Relevancy of Conspirator’s Statement under Section 10 of Indian Evidence Act, 1872

Section 10 of the Indian Evidence Act talks about the admissibility of the statements or acts of one of the conspirators. It provides that it can be used against the co-accused to prove or disprove the existence of the conspiracy or the involvement of one of the members in the conspiracy. This section is based on the theory of agency, and hence, each conspirator is taken to be an agent of all the others. It was included in the IEA because of the gravity of the offence. This section is an exception to the general rule that one cannot be held criminally responsible for the acts of others.

This research paper discusses in detail the rationale behind the section and the respective meanings of a conspiracy and a conspirator. It also talks about the essentials that have to be proved before the court in order to use the statement against the co-conspirators. 

Introduction

Section 5 of the Indian Evidence Act, 1872 (IEA) provides that the evidence in a suit can only be given to prove the existence or non-existence of any facts in issue and any of such facts as are declared o be relevant under the provisions of the act. It is quite clear that any fact in issue cannot be proved or disproved without the help of the surrounding facts. These surrounding facts which render the facts in issue probable or improbable are called the relevant facts, and the evidence can be given on these facts alone. 

One such fact which becomes relevant in the case of a conspiracy is the statement by one of the conspirators in reference to the common design. The law relating to this subject is provided in section 10 of the Indian Evidence Act. It provides for the admissibility of anything said, done, or written by a conspirator in reference to the common intention of the conspirators.

This section provides for an exception to the rule that “one cannot be criminally responsible for the acts and statements of others.” It is a rule in civil cases that, the principal is responsible for the acts of his agent, which is generally called vicarious liability, but under criminal law, one cannot ordinarily be held responsible for the acts of others, i.e., there is no criminal vicarious liability. Therefore, the section is an exception to this general rule as under section 10, it is provided that if there are reasonable reasons to believe that a conspiracy exists between two or more persons, then anything said, done, or written by any one of the conspirators in reference to their common intention after such intention was first entertained by any one of them, can also be used against the others. It further provides that, such a thing can be used to prove the existence of a conspiracy or to prove that any such person was a party to that conspiracy. 

As an example, let us consider a situation where A, B, C, and D are accused of being involved in a conspiracy to wage a war against the government of India, and there is sufficient reason to believe that D had joined the conspiracy. Then, the facts that A procured arms from Guwahati, B encouraged persons to join the conspiracy in Delhi, C transferred money from Calcutta to A, are relevant, and can be used to prove the conspiracy as well as to prove the involvement of each of them in the conspiracy. 

Another important point to note here is that a statement under this section can be used against a person even if he was ignorant of the other facts about conspiracy, and although the persons by whom it was done were strangers to him, and even though they might have taken place before he had actually joined the conspiracy or after he had left it. 

Rationale/Principle

The main reason behind the inclusion of section 10 in the Indian Evidence Act is the unity of purpose and common design in relation to a specific act, i.e., the identity of interest and community of the purpose existing between the parties. It was made admissible against the whole body of conspirators because of the nature of the crime.

The principle behind the incorporation of the section is the principle of agency and representation. The theory of agency is based on the principal-agent relations in which the agent acts on behalf of another person known as the principal. The rule basically implies that a principal will be responsible for the acts of his agent, as an agent is a representative of the principal himself. Thus, anything done, said, or written by the agent will be presumed to be done, said, or written on behalf of the principal. Section 10 is based on this principle, in so far as it provides that anything said, done, or written by any of the conspirators can be used against all the others. Therefore, it can be said that, when a concert has once been proved, the doctrine applies that each party is an agent for all the others, and acts done by one in pursuance of the common design are admissible against the fellow conspirators.  Hence, as in a partnership, one partner is an agent of all the others, in the same way, one conspirator is deemed to be the agent of the others, and anything said, done, or written by one of the conspirators is considered to be said, done, or written by the other conspirators. 

As it was held in Badri v. State of Bihar that, 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 of the conspirators with that of the others unless there is a common bond linking them together.’

Meaning of Conspiracy and Conspirator

The meaning of conspiracy is contained in section 120A of the Indian Penal Code. It states that when two or more persons agree to do or cause to be done, either an illegal act or a legal act by illegal means, then such an agreement is called criminal conspiracy. It further provides that except when the agreement is to commit an offence, it shall not amount to a criminal conspiracy unless some overt act is done by one or more parties to it in furtherance of the agreement. 

Therefore, it can be said that an offence under this section is complete as soon as the agreement is made and that the conspiracy consists not merely in the intention of the persons, but the actual agreement between the parties. The actual concert between the parties is itself the overt act, and so, even if anything beyond the agreement is not done, the parties can still be liable under this section. As it was observed by Brett, J., in R. v. Aspinall that, “It is not necessary in order to complete the offence, that any one thing should be done beyond the agreement. The conspirators may repent and stop or may have no opportunity or maybe prevented or may fail. Nevertheless, the crime is complete; it was complete when they agreed.”

However, this would be the case only if the agreement is to commit an offence. This implies that if an agreement is to do a civil wrong or to do any act other than an offence, then in addition to proving the agreement between the parties, it is also to be proved that an overt act has been done in furtherance of the common intention under the agreement by one or more of the parties.   

In simple words, a conspirator is a person who is accused of being a part of a conspiracy. In every case, there will be at least two conspirators, as one person cannot hatch a conspiracy alone. The Merriam Webster dictionary defines a conspirator as “one who conspires.”

Test of admissibility under Section 10

In order to decide whether any act done, or statement made or thing written by an alleged conspirator is admissible against the co-conspirators, the test is to see whether there is reasonable ground to believe that a conspiracy existed between him and such person, and secondly whether such act, statement or writing had reference to their common intention. 

Therefore, the conditions of relevancy or the essentials of the section are:

  1. There must be a reasonable ground to believe: This means that there must be prima facie evidence to show that a conspiracy existed between the parties. Hence, unless there is reasonable ground to believe that the accused were involved in a conspiracy, anything aid/done/written by one of the conspirators cannot be used against the others. 
  2. Things should be said/done/written by the conspirator in relation to the common intention: This essential lays down that the thing said/done/written which is to be used against the co-conspirators should have been said in relation to the common intention of the conspirators. So, the common intention of the accused must exist at the time when such a thing was said, done, or written. For example, in the case of Badri Rai, a conspiracy was hatched to hush up a pending criminal case by bribing a police officer, and a statement made by one of the conspirators that he was sent by the other conspirator with money in furtherance of the talk they had with him as a reward for hushing up the case, was held to be admissible against both the conspirators as proof of a conspiracy. It was observed that the object of conspiracy had not been accomplished at the time, and the statement was made in course of the conspiracy.  

The section uses the words “in reference to the common intention”, thus it is wide in scope, and includes any act of the co-conspirator which was done after the conspiracy was found. Therefore, once the conspiracy is framed, anything done/said/written can be used against the co-conspirators even if he joined the conspiracy after such thing was said or act was done, or after he left it. 

  1. Period of conspiracy: Anything said/done/written by any of the conspirators at any time will not be relevant under this section. In order to bring it under the ambit of section 10, it has to be shown that it was said/done/written while the conspiracy was afoot. Thus, the section puts a limitation regarding time on the thing said/done/written. 

The words provided under the section are “after the time when such intention was first entertained by any one of them”. Therefore, it follows that anything which was said/done/written by one of the conspirators before such intention was entertained by any of the conspirators is not relevant under this section. 

For example, in the case of Queen v. Blake, where two accused A and B were charged for conspiracy to defraud the customs officers by certain imported good to be carried away from a port without payment of full customs duty, it was held that evidence of entries made by A in several documents used for carrying out the fraud was admissible against B also, but the evidence of a cheque drawn by A in favour of B after the fraud was completed was not admissible.

Conclusion

An important legal issue which arose in relation to this section was that what would be the extent of liability of a member in a conspiracy for each and every offence committed by the other members in furtherance of the common intention of the conspiracy, irrespective of the extent of participation by that member.

The Supreme Court in relation to this legal issue observed in the case of State (NCT of Delhi) v. Navjot Sandhu (Afsal Guru) as follows:

“We do not think that the theory of agency can be extended thus far to find all the conspirators guilty of the actual offences committed  in the execution of the common design even if such offences were ultimately committed by some of them, without the participation of others. Those who committed the offences pursuant to the conspiracy by including in various overt acts will be individually liable for those offences in addition to being liable for criminal conspiracy; but, the non-participant conspirators cannot be found guilty of the offence committed by the other conspirators. There is hardly any scope for the application of the principle of agency in order to find the conspirators guilty of a substantive offence not committed by them. Criminal offence and punishments therefore are governed  by statute. The offender will be liable only if he comes within the plain terrain of the penal statute. Criminal liability for an offence cannot be fastened by way of analogy or by extension of a common-law principle.”  

References

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