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INDIAN PENAL CODE- I

PROJECT
CRIMINAL CONSPIRACY

PROJECT SUBMITTED TO:

Mr. MALAY PANDEY

(ASSISTANT PROFESSOR OF LAW)

PROJECT SUBMITTED BY:

RISHI SEHGAL
Semester IV, Section B
ROLL NO. 115

DR. RAM MANOHAR LOHIYA NATIONAL LAW


UNIVERSITY.
LUCKNOW, UTTAR PRADESH.
ACKNOWLEDGEMENT

I, Rishi Sehgal, would like to humbly present this project to Mr. Malay Pnadey. I would first
of all like to express my most sincere gratitude to Mr. Malay Pandey for his encouragement
and guidance regarding several aspects of this project. I am thankful for being given the
opportunity of doing a project on Criminal Conspiracy.

I am thankful to the library staff as well as the IT lab staff for all the conveniences they have
provided me with, which have played a major role in the completion of this paper.

I would like to thank God for keeping me in good health and senses to complete this project.

Last but definitely not the least, I am thankful to my seniors for all their support, tips and
valuable advice whenever needed. I present this project with a humble heart.

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TABLE OF CONTENTS

CHAPTER 1: INTRODUCTION .............................................................................................. 3

CHAPTER 2: CRIMINAL CONSPIRACY DEFINED ............................................................ 4

CHAPTER 3: INGREDIENTS OF CRIMINAL CONSPIRACY ............................................ 6

CHAPTER 4: PUNISHMENT FOR CRIMINAL CONSPIRACY .......................................... 9

CHAPTER 5: EVIDENCE ...................................................................................................... 10

CHAPTER 6: DIFFERENCE BETWEEN SECTION 107 AND 120A & 120B .................... 12

CHAPTER 7: CRIMINAL CONSPIRACY-THE NEED FOR REFORM ............................. 14

CONCLUSION ........................................................................................................................ 18

BIBLIOGRAPHY .................................................................................................................... 19

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CHAPTER 1: INTRODUCTION

With the growth of organized criminal activity the conspiracy indictment has become an
increasingly important weapon in the prosecutor's side. In some cases the criminal conspiracy
serves to nullify the opportunities for escaping punishment that the defendant might
otherwise obtain from the punishment of his position within a group or from the difficulty of
tracing his precise contribution to any given substantive offense. Criminal conspiracy is an
agreement between two or more persons formed for the purpose of committing a crime. The
application and to the evidence necessary to prove the existence of the agreement.
Criminalization of conspiracy performs two functions. The first function is that performed by
any inchoate offense-the interruption of criminal activity prior to its completion. At least in
theory, conspiracy subjects the defendant to criminal sanctions at a stage earlier than any
other offense, even attempt. "Every criminal conspiracy is not an attempt. One may become
guilty of conspiracy long before his act has come so dangerously near to completion as to
make him criminally liable for the attempted crime." The courts rarely have stated the
rationale for this early sanction, although a few commentators have offered justifications for
it, arguing that individuals who band together have expressed, immediately upon their
agreement, a clear intent to violate society's laws. Also, it is argued that when more than one
person agrees to engage in the criminal activity, the likelihood of the accomplishment of the
crime is increased.

The effort of an individual to disturb this equilibrium can never be perceptible, nor carry the
operation of his interest on that of any other individual, beyond the limits of fair competition;
but the increase of power by combination of means, being in geometrical proportion to the
number concerned, an association may be able to give an impulse, not only oppressive to
individuals, but mischievous to the public at large; and it is the employment of an engine so
powerful and dangerous, that gives criminality to an act that would be perfectly innocent, at
least in a legal view, when done by an individual.'

Conspiracy is a crime at the moment the agreement is formed, or at the moment some minor
act is taken in furtherance of that agreement. This is an earlier stage of criminal activity than
is required for attempt, which usually involves either a substantial step toward the
commission of the contemplated crime, or else "conduct that, in fact, amounts to more than
mere preparation for, and indicates intent to complete, the commission of the crime.

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Regardless of whether attempt could handle the inchoate conspiracy activities in theory, or
whether it would be desirable, attempt would seem to be able to handle those situations in
which prosecutors actually charge conspiracy. Conversations with prosecutors confirmed
this. One stated that "no one will prosecute a case without an overt act; generally there is at
least an attempt unless you have an informant which is the rare situation, for you find out
about the conspiratorial relationship from the overt act."

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, or to do a lawful act by unlawful means. So long as such a
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 of for a criminal object or for
the use of criminal means.

CHAPTER 2: CRIMINAL CONSPIRACY DEFINED


For a definition of criminal conspiracy we need to turn to section 120A of the IPC added only
by way of Criminal Law (Amendment) Act, 1913.

Section 120A: Definition of criminal conspiracy.When two or more per-sons 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 agree-ment 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. Explanation.it is immaterial whether
the illegal act is the ultimate object of such agreement, or is merely incidental to that object.

Section 120-A of the I.P.C. defines conspiracy to mean that 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.

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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 furtherance thereof.

This definition of criminal conspiracy is based on its common law definition which was
started by Lord Denman in R v. Jones1 that an indictment for conspiracy must charge a
conspiracy to do an unlawful act by unlawful means and was elaborated by Willies J on
behalf of the judges while referring the question to the House of Lords in Mcauley v. The
Queen2 and the House of Lords in a unanimous decision reiterated in Quinn v. Leathem3 as
under:

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, or to do a lawful act by unlawful means. 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 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 for a criminal
object or for the use of criminal means.

The above definition has been accepted fully by the Supreme Court and there have been
many instances when the same has been quoted by it in order to understand the length and
breadth of this offence in India.4

The main thing on which criminality lies under this section is the agreement, which
requires at least two persons. Here Agreement is not merely the stage of intention which is
not culpable, but is much more than that. It is a plan or a design to bring in action. The plot is
an act in itself. It is not necessary that all the members of the conspiracy must be aware of
each detail of the conspiracy, but it is essential and required that there has to be a common
design among them and every conspirator from his end of the design must carry out into
effect or execute the plan.

However, every conspirator will be aware of the major and important details of the
conspiracy if not the minutest details.

1
(1832) 4 B. & Ad. 345 at p.420
2
(1868) LR 3 HL 306.
3
[1901] AC 495.
4
Ajay Agarwal v. Union of India AIR 1993 SC 1637 at p. 1641.

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For example- If there is a conspiracy of committing a murder amongst some persons, each of
the conspirators will have to be aware of the major detail of the conspiracy in order to
execute the plan properly. Major details here would be, who is to be murdered and
how, when he is to be murdered and by whom, even though the other minute details might
not be known to each of them.

In determining criminal conspiracy it is immaterial whether the ultimate object of the


agreement is such illegal act or not. A conspirator to commit an offence punishable with
death imprisonment for life or rigorous imprisonment for a term of two years or upward and
no specific provision is made for such conspiracy then the offender will be punished in the
same manner as he has abetted the offence. If the conspiracy is not to commit an offence then
the provided punishment shall be term not exceeding six months or fine or both.

It is important that the culpability of an offence is inconsonance with the degree or grade of
the act of perpetrator, while determining the guilt of the accused persons, the degree and the
act of the participants in the offence has to be carefully and cautiously assessed.\

CHAPTER 3: INGREDIENTS OF CRIMINAL 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.

Unlawful agreement:

It is an essential element of a criminal conspiracy. Generally, the crime of conspiracy is


complete when parties enter into a conspiratorial agreement. Moreover, if there is an
agreement between two or more persons for an unlawful purpose, it is considered a criminal
conspiracy even where there is no agreement regarding the details of the criminal scheme or
the means by which the unlawful purpose will be accomplished. The agreement will
determine whether single or multiple conspiracies exist between the parties. A single
conspiratorial agreement will constitute a single criminal conspiracy and multiple agreements
to commit separate crimes will constitute multiple conspiracies. Similarly, conspiracy is
considered a specific intent crime. A specific intent crime is one in which a person acts with
knowledge of what he/she is doing and also with the objective of completing some unlawful

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act. The intent can be determined from words, acts, and conduct. If the conspirators agree or
conspire with specific intent to kill and commit an overt act in furtherance of such agreement,
then they are guilty of conspiracy to commit express malice murder.5

Moreover to constitute a conspiracy the meeting of minds of two or more persons to do an act
by illegal means or an illegal act is required. However it is not necessary that the conspirators
knew each and every detail of the conspiracy neither it is necessary that every one of the
conspirators takes active part in the commission of the acts.

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. The
provision do not require that each and every person who is a party to the conspiracy must do
some overt act towards the fulfilment of the object of conspiracy, the essential ingredient
being an agreement between the conspirators to commit the crime and if these requirements
and ingredients are established the act would fall within the trapping of the provisions
contained in Section 120 B of the IPC.

Explaining what constitutes criminal conspiracy the SC in Yash Pal Mittal v. State of Punjab6
held that: The very agreement, concert or league is the ingredient of the offence. It is not
necessary that all the conspirators must know each and every detail of the conspiracy as long
as they are co- participators in the main object of the conspiracy. There may be so many
devices and techniques adopted to achieve the common goal of the conspiracy and there may
be division of performances in the chain of actions with one object to achieve the real end of
which every collaborator must be aware and in which each one of them must be interested.
There must be unity of object or purpose but there may be plurality of means sometimes even
unknown to one another, amongst the conspirators. In achieving the goal several offences,
may be committed by some of the conspirators even unknown to the others. The only relevant
factor is that all means adopted and illegal acts done must be and purported to be in
furtherance of the object of the conspiracy even though there may be sometimes misfire or
over-shooting by some of the conspirators. Even if some steps are resorted to by one or two-
of the conspirators without the knowledge of the others it will not affect the culpability of
those others when they are associated with the object of the conspiracy.

5
Ajeet Singh Chauhan and others v State of U.P. and others writ petition No. - 19146 of 2015.
6
1978 SCR (1) 781.

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If no agreement is reached between the parties, the charge of conspiracy will fail but it is no
defence to a charge of conspiracy that the agreement is not carried out. Even if an overt act
does not take place pursuant to the illegal agreement, the offence of conspiracy would still get
attracted. The unlawful agreement and not its completion is the essence of the crime of
conspiracy.7

Two persons

Criminal conspiracy requires a plurality of conspirators. A consensus ad idem between at


least two minds is a necessary ingredient of conspiracy. This entails that a charge of
conspiracy requires proof of agreement between at least two independent natural persons. 8 By
the terms of the definition of criminal conspiracy itself, there ought to be two or more persons
who must be parties to an agreement and it is trite to say that one person along can never be
held guilty of criminal conspiracy for the simple reason that one cannot conspire with
oneself. If therefore four named individuals charged with having committee the offence under
Section 120B and if three out of these four were acquitted of the charges, the remaining one
accused could never be held guilty of the offence of criminal conspiracy9. However it is
possible that only one person is convicted for criminal conspiracy provided that the other
person or persons with whom he had conspired are never caught or enjoyed immunity from
prosecution or are not amenable to the jurisdiction of the criminal law for any reason
whatsoever10.

Criminal object:

A famous maxim states that an indictment "ought to charge a conspiracy, either to do an


unlawful act or a lawful act by unlawful means."11 In practice no real distinction has been
drawn between ends and means. Whether or not this clause is a "magic jingle" which obviates
"the necessity of correctly analysing the doctrine of conspiracy" seems open to question. 'The
precise limits of the word "unlawful" are unclear. There seems to be general agreement that
an indictable conspiracy exists whenever the object to be attained is felonious. Conspiracy
convictions may be sustained when the object of the conspiracy is a misdemeanour, even
when the penalty for conspiring is much more severe than the penalty for the substantive

7
State of TN v. Nalini 1977 (4) SCC 540.
8
R v. Gortat and Pirog 1973 Crim L R 648
9
Topandas v. State of Bombay AIR 1956 SC 33.
10
R v. ICR Haulage& Co Ltd [1944] KB 551; R v. Mcdonell (196) 1 All ER 193.
11
R v. Jones (1832) 4 B.& Ad. 345.

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offense.' Furthermore, when the object of the conspiracy is itself unlawful only in the sense
that liability for civil damages may result, and even when attainment of the object intended
involves no civil or criminal sanctions, conspiracy convictions are allowed. The essence of
the agreement to break the law is the agreement to do an illegal act. There is no condition
imposed in the provision that all parties should agree to do a single illegal act. The conspiracy
may comprise the commission of a number of illegal acts. It is sufficient if the agreement to
commit the illegal acts is established.

CHAPTER 4: PUNISHMENT FOR CRIMINAL CONSPIRACY

Section 120B is the punishing section for the offence of criminal conspiracy defined in sec.
120A, IPC.

To make a person liable for the offence of conspiracy, it is not necessary that the offender
ought to have been present from the very beginning or even during the entire period of the
conspiracy. A conspirator may come and leave the conspiracy at any time during the
pendency of the conspiracy. Any and every such conspirator will be liable for the subsequent
acts of other conspirators.

When the conspiracy alleged is with regard to communicating a serious crime of the nature
contemplated in Sec. 120B read with the proviso to Sec. 120A, IPC, then in that event mere
proof of agreement between the accused for commission of such a crime alone is enough to
bring about conviction under sec. 120B and the proof of an overt act by the accused or by any
one of them would be necessary. There is no requirement that each and every one of the
conspirators must commit some overt act towards the fulfilment of the object of the
conspiracy. Since, in most cases, a conspiracy is conceived and hatched in complete secrecy,
and only in rare cases is direct evidence available, circumstantial evidences which leads to an
inference that an agreement between two or more people to commit an offence may be
drawn12.

To be roped in with the aid of sec. 120B, however there should be clear that the accused was
not only part of the conspiracy, but that he had knowledge about and consented to the
conspiracy. Thus in Nand Kumar Singh v. State of Bihar13, Nand Kumar was alleged to

12
Suresh Chandra Bahri v Stae of Buhar AIR 1994 SC 2420.
13
AIR 1992 SC 1939.

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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.

CHAPTER 5: EVIDENCE

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. 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.

The court laid down in clear terms that offence of conspiracy can be proved either by direct
or circumstantial evidence.14 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. 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.

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 evidence15. The inferences are
normally deduced from acts of parties in pursuance of a purpose in common intention
between the conspirators. It was held by the court that to prove conspiracy there must be

14
Quinn v. Leathern, 1901 AC 495; (1900-03) All ER Rep 1 HL.
15
Bhagwan Samp Lai Bishan Lai v. State of Maharashtra, AIR 1965 SC 682. 88. 2004(3) SCALE 267

10
evidence direct or circumstantial to show that there was an agreement between two or more
persons to commit an offence16. 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.3417.

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. The
conspiracies are not hatched in open, by their nature, they are secretly planned, they can be
proved even by circumstantial evidence, and the lack of direct evidence relating to conspiracy
has no consequence18.

In Bhagwan Swaroop Lai Bishan Lai v. State of Maharashtra19 it was held that under Sec. 10
of Indian Evidence Act, 1872 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 Gandhi20, one of the actual killers of the two
conspirators was 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 a prima facie evidence of conspiracy
within the meaning of Section 10 of IEA. In this connection, the court observed:

[I]t 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.

16
V.C.Shukla v. State, (Delhi Admn), (1980) 2 SCC 665
17
Syed Mohd.Owais v. State of Maharashtra, 2003 Cr LJ 303(Bom).
18
F. K.Chandrasenan v. State of Kerala, AIR 1995 SC 1066
19
AIR 1965 SC 682
20
Kehar Singh v. State of Punjab, AIR 1988 SC 1883

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It has also been reiterated that the law of criminal conspiracy is an instrument of the
governmental oppression. Needless to say that the Indian Criminal Law Amendment Act,
1913,21 was passed as an emergent piece of legislation and this measure was motivated by
political expedience. 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. 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. To apply the law of criminal conspiracy for an agreement to commit torts
generally is not wholesome. 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.

CHAPTER 6: DIFFERENCE BETWEEN SECTION 107 AND 120A


& 120B

There is a difference between the offence of criminal conspiracy as defined under Section
120A and the offence of abetment by conspiracy as defined in Section-107 of the Code.
Section-120A and 120B contained in Chapter-VA of the code are different from the provision
in Chapter-V relating to Abetment, as they are both completely distinct offences. Criminal
conspiracy after Amendment Act of 1913 is a substantive offence and was nothing to do with
abetment. The confusion between the two provisions was harmoniously construed by
Supreme Court, understanding the two as different offences in the case, Promatha Nath
Talugdar v. Saroj Rajan Sarkar22, in which Das, J. aptly held that :

Under Sec. 107 Secondly, a person abets the doing of a thing, who 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.
Therefore, in order to constitute the offence of abetment by conspiracy, there must first be a
combining together of two or more persons in the conspiracy, secondly, an act or illegal
omission must take place in pursuance of that conspiracy, secondly, an act or illegal

21
Act VIII of 1913.
22
1962 AIR 876.

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omission must take place in pursuance of that conspiracy, and in order to the doing of that
thing, it is not necessary that the abettor should concert the offence with the person who
committed it. It is sufficient if he engages in the conspiracy in pursuance of which the offence
is committed. It is worthy of note that a mere conspiracy or a combination of persons for the
doing of a thing does not amount to an abetment. Something more is necessary, namely, an
act or illegal omission must take place in pursuance of the conspiracy and in order to the
doing of the thing for which the conspiracy was made.

Before the introduction of Chapter V-A, conspiracy was a mere species of abetment where an
act or an illegal omission took place in pursuance of the conspiracy and amounted to a
distinct offence. Chapter V-A, however, introduced a new offence defined by Sec. 120-A.
That offence is called the offence of criminal conspiracy and consist, in a mere agreement by
two or more persons to do or cause to be done, an illegal act, or an act which is not illegal by
illegal means; there is a proviso to the section which says 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 position, therefore, comes to this. The gist of the offence of criminal conspiracy is in the
agreement to do an illegal act or an act which is not illegal, by illegal means. When the
agreement is to commit an offence, the agreement itself becomes the offence of criminal
conspiracy. Where, however, the agreement is to do an illegal act which is not an offence or
an act which is not illegal, by illegal means, some act besides the agreement is necessary.

Therefore, the distinction between the offences of abetment by conspiracy and the offence of
criminal conspiracy, so far as the agreement to commit an offence is concerned, lies in this.
For abetment by conspiracy mere agreement is not enough. An act or illegal omission must
take place in pursuance of the conspiracy and in order to the doing of the thing conspired for.
But in the offence of criminal conspiracy the very agreement or plot is an act in itself and is
the gist of the offence.

The offence of conspiracy is an independent offence and though the offences are committed
in the course of conspiracy, the liability of conspirator will not disappear23. It is not like
abetment to depend upon a substantive offence to be committed. The offence of a conspiracy
to commit a crime is different from the crime itself, which is one object of conspiracy. The

23
Dr. Kumar Askand Pandey, Principles of Criminal Law in India (1st ed. Central Law Publishing 2014).

13
conspiracy precedes the commission of the crime and is complete before it is attempted. They
are thus separate offences.

So far as abetment by conspiracy is concerned, the abettor will be liable to punishment under
varying circumstances detailed in Sections-108 to 117. For the offence of criminal
conspiracy, it is punishable under Section-120B.The punishments for these two categories of
crimes are quite different. Section 109 I.P.C. is concerned only with the punishment of
abetments for which no express provision is made under the Indian Penal Code. A charge
under Sec. 109 should, therefore, be along with some other substantive offence committed in
consequence of abetment. The offence of criminal conspiracy is on the other hand, an
independent offence. It is made punishable under Section 120-B for which a charge under
Section 109 I.P.C., is unnecessary and indeed, inappropriate.

Put very briefly, the distinction between the offence of abetment under the second clause of
Section107 and that of criminal conspiracy under Section 120-A is that in the former offence,
a mere combination of persons or agreement between them is not enough. An act of illegal
omission must take place in pursuance of the conspiracy and in order to the doing of the thing
conspired for, in the latter offence the mere agreement is enough, if the agreement is to
commit an offence. Conspiracy to commit an offence is itself an offence and a person can be
separately charged. There may be an element of abetment in conspiracy, but conspiracy is
something more than abetment.

The rationale behind distinguishing the two offences is the role played by an abettor and a
conspirator in any offence. The abettor may instigate another and thereby being the
originator of the crime, still has a passive role in the commission of the crime itself. A
conspirator enters into a sort of partnership when he agrees to be a part of the ploy and thus
has a much more active role in the furtherance of the object of the conspiracy. This element
of partnership and an actus contra actum is missing in the offence of abetment and hence
the principle of agency is applicable equally to the conspirators.

CHAPTER 7: CRIMINAL CONSPIRACY-THE NEED FOR REFORM

The offence of criminal conspiracy charts the same path which was laid by the common law
conspiracy in England. Much water has flown through the river but the law on criminal
conspiracy in India remains draconian and archaic.

14
The statutory conspiracy in England is defined in Sec. 1 Criminal Law Act, 1977 as:

(1). Subject to the following provisions of this Part of this Act, if a person agrees with any
other person or persons that a course of conduct shall be pursued which, if the agreement is
carried out in accordance with their intentions either-

(a) Will necessarily amount to or involve the commission of any offence or offences by one or
more of the parties to the agreement, or

(b) Would do so but for the existence of facts which render the commission of the offence or
any of the offences impossible, he is guilty of conspiracy to commit the offence or offences in
question...

(2). Where liability for any offence may be incurred without knowledge on the part of the
person committing it of any particular fact or circumstance necessary for the commission of
the offence, a person shall nevertheless not be guilty of conspiracy to commit that offence by
virtue of sub-section (1) above unless he and at least one other party to the agreement intend
or know that the fact or circumstance shall or will exist at the time when the conduct
constituting the offence is to take place.

The definition though does not require a conduct in pursuance of the agreement has many in-
built safety valves to prevent its misapplication. For example under the definition of statutory
conspiracy the accused must have intended that the crime be carried out. Sec. 1(2) also
provides that the conspirators will not be guilty of an offence unless he intends or knows
certain facts. In R v Simmonds24, the court observed that a conspiracy involves two or more
persons acting or planning to act in concert under some agreement in pursuit of a criminal
design25. Moreover in In R v Ali, Hussan, Khan and Bhatti,26 it was held that statutory
conspiracy has a strict mens rea requirement. Recklessness does not suffice. The court
observed that to the extent to which a substantive offence imposed liability without
knowledge of any particular fact or circumstance necessary for commission of the offence, a
defendant would nevertheless not be liable of conspiracy to commit such an offence. Such
liability would only arise in a case that the defendant and at least another party to the

24
[1969] 1 Q. B. 685
25
R v. Siracusa [1989] Crim. L. R. 712, with OConnor LJ stating, the essence of conspiracy is the agreement.
26
(2006) Q. B. 322

15
agreement intended or knew this fact or circumstance shall exist at the time the conduct
constituting the offence is to take place.27

The mens rea requirement that a party to a conspiracy also needs to intend the consequences
of such conspiracy has raised some difficulties resulting in diverse opinions. The House of
Lords held in R v Anderson,28 that it was sufficient for the prosecution to establish by way of
mens rea that the defendant had agreed on a course of conduct that he intended to play some
part in and knew it would involve the commission of an offence, adding that it was not
necessary to prove that he intended the course of action.

Thus, under the statutory conspiracy in England a clear proof of mens rea is necessary for
conviction. That is not the case in India.

In the U.S., Conspiracy is said to have two different forms of mental element, first the
accused must have intended to enter into an agreement to commit a crime and secondly,
under the Model Penal Code and in most jurisdictions, the accused must also intend to carry
out the object of the conspiracy. This ensures that only those who are morally blameworthy
are guilty of the substantive offence of conspiracy. In Smith v. People10, It has been said that
there is perhaps no crime an exact definition of which it is more difficult to give than the
offence of conspiracy a difficulty resulting in a large measure from the fact that the law on
the subject of conspiracy except where settled by legislative enactment is beyond certain
limits, in a very uncertain state; the cases beyond such limits, which have been adjudged to be
conspiracies, it has been said to stand apart by themselves and to be devoid of that analogy to
each other which would render them susceptible of classification.

Unfortunately, in India, the definition of conspiracy in Sec. 120A, IPC is silent on this point
and the Indian Courts have not elaborately dwelled upon the aspect of moral blame
worthiness in a criminal conspiracy29.

Even the Law Commission in its 42nd Report, failed to suggest any substantial amendment
(relating to actus reus and mens rea) in the law on criminal conspiracy except narrowing
down its scope by suggesting that only those conspiracies where the agreement is to commit

27
R v. Saik (2006) UKHL 18.
28
(1986) A. C. 27 HL.
29
State of Maharashtra v. Som Nath Thapa AIR 1996 SC 1744.

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an offence punishable with imprisonment of up to or more than two years should be
designated as criminal conspiracies30.

It is suggested that the law of criminal conspiracy should be suitably amended to include an
overt act requirement even for agreements to commit an offence of serious nature. This
would be in sync with the need for rationalization of the offence of criminal conspiracy in
India to bring it at par with its counterpart in other common law jurisdictions.

30
The Law Commission Of India, 42nd Report (1971).

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CONCLUSION

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. It has also been reiterated so
that the law of criminal conspiracy is an instrument of the governmental oppression. Needless
to say that the Indian Criminal Law Amendment Act, 1913 , was passed as an emergent piece
of legislation and this measure was motivated by political expediency. 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. 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 I.P.C. needs re-
examination and irrationality which has imperceptibly crept into the Indian law may require
elimination. To apply the law of criminal conspiracy for an agreement to commit torts
generally is not wholesome. 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.

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BIBLIOGRAPHY

BOOKS

1. Granville Williams, Textbook on Criminal Law, (2nd edn. OUP 1999).


2. J. W. Cecil Turner, Kenny's Outlines of Criminal Law, (15th edn., Cambridge
Universitry Press 1952).
3. O.P.Srivastava, Principles of Criminal Law, (5th edn.,Eastern Book Company 2010).
4. Kumar Askand Pandey, Principles of Criminal Law, (1st ed. Central Law
Publishing2014).
5. PSA Pillai, Criminal Law, (12th ed. Lexis Nexis Publishers 2015).

WEBSITES

1. https://www.Indian kannon.org
2. https://www.Lawnet.com
3. https://www.shodhganga.inflibnet.ac.in
4. https://www.lawctopus.com/academike/inchoate-offences-a-detailed-analysis.

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