Section 120A
Section 120A of Indian Penal Code defines criminal conspiracy. It says:
“when two or more persons agree to do or cause to be done (i) an illegal act or (ii) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy. Section 120B prescribes the punishment to be imposed on a party to a criminal conspiracy.
What Constitutes Conspiracy?
It is not necessary that all the conspirators should participate from the inception to the end of the conspiracy; some may join the conspiracy after the time when such intention was first entertained by any one of them and some others may quit from the conspiracy. All of them cannot but be treated as conspirators. Where in pursuance of the agreement the conspirators commit offences individually or adopt illegal means to do a legal act which has a nexus to the object of conspiracy, all of them will be liable for such offences even if some of them have not actively participated in the commission of those offences.”
There is exhaustive reference to various cases by Arijit Pasayat, J, in Mohd. Khalid v. State of W.B. [2002(7) SCC 334]. In Mohammed Usman v. State of Maharashatra [1981(2) SCC 443] it was observed that the agreement amongst the conspirators can be inferred by necessary implication.
There is one particular observation made by Jagannadha Shetty in Kehar Singh’s case which needs to be explained. The learned Judge observed :
“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 is it necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient”.
Mostly, the conspiracies are proved by the circumstantial evidence, as the conspiracy is seldom an open affair. Usually both the existence of the conspiracy and its objects have to be inferred from the circumstances and the conduct of the accused. (Per Wadhwa, J. in Nalini’s case at page 516). The well known rule governing circumstantial evidence is that each and every incriminating circumstance must be clearly established by reliable evidence and “the circumstances proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible.” G.N. Ray, J. in Tanibeert Pankaj Kumar [1997(7) SCC 156], observed that Supreme Court should not allow the suspicion to take the place of legal proof.
As pointed out by Fazl Ali, J, in V.C. Shukla v. State [1980(2) SCC 665], “in most cases it will be difficult to get direct evidence of the agreement, but a conspiracy can be inferred even from circumstances giving rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence.” In this context, the observations in the case Noor Mohammad Yusuf Momin v. State of Maharashtra, (AIR 1971 Supreme Court 885) are worth nothing :
“..in most cases proof of conspiracy is largely inferential though the inference must be founded on solid facts. Surrounding circumstances and antecedent and subsequent conduct, among other factors, constitute relevant material.”
A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused in the offence of criminal conspiracy. The circumstances before, during and after the occurrence can be proved to decide about the complicity of the accused. [vide Esher Singh v. State of A.P., 2004(11) SCC 585].
Lord Bridge in R. v. Anderson [1985(2) All E.R. 961] aptly said that the evidence from which a jury may infer a criminal conspiracy is almost invariably to be found in the conduct of the parties. In (AIR 1945 Privy Council 140), the Privy Council warned that in a joint trial care must be taken to separate the admissible evidence against each accused and the judicial mind should not be allowed to be influenced by evidence admissible only against others. “A co-defendant in a conspiracy trial”, observed Jackson, J, “occupies an uneasy seat” and “it is difficult for the individual to make his own case stand on its own merits in the minds of jurors who are ready to believe that birds of a feather are flocked together.” [vide Alvin Krumlewitch v. United States of America, (93 L.Ed. 790).
In Nalini’s case, Wadhwa, J pointed out, at page 517 of the SCC, the need to guard against prejudice being caused to the accused on account of the joint trial with other conspirators. The learned Judge observed that “there is always difficulty in tracing the precise contribution of each member of the conspiracy but then there has to be cogent and convincing evidence against each one of the accused charged with the offence of conspiracy”.
The pertinent observation of Judge Hand in U.S. v. Falcone, (109 F. 2d. 579) was referred to : “This distinction is important today when many prosecutors seek to sweep within the dragnet of conspiracy all those who have been associated in any degree whatever with the main offenders.” At paragraph 518, Wadhwa, J, pointed out that the criminal responsibility for a conspiracy requires more than a merely passive attitude towards an existing conspiracy. The learned Judge then set out the legal position regarding the criminal liability of the persons accused of the conspiracy as follows :
“One who commits an overt act with knowledge of the conspiracy is guilty. And one who tacitly consents to the object of a conspiracy and goes along with the other conspirators, actually standing by while the others put the conspiracy into effect, is guilty though he intends to take no active part in the crime.”
One more principle which deserves notice is that cumulative effect of the proved circumstances should be taken into account in determining the guilt of the accused rather than adopting an isolated approach to each of the circumstances. Of course, each one of the circumstances should be proved beyond reasonable doubt. Lastly, in regard to the appreciation of evidence relating to conspiracy, the Court must take care to see that the acts or conduct of the parties must be conscious and clear enough to infer their concurrence as to the common design and its execution. K.J. Shetty, J, pointed out in Kehar Singh’s case that “the innocuous, innocent or inadvertent events and incidents should not enter the judicial verdict.”
In State (N.C.T. Of Delhi) vs Navjot Sandhu@ Afsan Guru on 4 August, 2005, the court said,
“We do not think that the theory of agency can be extended thus far, that is to say, to find all the conspirators guilty of the actual offences committed in execution of the common design even if such offences were ultimately committed by some of them, without the participation of others. We are of the view that those who committed the offences pursuant to the conspiracy by indulging in various overt acts will be individually liable for those offences in addition to being liable for criminal conspiracy; but, the non-participant conspirators cannot be found guilty of the offence or offences committed by the other conspirators.
There is hardly any scope for the application of the principle of agency in order to find the conspirators guilty of a substantive offence not committed by them. Criminal offences and punishments therefor are governed by statute. The offender will be liable only if he comes within the plain terms of the penal statute. Criminal liability for an offence cannot be fastened by way of analogy or by extension of a common law principle.”
In Ajay Aggarwal v. Union of India , 1993(3) RCR (Criminal) 34 (SC) : [1993(3) SCC 609], while discussing the question whether the conspiracy is a continuing offence, the following pertinent observations were made by K. Ramaswamy, J, speaking for the Bench at para 11 :
“Conspiracy to commit a crime itself is punishable as a substantive offence and every individual offence committed pursuant to the conspiracy is separate and distinct offence to which individual offenders are liable to punishment, independent of the conspiracy.”
Thus, a distinction was maintained between the conspiracy and the offences committed pursuant to the conspiracy. It is only in order to prove the existence of conspiracy and the parties to the conspiracy, a rule of evidence is enacted in Section 10 based on the principle of agency. We may recall that Section 10 of the Evidence Act provides that anything said, done or written by one of the conspirators in reference to the common intention of all of them can be proved as a relevant fact as against each of the conspirators, subject to the condition prescribed in the opening part of the section.
Thus, the evidence which is in the nature of hearsay is made admissible on the principle that there is mutual agency amongst the conspirators. It is in the context of Section 10 that the relevant observations were made in the first Caveeshar case (AIR 1957 Supreme Court 747) and Nalini’s case at page 517. In the former case, Jagannadhadas, J, after referring to the passage in Roscoe’s Criminal Evidence (16th Edn.) that “an overt act committed by any one of the conspirators is sufficient, on the general principles of agency, to make it the act of all”, observed that “the principle underlying the reception of evidence under Section 10 of the Evidence Act of the statements, acts and writings of one co-conspirator as against the other is on the theory of agency”.
It was not held in those cases that the same principle of agency should be stretched further to make all the conspirators liable for the offensive acts done pursuant to the conspiracy, irrespective of their role and participation in the ultimate offensive acts. Whether or not the conspirators will be liable for substantive offences other than the conspiracy and, if so, to what extent and what punishment has to be given for the conspiracy and the other offences committed pursuant thereto, depend on the specific scheme and provisions of the penal law. The offence cannot be spelt out by applying the principle of agency if the statute does not say so. For instance, in the case of Section 34 Indian Penal Code, the constructive liability for the crime is specifically fastened on each of those who participate in the crime in furtherance of the common intention. But Section 120B does not convey that idea. (State (N.C.T. Of Delhi) vs Navjot Sandhu@ Afsan Guru on 4 August, 2005)