A conspiracy, also known as ‘plot’, is a agreement or a secret plan between two or more persons for an illegal or harmful purpose, like murder, fraud, treason etc., while keeping said agreement a secret from the public.
In Criminal Law, a conspiracy is an agreement between two or more persons to commit a crime at some point in the future.1
When it comes to criminal law in certain countries or for some conspiracies, an overact, ie., an illegal act which can be clearly proven by evidence and from which criminal intent can be inferred, as opposed to a mere intention in the mind to commit a crime.2
Conspiracy is an inchoate crime because it does not require that the illegal act have been completed. For instance, a group of individuals can be convicted of conspiracy to commit burglary, even if the actual burglary never happens. Conspiracy is also unique in that, unlike an attempt, a defendant can be charged with both conspiracy to commit a crime, and the crime itself if the crime is completed.3SECTION 120-A- DEFINITION OF CRIMINAL CONSPIRACY
When two or more persons agree to do, or cause to be done,-
- An illegal act, or
- An act which is not illegal by illegal means, such as 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.
Explanation: It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.
In K. Hasim v State of Tamil Nadu4, it was observed that,
The essence of a criminal conspiracy is the unlawful combination and ordinarily the offence is complete when the combination is framed. From this, it necessarily follows that unless the statute so requires, no overt act need to be done in furtherance of the conspiracy, and that the object of the combination need not be accomplished, in order to constitute an indictable offence. Encouragement and support which co-conspirators give to one another rendering enterprises possible, which if left to individual effort, would have been impossible, furnishing the ground for visiting conspirators and abettors with condign punishment.
Offence of criminal conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act by unlawful means. So long as such a design rests in intention only, it is not indictable. When two agreed to carry it into effect, the very plot is an act itself, and an act of each of the parties, promise
4 AIR 2005 SC 128
against promise, actus contra capable of being enforced, if lawful, and punishable if for a criminal object or for use of criminal means.
Furthermore, acts subsequent to the achieving of the object of conspiracy may tend to prove that a particular accused was party to the conspiracy. Once the object of the conspiracy has been achieved, any subsequent act, which may be unlawful, would not make the accused a part of the conspiracy like giving shelter to an absconder.
THE INGREDIENTS OF CRIMINAL CONSPIRACY-
- There must an agreement between the persons
- That the agreement should be
- For doing of an illegal act, or
- For doing by illegal means an act which may not itself be illegal. Meeting the mind of two or more persons for doing or causing to be done an illegal act or act by illegal means is sine qua non (an essential condition) of criminal conspiracy.
The most important ingredient of the offence being, the agreement between two or more persons to do an illegal act. In a case law where criminal conspiracy is alleged, the court must inquire whether the two persons are independently pursuing the same end or they have come together to pursue the unlawful object. The former does not render them as the conspirators but the latter does.
For the offence of conspiracy some kind of physical manifestation of agreement is required to be established. The express agreement need not be proved. The evidence as to transmission of thoughts sharing the unlawful act is not sufficient.
ESSENTIAL ELEMENTS OF CRIMINAL CONSPIRACY-
- That there must be an agreement or understanding between two or more persons who are alleged to conspire, whereby they become definitely committed to co-operate for the accomplishment of the object by the means embodied in the agreement, or by any effectual means; and
- An object to be accomplished; and
- A plan or a scheme embodying means to accomplish that object; and
- In the jurisdiction where statute required an overt act.
The essence of a criminal conspiracy is the unlawful combination and ordinarily the offence is complete when the combination is framed no overt act need be done in furtherance of the conspiracy, and that the object of the combination need not be accomplished, in order to constitute an indictable offence. Law making conspiracy a crime is designed to curb immoderate power to do mischief which is gained by a combination of the means. The encouragement and support which co-conspirators give to one another rendering enterprises possible which, if left to individual effort, would have been impossible, furnish the ground for visiting conspirators and abettors with condign punishment. The conspiracy is held to be continued and renewed as to all its members wherever and whenever any member of the conspiracy acts in furtherance of the common design.
TWO OR MORE PERSONS NEEDED
To constitute the offence of criminal conspiracy there must be an agreement of two or more persons to do an act which is illegal or which is to be done by illegal means for one cannot conspire with oneself.
In the case of Topandas v. State of Bombay5, which has been cited by the Supreme Court with approval in Haradhan Chakrabarty v. Union of India6, it was laid down that “two or more persons must be parties to such an agreement and one person alone can never be held guilty of criminal conspiracy for the simple reason that one cannot conspire with oneself.”
However, the question for a single person being convicted for an offence of conspiracy was considered in Bimbadhar Pradhan v. The State of Orissa7, and held that “ it is not essential that more than one person should be convicted of the offence of criminal conspiracy. It is enough if the court is in a position to find that two or more persons were actually concerned in the criminal conspiracy.”
It is not necessary that every one of the persons, agreeing to do the illegal act or acts, should be capable, in law, of committing an offence in respect of that act. It is not an ingredient of criminal conspiracy that all the parties should agree to do a single illegal act. It may comprise the commission of a number of acts8. However, where several persons are charged with the same conspiracy, it must be proved that there is one large conspiracy involving all the persons charged and not a number of unrelated conspiracies entered into by different groups of the accused. The unity of will and purpose amongst all the accused must be proved; and an accused not shown to be a member of a large conspiracy is entitled to acquittal, however bad his record may be and, however, he may be suspected of this or that offence. Where it cannot be said that everyone of the accused was in agreement to do the same illegal act or cause the same illegal act to be done, they cannot be held to have been parties to one and the same conspiracy within the meaning of this section.
AGREEMENT IS THE GIST OF OFFENCE
Meeting of mind is essential to constitute the offence of criminal conspiracy. Mere knowledge or discussion is not sufficient. It is the intention to commit crime and joining hands with a person having the same intention. Not only the intention but the presence of an agreement to carry out the object of the intention, is an offence.
5 AIR 1956 SC 33 : 1956 Cr LJ 138
6 AIR 1990 SC 1210 : 1990 Cr LJ 1246 : (1990) 2 SCC 143
7 AIR 1956 SC 469
8 Major Barsay v. State of Maharashtra, AIR 1956 BOM 354
It was stated in the case of R Venkatakrishna v. CBI 9 that, “In the absence of an agreement, a mere thought to commit a crime does not constitute the offence.” The offence of conspiracy is a substantive offence. The meeting of the mind to form a criminal conspiracy has to be proved by adducing substantive evidence, in cases where the circumstantial evidence is incomplete or vague. It renders the mere agreement to commit an offence punishable even if no offence takes place pursuant to the illegal agreement.
A distinction is drawn between an agreement to commit an offence and an agreement of which either the objects or methods employed are illegal but do not constitute an offence. In the case of the former, the criminal conspiracy is completed by the act of agreement; in the case of the latter, there must be some act done by one or more of the parties to the agreement to give effect to the object thereof, that is, there must be an overt act.
An express need not to be proved. Evidence relating to transmission of thoughts leading to sharing of thought relating to the unlawful act is sufficient.
PROOF OF CONSPIRACY
- As conspiracies are always hatched in secrecy, a direct evidence to prove conspiracy is rarely available. It is therefore impossible to adduce direct evidence of the same. The offence can only be proved largely from inferences drawn from acts or illegal omissions committed by the conspirators in pursuance of a common design.
- Conspiracy is generally a matter of inference to be deduced from special acts or illegal omissions of the accused done in pursuance of the common intention of the conspirators and the apparent criminal purpose in common amongst them. There must be some evidence on record which establishes such a common design.
- As direct evidence is generally difficult to adduce in cases involving conspiracy, circumstantial evidence is depended upon by the prosecution, relying on evidence of
9 (2009) 11 SCC 737
acts of various parties to infer that they were done in reference to their common intention.
- It is not necessary to prove that the perpetrators expressly agreed to do or cause to be done, an illegal act as the agreement could be proved by necessary implication.
- Conspiracy can be proved using circumstantial evidence as it is the only type of evidence that is normally available to prove conspiracy.
- The condition for accessing the evidence of co-conspirators, as laid down in Section 10 of the Evidence Act,1872 are:
- There should be prima facie evidence regarding the involvement of two or more people in forming an agreement;
- Then, anything said, done or written by any one of them in reference to the common intention will be evidence against the other; and
- Anything said, done or written by the conspirator after the common intention was formed by any of them would be admissible.
SECTION 120-B- PUNISHMENT OF CRIMINAL CONSPIRACY
The section prescribes punishment for two offences of varying gravity, viz (a) criminal conspiracy as such, and (b) criminal conspiracy to commit an offence punishable with at least two years or more of rigorous imprisonment.
According to Indian Penal Code section 120-B is defined as under,
- 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.
- 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.
It is settled law that for an offence under this section, the prosecution need not necessarily prove that the perpetrators expressly agreed to do or cause to be done the illegal act; the agreement may be proved by necessary implication. The offence of conspiracy to commit a crime is different from the crime and the object of conspiracy, because the conspiracy precedes the commission of crime, and is complete before the crime is attempted or completed; equally the crime attempted does not require the element of conspiracy as one of the ingredients.
In State of Bihar v. Kailash,10 where there were two rations in the town of Patna – one standing on the name of respondent Kailash Prasad Singh and other in the name of respondent Shyam Sunder Singh. Respondent Adya Prasad was the Munshi of the first shop while respondent Ragho Prasad was the Munshi of the latter shop. Respondent Ambika Prasad was a helper of Adya Prasad. Occasionally he worked for the other shop also. The case against the respondents was that between October 1952 and February 1954 they conspired to cheat the Ration Office at Patna by presenting forged challans and obtaining ration authorities on the basis of those forged challans and thereafter taking delivery of grains from the Government godowns. The accused was the license holder of a shop and there was evidence that he used to visit the offices. However, it was not proved that he filed any of the fabricated challans. The only circumstance against him was that he knew of the passed challans and must have been benefited by the fraud. Therefore, the evidence of his being a member of the conspiracy consisted of the commission of the offences themselves by others. The court held that it could not be said that the charge of conspiracy had not been proved against him.
In Sushil Suri v. Central Bureau of Investigation11, The Supreme Court held that where two Chartered Accountants had dishonestly and fraudulently opened several fictitious accounts in some banks with an intention and object to facilitate bank finance for the purpose other than
10 AIR 1961 Pat 451
11 AIR 2011 SC 1713
stated in the loan application. The accused persons submitted to the bank, fake and forged invoices of the fictitious/non-existent supplier. The essential ingredient of criminal conspiracy is agreement to commit offence between accused and the commission of crime alone is enough to bring about a conviction under section 120B. The appellant with Directors and Chartered Accountant defrauded revenue and in the process cheated the public exchequer of crores of rupees and were convicted under section 120B, 420, 409 and 471.
In Hira Lal Hari Lal Bhagwati v CBI12, it was stated that, to bring home the charge of criminal conspiracy with the ambit of section 120-B, it is necessary to establish that there was an agreement between the parties for doing an unlawful act. It is difficult to establish it by direct evidence.
The offence under this section is non-cognizable, bailable and triable by Magistrate of the first class.
A HISTORY OF THE LAW OF CONSPIRACY IN INDIA
Originally the 1860 code contained only two provisions by which conspiracy was made punishable, namely, conspiracy by way of abetment (Section 107), and conspiracy involved in certain offences for example a thug (section 310), gang of dacoits (Section 400) or thieves (Section 401). Thus,in the law, as it originally existed, some overt act by way of furthering the object of the conspiracy on the part of the accused was a prerequisite for imposing criminal liability against them.
In Mulcaby v. R13, it was ruled that,
“A conspiracy consists not merely in the intention of two or more but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means. So as long as such a design rests in intention only, it is not indictable. When two agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties, promise
12 2003 SCC(Cri) 1121
13 (1868) LR 3 HL 306
against promise actus contra actum capable of being enforced if lawful, punishable if for a criminal object or for the use of criminal means”
This judgment introduced in English Common Law, the principle that a mere agreement of two or more persons to do an unlawful act or a lawful act by unlawful means was sufficient to attract liability under conspiracy, even if no specific overt act had been committed.
Accordingly the Indian Penal Code, 1860 was amended in 1870 by inserting section 121-
A. To assimilate the law of criminal conspiracy in India with that of England, the Indian Criminal Law (Amendment) Act of 1913 added chapter V-A with sections 120-A and 120-B to the Indian Penal Code, 1860.
With the inclusion of Sections 120-A and 120-B, the IPC now encompasses the law of conspiracy to cover the following:
- Conspiracy as a substantive offence (Chapter V-A: Sections 120-A and 120-B);
- Conspiracy as a form of abetment (Chapter V Section 107 Secondly);
- Conspiracy to wage, attempt to or abet war against the Government of India (Chapter VI, Section 121-A); and
- Involvement in special offences (Chapter XVI : Sections 310 and 311; Chapter XVII Sections 400, 401 and 402);
- Abetment by conspiracy (Section 107, secondly);
- Conspiracy to commit an offence; and
- Conspiracy to do an illegal act.
The offence of criminal conspiracy is an exception to the general law where intent alone does not constitute crime. It is the intention to commit crime and joining hands with a person
having the same intention. Not only there has to be intention but, there has to be an agreement to carry out the object of the intention, which is an offence. It would not be enough for the offence of conspiracy when some of the accused merely entertained a wish, howsoever, horrendous it may be, that offence be committed. A charge of conspiracy may prejudice the accused because it is forced them into a joint trial and the court may consider the entire mass of evidence against every accused. It has been said that a criminal conspiracy is a partnership in crime, and that there is in each conspiracy a joint or mutual agency for the prosecution of a common plan. Thus, if two or more persons enter into a conspiracy, any act done by any of them pursuant to the agreement is an contemplation of law, the act of each of them and they are jointly responsible thereof. This means that everything said, written or done by any of the conspirators in execution or furtherance of the common purpose is deemed to have been said, written or done by each of them. And this joint responsibility extends not only to what is done by any of the conspirators pursuant to the original agreement but also to collateral acts incident to and growing out of the original purpose. A conspirator is not responsible, however, for acts done by a co-conspirator after termination of the conspiracy.