NATIONAL LAW INSTITUTE UNIVERSITY,

BHOPAL

TRIMESTER-VIII
PROJECT OF LAW OF EVIDENCE-II
ON
EVIDENTIARY VALUE OF AN APPROVERS TESTIMONY

SUBMITTED BY:

SUBMITTED TO:

HARSHA JESWANI

Prof. VIJAY KUMAR SINGH

ROLL NO: 2013BA.LL.B. 47

EVIDENTIARY VALUE OF AN APPROVERS TESTIMONY

INTRODUCTION
This research paper will deal with the evidentiary value of an approvers testimony. It shall
cover other ancillary aspects with regard to the role of the approver. The researcher will rely
on case law to elaborate on the points stated.
At the outset it is important to define the subject itself. An approver is a person involved with
a certain crime, but he, at a later stage, confesses and offers to serve as a witness for the
prosecution. For his confession and testimony he gets a reduced punishment or even a
pardon. Such an understanding between the perpetrator and the prosecutors allows for a
water-tight case against the accused and helps successful prosecution also it reduces the time
taken for investigation. As such, both parties stand to gain.
Technically, an approver is an accomplice. The accomplice is involved in stages crucial to the
crimes commission, such as planning, execution, or cover-up. In K.K. Dalmia v. Delhi
Administration1, an accomplice was defined as someone who voluntarily co-operates with,
and helps others in the commission of the crime. He is said to be a particeps criminis a
participator in the actual crime.

WHO IS AN APPROVER?
The definition of the approver has been lucidly put in the words of Sir Subramania Ayyar in
his judgement in Ramaswami Goundan v. R.2, an accomplice witness is one who is either
being jointly tried for the same offence and makes admissions which may be taken as
evidence against a co-prisoner and which make the confessing accused pro hac vice a sort of
witness, or one who has received a conditional pardon on the understanding that he is to tell
all he knows, and who may at any time be relegated to the dock if he fails in his undertaking.
1 AIR 1962 SC 1821.
2 (1948) 1 MLJ 215.

The accomplice may have known that the crime was going to happen and not taken any steps
to prevent it, or may have engaged in other activities which were designed to make the crime
easier to commit or less likely to be detected. This gives the approver a rather unique insight
on the crime, as he or she was directly involved and makes his testimony of immense
importance to the prosecutors.

FUNDAMENTAL PRINCIPLES RELATING TO APPROVER

1. There must be trial
2. Guilty of accused is not proved
3. Accused/accomplice agree to be approver, there must be agreement to be approver for
the grant of pardon provided he testifies in court about the crime.
4. The approver becomes witness, the moment pardon tendered by court ,he is
discharged from the case.3
5. If accused violate terms, there will be no question of pardon.4
6. The power to grant pardon carries with it the right to impose a condition limiting the
operation of such a pardon.
7. The grant of pardon to approver is based on principles of public policy and public
interest.5
8. Right to detain6 -, the A. P High Court interpreted the word "shall" in the said
provisions" as primarily obligatory and casting a duty on the Court to detain an
accused to whom pardon has been tendered."
9. Approver shall not be released until the decision of the case.
10. Approver can be released on bail, if approvers evidence was recorded.

3 A.J. Peiris v. State of Madras AIR 1954 SC 616

4 State v. Hiralal Girdharilal Kothari AIR 1960 SC 360
5 Karuppa Servai v.Kundaru AIR 1952 Mad 833
6 Mukesh Ramchandra Reddy, 1958 Cri.L.J. 343

WHO IS AN ACCOMPLICE UNDER INDIAN EVIDENCE ACT, 1872?

An accomplice is a person who along with another or others has taken some part-large or
small-in the commission of the crime. It is a general term and is used to designate the person
whom the police for the prosecution. If he is a person induced by the police to take part in the
crime for the purpose of collecting evidence against others, he is called a trap witness. If he
is arrested and thereafter given a pardon, he is referred to as an approver. That an accomplice,
using the term in its general sense to include trap-witnesses and approvers is a competent
witness is provided for by Section 133 of Indian Evidence Act. It says:
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.
In reference to the requirements of corroboration, the word used is may and not must,
and no decision of court can make it must .It ultimately depends upon courts view as to the
credibility of evidence tendered by an accomplice .If it is found credible and cogent, the court
can record conviction on its basis even if uncorroborated
CATEGORIES OF ACCOMPLICES
In order to be an accomplice, a person must participate in the commission of the same crime
and this he may do in various ways. Under English law, they may be categorised as follows:
PRIME ACCUSED OF 1ST DEGREE
The person primarily responsible for the crime having actually committed it
Ex: A killed B with a knife. A is the prime accused of 1st degree.
PRIME ACCUSED OF 2ND DEGREE
Persons ancillary to the crimes commission present while being committed and assist in its
commission.
Ex: When A was trying to kill B, Bs wife obstructed A. On that the companion of A i.e.
D caught hold of Bs wife, thereby cleared the way to A for murdering B.
Here the acts of D come under this category.

 ACCESSORIES BEFORE THE FACT

Abettors and conspirators who take part in the crime before the actual occurrence of crime
without being physically present at the scene of crime.
ACCESSORIES AFTER THE FACT
These accomplices who join the hands of accused after the commission of crime to screen the
evidence and harbour the criminals from arrest, punishment etc.
It must be noted that if an accessorys participation is limited to the knowledge that the crime
is to be committed, he will not be considered as an accomplice, thus removed from the ambit
of approver.
GRANT OF PARDON
Section 306-308 deals with tender of pardon to accomplice
Section 306-307 deals with tender of pardon & power to direct tender of pardon
Section 308- deals with trial of persons not complying with conditions of a tender of pardon
Section 306 of Cr.Pc 1973 deals with Tender of Pardon to Accomplice;
"(1) With a view to obtaining the evidence of any person supposed to have been directly or
indirectly concerned in or privy to an offence to which this section applies, the Chief Judicial
Magistrate or a Metropolitan Magistrate at any stage of the investigation or inquiry into, or
the trial of, the offence, and the Magistrate of the first class inquiring into or trying the
offence, at any, stage of the inquiry or trial, may tender a pardon to such person on condition
of his making a full and true disclosure of the whole of the circumstances within his
knowledge relative to the offence and to every other person concerned, whether as principal
or abettor, in the commission thereof."
In case of Bangaru Laxman v. State7,
On Approver & Purpose of grant of pardon court said power is not to judge extent of
culpability of person pardoned but to prevent failure of justice by not allowing offender to
escape from lack of evidence
7 Bangaru Laxman v. State, (2012) 1 SCC 500.

a deeming provision is a legal fiction and an admission of non-existence of fact deemed Hence, while interpreting a provision creating a legal fiction, court has to ascertain purpose
for which fiction is created.

THE RULE OF LAW & THE NEED FOR CORROBORATION

If Sections 133 and 144, Illustration (b) are read together, there might arise some doubt in the
mind of the reader and both sections might seem inconsistent with each other. Section 133
allows for an accomplice to appear as witness whereas in Section 114 it is stated that there is
a presumption that his testimony is not to be trusted unless corroborated. Such an anomaly is
resolved on developing a deeper understanding of the two sections. Section 133 merely says
what is not illegal to do. Nowhere in the section is it stated that, though it is not illegal to
convict an accused person on the uncorroborated testimony of an accomplice, a conviction
based on it is proper. The section only says that if the Court relies on the evidence of an
accomplice in a particular case, the conviction under such circumstances would be legal.
The Court is given the discretion to take into account certain facts for considering whether
the rule, that the accomplice, if not corroborated, is unworthy of credit, does or does not
apply to the case. In the Full Bench case of the King v. Nga Myo 8, it has been held that the
two illustrations in the explanation to Section 114(b) show circumstances in which the
presumption normally to be drawn is capable of being rebutted and that they are given by
way of guidance only and in order that the Court may test the facts of the particular case to
see whether anything has emerged to show that the evidence of the accomplice need not be
corroborated in material particulars. The nature of the offence and the circumstances in which
the accomplices make their statements must always be considered. An approvers evidence is
admissible without corroboration only in very exceptional cases.
Corroboration does not mean that there should be independent evidence of all the facts
which have been related by an accomplice. Obviously, if it were required that every detail of
the accomplices testimony has to be verified, his testimony would be rendered redundant. To
count as corroboration, it is not enough that a piece of evidence merely supports that the
accomplice is credible but it must go a little further and implicate the accused. The
8 A.I.R. (1938) Rang. 177

corroboration of an accomplice is of two kinds: the first is that corroborating evidence which
ensures that the approver is trustworthy; and the second which arises for conclusion to the
corroboration in material particulars not only of the commission of crime but also of
complicity of other accused persons in the crime.
The rules of corroboration of an accomplice may be stated as follows9:
1. It is not necessary that testimony of the accomplice should be corroborated in every
detail, since if this were so, the evidence of the accomplice would be unnecessary.
2. The corroboration need not be by direct evidence that the accused committed the
crime. It is sufficient if it is merely circumstantial evidence of his connection with the
crime.
3. The corroborative evidence must be one which implicates the accused.
4. The corroboration must be by some evidence other than that of another accomplice.

SOME POINTS REGARDING APPROVER

The Delhi Court in case of Bangaru Laxman v. State10 made following observations with
regard to approver1. Testimony of an approver generally requires corroboration for conviction- The
evidence of an approver being that of an accomplice is prima facie of a tainted
character, and has therefore to be scrutinised with the utmost care and accepted with
caution. As a matter of law, pure and simple, a conviction is not bad merely because it
proceeds upon the uncorroborated testimony of an accomplice (vide Section 133 of
the Indian Evidence Act). But it has now become almost a universal rule of practice
not to base a conviction on the testimony of an accomplice unless it is corroborated in
material particulars. As to the amount of corroboration which is necessary, no hard
and fast rule can be laid down. It will depend upon various factors, such as the nature
of the crime, the nature of the approvers evidence, the extent of his complicity and so
forth. But as a rule corroboration is considered necessary not only in respect of the
general story of the approver, but in respect of facts establishing the prisoners
identity and his participation in the crime.
9 Sheshanna Bhumanna Yadav v. State of Maharashtra, (1970) 2 SCC 122
10 Bangaru Laxman v. State, (2012) 1 SCC 500.

2. The danger of accepting approvers evidence without corroboration should be

pointed out to the juryIn cases tried with the aid of a jury, the evidence of an
approver should not be left to the jury without such directions and observations from
the Judge as the circumstances of the case may require, pointing out to them the
danger of accepting such evidence in the absence of corroboration. The omission to
do so is an error in summing up and is on appeal a ground for setting aside a
conviction when the Appellate Court thinks that the prisoner has been prejudiced
thereby and there has been a failure of justice.
3. If approver gives false evidence he can be tried for the offence and also for
perjuryAn approver is under the condition of his pardon bound to make a full and
true disclosure of the whole of the circumstances within his knowledge relative to the
offence and to every other person concerned, whether as principal or abettor, in the
commission thereof. If the approver fails to comply with this condition and gives false
evidence, he is liable to be prosecuted for the offence in respect of which pardon was
granted and also for perjury. He cannot, however, be tried for the former offence
except upon a certificate granted by the Public Prosecutor as laid down in Section 308
(1) of the Code. Sanction of the High Court is necessary for his prosecution for giving
false evidence. An application to the High Court for sanction to prosecute an
approver, for giving false evidence should be by motion on behalf of the State and not
by a letter of reference.
4. Approver should be kept in judicial custody until close of trialAn approver
accepting a pardon under Section 306 of CrPC. has to be detained in custody until
the termination of the trial.11 The word custody as used in Section 306(4) (b) of
Code has not been defined anywhere in the Code, but the High Court has held
recently that this custody means judicial and not Police custody. The detention of an
approver, therefore, must be in a judicial lock-up under the orders of any Court. The
practice of detaining approvers in Police custody is not correct.

CASE LAWS

11 A. L. Mehra v. State AIR 1958 Punj 72

Jnanendranath Ghose v. State of West Bengal 1959 AIR 1199

The case relates to Section 133 and 114 of the Evidence Act. The question of corroboration of
the approvers witness was settled by the Supreme Court in this verdict.
This is a case of murder where the accused was sentenced to life by the Sessions Court and
came up before the Honourable Supreme Court by way of special leave. The accused was
married to one Sibapadi but simultaneously he had an affair going on with one Lila. He
proposed that Lila and he co-habit but she turned down the proposal. Thinking Sibapadi was
a hindrance in his relationship, he decided to get rid of her. Accordingly he murdered
Sibapada Hati on the May 26, 1955. In that murder he was assisted by Jadgish Gorain, Sudhir
Gorain and the approver Sastipada Ghose.
The appellant was sentenced to imprisonment for life under s. 302 by the Sessions Judge of
Birbhum who agreed with the majority verdict of the jury that he was guilty. He appealed
against his conviction to the Calcutta High Court. That Court being of the opinion that there
was no misdirection in the Sessions Judge's charge to the jury dismissed the appeal. The two
co-accused Jagdish Gorain and Sudhir Gorain were also tried along with the appellant but
were acquitted by the jury whose verdict the Sessions Judge accepted.
The conviction of the appellant depended on the evidence of the approver and the
circumstantial evidence which corroborated him in connecting or tending or connect the
appellant with the murder of the deceased Sibapada Hati. Unless there was a misdirection or
non-direction amounting to misdirection in the charge to the jury which, in fact, had
occasioned a failure of justice the jury's verdict must prevail and it cannot be interfered with.
The High Court was of the opinion that there was no misdirection in the Sessions Judge's
charge to the jury and on this point both the High Court and the Supreme Court concurred.
Whilst explaining the position of an approver as a witness, the Sessions Court held:
"Before doing so, some established legal principles as regards the approver's evidence and the
confessions on which the prosecution has relied in the present case are required to be
explained to you. The approver is a competent witness against an accused person and
although his evidence is strictly admissible and a conviction is not illegal, merely because it
is based on approver's evidence, it is a settled rule of practice not to convict a person on such
evidence except under very rare and exceptional circumstances, and usually substantial

corroboration is required. I, therefore, warn you, gentlemen, that it is highly dangerous to

convict on approver's evidence alone. There can, no doubt be a legal conviction upon the
uncorroborated evidence of an accomplice and, as already stated, the uncorroborated
testimony of an accomplice is strictly admissible and a conviction based on it alone is not
illegal, yet you should remember, gentlemen, that experience teaches us that an accomplice
being always an infamous person, he having thrown to the wolves his associates and friends
in order to save his own skin and, though criminal, has purchased his liberty by betrayal, his
evidence must be received with very great caution and it is highly dangerous to act upon his
evidence unless it is materially corroborated. I must also tell you that this rule as to
corroboration has become a settled rule of practice of so universal an application that it has
now almost the force and reverence of law. Corroboration must be as to the crime and the
identity of each one of the accused and the corroboration required must be independent
evidence that is reliable evidence of another kind.

State of Maharastra v. Abu Salem Abdul Kayyum Ansari & Ors. 2010 10 SCC 179
Question: whether, the accused has a right to cross examine an accomplice who has been
tendered in evidence by the prosecution as approver but later on pardon tendered to him was
withdrawn on a certificate of the Public Prosecutor under Section 308 of the Code of
Criminal Procedure, 1973 and he (approver) has not been further examined by the
prosecution as its witness.
Held: We have referred to the aforesaid provisions of the Evidence Act, Cr.P.C. and
Constitution to indicate that none of these provisions militates against the proposition that a
pardon granted to an accomplice under Section 306 or 307 Cr.P.C. protects him from
prosecution and he becomes witness for prosecution but on forfeiture of such pardon, he is
relegated to the position of an accused and his evidence is rendered useless for the purposes
of the trial of the co- accused. He cannot be compelled to be a witness. There is no question
of such person being further examined for the prosecution and, therefore, no occasion arises
for the defence to cross examine him.
CONCLUSION

Thus from the above it can be said that it is settled law the conviction based on
accomplice/approver's evidence sustains/prevails. However, as a matter of prudence the court
may require corroboration. It must also be noted that is common practice to refer to such
testimony of fellow accused as tainted without further corroboration. The statements given
by them, the accomplices are not accorded the same weight as independent witnesses. There
are primarily three reasons for viewing such statements with an eye of suspicion: (a) because
an accomplice is likely to swear falsely in a bid to shift the guilt from himself; (b)because an
accomplice, as a participator in the crime, being presumed an immoral person, is likely to
disregard the oath; (c) because he gives his evidence under promise of a pardon, if he
discloses all he knows against those with whom he acted criminally and this hope would lead
him to favour the prosecution. Therefore, corroboration of the evidence of an accomplice is
essential
The nature and extent of corroboration necessary is such a case has been laid down in
Rameshwar v. State of Rajasthan12 . Their Lordships have held:
''It would be impossible, indeed it would be dangerous, to formulate the kind of evidence
which should, or would, be regarded as corroboration. Its nature and extent must necessarily
vary with the circumstances of each case and also according to the particular circumstances
of the offence charged". The rules which should, however, be applied are these:
(1) It is not necessary that there should be independent confirmation of every material
circumstance in the sense that the independent evidence in the case, apart from the testimony
of the complainant or the accomplice, should in itself be sufficient to sustain conviction.
(2) The independent evidence must not only make it safe to believe that the crime was
committed but must in some way reasonably connect or tend to connect the accused with it
by confirming in some material particular the testimony of the accomplice or complainant
that the accused committed the crime.
(3) The corroboration must come from independent sources and thus ordinarily the testimony
of one accomplice would not be sufficient to corroborate that of another. But of course the
circumstances may be such as to make it safe to dispense with, the necessity of corroboration
and in those special circumstances a conviction so based would not he illegal.
12 AIR 1952 SC 54

(4) The corroboration need not be direct evidence that the accused committed the crime. It is
sufficient if it is merely circumstantial evidence of his connection with the crime.

REFERENCES

BOOKS
RATANLAL AND DHIRAJLAL, THE LAW OF EVIDENCE, (21
Nagpur) (2004)

Dr. AVATAR SINGH, PRINCIPLES

Publications) (2011)

st

OF THE LAW OF EVIDENCE ,

ed.,Wadhwa & Co.

(19th ed. Central Law

DURGA DAS BASU, CRIMINAL PROCEDURE CODE, 1973, Vol.1 (4th ed., Lexis Nexis
Butterworths Wadhwa, Nagpur) (2010)
st

JOHN HENRY WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW, (1 ed., Wolters

Kluver India Pvt. Ltd.) (2008)

BARE ACT, THE CODE OF CRIMINAL PROCEDURE,1973

SITES

National Investigation Agencys official website- www.nia.gov.in

http://delhihighcourt.nic.in/writereaddata/upload/CourtRules/CourtRuleFile_6G38F1
T4.PDF
http://indiankanoon.org/