CRIMINAL CONSPIRACY
HISTORY
The earlier editions of IPC consisted of only 2 provisions that
criminalized the offence of conspiracy; first was the offence of conspiracy by
the way of abetment as specified under section 107 of IPC and the second included
the offences that included conspiracies to commit them. For example, conspiring
a dacoity being in a gang of dacoits (section 400) or thieves (section 401).
However, it was in 1868, with the judgment of the house of lords in Mulcahy v. R, (1868)
LR 3 HL 306, that the English common law on conspiracy was widened. The judges
in the case ruled the meaning of conspiracy:
“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.”
The position of criminal conspiracy in India further expanded with time
in 1913 when the Criminal Law (Amendment) Act, 8 of 1913 introduced criminal
conspiracy as a sole criminal offence under section 120 A and 120 B of IPC.
MEANING
The definition and ingredients for the offence of criminal conspiracy
has been defined under section 120A of the IPC that states,
“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.”
INGREDIENTS OF S. 120A
(1) Two or more persons should be there;
(2) They should agree between themselves.
(3) The agreement must be to do or cause to be
done either:
(a) an illegal act, or
(b) a non-illegal act by illegal means.
1. Two or more persons – ‘Conspire’ means to agree together or to
jointly plan. Now it is simple to understand that only one person cannot
jointly plan or agree together with himself and conspire to commit an offence.
Therefore, at least two or more than two persons are needed to conspire. It was
also held by Supreme Court in Topandas v. State of Bombay AIR 1956 SC 33,
that “two or more persons must be parties to such an agreement and one
person alone can never be held guilty of criminal conspiracy for the simple
reason that one cannot conspire with oneself.”
In common law, it is
assumed that husband and wife are one person therefore when it comes to
criminal conspiracy if only husband and wife conspire to an offence, criminal
conspiracy is not charged. However, this law does not exist in India. Here, if
a wife conspires with her husband with the full knowledge about the illegal
activity or illegal means of the legal activity, she would be held liable for
conspiring (R v. Charstny, (1991)
1 WLR 1381 (CA)).
2. Agreement – It is important for the conspirators to agree to the
intention to commit the offence. Mere knowledge or just discussion is not
considered to be the offence of conspiracy. For example, I am the neighbour of
A and B. I hate A because of his illicit relationships that I think are immoral
as a godly person. My eternal wish is to kill A in order to protect society
from such evil practices. One fine day I overheard B, through the common wall
we share, about the plan he is making with his other 3 friends to kill A as B’s
wife slept with A. B plans to kill A by filling his apartment with Carbon
monoxide gas and suffocating him to death. I knew about all these plans, the
date, the time, the when, and the how. I did not do anything to protect A as I
also had the intention to kill him.
This incident where I have the knowledge
about the offence and even the same intention as the offence, I would not be
held liable for conspiracy because I did not agree to the commission of the
offence with the other conspirators.
3. To do or cause to be done – The act that is referred to in the section is
the act that is agreed upon. It can be an illegal act like not paying taxes or
committing murder, or it can be a legal act that may be committed by illegal
means like the act of passive euthanasia committing with the wrongful intention
of killing a healthy person who may get well soon. Or for example, marrying a
girl by abducting her. So, the act here which is marrying is legal however, the
abduction part is illegal means.
4. Actus reus – As stated by the principle inferred from the
maxim Actus Reus Non Facit Reum Nisi Mens Sit
Rea, an act has to be committed to
constitute a crime. In conspiracy, the criminal act is not the execution of the
offence per se but essentially the agreement to execute a criminal offence is
considered to be an offence.
For example, A and B
conspired to kill C. However, they could not execute the plan but they did
agree to jointly kill C. Now in this case even if A and B have not primarily
executed the killing of C, but the fact that they have agreed to kill C and
have planned for it, they would be held liable for criminal conspiracy.
DIFFERENCE BETWEEN ABETMENT BY CONSPIRACY (S.107) AND
CRIMINAL CONSPIRACY
Actus reus is the major difference between abetment
through conspiracy under section 107 and criminal conspiracy under section
120A. In the former section, abetment by conspiracy is committed by the commission
of an illegal act or omission of an act. However, the latter is charged simply when
an agreement to execute an illegal act or by illegal means is found.
To prove that the offence was in fact abetment through conspiracy, the
prosecution has to prove that the abettor has instigated the commission of the offence
and the abettor himself has engaged with one or more persons in the conspiracy
for doing that offence. (Saju v. State of Kerala, AIR 2001 SC 175)
For example, A and B are neighbours of C. B wishes C was dead because he
thinks C is a brutal man who beats his wife D. But B never did anything because
he does not believe in violence. A instigates B and D to kill C. They all
execute their plan however C survives the gunshots given by the three of them.
Here, if the prosecution proves that A was the abettor and B and D were his
targets then the charge shall be abetment through conspiracy.
The conclusion is that criminal conspiracy has somewhat a wider scope than abetment by conspiracy.
DIFFERENCE BETWEEN SECTION 34 AND CRIMINAL CONSPIRACY
|
|
S. 34 |
S. 120A |
|
1. |
Criminal acts or omissions should be done by several persons. (several not defined). |
The illegal act or legal act with illegal means should be done by two or more persons. |
|
2. |
The offence should be committed or
executed. |
The act of only planning is considered to
be illegal. |
|
3. |
An act done should be in furtherance of common intention which should be known to the rest of the participants. |
There must be an agreement of what act should be committed or the act committed should be with common intention. |
|
4. |
It is a mere rule of evidence and does not
state the punishment. |
It declares conspiring as an offence. |
|
5. |
A single person can be convicted under this the section as each would be liable for others. |
A person alone cannot conspire. |
PUNISHMENT FOR CRIMINAL CONSPIRACY
Section 120B under IPC describes the punishment for the offence of
criminal conspiracy. It states,
“Punishment of criminal conspiracy —
(1) Whoever 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.
(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.”
It describes two different punishments for two different situations:
(1) If the conspired offence has a punishment
of death or imprisonment for life or rigorous imprisonment for two years or
above, then in such a case, the conspirators shall be punished with the same
punishment as if they have abetted the offence.
(2) If the offence conspired was not an offence punishable with death, imprisonment for life or rigorous
imprisonment for two or more years, then in such a case the conspirators
shall be punished with imprisonment for a maximum of 6 months or with fine or with
both.
- KD Gaur: Criminal Law-Cases and Materials, 9th Edition
Comments
Post a Comment