Accomplice as a Competent Witness: Section 133 vs 114(b)

Part I: The Apparent Contradiction — Section 133 and Illustration (b) to Section 114

Two Provisions, Two Registers

Section 133 of the Indian Evidence Act, 1872 (now Section 138 of the BSA, 2023) declares, in terms that appear straightforward: "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."

Illustration (b) to Section 114 (now Illustration (b) to Section 119 of the BSA, 2023) provides: "The Court may presume — that an accomplice is unworthy of credit, unless he is corroborated in material particulars."

The moment one reads these two provisions together, a tension seems to arise. Section 133 says a conviction without corroboration is not illegal; Illustration (b) to Section 114 says the accomplice may be presumed unworthy unless corroborated. Sir William Markby, whose views are quoted with approval in the 69th Report of the Law Commission of India, criticised Section 133 as "appearing to sanction a practice so universally condemned." At first glance, the Act appears to say with one breath that you may convict on uncorroborated accomplice evidence, and with another that you should regard such a witness as unworthy of credit.

Why the Contradiction is Only Apparent

The resolution lies in a conceptual distinction that runs through the entire structure of the Evidence Act — the distinction between a rule of law and a rule of prudence. Section 133 operates at the level of law. It answers the question: Is a conviction on uncorroborated accomplice testimony legally valid? The answer it gives is: yes, it is not illegal. Illustration (b) to Section 114 operates at the level of judicial prudence. It answers a different question: How should a court approach the testimony of an accomplice as a matter of good judicial practice? The answer it gives is: with great suspicion, and ordinarily not without corroboration.

The Supreme Court laid the conflict definitively to rest in Dagdu v. State of Maharashtra (AIR 1977 SC 1579), where the Court observed:

"There is no antithesis between Section 133 and Illustration (b) to Section 114, because the Illustration only says that the Court may presume a certain state of affairs. It does not seek to raise a conclusive and irrebuttable presumption. Reading the two together, the position which emerges is that though an accomplice is a competent witness and though a conviction may lawfully rest on his uncorroborated testimony, yet the Court is entitled to presume — and may indeed be justified in presuming — that no reliance can be placed on the evidence of an accomplice unless that evidence is corroborated in material particulars."

The word "may" in Illustration (b) to Section 114 is the pivotal word. It is not "shall" and it is not "must." No judicial decision can convert "may" into "must," as the Supreme Court repeatedly affirmed in Sitaram Sao v. State of Jharkhand (AIR 2008 SC 391). The court retains the discretion to act on uncorroborated accomplice evidence — but the exercise of that discretion must be informed by conscious appreciation of the dangers.

Why the Accomplice is Suspect: The Character of the Warning

The reasons for judicial suspicion are not merely conventional. They reflect hard experience. An accomplice is, by definition, a person who participated in the very offence charged. He stands before the court not out of civic virtue but because he has secured, or hopes to secure, pardon in exchange for testimony. The Privy Council in Bhuboni Sahu v. The King (AIR 1949 PC 257) captured the essential danger with great precision: the real risk is not merely that the accomplice is on his own admission a man of bad character. The real danger is that he tells a story which is true in its general outline — and it is easy for him to weave into it details that are false. He may implicate ten people, and the story may be true as to eight but false as to two whose names are included because they are his enemies. This tendency to include the innocent with the guilty is, as the Privy Council observed, "peculiarly prevalent in India." An accomplice cannot corroborate himself — as the Court observed in Bhuboni Sahu, "tainted evidence does not lose its taint by repetition."

The Rule of Prudence Hardened into Practice

What began as a rule of judicial discretion has, through a long and unbroken chain of decisions, acquired a hardness that approaches a rule of law in practical effect. In Rameshwar v. State of Rajasthan (AIR 1952 SC 54), Vivian Bose J. stated the governing principle in words that have never been improved upon:

"The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction, but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge... The only rule of law is that this rule of prudence must be present to the mind of the judge and be understood and appreciated by him. There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand."

The formulation is exquisitely calibrated. Bose J. did not say corroboration is always required — that would write out of the statute the plain language of Section 133. He said the necessity of corroboration must be present to the mind of the judge. If, having kept that necessity consciously in mind, the judge nevertheless decides in exceptional circumstances that the accomplice's testimony is, on its own, reliable enough to act upon, and records his reasons for so concluding, a conviction without corroboration is legally permissible.

In Sarwan Singh v. State of Rajasthan (AIR 1957 SC 637), the Supreme Court articulated the double test applicable to an approver's evidence: first, the court must ask whether the approver is a reliable witness at all — a test common to all witnesses. Only if that question is answered affirmatively does the second question arise: whether the testimony is corroborated in material particulars. If the approver fails the first test, the inquiry ends there, regardless of corroboration. In Haroon Haji Abdulla v. State of Maharashtra (AIR 1968 SC 832), the court added that corroboration must connect each accused individually with the crime — general corroboration of the story as a whole is not sufficient.

The Resulting Legal Position

To summarise the reconciled position: Section 133 is the rule of law — it defines the outer boundary of legal permissibility. A conviction on uncorroborated accomplice testimony is not void. Illustration (b) to Section 114 is the rule of prudence — it guides how courts should actually approach such testimony. Through consistent judicial practice, this rule of prudence has hardened into a near-invariable requirement of corroboration in material particulars. The "contradiction" in the Act is, therefore, not a contradiction but a studied tension — the statute creates the legal possibility while the courts, through the presumption in Illustration (b), have imposed the practical requirement. The second limb of Section 133 has, in the words of the Law Commission's 69th Report, been rendered virtually a "dead letter" — though not because the statute has been rewritten, but because courts of wisdom and experience, conscious of the character of the person who "threw to the wolves his erstwhile associates," have chosen, almost uniformly, to decline to act upon such testimony without independent confirmation.

Part II: The Confession of A — How Far Can It Be Used Against B?

The Problem Stated

The illustration presents a situation of compelling forensic interest. A and B are being jointly tried for the murder of C. A makes a confession in which he states that he and B went together to the room where C was sleeping; that A stood at the door because he felt nervous; and that B went inside and shot C dead. The question is: to what extent can this confession by A be used against B?

This question is governed by Section 30 of the Indian Evidence Act, 1872 — now Section 28 of the Bharatiya Sakshya Adhiniyam, 2023.

Section 30 IEA / Section 28 BSA: The Provision

Section 30 provides: "When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession."

Three conditions must be satisfied before Section 30 can be applied at all:

There must be a joint trial of more than one person for the same offence.
The confession must have been made by one of those persons being so tried.
The confession must affect both the maker and some other person being jointly tried — it is not sufficient that it confesses only to the maker's own guilt.

In the illustration, all three conditions are satisfied: A and B are jointly tried for the murder of C; A has made a confession; and the confession affects not only A himself but also B, by stating that B went inside and shot C.

The Nature of the Use Under Section 30: Not "Evidence" in the Full Sense

The critical word in Section 30 is "take into consideration." This is language of the most deliberate restraint. The confession of A is not evidence in the technical sense against B — it is not "proved" against B as substantive evidence. A does not go into the witness box; B cannot cross-examine A on the confession; and A's statement was made outside court, behind B's back, at a time when B had no opportunity to respond.

This distinction was drawn with immense care by a Constitutional Bench of the Supreme Court in Hari Charan Kurmi v. State of Bihar (AIR 1964 SC 1184), where Gajendragadkar CJ. observed that the confession of a co-accused "is not evidence in the strict sense defined by Section 3 of the Act. It is an element which may be taken into consideration by the criminal court." The word "may" reinforces the court's discretion — the court is not obliged to use A's confession against B even when the conditions of Section 30 are satisfied.

In Kashmira Singh v. State of Madhya Pradesh (AIR 1952 SC 159), the Supreme Court articulated the governing principle in the clearest possible terms: the confession of a co-accused can be used to lend assurance to other evidence that independently points to the guilt of the non-confessing accused. It cannot be the primary basis for conviction. As the Court held:

"The proper way to approach a case of this kind is, first, to marshal the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But if the other evidence is of a doubtful character, the proper course is to acquit the accused. It is only if the evidence is just short of being sufficient to convict or where it is desirable to have additional assurance that a court can call in aid the confession of a co-accused to lend assurance to the other evidence and thus convict."

Applying the Principle to the Illustration

The proper judicial approach in the given illustration, therefore, is as follows:

Step 1: Set aside A's confession entirely. Examine all other evidence against B independently — eyewitness testimony, forensic evidence, the testimony of neighbours who may have heard the shot, evidence of B's presence near the scene, recovery of the murder weapon, and so on.

Step 2: Ask: on this independent evidence alone, is there a case against B capable of supporting a conviction? If the answer is yes, then a conviction may be recorded against B on the basis of that independent evidence, and A's confession may additionally be taken into consideration to lend further assurance to the conclusion.

Step 3: If the independent evidence is insufficient to convict, A's confession cannot bridge the gap. Section 30 does not authorise a conviction of B based primarily or solely on A's confession. The Court may not convict B by treating A's confession as substantive evidence.

In Bhuboni Sahu v. The King (AIR 1949 PC 257), the Privy Council warned that the confession of a co-accused stands on a level lower even than that of accomplice evidence, because unlike an approver who testifies on oath in open court and is subject to cross-examination, the co-accused makes his confession outside court and cannot be challenged by the other accused.

The Specific Facts of the Illustration: An Additional Dimension

The facts of the illustration also raise a question about the nature of A's own role. A says he stood at the door because "he felt nervous" — in other words, A did not actively participate in the actual shooting. Does this affect the analysis? Under the law, a person who stands watch at the door while his confederate commits the crime is an active participant in the enterprise — he is an abettor and is present to facilitate the commission. The Supreme Court in Dhanapati De v. Emperor (AIR 1946 Cal 156) held that a witness who assisted criminals by "keeping a look out to see whether police were approaching" was in the position of an accomplice. A's conduct in standing at the door is therefore participation in the murder, and his confession implicating B is a confession "affecting himself and some other" as required by Section 30.

However, the confession is admissible against B only to the extent that it "takes into consideration" the totality of B's role — and the court must independently satisfy itself, through other evidence, that B was present and fired the shot, before it relies on A's confession to further confirm that conclusion.

The Distinction Between a Confession and Accomplice Evidence

It is important to note the qualitative distinction between using A's confession against B under Section 30 on the one hand, and using A's testimony as an approver against B on the other. In Subramania Goundan v. State of Madras (AIR 1958 SC 66), the Supreme Court drew this distinction clearly: unlike an approver who deposes in open court on oath and is subject to cross-examination, the co-accused who has confessed speaks from outside the witness box. His statement is not oral evidence; it is not tested by the process of examination. For this reason, the standard of corroboration required for an accomplice's oral testimony — corroboration in material particulars connecting the accused to the crime — is even more rigorously insisted upon before a co-accused's confession is acted upon against another. The Court observed that a retracted confession is placed on a still lower level.

In Haroom Haji Abdulla v. State of Maharashtra (AIR 1968 SC 832), Hidayatullah J. confirmed that "a confession intended to be used against a co-accused stands on a lower level than accomplice evidence because the latter is at least tested by cross-examination whilst the former is not."

The Correct Legal Position: A Consolidated Statement

Pulling together the principles as they apply to the illustration:

A's confession is admissible against B in the joint trial by virtue of Section 30 IEA / Section 28 BSA, provided it satisfies the three conditions of the section.
However, the word "may take into consideration" means the court has a discretion — it is not obliged to use the confession against B.
The confession can be used only to lend assurance to existing independent evidence pointing to B's guilt. It cannot be the foundation of a conviction against B.
The correct judicial approach is to first exclude A's confession, evaluate the remaining evidence against B, and only if that evidence supports the conclusion of guilt, then take the confession into consideration to strengthen the conclusion.
If the evidence excluding the confession is insufficient to establish B's guilt, A's confession cannot rescue the prosecution's case against B.
A's confession, being an out-of-court statement not tested by cross-examination by B, stands on an even lower evidential footing than accomplice testimony given in court.

Illustration in practice: Suppose independent evidence shows that B's fingerprints were found on the doorframe of C's room, a witness heard two voices outside C's room shortly before the shot, and the weapon recovered was traced to B. In such circumstances, the court may, after satisfying itself on the independent evidence, additionally take A's confession into consideration to lend it further assurance, and convict B. But if no independent evidence connects B with the scene, A's confession alone is insufficient.

The Position Under the BSA, 2023

Section 28 of the Bharatiya Sakshya Adhiniyam, 2023 corresponds directly to Section 30 of the IEA, and carries the same substance forward without material alteration. The words "take into consideration" remain unchanged. The entire body of case law discussed above — Kashmira Singh, Hari Charan Kurmi, Bhuboni Sahu, Haroom Haji Abdulla, Subramania Goundan — continues to govern the interpretation and application of Section 28 of the BSA. The new legislation has not altered the careful balance that these decisions have struck between the necessity of using available evidence and the imperative of protecting the accused from being condemned on evidence he could never challenge.