Author: Arpit Lahoti & Sherry Shukla

Abstract [Approver]

The Criminal Justice System deals with the establishment of the guilt of the accused by way of evidence of various natures. The huge burden of proving the guilt of the accused beyond reasonable doubt and excluding all reasonable possibilities lies on the prosecution. However, there are situations where it becomes practically challenging to find out evidence to prove the guilt of the accused, as a result of which the liability of the accused is not proved owing to lack of evidence against him/her. It is at this point that Evidence by way of Approver comes into the picture. This article deliberates on the very subject matter of Evidence by the Approver and asserts certain objectives to be achieved. Firstly, the article deals with the meaning and definition of Approver. Secondly, this article deals with the legal position regarding the evidence brought by the way of approver. Thirdly, this article discusses the relevant theory pertaining to evidence brought by way of the approver. Fourthly, it discusses the reliability of evidence brought by the way of approver and also the requirement of corroboration for such evidence. Finally, the article briefly deals with the aspect of Metamorphosis in the status of approver if he fails from true and full disclosure of information.


The term “approver” is neither defined nor used in the Criminal Procedure Code, but is used for a person who is either directly or indirectly related to an offence and to whom a pardon is granted under Section 306 of Cr.P.C with an objective of securing its testimony against other persons guilty of the offence.

In Ram Narain v. State of Bihar, the court observed that an approver is participes criminis i.e. someone who was part of the crime but has now agreed to give evidence against the co-accomplice and has sought pardon for himself in return of giving such evidence. However, this also makes an approver’s testimony doubtful and thus cannot be considered a fair witness. There always exists a chance that the approver may provide false evidence in order to sought the pardon for himself as a reason of which, the courts must as a matter of prudence and caution anxiously look for some corroboration in order to ascertain the authenticity and reliability of such evidence.

As per Black’s Law Dictionary, Approver is ‘An accomplice in crime who accuses others of the same offense, and is admitted as a witness at the discretion of the court to give evidence against his companions in guilt’. He is crudely called ‘King’s Evidence’. Hence it can be said that an approver is a person involved in a certain crime, but he, at a later stage, confesses and offers to serve as a witness for the prosecution. The approver gets a reduced punishment and also a pardon in certain cases for the evidence provided by him/her. This helps in a strong case against the accused and also reduces the time taken for the investigation of that offence, making it a win-win situation for both the prosecution as well as the approver.

Approver’s confession is called “relative confession” which involves a confession of guilt coupled with an accusation of guilt against another person as a participant in the crime. If the accusation against the other person was proved, then the accusing defendant was pardoned. If not, the accusing defendant was convicted on his own confession.

Legal Position – Relevancy of Evidence by Approver

Section 133 of the Indian Evidence Act, 1872 is based on the principle that an accomplice is a competent witness against his co-accused and that his/her testimony against the accused is admissible. Further, a conviction is not illegal merely on the ground that such testimony was uncorroborated with some other evidence. It has, however, been a long settled practice of law that Section 133 of the Evidence Act must be read along with the provisions of Illustration (b) to Section 114 of the Evidence Act.

Section 114 of the Act deals with facts which the Court may assume in a particular case, and Illustration (b) states that an accomplice is a person unworthy of credit until and unless the evidence brought by the approver is corroborated with some other evidence. It can be said that where Section 133 is the rule, Illus. (b) is a rule of guidance while dealing with evidence by the approver; however, it is a presumption juris et de jure and not an absolute rule of law. Thus it can be said that the combined effect of both the Sections is, “That though the conviction of an accused on the testimony of an accomplice cannot be said illegal, yet the courts will as a matter of practice, not accept the evidence of such a witness without corroboration in material particulars”.

It is clear from the fine Judgment of Supreme Court in R. v. Baskerville, that it is for the judge to warn the jury of the danger of convicting a prisoner on the uncorroborated testimony of the prisoner, however, it also has to be told that it is within the legal province of jury to convict upon such confirmed evidence. The evidence which is used to corroborate such approver’s testimony must be an independent evidence and should be able to connect the accused with the crime. The Privy Council in Mahadeo v. King reaffirmed that it is virtually a rule of law rather than a rule of practice that such evidence by approver must be corroborated with an independent evidence.

Accomplices are usually interested and always infamous witnesses and whose testimony is admitted from necessity, it is often impossible without having recourses to such evidence, to bring up the principal offender to justice.[2]

Double Test Theory

In Rex v. Baskerville, Lord Reading laid down the rule of prudence that the evidence of an accomplice must not be accepted without sufficient corroboration. The complementary rule that corroboration is not enough and that the evidence of the accomplice must be reliable was laid down in the Sarwan Singh’s Case.

In the landmark case of Sarwan Singh v. State of Punjab, the double test for the evidence of an approver was laid down. In the instant case the High Court had taken into consideration the evidence of the approver, corroborated by some other evidence, however not taking into consideration the serious defects, inconsistencies and improbabilities in the evidence of the approver. Emphasizing this aspect, the court held that:

Before the Court reaches the stage of considering the question of corroboration and its adequacy or otherwise,

  1. The initial and essential question to consider is whether even as an accomplice the approver is a reliable witness. If the answer to this question is against the approver then there is an end of the matter, and no question as to whether his evidence is corroborated or not falls to be considered. In other words, the appreciation of an approver’s evidence has to satisfy a double test. His evidence must show that he is a reliable witness and that is a test which is common to all witnesses.
  2. Secondly, if the above test is satisfied the second test which still remains to be applied is that the approver’s evidence must receive sufficient corroboration. This test is special to the cases of weak or tainted evidence like that of the approver.

Hence it can be inferred that a double test has to be followed when it comes to evidence by the approver, the first test being same for every witness, as well as the test of corroboration peculiar to tainted evidence.

Section 114 of the Indian Evidence Act empowers the court to presume the existence of certain facts and Illustration (b) in express terms says that an accomplice is unworthy of credit unless he is corroborated in material particulars. Thus, it follows, that whereas law permits the conviction of an accused person based on the uncorroborated testimony of an accomplice the rule of prudence which has always been accepted by the courts embodied in Illustration (b) of Section 114 of the Evidence Act, strikes a note of warning/caution to the courts that an accomplice does not generally deserve to be relied upon, unless his testimony is corroborated in material particulars. Thus, as a matter of practice and prudence, the courts have held that the testimony of an approver may be accepted in evidence for recording conviction of an accused person provided it receives corroboration from direct or circumstantial evidence in material particulars. The courts have generally looked upon the statement of an approver with suspicion because he is considered to be a person of low morals and not a wholly trustworthy person who for the sake of earning pardon for himself is willing to let down his erstwhile accomplices and therefore before recording conviction courts insist upon independent corroboration of his testimony.

Extent And Nature Of Corroboration

The answer to the question regarding the extent of Corroboration required with an approver’s evidence was answered by the Hon’ble Supreme Court in Rameshwar v. State of Rajasthan in which it held that the nature and extent of corroboration 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 mandatory that the independent evidence is sufficient to sustain the conviction of the accused, such evidence is required only to corroborate with the testimony of approver and in order to render such testimony creditworthy and reliable.
  2. Such independent evidence should also connect the accused with the commission of the crime.
  3. The corroboration must come from independent sources i.e. not through the approver and thus ordinarily the testimony of one accomplice would not be sufficient to corroborate that of another. However, a conviction is not illegal merely on the ground that such testimony was not corroborated with independent evidence.

The Objective of Pardon

Many times, the crime is committed in such a manner that no clue or any trace is available for its detection. Pardon is granted for apprehending the other offenders so that incriminating objects and other evidence, which is otherwise un-obtainable could be unearthed. The dominant object behind the Legislature introducing Section 306 Cr.P.C and confining its operation to the class of cases mentioned therein, was to ensure that the offenders of heinous and grave crimes, do not go unpunished. As held by the Hon’ble Supreme Court in Suresh Chandra Bahri v. State of Bihar, that the pardon can be granted to any person directly or indirectly related to the crime.

The Shifting Back Mechanism

Upon receiving pardon under Sec 306 CrPC, accused is discharged of the cases and becomes a prosecution witness. He continues to be a prosecution witness till the prosecution does not certify under Section 308 (1) Cr.P.C. that he has failed to comply with the conditions of pardon, and the prosecution is under an obligation to examine him as a witness both in the committing court as well as in the trial court.

However, as per the proviso to Section 132 of the Indian Evidence Act,1872, such evidence which is brought by the approver cannot be used against him in any criminal proceedings which tend to criminate him directly or indirectly.

In cases where the Public Prosecutor under Section 308 (1) Cr.P.C. issues a certificate of non-compliance of conditions (i.e., the approver has failed to comply with the conditions for pardon), pardon granted to him is forfeited and he is relegated to the position of an accused and is no longer a witness for the prosecution. However, in such circumstances, the approver has to be tried separately and the evidence given by him/her cannot be used against him/her and it ceases to be a legal evidence for consideration in the trial against the co-accused. The only exception to this is that in a separate trial where the approver gets an opportunity to show that he had complied with the condition of pardon, the evidence brought by the approver can be used against him/her.


The recent high profile case which dealt with approver’s testimony is of the former finance minister, Mr P. Chidrambram. Indrani Mukherjee (Approver) was the main witness against him in the INX Media case which gained significant highlights and a great political tussle was seen, however, the principle of law in order to check the reliability of an accused is much settled. The requirement of corroboration of independent evidence along with the approver’s testimony justifies the principle of a fair trial as the court has to be satisfied that there exists other evidence in order to prove the guilt of the accused as per the double test theory.

Further, the accused is always under an obligation of ‘True and Full Disclosure’ of the information failing which it would again have to face a trial and would retake the status of co-accused. However, the law also mandates that in such cases the evidence brought by the approver cannot be used to establish his/her criminality in the case and thus balances the rights of the accused as well as the approver.

[1] State v. Willis, 71 Conn. 293, 309 (Conn. 1898).

[2] Taylor : A Treatise on the Law of Evidence, (1931) Vol. 1 para 967.

About the Author: Arpit [3rd year]& Sherry [2nd year] are B.A.LL.B (Hons) student at National Law University, Nagpur.

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