JAMIA MILLIA ISLAMIA

FACULTY OF LAW

CRIMINAL LAW - II

CRIMINAL COSPIRACY

SUBMITTED TO-

MS. ALISHA KHATOON

SUBMITTED BY-

MOHD KAMRAN ANSARI

B.A.LLB. (H) (REGULAR) IVth Sem.

BATCH- 2020- 2025

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TABLE OF CONTENTS

INTRODUCTION......................................................................................................................2

CRIMINAL CONSPIRACY IN THE INDIAN PENAL CODE...............................................3

PUNISHMENT UNDER THE INDIAN PENAL CODE.........................................................4

ESSENTIAL INGREDIENTS...................................................................................................5

PROOF OF CONSPIRACY......................................................................................................6

LANDMARK JUDGEMENTS.................................................................................................8

CONCLUSION........................................................................................................................10

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INTRODUCTION

The origin of the offence of criminal conspiracy is not very recent. In fact, owing to its
complex nature, the offence of criminal conspiracy was given the legal bearing, for the first
time in the landmark “Poulter’s Case”1 which was decided in 1611. In this case, the
defendants conspired and falsely brought a case of robbery, against a single person, named
‘Stone’. The grand jury held Mr. Stone innocent. Thereafter, Mr. Stone filed a counter suit
against the defendants. The court affirmed that the mere presence of conspiracy played out by
the defendants, irrespective of whether Stone was falsely indicted or acquitted, lays down the
gist of the offence and therefore can be considered as a crime and taken towards an
indictment. In the case of Leo Roy Frey v. Superintendent, District Jail 2, the Supreme Court
defined the offence of criminal conspiracy as the offence of conspiracy to commit a crime is a
different offence from the crime that is the object of the conspiracy because the conspiracy
precedes the commission of the crime and is complete before the crime is attempted or
completed.

The landmark case of Mulcahy v. Regina3 paved the way for the offence of criminal
conspiracy in India. In this case, the House of Lords held that “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 party’s 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 this case, the
Indian Penal Code was amended in 1870 to insert Sec 120-A IPC.

Criminal conspiracy is hatched to commit an illegal act which is an offence punishable under
law. It is not essential that the accused person must do an overt act, and mere agreement
between two or more persons to commit an illegal act is sufficient to constitute the offence of
criminal conspiracy. It is also not necessary that the object of the conspiracy should have
been achieved for it to be considered as an offence. Even if the conspiracy fails on account of
abandonment or detection before commission of the offence, the very act of entering into an
agreement by the co-conspirators is itself an offence and punishable under the law

1
Poulter’s case, 77 Eng. Rep. 813.
2
Leo Roy Frey v. Superintendent, District Jail, AIR 1958 SC 119.
3
Mulcahy v. Regina, (1868) LR HL 306.

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In the initial years, the offence of criminal conspiracy was considered as a civil offence and
was put under the ambit of (a) abetment in any offence, and (b) conspiracy with criminal
intent. However, it was later considered to be a criminal offence. In the year 1913, Chapter
V-A of the Indian Penal Code was inserted which dealt with the offence of criminal
conspiracy.

CRIMINAL CONSPIRACY IN THE INDIAN PENAL CODE

Criminal conspiracy under the Indian Penal Code (IPC) is a substantive offence in itself and
punishable separately. There have been rare instances where persons have been tried for
commission of the substantive act of criminal conspiracy.

The offence of criminal conspiracy is defined under Section 120-A of Chapter V-A of the
Indian Penal Code, 1860. Section 120-A of the Indian Penal Code defines the offence of
criminal conspiracy as:
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 a
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.

The explanation provided under this section states that it is immaterial whether the illegal act
committed in furtherance of such an agreement, is the focal point of the agreement or, is
merely incidental to the performance of the ultimate goal of the agreement. In other words, a
mere agreement to commit an offence shall amount to criminal conspiracy and no overt act or
illegal omission is required to be proved. Such overt act is necessary only when the object of
the conspiracy is the commission of an illegal act not amounting to an offence. It is
immaterial whether the illegal act is the ultimate object of such agreement or is merely
incidental to that object.

The relevant legal provisions under the Indian Penal Code which deal with the offence of
criminal conspiracy are as follows:

 Section 120A and Section 120B, deal with conspiracy as a substantive offence, i.e.,
an act, which in itself constitutes a crime, and a punishment for the same;

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  Section 107, deals with conspiracy as it being a form of abetment;
 Section 121A, deals with an act constituting an offence of conspiracy to wage,
attempt to, or abet war against the Government of India;
 Section 310, Section 311, Section 400, Section 401 and Section 402, deal with
conspiracy as constituting involvement in the commission of an offence.

In the case of Kehar Singh & Ors. V. State (Delhi Administration) 4, the Hon’ble Supreme
Court held that the most important ingredient of the offence of conspiracy is an agreement
between two or more persons to do an illegal act. Such an illegal act may or may not be done
in pursuance of the agreement, but the very agreement is an offence and is punishable.

In the case of Major E.G. Barsay v. State of Bombay5, it was held that an agreement to break
the law constitutes the gist of the offence of criminal conspiracy under Section 120A IPC.
The parties to such an agreement are guilty of criminal conspiracy even if the illegal act
agreed to be done by them has not been done. The Court also held that it is not an ingredient
of the offence of criminal conspiracy that all the parties should agree to do a single illegal act
and a conspiracy may comprise the commission of several acts.

PUNISHMENT UNDER THE INDIAN PENAL CODE

Section 120-B prescribes the punishment for the commission of the crime of criminal
conspiracy. According to Section 120-B, if the parties involved in the conspiracy, conspired
to commit an offence punishable with death, imprisonment for life or rigorous imprisonment
for a term of two years or more, shall be punishable in the same manner as if he/she had
abetted the commission of such an offence, if no explicit punishment for the commission of
such a conspiracy has been provided for, by the Code. However, if the parties involved in the
conspiracy, conspired to commit an offence punishable with terms not prescribed previously,
such persons shall be sentenced to an imprisonment for a term not exceeding six months, or a
fine, or both.

In the case of State of Andhra Pradesh v. Subbaiah6, the Supreme Court contended that
where the matter has gone beyond the stage of mere conspiracy and offences are alleged to

4
Kehar Singh & ors. V. State (Delhi Administration), 1988 AIR 1883.
5
Major E.G. Barsay v. State of Bombay, 1961 AIR 1762.
6
The State of Andhra Pradesh v. Saubbaiah, 1961 (2) SCJ 68

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have been 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 stated the offence of conspiracy is a separate offence and an individual can be
separately charged with respect to a conspiracy along with any other offences resulting from
that conspiracy.
ESSENTIAL INGREDIENTS

The sine qua non of the offence of criminal conspiracy, as provided under the Indian Penal
Code, are mentioned as follows:

 There must be two or more people involved in the commission of the offence of
criminal conspiracy.
 There must be an agreement between the parties.
 Such an agreement must be for the commission of an illegal act or the commission of
a legal act by illegal means.
 When the agreement is for the commission of a legal act by illegal means, an overt act
must have been carried out by the parties in furtherance of the same, and the mere
agreement is not sufficient to establish the commission of the crime.
 The parties must be aware of the illegal object or the illegal means, for the agreement
to constitute as a criminal conspiracy.
 The crime of criminal conspiracy is an incomplete or inchoate crime, which needs an
additional substantive offence complementing it, to constitute as a crime punishable
under the Code.
 Criminal Conspiracy does not take place when the parties involved are husband and
wife, of minor age, or is the person against whom the offence was sought to be
committed.

In the case of Topan Das v. State of Orissa 7, the Supreme Court opined that it is an
established rule of the law that only one person cannot conspire and that there should be at
least two persons for the same, and can be never be held guilty of criminal conspiracy since
one cannot conspire with oneself.

7
Topan Das v. State of Orissa, AIR 1956 SC 33.

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Furthermore, in the case of B. Narsimha Rao v. Government of Andhra Pradesh 8, the
appellant was convicted of an offence of criminal conspiracy along with seven others.
However, he alone was charged with offences under Sec. 120-B, 409 and 471, IPC. However,
all the other co-conspirators were acquitted by the Trial Court and the High Court. In the end,
the Supreme Court acquitted the accused on the fact that there had to be another person to
communicate with and carry out the agreement and that a single person can never be
accounted for conspiracy.

Also, in the case of State of Maharashtra & Ors. v. Som Nath Thapa &Ors.9, it was
observed that “for a person to conspire with another, he must have knowledge of what the co-
conspirators were wanting to achieve and thereafter having the intent to further the illegal act
takes recourse to a course of conduct to achieve the illegal end or facilitate its
accomplishment.”

PROOF OF CONSPIRACY

Criminal conspiracy is a psychological offence, as a result of which proof of the offence of

criminal conspiracy is complicated. The English law on this matter is, in general, well settled.
It is a common law rule. In the case of R. v. Blake10 the Court illustrated the two aspects of
what is admissible and what is not. The Court held that what was held to be admissible
against the conspirator was the evidence of entries made by his fellow conspirator contained
in various documents actually used for carrying out the fraud. But a document not created in
the course of carrying out the transaction, but made by one of the conspirators after the fraud
was completed, was held to be inadmissible against the other.

Section 10 of the Indian Evidence Act, 1872 states that,

“Things said or done by conspirator in reference to common design where there is
reasonable ground to believe that two or more persons have conspired together to commit an
offence or an actionable wrong, anything said, done or written by any one of such persons in
reference to their common intention, after the time when such intention was first entertained
by any one of them, is a relevant fact as against each of the persons believed to so
conspiring, as well for the purpose of proving the existence of the conspiracy as for the
purpose of showing that any such person was a party to it.”

8
B. Narsimha Rao v. Government of Andhra Pradesh, AIR 1996 SC 64.
9
State of Maharashtra & Ors. v. Som Nath Thapa &Ors. (1996) 4 SCC 659.
10
R. v. Blake, 2004 SCC 69.

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In other words, anything said, done, or written by a conspirator which is related to the
common intention of all other conspirators after such intention was first thought of or
entertained by them is a relevant fact against each co-conspirator. This is the principle of
collective liability. This principle is also found in Section 34 of the IPC which describes the
liability in acts done by several persons in furtherance of common intention. It says, “When a
criminal act is done by several persons in furtherance of the common intention of all, each of
such persons is liable for that act in the same manner as if it were done by him alone.”

In the case of Hari Om vs State of Uttar Pradesh 11, the Supreme Court held that it is not
necessary that the common intention to carry out the conspiracy was pre-meditated or formed
prior to the commission of the illegal act. It essentially means that common intention can also
be formed at the time of occurrence of the conspiracy.

In Sachin Jana and Another vs State of West Bengal 12, the Supreme Court recognised that
direct proof of common intention is rarely available, and therefore, such intention is to be
inferred from the proven facts/circumstances of the case. This means that even without the
existence of any direct evidence, circumstantial evidence can be used to ascertain the guilt of
the accused and to prove common intention.

However, the use of the offence of criminal conspiracy in contemporary times by

investigating agencies and courts is not in accordance with the above stated well-settled
principles of law. This has resulted in dilution of the law relating to criminal conspiracy.

Nowadays, the concept of ‘deemed presumption’ is applied, which is otherwise not available
under the IPC. Undoubtedly, criminal conspiracies are hatched in secrecy and can only be
perceived by actions of the participants, however, that should not in any way dilute the
standard of proof of “beyond reasonable doubt” that must be met by the prosecution.

Sec. 10 of the Indian Evidence Act, 1872, can be divided into two parts: firstly, where there is
reasonable ground to believe that two or more persons have conspired to commit an offence
or an actionable wrong. Only when this condition precedent is satisfied, the second part of the
section comes into operation i.e., anything said, done or written by any one of such persons in
reference to the common intention after the time when such intention was first entertained by

11
Hari Om vs State of Uttar Pradesh, 1993 CriLJ 1383.
12
Sachin Jana and Another vs State of West Bengal, 2008 (2) SCALE 2 SC.

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any one of them is a relevant fact against each of the persons believed to be so conspiring as
well for the purpose of proving the existence of the conspiracy.

It is therefore necessary that a prima facie case of conspiracy has to be established for the
application of Section 10 of the Indian Evidence Act. The second part of section permits the
use of evidence which otherwise could not be used against the accused person.13

LANDMARK JUDGEMENTS

The State of Andhra Pradesh v. Subbaiah

The Supreme Court in the above case contended that where the matter has gone beyond the
stage of mere conspiracy and offences are alleged to have been 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.14

State(Delhi Administration) v. V. C. Shukla

In the above case the court observed that 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 envisages that there
must be a 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.15

LK Advani v. Central Bureau of Investigation

In this case, the court submitted that since there was no prima facie evidence showing an
alleged conspiracy and that the mere presence of a few assumed entries and loose sheets
cannot entertain the above offence, the court humbly acquitted the accused on the counts of

13
Sardar Sardul Singh Caveeshar v. State of Maharashtra, (1964) 2 SCR 378.
14
The State of Andhra Pradesh v. Saubbaiah, 1961 (2) SCJ 68.
15
State (Delhi Admn) v. V. C. Shukla 1980 AIR 1382.

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the offence of criminal conspiracy and further explained that to establish conspiracy there
shall be evidence of acting on a common intention to carry out an illegal act.16

Firozuddin Basheeruddin and Ors. v. State of Kerala

In this case it was held that it is not necessary that each one of the co-conspirators must have
actively participated in the commission of the offence or was involved in it from start to
finish. If there is a combination by agreement, which may be an express or implied or in part
implied, then they are considered to be a party to the conspiracy.17

Parveen v, State of Haryana

In this case Four accused were being escorted by the police from the Central Jail, Jaipur by
train to be produced in the Court of CJM, Bhiwani. On reaching the Railway Station Nangal
Pathani, four young boys entered their compartment, attacked the police party and tried to
rescue the accused. The accused, who were in custody also tried to escape and an attempt was
also made to snatch the official carbine. It was alleged that one of the accused fired upon the
Head Constable, who got injured and later succumbed to his injuries. One accused was
apprehended and the other three fled. The accused were charged under offences Sections 224,
225, 332, 353, 392, 307, 302, 120-B of the Indian Penal Code and for certain offences under
the Indian Arms Act, 1878. The accused were held guilty by the Sessions Court and on
appeal, the High Court of Punjab and Haryana confirmed their conviction. The appellant
Parveen filed an appeal in the Supreme Court.

The Hon’ble Supreme Court held that it is not safe to hold a person guilty for offences under
Section 120B IPC in absence of any evidence to show a meeting of minds between the
conspirators for the intended object of committing an illegal act. The Court ordered the
acquittal of the appellant and held that it is not safe to maintain the conviction of the accused
on the alleged confessional statements of the co-accused in absence of any other
corroborative evidence.

16
LK Advani v. Central Breau of Investigation, 1997 CriLJ 2559.
17
Firozuddin Basheeruddin and Ors. v. State of Kerala, 2001 (7) SCC 596.

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CONCLUSION

The offence of criminal conspiracy is an exception to the general rule and is considered to be
in the category of inchoate crimes as it does not require the commission of an illegal act. In
order to constitute a crime, both mens rea and actus rea must be involved, here merely a
guilty mind is sufficient to render a person guilty if the agreement was to commit an illegal
act. However, an act, or actus reus becomes essential again if the object of the agreement was
to do a lawful act by unlawful means. The criminal conspiracy can be inferred from the
surrounding circumstances and the conduct of the suspected or the accused person. Criminal
conspiracy is a partnership in crime and a joint or mutual agency exists in each conspiracy for
the prosecution of a common plan. A person found to be guilty of criminal conspiracy, is
punished under Section 120B of the Indian Penal Code, 1860. Nowadays, it is seen that the
provision of criminal conspiracy is very loosely invoked which is not in line with the
principles laid down by the Supreme Court. Hence, for this provision of the Indian Penal
Code to maintain its relevance in the present time and to make sure that it is not misused the
well-established rule of criminal justice “fouler the crime higher the proof” should always be
remembered and followed.

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