Accomplice & Approver under Indian Evidence Act & BSA

Who is an Accomplice?

The word "accomplice" has not been defined in the Indian Evidence Act, 1872, or in the Bharatiya Sakshya Adhiniyam, 2023 (BSA), and the courts have therefore given it its ordinary meaning. An accomplice is a guilty associate or partner in crime — a person who participates in the commission of the very offence with which the accused is charged, who is privy to the criminal intent, and who could, in principle, have been jointly indicted with the principal offender. He is what the law calls a particeps criminis — a sharer in the crime.

The Privy Council provided the clearest description of the dangers associated with accomplice evidence in Bhuboni Sahu v. The King (AIR 1949 PC 257), where it observed with characteristic precision that the real danger of acting on accomplice evidence is not merely that the accomplice is on his own admission a man of bad character. The real danger is that he is telling a story which in its general outline is true, and it is easy for him to work into the story matter which is untrue. He may implicate ten people in an offence, and the story may be true in all its details as to eight of them, but untrue as to the other two, whose names have been introduced because they are enemies of the approver. This tendency to include the innocent with the guilty is, as the Privy Council noted, peculiarly prevalent in India, and it is very difficult for courts to guard against this danger.

The categories of accomplices recognised under Indian law include, principally, those who are directly involved in the commission of the crime, abettors, and accessories. Two further categories — somewhat peculiar to the common law — have also been recognised in India: receivers of stolen property who are treated as accomplices of the thieves in a trial for theft, and parties to previous similar crimes when such evidence is admissible to prove the system and intent of the accused. In RK Dalmia v. Delhi Administration (AIR 1962 SC 1821), the Supreme Court affirmed both these categories.

Who is NOT an Accomplice

The boundaries of the concept are equally important to understand. A witness who merely happens to be aware of the commission of a crime, without actively participating in it or being privy to the criminal intent, is not an accomplice — and the rule of prudence as to corroboration does not apply to his evidence. In Vemi Reddy Satyanarayan Reddy v. The State of Hyderabad (AIR 1956 SC 379), the Supreme Court held clearly that there is no warrant for the proposition that if a man sees the perpetration of a crime and does not disclose it, he might thereby be regarded as an accomplice. Similarly, a person who is forced under threat of harm to participate in a criminal act without sharing the criminal intent is not a particeps criminis. The Supreme Court in CM Sharma v. State of AP (AIR 2011 SC 608) held that a witness forced to pay on the promise of doing or forbearing to do any official act by a public servant is not a partner in crime and cannot be said to be an accomplice. The contractor who gave a bribe, the money having been extorted from him, therefore cannot be treated as an accomplice.

A pretended confederate — a detective, spy, or decoy witness — is also not an accomplice, provided that such a person had already made himself an agent for the prosecution before associating with the wrongdoers or before the actual perpetration of the offence.

Illustration: In a dacoity case, A and B plan and execute the robbery, while C, a servant of A, is asked under threat to keep watch at the gate. D, a passer-by, witnesses the crime but does not report it immediately out of fear. E is the person who paid a bribe to a police officer under coercion to avoid harassment. Of these — A and B are accomplices. C may arguably be one. D is not. E is not.

The Approver: A Note on Distinction

An accomplice who turns a prosecution witness and obtains pardon under Section 306 of the Code of Criminal Procedure, 1973 (now Section 343 of the Bharatiya Nagarik Suraksha Sanhita, 2023) is called an approver. The process of transformation from accused to approver is significant. Under Section 306, the Chief Judicial Magistrate or a Metropolitan Magistrate may tender a pardon to any person supposed to have been directly or indirectly concerned in or privy to an offence, on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence. Once the pardon is accepted and the approver is examined as a prosecution witness, he ceases to be an accused for the purposes of the trial. If he fails to comply with the condition of making a full and true disclosure, the Public Prosecutor may certify accordingly under Section 308, and the approver may be tried for the offence in respect of which the pardon was tendered.

As the Bombay High Court observed in Barkat Ali v. The Crown (1916 PR No. 2 of 1917 Cr.), the evidence of an approver has more sanctity than a mere confession under Section 164 CrPC because an approver deposes in open Court and is subject to cross-examination by the other accused. In Jasbir Singh v. Vipin Kumar Jaggi (AIR 2001 SC 2734), the Supreme Court observed that while the approver's evidence is to be looked upon with great suspicion, it could be decisive in securing conviction if it is found to be trustworthy.

An approver's evidence must satisfy what the courts have consistently called the double test: first, his evidence must show that he is a reliable witness — a test common to all witnesses. Second, and only after the first test is passed, the court turns to whether the evidence is sufficiently corroborated. In Sarwan Singh v. State of Rajasthan (AIR 1957 SC 637), the Supreme Court articulated both limbs of this double test with precision, and the principle has been followed in an unbroken line of decisions ever since.

The Critical Tension: Section 133 IEA versus Illustration (b) to Section 114 IEA

This is the intellectual centrepiece of the entire chapter on accomplice evidence. The statement in the question — that "the law contained in section 133 of the Indian Evidence Act, 1872 is not good law and hence the practice is otherwise" — requires careful examination, because it raises a genuine tension between what the statute plainly says and what the courts have in practice done with it.

Section 133 of the Indian Evidence Act, 1872 (now Section 138 of the Bharatiya Sakshya Adhiniyam, 2023) provides, in terms that could not be plainer: "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."

The first limb declares the accomplice to be a competent witness. The second limb — employing the double negative and thereby reading cautiously — says that a conviction is not illegal merely because it rests on uncorroborated accomplice testimony.

Illustration (b) to Section 114 of the IEA (now Section 119 of the BSA, 2023) introduces a different, and apparently opposing, note. It provides: "The Court may presume — that an accomplice is unworthy of credit, unless he is corroborated in material particulars."

At first glance, these two provisions appear to contradict each other. Section 133 says a conviction based on uncorroborated accomplice testimony is not illegal; Illustration (b) says the court may presume such a witness is unworthy of credit unless corroborated. Commentators — including Sir William Markby, who is quoted in the 69th Report of the Law Commission of India — criticised section 133 as appearing to "sanction a practice so universally condemned."

How the Courts Resolved the Tension

The Supreme Court laid this apparent conflict to rest in Dagdu v. State of Maharashtra (AIR 1977 SC 1579), where it observed with great analytical clarity: "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 key to resolving the tension lies in this distinction: Section 133 states the rule of law — a conviction based on uncorroborated accomplice testimony is not illegal. Illustration (b) to Section 114 states the rule of prudence — the court may presume such a witness is unworthy of credit unless corroborated. The rule of law declares what is legally permissible; the rule of prudence guides what is judicially desirable.

However, the courts went considerably further. The rule of prudence under Illustration (b) to Section 114 — employing the discretionary language of "may presume" — has, through a long and consistent practice of the courts, hardened into something that approximates, in its practical effect, a rule of law. In Rameshwar v. State of Rajasthan (AIR 1952 SC 54), Vivian Bose J. — in one of the most eloquent judicial statements on the subject — observed: "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 or the jury and be understood and appreciated by him or them. There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand."

This is the crucial qualification. The courts have not entirely reversed the statutory position in Section 133. What they have done is require that the judge consciously engage with the question of corroboration in every case involving accomplice evidence — and that where the judge chooses to convict without corroboration, he must indicate in his judgment that the rule of caution was present to his mind and give reasons for considering it safe to dispense with corroboration on the facts of that particular case. In Kashmira Singh v. State of Madhya Pradesh (AIR 1952 SC 159), the Supreme Court held that a conviction can indeed be based on uncorroborated testimony of an accomplice, provided the judge has the rule of caution in mind.

What the Statement in the Question Really Means

The statement — "the law in section 133 is not good law and hence the practice is otherwise" — needs to be read in historical and jurisprudential context. What it captures is the following trajectory:

Section 133, as written, permitted conviction on uncorroborated accomplice evidence as a matter of law. But the courts, following the tradition established in Rex v. Baskerville (1916) 2 KB 658 — where Lord Reading CJ declared the practice of warning as to accomplice evidence to be "virtually equivalent to a rule of law" — and following the line of decisions from Rameshwar (1952) through Sarwan Singh (1957) through Dagdu (1977) to State of Tamil Nadu v. Suresh (AIR 1998 SC 1044), have established that:

The word "may" in Illustration (b) to Section 114 cannot be converted to "must" by any judicial decision, but the mandatory requirement that the judge keep the rule of caution in mind has acquired, in practice, the character of a rule of law.
The second part of Section 133 — which declares that conviction on uncorroborated testimony is not illegal — has been rendered, in the words of the 69th Report of the Law Commission of India, "virtually a dead letter."
The courts in India, as the Law Commission itself noted, have "converted the recommendatory 'may presume' precaution contained in Illustration (b) of Section 114 into a mandatory critical warning to be kept in mind by the judge."

That said, the statement that section 133 "is not good law" is too sweeping. A more accurate formulation — and one that the Supreme Court in Dagdu explicitly endorsed — is that the practice has modified the reach of section 133 not by abrogating it, but by overlaying it with such a consistent rule of judicial prudence that in practical terms, conviction without corroboration has become the exception, not the rule.

It is significant that the BSA, 2023, in its Section 138, has made one important modification to the corresponding provision. Section 138 of the BSA reads: "An accomplice shall be a competent witness against an accused person and a conviction is not illegal if it proceeds upon the corroborated testimony of an accomplice." By replacing the double negative of section 133 IEA ("not illegal merely because it proceeds upon the uncorroborated testimony") with a positive affirmation that conviction is not illegal "if it proceeds upon the corroborated testimony," the BSA appears to have tilted the balance further towards corroboration — though its precise impact on the question of whether uncorroborated testimony can still ground a conviction remains to be worked out by the courts.

The Nature and Extent of Corroboration

What constitutes adequate corroboration in material particulars has been examined in great depth by the Supreme Court. The law, as summarised from Rameshwar through Bhiva Doulu Patil v. State of Maharashtra (AIR 1963 SC 599) to State of Tamil Nadu v. Suresh (AIR 1998 SC 1044), may be stated in four propositions:

First: It is not necessary that there should be independent confirmation of every material circumstance. All that is required is some additional evidence rendering it probable that the story of the accomplice is true and that it is reasonably safe to act upon it.
Second: The corroboration must not only make it safe to believe the crime was committed, but must in some way reasonably connect or tend to connect the accused with the crime by confirming in some material particular the testimony of the accomplice that the accused committed it.
Third: The corroboration must come from independent sources. Thus, ordinarily, the testimony of one accomplice would not be sufficient to corroborate that of another — as the Privy Council stated unforgettably in Bhuboni Sahu: "Tainted evidence does not lose its taint by repetition."
Fourth: The corroboration need not be direct evidence. Circumstantial evidence of the accused's connection with the crime is sufficient.

Additionally, corroboration must be specific to each accused in a case involving multiple accused. In Bhiva Doulu Patil, the Supreme Court held that there should be corroboration of the approver's evidence in material particulars regarding each accused person separately. The confession of a co-accused under Section 30 of the IEA (Section 24 of the BSA) also cannot be used to corroborate the evidence of an accomplice — it is another species of tainted evidence that cannot cleanse another piece of tainted evidence.

Accomplice Evidence in Special Contexts

In bribery cases: The rule of corroboration applies with considerably less force where the person who pays the bribe is not a willing participant but is a victim of the offence. In MO Shamsudhin v. State of Kerala (1995 3 SCC 351), the Supreme Court provided a nuanced taxonomy of bribe-givers — distinguishing those who give willingly to achieve their own purpose (who are accomplices in the full sense) from those who are coerced (who are victims). The degree of corroboration required in each category differs, and no rigid formula can be laid down.

In rape cases: The Supreme Court has clearly held that a rape victim cannot be treated as an accomplice. In State of Maharashtra v. Chandraprakash Kewalchand Jain (AIR 1990 SC 658), the Court observed that a prosecutrix is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless corroborated in material particulars. She is undoubtedly a competent witness under Section 118, and her evidence must receive the same weight as is attached to an injured person in cases of physical violence. The rule requiring corroboration of a rape victim's testimony as if she were an accomplice has been rightly set aside.

In trap cases: A pretended confederate — a decoy or spy who associated with the wrongdoers for the purpose of detection — is not an accomplice, provided he acted as an agent for the prosecution before the offence was committed. However, the Supreme Court has consistently treated trap witnesses as witnesses of interested character, and as a rule of prudence, looks for corroboration of their testimony.

The Appraisal: Is Section 133 Bad Law?

The honest answer, after a careful survey of the entire field, is that Section 133 is not bad law in itself — it stated the law correctly as it stood when it was enacted, and it correctly identifies that the legal admissibility and the practical sufficiency of accomplice evidence are two distinct questions. The courts, in developing the practice of insisting on corroboration as a near-mandatory rule, have not violated section 133 — they have supplemented it with the rule of prudence in Illustration (b) to Section 114. As was wisely observed in State of Tamil Nadu v. Suresh (AIR 1998 SC 1044): "The law is not that the evidence of an accomplice deserves outright rejection if there is no corroboration. What is required is to adopt great circumspection and care when dealing with the evidence of an accomplice. Though there is no legal necessity to seek corroboration, it is desirable that the court seeks reassuring circumstances to satisfy the judicial conscience that the evidence is true."

The statement in the question therefore contains only partial truth. Section 133 is not bad law, but the practice it sanctions — acting on uncorroborated accomplice evidence — is one that the courts have, by their consistent decisions over more than a century, treated with such caution that it has become, in all but exceptional cases, mandatory to seek corroboration. The "practice" spoken of in the statement is indeed otherwise — but the law itself, as written in Section 133, remains technically valid. The BSA, 2023, by restating the provision in Section 138 with a positive lean towards corroboration, has perhaps brought the statute into closer alignment with what the practice has always been.

Who is an accomplice? Under what circumstances can a conviction be based on the testimony of an accomplice? Write brief note on Approvers and accomplices. 'The Law contained in section 133 of the Indian Evidence Act, 1872 is not a good law and hence the practice is otherwise.' Examine the statement.