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Criminal Conspiracy

"The law is reason, free from passion"-- Aristotle
As the society progresses people become more aware of their new roles, responsibilities and opportunities resulting in living a prosperous life but amidst this web of desires there are clutters wanting for more and more thus, this craving continues until they meet the dead end. They collectively spit fluids to grasp the insect to its clutches until a blade is wielded to slash it.

Taking into consideration the above circumstance a desire, clutters, fluids, clutches and blade is categorized as mens rea (intention), co-conspirators, conspiracy and law respectively which collectively contrives into criminal conspiracy.

Under the Indian Penal Code (IPC), mens rea and actus reus are essential ingredients constituting a crime. A crime in ordinary parlance means an action or omission constitutes an offence and is punishable by law. To constitute a crime there is an involvement of either a person or persons who commit an offense punishable by law and conspiracy is an agreement between two or more persons who agree to commit an act which is illegal or legal by illegal means.

An act to be regarded as a criminal conspiracy can be only between more than or equal to two people since a person cannot hold discussions, secret talk and hold the conversation in privacy with oneself.

Criminal conspiracy is punishable under the Indian Law of Crimes at its first stage, that is an agreement without any requirement of performance of any act to be punishable by law on its commission known as an overt act. On the contrary, in some countries like the U.S.A an agreement coupled with the performance of an overt action constitutes criminal conspiracy.
A criminal conspiracy is different from other crimes since a prosecution has to prove that the evidence obtained establishes a link of agreement between the conspirators to commit a crime thus, utilizing the same evidence against all accused as against a scenario where evidence is to be proved against each co-conspirator.

Hence, this concept is dealt with such intricacy which makes it evident to be discussed in detail.

DEFINITION / EXPLANATION
IPC does not define the word crime and is defined by various legal luminaries one of which is given by Salmond as an act deemed by law to be harmful to society in general, even though its immediate victim is an individual. In fact, the very definition of crime is influenced by values of a given society.

Sec.40 of the IPC defines the word "offence" as a thing made punishable by India Penal Code, and in certain cases, punishable under Penal Code or any special or local law.

For a crime to take its form there needs to be existence of following elements namely:
  1. A human being ( indicated by word "whoever" or "person" or "a man")
  2. Mens Rea or Guilty Mind (Evil Intent)
  3. Actus Reus (The act or omission willed or the consequences of an act or omission)
  4. Injury
Following which a crime a committed in 4 stages which are as under:
  1. Intention to commit a crime
  2. Preparation
  3. Attempt to commit it
  4. Commission

Actus non facit reum nisi mens sit rea is a Latin maxim which means an act does not make anyone guilty unless there is a criminal intent or guilty mind. This means act and intent must coincide to constitute a crime, that is, physical as well as mental element both must combine to constitute a crime. However, it is not necessary for an offence to be punishable under IPC to consider mens rea as a requirement to constitute a crime such as in cases where law might impose absolute or strict liability such as Kidnapping (Sec.363), Bigamy (Sec.494) and so on.

Substantive Crime as defined by Merriam Webster is a crime that does not have as an element the performance of some other crime, that is, a crime that is not dependent on another.

A Brief History: Criminal Conspiracy

Chapter V-A of the Indian Penal Code was introduced by the Criminal Law Amendment Act, 1913 which made conspiracy punishable when a mere agreement is entered by two or more persons to commit a crime without any proof of an overt act.

Before passing of this amendment a conspiracy to commit an illegal act was punishable only when such act amounted to an offence. As per Sec.107 of the IPC abetment by conspiracy would take place when an act or illegal omission should have taken place in pursuance of the conspiracy and in order to do so of the act which is the object of the conspiracy. Thus, this amendment made a change in the code by inserting Criminal Conspiracy under Sec.120-A of IPC such that it has wider scope in covering all acts which do not amount to abetment by conspiracy as provided under Sec.107 IPC.

This amendment also brought out a second change with respect to punishment as provided under sec.120B that punishments is provided for criminal conspiracies of all kinds, whether, according to the requirement of Sec.107, an overt act has or has not taken place in pursuance of such conspiracy, or whether, as required by Sections 109,115 or 116, the object of conspiracy is or is not in the commission of an offence.

Analysis Of Chapter V-A: Criminal Conspiracy

Criminal Conspiracy as defined under Section 120A means:
When two or more persons agree to do, or cause to be done:
  1. An illegal act, or
  2. An act which is not illegal by illegal means, such an agreement is designated as 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.
On scrutiny of this definition it can be understood that Indian and English Laws differed with respect to nature of the act such that India Laws confined conspiracies to mere agreements to commit punishable wrongs and on the contrary, English Laws only insisted on such laws being merely illegal.

It should also be considered that an overt act is necessary only where the object of conspiracy is the commission of an illegal act not amounting to an offence for example, a conspiracy to commit a civil wrong or a tort.

In a case of State of A.P v. Kandimalla Subbaiah It was held that criminal conspiracy is a substantive offence, while those who are alleged to have abetted it by conspiracy should be charged with the offence of abetment under Sec.109 I.P.C.

As per the above definition it is understood that two or more persons are required to commit an offence of conspiracy since, one person alone cannot conspire with oneself.

It is also possible that anyone can join at any stage of the commission of crime with a common intention in furtherance of a common design and thereafter, he cannot claim any relief in his noninvolvement of criminal conspiracy. There can be a circumstance where only one person is convicted of criminal conspiracy, provided that the other person or persons with whom he conspired were never caught or enjoyed immunity from prosecution.

The elements of criminal conspiracy have been stated to be:
  1. An object to be accomplished,
  2. A plan or scheme embodying means to accomplish that object,
  3. An agreement or understanding between two or more of the accused persons whereby they become definitely committed to co-operate for the accomplishment of the object by means embodied in the agreement, or by any effectual means,
  4. In the jurisdiction where the statute requires an overt act.

Thus, so long as such 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 against promise, actus contra actum capable of being enforced if lawful, punishable if for a criminal object or for use of criminal means.

In the case of State of Maharashtra v. Somnath Thapa it was held by the Supreme Court that intent may be inferred from knowledge itself, when no legitimate use of goods or services in question exists. Persons participating in transportation of materials like RDX must be imputed with the intent of its use for illegal purposes. When the offence consists of a chain of actions, it is not necessary that each of the conspirators must know what the other conspirator would do.

The conspirator and its co conspirators must be natural persons so that there could be an agreement between them. Under Indian Law, if parties to an agreement are husband and wife only there can be a conspiracy as compared to English Law where they are legally deemed to be one person.

In Pradumna Shrinivas Auradkar v. State of Maharashtra it was held that where two persons were accused of conspiracy and one of them being a public servant who was prosecuted without obtaining sanction under Section 197 of Criminal Procedure Code, was acquitted the other could still be convicted of conspiracy as the acquittal of one, the public servant, was on technical grounds and not on facts.

Also, when all co-conspirators are acquitted it is not necessary that a conspirator is acquitted too, when conspiracy itself is not established by evidence.

As Lord Chelmsford rightly pointed out that an agreement is an act in advancement of the intention which each person has conceived in his mind. In one of the cases of Pre-Independence era Chief Justice Jenkins said that:
To establish the charge of conspiracy there must be agreement, here need not be proof of direct meeting or combination nor need the parties be brought into each other's presence; the agreement may be inferred from circumstances raising a presumption of a common plan to carry out an unlawful design.

Conspirators often work in secret, and it is seldom that a conspiracy is revealed until something is done in pursuance of it. It is also evident that the law declares conspiracy without an overt act but it cannot be proved without it.

In Noor Mohammad Yusuf Momin v. State of Maharashtra it was held that it is extremely rare to find a direct evidence of criminal conspiracy so, "once reasonable ground is shown for believing that two or more persons have conspired to commit an offence then anything done by any one of them in reference to their common intention after the same is entertained becomes, according to the law of evidence relevant for proving both conspiracy and the offences committed pursuant thereto".

The concept of Criminal Conspiracy can be understood as in a case where 5 persons enter into an agreement to commit dacoity and are caught before they could complete their preparation the in such case they will be convicted under Sec.120B and on the contrary, if they were successful in committing such offence then they would punished as an abettor as per Sec. 120B and would be liable to a punishment as stated under Sec.395 in accordance with Sec.109 (Punishment of abetment if the act abetted is committed in consequence and where no express provision is made for its punishment).

It can be understood from Yash Pal Mittal v. State of Punjab that a conspiracy involves a series of acts committed by some of the conspirators, even unknown to others and it will not affect the culpability of those others when they are associated with the object of the conspiracy. Also, an accused need not participate in the conspiracy throughout to constitute offence if conspiracy.

Even it does not make it necessary that any one thing should be done beyond the agreement to complete the offence; the conspirators may regret or stop, or may have no opportunity, or may be prevented, or may fail; in spite of this the crime is complete at the time when they agreed to do such thing at once or in a future time. A similar view was held in the case of R.Dineshkumar v. State.

In the State of M.P. v. Sheetla Sahai it was held that often conspiracy is hatched in secrecy and for proving this offence substantial direct evidence may not be possible to be obtained. An offence of criminal conspiracy can be proved also by circumstantial evidence.

In State (NCT of Delhi) v.Navjot Sandhu (Parliament Attack Case) Supreme Court confirming the death sentence for Afzal Guru, observed that the circumstances clearly establish that the appellant Afzal Guru was associated with the deceased terrorists in almost every act done by them in order to achieve the objective of attacking Parliament House and in that process, to uses explosives and other dangerous means.

It was held in the case of V.C Shukla v. State (Delhi Administration) that the onus to prove the charge of conspiracy lies on the prosecution. Court should not convict a person on the basis of conjectures and surmises and by wrongly placing the burden of proof on the accused.

For establishing proof of conspiracy prosecution is required to read Sec. 120A with Sec.10 of Indian Evidence Act, 1872 which states that -:

When there is reasonable ground to believe that two or more persons have conspired to commit an offence or actionable wrong:
  1. anything said
  2. done, or
  3. written by any one of such persons in reference to their common intention,
  4. after the time when such intention was first entertained by any one of them is a relevant fact against each of the persons believed to be so conspiring, as well as 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 the State of H.P. v. Krishna Lal Pradhan 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. Hence, we can come to a conclusion that the charge of conspiracy can be proved by either direct evidence or from proof of circumstances, that is, inferences can be deduced from the act of parties in pursuance of apparent criminal purpose common between them.
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

Agreement, secrecy and privacy are inherent in conspiracy. In Subramanian Swamy v. A.Raja (2G Scam Case) the Supreme Court held that Criminal conspiracy cannot be inferred on the mere fact that there were official discussions between the officers of the MoF and that of DoT and between two Ministers, which are all recorded. Suspicion, however strong, could not take place of legal proof and meeting between Shri P.Chitambram and Shri A.R. would not by itself be sufficient to infer the existence of criminal conspiracy so as to indict Shri P. Chitmbram. So, wrong judgment or inaccurate or incorrect approach or poor management by itself, even after due deliberations between Ministers or even with the Prime Minister, by itself could not be said to be a product of criminal conspiracy.

It should also be noted that circumstances which are relied upon for prosecuting a person for criminal conspiracy must have a nexus with that of conspiracy. In the absence of any other evidence, merely because the accused travelled with others and stayed in the same hotel is no ground to hold that it was in order to perpetrate the alleged conspiracy .

A distinction can be drawn between Sec. 120A and Sec. 107(Abetment) from the above analysis.
A conspiracy to commit an offence being itself an offence, a person can be separately charged with respect to it. The charge should be in respect of those offences along with the charge of conspiracy. Thus, this makes it clear that the charge under Sec. 120A or Sec. 120B could be an independent charge and a charge of conspiracy under Sec. 107 (Abetment) or Sec. 109 should be in combination with a substantive offence.

The essence of criminal conspiracy is the unlawful combination and ordinarily the offence is complete when the combination is framed on the contrary, Sec.107 requires the commission of an act or illegal omission pursuant to conspiracy.

Conspiracy being an element of abetment is not an abatement since, conspiracy is complete when an agreement is entered between two or more persons and not at the time of completion of some act or illegal omission in pursuance of such conspiracy and in order to the doing of the thing conspired for.

There is not much difference between Criminal Conspiracy (Sec. 120A) and Common Intention (Sec.34A) both of these sections involve two or more persons to commit a crime. Sec. 120A can be considered that a gist of offence is an agreement to break the law on the contrary; the gist of offence under Sec. 34 is the commission of a criminal act in furtherance of a common intention of all the offenders, that is, the common intention of all the accused must be to commit the particular crime though the actual crime may be committed by any one having the common intention.

This one accused can be made vicariously liable for the acts and deeds of other co-accused.

In Mohd. Hussain Umar Kochra v. K.S. Dalipsinghji it was held that the evil scheme may be promoted by few, some may drop out, some may join at a later stage, but the conspiracy continues until it is broken up. This case makes clear the meaning of General Conspiracy that there must be common design and a common intention of all to work in furtherance of common design but where different groups of persons cooperate towards their separate ends without any privity with each other, each combination constitutes a separate conspiracy.

In Mohd.Ajmal Amir Kasab v. State of Maharashtra the Supreme Court said that merely because the accused has been charged with a large conspiracy including conspiracy to destabilize and weaken the economic power of the Government of India, it cannot be said that charge of conspiracy is vague. The terrorists might have been trained in a foreign country but they were involved in executing the main object of the conspiracy.

It also pointed out that a conspirator would continue to confabulate with the other conspirators and persist with the conspiracy even after his arrest and it may not be possible to lay down a proposition of law that one conspirator's connection with the conspiracy would necessarily be cut off with his arrest.

In Bupendra M. Patel v. State of Gujarat an accused was convicted for conspiring to illegally produce cassettes of record music. Against the record of nominal punishment, the court awarded deterrent punishment so as to set an example to others as such activity was on the increase.
Thus, a conspiracy to commit an offence is itself an offence, a person can be separately charged with respect of it.

Such punishment is laid down under Sec.120B of IPC which is as under:
  1. 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, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
  2. Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.
The offence under this section, according as the offence which is the object of conspiracy is cognizable or non-cognizable and according as the offence which is the object of conspiracy is bailable or non-bailable an triable by Court by which abetment of offence which is the object of conspiracy is triable . In any other criminal conspiracy, it is non-cognizable, bailable and triable by Magistrate of the first class.

Conspiracy is a continuous offence and whosoever is a party to it is liable under Section 120 B for punishment . It is necessary to establish that there was an agreement between the parties for doing an unlawful act such that it falls under the ambit of this section. It is difficult to establish conspiracy by direct evidence.

Conclusion
It can be hereby concluded that criminal conspiracy is an inchoate and continuous offence till it is executed, rescinded or frustrated by choice or necessity. However, one must consider its strict relevance with Sec. 10 of Indian Evidence Act, 1872 that firstly, a proof of an agreement between two or more persons must be established and then the authorities investigating the matters need to delve into any direct evidence which is often rare in such cases to be considered and in the absence of which consider circumstantial evidence inferred from acts or illegal omissions of the conspirators in pursuance of the common design.

The investigators of a case must go deep into the matter and find a concrete understanding on the true nature of events surrounding the facts and circumstances of the case which should be presented in the Court of Law. Such Courts with great responsibility must not give a judgment based on mere conjectures or surmises and by wrongly placing the burden of proof on the accused.

Thus, this Sec.120A and Sec.120B is of vital importance in majority of criminal cases and has to be dealt with utmost care and caution such that no detail is left behind in a bid to establish the intention of two or more persons involved in the crime.

Bibliography
  1. Indian Penal Code, 1860
  2. Pandey, K. A. (2019). B.M. Gandhi's Indian Penal Code (Fourth Edition ed.). Lucknow: Eastern Book Company, pg.195-205
  3. Tagore. (1902). Principles of the Law of Crimes in British India by Syed Shamsul Huda. Retrieved April 28, 2020, from SCC Online: https://ezproxy.svkm.ac.in:2090/Members/BrowseResult.aspx#search
  4. Criminal Procedure Code, 1973 (Sec. 197 - Prosecution of Judges and Public Servants)
Webliography
  1. https://www.barandbench.com/columns/criminal-conspiracy-law-applicability (accessed on 29th April, 2020)
  2. http://lawtimesjournal.in/criminal-conspiracy-2/#_edn16 (accessed on 29th April, 2020)

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