This article is written by Abu Zar Ali, a BA LLB(Hons.) student from WBNUJS, Kolkata.
Meaning of conspiracy
Criminal conspiracy is a substantive offence under the Indian Penal Code (hereinafter referred to as IPC). This offence has led to several debates with regards to the timing and execution of the conspiracy, statements made in and outside conspiracy, persons involved, and their respective liabilities. One such controversial aspect of criminal conspiracy is the admissibility of statements made by a co-conspirator against other co-conspirators. Before dealing with this aspect, we would first define and analyze the definition of conspiracy in the background of some of the landmark judgments.
Section 120A IPC (see here) defines conspiracy and the essential elements this offence can be categorized as follows:
- To achieve or accomplish an object,
- Planning or making a scheme or gathering means in order to accomplish the said object,
- Agreement and understanding between two or more persons whereby they commit to co-operate in order to accomplish the said object by effectual means, and
- “In the jurisdiction where the statute required an overt act.”
The primary essence of criminal conspiracy is thus an unlawful combination to commit an offence. Generally, the offence of conspiracy is complete when the combination is framed. As an exception, however, there may be instances wherein the statute may require an overt act. But the general rule as necessarily flowing from the definition is that no overt act needs to be done in furtherance of the conspiracy. It is also not required that the object of the conspiracy be accomplished. A very brief and precise definition was laid down by J. Subba Rao in the case of Major E.G. Barsay v. State of Bombay (see here) wherein he said that conspiracy is about an agreement to break the law and that the parties to such agreement are guilty of criminal conspiracy even if the illegal act agreed upon has not been committed. He continued that it is not necessary that every member of the conspiracy must agree to commit a single act; it may comprise of several acts as well.
Conspiracy has two more parts to be analyzed. They may be discussed under the following headings:
- Membership and Participation– It is not mandatory that all the conspirators must know each other or even every detail of such conspiracy. What is required is that there should be unity of object and that there may be a plurality of means which may, at times, be unknown even among the conspirators. Every conspirator has his own role to play even though he may be unaware of the bigger picture. A common question may arise as to the liability of persons who joined the conspiracy later. What would be their liability? Would they be liable for the entire scheme of conspiracy or only after he joined? The law is well-settled on this point. The Supreme Court in State v. Nalini (see here) held that it is not necessary that a conspirator should be a participant ever since its inception or that he should be a member of such conspiracy until it ends. “…some may join the conspiracy after the time and some others may quit from the conspiracy…when 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.”
- Timing of Conspiracy – For the offence of conspiracy, it is necessary that there should be some form physical manifestation of the agreement. What the Court looks for is that the intention or thoughts sharing the unlawful design should be shared with other conspirators and that may be sufficient. While clarifying the meaning of “physical manifestation”, the courts have said that it is not the same as “overt act.” The starting point, therefore, is the time when the intention is communicated. However, it should be clear that this offence doesn’t take place if it is only the intention of two or more persons. It is important that such intention should be communicated and merely because the design to accomplish the object is in intention only, it is not indictable. It is only when such persons as forming part of the conspiracy agree to carry out into effect that the plot itself is indictable. As for the termination, conspiracy is a continuing offence as long as the conspiracy is still in existence/operation. The agreement of conspiracy terminates when the performance is completed or the agreement is abandoned or if the agreement is frustrated.
- Agency – The theory of agency is one of the most important points to establish conspiracy and the liability of co-conspirators. Agency in a conspiracy is understood as: the act of one conspirator in furtherance of the common intention binds the other co-conspirators. However, there has been a debate about whether the non-participating co-conspirators are liable for the substantive offences committed by those who actually commit the offence. The Supreme Court did not widen the scope of agency to that extent and, in fact, restricted it by saying that the non-participating conspirators cannot be held liable or the offences committed by other conspirators. The Supreme Court held that a non-participating conspirator could not be held liable for a substantive offence which was not committed by him. As for the conspirator who actually carried out the plan and committed the act to accomplish the object, such person would be liable for both, for conspiring as well as for the substantive offences.“Thus conspirators are liable on an agency theory for statements of co-conspirators, just as they are for the overt acts and crimes committed by their confreres.”
We would now begin with the substantive discussion on the admissibility of statement of a co-conspirator. The relevant provision in this regard is Section 10 Indian Evidence Act. This section provides that anything that is said, done or written by any one of the conspirators in reference to their common intention is relevant and that it can be used against each of the conspirators. A bare reading of the section makes it amply clear that the basic underlying principle is the theory of agency.
The broad concepts under which we would analyze cases from 2018-2019 on the issue are as follows:
- Satisfying the two requirements of Sec. 10, i.e., proof of the existence of a conspiracy and applying the rule of agency for imposing liability;
- Admissibility of a statement of a co-conspirator;
- Understanding the confessional statements in cases of conspiracy.
Satisfying the requirements of Section 10
The first part of Sec. 10 necessitates that a prima facie case of conspiracy is established. After fulfillment of the first criteria, the second part of the provision “permits the use of evidence which otherwise could not be used against the accused person.” The second part would come into operation only when the first part is clearly established. Hence, before finally applying Sec. 10 Indian Evidence Act, the Court must satisfy that Sec. 120A IPC is clearly established. The Court looks for prima facie evidence that the accused was a party to the conspiracy.
Existence of conspiracy
The case of Anil Kumar & Anr. v. State of Haryana provides clarity on how the Court must be satisfied on the point that a conspiracy exists. The brief facts of the case as per the prosecution (which the Court also upheld) are that one Jasbir Singh was running a pharmacy in a nursing home belonging to his brother-in-law. While he was out to urinate and was returning, he heard a gun-shot from the room of the doctor. Thereafter, a young man was seen leaving the room while the doctor came out of his room in pain and crying for help. However, the doctor succumbed to the injuries. In his statement, Jasbir Singh recollected a past incident the accused persons Anil, Rakesh, Ajit and Naresh were involved in a heated argument with the doctor to the extent that Anil brandished his finger at the doctors’ chest and threatened to shoot him there. After being apprehended and interrogated, accused Ajit disclosed the manner in which the conspiracy was hatched and how the weapon was arranged for. He disclosed that he was called by Anup to come to Kolhapur whereat he met other co-accused Sandeep, Anil, and Rakesh.
A few days later, they went to the house of Anil, and Anup handed in the gun along with live bullets to Sandeep to be fired. Accordingly, Sandeep went to the hospital and shot the doctor. After apprehension, Anil was interrogated wherein he deposed the same thing as Ajit. Reading the statements made by other witnesses as well as the confessional statements of the accused and the recoveries made after such confessions in consonance with the FSL reports, the Court was convinced that the prosecution had proved its case against the accused that they hatched a conspiracy. The Court re-iterated that the offence of conspiracy is generally hatched in private and in secrecy wherein having direct proof in evidence is very rare and that cases of criminal conspiracy would not have strict standards of proof and can be proved by circumstantial evidence. Thus in this case, the Court relied on the following circumstantial evidence viz. motive, quality of statements of witnesses which inspire confidence, the recovery of weapon of offence, disclosure statements made voluntarily without any torture.
In another case of Gurpreet Singh and Ors. v. State of Punjab (see here), the Court was convinced that conspiracy existed. One Gurpreet Singh hatched a conspiracy along with Sajjan Singh and Prem Singh to kill his wife, Sukhwinder Kaur, and his sister Rajbir Kaur. The Court accepted that a case of conspiracy is very difficult to be proved by direct evidence, and thus, circumstantial evidences have to be proved for that. The Court considered the testimonies of various witnesses and other evidences. One P.W.2 testified that the accused Gurpreet Singh used to maltreat his cousin, and when they went to the house of the accused, he beat her in front of her brother. Sukhwinder Kaur complained to them that Gurpreet Singh was having illicit relations with another woman due to which he used to beat her and was also planning to throw her out of the house. P.W.3 testified that he saw Gurpreet Singh driving a jeep while his wife, sister, and children were also there. He stated that Gurpreet told him that his wife was ill and he had to take medicine. Thereafter, he bought juice from a hawker and offered it to his wife and sister and then telephonically invited someone. P.W.7 testified that while he was in his jeep, Gurpreet Singh, along with Sajjan Singh and Prem Singh came in and sat inside the jeep. They discussed the entire manner of committing the offence and made an extra-judicial confession. As per the conspiracy, Gurpreet Singh would take his wife and sister outside on the pretext of meeting his bua. After meeting while returning, Gurpreet offered juice to his wife and sister, which had sleeping pills in it and called the other co-accused. After driving some distance, Sajjan Singh and Prem Singh, who were already standing at a place, came in and strangulated the wife and sister of Gurpreet Singh. After killing the two ladies, Gurpreet Singh paid Rs. 10,000 each to Sajjan Singh and Prem Singh. To hide his crime, Gurpreet Singh concocted a story that his wife and sister had been killed. The Court also relied on the disclosures made by the accused and subsequent discoveries and came to the conclusion that there was a prima facie case of conspiracy.
If, on the contrary, the Court is not satisfied that the first requirement of Sec. 10 is fulfilled, it will not apply this section (Sec. 10). To explain, we should refer to the case of Farheen v. State of Gujarat (see here). In this case, the accused Farheen was in love with the deceased Devang R. Joshi. After some time of their relationship, Devang refused to marry her and said that he’d marry a Hindu girl. The prosecution, and so the Trial Court held, argued that the accused conspired with two other co-accused to murder Devang. Thereafter, she called Devang at her apartment, and the accused locked the doors, increased the volume of the T.V., and killed him. One co-accused strangulated the deceased while others continuously inflicted blows on the stomach, chest, and throat. With the intention to destroy evidence, two co-accused remained at the house to destroy evidence, and Farheen, along with two other co-accused, took the dead body in an auto-rickshaw to be thrown in the river. While they were on their way, Farheen was caught with the dead body, and the other co-accused escaped. The Court analyzed the facts and circumstances and was of the view that almost all panchas of various panchnamas had turned hostile, scientific evidences were absent, and merely because Farheen was caught with the dead body, it could not be said that the prosecution had proved its case beyond reasonable doubt. Since the prosecution failed to prove a meeting of minds or an agreement to do a criminal act, the High Court acquitted the accused.
Making co-conspirators liable for acts and statements by one conspirator
Once the prosecution has established that a prima facie case lies against the accused conspirators, it would then go on to prove as to how and why the other co-conspirator is liable. The second part of the provision mandates that if any conspirator makes any statement or does an act in furtherance of the common intention after it was first entertained, the other co-conspirators would be equally liable. The landmark authorities on this point are the famous Mirza Akbar’s case, the Parliament attack case, State of Gujarat v. Mohammed Atik and Ors (see here), and R v. Blake. In all these cases, the primary point on which liability was sought to be imposed on other co-conspirators based on the statement by a co-conspirator was that while the statement was made, the conspiracy was in existence. The key point on which Sec. 10 rests on is that the act done or statement made must “relate to the furtherance of the common object.”
The most recent case on this point is Dilip Prasad Dutta v. The State of Assam and Ors (see here) The brief facts of this case were that the petitioner was the counsel engaged by the accused (Rajesh Saikia) in some other case. His brother Ranjit Saikia appeared before the Court by impersonating the accused (Rajesh). On objection being raised, co-accused Ranjit admitted that he impersonated his brother and has appeared on his behalf on the instruction of the petitioner (counsel for Rajesh in that case). Based on this admission, the prosecution alleged both the accused persons guilty of conspiracy. The defence argued that a confession of a co-accused is not a substantive piece of evidence, whereas the prosecution argued that the co-accused Ranjit had admitted to the fact that he impersonated his brother upon the instruction of the petitioner and that the confession indicates the possibility of conspiracy. The Court then referred to Sec. 10 and said that “anything said or done by a conspirator in reference to their common intention to commit an offence after the time when such intention was first entertained by any one of them, would be relevant fact as against each of the co-conspirator.”
The Court differentiated the operation of Sec. 10 and Sec. 30 of the Indian Evidence Act. It is well-settled that a confession of a co-accused under Sec. 30 is not substantive evidence against other co-accused; however, this is not true when anything said or done by a co-conspirator was with reference to the common intention to commit a crime. In the instant case there are two points that make the co-accused equally liable. Firstly, when Ranjit was impersonating his brother, the conspiracy was still afoot, i.e., he was carrying out the conspiracy to impersonate his brother in Court. So the requirement that in order to make other conspirators liable, the act done or statement made must be when the conspiracy is still in existence is fulfilled. Secondly and more importantly, the admission of impersonating his brother was made in open court and in the presence of other witnesses, including the petitioner. When the admission was made, the accused was not arrested but was present in the court in furtherance of his intention to impersonate. This satisfies the requirement that statements post-arrest are inadmissible against other co-conspirators.
Understanding confessional statements in cases of conspiracy
A brief clarification ought to be made with respect to confession u/s 27 and Sec. 10 of the Act. In Ismail Khan and Ors v. State of M.P. (see here) The court held that a confession made under Sec. 27 is admissible only against the maker and that Sec. 27 does not sanction that a statement made by one person to a police officer, while in custody, can be used as evidence against another person. To that extent, any information given by the accused at the time when the statement is recorded u/s 27 of the Act is inadmissible even u/s 10 of the Act. A confession cannot be treated as substantive evidence against a co-accused. The Court would not rely on and start with the confession of the accused; it would rather look for more corroboration to be satisfied that would lead to a conviction. “The court has to guard itself against readily accepting the statement of a conspirator against the co-conspirator. This means that the court must look for some corroboration to be on the safe side.”
- K. Hasim vs State of Tamil Nadu : AIR 2005 Supreme Court 128
- Ram Narayan Popli vs CBI : (2003) 3 SCC 641
- Major E.G. Barsay vs State of Bombay (1962) 2 SCR 195
- Yashpal Mittal vs State of Punjab [1977 (4) SCC 540]
- State vs Nalini [1999 (5) SCC 253]
- Kehar Singh & Ors. vs State (Delhi Administration) [1988 (3) SCC 609]
- Anil Kumar and Ors. vs State of Haryana (MANU/PH/0077/2019)
- State (N.C.T. of Delhi) vs Navjot Sandhu @ Afsan Guru (2005 11 SCC 600)
- Mayank Chaudhary and Ors. vs State of Haryana MANU/PH/0171/2019 (Decided on 06.03.2019)
- Gurpreet Singh and Ors. vs State of Punjab MANU/PH/0105/2019 (Decided on 11.02.2019)
- Farheen vs State of Gujarat MANU/GJ/0124/2018 (Decided on 29.01.2018)
- Mirza Akbar’s case MANU/PR/00371940
- State of Gujarat vs Mohammed Atik and Ors MANU/SC/0267/1998
- R vs Blake MANU/PR/0037/1940
- Dilip Prasad Dutta vs The State of Assam and Ors MANU/GH/0198/2019
- Ismail Khan and Ors vs State of M.P. MANU/MP/0298/2019 (Decided on 30.05.2019)
- Kusal Toppo vs State of Jharkhand MANU/SC/0933/2018
- Rupchand Rajmalji Jain vs Jayantilal Kalyanji Gada and Ors. MANU/MH/0338/2018 (Decided on 22.02.2018)
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