CRIMINAL CONSPIRACY: A DIFFICULT PUZZLE TO BE SOLVED

INTRODUCTION 

As we know that a crime has four stages. They are intention, preparation, attempt and  commission of the offence. However, the early two stages of crime are not punishable but, it is  subjected to certain exceptions while the latter two stages are punishable. Criminal conspiracy  come under the ambit of the stage preparation which is usually not punishable. But Bharatiya  Nagarik Sanhita,2023 penalizes criminal conspiracy. The literal definition of term “conspiracy”  means a secret plan made by two or more people to do something bad, illegal or against  someone’s wishes. The legal definition is provided under Section 61 of BNS. Proving Criminal  conspiracy is a difficult part for the prosecution as it is done in a secretive manner. Thus, it is  a difficult puzzle to be solved by the prosecution. 

DEFINITION 

S.61(1) of BNS provides that: 

When two or more persons agree to do, or cause to be done – 

• an illegal act; or 
• an act which is not illegal by illegal means, such an agreement is designated as 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. 

The section also provides an explanation which confers the idea that whether the illegal act was  the main objective or an incidental objective, the guilt of the conspirator remains the same. 

S.61(2) provides the punishment for criminal conspiracy. It states that 

Whoever is a party to a criminal conspiracy 

• to commit an offence punishable with death, imprisonment for life or rigorous  imprisonment for a term of two years or upwards, shall, where no express provision is made in this Sanhita for the punishment of such a conspiracy, be punished in the same  manner as if he had abetted such offence 
• other than a criminal conspiracy to commit an offence punishable as aforesaid shall be  punished with imprisonment of either description for a term not exceeding six months,  or with fine or with both. 

S.120A and 120B of Indian Penal Code, 1860 deals with the same provision. 

ELEMENTS OF CRIMINAL CONSPIRACY 

The elements to be proved by the prosecution to establish criminal conspiracy includes; 

• The agreement between two or more persons 
• To commit an illegal act or a legal act in an illegal manner 
• Meeting up of minds 

All the three elements above stated should be proved by the prosecution beyond reasonable  doubt. This poses a major challenge. 

However, Supreme Court in Mohd. Khalid v. State of West Bengal1, summarized the essential  elements of criminal conspiracy as; 

• An object to be accomplished. 
• A plan or scheme embodying means to establish that object. 
• An agreement or understanding between two or more persons. 
• An overt act in pursuance of an agreement. 

The presence of at least two persons is another important requisite of criminal conspiracy2. WHY IT IS A MAJOR CHALLENGE? 

Criminal conspiracy is something which is done in a secretive manner by two or more persons  so, grabbing direct evidences is nearly impossible. It is usually proved through circumstantial  evidences. The same thing was observed by Supreme Court in Shivanaryanan Lakshminarayan  Joshi v. State of Maharashtra (1980)3. Another core element to be proved to establish criminal conspiracy is meeting up of mind. The same idea is reflected by the legal maxim ‘consensus  ad idem’. Meeting of minds means mutual agreement and the common intention between the  parties to commit an illegal act or a legal act in an illegal manner. But in Kehar Singh v. Delhi  Administration4,Court concluded that mere meeting of minds will not make a person liable for  criminal conspiracy unless there are knowledge and intention to commit a crime. People unite  together for numerous reasons so, mere presence of them do not constitute criminal conspiracy.  Unlike contracts where two parties form an agreement, conspiracies are not explicit. They can  be inferred only from the conduct of parties, their behaviour and circumstances. 

Most of the conspiracy cases often completely rely upon circumstantial evidence. So, the  prosecution must establish the whole chain of circumstances without any loopholes. It should  pinpoint out the guilt of the accused person. The standard of proof required is beyond any  reasonable doubt. If prosecution fails to establish it, the substantive offence of criminal  conspiracy cannot be proved. In Sharad Birdhichand Sarda v. State of Maharashtra5, Supreme  Court laid down that circumstantial evidence should exclude every possible hypothesis expect  that the accused is guilty. 

Section 8 of Bharatiya Sakshya Adhiniyam, 2023 deals with the things said and done by  conspirator in reference to common design. It provides that; 

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 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. 

S.8 of BSA corresponds to S.10 of Indian Evidence Act, 1872. 

According to S.8 of BSA, anything said, done or written by anyone of the conspirators in  reference to the common intention then it can be used as evidence to prove that a conspiracy  existed and such person is a part of the conspiracy. For the applicability of S.8 of BSA, there should be reasonable ground to believe that conspiracy had happened. Mere suspicion does not  amount to criminal conspiracy6. 

In the new digitalisation era, cyber offences, terrorism etc increased as a result the complexity  of conspiracy cases raised. It is indeed true that digital evidence enhanced the investigation  possibilities. However, the concerns regarding privacy, authenticity and their misuse pose new  challenges to be addressed. This renders proving criminal conspiracy a difficult task. 

CONCLUSION 

From the statutory provisions it is evident that the criminal conspiracy can be established  through evidence and chain of circumstances. The element of secrecy and heavy dependence  on circumstantial evidence cause difficulty in establishing conspiracy. Thus, reforms are vital  to address this difficulty. Judicial involvement is necessary to tackle this problem. It should  clearly state the threshold for determining the requisite, meeting of minds and also to clarify  the evidentiary standards. But at the same time, the balance between the protection of  individual liberty and effective prosecution should be ensured. Otherwise, it leads to  arbitrariness. Therefore, certain reforms are necessary to strengthen the statutory provisions  related to conspiracy.  

Reference(S):

1 Mohd. Khalid v. State of West Bengal, (2002) 7 SCC 334 

2 Topandas v. State of Bombay, AIR 1956 SC 33 

3 Shivanaryanan Lakshminarayan Joshi v. State of Maharashtra, (1980) 2 SCC 465

4 Kehar Singh & Ors v. State (Delhi Administration), AIR 1988 SC 1883 

5 Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116

6 Esher Singh v. State of A.P, AIR 2004 SC 3030