Can a co-accused be a witness of another accused?

All persons are competent to be witness except in the cases mentioned below. Therefore, a co-accused can also be a witness for an accused person. In this regard, have a look at the provisions of Section 118 of the Evidence Act:

“118. Who may testify.—All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.

Explanation.—A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them.”

Thus, it is unequivocally clear that any person can be a witness. Even an accused himself can become his own witness by entering the witness box and then giving evidence in his own favour. Of course, an accused person cannot be forced to become a witness against himself in view of the fundamental right guaranteed under Article 20 of the Constitution. Therefore, there is no doubt that a co-accused can definitely be a witness for an accused person.

However, please be careful that if a co-accused or the accused himself becomes a witness then he may be subjected to cross-examination by the prosecution, which may sometimes be risky for the accused. It may be a double-edged weapon. So, take this step only after a serious consideration.

It is also noteworthy that a co-accused is also an “accomplice” in legal parlance, though the reverse may not always be true. Section 133 of Evidence Act and Illustration (b) to Section 114 of that Act are relevant to the statement of an accomplice, and are reproduced below:

“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.”

“114. Court may presume existence of certain facts.—The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.

The Court may presume—

… …

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

… …”.

Thus, Section 133 of the Evidence Act, in specific terms lays down that “An accomplice shall be a competent witness against an accused person…”. Since a co-accused is also an accomplice, therefore a co-accused is also a competent witness.

However, please note that while Section 133 lays down the rule when the accomplice gives evidence AGAINST the accused person, whereas what is asked in the above question is a co-accused or accomplice giving evidence IN FAVOUR OF the accused. However, the Illustration (b) to Section 114 is neutral, i.e., it applies to the evidence of accomplice in all situations. Thus, the court may presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars. Of course, the above presumption can be rebutted.

Therefore, the evidence of an accomplice is generally required to be corroborated in material particulars (i.e., the main issues) by some other evidence, even though Section 133 clearly says that “…a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice…”; this is because the courts have interpreted Section 133 and Illustration (b) to Section 114 of Evidence Act together.

There are many judgments on this issue which will clear the doubt, if any. For example, in the case of Sheshanna Bhumanna Yadav v. State of Maharashtra, (1970) 2 SCC 122, at page 126, the Supreme Court has held that:

“The law with regard to appreciation of approver’s evidence is based on the effect of Sections 133 and 114, illustration (b) of the Evidence Act, namely, that an accomplice is competent to depose but as a rule of caution it will be unsafe to convict upon his testimony alone. …”.

[emphasis supplied by me.]

Similarly, in the case of Piara Singh v. State of Punjab, (1969) 1 SCC 379, at page 384, the Supreme Court held as under:

“An accomplice is undoubtedly a competent witness under the Indian Evidence Act. There can be, however, no doubt that the very fact that he has participated in the commission of the offence introduces a serious taint 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.”

[emphasis supplied by me.]

There are several other judgments of the Supreme Court on this issue. I don’t want to keep multiplying these judgments.

Thus, the fact remains that as per the provisions of the Evidence Act, as well as various judgments of the Supreme Court, it is crystal clear that an accomplice is a competent witness though his testimony is generally not believed unless it is corroborated in material particulars by some other evidence. At the same time, in a particular case, if the court convicts an accused person solely on the basis of the evidence of an accomplice, it shall not be illegal, as Section 133 of Evidence Act itself declares, though it is considered not to be a prudent thing to do so.

And, of course, it goes without saying that a co-accused or accomplice can also give evidence in favour of another accused. How much reliance would be placed by the court on such evidence of the co-accused, of course, would depend upon various factors, including the corroboration available through other evidence.