To prove the charge of criminal conspiracy the prosecution is required to establish that two or more persons had agreed to do or caused to be done, an illegal act or an act which is not illegal, by illegal means. It is immaterial whether the illegal act is the ultimate object of such crime or is merely incidental to that object. To attract the applicability of Section 120B it has to be proved that all the accused had the intention and they had agreed to commit the crime. There is no doubt that conspiracy is hatched in private and in secrecy for which direct evidence would rarely be available. It is also not necessary that each member to a conspiracy must know all the details of the conspiracy. Supreme Court in Yash Pal Mittal v. State of Punjab [AIR 1977 SC 2433] held:
“The offence of criminal conspiracy under S.120A is a distinct offence introduced for the first time in 1913 in Chapt.V-A of the Penal Code. The very agreement, concert or league is the ingredient of the offence. It is not necessary that all the conspirators must know each and every detail of the conspiracy as long as they are co- conspirators in the main object of the conspiracy. There may be so many devices and techniques adopted to achieve the common goal of the conspiracy and there may be division of performances in the chain of actions with one object to achieve the real end of which every collaborator must be aware and in which each one of them must be interested.
There must be unity of object or purpose but there may be plurality of means sometimes even unknown to one another, amongst the conspirators. In achieving the goal several offences may be committed by some of the conspirators even unknown to the others. The only relevant factor is that all means adopted and illegal acts done must be and purported to be in furtherance of the object of the conspiracy even though there may be sometimes mis-fire or over-shooting by some of the conspirators. Even if some steps are resorted to by one or two of the conspirators without the knowledge of the others it will not affect the culpability of those others when they are associated with the object of the conspiracy.
The significance of criminal conspiracy under S.120A is brought out pilthily by Supreme Court in EG Barsay v. The State of Bombay (1962) 2 SCR 195 at p.229 thus:
“The gist of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. So too, it is not an ingredient of the offence that all the parties should agree to do a single illegal act. It may comprise the commission of a number of acts. Under S.43 of the Indian Penal Code, an act would be illegal if it is an offence or if it is prohibited by law. Under the first charge the accused are charged with having conspired to do three categories of illegal acts, and the mere fact that all of them could not be convicted separately in respect of each of the offences has no relevancy in considering the question whether the offence of conspiracy has been committed.
They are all guilty of the offence of conspiracy to do illegal acts, though for individual offences all of them may be liable”.
In a criminal case the onus lies on the prosecution to prove affirmatively that the accused was directly and personally connected with the acts or omissions attributable to the crime committed by him. It is settled position of law that act or action of one of the accused cannot be used as evidence against other. However, an exception has been carved out under Section 10 of the Evidence Act in the case of conspiracy. To attract the applicability of Section 10 of the Evidence Act, the Court must have reasonable ground to believe that two or more persons had conspired together for committing an offence. It is only then that the evidence of action or statement made by one of the accused could be used as evidence against the other.
Section 10 of the Evidence and why it was enacted
Supreme Court in Kehar Singh & Ors. v. The State (Delhi Admn.) [AIR 1988 SC 1883] has held:
“Section 120A 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 S.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. It appears that considering this experience about the proof of conspiracy that S.10 of the Indian Evidence Act was enacted.
Section 10 reads:
“Things said or done by conspirator in reference to common design – when 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 persons 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 that 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 S.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 S.10.
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 clear that this second part permits the use of evidence which otherwise could not be used against the accused person. 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 S.10 in cases of conspiracy.
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 S.120A. It is only then the evidence of action or statements made by one of the accused, could be used as evidence against the other.
In Sardar Sardul Singh Caveeshar v. State of Maharashtra (1964) 2 SCR 378, Subba Rao, J. (as he then was) analysed the provision of S.10 and made the following observations:
“This section, as the opening words indicate will come into play 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 proving 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 have 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. Another important limitation implicit in the language is indicated by the expressed scope of its relevancy.
Anything so said, done or written is a relevant fact only ‘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’. It can be used only for the purpose of proving the existence of the conspiracy or that the other person was a party to it. It cannot be said in favour of the other party or for the purpose of showing that such a person was not a party to the conspiracy.
In short, the Section can be analysed as follows:
(1) 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;
(2) 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;
(3) 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;
(4) 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;
(5) it can only be used against a co- conspirator and not in his favour.”
It was further held: “From an analysis of the section, it will be seen that Sec.10 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. There should be, in other words, a prima facie evidence that the person was a party to the conspiracy before his acts can be used against his co-conspirator. One such prima facie evidence exists, anything said, done or written by one of the conspirators in reference to the common intention, after the said intention was first entertained, is relevant against the others. It is relevant not only for the purpose of proving the existence of conspiracy, but also for proving that the other person was a party to it.
It is true that the observations of Subba Rao, J. in Sardul Singh Caveeshar v. State of Maharashtra, (1964) 2 SCR 378 lend support to the contention that the admissibility of evidence as between co-conspirators would be liberal than in English Law. The learned Judge said (at 390):
“The evidentiary value of the said acts is limited by two circumstances, namely, that the acts shall be in 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 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….”
But, with respect, the above observations that the words of Sec.10 have been designedly used to give a wider scope than the concept of conspiracy in English Law, may not be accurate. This particular aspect of the law has been considered by the Privy Council in Mirza Akbar v. King Emperor, AIR 1940 PC 176 at p.180, where Lord Wright said that there is no difference in principle in India Law in view Sec.10 of the Evidence Act. The decision of the Privy Council in Mirza Akbar’s case has been referred to with approval in Sardul Singh Caveeshar v. State of Bombay, 1958 SCR 161 at p.193: (AIR 1957 SC 747 AT P.760) where Jagannadhadas, J., said:
“The limits of the admissibility of evidence in conspiracy case under S.10 of the Evidence Act have been authoritatively laid down by the Privy Council in Mirza King v. King Emperor (supra). In that case, their Lordships of the Privy Council held that S.10 of the 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 any one of such persons” (i.e. conspirators) must be “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.”
In Suresh Chandra Bahri v. State of Bihar [AIR 1994 SC 2420] Supreme Court reiterated that the essential ingredient of criminal conspiracy is the agreement to commit an offence. After referring to the judgments in NMMY Momin v. State of Maharashtra [AIR 1971 SC 885] and State (Delhi Admn) v. V.C. Shukla [AIR 1980 SC 1382] it was held in S.C. Bahri’s case as under:
“A cursory look to the provisions contained in S.120-A reveal that a criminal conspiracy envisages an agreement between two or more persons to commit an illegal act or an act which by itself may not be illegal but the same is done or executed by illegal means. Thus, the essential ingredient of the offence of criminal conspiracy is the agreement to commit an offence. In a case where the agreement is for accomplishment of an act which by itself constitutes an offence, then in that event no overt act is necessary to be proved by the prosecution because in such a fact situation criminal conspiracy is established by proving such an agreement.
In other words, where the conspiracy alleged is with regard to commission of a serious crime of the nature as contemplated in S.120-B read with the provisio to sub-sec.(2) of S.120-A of the IPC, then in that event mere proof of an agreement between the accused for commission of such a crime alone is enough to bring about a conviction under S.120-B and the proof of any overt act by the accused or by any one of them would not be necessary.
The provisions in such a situation do not require that each and every person who is a party to the conspiracy must do some overt act towards the fulfilment of the object of conspiracy, the essential ingredient being an agreement between the conspirators to commit the crime and if these requirements and ingredients are established the act would fall within the trapping of the provisions contained in S.120-B since from its very nature a conspiracy must be conceived and hatched in complete secrecy, because otherwise the whole purpose may frustrate and it is common experience and goes without saying that only in very rare cases one may come across direct evidence of a criminal conspiracy to commit any crime and in most of the cases it is only the circumstantial evidence which is available from which an inference giving rise to the conclusion of an agreement between two or more persons to commit an offence may be legitimately drawn.”
The court in Saju v. State of Kerala (2000), has said that it has to be established that the accused charged with criminal conspiracy had agreed to pursue a course of conduct which he knew leading to the commission of a crime by one or more persons to the agreement, of that offence. Besides the fact of agreement the necessary mens rea of the crime is also required to be established.”
Reference
Saju v. State of Kerala (2000)