September 30, 2022

Law of Conspiracy and Evidence law to prove Conspiracy Charge

Sec. 120-A and 120-B of the Indian Penal Code deal with the question of conspiracy.

Definition of Conspiracy

Sec. 120-A reads:

“When two or more persons agree to do, or cause to be done. –

  • an illegal act, or
  • an act which is not illegal (but done by) by illegal means, such an agreement is designated a criminal conspiracy:

Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.”

120B. Punishment of criminal conspiracy

  • Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
  • Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.

Sec. 120-A provides for the definition of criminal conspiracy and it speaks of that when two or more persons agree to do or cause to be done an act which is an illegal act and Sec. 120-B provides for the punishment for a criminal conspiracy and it is interesting to note that in order to prove a conspiracy it has always been felt that it was not easy to get direct evidence.

Section 10 of Evidence Act

It appears that considering this experience about the proof of conspiracy, Sec. 10 of the Indian Evidence Act was enacted.

Sec. 10 reads:

Things said or done by conspirator in reference to common design

Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention. after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the person believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it.”

This Section mainly could be divided into two:

the first part talks of where there is reasonable ground to believe that two or more persons have conspired to commit an offence or an actionable wrong, and it is only when this condition precedent is satisfied then the subsequent part of the Section comes into operation and it is material to note that this part of the Section talks of reasonable grounds to believe that two or more persons have conspired together and this evidently has reference to Sec. 120-A where it is provided “When two or more persons agree to do, or cause to be done.”

This further has been safeguarded by providing a proviso that no agreement except an agreement to commit an offence shall amount to criminal conspiracy. It will be therefore necessary that a prima facie case of conspiracy has to be established for application of Sec. 10.

Act or action of one accused used against other accused

The second part of Section talks of anything said, done or written by any one of such persons in reference to the common intention, after the time when such intention was first entertained by any one of them is relevant fact against each of the persons believed to be so conspiring as well for the purpose for proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it.

It is well settled that act or action of one of the accused could not be used as evidence against the other. But an exception has been carved out in Sec. 10 in cases of conspiracy. It is clear that this second part permits the use of evidence which otherwise could not be used against the accused person.

The second part operates only when the first part of the Section is clearly established i.e. there must be reasonable ground to believe that two or more persons have conspired together in the light of the language of Sec. 120-A. It is only then the evidence of action or statements made by one of the accused could be used as evidence against the other.

Section 10, as the opening words indicate will come into play only when the Court is satisfied that there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, that is to say, there should be a prima facie evidence that a person was a party to the conspiracy before his acts can be used against his co-conspirators.

Once such a reasonable ground exists, anything said, done or written by one of the conspirators in reference to the common intention, after the said intention was entertained, is relevant against the others, not only for the purpose of proving the existence of the conspiracy but also for providing that the other person was a party to it.

The evidentiary value of the said acts is limited by two circumstances, namely, that the acts shall be reference to their common intention and in respect of a period after such intention was entertained by any one of them.

The expression ‘in reference to their common intention’ is very comprehensive and it appears to have been designedly used to give it a wider scope than the words ‘in furtherance of’ in the English law; with the result, anything said, done or written by a co-conspirator, after the conspiracy was formed, will be evidence against the other before he entered the field of conspiracy or after he Left it.

FINAL ANALYSIS OF SECTION 10 OF EVDEINCE ACT

In short, the Section can be analysed as follows:

  • There shall be a prima facie evidence affording a reasonable ground for a Court to believe that two or more persons are members of a conspiracy;
  • if the said condition is fulfilled, anything said, done or written by any one of them in reference to their common intention will be evidence against the other;
  • anything said, done or written by him should have been said, done or written by him after the intention was formed by any one of them;
  • it would also be relevant for the said purpose against another who entered the conspiracy whether it was said, done or written before he entered the conspiracy or after he left it;
  • it can only be used against a conspirator and not in his favour.

Gist of the offence of Conspiracy

These provisions on conspiracy (Section 120-A, 120-B) have brought the Law of Conspiracy in India in line with the English law by making the overt act unessential when the conspiracy is to commit any punishable offence. The English Law on this matter is well-settled. The following passage from Russell on Crime[1] may be usefully noted:

“The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the forming of the scheme or agreement between the parties. Agreement is essential. Mere knowledge, or even discussion, of the plan is not, per se, enough.”

Glanville Williams in the “Criminal Law”[2] explains the proposition with an illustration:

“The question arose in an Iowa case, but it was discussed in terms of conspiracy rather than of accessoryship. D, who had a grievance against P, told E that if he would whip P someone would pay his fine. E replied that he did not want anyone to pay his fine, that he had a grievance of his own against P and that he would whip him at the first opportunity. E whipped P. D was acquired of conspiracy because there was no agreement for “concert of action”. no agreement to “co-operate”.

Coleridge, J., while summing up the case to Jury in Regina v. Murphy[3], pertinently states:

“I am bound to tell you, that although the common design is the root of the charge, it is not necessary to prove that these two parties came together and actually agreed in terms to have this common design and to pursue it by common means, and so to carry it into execution. This is not necessary, because in many cases of the most clearly established conspiracies there are no means or proving any such thing, and neither law nor common sense requires that it should be proved.

If you find that these two person pursued by their acts the same object, often by the same means, one performing one part of an act, so as to complete it, with a view to the attainment of the object which they were pursuing, you will be at liberty to draw the conclusion that they have been engaged in a conspiracy to effect that object. The question you have to ask yourselves is, “Had they this common design, and did they pursue it by these common means-the design being unlawful?”

Agreement in Conspiracy

It will be thus seen that the most important ingredient of the offence of conspiracy is the agreement between two or more persons to do an illegal act. The illegal act may or may not be done in pursuance of agreement, but the very agreement is an offence and is punishable.

Reference to secs-120-A and 120-B IPC would make these aspects clear beyond doubt. Entering into an agreement by two or more persons to do an illegal act or legal act by illegal means is the very quintessence of the offence of conspiracy. Generally, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. The prosecution will often rely on evidence of acts of various parties to infer that they were done in reference to their common intention.

The prosecution will also more often rely upon circumstantial evidence. The conspiracy can be undoubtedly proved by such evidence direct or circumstantial. But the Court must enquire whether the two persons are independently pursuing the same end or they have come together to the pursuit of the unlawful object. The former does not render them conspirators, but the latter is.

It is however, essential that the offence of conspiracy requires some kind of physical manifestation of agreement. The express agreement, however, need not be proved. Nor actual meeting of two persons is necessary. Nor it is necessary to Prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient.

It is suggested that in view of sec. 10 of the Evidence Act, the relevancy of evidence in proof of conspiracy in India is wider in scope than that in English Law. Section 10 of the Evidence Act introduced the doctrine of agency and if the conditions laid down therein are satisfied, the acts done by one are admissible against the co-conspirators.

English law and Indian law on conspiracy

This particular aspect of the law has been considered by the Privy Council in Mirza Akbar v. king Emperor[4], , where Lord Wright said that there is no difference in principle in Indian Law in view of sec. 10 of the Evidence Act.

The decision of the Privy Council in Mirza Akbar’s care has been reterred to with approval in Sardul Singh Caveeshar v. The State of Bombay[5], at where Jagannadhadas, J., said:

“The limits of the admissibiliy of evidence in conspiracy case under s.10 of the Evidence Act have been authoritatively laid down by the Privy Council in Mirza Akbar v. The KIng Emperor, (supra). In that case, their Evidence Act must be construed in accordance with the principle that the thing done. written or spoken, was something done in carrying out the conspiracy and was receivable as a step in the proof of the conspiracy. They notice that evidence receivable under s. 10 of the Evidence Act of “anything said done or written, by one of such persons” (i.e., conspirators) must he “in reference to their common intention.”

But their Lordships held that in the context (notwithstanding the amplitude of the above phrase) the words therein are not capable of being widely construed having regard to the well-known principle above enunciated.


[1] (12 Ed. Vol. I, 202)

[2] (Second Ed. 382)

[3] (173 Eng. Reports 508)

[4] AIR 1940 PC 176 at 180

[5] [1958] SCR 161