Introduction
One word, quietly dropped from a 151-year-old sentence, may have just rewritten how India prosecutes conspiracies, gang crime, and corruption cases built on an insider's testimony. Section 138 of the Bharatiya Sakshya Adhiniyam looks, at a glance, like the same rule Section 133 of the old Evidence Act always stated. It is not. The missing word is "un" — and its absence is the subject of an active, sharp-edged debate among Indian legal commentators about whether Parliament meant to overturn a century of settled criminal law, or simply codified what courts were already doing in practice.
Section 138 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) sits second-from-last in Chapter IX ("Of Witnesses") — immediately before Section 139, discussed in the previous article of this run. This piece sets out the exact wording change, the doctrinal history it disturbs, the two ways a trial can now play out depending on which regime governs it, and why critics warn this could make prosecutions built on approver evidence significantly harder to sustain.
138. Accomplice.
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.
Section 138 BSA and Section 133 IEA: A Change That Looks Like a Non-Change
Section 133 of the Indian Evidence Act, 1872 read: "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 message was permissive — a court was legally free to convict on the word of an accomplice alone, with no corroboration at all, if it was satisfied that testimony was trustworthy.
Section 138 keeps the first half of the sentence untouched — an accomplice remains a competent witness — but rewrites the second half. Where the old provision protected an uncorroborated conviction from being called illegal, the new one speaks only of a conviction resting on corroborated testimony. Read literally, the section that used to say "corroboration is not required" now says nothing at all about an uncorroborated conviction being lawful — and several commentators argue that silence, combined with the word swap, functions as a repeal of the old permissive rule by omission.
| Aspect | Section 133, Indian Evidence Act, 1872 | Section 138, BSA, 2023 |
|---|---|---|
| Operative phrase | "not illegal merely because it proceeds upon the uncorroborated testimony" | "not illegal if it proceeds upon the corroborated testimony" |
| Effect on uncorroborated convictions | Expressly protected as lawful | Not addressed — arguably left unprotected |
| Corroboration's legal status | A rule of prudence courts apply, not a rule of law | Disputed — critics argue it now reads as a rule of law |
Who Actually Counts as an "Accomplice"?
Neither the 1872 Act nor the BSA defines the word "accomplice" — the term has always been left to case law. The Supreme Court in R.K. Dalmia v. Delhi Administration described an accomplice as a particeps criminis — literally, a sharer in the crime — someone who actively participated in the offence for which the accused is being tried. That participation does not have to mean physically committing the act: courts have long treated a person who knowingly receives stolen property from a theft as an accomplice of the thieves, even without taking part in the theft itself, because the knowledge and voluntary cooperation are what matter, not the specific role played.
In practice, most accomplice testimony in Indian courtrooms comes from an approver — a participant in the crime who has been granted a pardon under the tender-of-pardon procedure (Section 343 of the Bharatiya Nagarik Suraksha Sanhita, 2023, the BNSS provision that replaced Section 306 of the old Code of Criminal Procedure) in exchange for making a full and truthful disclosure. An approver is, by definition, exactly the kind of witness Section 138 is written for: legally competent to testify against former co-accused, but carrying an obvious personal interest in shifting blame that makes the corroboration question anything but academic.
Why the Old Rule Needed a Second Provision to Make Sense
Section 133 IEA never operated alone. It sat beside Illustration (b) to Section 114 of the same Act, which told courts they may presume that an accomplice is unworthy of credit unless corroborated in material particulars. Two provisions in the same statute were pulling in opposite directions — one saying corroboration is not required, the other inviting a presumption that it is needed to trust the witness at all.
The Supreme Court resolved this tension in Rameshwar v. State of Rajasthan, AIR 1952 SC 54, by treating both rules as true at once but operating on different levels. As a matter of law, Section 133 meant a conviction on uncorroborated accomplice testimony was not illegal. As a matter of prudence, a trial judge should almost always look for corroboration before relying on that testimony, and should record in the judgment why corroboration was found unnecessary in the rare case where its absence was overlooked. This "law versus prudence" compromise governed accomplice evidence in India for over seventy years.
The Argument That BSA 138 Collapses That Compromise
Legal commentary since the BSA took effect — including a pointed critique published on LiveLaw arguing Section 138 is "the misconceived product of judicial misinterpretation" — contends that Parliament's drafters took the judge-made rule of prudence from Rameshwar and mistakenly wrote it into the statute as a rule of law, when the two provisions were never meant to be merged that way. On this reading, treating Illustration (b) to Section 114 as if it overrode Section 133's plain permission was, in the critique's own words, always a category error — "one was destructive of the other," and courts should never have read them as a single combined test. By adopting the judicially-blended standard instead of the original statutory one, the argument goes, Section 138 has quietly turned optional caution into a mandatory precondition.
The practical stakes are highest in exactly the cases where accomplice evidence matters most: organised crime, terrorism conspiracies, and large-scale corruption, where an approver's insider account is often the only witness testimony available and corroborating physical evidence may be difficult or impossible to obtain. Critics warn the changed wording could become, in one commentator's description, a "boon for all conspirators" by making convictions harder to sustain exactly where accomplice testimony is most necessary.
Worked Example One: The Old Regime (Section 133 IEA)
An approver in a conspiracy case gives a detailed, internally consistent account of how a bid-rigging scheme operated, naming the other participants and describing meetings the prosecution cannot otherwise prove happened. No independent witness, document, or recording confirms the account. Under Section 133, a trial court satisfied that the approver's testimony is wholly reliable — applying the same quality test discussed in the previous article on Section 139 — can lawfully convict without more, provided the judgment shows the court considered the Rameshwar caution and explained why corroboration was safely dispensed with.
Worked Example Two: The New Regime (Section 138 BSA)
The identical facts, prosecuted after Section 138 takes effect: the same approver, the same internally consistent account, still no independent corroboration. If the critics' reading is correct, the trial court no longer has the discretion it had under Section 133 — the statute's own wording now only shields a conviction that "proceeds upon the corroborated testimony," leaving an uncorroborated conviction without the textual protection it previously had. On this view, the prosecution must locate at least some independent confirmation — a recovered document, a forensic link, a second witness on a material particular — before the approver's account alone can sustain a conviction, however credible that account may be.
Practical Implications for Prosecutors and Defence Counsel
Until an appellate court settles the interpretive question, the safer course for any prosecution built substantially on approver or accomplice testimony is to treat corroboration as mandatory in practice, not merely prudent. That means actively building an independent evidentiary record — recovery memos, call detail records, forensic reports, financial trails, or a second witness on the material particulars of the crime — well before trial, rather than relying on the accomplice's account to carry the case alone. Defence counsel, conversely, have a strong new textual argument to challenge any conviction that rests purely on an accomplice's word, by pointing directly to the deliberate absence of the word "uncorroborated" from the 2023 text.
Key Takeaways
- Section 138 BSA is not a verbatim carry-over of Section 133 IEA — it replaces "uncorroborated" with "corroborated" and drops "merely because," a wording change with real doctrinal consequences.
- Under the old law, corroboration of accomplice testimony was a judge-made rule of prudence (Rameshwar v. State of Rajasthan, AIR 1952 SC 54), not a rule of law — a conviction on uncorroborated testimony was still legal.
- Critics argue the new wording elevates that rule of prudence into a rule of law, meaning an uncorroborated accomplice conviction may no longer be textually protected.
- This question remains unsettled by binding appellate precedent as of this writing — prosecutors should not assume the old discretion survives.
- The practical response for any case resting on accomplice evidence is to build independent corroboration proactively, rather than relying on the witness's credibility alone.
Conclusion
Section 138 is a reminder that legislative continuity cannot be assumed just because a provision's structure looks familiar — the exact words matter, and here a single substitution may have shifted accomplice evidence from a question of judicial confidence to a question of statutory compliance. Whichever reading eventually prevails, the safer practice today is to treat corroboration as a requirement, not an option. That same theme — how much latitude a court actually has versus how much the text appears to give it — carries forward into the next article in this run, on a witness's right to refuse to answer a question that might incriminate them, addressed in Section 137.