Criminal Conspiracy can be defined as an act when two or more persons agree to do or cause to do:
- Any illegal act.
- Any act which is done through illegal means.
It is important to note that the objective to commit such a crime is very important in this act. In the case of Mulcahy v. Regina, it was said that the criminal intent of doing an act is very indispensable from constituting an act of conspiracy. In Rex v. Jones, it was first held that “Criminal Conspiracy ought to charge a conspiracy, either to do an unlawful act or a lawful act by unlawful means”.
The idea of intent extends in various cases in national and international law. Many have argued on the constitution of the ‘unlawful’ act. The real meaning to that is still getting scrutinised by the courts, however, we can still count that as anything which is against the law.
A criminal conspiracy was considered a civil offence, initially. The idea behind this was two-fold:
- Abetment in any offence; or
- Conspiracy with criminal intent.
But later on, it began to be considered a criminal offence. In 1868, the scope was widened by adding it to Section 121A of the Indian Penal Code, 1862. The history of criminal conspiracy has evolved through a series of cases.
In Rajiv Kumar v State of UP, the court took out some basic necessary ingredients to constitute conspiracy,
- 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.
The ingredients must be present in any act to constitute it as a crime of criminal conspiracy. In Pratapbhai Hamirbhai Solanki v. the State of Gujarat and another, the apex court held that the most important ingredient is the intent to cause an illegal act.
The nature and scope of Criminal Conspiracy are limited to conspiring to do an illegal act by two or more persons. No one person can constitute the offence. It requires two or more persons to agree to do some act. The underlying purpose of the Sections was to prevent any illegal act from happening before the constitution of a criminal act.
The nature of the sections is preventive. It helps in the prevention of any criminal activity. The next step after this stage is the performance of the act. So, the scope of the law is only limited to agreement and meeting of minds with regards to a criminal act.
In Ram Narayan Popli v CBI, the court laid down several aspects of Criminal Conspiracy,
(a) an object to be accomplished,
(b) a plan or scheme embodying means to accomplish that object,
(c) an agreement or understanding between two or more of the accused persons whereby, they become committed to cooperate for the accomplishment of the object by the means embodied in the agreement, or by any effectual means, and
(d) in the jurisdiction where the statute required an overt act.
The crime is inherently psychological. The proof of such an act is also difficult. It can be ascertained by the fact that some act was kept a secret. However, this does not constitute an essential element of the conspiracy. It can be done through:
- Direct Evidence or;
- Circumstantial Evidence
It was held in the case of Quinn v. Leathern, that inference is generally deduced from the acts of the parties in pursuance of the predetermined acts. In such a crime, circumstantial evidence and direct evidence turn out to be the same because there has not been an act, yet. The act is only being conspired.
The Doctrine of Agency also comes into play in this scenario. The fact that there was an agency in the conspiracy may prove that there was the involvement of this person in the act. This was held in Bhagwan Swaroop Lai Bishan Lai v. the State of Maharashtra.
Section 120B specifies the punishment given to the persons convicted for the crime of conspiracy. They may be punished with death or rigorous imprisonment. The nature of this section is punitive. The scope of this section is limited to providing punishments after the accused has been convicted.
In the case of Topan Das v State of Bombay, the court held that the person must not be alone in conspiring for the offence. The accused was acquitted from the case because he was the sole person who had conspired for the crime. The acquittal of this case meant that the person was liable for all the other offences that had been committed and proved.
Charges are framed based on the nature and magnitude of the crime. The accused is often charged with a substantive offence and along with that, is also charged for criminal conspiracy. In-State of Maharashtra & Ors. v. Som Nath Thapa & Ors., it was said that 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.
Section 107 of the Indian Penal Code, 1860 states the offence of Abetment. The section states that:
- 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.
Section 120B is suggestive of the punishment of 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 criminal conspiracy just requires a meeting of minds.
The National Commission of Criminal Defense Lawyers has suggested that there must be reforms regarding conspiracy and proof of the offence. These considerations are still on the table, which is why the reforms have not been implemented, as of now.
Joint liability is a term used for people who have committed an act in pursuance of a common intention, where each of the persons is liable in the same manner, as this act was done by them alone. Section 34 IPC, states the joint liability of partners in crime.
The section only provides for the constitution of joint liability, not the punishment. This section is only a rule of evidence and does not constitute a substantive offence. It provides for the principle of constructive liability. As this section is not an offence in itself, this section is always read with other sections under the Indian Penal Code, 1860. This is the limited scope of joint liability under Section 34, Indian Penal Code, 1860.
In the case of Chhotu v State of Maharashtra, the complainant and the proof proved that three persons were assaulting the victim. The three persons were held liable under joint liability and assault. So. it can be deduced that the section cannot be read alone and requires to be read with some other section under the statute of India.
Section 149 of the Indian Penal Code, specifies that there must be a common intention along with the unlawful act. The section holds the people in the act of unlawful assembly jointly liable for the act done through a common intention.
In the case of Queen v Sabib Ali, the common intention was viewed as a pathway to complete the unlawful action.
In the case of Ganesh Singh v Ram Raja, the court said that the common objective must be achieved through a common intention of doing the task. It is generally ascertained by prior meetings, meeting of minds and pre-arranged plans of doing something which is not legal.
In Kripal Singh v State of Uttar Pradesh, the court said that the common intention is supposed to be ascertained from the facts and the circumstances of the case. The scope of common intention is also supposed to be ascertained by the facts and circumstances of the case.
Common intention is guided by several principles:
- Mere surrender is not derivative of the fact that it will be counted as common intention.
- It is necessary that there has been a been a prior conspiracy relating to that act.
- When the offence is proved only on the basis of circumstantial evidence, the allegations of common intention cannot be established in the absence of meeting of minds.
- Section 34 is only a rule of evidence and does not create a substantive offence.
- The common intention should be prior or antecedent to the occurrence.
- Common intention may develop during the course of the occurrence and could develop on the spot.
- Common intention is different from same or similar intention.
In the case of Sachin Jana and anr. v State of Bengal, it was mentioned that the section is a rule of evidence. The distinctive feature is the participation of the jointly liable people. The participation in the direct offence will not matter but the people will be jointly liable as though, the offence has been committed by that person only.
The common intention doctrine states that there should be an antecedent to the occurrence. A clear distinction is made between common intention and common object is that common intention denotes action in concert and necessarily postulates the existence of a pre-arranged plan implying a prior meeting of the minds, while common object does not necessarily require proof of prior meeting of minds or pre-concert.
Though there is a substantial difference between the two sections namely Section 34 and Section 149, they also to some extent overlap and it is a question to be determined on the facts of each case.
Common intention has to be ascertained in the investigations, however, it doesn’t need to happen before the occurrence only. It might happen during the occurrence of the act as well. The intention is curated at any given point in the action.
Common intention mentions the fact that the people involved in the act had a common intention, whereas similar intention includes the change in intention during the act due to the intervention of some other external circumstances.
For example, there had been a common intention of 4 people to commit the offence of abduction. But, in the process, if one of them kills the person who was abducted without the consent of other parties. That person will be held liable for abduction and murder and the rest will be liable only for abduction.
Joint liability becomes complicated when it talks about the situation where people divide into hostile groups. The liability is difficult to determine because that creates a problem in ascertaining whether the offence has been committed by the people or not and to what extent is it performed by them.
Participation in the criminal act comprises of the following aspects:
- Ordering, soliciting or inducing;
- Participation in a common purpose;
- Punishment as a perpetrator.
The criminal act is ascertained by the presence of these elements.
In Jai Bhagwan v State of Haryana, it was said that in the absence of any overt act and proof of intention, the common intention will not be proved and the person cannot be held liable for the offence. Common intention is a prerequisite for a crime in a joint liability, along with participation in the crime.
The crime will not be proved in case there is the absence of proof of overt acts. The effect of such a circumstance is that one will be acquitted in the absence of proof of an overt act against him or her.
Proof of common intention is evaluated through the measurement of participation in overt as well as covert acts. The parties prove their involvement in the carrying out of the act. The proof of common intention is measured by witnesses and deduced circumstances.
Common intention can also be proved by the statements provided by the parties involved. The conduct of parties as evidence may be used for proving common intention. For example, in the case of a theft, the conduct of the people involved is proved by their participation and conduct in the crime.
This counts as the basic mode of proving the common intention of people involved in the crime. The evidence that was found during the investigation of the circumstances is generally taken as the most crucial evidence of proving the common intention.
In the case of Suresh and Anr. v State of Uttar Pradesh, the court said that there either needs to be direct evidence of the involvement or there has to be proof of a prearranged plan. The necessity arises from the fact that the common law does not allow any person who is not guilty to be charged as guilty. That is why there must be the ultimate proof of an overt act for proving common intention.
The appreciation of evidence refers to the fact that there must be a shred of applicable evidence which can be considered as a piece of evidence. The evidence must be appropriate according to the Evidence Act, 1872. This evidence must be such that the person accused cannot be given the benefit of doubt under any circumstances. In case the evidence is not able to remove all the doubts, then it must be considered as insufficient evidence and the accused must be given the benefit of doubt. This is derived from the English legal system.
The effect is such that if the parties are not able to prove the involvement of a co-accused, the person is acquitted from the charges. In this case, the co-accused who has already been proven guilty has to perform his term of the punishment. The convict may also bring evidence against the co-accused, to prove his or her guilt.
The difference over here in these sections is just that of ‘common intention’. Charges may be imposed against people under Section 149, but in case they can prove that there was no common intention of the unlawful assembly then they may be absolved from criminal liability under Section 34. The same cannot be done if they are not able to prove a lack of common intention.
Common object is a derivative of ‘motive’. Motive is the ultimate reason of each person involved, which is leading a group to pursue a common intention, which is the result. The common intention is essentially how the group in furtherance of the commission of the crime. The object must be similar to prove guilt. Motives may differ but the performance must contain a ‘guilty mind’.
‘Act’ is the commission of some action in the direction of the commission of an offence. Whereas omission refers to an act that was supposed to make the act legal, but the non-performance of that act makes this act illegal.
The distinction between Sections 34 and 37 is that while the former requires a common intention for a criminal act done by several persons (i.e., unity of criminal behaviour which results in a criminal offence), in which case each actor becomes liable as if that act were done by him alone.
Section 37 deals with intentional cooperation in an offence committed employing several acts, and punishes such cooperation (provided it consists in doing any one of those acts either singly or jointly with any other person) as if it constituted the offence itself.
Criminal conspiracy and joint liability are indispensable parts of our criminal legal system. The study above shows the relation between them along with understanding them separately. Where it is safe to say that there is still a large scope of possible reforms in the system, it has also been modified according to the need of the hour from the time.