Where the agreement between certain persons is a conspiracy to do or continue to do something which is illegal, it is immaterial whether the agreements to do any of the acts in furtherance of the commission of the offence do not strictly amount to an offence.
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The entire agreement must be viewed, as a whole and it has to be ascertained as to what in fact the conspirators intended to do or the object they wanted to achieve. Consequently, even if the acts done by a conspirator in furtherance of the criminal conspiracy do not strictly amount to offence, he is liable to be convicted under Section 120-B.
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To substantiate a charge under Section 120-B of the Penal Code, there must be a criminal conspiracy at least between two or more persons. Thus, where there was not an iota of evidence to establish that the three accused prior to the commission of the offence had conspired together with the fourth accused and got forged from him the ruqqa to secure an entry into the house of the deceased and there was nothing to show that the fourth accused had been associating with the other accused, it was held by the Supreme Court that the fourth accused was entitled to be acquitted.
The case of the prosecution was not that the conspiracy was about doing of an illegal act to come under Section 120-A (1), but that it came under Section 120-A (2), far from literature seized, there was no direct exhortation for committing dacoity but for distributing the riches of the rich to the poor.
The object, therefore, was noble, though the method proposed, namely, by robbing the rich is illegal. According to proviso to Section 120-A (2) where the agreement is to do an act which would not be an offence, some overt act in pursuance of the agreement needs to be done in order to constitute criminal conspiracy.
There was no such allegation. Mere exhortation to take to the Naxalite method without anything more may not satisfy the requirements of Section 120-A (2) of the Code.
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The essence of the offence of criminal conspiracy is that there must be an agreement between two or more persons to do an act which is contrary to or forbidden by law. The conspiracy consists not merely in the intention of two or more but in the agreement of two or more to do such acts.
So long as such a design is only an intention, it is not punishable. The agreement between conspirators cannot generally be directly proved but only inferred from established facts of the case.
Conspiracy is capable of being proved either by direct evidence or by proof of circumstances from which a legitimate inference of the existence of an agreement can be drawn.
Since privacy and secrecy are elements of criminal conspiracy, it is difficult to obtain direct evidence in its proof. Criminal conspiracy can, therefore, be proved by evidence of the surrounding circumstances and the conduct of the accused both before and after the alleged commission of the crime.
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The agreement necessary to constitute conspiracy may be inferred from circumstances raising a presumption of a concerted plan to carry out the unlawful design from the concerted conduct of the accused in preparing the forged writings, it could unerringly be inferred that they had agreed to prepare forged railway passes with the intention of causing wrongful loss to the Railway, and in pursuance of the agreement they did prepare the forged passes.
The accused were therefore rightly convicted of an offence of criminal conspiracy under Section 120-B of the Indian Penal Code.
The element of agreement to establish the link between accused and accused so as to involve the entire group in a charge of criminal conspiracy is necessary. While it is true that conspiracy by direct evidence is difficult to establish, it is equally true that the existence of conspiracy cannot be assumed from a set of unconnected facts or from a set of conduct exhibited by different accused persons at different places and times without reasonable justification for drawing the link.
Positive proof of express agreement between the conspirators to do or cause to be done the illegal act is not necessary. The agreement may be proved by necessary implication. The fact that the accused were possessing and selling explosive substances without a valid licence for a pretty long time has been considered to be the proof of agreement.
In this connection we may note the observations of the Supreme Court in Kehar Singh v. State (Delhi Admn). In that case the Court remarked that ‘the conspiracy can be undoubtedly proved by such evidence direct or indirect.
But the Court must enquire whether the two persons are independently pursuing the same end or they have come together to the pursuit of the unlawful object. The former does not render them conspirators, but the latter does.
It is, however, essential that the offence of conspiracy requires some kind of physical manifestation of agreement. The express agreement however need not be proved. Nor actual meeting of two persons is necessary. Nor it is necessary to prove the actual words of communication.
The evidence as to transmission of thoughts sharing the unlawful design may be sufficient. The relative acts or conduct of the parties must be conscientious and clear to mark their concurrence as to what should be done.
The concurrence cannot be inferred by a group of irrelevant facts artfully arranged so as to give an appearance of coherence. The innocuous, innocent or inadvertent events and incidents should not enter the judicial verdict’.
In order to prove a criminal conspiracy there must be direct or circumstantial evidence to show that there was an agreement between two or more persons to commit an offence. This clearly envisages that there must be 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.
As observed by Shetty J.,in Kehar Singh’s Case (1988 SC) Sections 120-A and 120-B have brought the law of conspiracy in India in line with the English Law by making the overt act unessential where the conspiracy is to commit any punishable offence.
Agreement can be inferred from overt acts and conduct. If it is proved that the persons charged with conspiracy pursued by their acts the same object, one performing one part and the other performing another part, with a view to attaining the object they were pursuing, the inference of conspiracy will be justified.
Overt acts, though not required to be proved where the agreement is to commit an offence, raise a presumption of agreement, knowledge of the purpose of the conspiracy, and properly looked at, the evidence of the existence of a concerted action.
The offence of criminal conspiracy is a distinct offence. 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 performance in the chain of actions with one object to achieve the real end of which every collaborator must be aware and in which every 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.
In the case of Girija Shankar Mishra v. State of U.P., the Supreme Court observed that in a case accused with two persons were charged to have conspired to kill the victim. Offence was not proved against the person alleged to have actually committed murder. The remaining accused alleged to have conspired murder could not be sentenced under Section 302 read with 120-B as one alone cannot conspire.
The Allahabad High Court in Laloo alias Nahar Singh v. State of U.P., held that Section 120 B is an offence of conspiracy. The said section cannot be applied simplicitor unless and until some offence is disclosed. There cannot be any conspiracy without any offence. Section 120 B has to be appended with a primary offence.
The essence of conspiracy is that there should be an agreement between persons to do one or other of the acts described in the section. The said agreement may be proved by direct evidence or may be inferred from acts and conduct of the parties.
There is no difference between the mode of proof of the offence of conspiracy and that of any offence. It can be established by direct evidence or by circumstantial evidence. But Section 10 of the Evidence Act introduces the doctrine of agency and if the conditions laid down therein are satisfied, the act done by one is admissible against the co-conspirators.
This section will come into play only when the Court is satisfied that there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, that is to say, there should be a prima facie evidence that a person was a party to the conspiracy before his acts can be used against his co-conspirators.
Once such a reasonable ground exists, anything said, done or written by one of the conspirators in reference to the common intention, after the said intention was entertained, is relevant against the others, not only for the purpose of proving the existence of the conspiracy but also for proving that the other person was a party to it.
The evidentiary value of the said act is limited by two circumstances, namely, that the acts shall be in reference to their common intention and in respect of period after such intention was entertained by any one of them.
The expression “in reference to their common intention” is very comprehensive and it appears to have been the English law; with the result, anything said, done or written by a co-conspirator, after the conspiracy was formed, will be evidence against the other before he entered the field of conspiracy or after he left it.
Another important limitation implicit in the language is indicated by the expressed scope of its relevancy. Anything so said, done or written is a relevant fact only, as against each of the person believed to be 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.
It can only be used for the purpose of proving the existence of the conspiracy or that the other person was a party to it. It cannot be used in favour of the other party for the purpose of showing that such a person was not a party to the conspiracy.