Report No. 69
VI. Section 10 as Covering Acts beyond Common Purpose
7.134. Injustice of present wide provision.-
What is the position where a person travels beyond the common purpose and where acts not done in pursuance of the combination (or, as the English decisions put it, not in furtherance of the object of the conspiracy), are sought to be rendered admissible. It is not fair that acts and statements not so made should bind or be admissible against the co-conspirators. As it stands, the section admits acts or statements made or done "in reference to the common design," and does not contain the further requirement that they must be made in furtherance of the common design.
7.135. Wide scope of offence.-
It should, in this connection, be remembered that in 1872, the general offence of criminal conspiracy as a substantive offence was not recognised in India, and conspiracy appeared only as a species of abetment in section 107, clause second of the Indian Penal Code, whereunder an overt act is required.1 As a substantive offence, it appears only in section 121 of the Penal Code which refers to conspiracy to wage war against the Government of India, or to overawe by force the Government (inserted in 1870). Thus, conspiracy to wage war was, practically, the only offence of conspiracy punishable as a substantive offence.
1. Section 107, second para., and section 108, Explanation 5, I.P.C.
7.135A. The position now is different. Section 120A of the Penal Code (inserted in 1913) covers-
(i) an agreement to commit any offence, and
(ii) an agreement to commit an illegal but not a criminal act, and
(iii) an agreement to commit a legal act by illegal means.
7.136. Position in England as to admissibility.-
It may be noted that in England, admissions of the conspiracy, made after failure of its objects, or after accomplishment of its objects, if not made in pursuance of the conspiracy, are admissible only against the party making the admission.1
Acts done in pursuance of the conspiracy are evidence of the objects of conspiracy against all the conspirators2. The main application of the rule is where all the accused have done acts tending towards on obvious purpose.3 But acts not done in pursuance of the common purpose are excluded.
1. Blake, (1844) 6 Queen's Bench 126: 115 ER 49.
2. Esdale, (1858) 175 ER 196; see para. 7.149, infra.
3. Shellard, (1840) 173 ER 834.
7.137. Illustration from O'Connell's case.-
Pennefeather, C.J., in R. v. O'Connell, 5 ST NS 1.710. observed:
"When evidence is once given to the jury of a conspiracy against A, B and C, whatever is done by A, B or C in furtherance of the common criminal object is evidence against A, B and C though no direct proof be given that A, B, or C knew of it or actually participated in it If the conspiracy be proved to have existed, or rather if evidence be given to the jury of its existence, the acts of one in furtherance of the common design are the acts of all; and whatever one does in furtherance of the common design, he does as the agent of the co-conspirators."
7.138. Stephen's view.-
In Stephen's Digest, he states the English law thus:1
"When two or more persons conspire together to commit any offence or an actionable wrong, everything said, done or written by one of them in the execution or furtherance of their common purpose, is deemed to be so said, done or written by every one and is deemed to be a relevant fact as against each of them, but statements made by individual conspirators as to measures taken in the execution or furtherance of any such common purpose are not deemed to be relevant as such as against any conspirator except those by whom or in whose presence such statements are made. Evidence of acts or statements deemed to be relevant under this article may not be given until the judge is satisfied that apart from them there are prima facie grounds for believing in the existence of the conspiracy to which they relate."
1. Article 4, Stephen's Digest of Evidence.
7.139. Difference between English and Indian law.-
The difference between English and Indian law as given in the text of section 10, can be thus illustrated. A letter written by one of the conspirators to a friend, giving the details of the conspiracy, will not be admissible under English law, as it does not further the cause of conspiracy of common design, nor is the letter written with that object; but it would certainly be admissible under our law, as it has a "reference" to the common intention as is provided by section 10 of the Act, if taken literally.
7.140. Even in England where the scope is narrower, the Court of Criminal Appeal has observed,1 that unnecessary conspiracy counts in a complicated case "imposed a quite intolerable strain both on the Court and on the jury".
1. Dawson, (1960) 44 Cr App R 87 (93, 95, 96); Griffith, (1955) 3 WLR 405.
7.141. Stage at which conspiracy punishable.-
The stage at which a person becomes liable to be punished for criminal conspiracy is also much earlier than the stage when an attempt becomes punishable. A mere agreement to commit an offence is enough. No physical act need take place. Even preparation-the devising and arranging of the means for committing the offence-is not required.
7.142. Position in U.S.A. as the common purpose.-
The aspect of "common purposes" is recognised in the U.S.A. Judge Learned Hand said in one case;1"Nobody is liable for conspiracy except for the full import of the concerted purpose of agreement as he understands it; if later-covers change that, he is not liable for the change."
1. United States v. Peony, (1938) 100 F 2nd 401 (per Learned Hand, J.).
7.143. English test preferred.-
Logically, the test followed in the English law is more satisfactory, for the reason that it brings out the element of "association" and "common purpose". The law makes the acts and declarations of a conspirator admissible against his associates, for the reason that he is an agent of the associates in carrying out the object of the conspiracy1. In India, however, on a literal reading of section 10, an account given by one of the conspirators would be relevant even though it is not in furtherance of the conspiracy.
1. (a) Cf. Vishendas v. Emperor, ILR 1944 Ker 449: AIR 1944 Sind 1.
(b) Emperor v. Vaishampayan, ILR 55 Born 839: AIR 1932 Boni 56.
(c) Bholanath v. Emperor, AIR 1939 All 567.