New Evidence Law's Section 138 a 'Boon for Conspirators,' Critics Warn

NEW DELHI – With the implementation of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) on July 1, 2024, a significant statutory change in India's evidence law is raising alarm among legal experts. Section 138 of the new Act, which governs the testimony of an accomplice, is being criticized as a misconceived provision that could severely undermine prosecutions in complex criminal conspiracies, including terrorism and organized crime.

The new section effectively mandates corroboration for an accomplice's testimony, a move that overturns a 150-year-old legal principle and, according to a scathing analysis by a former High Court judge, could become a "boon for all conspirators" and a "nightmare for all victims." This legislative shift codifies a long-standing judicial practice that many argue was itself a flawed interpretation of the preceding law, the Indian Evidence Act, 1872.

The Old Conundrum: A Judicial Paradox

Under the repealed Evidence Act, the law on accomplice testimony was governed by two seemingly contradictory provisions: Section 133 and Illustration (b) to Section 114.

• Section 133 was a clear substantive provision: "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."
• Illustration (b) to Section 114 provided a discretionary presumption: "The Court may presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars."

For decades, the Indian judiciary grappled with these two clauses. While Section 133 unequivocally permitted convictions based on uncorroborated accomplice evidence, courts, influenced by English common law principles exemplified in Rex v. Baskarville (1916), adopted a "rule of prudence." This rule cautioned against relying on an accomplice's word without independent corroboration, effectively elevating the discretionary Illustration (b) to a near-mandatory requirement.

As one legal analysis points out, this was a judicial misstep: "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 argument is that Illustration (b) was never intended to override the substantive law in Section 133 but was instead a guideline for courts in specific cases, not a blanket rule.

The result was a judicial paradox where courts would ritually acknowledge the legality of uncorroborated testimony under Section 133, only to immediately insist on corroboration as a rule of prudence, thereby rendering the core of Section 133 a "dead letter."

The New Reality: Section 138 BSA and Mandatory Corroboration

The framers of the BSA, seemingly aiming to resolve this long-standing conflict, have sided with the judicial practice rather than the original statutory intent. The new Section 138 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."

The subtle but powerful change—from "uncorroborated" to "corroborated"—statutorily entrenches the requirement for corroboration. While the old law stated a conviction based on uncorroborated testimony was not illegal , the new provision implies that such a conviction would be illegal.

This shift is being heavily criticized for ignoring the practical realities of prosecuting clandestine crimes. As the Supreme Court has often noted, "Conspiracies are hatched in secrecy and executed in darkness." In such cases, the testimony of an accomplice, or an "approver" (an accomplice pardoned under Section 306 CrPC), is often the only direct evidence available to the prosecution.

Justice K. M. Joseph, in Somasundaram v. State (2020), warned against this very pitfall: “To overlook the testimony of [accomplices] in a case based on circumstantial evidence... will be asking for the impossible, except perhaps concocted evidence.”

The new law, critics argue, institutionalizes this demand for the "impossible," potentially leading to a surge in unmerited acquittals.

A Flawed Solution to a Judicial Problem

The core of the criticism is that Section 138 is a legislative solution to a problem created by the judiciary itself. Instead of correcting the judicial deviation from the clear mandate of Section 133, the legislature has adopted the deviation as law.

The author of the source material argues that the correct approach was not to demand corroboration in every case but to evaluate the accomplice's testimony like any other witness. The credibility of a witness should be the primary test. He proposes applying the well-established principles from Vadivelu Thevar v. State of Madras (1957), which classifies witnesses into three categories:

1. Wholly reliable: No corroboration is needed.
2. Wholly unreliable: Should be rejected even with corroboration.
3. Partly reliable, partly unreliable: Requires corroboration.

Under this framework, if an accomplice is found to be "wholly reliable" after rigorous cross-examination and judicial scrutiny, their testimony should be sufficient for a conviction, aligning with the original spirit of Section 133. The demand for corroboration should only arise when the witness's testimony is credible but not entirely unimpeachable.

"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 critique asks.

The Chilling Effect on Justice for Organized Crime

The practical implications of Section 138 are profound. Conspiracy is the backbone of organized crime, terrorism, and large-scale corruption. These operations are designed to leave no trace, and breaking them often depends on securing the cooperation of an insider. By making corroboration a statutory necessity, the law creates an almost insurmountable hurdle for prosecutors.

The fear is twofold:

1. Guilty Parties Walk Free: Notorious conspirators may go unpunished due to the "total dearth of other evidence" available for corroboration.
2. Rise of Fabricated Evidence: To meet the new statutory demand, there is a risk that investigators may be pressured to manufacture "tainted evidence by way of fake corroboration," which could lead to wrongful convictions or acquittals based on manipulated evidence.

The new law represents a significant departure from the principle that once evidence is deemed admissible, its weight and value are for the court to decide. By imposing a statutory requirement for corroboration, Section 138 of the BSA may have inadvertently weakened the state's ability to prosecute the very crimes that pose the greatest threat to national security and public order, turning a judicial error into a legislative blunder.