The essential of a conspiracy, whether viewed with regard to its importance in a criminal prosecution or its significance in a civil action for damages, are commonly described in this general language.
It is a combination between two or more persons to do a criminal or an unlawful act or a lawful act by criminal or by unlawful means.
This definition is perhaps is not perfectly accurate, but is sufficient as a general description of the offence. In conspiracy, the concert or agreement of two minds is the offence. The overt act is the outward and visible evidence of it.
A person taking part in a conspiracy.
Section 120-A defines “Criminal Conspiracy”.
Sec. 120-A. Definition of criminal conspiracy:
When two or more persons agree to do, or cause to be done,—
(1) An illegal act, or
(2) An act which is not illegal 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.
It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object
A. Halsbury’s Laws of England explain the concept of criminal conspiracy as follows:
“Conspiracy consists in the agreement of two or more persons to do an unlawful act, or to do a lawful act by unlawful means. It is an indictable offence at common law, the punishment for which is imprisonment or fine or both in the discretion of the Court.
The essence of the offence of conspiracy is the fact of combination by agreement. The agreement may be express or implied, or in part express and in part implied.
The conspiracy arises and the offence is committed as soon as the agreement is made; and the offence continues to be committed so long as the combination persists, that or by abandonment or frustration or however, it may be.
The actus reus in a conspiracy is the agreement to execute the illegal conduct, not the execution of it. It is not enough that two or more persons pursued the same unlawful object at the same time or in the same pace; it is necessary to show a meeting of minds, a consensus to affect an unlawful purpose. It is not, however, necessary that each conspirator should have been in communication with every other.”
1. There must be an agreement between the persons who are alleged to conspire.
2. An agreement should be,
(a) For doing an illegal act, or
(b) For doing by illegal means an act which may not itself be illegal.
3. In the case of conspiracy other than a conspiracy to commit an offence there must be an overt act done by one or more of the parties to the conspiracy to effect the object there of.
C. Chapter V-A contains only two Sections, viz., 120-A & 120-B. Sec. 120-A defines “Criminal Conspiracy”. Sec. 120-B prescribes punishment for it. These two Sections inserted in IPC with the object of bringing the law of conspiracy in India in line with the English Law.
The gist of the offence of criminal conspiracy is an agreement to do an unlawful thing, i.e., to break the law. However, if the act may be lawful, but if it is done by unlawful ways in an agreement to do it, such wrongful act also comes within the purview of this offence.
Sec. 107, Clause 2 explains the previsions of “Abetment by Conspiracy”. The offence of abetment created under it requires that there must be something more than a mere conspiracy. There must be some act or illegal omission in pursuance of that conspiracy.
It says that about a thing of abetment who engages with one or more person or persons in any conspiracy for the doing that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing.
The gist of the offence of criminal conspiracy is explained under Sec. 120-A. According to it, the criminal conspiracy is a bare agreement to commit an offence. It is made punishable under Sec. 120- B.
While disposing the case Pramada Nath Talukdar vs. Sarjonranjan Sarkar (AIR 1962 SC 876), the Supreme Court expressed: “Put very briefly the distinction between the offence of abetment under the second clause of Sec. 107 and that of Criminal Conspiracy under Sec. 120-A is this.
In the former offence a mere combination of persons are agreement between them is not enough an act or illegal omission must take place in pursuance of the conspiracy and in order to the doing of the thing conspired for; in the latter offence the mere agreement is enough, if the agreement is to commit an offence.
So far as abetment by conspiracy is concerned the abettor will be liable to punishment under varying circumstances detailed in Sees. 106 to 117. It is unnecessary to detail those circumstances for the present case. For the offence of criminal conspiracy it is punishable under Sec. 120-B.”
D. While disposing “Ranganayaki vs. State (2004) 12 SCC 521)” case, the Supreme Court explained the distinction between “Abetment by Conspiracy” and “Criminal Conspiracy” as follows: “The offence of abetment created under the second clause of Section 107 requires that there must be something more than mere conspiracy.
There must be some act or illegal omission in pursuance of that conspiracy. The offence of conspiracy created under Section 120-A is bare agreement to commit an offence. It has been made punishable under Section 120-B. The punishment for these two categories of crimes is also quite different.
Section 109 IPC is concerned only with the punishment of abetment for which no express provision has been made in IPC. The charge under Section 109 should, therefore, be along with charge for murder which is the offence committed in consequence of abetment.
An offence of criminal conspiracy is, on the other hand, an independent offence. It is made punishable under Section 120-B for which a charge under Section 109 is unnecessary and inappropriate. Intentional aiding and active complicity is the gist of the offence of abetment.”
E. Punishment for Criminal Conspiracy:
Sec. 120-B prescribes punishment for criminal conspiracy.
Sec. 120-B. Punishment of criminal conspiracy:
(1) Whoever is a party to 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.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as j aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or j with both.
A and B agree to engage C to kill Z. In pursuance of it C attempts to kill Z, but fails in his attempt. What is the offence committed by each? (Apr. 95, G.U.)
Section 120-B does not prescribe the punishment directly. The first clause of this Section mandatorily instructs that the conspirator shall be punished in the manner as if he had abetted such offence. In this problem, Section 115 of the Code (relating to the Law of Abetment) answers.
The illustration appended to this Section gives clear understanding. According to Sec. 115, A and B are liable to imprisonment for a term which may extend to seven years and also to a fine, c is liable to be punished under Sec. 511.
G. The burden of proof:
The term “Conspiracy” itself means that it is not an open act. It is planned secret. The burden of proof lies upon the prosecution. The prosecution has to prove the criminal conspiracy by circumstantial evidence.
H. Kehar Singh vs. Delhi Administration (AIR 1988 SC 1883)
This is a famous case, pertaining to the assassination of Smt. Indira Gandhi, the then Prime Minister. She was shot dead at 9-00 a.m. on 31-10-1984. Kehar Singh, Balbir Singh and Satwant Singh (the security of Smt. Indira Gandhi) were prosecuted under Section 302 read with S. 120-B. All the three were sentenced to death by the trial Court. It was confirmed by the High Court of Delhi in 1986.
The Supreme Court acquitted Balbir Singh opining that he did not participate in the criminal conspiracy and the assassination. But it confirmed the conviction against Kehar Singh and
Satwant Singh, opining that both of them actively participated in criminal conspiracy in killing Smt. Indira Gandhi.
While disposing this case, the Supreme Court observed: “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 those conspirators, but the latter does. It is, however, essential that the offence of conspiracy required 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.”
I. Ramnath and other vs. State of M.P. (AIR 1953 SC 420)
There were two rival factions in the Godarwara (M.P). Sunder, a goldsmith, was one of the leaders of one of the factions. He attended a meeting at Ganj (Market) on 6-4-1950. While returning home, he was shot dead at 11.00 P.M.
He was taken to hospital. In the hospital he gave dying declaration that Purushotham, Pratap, Mamji and Anna Ahir assaulted him and also shot him by means of pistol.
There were two wounds found in his body. He was taken to Jabalpur hospital, where he was operated on 7-4-1950, on the same day he died. Ramnath Madhu Prasad and two appellants, Harishankar, Chiddi were prosecuted under Sec. 302 before the Sessions Judge, Narasimhapur (M.P). Ramnath, Pratap, Purushottam, Harishanker and Chiddi were also charged with Sec. 120-B. The Sessions Judge acquitted all the accused from the charges of Sec. 120-B.
Ramnath was found guilty for the murder of Sunder and was sentenced to death under Sec. 302. Pratap and Purushottam were convicted under Sec. 302 read with Sec. 34 and both were sentenced to transportation of life.
Harishankar and Chiddi were acquitted on appeal to the High Court, which confirmed the sentences against Pratap and Purushottam, but the punishment against Ramnath from the sentence of death was converted to transportation of life under Sec. 302 read with Sec. 34. The three accused/appellants appealed to the Supreme Court.
The Supreme Court pointed out that when the trial Court did not believe the evidence under Sec. 120-B, the same evidence cannot be adduced to prove Sec. 34.
The result was that there was no satisfactory evidence for concluding positively that the three appellants were responsible for the murder. Hence the Supreme Court acquitted all the three accused/appellants from the charges of Sec. 302 read with Sec. 34.
Where there was no evidence whatsoever of any pre-meditation or of a pre-arranged plan by the assailants of murdering the deceased the mere fact that all the accused were seen at the spot at the time of firing could not be held sufficient to prove or even to infer a common intention.
Because unless the possibility as to who amongst them fired the fatal shot has not been eliminated by any evidence on record none of them could be convicted of murder under Sec. 302, Sec. 34 does not apply in such a case.
Further the evidence as to conspiracy under Sec. 120-B IPC, having been rejected; the same evidence cannot be used for finding a common intention under Sec. 34 IPC.
J. Sec. 10 of Evidence Act 1872 vs. Sec. 120-B of I.P.C.:
Section-10 of the Indian Evidence Act, 1872 explains the provisions about the proving the things said or done by conspirator in reference to common design.
(Evidence Act) Sec. 10. 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 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.
Reasonable ground exists for believing that A has joined in a conspiracy to wage war against the Government of India. The facts that B procured arms in Europe for the purpose of the constftracy, C collected money in Calcutta for a like object, D persuaded persons to join the conspiracy in Bombay, E published writings advocating the object in view at Agra, and F transmitted from Delhi to G at Cabul the money which C had collected at Calcutta, and the contents of a letter written by H giving an account of the conspiracy, are each relevant, both to prove the existence of the conspiracy, and to prove A’s complicity in it, although he may have been ignorant of all of them, and although the persons by whom they were done were strangers to him, and although they may have taken place before he joined the conspiracy or after he left it.
Section 120-A and 120-B of the Indian Penal Code, 1860 and Section 10 of the Indian Evidence Act, 1872 are inter-related to prove a criminal conspiracy intended or done an unlawful act.
While disposing Bhagwan Swarup vs. State of Maharashtra (AIR 1965 SC 682), the Supreme Court analysed the Section 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; and
(5) it can only be used against a coconspirator and not in his favour.