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Report No. 69

IX. No Change

7.158. Having carefully considered all aspects of the matter, we are of the view that though according to decision, section 10 is narrowed down so as to limit it to acts and declarations made in furtherance of the common intention of the persons concerned1, yet it is not desirable to amend the section. Judicial decision had taken the narrow view. Since there may be extraordinary cases where, special considerations apply, a wider view is not ruled out.

Section 10 brings out the following points:-2

(a) Section is an exception to hearsay;

(b) Rationale of the section is agency;

(c) Prima facie case to be proved even under the section, i.e., reasonable ground for belief in conspiracy should be first proved;

(d) Distinction between reasonable ground and proof;

(e) Reasonable belief may be elevated into proof by use of the material allowed under the section;

(f) Taylor, in dealing with the corresponding English doctrine, has used the formula "in furtherance of". The section has used the expression "in reference to".

(g) The words used in the section are wider than the English law, but have been judicially narrowly construed, as already noted in the draft report of Shri Bakshi.

(h) In all ordinary cases, the narrower construction of these words will be applied. In extraordinary situations, the scope for a wider view does, not appear to be ruled out. Even then, the evidence to be admissible under the section should be of such direct and proximate act or statement as would prove the fact of conspiracy or participation therein.

There is also a minor point to be noted with reference to section 10. Curiously, the section does not link up the relevance of the facts mentioned in the section with another "fact in issue or relevant fact"-as do sections 6 to 9 and section 11 et seq. Strictly speaking, the section should have the following words at an appropriate place:

"Where the existence of the conspiracy, or the fact that any such person was a party to it, is a fact in issue or a relevant fact".

We recommend that these words, or some similar words, should also be added at an appropriate place in the section.3

1. See case of Mirza Akbar, supra.

2. Chairman's suggestion accepted.

3. A re-draft of section 10 is given, infra.

7.159. Section 10 and the words 'reasonable ground'.-

As to those words in section 10, which refer to "reasonable ground to believe in the existence of a conspiracy, etc.,", the question may be considered whether the standard of proof should not be expressed in more stringent terms than at present. Occasionally, the matter is discussed, in some text books, by stating that the Judge must be satisfied of the existence of an agreement between A and.- the alleged conspirators. But this does not accurately reflect the true position even in England.

7.160. Differing views.-

It appears that there are differing points of view in this regard. The English case of R. v. Griffith, (1965) 2 All ER 448 (451, 453 454) stands at one extreme. In that case, the Court of Criminal Appeal deprecated the practice of "rolled up conspiracy counts" and emphasised, that in order to prove one conspiracy, there had to be evidence from which it could be inferred that each alleged conspirator knew that there was, or was coming into existence, a scheme to which he was attached--a scheme to which there were other parties, and which scheme went beyond the act that he had agreed to do. Where these conditions are not satisfied, the various persons would not be acting in pursuance of a common criminal purpose. In this case, there was no evidence of the conspiracy existing between one farmer or any other farmer, and none was connected with the other.

7.161. At the other extreme, are cases where there is such proof of the existence of the conspiracy as it required by the definition of "proved"1 in the Act, which is as follows:

"A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists."

In between the two extremes lies the situation which frequently presents itself, namely, that there is reasonable ground to believe that there is a conspiracy, though the material is not yet of that quality as would satisfy the test required by the definition of "proved". In such circumstances, section 10 comes into play, as is clear from the opening words of the section.

1. See section 3.

7.162. In the absence of any serious hardship arising from the present position as regards the aspect discussed above, we are not inclined to suggest any change in this regard in section 10.

7.163. Recommendation.-

In the light of the above discussion, we recommend that section 10 should be revised as follows:-

Revised section 10 (without the illustrations)

10. Where-

(a) the existence of a conspiracy to commit an offence or an actionable wrong, or the fact that any person was a party to such a conspiracy, is a fact in issue or a relevant fact1; and

(b) there is reasonable ground to believe that two or more persons have entered into such conspiracy, anything said, done or written by any of such persons in reference to their common intention, after the time when such intention was first entertained by any of them, is a relevant fact as against each of the persons believed to be so comprising, 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.

(Illustrations as a present, with such consequential changes as may be required).

1. We have not dealt with consequential changes in the illustrations.

Indian Evidence Act, 1872 Back

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