Accomplice Evidence under Section 138 of the Bharatiya Sakshya Adhiniyam, 2023: Corroboration, and the Accomplice Compared with the Approver

A man who helped commit the offence is offered as the principal witness against those who committed it with him. He has an obvious motive to shift blame, he may have been promised something, and he is by definition a person who participated in a crime. The Adhiniyam nevertheless makes him a competent witness and declares that a conviction on his uncorroborated testimony is not illegal. What restrains that provision is not a rule of law but a rule of prudence sitting three chapters away.

1. The Two Provisions

Section 138, BSA — 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.

Section 119, Illustration (b), BSA

The Court may presume that an accomplice is unworthy of credit unless he is corroborated in material particulars.

Section 138 corresponds to Section 133 of the Indian Evidence Act, and the illustration to Section 114(b). The two have always been read together, and the apparent tension between them is the whole of the subject.

Section 138 states a rule of law. An accomplice is competent, and a conviction resting on his evidence alone is legal. No court may reject his evidence merely because he is an accomplice, and no court may hold that corroboration is a legal requirement.

Illustration (b) states a rule of prudence. The court may presume that such a witness is unworthy of credit unless corroborated in material particulars. It is a 'may presume' provision under Section 2(1)(h), so the court may draw the inference or may call for proof.

📖 Bhiva Doulu Patil v. State of Maharashtra, AIR 1963 SC 599

Held: The combined effect of the provisions corresponding to Section 138 and illustration (b) to Section 119 is that, although a conviction based upon accomplice evidence is legal, the Court will not accept such evidence unless it is corroborated in material particulars.

The rule of prudence has been so long acted upon that it has come to have the force of a rule of law, though it remains in form a rule of prudence and not a rule of law. The corroboration required is not of every detail, but must be in material particulars connecting the accused with the offence.

Ratio: The two provisions reconcile as a legal permission qualified by a settled practice. Uncorroborated accomplice evidence is legal but is not acted upon.

⚠ The formulation to remember

A conviction on the uncorroborated testimony of an accomplice is legal but not safe. Section 138 removes the legal objection; illustration (b) supplies the judicial practice. A submission that such a conviction is illegal is wrong as a matter of law; a submission that it is unsafe is almost always right as a matter of practice.

2. Who Is an Accomplice

The Adhiniyam does not define the word. An accomplice is a person who was concerned with another in the commission of the offence — a participant, whether as a principal or as an abettor, and whether or not he is being tried.

Three classes are ordinarily recognised.

Principals in the first or second degree — those who committed the act or were present aiding it.
Accessories before the fact — those who counselled, procured or abetted the offence.
Accessories after the fact — those who received, comforted or assisted the offender afterwards, knowing of the offence.

Certain persons connected with an offence are not accomplices, and the distinction matters because the rule of prudence does not apply to them.

Person	Accomplice?	Reason
A trap or decoy witness in a bribery or similar case	No	He participates in order to detect the offence, not to commit it; his object is to expose rather than to share in the crime
A victim of the offence	No	A person against whom the offence was committed is not a participant in it
A person under duress	Ordinarily no	Participation without volition is not complicity in the relevant sense
A detective or a person employed to obtain evidence	No	The purpose of the participation is detection
A person who conceals the offence afterwards	Yes, ordinarily	An accessory after the fact
A co-accused giving evidence	Yes, if he participated	His position is that of an accomplice, though a confession by a co-accused is separately governed by Section 24

The trap witness is the most important of these in practice. In corruption cases the complainant and the panch witnesses participate in the transaction in which the bribe is paid, and the question whether their evidence needs corroboration as accomplice evidence arises constantly. The settled position is that a person who takes part in order to detect the offence rather than to commit it is not an accomplice, and the ordinary standards of credibility apply to him — though a court may still scrutinise his evidence with care where the circumstances warrant it.

3. The Double Test

The practice the decisions have settled requires two questions to be answered, and the first is often omitted.

📖 Sarwan Singh Rattan Singh v. State of Punjab, AIR 1957 SC 637

Held: An approver is undoubtedly a competent witness; but his evidence has to be examined in the light of a double test.

The first test is whether the approver is a reliable witness — that is, whether his evidence, judged by the ordinary tests of credibility, shows him to be a person whose testimony can be relied upon at all. If he fails this test, the enquiry ends and no question of corroboration arises.

The second test, which applies only if the first is satisfied, is whether his evidence receives sufficient corroboration in material particulars connecting the accused with the offence.

Ratio: Reliability comes first, corroboration second. An unreliable approver cannot be made reliable by corroboration.

The order is not a formality, and reversing it is a recurring error. Corroboration is a device for supporting the evidence of a witness the court is otherwise prepared to believe. It is not a device for rehabilitating a witness the court has found untruthful.

📖 Ravinder Singh v. State of Haryana, (1975) 3 SCC 742

Held: An approver is a most unworthy friend, if at all, and he, having bargained for his immunity, must prove his worthiness for credibility in court. This test is fulfilled, firstly, if the story he relates involves him in the crime and appears intrinsically to be a natural and probable catalogue of events that had taken place; and secondly, once that hurdle is crossed, the story given by the approver so far as the accused on trial is concerned must implicate him in such a manner as to give rise to a conclusion of guilt beyond reasonable doubt, and that conclusion must be corroborated in material particulars.

Ratio: The approver must first establish his own worthiness for credit, and only then does corroboration as to the accused become relevant.

4. What Corroboration Requires

The second limb of the test is not satisfied by any supporting material, and four requirements define what will do.

It must come from an independent source. Material emanating from the accomplice himself — his earlier statement, his conduct, a document he produced — does not corroborate him. A witness cannot corroborate himself.
One accomplice does not corroborate another. Two accomplices deposing to the same account are two persons under the same infirmity, and their agreement does not cure it.
It must implicate the accused in a material particular. Corroboration of the general story is not enough. What is required is material connecting the particular accused with the offence — evidence that the crime occurred, or that the accomplice was present, does not touch the point in issue.
It need not cover every detail. The law does not require independent confirmation of the whole account. It requires corroboration in material particulars, and confirmation of the accomplice as to each accused in some material respect.

📖 Haroon Haji Abdulla v. State of Maharashtra, AIR 1968 SC 832

Held: Corroboration of the evidence of an accomplice need not be of every detail of the story he relates. What is required is independent evidence which affects the accused by connecting or tending to connect him with the crime; that is to say, evidence, direct or circumstantial, which confirms in some material particular not only that the crime was committed but that the accused committed it.

The evidence of one accomplice cannot be used to corroborate the evidence of another accomplice, both being tainted by the same infirmity.

Ratio: Corroboration must be independent and must connect the particular accused; accomplices cannot corroborate each other.

The material that ordinarily serves is recognisable: recovery of articles at the accomplice's instance where it implicates the accused, independent eyewitness evidence, medical or forensic findings consistent with the account, call records or documents establishing association, and the conduct of the accused before or after the occurrence under Section 6(2).

⚠ Corroboration must be accused-specific

Where several persons are tried together on an accomplice's evidence, the corroboration must be examined in relation to each of them separately. Material confirming the accomplice as against A does not assist as against B, and a conviction of B on corroboration that touches only A is unsustainable. Judgments dealing with multiple accused should therefore work through the corroboration accused by accused rather than in the aggregate.

5. The Approver

An approver is an accomplice who has been granted a pardon on condition of making a full and true disclosure of the whole of the circumstances within his knowledge relating to the offence and to every other person concerned in it.

The pardon is tendered under the criminal procedure legislation — the provisions of the Bharatiya Nagarik Suraksha Sanhita, 2023 corresponding to Sections 306 and 307 of the Code of Criminal Procedure, 1973. It is tendered by a Magistrate or, at a later stage, by the court, and it operates on a condition.

	Accomplice	Approver
Definition	A person concerned with another in the commission of the offence	An accomplice who has been granted a pardon on condition of full disclosure
Source	The general law; the term is undefined in the Adhiniyam	The criminal procedure legislation — the provisions corresponding to Sections 306 and 307, CrPC, 1973
Status in the case	May or may not be an accused; may simply be a witness	Ceases to be an accused on accepting the pardon and becomes a witness for the prosecution
Condition attached	None	Full and true disclosure of the whole of the circumstances and of every other person concerned
Consequence of breach	None specific	The pardon may be forfeited and he may be tried for the offence and for giving false evidence
Examination	Examined as an ordinary witness	Must be examined as a witness in the committal proceeding and again at the trial
Evidentiary position	Section 138 and illustration (b) to Section 119	The same, applied with even greater care because he has bargained for immunity

Two propositions distinguish the approver's position in practice.

He has bargained for his immunity, and that is itself a reason for care. Ravinder Singh describes him as a most unworthy friend who must prove his worthiness for credibility in court, and the extra scrutiny follows from the bargain rather than from anything in the statute.

The condition is enforceable. An approver who does not make a full and true disclosure, or who conceals something, or who resiles at the trial, exposes himself to forfeiture of the pardon and to trial for the offence. This is the mechanism by which the condition is given effect, and it is also a reason the approver's evidence is sometimes over-inclusive — he has an interest in appearing to disclose everything.

⚠ Every approver is an accomplice; not every accomplice is an approver

The relationship is one of species and genus. The evidentiary rules — Section 138, illustration (b) to Section 119, and the double test — apply to both. What the approver adds is the pardon, the statutory conditions attached to it, and the additional reason for caution supplied by the bargain. An answer that treats the two as governed by different evidentiary rules has misstated the position.

6. The Accomplice and the Co-Accused's Confession

A distinction that is frequently blurred deserves separate statement, because the two look similar and are governed quite differently.

	Accomplice as witness	Confession of a co-accused
Provision	Section 138, with illustration (b) to Section 119	Section 24
Form	Sworn testimony, given in court	An out-of-court confession, proved in the trial
Cross-examination	Available — he is a witness and is cross-examined	Not available — the maker is a co-accused and is not a witness
Status	Substantive evidence	Not substantive evidence. It may be 'taken into consideration' only, and cannot found a conviction by itself
Corroboration	Required as a matter of prudence	The confession itself is only a supporting circumstance for other evidence

The difference in status is the point. An accomplice who enters the witness box gives substantive evidence which, if believed and corroborated, may found a conviction. A co-accused's confession under Section 24 is not evidence in that sense at all: it may be taken into consideration against a co-accused tried jointly for the same offence, but it cannot be the foundation of a conviction and serves only to lend assurance to a conclusion reached on other material.

This explains why an accomplice is so often made an approver. Converting a co-accused into a witness transforms material of the second kind into material of the first.

7. Working Through an Accomplice Case

Establish whether the witness is an accomplice at all. A trap witness, a victim, or a person acting under duress is not, and the rule of prudence does not apply to him.
Apply the first limb of the double test. Is the witness reliable, judged by the ordinary tests of credibility — is the account natural and probable, and does it implicate him as well as the accused?
If he fails, stop. Corroboration cannot rehabilitate an untruthful witness.
If he passes, look for corroboration in material particulars. Independent in source, connecting the accused with the offence, and not drawn from another accomplice.
Examine the corroboration accused by accused. Material touching one does not assist as against another.
Where the witness is an approver, check the pardon — that it was validly tendered, that it was accepted, and that the condition of full disclosure has been complied with.
Do not treat a co-accused's confession as corroboration, its status under Section 24 being quite different.

8. The Position Stated Shortly

Section 138 makes an accomplice a competent witness and a conviction on his uncorroborated testimony legal.
Illustration (b) to Section 119 supplies the rule of prudence — such a witness may be presumed unworthy of credit unless corroborated in material particulars.
The combined effect is that such a conviction is legal but not safe — Bhiva Doulu Patil.
A trap or decoy witness is not an accomplice, his purpose being detection rather than participation.
The double test applies — reliability first, corroboration second — Sarwan Singh and Ravinder Singh.
Corroboration must be independent, must connect the particular accused, and need not cover every detail — Haroon Haji Abdulla.
One accomplice cannot corroborate another.
An approver is an accomplice granted a pardon on condition of full and true disclosure; the same evidentiary rules apply, with additional caution because he has bargained for immunity.

9. Related Topics and Provisions

Topic or provision	Connection
Competency and Privilege of Witnesses — Sections 124 to 139	The chapter in which Section 138 sits
General Presumptions — Section 119	Illustration (b), the source of the rule of prudence
Confession of a Co-Accused — Section 24	The material with which accomplice evidence is most often confused
Number of Witnesses — Section 139	Quality against quantity, and the sole witness
Special Types of Witnesses	The accomplice and the approver among the recognised classes
Witness Not Excused Because the Answer May Incriminate — Section 137	The provision on which accomplice testimony rests
Bharatiya Nagarik Suraksha Sanhita, 2023	Tender of pardon to an approver, and the conditions attached