Things said or done by conspirator in reference to common design
Conspiracy and Admission of Co- conspirator Statement
Section – 10 of Evidence Act – Things said or done by conspirator in reference to common design
- Criminal conspiracy is a substantive offence under the Indian Penal Code
- Section 120A IPC defines conspiracy and the essential elements this offence can be categorized as follows:
- To achieve or accomplish an object,
- Planning or making a scheme or gathering means in order to accomplish the said object,
- Agreement and understanding between two or more persons whereby they commit to co-operate in order to accomplish the said object by effectual means, and
- “In the jurisdiction where the statute required an overt act.”
- Generally, the offence of conspiracy is complete when the combination is framed. As an exception, however, there may be instances wherein the statute may require an overt act. But the general rule as necessarily flowing from the definition is that no overt act needs to be done in furtherance of the conspiracy.
- A very brief and precise definition was laid down by Justice Subba Rao in the case of Major E.G. Barsay v. State of Bombay wherein he said that conspiracy is about an agreement to break the law and that the parties to such agreement are guilty of criminal conspiracy even if the illegal act agreed upon has not been committed.
- Agency– The theory of agency is one of the most important points to establish conspiracy and the liability of co-conspirators. Agency in a conspiracy is understood as: the act of one conspirator in furtherance of the common intention binds the other co-conspirators.
- A bare reading of the section makes it amply clear that the basic underlying principle is the theory of agency.
Section – 10 can be divided into two parts
Section – 10 of Evidence Act – Things said or done by conspirator in reference to common design
- Satisfying the requirements of Section 10
- The first part of Sec. 10 necessitates that a prima facie case of conspiracy is established. After fulfillment of the first criteria, the second part of the provision “permits the use of evidence which otherwise could not be used against the accused person.”
- The second part would come into operation only when the first part is clearly established.
- Hence, before finally applying Sec. 10 Indian Evidence Act, the Court must satisfy that Sec. 120A IPC is clearly established. The Court looks for prima facie evidence that the accused was a party to the conspiracy.
- Making co-conspirators liable for acts and statements by one conspirator
- Once the prosecution has established that a prima facie case lies against the accused conspirators, it would then go on to prove as to how and why the other co-conspirator is liable.
- The second part of the provision mandates that if any conspirator makes any statement or does an act in furtherance of the common intention after it was first entertained, the other co-conspirators would be equally liable.
- The landmark authorities on this point are the famous Mirza Akbar’s case, the Parliament attack case, State of Gujarat v. Mohammed Atik and Ors, and R v. Blake.
- In all these cases, the primary point on which liability was sought to be imposed on other co-conspirators based on the statement by a co-conspirator was that while the statement was made, the conspiracy was in existence.
- The key point on which Sec. 10 rests on is that the act done or statement made must “relate to the furtherance of the common object
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