CRIMINAL CONSPIRACY

In English law, "if two or more persons agree together to do something contrary to law, or wrongful
and harmful towards another person, or to use unlawful means in the carrying out of an object not
otherwise unlawful, the persons who so agree commit the crime of conspiracy" Halsbury's Laws of
England. No overt act in pursuance of the conspiracy is necessary, the illegal combination itself being
the gist of the offence. The overt acts which may follow the conspiracy form, of themselves, no part
of the conspiracy.

In Mulcahy v. R. (1868) LR 3 HL 30 (England) the House of Lords stated, "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 only indictable. When two agree
to carry it into effect, the very plot is an act in itself and the 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 the use of criminal means." After the judgment of the House of Lords in the case of Mulcahy v. R.
IPC was amended in 1870 as to insert S. 120-A IPC. Chapter V-A has been introduced in the code by
the Criminal Law Amendment Act (8 of 1913). The object of the amendment was to prevent the
commission of crime by nipping them in the bud State of A.P. v. Cheemalapati Caneswara Rao, AIR
1963 SC 1850

Section 120A 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 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.

Essential Ingredients of Criminal Conspiracy

Criminal conspiracy is an independent offence. It is punishable separately. A criminal conspiracy

(i) an agreement between two or more persons;

(ii) an agreement must relate to doing or causing to be done either (a) an illegal act; (b) an act which is
not illegal in it but is done by illegal means.

Thus the Indian Penal Code deals with the law relating to criminal conspiracy as a substantive
offence; as a form of abetment (Chapter V, section 107); to wage, attempt or abet waging of war
against the Government of India. (Chapter VI, section 121A); involvement in certain offences, such as
assembling for purpose of committing dacoity. Before passing of the Criminal Law Amendment Act
of 1913, a conspiracy to do an illegal act was punishable only when such act amounted to an offence.
It was also essential in the words of section 107(2) of the Code that an act or illegal omission should
have taken place in pursuance of the conspiracy and in order to the doing of the act which was the
object of the Conspiracy. The Criminal Law Amendment Act, 1913 has, however, introduced two
rather drastic changes in the respect. By section 120B punishment is provided for criminal
conspiracies of all kinds whether, according to the requirement of section 107, an overt act has or has
not taken place in pursuance of such conspiracy, and; whether, as required by sections 109, 115 or
116, the object of conspiracy is or is not the commission of an offence.

In Noor Mohammad Mohd. Yusuf Momin v State of Maharashtra AIR 1971 SC 885, the Hon’ble
Supreme Court has observed that 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. Though there is close association of conspiracy with incitement and abetment the
substantive offence of criminal conspiracy is Somewhat wider in amplitude than abetment by
conspiracy as contemplated by Section 107, I.P.C. A conspiracy from its very nature is generally
hatched in secret. It is, therefore, extremely rare that direct evidence in proof of conspiracy can be
forthcoming from wholly disinterested, quarters or from utter strangers.

A three-Judge Bench in Yash Pal Mittal v. State of Punjab (1977) 4 SCC 540, had noted the
ingredients of the offence of criminal conspiracy and held that the main object of the criminal
conspiracy in the first charge is undoubtedly cheating by personation. The other means adopted, inter
alia, are preparation or causing to be prepared spurious passports; forging or causing to be forged
entries and endorsements in that connection; and use of or causing to be used forged passports as
genuine in order to facilitate travel of persons abroad. The final object of the conspiracy in the first
charge being the offence of cheating by personation, as we find, the other offences described therein
are steps, albeit, offences themselves, in aid of the ultimate crime. The charge does not connote
plurality of objects of the conspiracy. That the appellant himself is not charged with the ultimate
offence, which is the object of the criminal conspiracy, is beside the point in a charge under Section
120-B IPC as long as he is a party to the conspiracy with the end in view. Whether the charges will be
ultimately established against the accused is a completely different matter within the domain of the
trial court.

The use of the word "illegal" in the definition of criminal conspiracy in S.120-A IPC is extremely
comprehensive and would make even a case of civil trespass indictable, as a criminal conspiracy. In
State of Maharashtra v. Somnath Thapa A.I.R. 1996 SC 1744, Supreme Court explained the
ingredients of conspiracy and observed: “To establish a charge of conspiracy, knowledge about
indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, intent of
unlawful use being made of the goods or services in question may be inferred from the knowledge
itself... Finally when the ultimate offence consists of a chain of actions, it would not be necessary for
the prosecution to establish, to bring home the charge of conspiracy, that each of the conspirators
had to know of what the collaborator would do, so long as it is known that the collaborator would put
the goods or services to an unlawful use.”

Thus, even knowledge of an illegal act is enough to hold one guilty of conspiracy. But as per the Ss.
120A and 120B it is the intent by two or more which is necessary to constitute conspiracy. The law
relating to conspiracy aims at punishing guilty intentions because no overt act is required for the
same. However, it can be inferred that mem rea is not a necessary ingredient of the charge of
conspiracy to commit an offence. The Supreme Court in State v. Nalini (Rajiv Gandhi Assasination
case) (1999)5 SCC 253, dealt at length the law of conspiracy, reviewed case law and culled out
several principles governing conspiracy. On the night of 21-5-1991 Rajiv Gandhi, the former Prime
Minister of India was assassinated by a human bomb. This incident was a result of conspiracy.
Wadhwa, J laid down following broad principles governing the law of conspiracy:

i. Under S. 120 -A IPC offence of criminal conspiracy is committed when two or more
persons agree to do or cause to be done an illegal act or legal act by „illegal‟ means.
 ii. Acts subsequent to the achieving of the object of conspiracy may tend to prove that a
particular accused was party to the conspiracy
iii. Conspiracy is hatched in private or in secrecy. It is rarely possible to establish a
conspiracy by direct evidence.
iv. Conspirators may, for example be enrolled in a chain - A enrolling B, B enrolling C, and
so on; and all will be members of a single conspiracy if they so intend and agree, even
though each member knows only the person who enrolled him and the person whom he
enrols.
v. When two or more persons agree to commit a crime of conspiracy, then regardless of
making or considering any plans for its commission, and despite the fact that no step is
taken by any such person to carry out their common purpose, a crime is committed by
each and every one who joins in the agreement
vi. It is not necessary that all conspirators should agree to the common purpose at the same
time.
vii. A charge of conspiracy may prejudice the accused because it forces them into a joint trial
and the court may consider the entire mass of evidence against every accused.
viii. It is the unlawful agreement and not its-accomplishment, which is the gist or essence of
the crime of conspiracy
ix. It has been said that a criminal conspiracy is a partnership in crime, and there is in each
conspiracy a joint or mutual agency for the prosecution of a common plan.
x. A man may join a conspiracy by word or by deed.

The essence of criminal conspiracy embodied in S. 120A is the unlawful combination and ordinarily
the offence is complete when the combination is framed.

In Mohd. Khalid v. State of West Bengal (2002) 7 SCC 334 and Davender Pal Singh v. State of
NCT of Delhi (2002) 5 SCC 234, the Supreme Court after referring to the American and the English
legal position on the law of conspiracy summarized the broad essential elements of conspiracy thus:
an object to be accompanied; a plan or scheme embodying means to accomplish that object; an
agreement or understanding between two or more accused persons whereby, they become definitely
committed to corporate for the accomplishment of the object by the means embodied in the
agreement, or by any effectual means; and in the jurisdiction where the statute requires, an overt act.

The court further held that the Indian law broadly conforms to the English legal position on the law of
criminal conspiracy. Thus, the provisions of Ss. 120 A & 120B IPC have brought the law of
conspiracy in India in tune with the English law by making the overt act unessential when the
conspiracy is to commit any punishable offence. The provisions, in such a situation do not require that
each and every person who is party to the conspiracy must do some overt act towards the fulfilment of
the object of conspiracy the essential ingredients being an agreement between the conspirators to
commit the crime and if these essentials and requirements are established, the act would fall within
the trapping of the provisions contained in S. 120B.

In Ram Narayan Popli v. CBI (2003) 3 SCC 641, while dealing with the conspiracy the majority
opinion laid down that the elements of a criminal conspiracy have been stated to be: (a) an object to
be accomplished, (b) a plan or scheme embodying means to accomplish that object, (c) an agreement
or understanding between two or more of the accused persons whereby, they become definitely
committed to cooperate for the accomplishment of the object by the means embodied in the
agreement, or by any effectual means, and (d) in the jurisdiction where the statute required an overt
act.
In K. R. Purushothaman v. State of Kerala (2005) 12 SCC 631, the Court has made the following
observations it is not necessary that all the conspirators must know each and every detail of the
conspiracy. Neither is it necessary that every one of the conspirators takes active part in the
commission of each and every conspiratorial act. The agreement amongst the conspirators can be
inferred by necessary implication. In most of the cases, the conspiracies are proved by the
circumstantial evidence, as the conspiracy is seldom an open affair. The existence of conspiracy and
its objects are usually deduced from the circumstances of the case and the conduct of the accused
involved in the conspiracy. While appreciating the evidence of the conspiracy, it is incumbent on the
court to keep in mind the well-known rule governing circumstantial evidence viz. each and every
incriminating circumstance must be clearly established by reliable evidence and the circumstances
proved must form a chain of events from which the only irresistible conclusion about the guilt of the
accused can be safely drawn, and no other hypothesis against the guilt is possible.

In Mir Nagvi Askari v. Central Bureau of Investigation (2009) 15 SCC 643, it was observed that the
condition precedent for holding the accused persons to be guilty of a charge of criminal conspiracy
must, therefore, be considered on the anvil of the fact which must be established by the prosecution
viz. meeting of minds of two or more persons for doing or causing to be done an illegal act or an act
by illegal means. The courts, however, while drawing an inference from the materials brought on
record to arrive at a finding as to whether the charges of the criminal conspiracy have been proved or
not, must always bear in mind that a conspiracy is hatched in secrecy and it is difficult, if not
impossible, to obtain direct evidence to establish the same. The manner and circumstances in which
the offences have been committed and the accused persons took part are relevant. For the said
purpose, it is necessary to prove that the propounders had expressly agreed to it or caused it to be
done, and it may also be proved by adduction of circumstantial evidence and/or by necessary
implication.

In Sushil Suri v. Central Bureau of Investigation AIR 2011 SC 1713, the Supreme Court held that
where two Chartered Accountants had dishonestly and fraudulently opened several fictitious accounts
in some banks with an intention and object to facilitate of bank finance for the purpose other than
stated in the loan application. The accused persons submitted to the bank, fake and forged invoices of
fictitious/non-existent supplier. The essential ingredient of criminal conspiracy is agreement to
commit offence between accused and the commission of crime alone is enough to bring about a
conviction under section 120B. The appellant with Directors and Chartered Accountant defrauded
revenue and in the process cheated the public exchequer of crores of rupees and were convicted under
section 120B, 420, 409 and 471.

DIFFERENCE BETWEEN ABETMENT AND CRIMINAL CONSPIRACY

 Abetment is a process by which one or more engage or employ other(s) for commission of an
offence. The former i.e., the person, who abets is called the „abettor‟, while the latter i.e., the
person who commits the offence with his own hands is called the „principal offender‟. But
conspiracy is a process by which an agreement is entered into between two or more persons
for commission of an illegal act or doing/committing a lawful/ legal act by illegal means. The
parties to the agreement are called Conspirators.
 In the offence of abetment, a mere combination of persons or agreement between them is not
enough but an act or illegal omission must take place in pursuance of the conspiracy and in
order to the doing of the thing conspired for. But in conspiracy, the mere agreement is
enough, if the agreement is to commit an offence.
  Abetment can be committed by one or more, whereas conspiracy can be committed by two or
more.
 In abetment, sanction of competent authorities is not necessary to proceed against the
abettors, who merely abetted to commit a crime. While in conspiracy, sanction of competent
authorities is necessary to proceed against the conspirators who merely agreed to commit a
crime.
 Abetment is genus while the conspiracy is species.
 Abetment per se is not a substantive offence whereas criminal conspiracy is a substantive
offence by itself and is punishable.
 Abetment may be committed in various methods/ways viz., instigation, conspiracy,
intentional aid etc., but conspiracy is one of the methods of abetment.
 Crime of Abetment is explained in Sections 107 to 120 of the code while Crime of
Conspiracy is explained in Sections 120- A & 120-B of the Code.
 Section 109 of the code is concerned only with the punishment of abetments for which no
express provision is made under the Penal Code. A charge under Section 109 should,
therefore, be alone with some other substantive offence committed in consequence of
abetment.

However, the offence of criminal conspiracy is, on the other hand, an independent offence. It is made
punishable under Section 120 В of the code for which a charge under Section 109 of the Code is
unnecessary and, indeed, inappropriate.