LAW OF CRIMES-II

FACULTY OF LAW
Assignment on
Criminal Conspiracy.

Mirza Azhar Hussain

IInd Year
B.A.LLb(hons) self-finance
Roll no. 29
En. No. 16-5180

Under supervision: Mr. Aquib Husain.

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 INTRODUCTION

Though 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 (IPC) until the Criminal Law Amendment Act of 1913 was passed which added
the sections 120-A and 120-B to the IPC.

However, the following definition has been suggested by the Law Commission of India
for Criminal Conspiracy–

When two or more persons agree to commit an offense punishable with death, imprisonment
for life, or imprisonment of either description for a term of two years or upwards, or to cause
such an offense to be committed, the agreement in designated a criminal conspiracy.

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 Acknowledgement

It gives me immense pleasure and gratitude to thank my Law of Crimes teacher, Mr. Aquib
Husain, who gave me the golden opportunity to do this wonderful project which helped me in
doing a lot of research and I came to know about so many new things. I am really thankful to
him for enlightenment of a perfect way to do a legal research and how to compile a huge
rigmarole of work into a nutshell.
Secondly, I would also like to thank my class fellows and friends who helped me a lot in
finalizing this project within the limited time frame.

Yours sincerely,
Mirza Azhar Hussain.

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 CRIMINAL CONSPIRACY
I
"The crime of conspiracy" remarks Russell, "affords support for any who advance the
proposition that criminal law is an instrument of government."1 The opportunity, which the
vagueness of this crime can offer, to governmental oppression has been recognized by an
independent judiciary conscious of the need to preserve the liberty of the subject. As
Fitzgerald, J., said, "The law of conspiracy is a branch of our jurisprudence to be narrowly
watched, to be zealously regarded and never to be pressed beyond its true limits."2 The abuse,
of the law of criminal conspiracy in the hands of Government creates a genuine fear in all
minds. Prof. Sayre writes, "A doctrine so vague in its outlines and uncertain in its fundamental
nature as criminal conspiracy lends no strength or glory to the law; it is a veritable quicksand
of shifting opinion and ill-considered thought."3 He further emphasizes that, "it would seem,
therefore of transcendent importance that judges and legal scholars should go to the heart of
this matter, and with eyes resolutely fixed upon justice, should reach some common and
definite understanding of the true nature and precise limits of the elusive law of criminal
conspiracy."4
The above remarks may also apply with equal emphasis to the law of criminal conspiracy in
India. There is close affinity between the Indian and the English law of Criminal conspiracy.
As the crimes are on the rise, the law relating to conspiracy has been revalued and expanded in
recent years.5

1. Russell on Crimes, vol. 1 (11th Ed.) p. 213.

2. Irish State Trials (1867) quoted in Russell, id. at 216.
3. Sayre: 'Criminal Conspiracy', 35 Harv. L.R. p. 393.
4. Id. at 394.
5. The cases of assassinations of Indira Gandhi, General Vaidya and Rajiv Gandhi had,
in some form or other, element of conspiracy.

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 II
Conspiracy in common law started its career primarily as a civil injury6 but was later
punishable on an indictment.7 In its earliest meaning conspiracy was the agreement of persons
who combined to carry on legal proceedings in a vexations or improper way.8 The Star
Chamber gave it a more concrete form.9 and the agreement was indictable as a substantive
offence even when no act was done in pursuance of it. However, the gradual evolution of the
law of conspiracy, its widened scope and general application can be discerned in close
association with the law of principal and accessory.10 The Star Chamber gave it a more concrete
form and such an agreement was made a substantive offence even when no act was done in
pursuance of it.11 In English law, "if two or more persons agree together to do something
contrary to law, or wrongful and harmful towards another person, or to use unlawful means in
the carrying out of an object not otherwise unlawful, the persons who so agree commit the
crime of conspiracy."12

No overt act in pursuance of the conspiracy is necessary, the illegal combination itself being
the gist of the offence. The overt acts which may follow the conspiracy form, of themselves,
no part of the conspiracy.13 In Mulcahy v. R.14 the House of Lords stated, "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 by unlawful means. So long as such a design rests in intention only it is only
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 against promise actus contra actum capable of being enforced if
lawful, punishable if for a criminal object or for the use of criminal means."

After the judgment of the House of Lords in the case of Mulcahy v. R.15, The IPC was amended
in 1870 as to insert S. 120-A IPC. Chapter V-A has been introduced in the code by the Criminal
Law Amendment Act (8 of 1913). The object of the amendment was to prevent the commission
of crime by nipping them in the bud.16 Apart from conspiracy, there are two more categories
of inchoate offences in common law; attempt and abetment. However, conspiracy is one of the
most complicated laws.17 The law of conspiracy, actually, may seem somewhat arbitrary.18

6. 28 Edw. 1. C. 10.
7. 33 Edw. 1, C. 2.
8. Stephen, History of Criminal Law, vol. II (1883) p. 227.
9. In Polluter's case (1611) 9 Co. Rep. 55
10. Supra note 1 at 214.
11. Supra note 9.
12. Halsbury's Laws of England, (3rd Ed.) vol. 10. p. 310-11. In R. v. Parnell, (1881) 14
Cox. C.C., at p. 513
13. (1953) 2 All ER 1067 (1071).
14. (1868) LR 3 HL 306.
15. (1868) LR3 HL 306.
16. State o fA.P. v. Cheemalapati Caneswara Rao, AIR1963 SC 1850; (1963) 1 Cri L J 671.
17. PSA Piflai's Criminal Law (9th ed. 2000) p.268.
18. Ibid

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Glanville Williams writes:19 If the mere intention of one person to commit a crime is not
criminal, why should the agreement of two people to do it make it criminal? The only possible
reply is that the law (or, if you prefer, the Establishment) is fearful of numbers, and that the act
of agreeing to offend is regarded as such a decisive step as to justify its own criminal sanction.
The term conspiracy will include all combinations involving violation of the private rights
which, if done by a single, person would give a civil though not a criminal remedy against the
wrong-doer.20

However, the common law of conspiracy has not been altogether uniform.21 But so far as the
law of present day is concerned the House of Lords has declared:
(a) that the gist of conspiracy is the agreement, whether or not the object is attained.

(b) that the purpose of making such agreements punishable is to prevent the commission of the
substantive offence before it has even reached the stage of attempt, and
(c) that it is all part and parcel of the preservation of the Queen's peace within the realm.22

19. Glanville Williams, Text book of Criminal Law (2nd ed. First Indian Reprint, 1999) p. 420.
20. Supra note 12 at 505.
21. In R. v. Turner, 13 East, 228.
22. Kenny, Outlines of Criminal Law (Ed. Turner 17th Ed.) p. 89; See also Board of Trade v. Owen (1957) 2 WLR 351 at 357.

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 III
Originally the Indian Penal Code made conspiracy punishable only in two
forms viz., conspiracy by way of abetment and conspiracy involved in certain offences.23 In the
former case an act or illegal omission must take place in pursuance of conspiracy in order to
be punishable. The latter is a conspiracy by implication and the proof of membership is enough
to establish the charge of conspiracy. In abetment, under second clause of S. 107, an act or
illegal omission must take place in pursuance of the conspiracy and a mere agreement is not
enough.24 The punishment for conspiracy is the same as if the conspirator had abetted the
offence.25 The offences created by Ss. 109 and 120A are quite distinct and where offences are
committed by several persons in pursuance of a conspiracy it is usual to charge with those
offences as well as conspiracy to commit those offences.

However, in 1870 the law of conspiracy was widened by adding, S.121- A to the Indian Penal
Code.26 A conspiracy to commit an offence under S. 121 Indian Penal Code or to overawe the
government by means of criminal force or the show of criminal force is punishable. But to
constitute a conspiracy in such a case it is not necessary that any act or illegal omission should
have taken place.27 So far, the law of conspiracy in India required the doing of an overt act in
order to be punishable, except in respect of the offences particularized in S.121-A Indian Penal
Code. However, in 1913 Indian Criminal Law Amendment Act28 was passed as an emergent
piece of legislation which gave an extended effect to the law of conspiracy in India, by adding
Ch. V-A (Ss. 120A & 120B Indian Penal Code) to the Penal Code. The necessity to widen the
scope of the law of conspiracy has been explained in the statement of objects and reasons thus:

Experience has shown that dangerous conspiracies are entered into in India, which have for
their object aims other than the commission of the offences specified in S.121-A of the I.P.C.
and that the existing law is inadequate to deal with modern conditions. The present Bill is
designed to assimilate the provisions of the Indian Penal Code to those of the English Law with
the additional safeguard that, in the case of a conspiracy other than a conspiracy to commit an
offence, some overt act is necessary to bring the conspiracy within the purview of the criminal
law. The Bill makes criminal conspiracy a substantive offence.

23. A person is said to abet the doing of a thing by conspiracy if he engages with one or more other person
or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order
to the doing of that thing (S.107, IPC).
24. Pramatha Nath v. Saroj Ranjan, AIR 1962 SC 876.
25. Alimjan Bibi, (1937) 1 Cal 484. Quoted in Ratanlal Dhirajlal, The Indian Penal Code,
(30th ed. 2004) Wadhwa & Company.
26. Inserted by Act XXVII of 1870; S.4.
27. Sulaiman, CJ in Fhabwala v. Emperor, 1933 A.LJ.799.
28. Act VIII of 1913.
29. The word 'illegal' is applicable to every thing which is an offence or which is prohibited by law, or which furnishes ground for a civil
action; (S.43 IPC).

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Thus criminal conspiracy after 1913 has been dealt with in the Penal Code in the following
forms:
(a) where overt act is necessary; and
(b) where overt act is not necessary and an agreement per se is made punishable.
The former will include cases:

(i) where two or more persons agree to do or cause to be done and illegal29 act excluding the
commission of an offence,30
(ii) where an act which is not illegal is done by illegal means;31 and
(iii) conspiracy by way of abetment.32

In the latter instance agreement to commit an offence shall amount to a criminal

conspiracy,33 (without proof of any overt act). Under sub-sections 120-A & 120-B, the IPC
encompasses the law of conspiracy to cover the following:
(i) conspiracy as a substantive offence (chapter V-A : S. 120A & 120B);
(ii) conspiracy as a form of abetment (chapter V : S. 107);

(iii) conspiracy to wage, attempt to or abet war against the Government of India (chapter VI:
S. 121-A);

(iv) involvement in specific offences, as for example assembling for the purposes of
committing dacoity. (chapter - XVII •. Ss. 400-401).Section 120-A defines criminal conspiracy
and S. 120-B provides the punishment for it. Ss. 120-A & 120-B apply only where there is a
conspiracy between two or more persons, i.e., an agreement or meeting of the minds between
them to do an act. The definition of criminal conspiracy in S. 120-A has been taken from Lord
Brampton who defined conspiracy in a case in the year 1901.34

30. S. 120-A IPC.

31. Ibid
32. SeeS.107IPC.
33. Proviso to S. 120-A IPC.
34. (1901) AC 495.

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Lord Brampton in Quinn v. Leatham35 defined conspiracy by holding that, "if two or more
persons agree together to do something contrary to law or wrongful or harmful towards another
person or to use unlawful means in the carrying out of an object not otherwise unlawful, the
persons who so agree commit the crime of conspiracy". All conspiracies are not, however,
criminal conspiracies.36 A criminal conspiracy as defined in the section is itself a substantive
offence.37

In Lennart v. Director of Enforcement the Supreme Court observed:38" The first of the
offence defined in S. 120-A, penal code, which is itself punishable as a substantive offence is
the very agreement between two or more persons to do or cause to be done an illegal act or a
legal act by illegal means subject, however, to the proviso that where the agreement is not an
agreement to commit an offence the agreement does not amount to a conspiracy unless it is
followed up by an overt act done by one or more persons in pursuance of such an agreement.
There must be a meeting of the minds in the doing of an illegal act or the doing of a legal act
by illegal means. If in the furtherance of the conspiracy certain persons are induced to do an
unlawful act without the knowledge of the conspiracy or the plot, they cannot be held to be
conspirators though they may be guilty of an offence pertaining to the specific unlawful act.
The offence of conspiracy is complete when two or more conspirators have agreed or cause to
be done an act which is itself an offence, in which case no overt act need be established.

35. Ibid
36. W.W. Chkaley & V.B. Bakhale, AIR commentaries, The Indian Penal Code 1 (1980) p. 700.
37. AIR 1977 SC 2433 (2436): 1978 Cri LJ 189.
38. AIR 1970 SC 549 : (554, 555): 1970 Cri LJ 707. iS3L.Id. at 554-555.

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 IV
However, in the words of a learned commentator, "The Statement of objects and Reasons
appears in this respect to be inaccurate, since it goes beyond merely assimilating the criminal
law of India so that in force in England."39 Before the enactment of Ss. 120A & 120B IPC,
conspiracy was treated as an abetment. Now it has been defined separately but major
conspiracies shall still continue to be punished as abetments.40 Conspiracy can be considered
as volatile entity. It can be initiated by two or more persons. Subsequently, some more can join
it and similarly some can go out of it. So it is not necessary that a conspiracy would retain a
final character from the beginning to the end.41 A person joining the conspiracy need not
concert with all, it is enough if he concerts with one or two. It is not the commission of the
offence but just an agreement which is punishable. In criminal conspiracy as defined. in S.
120A IPC four ingredients are required: (i) an agreement between persons.
(ii) to do an illegal act.
(iii) to do a legal act by illegal means and
(iv) overt act done in pursuance of conspiracy.

In English Law only first three ingredients are required while under S. 120-A IPC, overt act in
furtherance of conspiracy is also required if the act to be done or cause to be done is not illegal
(proviso to S. 120-A IPC). In Indian Law, a distinction is drawn between an agreement to
commit an offence and an agreement of which either the object or the methods employed are
illegal but do not constitute an offence. In the case of 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 effect the object thereof that is there must be an overt
act. In English law the agreement itself is treated as overt act and no separate overt act is
necessary unless the rule is limited by statute. In Mohd. Khalid v. State ofW.B.41
and DavenderPal Singh v. State of NCT of Delhi42, the Supreme Court after referring to the
American and the English legal position on the law of conspiracy summarized the broad
essential elements of conspiracy thus:43a
(a) an object to be accompanied;
(b) a plan or scheme embodying means to accomplish that object;

(c) an agreement or understanding between two or more accused persons whereby, they
become definitely committed to corporate for the accomplishment of the object by the means
embodied in the agreement, or by any effectual means; and

39. Gour, The Penal Law (6th Ed.) vol. 1, p.508.

40. Y.P. Singh, "what is conspiracy" 1997 Cri LJ 93.
41. Ibid.
42. (2002) 7 SCC 334.
43. (2002) 5 SCC 234.
43a. Id. at 265-266.

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(d) in the jurisdiction where the statute requires, an overt act. The court further held that the
Indian law broadly conforms to the English legal position on the law of criminal conspiracy.
Thus the provisions of Ss. 120 A & 120B IPC have brought the law of conspiracy in India in
tune with the English law by making the overt act unessential when the conspiracy is to commit
any punishable offence. The provisions, in such a situation do not require that each and every
person who is party to the conspiracy must do some overt act towards the fulfillment of the
object of conspiracy the essential ingredients being an agreement between the conspirators to
commit the crime and if these essentials and requirements are established, the act would fall
within the trapping of the provisions contained in S. 120B.

The use of the word "illegal" in the definition of criminal conspiracy in S.120-A IPC is
extremely comprehensive and would make even a case of civil trespass indictable, as a criminal
conspiracy.44 In State of Maharashtra v. Somnath Thapa45 Supreme Court explained the
ingredients of conspiracy and observed:45a
To establish a charge of conspiracy, knowledge about indulgence in either an illegal act or a
legal act by illegal means is necessary. In some cases intent of unlawful use being made of the
goods or services in question may be inferred from the knowledge itself. Finally, when the
ultimate offence consists of a chain of actions, it would not be necessary for the prosecution to
establish, to bring home the charge of conspiracy, that each of the conspirators had to know of
what the collaborator would do, so long as it is known that the collaborator would put the goods
or services to an unlawful use.

Thus, even knowledge of an illegal act is enough to hold one guilty of conspiracy. But as per
the Ss. 120A and 120B it is the intent by two or more which is necessary to constitute
conspiracy. The law relating to conspiracy aims at punishing guilty intentions because no overt
act is required for the same. However, it can be inferred that mem rea is not a necessary
ingredient of the charge of conspiracy to commit an offence.

44. (i) See Note of Dissent by Pt. M.M. Malviya, to the Indian Criminal Law Amendment Bill.
(Quoted in Roy, Law Relating to Press and Sedition, pp. 48-50).
45. 1996 Cri LJ 2448: AIR 1996 SC 1744.
45a. Id. at 1749.

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The Supreme Court in State v. Nalini (Rajiv Gandhi Assasination case), dealt at length the law
of conspiracy, reviewed case law and culled out several principles governing conspiracy. On
the night of 21-5-1991 Rajiv Gandhi, the former Prime Minister of India was assassinated by
a human bomb. This incident was a result of conspiracy. Wadhwa, J laid down following broad
principles governing the law of conspiracy:46
(1) Under S. 120 -A IPC offence of criminal conspiracy is committed when two or more
persons agree to do or cause to be done an illegal act or legal act by illegal means. When it is
a legal act by illegal means overt act is necessary. Offence of criminal conspiracy is an
exception to the general law where intent alone does not constitute a crime. It is intention to
commit crime and joining hands with persons having the same intention. Not only the intention
but there has to be 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 accuse merely entertained
a wish, howsoever horrendous it may be, that offence be committed.

(2) 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 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.

(3) Conspiracy is hatched in private or in secrecy. It is rarely possible to establish a conspiracy

by direct evidence. Usually, both the existence of the conspiracy and its objects have to be
inferred from the circumstances and the conduct of the accused.

(4) Conspirators may, for example be enrolled in a chain - A enrolling B, B enrolling C, and
so on; and all will be members of a single conspiracy if they so intend and agree, even though
each member knows only the person who enrolled him and the person whom he enrolls. There
may be a kind of umbrella- spoke enrolment, where the single person at the center does the
enrolling and all the other members are unknown to each other though they know that there are
to be other members. These are theories and in practice it may be difficult to tell which
conspiracy in a particular case falls into which category. It may, however even overlap. But
then there has to be present mutual interest. Persons may be members of single conspiracy even
though each is ignorant of the identity of many others who may have diverse roles to play. It is
not a part of the crime of conspiracy that all the conspirators need to agree to play the same or
an active role.

(5) When two or more persons agree to commit a crime of conspiracy, then regardless of
making or considering any plans for its commission, and despite the fact that no step is taken
by any such person to carry out their common purpose, a crime is committed by each and every
one who joins in the agreement. There has thus to be two conspirators and there may be more
than that. To prove the charge of conspiracy, it is not necessary that intended crime was
committed or not. If committed it may further help prosecution to prove the charge of
conspiracy.

46. (1999)5 SCC 253. See also Sardar Sardul Singh Caveeshar v. State of Maharashtra, AIR 1965 SC 682.

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(6) It is not necessary that all conspirators should agree to the common purpose at the same
time. They may join with other conspirators at any time before the consummation of the
intended objective, and all are equally responsible. What part each conspirator is to play may
not be known to everyone or the fact as to when a conspirator joined the conspiracy and when
he left.

(7) A charge of conspiracy may prejudice the accused because I forced them into a joint trial
and the court may consider the entire mass of evidence against every accused. Prosecution has
to produce evidence not only to show that each of the accused has knowledge of the object of
conspiracy but also of the agreement.
In the charge of conspiracy the court has to guard itself against the danger of unfairness against
the accused. Introduction of evidence against some may result in the conviction of all, which
is to be avoided. By means of evidence in conspiracy, which is otherwise inadmissible in the
trial of any other substantive offence, prosecution tries to implicate the accused not only in the
conspiracy itself but also in the substantive crime of the alleged conspirators. There is always
difficulty in tracing the precise contribution of each member of the conspiracy but then there
has to be cogent and convincing evidence against each one of the accused charged with the
offence of conspiracy.

(8) It is the unlawful agreement and not its-accomplishment, which is the gist or essence of the
crime of conspiracy. Offence of criminal conspiracy is complete even though there is no
agreement as to the means by which the purpose is to be accomplished. It is the unlawful
agreement which is the gravemen of the crime of conspiracy. The unlawful agreement which
amounts to a conspiracy need not be formal or express, but may be inherent in and inferred
from the circumstances, especially declarations, acts and conduct of the conspirators. The
agreement need not be entered into by all the parties to it at the same time, but may be reached
by successive actions evidencing their joining of the conspiracy.

(9) It has been said that a criminal conspiracy is a partnership in crime, and 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, in
contemplation of law, the act of each of them and they are jointly responsible therefor. This
means that everything said, written or done by any of the conspirators in execution or in
furtherance of the common purpose is deemed to have been said, done or written 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 incidental 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. The joinder of a conspiracy by a new member
does not create a new conspiracy nor does it change the status of the other conspirators, and
the mere fact that conspirators individually or in groups perform different tasks to a common
end does not split up a conspiracy into several different conspiracies.

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(10) A man may join a conspiracy by word or by deed. However, criminal responsibility for a
conspiracy requires more than a merely passive attitude towards an existing conspiracy. One
who commits an overt act with knowledge of the conspiracy is guilty. And one who tacitly
consents to the object of a conspiracy and goes along with other conspirators, actually standing
by while the others put the conspiracy into effect, is guilty though he intends to take no active
part in the crime. The essence of criminal conspiracy embodied in S. 120A is the unlawful
combination and ordinarily the offence is complete when the combination is framed. For an
offence punishable under S. 120B, the prosecution need not necessarily prove that the
perpetrators expressly agreed to do or cause to be done an illegal act; the agreement may be
proved by necessary implication. The offence of criminal conspiracy has its foundation in an
agreement to commit an offence. A conspiracy consists not merely in the intention of two or
more but in the agreement of two or more. So long as a design rests in intention only, it is not
indictable. It is an established rule of the law of conspiracy that there should be at least two
persons. One person alone cannot conspire.47

However, anomalous results follow from certain cases where either one of the conspiring
parties is incapable of committing the crime or is immune or has been pardoned.48 In such cases
the desirability of punishing a mere conspiracy not followed by an overt act may be examined.
A person may be indicted alone for conspiring with persons who are unknown, dead, uncaught,
incapable of committing the crime or immune or have been pardoned.49 The rule does not apply
unless one is acquitted.50

The Criminal Law (Amendment) Act, 1977 (English), Section 5(8) provides that unless the
conviction of one of the two conspirators become inconsistent on acquittal of other, even one
of the two conspirators can be convicted prior to this Act of 1977. The Court held in Faguna
Kanta Nath v. State of Assam51 that a single person could not be convicted if all but one, have
been acquitted or mere in exempted category. In Tapandas v. State of Bombay52, the Supreme
Court held that it is a principle of common sense that one person alone can never be held guilty
of criminal conspiracy for the simple reason that one cannot conspire with oneself. The Court
further laid down that in Haradhan Chakrabarty v. Union oflndia53, that "two or more
persons must be parties to such an agreement and one person alone can never be held guilty of
criminal conspiracy..." It also appears reasonable to hold that these two persons must be natural
persons so that there could be an agreement between two or more minds. Similarly, it appears
that there cannot be any offence of conspiracy if two companies with the self- same 'one man'
director conspired to do an illegal act.54

47. Japan Das v.State ofOrissa, AIR 1956 SC 33.

48. See Duguid 75 LJKB 470; Sharp (1936) 1 All ER 48.
49. Glanville Williams, Textbook of Criminal Law, (2nd ed. 1983) p.420 to 438.
50. Duguid, 1906 WN 100 (CCR); U.S. v. Brown, (1985) F2d 397 (CA).
51. AIR 1959 SC 673.
52. AIR "1956 SC 33; U.S. v Jackson, (1982) 696, 578 F. 2d.
53. (1990) 2 SCC 143; AIR 1990 SC 1210.
54. Ratanlal Dhirajlal, supra note 25 at 191.

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A company can certainly conspire with two or more of its directors.55 It is not necessary that
each member of a conspiracy must know each other or all the details of the conspiracy.56 It is
also not necessary that every conspirator must have taken part in each and every act done in
pursuance of conspiracy.57 When one of the accused died during the pencdency of appeal,
conviction of the other under S. 120B / 468 was held to be proper.58
Where all the accused except one were acquitted, the Supreme Court ordered his acquittal
also.59 In Yamuna Singh v. State ofBihar60 under Ss. 300 and 120 IPC, a professor was killed
under a conspiracy by some persons in whose premises he was living because of his reaction
against their immoral conduct. The conviction of the accused persons was upheld on the ground
that the evidence of the approver was found trust worthy and was corroborated on material
particulars by other witnesses.61 In B. Narsimha Rao v. Govt. of A.P.62 accused - appellant was
charged with the commission of an offence in a conspiracy along with seven others. He alone
was convicted for offences punishable under Ss. 120-B, 409 and 471, IPC under section 5(1)(c)
and 5(l)(d) read with section 5(2) of the prevention of corruption Act, 1947. All the co-accused
were acquitted by the trial court and the high court. The Supreme Court set aside the conviction
of the accused on the ground that there had to be another with whom the accused would get in
communion to conspire for the commission of an offence.
In Hawala case (CBI v. V C Shukla)63 it was alleged that Jain brothers had bribed politicians
from different parties to obtain favours in matters of certain contracts. The Supreme Court after
perusal of the material placed before it held that evidence could not prove that two politicians
were parties to it. This left in the conspiracy only one other party that is Jain brothers. Hence
charges of conspiracy were not sustainable.

In P VNarasimha Rao v. State64 minority was that members of Parliament who had accepted
bribe should not be granted immunity and can be charged inter alia under S. 120-B IPC. The
gist of the offence of conspiracy is an unlawful agreement between two or more persons. In
other words, joint evil intent is necessary to constitute the offence. A mere criminal intention
formed in a man's mind is insufficient and that stage is never criminally cognisable.

55. Ibid.
56. R.K. Dalmiya,AlK 1962 SC 1821; Yashpal Mittal v. State of Punjab, 1978 C r L J 189.
57. State ofHimacbal Pradesh v. Krisban Lai Pradban), (1987) 2 SCC 17; AIR 1987 SC 773.
58. Narain Lai Nirala v. State ofRajasthan, AIR 1993SC 118.
59. Vinayak v. State of Maharashtra, AIR 1984 SC 1793.
60. AIR 1996 SC 2826.
61. See also XXXIIASIL (1996).
62. AIR 1996 SC 64.
63. AIR 1998 SC 1406.
64. Anand & Agrawal JJ, AIR 1998 SC 2120.

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"The forum of conscience alone can take notice of such cases but the municipal law can only
deal with matters and not merely with mind save as manifested by action Consistency,
therefore, required that a mere conspiracy should be considered a substantive offence only
when the object of conspiracy is so serious as the waging of war against the sovereign and other
acts of equally grave nature, and that other cases of conspiracy should be deemed an offence
only, when they fall within the definition of abetment."65

The essential ingredient of the offence of the 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 situation, criminal conspiracy is established by proving such an agreement.66

A criminal conspiracy may persist as long as the persons in agreement continue to act in
pursuance of the agreement. The conspiracy can be terminated either by abandonment,
accomplishment or detection and resultant rout by law enforcement. It is a continuing offence.
In Mogul S.C. Co. v. MC Gregor67 it was held that 'an agreement which is immoral or 65.
Huda, Principles of Criminal Law (T.L.L. p. 106-107). The Supreme Court in a decision The
State of Andhra Pradesh v. Subbaiah 1961 (2) SCJ 686 held that where the matter has gone
beyond the stage of mere conspiracy and offences are alleged to have been actually committed
in pursuance thereof the accused can be charged with the specific offences alleged to have
flown out of the conspiracy along with the charge of conspiracy. The court observed
"Conspiracy to commit an offence is itself an offence and a person can be separately charged
with respect to such a conspiracy.

There is no analogy between S. 120-B and S. 109, Indian Penal Code. There may be an element
of abetment in a conspiracy; but conspiracy is something more than an abetment. Offences
created by Ss. 109 and 120-B, Indian Penal Code, are quite distinct and there is no warrant for
limiting the prosecution to only one element of conspiracy, that is, abetment when the
allegation is that what a person did was something over and above that. Where a number of
offences are committed by several persons did was something over and above that. Where a
number of offences are committed by several persons in pursuance of a conspiracy it is usual
to charge them with those offences as well as with the offences of a conspiracy to commit those
offences.

65. Huda, Principles of Criminal Law (T.L.L. p. 106-107).

66. See S.C.Biban v. State of Bihar, AIR 1994 SC 2420.
67. (1892) AC 25.

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As an instance of this we may refer to the case in S. Swaminathan v. State of Madras." (AIR
1957 SC 340). The court, however, pointed out that it is not desirable to charge the accused
persons with conspiracy with the ulterior object of letting in evidence which would otherwise
be inadmissible and that is undesirable to complicate a trial by introducing a large number of
chargers spread over a long period. But it would only be a question oi propriety which should
be left to the discretion of the trial judge to decide in the facts and circumstances of the case.
[Ed.] against public policy or in restraint of trade, or otherwise of such a character that the
courts will not enforce it, is not necessarily a conspiracy. An agreement, to be a conspiracy,
must be to do that which is contrary to or forbidden by law, as to violate a legal right or make
use of unlawful methods, such as fraud or violence, or to do what is criminal. The agreement,
league or concert is the basis of the offence even though there must be unity of object or
purpose; there may be plurality of means, which may sometimes be unknown to others. Thus
agreement is an integral part of the offence of criminal conspiracy.68 In general conspiracy each
one is aware that he has a part to play, though he may not know all its secrets or the means by
which the common purpose is to be accomplished.69 The end does not justify the means in
criminal law. If, therefore, one conspires with another to employ illegal means to achieve a
legal purpose, one may be convicted of conspiracy.70 In a case 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
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 the transmission of thoughts sharing the unlawful act is not
sufficient. A conspiracy is a continuing offence which continues to subsist till it is executed or
rescinded or frustrated by choice of necessity. During its subsistence wherever any of the
conspirators does an act or series of acts, he would be held guilty under S. 120-B IPC.71

The Supreme Court time and again reiterated that it is not necessary that each conspirator must
know all the details of the scheme nor be a participant at every stage. It is necessary that they
should agree for a design or object of the conspiracy. Conspiracy is conceived as having three
elements;

(1) agreement;
(2) between two or more persons by whom the agreement is effected; and
(3) a criminal object, which may be either the ultimate aim of the agreement, or may constitute
the means, or one of the means by which that aim is to be accomplished.

68. Quoted in XXXV ASIL (1999) 209.

69. Yash Pal v. State of Punjab, AIR 1977 SC 2433; Hussain Umar v. Delip Singhji, AIR 1970
SC45.
70. R. C. Dikshit, "Criminal Conspiracy & Indian Penal Law" CBI Bulletin (Aug 1996) p.4.
71. 2004(3) SCALE 267 at 286.

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It is immaterial whether this is found in the ultimate objects.72 Coleridge, J
in Regina v. Murphy, observed:73 I am bound to tell you, that although the common design is
the root of the charge, it is not necessary to prove that two parties came together and actually
agreed in terms to have this common design and to pursue it by common means, and so to carry
it into execution. This is not necessary, because in many cases of the most clearly established
conspiracies there are no means of proving any such thing and neither common law nor
common sense requires that it should be proved. If you find that these two persons pursued by
their acts the same object, often by the same means, one performing one part of an act, so as to
complete it, with a view to the attainment of the object which they were pursuing, you will be
at liberty to draw the conclusion that they have been engaged in a conspiracy to effect that
object.

The question you have to ask yourselves is, had they this common design, and did they pursue
it by these common means the design being unlawful. The court held that for an offence under
S. 120-B IPC, 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.74 Thus, to establish a charge of conspiracy knowledge about indulgence in either
an illegal act or a legal act by illegal means is necessary.75

In State Delhi Admn v. V.C.Shukla76 the court observed: [I]n order to prove a criminal
conspiracy which is punishable under S. 120-B of IPC, there must be direct or circumstantial
evidence to show that there was an agreement between two or more persons to commit an
offence. This clearly envisages that there must be meeting of minds resulting in an ultimate
decision taken by the conspirators regarding the commission of an offence. It is true that in
most cases it will be difficult to get direct evidence of an agreement to conspire but a conspiracy
can be inferred even from circumstances giving rise to a conclusive or irresistible inference of
an agreement between two or more persons to commit an offence.77

Recently, Supreme Court had occasion to discuss law of conspiracy. In Esher Singh v. State
ofAndhra Pradesh nine persons were alleged to be responsible for conspiring and kill one Joga
Singh. They were charged under Ss. 120B and 302 of IPC read with S. 3(3) of TADA and S.
27 of Indian Arms Act, 1959. The trial court found accused Esher Singh guilty of the offence
punishable under S. 4 of TADA and while further holding that the other allegations were not
established so far as appellant Esher Singh and other co-accused were concerned.

72. Ajay Aggarwal v. Union of India and Others, JT 1993 (3) SC 203, para 8.
73. (1837)173 ER 502.
73a.K at 508.
74. Mohd. Usman Mohammad Hussain Maniyar and Ors. v. State of Maharashtra (1981) 2 SCC 443.
75. See State of Kerala v. P.Sugathan andAnr., 2000 (8) SCC 203; Devender Pal Singh v. State of N.C.T. of Delhi, 2002 (5) SCC 234.
76. AIR 1980 SC 1382.
77. Id. at 1390, pare 8.

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Esher Singh was convicted and sentenced to suffer rigorous imprisonment for five years and
to pay a fine of Rs. 1,000/- with default stipulation.While Esher Singh questioned the legality
of the conviction and sentence imposed, the State of Andhra Pradesh had questioned acquittal
of accused persons in appeal to the Supreme Court.

The court reiterated the elements of criminal conspiracy and observed: 78,1 Law making
conspiracy a crime, is designed to curb immoderate power to do mischief which is gained by a
combination of minds... [P]rosecution need not necessarily prove that the perpetrators
expressly agree to do or cause to be done an illegal act; the agreement may be proved by
necessary implication. Offence of criminal conspiracy has its foundation in an agreement to
commit an offence.
The court further observed :78bThe 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 is until the conspiratorial agreement is terminated by completion of its
performance or by abandonment or frustration or however it may be.

While interpreting S. 120-B, the court examined whether any act is required to convict the
parties for conspiracy. It declared that mere proof of agreement between two or more to do an
unlawful act for an act by unlawful means is enough. When two agree to carry it into effect,
the very plot is an act itself and an act of each of the parties, promise against promise, actus
contra actum, capable of being enforced, if lawful, punishable if for a criminal object or for
use of criminal means.79 In case of a criminal conspiracy, conspirators can be punished for
conspiracy though individually they may not be prosecuted for other substantive offences. A
group of friends went to bar. One of them fired at the bar mate for refusal to serve drinks. The
others stayed at the bar, however, they were unaware of the accused carrying a loaded pistol.
The court said that this could not constitute an evidence of conspiracy.80

Section 120-B provides for the punishment of offence of conspiracy. A crucial distinction
between the two provisions is that while the offence of criminal conspiracy is complete as soon
as the conspirators forge an agreement to do an illegal act or a legal thing through illegal means,
under the provision of 120-B, even those persons who are not party to the initial agreement or
did not participate in the meeting at the time of the formation of the agreement, but who
subsequently joined the conspiracy at a later point in time, are made liable for the conspiracy.
A conspirator may come and leave at any time but every such conspirator will be liable for the
subsequent acts of other conspirators.

78. 2004(3) SCALE 267.

78a./rf. at 282, para 35.
78b. Id. at 283, para 37.
79. Ram Nayak Popli v. CBI, (2003) 3SCC 641. Quoted in XXX IX ASIL (2003).
80. State v. Siddhart Vasbisth, (alias Manu Sharma), 2001 Cr LJ 2404 pel).

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In Suresh Chandra Bahri v. State of Bihar81 was convicted along with other accused with the
aid of Section 120-B. In another case of Nand Kumar v. State of Bihar82 Nand Kumar was
alleged to conspire with other accused to get LIC policies issued to receive premium
commission on the basis of fake and forged documents. However, no evidence was found to
show the knowledge and consent of the accused for the aforesaid act. The Supreme Court set
aside the conviction of the other accused.
Thus, conspiracy is an inchoate crime and is punishable primarily because an agreement to
commit a crime is a decisive act, fraught with potential dangers; but to bring an agreement to
commit a civil wrong within the range of criminal conspiracy is to stretch the rationale of law
to the farthest limit. In its broad reach it can be made to do great evil.

V
Proof: The proof of this psychological offence is little bit difficult because the facts to prove
this offence lie hidden in human minds and their expressions are always concealed in cover of
darkness or code languages.83 Although secrecy is frequently a characteristic of conspiracy, it
forms no essential element of the crime. Hence, it cannot be argued that because everything
was done openly, there could be no conspiracy in the case at all.84The court laid down in clear
terms that offence of conspiracy can be proved either by direct or circumstantial
evidence.85 Since conspiracies are not hatched in the open, by their nature, they are secretly
planned. Direct evidence in proof of conspiracy is, therefore, an exception than the rule. So,
the facts about the conspiracy are generally inferred from the circumstances before, during and
after the occurrence.86 It is not essential for agreement that the members of conspiracy meet
each other or know all the members or even majority of the members to the conspiracy. It is
also not essential that all should know all the details of conspiracy. As a matter of fact, a
criminal conspiracy has to be inferred from the circumstances and from certain criminal acts
of the parties accused, done in pursuance of an apparent criminal purpose common between
them.

81. AIR 1994 SC 2420.

82. AIR 1992 SC 1939.
83. Supra note 48 at 93.
84. ILR (1974) 1 Cal 599 (654).
85. Quinn v. Leathern, 1901 AC 495; (1900-03) All ER Rep 1 HL.
86. Quoted in XXX VIIIASIL (2002).

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There is no difference between the mode of proof of the offence of conspiracy and that of any
other offence, it can be established by direct or circumstantial evidence.87 The inferences are
normally deduced from acts of parties in pursuance of a purpose in common intention between
the conspirators.88 It was held by the court that to prove conspiracy there must be evidence
direct or circumstantial to show that there was an agreement between two or more persons to
commit an offence.89 Under S. 34 it is essential that some criminal act should have been done
in furtherance of a common intention of all the accused persons. When dacoity with murder
was committed, the court said that conviction under S.120B rule out the need for conviction
under S.34.90

The circumstances in a case, when taken together on their face value, should indicate the
meeting of the minds between the conspirators for the intended object of committing an illegal
act or an act which is not illegal by illegal means. A few bits here and a few bits there on which
the prosecution relies cannot be held to be adequate for connecting the accused with the
commission of the crime of criminal conspiracy. It has to be shown that all means adopted and
illegal acts done were in furtherance of the object of the conspiracy hatched. The circumstances
relied for the purposes of drawing an inference should be prior in point of time than the actual
commission of the offence in furtherance of the alleged conspiracy.91

The conspiracies are not hatched in open, by their nature, they are secretly planned, they can
be proved even by circumstantial evidence, the lack of direct evidence relating to conspiracy
has no consequence.92 In Bhagwan Swaroop Lai Bishan Lai v. State of Maharashtra93 it was
held that under S. 10 of IEA anything said, done or written is a relevant fact or the purpose of
proving the existence of the conspiracy and the conspirators mere members of the conspiracy.
This section introduces 'doctrine of agency'. In the case of the assassination of the then Prime
Minister of India, Smt. Indira Gandhi,94 one of the actual killers of the two conspirators were
brought to trial. One was acquitted on the ground that his guilt was not proved. About Kehar
Singh, it was proved that he was having secret talks with one of the actual killers. The facts
were sufficient to constitute prima facie evidence of conspiracy within the meaning of Section
10 of IEA.95 In this connection, the court observed:94a

87. See Bhagwan Samp Lai Bishan Lai v. State of Maharashtra, AIR 1965 SC 682.
88. 2004(3) SCALE 267.
89. V.C.Shukla v. State, (Delhi Admn), (1980) 2 SCC 665.
90. Syed Mohd.Owais v. State of Maharashtra, 2003 Cr LJ 303(Bom).
91. 2004 (3) SCALE 267.
92. See F. K.Chandrasenan v. State of Kerala, AIR 1995 SC 1066.
93. AIR 1965 SC 682.
94. Kehar Singh v. State of Punjab, AIR 1988 SC 1883.
94a. Id. at 1903, para 44.
95. Section 10 reads

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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 Indian Evidence Act was enacted. It has also been reiterated96 that the
law of criminal conspiracy is an instrument of the governmental oppression. Needless to say
that the Indian Criminal Law Amendment Act, 1913,97 was passed as an emergent piece of
legislation and this measure was motivated by political expedience.98 No efforts were made to
deal with the matter in the ordinary and regular way. It was neither circulated for opinion
among the judicial and executive officers of government nor the representative public men and
bodies were consulted.99 The result was that a piece of legislation was hurriedly, enacted and
inconsistent and unintelligible principles of law were put into action. It may be suggested that
the sweeping provision of S.120-A, IPC needs re-examination and irrationality which has
imperceptible crept into the Indian law may require elimination.100 To apply the law of criminal
conspiracy for an agreement to commit torts generally is not wholesome.101

The conspiracy to do an 'illegal act' is uncertain and covers a wide area with regard to the
commission of offences. The law also needs statutory modification in this respect and its use
may be limited to determinate heads of offences only.102

96. See supra note 1.

97. Act VIII of 1913.
98. See statement of Objects & Reasons, Indian Criminal Law amendment Bill, 193.
99. Dissenting note of Pt. M.M. Malviya (See Roy, supra note 25 at 48-50).
100. See supra note 25.
101. If deemed necessary it may be applied in cases of specific torts only; such as torts
to commit malicious prosecution, malicious defamation, to procure breach of
contract etc.
102. (a) As has been already provided in S.121-A, IPC
(b) The Draft Code of 1879 in England classified the objects of conspiracy as (1)
treasonable (2) seditious (3) to bring false accusations (4) to pervert justice (5) to
defile women (6) to murder (7) to defraud (8) to commit indictable offences (9) to
prevent by force the collection of rates and taxes.
The above recommendations were adopted in the New Zealand Code. South
Africa is content with a doctrine that limits its conspiracies to commit crimes.

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 BIBLIOGRAPHY

BARE ACTS:
 Indian Penal Code, 1860.
 Indian Evidence Act, 1872.

BOOKS REFERRED:
 Hari Singh Gour, Penal Law of India, Volume 4, 11th Edition, Law Publishers,
Allahabad, 1998.
 K.I.Vibhute, PSA Pillai’s Criminal Law, 11th Edition, Lexis Nexis Butterworths
Wadhwa Nagpur.
 K.D.Guar, Indian Penal Code, Universal Law Publishing Co. Pvt. Ltd.
 Ratanlal & Dhirajlal, The Indian Penal Code , 35th Edition, Lexis Nexis.

ONLINE SOURCES CITED:

 law.wisc.libguides.com
 delhihighcourt.nic.in/library/periodical%20catalogue.pdf
 https://lawlex.org/wp-content/uploads/2014.
 https://indiankanoon.org/search.
 www.legalserviceindia.com
 https://www.law.cornell.edu/wex/criminal_law.

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