Offence of criminal conspiracy
A conspiracy takes place when two or more people make an agreement to commit or cause to be done, an illegal act or a legal act through illegal means and to take some step consequent to the agreement.
Conspiracy does not require that the illegal act to be completed. A group of individuals can be convicted of conspiracy to commit burglary even if the actual burglary never happens. In a conspiracy an accused can be charged with both the offences: the conspiracy to commit a crime, and the crime itself.
Essential ingredients of conspiracy
The essential ingredients of the offence of criminal conspiracy are:
- There must be two or more persons
- There must be an illegal act or an act in an illegal way
- There must be a meeting of minds
- There must be an agreement regarding the same thing
In short it is the meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means is sine qua non of criminal conspiracy (Rajiv Kumar v. State of U.P : (2017) 8 SCC 791). The most important ingredient is the intent to cause an illegal act.
In short, conspiracy requires that two or more people agree to commit a crime. This agreement does not have to be formal or in writing. All that is required is that the parties had a mutual understanding to undertake an unlawful plan.
The agreement should be for doing an illegal act or a legal act by illegal means. All conspirators must have the specific intention to commit the objective of the conspiracy.
Conspiracy requires some overt act taken in furtherance of the crime. This overt act does not have to be the crime itself, nor does it have to be an act that is illegal. Rather, the act must merely be a step taken in furtherance of the criminal objective, such as buying a weapon or holding a meeting to plan an attack. The act must also take place after the group of individuals has agreed to conspire.
A mere thought to commit a crime does not constitute the offence. But a mere agreement is punishable though no offence takes place pursuant to the illegal agreement. Actus reas in a conspiracy is the agreement to execute the illegal act but not the execution of it.
Person unaware of conspiracy cannot be charged
Someone who is entirely unaware of his participation in a crime cannot be charged with conspiracy. the charges will be framed only if the person was aware of the co-conspirators and their motives. Since there is no way that the crime can be proved beyond a reasonable doubt, it is necessary to understand that there is a deemed presumption of the offence if there are overt actions to prove it.
For example, in a case of conspiracy, if two persons agree to rob a temple and ask another person to drive them to the temple premises without informing him of their intention to commit a crime, he cannot be charged with conspiring in the robbery.
But it does not require that everyone knows all the details of the crime or all the members of the conspiracy. If an individual understands that the act being planned is a criminal one and proceeds nonetheless, he can be charged with conspiracy.
Similarly, actions taken before the agreement do not fulfil this requirement.
All conspirators will be liable
If in pursuance of the agreement the conspirators commit offences individually or adopt illegal means to do a legal act all the conspirators will be liable for such offences, even though all the conspirators do not know each and every detail of the conspiracy.
Abandonment is a defence to conspiracy
Like other inchoate crimes such as attempt, a defendant charged with conspiracy can raise the defence of abandonment or withdrawal. To do so, a defendant must show that he affirmatively communicated his withdrawal to his co-conspirators and took some positive action to withdraw from the conspiracy.
The defendant must have withdrawn from the conspiracy prior to its completion by cutting ties with his fellow co-conspirators.
If he continues to communicate with them or assist them in any way, this may prevent him from raising the defence of withdrawal.
A conspirator is responsible for the crime of others
Conspirators may also be convicted for the crimes of co-conspirators. For example, three persons conspire to rob a store on the same day and divide the stolen goods equally. As one is robbing the store, another shoots the store owner. The two person who did not involve in shooting may also be held responsible for shooting the store owner, even though they were elsewhere at the time, as the offence act fell within the scope of the conspiracy.
Conspiracy u/s 120 B & common intention u/s 34 IPC
There is no substantial difference between conspiracy under Section 120 A of IPC and acting on a common intention under Section 34 IPC.
In conspiracy the agreement and association to break the law is the offence though it is not necessary to have any follow up action. But in common intention under Section 34 IPC, there should be unity of criminal behaviour resulting in something. A premeditated plan must exist prior to the commission of offence.
In the former there must me at least two to be punished, but in the latter one person can be punished even if done by himself as each one is punishable for the act of the other.
Conspiracy u/s 120 B & abetment u/s 107 IPC
In 120 B IPC, a mere agreement is enough for the accused to be punished for the conspiracy, but for the offence of abetment under Section 107 of IPC, an act or illegal omission must take place in pursuance of the conspiracy and mere agreement is not enough.
Section 107 of IPC states the offence of Abetment as follows:
- If a person is aiding in an illegal act
- Instigates a person to do an illegal act
- Engages in a conspiracy and an act is performed in pursuance of the conspiracy.
The basic difference lies in the fact that in one case, there just needs to be a meeting of minds to do an illegal act, abetment requires an act in pursuance of the agreement.
Another point is that abetment involves aiding in a crime or a conspiracy, whereas the criminal conspiracy just requires a meeting of minds.
The SC in Hira Lal Hari Lal v CBI ( AR 2003 SC 2545) states that to bring home the charge of conspiracy within the ambit of Section 120B of Indian Penal Code, it is necessary to establish that there was an agreement between the parties for doing an unlawful Act. It is difficult to establish conspiracy by direct evidence.
Common intention & common object in sections 34 & 149 IPC
The Sections 34 of IPC and 149 of IPC imposes liability on each person in a group for acts not necessarily done by them. Both the sections deal with a combination of persons for shared commission of offences. To punish under both Sections, it is not necessary that each one involves in the commission of offence at all.
But the two offences have different nature and scope. The charge of Section 149 of IPC can be substituted by Section 34 of IPC, when some accused are acquitted and number of the accused falls below five.
Common intention under 34 IPC requires a prior meeting of mind and unity of intention and there must be some overt act done in furtherance of the common intention of all. A common object under Section 149 IPC may be formed without a prior meeting of mind. It only requires that criminal act has been done in furtherance of the common object.
The court would have to carefully examine the evidence to see whether some element of common intention exists for which he can be made liable under Section 34 of IPC which does not create any specific offence. It lays down the principle of joint criminal liability.
On the other hand, the Section 149 creates specific offence just for being a member of an unlawful assembly at the time of committing the crime by the assembly, then the offence is punishable under Section 143 of IPC, for a common object. The person present need not do any covert act to get the offence imputed on him. The common object must be within the knowledge of the members of the assembly.
The term common intention used in Section 34 IPC is not defined anywhere, while the term common object in Section 149 IPC described in Section 141 of IPC.
For invoking Section 34 IPC it is sufficient that two or more persons were involved. However, to impose Section 149 IPC there must be a minimum of five persons. The crucial factor of Section 34 IPC is participation with common intention while there is no need of active participation in Section 149 of IPC.
How to prove conspiracy?
Conspiracy can be proved by direct or circumstantial evidence.
It is difficult to prove conspiracy by direct evidence, but it must be inferred from the acts, statements and conduct of the parties to the conspiracy. The circumstance before, during, and after the occurrence must be considered to decide a person’s complicity.
The acts or conduct of the parties must be conscious and clear enough to infer their concurrence as to conspiracy.
SC summarised the law relating to conspiracy
The Supreme Court (SC) in State Of Tamil Nadu Through SP of Police CBI/SIT v Nalini (AIR 1999SC 2640) summarised the law relating to conspiracy as follows:
1. Under Section 120A 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 legal act by illegal means overt act is necessary. Offence of criminal conspiracy is exception to the general law where intent alone does not constitute 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. The question for consideration in a case is did all the accused had the intention and did they agree that the crime be committed. It would not be enough for the offence of conspiracy when some of the accused merely entertained a wish, howsoever, horrendous it may be, that offence be committed.
2. Acts subsequent to the achieving of 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 enrollment, where a single person at the centre doing the enrolling and all the other members being 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 whether the 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 role 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.
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 it is 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 object of conspiracy but also of the agreement. In the charge of conspiracy court has to guard itself against the danger of unfairness to 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. As observed by Judge Learned Hand that “this distinction is important today when many prosecutors seek to sweep within the dragnet of conspiracy all those who have been associated in any degree whatever with the main offenders”.
8. As stated above 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 gravaman 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 that there is in each conspiracy a joint or mutual agency for the prosecution of a common plan. Thus, if two or more persons enter into a conspiracy, any act done by any of them pursuant to the agreement is, 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 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 incident to and growing out of the original purpose. A conspirator is not responsible, however, for acts done by a co-conspirator after termination of the conspiracy. 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.
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.
Further reading
- State Of Tamil Nadu Through SP of Police CBI/SIT v Nalini:AIR 1999SC 2640
- Hira Lal Hari Lal v CBI: AR 2003 SC 2545
- Parveen @ Sonu Vs. State of Haryana :Crl A No. 1571 of 2021
- P.V. Narasimha Rao vs State(Cbi/Spe) : Appeal (crl.) 1207 of 1997
