Report No. 69

Section 10

I. Introductory

7.111. Section 10.-

Introductory.-Section 10 provides that where there is a 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 the 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: and this relevancy is as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that such person was a party to it.

7.112. Illustration to the section.-

The illustration to the section emphasises certain propositions, namely, that the statement of a conspirator X or Y is admissible against a conspirator Z, "although he (Z) may have been ignorant of all of them and although the persons by whom they were done were strangers to him and also they may have taken place before he (Z) joined the conspiracy or after he left it." It may be pointed out that the proposition emphasised in the illustration, namely, that the statement is admissible even though it was made after the other conspirator (against whom it is sought to be proved) left it, is a departure from the English law.1

The occasion for applying the section may arise in a criminal prosecution, as also in a civil sui.- that, in practice, most of the cases relate to the former. It will be convenient to examine the relevant provisions of the substantive criminal law, and also the position with reference to the law of torts.

1. R. v. Blake, (1844) 6 Queen's Bench 126: 115 ER 49.

II. Criminal Conspiracy-Indian Law

7.113. Two aspects of criminal conspiracy.-

Under Indian Criminal law, conspiracy has two aspect.- (a) it is a species of abetment,1 and (b) it is offence by itself.2 As a species of abetment, it is governed by section 107 of the Indian Penal Code. The terms of that section are restrictive: an overt act is required, and this is essentially an instance of an auxiliary criminal liability, as is clear from the provisions in the connected sections-sections 108 and 109-of that Code.

Section 107 of the Code classifies abetment under three heads, namely, abetment by instigation, abetment by conspiracy and abetment by intentional aid. The second paragraph of the section defines abetment by conspiracy, by stating that "a person abets the doing of a thing who engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy and in order to the doing of that thing."

1. Section 107, I.P.C.

2. Sections 120A, and 120B, I.P.C.

7.114. Definition of 'criminal conspiracy'.-

The other important aspect of criminal conspiracy is conspiracy as a substantive offence. This is governed by sections 120A and 120B of the Indian Penal Code. Section 120A defines the offence of criminal conspiracy as follows:

"120A. When two or more persons agree to do, or cause to be done-

(1) an illegal act, or

(2) an act which is legal 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."

Punishment of criminal conspiracy.-The punishment is prescribed as follows in the same Code.

"120B. (1) Whoever is 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.

(2) 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."

7.115. History.-

For more than half a century, the Penal Code recognised only abetment by conspiracy as defined in clause secondly of section 107, and not the offence of criminal conspiracy as such. The latter notion was introduced in the Penal Code by the Criminal Law Amendment Act of 1913 (which inserted a separate Chapter 5A consisting of two sections 120A and 120B). Thus, if a person is engaged with another or others in a conspiracy to commit an offence and if some act or illegal omission takes place in pursuance of that conspiracy and in order to the doing of the criminal act, he is liable to be punished as an abettor directly under the relevant section in Chapter 5. But, whether or not such act or illegal omission takes place, he is guilty of a criminal conspiracy as soon as he becomes a party to the agreement to commit the offence and is punishable under sub-section (1) or sub-section (2) of section 120B, as the case may be, in Chapter 5A.

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