Accomplice and Approver's Testimony (s. 138) — BSA (Law of Evidence) Notes

Accomplice and Approver’s Testimony (s. 138)

To catch a gang, the prosecution often turns one of the gang against the rest — offering a criminal a pardon in exchange for the whole truth. But a man who was himself in the crime, now testifying to save his own skin, has every reason to lie and to spread the blame. So the law faces a dilemma: his evidence is too useful to ban, yet too dangerous to trust blindly. Section 138 resolves it — the accomplice is a competent witness, but his word is acted on only with corroboration, as a rule of prudence.

A. Who is an accomplice, and who is an approver?

An accomplice is a person who took part in the commission of the crime — a particeps criminis [a participant in the crime] — whether as a principal or an abettor.
An approver is an accomplice who has been granted a pardon (under s. 343 of the Bharatiya Nagarik Suraksha Sanhita, 2023, the old CrPC s. 306) on condition that he makes a full and true disclosure of the whole crime, and then gives evidence against his former companions.

B. The rule — competent, and conviction not illegal for want of corroboration (s. 138)

Section 138 [IEA s. 133] states two things:

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.

So, as a matter of strict law, a court may convict on an accomplice’s word alone. Read on its own, s. 138 seems to trust the accomplice fully.

C. The catch — s. 138 read with s. 119, Illustration (b)

Section 138 does not stand alone. Section 119 (Unit 4) says the court may presume that “an accomplice is unworthy of credit, unless he is corroborated in material particulars” (Illustration (b)). Put the two sections together and you get the settled position.

🔑 THE COMBINED RULE — law permits, prudence requires. A conviction on an uncorroborated accomplice is not illegal (s. 138), but the court presumes him unworthy of credit unless corroborated (s. 119, Ill. (b)). So corroboration in material particulars, connecting the accused with the crime, is a rule of prudence that has hardened into a rule of practice.

D. What corroboration is needed

Following R vs Baskerville (1916) and Indian cases:

the corroboration must be independent evidence (not the accomplice corroborating himself);
it must connect the accused with the crime, not merely confirm that a crime occurred; and
there must be corroboration implicating each accused in some material particular — though it need not cover every detail.

One accomplice cannot corroborate another — two tainted sources do not make one clean one.

🧩 WORKED EXAMPLE — the approver’s evidence

Facts. Three men rob a bank. One, X, is granted a pardon and, as an approver, testifies that he and the other two, Y and Z, committed the robbery. There is independent evidence — CCTV placing Y at the scene and stolen notes recovered from Z. Can Y and Z be convicted?

Rule. An accomplice is a competent witness and a conviction on his uncorroborated evidence is not illegal (s. 138), but prudence (s. 119, Ill. (b)) requires independent corroboration connecting each accused with the crime.

Apply. X’s evidence is admissible. It is corroborated in material particulars implicating each accused — the CCTV connects Y, the recovered notes connect Z. This independent corroboration satisfies the rule of prudence.

Conclusion. Y and Z may safely be convicted, the approver’s evidence being corroborated as against each of them. Had there been no independent corroboration connecting them, a conviction, though not illegal, would be unsafe.

Note the limit. X cannot corroborate Y using Z’s evidence — one accomplice cannot corroborate another; the corroboration must come from an independent source.

Section 138, BSA 2023: “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.”

In Simple Terms: A partner in the crime is allowed to give evidence against the others, and a conviction based on his word alone is not automatically unlawful. But because such a witness has every reason to lie, the court, as a matter of prudence, looks for independent evidence backing up his story and tying each accused to the crime before acting on it.

flowchart TD
    ROOT["Accomplice / approver testifies (s. 138)"]:::root
    ROOT --> A["Competent witness against the accused"]:::leaf
    A --> B["Conviction on his UNcorroborated word<br/>= not illegal (s. 138)"]:::leaf
    B --> Q1{"But: corroborated in material<br/>particulars? (s. 119, Ill. (b))"}
    Q1 -->|"Yes — independent, implicating each accused"| SAFE["Safe to convict"]:::leaf
    Q1 -->|"No"| RISK["Lawful but UNSAFE — prudence denies conviction"]:::diamond
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    classDef leaf fill:#E6F3FF,stroke:#1E3A8A,color:#000;
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Case Laws

R vs Baskerville (1916) — laid down the classic standard: the corroboration of an accomplice must be independent evidence connecting the accused with the crime, not merely confirming that the crime was committed.
Bhiva Doulu Patil vs State of Maharashtra (1963) — the combined effect of s. 133 and s. 114, Illustration (b) IEA (now ss. 138 and 119) is that, though a conviction on an uncorroborated accomplice is not illegal, the court will not accept his evidence without corroboration in material particulars.
Sarwan Singh vs State of Punjab (1957) — the accomplice’s evidence must first pass the test of reliability and then be corroborated by independent evidence implicating the accused; one accomplice cannot corroborate another.

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