The liability of an abettor of a crime is generally co-extensive with the principal offender. What constitutes abetment has been comprehensively dealt with in Chapter V of the Code. If one engages with one or more 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 the thing, abets the doing of the thing. Thus there can be abetment by conspiracy.
Section 120A of the Penal Code defines criminal conspiracy as follows-
When two or more person agree to do, or cause be done-
an illegal act, or
an act which is not illegal, by illegal means such an agreement desigated 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 done by one or more parties to such agreement pursuance thereof.
An explanation to this section- It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental that object.
A distinction is drawn between an agreement to commit an offence and an agreement of which either the object or the methods employed are illegal but do not constitute an offence. In the case of the former, the criminal conspiracy is completed by the act of agreement; in the case of the latter, there must be some act done by one or more of the parties to the agreement to effect the object there of, i. e. there must be an overt act
In order to convict an accused for criminal conspiracy under section 120A it has to be established that the accused had agreed to pursue a course of conduct which he knows leading to the commission of a crime by one or more persons to the agreement, of that offence. Besides the fact of agreement the necessary mens rea of the crime is also required to be established. (Saju vs. State of Kerala, AIR 2001 SC 175)
Agreement is the gist of the offence when the agreement is not an agreement to commit a offence the agreement does not amount to conspiracy unless it is followed up by an overt act done by one of more persons in pursuance of such an agreement. The agreement to do an illegal act which amount to a conspiracy will continue as long as the members of the conspiracy remain in agreement and as long as they are acting in accord and in furtherance of the object for which they enter into agreement.
According to the definition of criminal conspiracy in S. 120A. 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.
The essence of criminal conspiracy is an agreement to do an act, for instance, common cheating. Such an agreement can be proved either by direct evidence or by circumstantial evidence or by both.It is not necessary that there should be express proof of the agreement, for from the acts and conduct of the parties the agreement can be inferred.
It is not the law that every conspirator must be present at every stage of the conspiracy. If the conspirator concerned had agreed to the common design and had not resiled from that agreement, it can be presumed that he continued to be party to the conspiracy.
Ingredients of criminal conspiracy:
The ingredients of the offence of criminal conspiracy are:
there must be an agreement between the persons who are alleged to conspire;
that the agreement should be-
for doing an illegal act,
for doing by illegal means an act which may not itself be illegal; and
in the case of a conspiracy other than a conspiracy to commit an offence, there must be an overt act done by one or more of the parties to the conspiracy to effect the object thereof.
Criminal conspiracy between husband and wife is not an offence under the English law and also where the English law has been extended. (LailaJhina Miaji Vs. Queen (1958) 10 DLR 6)
A criminal conspiracy as defined in this section is itself a substantive offence. (AIR 1977 SC 2433)
The offence of conspiracy is complete when two or more conspirators have agreed or cause to be done an act which is itself an offence, in which case no overt act need be established. (AIR 1970 SC 549)
Elements of Criminal Conspiracy:
an object to be accomplished,
a plan or scheme embodying means to accomplish that object,
an agreement or understanding between two or more of the accused personswhereby, they become definitely committed to cooperate for the accomplishmentof the object by the means embodied in the agreement, or by any effectualmeans, and
in the jurisdiction where the statute required an overt act.
When two or more persons agree:
The essence of the offence of criminal conspiracy as defined in the section is that there must be an agreement between two or more persons to do one or other of the acts described in the section. (AIR 1965 SC 682)
A general conspiracy must be distinguished from a number of separate conspiracies having a similar general purpose. Where different group of persons co-operate towards their separate ends without any privity with each other, each combination constitutes a separate conspiracy. The common intention of the conspirators then is to work for the furtherance of the common design of his group only. (AIR 1970 SC 45)
In order to prove a criminal conspiracy punishable under S. 120B, there must be direct or circumstantial evidence to show that there was an agreement between two or more persons to commit an offence. A conspiracy can be inferred even from circumstances rise a conclusive irresistible inference an agreement between two or more persons to commit an offence. (AIR 1980 SC 1382)
The evidence must show a common concerted plan so as to exclude a reasonable possibility of the acts of the conspirators having been done separately and connected only by coincidence. (AIR 1979 SC 1266) Charge of criminal conspiracy must be established beyond all reasonable doubts. (AIR 1984 SC 226)
Abetment by conspiracy and criminal conspiracy (SECTIONS 107 AND 120A):
For an offence under this section a mere agreement is enough if the agreement is to commit an offence. But, for an offence under the second clause of section 107 an act or illegal omission must take place in pursuance of the conspiracy and a mere agreement is not enough. (Pramatha Nath v Saroj Ranjan, AIR 1962 SC 876)
As regard the difference between abetment and conspiracy the formes is the wider of the two:
In point of fact, abetment is a genus of which the offence of conspiracy is a species.
Abetment may be committed in various ways enumerated in sections 107 and 108 whereas, conspiracy is one of them.
In the next place, abetment per se is not a substantive offence. While criminal conspiracy is substantive offence by itself and is punishable as such.
Conspiracy and unlawful assembly:
The accused (five in number) were found in a temple in the middle of the night with house- breaking implements and guns in their possession. It was held that they were guilty under Section 143, as they must have been there with a common object of an unlawful kind. But the facts did not suffice to support a conviction under Section 120B. (AIR 1938 Mad 726)
Distinguish criminal conspiracy from the act done in furtherance of common intention (SECTIONS 34 AND 120A):
There is not much substantial difference between conspiracy as defined in section 120A and acting on a common intention, as contemplated in section 34. While in the former, the gist of the offence is bare engagement and association to break the law even though the illegal act does not follow, the gist of the offence under section 34 is the commission of a criminal act in furtherance of a common intention of all the offenders, which means that there should be unity of criminal behaviour resulting in something, for which an individual would be punishable, if it were all done by himself alone. (Dinanath, 1939 Nag 644)
Another point of difference is that a single person cannot be convicted under section 120A and, therefore, where all the accused except one were acquitted, the Supreme Court ordered his acquittal also, (Vinayak v State of Maharashtra, AIR 1984 SC 1793) whereas under section 34, read with some other specific offence, a single person can be convicted because each is responsible for the acts of all others.
Whoever is a party to a criminal conspiracy:
A mere agreement is sufficient under this section to constitute an offence. (AIR 1971 SC 885) Where a conspiracy was formed in South Africa by the accused persons to cheat persons by dishonestly inducing them to deliver money in the Indian currency by using forged documents and the acts of cheating where committed in India, and it was argued that the conspiracy was completed in South Africa and that the Indian Courts could not try the accused for the conspiracy, it was-held that the conspiracy continued, and the accused continued to be parties to the conspiracy and were guilty under this section. (AIR 1964 Rom 133)
Framing of charge:
The conspiracy to commit an offence is by itself distinct from the offence to commit which the conspiracy is entered into; such an offence, if actually committed, would be the subject-matter of a separate charge. (AIR 967 SC 1590)
The accused can be charged with both the offences, namely for conspiracy to commit an offence and the offence to commit which conspiracy is entered into. (AIR 1957 SC 381)
The offence of conspiracy is an entirely independent offence mid though other offence’s are committed in-pursuance of the conspiracy the liability of the conspirators for the conspiracy cannot disappear. (AIR 1963 SC 1850)
Sec. 119. Public servant concealing design to commit offence which it is an his duty to prevent:
Whoever, being a public servant intending to or knowing it to be likely that he will thereby facilitate the commission of offence which it is his duty as such public servant to prevent, voluntarily conceals, by any act or illegal omission, the existence of a design to commit such offence, or makes any representation which he knows to be false respecting design,
if offence be committed: -shall, if the offence be committed, be punished with imprisonment of any description provided for the offence, for a term which may extend to one-half of the longest term of such imprisonment or with such fine as is provided for that offence, or with both;
if offence be punishable with death, etc: -or, if the offence be punishable with death or imprisonment for life, with imprisonment of either description for a term which may extend to ten years;
if offence be not committed: -or, if the offence be not committed, shall be punished with imprisonment of any description provided for the offence for a term which may extend to one-fourth part of the longest term of such imprisonment or with such fine as is provided for the offence or with both.
Illustration: A, an officer of police, being legally bound to give information of all designs to commit robbery which may come to his knowledge, and knowing that B designs to commit robbery, omits to give such information, with intent to facilitate the commission of that offence.
“Here A has by an illegal omission concealed the existence of B’s design, and is liable to punishment according the provision of this section.”
Section 120-B provides that if the offence conspired is punishable with death, imprisonment for life rigorous imprisonment for two years or more the conspirator is punishable as abettor, but in any other case, he shall be liable to punishment not exceeding six months rigorous imprisonment or with fine or with both. Where evidence as to conspiracy under S.120-B(8) is rejected, the same evidence cannot be used for finding a common intention under S.34, Penal Code. (AIR 1953 SC 420)
The charge of criminal conspiracy being an independent offence has to be proved like any other offence. To estabilish a charge of criminal conspiracy the prosecution must prove agreement between two or more persons to do or cause to be done some illegal act; such agreement which is the essence of the offence of conspiracy, is not always capable of proof by direct evidence because the agreement is entered into secretly. Conspiracy is generally a matter of inference deducible from certain criminal acts of the involved parties.
The words “where no-express provision is made in this Code for the punishment of such a conspiracy” refer entirely to the quantum of punishment to be inflicted in the event of conviction under “this section and do not lay down any limitation against a charge under this section even when the accused has actually committed an offence in pursuance of the conspiracy. (1924 2 MysL PC 11)
The only case where express provision is made in the Code for the punishment of conspiracy is Section 121 A. (1972 Crill 707 SC)
Criminal conspiracy differs from other offences in that mere agreement is made an offence even if no step is taken to carry out that agreement. Though there is close association of conspiracy with incitement and abetment the substantive offence of criminal conspiracy is somewhat wider in amplitude than abetment by conspiracy as contemplated by Section 107. (AIR 1971 SC 885)
The liability of an abettor of a crime is generally co-extensive with the principal offender. What constitutes abetment has been comprehensively dealt with in Chapter V of the Code. If one engages with one or more 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 the thing, abets the doing of the thing. Thus there can abetment by conspiracy.
Md. Shawkat Alam Faisal, is a LL.B (Hons.) Graduate and currently pursuing LLM (International Law) at the Department of Law University of Rajshahi.