Law of Evidence

By Nizam Azeez Sait,

MODULE No. 6  

RELEVANCY OF THINGS SAID OR DONE BY CONSPIRATORS IN REFERENCE TO THEIR COMMON OBJECT, UNDER SECTION 8.

This is the 6th Module of the subject ‘Law of Evidence’, which deals with Section 8, in Chapter II of Part II titled “Of the Relevancy of Facts” under subheading ‘Closely connected facts’.

Here, in this Module we shall take you through Relevancy of things said or done by conspirators in reference to their common design under Section 8 of the Bharatiya Sakshya Adhiniyam 2023 (Section 10 of Evidence Act).

MODULE INDEX

  1. Relevancy of things said or done by conspirator in reference to common design.
  1. The Definition of Criminal Conspiracy
  1. Conspirators are agents of each other’s
  2. Proof of Conspiracy
  3. Object and Purpose of Section 8
  4. Basic Elements of Section 10
  5. “In Reference to Common Intention” is Wider in Ambit than “in Furtherance of Common Intention”

1. Relevancy of things said or done by conspirator in reference to common design.

Section 8 reads as:

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.

Illustration.

Reasonable ground exists for believing that A has joined in a conspiracy to wage war against the State. The facts that B procured arms in Europe for the purpose of the conspiracy, C collected money in Kolkata for a like object, D persuaded persons to join the conspiracy in Mumbai, E published writings advocating the object in view at Agra, and F transmitted from Delhi to Singapore the money which C had collected at Kolkata, and the contents of a letter written by H giving an account of the conspiracy, are each relevant, both to prove the existence of the conspiracy, and to prove A’s complicity in it, although he may have been ignorant of all of them, and although the persons by whom they were done were strangers to him, and although they may have taken place before he joined the conspiracy or after he left it.

2. The Definition of Criminal Conspiracy

First of all, we will see the definition of Criminal Conspiracy.

Section 61(1) of Bharatiya Nyaya Sanhita (Section 120 A of the Indian Penal Code) defines Criminal Conspiracy as under:

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.

Section 61 (2) (120 B of the Indian Penal Code) makes Criminal Conspiracy Punishable.

Ordinarily, in a criminal case, one person cannot be made responsible on the proof of the acts or statement of another. Section 8 of the Evidence Act marks an exception to the above general rule and the provision as we have seen reads as follows:

“Things said or done by conspirator in reference to common design — 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 well for the purpose of showing that any such person was a party to it.”

3. Conspirators are agents of each other’s

The principle underlying S.8 is that a conspirator is an agent of his associates in carrying out the object of the conspiracy. His acts and declarations are therefore admissible against the other conspirators on the same principle as the acts and declarations of an agent are receivable against his principal.

There should be a Reasonable Ground to believe that a Conspiracy Existed before the Provision can be Invoked.

Prima facie proof of conspiracy and of the accused’s connection with it must be given before giving evidence of the act, declaration or writing of a Co-conspirator.

The scope and applicability of S.8 (S 10 Evidence Act) in this regard is explained in Bhagwan Swarup v. State of Maharashtra AIR 1965 SC 682 as under:

“This section …… will come into play only when the Court is satisfied that there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, that is to say, there should be prima facie evidence that a person was a party to the conspiracy before his acts can be used against his co-conspirators. Once such a reasonable ground exists, anything said, done or written by one of the conspirators in reference to the common intention, after the said intention was entertained, is relevant against the others, not only for the purpose of proving the existence of the conspiracy but also for proving that the other person was a party to it. The evidentiary value of the said acts is limited by two circumstances, namely, that the acts shall be in reference to their common intention and in respect of a period after such intention was entertained by any one of them”

4. Proof of Conspiracy

Now let us see the required degree of proof of the conspiracy:

It is not necessary that the reasonable ground to believe that two or more persons have conspired together to commit an offence should be shown by direct evidence as in a case of conspiracy direct evidence is seldom available.

In State v. Nalini, reported in 1999 (5) SCC 253, it was observed by the Supreme Court as follows:

“Mostly, conspiracies are proved by circumstantial evidence, as the conspiracy is seldom an open affair. Usually both the existence of the conspiracy and its objects have to be inferred from the circumstances and the conduct of the accused”

Fazal Ali, J., pointed out in V.C. Shukla v. State (Delhi Admn.) reported in 1980 (2) SCC 665 that:

“In most cases it will be difficult to get direct evidence of an agreement to conspire but a conspiracy can be inferred even from circumstances giving rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence.”

The observations of the Supreme Court in the case of Noor Mohammad Mohd Yusuf Momin v. State of Maharashtra AIR 1971 SC 885 are also worth noting. The court observed:

“In most cases proof of conspiracy is largely inferential though the inference must be founded on solid facts. Surrounding circumstances and antecedent and subsequent conduct, among other factors, constitute relevant material.”

In Esher Singh v. State of A.P 2004 (11) SCC 585 the Supreme Court observed:

“A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused in the offence of criminal conspiracy. The circumstances before, during and after the occurrence can be proved to decide about the complicity of the accused.”

5. Object and Purpose of Section 8

In Badri Rai v. State of Bihar AIR 1958 SC 953, Supreme Court speaking through B.P Sinha J. spelled out the object and purpose of Section 8 of  (Section 10 of the Evidence Act) as under:

“S.10 of the Evidence Act, has been deliberately enacted in order to make such acts and statements of a co-conspirator admissible against the whole body of conspirators, because of the nature of the crime. A conspiracy is hatched in secrecy, and executed in darkness. Naturally, therefore, it is not feasible for the prosecution to connect each isolated act or statement of one accused with the acts or statement of the others, unless there is a common bond linking all of them together…..As soon as the Court has reasonable grounds to believe that there is identity of interest or community of purpose between a number of persons, any act done, or any statement of declaration made, by any one of the co-conspirators, is, naturally, held to be the act or statement of the other conspirators, if the act or the declaration has any relation to the object of the conspiracy.”

The Common Intention Referred to in S.8 the Bharatiya Sakshya Adhiniyam (Section 10 of Evidence Act) must be Intention Existing at the Time When the Thing was Said, Done or Written.

Arijit Pasayat, J., speaking for a three Judge Bench in Mohd. Khalid v. State of W.B. (2002 (7) SCC 334: 2002 SCC (Cri) 1734) stated the legal position thus:

“We cannot overlook that the basic principle which underlies S.10 of the Evidence Act is the theory of agency. Every conspirator is an agent of his associate in carrying out the object of the conspiracy. S.10, which is an exception to the general rule, while permitting the statement made by one conspirator to be admissible as against another conspirator restricts it to the statement made during the period when the agency subsisted. Once it is shown that a person became snapped out of the conspiracy, any statement made subsequent thereto cannot be used as against the other conspirators under S.10.”

Thomas, J. observed in State of Gujarat v. Mohd. Atik (1998 (4) SCC 351: 1998 SCC (Cri) 936) :

“…the principle is no longer res integra that any statement made by an accused after his arrest, whether as a confession or otherwise, cannot fall within the ambit of S.10 of the Evidence Act.”

In Mirza Akbar v. King Emperor, AIR 1940 PC 176, the Privy Council had held that:

“Things said, done or written while the conspiracy was on foot are relevant as evidence of the common intention, once reasonable ground has been shown to believe in its existence. But it would be a very different matter to hold that any narrative or statement or confession made to a third party after the common intention or conspiracy was no longer operating and had ceased to exist is admissible against the other party. There is then no common intention of the conspirators to which the statement can have reference.”

6. Basic Elements of Section 10

In Sardar Sardul Singh Caveeshar v. State of Maharashtra AIR 1965 SC 682, Subba Rao J., analysed the provision and summed up the law as under:

“(1) There shall be a prima facie evidence affording a reasonable ground for a court to believe that two or more persons are members of a conspiracy;

(2) If the said condition is fulfilled, anything said, done or written by any one of them in reference to their common intention will be evidence against the other;

(3) Anything said, done or written by him should have been said, done or written by him after the intention was formed by any one of them;

(4) It would also be relevant for the said purpose against another who entered the conspiracy whether it was said, done or written before he entered the conspiracy or after he left it:

(5) It can only be used against a co-conspirator and not in his favour.”

(It may be noted that in Sardar Sardul Singh, the court observed that a statement would be relevant even when the statement was made after he left the conspiracy….which appears to be not good law in view of the above referred three Judge Bench in Mohd. Khalid v. State of W.B.)

7. “In Reference to Common Intention” is Wider in Ambit than “in Furtherance of Common Intention”

The Words ‘In Reference to Their Common Intention’ is wider in Scope than the Words ‘In Furtherance of Common intention’ in the English Law.

The Court in ‘Sardar Sardul Singh v. State of Maharashtra’ also observed that:

“The expression in reference to their common intention is very comprehensive and it appears to have been designedly used to give it a wider scope than the words in furtherance of in the English law; with the result, anything said, done or written by a co-conspirator, after the conspiracy was formed, will be evidence against the other before he entered the field of conspiracy or after he left it.”

With that we come to the close of this Module on the subject ‘Law of Evidence’. Hope you enjoyed and found it useful.

See you again in another module with another interesting topic on the ‘Law of Evidence.

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Exercise Questions

  1. Explain the basic elements of Section 8 of the Bharatiya Sakshya Adhiniyam (Section 10 of the Indian Evidence Act).
  2. Section 8 the Bharatiya Sakshya Adhiniyam ( Section 10 of the Indian Evidence Act)  is based on the theory of Agency. Elucidate.
  3. The Words ‘In Reference to Their Common Intention’ is wider in Scope than the Words ‘In Furtherance of Common intention’ in the English Law. Elucidate in the context of Section 8 the Bharatiya Sakshya Adhiniyam.