The Accomplice in Criminal Investigations: Evidence and Legal Considerations

In any criminal trial, the most valuable witness is often the one who was inside the crime itself. An accomplice – someone who actively participated in the offence – can provide investigators and courts with information no outsider ever could. But that same involvement raises an immediate question: can you trust a criminal to tell the truth? This tension between evidential value and inherent unreliability sits at the very heart of how Indian law treats accomplice testimony, and it has recently been reset in a significant way by the Bharatiya Sakshya Adhiniyam, 2023 (BSA).

Who is an accomplice? 🔗

The term “accomplice” is not formally defined anywhere in the Indian Evidence Act, 1872 (IEA) or the BSA that replaced it. Courts have therefore relied on its ordinary meaning over time. An accomplice is understood as a guilty associate – someone who participated in the commission of a crime, admitted a conscious hand in it, or is otherwise connected with it. The Supreme Court in R.K. Dalmia v. Delhi Administration described an accomplice as a person who actively participates in the criminal act for which the accused is being tried, captured in the Latin term particeps criminis – a sharer in the crime.

Importantly, direct involvement is not always required. Courts have held that even someone who receives stolen property can be considered an accomplice of the thieves who stole it. The test is whether the person had knowledge of, and voluntarily participated in, the criminal enterprise.

Categories of participation 🔗

Indian law recognises different degrees of involvement that bear on whether someone qualifies as an accomplice. The principal offender of the first degree is the person who actually commits the crime; there can be multiple such persons acting together. The principal offender of the second degree is someone present at the scene who aids or abets the commission. Beyond these, persons who assist before or after the fact – procuring materials, harbouring the accused, or receiving proceeds – may also be treated as accomplices depending on the circumstances and the offence charged.

Accomplice, co-accused, and approver: key distinctions 🔗

Three terms are frequently confused in this area of law, and keeping them distinct matters enormously for how evidence is assessed at trial.

A co-accused is a person charged and tried alongside the primary accused for the same offence. If two persons rob a bank together, both are co-accused. A co-accused does not testify for the prosecution while the trial is ongoing against them – their statements may carry weight under Section 30 of the IEA, but this is different from witness testimony.

An accomplice, in the evidentiary sense, is a participant in crime who is no longer co-accused at trial – either because they have been separated from the case or because they have been granted a pardon to testify. The accomplice can be examined on oath as a prosecution witness.

An approver is an accomplice who has been granted pardon in exchange for making a full and truthful disclosure. Once pardon is granted, the approver ceases to be an accused and becomes a prosecution witness – what was historically called “turning State’s evidence.” A clean logical summary flows from this: all approvers are accomplices, but not all accomplices are approvers; and all accomplices are co-accused, but not all co-accused become accomplices.

The legal framework for accomplice testimony 🔗

Under the Indian Evidence Act, 1872 🔗

Section 133 of the IEA stated that an accomplice is a competent witness against an accused person, and that a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. Read literally, a judge could convict someone purely on what the accomplice said, with no supporting evidence at all. However, this sat alongside Illustration (b) to Section 114, which permitted courts to presume that an accomplice is unworthy of credit unless corroborated in material particulars.

Courts resolved this apparent tension through what became a settled rule of prudence: while it is not technically illegal to convict on uncorroborated accomplice evidence, it is unsafe to do so. The Supreme Court in Ravinder Singh v. State of Haryana (1975) captured this position clearly, noting that as a rule of prudence, courts look for corroboration before acting on accomplice testimony. And in State of Rajasthan v. Bal Veera (2014), the Court reiterated that an accomplice will be presumed unworthy of credit unless their evidence is corroborated by other material evidence.

The shift under the Bharatiya Sakshya Adhiniyam, 2023 🔗

The BSA, which came into force on 1 July 2024, made a single but consequential word change. Section 138 BSA replaced the word “uncorroborated” in the old Section 133 with “corroborated,” so that the provision now reads: an accomplice is a competent witness, and a conviction is not illegal if it proceeds upon the corroborated testimony of an accomplice. What was once a discretionary rule of judicial prudence has become a statutory requirement. Corroboration is now a rule of law, not just a rule of practice.

Section 119 Illustration (b) of the BSA mirrors the old Illustration (b) to Section 114, reinforcing that accomplice testimony should be viewed with suspicion unless supported by other evidence. Together, these two provisions now operate in the same direction rather than in tension.

This change has divided legal opinion. Supporters argue it promotes a more reliable and just system by ensuring convictions rest on verifiable evidence. Critics – including a former judge of the Kerala High Court – contend that it will make prosecutions in conspiracy and organised crime cases practically impossible, since in such cases accomplice testimony is often the only direct evidence available, and manufacturing fake corroborating evidence could become an easier path than securing genuine convictions.

What counts as corroboration? 🔗

Corroboration means independent testimony or evidence – material that confirms the accomplice’s account and connects the accused to the offence, coming from a source other than the accomplice themselves. Courts cannot accept the testimony of one accomplice to corroborate another; the corroboration must come from an entirely independent quarter.

The nature and extent of corroboration required is not fixed – it varies from case to case. Courts have held that not every single statement of the accomplice needs to be corroborated. What the law requires is some independent evidence, whether direct or circumstantial, that links the accused to the crime independently of the accomplice. In Haroon Haji Abdulla v. State of Maharashtra (1968), the Supreme Court noted that courts must look for independent evidence that confirms the crime and connects the accused to it, however small the corroboration may be. Financial records, forensic evidence, electronic data, and the testimony of independent witnesses have all served this function in practice.

The approver: procedure and safeguards 🔗

When an accomplice is to become an approver, specific procedural steps must be followed under Sections 343-345 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which replaced the corresponding Sections 306-308 of the CrPC. The process works as follows: the co-accused offers to make a full and truthful disclosure; the Chief Judicial Magistrate or a Magistrate of the First Class has discretion to grant a conditional pardon; once pardon is granted, the approver is bound to make complete disclosure and testify honestly; failure to comply can result in the pardon being revoked and the approver being prosecuted for the original offence as well as perjury, subject to the High Court’s approval.

The rationale behind granting pardon is pragmatic. The prosecution uses the instrument of pardon to ensure that criminals charged with heinous crimes do not escape punishment – by using an insider’s evidence against the others. The fear of prosecution is removed so that the approver feels free to speak without self-incrimination concerns.

Constitutional protections remain relevant throughout. Article 20(3) of the Constitution of India protects every accused person against compelled self-incrimination. However, because a co-accused who accepts a pardon does so voluntarily and in their own interest, courts have held that the pardon procedure under the BNSS does not violate this protection – the disclosure is given freely, not under compulsion.

Why accomplice evidence remains inherently suspect 🔗

Even with corroboration now mandated by statute, the reasons why courts approach accomplice testimony with caution are important to understand. Three core concerns drive judicial scepticism. First, the accomplice is a criminal – their credibility as a witness starts at a lower threshold than that of an ordinary law-abiding citizen. Second, having betrayed their associates, the accomplice may have motives to fabricate or embellish – potentially implicating an innocent person or deflecting blame from others. Third, an approver in particular has a direct personal interest in securing the conviction of the accused, since their pardon is contingent on cooperation with the prosecution.

Courts have therefore developed a two-step test for evaluating approver evidence specifically: first, the court assesses whether the approver is a reliable witness at all; second, if that test is satisfied, the court looks for sufficient corroboration. As the Supreme Court held in Shanker v. State of Tamil Nadu, an approver’s testimony must pass both a reliability test and a corroboration test before it can ground a conviction.

Accomplice evidence in organised crime and conspiracy cases 🔗

The practical stakes of this area of law are sharpest in prosecutions involving organised crime, terrorism, and criminal conspiracy – precisely because these offences are planned and executed in secrecy. Direct evidence from outsiders is rare; documentary trails are carefully concealed. Accomplice testimony often provides the only direct evidence of what happened, who planned it, and who gave the orders.

This is why the BSA’s mandatory corroboration requirement has generated serious concern among practitioners. In a conspiracy case where the only insider willing to talk is the approver, finding independent corroboration may be structurally difficult. Courts will need to develop clear standards for what kind and degree of corroboration satisfies the new statutory requirement – and do so in a way that is faithful to the purpose of both Section 138 and Illustration (b) to Section 119.

Investigating agencies and procedural safeguards 🔗

For investigators, working with a potential accomplice requires careful adherence to procedural rules. Statements recorded during investigation must comply with Sections 179-183 of the BNSS (formerly Sections 161-164 CrPC) – governing how statements are taken by police and how confessions are recorded before magistrates. The right against self-incrimination under Article 20(3) must be respected throughout. Access to legal counsel must be ensured. And the statement of an accomplice who has not yet been granted pardon cannot be treated as approver evidence – the procedural transformation matters in law.

Investigators must also be careful not to coach or contaminate the accomplice’s account. Evidence that appears corroborative but has been manufactured or orchestrated by investigators will not only fail to satisfy the corroboration requirement but may also destroy the prosecution’s case entirely.

Judicial discretion and the balancing act 🔗

Despite the mandatory corroboration requirement under the BSA, courts retain significant discretion in how they evaluate the totality of evidence. While an accomplice is a competent witness under Section 138, courts exercise caution as a matter of judicial conscience – the objective is always to ensure that a conviction rests on evidence that genuinely establishes guilt beyond reasonable doubt. Accomplice testimony, even when corroborated, is one strand in the evidential fabric; it must be weighed alongside all other material placed before the court.

The Dagdu v. State of Maharashtra (1977) principle – that Section 138 and Illustration (b) to Section 119 are not in conflict but operate together, with the latter as a rule of presumption – continues to guide courts under the new law as well. The accomplice remains a competent witness; their evidence, when properly corroborated, can anchor a lawful conviction. What the BSA has done is formalise the standard of care that Indian courts had already adopted in practice.

What do you think? With the BSA now requiring corroboration as a statutory mandate rather than a judicial rule of caution, does this adequately protect the accused from unreliable testimony – or does it go too far in weakening the prosecution’s hand in complex conspiracy cases where insider evidence may be the only viable proof? And given that an approver’s freedom depends on securing a conviction, can any degree of corroboration fully neutralise the risk of motivated testimony?

References

1. https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_00049_2023-47_1719292804654&orderno=138
2. https://www.legalservicesindia.com/article/906/Accomplice-Witness-&-its-admissibility-as-Evidence.html
3. https://lawbhoomi.com/accomplice-in-evidence-act/
4. https://www.drishtijudiciary.com/to-the-point/bharatiya-sakshya-adhiniyam-&-indian-evidence-act/accomplice
5. https://criminallawstudiesnluj.wordpress.com/2024/07/23/from-untrustworthy-to-trustworthy-the-bharatiya-sakshya-adhiniyams-mandatory-corroboration-of-accomplice-evidence/
6. https://www.legalserviceindia.com/legal/article-497-evidentiary-value-of-accomplice-in-the-light-of-procedural-laws-in-india.html
7. https://www.livelaw.in/articles/accomplice-testimony-and-section-138-bharatiya-sakshya-adhiniyam-analysis-307532
8. https://thelawgist.org/accomplice-section-138-of-bsa/
9. https://www.legalbites.in/bharatiya-Sakshya-adhiniyam/accomplice-under-bharatiya-sakshya-adhiniyam-1128606
10. https://www.defactojudiciary.in/notes/accomplice-in-evidence-act