While the Section 133 expresses that an accomplice shall be a competent witness without corroboration, the illustration (b) of Sec. 114 explains that the Court may presume the evidence of accomplice is unworthy unless is corroborated in material particulars.
ADVERTISEMENTS:
Thus a question arises about the competence of accomplice as a witness. Here we can examine the words used. While in Section 133, “shall” is used and in the illustration (b) for Sec. 114 the word “may’ is used. “Shall” is more powerful than-“may”.
The word may indicate permission, which may be done or may not be done depending upon the circumstances. The word shall indicate direction, which signifies the act must be done.
Image Source: 185.26.182.219
Further the words “unworthy of credit” are used in the illustration also give the meaning that the witness of accomplice of unworthy must be corroborated with the other evidence, whereas witness of accomplice of worthy of credit may be taken into consideration without corroboration.
The various decisions of the Supreme Court lay down that it is open to the Court to depart from the presumption in illustration (b) of Section’114, if it thinks that there are special circumstances in the case making it safe to do so, and a conviction is not illegal merely because it is based on the uncorroborated testimony of an accomplice.
ADVERTISEMENTS:
In Rampal Pithwa Rahidas vs. State of Maharashtra (1994 CrLJ 2320) case, the Supreme Court held: “Section 133 of the Evidence Act expressly provides that an accomplice is a competent witness against his co-accused and it renders admissible the testimony of an accomplice against his co- accused.
It has, however, been a long settled practice of law that Sec. 133 of the Evidence Act must be read along with the provisions of Illustration (b) to Sec. 114.
Section 114 of the Evidence Act empowers the Court to presume the existence of certain facts and Illustration (b) in express terms says that an accomplice is unworthy of credit unless he is corroborated in material particulars.
Thus, it follows, that whereas law permits the conviction of an accused person on the basis of the uncorroborated testimony of an accomplice by virtue of the provisions of Sec. 133 who is treated as a competent witness, the rule of prudence embodied in Illustration (b) of Sec. 114 of the Evidence Act, strikes a note of warning/caution to the Courts that an accomplice does not generally deserve to be relied upon, unless his testimony is corroborated in material particulars.
ADVERTISEMENTS:
Thus as a matter of practice and prudence the testimony of an approver may be accepted in evidence for recording conviction of an accused person provided it receives corroboration from direct or circumstantial evidence in material particulars.
The Courts have generally looked upon with suspicion the statement of an approver because he is considered to be a person of low morals and not a wholly trustworthy person who for the sake of earning pardon for himself is willing to let down his erstwhile accomplices and therefore before recording conviction Courts insist upon independent corroboration of his testimony.
In order to determine the creditworthiness of the testimony of the approver and the nature and the extent of the corroboration the Court must consider the question as to how the approver came to be arrested and how did he became a participant in the crime, the role played by him in the crime and circumstances in which he decided to become an approver.”
In Suresh Chandra Bahri vs. State of Bihar (AIR 1994 SC 2420) case, the Supreme Court laid down that conviction can be based on uncorroborated testimony of an approver under Section 133, but as a rule of prudence, it is unsafe to place reliance on the uncorroborated testimony of an approver. Illustration (b) of Section 114 incorporates a rule of caution to which the Courts should have regard.
In M.O. Shamsudhin vs. State of Kerala (1995) 3 SCC 351) case, the Supreme Court explained the rule of corroboration under Sec. 133 and Illustration (b) of Sec. 114, and held that conviction based on uncorroborated testimony of accomplice is not illegal.
However, Court may presume that he is unworthy of credit unless corroborated in material particulars. Whether in a particular case evidence of accomplice should be accepted without corroboration or not would depend on facts and circumstances of each case.