COMMON INTENTION AND COMMON OBJECT - DISTNICTION

COMMON INTENTION AND COMMON OBJECT DISTNICTION

HOW FAR THEY ARE RELEVANT IN ADIMISSABILITY OF EVIDENCE IN CRIMINAL CONSPIRACY

By Dr T Padma., LLM., Ph D (Law)

LLD Scholar (A P Law University)

kethepadma@gmail.com

CRIMINAL CONSPIRACY MEANING

“Conspiracy is a continuous offence which continues till its execution, rescission or frustration by choice of necessity and during its subsistence if any conspirator does any act or series of acts he would be guilty under Section 120-B.”[1] The essential ingredients of the offence are an agreement to commit an offence.  It consists not merely (1) in the intention of two or more but in the agreement of two or more, and (2)(i) to do an unlawful act or (ii) to do a lawful act by unlawful means.  So long as such a design rests in the intention only it is not indictable.  When two agree to carry it into effect the very plot is an act itself.  Agreement, secrecy and privacy are inherent in conspiracy. For conspiracy, there must be at least two persons.[2]

The various aspects necessary to constitute the offence are: (1) need for illegal agreement: (2) no need for overt act: (3) nature of agreement necessary-express or implied; (4) extent of comity/agreement/intention on part of conspirator necessary: (5) extent of involvement of each conspirator necessary in respect of various parts/intended offences of conspiracy; (6) extent of temporal involvement of each conspirator necessary; and (7) period for which conspiracy exists.[3]

As remarked by Russell, “The crime of conspiracy affords support for those who advance the proposition that Criminal law is an instrument of Government.”  Its effect on the liberty of a citizen cannot be ignored. “The law of conspiracy is a branch of our jurisprudence to be narrowly watched, to be zealously guarded and never to be pressed beyond its true limits.” The misuse of this law by the Government inculcates a fear in the minds of citizens. “The law of conspiracy is a doctrine so vague in its outlines and uncertain in its fundamental nature, as criminal conspiracy, lends no strength or glory to the law; it is a veritable quicksand of shifting opinion and ill-considered thought.” Judges and legal scholars would do well if they go to the heard of this matter, and with eyes resolutely fixed upon justice reach some common and definite understanding of the true nature and precise limits of this elusive law of conspiracy.

One must note that the law of conspiracy is an inchoate crime.  Action under this law can be taken when a fixed intention to commit this crime is formed.  Conspiracy as said before can be inferred from circumstances, i.e. acts and omissions deduced from the acts of the parties in pursuance of their purpose.  This may amount to attempt to commit the offence.  The law of conspiracy however dispenses with the difficult requirement of nearness in attempt. The offence has a very wide and extensive ambit and elasticity.  It therefore becomes a dangerous tool in the hands of Government affecting liberty of citizens.

DEFINITION (SEC. 120-A)

 According to section 120-A of Indian Penal Code ,

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. It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.

CONSPIRACY AND ABETMENT DISTINCTION

The distinction between the offence of abetment under cl. (2), Section 107 and criminal conspiracy is that in the former offence a mere combination of persons or agreement between them is not enough; an act or illegal omission must take place in pursuance of the conspiracy and in order to the doing of the thing conspired for.  In the latter offence mere agreement is enough if the agreement is to commit an offence.  Offence of criminal conspiracy is thus wider in amplitude then abetment by conspiracy as contemplated by Section 107, Indian Penal Code.

There may be an element of abetment in a conspiracy; but conspiracy is something more than an abetment.  Offences created by Section 109 and Section 120-B, Indian Penal Code are quite distinct and there is no warrant for limiting the prosecution to only one element of conspiracy, that is, abetment when the allegation is what a person did was something over and above that.

Abetment by conspiracy remains an ingredient of abetment under clause secondly of Section 107 IPC.  Whereas under Section 120-A, the essence of the offence of criminal conspiracy is a bare agreement to commit the offence, the abetment of conspiracy under Section 107 secondly requires the commission of some act or illegal omission pursuant to the conspiracy.  A charge of conspiracy under Sections 107/109 should therefore be in combination with a substantive offence, whereas the charge under Section 120-A/120-B could be an independent charge.

 PUNISHMENT (SEC. 120-B.)

(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.

PROOF OF CONSPIRACY

Section 10  of the Indian Evidence Act speaks about proof of Evidence as to things said or done by conspirator  in reference to common design as follows:-

Where  there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such persons was a party to it.

COMMON INTENTION

Section 34 of the Indian Penal Code refers to common intention. It says that when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. Common intention requires that the number of persons should be more than one. Common intention does not create a specific and substantive offence. It states a rule of law which is read with other substantive offences. No punishments can be solely based on this section. Common intention may be of any form where common object must be one of the five objects specified in Section 141 of IPC. In common intention prior meeting of minds is necessary.[4]

COMMON OBJECT

Common object is dealt with in Section 149 of IPC. If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence. At least 5 persons are necessary for common object.[Sec.141] Common object creates a specific and substantive offence

COMMON INTENTION AND COMMON OBJECT DISTINCTION

One of the perplexing problems of criminal law is the distinction between common intention and common object.  Section 34 of the Indian Penal Code makes an act, done by several persons in furtherance of the common intention of all, the act of every such person, making him liable therefor.  Once the shared common intention of a group of persons acting in concert is established, it is not necessary to prove the responsibility of each individual for the various acts done in pursuance of common intention-for  example, who inflicted the fatal injury and who inflicted the other injuries.  Everyone must shoulder the responsibility for the individual acts of everyone else. No accused person can claim that since he was not directly responsible for the act, he could not be convicted for the resulting offence.

Common object is concerned with the immediate desired consequence while common intention is concerned with the ultimate derived consequence.  In the case of common intention, the intending consequence and the resulting consequence must be the same.  While in the case of common object, the resulting consequences might be different. Therefore, if the common intention of the accused persons was to cause death, it is immaterial as to who was responsible for the fatal blow.  If the common object of an unlawful assembly was to cause grievous hurt the fact that one of the members of the unlawful assembly inflicted a fatal injury may make the particular accused guilty of murder but the other members of the unlawful assembly would only be guilty of causing grievous hurt but not of murder.

The distinction between the expressions ‘common intention’ and ‘common object’ occurring in Sections 34 and 149 respectively was attempted to be explained as follows:

“It is well settled that Section 34 as well as section 145 deal with liability for constructive criminality, i.e. vicarious liability of a person for acts of others.  Both the sections deal with combinations of persons who become punishable as sharers in an offence.  Thus they have a certain resemblance and may, to some extent, overlap.  But a clear distinction between common intention and common object is that common intention denotes action in concert and necessary postulates the existence of a prearranged plan implying a prior meeting of the minds, while common object does not necessarily require proof of prior meeting of minds or preconcert.  Though there is a substantial difference between the two sections, they also, to some extent, overlap and it is a question to be determined on the facts of each case whether the charges under Section 149 overlap the ground covered by Section 34.  Thus, if several persons numbering five or more do an act or intend to do it, both Section 34 and Section 149 may apply.”[5]

Hon'ble Supreme Court of India in Bhupendra Singh & Ors. V State of U.P.[6] has given a yardstick to find out the 'common object' from the attending circumstances of the case and how it is distinguishable from 'common intention[7]' as under: 

“ 'Common object' is different from a 'common intention' as it does not require a prior concert and a common meeting of minds before the attack. It is enough if each has the same object in view and their number is five or more and that they act as an assembly to achieve that object. The 'common object' of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. For determination of the common object of the unlawful assembly, the conduct of each of the members of the unlawful assembly, before and at the time of attack and thereafter, the motive for the crime, is some of the relevant considerations.

 What the common of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behaviour of the members at or near the scene of the incident. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful.” Most often an argument is put forth on behalf of defence, in a criminal case that because of discrepancies in evidence of prosecution the evidence ought not be relied upon. Credibility of the witness is also doubted for having some contradictions in his testimony. There may be some cases where the discrepancies or contradictions are such that the basic version of prosecution is not affected thereby, in those cases the discrepancies or contradictions are not material and as such cannot be used to discredit the testimony of a witness or to doubt the evidence of prosecution. Only in those cases where the contradictions and discrepancies are directly related to the incident and are material contradictions affecting the credibility of evidence, the evidence cannot be relied upon. Some contradictions and discrepancies are bound to happen even in the evidence of a truthful witness, due to the normal error of perception or fading human memory.

Hon'ble Supreme Court in a case titled 'Babasaheb Apparo Patil v. State of Maharashtra, has addressed to such like situations. It has been observed by the Apex Court that: “The discrepancies which do not shake the basic version of the prosecution case may be discarded. Similarly, the discrepancies which are due to normal errors of perception or observation should not be given importance. The Court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record as a whole and should not disbelieve the evidence of a witness altogether, if it is otherwise trustworthy.”[8]

ACTS DONE IN EXCESS OF COMMON INTENTION

In Barendra kumar Ghosh[9], the accused were charged under Section 302 read with Section 34, with the murder of a postmaster.  Accordingly to the evidence, while the postmaster was in his office busy counting money three persons fired pistols at him as the postmaster did not hand over money to them.  The accused was one of them.  The postmaster was hit in two places and died.  The trail judge directed the jury that if they were satisfied that the postmaster was killed in furtherance of the common intention of all the three men, then the accused was guilty of murder, whether he fired the pistol shot or not.  The court convicted him.  In appeal to the Privy Council it was held that the direction given to the jury was correct.  Similarly where each of several persons took part in beating a person so as to break eighteen ribs and cause his death[10], a number of men armed with sticks made a joint pre-planned attack on another man and practically killed him on the spot[11], where a group of persons out of which some had lathis and one had a gun set out towards a field with the common intention of attacking another group and preventing them from irrigating a field from a well and attacked the other group killing two persons and injuring others[12], they all were held guilty of murder on account of their common intention[13].  However where evidence of common intention was not forthcoming, the persons could not be held guilty or murder.  In short, doing any act which advances or aids the carrying out of the common intention makes a person guilty of the main offence.  Lord Dacre’s is an English case on this point.

Acts done in excess of common intention will not make others liable.[14]

RELAVANCY OF OFFENCE DONE BY CONSPIRATOR IN REFERENCE TO COMMON DESIGN

The law relating to the proof of conspiracy, as contained in Section 10 of the  Indian Evidence Act and  the position as expounded by authoritative judicial decisions, may be summarized as follows:

(1)  Reasonable ground to believe in the existence of a conspiracy must be shown as condition precedent to the admission of acts and declarations of a conspirator against his fellow conspirators.  However, the judge has discretion whether or not to insist on prior evidence showing such reasonable ground.

(2)  The action each of those accused with the charge of conspiracy must then be proved, i.e. that the persons charged were parties to it.

(3)  The acts, declaration and writings of each conspirator in reference to the common design or intention after the time when such intention was entertained by any of the persons are admissible against each of the others.

(4)  “Common intention” signifies a common intention existing at a time when the thing was said, done or written by one of them.  Therefore, things said, done or written by a conspirator after the conspiracy had been carried into effect or abandoned when the common intention was no longer operating are not admissible against a co-conspirator.

(5)  Narratives coming from the conspirators as to their past acts cannot be said to have a reference to their common intention.  The word ‘intention’ implies that the act intended is in the future, and the section makes relevant statements made by a conspirator with reference to the future.  The words “in reference to their common intention” means in reference to what at the time of the statement was intended in the future.[15]

(6)  In Lamington Road Shooting Conspiracy Case, a Police Officer and his wife were wounded by revolver shots near the Lamington Road Police Station in Bombay.  The shots were fired by some persons in a motor car parked on the opposite side of the road.  After several persons were arrested, evidence was sought to be given of a statement of an absconding accused to the approver, that the conspirators had shot a Police Officer, and that a pamphlet should be printed and distributed to start propaganda in furtherance of the objects of the conspiracy.  The Court held that a plain reading of S. 10 shows that narratives coming from the conspirators as to their past acts cannot be said to have a reference to their common intention. However, the statement about publishing a pamphlet would be relevant, because the statement furthers the object of the conspiracy.

It may also further be noted that Section 10 is not intended to remove the restriction which Section 25 of the Evidence Act and the provisions of the Criminal Procedure Code place upon admissibility of the statement made to the Police.

Where concert has once been proved, each party is the agent of all the others, and acts done by him in pursuance of the common design are admissible against his fellow conspirators. (Emp. v. Shafi Ahmed, 31 Bom. L.R. 515)

It may be noted that the law regarding the proof of conspiracy laid down in Section 10 of the Act is wider than the corresponding rule of English law.  Under the English law, the statements or acts made by one conspirator in furtherance of the common object are admissible against the other, however, under Section 10, anything said or done in reference to the common intention, although it may not be in support, or in furtherance, of the conspiracy, is relevant against the other.

There is another point where Indian law differs from the English law.  Under the English law, statements or acts of a conspiracy after one terminates his connection with the conspiracy are not admissible against the latter, but under Section 10, they are admissible against him.

[This material is put online to further the educational goals of ‘Study in Law’. This material may be used freely for educational and academic purposes. It may not be used in any way for profit.]

---

[1] Ram Narain Popli v. C.B.I (2003) 3 SCC 641: 2003 SCC (Cri) 869.

[2] C.B.I.v. V.C. Shukla, (1998) 3 SCC (Cri) 761.

[3]State v. Navjot Sandhu. (2005) 11 SCC 600.

 [4] Mohanan v. State of Kerala  2000 (2) KLT  562

[5] Chittarmal v. State of Rajasthan, (2003) 2 SCC 266

[6] CRIMINAL APPEAL NO. 743 OF 2009)

[7] Raj Nath v. State of U.P., AIR 2009 SC 1422.

[8] 'Babasaheb Apparo Patil v. State of Maharashtra AIR 2009 SC 1461.

[9] (1924)52 1A 40:52 Cal 197: 27 Bom LR148: AIR 1925 PC: 1

 [10] G.C.Das,(1875) 24 WR(Cr)5

 [11] Sipahi Singh,(1922) 45 A11 130

 [12] Irshad Ullah Khan (1933) 55 A11 607

 [13] Shankarlal Kacharabhai v State of Gujarat, AIR 1965 SC 1260

 [14] Joginder Ahir V State of Bihar (1971) 3 SCC 449

 [15] (Emp. V. Vaishampayan, A.I.R. 1932 Bom. 56)