2015

Indian Penal code monsoon semester project

Suchismita Barua - 214124

Contents

Introduction 2

Ingredients of Criminal Conspiracy 4

Two or more persons 4

Agreement – Gist of Offence 5

An Overt Act 6

Elements of Criminal Conspiracy 8

Hypothetical Situations 8

Conclusion 12

BIBLIOGRAPHY 12

Introduction

The criminal code in India is governed by the Indian Penal Code, 1860

(hereinafter IPC). The IPC was drafted by the First Indian Law Commission

presided over by Mr. Macaulay. The draft underwent revision at the hands of

well - known jurists, like Sir Barnes Peacock, and was completed in 1850. The

IPC was passed by the then legislature on October 6, 1860 and was enacted as

Act No. XLV of 1860. IPC exhaustively codifies the law relating to offences.

One of those offences is criminal conspiracy. The scope of this project is limited

to the study of criminal conspiracy under IPC and will discuss the offence, its

ingredients and essential elements. In the end, for a better understanding of the

concept, hypothetical situations will be framed and solutions and reasoning for

the same would be formulated.

Black’s law dictionary defines ‘Criminal Conspiracy’ as “A combination or

confederacy between two or more persons formed for the purpose of

committing, by their joint efforts, some unlawful or criminal act, or some act

which is innocent in itself, but becomes unlawful when done by the concerted

action of the conspirators, or for the purpose of using criminal or unlawful

means to the commission of an act not in itself unlawful. In simple words, it is

an agreement between two or more people to commit an unlawful act or a

lawful act by unlawful means. Criminal conspiracy under IPC is defined under

section 120-A. Section 120-A1 says “Definition of criminal conspiracy.—When

two or more persons 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 agreement is designated

a criminal conspiracy: Provided that no agreement except an agreement to

1 Indian Penal Code, 1860

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.]”.

The offence of criminal conspiracy was introduced by the Criminal Law

(Amendment) Act, 1913. It is an exception to the general law where intent alone

does not constitute crime2. It requires agreement to commit crime with another

man in addition to intention. The agreement maybe express or implied, or in

part express and part implied. The conspiracy arises and the offence is

committed as soon as the parties come to consensus ad idem and it continues as

long as the combination persists, that or by abandonment, or frustration or

however, it may be. “The actus reus in conspiracy is the agreement to commit

an unlawful act, and not the execution of it. It is not enough to show that two or

more persons pursued the same unlawful object at the same time and at the

same place; it is necessary to show the meeting of minds. It is not however

necessary to for each conspirator to communicate with each other. Conspiracy

ends when the execution of offence takes place. In other words conspiracy ends

where the offence starts. Conspiracy requires an overt act in furtherance of an

unlawful act by two or more persons other than conspiracy to commit an

offence where just an agreement between two persons to commit an offence is

enough.”3

Ingredients of Criminal Conspiracy

The ingredients of this offence are –

1) There must be an agreement between two or more persons to conspire ; and

2) That the agreement should be

2 RATANLAL & DHIRAJLAL, THE INDIAN PENAL CODE, 201 (Versha Vahini ed., 2014)3 HALSBURY’S LAW OF ENGLAND

(i) For doing an illegal act, or

(ii) For doing by illegal means an act which may not itself be

illegal.

A conspiracy is a continuing offence which continues to subsist till it is

executed or rescinded or frustrated by choice of necessity. During its

subsistence, whenever any one of the conspirators does an act or series of acts,

he would be held guilty under Section 120-B of the Indian Penal Code.

Two or more persons

One of the essential requirements of criminal conspiracy is conspiracy between

two or more persons. This principle has been laid down by the Supreme Court

in Topandas v. State of Bombay4 with approval of Haradhan Chakrabarty v.

Union of India5. The Supreme Court said “two or more persons must be parties

to such an agreement and one person alone can never be held guilty of criminal

conspiracy for the simple reason that one cannot conspire with oneself”. It is not

essential that more than person should be convicted for the offence of criminal

conspiracy if it can be shown that two or more persons were actually concerned

in the criminal conspiracy6.

The circumstances in which a single person can be tried and convicted under

criminal conspiracy have been stated in Kenny– “But though there must be

plurality of conspirators, it is not necessary that all should be brought to trial

together. One person maybe indicted, alone, for conspiring with other persons

who are not in custody, or who are even unknown to the indictors. Indeed, some

of the conspirators may be unknown to the rest, provided all be acting under the

directions of one leader. There need not be communication between each

4 (1955) 2 SCR 881 : AIR 1956 SC 33 : 1956 Cr LJ 1385 (1990) 2 SCC 143 : AIR 1990 SC 1210 : 1990 Cr LJ 12466 Bimbadhar Pradhan v. The State of Orissa, AIR 1956 SC 469

conspirator and every other, provided there be a design common to all”7.

Therefore A who is the wife of B knows that B is conspiring with others and

agrees with him to join the conspiracy and plays her part, she would be held

liable for conspiracy notwithstanding that the only person she had an agreement

with was her husband8.

Agreement – Gist of Offence

The most essential requirement of criminal conspiracy is an agreement to

commit an illegal act or a legal act by illegal means. The gist of the offence is

the bare engagement and association to break the law whether an act be done in

pursuance thereof by the conspirators or not9. Mere knowledge or discussion of

the conspiracy is not enough10. Therefore in a case where A and B are

conspiring to commit an offence and C is the brother of A who enters the room

where A and B are conspiring to serve tea and hears the whole conversation

about the conspiracy, he would not be liable for criminal conspiracy since mere

knowledge is not enough and an implied or express agreement to the said

conspiracy is required. In absence of an agreement, a mere thought to commit a

crime does not constitute the offence11. Criminal conspiracy is a substantive

offence and renders mere agreement to commit an offence punishable even if no

offence takes place in pursuance of the illegal agreement.

An express agreement need not be proved12. Evidence relating to transmission

of thoughts leading to sharing of thought relating to the unlawful act is

sufficient13. 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 conspiracy. It has to be shown that all means adopted and illegal 7 KENNY’S OUTLINES OF CRIMINAL LAW, 428 (J.E. Cecil Turner ed., 1966)8 Regina v. Chrastry, (1991) 1 WLR 1381 (CA)9 Chaman Lal v. State of Punjab (2009) 11 SCC 721 AIR 2009 SC 297210Sudhir Shantilal Mehta v. CBI 8 (2009) 8 SCC 1 : (2009) 3 SCC (Cri) 64611 R Venkatakrishnan v. CBI ( 2009) 11 SCC 73712 Vahini, supra note 20413 Esher Singh v. State of A.P, AIR 2004 SC 3030

acts done were in furtherance of the object of 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.

Conspiracies are not hatched in open, by their nature, they are secretly planned,

and they can be proven even by circumstantial evidence, the lack of direct

evidence relating to conspiracy has no consequence14. “Conspiracy can be

undoubtedly proved by direct or circumstantial evidence. But the court must

enquire whether the two persons are independently pursuing the same end or

they have come together in the pursuit of the unlawful object. The former does

not render them conspirators, but the latter does. It is, however necessary that

the offence of conspiracy requires some kind of physical manifestation of

agreement.”15 Therefore if A & B want to rob the XYZ Bank on 29th October

2005 but they have never met nor had any agreement, they can’t held liable for

criminal conspiracy since there is no meeting of minds.

An Overt Act

No overt act is necessary to prove conspiracy to commit an offence but it is

required when the act is not an offence. To understand this statement better, it is

necessary what is deemed to be an ‘offence’ with respect to conspiracy under

IPC. Section 120-A is to be read with section 40 and 43 of IPC. The meaning of

‘offence’ under conspiracy should be understood the same as ‘offence’ as

defined by Section 4016. Section 40 of the IPC defines offence as

“Except in the 2[Chapters] and sections mentioned in clauses 2 and 3 of this

section, a thing made punishable by this code.

14 E.K. Chandrasenan v. State of Kerala, (1995) 2 SCC 99 : 1995 SCC (Cri) 329 : AIR 1995 SC 1066 15 Kehar Singh v State (Delhi Administration), (1998) 2 SCC 609 : 1988 SCC (Cri) 711 : AIR 1988 SC 1883.16 Indian Penal Code, 1860

In Chapter IV, 3[Chapter V A] and in the following sections, namely Sections

4[64, 65, 66, 5[67], 71], 109, 110, 112, 114, 115, 116, 117, 187, 194, 195, 203,

211, 213, 214, 221, 222, 223, 224, 225, 327, 328, 329, 330, 331, 347, 348, 388,

389 and 445, the words "offence" denotes a thing punishable under this Code, or

under any special or local law as hereinafter defined.

And in Sections 141, 176, 177, 201, 202, 212, 216 and 441, the word "offence"

has the same meaning when the thing punishable under the special or local law

is punishable under such law with imprisonment for a term of six months or

upwards, whether with or without fine.].

Section 43 of the IPC says “The word "illegal" is applicable to everything which

is an offence or which is prohibited by law, or which furnishes ground for a

civil action; and a person is said to be "legally bound to do" whatever it is

illegal in him to omit.” .

Reading the above sections, it is clear that agreement to commit civil wrong

requires an overt act. Also an unlawful act which is an offence under IPC but

has a local or special law to deal with it, such an unlawful act would only be

deemed as ‘offence’ under conspiracy and IPC if the punishment for such an act

under the said special law is imprisonment for a term of six months or upwards,

whether with or without fine. Therefore if A and B conspire to commit an

unlawful act under IPC but the act is a specific act and has a special law

governing it and the punishment of which under the special law is 3 months of

imprisonment with fine, then this act of conspiracy will require an overt act.

Elements of Criminal Conspiracy

(a) An object to be accomplished

(b) A plan or scheme embodying means to accomplish the object

(c) An agreement or understanding between two or more persons of the

accused persons whereby, they become definitely committed to cooperate for

the accomplishment, or by any effectual means,

(d) In the jurisdiction where the statute required an overt act.

Hypothetical Situations

HYPOTHETICAL A:

Karan and Varun are employees of Marathon Gas Company. They are also

colleagues and friends. One day, after a very frustrating day at the office, the

two went to a bar where Karan was drinking but Varun was not drinking.

Varun, out of frustration said ‘I hate my boss. I would kill him if I could get

away with it’. To this, Karan who was drunk by now, said ‘I would kill him if

you pay me Rs. 1, 00,000’. To this Varun said ‘I will pay you when I get my due

salary’. Karan said, ‘Fine, I will do it then. The bartender working nearby

heard the conversation and reported the same to the police. Can Karan and

Varun be liable of criminal conspiracy?

In order to be liable for criminal conspiracy, there requires meeting of minds to

commit an unlawful act or a lawful act by unlawful means. Here Karan and

Varun come to an agreement to kill their boss which is an offence of murder17

under IPC. Therefore the condition ‘an agreement to commit an offence which

does not require an overt act’ is fulfilled. However, the issue here is whether

Karan’s consent to the agreement was a valid one. This is because he was under

high intoxication when he made this agreement. In a specific intent offence like

conspiracy, if there is clear evidence that the accused was too intoxicated to

form the element subjectively, this fact is recognised as a valid defence.

Inchoate offences like conspiracy require a specific intent. The test for existence

of mens rea could be18 –

(a) Subjective where the court is satisfied that the accused actually had the

mental element present in his or her mind at the relevant time.

17 Section 30018Wikipaedia, Intoxication Defence, https://en.wikipedia.org/wiki/Intoxication_defense

(b)Objective where the requisite mens rea is imputed to the accused on the

basis that the reasonable person would have the mental element in the

same circumstances.

(c) Both subjective and objective.

In this situation, there is substantive evidence to show that Karan had the mental

element present in his mind when he agreed to kill his boss. The very fact that

he said he would do it for Rs.1, 00, 00 shows that the mental element to kill his

boss was present. The defence that he was heavily drunk will not be valid here

since in spite of intoxication, there was a mental element that was present. Also

there is nothing to show that Karan was too intoxicated to form a mental

element Therefore Karan and Varun would be liable for conspiracy.

HYPOTHETICAL B:

Amit and Siddharth conspired to cheat in the All India Medical School

Examination (AMLSE) by leaking the paper and use cheats for cheating during

examination. According to the rules of AMLSE Act, 2000, leaking of question

paper is an offence which is punishable with imprisonment of 8 months with

fine and cheating during the examination renders the candidate disqualified for

life from giving the said test. The authorities come to know about this

conspiracy and inform the police about the same. Can Amit and Siddharth be

held liable for conspiracy?

In the above situation Amit and Siddharth conspire to cheat in the ALMSE by

leaking the question paper and using cheats during examination. The first issue

to be dealt with is whether ALMSE Act, 2000 qualify to be a special law under

IPC. Section 4119 defines ‘special law’ as “a law applicable to a particular

19 Indian Penal Code,1860

subject”. ALMSE Act, 2000 is a law which is applicable to the examination of

ALMSE which is a specific subject. Therefore ALMSE Act, 2000 is a specific

act.

According to ALMSE Act, 2000, leaking of papers is an offence which is

punishable with imprisonment of 8 months with fine. According to section 40 &

43 of the IPC, an offence under a special law would also be considered as an

offence under IPC if it punishable with imprisonment of 6 months and above

with or without crime. Therefore the act of leaking of papers is an offence under

IPC which does not require an overt act. Whereas using cheats during

examination has no imprisonment whatsoever under ALMSE Act, 2000 and

therefore this unlawful act falls under “conspiracy to commit an act other than

an offence” which requires an overt act. Since there is nothing to show that

there was an overt act. Therefore Amit and Siddharth would be liable for the

conspiracy of leaking question papers and not for the conspiracy of cheating

during examination.

One could argue that the act of leaking papers and cheating in the examination

are part of the same conspiracy and therefore they should be liable for

conspiring for both the acts. But this is not the case. The two acts are not part of

the same conspiracy since the subject matter of both the acts are different.

Moreover conspiracy is a continuing act and every act done would be in

furtherance of ultimate crime. Leaking of papers and using cheats during

examination have no nexus at all and therefore cannot be said that one is in

furtherance of the other.

HYPOTHETICAL C

A & B conspired to plant a bomb in Gandhi Park on the occasion of Holi where

the park would be filled with lots of people. For this B, contacted C who dealt

with the smuggling of arms and ammunitions and asked to get a bomb ready

and deliver the same to Nehru Park. C knew about the conspiracy of them

planting the bomb on Holi and agreed to be a part of it. Due to some

miscommunication, C thought that the bomb would be planted in Nehru Park

and the bomb would have to be delivered at Gandhi Park. Meanwhile brother

of A, D promised that he would provide them with shelter to keep undercover

after the bomb blast. Can A, B, C & D be held liable for criminal conspiracy?

In the above question, there is no doubt that both A and B are liable for criminal

conspiracy since both are consensus ad idem on the subject-matter of the

conspiracy. Issue is whether C can be held liable for conspiracy. C knew of the

intention of A & B to plant the bomb on the occasion of Holi but he was under

the mistaken impression that the bomb blast would take place at Nehru Park.

For one to be liable under conspiracy there should be consensus ad idem

between the parties about the offence. The consensus ad idem means ‘meaning

same thing in the same sense”. Here, C consented to the bomb being planted at

Nehru Park and not Gandhi Park which clearly states that there was no

consensus ad idem. But will a misinformation of a mere detail like place of

offence will render him not liable given that he consented to everything else in

the conspiracy. In Ajay Agarwal v. Union of India, it was held that “It is not

necessary that each conspirator must know all the details of the scheme nor be a

participant at every stage. It is necessary that they should agree for the design or

the object of conspiracy. Going by the principle laid down in the above

authority, C is clearly liable for conspiracy.

D cannot be held liable for conspiracy because D was to provide shelter after

the execution of the offence. Following the principal that conspiracy ends when

execution takes place, D cannot be held liable.

Conclusion

From the above illustrations, one can infer that criminal conspiracy doesn’t need

the conspirators to be in agreement about every detail of the offence and the

agreement of the object of the conspiracy is enough to hold them liable. We also

conclude that there cannot be conspiracy within conspiracy. There could be

separate conspiracies or continuous acts which are in furtherance of the same

offence being conspired about. In criminal conspiracy, the presence of mental

element even under intoxication is enough to be liable for conspiracy.

BIBLIOGRAPHY

K.D. GAUR, COMMENTARY ON THE INDIAN PENAL CODE

RATANLAL DHIRAJLAL, THE INDIAN PENAL CODE (Versha Vahini ed., 2014)

INDIAN PENAL CODE, 1860

P.S.A. PILLAI’S, CRIMINAL LAW (K.I. Vibhute ed.,2014)