What is Criminal Conspiracy?

By Floren Kesharwani 14 Minutes Read

Introduction

The word conspiracy dates back to the middle of the fourteenth century. Its original meaning was the conspiracy of evil or illegal design, i.e., the joining of individuals for nefarious ends.

The word conspiracy originates from the terms “conspiracies” in Old French and Anglo-French, both of which denote a plot or conspiracy.

The conspiracy was regarded as a civil wrong until the day it was included in the Criminal provisions. Conspiracy is only criminalized in two ways under the IPC/ BNS:

1. Abetment in a conspiracy.
2. Conspiracy is a component of some crimes. For example, “robbery”, “thug”, etc.

But in 1868, the definition of conspiracy was broadened, and it was established that a plot becomes a criminal offense when two or more individuals conspire to engage in illicit activity or carry out a lawful act in an illegal manner. Criminal conspiracy therefore penalizes intent without the performance of the particular overt activity. This broader definition was allowed for under Section 121A of the Indian Penal Code via Act 27 of 1870.

The act or omission did not need to be carried out for the conspiracy to be furthered under this clause. With the amendment in IPC by Act 8 of 1913, Chapter V-A, which includes Sections 120A and 120B, was inserted. These sections increased the reach of the nation’s anti-conspiracy laws.

With the introduction of the Bharatiya Nyay Sanhita, 2023, criminal conspiracy has been retained in Chapter IV under Section 61. This provision maintains the legal framework for addressing and penalizing criminal conspiracy in the Indian legal system, ensuring consistency and clarity in dealing with such offenses.

Definition and Meaning

• It was first mentioned in the Lord Denman case[1] in Jones, Willies; J. wrote “that a conspiracy conviction would charge a conspiracy to perform an illegal act by illegal means.“
• Further, in the case of Mulcahy vs. R (1868)[2], a conspiracy is defined by the House of Lords as “an agreement between two or more people to commit an unlawful act by unlawful means, rather than just the intention of two or more people to do so“. Such a design is not indictable as long as it is based solely on intention. Because of this, it requires the consent of two or more people to be carried out, and the scheme itself is illegal in and of itself due to the employment of illegal objects or methods.
• In India, the act of criminal conspiracy is defined under Section 120A of the Indian Penal Code (1860) / Section 61(1) of the Bharatiya Nyaya Sanhita, 2023:

“When two or more people agree to perform or cause to be done,

a. an unlawful act, or

b. an act that is not illegal but is done illegally, this is referred to as a criminal conspiracy:

Provided, however, that no agreement, other than an agreement to commit an offense, will constitute a criminal conspiracy unless one or more parties to such agreement perform some act other than the agreement in furtherance thereof.

 — Explanation: It makes no difference whether the illegal behavior is the ultimate goal of the agreement or just a byproduct of it.”

This proviso clarifies that while the agreement itself is punishable, for agreements other than those to commit offenses (like robbery, thuggery etc.), at least one overt act needs to be done to fulfill the crime of criminal conspiracy.

Thus, conspiracy became a substantive offense under this definition, along with forms of abetment, conspiracy to wage war against the Government of India, and participation in other specific offenses.

Essential Elements

In the case of R Venkatkrishnan v. CBI[3], the Supreme Court delineated the essential components of criminal conspiracy.

1. Two or more people should come to an agreement:

A consensus must be reached by two or more people. The conspirators will all be held accountable for any multiple offenses committed in line with the criminal conspiracy, even if some of them did not actively take part in the crimes’ commission.

2. Such an agreement should be done:

a. To do an illegal act

b. For an individual to be held accountable for a criminal conspiracy there must be an agreement to commit any conduct that violates the law or is prohibited by it.

Similar to the ruling in Kehar Singh and Others v. State (Delhi Admn.)[4], the Supreme Court determined that a two- or more-person agreement to commit an illegal act is the primary component of the conspiracy offense. The agreement itself constitutes an offense and is punishable, regardless of whether the unlawful act is carried out in accordance with it or not.

c. Or to do a legal act by illegal means

Criminal conspiracy is the commission of any act, even if it is legal but carried out illegally.

3. The agreement could be somewhat stated and partially implied, explicitly stated, or both.

4. The conspiracy starts as soon as the agreement is made, and the crime is carried out.

5. And as long as the combination is present, the same offense is kept up to date.

Note: A conspiracy charge needs to involve a minimum of two parties. If you are the only individual engaged in a criminal scheme, there is no conspiracy.

Proving Criminal Conspiracy

• Criminal conspiracy is a crime that can be challenging to establish since it involves concealment and the full truth is only known by those who are part of the conspiracy. When it comes to exposing criminal schemes, the investigative agency is crucial.
• Criminal conspiracies are psychological crimes that are challenging to establish since the true crime is committed in the conspirators’ minds, and all of their communications are always confidential and code-locked.
• In the case of State (Delhi Admn.) Vs. V. C. Shukla[5], the court stated that “direct or indirect evidence can be used to demonstrate criminal conspiracy”. A criminal conspiracy often originates in a clandestine and secret setting, making it extremely difficult to provide any concrete evidence on the criminal conspiracy’s creation date, members, goal, or intended course of action.
• Therefore, circumstantial evidence plays a crucial role in connecting the accused to the criminal plot when there is a dearth of direct proof. It is salient to underscore that in the case of criminal conspiracy, the idea that a husband and wife are considered one person is not accurate. At least one must take an overt act to further the agreement, and then only he can be reasonable suspicion.
• Moreover, the case is widely referred to as the Rajiv Gandhi assassination[6]. According to the decision in this case, one need not be a conspirator to be aware of conspiracies. It was decided that in order to prove that there is a consensus among the participants, it was also necessary to present adequate proof that there is a meeting of minds between the members of the conspiracy.

Admission of Evidences in Conspiracy Cases

• The concept that an act of one conspirator becomes the act of another once a conspiracy to conduct an illegal act is proven is described in Section 10 of the Indian Evidence Act, 1872/ Section 8 of the Bharatiya Sakshya Adhiniyam, 2023. Section 10 of the IEA or Section 8 of the BSA deals with admission of evidence in conspiracy cases.

• According to this clause, any action, statement, or writing made by one of the conspirators regarding their shared goal may be used as evidence against the other conspirators to establish the conspiracy’s existence or the involvement of that individual.

• Prior to such a truth being acknowledged, nevertheless, the following requirements must be met:

1. A plausible suspicion that two or more people have planned to commit an offense or a legally actionable infringement must have existed.
2. Anything expressed, deeds, or writings by any of them about their common intention may be accepted as evidence against the others, provided that they are made after the moment when any of them first formed the intention.

• The highlight part is the introduction of the “doctrine of agency,” which is the centerpiece of Section 10 of the Indian Evidence Act.

“Anything said, done, or written is considered a relevant fact for the purpose of establishing the existence of the conspiracy and the conspirators’ simple membership in it”, according to this provision.

• In the renowned case of Smt. Indira Gandhi’s assassination[7], there was insufficient direct evidence to establish a conspiracy. However, the court was able to establish prima facie evidence of conspiracy against Kehar Singh (the accused) with the aid of Section 10 of the Indian Evidence Act.

Punishment for Criminal Conspiracy

The Section 120B of the Indian Penal Code / Section 61(2) of the Bharatiya Nyaya Sanhita, 2023 addresses punishment for criminal conspiracy. The severity of the offense determines the punishment for criminal conspiracy under section 120A. The punishment is more severe if the agreement is to conduct a significant offense.

In situations where there is no explicit provision in the Code for the punishment of an individual who conspired to commit an offence that carries a sentence of life imprisonment, death, or rigorous imprisonment for a period of two years or more, then he will be liable for punishment in the same manner as if he had abetted such an offence. Abetment refers to the act of supporting or enabling someone to commit a crime.

If the conspiracy exists between two or more persons to commit an offence which is not mentioned above, then, they may be fined or imprisoned for a maximum of six months.

Conclusion

A greater danger to a community than individual crimes is posed by criminal conspiracies or widespread collaboration in criminal activity. When several people work together to commit an offense, there is a greater likelihood that the criminal goal will be carried out. People should be aware of the gravity of criminal conspiracy and refrain from taking part in any actions that might be interpreted as conspiratorial. The term “conspiracy to commit an unlawful offence” refers to a broad category of criminal offenses. In this regard, the law still has to be amended by legislation, and the heads of offenses can decide how the law is applied.

[1]1832B & AD 347.

[2]LR. 3 H.H. 306.

[3]AIR 2010 SC 1812.

[4]AIR 1988 SC 1883.

[5]AIR 1980 SC 1382.

[6]State v. Nalini 1999 (5) SCC 253.

[7]AIR 1988 SC 1883.

Floren Kesharwani