"The law is reason, free from passion
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
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
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
For a crime to take its form there needs to be existence of following
Following which a crime a committed in 4 stages which are as under:
- A human being ( indicated by word "whoever" or "person" or "a man")
- Mens Rea or Guilty Mind (Evil Intent)
- Actus Reus (The act or omission willed or the consequences of an act or
- Intention to commit a crime
- Attempt to commit it
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
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
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:
- An illegal act, or
- 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
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:
- An object to be accomplished,
- A plan or scheme embodying means to accomplish that object,
- 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
- 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
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
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
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:
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)
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
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:
- anything said
- done, or
- written by any one of such persons in reference to their common
- 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
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
. 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
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
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
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:
- 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.
- 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
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
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
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.
- Indian Penal Code, 1860
- Pandey, K. A. (2019). B.M. Gandhi's Indian Penal Code (Fourth Edition
ed.). Lucknow: Eastern Book Company, pg.195-205
- Tagore. (1902). Principles of the Law of Crimes in British India by Syed
Shamsul Huda. Retrieved April 28, 2020, from SCC Online:
- Criminal Procedure Code, 1973 (Sec. 197 - Prosecution of Judges and
(accessed on 29th April, 2020)
- http://lawtimesjournal.in/criminal-conspiracy-2/#_edn16 (accessed on
29th April, 2020)