THE PROJECT REPORT

ON

CONSTRUCTIVE CRIMINALITY & CRIMINAL

CONSPIRACY

SUBMITTED TO: SUBMITTED BY:

DR. BAJIRAO A. RAJWADE ANURAG SINGH SINDHAL

ARMY INSTITUTE OF LAW ROLL NO. – 107

L.L.M 2015-16

CONSTRUCTIVE CRIMINALITY

Where, by a strained construction of a penal statute, it is made to include an act not otherwise

punishable, it is said to be a "constructive crime," that is, one built up by the court with the aid of

inference and implication.1

Section 34 of the Indian Penal Code recognizes the principle of vicarious liability in the criminal

jurisprudence. It makes a person liable for action of an offence not committed by him but by

another person with whom he shared the common intention. The section gives statutory

recognition to the common sense principle that if more than two persons intentionally do a thing

jointly, it is just the same as if each of them had done it individually.

The section 34 reads:

When a criminal act is done by several persons in furtherance of the common intention of all,

each of such persons is liable for that act in the same manner as if it were done by him alone.2

A plain look at the statute reveals that the essence of Section 34 is simultaneous consensus of the

mind of persons participating in the criminal action to bring about a particular result. It is trite to

record that such consensus can be developed at the spot.3

Section 34 carves out an exception from general law that a person is responsible for his own act,

as it provides that a person can also be held vicariously responsible for the act of others if he has

the “common intention” to commit the offence. The phrase “common intention” implies a

prearranged plan and acting in concert pursuant to the plan. Thus, the common intention must be

there prior to the commission of the offence in point of time. The common intention to bring

about a particular result may also well develop on the spot as between a number of persons, with

reference to the facts of the case and circumstances existing thereto. The common intention

under Section 34 is to be understood in a different sense from the “same intention” or “similar

1 Black’s Law Dictionary 2nd ed.2 Indian Penal Code,18603 Ramaswami Ayyangar v. State of Tamilnadu

intention” or “common object”. The persons having similar intention which is not the result of

the prearranged plan cannot be held guilty of the criminal act with the aid of Section 34 of IPC.4

Common Intention within the meaning of the section implies a pre- arranged plan, and to convict

the accused of an offence applying the section it should be proved that the criminal act was done

in concert pursuant to the pre-arranged plan. As has been often observed, it is difficult if not

impossible to procure direct evidence to prove the intention of an individual; in most cases it has

to be inferred from this act or conduct or other relevant circumstances of the case.5

Section 34 IPC does not create any distinct offence, but it lays down the principle of constructive

liability. Section 34 IPC stipulates that the act must have been done in furtherance of the

common intention. In order to incur joint liability for an offence there must be a pre- arranged

and pre-meditated concert between the accused persons for doing the act actually done, though

there might not be long interval between the act and the pre-meditation and though the plan may

be formed suddenly. In order that section 34 IPC may apply, it is not necessary that the

prosecution must prove that the act was done by a particular or a specified person. In fact, the

section is intended to cover a case where a number of persons act together and on the facts of the

case it is not possible for the prosecution to prove as to which of the persons who acted together

actually committed the crime. Little or no distinction exists between a charge for an offence

under a particular section and a charge under that section read with Section 34.6

Applicability of Section 34 is dependent on the facts and circumstances of each case. No hard

and fast rule can be made out regarding applicability or non-applicability of Section 34.7

Section 34 also deals with constructive criminal liability. The section is restricted to common

intention and does not embrace any knowledge. It does not require proof that any particular

accused was responsible for the commission of the actual offence. It is not restricted to honour a

case in which it may be difficult to distinguish between the acts of individual members of a party

or to prove exactly what part was taken by each of them. It can be applied to cases in which

offence is committed by only one or two or three persons who all had a common intention.

4 Abdul Sayeed v. State of Madhya Pradesh, (2010) 10 SCC 2595 Mahboob Shah vs. Emperor AIR 1945 PC 1186 Virendra Singh V/s. State of Madhya Pradesh, JT 2010 (8) SC 319,7 Krishnan and Anr. V/s. State represented by Inspector of Police, (2003) 7 SCC 56

Common intention is not alike or identical to mens rea. The latter may be coincidental with or

collateral to the former but they are distinct and different.

APPLICATION OF SECTION 34

To attract the application of Section 34, the following conditions must be satisfied:

1. Some Criminal Act : Criminal act’ used in section 34 does not refer to individual acts

where a crime is committed by a group of persons. Where a crime is committed by

several persons in furtherance of common intention of all of them, each of them doing

some act, similar or diverse, big or small shall be liable for that act.

‘That act’ refers to the ‘criminal act’ used in section 34 which means the unity of criminal

behaviour which results in something for which an individual would be punishable if it

were all done by himself alone in an offence.

2. Criminal Act Done By Several Persons : The criminal act in question must have been

done by several persons i.e. by more than one person. The number of wrong doers should

be at least two. Most importantly, if the criminal act was fresh and independent act

springing wholly from the mind of the doer, the others are not liable merely because

when it was done they were intending to be partakers with the doer in a different criminal

act.

3. Common Intention : The words “in furtherance of the common intention of all” were

added to section 34 after words ‘persons’ in 1870 the idea for which, possibly, was

derived from the following passage of the Privy Council’s judgment:

“Where parties go with a common purpose to execute a common intention, each and

everyone becomes responsible for the acts of each and every other in execution and

furtherance of their common purpose, as the purpose is common so must be the

responsibility.”

The expression ‘common intention’ means unity of purpose or a prearranged plan; it has

been given various meanings which are as follows Common intention implies a

prearranged plan, prior meeting of minds, prior consultation in between all the persons

constituting the group.

Common intention means the mens rea necessary to constitute the offence that has been

committed.

It also means evil intent to commit some criminal act, but not necessarily the same offence which

is committed. Where there is no indication of premeditation or of a prearranged plan, the mere

fact that the two accused were seen at the spot or that the two accused fired as a result of which

one person died and two others received simple injuries could not be held sufficient to infer

common intention.

However, common intention may develop on the spot as between a number of persons and this

has to be inferred from the act and conduct of the accused, and facts and circumstances of the

case.

4. Participation in the Criminal Act : The participation in a criminal act of a group is a

condition precedent in order to fix joint liability and there must be some overt act

indicative of a common intention to commit an offence. The law requires that the accused

must be present on the spot during the occurrence of the crime and take part in its

commission; it is enough if he is present somewhere nearby.

CRIMINAL CONSPIRACY

Conspiracy is a consultation or agreement between two or more persons, either falsely to accuse

another of a crime punishable by law; or wrongfully to injure or prejudice a third person, or any

body of men, in any manner; or to commit any offense punishable by law; or to do any act with

intent to prevent the course of justice; or to effect a legal purpose with a corrupt intent, or by

improper means.8

The Section 120A reads:

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 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.9

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 an act

of each of the parties, promise against promise, actus contra actum, capable of being enforced, if

lawful, punishable if for a criminal object or for use of criminal means.10

For conspiracy, the agreement is regarded as a sufficient preparatory step. However, whether the

agreement amounts to preparation or not has to be seen. In the 4 stages of a criminal intention, a

conspiracy is definitely beyond the intention stage, as it requires the manifestation of the

intention and mere intention is not punishable unless it is manifested. However, it can only be

preparation if the agreement is regarded as a preparatory step beyond the formation of intention

as for the offence of conspiracy under 120A, no further act need be taken if the conspiracy for an

offence.

8 Black's Law Dictionary 2nd ed.9 Indian Penal Code, 186010 Devender Pal Singh v. State of NCT Delhi, AIR 2002 SC 1661, Mulcahy v. Queen (1868) L.R. 3 H.L. 306, 317

As far as conspiracies to commit illegal acts not amounting to offences is concerned, it is an

offence punished at the preparatory stage, as an overt act is needed in furtherance of such a

conspiracy as this can be regarded as a step of preparation.

Thus the offence of criminal conspiracy consists in the very agreement Between two or more

persons to commit a criminal offence irrespective of the further consideration whether or not

those offences have actually been committed.

The very fact of the conspiracy constitutes the offence and it is immaterial whether anything has

been done in pursuance of the unlawful agreement. This position is subject to the proviso to

section 120A which states that if the agreement is for an illegal act not amounting to an offence,

then in that case an overt is essential to make the agreement punishable, but in a conspiracy to

commit an offence no overt act is essential.

It is submitted that this ‘overt act’ for the purposes of conspiracy does not have to be an act in the

actual commission of the offence or an attempt. The section says“…unless some act besides the

agreement is done by one or more parties to such agreement in pursuance thereof.” Thus the

section says that some act has to be done in furtherance of the agreement, and doesn’t specify

that it has to be an act in the actual commission of the offence or an attempt. It just has to be any

act in pursuance and furtherance of the conspiratorial agreement. E.g. the entry of a foreigner in

India in pursuance of a conspiracy is an overt act.

It is immaterial whether the illegal act is the ultimate object of such crime or is merely incidental

to that object.

The prosecution need not necessarily prove that the perpetrators expressly agree to do or cause to

be done illegal act; the agreement may be proved by necessary implication.

Even though the agreement initially may not have been an offence, but where it is so later but the

accused did not withdraw from it and continued to carry out that agreement, the offence under

section 120B may still be said to have been committed.

Thus the offence is complete as soon as there is meeting of minds and unity of purpose between

the conspirators to do that illegal act or legal act by illegal means. However, though it is

complete the offence does not end here and continues each time an act is done in pursuance of

the conspiracy.

The inchoate offenses like conspiracy require specific intent in a slightly different sense. The

rationale for the existence of criminal laws is as a deterrent to those who represent a danger to

society. If an accused has actually committed the full offense, the reality of the danger has been

demonstrated. But, where the commission of the actus reus is in the future and the accused is

merely acting in anticipation of committing the full offense at some time in the future, a clear

subjective intention to cause the actus reus of the full offense must be demonstrated.

Without this specific intent, there is insufficient evidence that the accused is the clear danger as

feared because, at any time before the commission of the full offense, the accused may change

his or her mind and not continue. Hence, this specific intent must also be demonstrated on a

subjective basis.

To constitute the offence of conspiracy there must be an agreement of two or more persons to do

an act which is illegal or which is to be done by illegal means for one cannot conspire with

oneself.11

The gist of the offence is the bare engagement and association to break the law, whether any act

be done in pursuance thereof by the conspirators or not. The Meeting of minds is essential, mere

knowledge or discussion is not sufficient. In the absence of an agreement, a mere thought to

commit a crime does not constitute the offence.12

The offence of conspiracy is a substantive offence. It renders the mere agreement to commit an

offence punishable even if no offence takes place pursuant to the illegal agreement.13

The punishment for conspiracy is the same as if the conspirator had abetted the offence. The

punishment for criminal conspiracy is more severe if the agreement is one to commit a serious

offence. Conspiracy to commit an offence is itself an offence and a person can be separately

charge with respect to such conspiracy. Section 120 B of the Indian Penal Code applies to those

who are members of conspiracy during its continuance. Conspiracy has to be treated as a 11 Haradhan Chakrabarty V. Union of India AIR 1990 SC 1210.12 Sudhir Shantilal Mehta V. CBI (2009) 8 SCC 113 Yogesh Vs. State of Maharashtra AIR 2008 SC 2991

continuing offence and whoever is party to the conspiracy during the period for which he is

charged, is liable under this section.

Where the charge of conspiracy fails the individual accused could still be convicted for the

offences committed by him. Where no jail term is awarded to the principal accused in a

conspiracy and he was let off with fine alone, the other co-accused cannot be awarded

substantive sentence of imprisonment, they also shall be ordered to pay fine only.

CONCLUSION

Section 34 of IPC is a rule of evidence. It embodies the principle of joint liability in the doing of

a criminal act, the essence of that liability being the existence of a common intention.

Participation in the commission of the offence in furtherance of the common intention invites its

application. The ‘meeting of the minds’ must be before the commission of the offence. But

Criminal conspiracy is a substantive offence under 120B of I.P.C. It differs from the other

offences in that mere agreement is made an offence even if no step is taken to carry out that

agreement.

Conspiracy from its very nature is hatched in secrecy and it is, therefore, extremely rare that

direct evidence in proof of conspiracy can be forthcoming, but like other offences it can be

proved by circumstantial evidence. Surrounding circumstance and antecedent and subsequent

conduct, among other factors constitute relevant material. In fact, because of the difficulties of

having direct evidence of criminal conspiracy, once ’reasonable ground is shown for believing

that two or more persons have conspired to commit an offence then anything done by any one of

them in reference to their common intention after the same is entertained becomes, according to

the law of evidence relevant for proving both conspiracy and the offences committed pursuant

thereto. 14

The rationale behind making conspiracy an offence is that the required objective manifestation of

disposition to criminality is provided by the act of agreement.

14 Noor Mohammad Mohd. Yusuf Momin Vs. State of Maharashtra, AIR 1971 SC 885 : 1971 (1) SCR 119 : (1971) 1 SCC 696

Conspiracy criminalizes in agreement to commit a crime. To put it differently, the law punishes

conduct that threatens to produce the harm, as well as conduct that has actually produced it.15

There is not much substantial difference between conspiracy, as defined in Section 120-A and

acting on a common intention, as contemplated in Section 34. While in the former, the gist of the

offence is bare engagement and association to break the law even though the illegal act does not

follow, the gist of the offence under Section 34, is the commission of a criminal act in

furtherance of a common intention of all the offenders which means that there should be unity of

criminal behaviour resulting in something for which an individual would be punishable, as if it

were all done by himself alone.

All the accused against whom the prosecution alleges that there was unity of criminal behaviour

actuated by a common intention to extort a confession can, therefore, be jointly tried under

Section 223 of Cr. P.C. The evidence as to conspiracy under Section 120-B having been

rejected, the same evidence could not be used for finding a common intention proved under

Section 34.

Where the only evidence against the accused of his being a member of the conspiracy consists of

the commission of the offences themselves by others it cannot be said that he was in the

conspiracy. Section 34 enunciates a principle of liability. It is not an offence by itself. Section

120-A refers to an offence i.e. an agreement to commit an offence.

It is settled law that common intention and conspiracy are matters of inference and if while

drawing an inference any benefit of doubt creeps in, it must go to the accused.16

So far as Section 34 of IPC is concerned, it embodies the principle of joint liability in the doing

of a criminal act, the essence of that liability ‘being the existence of a common intention’.

Participation in the commission of the offence in furtherance of the common intention invites its

application. Turning to the charge under section 120-B of IPC criminal conspiracy was made a

substantive offence in 1913 by the introduction of Chapter V-A in the Indian Penal Code.

15 Firojuddin Basheeruddin Vs. State of Kerala, AIR 2001 SC 3488.16 Baliya Vs. State of M.P. (2012) 9 SCC 696.

Criminal conspiracy postulates an agreement between two or more persons to do, or cause to be

done an illegal act or an act which is not illegal, by illegal means. It differs from other offences

in that mere agreement is made an offence even if no step is taken to carry out that agreement.

BIBLIOGRAPHY

1. Clarkson and Keating, Criminal Law: Texts and Materials (London: Sweet and Maxwell,

2003).

2. K.D.Gaur, Criminal Law: Cases and Materials, (New Delhi: Butterworths, 1999).

3. P.S.A Pillai, Criminal Law, , (New Delhi: Butterworths, 2000).

4. Ratanlal and Dhirajlal, Law of Crimes, (New Delhi: Bharat Law House, 2002).

5. The Judgement System of Supreme Court of India referred on 27th Sept. 2015.

http://judis.nic.in/supremecourt/chejudis.asp