Section 133 Evidence Act vs Section 138 BSA — Accomplice Evidence (with IEA 114 Illustration (b) and BSA 119)

In India, Section 138 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) replaced Section 133 of the Indian Evidence Act, 1872 (IEA) on 1 July 2024. An accomplice remains a competent witness, but the text now says a conviction is not illegal if it rests on "corroborated" accomplice testimony, where the IEA said "uncorroborated".

At a glance

No punishment, cognizability or bail classification attaches: these are rules of evidence, and the First Schedule to the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) classifies offences only.

What changed

• Identical — competency (Section 138, first limb): "An accomplice shall be a competent witness against an accused person".
• Modified — effect on conviction (Section 138, second limb): "a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice" (IEA 133) becomes "a conviction is not illegal if it proceeds upon the corroborated testimony of an accomplice" (BSA 138). Two changes: "merely because" becomes "if", and "uncorroborated" becomes "corroborated".
• Identical — Illustration (b): "an accomplice is unworthy of credit, unless he is corroborated in material particulars". Only the lead-in changes, from "The Court may presume ––" with each illustration opening "that", to "The Court may presume that—".
• Minor edit — the qualifying examples: the IEA's unnumbered paragraph beginning "But the Court shall also have regard to such facts as the following" becomes Section 119(2), opening "The Court shall also have regard". The two examples "as to illustration (b)" become clauses (ii) and (iii), in the same words.
• Not changed — no definition: neither Act defines "accomplice".

Statutory text (relevant extract)

Extract, Section 133 IEA (repealed from 1 July 2024):

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.

Extract, Section 138 BSA:

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.

Extract, Section 119(1) BSA, Illustration (b), and Section 119(2)(iii):

The Court may presume that— ... (b) an accomplice is unworthy of credit, unless he is corroborated in material particulars;

(iii) as to Illustration (b)—a crime is committed by several persons. A, B and C, three of the criminals, are captured on the spot and kept apart from each other. Each gives an account of the crime implicating D, and the accounts corroborate each other in such a manner as to render previous concert highly improbable;

How it works — the steps

1. Who is in the witness box — Section 138 makes the accomplice a competent witness. Where the accomplice is an approver, the route is Section 343 BNSS (Section 306 CrPC): the Chief Judicial Magistrate or a Magistrate of the first class may tender a pardon on condition of "a full and true disclosure", for offences triable exclusively by the Court of Session or a Special Judge, or punishable with imprisonment which may extend to seven years or with a more severe sentence (Section 343(2)). The approver must be examined as a witness (Section 343(4)(a)).
2. The caution — Illustration (b) to Section 119(1) lets the court presume the accomplice unworthy of credit unless corroborated in material particulars. It is a "may presume" provision, so the court decides whether to apply it.
3. When the caution may give way — Section 119(2) directs the court to consider facts such as those in clauses (ii) and (iii). Clause (ii): a person of the highest character, tried for a death caused by negligence in arranging machinery, where a co-worker of equally good character describes precisely what was done and admits the common carelessness. Clause (iii): three captured offenders, kept apart, each give accounts implicating D that corroborate each other so as to make previous concert highly improbable.
4. The effect on conviction — Section 138's second limb states when a conviction on accomplice testimony "is not illegal". Its new wording is discussed below.
5. Corroborating the accomplice — the Illustration to Section 159 BSA (Section 156 IEA) shows that an accomplice who describes incidents on the way to and from a robbery may be questioned about them, and independent evidence of those incidents may be given to corroborate his account of the robbery itself.
6. Distinguish a co-accused's confession — a proved confession by one of several persons tried jointly for the same offence is governed by Section 24 BSA (Section 30 IEA), not Section 138.

The new wording — two readings

No Supreme Court judgment construing Section 138 BSA was read for this page, so what follows is labelled as readings of the text, not as settled law.

• Reading 1 — corroboration now required. Section 133 IEA expressly protected a conviction on uncorroborated accomplice testimony. Section 138 BSA protects only a conviction on corroborated testimony. On this reading, the deliberate omission of the old protection implies that a conviction resting solely on uncorroborated accomplice testimony is no longer saved by the section.
• Reading 2 — the section is silent on uncorroborated testimony. Section 138 says a conviction on corroborated testimony "is not illegal"; it does not say that a conviction on uncorroborated testimony is illegal. On this reading, the question remains governed by Illustration (b) to Section 119, which Parliament re-enacted word for word and which still says the court "may" presume, and by Section 139 BSA, under which no particular number of witnesses is required to prove any fact.

What the text does settle. The first limb (competency) is unchanged, and Illustration (b) and its qualifying examples are unchanged. The Supreme Court's statements on what counts as corroboration (Rameshwar), on testing reliability first (Sarwan Singh) and on "may" not meaning "must" (K. Hashim) were made on words that Section 119 repeats. On a reading of the text, they remain relevant to Section 119 whichever reading of Section 138 prevails.

What this means in practice

For the prosecution

• On either reading, corroborating the accomplice in material particulars that connect the accused to the crime avoids the question. Gather independent evidence — documents, recoveries, call records, neutral witnesses — before relying on an approver.
• Under Section 343(3) BNSS the Magistrate who tenders a pardon must record the reasons and whether the tender was accepted, and must furnish the accused, on application, with a copy of that record free of cost.

For the defence advocate

• Test reliability first: Sarwan Singh requires the court to ask whether the approver is a reliable witness before looking for corroboration.
• Check whether the "corroboration" connects the accused with the crime, and whether it comes from an independent source rather than another accomplice (Rameshwar).
• Where the prosecution case rests on uncorroborated accomplice testimony in a proceeding governed by the BSA, the change in Section 138's wording is an argument open to the defence, on Reading 1 above.

For the trial judge's reasoning (as the judgments describe it)

• Rameshwar held that the rule of caution must be present to the judge's mind, and that where the judge convicts without corroboration the judgment should show why that is safe.

Judgments that still matter

Rameshwar v. The State of Rajasthan, [1952] 1 S.C.R. 377 — 20 December 1951. Bose J. (Fazl Ali J. agreeing) observed that the Evidence Act nowhere requires corroboration, reading Section 114 Illustration (b) with Section 133. The rule is not that corroboration is essential to a conviction, but that the necessity of corroboration, "as a matter of prudence", must be present to the judge's mind. The Court set out the nature of corroboration: it need not independently confirm every material circumstance; it must reasonably connect the accused with the crime; it must come from independent sources, so one accomplice ordinarily cannot corroborate another; and it may be circumstantial. The case concerned a child complainant in a rape case (the Court noted she is not an accomplice); the appeal was dismissed. The report shows no paragraph numbers.

Sarwan Singh v. The State of Punjab, [1957] 1 S.C.R. 953 — 10 April 1957. For a three-Judge Bench, Gajendragadkar J. held that "the appreciation of an approver's evidence has to satisfy a double test": the approver must be shown to be a reliable witness, and only then must his evidence receive sufficient corroboration. If the approver is unreliable, "there is an end of the matter". Corroboration in "minor particulars or incidental details" is not enough. Finding the approver's account discrepant, the Court allowed the appeals. The report shows no paragraph numbers.

K. Hashim v. State of Tamil Nadu, [2004] Supp. 6 S.C.R. 1 (2004 INSC 650) — 17 November 2004. Arijit Pasayat J., for a Bench with C.K. Thakker J., held that Section 133 must be read with Illustration (b) to Section 114: the statute permits conviction on uncorroborated accomplice testimony, while the Illustration "strikes a note of warning". Illustration (b) says the court "may" presume, and "may" is not must: the court is not obliged to hold the accomplice unworthy of credit, and it depends on the court's view of the evidence. The appeals were dismissed. The body shows no paragraph numbers. The Illustration construed is repeated in Section 119 BSA; Section 133's second limb is not repeated in the same words in Section 138.

Gopi Chand @ Pappu v. State (NCT of Delhi), 2026 INSC 598 — 29 May 2026. Manoj Misra J., for a Bench with P.S. Narasimha J., reviewed Rameshwar, K. Hashim and later cases (paras 24-28) and summarised that corroboration of an approver "is not mandated by law but is a rule of prudence", so a court may convict on uncorroborated approver testimony if it is satisfied, and records reasons, that it is safe to do so (para 29(a)). Corroboration, when required, must come from independent sources and need not confirm every circumstance (para 29(c)-(d)). The Court found the approver's testimony not wholly exculpatory and corroborated (paras 38-39), upheld the conviction (para 56), and modified the sentence to the period already undergone (paras 61-62). The case arose from 1984 offences and applied Section 133 IEA; it does not refer to Section 138 BSA.

Which law applies to your case

Section 170(2) BSA provides that any application, trial, inquiry, investigation, proceeding or appeal pending immediately before 1 July 2024 "shall be dealt with under the provisions of the Indian Evidence Act, 1872". On a reading of that provision, a trial pending on that date is governed by Section 133 IEA and Illustration (b) to Section 114, and a proceeding begun afterwards by Sections 138 and 119 BSA, which is where the wording change can matter. See which law applies to an offence before 1 July 2024.

Frequently asked questions

What is the BSA equivalent of Section 133 of the Evidence Act? Section 138 of the Bharatiya Sakshya Adhiniyam, 2023 replaces Section 133 of the Indian Evidence Act, 1872. The first limb is unchanged: an accomplice shall be a competent witness against an accused person. The second limb is reworded, and Illustration (b) to Section 114 IEA is now Illustration (b) to Section 119(1) BSA.

What exactly changed in the wording on accomplice evidence? Section 133 IEA said a conviction "is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice". Section 138 BSA says a conviction "is not illegal if it proceeds upon the corroborated testimony of an accomplice". The words "merely because" are dropped and "uncorroborated" becomes "corroborated".

Can a court convict on the uncorroborated evidence of an accomplice under the BSA? Section 138 BSA no longer says so in terms, and no Supreme Court judgment construing the new wording was read for this page. One reading treats the change as implying that corroboration is now required; another reads Section 138 as silent on uncorroborated testimony, leaving the matter to the unchanged Illustration (b) to Section 119 BSA, which says the court 'may' presume. Under Section 133 IEA the Supreme Court held that such a conviction is not illegal, corroboration being a rule of prudence (Gopi Chand, 2026 INSC 598, para 29).

Who is an accomplice? Neither the Indian Evidence Act nor the BSA defines the word. Section 343(1) BNSS, which allows a tender of pardon, describes the person as one supposed to have been directly or indirectly concerned in or privy to an offence; a person who accepts the pardon must be examined as a witness under Section 343(4)(a); the judgments cited on this page call such a person an approver.

What kind of corroboration is needed for accomplice evidence? In Rameshwar v. State of Rajasthan, [1952] 1 S.C.R. 377, the Supreme Court said corroboration need not confirm every detail, must connect the accused with the crime in some material particular, must come from independent sources (ordinarily not another accomplice), and may be circumstantial. Gopi Chand (2026 INSC 598, paras 28-29) restated these points.

Is the approver's evidence tested for reliability before corroboration? Yes. In Sarwan Singh v. State of Punjab, [1957] 1 S.C.R. 953, the Supreme Court held that an approver's evidence must satisfy a double test: first, that he is a reliable witness, and only then, that his evidence receives sufficient corroboration. If he is found unreliable, the question of corroboration does not arise.

Which law applies to accomplice evidence in a trial that began before 1 July 2024? Section 170(2) BSA keeps the Indian Evidence Act, 1872 for any trial, inquiry, proceeding or appeal pending immediately before 1 July 2024. On a reading of that provision, a trial pending on that date is governed by Section 133 IEA and Illustration (b) to Section 114; a proceeding begun afterwards by Sections 138 and 119 BSA.

Related

• Hostile witness and accomplice evidence under the BSA
• Court presumptions: IEA 114 vs BSA 119
• Hostile witness: IEA 145, 154, 155 vs BSA
• Admissions and confessions: IEA 17-31 vs BSA
• Facts especially within knowledge: IEA 106 vs BSA 109
• Offence before 1 July 2024 — which law applies
• Evidence Act to BSA master table
• Sections 306–308 CrPC vs Sections 343–345 BNSS — Tender of Pardon to Accomplice (Approver)

Sources

• Bharatiya Sakshya Adhiniyam, 2023 (Gazette text): Sections 24, 119, 138, 139, 159 and 170; commencement footnote to Section 1 (S.O. 849(E)).
• Indian Evidence Act, 1872 (India Code text): Sections 30, 114, 133 and 156.
• Bharatiya Nagarik Suraksha Sanhita, 2023 (Gazette text): Section 343. Code of Criminal Procedure, 1973: Section 306.
• Judgments read in full text: Rameshwar v. State of Rajasthan (1952_1_377_390_EN.md); Sarwan Singh v. State of Punjab (1957_1_953_970_EN.md); K. Hashim v. State of Tamil Nadu (S_2004_6_1_21_EN.md); Gopi Chand @ Pappu v. State (NCT of Delhi) (Diary_35501-2013_Judgment.md).

This page explains the statutory text and the judgments cited as they stand. It is not legal advice; for a specific case, consult an advocate.