CHAPTER 17 CONSPIRACY

Brief History:

First, the provision of s 107, which made conspiracy by way of abetment punishable.

The other was specific provisions involving offences which included conspiracies to commit
them, as for example, in the definition of a thug (s 310), by way of belonging to a gang of
dacoits (s 400) or thieves (s 401).

In the former, an act or illegal omission had to take place in pursuance of conspiracy before
they were liable for punishment,2whereas in the latter, membership of a gang of thieves or
dacoits was essential to establish the charge of conspiracy against them. (Overt Act -criminal
liability)

Mulcahy v R

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, or to do a lawful 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 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.

Section 121 A.

The Indian Penal code (Amendment) Act of 1870, in which the law of conspiracy was
widened by the insertion of s 121A in the IPC, making it an offence to commit any of the
offences punishable under s 121 (waging war or attempting to wage war against Government
of India). Under this provision, it was not necessary that any act or omission had actually
taken place in pursuance of the conspiracy. Thus, except in respect of offences specifically
mentioned in s 121A, IPC, conspiracy per se was not made an offence under the IPC.

To assimilate the IPC with England the Criminal Law Amendment Act of 1913 added Sec
120 A and 120 B.

Inclusion of ss 120A and 120B, the IPC now encompasses the law of conspiracy to cover the
following:
(i) Conspiracy as a substantive offence (ch V-A: ss 120A and 120B);

(ii) Conspiracy as a form of abetment (ch V: s 107 Secondly);

(iii) Conspiracy to wage, attempt to or abet war against the Government of India (ch VI: s
121A), and

(iv) Involvement in specific offences (ch XVI: ss 310 and 311; ch XVII: ss 400, 401 and
402).

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.

Explanation. --It is immaterial whether the illegal act is the ultimate object of such
agreement, or is merely incidental to that object.

Glanville Williams: If the mere intention of one person to commit a crime is not criminal,
why should the agreement of two people to do it make it criminal? The only possible reply is
that the law (or, if you prefer, the Establishment) is fearful of numbers, and that the act of
agreeing to offend is regarded as such a decisive step as to justify its own criminal sanction.

The main ingredients of s 120A, IPC, are:

(1) There should be two or more persons.

(2) There should be an agreement between themselves.

(3) The agreement must be to do or cause to be done:

(a) an illegal act; or

(b) a legal act by illegal means.

(1) In the case of a conspiracy to commit an offence, the mere agreement is sufficient to
impose liability without the requirement that some overt act in furtherance of the conspiracy
should have been committed.
(2) However, in the case of a conspiracy to do a legal act by illegal means, there ought to be
some overt act which should have been committed by one or more parties to the agreement,
apart from the agreement itself.

INGREDIENTS OF SECTION 120A, 1860

Mohd Khalid v State of West Bengal & Devender Pal Singh v State (NCT of Delhi),

Summarised the broad essentials of criminal conspiracy in India thus

(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 co-operate for the accomplishment of the object by the
means embodied in the agreement, or by any effectual means, and;

(d) an overt act, in pursuance of the agreement, in case of a non-offence act.

Mere knowledge, even discussion, of the plan to commit an illegal act, therefore, does not per
se constitute a conspiracy. Knowledge of the main object and purpose of the conspiracy is a
necessary requisite of conspiracy.

Significance of these two forms of criminal conspiracy and of the requirement (or otherwise)
of an overt act becomes evident if one recalls the definition of the term 'illegal', prefixing the
term 'act', in s 120A. By virtue of s 43 of the IPC,10 everything:

(i) which is an offence;

(ii) which is prohibited by law, and;
(iii) which furnishes a ground for civil action is an 'illegal' act.

NATURE AND SCOPE OF THE LAW OF CONSPIRACY IN SECTION 120A,

INDIAN PENAL CODE 1860.

 It is not necessary that all the conspirators must know each and every detail of
conspiracy. Neither it is necessary that every one of the conspirators takes active part
in the commission of each and every conspiratorial acts.
 Those who do form the requisite intention would be parties to the agreement and
would be conspirators but those who drop out cannot be roped in as collaborators on
the basis of mere knowledge unless they commit acts or omissions from which a
guilty common intention can be inferred.
 Where in pursuance of the agreement the conspirators commit offences individually
or adopt illegal means to do a legal act which has a nexus to the object of conspiracy,
all of them will be liable for such offences even if some of them have not actively
participated in the commission of those offences.
 The gist of the offence of criminal conspiracy is to break the law. There is no
condition imposed in the provision that all the parties should agree to do a single
illegal act. The conspiracy may comprise the commission of a number of illegal acts.
It is sufficient if the agreement to commit the illegal act s is established. In such a
case, all of them will be held liable for the offence of conspiracy, although for
individual offences, all of them may not be held liable.
 The essence of the agreement to break the law is the agreement to do an illegal act.
This implies that to establish the charge of conspiracy, knowledge about the
involvement or indulgence in either an illegal act or a legal act by illegal means is
necessary.
 Mohd Hussain Umar Kochra v KS Dalip Singhji
o The agreement is the gist of the offence. In order to constitute a single general
conspiracy, there must be a common design and a common intention of all to
work in furtherance of the common design. Each conspirator plays his separate
part in one integrated and united effort to achieve the common purpose. Each
one is aware that he has a part to play in a general conspiracy though he may
not know all its secrets or the means by which the common purpose is to be
accomplished. The evil scheme may be promoted by a few, some may drop
out and some may join at a later stage, but the conspiracy continues till it is
broken up.
 Where the agreement between certain persons is a conspiracy to do or continue to do
something which is illegal, it is immaterial whether the agreement to do any of the
acts in furtherance of the commission of the offence does not strictly amount to an
offence. The entire agreement must be viewed as a whole and it has to be ascertained
as to what in fact conspirators intended to do or the object they wanted to achieve.
 Consequently, even if the act s done by a conspirator in furtherance of the criminal
conspiracy do not strictly amount to an offence, he is liable to be convicted under s
120B.
 Conspiracy is a continuing offence and it continues to subsist and committed,
whenever one of the conspirators does an act or a series of act s. So long as its
performance continues, it is a continuing offence till it is executed or rescinded or
frustrated by choice or necessity.34And during its subsistence, whenever any one of
the conspirators does an act or series of act s, he would be guilty.
 While considering the nature of proof requisite to prove conspiracy, it is not necessary
for the prosecution to prove that the perpetrators expressly agreed to do or cause to be
done an illegal act; the agreement could be proved by necessary implication.
 Section 10of the Indian Evidence Act 1872, covering the principle of agency,48 lays
down the conditions for assessing the evidence of co-conspirators sufficient to prove
conspiracy as against other conspirators. For this, however, three ingredients need to
be covered:
o there should be prima facie evidence regarding the involvement of two or
more people in forming an agreement;
o if the above condition is fulfilled, then anything said, done or written by any
one of them in reference to the common intention49 will be evidence against
the others; and
o anything said, done or written by the conspirator after50 the common intention
was formed by any of them would be admissible.

State of Tamil Nadu v Nalini

 Offence of criminal conspiracy is an exception to the general law where intent alone
does not constitute crime. It is the intention to commit crime and joining hands with
persons having the same intention. Not only the intention, there has to be an
agreement to carry out the object of the intention, which is an offence. Only
entertaining a wish, howsoever evil, is not sufficient to convict a person for criminal
conspiracy.
 Acts subsequent to the achieving of objects of conspiracy may tend to prove that a
particular accused was a party to the conspiracy. Once the object of conspiracy is
 achieved, any subsequent act [like giving shelter to an absconding conspirator], which
may be unlawful, does not make an accused a part of the conspiracy.
 Prosecution has to produce evidence not only to show that each of the accused has
knowledge of object of conspiracy, but also the agreement. In the charge of
conspiracy, the court has to guard itself against the danger of unfairness to the
accused.
 A conspirator is not responsible, however, for act s done by a co-conspirator after
termination of the conspiracy.
 A man may join a conspiracy by word or deed. However, criminal responsibility for a
conspiracy requires more than a merely passive attitude towards an existing
conspiracy. One who commits an overt act with knowledge of the conspiracy is
guilty. And who one tacitly consents to the objects of the conspiracy and goes along
with other conspirators, actually standing by while the others put the conspiracy into
effect, is guilty though he intends to take no active part in the crime.
 In the absence of proof, relatives or spouses providing food or shelter cannot be
treated as members of a criminal conspiracy even though they may have knowledge
about such a conspiracy.

Section 120B. Punishment of Criminal Conspiracy.

 ever 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 Code for the punishment of such a
conspiracy, be punished in the same manner as if he had abetted such offence.
 Whoever is a party to a criminal conspiracy 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.
 Section 120B, however, is required to read with s 196 of the CrPC.
 To be roped in with the aid of s 120B, however, there should be clear evidence that
the accused was not only part of the conspiracy, but that he had knowledge about and
consented to the conspiracy.

Nand Kumar Singh v State of Bihar

The accused was an LIC agent who was accused of conspiring with the co-accused
Development Officer to get LIC policies issued on the basis of fake and forged documents
and receiving premium commission and bonus in respect of those policies. However, when
the forging of documents was done by the co-accused and there was no acceptable evidence
that the co-accused did it with the knowledge and consent of the accused, then he could not
be convicted under s 120B, IPC. The Supreme Court set aside the order of conviction.

DIFFERENCE BETWEEN SECTION 120B AND SECTION 107, INDIAN PENAL

CODE 1860

 One of the important differences between s 107 providing for the offence of abetment
by conspiracy, and ss 120A and 120B, is that while the former is punishable only if
some act or illegal omission in pursuance of that conspiracy has been committed
besides the agreement itself, the latter sections make the agreement itself an offence.
 The essence of the offence of criminal conspiracy is a bare agreement to commit the
offence, whereas the abetment of conspiracy requires the commission of act or illegal
omission pursuant to the conspiracy.
 Thus, the introduction of ss 120A and 120B by way of an amendment to the original
IPC in the year 1913, seems to have been to fill up a vital gap in the law, and to
expand the law of conspiracy beyond the provisions of abetment by conspiracy
provided in the second clause of s 107, IPC.
 Thus, while s 120A provides an extended definition of criminal conspiracy covering
acts which do not amount to abetment by conspiracy falling under s 107, s 120B
provides a punishment for criminal conspiracy, where no express provision is made in
the IPC for punishment of such a conspiracy.
 only those offences are punishable for which 'no express provision is made in this
Code for the punishment of such a conspiracy'. This implies that if the offence
conspired to be committed is one which is already an offence under the IPC, then, s
120B will not apply. Similarly, when a conspiracy amounts to abetment under s 107,
it is not necessary to invoke the provisions of ss 120A and 120B because the Code has
made specific provisions for the punishment of abetment through ss 109, 114, 115 and
116, IPC. Hence, when a charge under s 107 exists, there is no need to frame a charge
under s 120B.
 CHAPTER 16 ABETMENT

Any act of an individual, which aids, helps or assists another to commit a crime, falls within
the offence of abetment. The term 'abetment', in criminal law, thus indicates that there is a
distinction between the person abetting the commission of an offence (or abettor) and the
perpetrator of the offence or the principal offender.

In English law, persons who themselves are not the main offenders, but who assist or aid
them, are known as accessories. English law recognises three types of accessories:

(1) Accessories before the fact;

(2) Accessories at the fact; and

(3) Accessories after the fact.

When there are two or more parties to a crime, then they are classed into:

(1) Principals in the First Degree, i.e., those who actually commit the crime or offence
with their own hands or through innocent agent; Thus, the presence of the principals
in the first degree at the occurrence of an offence is not essential.
(2) Principals in the Second Degree, i.e., those who are present at the commission of
the crime and extend aid and assistance for its commission; (Accessories at the fact).
(3) Accessories before the fact, i.e., those who though not present in the scene of
occurrence or where the crime is committed, counsel, procure or command another to
commit the crime; and
(4) Accessories after the fact, i.e., those who knowing that a person has committed an
offence knowingly receive, relieve, comfort, harbour or assist him from escaping from
the clutches of law.

Section 107:
A person abets the doing of a thing when: (1) he instigates any person to do that thing; or (2)
engages with one or more other persons in any conspiracy for the doing of that thing; or (3)
intentionally aids, by act or illegal omission, the doing of that thing. These things are
essential to complete abetment as a crime.4 The abetment, thus, may be by instigation,
conspiracy or intentional aid.

Abetment of an offence is provided in s 108, IPC. Abetment implies a certain degree of

involvement of the abettor.

In Barendra Kumar Ghosh v King Emperor, held that the presence of a person at the
scene of occurrence does amount to abetment if it is intended to encourage the commission of
the offence. Mere proof that the crime charged could not have been committed without the
interposition of the alleged abettor is not enough.

The Supreme Court, while considering the validity of the Terrorist and Disruptive Activities
(Prevention Act) 1987, concurred with the Bombay High Court judgment10 stating that
'when no mens rea is essential in the substantive offence, the same is also not necessary in the
abetment thereof'.

ABETMENT BY INSTIGATION

The word 'instigate' literally means to provoke, incite, urge on or bring about by persuasion to
do anything. A person is said to instigate another when he urges forward or provokes, incites,
urges or encourages such person to do an act prohibited by law.

Instigation may be in any form. Law does not require instigation to be in a particular form or
that it should only be in words. The instigation may be by conduct. There needs to be a close
causal connection between instigation and the act committed.14A person is said to instigate
another to do a thing when he actively suggests, stimulates, supports, hints or insinuates the
commission of the act. A mere association of the accused with the perpetrator of an offence
does not make him an abettor unless it is proved that he instigated or had intention either in
aiding or in commission of the offence. A person who is a silent spectator and takes no active
part in the commission of offence is not abettor.
  Whether there was instigation, is a question of fact.18 However, it is not necessary in
law for the prosecution to prove that the actual operative cause in the mind of the
person abetting was instigation and nothing else, so long as there was instigation and
the offence has been committed or the offence would have been committed if the
person committing the act had the same knowledge and intention as the abettor.

The instigation must be with reference to the thing that was done and not to the thing that was
likely to have been done by the person who is instigated. It is only if this condition is fulfilled
that a person can be guilty of abetment by instigation.

A mere word, without necessary intent to incite a person, uttered in quarrel or in a spur of the
moment or in anger does not constitute 'instigation'.

Another form of instigation is that of approval of an act. While generally passive or

unresponsive approval21 may not necessarily be considered to be instigation, there are
specific instances when approval has been held to be instigation, as for example, in instances
of committing sati, when a widow immolates herself in the funeral pyre of her husband.
When members of the funeral procession of her husband applauded her resolve by shouting
Sati Mata ki Jai, they were held to have instigated her to commit sati, as their approval of the
woman's act by participation in the procession gave her encouragement to commit suicide.

Another form of instigation is as provided in expln 1 to s 107, by which a wilful

misrepresentation or a wilful concealment of a material fact which one is bound to
disclose thereby causing or procuring a thing to be done has been held to be instigation.
The illustration appended to the explanation reveals instigation by 'wilful misrepresentation'.
Instigation by 'wilful concealment' refers to a case where a person who is obliged to disclose
a fact keeps quiet and thereby renders abets the commission of the act.

Instigation in Dowry Death Cases

In Protima Dutta v State of West Bengal, a charge under s 306 read with s 34, IPC, was
laid against the mother-in-law of the deceased and her husband of having abetted the
commission of suicide by instigating and inciting her to commit suicide. The evidence
revealed many circumstances which showed that the mother-in-law suggested to the deceased
by conduct, language and direct or indirect expressions to commit suicide. Although, it did
not amount to express solicitation, her cruel conduct towards the deceased over the months
made the deceased suffer mentally. Therefore, the series of conduct amounting to actively
suggesting and stimulating the deceased to commit suicide, it was held, clearly amounted to
instigation.’

ABETMENT BY CONSPIRACY

As the Supreme Court explained, the distinction between conspiracy referred to in the second
clause of s 107, and the provision of conspiracy in s 120-A is that in the former offence, a
mere combination of persons or existence of agreement between them is not enough.

The persons who are initially guilty of conspiracy to commit an offence become guilty of
abetting the offence as soon as an act or illegal omission takes place in pursuance of the
conspiracy. To prove the charge of abetment by conspiracy, the prosecution is required to
prove that the abettor had instigated the doing of a particular thing or engaged with one or
more other person or persons in any conspiracy for the doing of that thing or intentionally
aided by an act or illegal omission, doing of that thing.

ABETMENT BY INTENTIONAL AIDING

Intentional aid consists of any of the following three components:

(1) Doing of an act directly assisting the commission of the crime; or

(2) Illegally omitting to do a thing which one is bound to do; or

(3) Doing an act which may facilitate the commission of the crime by another.

An act, which merely amounts to aiding the commission of an offence, does not amount to
abetting an offence unless that act was done with intent to aid the commission of the 'thing'.

Intention to aid the commission of the offence is the gist of the offence of abetment by aid.

 Mere knowledge on part of a person that his act would facilitate the commission of
the offence also does not make him an abettor. Similarly, mere presence of a person at
the commission of a crime does not amount to 'intentional aid' unless it is shown that
he, through his presence, intended to have the effect.

Abetment by Illegal Omission

When a person is bound legally to do a thing but deliberately refrains from doing that, then
the person will be liable for abetment by illegal omission.
To held person guilty of abetment by 'illegal omission', it is required to prove that the accused
was not intentionally aided the commission of the offence by his non-interference but also
that his omission led to a breach of legal obligation.

Facilitating the Commission of a Crime

A person is held to abet a crime if he, by way of assistance or supply of a thing or otherwise,
helps facilitate the crime committed by another.

In Ram Kumar v State of Himachal Pradesh, the Supreme Court considered the case of a
constable who dragged a young newly married 19-year-old girl and her husband from the
latter's brother's house. In the police station, the Head Constable took the girl to a room,
repeatedly beat her and committed rape on her, while another constable kept watch outside
holding the hapless husband, who was helplessly hearing the frantic screams of his wife. The
Supreme Court held that the constable, who kept watch on the husband, by his conduct, had
facilitated and thereby abetted rape.

Section 108. Abettor. --A person abets an offence, who abets either the commission of an
offence, or the commission of an act which would be an offence, if committed by a person
capable by law of committing an offence with the same intention or knowledge as that of the
abettor.

SCOPE AND INGREDIENTS OF SECTION 108

The major difference between ss 107 and 108 is that while the former covers the 'doing of a
thing', the latter provision covers the abetment of an 'offence' specifically. Thus, s 108 defines
abettor to be a person who abets:

(1) the commission of an offence; or

(2) the commission of an act which would be an offence if committed by a person capable of
committing an offence in law.

The abettor could be either an instigator, or a conspirator, or a person giving aid to the
commission of a crime as defined in s 107. The crucial aspect is that the abetment must be of
an offence or an act which amounts to an offence. Hence, if the thing abetted is not an
offence, then the person abetting will not be considered an abettor falling within the coverage
of s 108 and cannot be held liable to punishment as provided in law.
Explanation 1: Abetment of Illegal Omission is an Offence

This may be despite the abettor himself not being bound to do that act. A case under this
explanation arises when a private person instigates a police officer to leave a scene of a
cognisable offence, which is his duty to prevent. Here, the policeman is guilty of an illegal
omission and the private person is guilty of abetting the police officer in his illegal omission,
although, the latter was not himself liable to do the act.

Explanation 2: Abetted Act Need not be Committed: Effect of Abetment is Immaterial

In this category, abetment depends upon instigation and not upon the effect it has upon
another. The offence of abetment is complete with the instigation, notwithstanding the fact
that the act abetted is not committed or the person abetted refuses to do the thing or in doing
it, the expected result did not follow.

Explanation 3: Person Abetted Need not be Capable of Committing an Offence

There is no prerequisite of s 108 that for abetment, the person abetted should be capable by
law of committing the offence, or that he should have any guilty intention or knowledge or
should commit an offence. Thus, the explanation along with the illustration makes it clear
that if a person has caused injury to another through innocent agents such as a child or
lunatic, he will still be liable. The employment of an agent legally incompetent to commit an
offence does not absolve the abettor from his criminal liability. The innocent agent is merely
his tool and the abettor is really responsible.

Explanation 4: Abetment of an Abetment is an Offence

Abetment of an abetment is an offence when the principal abetment was an offence. In this
case, the substantive abetment must be the abetment of an offence. It is not necessary that
such an offence should be committed.

Explanation 5: Abettor Need not Concert in Abetment by Conspiracy

In a conspiracy, it is not necessary that all the conspirators should have been aware of the
details of the plot to make them liable. Very often, conspiracies are hatched in secrecy and all
cannot be equally trusted with plans. Anyhow, all will be equal under this clause with the
main criminal, even though they were not directly connected with him.
Section 108A. Abetment in India of offences outside India. --A person abets an offence
within the meaning of this Code, who, in India, abets the commission of any act without and
beyond India which would constitute an offence if committed in India.

Illustration A, in India, instigates B, a foreigner in Goa, to commit a murder in Goa. A is

guilty of abetting murder.

Section 109.

Punishment of abetment if the act abetted is committed in consequence and where no express
provision is made for its punishment. --Whoever abets any offence shall, if the act abetted is
committed in consequence of the abetment, and no express provision is made by this Code
for the punishment of such abetment, be punished with the punishment provided for the
offence.

An act or offence is said to be committed in consequence of abetment, when it is committed

in consequence of the instigation, or in pursuance of the conspiracy, or with the aid which
constitutes the abetment.

Section 111. Liability of abettor when one act abetted and different act done.-- When an act
is abetted, and a different act is done, the abettor is liable for the act done, in the same manner
and to the same extent as if he had directly abetted it:

Proviso. --Provided the act done was a probable consequence of the abetment, and was
committed under the influence of the instigation, or with the aid or in pursuance of the
conspiracy which constituted the abetment.

PRINCIPLE OF PROBABLE CONSEQUENCE

The principle of probable consequence of an act can be described as an act which is likely or
which can reasonably be expected to follow from such an act.84 An unusual or unexpected
consequence cannot be described as a probable one, since it is a well-established rule in
criminal law that provisions have to be strictly construed. Hence, if a wider interpretation is
given to the term 'probable consequence' in the section, it will be impossible to fix limits to
an abettor's liability.