“What makes the joint action of a group of ‘n’ persons more fearsome than the individual actions of those ‘n’ persons is the division of labour and the mutual psychological support that collaboration affords.”
-Bad Acts and Guilty Minds: Conundrums of the Criminal Law
Conspiracy is an ‘inchoate’ offence. It is an independent offence and can be charged even if the intended offence is not committed or attempted. If two people, for example, plan the joint robbery of a store, they can be liable for conspiracy despite not carrying out the robbery. While the substantive crime is robbery, the conspiracy to commit robbery is inchoate as it has not been accomplished.
In India, conspiracy was initially considered as only a civil wrong, but later on it was brought under the ambit of Indian Criminal Law. Conspiracy was not an offence under the Indian Penal Code, 1860 (hereinafter referred to as the IPC) until the Criminal Law Amendment Act of 1913 was passed which incorporated, Sections 120A and 120B in the IPC.
Section 120A IPC as contained in Chapter V-A defines the offence of criminal conspiracy. It states that when two or more persons agree to do or cause to be done an illegal act, or, an act, which is legal by illegal means, such an agreement is designated as “criminal conspiracy”. It then provides an exception to the effect that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is committed by one or more parties to such agreement in pursuance thereof. The explanation appended to the Section clarifies that it is immaterial whether the illegal act is the ultimate object of such agreement or is merely incidental to that object.
Section 120-B, IPC provides punishment for committing the offence of criminal conspiracy. It provides that whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life, or rigorous imprisonment for a term of two years or upwards shall be punished in the same manner as if he had abetted such offence provided there is no express provision made in the Code for punishment of such conspiracy. Sub-section (2) of Section 120-B, IPC, however, provides that a person who is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with an imprisonment of either for a term not exceeding six months or with fine or both.
Reading of Section 120-A and Section 120-B, IPC conjointly elucidates that an offence of “criminal conspiracy” is a separate and distinct offence. Therefore, in order to constitute a criminal conspiracy and to attract its rigour, two factors must be present in the case on facts:
Firstly, an agreement between two or more persons, and
Secondly, agreement must relate to doing or causing to be done either (a) an illegal act; or (b) an act which is legal in itself but is done by illegal means.
However, if the agreement is not an agreement to commit an offence, it does not amount to criminal conspiracy unless it is followed up by an overt act done by one or more persons in furtherance of such agreement. The offence is complete as soon as there is meeting of minds and unity of purpose between the conspirators to do that illegal act, or legal act by illegal means. It is undoubted that the general conspiracy is distinct from number of separate offences committed while executing the offence of conspiracy. Each act constitutes separate offence punishable, independent of the conspiracy.
“A conspiracy is seldom born of ‘open covenants openly arrived at.” It may therefore be difficult to adduce direct evidence of the same. Keeping that in mind, the Courts in India have given the prosecution a broad discretion in offering its case.
For an offence under Section 120B, 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 can be only proved largely from the inference drawn from acts or illegal omissions committed by the conspirators in pursuance of a common design. The prosecution will also more often rely upon circumstantial evidence. It is not necessary to prove actual meeting of conspirators. Nor it is necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design is sufficient. Surrounding circumstances and antecedent and subsequent conduct of accused persons constitute relevant material to prove charge of conspiracy [See Shivnarayan Laxminarayan Joshi v. State of Maharashtra, AIR 1980 SC 439; Mohammad Usman Mohammad Hussain Maniyar v. State of Maharashtra, AIR 1981 SC 1062; and Kehar Singh v. State, AIR 1988 SC 1883].
In Yogesh @ Sachin Jagdish Joshi v. State of Maharashtra [(2008) 6 SCALE 469], the Hon’ble Apex Court held that:
“The existence of the conspiracy and its objective can be inferred from the surrounding circumstances and the conduct of the accused. But the incriminating circumstances must form a chain of events from which a conclusion about the guilt of the accused could be drawn. It is well settled that an offence of conspiracy is a substantive offence and renders the mere agreement to commit an offence punishable even if an offence does not take place pursuant to the illegal agreement.”
In the case of Hanumant Govind Nargundkar v. State of M.P [1953 CRI.L.J. 129], the Apex Court has held that while appreciating the circumstantial evidence the following needs to be ascertained by the Court:
(1) whether the circumstances are fully established;
(2) the circumstances should be conclusive in nature and it should exclude every other hypothesis than the hypothesis which is to be proved; and
(3) the chain of circumstances should be so complete that it does not leave reasonable ground for conclusion consistent with innocence of the accused.
Thus, an agreement may be shown by wholly circumstantial evidence, and the individual’s intent to join the agreement can be demonstrated by “circumstances altogether inconclusive which may, by their number and joint operation be sufficient to constitute conclusive proof.”
The traditional view of conspiracy law has always been that the added group danger justifying this crime was based upon an agreement linking two or more willing criminal partners together. In many situations, however, only one party may be a willing participant while the other is simply one who feigns agreement. In such a situation, the question arises as to whether only the “true” conspirator should be guilty for the offence of conspiracy.
To address the said question, Section 10 of Indian Evidence Act, 1872 may be examined, which states that:
“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.”
In other words, anything said/done/written by a conspirator related to the “common intention” of all conspirators, after such ‘intention’ (to commit the conspiracy) was first entertained by them, is a relevant fact against each of the co-conspirators. This principle is based on to the ‘principle of agency’ where each conspirator is held liable for anything said/done/or written by his fellow co-conspirators in furtherance of their common intention to commit the conspiracy.
Section 120B and conviction of a single accused: “A person cannot conspire with himself”
As per the definition of Criminal Conspiracy as provided in Section 120-A of IPC, one person cannot be held guilty for criminal conspiracy and there must exist an involvement of at least two or more person.
The said principle was laid down in the landmark case of Topan Das v. State of Bombay, [AIR 1956 SC 33], wherein it was held that under section 120B IPC for criminal conspiracy when all except one of the accused are acquitted, conviction of remaining accused is illegal. Herein, the Appellant along with the other three named accused (acquitted) were charged under section 120B read with sections 471 and 420, IPC, 1860 for conspiring to use forged documents and thereby induced the Controller of Imports to grant import licenses. The magistrate acquitted all the accused. But the High Court, on State appeal, reversed the order of acquittal of the appellant and convicted him for the substantive offence as well as conspiracy to commit such offences under section 120B, IPC but maintained acquittal of others. The Hon’ble Supreme Court concluded that, the Appellant could not be convicted of the offence under section 120B, IPC when his alleged co-conspirators were acquitted of the offence. When all the accused, except one, are acquitted of the charge, the remaining one cannot be convicted, unless the charge against him has been that he conspired to commit an offence not only with the acquitted co-accused but also with some other persons who have not been tried because the offender happens to be absconding or is insane or is a minor below seven years of age, or because of any other reason and such a charge is proved. The appeal was allowed and the conviction was set aside.
In Bimbadhar Pradhan v. State of Orissa [MANU/SC/0024/1956], the Court distinguished the case from Topandas (supra) and other similar rulings observing that in those cases the only persons alleged to have been guilty of the offence of criminal conspiracy were the persons placed on trial. However, in the instant case, besides the other accused persons who were acquitted, there was one Approver who led the evidence for establishing the case u/s 120B against the Appellant. Thus, despite the acquittal of the other accused persons, the Appellant’s conviction was not set aside.
In Vinayak v. State of Maharashtra [MANU/SC/0136/1984], argument on lines of Bimbadhar (supra) judgment was not raised by the State and hence Topandas was followed.
In Brathi v. State of Punjab [MANU/SC/0071/1991], the Court discussed the principles governing conviction of a single accused in cases concerning offences under section 34, 149 and 120-B of the IPC. The Court reiterated that the essence of these offences is not in conviction of a requisite number of persons, but in proof of fact beyond reasonable doubt that the requisite number of persons were involved.
Hence, for setting aside a conviction under section 120-B on the ground that all other co-accused persons have been acquitted, it needs to be shown that the offence of conspiracy was not committed by the Appellant/Petitioner/accused before the Court, in agreement with others like Approver, unknown accused/suspects, etc. Once it is shown that the charge of conspiracy against such accused is based on the same evidences as the other co-accused who have been acquitted and that the facts do not disclose commission of conspiracy (with others), the conviction under section 120-B is liable to be set aside as a person cannot conspire with himself.
Participation and Punishment: Acts/Omissions of the Co-conspirators
Coming to the principle of agency in criminal conspiracy, it is well established that the co-conspirators can be punished for the actions/omissions of one or more of them despite the fact that the said act/omission was not committed by all of them personally. In the State of H.P. v. Krishna Lal Pradhan [1987 AIR (SC) 773], it was observed that if pursuant to the criminal conspiracy the conspirators commit several offences, then all of them will be liable for the offences, even if some of them had not actively participated in the commission of the offences. It can be understood that principle of agency as introduced by Indian Evidence Act, 1872 makes it evident that the act done by one conspirator is admissible against the co-conspirators.
In Ram Narayan Popli v. CBI [(2003) 3 SCC 641], while dealing with the conspiracy the majority opinion laid down that:
“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. Thus, 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.”
Further in the case of State v. Nalini [1999 (5) SCC 253], Hon’ble Justice S.S.M. Quardri, after a survey of existing case laws, made the following pertinent observation:
“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.”
Let us understand this principle through an illustration. Let’s assume that a criminal conspiracy was hatched between A, B and C to eliminate X and to give effect to the plan, B employed D a contract killer to execute the murder of X. Pursuant to the above plan, A, B and C drove D to X’s house where D caused the murder of X by shooting him at point blank range. Even though A, B and C have not committed the overt act of murder the following charges would be framed against:
A – 1st Charge under Section 302 read with Section 120B of IPC
B – 1st Charge under Section 302 read with Section 120B of IPC
C – 1st Charge under Section 302 read with Section 120B of IPC
D – 1st Charge under Section 302 + 2nd Charge under Section 302 read with Section 120B of IPC
In a scenario if the murder does not occur, they may still be guilty of conspiracy to commit murder and be charged under Section 120B, IPC as conspiracy in itself is a substantive offence, if the evidence shows that they deliberated and committed an overt act in furtherance of their agreement. Herein the charges will be framed as under:
A – 1st Charge under Section 307 read with Section 120B of IPC
B – 1st Charge under Section 307 read with Section 120B of IPC
C – 1st Charge under Section 307 read with Section 120B of IPC
D – 1st Charge under Section 307 + 2nd Charge under Section 307 read with Section 120B of IPC
Conversely, if their attempt was a spur-of-the-moment decision and not a product of prior deliberation, and if X survives the assault, they would be guilty of attempted murder but not conspiracy to commit murder. If their attempt succeeds in the latter scenario, they would be guilty of murder and charged under Section 302, IPC alone.
According to the Principle of agency, pursuant to the criminal conspiracy if the conspirators commit several offences, then all of them will be liable for the offences even if some of them had not actively participated in the commission of the offences. The essence of this principle is that it deters crime by increasing penalties for those who join conspiracies. If potential criminals have adequate advance knowledge of the penal provisions, they assume the risk that they will be held criminally liable for the actions of their co-conspirators, even when those actions fall outside the scope of the criminal agreement. Thus, this extended liability serves a cautionary role meant to deter criminal behaviour.
Advocate Puja Jakhar and Advocate Suruchi Jaiswal are Junior Counsels at BlackRobe Chambers.