New Evidence Law's Accomplice Provision May Cripple Conspiracy Prosecutions, Experts Warn

New Delhi – The newly enacted Bharatiya Sakshya Adiniyam, 2023 (BSA), which replaced the colonial-era Indian Evidence Act, 1872, on July 1, 2024, contains a critical change that legal experts fear could become a "boon for all conspirators." Section 138 of the BSA, which deals with the testimony of an accomplice, now codifies a requirement for corroboration, a move that critics argue is the legislative culmination of a long-standing judicial misinterpretation and will severely hamper prosecutions in complex criminal conspiracy cases.

The author of a scathing critique, a former Judge of the High Court of Kerala, argues that this statutory shift overturns a century-old principle and will make securing convictions in cases built on accomplice evidence—often the only direct evidence available—a near impossibility. This change, the analysis suggests, could embolden perpetrators of organized crime and terrorism, leading to a rise in unmerited acquittals.

The Historical Conflict: A Substantive Law vs. a Rule of Prudence

Under the erstwhile Indian Evidence Act, 1872, the law on accomplice testimony was governed by two seemingly contradictory provisions. Section 133 was a clear, substantive provision stating: "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."

However, Illustration (b) to a different provision, Section 114, introduced a note of caution: "The Court may presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars."

According to the analysis, Indian courts, over decades, made a critical error by reading these two provisions together. This conflation led to the development of a "rule of prudence so universally followed as to amount almost to a rule of law," as noted by the Privy Council in Buboni Sahu v. The King . This judicial practice, heavily influenced by English common law principles, effectively sidelined the unambiguous legislative command of Section 133. The argument is that Section 133, a substantive law, was rendered a "dead letter" by an illustration attached to an unrelated section.

"It was impermissible to read together Section 133 and Illustration (b) to Section 114 of the Evidence Act since one was destructive of the other," the author states, highlighting the fundamental contradiction created by judicial interpretation.

This long-standing practice insisted on corroboration as a prerequisite for accepting accomplice evidence, despite Section 133 explicitly permitting convictions based on uncorroborated testimony.

The New Regime: Section 138 of the BSA

The framers of the new BSA, purportedly acting on a Standing Committee report that identified a "contradiction" between the old sections, have now enshrined the judicial "rule of prudence" into black-letter law. The new 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 word "uncorroborated" with "corroborated," the legislature has fundamentally altered the legal landscape. The analysis posits this change is not a clarification but a "misconceived product of judicial blunders." The result is that what was once a discretionary rule of caution has now become a statutory mandate, effectively making convictions based on uncorroborated accomplice testimony illegal.

The Practical Implications for Conspiracy Cases

Criminal conspiracies, by their very nature, are "hatched in secrecy and executed in darkness." As the Supreme Court has repeatedly acknowledged, direct evidence is exceedingly rare. In such scenarios, the prosecution often relies on the testimony of an "accomplice" or an "approver" (an accomplice granted a pardon under Section 306 Cr.P.C.) to unravel the plot and implicate the masterminds.

The new law presents a daunting challenge. The very reason an accomplice's testimony is sought is due to a "total dearth of other evidence." To then statutorily demand corroboration of that testimony in material particulars is, as Justice K.M. Joseph observed in Somasundaram v. State (2020), akin to "asking for the impossible, except perhaps concocted evidence."

The author warns of dire consequences: 1. Rise in Acquittals: Notorious conspirators in cases involving terrorism, organized crime, and corruption will likely go unpunished as prosecutors struggle to meet the high bar of corroboration. 2. Manufacturing Evidence: The rigid requirement may incentivize dishonest practices, where investigators might be pressured to manufacture "tainted evidence by way of fake corroboration" to secure convictions, ultimately leading to acquittals on appeal and undermining the justice system. 3. Undermining the Judiciary's Role: The provision removes judicial discretion to assess the credibility of a witness on a case-by-case basis.

An Alternative Approach: Treating Accomplices Like Any Other Witness

A more logical and effective approach, the analysis suggests, would be to apply the same principles of evidence evaluation to an accomplice as to any other witness. The Supreme Court's classification of witnesses in Vadivelu Thevar v. State of Madras provides a robust framework:

1. Wholly Reliable: No corroboration needed.
2. Wholly Unreliable: Testimony should be rejected outright.
3. Partly Reliable, Partly Unreliable: Requires corroboration as a matter of prudence.

If an accomplice's testimony is found to be "wholly reliable" after rigorous cross-examination and judicial scrutiny, why should the law demand further corroboration, thereby contradicting the very purpose of their evidence?

"If the first test is satisfied and it is found that the accomplice is a 'reliable witness', then why look for corroboration at all thereby doing violence to Section 133 of the Evidence Act?" the author questions.

This approach would harmonize the law, empower judges to exercise their discretion based on the facts, and prevent the collapse of prosecutions in critical cases.

Conclusion: A Legislative Misstep with Grave Consequences

The enactment of Section 138 of the BSA is being viewed not as a progressive reform but as a significant regression that prioritizes a flawed judicial practice over sound legislative principle. By cementing the need for corroboration, the new law may have inadvertently provided a powerful shield to the very criminals it is meant to prosecute.

Legal professionals are now faced with the challenge of navigating a provision that could prove to be a "nightmare for all victims" of organized crime. As the nation grapples with complex security threats, this change to a cornerstone of evidence law may prove to be a critical, and costly, misstep.