Section 10 of the Indian Evidence Act, 1872

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.

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Illustration:

Reasonable ground exists for believing that A has joined in a conspiracy to wage war against the Government of India.

The facts that В procured arms in Europe for the purpose of the conspiracy, С collected money in Calcutta for a like object, D persuaded persons to join the conspiracy in Bombay, E published writings advocating the object in view at Agra, and F transmitted from Delhi to G at Kabul the money which С had collected at Calcutta, and the contents of a letter written by H giving an account of the conspiracy, are each relevant, both to prove the existence of the conspiracy, and to prove A’s complicity in it, although he may have been ignorant of all of them, and although the persons by whom they were done were strangers to him, and although they may have taken place before he joined the conspiracy or after he left it.

Comments:

Conspiracy:

Section 10 deals with the admissibility of evidence in a conspiracy case. It is based on the “theory of implied agency.” The special feature of the section is that anything said or done or written by any member of conspiracy is evidence and admissible against the other if it relates to the conspiracy. This section has to be read with Section 120A of the Indian Penal Code. When any conspirator has assumed to do any act of conspiracy in furtherance of common design, it is a part of res gestae. All conspirators must have “common intention” at the time when the thing was said, done or written. Confessions by accused made after the object of the conspiracy is carried out are not relevant as the common intention was not then existing.

The first condition for applying Section 10 is that the conspirators have conspired together. The conspiracy is, therefore, an unlawful combination of two or more persons to do an unlawful act or a lawful act by unlawful means. There must be reasonable ground to believe that two or more persons have conspired together to commit an offence. However, a conspiracy is not actionable act giving rise to cause of action.

Ingredients:

(1) There must be an agreement between two or more persons who are alleged to conspire, and

(2) The agreement should be to do or cause to be done:

(i) An illegal act, or

(ii) An act which is not illegal but by illegal means.

Test of conspiracy:

The conspiracy is an inchoate crime. The gist of it is bare engagement and association of persons to break the law in furtherance of common object. The conspiracy itself is not an ingredient of an offence that all parties have agreed to do a single act, rather, in course of carrying out the conspiracy, the commission of a number of illegal acts is done to that effect. The law does not take notice of the intention or state of mind of the offender and there must be some overt act to give expression to the intention. The test is to establish: (i) there is reasonable ground to believe that a conspiracy existed, and (ii) such act was done and the statement made or writing exchanged between conspirators. Thus, “before bringing on record anything said, done or written by an alleged conspirator the court has to bring on record some evidence which prima facie proves the existence of the conspiracy.” All acts and statements of a conspirator can only be used for the purpose of proving the existence of the conspiracy or that a particular person was a party to it. It cannot be used in favour of the other party or for the purpose of showing that such a person was not a party to conspiracy. The common concern and agreement which constitute the conspiracy serve to unify the acts done in pursuance of it.

Relevancy of conspiracy:

This has been the rule of conspiracy under section 10 that any thing said, done or written by any one of the conspirators against each other is believed to be cons-pirating and is relevant. Once there was sufficient material to reasonably believe that there was concert and connection between persons charged with common design, it is immaterial as to whether they were strangers to each other, or ignorant of actual role of each of them, or that they did not perform any one or more such acts by joint efforts.

The question is whether the statements made or act done by others before the accused joined the conspiracy is relevant or not. According to the expression “in reference to their common intention” the statement made or act done by other is a relevant fact and is admissible. In Ghulam Din Bitch v State of J. & K. it was held that in a trial of government employees who were carriage contractors, when there is a finding that there was a close relationship between the carriage contractors and the government employees who had acted in consent, absence of a charge of conspiracy between the two was not material.

The statements by one conspirator to another during the period of conspiracy relating to the implementation of that conspiracy and the evidence as to the acts done by him disclosing participation of the other conspirator are relevant. Retracted confession of a co-accused unless corroborated by any evidence circumstantial or otherwise which can connect the accused with the crime, can be basis for conviction of the accused.

But, any statement or act made or done after the conspiracy is a very different matter. Once it is shown that a person is out of conspiracy and statement made to the police officer during post-arrest period, whether such statement is a confession or otherwise touching his involvement in the conspiracy, would not fall within the ambit of Section 10 of the Evidence Act. The burden of proving the commission of offence by the accused remains on the prosecution and would not be lessened by the mere fact that the accused had pleaded alibi.

In State of Gujarat v Mohammed Atik the Supreme Court held that any statement by an accused after arrest, whether a confession or otherwise, had not to fall within the ambit of this section. Confession was made by the accused after common intention of parties was no longer in existence, Section 10 cannot be invoked against co-accused.

Principles of Conspiracy:

The essence of Section 10 lies within the expression “common intention.” The words “common intention” signify a common intention existing at the time when the thing said, was or written by one of them.² Any narrative, or statement or confession made to a third party after the common intention or conspiracy was no longer operating and had ceased to exist is not admissible against the other party. Therefore, the statement of woman to the Magistrate was not admissible, as the conspiracy was already completed.” This principle was approved by the Supreme Court in Sardul Singh v State of Bombay where it held that “principle underlying the reception of evidence under section 10 of the Evidence Act, the statements, Acts, and writing of one co-conspirator as against the other is on the theory of agency.” The ‘theory of agency’ has also been referred to by the Supreme Court in Badri Rai v State of Bihar where it stated that the offering of bribe along with the statement was admissible not only against the first appellant but also against the second appellant on the basis of “theory of agency” in pursuance of the object of the conspiracy. It is a principle of common sense that one person alone can never be held guilty of criminal conspiracy for the simple reason that he cannot conspire. The House of Lords in the famous case of Mulcahy v R. made the following observation:

“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 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 it lawful, punishable if for a criminal object or for the use of criminal means.”

The application of the doctrine laid down in Section 10 is strictly based on “reasonable ground” that two or more persons have conspired together to commit an offence. “Once reasonable ground, to believe that several persons have conspired to commit an offence, exists, the acts and declarations of a particular person in reference to the common intention are relevant facts although that person may not so much as even to know of the existence of many others engaged in the conspiracy or where utter strangers to him.” Regard must also be had to the limits within which this class of evidence can be used. There must be reasonable ground to believe that two or more persons have conspired together to commit an offence. When confession was made by the accused after common intention of the parties was no longer in existence Section 10 cannot be invoked against co-accused.